text:
    Harris v. McCann.
    5-1695
    319 S. W. 2d 832
    Opinion delivered January 19, 1959.

      Shaver $ Shaver • Davis & Davis, Memphis, Term., for appellant.

      Catlett $ Henderson & David Solomon, Jr., for appellee.
   Sam Robinson, Associate Justice.

Appellant, R. E. Harris, as agent for his wife, Sadie Harris, contracted to sell a large plantation to appellee, A. I. McCann. Later, a portion of the place, 640 acres, was sold to Harlen Wilson and wife for the price of $66,000, of which $10,000 was paid in cash and notes given for the balance of $56,000. Harris loaned money to McCann to operate the plantation for the years 1955 and 1956. In January, 1957, McCann filed this suit, asking for specific performance of the contract of sale. McCann made an alleged tender of the amount he claims he owed. He contends, however, that he should have credit for $66,-000, the price of that part of the land sold to "Wilson. Harris answered and set up several defenses. He denied that McCann should have credit for the sales price of the Wilson land. He alleged that McCann had breached the contract by failing to make payments in accordance with the terms thereof; that there had been a forfeiture; and, further, that by mutual agreement the sales contract had been rescinded. By way of cross complaint Harris asked for judgment for the alleged unpaid balance on money loaned to McCann to make the crops. McCann answered the cross complaint, alleging that Harris had charged a usurious rate of interest for the money loaned to make both the 1955 and 1956 crops. Later, Harris filed a new suit against Florida Real Estate Loan Company, Helena National Bank, A. I. and Grace E. McCann, and B. A. and Mary Lucille McCann, alleging that the defendants had wrongfully encumbered the title to the property, and asked that the title be cleared and that the plaintiff be given judgment for damages. The cases were consolidated.

Upon a trial of the issues, the chancellor ordered specific performance of the contract, and it was the decree of the court that a usurious rate of interest had been charged by Harris on loans for both of the years 1955 and 1956, but that McCann could not recover that part of the 1955 account which had been voluntarily paid; that the 1956 loan was void because of usury and that there is no merit to Harris’ claim that title to the property has been wrongfully encumbered; and, further, that McCann should have credit for the price of the land sold to Wilson. Harris has appealed. And McCann has cross-appealed from that part of the decree disallowing recovery of the payments made on the 1955 account.

On the 20th day of December, 1954, Harris and his wife entered into the contract whereby they agreed to sell, and McCann agreed to buy, Wildwood Plantation in Phillips County, consisting of approximately 2,915 acres, and also the farming implements, etc., used in operating the place. On January 1, 1955, the property was turned over to McCann. On March 2, 1955, a more formal contract of sale was executed. The purchase price, including land and equipment, was $300,000, of which $8,000 was paid in cash, and in addition McCann and his wife gave their note for $12,000 due December 1, 1956, secured by a mortgage on other property. The balance of the purchase price of $280,000 was to be paid in twenty yearly installments of $14,000 each, and interest, the first installment becoming due on or before December 20,1955. Harris loaned McCann the necessary money to operate the place for the years 1955 and 1956. In January, 1956, the 640 acres was sold to Harlen Wilson and wife for the sum of $66,000; Wilson paid $10,-000 in cash and executed notes payable to both Mc-Cann and Harris for the balance. The $10,000 in cash was paid to Harris, and McCann endorsed the notes and turned them over to Harris.

On the 10th day of January, 1956, Harris furnished McCann a statement showing that he had advanced to McCann $83,952.43, and that McCann was entitled to credits for $65,565.74, leaving a balance owed by McCann to Harris of $18,386.69. Two days later, on January 12th, additional charges and credits were made that grew out of the 1955 operation of the place, and on that day Harris furnished McCann a statement showing there was a balance of $11,635.04 owed by McCann from 1955 (this amount was carried forward into the 1956 account). The statement for 1955 included an item dated January 9th, as follows: “Interest on furnish account, $2,677.40.” On the face of this statement is written, in longhand, “This settlement is hereby accepted as a true and final settlement of account. Signed E. E. Harris A. I. McCann.” In addition, Harris had received and credited to the debt on the land $14,000 principal and about the same amount as interest.

Mr. John A. Moye, Jr., is vice-president of Helena National Bank and has computed all types of interest over a period of 17 years. He testified that the interest charged by Harris to McCann on the “furnish” account for the year 1955 exceeded 10% per annum by $525.05. The parties had contracted for an interest charge of 6%. All of the charges and credits are taken from the books of appellant Harris. The computation of interest made by Mr. Moye is based on the records of Mr. Harris, and it appears from a preponderance of the evidence that more than 10% interest was charged for the year 1955.

McCann contends that with the exception of two comparatively small checks for wheat and oats which he turned over to Harris, all the receipts for the crops produced were paid to Harris by the purchasers of such crops, and therefore such receipts cannot be considered as voluntary payments on his indebtedness to Harris. But McCann accepted the statement of January 12th as a “true and final settlement of account”. If he did not actually authorize the application to the ‘ ‘ furnish” account of the funds received by Harris from the crops, he certainly ratified such application, which is the same as having authorized it in the first instance.

But the situation is different for the year 1956. In that year Harris furnished to McCann $45,159.49, which includes the $11,635.04 carry-over from 1955. McCann owed Harris two separate accounts, one for the “furnish” and one for the land. Harris had received $40,-949.48 from the sale of crops produced on the property in 1956, but none of this money had been applied to any particular account. It had been held by Harris as unallocated. It had not been applied to either the land or the “furnish” account. Furthermore, the parties had reached no agreement as to the allocation of the receipts. Sometime during the latter part of October (the exact date is not shown on Harris’ statement) he charged McCann with a “carrying charge” of $2,290.65. According to Mr. Moye, the expert on computing interest, this carrying charge exceeds 10% per annum on the money loaned to McCann by Harris during 1956. The chancellor held that snch carrying charge was usurious and therefore Harris had forfeited the money loaned to McCann in 1956 and the interest thereon.

On the question of usury Harris contends that the carrying charge does not exceed 10% ; that whatever money he received from McCann was paid voluntarily; that the transaction is not usurious because there was no agreement between the parties for the charge of interest at a rate of more than 10% per annum. In the first place, the dates of advances of money to McCann and the amounts thereof are all shown on Harris’ books, as well as the interest charged, which is designated “carrying charge”. The preponderance of the evidence shows that the “carrying charge” amounts to more than 10% per annum on the amounts advanced. Mr. Harris attempts to explain that items other than interest are included in the “carrying charge”. But his testimony in that respect is not convincing. In the recent case of Jones v. Jones, 227 Ark. 836, 301 S. W. 2d 737, we said: “When, as here, the lender writes the contract he has the opportunity to put down in black and white an intelligible description, and the exact amount, of every charge that is being added to the principal of the debt. Last week we pointed out that the practice of attaching meaningless labels to such charges weakens the lender’s position when usury is asserted. Whiddon v. Universal C. I. T. Credit Corp., 227 Ark. 824, 301 S. W. 2d 737. The same criticism can fairly be made of a contract that gives the borrower no information at all about the deferred charges being exacted by the lender. In either case the trier of the facts is justified in assuming, until he is convinced by proof to the contrary, that the difference between the principal of the loan and the face amount of the contract represents interest on the debt.”

McCann actually in person had not paid anything to Harris in 1956. True, those who had purchased the crops produced by McCann had, by agreement of the parties, paid the purchase price to Harris. But, as heretofore pointed out, McCann owed Harris a debt on the purchase price of land and owed the “furnish” account, and the money received by Harris from the 1956 crop to apply on McCann’s debts had been held in an unallocated account and had not been applied to either the land account or the “furnish” account. In these circumstances it cannot be said that there had been a voluntary payment on the 1956 “furnish” account.

Next, Harris says that since there had been no agreement by McCann to pay more than 10% per annum interest, the fact that more than that amount may have been charged does not make the transaction usurious, and cites, among other cases, Sloan v. Sears, Roebuck and Co., 228 Ark. 464, 308 S. W. 2d 802, and General Contract Corp. v. Duke, 223 Ark. 938, 270 S. W. 2d 918, to the effect that the transaction is to be judged as of the time the contract is made and not thereafter. Appellant therefore contends that since the contract provides for only 6% per annum there can be no usury for the simple reason that the borrower has to pay only what the contract calls for.

The carry-over from 1955 of $11,635.04 embodied part of the .usurious interest charged in 1955. Furthermore, to constitute usury there must be only the intention of the lender to take or receive an unlawful rate of interest. Baxter v. Jackson, 193 Ark. 996, 104 S. W. 2d 202; Wilson v. Whitworth, 197 Ark. 675, 125 S. W. 2d 112. Undoubtedly it was Harris’ intention from the beginning to compute the interest by charging a straight 6% on all sums advanced, regardless of the date he actually parted with the money. For both years, 1955 and 1956, the amount of the “carrying charge” is a flat 6% of the total advanced. This is exactly the method used in computing interest in Brooks v. Burgess, 228 Ark. 150, 306 S. W. 2d 104, and was held to be usurious, the amount of the interest exceeding 10% per annum, as in the case at bar.

McCann contends that he should have credit on the land account for $66,000, the sales price of the land bought by Wilson. Harris maintains that McCann Is not entitled to credit for the sales price of the Wilson land. The sale to Wilson came about in this manner: Mr. Godfrey Merrifield is a real estate broker. He had been authorized by Harris to sell Wildwood Plantation. It was agreeable with Harris to divide the place and sell it in parcels to different buyers, provided all parcels were sold, but Merrifield negotiated a contract between Harris and McCann whereby McCann agreed to buy the whole place. This contract provides: “15. It is further mutually agreed between the parties that the purchaser may sell any portion of the approximately 2,915 acres of land hereinabove described at any time during the life of this contract, provided that the price and terms are agreeable to the sellers and the proceeds from such sales are applied to the indebtedness owing to the sellers by the purchaser as hereinabove set out.”

Later, after the contract had been made between Harris and McCann, Merrifield found Wilson as a purchaser of a portion of the place, known as Section 28, consisting of 640 acres. The contract to sell the property to Wilson was signed by McCann and his wife and Harris and his wife, and, of course, by Wilson. Wilson paid $10,000 in cash, which was turned over to Harris, gave his notes, payable to both Harris and McCann, for $56,000, the balance of the purchase price, payable in annual installments. The notes were endorsed by Mc-Cann and delivered to Harris. When the first installment became due, Wilson made the payment to Harris. The contract between Harris and McCann is somewhat ambiguous, in that it does not specifically provide whether the notes taken in connection with the purchase price should be regarded as proceeds from the sale. (It will be recalled that the contract between Harris and Mc-Cann provides that the proceeds from the sale of any part of the property to a third party should be applied to McCann’s indebtedness to Harris.) Appellant Harris contends that the notes should not be regarded as part of the “proceeds” as mentioned in the Harris-Mc-Cann contract and therefore should not be applied to the indebtedness owed by McCann. On the other hand, McCann says that when all the facts and circumstances are considered, the Wilson notes should he regarded as part of the proceeds from the sale of the Wilson land and the full amount of these notes applied to McCann’s indebtedness to Harris. Both sides cite numerous cases to sustain their point as to what should be considered “proceeds” of a sale in circumstances of this kind. But we think the case at bar is more closely in point with Rose v. Hall, 171 Ark. 529, 284 S. W. 776. There the Court said: “We think what was intended and the thing which was in fact done was to substitute, by consent of all parties concerned, Sarah Hall as the purchaser from Bose, instead of from Shuptrine. ’ ’ And that appears to be what was done in the case at bar. Wilson was substituted for McCann as the purchaser of the 640 acres. Every detail of the sale to Wilson was approved by Harris, and everything received from the sale, including the cash and the notes, was turned over to Harris. In the first place, from the very beginning Harris contemplated selling the plantation in parcels, and although he contracted to sell the entire property to McCann, the contract provided that McCann could sell any portion of the property “provided that the price and terms are agreeable to the sellers (Harris) and the proceeds from such sales are applied to the indebtedness” owned by McCann to Harris. It will be noticed that all the terms of the sale had to meet the approval of Harris, including the selling price; hence, Harris could insist on a selling price, a down payment, and deferred payments, that would give him full protection in the event of a sale. And certainly, when Wilson finally would have paid in full for the land he would have title to it free of any indebtedness that McCann might still owe to Harris. Furthermore, the entire transaction was handled by Harris as if he were selling the property to Wilson; Harris’ real estate broker arranged the sale; his lawyer drew up the contract of sale on terms dictated by Harris; the proceeds of the sale — the $10,000 cash payment and the Wilson notes — -were delivered to Harris; Harris kept a complete double entry set of hooks, and the record of the sale to Wilson was set up on Harris’ books just like tbe sale to McCann had been set up; Wilson was given credit for tbe $10,000 down payment; McCann’s land account was not credited with tbe down payment; neither was tbe McCann account credited with tbe first installment payment made by Wilson. We think a preponderance of tbe evidence shows clearly that all tbe parties considered that Wilson was substituted for McCann as a purchaser of tbe 640 acres which we have spoken of as the Wilson land.

Appellant makes tbe further contention that tbe contract of sale between Harris and McCann was rescinded by mutual agreement. This is a question of fact, and there is ample evidence to sustain tbe chancellor in tbe finding that tbe contract was not rescinded. True, a rescission of tbe contract was discussed, but McCann says be did not agree to tbe rescission, and tbe conduct of the parties subsequent to tbe time Harris contends tbe contract was rescinded does not appear to sustain Harris’ contention. McCann remained in possession of tbe property; be paid to Harris $12,000, which was part of tbe agreed down payment. Moreover, tbe notes given by McCann in connection with tbe $300,000 purchase price were not returned to him.

Appellant makes tbe further argument that McCann should not prevail because be did not come into court with clean bands, but we do not think tbe acts Harris alleges that McCann has committed bring tbe case within tbe clean bands doctrine.

In order to raise tbe money to pay Harris in full, McCann mortgaged tbe property to Florida Real Estate Loan Company. It is appellant’s contention that both McCann and Florida are liable for unlawfully encumbering tbe title to tbe property. McCann bad possession of the property and bad paid part of tbe purchase price; be bad an equitable interest which be bad a right to mortgage. 41 C. J. 374; 36 Am. Jur. 708; Oliphint v. Eckerley, 36 Ark. 69.

Appellant further maintains that McCann has made no valid tender of tbe purchase price. It appears that when McCann attempted to pay the debt and demanded a deed, the principal issue between the parties was whether he should be given credit for the price of the land sold to Wilson, and since it is being held that he should be given such credit, there is no doubt about the tender being sufficient. But the tender was not sufficient to stop the running of interest on the debt. Florida Real Estate Loan Company had agreed to loan McCann $187,500, and the Mississippi County Bank had agreed to loan $12,500. This money was to be used to pay off the debt McCann owed Harris. Although the money was available and could be obtained at any time for the purpose of paying off the debt, it had not actually been advanced by Florida or the Bank, and Florida was not willing to deposit the money in court. There is no indication that McCann would have to pay interest on the money until such time as it was actually advanced. In these circumstances it would be inequitable to say that the tender stopped the interest on the debt to Har-' ris, because if that were done McCann would be having the full use and benefit of the money owed to Harris without the payment of interest to anyone. Of course, McCann did not propose to use his own money to pay off the debt, and Florida and the Bank have not actually advanced the money, but have agreed to make it available to McCann for the purpose of paying off the loan when that can be done.

In 55 Am. Jur. 779, it is said: “A tender alone however, does not keep a purchaser in possession from being liable in equity for interest; he must keep the tender good and set aside the money for the vendor’s use, as by a deposit in a bank or in court. There is also authority to the effect that a vendee in possession must give notice that the money is set aside for the vendor’s use in order to escape being liable in equity for interest. . . . An arrangement between a contract purchaser of real property of which he has taken possession, and a bank, that the bank will furnish the money to be paid on the contract when needed, upon security of bonds deposited with it, is not such a setting aside and appropriation of money to the contract as to exonerate the purchaser from liability in equity for interest in case of delay in carrying out the contract.”

We think that in the circumstances of this case principles of equity demand that the debt owed by McCann to Harris bear interest until the debt is paid, and the decree should be modified to that extent.

On cross-appeal McCann contends that Harris charged him a usurious rate of interest on the “furnish” account for the year 1955, and that he therefore should have credit for the amount he paid on the 1955 account. The parties had a settlement on the 1955 account, and a statement of account prepared by Harris showed Mc-Cann owed a balance of $11,635.04. This amount was carried into the 1956 account and has been held void because of a usurious rate of interest charged on the account for that year. The parties considered that all of the 1955 account except the $11,635.04 had been paid in full. Appearing on the 1955 statement of account is the following: ‘ ‘ This settlement is hereby accepted as a true and final settlement of accounts. Signed: R. E. Harris A. I. McCann.”

There can be no recovery of money voluntarily paid on an account, where a usurious rate of interest was charged, except a recovery of the excessive interest. Anderson v. Shoup, 180 Ark. 955, 23 S. W. 2d 616. Even though the borrower may ordinarily recover the excessive interest, there is no showing here of what portion of such interest is embodied in the $11,635.04 carried into the 1956 account and declared void.

Appellee further contends on cross-appeal that he should have credit for $5,134.70 profit which he claims Harris wrongfully made out of crops raised by McCann and for a compress rebate of $94.50. These are questions of fact, and it would unduly extend this opinion, which is already too long, to set out in detail the ramifications of those issues. Suffice it to say we have examined the record and carefully considered argument of counsel, and we cannot say the chancellor’s finding against appellee in that respect is against a preponderance of the evidence.

Affirmed as modified on appeal; affirmed on cross-appeal.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice. Carleton Harris, Chief Justice,

license: Public Domain

text:
    Dockery v. Thomas.
    5-1708
    320 S. W. 2d 257
    Opinion delivered January 19, 1959.
    [Rehearing denied February 23, 1959.]

      J. B. Reed, for appellant.

      Talley & Owen & James R. Howard, for appellee.
   Jim Johnson, Associate Justice.

The question to be decided is, whether compensation benefits should be paid to an employee receiving a compensable injury but whose earning capacity is not diminished by the injury. Following the opinion of this Court in Dockery v. Thomas, 226 Ark. 946, 295 S. W. 2d 319, the Arkansas Workmen’s Compensation Commission awarded benefits to William Earl Thomas.

The temporary total disability was found by the Commission to be from May 4, 1954, through June 29, 1955, and the permanent partial disability was found to be 30% to the body as a whole. Under the award, Thomas was to receive $25.00 per week for the temporary total disability, or a total, minus credits, of $1,-472.14; for tbe permanent partial disability, tbe award was for $25.00 per week for 135 weeks or $3,375.00, plus hospital, medical, medical appliance bills, and the maximum attorney’s fee allowable. Thomas died on August 27,1957, from causes entirely disconnected with this case. On appeal by Dockery, the Pulaski Circuit Court authorized Thomas’ widow to revive the action. The Circuit Court modified the Commission’s award by cancelling all of the permanent partial award after August 27, 1957, the date of Thomas’ death; and appellee does not complain of such modification. Appellant insists, here, that Thomas was not entitled to any award for permanent partial disability.

The evidence reflects that Thomas, during the years following his injury, received substantially the same earnings as before his injury; and it is thus argued that permanent partial disability benefits should be denied. The appellant calls to our attention the cases of Conatser v. D. W. Hoskins Truck Service, et al., 210 Ark. 141, 194 S. W. 2d 680, and Sallee Bros. v. Thompson, 208 Ark. 727, 187 S. W. 2d 956. It was decided in those cases that an employee was precluded from an award of permanent partial disability when his earnings after the injury were as great as his earnings prior to the injury. But those cases were decided in 1946 and 1945 respectively, and were governed by Act 319 of 1939, § 13 (Ark. Stats. (1947) § 81-1313 (C) (23)), which provides:

‘ ‘ OTHER CASES: In all other cases in this class of disability there shall be paid to the injured employee 65% of the difference between his average weekly wages and his wage earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the Commission on its own motion or upon application of any party in interest, and in no case exceeding a longer period than four hundred fifty (450) weeks, or a maximum of $7,000.”

That Section of the 1939 Workmen’s Compensation Act was superseded by Initiated Measure (1949) No. 4, § 13, (Ark. Stats. (1948) § 81-1313 (d)), which provides:

“OTHER CASES: A permanent partial disability not scheduled in sub-section (c) hereof shall be apportioned to the body as a whole, which shall have a value of 450 weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.”

A comparison of the above quoted sections of the Workmen’s Compensation Acts reflects that the words of the 1948 act omit the reference to the employee’s wage earning capacity after the injury, and instead, provide that the employee shall be paid compensation for the “proportionate loss of use of the body as a whole resulting from the injury.”

In the case of Lion Oil Co. v. Reeves, 221 Ark. 5, 254 S. W. 2d 450, decided in 1952, we allowed a recovery even though the employee was receiving more money after his injury than he had received before his injury. We pointed out the difference between the 1939 law and the 1948 Initiated Measure, and explained that the cases of Conatser v. Hoskins, supra, and Sallee v. Thompson, supra, were decided under the 1939 law. In Lion Oil Co. v. Reeves, supra, we said:

“In view of the change in language found in the Initiated Act, and in obedience to the universal policy of courts to construe compensation measures in a manner reasonably calculated to effectuate the legislative intent (or, as in the case of an initiated amendment, to carry out the presumptive intention of those who framed the measure and the people who adopted it), we are unable to say that the Commission was in error when it determined that payment for permanent partial disability in the circumstances of this case was not the plan, and that compensation must be made whether the subject is employed or unemployed, and this is true irrespective of what his wages may be.”

The holding in Lion Oil Co. v. Reeves is compelling here. The Commission found that Thomas had suffered a permanent partial disability of 30% to the body as a whole. What he might have earned for a short period of time after his injury does not prove that the Commission was in error in fixing the injury to his body as a whole.

The judgment of the Circuit Court is in all things affirmed.

Smith, J., concurs.

Harris, C. J., dissents.

Carleton Harris, Chief Justice,

dissenting. I respectfully dissent to the ruling of the majority for the reason that the proof reflects that the deceased received substantially the same earnings after his injury as before the injury, and it is accordingly my opinion that permanent partial disability benefits should be denied. The majority concede that this was formerly the law, as previously determined by the cases cited in the majority opinion, but state that Initiated Measure (1948) § 4 changed the law to permit recovery for permanent partial disability even though the injured employee was gainfully employed after the injury, and receiving more than his former wages. The opinion cites sub-section (d) of § 81-1313, but makes no mention of sub-section (h), which provides as follows:

“If any injured employee refuses employment suitable to his capacity offered to or procured for him, he shall not be entitled to any compensation during the continuance of such refusal, unless in the opinion of the Commission, such refusal is justifiable.”

I can see no reason to deny compensation to an injured employee simply because he refuses employment, if he is entitled to compensation whether employed or not. In other words, it would appear, under the majority opinion, that he can work and earn more wages than before his injury, and still draw compensation for permanent partial disability, but, on the other hand, if, while receiving permanent partial disability payments, he is offered a job which he can handle, and refuses such employment, compensation under the statute, would cease. This, to me, is totally inconsistent, and leads me to the conclusion that the intent, as expressed in the Act, is still to deny compensation where the employee is gainfully employed and making as much or more money than previously. Also, sub-section (m) of § 81-1319, provides as follows:

“If the employer has made advance payments of compensation he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due. If the injured employee receives full wages during disability he shall not be entitled to compensation during such period.”

While I agree that this sub-section has primary reference to wages paid by the original employer, I see no particular distinction in receiving the wages from that employer or a second employer. In each instance, the employee has suffered no loss in remuneration. This subsection, read together with sub-section (h) (heretofore referred to), strengthens my conclusion that the people, in passing our Workmen’s Compensation Act, did not contemplate or intend that an employee should draw compensation for permanent partial disability when his earnings, after the accident, were equal to, or greater than, earnings before the accident. In my opinion, the purpose of paying compensation to an injured employee (except for those injuries which might be classed as scheduled claims, such as loss of a hand, foot, etc.), is to prevent financial hardship during that period when he is unable to engage in his normal occupation, or maintain normal earnings.

For the reasons herein enumerated, I would reverse the judgment.

       It was argued in the brief of appellant that all the unpaid Workmen’s Compensation benefits awarded Mr. Thomas abated by reason of his death. But in the oral argument the appellant’s counsel — with becoming candor — called attention to § 81-1323 (e) Cumulative Pocket Supplement of Ark. Stats., which is Paragraph 23 of Initiated Act No. 4 of 1949, and which settles the said point argued in the brief.

       In Larson on Workmen’s Compensation Law, Vol. 2 § 57.21, cases from more than a score of jurisdictions are cited to sustain this textual statement: “It is uniformly held, therefore, without regard to statutory variations in the phrasing of the test, that a finding of disability may stand even when there is evidence of actual post-injury earnings equal-ling or exceeding those received before the accident.

       It might also be pointed out that a large part of such earnings were received from identically the same occupation that Thomas had previously been engaged in.


author: Carleton Harris, Chief Justice.

text:
    Tri-County Gas & Appliance v. Charton.
    5-1675
    320 S. W. 2d 103
    Opinion delivered January 26, 1959.

      J. M. Smallwood, for appellant.

      Brasil <& Brasil, Gordon <& Gordon, for appellee.
   Carleton Harris, Chief Justice.

Catheryn Char-ton and E. A. Mayall, her father, instituted suit against the Tri-County Gas & Appliance Company and Gerald Powell for damages, alleging that Mrs. Charton ordered propane gas from appellant company, which was delivered hy their employee, appellant Powell; that Powell placed more gas into the tank than it was designed to accommodate, which resulted in excess gas forcing its way through the mechanism of the head of the tank, and through the pipe leading from the tank into the house occupied by Mrs. Charton, on through the jets or burners of a stove, and subsequently into the rooms of the house. The Complaint then alleged that Mayall was visiting in the home of appellee Charton around 6 p. m. on October 2, 1957, and that appellees went into a small closet in the house to move some clothing, and, the room being dark, struck a match, whereupon an immediate explosion with a great burst of flame occurred, and appellees were severely and painfully burned; that the house and contents were consumed by fire. Damages were sought by Mrs. Charton in the amount of $28,100, while Mr. Mayall alleged his damages to be $7,750. Appellants answered, denying the allegations, and further alleged that the butane system in the house, together with the container, were installed by appellee Mayall, who was inexperienced and incompetent to install the system, the latter fact being known by appellee Charton; that Mayall was negligent in said installation, and Mrs. Charton assumed the risk of injury from Mayall’s negligence in installing the system. It was further alleged that appellees did not exercise ordinary care for their own safety; that the proximate cause of the alleged injuries was the negligent acts of Mayall, in which Catheryn Charton acquiesced, and that appellees were negligent in a degree equal to or greater than any negligence that could be shown on the part of appellants. On trial, the jury rendered a verdict for Mrs. Charton in the sum of $5,208, and for Mayall in the amount of $755, for which sums judgment was entered, together with interest at the rate of 6% per annum until paid. From such judgment, appellants prosecute this appeal. The sole contention for reversal is that the court erred in refusing to direct a verdict for appellants at the conclusion of appellees’ testimony, and at the end of all the testimony in the case.

Appellants contend that the evidence as to their responsibility or liability for causing the fire was insufficient to send the case to the jury. They argue that the fire could have occurred from several causes, and that the jury was permitted to, and. did, speculate in reaching the conclusion that appellants were responsible. Of course, a verdict based upon conjecture would be of no validity. Biddle, et al., Receivers, v. Jacobs, 116 Ark. 82, 172 S. W. 258. The evidence reflects that appellee Charton started moving into the house in question on the last day of September, 1957, and concluded moving on October 1st. However, she did not spend either night on the property. Approximately 10 days earlier, appellee Mayall had made the installation of the butane system on the property. Mayall had no license to install such a system, but had installed his own butane system in two previous houses that he had lived in. He testified that he moved his own tank, which had a capacity of 115 gallons to the Charton property, and stated that the tank was 6 or 7 years old. It was placed about 15 feet from the house, and the installation consisted of putting down the line, attaching it on into the house, piping the house, and setting up two stoves, a cookstove in the kitchen, and a small butane heater “* * * back from the closet in the dining room.” Mayall described in detail his method of installing the system, and H. D. Burns, chief technician of the Liquefied Petroleum Gas Control Board (whose testimony will be hereafter more fully discussed) was in the courtroom during Mayall’s explanation, and subsequently testified # * If I understood his explanation correctly, the connections were made in a manner approved by the department.” On installing the stoves, Mayall checked to see that they were properly working. The heater was lighted, then turned off, and was never lighted again. Mayall testified that he checked the tank around 10 or 11 a. m. on October 2nd, and the gauge showed it to be 10% full; that accordingly, gas was ordered from Tri-County.

Mrs. Charton testified that her father took her to the house between 6:30 and 7 o’clock on the morning of October 2nd; that she started cleaning and straightening and ££* * * cooked my children just a snack.” In addition to cooking breakfast, she testified that she also prepared lunch on the cookstove; that she fixed bacon and egg sandwiches for the children in the afternoon, and that the stove was intermittently off and on all day, as she was boiling water to aid in cleaning the premises. Nothing out of the ordinary was noticed concerning the operation of the stove, i. e., it appeared to be working properly. Powell arrived with the gas around 4:45 p. m. Mrs. Charton stated that he filled the tank, and then came to the door and asked for a pencil eraser. “I asked him what he needed with a pencil, or something like that, and he said, ‘Well, I can’t figure this.’ I said, ‘Well, what do you mean?’, and he said, ‘Well, what size tank is this?’ I said, ‘Well, that I just don’t know.’ ” She testified that Powell figured for a long time and then asked her to figure it, but not knowing anything about gas, she was unable to help. She further testified that Powell stated it was the first tank he had filled by himself, and he didn’t know how to figure it. He then gave her a delivery ticket. The ticket showed that Powell found the tank empty and filled it to 90% full, and that he placed 135 gallons of propane gas into the tank. According to Mrs. Charton, Powell left, and around 6 p. m., her father and mother came to the house. Mrs. Charton turned on the cookstove, and a flame shot up 2 or 2% feet, and she immediately turned the stove off. She and Mayall then went to the closet to get the children’s clothes, and the closet being dark (the house not then being wired for electricity), the father struck a match. As Mayall described it:

“When I struck that match — it was just like the world on fire — of course, it didn’t last over that long (indicates by snapping fingers). Of course, it burned us up nearly. It burned Catheryn and she was just having one fit after another, and I was trying to take care of myself the best that I could, it burned me pretty bad. # * *

My hands were both burned badly, and my eyes were burned bad. I mean as red as they could be. And it burned me up in my nose, up inside of my nose. My nose peeled off. It has affected my breathing ever since, and even my ears peeled out on the inside.”

Father and daughter then immediately left the house, and a son-in-law took them to the hospital at Clinton. Around 8 p. m., the house caught fire, and several persons passing the property between that time and 8:30 p. m., witnessed it. Testimony reflected that the house was almost completely burned, and flames from the tank were shooting 12 or 15 feet into the air. The witnesses described the flames as not being steady, but “* * * would go off and then it would shut down and then it would pop off again.” This happened 12 or 15 times while they were watching.

Appellant Powell admitted that he started work for Tri-County on October 1st, filled 15 tanks on that date in company with the local manager of Tri-County, and made 10 calls on the morning of October 2nd. He admittedly had no license to make deliveries of liquefied petroleum gases, and had only 1 y2 days training before filling Mrs. Charton’s tank. Powell had previously been a helper on a delivery truck for the Coca-Cola Bottling Company. According to his testimony, the percentage gauge reflected that the tank was empty. After noting that the tank had the capacity of 115 gallons, he filled it approximately 90% full, and made out a sales slip reflecting that 104 gallons of gas had been placed in the container. He testified that Mrs. Charton stated the tank had a capacity of 150 gallons, and would not sign the slip showing that 104 gallons had been delivered, so he made another slip showing that he had placed 135 gallons in the tank (which is 90% of 150).

The most extensive testimony was given by Mr. H. D. Burns, heretofore identified, and who qualifies as an expert on the subject of butane and propane gas, including its propensities, proper methods of installation, proper servicing, etc. Mr. Burns’ testimony was thorough, and exhibited an excellent knowledge of the subject. Necessarily, because of the length, the testimony cannot be discussed in detail, and only those portions’ will be mentioned which bear directly upon the issue in the litigation. In discussing the capacity to which liquid petroleum tanks should be filled, Mr. Burns stated:

* * you have a mark there that you fill for butane, and you have a mark there that you fill for propane, and you have a mark that you fill for a combination of butane and propane. Normally standard practice which, has been proven in the past to be safe, in the summer time, normally the summer months of the year, 90% is accepted as being safe, without going into calculation and without possibly referring to the liquid level gauge which could result in a mistake. They assume that 90% is the maximum and it has been proven from past experience that it would be safe under most conditions; in the winter time it is necessary to reduce that somewhat. I do know and I will say that they have in the past even during the winter months filled to 90% and has resulted in no complications, however, that was possibly due to the fact that the consumer was using gas off at that time. Should you fill one at extremely low temperature of 90%, then the temperature for some unknown reason was to raise up to 90 or 100 degrees, then you would be overfilled.”

He stated that because of the fact that propane will expand about twice as much as butane, a tank will hold less propane than butane. Propane, as it is used for domestic consumption, is in a gaseous state. Liquid propane, when warmed from the temperature, will start boiling, and form a vapor pressure above it; the vapor pressure is removed from the regulator on the tank into the houseline, and on into the appliances. When asked what would cause the flame from the burner on Mrs. Charton’s stove to shoot up 2% feet into the air, Mr. Burns replied that such an occurrence would be caused by excess pressure in the service line. He then went on to say:

“* * * assuming that the appliance had the correct orifice, had the appliance operated previously with a normal flame, then the only thing that would naturally cause that would be an excess pressure which would have a tendency to force more gas through the orifice. * * * ”

Burns then stated that this excess pressure in the service line could be caused by three things.

1. The malfunctioning of the regulator, or the hanging of a working or mechanical part in the regulator.

2. An accumulation of foreign material between the orifice and the regulator seat, preventing the regulator from closing.

3. The injection of liquid gas into the regulator. The witness testified that if the regulator was working properly, and there was no obstruction, “* * * then the only thing that would cause that would be liquid going into your regulator or gas in a liquid phase going into the low pressure side of your regulator, therefore vaporizing and increasing in volume which would necessarily result in an increase in pressure.” He testified that he examined the regulator, and that it was working at the time of his investigation; however, this was some months later, and Mr. Burns stated this did not conclusively prove that the regulator was working properly on the day of the fire; that he had known of regulators that would fail to function for a while, but would subsequently start working again.

Appellees’ contention is simply that the tank was filled too full, which caused the injection of liquid gas into the regulator; this, in turn, resulted .in high pressure building up in the low pressure line, the latter not designed to take care of such excessive pressure, with the consequence that the various connections in the house which operated normally under normal pressure would leak when subjected to excessive pressure.

Appellants argue that, before appellees can prevail under any circumstances, it must first be shown that the tank was filled 100% full, while appellees, though contending that the tank was filled to that capacity, argue that it is only necessary that it be established that the container was filled to an unsafe capacity. Be that as it may, we are of the opinion that there was sufficient evidence to have justified the jury in finding that the tank was filled to 100% capacity. In the first place, the delivery ticket given to Mrs. Charton by Powell shows that 135 gallons of propane were placed in the tank. It is somewhat difficult to accept the explanation that the ticket was only given to this appellee because she insisted she be charged for 31 gallons more than were delivered. Of course, it is even more difficult to see how 135 gallons of gas could be placed in a 115 gallon tank, but the point is that this evidence certainly establishes that Powell did not know enough about the operation of filling the tank to be reasonably certain of the amount placed in it. Aside from this testimony, let it be remembered that Mayall testified the tank was 10% full when he looked at the gauge around 11 a. m. in the morning. It would appear that the amount of cooking done from that time until the time the tank was filled, would have consumed but little gas. Of course, Powell stated the gauge rested on “empty,” but this conflict in evidence was simply a question for the jury to determine. If the tank was 10% full, there were 11% gallons in it. If Powell placed 104 gallons in the tank, as he testified, then, at the time of the fire, it contained approximately 115% gallons.

According to appellees’ evidence, the capacity gauge on the tank on the morning after the fire registered better than 90%. Evidence on the part of appellants showed that the gauge registered 87%. As stated, witnesses testified that they saw flames shoot out of the top of the tank 12 or 15 times at the time of the fire — and the house was practically completely burned when they arrived. Certainly, it is reasonable to assume that these flames “shot up” for quite some period of time before the witnesses arrived, and possibly for a while after they left. It would therefore appear that a large amount of gas would have been consumed at the time of the fire, and yet the capacity gauge still registered 87 to 90% full the next morning. This was certainly a strong circumstance indicating that the tank was 100% full at the time of the fire.

While, of course, the violation of regulations is not such evidence of negligence as would establish liability, still evidence of violations, if pertinent to the cause, is proper for the jury’s consideration in reaching its determination. One regulation of the Liquefied Petroleum Gas Board requires that an L. P. G. transport delivery driver must present satisfactory proof of on the job training for a minimum period of 30 days before taking an examination, which if passed, would qualify him for a license. As previously noted, appellant Powell had no license, and had only 1% days training. Also, where the piping of the L. P. G. system has not been performed by a licensed and bonded butane dealer, then the dealer delivering the gas is required to advise the customer that he cannot fill the tank, until he, or some other qualified person, applies an air test to the line. According to Mrs. Charton, she requested that Powell check over the installation, but because of inadequate knowledge, he was unable to do so. Appellants complain that appellees’ case is based upon speculation; yet, the dealer failed, as required by the aforementioned regulations, to report the fire within 24 hours. Instead, the report was made four months and 17 days later, and thus a proper investigation by the L. P. G. Control Board was precluded.

There was no evidence that the regulator was not properly functioning, or that there was an accumulation of foreign material between the orifice and the regulator seat. We think it significant that, according to the evidence, the stoves properly functioned prior to the filling of the tank. In Biddle, et al., Receivers, v. Jacobs, supra, the Court, quoting from a Missouri case, said:

“In actions for damages on account of negligence plaintiff is bound to prove not only the negligence, but that it was the cause of the damage. This causal connection must be proved by evidence, as a fact, and not be left to mere speculation and conjecture. The rule does not require, however, that there must be direct proof of the fact itself. This would often be impossible. It will be sufficient if the facts proved are of such a nature, and are so connected and related to each other that the conclusion therefrom may be fairly inferred.”

We have concluded that there was substantial evidence upon which to submit the case to the jury.

The judgment is affirmed.

       Westchester Fire Insurance Company, which had intervened, was subrogated to the extent of $1,000 in the judgment awarded to Mrs. Charton, as it had previously paid such amount to her in satisfaction of her claims under a policy insuring jewelry and household goods.

       The original was burned in the fire, but the pink duplicate was obtained from the company office.

       There is no contention that the award to either appellee was excessive.

       According to Mr. Burns, the shooting up of the flames indicated the operation of the pressure relief valve on the tank — the valve being set to go off when the pressure in the tank reached 250 pounds. The evidence reflected that the tank was 15 feet from the house, and Mr. Burns stated that, in his opinion, this was sufficiently close for the gas to catch on fire as it was released from the propane tank while the house was burning.

       Emphasis supplied.


author: J. Seaborn Holt, Associate Justice. Sam Robinson, Associate Justice, dissenting.

text:
    Red Top Driv-Ur Self v. Munger.
    5-1760
    320 S. W. 2d 97
    Opinion delivered January 26, 1959.

      Wood & Smith, for appellant.

      Mehaffy, Smith & Williams, by Robert V. Light, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee, Hunger, on October 30,1957 executed a ‘ ‘ Standard Bental Agreement” with Bed Top Driv-Ur Self Co. Inc., owner, (at the airport in Little Bock) for the use of one of- its cars. The above rental agreement contained these provisions, "Collision Protection. If the box has been initialed on behalf of owner, then for an additional fee of $1 per day (with a maximum of $5 per week) owner agrees to relieve renter of all liability for collision damage to the rented vehicle referred to above while it is operated in conformity with this rental agreement, but renter shall be fully liable for all such damage if said vehicle is operated in violation of any law or this rental agreement.” Bed Top initialed the box which entitled Munger to protection. Another section of this rental agreement provides: “The vehicle described on the reverse side hereof shall not be operated: . . . (d) By any person other than the renter who signed the rental agreement or, provided he is a qualified licensed driver, by a member of the renter’s immediate family, the renter’s employer, or a person driving the car pursuant to said person’s usual and customary employment by the renter, and in the course of said driver’s regular and usual employment for the renter.” The facts disclose that at about 8 P. M. on November 2,1957 Munger picked up a young lady, an employee of appellant, at her apartment, and they liad dinner at the Tia-Wanna Club west of Little Bock. It appears undisputed that the young lady’s employment with Bed Top was concluded at 5 P. M. and that her association with Munger was unrelated to her employment. They left Tia-Wanna at about 10 P. M., driving toward Little Bock and when about a mile from Little Bock, on the way to their destination in North Little Bock, the young lady, who apparently was better acquainted with the road, took the wheel and undertook to drive, with Munger on the front seat beside her. She drove first to Levy to a drive-in where they had coffee and on leaving, — she was still driving, — a wreck occurred damaging the automobile practically beyond repair, such damages amounting to approximately $1,500. Appellant demanded payment from Munger for these damages, and upon his refusal to pay, brought the present suit. Trial before the court sitting as a jury resulted in a judgment in favor of appellee Munger and this appeal followed.

It appears that material facts are not in dispute and only a question of law is involved. Our decision must turn on the meaning and application of the word “operated” as used in the rental agreement. In this connection appellant says, “The provision of the rental agreement withholding collision protection except when the automobile was being used in conformity with the agreement is perfectly clear and not susceptible to construction. The word ‘operated’ is limited to physical control of the automobile.”

Appellee, on the other hand, says, “The term ‘operated’ as employed in the rental contract is ambiguous and therefore subject to judicial construction, and the proper construction of the term is that it comprehends the directing, superintending or overseeing of the driving of the vehicle.”

After a careful review of the facts presented we have reached the conclusion that the appellant’s contention is correct and must be sustained. We do not agree with appellee’s argument that the word “operated,” in the sense used here, is ambiguous. One of the specific requirements effecting collision protection to Munger is the stipulation that it applies only when the car is being operated by the person who signed the agreement, in this instance, Munger. Clearly we think this collision protection was meant to be, and was, strictly personal, applying only to Munger and in no sense general insurance for the benefit of some unknown operator. As indicated, it is undisputed that Munger was not at the wheel of the car when the mishap occurred and it does not appear that he was advising or instructing the driver in any manner. The young lady was physically driving. She was not acting as the agent of Munger, was not his employee, and there is no contention that any family relationship existed or that Munger was not a qualified, licensed driver. Granting, however, that the word “operator” may, in a general sense, be ambiguous (there being instances where it has been used to denote the driver of the car and also instances where it referred to the person who had control of the vehicle), we hold that it is not ambiguous as used in this particular rental agreement. Subsection (d), heretofore quoted, provides that the rented vehicle shall not be operated “by any person other than the renter who signed the rental agreement or, provided he is a qualified licensed driver, by a member of the renter’s immediate family, etc.” This language certainly makes clear that the term “operator” means “driver,” for one does not need a driver’s license to merely sit and tell somebody else where to go. Subsection (d) clearly has reference to who may drive the car, and Munger’s companion is not included. Under our statutes as applied to motor vehicles, their operation on the highways, etc., Sec. 75-303 Ark. Stats. 1947 defines the word “operator” in this language: “Operator. Every person (other than a chauffeur) who is in actual physical control of a motor vehicle upon a highway.”

In the case of Witherstine v. Employers Liability Assurance Corporation, 235 N. Y. 168, 139 N. E. 229, 28 A. L. R. 1298, there was involved an insurance policy providing for a reduced rate when the car insured was being operated by the insured himself, a situation similar in effect to that presented here. In that case the court said, “the word ‘operate’ is used throughout the statute as signifying a personal act in working the mechanism of the car. The driver operates the car for the owner but the owner does not operate the car unless he drives it himself. If the meaning were extended to include an owner acting either by himself or by agents or employees the provisions of the highway law would be replete with repetitious jargon.”

“When the meaning of the contract appears, it is the duty of the court to give them effect even when the words have been selected by an insurance company. Construction must not extend to the creation of a new contract for the parties.”

In Blashfield on automobiles we find this statement on the construction of the word ‘operate.’ (Blashfield 6, Part 1, Section 3941) “. . . if a policy distinctly limits its protection to cases of injury occurring while the owner is operating the car, personal operation thereof by the owner is contemplated, and the insurer is not liable in any other event.”

“Occasionally the policy restricts the coverage in this manner in certain states of fact and contingencies, and, when the situation at the time of the accident comes within a state of fact as to which the restriction applies, there is no liability upon the insurer for operation by persons other than the named insured.”

“The word ‘operate’ read in the light of the context of the policy and in view of the meaning attached to the word in automobile statutes, may be construed as describing the personal act of the owner in working the mechanism of the car, and hence as excluding liability when the owner is not personally driving at the time of the accident, although he is present and directing another as to the route, speed, and general manner of operation of the car, . . .”

In the case of Galan v. State, 164 Tex. Cr. Rep. 521, 301 S. W. 2d 141, The Court of Criminal Appeals of Texas used this language, “Appellant next complains of that portion of the court’s charge in which he instructed the jury-that they might convict if they found that the appellant did ‘drive and operate’ a motor vehicle on the grounds that the complaint and information charged only that he did ‘operate’ a motor vehicle. We hold such terms to be synonymous, and the court’s charge to be proper.”

And in State v. Sullivan, 146 Me. 381, 82 A. 2d 629, the Supreme Judicial Court of Maine said: “According to popular acceptance, the meaning of the term ‘to operate a motor vehicle’ is the same as to ‘drive’ it. It usually means that a person must so manipulate the machinery that the power of the motor is applied to the wheels to move the automobile forward or backward . . . ”

We conclude therefore that the word “operate” as used in the rental agreement here is plain and unambiguous and means that Munger was not protected for the reason that he was not operating the car at the time the car was wrecked. Accordingly the judgment is reversed and the cause remanded with directions to proceed in a manner consistent with this opinion.

McFaddin, Robinson, and Johnson, JJ., dissent.

Sam Robinson, Associate Justice, dissenting.

The majority starts off by saying that Munger executed a “Standard Rental Agreement” with Red Top. True, the printed form containing the terms of the agreement between the parties, prepared by Red Top, is designated thereon as “Standard Rental Agreement.” But there is no showing that snch a form is actually standard. Certainly there is no indication that it is one of such wide use that it is generally understood by the public.

There is a principle of law so firmly established that it needs no citation to support it, to the effect that an ambiguous written contract will be construed more strongly against the party that prepared it. Such an ambiguity exists in the case at bar, and in my opinion the majority is departing from a principle of law that has heretofore been followed in dozens of cases.

In the fine print on the back of the written agreement is the provision that‘‘ The vehicle described on the reverse side hereof shall not be ‘operated . . . By any person other than the renter who signed the rental agreement . . . ’.’’At the time of the collision the vehicle was being driven by a young lady, at the direction of Hunger, who had rented the car. Incidentally, the young lady was a regular employee of Red Top. However, she was not on duty at the time of the collision. If the provision of the contract relieving Hunger from liability for damages to the automobile in the event of a collision is not applicable unless Hunger actually was sitting under the steering wheel and driving the car, then the contract should have so provided in unambiguous language. It is a matter of common knowledge that the driver of a passenger automobile is not ordinarily referred to as the “operator” of the vehicle. In all fairness, did anyone ever hear of an “automobile operator”? The license to drive an automobile is called a “Driver’s License.” In this State, printed on the front of the license is “Arkansas Driver’s License.” Undoubtedly one who drives an automobile is an “automobile driver.” But “driver” is not synonymous with “operator.” Roget’s Thesaurus, New Ed., p. 169, par. 10, deals with the term “Automobile driver” and gives as synonyms: “automobile driver, automobilist, autoist, motorist, chauffeur, James [slang]; truck driver, truckman, speed demon or racer; road hog [slang], Sunday driver [joc.]; joy-rider [coll.]; hit-and-run driver; back-seat driver [joc.]; bus driver; taxi or taxicab driver; jitney driver; cabdriver, etc. ’ ’ It will be noticed that tbe Thesaurus does not give “automobile operator” as being synonymous with “automobile driver,” although just about every other term imaginable is used.

In the majority opinion it is stated: “Clearly we think this collision protection was meant to be, and was, strictly personal, applying only to Hunger and in no sense general insurance for the benefit of some unknown operator.” The appellee, Hunger, makes no contention in this case that the insurance was for the benefit of some unknown operator. It is his contention that he is the operator within the meaning of the contract and is therefore entitled to the collision protection. The majority cites Ark. Stats., § 75-303, defining “operator” as one who is in control of an automobile on the highway. The term as used in the statute is merely for the purpose of distinguishing chauffeurs from other drivers. If the majority is depending on that definition as applying to the case at bar, then a chauffeur who rented an automobile and had a collision would not be protected under the contract because of the fact that he was a chauffeur and not an operator.

To sustain the position that “operator” means “driver,” the majority relies heavily on the case of Witherstine v. Employers’ Liability Assurance Corp., 235 N. Y. 168, 139 N. E. 229, 28 A. L. R. 1298, where the word “operate” was construed as signifying a personal act in working the mechanism of the car. There was a strong dissent in the Witherstine case and later, in Snyder, et al. v. United States Mutual Ins. Co., 312 Ill. App. 337, 38 N. E. 2d 540, the Illinois court approved and followed the dissenting opinion in the Witherstine case, pointing out that one of the common and ordinary meanings of the word “operate” is “to direct or superintend the working of,” and since the defendant insurance company had prepared the policy and used the word it should be given the broadest meaning in favor of the plaintiff and not be interpreted in its strictest sense. The Snyder case involved a policy limitation as follows: ‘ ‘ This policy shall be effective only while the within described automobile is being operated by the called Assured . . . ” [italics supplied]. In that case the court also pointed out that the New York court had in a later case, Arcara v. Moresse, 258 N. Y. 211, 179 N. E. 389, followed the dissent in the Witherstine case and not the majority opinion. In other words, the principal case relied on by the majority in the case at bar has been overruled or seriously impaired. In the Arcara case, in speaking of the Witherstine case, the New York court said: “Insofar as the quoted words carry the implication, that to ‘operate’ a motor vehicle, one must himself manipulate the steering wheel, they cannot be regarded as conclusively determining the significance of the word ‘operation’ or the word ‘operating’.”

In the case of Trans-Continental Mutual Ins. Co. v. Harrison, 262 Ala. 373, 78 So. 2d 917, 51 A. L. R. 2d 917 (1955), the Snpreme Court of Alabama held that the word “operated” within the meaning of a restrictive endorsement on a policy of liability insurance is ambiguous under “the well established and recognized rule of construction pertinent to written instruments, particularly to policies of insurance, ’ ’ and that the ambiguity must be construed against the party who prepared the written contract.

In the New Jersey case of Neel v. Indemnity Ins. Co. of N. A., 122 N. J. L. 560, 6 A. 2d 722 (1939), it is said: “The question is whether the word ‘operating’ as used in the policy is to be limited to the manual control by the customer personally or is comprehensive of the act of the customer’s servant. Our study of the dictionary definitions and of legal usage as reflected in the books brings us to the belief that sound support may be found for the use of the word with either meaning; and this presents an ambiguity. Decisions which have construed statutes with a criminal or quasi criminal aspect rather uniformly limit the words ‘operator’ and ‘operating’ with respect to driving an automobile to the person exercising immediate physical control. So, too, some of the cases which construe contracts obviously based upon the language of such statutes. But here we have a contract drafted by the defendant insurer independent of the statute and in the preparation of which the plaintiff had no part.” The New Jersey court held that the insured was operating the automobile within the terms of the policy, even though the customer’s son was driving the vehicle and the customer was not in the car at the time of the accident.

In my opinion the great weight of authority is to the effect that the word “operate” in the sense that it was used in this contract, is ambiguous, and since Bed Top prepared the contract, such ambiguity should be construed more strongly in favor of Hunger, the other party to the contract. As was said in the Arcara case, in a quotation from an earlier opinion by Judge Cardozo (Grant v. Knepper, 245 N. Y. 158, 165, 156 N. E. 650, 652, 54 A. L. R. 845), he “ ‘did not abandon the car or its use when he surrendered to another the guidance of the wheel’; he was ‘still the director of the enterprise, still the custodian of the instrumentality confided to his keeping, still the master of the ship’ ”; he was still the operator.

For the reasons set out herein, I respectfully dissent.


author: Ed. F. McFaddin, Associate Justice.

text:
    Wood v. Haas. Wood v. Setliff.
    1710
    320 S. W. 2d 655
    Opinion delivered January 26, 1959.
    [Rehearing denied March 2, 1959]

      Brown & Compton, for appellant.

      Shackleford é Shackleford, for appellee.
    5-1709
    Opinion delivered January 26, 1959.
    [Rehearing denied March 2, 1959]

      Brown & Compton, for appellant.

      Shackleford <& Shackleford, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal stems from an action for breach of warranty. On April 7, 1951 appellant, J. B. Wood, for a consideration of $14,000.00, executed a General Warranty Deed to the appellees, J. Paul Setliff and Mary Dean Setliff, his wife. The deed described by metes and bounds a tract of land in the City of El Dorado fronting eighty feet on Northwest Avenue and having a depth of 220 feet. On April 5, 1956 (just a few days prior to five years from the date of the above deed) the Setliffs filed this action against Wood for breach of warranty.

The complaint alleged that a considerable portion of the property described in the deed from Wood to Setliff was at the time of the conveyance and at all times thereafter a public street or parkway; and that as to such portion there was a breach of the covenant of warranty. Damages were claimed in the sum of $7,650.00 and interest. The defendant’s amended and substituted answer admitted some of the allegations in the complaint and denied other allegations. Wood cross-complained against his grantor, Haas, for breach of the covenant of warranty in the deed under which Wood held.

On Wood’s motion, the entire proceedings were transferred to the Chancery Court, where Haas pleaded the 5-year statute of limitation against Wood’s cross-complaint. The Chancery Court tried all issues; and the results were: (1) a decree in favor of the Setliffs and against Wood for $7,650.00 damages, plus interest from January 6, 1958 (the date of the decree), plus $1,000.00 attorney’s fee; and (2) a decree sustaining Haas’ plea of limitation against Wood’s cross-complaint. From that decree two appeals have resulted. Case No. 1709 in this Court is the appeal by Wood in the Setliff matter; and in that case the Setliffs have cross-appealed. Case No. 1710 in this Court is the appeal by Wood in the Haas matter. We dispose of both appeals in this one opinion.

Case No. 1709 — Wood v. Setliff

I. Dedication. Wood now challenges the prior dedication of a portion of the 80x220-foot tract. He does not deny that the tract is in Block “A” of the Plat, but claims — here for the first time — that the parties who signed the dedication and placed the Plat of record in 1942 were not shown to have been the owners of Block “A.” This contention in this Court comes too late in view of the admissions contained in Wood’s answer. The tract of 80x220 feet, as described in the deed from Wood to the Setliffs, contained 17,600 square feet; but when the previously dedicated public streets and parkways are taken from the described 80x220-foot tract, there is left a tract only 50x100 feet or a total of 5,000 square feet; so the Setliffs did not receive what was described in the deed to them because the public streets and parkways had admittedly been dedicated.

II. Eviction. Wood claims there was no eviction of the Setliffs from the streets or parkways. It was proved that the City of El Dorado accepted the dedication of the public streets and parkways. Our cases hold that when title is in the sovereign the eviction is as of the date of the conveyance. Abbott v. Rowan, 33 Ark. 593; Selden v. Dudley E. Jones Co., 74 Ark. 348, 85 S. W. 778; Thompson v. Dildy, 227 Ark. 648, 300 S. W. 2d 270. In the case at bar the title to the public streets and parkways was in the City of El Dorado; and adverse possession could not be acquired against the City. City of Magnolia v. Burton, 213 Ark. 157, 209 S. W. 2d 684. The municipality is a creature of the State; and because of legislation as to the impossibility of adverse possession of streets {% 19-3831 Ark. Stats.) a municipality now occupies, insofar as the said streets and public parkways are concerned, the same status as the State occupies. Therefore, the warranty was breached as of the date of the conveyance from Wood to the Setliffs; and this action was brought within five years thereafter. See § 37-213 Ark. Stats.; Bird v. Smith, 8 Ark. 368; and Smiley v. Thomas, 220 Ark. 116, 246 S. W. 2d 419.

III. Damages. Witnesses testified, and the Court found, that the amount the Setliffs paid for the entire 80x220-foot tract was $14,000.00; and that the 50x100-foot tract (which was left after the streets and parkways were excluded) was worth only $7,750.00. So the Setliffs’ damage for actual loss of land was $6,250.00; and this portion of the decree was correct.

As to damages for required removal of a building, the situation is different. The evidence disclosed that when Wood conveyed to the Setliffs there was a “drive-in” building located on the 50xl00-foot tract as to which the title was good. Shortly thereafter, the Setliffs moved this “drive-in” building several feet and located it on what was and is a portion of the public street or parkway. In this suit, the Setliffs claim that it will cost them $1,400.00 to move the “drive-in” building back to the 50xl00-foot strip. They prayed and received judgment for $1,400.00 for such expense of removal. The Trial Court was in error in allowing such recovery. The Setliffs had constructive notice of the public street or parkway, and moved the “drive-in” to such location of their own volition. Other reasons exist for such refusal to award re-removal damages; but the factual situation as detailed is a sufficient answer. So, as to the $1,400.00 item, the decree must be reversed.

IV. Attorney’s Fee. The Setliffs claimed, and the Trial Court allowed them, $1,000.00 for attorney’s fee in bringing and prosecuting the present suit against Wood for breach of the covenant of warranty. The Trial Court was in error in allowing such fee. It is true that generally a grantee who pays a reasonable attorney’s fee, in unsuccessfully defending his title against a third party, may recover such attorney’s fee from his grantor in an action for breach of warranty. Brawley v. Copelin, 106 Ark. 256, 153 S. W. 101; Ark. Trust Co. v. Bates, 187 Ark. 331, 59 S. W. 2d 1025; and Bridwell v. Gruner, 212 Ark. 992, 209 S. W. 2d 441.

In the case at bar the Setliffs did not pay any attorney’s fee in defending their title against a third person. The Setliffs conceded that the title to the public streets and parkways was in the City of El Dorado. There has been no other litigation; and the Setliffs are here seeking to recover damages from Wood for breach of the covenant of warranty. They are not entitled to have Wood pay their attorney’s fee for establishing such a breach in this direct proceeding. O’Bar v. Hight, 169 Ark. 1008, 277 S. W. 533. The decree must be reversed insofar as it allowed $1,000.00 for attorney’s fee.

V. Interest. The Setliffs claimed that they were entitled to interest at 6% from 1951, the date of their deed. The Trial Court allowed the interest only from January 6, 1958, the date of the decree, and the Setliffs have cross-complained on this matter of interest. To sustain their cross-appeal the Setliffs, inter alia, quote (1) from the case of Quinn v. Lee Wilson & Co., 137 Ark. 69, 207 S. W. 211, wherein we said: “. . . where title is in the Government the covenant of warranty is deemed to he broken as soon as it is made . . and (2) from our case of Fox v. Pinson, 182 Ark. 936, 34 S. W. 2d 459, 71 A. L. R. 583, wherein we said: “. . . we think she should be entitled to recover under the facts in the record the sum of $11,950.00 and interest thereon, from May 21, 1925, the date of her constructive eviction . . From these cases, and others, appellees contend that interest runs from date of the constructive eviction, which was the date of the deed.

But the facts in the case at bar make it clearly inequitable for the Setliffs to recover any interest except from the date of the decree. We mention the following: (a) the Setliffs at all times enjoyed possession of the entire 80x220-foot tract; (b) there is no showing that they have paid out any amount to the City of El Dora-do for either lawful or unlawful use of the public streets or parkways; and (c) the amount of the Setliffs’ recovery for breach of warranty was for only a portion of the conveyed premises and the amount of the damages to be recovered was unliquidated until the entry of the decree. So the cross-complaint of the Setliffs, on the matter of interest, is without merit.

CONCLUSION

Prom the foregoing, it follows that the Chancery decree in the case of Wood v. Setliff (No. 1709 in this Court) is affirmed, except as to (a) the item of $1,400.00 for removal of the building; and (b) the item of $1,000.00 for attorney’s fee. As to these items the decree is reversed. This being an equity case, we adjudge the costs of the appeal against the appellant; and the cause of Wood v. Setliff is remanded to the Chancery Court to reinvest it with jurisdiction.

Case Ho. 1710 — Wood v. Haas, et al.

Setliff sued Wood for breach of warranty on April 5, 1956; and on May 28, 1956 Wood filed his cross-complaint against Haas, et al., as his grantors. Wood alleged that on February 2, 1948 Haas et al. conveyed to him by General Warranty Deed, and he sought damages from his grantors for breach of covenant of warranty (since the dedication to the City of El Dorado was in 1942). Haas et al. demurred to Wood’s complaint, saying, inter alia:

“If there has been a breach of the warranty contained in the Deed, dated February 2, 1948, said breach occurred at the time of the delivery of the said Deed, and same occurred more than five years prior to the filing of said cross-complaint, and any right of action thereunder is barred by the Statute of Limitation. ’ ’

The demurrer was sustained; the cross-complaint dismissed when Wood declined to plead further; and Wood has appealed. The Trial Court was correct in sustaining the demurrer. In the case of Wood v. Setliff (No. 1709 supra), we held that the rule of constructive eviction — when title was in the sovereign — applied when the title was in the City. So, when Haas et al. conveyed to Wood in 1948 there was instantly a breach of warranty. Wood’s cause of action against Haas et al. matured in 1948, and was governed by the 5-year statute of limitation (§ 37-213 Ark. Stats. and Bird v. Smith, 8 Ark. 368) and was barred by limitation when Wood cross-complained against Haas et al. in 1956. Limitation appeared on tbe face of tbe cross-complaint, and, therefore, conld be raised by demurrer. See Cullins v. Webb, 207 Ark. 407, 180 S. W. 2d 835.

The decree in Case No. 1710 is affirmed.

Johnson, J., not participating.

       In his answer Wood specifically admitted all of the following allegations in the Setliff complaint: “That Parkview Realty Corporation, Marguerite Trull McWilliams, W. H. Hanna and Mary Sue Hanna, his wife, and F. L. Dumas dedicated by Deed to the City of El Dorado, Arkansas, and to the public use therein forever, all the streets, pai’k area, travel ways and/or drive-arounds of the width, length and location as reflected by Plat attached thereto and recorded in Plat Book 2, Page 28 of the Record Books of Union County, Arkansas. That this Dedication Deed was dated May 11, 1942, and filed for record in the office of the Circuit Clerk of Union County, State of Arkansas, on May 11, 1942. That the said Dedication Deed was properly accepted by the City Council of El Dorado, Arkansas, on May 24th, 1942. That the Plat was later corrected as reflected by the Plat recorded in Plat Book 2, Page 33, of the Record Books of Union County, Arkansas. That a copy of said Dedication Deed and corrected Plat is attached hereto marked Exhibits B, C and D respectively and made a part hereof. In the Deed of Dedication and Plats hereinbefore referred to, included amongst the lands dedicated as streets, park area, travel ways and/or drive arounds, was an area around Block A and the said Block A was designated as business property; that this land for public use around said Block A was 70 feet on the West, 30 feet on the North and South and 50 feet on the East of the said Block A.”

       In 61 A.L.R. 10 there is an exhaustive annotation entitled, “Measure of damages for breach of covenants of title in conveyances or mortgages of real property”; and on page 174 and following of said annotation, this statement appears: “Of course, where the damages are assessed at the value of the land at the time of the eviction, the question of allowance of interest is of no importance, since it is clear that no interest is recoverable, the damages not being liquidated and capable of ascertainment prior to judgment.” And on page 180 of the same annotation, this statement appears: “Where the covenantee has had possession of the land under an instrument containing a covenant of seisin, he cannot, as part of the damage for breach of this covenant, recover interest for any period prior to his eviction, without proof that he had to account to the holder of the paramount title for mesne profits, and his recovery of interest is limited to such period of time for which he may show that he had to account for these profits.”


author: George Rose Smith, J.

text:
    Sparks Memorial Hospital v. Walton.
    5-1750
    320 S. W. 2d 102
    Opinion delivered January 26, 1959.

      Dobbs, Pryor & Dobbs, for appellant.

      Edward E. Bedwell & D. L. Grace, for appellee.
   George Rose Smith, J.

This is a claim filed by the appellee, Mary Walton, for workmen’s compensation. On July 11, 1956, the claimant, a housekeeper at the appellant’s hospital, strained her lower back while lifting a bed. There is an abundance of evidence to show that Mrs. Walton became disabled five days later and that her incapacity still existed when the full Commission heard the case in March, 1958. The Commission found that the claimant had sustained a compensable injury, that she was temporarily totally disabled from July 16, 1956, through March 17, 1958, and that she has not reached the end of her healing period. The record was left open for further proof of her disability after March 17, 1958.

In contending that the order is not supported by any substantial evidence the employer stresses the fact that the many physicians who have examined the claimant have not been able to arrive at a positive medical explanation for her condition. Despite an extensive exploratory operation and a succession of examinations and treatments the doctors have not discovered an objective cause for the severe pain that Mrs. Walton has suffered in her side, abdomen, back, and right leg.

The physicians’ uncertainty does not, in our opinion, compel the conclusion that the claim must be denied. Dr. Southard and Dr. Thompson attributed Mrs. Walton’s disability to the injury she suffered at the hospital. Their testimony is substantial evidence on which to rest the Commission’s finding of a causal connection between the injury and the incapacity. There is no reason for saying that the Commission, upon concluding that a compensable disability had existed for more than eighteen months, should nevertheless have withheld an award pending an exact determination of the medical cause for the claimant’s condition. See Larson, Workmen’s Compensation, § 79.51. The interim finding of a continuing, temporary, total disability is amply supported by the record.

The appellant questions a statement in the Commission’s formal opinion, to the effect that the medical findings “indicate to us [the commissioners] that claimant is disabled by reason of a nerve root compression in the low back.” We do not regard this passing observation as an attempt by the commissioners to make their own diagnosis without regard to the medical evidence. It merely suggests a possibility to be explored in the course of the further proceedings that the order contemplates. The essential part of the interim order is the finding, supported by substantial proof, that a disability exists and that it was caused by an accidental injury suffered in the course of the claimant’s employment.

The appellee asks that an additional attorney’s fee be allowed in connection with the appeal to this court. This request must be denied, as the statute does not authorize such an allowance. Only the Commission is empowered to award fees for legal services, Ark. Stats. 1947, § 81-1332, and the maximum fee was allowed in this case.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Rimmer v. Rimmer.
    5-1752
    320 S. W. 2d 92
    Opinion delivered January 26, 1959.

      Cecil G. Matthews, for appellant.

      Howell, Price & Worsham & F. J. Howell, Jr., for appellee.
   Paul Ward, Associate Justice.

Several issues are raised by this appeal, among which are the effect and extent of the notice of appeal and what constitutes contempt of court in a child maintenance proceeding.

General Fact Situation. Appellant, Carlos Rimmer, and appellee, Lillian Rimmer, were divorced by a decree of the Pulaski Chancery Court, 2nd Division, on August 8, 1956. At the time the parties had two children. One was an adult and the other, a son named Ralph, was 17 years of age. This litigation stems from efforts to require appellant to provide for the maintenance and education of Ralph. The only reference to Ralph in the divorce decree is the following: “That by agreement of the parties, adjudication of the custody of Ralph Rimmer is not to be considered herein. ’ ’ Following the divorce decree several orders were made at different times by the same court that rendered the decree. All of these orders, some of which were made after the presentation of testimony, either directly or indirectly bear upon the issues raised on this appeal.

On August 7, 1956 appellant was ordered to be present on August 13, 1956 and show cause why he should not be held in contempt “by reason of violation of its order as to attorney fee, court costs, and support for dependent heretofore rendered on the 14th day of May, 1956.” No hearing was held on the specified date.

On August 22, 1956, appellant was ordered to be present on September 4,1956 for the same purpose above mentioned. Again no hearing shown.

On September 10, 1957 the court entered an order which in substance states: Ralph is a student in A. & M. College at Monticello; appellant is able to contribute the sum of $85 per month for Ralph’s maintenance and education, and; the court retains jurisdiction over the parties regarding Ralph. Then appellant was ordered to make payment. It is not shown that appellant had notice of or was present when the above order was made.

Appellant filed a Motion on October 7, 1957, pointing out: The language in the original decree with reference to Ralph’s custody; that the order of September 10, 1957 was not based on any written pleading or petition by appellee; that he had no notice, except a copy of the said order; that neither party was now a resident of Pulaski County, and; that, therefore, the court had no jurisdiction and should revoke its former order.

On October 29,1957 a hearing was held on the above motion and also (as stated by the court) on the oral petition of appellee and Ralph for maintenance, at which all three parties were present and testified. The court over-ruled appellant’s motion to dismiss, and then found: Ralph has been attending A. & M. College since the first of September, 1957; appellant is gainfully employed and should be compelled to aid Ralph financially while in college; appellant has already paid $65 for said purpose; Ralph is a semi-skilled workman and is able to obtain employment at the school and contribute to his own support, and that Ralph’s grades indicate he should drop the course in Chemistry. In accordance with the above findings the court, under date of November 26, 1957, ordered appellant to contribute the sum of $12.50 each week for the support of Ralph while in school and to pay $140 due the school, and also ordered Ralph to secure employment at the school and to drop the course in Chemistry.

On January 29, 1958 the court entered an order, in which it was stated appellee orally requested a citation for appellant, requiring appellant to appear in court on February 4, 1958 and show cause why he should not be held in contempt of court for failure to comply with the order dated November 26, 1957, and provided for notice to be given appellant by registered mail.

The hearing on the above was apparently held on February 10, 1958, although the order based thereon was dated February 26, 1958. At the hearing all parties were again present and testimony was taken. The court found appellant in contempt of court for failure to comply with the order dated November 26, 1957. Appellant was ordered confined in jail, pending further orders, unless “on or before the 11th day of March, (he) pay all arrearage occurring under the order of November 26, 1957.”

Notice of Appeal. On March 10,1958 appellant gave notice of appeal “to the Supreme Court of Arkansas, from orders and judgments of this court rendered and entered herein on September 10, 1957, November 26, 1957, and February 11, 1958.”

Appellant urges five grounds for a reversal but, in view of the conclusion we hereafter reach, we deem it unnecessary to discuss separately and fully each of these points.

We do not agree with appellant that the trial court lacked jurisdiction to issue the order on November 26, 1957, which required him to make certain payments for the support and education of his son. In this connection it suffices to say appellant entered his appearance by testifying at the hearing. The court already had jurisdiction of the subject matter by virtue of the 1956 divorce proceedings which appellant himself instigated.

The support decree made on November 26, 1957, was a final order from which appellant could have appealed if he had chosen to do so. His notice of appeal given on March 10, 1958 was long after the expiration of the 30 days allowed for such notice under Act 555 of 1953, consequently the order cannot be challenged on this appeal.

However appellant’s notice of appeal from the contempt order made on February 10, 1958 was timely given, and gives us the right to review not only that order but all proceedings and hearings on which the order was founded. See Harrison v. Terry Dairy Products, Inc., 225 Ark. 953 (page 957), 287 S. W. 2d 473.

In the order of February 10, 1958, the trial court adjudged appellant in contempt of court for failure to comply with its order of November 26, 1957, and also ordered him to be confined in jail if he failed within 30 days to “pay all arrearage occurring under” said order.

We are fully cognizant of the inherent power of courts to punish, even by confinement, for willful disobedience to their orders. However a careful review of the pertinent parts of the record in this case leads us to conclude that the contempt order is not supported by the weight of the evidence. Our reasons for this conclusion are set out below.

In the recent case of Griffith v. Griffith, 225 Ark. 487, 283 S. W. 2d 340, the court, in this connection said: “Imprisonment for contempt for failure to pay alimony may be imposed only in those cases where it appears that the defendant was able to pay but willfully and stubbornly refused to do so.” (emphasis ours.) In the same case it was further stated: “Imprisonment in such a case is only justified on the ground of willful disobedience to the orders of the court; and, so soon as it is made to appear that the defendant is unable to comply with the orders of the court, he should be discharged.” Considering the case before us de novo, as we do, we feel the weight of the evidence fails to show that appellant willfully refused to comply with the court’s order. In fact the evidence indicates that appellant had substantially complied with the court’s order.

Appellant is a carpenter with no substantial means. It is undisputed that he was out of work when the order was made and had been for several weeks previously although he said he had sought employment. Ralph, who was 19 years old, and had previously been gainfully employed, entered school at Montieello A. & M. College in the fall of 1957. The record is that he made very poor grades in school, and that he had a car for his own personal use.

Against this background the court, on November 26, 1957, ordered appellant to pay $12.50 per week for Ralph’s maintenance and also to pay $140 due the college. The court at the same time ordered Ralph to drop the course in chemistry and to get a part time job at the school.

At the contempt hearing it was revealed that Ralph had not dropped the chemistry course and that he was not working although a job was available. It was further revealed that appellant had made three payments of $50 each for Ralph’s support, and he had made arrangements, satisfactory to the college, to pay the $140. It seems that the only deviation from a strict compliance with the court’s order was that the college only applied $42 per month (instead of $50) for Ralph’s support, and applied $8 per month to the retirement of the $140. It was explained by the college that it did not know the entire $50 per month was to go to Ralph, and it was not shown that appellant directed the application of payment.

Under the above facts and circumstances we think the weight of the evidence fails to sustain the finding that appellant willfully refused to obey the November order of the court. Therefore the order committing appellant to jail must be reversed.

We point out that nothing we have said relieves appellant from the duty of making the payments imposed by the November order of the trial court when he is able to do so. We leave it to the trial court to decide whether the three $8 payments above mentioned (applied to the college debt) are still a charge against appellant for Ralph’s support and maintenance.

Therefore the order holding appellant in contempt is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.