author:
Sam Robinson, Associate Justice,
      Ed. F. MoFaddin, Associate Justice,

text:
    Malvern Gravel Co. v. Mitchell.
    5-3343
    385 S. W. 2d 144
    Opinion delivered December 21, 1964.
    [Rehearing denied January 18, 1965.]

      Joe W. McCoy, James C. Cole, Wood, Chessnutt & Smith, Rose, Meek, House, Barron, Nash S Williamson, for appellant.

      Wendell 0. Epperson, Lookadoo, Gooch & Lookadoo, for appellee.
   Sam Robinson, Associate Justice,

The issue here is whether the appellant, Malvern Gravel Company, is liable under the Federal Employers’ Liability Act for injuries sustained by appellees, Arlie Mitchell and James Rogers, who were employees of the gravel company at the time they were injured. There were jury verdicts for the plaintiffs, Mitchell and Rogers. The gravel company has appealed. If there is substantial evidence that the gravel company is a common carrier, within the meaning of the Federal Employers’ Liability Act, the trial court was correct in refusing to direct a verdict for appellant, but if there is no substantial evidence that the gravel company is a common carrier within the meaning of the aforesaid Act, the judgments must be reversed.

Mitchell and Rogers, while working in the due course of their employment, were underneath a railway car closing a defective hopper door on a car which belonged to the Missouri Pacific Railroad Company. They were severely injured when an employee of the gravel company, while operating a switch engine, shoved a railway car into the car under which appellees were closing the hopper door.

Mitchell and Rogers, as employees of the gravel company, were awarded compensation under the Arkansas Workmen’s Compensation Law, which limits the amount of compensation recoverable. Later, they filed suits in the Hot Spring Circuit Court against the Missouri Pacific Railroad Company, the Malvern & Ouachita River Railroad Company, and the Malvern Gravel Company, alleging that the defendants were common carriers engaged in interstate commerce; that they were, therefore, liable to appellees under the Federal Employers’ Liability Act. Under that Act, notwithstanding the Arkansas Workmen’s Compensation Law, there is no limit to the amount of recovery for a personal injury. Missouri-Kansas-Texas R. Co. of Tex. v. Waddles, 203 S.W. 2d 350; Schirra v. Delaware, L.&W.R. Co., 103 F. Supp. 812.

The cases of the plaintiffs .against the defendants were consolidated and proceeded to trial. After all parties had rested, the court directed a verdict in favor of the Malvern'& Ouachita River Railroad Company, and there is no appeal from the court’s action in that respect. The jury returned verdicts in favor of each plaintiff in the sum of $200,000 against the Missouri Pacific Railroad Company and the Malvern Gravel Company. Presumably, the Missouri Pacific settled the judgment against it. In any event, it is not a party to this appeal. Only the gravel company has appealed.

The principal issue, and the only one we reach, is whether the appellant, Malvern Gravel Company, is a common carrier within the meaning of the Federal Employers ’ Liability Act. Although it is engaged in interstate commerce, if it is not a common carrier as such a carrier has been defined by the Federal Courts, it is not liable under the Act.

The Federal Employers’ Liability Act provides: “Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, . . .” 45 D.S.C.A., Sec. 51.

The Malvern & Ouachita River Railroad Company, hereinafter called M & O, was issued a charter in Arkansas as a railway company in 1929. Actually, the M & O did not transport anything for anyone and was incapable of doing so. It only owned a right-of-way of about 1% miles with no rails thereon. As rolling stock, it owned one switch, engine, but no tracks on which to operate it and no railway cars to pull. It never, at any time, operated as a railroad or as a common carrier within the meaning of the Federal Employers’ Liability Act. Although it may have been a common carrier under the provisions of Arkansas Constitution, Article 17, Sec. 1, and because of having exercised the right of eminent domain, it was not a common carrier within the meaning of the Federal Employers’ Liability Act. The U.S. Supreme Court has said: “In our opinion, the words ‘common carrier by railroad’ as used in the act, [Federal Employers’ Liability Act], mean one who operates a railroad as a means of carrying for the public, — that is to say, a railroad company acting as a common carrier. This view not only is in accord with the ordinary acceptation of the words, but is enforced by mention of cars, engines, track, roadbed and other property pertaining to a going railroad.” Wells Fargo & Co. v. Taylor, 254 U.S. 175, 41 S. Ct. 93. (Our emphasis.)

In 1932, the Malvern Gravel Company was chartered as a corporation. The incorporators were entirely different from those who had incorporated the M & 0 in 1929. At the present time, the Malvern G-ravel Company owns the controlling stock in the M & 0 but there is no showing as to when the gravel company acquired the M & 0 stock. Sam Clark is the president of both companies. He became associated with both companies about 15 years ago. As a corporation, the gravel company is authorized to excavate, mine, quarry and produce, refine, grade, crush, dress, manipulate, amalgamate and prepare for building and construction purposes or otherwise, prepare for market, and to purchase, manufacture, make, acquire, sell or otherwise dispose of, distribute, and generally deal in and with gravel, sand, stone, rock, clays, ores, metals, and vegetable and mineral substances and building and construction materials of all kinds, etc. It was not authorized to operate as a railway company.

Some time after the Malvern Gravel Company came into existence as a corporation, for the consideration of $2,500 per year, it leased from the M & O, a corporation that had never operated as “a going railroad”, the short right-of-way and a railroad engine owned by M & 0. The gravel company leased rails from the Missouri Pacific and caused them to be placed on the right-of-way it had leased from the M & 0. By using the leased engine, rails and right of way the gravel company has been able to move its products from its plant to a point where they could be placed on the main lines of the Missouri Pacific and Rock Island Railroads, and thus transported in both intrastate and interstate commerce.

The gravel company has never held itself out as a common carrier. In fact, with the exception of a few times, its railway facilities have been used by no one except the gravel company itself. At one time a road contractor had a “batch” plant located on gravel company' property near the gravel plant. The gravel company was selling material to the contractor, and used its own railway facilities to deliver, on its own property, the material it was selling to the contractor. About a half dozen other times the gravel company, as a favor, permitted its facilities to be used, on the gravel company property, to unload material purchased elsewhere by others who did not have a convenient place or facilities to unload heavy material. No charge was made for such accommodations. The gravel company merely did a few friendly acts to help some neighbors.

The Missouri Pacific delivered and picked up its cars on the gravel company property. The gravel company, with its engine, picked up empties and delivered the ears that it had loaded with its own material to the Rock Island and was allowed $5.00 per car for doing so. This was done because the Arkansas Commerce Commission had a rule that a railroad company must do the switching or pay the customer for doing it. The Missouri Pacific did its own switching in connection with the gravel plant, but the Rock Island chose to pay the gravel company for doing it.

The Malvern Brick & Tile Company is near the gravel company property. The railroad track of the gravel company crosses property belonging to the brick company. The brick company also has a locomotive, and uses a portion of the track in question and helps to maintain it. The gravel company never handles any material for the brick company.

Appellant argues that the burden of proof was on plaintiffs, appellees, to show that the Federal Employers’ Liability Act is applicable, and appellees concede that they had the burden of proof in that respect.

To sustain their contention that the gravel company is a common carrier, appellees, in their excellent brief, rely to a large extent on what are known as the “Tap Line Cases”, 234 U.S. 1. There, a number of lumber companies who operated short line railroads contended that they were common carriers; they held themselves out as such, and maintained that as common carriers they were entitled to a rebate of a part of the tariff collected by the principal railroads hauling the shipments. The Tap Line Cases are easily distinguishable from the. case at bar. In those cases the court said: “They [the Tap Lines] are engaged in carrying for hire the goods of all those who see fit to employ them.” This statement in itself shows that the tap lines were common carriers. In the case at bar, there is no showing that the gravel company ever held itself out as being willing to haul for others, for hire or otherwise. In fact, the evidence is completely convincing that the gravel company operated the 1% miles of railroad solely for the purpose of getting its own products to market, and for no other purpose.

Appellees also rely heavily on Kach v. Monessen Southwestern Ry. Co., 151 F. 2d 400, but there the issue was whether the railroad company was operating in interstate commerce, and not whether it was a common carrier.

Appellees cite several other cases as supporting their argument that the gravel company is a common carrier. We have carefully examined all the cited cases. They are distinguishable on the facts, and it would unduly extend this opinion to deal at length with each case. Appellees also suggest that the gravel company is a common carrier because of its close connection with the M & 0 Railroad.

There are three things that must combine to constitute a common carrier within the meaning of the Federal Employers’ Liability Act; (1) a carrier must be engaged in interstate commerce; (2) it must operate a railroad in interstate commerce; and (3) it must operate a railroad as a common carrier.

Even if we should find that the M & 0 and the gravel company are so closely associated that they could be considered as one company, and that such cases as Black & White, Inc. v. Love, 236 Ark. 529, 367 S.W. 2d 427, are applicable in that respect, it would not help appellees because according to many decisions of the Federal Courts, neither the M & 0 or the gravel company, or the two companies operating individually or in concert with one another have ever operated as a common carrier within the meaning of the Federal Employers’ Liability Act. Time and again the Federal Courts have defined a common carrier that comes within the meaning of the Act. We are bound by the decisions of the Federal Courts in that respect. Chicago, R.I. & P.R. Co. v. Wright, Okla. 1954, 278 P. 2d 830, certiorari denied, 75 S. Ct. 581, 349 P.S. 905, 99 L. Ed. 1241.

In Duffy v. Armco Steel Corp., 225 F. Supp. 737 (1964), the court held that a defendant is not “a common carrier by railroad” for purposes of Employers’ Liability Act where defendant owned and operated railroad equipment within its manufacturing plant, the equipment being used to transport material over leased right of way. The court said: “The railroad equipment owned and operated by Armco has not been used to transport goods of others, nor has Armco offered their use to the public. Thus, it appears to a certainty that there is no genuine issue as to any material fact in this case. Defendant asserts, and the Court agrees, that defendant although operating in interstate commerce is not a common carrier by railroad.” It was held in Tilson v. Ford Motor Co., 130 F. Supp. 676 (1955), that where the operation of a railroad by an automobile manufacturer served only the automobile manufacturer, the automobile manufacturer was not a common carrier within the meaning of the Federal Employers’ Liability Act.

In Kelly v. General Electric Co., 110 F. Supp. 4, the electric company owned rolling stock and tracks and its tracks were partly located in the bed of a public street and were connected with those of a railroad common carrier. It shipped goods F.O.B. plant and moved cars partially loaded with goods of others. But it did not hold itself out as a common carrier and did not carry for hire the goods of others. The court held that it was not a common carrier within the meaning of the Federal Employers ’ Liability Act. There, the court said: ‘ ‘ The distinctive characteristic of a common carrier is that he undertakes to carry for all people indifferently, and hence is regarded in some respects as a public servant. The dominant and controlling factor in determining the status of one as a common carrier is his public profession as to the service offered or performed.”

In Jones v. N.Y. Cent. R. Co., 182 F. 2d 326 (1950), the court quoted the language of the U.S. Supreme Court in Wells Fargo & Co. v. Taylor, 254 U.S. 175, to the effect that a common carrier for the purposes of the Federal Employers ’ Liability Act is one who operates a railroad as a means of carrying for the public.

There is no substantial evidence in the record that appellant or M & O operated a railroad as a means of carrying for the public. In other words, there is no substantial evidence that either or both companies operated as a common carrier within the meaning of the Federal Employers’ Liability Act.

Reversed and dismissed.

McFaddin & Johnson, J.J., dissent.

Ed. F. MoFaddin, Associate Justice,

(dissenting). The Majority Opinion states the issue in the first paragraph: “If there is substantial evidence that the gravel company is a common carrier, within the meaning of the Federal Employers’ Liability Act, the Trial Court was correct in refusing to direct a verdict for appellant, but if there is no substantial evidence that the gravel company is a common carrier within the meaning of the aforesaid Act, the judgments must be reversed.” Then in a subsequent paragraph the Majority Opinion has this statement: í (There are three things that must combine to constitute a common carrier within the meaning of the Federal Employers ’ Liability Act: (1) a carrier must be engaged in interstate commerce; (2) it must operate a railroad in interstate commerce; and (3) it must operate a railroad as a common carrier.”

I propose to take these three essentials and demonstrate that there is ample and substantial evidence to take the case to the jury on each of these three essentials. It is not for this Court to sit as an appellate jury and render a factual finding on each of these three essentials: it is our duty to determine whether there is substantial evidence to take the fact questions to the jury; and this I now propose to demonstrate as to each of the three essentials listed in the Majority Opinon, as above quoted.

I. The Malvern Gravel Company Was A Carrier Engaged In Interstate Commerce. The proof abundantly shows that the Malvern Gravel Company made carload shipments of gravel over its railroad track from its plant to various states, and transported over its tracks shipments from outside Arkansas. So the Malvern Gravel Company was engaged in interstate commerce. That the Malvern Gravel Company was a carrier so engaged in interstate commerce is clearly demonstrated by the fact that the Malvern Gravel Company was the same as the Malvern & Ouachita River Railroad, even though they existed as separate corporations.

The record shows that the Malvern & Ouachita River Railroad was incorporated and received its charter from the State of Arkansas on April 30, 1929, "... for the purpose of forming a railroad corporation to incorporate, own, construct and operate a short line of railroad necessary to the successful mining quarrying and marketing of stone, rock and other materials ...” The incorporators certified that 391 shares of the 400 shares were owned by Frank McGillicuddy, and that the railroad would be about four and one-half miles long in Hot Spring County, Arkansas. In order to acquire a part of the right of way, the Malvern & Ouachita River Railroad exercised the power of eminent domain in the Hot Spring Circuit Court in May 1929. So we have an Arkansas railroad corporation exercising the power of eminent domain. Article 17, Section 1 of the Arkansas Constitution states: “All railroads, canals and turnpikes shall be public highways, and all railroads and canal companies shall be common carriers.” Notice the language: “. . . all railroads . . . shall be common carriers.”

That the Malvern Gravel Company is the same as the Malvern & Ouachita River Railroad is abundantly established from the evidence. On April 3,1931, the Malvern Gravel Company entered into a signed contract with the Missouri Pacific Railroad Company. Mr. Frank Mc-Gillicuddy — previously stated as owning 391 of the 400 shares of the issued stock of the Malvern & Ouachita River Railroad — signed the agreement as representing both the Malvern Gravel Company and the Malvern & Ouachita River Railroad. The instrument is so enlightening that I copy pertinent excerpts:

“It is understood that the Missouri Pacific, in compliance with recent order of the Arkansas Railroad Commission, desires to perform the service required of it by the Commission’s order in connection with the service mentioned in the caption, in lieu of paying to the Gravel Company the allowance prescribed by the Commission, in the event the work is performed by the Gravel Company rather than by the railroad. In order to carry out this arrangement, the following is agreed upon:
“1. The Malvern Gravel Company (Malvern & Ouachita River Railroad Company) will provide track upon which Missouri Pacific engines and cars may be safely operated between the Missouri Pacific main line connection and the loading facilities of the Malvern Gravel Company; the latter being located approximately one and three quarters (1%) miles from the Missouri Pacific main line. ...
“2. The Malvern Gravel Company (Malvern & Ouachita River Railroad) will provide suitable track facilities convenient to its plant where empties will be set out by the Missouri Pacific engine and crew, also suitable track or tracks from which loads will be moved by the Missouri Pacific crew. Commercial loads for movement via Missouri Pacific will be placed together by the Malvern Gravel Company (Malvern & Ouachita River Railroad) on designated tracks so that switching in the plant by the Missouri Pacific crew for the purpose of getting this business together, will not be necessary. . . .
“4. The hour or hours at which Missouri Pacific will make trip to plant of the Malvern Gravel Company (Malvern & Ouachita River Railroad) will be agreed upon between representatives of the two companies on the ground, and may be changed from day to day as conditions require, by mutual agreement between these representatives. . . .
“/s/W. E. Lamb, Superintendent — Mo. Pac. RR. Co.
“/s/Frank McGillicuddy, Representing Malvern Gravel Co.
(Malvern & Ouachita River RR. Co.)”

It will be observed that the Malvern & Ouachita River Railroad was the name placed in parenthesis after Malvern Gravel Company in each instance, and this certainly indicates that the two were considered as one. On January 21, 1932, Malvern Gravel Company became a Delaware corporation and on January 25, 1932, it qualified to do business in Arkansas, and has so remained. On June 1, 1934, Malvern Gravel Company leased from the Missouri Pacific Railroad Company track materials consisting of 27,114 lineal feet of steel rails, and also angle bars, frogs, guard rails, switch plates, and other such materials for operating a railroad. The charter of the Malvern Gravel Company did not authorize it to construct a railroad track, yet it did so because its alter ego, Malvern & Ouachita River Railroad, needed a railroad track. In the present case Mr. Sam R. Clark testified that he was President of both companies. I copy excerpts from his testimony:

“Q. State your name, please, sir.
“A. Sam R. Clark.
“Q. Mr. Clark, are you connected with the Malvern Ouachita River Railroad in any way?
“A. Yes, sir. I’m president of both companies.
“Q. What do you mean both companies?
“A. Malvern Gravel Company and Malvern Ouachita River Railroad Company.
“Q. All right. Mr. Clark, what operations are carried on by the Malvern and Ouachita River Railroad Company? Do they carry on any operations at all?
“A. No, it’s just a hook corporation is all it is . . .
“Q. For what purpose was that railroad incorporated ?
“A. It is my understanding that the only reason the railroad was incorporated was to condemn the right of way from the plant site to the Missouri Pacific switching yards. . . .
‘ ‘ Q. What is the relationship between the Malvern and Ouachita River Railroad Company and the Malvern Gravel Company?
“A. Malvern Gravel Company owns stock in the company.
“THE COURT: Wliat was your answer?
“A. I said the Malvern Gravel Company owns stock in the company. There’s a hundred shares of stock in the Malvern Ouachita River Railroad Company and the Malvern Gravel Company owns 97 shares of that stock. I own a share and my wife owns a share and Wilburn Cox owns a share. According to Arkansas Law there has got to be three incorporators, so Malvern Gravel Company owns all the stock except the three shares.
“Q. Does Malvern Gravel Company have any lease with the Malvern Ouachita River Railroad Company?
“A. Yes, sir.
“Q. What is the rental on that lease?
“A. Twenty-five hundred per year.
“Q. Do you rent all the facilities of the Malvern and Ouachita River Railroad Company?
“A. Yes, sir.
“ ‘ Q. How long have you been operating under that lease, ever since you have been there?
“A. Ever since I have been there, and I don’t know how long before that. I have been there for 15 years. . . .
“Q. Your Malvern and Ouachita River Railroad Company rents or leases its track and other material to the Malvern Gravel Company, is that correct?
“A. Yes, sir. ..
“Q. And you pay $2,500.00 per year on that lease?
“A. Yes, sir.
“A. Yes, sir.
“Q. What other property does the Malvern and Ouachita River Railroad Company own besides the track down there?
“A. They own about-three different parcels of right of way along that railroad.
“Q. Well, what other personal property to they own?
“A. They own the locomotive.
££Q. They own the locomotive?
“A. Yes, sir.
‘ ‘ Q. Now that’s the locomotive that does the switching down there, is that correct?
“A. Yes, sir.
<£Q. That is in the Malvern Gravel Company plant down there?
££A. Yes, sir. . . .
££Q. 'Who is president of Malvern & Ouachita River Railroad Company?
££A. I am.
££Q. How long have yon been president of it?
££A. Roughly I would say about six or eight years.
£ £ Q. Do you have a board of directors for Malvern and Ouachita River Railroad Company?
££A. Yes, sir.
££Q. Would you name some of the individuals on that board?
££A. I am on the board and Frank Riley and Bill Riley was on the board. We haven’t replaced him. He is deceased.
££Q. Now, is this the same board that operates the Malvern Gravel Company?
“A. Yes, sir.”

The State and Federal income tax returns of Malvern & Ouachita River Railroad were introduced in evideuce. These showed the only income of the Malvern & Ouachita River Railroad to be $2,500.00 per year, which it was testified was the lease money paid to it by the Malvern Gravel Company.

The fact that the Malvern Gravel Company and the Malvern & Ouachita River Railroad are separate corporations affords the Malvern Gravel Company no immunity, because courts disregard the fiction of the corporate entity in order to do justice. This is discussed in detail in 13 Am. Jur. p. 160 et seq.: “A subsidiary or auxiliary corporation which is created by a parent corporation merely as an agency for the latter may sometimes be regarded as identical with the parent corporation, especially if the stockholders or officers of the two corporations are substantially the same or their systems of operation unified.” This principle of disregarding the claim of separate corporations has been applied to railroad companies. In Chicago, Milwaukee RR. Co. v. Minneapolis Civic Assn., 247 U.S. 490, 62 L.Ed. 1229, the United States Supreme Court held that a railroad company owning what are obviously merely terminal or spur delivery tracks in a city and which is a mere agency or instrumentality of two other railroad companies entering the city which owned its capital stock and controlled its operations, cannot be regarded as an independent public carrier merely because it is technically a separate legal entity. In Buie v. Chicago R. I. Ry. Co., 95 Tex. 51, 65 S.W. 27, 55 L.R.A. 86, the Supreme Court of Texas held that when one corporation makes use of another as its instrument through which to transact its business, the principal corporation is really represented by the agent of the sub-corporation and its liability is the same as if it had done business in its own name.

The Arkansas Supreme Court has pierced the fiction of the corporate entity when justice so demanded. Some of these eases are: Rounds and Porter v. Burns, 216 Ark. 288, 225 S.W. 2d 1; Plant v. Cameron, 228 Ark. 607, 309 S.W. 2d 312 and Black & White v. Love, 236 Ark. 529, 367 S.W. 2d 427. In Bounds and Porter v. Burns, supra, we pierced the fiction of separate corporate entities, and held the parent corporation liable for the debt of its subsidiary because the parent corporation manipulated the subsidiary ‘ ‘ to its own advantage at the expense of the appellee. Under the principles already stated this conduct entitles the appellee to a judgment directly against the parent corporation without regard to the separate entitle of the subsidiary. ’ ’ In Plant v. Cameron, supra, we held the parent corporation (Cameron) liable for the debt of the subsidiary corporation (Nashville), saying: “Though the corporations are separate legal entitles it would constitute a constructive fraud in this case to allow Nashville to now claim an entirely separate existence from Cameron.” In Black S White v. Love, supra, there were two taxicab companies, one being Black & White and the other being Checker Cab Company. Love sued Black & White which defended on the ground that only Checker Cab Company was liable. We affirmed a judgment against Black & White, saying: “Furthermore, the two corporations were owned by the same shareholders, operated by the same officers, and the cabs were interchanged. It would be putting fiction above right and justice to allow Black & White to hide behind the corporate entity of Checker in this case.”

The evidence is clear that Malvern Gravel Company and Malvern & Ouachita River Railroad were one and the same corporation, and that Malvern Gravel Company was a carrier engaged in interstate commerce.

II. The Malvern Gravel Company Operated A Bail-road In Interstate Commerce. As previously stated, the evidence showed beyond peradventure of a doubt that the Malvern Gravel Company’s railroad received and transported over its railroad tracks, with its engine, carload shipments from outside Arkansas, and also shipped its products over its railroad tracks onto the Missouri Pacific track; and these cars moved in interstate commerce. So, clearly, the Malvern Gravel Company was operating a railroad in interstate commerce. There is no necessity to further dwell on this point.

III. The Malvern Gravel Company Operated A Railroad As A Common Carrier. I now point out some of the instances in the record where evidence was introduced that the Malvern Gravel Company acted as a common carrier:

(a) Pursuant to a tariff filed with the Arkansas Commerce Commission, the Rock Island Railroad paid to the Malvern Gravel Company $5.00 a car for the services which Malvern Gravel Company rendered the Rock Island Railroad in picking- up empties at Abco (a switching point) and bringing the loaded cars back to that point. Thus, the Malvern Gravel Company received, and is receiving, $5.00 per car from the Rock Island Railroad for switching cars over the tracks of the Malvern Gravel Company.

(b) The Malvern Brick & Tile Company uses a part of the railroad track of the Malvern Gravel Company under a joint maintenance agreement.

(c) In 1957 two cars of limestone from Neosho, Missouri, consigned to the Arkansas Highway Department, were switched by the Malvern Gravel Company over its railroad tracks and unloaded from a location on the tracks of the Malvern Gravel Company.

(d) In 1962 several cars of steel beams from Tulsa, Oklahoma, consigned to Fairchild Construction Company, were likewise switched by the Malvern Gravel Company over its railroad tracks and unloaded from a location on the tracks of the Malvern Gravel Company.

(e) In 1963 two cars of cinders from Strawn, Arkansas, consigned to the Malvern Public School, were likewise switched by the Malvern Gravel Company over its railroad tracks and unloaded from a location on the tracks of the Malvern Gravel Company.

Altogether it was shown that over a dozen cars moved in interstate shipment over the tracks of the Malvern Gravel Company. There is no instance in the record where the Malvern Gravel Company ever refused to do any hauling offered to it by anyone. The fact that the Malvern Gravel Company did not post tariffs does not prevent it from being a common carrier. One isolated incident of hauling over its tracks as a common carrier might not he, sufficient but repeated incidents over a number of years, as here shown, certainly made a case for the jury; and the Malvern Gravel Company, a comr mon carrier under the laws of Arkansas, is shown to have repeatedly hauled and transported interstate shipments.

The Majority Opinion cites the following cases as instances in which a corporation was held to be outside the Federal Employers’ Liability Act. These cases are: Duffy v. Armco Steel Corp., 225 F. Sup. 737; Tilson v. Ford Motor Co., 130 F. Sup. 676; Kelly v. General Elec. Co., 110 F. Sup. 4; and Jones v. N.Y. Central, 182 F. 2d 326. In none of these eases was there a factual situation like that in the case at bar; so I forego discussing them. As aforesaid, there is no instance ever shown werein Malvern Gravel Company refused to haul interstate shipments over its tracks; and there are repeated instances, as above mentioned, wherein the Malvern Gravel Company actually did haul interstate shipments over its tracks. I submit that these instances are enough to submit the issue to the jury for decision as to whether the Malvern Gravel Company operated a railroad as a common carrier.

CONCLUSION

Tliis is a long dissent, but the Majority Opinion strikes at the very heart of our jury system. As an appellate Court we are not to decide what we think the evidence shows in a jury case: we are ■ to decide whether there was substantial evidence to take the factual issue to the jury for its decision. Because I believe so thoroughly in the jury system, I cannot in good conscience remain silent when I see a fact question decided by the appellate court instead of by the jury as the Constitution provides.

Therefore, I respectfully dissent.

Johnson, J., joins -in this dissent.

       In 1 A.L.R. 610 there is an annotation entitled: “Disregarding corporate existence”; and in Section III of that annotation there are given many instances wherein courts have considered the parent company and the subsidiary company to be one and the same. To the same effect see also annotations in 34 A.L.R. 599 and 63 A.L.R. 2d 1055.

       The Majority Opinion states: “Time and again the Federal Courts have defined a common carrier that comes within the meaning of the Act. We are bound by the decisions of the Federal Courts in that respect.” I maintain that the Arkansas Supreme Court is “bound” only by the decisions of the United States Supreme Court. The decisions of other Federal Courts are only persuasive.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Jessup v. Hancock.
    5-3412
    385 S. W. 2d 24
    Opinion delivered December 21, 1964.

      Tr a,nth am & Knauts, for appellant.
    Kirsch, Cathey & Broiun, Alfred J. Holland, for appellee.
   Jim Johnson, Associate Justice.

This is an action to oust a school director for usurpation of office. The facts are undisputed. Appellee Ed Hancock was a school director of the Knobel School District in Clay County on September 24,1963, when he was defeated for re-election by appellant Stephen Jessup. At the time appellant owned no real property in the school district, but purchased property on September 25th, the day following the election, and thereafter took the oath of office. On December 13th, 1963, appellee filed suit in Clay Circuit Court, "Western District, against appellant, the complaint being in the. nature of an information by way of quo warranto, alleging that appellant was ineligible to serve as school director, that appellee was entitled to continue to serve until his successor was chosen, that appellant had usurped the office, and prayed that appellant be removed and appellee restored to office. In its judgment of March 30, 1964, the trial court found that appellant’s acquisition of real property after the election was not sufficient to meet the requirements of Ark. Stat. Ann. § 80-504.1 (Repl. 1960) (“Director to be owner of real estate”), and ordered appellee, restored to office. From the judgment comes this appeal.

Appellee filed his complaint under the provisions of Ark. Stat. Ann. § 34-2203 (Repl. 1962) which states:

“Whenever a person usurps an office or franchise to which he is not entitled by law, an action by proceedings at law may be instituted against him, either by the State or the party entitled to the office or franchise, to prevent the usurper from exercising the office or franchise. ’ ’

Appellant contends that the trial court had no jurisdiction to hear this matter and should have dismissed the complaint, asserting that appellee’s suit was in fact an election contest. Our decision in Faulkner v. Woodard, 203 Ark. 254, 156 S.W. 2d 243, is clearly controlling. Quoting from Wood v. Miller, 154 Ark. 318, 242 S.W. 573, we said in the Faulkner case that: ‘ “ This is not, in fact, a contest of an election, for, as was said in Wheat v. Smith, 50 Ark. 266, 7 S.W. 161, there is nothing to contest concerning the result of the election. Appellee was elected, as condeded, but appellant is contesting his eligibility to hold the office, . . .” ’

Appellant’s second point urged for reversal is that he did not have to own real estate on the exact day of the election, that is, September 24,1963, but could comply with Ark. Stat. Ann § 80-504.1 if he owned real estate at the time he was commissioned by the County Clerk to enter upon his duties as such director.

Some of the statutes relative to school directors are: § 80-504 (“A school director shall be a bona fide resident and qualified elector of the school district in which he serves”), § 80-504.1 (“Hereafter, no person shall be eligible to be a member of any school board in the State unless such member is the owner of real property in the school district in which he serves”), and § 80-505 (“Each school director elected or appointed shall, within ten [10] days, after receiving notice of his election or appointment subscribe to the following oath: . . . The County Clerk upon receipt of oath prescribed for school director, shall immediately commission such persons and they shall enter at once upon their duties as school directors.”).

This is a case of first impression in this jurisdiction. Our research reveals an excellent annotation in A.L.R. which thoroughly discusses the question here presented: “Time as of which eligibility or ineligibility to office is to be determined,” 88 A.L.R. 812, supplemented by 143 A.L.R. 1026. The marrow of the annotation is that where a constitution or statute specifies the time when the conditions of eligibility must be present, as where it is required that qualifications for public office exist at the time of election, the courts uniformly hold that a person not qualified at the time of election cannot make himself eligible subsequent to the election. On the other hand, if the constitution or statute requires such conditions (of qualification) to exist at the time of the commencement of the term of office or the time of the induction of the candidate into office and assumption of the duties (as distinguished from the time of election), it is clear that existence of conditions of eligibility at the commencement of the term or induction of the candidate into office is sufficient to qualify him for the office, irrespective of their existence at the time of the election. Where time for existence of conditions of eligibility is not specified, one group of courts takes the view that the word ‘ ‘ eligible” relates to time of election, whereas another group of courts, constituting the majority, takes the view that ‘ ‘ eligible ’ ’ has reference to capacity not of being elected to office, but of holding office, and that therefore, if qualified at the time of commencement of the term and induction into office, disqualification of the candidate at the time of election is immaterial.

Our statute § 80-504.1, “Hereafter, no person shall be eligible to be a member of any school board in this State unless such member is the owner of real property in the school district in which he serves,” does not specify that this condition of eligibility must exist at the time of election. After review of a number of cases from other jurisdictions, it is our view that the better rule is that, where it is not otherwise specified in our statutes or constitution, eligibility means being qualified at the time of commencement of the term and induction into office. This is consistent with this court’s reasoning in Jones v. Duckett, 234 Ark. 990, 356 S.W. 2d 5, and Johnson v. Darnell, 220 Ark. 625, 249 S.W. 2d 5, which, while not in point here, do relate to eligibility and commencement of term of office.

Reversed and the cause dismissed.


author: Prank Holt, Associate Justice.

text:
    Triplett v. Davis.
    5-3430
    385 S. W. 2d 33
    Opinion delivered December 21, 1964.
    Coleman, Gantt, Ramsay S Cox and William C. Bridgforth, for appellant.

      Levine S Williams, for appellee.
   Prank Holt, Associate Justice.

This litigation results from the forfeiture of a land contract. The Chancellor’s decree required the appellant to convey the lands in question to the appellee, Martha McCoy. On appeal the question presented is whether the appellant waived his right to enforce the forfeiture provision in the contract.

In 1954 appellee, Martha McCoy, and her husband entered into a “Rental Contract and Option to Purchase” eighty acres from the appellant. Later appellee McCoy acquired her husband’s interest. The contract was for a period of fifteen years providing for an annual rental payment of approximately $400.00 which diminished to about $200.00 upon the last payment. These annual payments, evidenced by notes, began January 9, 1955 and were to end January 9, 1969 at which time, upon payment of $1.00, appellant agreed to convey the property. Time of payment was made the essence of the contract. The animal payments were promptly made for six years. The annual payment due on January 9, 1963 was not made and the appellant declared a forfeiture on February 11, 1963 by letter to the appellee, Martha McCoy. Her son and agent, appellee Floyd Davis who was farming the land, was given a similar notice. The appellees then offered to pay appellant the full balance due on the contract. The appellant refused, insisting on the forfeiture provision in the contract. The appellees contend that the appellant waived the forfeiture provision by his acts and conduct.

Forfeiture provisions are valid and enforceable in contracts for the sale of land. White v. Page, 216 Ark. 632, 226 S.W. 2d 973. However, forfeiture provisions may be waived by the acts and conduct of the parties. Friar v. Baldridge, 91 Ark. 133, 120 S.W. 989; Berry v. Crawford, 237 Ark. 380, 373 S.W. 2d 129.

In the case at bar the first delinquency occurred when the annual payment of $333.68 became due January 9, 1961. A payment of $139.68 was made on February 9, 1961, leaving a balance of $194.00. On December 18,1961 the appellant wrote the appellees concerning this delinquent balance and, also, the 1962 annual payment of $318.16 coming due the following month. The pertinent part of the letter reads:

‘ ‘ This is formal notice to you that unless we receive payment in full of $586.06 on or before January 9, 1962, we will cancel your contract and you will forfeit all interest in the land.
Bring us a check for $1,946.06 and we will issue you a deed to the property. If you do not do that, or at least pay the $588.06 due as of January 9th, 1962, we cannot go along with you further and will have to cancel the contract. ’ ’

On the due date of January 9,1962 no payment was made nor was a forfeiture declared. Three days later the balanee of $194.00 due on the 1961 payment was paid to appellant. At the same time $130.10 was paid on the 1962 payment. The delinquent balance of $188.06 plus taxes and insurance was paid on March 7, 1962. The January 1963 payment of $302.64 plus taxes, insurance and interest was not paid when due and on the following February 11th appellant gave written notice of forfeiture. Appellant then refused payment of the full balance due on the contract contending he had orally warned appellees that no further extensions would be granted. Appellees denied this assertion.

It is a well-known equitable principle that equity abhors a forfeiture and will seize upon slight circumstances that indicate a waiver in order to prevent forfeiture. Cordell v. Enis, 162 Ark. 41, 257 S.W. 375; Vernon v. McEntire, 232 Ark. 741, 339 S.W. 2d 855; Berry v. Crawford, 237 Ark. 380, 373 S.W. 2d 129; 18 Ark. Law Rev. 175. The right of forfeiture can be a harsh remedy producing great hardships and, therefore, before a forfeiture is enforceable equity requires strict compliance with the important terms of the contract even where there is an express provision for forfeiture. Williams v. Shaver, 100 Ark. 565, 140 S.W. 740.

In the case at bar the purchase price was approximately $4,300.00 payable over a period of fifteen years in annual payments. Six of these payments were promptly met, plus the taxes and insurance, leaving a balance due of less than one-half of the purchase price when- the forfeiture was declared. The appellant had indulged the appellee, Martha McCoy, in her requested extensions on the notes due in .January 1961 and 1962 and failed to enforce a written notice given in December 1961 that a forfeiture would be declared for failure to pay the 1962 note promptly on the due date together with the delinquent balance. Instead, part payment was made three days after the due date and on March 7, 1962 the full delinquent balance was accepted making all payments current. Sometime before the January 1963 annual payment became due the appellant mailed to appellee McCoy a routine notice of the amount due and payable. We agree with the Chancellor that these circumstances had the effect of lulling the appellee into an assurance of another extension before declaring a forfeiture. It cannot be said that the Chancellor’s finding that the appellant had waived his express right of forfeiture is against the preponderance of the evidence.

The decree is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Hurley v. Owens
    5-3410
    385 S. W. 2d 636
    Opinion delivered January 11, 1965

      Ben D. Lindsey, for appellant.

      Shackleford & Shackleford, for appellee.
   Carleton Harris, Chief Justice.

This appeal relates to the validity of three deeds to lands located in Union County, appellant apparently contending that there was not, under the law, proper delivery of the deeds, and further contending that the court erred in admitting certain testimony.

We do not reach the merits of the case, for under Rule 9 (d) of this court, it is necessary that the judgement he affirmed. We have stated numerous times that we are not required to explore a transcript that is lodged with us, and that the duty rests on the appellant to supply this court with such an abridgment of the record as will enable us to understand the matters presented. Vire v. Vire, 236 Ark. 740, 368 S. W. 2d 265; Weir v. Hill, 237 Ark. 922, 377 S. W. 2d 178.

The pleadings, exhibits, and decree are abstracted, but there is no abstract of the testimony, although several witnesses testified. The testimony is essential to a decision on the merits, and to determine the facts, we would be required to explore the record, which, as stated, is contrary to our practice.

Affirmed.


author: Cakleton Harris, Chief Justice. Paul Ward, Associate Justice

text:
    Raney v. Raulston, County Judge
    5-3428
    385 S. W. 2d 651
    Opinion delivered January 11, 1965
    J. Nelson Truitt, N. J. Henley, for appellant.

      Smith, Williams, Friday & Bowen, By: Ilerschel II. Friday and John C. Echols, for appellee.
   Cakleton Harris, Chief Justice.

This question on this appeal is whether a certain building proposed to be erected in Jasper, county seat of Newton County, can be financed and equipped under the authority of Amendment No. 17 of the state constitution, as amended by Amendment No. 25. Amendment No. 17 authorizes the qualified electers of each respective county in the state to vote on the question of the construction or extension of any county courthouse or county jail, and authorizes the levy of a tax (limited by the amendment) to defray the costs. Amendment No. 25 extends this authority to include the construction of county hospitals. At a special election held on December 10, 1963, a majority of the voters of Newton County voted in favor of constructing and equipping a building designated as a county hospital for Newton County in order to provide needed hospitalization, medical, and nursing services for the citizens of the county. Procedural steps taken before and after the election are not questioned, and the only contention for reversal is that the county lacks the basic authority, under Amendment No. 17 (as amended), to construct and equip the sort of building that has been approved by the electors. The proposed building will contain thirty beds, ten of which, with the related bedside equipment and central facilities will meet the requirements for licensing as a ten-bed hospital under Act 414 of 1961 (hereinafter discussed), and the remaining twenty beds, with related bedside equipment and central facilities, while not meeting the minimum requirements of that act for licensing as a hospital, will qualify for licensing as a twenly-bed nursing home.

Appellants assert that a combination hospital and nursing home is not a hospital within the meaning of Amendment No. 17 (as amended), and that the county accordingly has no authority to construct this type of building. Suit was instituted against the county judge, praying that he be enjoined and restrained from calling the levying court of the county into session for the purpose of levying the aforesaid tax, and that he be further enjoined from issuing any bonds under the purported authority of Amendment No. 17 (as amended). After the filing of an answer, testimony was taken, and, at the conclusion thereof, the complaint was dismissed and appellee’s prayer for a declaratory judgment to the effect that the building could be constructed and equipped, under the authority of Amendment No. 17 (as amended), was granted. From the decree entered, appellants bring this appeal.

In seeking a reversal, appellants principally rely on the provisions of Act 414, Ark. Stat. Ann. § 82-328 (Supp. 1963), which defines “hospital” and “nursing-home. ’’ Under that act, the definitions are as follows:

“(d) ‘Hospital’ means a public health center, a general, tuberculosis, mental or chronic disease hospital, or a related facility such as a laboratory, out-patient department, nurses home or training facility, or a central service facility operated in connection with a hospital. An establishment furnishing primarily domiciliary care is not within this definition. * * *
“ (f) ‘Nursing Home’ means and shall be construed to include any building, structure, agency, institution, or other place, for the reception, accommodation, board, care or treatment of two [2] or more unrelated individuals who, because of age, illness, blindness, disease, or physical or mental infirmity, are unable sufficiently or properly to care for themselves, and for which reception, accommodation, board, care or treatment, a charge is made, provided, the term ‘Nursing Home’ shall not include the offices of private physicians and surgeons, boarding homes, hospitals, or institutions operated by the Federal government.”

Admittedly, under these definitions, the part of the proposed building to be devoted to a “nursing home,” would not qualify as a general hospital.

Appellee argues that in passing Act 414, it would not appear that the Legislature had any reference to, or thought of, Amendment No. 17 in defining the terms, heretofore referred to. Rather, it is pointed out that the definitions included are controlling only “as used in this act.” It is mentioned, as previously stated, that one of the purposes of the legislation was to acquire the use of Hill-Burton funds. Ark. Stat. Ann. §§ 82-335 and 82-336 (Supp. 1963) both refer to the fact that any construction program shall be carried out “in accordance with regulations prescribed by the Federal act. ’ ’ In other words, the cited definitions are those which meet the standards of Federal requirements for Federal aid, which might be given for the construction of hospitals or nursing homes. There is no reference, at any place in the act, to Amendment No. 17, or to the method of acquiring funds as set forth in that amendment.

It is also argued that a definition adopted in 1961 could not possibly have any effect upon an amendment adopted in 1938; that, to determine th,e intent of the people in passing Amendments No. 17 and No. 25, it would be necessary to use the widely recognized definition of “hospital” in use at that time. Appellee cites a definition of “hospital” from Webster’s New International Dictionary, 2nd Edition (Published in 1935), which he also asserts to be inclusive of the same elements and substance used in the definition of nursing homes found in Act 414. It is further asserted that the Legislature is not empowered to add to, or take from, the language of a constitutional amendment adopted by the people, unless that authority is granted in the amendment (Kitchens v. Paragould, 191 Ark. 940, 88 S. W. 2d 843), and that Amendment No. 17, as' amended, is complete within itself, self-executing, and requires no statutory implementation. It is not incumbent that we comment upon these arguments, for it is not necessary in deciding this litigation, to determine whether the construction of a building, housing only a “nursing home” (as defined in Act 414), could properly or validly be built under the provisions of, and the authority of Amendment No. 17, and we do not pass on that issue.

At the outset, let it be stated that in construing provisions of the constitution, we endeavor to effectuate as nearly as possible the intent of the people (as it may be ascertained from the language of the provision) in passing the measure, and, if necessary, as a means of attaining that end, a liberal interpretation will be warranted. Walton v. Arkansas Construction Commission, 190 Ark. 775, 80 S. W. 2d 927. Under the admitted facts, a part of the building, even under Act 414, will qualify as a “hospital,” and will include such facilities as surgery, x-ray and delivery rooms, and other facilities ordinarily found in a general hospital. The equipment in the balance of the hospital will be such as to provide for those persons who

are not in need of emergency treatment, but who, because of physical or mental infirmities, are in need of care. Actually, it will be noted that both the definitions of “hospital” and “nursing home” vexy clearly denote buildings used for the service of persons who are afflicted with some type of illness or infirmity. In other words, the “nursing home” facility is not simply a “boarding home,” and may not be used as such; board is only incidental to the other services rendered. It appears from the testimony that the only reason that the entire thirty-bed unit will not be able to qualify as a “hospital” (as defined by Act 414) is that there will not be sufficient funds to provide the equipment necessary for a general

hospital. It is evident that many hospital services will be provided under the “nursing home” unit, and if additional monies are ever provided, it can be easily converted to general hospital status. In Kervin v. Hillman, County Judge, 226 Ark. 708, 292 S. W. 2d 559, the facts reflected that a main hospital was to be located in Fordyce, the county seat, “with emergency units thereof in Sparkman and Carthage.” After the project was approved by the voters, and the tax levied, Kervin, a property owner and taxpayer in Dallas County, filed a suit to restrain the County Judge from proceeding further in the sale of the bonds, and to restrain the collector from proceeding with the collection of the tax. It was asserted by appellant that the “emergency units are not complete hospitals but are small units each providing-two beds designed for and intended to meet immediate and emergency temporary needs only for first-aid treatment for their respective geographical areas, these geographical areas being some distance from the hospital at Fordyce, and that said patients receiving first-aid. treatment in these small units will either be discharged or prepared by such treatment for admission to the hospital at Fordyce. * * * that Amendment No. 17, as amended, contemplates the construction of a single hospital unit to be located at the county seat and does not contemplate or authorize the construction of such emergency units.” TVe held against this contention, stating.: “It is obvious that the real purpose of Amendment No. 17 (as amended) was to make it possible for a county to provide hospital facilities for its citizens.”

In Garner v. Lowery, 221 Ark. 571, 254 S. W. 2d 680, we held that Garland County had the power to purchase an existing hospital, even though Amendment No. 17 only provides for the construction of a hospital.

In Hollis v. Erwin, County Judge, 237 Ark. 605, 374 S. W. 2d 828, we approved, under authority of Amendment No. 17 (as amended), the construction of two separate hospital units (included on one ballot), one being located in McGehee, and the other in Dumas.

It is obvious from these citations that this court has liberally construed the amendment, and we think in so doing, the intent of the people in passing Amendments No. 17 and No. 25 has been effectively carried out. Certainly, the construction of the building, here in question, will provide the people of Newton County with a well-equipped general hospital unit, and with a unit containing additional beds and equipment which will be used to provide the citizens of that county additional medical services for those who, because of illness, disease, or physical or mental infirmity, are unable to properly care for themselves.

Appellants have not specifically argued that there is no authority to equip the building in question (if there is authority for its construction), but in setting out the point relied upon for reversal, there is an allegation that this cannot be done under the authority of Amendment No. 17, as amended. This same contention was raised in Hollis v. Erwin, County Judge, supra, and we held contrary to the contention, stating: “Certainly the equipping of the hospital is an essential part of its construction. ’ ’

Affirmed.

Ward, J., dissents.

Paul Ward, Associate Justice

(dissenting). It must be conceded that a county has no power to levy a tax (even by a vote of the people) to construct a public building for county purposes or county activities without specific sanction by the state constitution. For example: It was necessary to amend the state constitution to give a county power, in specific and definite terms (a) to build a “County Court House” (Amendment No. 17); (b) to build a “County Jail” (Amendment No. 17); (c) to build a “County Hospital” (Amendment No. 25); (d) to maintain a “Public City Library” (Amendment No. 30); (e) to maintain, operate, and support a “County Hospital” (Amendment No. 32); (f) to build a “County Library” (Amendment No. 38); and, (g) to induce Industrial Development in a county (Amendment No. 49).

There has been no constitutional amendment giving the county the right to levy a tax on the people to build a “County Nursing Home.” Nevertheless the majority opinion, by a process of reasoning and deduction which I am unable to follow, holds Newton County can levy a tax to construct a nursing home.

The majority say they are not deciding whether Newton County can (under Amendment No. 17) build only a nursing home. Obviously the reason they so state is that to do so would be like saying black is white.

In view of the above it must be assumed that the majority take the view that a nursing home is a necessary or essential part of a hospital. They can justify this view only by what we held and said in Hollis v. Erwin, County Judge, 237 Ark. 605, 374 S. W. 2d 828. There we said under Amendment No. 17 a county could levy a tax to “equip” a hospital. But it must be noted that we also said: ‘ ‘ Certainly the equipping of the hospital is an essential part of its construction.” (Emphasis added.)

Can it reasonably be said that a nursing home is an essential part of a hospital? As strongly as I feel the need of nursing homes and as much as I would like to help Newton County acquire one at the expense,, largely, of the Federal Grovernment, I cannot conscientiously hold it is an essential part of a hospital.

A hospital is one distinct entity and a nursing home is another distinct entity, as has been clearly indicated by the legislature. By Act 414 of 1961 the legislature defined a hospital and separately defined a nursing home; they provided one license for a hospital and another license for a nursing home; and, they provided for an advisory council for a hospital and a different advisory council for a nursing home. By what occult process of deduction can the majority say a musing home is an essential part of a hospital when all facts, experience, and observation are to the contrary? One dictionary definition of “essential” is “Important in the highest degree”. Another definition is “Indispensable”. It is common knowledge that for many years thousands of hospitals have operated (and are now operating) without the aid of a nursing home.

In an attempt to evade the obvious facts above set forth and to justify the result reached the majority resort to the liberal construction rule as set out in some opinions ■of this Court. I submit that even a casual examination of the cases relied on reveals no justification for the conclusion reached by the majority.

In Walton v. Arkansas Construction Commission, 190 Ark. 775, 80 S. W. 2d 927, we held that state bonds issued to complete construction of the State Hospital for Nervous Diseases at Benton were not prohibited by Amendment No. 20 of the state constitution. Said amendment did not, however, prohibit state bonds issued for an “existing outstanding indebtedness of the State. . . .” The proof showed (and the Court held) that the state bonds in question had been issued and sold before Amendment No. 20 was adopted. Any other decision would have been unreasonable.

In Garner v. Lowery, County Judge, 221 Ark. 571, 254 S. W. 2d 680, we held that under Amendment No. 17 (as amended) the county could purchase a hospital which was already built. The essence of our decision was that the purpose of the amendment was to enable the county to acquire a hospital — whether by construction or purchase. To make that decision support the view of the majority they would have to take the wholly untenable position that the purpose of Amendment No. 17 was to provide a nursing home.

In Kervin v. Hillman, County Judge, 226 Ark. 708, 292 S. W. 2d 559, we held that Amendment No. 17 (as amended) authorized the county to build a hospital at the county seat and two emergency stations at other locations. There was no contention (and could be none) that an emergency station was not an essential part of a hospital. The real contention was that the amendment ‘ ‘ contemplates the construction of a single hospital unit to be located at the county seat”. In answer to that contention we pointed out that Section 4 of the amendment provided that “more than one building or improvement may be embodied in such proceeding”.

As previously stated, I would like very much to help the people of Newton County secure financial aid from the Federal Government for a nursing home (and they can do so by providing matching funds from a source other than a property tax) but I am not willing to help them exchange their constitutional birthright for a mess of pottage.

       The specific intent of the act is stated as vesting “sole authority to license hospitals and nursing homes in the State Department of Public Health.” It would appear also that one of the purposes of the act was to insure full utilization of Hill-Burton funds.

       In the present instance, the estimated cost of construction of the building is $250,000.00, of which the county is to furnish $115,-000.00, and the balance is to be furnished by the proper agency of the Federal government.


author: Ed. E. McFaddin, Associate Justice.

text:
    Ark. State Highway Comm. v. Scott
    5-3401
    385 S. W. 2d 636
    Opinion delivered January 11, 1965

      Mark E. Woolsey and Don Langston, for appellant.

      James L. Langston, Hardin, Barton, Hardin é Jesson, for appellee.
   Ed. E. McFaddin, Associate Justice.

The appellant, Arkansas State Highway Commission (hereinafter sometimes called “Commission”), filed this suit in the Sebastian Chancery Court, Fort Smith District, seeking a declaratory judgment as to the width of the highways (U. S. Highway No. 71 and U. S. Highway No. 271) adjacent to the property of the appellee, Thomas Nelson Scott. At the close of the plaintiff’s (appellant’s) case the Trial Court sustained the defendant’s (appellee’s) written demurrer to the evidence (Ark. Stat. Ann. § 27-1729 [Repl. 1962]), dismissed the complaint, and confirmed the title of the appellee. From such decree there is this appeal, in which appellant lists two points:

“I. The Chancellor erred in finding that the Arkansas State Highway Commission did not have title to the lands in dispute.
“II. The Chancellor erred in finding that Appellees had title to 23 feet of the right-of-way of U. S. Highway 71 and 19 feet of the right-of-way of U. S. Highway 271.”

We find it unnecessary to discuss the appellant’s points because of the view we take of the case. Before detailing any of the evidence we call attention to our holding in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, which holding has been followed and cited in a score of cases, some of which are: Weaver v. Weaver, 231 Ark. 341, 329 S. W. 2d 422; Neely v. Jones, 232 Ark. 411, 337 S. W. 2d 872; and Jones v. Brooks, 233 Ark. 148, 343 S. W. 2d 99. The rule of Werbe v. Holt is that in passing on the defendant’s demurrer to the evidence it is the duty of the Trial Court to give the evidence for the plaintiff its strongest probative force, and the demurrer to the evidence should be sustained only when the plaintiff’s evidence, as so considered, fails to make a prima facie case. Because of such rule we must reverse and remand the decree here challenged; and one reason therefor now is given.

In going south from Fort Smith a traveler would go over both of the two highways, U. S. No. 71 and U. S. No. 271, until reaching a point immediately north of the property of appellee Scott. At that point U. S. Highway 271 continues due south along the west side of the Scott property; and.U. S. Highway No. 71 makes a long sweeping curve to the left and goes along the northeast side of the Scott property. Mr. Scott has a store and gasoline pumps on his property abutting on both highways; and it was and is the claim of the appellant that Mr. Scott is encroaching on the right of way of each highway. This suit was filed to have that issue determined. We bypass any consideration of U. S. Highway 271 and confine our opinion to the testimony as regards U. S. Highway No. 71.

As regards U. S. Highway No. 71, the Commission claims a right of way 70 feet wide along the Scott property and claims that Scott is encroaching on the right of way a considerable distance both by his building and by the approaches-to his gasoline pumps. To make its case for a 70 foot right of way for U. S. Highway 71, the Commission introduced an order of the Sebastian County Court, Fort Smith District, dated September 3, 1927, laying out and condemning a right of way 70 feet wide. This was an order made under Act No. 611 of 1923, as now found in Ark. Stat. Ann. § 76-917 (Repl. 1957), which statute has been many times before this Court. Some of the cases are: Miller County v. Beasley, 203 Ark. 370, 156 S. W. 2d 791; Ark. Highway Comm. v. Holden, 217 Ark. 466, 231 S. W. 2d 113; Ark. Highway Comm. v. Dobbs, 232 Ark. 541, 340 S. W. 2d 283; Ark. Highway Comm. v. Cook, 233 Ark. 534, 345 S. W. 2d 632; Ark. Highway Comm. v. Anderson, 234 Ark. 774, 354 S. W. 2d 554; Ark. Highway Comm. v. Dean, 236 Ark. 484, 367 S. W. 2d 107.

The County Court order of September 3, 1927 was made without notice to the landowner, but gave him one year in which, to file his claim for the taking. Our cases, as above listed, hold that the said year begins to run from actual entry on the land made under the said order. To show notice to the 1927 landowner in the case at bar, the Commission offered considerable evidence. For example, the witness, Roy Williamson, testified that he worked for the Highway Commission from 1929 to 1932; that he was familiar with the route and location of U. S. Highway No. 71 in 1927; that a new location was made under the court order here involved; and that the road now going by the Scott property was an entirely new location made under the 1927 order. Here are excerpts from his testimony:

“Q. Was this a new location through this property where Mr. Scott’s store is located?
"A. Yes, sir, that is right.
‘ ‘ Q. In 1927 when that highway was located through that property, is that correct ?
“A. Yes.
‘ ‘ Q. If I understand your testimony, U. S. Highway 71 before 1927 went, turned off where at, where Phoenix Village is now, is that correct?
“A. That is right.
“Q. And now after 1927 it goes by Nelson Scott’s store?
“A. Right. As well as I remember, that was just a pasture, grazing land, farm land.
“Q. Did they have to go in and clear it, grub that place
“A. I couldn’t say whether there was any timber in there or not.
“Q. There was no road, is that correct ?
“A. No road.”

Thus there was evidence that under the said 1927 order the Highway Commission made an original entry on the present Scott property and constructed the present U. S. Highway No. 71 at a place where there had previously been only a pasture. The burden was on the Highway Commission to show that the landowner had actual notice of the taking of his land (Ark. Highway Comm v. Anderson, 234 Ark. 774, 354 S. W. 2d 554), but actual entry on the land at a place where there had previously been no highway, has always been held to be such actual notice. (Ark. Highway Comm. v. Holden, 217 Ark. 466, 231 S. W. 2d 113; Ark. Highway Comm. v. Cook, 233 Ark. 534, 345 S. W. 2d 632.)

There is no occasion for us to detail the other evidence in the case because what we have already mentioned made a prima facie case as regards notice of the location and width of the right of way of U. S. Highway No. 71. The defendant’s demurrer to the evidence should have been overruled because, as regards U. S. Highway 71, the plaintiff made a prima facie case. Since the plaintiff made a case for the fact finder on one angle of the situation, the entire demurrer should have been overruled. We therefore find it unnecessary to discuss the evidence as to U. S. Highway 271, since we reverse and remand the entire case for further proceedings not inconsistent with this Opinion.

One other point should be mentioned. The appellee says:

“The county court orders relied upon by the appellant are void and unconstitutional under both the United States Constitution, Amendment XIV, and the Arkansas State Constitution, in that no provision for notice is made and no proper notice of the taking was given and are therefore unconstitutional in their application. ’ ’

To support his position, as above quoted, the appellee relies strongly on two decisions of the Supreme Court of the United States, being Walker v. Hutchinson, 352 U. S. 112. 1 L. Ed. 2d 178, 77 S. Ct. 200: and Schroeder v. City of N. Y., 371 U. S. 208, 9 L. Ed. 2d 255, 83 S. Ct. 279, 89 A. L. R. 2d 1398. Also, the appellee cites us to an annotation in 89 A. L. R. 2d 1404 entitled, “Eminent Domain: permissible modes of service of notice of proceedings.” In effect, the appellee wants us to overrule Sloan v. Lawrence County, 134 Ark. 121, 203 S. W. 260, and our other cases which have upheld the validity of the statute that is now Ark. Stat. Ann. § 76-917 (Repl. 1957).

We find no merit in appellee’s contention. He has confused “notice of the proceedings” with “reasonable opportunity to seek compensation.” The annotation in 89 A. L. R. 2d 1404 relied on by the appellee recognizes this distinction in these words:

“Where the taking of property is for a public use, the due process clause of the Fourteenth Amendment does not require that the necessity and expediency of the taking be determined upon notice and hearing. However, with respect to the compensation for the taking, due process requires that the owner be given reasonable notice of, and an opportunity to be heard in, the pending proceedings.”

We adhere to our holding in Sloan v. Lawrence County, supra, wherein we quoted with approval the following:

“The State needs the property and takes it, and while the citizen can not resist, he has the right to insist upon just compensation to be ascertained by an impartial tribunal. It is a compulsory purchase by public authority, and the individual receives money in the place of the property taken. He has a right to his day in court on the question of compensation, but he has no right to a day in court on the question of appropriation by the State unless some statute requires it.”

For the error in sustaining the demurrer to the evidence the decree is reversed and the cause remanded.

       Mrs. Scott, wife of Thomas Nelson Scott, was joined as a defendant, but for clarity we refer to Mr. Scott as defendant and appellee.

       U. S. Highway No. 271 was formerly known as Arkansas State Highway No. 45.

       In 1927 the landowner appears to be Mr. Goodwin. He conveyed to Mr. Bumpers in 1930, who conveyed to T. C. Scott and wife in 1933; and they conveyed to appellee, Thomas Nelson Scott in 1941.

       As to what other ways there may he to start the year for filing claims, we need not now consider. We, therefore, bypass such matters as service of notice or some form of estoppel.

       Neither side has mentioned Act No. 185 of 1963. We list it only for information, hut without comment.


author: George Rose Smith, J.

text:
    Carr v. Turner
    5-3416
    385 S. W. 2d 656
    Opinion delivered January 11, 1965

      Richard W. Ilobbs, for appellant.

      R. Julian Glover, for appellee.
   George Rose Smith, J.

The question in this case is whether one who is injured in a collision with a car being driven by a drunken driver has a cause of action against the tavern keeper whose unlawful sale of liquor to the offending driver brought about her intoxication. The trial court held that the tavern keeper is not liable. A demurrer to the appellant’s complaint, as far as it concerned the tavern keeper, was sustained and the action dismissed.

The complaint alleges: On September 22, 1961, the appellee Southern Entertainment, Inc., operated the Southern Club in Hot Springs. Alcoholic drinks were served at the' bar, in violation of the statute that requires liquor to be sold only in the unbroken package for consumption off the premises. Ark. Stat. Ann. § 48-309 (Repl. 1964). The Club served drinks to its co-defendant, Ruby Turner, until she became visibly intoxicated. The Club then knowingly and wrongfully permitted her to leave the premises, get in her car, and drive away. As a result of her drunkenness Miss Turner ran into a parked taxicab and injured the plaintiff.

At common law the seller was not liable in this situation, the courts usually saying that the proximate cause of the injuries was the consumption of the liquor, not its sale. Cherbonnier v. Rafalovich, D. C. Alaska, 88 F. Supp. 900; Henry Grady Hotel Co. v. Sturgis, 70 Ga. App. 379, 28 S. E. 2d 329; Cowman v. Hansen, 250 Iowa 358, 92 N. W. 2d 682; Stringer v. Calmes, 167 Kan. 278, 205 P. 2d 921; Waller v. Collinsworth, 144 Ky. 3, 137 S. W. 766, 44 L. R. A. (n.s.) 299, Ann. Cas. 1913A 510; State v. Hatfield, 197 Md. 249, 78 A. 2d 754; Barboza v. Decas, 311 Mass. 10, 40 N. E. 2d 10; Beck v. Groe, 245 Minn. 28, 70 N. W. 2d 886, 52 A. L. R. 2d 875; Tarwater v. Atlantic Co., 176 Tenn. 510, 144 S. W. 2d 746; Seibel v. Leach, 233 Wis. 66, 288 N. W. 774.

In many states the common law rule has been changed by Dramshop Acts, which expressly impose civil liability upon the seller. We have no statute of this kind in Arkansas. Before prohibition we did have a statute, later repealed, that required a saloon keeper to post a $2,000 bond to pay “all damages that may be occasioned by reason of liquor sold at his house of business.” Kirby’s Digest § 5121. We construed this statute rather narrowly, holding in two cases that the sale was not the proximate cause of the plaintiff’s damages and in a third that the saloon keeper was not negligent in failing to foresee the plaintiff’s injury. Gage v. Harney, 66 Ark. 68, 48 S. W. 898, 43 L. R. A. 143, 74 Am. St. Rep. 70; Peter Anderson & Co. v. Diaz, 77 Ark. 606, 92 S. W. 861, 4 L. R. A. (n.s.) 649, 113 Am. St. Rep. 180; Bolen v. Still, 123 Ark. 308, 185 S. W. 811.

In the absence of a Dramshop Act we have two statutes that might be regarded as having ■ changed the common law rule. We have mentioned the first, which directs that liquor be sold in the package for consumption off the premises. We think it clear that this provision in the law was meant simply to prevent the return of the saloon, with its notorious evils. Beer, unlike liquor, may be lawfully sold for consumption in restaurants and other public places. We are not convinced that the legislature meant to impose tort liability upon a bar keeper who permits a patron to become drunk upon whisky and yet exonerate the same bar keeper from liability for permitting another patron to become drunk on beer.

The second pertinent statute makes it a misdemeanor for any person to sell or give away liquor to a minor, a habitual drunkard, or an intoxicated person. Ark. Stat. Ann. § 48-901. The present complaint may be construed to charge, a violation of this section, in that the Southern Club sold drinks to Miss Turner after she had reached the point of intoxication.

Statutes generally similar to this one exist in most, if not all, of the states. They are not ordinarily considered to change the common law rule of nonliability. In a few cases, however, such legislation has been given that effect. It has been said that there has been an increasing tendency in recent times to depart from the traditional view. Case note, 9 Ark. L. Rev. 179. The appellant urges this minority rule to support his contention that the Southern Club should be held responsible in this case.

The cases finding liability are so few that they may be reviewed quickly. In Arizona and South Dakota it is held that a tavern keeper who ignores a woman’s warnings not to sell liquor to her husband is liable to her for loss of consortium. Pratt v. Daly, 55 Ariz. 535, 104 P. 2d 147, 130 A. L. R. 341 (but see Collier v. Stamatis, 63 Ariz. 285, 162 P. 2d 125); Swanson v. Ball, 67 S. D. 161, 290 N. W. 482. California adopted this position, on rehearing, in Cole v. Rush, 271 P. 2d 47, but on a second reconsideration the court again changed its mind and returned to the common law rule, leaving the matter to the legislature. Cole v. Rush, 45 Cal. 2d 345, 289 P. 2d 450, 54 A. L. R. 2d 1137.

In New Jersey liability on the theory of negligence was imposed upon a tavern keeper who unlawfully sold liquor to an intoxicated minor. The court pointed out, however, that its holding was limited to persons engaged in the liquor business — long recognized to be a privilege. Rappaport v. Nichols, 31 N. J. 188, 156 A. 2d 1, 75 A. L. R. 2d 821. A federal court reached the same conclusion under an Illinois statute prohibiting sales to an intoxicated person. Waynick v. Chicago’s Last Dept. Store, 7th Cir., 269 F. 2d 322. The owner of a bar may also be liable to the consumer himself for his injuries — a holding not so broad as one that would extend the liability to third persons. Schelin v. Goldberg, 188 Pa. Super. 341, 146 A. 2d 648.

There is a significant distinction between these cases and the one now before us. In all the decisions cited the liability to the injured person fell solely upon one engaged in the sale of alcoholic beverages. Our statute is not so narrow. It applies to any person who sells or gives away intoxicating liquor to a minor or to an inebriate. By its terms it is equally applicable to a liquor dealer and to a host who serves cocktails in his own home. Perhaps the legislature did not mean for the law to be so sweeping in its scope, but we must give effect to- the statute as we find it.

Even if the prohibition against the sale of liquor to an intoxicated person had the comprehensive implications that the appellant attributes to it, we do not see how the impact of the statute could be confined to those who sell liquor, legally or illegally. The same reasoning would be applicable in the case of a person entertaining his friends in his home. He would be compelled to maintain supervision over all his guests and to refuse to serve drinks to those nearing the point of intoxication. Such a principle of liability would be more far-reaching than any decision that we have discovered. We think it clear that the lawmakers, in enacting the statutes now on the books, have not undertaken to extend the offender’s responsibility to the extreme degree now urged by the appellant. It may be that a Dramshop Act is to be desired, but such a measure should be the result of legislative action rather than of judicial interpretation.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Civil Service Comm. of City of Little Rock v. Griffith
    5-3414
    385 S. W. 2d 643
    Opinion delivered January 11, 1965

      Joseph G. Kemp, Jack Young, for appellant.

      Jack Holt, Jr., Jack Ilolt, Sr., for appellee.
   Paul Ward, Associate Justice.

Appellee, B. A. Griffith, a lieutenant on the Little Rock police force, was accused of mistreating Theo Shaw on September 15, 1963 while Shaw was in his custody on a suspicion charge. On September 24,1963 the acting chief of police wrote to appellee stating his services were terminated for violation of that portion of the department rules and regulations which reads: “No officer shall wilfully mistreat or use unnecessary violence toward any person”.. On appeal to the Civil Service Commission testimony was introduced and the commission, on October 10, 1963, sustained appellee’s dismissal.

Appellee then perfected an appeal to the circuit court where the case was tried on the transcript of the proceedings before the Civil Service Commission and upon testimony taken ore tenus. The trial court found:

‘ ‘ The record of proceedings and evidence introduced at the hearing before the Civil Service Commission, together with other evidence ore tenus before the Court, from all of which the Court, giving the evidence its greatest and proper weight, finds that the charges have not been sustained by the preponderance of the evidence.
“It is therefore ordered that the order of the Civil Service Commission of Little Rock, upholding- the discharge of Lieutenant Griffith from the Police Department, be set aside and that Griffith be restored to his former duty and rank as of the date of discharge.”

A careful review of the pertinent testimony leads us to conclude that the order of the circuit court must lie affirmed. The testimony is conflicting, and there is no convincing evidence that appellee mistreated Shaw. On the early morning (about 4 o’clock) of September 15, 1963 appellee sent two police officers to Shaw’s home to pick him up; they brought him to the jail for questioning. Shaw says that while he, appellee, and one or two other officers were present in the recreation room, he was struck by appellee with what looked like a piece of rubber — that he was also struck by two other police officers. This is denied emphatically by appellee and the other officers present. O. H. Jones, editor of the Southern Mediator Journal for 26 years, testified in substance: On the night after Shaw was allegedly mistreated I interviewed Shaw about the incident; my write up appeared in the Journal four days later (exhibiting the article). At no time during the interview was appellee’s name mentioned as having been implicated in the alleged beating of Shaw. Shaw did make reference to two other policemen all the way through the interview. Ten people, including attorneys, police officers and ex-police officers, testified they had known appellee for many years (ranging from 5 to 25 years) and that he had a good reputation.

Under the rules applicable to a case of this type, we cannot say the judgment of the trial court is against the preponderance of the evidence. The case was tried de novo in the circuit court and it is tried de novo here. City of Little Rock v. Newcomb, 219 Ark. 74, 239 S. W. 2d 750, and Campbell v. City of Hot Springs, 232 Ark. 878 (p. 881), 341 S. W. 2d 225.

Affirmed.

Holt, J., not participating.


author: Sam Robinson, Associate Justice. Jim Johnson, Associate Justice,

text:
    Pufahl v. Tamak Gas Products Co.
    5-3390
    385 S. W. 2d 640
    Opinion Delivered January 11, 1965

      Skill-man & Webb, for appellant.

      Wright, Lindsey, Jennings, Lester & Schults, By: Philip S. Anderson, Jr., for appellee.
   Sam Robinson, Associate Justice.

Paul R. 'Pufahl, age 22 and unmarried, lived with his parents, Mr. & Mrs. Carl H. Pufahl, at West Memphis. He worked for appellee, Tamak Gas Products Company. On September 12, 1962 he was accidentally killed while working in the due course of his employment.

Appellants here, Mr. & Mrs. Carl Pufahl, father and mother of the deceased, filed a claim with the Workmen’s Compensation Commission contending that they and a daughter were partially dependent on their son for support, and were, therefore, entitled to compensation as provided by Ark. Stats. Ann. § 81-1315 (i), which provides :

“If the employee leave dependents who are only partially dependent upon his earnings for support at the time of injury, the compensation payable for such partial dependency shall be in the proportion that the partial dependency bears to total dependency. ...”

The Workmen’s Compensation Commission denied the claim; the parents appealed to the Circuit Court where the decision of the Commission was affirmed, and the parents have appealed to this court.

The statement of facts made by the Commission is sustained by substantial evidence. The Commission said: “The primary issue to be decided herein is whether claimants were partially dependent upon the deceased at the time of his injury and death. Here the record establishes that the father claimant was steadily employed and his gross monthly earnings were $325.52 and he also participated in a profit share amount which is usually set at the end of the fiscal period. According to the only detailed evidence of record, deceased contributed about $50.00 per month to the support of the family including himself. This included $30.00 for rent which was not always paid by deceased. It includes $10.00 per month which includes clothes for the deceased. It also-includes $10.00 per month during the school term for lunches and bus fare for the deceased’s minor sister. It is therefore obvious that at least part of the $50.00 was spent directly for deceased.’s own benefit and use. Was deceased actually doing any more than supporting himself? On the record which is now before us, we can reach no other conclusion. Deceased living at home, he ate his meals at home, and his laundry was done at home. The proof establishes that the deceased contributed something less than $50.00 per month so, when this contribution is offset by the cost of maintaining deceased at home, we are of the opinion the deceased was doing no more than supporting himself. When the cost of maintaining the family is broken down on a per person basis, deceased’s share of that cost is $59.35. The record shows that deceased was contributing less than $50.00 per month. Such facts do not establish, in our opinion, that claimants were partially dependent upon the deceased. On the contrary, they point to the fact that deceased was dependent to some small degree upon his parents.”

The commission held that the parents and sister were not dependents of the deceased to any extent within the meaning of the Workmen’s Compensation Law.

Appellants stoutly contend that the case at bar is in point with and controlled by Crossett Lumber Co. v. Johnson, 208 Ark. 572, 187 S. W. 2d 161, but there is a vast difference in the two cases. In the Crossett Lumber Company case the Commission found in favor of dependency, while in the case at bar the Commission found there was no dependency. We have repeatedly held that if there is any substantial evidence to support the finding of the Commission, it will not be disturbed on appeal; that the finding of the Commission is to be given the same force and effect as a jury verdict. Cole v. Hendry Corp., 230 Ark. 100, 321 S. W. 2d 377; Shipp v. Tanner, 229 Ark. 815, 318 S. W. 2d 821; Duke v. Pekin Wood Products Co. 223 Ark. 182, 264 S. W. 2d 834. Furthermore, the testimony must be weighed in the light most favorable to the findings of. the Commission. West v. Lake Lawrence Pulpwood Co., 233 Ark. 629, 346 S. W. 2d 460.

Here, we cannot say there was no substantial evidence to support the finding of the Commission. It is true that it can be said there was evidence that appellants were partially dependent on their son, but it cannot be said that there is no substantial evidence to the contrary. Appellants also cite Kimpel, Guardian v. Garland Anthony Lumber Co., 216 Ark. 788, 227 S. W. 2d 932, and Nolen v. Wortz Biscuit Co., 210 Ark. 446, 196 S. W. 2d 899. Those cases are clearly distinguishable on the facts.

Affirmed.

Jim Johnson, Associate Justice,

(dissenting). I do not agree with the majority opinion. The referee found and the majority concede that “there was evidence that appellants were partially dependent” on-the deceased workman. In my view the question presented for our consideration on this appeal is not whether there was substantial evidence to support a finding to the contrary but whether the law was properly applied by the Workmen’s Compensation Commission to the undisputed facts in this case.

The rule applicable here was adopted by this court in Crossett Lumber Company v. Johnson, 208 Ark. 572, 187 S. W. 2d 161, wherein it was stated from Honnold’s two-volume treatise on Workmen’s Compensation, Vol. I, page 232, as follows :

“The phrase 'actual dependents’ means dependents in fact whether wholly or partially dependent. Hence it was no defense, in proceedings under an Act using this term, that petitioner and his family were not entirely dependent on deceased. Partial dependency, giving a right to compensation, may exist, though the contributions be at irregular intervals and of irregular amounts, and though the dependents have other means of support, and be not reduced to absolute want.”

The rule having been thus established, I look now to the uncontradicted facts. They are as follows: Carl Pufahl testified that his son, the deceased, paid the rent on the family house of $30.00 per month, that his son also paid $10.00 per month on a bill made by the father to Sears Roebuck, that he aided in the purchase of clothes for his younger sister and from time to time gave her money for school lunches, that while the father was hospitalized in 1958 the deceased had the entire responsibility for support of the family, and that the deceased would contribute on an average of $50.00 per month to the family, depending on the needs of the family. Mrs. Carl Pufahl testified that her son, the deceased, contributed at least one-third of the expenses at home, that the family pooled the incomes.

In the teeth of this overwhelming evidence of partial support the Workmen’s Compensation Commission attempted to rationalize away this young man’s efforts in behalf of his family. As I see it this strained action by the Commission was a misapplication of the law which resulted in a grievous error in favor of the appellee insurance company. The humane purpose which the Workmen’s Compensation Law seeks to serve leaves no room for narrow technical application. We said in Holland v. Malvern Sand & Gravel Co., 237 Ark. 635, 374 S. W. 2d 822:

“The most important rule, carrying out the humane purpose of the act, is that the commission must follow a liberal approach and in a situation where one inference would support an award and another would defeat it, the inference supporting the award must be adopted.”

For the reasons stated I respectfully dissent.


author: Sam Robinson, Associate Justice.

text:
    Milum v. Milum
    5-3404
    385 S. W. 2d 658
    Opinion Delivered January 11, 1965

      Moore é Brockmann, for appellant.

      Ben C. llemley, for appellee.
   Sam Robinson, Associate Justice.

Roy W. Milum, Sr. died on May 9,1963. The administrators of his estate, William J. and Roy W. Milum, Jr., sons of the deceased, filed an inventory. Listed among the assets of the estate were Calico Rock Bonds valued at about $12,000, and Nettleton School District Bonds of the value of about $52,000.

Also surviving the deceased was another son, John C. Milum, Sr. and a daughter, Mary Milum Reed. Marian Milum, wife of John C. Milum, Sr., filed exceptions to the inventory of the estate on behalf of her four minor children, John C. Milum, Jr., Rebecca Lee Milum, William Roy Milum and James Wesley Milum. Mrs. Milum claimed that the aforesaid bonds had been given in trust to her husband, John, for her minor children and that the bonds are, therefore, not assets of the estate. Upon a trial of the issues, the Probate Court held that the bonds are assets of the estate. The children, by their mother, Marian Milum, have appealed.

Subsequent to the death of Roy C. Milum, the heirs found among his effects, statements from dealers in investment securities showing that he had purchased bonds of Calico Rock in the sum of $12,000 and had purchased Nettleton School District Bonds in the sum of $52,400. There was also a memorandum that the bonds had been placed in Box 304 of the Commercial Bank. The key to the lock box at the Commercial Bank was among Roy C. Milum’s effects.

After William J. Milum and Roy W. Milum, J r. had been appointed administrators, they, along with their brother, John C. Milum, Sr., and their sister, Mary Milum Reed, and an attorney, went to the bank to open the lock box. All of those present expected to find the bonds in the lock box, except John C. Milum, Sr. He knew the bonds were not there. He pretended, however, to be as much surprised as the others at not finding the bonds in the lock box. A few days later, while the administrators were preparing to take further steps in an effort to locate the bonds, John C. Milum told them that they need look no further; that he had the bonds; that they had been given to him by their father for the use and benefit of his (John’s) children; that the bonds were to be used for the education of the children. Thus, there arose the issue of whether the bonds belonged to John in person, or as trustee for his children, or did they belong to the estate.

The finding of the Probate Court that the bonds were delivered to John by his father as an advancement is sustained by a preponderance of the evidence, although there is some evidence to the contrary. John had the bonds. He stated that his father had given them to him to be used for the education of John’s four children. He further testified that his father had given him specific instructions on cashing the bonds as they became due and how the proceeds should be handled, and that he had carried out his father’s instructions in that respect to the letter.

But the evidence also shows that at the time ho turned the bonds over to his son John, Roy was personally involved in a divorce proceeding. His then.wife was not the mother of his children. The testimony of Lloyd Shouse, attorney for Roy Milum at the time of the divorce, can be construed to the effect that Roy gave the bonds to John as an advancement. Roy was nearly 80 years of age at the time and was worth a considerable sum. He died about nine months after the divorce was granted to his wife.

The inventory of the estate shows a valuation of about $425,000.

There is no evidence at all indicating that Roy had ever favored any of his children over the others, although, subsequent to his divorce, two of his children had provided an apartment for him at their homes in Harrison. Roy had other grandchildren besides John’s children. It appears that some of them had finished school and Roy had not helped with their education. One son was in debt to the extent of about $10,000 for •money he had borrowed to educate his daughter.

A gift of a large portion of an estate from a parent to a child during the lifetime of the parent is prima facie an advancement. The court said in Perdue v. Perdue, 198 Ark. 657, 130 S. W. 2d 703: “It has long been the established rule of law in this state that a gift of a considerable portion out of the body of the estate from a parent to a child during the lifetime of the parent is prima facie evidence of an advancement; that it was so intended, and that this presumption must be overcome by a preponderance of the testimony.” See also Russell v. Pagan, 167 Ark. 143, 267 S. W. 573; Jackson v. Richardson, 182 Ark. 997, 33 S. W. 2d 1095; Neal v. Neal, 194 Ark. 226, 106 S. W. 2d 595; Clement v. Blythe, 220 Ark. 551, 248 S. W. 2d 883, 31 A. L. R. 2d 1033.

Tire conduct of John after his father died, and his testimony in Probate Court did not overcome the prima facie case that the bonds were turned over to him by his father as an advancement.

A short time after Roy’s death, all the heirs were gathered together, along with an attorney. Assets of the estate were discussed, including the bonds. All of the heirs, except John, thought the bonds were in the lock box, and John did not say one word indicating that Roy had given the bonds to him or turned the bonds over to him in trust for his children. Later, when he testified, John attempted to explain his conduct by saying that he remained silent about having the bonds because he had promised his father that he would tell no one, and that he wanted to “search his soul”, although it appears from his testimony that he had previously told at least three people of his version of the transaction.

In the circumstances it cannot be said that, the evidence to establish a trust in personal property comes up to the high standard required by law. Scott v. Miller, 179 Ark. 7, 13 S. W. 2d 819; Hand v. Mitchell, 209 Ark. 996, 193 S. W. 2d 333; Kelley v. Northern Ohio Co., 230 Ark. 355, 396 S. W. 2d 235; Blalock v. Blalock, 222 Ark. 299, 258 S. W. 2d 891.

Appellant argues other points dealing mainly with the admissibility of evidence. We have examined each point and find no error.

Affirmed.

Ward and Holt, J. J., not participating.