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

text:
    Gary McJUNKIN TRUCKING COMPANY et al v. Sherri Jean BYARS
    75-61
    525 S.W. 2d 662
    Opinion delivered June 30, 1975
    [Rehearing denied September 2, 1975.]

      Wright, Lindsey & Jennings, for appellants.

      Hubert L. Burch, for Myrtha Lynn Cox, Mother and Custodian of Gary Lynn Byars, Jr., and William Edward Byars, co-appellants.

      Leonard Creenhaw, for appellee.
   Conley Byrd, Justice.

At issue in this Workmen’s Compensation litigation are the rights and priorities between the decedent’s widow and his two dependent children by a prior marriage to the compensation benefits. The record shows that at the time of the death of Gary L. Byars he had an average weekly wage of $160. He left surviving him his widow, the appellee Sherri Jean Byars, age 21 and two children by a prior marriage, William Edward Byars, born August 27, 1968 and Gary Lynn Byars, Jr., born October 16, 1970. The Commission applied a “pro rata” method of appropriating the maximum $63 benefit by awarding the widow $33.92 per week and awarding to the mother of the children, co-appellant Myrtha Lynn Cox, for the use and benefit of the children the sum of $29.08 per week. The Commission also denied the widow’s application for a lump sum settlement. The circuit court reversed the Commission and directed that the widow was entitled to 35% of the decedent’s average weekly wage or $56.00 per week and that the award to the children should be reduced to $7.00 per week. The circuit court also held that the Commission abused its discretion in denying the widow’s application for a lump sum award. Both the employer and Myrtha Lynn Cox have appealed.

The Workmen’s Compensation Act (Int. Meas. 1948 No. 4) with respect to lump sum settlements, Ark. Stat. Ann. § 81-1319 (k) (Repl. 1960), provides:

“Whenever the Commission determines that it is for the best interest of the parties entitled to compensation . . . the liability of the employer for compensation may be discharged by the payment of a lump sum equal to the present value of all future payments of compensation computed at four (4%) per centum discount, compounded annually. ...”

In view of the tender age of the two minor children by the previous marriage and the fact that the widow was only 21 at the time of the hearing, we cannot say that the Commission abused its discretion in denying the lump sum award.

With respect to the amount of compensation to be paid to the beneficiaries, The Workmen’s Compensation Act, Ark. Stat. Ann. § 81-1315 (Repl. 1960 [Int. Meas. 1948 No. 4 § 15]) provides:

“(c) Subject to the limitations as set out in section 10 [§ 81-1310] of this act, compensation for the death of an employee shall be paid to those persons who are wholly dependent upon him in the following percentage of the average weekly wage of the employee, and in the following order of preference.
First. To the widow if there is no child, thirty-five (35) per centum, and such compensation shall be paid until her death or remarriage.
To the widower if there is no child, thirty-five (35) per centum, and such compensation shall be paid during the continuance of his incapacity or until remarriage.
Second. To the widow or widower if there is a child, the compensation payable under the First above, and fifteen (15) per centum on account of each child.
Third. To one child, if there is no widow or widower, fifty (50) per centum. If more than one child, and there is no widow or widower, fifteen (15) per centum for each child, and in addition thereto, thirty-five (35) per centum to the children as a class, to be divided equally among them.
Fourth. To the parents, twenty-five (25) per centum each.
Fifth. To brothers, sisters, grandchildren and grandparents, fifteen (15%) per centum each.
(d) . ..
(e) Apportionment of benefits. Where, because of the limitation in subsection (c) of this section, a person or class of persons cannot receive the percentage of compensation specified as payable to or on account of such persons or class, there shall be available to such person or class that proportion of such percentage as when added to the total percentage payable to all persons having priority or preference, will not exceed a total of sixty-five (65%) per centum, which proportion shall be paid (1) to such person, or (2) to such class in equal shares unless the Commission determines otherwise in accordance with the provisions of subdivision (f) of this section.”

When this Workmen’s Compensation claim arose, Section 10 of The Workmen’s Compensation Act, (Ark. Stat. Ann. § 81-1310 (b) [Supp. 1973]), had been amended to read:

“Compensation payable to the dependents for the death of an employee shall not exceed sixty-five (65) per centum of the employee’s average weekly wage at the time of the accident, and shall not be greater than sixty-three dollars ($63) per week. ...”

A look at subsection (c), supra, shows that the First preference is for the widow only “if there is no child.” Clearly the widow here does not fit into the First classification of preference because here there are two children involved. The Second classification reads “Second, to the widow or widower if there is a child ... .” A widow with a child then, under the plain words of the statute, clearly falls into the Second classification. The statute continues “ . . . the compensation payable under the First above ... . ” Here the widow is given the thirty-five (35) percent compensation as provided in the First classification. She is not given the priority of the First classification. She is given only the thirty-five (35) percent compensation. Continuing with the statute “ . . . and fifteen (15) per centum on account of each child.” Note that the statute uses the word “and”. It does not use other words that would show a preference of the widow over the children. It places the widow and the children upon equal footing. They are both given the same priority of classification. The right of one is not superior to the right of the other. However, the widow and the children are given priority over other claimants in the Third, Fourth and Fifth classifications.

Since the widow and the deceased’s dependent children both belong to the “Second” order of preference then subsection (e) supra, provides the method for apportioning the compensation benefits when the total allowances under subsection (c), supra, exceed the maximum disability benefits payable under Section 10, supra.

To avoid the apportionment of any benefits payable to her, the widow relies upon the construction given to act 319 of 1939, also known as “The Workmen’s Compensation Law” in Gunnells v. Gunnells, 203 Ark. 632, 158 S.W. 2d 54 (1942). In that case the deceased employee was survived by a widow and five minor children. The facts do not state definitely but apparently the deceased’s children were also the children of the widow. The stipulated facts showed that decedent’s average weekly wage was $34.61 and that 65% thereof would exceed the $20.00 maximum then allowed by The Workmen’s Compensation law. In holding against the contentions of the appellant as next friend of the children and in favor of the widow, we said:

“The appellants contend that the commission and the lower court erred in holding that there were no payments due to the minor children in their own right, and also in holding that the amount payable to the widow should not be reduced to her pro rata part of the total payment due as provided in § 15 (e). We are unable to agree with these contentions. While this act is not as clear and definite as it might be, our construction of the language in § 15 and all subdivisions thereof coincides with the holding of the commission and the lower court. Under this construction the right of a widow to receive 35 per cent of the average weekly wages of her deceased husband, provided that sum does not exceed $20 per week, is prior to all other claims. In addition to the money payable to a widow in her own right, where r,he qualifies under paragraphs (1) and (3) of subsection (c) she is entitled to receive additional compensation of 10 per cent of the average weekly wages for each minor child under 18 years of age, provided the total payment shall not exceed 65 per cent of the average weekly wages of the deceased, and provided the payment shall in no event exceed $20 per week.
In view of our interpretation of the pertinent language of this act. we have concluded that the appellee widow would have been entitled not only to 35 per cent of the average weekly wages of her deceased husband, but also to the additional 30 per cent thereof claimed for the children, had said 65 per cent of the average weekly wages of the deceased not exceeded the maximum allowance of $20 per week. Since 65 per cent of the average weekly wages of her deceased husband at the time of his fatal injury exceeded $20 per week, she is entitled to the full $20 per week.”

While we must admit that our present Section 15 (c) is similar to the provisions of Act 319 of 1939, that was involved in the Gunnells case, supra, there is still some difference in the language of the two Acts. For instance we find it impossible to construe the present Act as permitting a widow to qualify under both the First and second priorities of subsection (c). In fact it would appear that if the drafters of subsection (c) had intended for the widow to take Frst priority over all other claimants, then there would have been no need to put her in the Second order of preference nor any reason to again mention the widow’s rights.

Furthermore, should we consider our present subsection (c) to be identical with the provisions of Act 319 of 1939, we would overrule the Gunnells case. Under that decision, a teenage widow could cut out all Workmen’s Compensation benefits to a whole houseful of minor children by a previous marriage any time the deceased employee’s average weekly wage exceeded $200. We cannot believe that the intent of Initiated Measure 1948, No. 4 was to disenfranchise all dependent children by a prior marriage in favor of a second wife.

Reversed and remanded with directions to reinstate the Commission’s order.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I must disssent because the changes in the law between the decision in Gunnells v. Gunnells, 203 Ark. 632, 158 S.W. 2d 54 and the death of Byars is insignificant insofar as priorities and apportionment are concerned. The decision here is contrary to the decision in Gunnells and I do not see how they can be distinguished. The record was not extensively treated in Gunnells because the issues were stipulated, but the result is certain. The law was changed with reference to Ark. Stat. Ann. § 81-1315 at least once, since Gunnells was decided, by Initiated Act. Ark. Stat. Ann. § 81-1310 to which it was related by Initiated Act No. 4 of 1948, was changed once by legislative act in the interim. A reenactment of the same language would not change its construction. In view of the fact that most of the changes have been toward a liberalization of benefits, we should not say that the language of the 1939 act was inadvertently included or that it was intended to change the construction given it in Gunnells.

If I felt that we were free to reconstrue the statutes, I could well agree with the result reached by the majority. But the language was construed by a court of rather eminent jurists and nothing has changed in the interim other than the personnel of the court.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Bennie S. ROGERS v. John C. WATKINS et ux
    75-71
    525 S.W. 2d 665
    Opinion delivered June 30, 1975

      Douglas Bradley & Jon R. Coleman, for appellant.

      Cathey, Brown, Goodwin & Hamilton & H. T. Moore, for appellees.
   Frank Holt, Justice.

This appeal results from the court’s order granting appellees’ motion to strike appellant’s late answer. Appellees, John C. Watkins and his wife, brought this action to recover for damages he suffered in an automobile accident involving a car driven by Judy Rogers. On August 30, 1973, appellees filed suit against seventeen year old Judy, her mother and appellant, who is her father. Judy was driving by authority of a drivers license which was issued on an application signed by the appellant and her mother pursuant to the provisions of Ark. Stat. Ann. § 75-315 (Repl. 1957). The act provides and appellees alleged that Judy’s negligence, she being under eighteen years of age, is imputed to the person w'ho signs her driver’s application'and shall be jointly and severally liable with the minor for any damages caused by her negligence or misconduct in the operation of a motor vehicle upon a highway. Judy lives with her divorced mother. At the time of the accident, Judy was driving a car apparently owned by her mother. All of the parties were served with summons on September 1, 1973. Appellant took his summons to his ex-wife’s insurance agent and was told by him it had “first coverage.” Appellant was led to believe that an answer would be filed in his behalf. He left the suit papers with this agent. He then informed his own insurance agent of his action. His ex-wife’s insurer filed a timely answer for Judy and her mother. It failed to file an answer for appellant or notify him of the inaction. Neither did his own insurer take any action.

On March 4, 1974, or a few days before the case was set for trial, appellees took a non-suit against Judy and her mother and a default judgment against appellant for $110,-000. Appellant was unaware that an answer had not been filed for him and he had no knowledge of a default judgment until a few days later. On March 14, 1974, appellant filed a motion to set aside the default judgment. On March 20, he filed an answer in which he asserted that his liability, if any, “is derivative from Judy S. Rogers and in the absence of a cause of action against Judy S. Rogers, no action can be maintained against this defendant.” On March 21, appellees filed a motion to strike his answer. On March 28, the court set aside the default judgment. On November 1, 1974, the court granted appellees’ motion to strike appellant’s answer. However, appellant was allowed “the right to cross-examine the plaintiffs’ witnesses on the amount of damages and also to offer proof in mitigation of plaintiffs’ damages.” Thereafter the court granted appellant’s request to make a proffer of proof as to a meritorious defense, unavoidable casualty, excusable neglect and other just cause. The court then reaffirmed its order striking appellant’s answer. Hence, comes this appeal.

Appellant argues, inter alia, that his daughter’s negligence, if any, is imputed to him by statute and, therefore being derivative, the answer and the asserted defenses by Judy inured to his benefit even though he failed to answer or appear. In other words, any liability on his part is solely dependent upon and common to Judy’s liability. Consequently, should she be exonerated on the basis of her answer and asserted defenses, he necessarily would be relieved of any liability.

It is well established that the answer of a codefendant inures to the benefit of a defaulting defendant where there exists, as here, a common defense as to both of them. Burt v. Henderson, 152 Ark. 547, 238 S.W. 626 (1922). See also Coddington v. Brown, 123 Ark. 486, 185 S.W. 809 (1916). Simpson & Webb Furniture Co. v. Moore, 94 Ark. 347, 126 S.W. 1074 (1910); Fletcher v. Bank of Lonoke, 71 Ark. 1, 69 S.W. 580 (1902); and McDonald v. Smith Adm’r., 24 Ark. 614 (1865). This is in accord with the general rule which is stated in 71 C.J.S. Pleading § 117 d:

... [a] defense which goes to the merits of the whole case as tending to show no cause of action in plaintiff may, when pleaded by one defendant, inure to the benefit of his codefendants. . . .

See also Gabbard et al v. Gabbard et al, 294 Ky. 572, 172 S.W. 2d 214 (1943); and City of Ravenna v. Griffin, 282 Ky. 581, 139 S.W. 2d 74 (1940). In the case at bar, the appellees alleged that their damages were the result of the negligent driving of a motor vehicle by Judy and that her negligence was imputed to the appellant, her father, and her mother. Since the appellant’s defense to appellees’ allegations as specifically raised in his answer was common to Judy’s, we are of the view Judy’s defense inured to appellant’s benefit although he did not file a timely answer or appear. Consequently, the trial court erred in striking appellant’s answer.

We deem it unnecessary to discuss appellant’s contention that his late answer was the result of unavoidable casualty, excusable neglect or other just cause.

Reversed and remanded.


author: Carleton Harris, Chief Justice.

text:
    Richard P. HALVORSON v. Myles TROUT and Helen TROUT
    75-43
    527 S.W. 2d 573
    Opinion delivered July 7, 1975
    [Rehearing denied September 8, 1975.]
    Harper, Young & Smith, for appellant.

      Franklin Wilder, for appellees.
   Carleton Harris, Chief Justice.

Appellant, Richard P. Halvorson, instituted suit in the Sebastian County Chancery Court on August 24, 1973, against Myles and Helen Trout, appellees herein, for the sum of $15,000 which had been paid by appellant to appellees on July 31, 1973, Halvorson alleging that said sum should be returned to him and that appellees had refused to do so. The facts upon which the cause of action was based commenced in April or May of 1973, wherein appellant was attempting to purchase from the Trouts a meat packing business known as Border City Packing Company of Fort Smith. Appellees, who had been longtime owners of the concern, advertised in various newspapers and trade journals their desire to sell the business, and appellant, at that time a resident of Oklahoma City, saw an advertisement and responded, making a trip to Fort Smith to talk with the Trouts and view the operation. After negotiations back and forth, appellees agreed to sell the business for the sum of $236,700, a down payment to be made in the amount of $25,000. On July 31, 1973, Halvorson and his wife came to Fort Smith and met with the Trouts in the office of Robert Westphal, accountant for the Border City Packing Company. Halvorson had been unable to raise the entire $25,000 and informed the Trouts that he could only pay $15,000 at that time. It was agreed that the $15,000 would be accepted and Halvorson would be given thirty days in which to acquire the $10,000 balance. A document was typed setting out the obligations of the parties and interlineations were inserted by hand relative to matters that arose during the discussion. Mr. and Mrs. Halvorson and Mr. and Mrs. Trout all initialed the instrument. The effective date is shown as August 1, 1973. At the same time, Halvorson gave his check in the amount of $15,000 to the Trouts with a notation “Earnest money on Agreement dated July 31, 1973 Contract to follow.” Thereafter, Halvorson and his wife made a trip, and Halvorson apparently returned to Fort Smith on August 8. Events' between that date and August 13 will be hereafter discussed, but on the 13th, Halvorson approached the Trouts, and according to his subsequent testimony, told them that he could not raise the additional $10,000 and accordingly wanted his $15,000 back. Mrs. Trout said that he simply .came into the office and demanded his money back, which was refused. Thereafter, suit was instituted. On trial, the chancellor found that the agreement approved and initialed by the parties on July 31, 1973, constituted a binding and executed contract between the parties; that the check for $15,000 must be treated as designated on the face of the check as being “Earnest money”, consideration for such contract, and that the prayer for the return of the $15,000 should be denied. From the decree so entered, appellant brings this appeal. For reversal, three points are asserted which we proceed to discuss in the order listed.

“I.

THE FINDING OF THE CHANCELLOR THAT THE JULY 31, 1973 AGREEMENT CONSTITUTED A BINDING CONTRACT WAS NOT BASED UPON THE PREPONDERANCE OF THE EVIDENCE AS SUBMITTED AT THE TRIAL.”

Only four persons testified, Mr. and Mrs. Halvorson and Mr. and Mrs. Trout. It is the contention of appellant that the agreement of July 31 did not constitute a contract of sale and the $15,000 should accordingly have been ordered returned. •He said that at the meeting in Westphal’s office, Mrs. Trout brought along the typed page setting out certain items involved but that there were other factors also involved, which were not included on this page. The witness stated that he did not agree to give a $25,000 down payment unless he was •able to secure a loan for the'additional $10,000; that various interlineations were written on the page by Robert Westphal, and that he (Halvorson) asked for assurance that there would be at least $12,600 in accounts receivable and inventory values and that Mrs. Trout responded there would be far more than that; however, this item was not mentioned on the written document. Mr. Halvorson said the inclusion of this item was essential because he would otherwise have no operating capital. His explanation for approving the effective date of the instrument (August 1, 1973) was that it was explained to him by Westphal that it was normal procedure to use the fiscal closing of the corporation as a turnover date. Mr. Halvorson stated that a prepared contract was presented to him on August 9 after he returned from vacation and was given to him by either Mrs. Trout or Westphal for a signature, but that he did not sign because he had been unable to secure the additional $10,000, and also because he found that there was no operating capital within the corporation; that the figures reflecting this fact became available about the middle of the afternoon on August 8. He said that he did not exercise any authority over employees of Border City Packing Company after his return from vacation; that he was introduced to the employees of Border City as the new manager; that he did not consider himself as the owner of the company, though he did admit that he was given keys to the plant. He stated that he made one trip to the post office to get mail, and that he was taken to the stockyard by Mr. Trout and introduced to various commission companies. Halvorson said that he did not see the July 31 trial balance sheet until August 13 and a projection sheet that he had prepared was drawn up on the basis of past information.

Mrs. Halvorson testified that the July 31 paper was just an agreement on some things that had been discussed, and that a contract was to be subsequently prepared; that this last discussion took place on the sidewalk outside of Mr. VVestphal’s office between her husband and the Trouts.

The difficulty with appellant’s arguments is that most of his contentions involve questions of fact. The Trouts insisted that the agreement of July 31 was an agreement for Halvorson to purchase the business. Mrs. Trout said that Halvorson stated that he had come prepared to pay her $15,000 that day; that all parties went over the agreement; that certain changes were made at that time; that it was read and discussed by everybody before it was initialed; that after this was done, Mrs. Halvorson remarked to her that she knew Mrs. Trout was glad “this is over; this has been trying on you I know, but I want you to know one thing —- that the Halvorsons will make a go of this business.” Mrs. Trout testified that she introduced Halvorson to most of the employees herself as their new “boss” and not a “manager”; that she gave Halvorson her set of keys to “everything”, which included the safe. This occurred, according to the witness, on August 9. She said that he worked in the office, figured tickets, waited on customers, was introduced to the customers and suppliers, and took in money. Mrs. Trout denied making any representations to Halvorson relative to accounts receivable or operating capital.

Mr. Trout testified that Halvorson was the “boss” of the business after July 31, and that he (Trout) took Halvorson over to the stockyards, introduced him to commission firms, attended auctions, explained how they'were operated, and told the various commission firms that appellant was the new owner of Border City Packing Company.

As previously stated, it is apparent that the testimony is in conflict and, this being true, it was, of course, up to the chancellor to pass on the facts. Since he had the advantage of seeing and hearing these witnesses, we certainly cannot, from this record, say that Halvorson gave the correct version, and that the Trouts were prevaricating. Aside from that, however, there are certain facts which support the view of appellees. For instance, Mrs. Halvorson testified that as soon as the conversation in Westphal’s office was over, and after the July 31 document was discussed, approved, and initialed, she went to Bridges Realty Company in Fort Smith and made an earnest money payment on a house in the amount of $1,000.

It is difficult to understand the Halvorsons’ taking this action unless they considered that the business had been purchased.

The agreement itself seems to be rather thorough and is but little different from the proposed “contract of sale” (never executed), which was offered into evidence. A copy of the July 31 instrument is being placed in this opinion and a close comparison of the provisions therein and the provisions of the unexecuted contract definitely reflects that principal or major agreements, the “meat in the coconut” so to speak, are practically identical. A check of these provisions reveals that approximately 18 appearing in the July 31 paper appear likewise in the unexecuted “contract,” and only one is not mentioned, and it is not of any great moment. The proposed “contract” appears to only reflect two provisions that are not mentioned in the July 31 instrument and one of these is clearly an expansion, or explanation, of items in the first mentioned instrument. The other term that is different provides that the Trouts retain an express lien on the property until all notes to the First National Bank are paid in full, while the July 31 provision was to the effect that the Trouts would hold a second mortgage on the property until all notes at the bank had been paid. The price of the property, down payment, amount of monthly payments, length of payment period, provision for paying insurance and taxes, keeping the building in good repair, the employment of the Trouts, taking up the notes at First National Bank and having Mr. Trout’s name removed from the note, and, as stated, a total of approximately 18 different items are set out definitely. Probably the most pertinent item is “effective date — August 1, 1973”. This is the date also mentioned in the unexecuted contract. Appellant’s strongest argument is that there is a notation written in the July 31 instrument, “Will be a contract of sale” and a notation on the check given by Halvorson, “Earnest money on agreement dated July 31, 1973 Contract to follow.” Appellant says that at the most, the July 31 instrument was a contract to enter into a contract. Viewing the two instruments together, we cannot say the chancellor erred in his finding and it would appear that the purpose of having an attorney prepare a formal agreement was to have the agreement placed in “legal form” and that there was no real significance in this being done. This seems logical because both instruments use the date of August 1, 1973 as the “effective date”, i.e., the date of sale or transfer of the property. That it was purely a matter of preparing a formal instrument embracing the terms of the July 31 document, is also given credence by the fact that Halvorson left town immediately after approving that paper, and certainly would have had no opportunity to execute the formal contract of sale by August 1.

Of course, it would have been quite simple for appellant to have placed in the July 31 instrument a proviso that it was null and void if he were unable to obtain the additional $10,-000, ad it would have been just as simple to insert a stipulation or clause that there would be $12,600 in accounts receivable and inventory values.

Another fact should be mentioned. Mr. Westphal was not called to testify by either side, and it would certainly seem that this person, who was present during all the negotiations of July 31, would have been an important witness. Of course, Westphal could have been called by either side, but since appellant had the burden of proof, and it would appear that Westphal was the man who had the contract prepared, it would appear that appellant was the proper person to subpoena this witness. We hold that the instrument of July 31, 1973 was a valid and binding contract within itself.

“II.

UNDER THE THEORY OF UNJUST ENRICHMENT APPELLANT WAS ENTITLED TO RETURN OF HIS $15,000.00”

We cannot agree. Having held that the contract was legal and valid, it follows that the doctrine of unjust enrichment does not apply. In Whitley v. Irwin, 250 Ark. 543, 465 S.W.2d 906, we said:

“The maxim or doctrine appellees rely upon is that no one shall be allowed to unjustly enrich himself at the expense of another. The word ‘unjustly’ as so used means ‘unlawfully.’ *** One is not unjustly enriched by receipt of that to which he is legally entitled. *** No recovery of money received can be based upon unjust enrichment when the recipient can show a legal or equitable ground for keeping it.”

“III.

THE CHANCELLOR IGNORED ACCEPTED AND ESTABLISHED EQUITY PRINCIPLES IN DENYING APPELLANT’S PRAYER FOR RECOVERY OF THE $15,-000.00 HE PAID TO APPELLEES UPON FAILURE OF THEIR NEGOTIATIONS.

Appellant argues that whether the July 31 “memorandum is construed as a contract or not,” the situation presented by the evidence established that the $15,000 could only be characterized as a forfeiture; that the granting of relief from forfeitures and penalties is a function of courts of equity and 27 Am.Jur.2d, Equity, § 77, pages 599-600, is cited as follows:

“The principle is established that equity, by reason of its general jurisdiction over forfeitures and penalties, can grant relief from their consequences. Indeed, the granting of such relief has always been a special function of courts of equity. A forfeiture for breach of a covenant or condition in a contract is a recognized manner for the interposition and granting of relief by a court of equity. Equity relieves against forfeiture where no real fault is committed or where the breach is induced or waived by conduct, as well as where by accident or mistake there has been a breach of some collateral covenant, such as to repair or insure, and where a lessor may be placed in the same position as if the breach did not occur by an award of damages or otherwise.”

It is argued that Mr. Halvorson did not have the ability to make the $10,000 payment and thus, should not be penalized. It is contended that there is no proof “except for general statements” that the Trouts suffered any damage as a result of appellant’s failure to meet the terms of what they allege to be a binding contract, and that to allow them to keep the $15,000 defies equitable principles. It is true that no figure from which damages could definitely be ascertained was mentioned; however, damages suffered in this type of case ordinarily of necessity cannot be very definite. Mrs. Trout testified that she had advertised the business for sale for at least two months before Mr. Halvorson answered the advertisement, aad it appears that the parties negotiated back and forth on the price from the last of April until the last of July, or a total of three months. The witness stated that she and her husband advertised extensively in different papers and magazines in California, Kansas, Missouri, Texas and Oklahoma, estimating that these advertisements had cost somewhere between $2,000 and $5,000. She said that another party named Baker had shown an interest in purchasing the property, and that she had been out a great deal of time in the negotiations with Halvorson. Mr. Trout could not pinpoint any losses but he felt that the business could have been affected by the sale, apparently meaning the sale to Halvorson and the return to Trout could have caused a loss of public confidence.

The conditions cited in 27 Am.Jur.2d, supra, do not appear applicable to the circumstances of this case, heretofore set out.

The court specifically mentioned payment of “earnest money” in its decree, and the check containing that notation appears to have been the primary reason for the finding that appellant was not entitled to return of this amount. Having found that the contract was complete on July 31, the finding concerning the earnest money was entirely proper, Bouvier’s Law Dictionary (Third Revision), Volume 1, p. 965 mentions a generally accepted definition of earnest money as follows:

“Specifically, in law, a part of the price of goods or service bargained for, which is paid at the time of the bargain to evidence the fact that the negotiation has ended in an actual contract. Hence it is said to bind the bargain. ”

The language in the Mississippi case of Vanlandingham v. Jenkins, 43 So. 2d 578, is enlightening as to the difference between a penalty and liquidated damages. The Supreme Court of Mississippi stated:

“This brings us to a consideration of whether earnest money is a penalty or liquidated damages. As early as 1847, which is now more than 100 years ago, this Court set this question at rest, holding earnest money to be liquidated damages, and in its opinion the Court there said, in Sims v. Hutchins, 8 Smedes & M. 328, 47 Am. Dec. 90: ‘The only grounds for such a recovery are the unwillingness or inability of the vendor to convey according to contract, or a mutual abandonment of the contract.’ ”

In the Illinois case of Summers v. Hedenberg, 198 Ill. App. 460, the court said:

“The contract shows that the purchaser parted with the earnest money for the benefit of the seller; that is, he paid it as a part of the purchase money. ‘Said purchaser has paid $1,000 as earnest money, to be applied on such purchase when consummated.’ It makes no difference whether the earnest money was delivered to the seller or by agreement is held by a third party. In case of defects in title which are not cured, at purchaser’s option the contract becomes void and said earnest money should be returned. If the purchaser fails to perform, then at seller’s option the earnest money should be retained by the vendor as liquidated damages.”

It appears that earnest money is properly considered as liquidated damages and the trial court thus acted properly.

In concluding, considering the fact that the trial court personally heard these witnesses testify, together with other circumstances mentioned herein, we cannot say that the chancellor’s findings were clearly against the preponderance of the evidence.

Affirmed.

Jones, J. dissents.'

       The record does not reflect who typed the document, but the testimony reflected that the written interlineations were written by Westphal.

       Halvorson had earlier brought a friend with him to Fort Smith and they had gone over the books and records, after which Halvorson projected a first year budget for the business.

      Mrs. Halvorson had accompanied her husband to Fort Smith on other occasions and had looked at houses.

      After it developed that Halvorson was not going to operate Border City Packing Company, the realty company returned this money to the Halvorsons.

      “That $126,000 of this purchase price is in payment of the real estate to be conveyed by Helen Trout personally to second parties after this contract is paid in full, and pursuant to the Agreements herein stated, and that there is an additional amount of $18,700.00 due on the purchase price together with this $126,000.00, which is to draw 10% interest per annum over a 10 year period from date. .”

      Of course, the First National Bank had already made its loan to Border City and had either a mortgage or lien which, until the indebtedness due it was paid, would have been superior to any lien or mortgage of the Trouts.

      It is not shown who had this “contract of sale” prepared. The Trouts denied it, and Halvorson denied it, which would only leave Westphal.


author: John A. Fogleman, Justice.

text:
    Ora GIRLEY v. Warren WOOD, Judge et al
    75-58
    525 S.W. 2d 454
    Opinion delivered July 7, 1975

      Griffin J. Stockley and Herman W. Eubanks, for petitioner.

      Jack Sims, for respondents.
   John A. Fogleman, Justice.

The only question involved in this petition for mandamus is whether we should require the circuit court to hold a more extensive hearing than it held on the right of Twin City Motors, Inc. to an order of delivery in a replevin action against petitioner. There is no question about the adequacy of notice and a hearing was held before the order was issued. Petitioner contends that when the suit is actually a possessory action by the assignee of the seller against the buyer of personal property based upon an alleged default by the buyer on an installment payment contract, the buyer has the right to introduce evidence to show that the transaction was actually usurious, even though it did not appear to be upon its face. We hold that such an extensive hearing is not so clearly mandated by Ark. Stat. Ann. § 34-2119, et seq (Supp. 1973) or by due process requirements of the Fourteenth Amendment to the United States Constitution that we can say that the trial judge’s action in limiting the hearing as he did is so clearly erroneous that we can correct his action by mandamus.

The transaction involved a 1969 Buick automobile sold on July 10, 1974, by Capitol City Motors, Inc. to petitioner. The conditional sale contract was assigned by the seller to Twin City Motors, Inc. The replevin action was filed November 22, 1974. Twin City Motors, as plaintiff, sought an order of delivery, alleging that petitioner had defaulted in making payments, so that the delinquency amounted to $199.26. Petitioner’s objection and answer asserted the defense of usury. A counterclaim in the same pleading alleges violation of truth-in-lending laws. Petitioner’s allegations simply stated the conclusion that the contract was usurious. Hearing on the matter was held under Ark. Stat. Ann. § 34-2119 et seq (Supp. 1973) on January 8, 1975, notice having been given under § 34-2123.

When petitioner’s attorney sought to cross-examine the plaintiff’s witness to show that the contract of sale was tainted with usury which did not appear upon the face of the contract, the circuit judge sustained an objection and refused to permit petitioner’s attorney to make a proffer of evidence that he expected to adduce. The circuit judge authorized the order of delivery, or writ of replevin, upon the making of the statutory bond by the plaintiff, but provided that petitioner be accorded the right to furnish a redelivery bond. By this proceeding petitioner asks us to direct the circuit court to vacate the order of delivery and to grant petitioner a full evidentiary hearing by permitting her to present evidence to support her affirmative defense of usury.

At the inception of the hearing, the circuit judge had stated that the burden of showing usury was on petitioner and that the hearing was not designed to.cover such factual questions in depth, so he would consider the question whether the contract was usurious on its face, but that the hearing would not be the same complete and exhaustive determination of issues to be eventually made by the fact finder on trial of the case. Thereupon, the plaintiff introduced the contract and evidence of default. The question presented here arose when petitioner’s attorney sought to show that there was usury by reason of a credit life insurance provision that in case of death of petitioner before the debt was paid, plaintiff would receive from the proceeds of the insurance, in addition to the balance due upon the indebtedness at that time, a $50 item to be withheld from any remainder payable to petitioner’s estate. There is no provision in the contract which states to whom the $50 is to be paid in the event petitioner should die before the debt is fully paid and the insurance proceeds should exceed the balance due. insofar as the contract reflects, it might be paid to Capitol City Motors, to Twin City Motors, or retained by the insurance company.

It is the position of petitioner that the quartet of decisions by the United States Supreme Court relating to prejudgment seizures beginning June 9, 1969, hold that due process requirements mandate a full preseizure hearing on all defenses asserted by a defendant from whom possession of property would be taken by pretrial process. Our statute directs a hearing but the only specific requirement is that the plaintiff make a prima facie showing that he has the right to immediate possession of the property involved. Ark. Stat. Ann. § 34-2121 (Supp. 1973). There can be no question about the sufficiency of the evidence to meet this requirement in this case. We must then examine the authorities relied upon by petitioner to determine whether constitutional due process so clearly requires that petitioner be permitted to make a showing of usury not apparent on the face of the transaction, when there is no allegation of facts constituting usury, that we should grant the writ.

The first case is Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969). As clearly pointed out in the majority opinion, a factual situation requiring special protection of a creditor’s interest in the property involved was not presented there. Unlike the situation in Sniadach, here there were both notice and an opportunity to be heard. That case is important here only to the extent that it influenced later decisions.

Next came Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972). It did involve replevin suits, some of which were based upon installment sales contracts. Its precedential impact is somewhat weakened by virtue of the fact that the four-member majority was less than a majority of the court, since two justices did not participate. Its effect must, in reality, be measured by the application made of it by the United States Supreme Court in later cases. It is notable, however, that in Fuentes the statutes held unconstitutional permitted prejudgment seizures of personal property upon ex parte application to one who was not a judicial officer, by a claimant other than the possessor, without notice to the possessor or opportunity to him to be heard at any prior hearing. By its own language, the Fuentes holding is a very narrow one. The issue was whether procedural due process in the particular context required a hearing before the state seized the property for the benefit of a private party. In Fuentes, however, it was recognized that the requirement that the claimant make a bond to protect the possessor against a wrongful seizure, and the claimant’s subjecting himself to liability in damages if he is wrong, are factors that may affect the type of hearing necessary to meet the demands of due process. It appears from the opinion that, at the very least, a repossessing seller must make a showing that the buyer has defaulted. The Fuentes court indicated that due process is satisfied by “a fair prior hearing” which provides a real test of the right of the creditor by the kind of hearing which is aimed at establishing at least the probable validity of the underlying claim against the alleged debtor.

The case of Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974) involving the Louisiana sequestration statutes is probably more closely related to that before us than any other decision of that court. The court there gave consideration not only to the seller’s interest in the property which diminished as payments on the installment sales contract were made but also to the fact that the value of the property as security steadily diminished as the property was used. The court also recognized that resolution of due process questions must take account of the rights of both buyer and seller: There are many similarities here to Mitchell, where it was held that due process requirements were fulfilled by the Louisiana procedures affording a constitutional accommodation of conflicting interests of parties. Among them are:

1. The writ was not issued on conclusionary allegations of ownership or possessory rights.
2. The showing was made to a judge and the writ issued only upon his authority after the creditor had filed a sufficient bond.
3. The statute requires a hearing at which the creditor must prove the existence of the debt, his lien and delinquency and the debtor may regain possession by filing a bond.

The court noted that it was clear that issues could be limited in actions for possessions. The court said:

.....Petitioner’s claim must accordingly be narrowed to one for a hearing on the issues in the possessory action — default, the existence of a lien and possession of the debtor — before the property is taken.
*****
[T]here is scant support in our cases for the proposition that there must be a final judicial determination of the seller’s entitlement before the buyer may be even temporarily deprived of possession of the purchased goods. On the contrary, it seems apparent that the seller with his own interest in the disputed merchandise would need to establish in any event only the probability that his case will succeed to warrant the bonded sequestration of the property pending outcome of the suit. ***** The issue at this stage of the proceeding concerns possession pending trial and turns on the existence of the debt, the lien, and the delinquency. These are ordinarily uncomplicated matters that lend themselves to documentary proof; and we think it comports with due process to permit the initial seizure on sworn ex parte documents, followed by the early opportunity to put the creditor to his proof. The nature of the issues at stake minimizes the risk that the writ will be wrongfully issued by a judge. The potential damage award available, if there is a successful motion to dissolve the writ, as well as the creditor’s own interest in avoiding interrupting the transaction, also contribute to minimizing this risk.

North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975) has little bearing on the problem here. The court did recognize however, in distinguishing Mitchell, that it had upheld the Louisiana statute which merely required dissolution of the possessory writ upon motion of the buyer-debtor in the absence of proof by the creditor of the grounds on which the writ was issued.

The United States Supreme Court said in Sniadach that it does not sit as a super-legislative body. In Fuentes, the court said that the nature and form of the prior hearings are a subject for legislation, legitimately open to many potential variations, recognizing that there remained leeway to develop a form of hearing that will minimize unnecessary cost and delay, while preserving the fairness and effectiveness of the hearing to prevent seizures where the party seeking the writ has little probability of succeeding on the merits of the dispute.

The Arkansas General Assembly in enacting Act 144 of 1973 (Ark. Stat. Ann. § 34-2119 et seq) endeavored to give due regard to the guidelines of Sniadach and Fuentes as they applied to replevin actions. In view of the finding in Mitchell that the Louisiana statutory procedure for sequestration effected a constitutional accommodation of the interests of the parties, the Arkansas legislature at least met the minimum standards. Our statute only requires that the party seeking the order of delivery make a showing similar to that required by the Louisiana statute before the court in Mitchell. The section of Act 144 involved here reads:

At any hearing held on an application for an order of delivery, the petitioner shall be required to present prima facie evidence that petitioner has right of immediate possession of such property. If the party against whom the order of delivery is sought should fail to appear in response to the notice, the petitioner shall be required to offer the same proof necessary to secure a default judgment. If the court decides that the order of delivery should issue, an order shall be entered accordingly.

The comparable portion of Art. 3506, Louisiana Code of Civil Procedure, a section of the Louisiana statute involved in Mitchell reads:

The defendant by contradictory motion may obtain the dissolution of a writ of attachment or of sequestration, unless the plaintiff proves the grounds upon which the writ was issued. If the writ of attachment or of sequestration is dissolved, the action shall then proceed as if no writ had been issued.

The Arkansas statute clearly does not require that the circuit court, at this hearing, permit extensive evidentiary development of a defense such as usury alleged in conclusory fashion, without any statement of specific facts, when the alleged usury does not appear upon the face of the contract. Ark. Stat. Ann. § 34-2123 requires that the possessor file written objections. Appellant’s written objection did not set out the particular facts and circumstances which rendered the contract usurious, as required of one pleading usury as an affirmative defense, where the usurious nature of the transaction is not disclosed upon its face. See Leavitt v. Marathon Oil Co., 186 Ark. 1077, 57 S.W. 2d 814. It can hardly be expected that a plaintiff be prepared, at this type of hearing, to negate any and all evidence which might be asserted in support of such a conclusionary allegation, without any statement of underlying facts not alleged would, to say the least, be an exercise of the court’s discretion to permit the pleading to be amended to conform with whatever evidence the defendant might offer.

The purpose of the writ of mandamus is not to establish a legal right, but to enforce one already established, so it is essential to the issuance of the writ that the petitioner show a clear and certain legal right to the relief sought and no other adequate remedy. Naylor v. Goza, Judge, 232 Ark. 515, 338 S.W. 2d 923; State v. Baord of Directors of Ashdown, 122 Ark. 337, 183 S.W. 747; Snapp v. Coffman, 145 Ark. 1, 223 S.W. 360; Chavis v. Golden, 226 Ark. 381, 290 S.W. 2d 637. Petitioner’s right to the remedy sought is certainly not clear under the applicable statute. We cannot retrospectively control or correct that court’s judicial actions by the extraordinary writ of mandamus, or compel it to reverse its ruling. See Burks v. Mobley, 245 Ark. 43, 430 S.W. 2d 859; Watson v. Gattis, 188 Ark. 376, 65 S.W. 2d 911; Harrison v. Fulk, 128 Ark. 229, 193 S.W. 532; Maxey v. Coffin, 94 Ark. 214, 124 S.W. 729; McBride v. Hon, 82 Ark. 483, 102 S.W. 389.

The question remains whether due process standards of the U.S. Constitution require us to interfere with the processes of the trial court during the pendency of this replevin action, on the grounds asserted by the petitioner. We think not.

In Fuentes, the court said that it had held that due process tolerates variances in the form of a hearing appropriate to the nature of the case, citing Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950), and depending upon the importance of the interests involved and the nature of the subsequent proceedings, citing Boddie v. Connecticut, 401 U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1970). In Mitchell, the court said that due process guarantees no particular form of procedure, citing National Labor Rel. Bd. v. Mackay Radio & T. Co., 304 U.S. 333, 58 S. Ct. 904, 82 L. Ed. 1381 (1938) and that its very nature negates any concept of inflexible procedures universally applicable to every imaginative situation, citing Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S. Ct. 1743, 6 L. Ed. 2d 1230 and Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972).

Although it seems to us the Arkansas statute meets constitutional standards, we do not understand that facial unconstitutionality is asserted by petitioner. Petitioner is contending that the statute as applied by the circuit judge in her case violates due process and that the court had no discretion in the matter. We do not agree that the court had no discretion to limit the hearing as he did, either because of the statute or because of due process requirements. To say the least, both leave some latitude.

Since we do not find any basis for holding that the circuit court was wholly without discretion in the matter, mandamus will not lie. Cantley v. Irby, 186 Ark. 492, 54 S.W. 2d 286; Jones v. Adkins, 170 Ark. 298, 280 S.W. 2d 389; Karoley v. Reed, 233 Ark. 538, 345 S.W. 2d 626. The writ of mandamus is a discretionary writ. Arkansas General Utilities Co. v. Smith, 188 Ark. 413, 66 S.W. 2d 297; Snapp v. Coffman, 145 Ark. 1, 223 S.W. 360; Patterson v. Collison, 135 Ark. 105, 204 S.W. 753. This court has always been reluctant to issue the writ of mandamus to control, direct or correct the action of trial courts in interlocutory proceedings where the court has acted, rather than having refused to act. See Arkanaas General Utilities Co. v. Smith, supra; Karoley v. Reed, supra; Cantley v. Irby, supra; Hopson v. Frierson, 106 Ark. 292, 152 S.W. 1008; Automatic Weighing Machine Co. v. Carter, 95 Ark. 118, 128 S.W. 557; Batesville and Brinkley Railroad Co., Ex Parte, 39 Ark. 82; Harkey v. Wood, 421 S.W. 2d 340; Mance v. Mundt, 199 Ark. 729, 135 S.W. 2d 848. Appellant has not shown any reason why we should do so in this case. The narrow issue before us is all we decide.

The writ is denied.


text:
    ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. Bruce TAYLOR and Mrs. Bruce TAYLOR
    75-73
    525 S.W. 2d 450
    Opinion delivered July 7, 1975

      Barrett, Wheatley, Smith & Deacon, for appellant.

      Frierson, Walker, Snel/grove & Laser and Parker & Henry, for appellees.
   John A. Fogleman, Justice.

This is a railroad crossing collision case. The railway company appeals from a $10,000 judgment in favor of appellees, saying it was entitled to a directed verdict, the court erred in submitting the alleged failure of its train crew to keep a lookout to the jury as an issue and the court erroneously gave AMI (Civil) 1801 and refused its requested instruction as to the conditions under which the failure of trainmen to give the signals required by statute became irrelevant. When we view the evidence in the light most favorable to appellees, we cannot say that there was no substantial evidence to present a jury question, both on the failure of the train crew to give the signals required by statute and on the question of maintaining the required lookout.

Taylor was driving a Dr. Pepper Bottling Company truck on the occasion of the collision, which took place at the Bethel Crossing of Highway 69 and appellant’s tracks in Greene County, at about 6:30 a.m. The sun was up and the weather clear. Taylor approached the crossing and stopped 20 to 50 feet from it, looked to his right and to his left, and when he did not see a train coming, put the truck in “granny low” and eased onto the crossing. He never heard a whistle or a bell. The window on the right hand side of the track was cracked two or three inches. There was no train within his vision when he looked down the track. He had a good view for a good quarter of a mile looking to the south, the direction from which the train came. His speed was one to three miles per hour, low enough that he could have stopped if he had seen anything coming. Verneva Lloyd lived less than one-eighth mile from the crossing. She was in bed at home on the morning of the collision. She was awake and the windows in her house were partly up. She heard the roar of the train and the loud noise of the collision, but did not hear any whistle, horn or bell, although she said the whistle could be heard at her house and there was nothing to keep her from having heard it if it had been blown.

The engineer, Donald R. Johnson, testified on discovery deposition that he first saw the truck as the engine rounded a curve near Bethel, and the truck was fifty feet from the crossing and moving at a very slow speed. He said that Taylor later pulled up and stopped. Johnson said that the train’s speed was 55 miles per hour and that this speed had been attained near Brookland in Craighead County. Johnson could not be sure that it was north or south of Brookland, but said it must have been north, because one would travel faster north of Brookland than south of it. After this full speed was attained, Johnson was teaching the fireman and brakeman how to check speed with a stopwatch. The stopwatch showed that 65 seconds elapsed while the train travelled from one mile post to the next and this was translated by the stopwatch operator into 55 miles per hour by looking at a chart in Johnson’s lap. This operation may have been repeated three times. Both the fireman and the brakeman should have been looking at the chart, as Johnson had directed them to do so.

Corporal Maynard of the Arkansas State Police had determined that the impact to the truck driven by Taylor was on its right side about three feet from its rear. By his actual measurement the distance from the crossing to a field road to the south of it was a quarter of a mile. The curve in the railroad was near that point. He found that the view from the crossing for this distance was wide open.

The evidence recited is stated in the light most favorable to appellees and all questions of credibility, some of which may be of some consequence, are resolved against appellant. From this view, we cannot agree with appellant that, as a matter of law there was no issue on the question of negligence in failure to give the required signals. If Taylor, after looking to the south, approached the tracks from 50 feet away at two miles per hour, it would have taken 17.5 seconds to get the front end of his truck to the crossing. During that period of time, the train travelling at 55 miles per hour would have gone 1417.5 feet. When we consider that the truck had travelled a sufficient distance that it was struck only three feet from its rear end, the train could have travelled a much greater distance, even giving due regard to the fact that the emergency brakes on the train were applied when the front end of the locomotive was 300 feet from the crossing. If the jury took this view of the matter, it was entirely possible that at the time Taylor looked south, the train was beyond the curve and not obvious or readily discoverable. If this was the case, the failure of the train crew to give the signals would not have become irrelevant. See Koch v. Missouri Pacific Railroad Co.. 248 Ark. 1251, 455 S.W. 2e 858.

We reach the same result on the lookout question. In this respect, the jury could have denied full weight to the testimony of the train crew. Much of appellant’s case turns upon the testimony of the engineer. To say the least, his estimates of distances proved to be poor. It was shown that, on discovery deposition, he had said that the curve he rounded when he first saw the truck was only 600 or 700 feet from the crossing. At the trial he said it was 1500 feet, and that the train was 600 to 700 feet from the crossing when the truck stopped with its front wheels near a spur track west of the track on which the train was travelling. At the trial, the 50-foot distance of the truck from the crossing when Johnson said he first saw it on discovery deposition had become 200 to 300 feet. The brakeman on the right hand side of the engine, sitting in front of the fireman, never saw the truck until the engineer yelled to them to get down as the emergency brakes were applied. The brakeman said he was earlier checking speed with his own watch as they passed mileposts, did not check speed with the engineer, and the engineer did not show him how to use the chart. He did not remember whether the engineer showed the fireman or not. He did not remember whether it would have been possible for him to have seen the truck when the engine was 500 or 1000 feet from the crossing.

The fireman said the speed had been checked by stopwatch and mileposts a couple of times and that he and the engineer worked together in doing so.

The train would have travelled a total of three miles during the speed checks if three were done. Obviously, if a chart were checked after each check, the subsequent check would have to be commenced at the next milepost after that at which the prior check was stopped. Thus, from the time the stopwatch was started after the third check, the train would have travelled at least five miles while the checking was being done. If it was north of Brookland before the first check was started, and any of the engineer’s time was táken in looking at the chart and demonstrating to other crew members, the train could have been at least six miles north of Brookland when the checking had been completed.

From an examination of the 1975 Highway Map of Arkansas, it appears that it is less than seven miles by rail from Brookland to the Bethel crossing. The distance was not given in evidence, but we feel that it must have been a matter of common knowledge to Greene county jurors. Judicial notice may be taken of locations and distances between towns on customary routes of travel along the state highway system, their railroad connections and the customary routes and usual time for travel between them. 1 Whorton’s Criminal Evidence 89, § 57; 1 Jones on Evidence (6th Ed.) 105, § 2.36. This court takes judicial notice of the distance of towns from the county line. Bender v. State, 202 Ark. 606, 151 S.W. 2d 668. We also take judicial notice of the map of the state and of distances between places. Van Dalsem v. Inman, 238 Ark. 237, 379 S.W. 2d 261. Courts in Arkansas generally take judicial notice of the location of cities and towns. Herdison v. State, 166 Ark. 33, 265 S.W. 84; Cranford v. State, 130 Ark. 101, 197 S.W. 19; Lyman v. State, 90 Ark. 596, 119 S.W. 1116. We also recognized that juries take cognizance of the location of towns. Stribling v. State, 171 Ark. 184, 284 S.W. 38. Judicial notice is commonly taken of official maps. South Shore Land Company v. Petersen, 226 Cal. App. 2d 725, 38 Cal. Rptr. 392 (1964). The Supreme Court of Missouri has long taken judicial notice of maps of the Missouri State Highway Commission and other official highway maps and has used them in determining questions relating to sufficiency of evidence. Holland v. Anderson, 196 S.W. 2d 175 (Mo., 1946); State v. Heisller, 324 S.W. 2d 714 (Mo., 1959); State v. Garrett, 416 S.W. 2d 116 (Mo., 1967). We have no hesitation in resorting to the map prepared and issued by the Arkansas State Highway Department in considering this issue.

The jury might well have found that a proper lookout was interfered with by the timing and teaching, so that the train crew did not start watching the Bethel crossing soon enough.

We find no error as to appellant’s third point. In the first place, we do not agree with appellant that the court erred in giving AMI 1801. The evidence pointed out was sufficient to justify its being given, because we could not say, as a matter of law, that when Taylor approached the crossing and stopped and looked down the track, that the train was readily discoverable by means other than signals. As pointed out in the Comment to this instruction in AMI (Civil, 2d Ed.) p. 192, this is the only situation justifying the refusal of this instruction, when there is evidence that the signals required by statute were not given. Neither can we say that giving the signals would not have aroused Taylor from any preoccupation or inattentiveness that prevented him from seeing the approaching train.

But appellant also requested that the jury be instructed on this point as follows:

“When the presence of a train approaching a crossing is known or would have been apparent or discoverable to any ordinary person by means other than whistles or other signals, then the failure of the trainmen to blow the whistle or ring the bell are not relevant factors for your consideration.”

There was conflicting testimony from which the jury could have found that Taylor stopped his truck only 20 feet from the crossing and, after looking toward the approaching train not more than 600 feet away, put his truck in gear and moved at a slow speed onto the track when the engine was about 300 feet away - so close to the crossing that it was impossible for it to be stopped before striking the truck - and that the engineer was blowing the whistle and keeping a proper lookout. It might also have believed that the train could be heard for not less than one-eighth of a mile and that two headlights were burning on the front of the engine, which was red in color. In other words, the jury might have found from the evidence that the presence or approach of the train was so obvious that Taylor cannot be heard to say that he was unaware of it.

Assuming that appellant was entitled to an instruction advising the jury under what circumstances the failure to give warning signals ceases to be a relevant factor, the instruction requested is more favorable to appellant than it would be entitled to have. Appellant relies principally upon our decision that such an instruction was not inherently erroneous in Koch v. Missouri Pacific Railroad Company. 248 Ark. 1251, 455 S.W. 2d 858. But in that case, we pointed out that the instruction given there was not inherently erroneous in cases where there is evidence that the traveler has knowledge of the approach of the train other than by the giving of the signals. It was also pointed out that the instruction given there was not a model one, and that the defects urged on appeal might have been corrected if a specific objection, rather than a general one, had been made. Our decisions on the point of law involved do not seem to be entirely consistent or harmonious. See, e.g., St. Louis & S.F. Ry. Co. v. Ferrell, 84 Ark. 270, 105 S.W. 263; Chicago, R.I. & P. Ry. Co. v. Elzen, 132 Ark. 431, 200 S.W. 1000; Missouri Pac. R. Co. v. Brewer, 193 Ark. 754, 102 S.W. 2d 538; Chicago, R.I. & P. Ry. Co. v. Sparks, 220 Ark. 412, 248 S.W. 2d 371; Missouri Pac. R. Co. v. Powell, 196 Ark. 834, 120 S.W. 2d 349; Missouri Pac. R. Co. v. Sanders, 193 Ark. 1099, 106 S.W. 2d 182; Missouri Pac. R. Co. v. Lemons, 198 Ark. 1, 127 S.W. 2d 120; Missouri Pac. R. Co. v. Howell, 198 Ark. 956, 132 S.W. 2d 176; Missouri Pac. R. Co. v. Hood, 199 Ark. 520, 135 S.W. 2d 329; Missouri Pac. R. Co. v. Cook, 203 Ark. 787, 158 S.W. 2d 699; Missouri Pac. R. Co. v. Dennis, 205 Ark. 28, 166 S.W. 2d 886; Missouri Pac. R. Co. v. Howard, 204 Ark. 253, 161 S.W. 2d 759; Missouri Pac. R. Co. v. Diffee, 212 Ark. 55, 205 S.W. 2d 458; Missouri Pac. R. Co. v. Carruthers, 204 Ark. 419, 162 S.W. 2d 912; St. Louis S.F. Ry. Co. v. Perryman, 213 Ark. 550, 211 S.W. 2d 647.

Some of these cases may be distinguished on the basis of their involving contributory, rather than comparative negligence. Some are cases in which the injured person knew the train was approaching, but attempted to beat it over the crossing. Some are cases where the injured party’s failure to look and listen was beyond dispute. Some are cases where the testimony that the signals were given was undisputed or that everyone in a position to do so, other than the party injured by the crossing collision, had seen and heard the approach of the train.

These decisions could only be harmonized by saying that, when comparative negligence is the issue, as it is here, the failure of the train crew to give the statutory signals ceases to be a relevant factor, (because it cannot be the proximate cause of the injuries) when the presence or approach of the train was known to the injured party by means other than the signals or was so obvious that he cannot be heard to say that he was unaware of it. The words “discoverable to any ordinary person” are more favorable than this to the railroad company. This means something less than obvious. It actually means to us that appellees would be barred from recovery if Taylor had exercised ordinary care to discover the approach of the train. This would \ell the jury to ban appellees from recovery if Taylor were guilty of any negligence and prevent them from comparing the negligence of Taylor and the train crew insofar as the giving of signals was concerned. This is not the law.

The judgment is affirmed.

The Chief Justice dissents.

       The width of the crossing and the length of the truck do not appear to have been shown. There is 4’8½" between rails on a standard gauge railroad. 15 Encyclopaedia Britannica, Macropedia, (15th Ed.) 488. It is obvious that the truck is longer than any passenger automobile, unless it be a large bus.