text:
    Crown Coach Company v. Ark. Public Service Comm.
    5-1549
    316 S. W. 2d 819
    Opinion delivered October 6, 1958.
    [Rehearing denied November 10, 1958]

      L. M. Grouch, Jr., Harrisonville, Mo., and Thomas Harper for Crown Coach Company; Milton McLees and Wright, Harrison, Lindsey S Upton for Inter City Transit Company; Mehaffy, Smith é Williams, by E. Ben Allen; John G. Rye and Scurry, Scurry, Pace & Wood, Dallas, Texas, for Midwest Buslines, Inc.
   George Rose Smith, J.

This case is closely related to the proceedings considered in Mo. Pac. Transp. Co. v. Inter City Transit Co., 216 Ark. 95, 224 S. W. 2d 372. It will be convenient to review the earlier case briefly before coming to the facts in the present proceeding.

In 1948 Inter City Transit Company, which was then operating a bus service between Little Eock and Morrilton, applied for a certificate of convenience and necessity authorizing it to operate between Little Eock and Port Smith over highways 64 and 65 and between Russellville and Port Smith over highways 7 and 22. That application was resisted by Missouri Pacific Transportation Company, which operated bus lines over both routes covered by Inter City’s application, and by Crown Coach Company, whose bus service between Little Rock and Port Smith used a parallel route along highways 10 and 71.

The proof in the earlier case showed that there was undoubtedly a need for additional intermediate or local bus service between the various cities and towns lying between Little Rock and Port Smith on highways 22, 64, and 65. It was not shown, however, that there was any public need for additional bus service for through traffic between Fort Smith and Little Rock or North Little Rock or between Alma and Little Rock. It was accordingly held in the earlier case that Inter City’s application should be granted subject to certain restrictions, the principal ones being that Inter City would not be allowed to handle through traffic between the terminal points that we have just mentioned.

This arrangement continued in force until the present proceeding was begun in 1956. In September of that year Missouri Pacific (which has since become Midwest Buslines, Inc.) discontinued its bus service between Port Smith and Russellville along highways 7 and 22, on the south side of the Arkansas River, and reduced from five to two its daily schedules between Port Smith and Little Rock along highways 64 and 65, on the north side of the river. Inter City at once filed the present application, asking the Public Service Commission to remove the restrictions imposed in the 1948 proceeding and thus to permit Inter City to provide a through bus service between Port Smith and Little Rock-North Little Rock and between Alma and Little Rock.

After an extended hearing the Commission, by a two-to-one vote of its members, granted Inter City’s request that the restrictions be lifted. On appeal the circuit court affirmed the Commission’s order with respect to Inter City’s service between Fort Smith and Little Rock by way of Dardanelle, on the south side of the river; but the court held the evidence insufficient to support the application with respect to the other Little Rock-Fort Smith route, by way of Clarksville, on the north side of the river. Crown and Midwest have appealed from that part of the judgment that affirms the order of the Commission, and Inter City has cross appealed from that part of the judgment that reverses the order of the Commission.

In our opinion the case turns solely upon Inter City’s failure to sustain the burden of proving that the public convenience and necessity require the removal of the restrictions complained of. There is no doubt — indeed, it is conceded — that the burden of proof rested on Inter City, which was in effect applying for an extension of its certificate. Boyd v. Ark. Motor Freight Lines, Inc., 222 Ark. 599, 262 S. W. 2d 282.

In a case of this kind we review the evidence de novo. Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604. We find that Inter City, to support its application, introduced the testimony of about seventy-five witnesses. Only a handful of these persons, however, touched upon the point at issue: the need for added through service between the terminals designated in the challenged restrictions. Nearly all of Inter City’s witnesses confined their testimony to the need for local service between intermediate points along the Little Rock Fort Smith routes and to the excellence of the local service being rendered by Inter City. This testimony must all be laid aside as irrelevant, for Inter City already had the authority and the duty to provide that local service. That service is not involved in the present application to remove the limitations upon Inter City’s carriage of through traffic.

Only six of Inter City’s witnesses can be said to have given pertinent testimony. Two Little Rock ladies testified that, after the Commission had removed the restrictions by a temporary order, they had occasion to travel by bus to Fort Smith and found that, among the services available, one of Inter City’s buses was conveniently scheduled to put them in Fort Smith for a meeting at three o’clock in the afternoon. Two Catholic nuns stationed at a school in Fort Smith testified in a general way that their pupils from Little Rock and North Little Rock needed and used through bus. service, but they did not know the number of students' involved and did not say that the service being provided by other carriers was inadequate. And two witnesses who had sold tickets for Inter City stated that they had received requests for through passage from Fort Smith to Little Rock. We attach no weight to the latter testimony, as it is doubtless true that ticket agents for bus lines and railroad companies often receive inquiries about transportation to cities that are not served by the carrier in question. Such inquiries do not tend to show that the service available elsewhere is inadequate.

This scant testimony does not establish the fact that the convenience of the publio, as distinguished from that of a few individuals, requires that this application be granted. Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907. There is a complete absence of proof with respect to several facts that would seem to be of importance in a case of this kind, such as the volume of through traffic from Little Rock to Fort Smith, the adequacy of the seating capacity being provided by other common carriers, the financial interdependence, if any, between Inter City’s local service and the proposed through service, etc.

In its brief Inter City relies chiefly, as did the majority of the Commission, on the fact that Missouri Pacific discontinued its service south of the river and curtailed that on the northern route. This bare fact does not satisfy Inter City’s burden of proof, nor does it demonstrate that the public convenience and necessity demand that the service be brought to its former level by another carrier. In the absence of evidence it may equally well be supposed that Missouri Pacific’s voluntary reduction of its schedules indicates that the public demand is insufficient to support the former service as a profitable operation. Too, it appears that the Missouri Pacific certificate, now held by Midwest, is still in effect, so that this carrier is in a position to restore its original schedules between the terminal points in dispute.

Further, the public interest as a whole requires that the peculiar relative positions of Crown and of Inter City be given consideration. Inter City’s alternate routes from Little Rock to Fort Smith pass through a comparatively well-populated area; the total population of the communities along each route is shown to exceed 80,000. By contrast, the Crown buses travel along sparsely settled highway 10, where the total comparative population is less than 8,000. These figures indicate that Crown can expect less than a tenth of the intermediate traffic revenues that are available to Inter City. It follows, of course, that the income from through traffic is by comparison essential to the existence of the Crown bus service, while in the case of Inter City that income represents merely an added profit in the operation of buses that are, as far as this record shows, already being supported by intermediate traffic. Crown’s service is shown by the proof to be needed, rapid, and efficient. These considerations, taken in conjunction with the dearth of evidence that the public convenience and necessity require the granting of this application, convince us that Inter City failed to sustain the burden of proving its case.

The circuit court’s judgment is reversed on direct appeal and affirmed on cross appeal, and the cause is remanded, through that court, to the Commission, with instructions that the application be denied.

Harris, C. J., and Millwee, J., would affirm the judgment of the circuit court. Holt, J., would reinstate the decision of the Commission.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Nelson v. Rutledge.
    5-1591
    316 S. W. 2d 346
    Opinion delivered October 6, 1958.

      Murphy & Arnold, for appellant.

      Judge 8. M. Bone, for appellee.
   Paul Ward, Associate Justice.

The question for decision is whether appellee made such a payment on a promissory note as to toll the Statute of Limitations. The Chancellor held that no such payment was made, and, for the reasons set out below, we think his holding must be affirmed.

Only two witnesses testified. One was the bookkeeper for appellant (C. T. Roberson) and the other was appellee (Leslie Rutledge). There is very little if any conflict in the testimony, and we deem it necessary to set forth only the material portions thereof together with a brief statement of how the issue arose.

C. T. Robinson (hereafter referred to as appellant) operates two distinct places of business — a hardware store and a motor company. The accounts of both businesses are kept on one set of hooks.

On April 8, 1950 the motor company sold appellee a saw mill and certain attachments for $2,500. Appellee executed a note (same date) for $1,000 to appellant as the down payment — the note sued on herein. This note was secured by a deed of trust on real estate. A Conditional Sales Contract was executed by appellee and appellant for the balance. In this contract $225 was added for insurance and interest, payable in 18 equal monthly installments of $95.84 each, or a total of $1,-725.12. (We note here that of the $225 not more than $125 could be charged as interest and avoid usury, leaving at least $100 charged for insurance on the saw mill.) The Conditional Sales Contract required appellee to carry and pay for the said insurance.

Appellant promptly assigned the Conditional Sales Contract to the Murdock Acceptance Corporation. The latter company refused to accept the contract and it was returned to appellant.

This suit was filed by appellant against appellee on the $1,000 note on February 28, 1957. This note would have been barred by the Statute of Limitations, in the absence of a payment by appellee, on April 8, 1956. It is agreed that no such payment was made unless made under the facts and circumstances set forth hereafter. In appellant’s brief it is stated: “The only question for decision is whether the May 1, 1952 payment tolled the Statute of Limitations.”

The ledger sheet purporting to show all relative transactions was introduced by appellant. It charges appellee with $2,500 and also with items bought by appellee from the hardware store. It credits appellee with several installment payments and with $1,500 on May 1, 1952. It shows no charges for interest or insurance. The said $1,500 payment was not, apparently, a cash payment by appellee, but was the result of a refinancing deal with the Delta Loan Company which is not fully explained by the record.

The record contains an exhibit to the bookkeeper’s testimony captioned “Analysis — Leslie Rutledge Note Account.” This exhibit, made up by the bookkeeper after suit was filed, purports to charge appellee with the $1,000 note, the $1,500 balance on the sale, and with interest on both items up to May 1, 1952; and, against the above charges, it gives appellee credit (as of May 1, 1952) with $1,500. From these figures it is deduced that on May 1, 1952 appellee owed appellant $1,207.22 on the note sued on, and $1,441.04 on all other items.

Appellant’s contention in this case is that the $1,500 received on the refinancing deal paid all of the $1,441.04 item with a surplusage of $58.96, and that the latter amount should apply as a payment on the $1,000 note as of May 1, 1952. If so applied it would, of course, toll the statute. We cannot agree with this contention.

The burden was on appellant to show such a payment as would toll the statute. See: Kitchens v. Machen, 210 Ark. 1046 (at page 1053) 198 S. W. 2d 833 and the cases cited therein. The testimony, we think, does not sustain this burden.

In the first place, it appears that there would have been no surplusage to apply on the $1,000 note on May 1, 1952 if appellant had charged appellee with the insurance on the saw mill. Appellee was obligated by the Conditional Sales Contract to pay this item the same as he was obligated to pay interest. The mere fact that appellant did not carry the insurance item on the ledger sheet is not significant because interest was not carried either.

In addition to the above we think the testimony fails to show a conscious intent on the part of appellee to make a payment on the $1,000 note. He denied any such intent, but stated that he thought his whole indebtedness to appellant was liquidated by the $1,500 credit on May 1, 1952 and by the repossession of the saw mill by appellant. Moreover it is not clear to us that appellant considered on May 1,1952 that a payment had been made on the note. The testimony of the bookkeeper, with commendable frankness, indicates that he never arrived at this conclusion until after the suit was filed. It is certain that no such credit on the note is shown on the ledger sheet. The evidence fails to show a voluntary act of payment on the part of appellee.

“To interrupt the running of the statute of limitations, a payment must be voluntary and must be the act of the debtor himself, or in pursuance of his consent or direction.” 34 Am. Jur. page 266, § 339. See also in this connection, same authority, §§ 338, 341, and 345.

It is therefore our conclusion that the decree of the trial court must be, and it is hereby, affirmed.


author: Sam Robinson, Associate Justice.

text:
    Fox v. Fox.
    5-1599
    316 S. W. 2d 348
    Opinion delivered October 6, 1958.

      Ed B. Cook, for appellant.

      Taylor & Sudbury, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Mrs. Lena Fox, and appellee, Dr. Y. R. Fox, were married in April, 1942. Mrs. Fox was 39 years of age and Dr. Fox was 59. In September, 1956, Mrs. Fox filed suit for divorce, alleging adultery and indignities. She also alleged that a clinic operated by her husband was in fact a partnership arrangement and that she was entitled to 50% of the proceeds of the clinic. She also alleged that appellee had fraudulently transferred some of his property to his children by a former marriage, and asked that the deeds be set aside. In addition, she alleged that a deed to her from Dr. Fox conveyed only a life estate in certain property, with the grantor retaining a life estate, when this deed should have conveyed a fee simple title, and she asked that the deed be reformed.

As heretofore mentioned, the suit was filed in September, 1956. In October, 1956, the defendant answered with a general denial. The case was not tried within a year, and in November, 1957, the defendant filed a cross-complaint asking that he be granted a divorce on the ground of desertion. The chancellor granted a divorce to Dr. Fox and granted Mrs. Fox the rents from 40 acres of land which produced an annual rental of $25 per acre, and granted her additional alimony in the sum of $50 per month.

The record contains no substantial evidence to sustain appellant’s allegation of adultery on the part of appellee, and we cannot say the court’s finding in favor of appellee on the question of indignities is contrary to a preponderance of the evidence. The evidence of indignities is very meager. There is some evidence that Dr. Fox was rude to Mrs. Fox occasionally in the presence of other people. But this is not evidence of such indignities habitually pursued to the extent of constituting grounds for divorce. Also, Mrs. Fox testified that on one occasion appellee slapped her. There is no evidence corroborating the alleged physical abuse, and it is said to have occurred a long time prior to the filing of the divorce action.

We do not think the evidence supports the theory that appellant was a “partner” in the operation of the clinic. True, the evidence shows that Mrs. Fox worked harder in helping the doctor'with his practice than the average wife is called upon to work, but it appears that she was fully capable of doing the work and never objected to it until the filing of the divorce suit.

The evidence does not justify a conclusion that appellee practiced a fraud upon Mrs. Fox in conveying some of his property to his children. The deeds were executed by both appellant and appellee in August, 1951, and Mrs. Fox made no complaint of the alleged fraud until 1956. She attempts to explain the delay by saying that she did not realize the full import of the deeds until shortly before she filed this action. The evidence is convincing, however, that all concerned must have known that appellee was conveying his property to his children and to his wife because of the condition of his health. He had suffered a stroke, his condition was not good, and in anticipation of death he was dividing his property to avoid litigation by his heirs. He conveyed to his wife practically the same interest in his real property which she would have received by operation of law if he had died at that time, before the execution of any deeds.

Appellant also complains of appellee’s failing to complete the taking of depositions within the time fixed by Ark. Stat. § 28-308. It is suggested that the depositions should be quashed. However, it does not appear that there was any willful or negligent failure to take proof within the time fixed by the court or the law. This is a matter within the discretion of the trial court and we cannot say the court abused this discretion.

Finding no error, the decree is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Mitchell v. State.
    4907
    317 S. W. 2d 1
    Opinion delivered October 13, 1958.
    [Rehearing denied November 17, 1958]

      Gordon H. Sullivan, for petitioner.

      Bruce Bennett, Atty. General-, Thorp Thomas, Asst. Atty. General, for respondent.
   Carleton Harris, Chief Justice.

This case involves the provisions of Act 419, of the General Assembly of 1957, known as the Uniform Post-Conviction Procedure Act. Petitioner, Esaw Mitchell, was charged, by Information, on March 20, 1957, with the crime of first degree murder, it being alleged that he, with malice aforethought and after premeditation and deliberation, murdered George Beyerlein, Sr. On October 22,1957, the cause came on for trial, at which time petitioner’s attorneys and the prosecuting attorney entered into an agreement that if Mitchell would plead guilty to the charge, the State would not request the death penalty, and would agree to a sentence of life imprisonment. The plea was entered, and a jury impaneled to hear the evidence. The State then put on sufficient evidence to -make a prima facie case, consisting of the evidence of officer O. A. Allen, who testified as to the oral confession made to him by petitioner, and the introduction of trousers, shoes, and other articles owned by petitioner, containing blood stains. The court then instructed the jury as follows:

“Ladies and gentlemen, you have one function in this case. You heard the State waive the deáth penalty and agree to accept life imprisonment in this ease. In a case of murder in the first degree, nobody but the jury can assess the punishment and of course, any other verdict that you might bring back except life imprisonment I would set aside. You have no choice and your verdict will be: ‘We, the jury, find the defendant guilty of murder in the first degree and fix his punishment at life imprisonment in the State Penitentiary.’ ”

The jury retired, and shortly returned with their verdict, finding petitioner guilty of murder in the first degree. Petitioner was then committed to the state penitentiary.

On December 17, 1957, Mitchell, while in the state penitentiary, filed a petition pro se asking for a new trial, and requesting that an attorney be appointed for him. Present counsel was appointed by the court, and filed an amended petition under Act 419 of the 1957 G-eneral Assembly of the State of Arkansas, challenging the legality of Mitchell’s incarceration. A hearing was held on the petition, at which time petitioner and his sister testified that they did not understand that a plea of guilty to first degree murder was being entered on the day of the trial, and petitioner stated he did not know that a judgment of life imprisonment was rendered, nor did he make any agreement with his attorneys to accept life imprisonment. Petitioner’s two attorneys (at the time of the trial) testified that they entered the plea of guilty to first degree murder after thoroughly discussing the matter with both petitioner and his sister. One of the attorneys testified that he told the sister that if Mitchell could get a life sentence, it should be accepted. This attorney testified that he talked with petitioner at the county jail on several occasions, and Mitchell agreed that he would like to get off with a life sentence. “He thought he could stand that, but he couldn’t stand that chair.” The attorneys both testified that the matter was explained to both petitioner and his sister, and that they appeared satisfied at the time. At the conclusion of the hearing, the court denied the petition, and this appeal follows.

For reversal, petitioner urges four points.

I.

That the Petitioner was denied due process under the 14th Amendment to the United States Constitution, and Article II, Sections 7 and 8 of the Constitution of Arkansas.

II.

That the Court failed to permit the jury to find the degree of the crime of murder in violation of Arkansas Statutes (1947), Section 43-2152.

III.

That the State failed to make a prima facie case of murder in the first degree.

IY.

That the Court directed a verdict of guilty in a felony case where the punishment for said crime was confinement in the State Penitentiary.

For purposes of discussion, these points will be, more or less, grouped together.

Petitioner was charged with Information filed by the prosecuting attorney, and was represented by competent and experienced counsel, retained for his benefit, and of his own choosing. On August 5, 1957, petitioner, through such counsel, filed a motion to quash the information, alleging that the oral confession was obtained after Mitchell had been held in custody for a long period of time, that petitioner had been threatened, physically abused, and subjected to psychological coercion; that he had been denied constitutional and statutory rights in that the arresting officers failed to take him forthwith before a magistrate, and that he had not been allowed to see or speak to any friend, close relative or attorney while being held in confinement; that the purported confession having been obtained under those circumstances, same was not competent evidence; that since the information had been issued solely upon the basis of this incompetent evidence, such information should be quashed. A hearing was held on this petition on August 12th, at which time Mitchell testified that he had been held in jail ten or eleven days before the statement was made, that he had been beaten and threatened by officers, and coerced into making a statement, though admitting that no one told him what to say, and that the statement was given in his own words. At the conclusion of the hearing, the court rendered its ruling as follows : ‘ ‘ The Court thinks it is premature, and I am overruling the motion to quash, holding that the information is good.”

On October 22nd, the case came on for trial, and after consultation between the prosecuting attorney and defense counsel, the plea of guilty was entered, and a jury selected and impaneled to hear the evidence. This plea of guilty was entered by petitioner’s counsel, according to their testimony, only after the proposed plea had been thoroughly discussed with petitioner on several occasions, and Mitchell and family were in the front of the court room when the plea was entered. To enter a plea of guilty in a first degree murder case is not unusual, and numerous cases in this state have been handled in exactly the same manner. It would appear that up to this point, there was nothing in the proceeding of October 22nd which did not fully conform to the requirements of the federal constitution, the state constitution, and our statutory law. It seems clear that both Mitchell, his family, and counsel, felt that his interest was best being served by entering the plea.

It is argued that the State failed to make a prima facie case of murder in the first degree, but we do not agree. A study of the transcript reveals ample evidence to sustain a first degree murder conviction. No point would be served in detailing such evidence, since we do not consider petitioner’s argument in this respect pertinent, in reaching our determination.

Section 43-2152 of Arkansas Statutes (1947) provides as follows:

“The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall impanel a jury and examine testimony, and the degree of crime shall be found by such jury. ’ ’

Accordingly, we agree that the court was beyond its rights in directing the jury to find the defendant guilty of first degree murder. It was the duty of the jury, rather than the court, to find the degree of the crime. In Wells v. State, 193 Ark. 1092, 104 S. W. 2d 451, a plea of guilty was entered by the defendant to first degree murder, and the court instructed the jury as follows:

‘ ‘ The defendant in this case has entered his plea of guilty to the charge against him in the indictment; that is, of murder in the first degree. The law provides in such cases that the jury shall be impaneled to assess his punishment.

The question for you to determine in this case is that of the punishment to be imposed. The law provides that the punishment in such cases shall be death or life imr prisonment in the penitentiary.”

The jury returned the following verdict: “We, the jury, find the defendant guilty and fix his punishment at death.” On appeal, this Court held the instruction to be erroneous, and the verdict bad, the latter conclusion reached because the verdict failed to find the degree of the crime. In the case under discussion, the jury found the degree of the crime as first degree murder, but were given no other choice under the court’s instruction. Justice McHaney, speaking for the Court in the Wells ease, said:

“* * • * The statute provides that ‘the degree of crime shall be found by such jury,’ not merely to fix the punishment. * * * ”

Though, however, the court committed error, it.does not follow that petitioner is entitled to the relief sought. Section One of Act 419 of the General Assembly of 1957, under which petitioner seeks this relief, provides as follows :

“Any person convicted of a felony and incarcerated under sentence of death or imprisonment who claims that the sentence was imposed in violation of. the Constitution of the United States or the Constitution or laws of this State, or that the court was without jurisdiction to impose the sentence, or that='the sentence exceeds the maximum authorized by law, or that the sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under a writ of habeas corpus, writ of coram nobis, or other common law or statutory remedy, may institute a proceeding under this Act to set aside or correct the sentence, provided the alleged error has not beeh previously and finally litigated or waived in the proceeding's resulting in the conviction or in any other proceeding that the petitioner has taken to secure relief-from'his conviction.

“The remedy herein provided is not a substitute for nor does it affect any remedies which are incident to the proceedings in the trial court, or any remedy of direct review of the sentence or conviction, but, except as otherwise provided in this Act, it comprehends and takes the place of all other common law and statutory remedies which have heretofore been available for challenging the validity of incarceration under sentence of death or imprisonment, and shall be used exclusively in lieu thereof. A petition for relief under this Act may be filed at any time.”

We call attention to the italicized portion of this Section. It obviously was not the intent of the legislature that the procedure set out in this Act be used in lieu of an appeal from the original conviction; it merely takes the place of other common law and statutory remedies which have long been available for the purpose of challenging the validity of the prisoner’s incarceration. Of course, the act of the court in instructing the jury to bring in a particular verdict was not only a violation of the statute, but actually had the same effect as if the court had acted without a jury, and if Mitchell had appealed after the original trial, this Court doubtless would have directed a reversal because of this error — but no appeal was taken. Instead, this collateral attack is made upon the judgment of the court.

If Act 419 had not been passed, petitioner possibly would have filed his petition with this Court, seeking a writ of habeas corpus. At least, that would have been the available remedy. It would therefore appear that in effect, Act 419 is here used in lieu of the remedy that formerly existed — the petition for writ of habeas corpus. Under the circumstances in this case, we do not see that Act 419 provides any additional grounds for relief that were not available under this previous remedy. We conclude that this matter is determined by Ex Parte O’Neal, 191 Ark. 696, 87 S. W. 2d 401. There, O’Neal had entered his plea of guilty to first degree murder, and had been sentenced by the court, sitting as a jury, to life imprisonment. Petition for writ of habeas corpus was filed by O’Neal, alleging the invalidity of the judgment, because no jury was called as required by statute, to hear evidence and fix the degree of the crime. This Court, quoting an earlier case, said:

i í * * * the person restrained of his liberty is in custody under process, nothing will be inquired into, by virtue of the writ, beyond the validity of the process upon its face, and the jurisdiction of the court by which it was issued. If he be detained under a conviction and sentenced by a court having jurisdiction of the cause, no relief can be given by habeas corpus, the general rule being that a conviction and sentence by a court of competent jurisdiction is lawful cause of imprisonment. # *

“When appellant’s rights are measured by the rule heretofore stated, he is entitled to no relief in this proceeding. By Section 11 of Article 7 of the Constitution of 1874, circuit courts are created, and by Section 45 of the same article the jurisdiction of all criminal proceedings are vested in them. It is plain therefore from the Constitution and laws of this State, that the circuit courts are given exclusive jurisdiction to try and determine all felony cases, and it necessarily follows from this that the circuit courts have the exclusive jurisdiction to try, hear and determine the guilt or innocence of any one charged with a felony under the laws of this State. If this be true, and it must be so conceded, then the Jackson County Circuit Court had jurisdiction to try, hear and determine petitioner’s guilt or innocence in the murder charge pending against him. But petitioner’s insistence seems to be that the Jackson County Circuit Court erroneously exercised the jurisdiction conferred in failing to impanel a jury to determine the degree of homicide of which he was guilty. Granting that this is true, it does not follow that the judgment is void upon its face. Erroneous judgments are not necessarily void judgments. If the court in which the erroneous judgment is entered has jurisdiction of the subject-matter and the parties thereto, such judgment is voidable, but not void. The circuit court of Jackson County had jurisdiction of the subject-matter, and of the person of the petitioner, and the judgment entered, though it may be erroneous, is not void, and its validity can only be brought in question by appeal or writ of error. * # * ”

To say that petitioner could ignore his right of appeal, and then gain relief under the petition herein filed, would have the practical effect of doing away with the statutes governing appeals. There would be no reason for one to appeal a conviction if he knew that subsequently, at any time lie might desire, he could gain another hearing on the validity of his conviction by instituting new proceedings, though raising no new issues.

Summarizing, to concisely state our view, Petitioner could have presented each of the four points herein raised by a direct appeal from the circuit court judgment of October 22, 1957. The claim that the confession was forced rather than free and voluntary, the refusal of the court to quash the information, the alleged failure of the State to establish a prima facie case of first degree murder, the erroneous instruction of the jury, and the contention that the judgment rendered was void, were all proper matters for an appeal.

It was not the intention of the G-eneral Assembly of 1957 in passing Act 419, to authorize the remedy therein set forth as a substitute for, or in lieu of, the time honored procedure of direct appeal.

The judgment of the circuit court denying the petition, is affirmed.

       A part of the agreement also was that Mitchell plead guilty to second degree murder for the murder of Beyerlein’s wife. The plea was entered, and Mitchell sentenced to twenty-one years on the charge, the sentence to run consecutively.

       Emphasis supplied.


author: J. Seaborn Holt, Associate Justice.

text:
    Castle v. State.
    4909
    316 S. W. 2d 701
    Opinion delivered October 13, 1958.

      Tom Kidd, George E. Steel and Wm. M. Stocks, for appellant.

      Bruce Bennett, Atty. General, and Bill J. Davis, Asst. Atty. General, for appellee.
   J. Seaborn Holt, Associate Justice.

On a charge of wife and child abandonment appellant Castle was convicted by a jury and his punishment assessed at three years in the Arkansas State Penitentiary. This appeal followed.

For reversal appellant first earnestly contends that the trial court erred in permitting the state to amend the information after the jury had been selected and sworn. We do not agree. The information as originally drawn charged that Castle “did unlawfully, wilfully and feloniously desert his wife and seven minor children under the age of sixteen years and did fail, refuse and neglect to support said children and did flee the State of Arkansas.” As amended it charged that Castle “did unlawfully, wilfully and feloniously desert his wife and seven minor children under the age of sixteen years in destitute circumstances and did flee the State of Arkansas.” Our statutes under which the charge was based provide: Arkansas Stats. 1947, Sec. 41-204: “When a man, without cause, abandons or deserts his wife, or legitimate minor child under the age of 16 years — in destitute or' necessitous circumstances, or wilfully neglects or refuses to provide for the support and maintenance of the wife or child, he shall be imprisoned in the county jail or on the county farm for not more than six (6) months, or fined not less than fifty ($50) nor more than five hundred ($500) dollars, or both.” Sec. 41-205. “If such person after leaving his wife or child leaves the State of Arkansas, he is guilty of a felony and shall be imprisoned in the penitentiary for a period of time of not less than one (1) year nor more than five (5) years.”

As indicated, defendant was convicted on the charge as amended. Our statutes, Ark. Stats. 1947, See. 43-1008, further provide that an indictment must be direct and certain as regards: “First, the party charged. Second, the offense charged. Third, the county in which the offense was committed. Fourth, the particular circumstances of the offense charged where they are necessary to constitute a complete offense. (Crim. Code, Sec. 123; C.&M. Dig., Sec. 3012; Pope’s Dig. Sec. 3834.)” Also, Sec. 43-1006 provides: “Contents of indictments. —The language of the indictment must be certain as to the title of the prosecution, the name of the court in which the indictment is presented, and the name of the parties. It shall not be necessary to inclucle statement of the act or acts constituting the offense, unless the offense cannot be charged without doing so. Nor shall it be necessary to allege that the act or acts constituting the offense were done wilfully, unlawfully, feloniously, maliciously, deliberately or with premeditation, but the name of the offense charged in the indictment shall carry with it all such allegations. The State, upon request of the defendant, shall file a bill of particulars, setting out the act or acts upon which it relies for conviction.” Sec. 43-1024 sets out the method by which an indictment or information may be amended in this language, “The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged.” We said in Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304, that this section, Sec. 43-1024, (Act 3 of 1936) was enacted . . . “for the very purpose of simplifying procedure in criminal cases, and eliminating some of the technical defenses by means of which criminals had often in the past escaped punishment for their crimes.”

We hold that the amended information did not change the nature of the offense charged, since the willful desertion of appellant’s wife and children and that he had fled the State of Arkansas, were still charged in the amended information. The amendment, as indicated, only added “in destitute circumstances” to describe the condition of appellant’s family and struck out the charge “and did fail, refuse and neglect to support said children.” We think appellant was sufficiently put on notice of the nature of the charge on which he was called on to defend, that is, the crime of wife and child abandonment in destitute circumstances. It is difficult to see how he could have been misled or prejudiced.

Next appellant challenges the sufficiency of the evidence. Again we do not agree. Appellant, the father of seven minor children, while his wife was in the field working to help support the family, without as much as telling his wife of his intentions, and after a month’s secret planning, wilfully left his family, and in company with his neighbor’s wife, Ercile Mae Thompson, who was herself the mother of three minor children, drove in his car to Floydada, Texas. Appellant and Mrs. Thompson lived together in a tourist court in that Texas town for approximately one month and until they were arrested and returned to Arkansas. Further evidence bearing on appellant’s intention to abandon his family was the testimony of Mrs. Thompson and appellant that Mrs. Thompson, after she and appellant had reached Texarkana, Arkansas, on their journey to Texas, got out of the car and walked across the state line. A fair inference it seems to us that the jury might have drawn from this act on her part, was that she was attempting to avoid violation of what is commonly known as the Federal White Slave Traffic Act (Title 18 USCA Sec. 2421). On this issue of sufficiency of the evidence, appellant says: “It is true that the state proved the defendant had left the state, that he has taken another woman with him, and that his family was in destitute and necessitous circumstances, a fact proved by detailed and numerous testimony . . .” Viewing the evidence in the light most favorable to the state, as we must do, we must affirm the judgment if we find any substantial evidence to support it. We hold that the evidence was substantial and sufficient.

Finally, appellant contends that the trial court erred in permitting the state, over appellant’s objections, while cross examining appellant to ask him whether he had paid certain fines in a justice of the peace court in Nashville, Arkansas. On this point the record reflects the following testimony of appellant on cross examination: “And you didn’t waste your money? A. No. Q. Did you pay a fine in Nashville for public drunkenness just prior to your leaving here? A. (no answer) Q. You did, didn’t you? A. I don’t recall it was for public drunkenness. Q. What was it for? A. I don’t know. Q. Did you pay á fine to the city? A. Yes. —Did you pay a fine for disturbing the peace? A. No. Q. Are you just as sure of that as you are of everything else you have testified to? A. Yes, sir. Mr. Kidd: If the court please, that’s not proper cross-examination. If he’s going to ask him along that line, I want him made his own witness. He isn’t pursuing proper cross-examination. The Court: I believe you invited it, Mr. Kidd, by asking if he spent his money properly. Now, he’s attempting to show that he probably didn’t do that. Mr. Kidd. Save our exceptions. Q. (cont’d.) I will ask you if you are sure you didn’t pay a fine — A. I never paid a fine for disturbing the peace in my life. Q. Did you pay a fine in Howard County two months before you left for Texas ? A. I think I did. Q. What was it for ? Do you know? A. No, sir. Q. It was for violation of the criminal law, wasn’t it? A. Yes, I suppose it was. Q. Did you on the 24th of April, 1957, pay a fine of $15.00 for public drunkenness, to Howard County? A. What’s the date? Q. The 24th of April, 1957. A. I paid one back there somewhere.”

We think the above examination of appellant was within the scope of proper cross-examination as affecting defendant’s credibility as a witness. It is onr well established rule that when the defendant takes the witness stand in his own behalf the same rules apply to him as to any other witness. We said in Shinn v. State, 150 Ark. 215, 234 S. W. 636, “Appellant was asked all sorts of questions about having been a gambler and about other offenses and immoralities. This was merely for the purpose of testing his credibility and was admissible as such. This court so decided in the case of Hollingsworth v. State, 53 Ark. 387. This was with regard to a witness other than the accused himself, but we have since then frequently held that the same rule applies to a defendant in a criminal prosecution when he takes the witness stand in his own behalf. Ware v. State, 91 Ark. 555 ; Hunt v. State, 114 Ark. 239; Nelson v. State, 139 Ark. 13.” Also see Hays v. State, 219 Ark. 301, 241 S. W. 2d 266.

Finding no error, the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Rebsamen Motors, Inc. v. Morris.
    5-1612
    317 S. W. 2d 141
    Opinion delivered October 13, 1958.
    [Rehearing denied November 17, 1958]

      Talley & Owen, by William L. Blair and James R. Howard, for appellant.

      Martin K. Fulh and Gentry <B Gentry, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question in this case is whether usury tainted the sale of the automobile involved.

On July 20, 1951 Tony Morris contracted to purchase a 1949 Ford automobile from Rebsamen Motors, Inc. Here are the figures as reflected in the Conditional Sales Contract:

Total Cash Price $1,345.00

Total Time Price 1,608.25

Less Trade-in of Old Car 535.00

Unpaid Balance of Time Price 1,073.25

Morris signed a note for $1,073.25, payable in fifteen monthly installments of $71.55 each. He paid some of these monthly installments and then sued to cancel the contract because of usury (§ 68-602 et seq. Ark. Stats.).

Morris claimed that the difference between the $1,608.25 (total time price) and $1,345.00 (total cash price) was $263.25; that $101.50 of this was for insurance; and that the balance of $161.75 was for “finance charges”, which amount was in excess of 10 per cent per annum, the interest on the amount actually due if calculated on the total cash price instead of the total time price. In other words, Morris claimed that the “finance charge” was a cloak for usury. The Trial Court agreed with Morris and entered a decree cancelling any balance claimed by Rebsamen. This appeal ensued.

We call particular attention to the fact that this transaction was on July 20,-1951. We also mention that the date of finality of our holding in the case of Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973, was June 30, 1952. If the transaction here involved had been after the final date of the Hare case, then the decree herein would be affirmed. In the Hare case we pointed out that the “time price differential” which had allowed finance charges and other charges in excess of 10 per cent had been approved in a long line of cases and we would not upset those holdings retrospectively; and then we said:

“But the time has come when we must re-examine these holdings, so we now give the public a caveat that the effect of transactions, such as in the case at bar, may impinge on the constitutional mandate against usury, and transactions entered into after this appeal becomes final, may be subjected to the taint of usury with the aforementioned decisions affording no protection. ’ ’

In numerous cases since the Hare case we have upheld, as against the claim of usury, contracts like the one here involved tvhich were entered into before the date the Hare opinion became final. Some of these cases are: Crisco v. Murdock, 222 Ark. 127, 258 S. W. 2d 551; Universal C.I.T. Credit Corp. v. Crossley, 222 Ark. 200, 258 S. W. 2d 562; Murdock Acceptance Corp. v. Clift, 222 Ark. 313, 259 S. W. 2d 517; and Universal C.l.T. Credit Corp. v. Hall, 225 Ark. 78, 279 S. W. 2d 281. The case at bar cannot be distinguished from the cases last cited.

Therefore, the decree is reversed and the cause is remanded, with directions to enter a decree for appellant for the unpaid balance of principal and interest due on said contract involved, together with costs.


author: Minor W. Millwee, Associate Justice.

text:
    General Casualty Company of America v. State.
    5-1645
    316 S. W. 2d 704
    Opinion delivered October 13, 1958.

      Barrett, Wheatley, Smith S Deacon, for appellant.

      Bruce Bennett, Atty. General, and Bill J. Davis, Asst. Atty. General, for appellee.
   Minor W. Millwee, Associate Justice.

Lonnie Neal, James George Reaves and George P. Garner - were charged with burglary and grand larceny in Poinsett County in April, 1957 and placed in jail at Harrisburg, Arkansas. At that time John G. Powell of Sikeston, Missouri was an agent of the appellant, General Casualty Company of America, which was subsequently consolidated with the other appellant, General Insurance Company of America, and will be hereafter referred to as “General.”

On June 25, 1957 John G. Powell came to Harrisburg and executed bail bonds of $12,500 for each of said defendants as attorney-in-fact for General as surety on said bonds. Trial of the three defendants was set for September 30, 1957, when Neal and Reaves failed to appear and forfeitures were declared on their bonds and summons was issued and served on General as surety. After a hearing on November 8, 1957, the trial court entered judgment against Neal personally but the matter of the liability of Reaves and General was taken under advisement. On January 28,1958 judgment was entered for appellee, State of Arkansas, against General as surety on the Neal bond for $12,500, but the forfeiture against Reaves was set aside and General was released and discharged under his bond. Hence this appeal by General in the Neal case and cross-appeal by the State in the Reaves case.

I. The Direct Appeal. For reversal of the judgment against it on the Neal bond, General earnestly insists that its agent, John G. Powell, exceeded both the real and apparent scope of his authority in executing the bail bonds in question in Arkansas, and the surety he purportedly represented is not liable thereon. On this point Sheriff C. T. Sullivan testified that when he questioned Powell’s authority to execute bonds in Poinsett County, Arkansas in June, 1957, the latter showed him a power of attorney attached to each of the bonds, which reads in part as follows: “KNOW ALL MEN BY THESE PRESENTS: That the GENERAL CASUALTY COMPANY OF AMERICA by ANTONY PAN-ELLA its Vice-President,' in pursuance of authority granted by Sections 3 and 4, Article V of the By-Laws of said Company, a copy of which sections is hereto attached, does hereby nominate, constitute and appoint JOHN G. POWELL, Sikeston, Missouri its true and lawful attorney-in-fact, to make, execute, seal and deliver for and on its behalf, and as its act and deed any and all bonds and undertakings, in its business of guaranteeing the fidelity of persons holding places of public or private trust, and in the performances of contracts other than insurance policies, and executing and guaranteeing bonds or other undertakings required or permitted in all actions or proceedings, or by law required or permitted.

“All sucb bonds and undertakings as aforesaid to be signed on bebalf of tbe General Casualty Company of America and the corporate seal of tbe Company affixed thereto by John G. Powell, individually.

“And tbe execution of sucb bonds or undertakings in pursuance of tbes¿ presents, shall be as binding upon said Company, as fully and amply, to all intents and purposes, as if they bad been duly executed and acknowledged by tbe regularly elected officers of tbe Company at its Home Office, Seattle, Washington, in their own proper persons.

“IN WITNESS WHEREOF, tbe said ANTONY PANELLA has hereunto subscribed bis name and affixed tbe Corporate Seal, of tbe said General Casualty Company of America this 13 day October 1952.

(Signed) Antony Panella Vice-President.”

Following this on tbe foregoing document was an acknowledgment of tbe execution of tbe instrument by Panella in his capacity as Vice President before a notary public of King County, Washington, together with the two sections of tbe by-laws of tbe company authorizing him to appoint and designate individuals “to execute on bebalf of tbe Company fidelity and surety bonds and other documents of a similar character . . .”

General’s principal offices are in Seattle, Washington with a division office at St. Louis, Missouri. Tbe manager and a claim adjustor of tbe St. Louis office gave testimony tending to show that a written “Limit of Authority” was issued to Powell in 1952 which provided that before executing bail bonds an agent should first submit tbe proposal to tbe Company for approval; that this procedure was not followed by Powell in executing tbe bonds in question; and that tbe witnesses first learned of tbe execution of tbe bonds in October, 1957. When contacted by representatives of General at that time Powell showed them copies of execution reports of the bonds in question which he claimed were duly made and forwarded to the St. Louis office in June, 1957. Powell also turned over to them at that time a note for $28,000.00 and deed of trust which were executed by Neal and Reaves and their wives to General on May 24, 1957. While Powell had statewide authority to represent General in Missouri, he held no Arkansas license as an insurance agent.

The applicable principles of agency were well stated by Chief Justice McCulloch in Three States Lumber Co. v. Moore, 132 Ark. 371, 201 S. W. 508, as follows: “The law is that an agent acting within the apparent scope of his authority, though in violation of specific instructions, may bind his principal in dealing with one who has no notice of the restrictions upon the agent’s authority. Parsel v. Barnes, 25 Ark. 261; Jacoway v. Insurance Co., 49 Ark. 320; Liddell v. Sahline, 55 Ark. 627; Forrester-Duncan Land Co. v. Evatt, 90 Ark. 301; Brown v. Brown, 96 Ark. 456.

“An exception to that rule is that where the agency is special, and not general, that is to say, where his authority is to be confined to a single transaction or to a particular act, there is no presumption as to general authority, and one dealing with him must ascertain the extent of his authority. Liddell v. Sahline, supra; Mutual Life Insurance Co. v. Reynolds, 81 Ark. 202; Jonesboro, Lake City & Eastern Rd. Co. v. McClelland, 104 Ark. 150. But one dealing with an admitted agent has the right to presume, in the absence of notice to the contrary, that he is a general agent clothed with authority coextensive with its apparent scope. Oak Leaf Mill Co. v. Cooper, 103 Ark. 79.”

In support of the contention that the writing of bail bonds in Arkansas was wholly without the apparent scope of Powell’s authority, General relies on New Hampshire Fire Insurance Co. v. Walker, 178 Ark. 319, 11 S. W. 2d 772, and Central Surety & Insurance Corporation v. O. & S. Wholesale Co., Inc., 193 Ark. 523, 101 S. W. 2d 167, which hold that the fact that one is an agent of an insurance company for a defined territory gives him no power to bind the company by contracts entered into covering property outside of the territorial limits. The Walker case involved the authority of a local agent whose authority was clearly restricted to one city and did not involve the agent’s use of a power of attorney furnished by his principal like the one used in the instant case. The second case relied on involved the authority of a local soliciting agent to make a verbal surety contract where the power of attorney under which he acted clearly negatived such authority.

We hold the evidence in the instant case sufficient to sustain the trial court’s finding that John G. Powell acted within the apparent scope of his authority as the agent of General in executing the bail bonds. The broad . power of attorney issued by General to Powell, and used by him in convincing third parties of his authority to execute the bail bonds in question, contained no territorial limitations on his power to do so. Appellee had no notice of the secret restrictions issued to Powell by General. It had a right to rely on the power of attorney which clearly clothed Powell with apparent authority to execute the bonds.

We do not agree with General’s contention that its agent acted without authority, real or apparent, because he was unlicensed and prohibited by our statutes (Ark. Stats., Sec. 66-603 and 66-314) from executing bonds in Arkansas. These statutes prohibit insurance or surety companies from authorizing a non-resident of Arkansas to issue policies on property or persons located in this state. In construing similar statutes we have said, they are not intended to, and do not, have any effect upon the agent’s power to bind the principal, nor do they change the general laws of agency. See Continental Casualty Co. v. Erion, 186 Ark. 1122, 57 S. W. 2d 1025 and Fireman’s Fund Ins. Co. v. Leftwich, 192 Ark. 159, 90 S. W. 2d 497.

Since we conclude that a valid surety contract was entered into by the parties, we find no merit in the further argument that enforcement of the instant judgment will deprive General of its property without due process of law in violation of the Fifth and Fourteenth. Amendments to the U. S. Constitution.

II. The Gross-Appeal. The State insists that the trial court erred in granting the motion to set aside the forfeiture of the bond of James George Reaves. Under Ark. Stats. Secs. 43-724 and 43-729 it is within the court’s discretion to discharge the forfeiture if the defendant; appears and satisfactorily excuses the failure before, final adjournment of the court, or the court may remit any portion of the sum specified in the bond if the defendant is surrendered before judgment is entered. At the hearing on November 8, 1957, Reaves appeared and offered testimony tending to show that he was unavoidably confined to a hospital in Texarkana, Arkansas, after undergoing an operation for appendicitis when the forfeiture was declared on his bond on September 30, 1957. There was no abuse of judicial discretion in discharging the forfeiture under this proof.

The judgment is affirmed.


author: George Rose Smith, J.

text:
    Holland v. Interstate Fire Ins. Co.
    5-1580
    316 S. W. 2d 707
    Opinion delivered October 13, 1958.

      Johnston & Rowell and Brasil & Brasil, for appellant.

      Gordon & Gordon, for appellee.
   George Rose Smith, J.

This is an action by the appellants to recover $1,300 upon two fire insurance policies, by which the appellee insured a dwelling house and household goods. The insurer denied liability on the ground that, in violation of the terms of the policies, the house had been vacant for more than sixty days at the time of the fire. At the close of the proof the trial judge directed a verdict for the defendant.

Since it is conceded that the dwelling had been vacant for some six months when it burned, the trial court’s action was correct unless there was substantial evidence from which the jury might have found that the insurer waived this clause in the policies. On this point Lizzie Maxfield, one of the appellants, testified that on each of three occasions, as the company’s agent Davidson was collecting a monthly premium, she informed him that the house was unoccupied, and she says that on one occasion Davidson assured her that the insurance was good despite the vacancy. In view of this proof the issue narrows down to that of Davidson’s authority in the matter.

The appellants contend that Davidson was a general agent for the company, while the appellee insists that he was merely a soliciting agent. The familiar distinction between the two types of agency involves a question of substance rather than one of name only. A general agent is ordinarily authorized to accept risks, to agree upon the terms of insurance contracts, to issue and renew policies, and to change or modify the terms of existing contracts. Appleman on Insurance, § 8696. On the other hand a soliciting agent is ordinarily authorized to sell insurance, to receive applications and forward them to the company or its general agent, to deliver the policies when issued, and to collect premiums. American Ins. Co. v. Hampton, 54 Ark. 75, 14 S. W. 1092; German-American Ins. Co. v. Humphrey, 62 Ark. 348, 35 S. W. 428, 54 A. S. R. 297; American Ins. Co. v. Hornbarger, 85 Ark. 337, 108 S. W. 213. He has no authority to agree upon the terms of the policies or to change or waive those terms, nor can his knowledge be imputed to the company he represents. Sadler v. Fireman’s Fund Ins. Co., 185 Ark. 480, 47 S. W. 2d 1086.

The appellants, as the plaintiffs, had the burden of proving Davidson’s real or apparent authority to bind his company to a modification of the written contracts. American Nat. Ins. Co. v. Laird, 228 Ark. 812, 311 S. W. 2d 313. In our opinion the trial court properly held that the burden of proof had not been sustained.

For the most part the evidence relates to matters which, under our prior decisions, fall within the usual duties of a soliciting agent. It is shown that Davidson was authorized to accept applications for fire insurance, to inspect the property to be insured, to forward the applications to the company’s home office for its approval, to deliver the policy if issued by the insurer, and to collect premiums. None of these matters involve a general agent’s discretionary power to accept risks and to agree upon the terms of the contract.

The appellants introduced proof of other services performed by Davidson, to be mentioned in a moment, and now stress the fact that his activity did not invariably end with the delivery of the policy. That, however, is not the test; premiums, for example, are often collected by the soliciting agent after the policy has been delivered. The real issue is whether the subsequent services fall within the scope of a general agent’s real or apparent authority to bind the principal.

Here the evidence does not indicate that Davidson had been delegated the authority to exercise contractual powers on behalf of the appellee. It is shown that he used a rubber stamp referring to him as an agent of the company; but that statement was true, as he was admittedly the insurer’s agent. The situation differs materially from that in Pacific Mut. Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, 124 S. W. 764, relied upon by counsel, where the insurer furnished stationery describing Claude D. Head as its general agent and where we said that the uncontroverted facts showed Head to have been a general agent.

Again, it was shown that Davidson delivered the form for the proof of the appellants’ loss and, when it had been completed, forwarded it to the company. This evidence falls decidedly short of suggesting that Davidson was authorized to pass upon the claim; to the contrary, it demonstrates that his duty was merely ministerial and that the power to act upon the claim was reserved by his principal.

The appellants also call attention to a clause in the agreement between Davidson and the appellee, by which Davidson agreed to sell insurance, collect premiums, and "aid in the proper adjustment of claims.” In substance it is argued that this clause clothed Davidson with the authority of an adjuster and therefore empowered him to waive provisions in the policies. Our decision in Queen of Ark. Ins. Co. v. Forlines, 94 Ark. 227, 126 S. W. 719, is cited in support of this contention.

There are at least two defects in this chain of reasoning. To begin with, the agency contract in question provides in another clause that Davidson has no authority to make, alter, or discharge any contract, or to waive forfeitures. Since it is not intimated that the appellants had any knowledge of this agency contract until it was introduced in evidence by the appellee, this issue concerns Davidson’s actual authority rather than any apparent authority on his part. Davidson’s duty to “aid” in the adjustment of claims cannot fairly be supposed to include a power that is elsewhere explicitly denied.

Secondly, unlike the situation in the Forlines case, here Davidson did not act as the adjuster in connection with the appellants’ claim; that duty was performed by other agents of the insurer. Indeed, it is not shown that Davidson’s assistance in the adjustment of claims ever went beyond the ministerial act of delivering checks that had been issued by the insurer for losses approved by it. It must be remembered that Davidson was assertedly told of the vacant house while he was collecting premiums as a soliciting agent, not while he was exercising any limited authority he may have had to aid in the adjustment of claims.

The appellants, in contending that Davidson was authorized to act as a general agent for the appellee, have listed and proved a number of services performed by him, much as it might be shown that a clerk in a retail store performs a variety of duties in the course of his employment. But the question is whether any of Davidson’s activities would justify a jury in finding that he was invested with the discretionary powers of a general agent, and that proof is wanting.

Affirmed.


text:
    Bank of Pea Ridge v. Campbell.
    5-1620
    316 S. W. 2d 713
    Opinion delivered October 13, 1958.

      Jeff Duty and Claude Duty, for appellant.

      Vol T. Lindsey, for appellee.
   Paul Ward, Associate Justice.

The trial court made two findings from which appellant appeals. One. It reformed a certain deed, changing it to describe a homestead of % of an acre. Two. It held that the signature on another deed was not a forgery. The facts leading to a presentation of these issues are set out below.

Charles T. Tetrick owned and maintained his home in Pea Ridge, Benton County, for many years before his death on December 1, 1955. Previous to 1949 he was engaged in raising chickens, financed by appellant, the Bank of Pea Ridge. In the year last mentioned the appellant secured a judgment against him for about $20,000. In May, 1950 Tetrick was adjudged a bankrupt, but was denied a discharge because, as the Referee found, of the questionable manner in which he had handled his finances with appellant. The Referee, however, found that Tetrick’s homestead could not be subjected to the payment of his debt to the bank. When Tetrick died in 1955 appellant filed its claim against his estate in the amount of $18,609.61, the balance due at that time.

In order to properly understand the issues involved it is necessary to describe the property which Tetrick owned in Pea Ridge on which his home was situated. Parts of it can only be described by tedious metes and bounds measurements, but, for simplification and convenience, we describe it in this manner: Parcel (a) Lot 3 Block 1, which is in the shape of a parallelogram, 125 feet east and west and 144% feet north and south; Parcel (b) Lot 10, Block 1, which is in the shape of a parallelogram, 40 feet east and west and 80 feet north and south, and which adjoins Lot 3 on the south at the southwest corner thereof, and; Parcel (e) which can only be described accurately by metes and bounds, but is an extension of Lot 3 on the west side for a distance of 87 feet, and also a small triangular parcel on the south side of said extension, and on the west side of Lot 10. This was all the land owned by Tetrick, and consisted of approximately an acre.

On January 1,1951 Tetrick (his wife having previously died) executed a deed to his daughter, appellee, to Parcel (a), or Lot 3. This deed was recorded 5 days after his death. We shall refer to this deed as deed No. 1. The record also contains a deed, same date, purporting to be signed by Tetrick conveying to appellee all of his property, i.e. Parcels (a), (b), and (c). This deed, never acknowledged or recorded, will be referred to as deed No. 2.

The land comprising the homestead of Tetrick, which it is conceded here can consist of no more than % of an acre, was determined by the trial court (with the assistance of a survey) to include a strip of land 54.68 feet wide of uniform width lying along the west side of Lot 3, and also a small portion of Lot 3 in the northwest corner thereof, being 25 feet wide and 119% feet north and south. The court and the surveyor, of course, described the % acre accurately by metes and bounds.

Appellant, on January 25, 1956, filed a suit against appellee to cancel deed No. 1 in order that the property might be applied to the satisfaction of his judgment heretofore mentioned. Replying to the above appellee contended that it was the intention of her father, by deed No. 1 to convey to her his homestead, and asked to have the said deed so reformed, and also (later) pleaded the execution of deed No. 2. In turn, appellant answered that deed No. 2 was never delivered to appellee, and that the signature on the deed was forged and not the genuine signature of Tetrick, and that there was no consideration for deed No. 1. There were other pleadings and other parties, but none of them have any bearing-on the two issues here raised.

One. We think the evidence supports the trial court’s decree ordering deed No. 1 reformed to convey to appellee the homestead. In fact there is no testimony to the contrary. The genuineness of deed No. 1 is not questioned, nor does appellant contend that Tet-rick’s homestead was not exempt from execution for payment of its judgment. On the other hand the evidence and circumstances are convincing that Tetrick did intend to convey his homestead to appellee and that he most likely did not know how to correctly describe the homestead. Appellee testified that when her father gave her deed No. 1, he stated it was intended to convey the homestead. Appellee had lived there and had helped her father in many ways. Much of this was corroborated by her husband. The deed was drawn by Tetrick’s attorneys in Harrison using the description given them. However, sometime later the attorneys wrote Tetrick a letter stating the wrong description had been used, inclosing a new metes and bounds description describing parcel (c) above and also the 25 feet by 119% feet strip heretofore mentioned. The letter, dated April 7, 1951 and addressed to Tetrick, reads as follows: “Herewith enclosed copy of revised description of property claimed as homestead. This description consists of considerably more than one-quarter acre — in fact, about .39 of an acre, but was approved by the Referee.” The only reasonable conclusions deducible from the above letter are that Tetrick had instructed his attorneys to prepare a deed conveying his homestead to appellee, that they later recognized a mistake had been made in the description of the homestead, and that they attempted to correct it.

We do not agree with appellant’s contention that there was no consideration for the conveyance, and therefore not subject to reformation. On the contrary the evidence shows that appellee had advanced money to and on behalf of her father on numerous occasions. It may be the appellee did not expect or demand repayment, but that could have been the father’s motivation in the execution of the deed. Appellee’s testimony is undisputed that she deposited money in the bank to her father’s account when he was in financial straits, that she paid $1,000 for her mother’s funeral and also paid for the tombstone, and that she advanced approximately $1,500 to help build the very home which her father attempted to deed to her.

It is our conclusion therefore that the evidence clearly supports the trial court’s decree in reforming deed No. 1 so as to convey to appellee the homestead by a description which was furnished him by a surveyor, the correctness of which is not challenged.

Two. In view of what we have already said, it would serve no useful purpose to discuss at length the validity of deed No. 2. If it is conceded that deed No. 2 was a fraud, it would not necessitate a reversal. In our opinion, however, the evidence supports the trial court’s finding that the deed was genuine. It is true that appellant’s expert witness pointed out dissimilarities in the signatures on deed No. 1 (admitted to be genuine) and deed No. 2, but as noted by the trial court, dissimilarities also appeared in other genuine signatures of Tetrick. In addition, the positive and uncontradicted testimony of appellee and her husband was that her father delivered the deed to her at his home. It does not seem reasonable that he would have done so if he had not signed it.

Affirmed.


text:
    Heidelberg Southern Sales Company v. Tudor.
    5-1636
    316 S. W. 2d 716
    Opinion delivered October 13, 1958.

      Virgil D. Willis and Marvin A. Hathcoat, for appellant.

      John B. Driver and N. J. Henley, for appellee.
   Sam Robinson, Associate Justice.

The issue is whether a contract for the sale of a printing press is usurious. On July 23,1956, appellant, Heidelberg Southern Sales Company, sold a printing press to appellee, James R. Tudor, under a title retaining contract. The purchaser made a part payment in cash and the balance was to be paid in monthly installments. Tudor refused to make the monthly payments, and Heidelberg filed this suit to replevy the machine. A jury was waived and the canse submitted to the court. From a finding by the court that the sales contract is usurious, the Heidelberg Company has appealed.

The sales contract shows a selling price of $4,823.84, with $1,062 being paid in cash, leaving a balance of $3,-761.84, to be paid in 36 monthly installments with no interest. But this is not the entire picture. Ordinarily parol evidence is not admissible to vary the terms of a written contract, but there is an exception when such evidence is for the purpose of showing usury. Tillar v. Cleveland, 47 Ark. 287, 1 S. W. 516; Prickett v. Williams, 110 Ark. 632, 161 S. W. 1023; Crisco v. Murdock Acceptance Corp., 222 Ark. 127, 258 S. W. 2d 551.

Here the trial court made a finding that the actual sales price was $4,250. From the evidence it does not appear that any other price was ever discussed. In fact, the invoice shows a selling price of $4,250, and a cash payment of $1,062, which would leave a balance owed of $3,188. The invoice also shows a finance charge of $573.84, and the entire balance to be paid in 36 monthly installments of $104.50 each. As pointed out by the trial court, this arrangement amounts to usury. Crisco v. Murdock Acceptance Corp., 222 Ark. 127, 258 S. W. 2d 551.

In the case at bar the trial court said: “From the pleadings and the testimony it appears that three written instruments were executed by the plaintiff in connection with this sale: First, the sales order dated July 13 signed by the defendant and by G. Martin as salesman; second, the conditional sales contract dated July 23, 1956; third, the invoice of the shipment. From these instruments and other evidence it appears that the basic cash price of the printing press was $4,250.00; that an old press was traded in and valued at $700.00 and that the defendant at that time paid $100.00 in cash leaving a balance due at the time the sales order was executed of $3,450.00. It is undisputed that the defendant later paid the additional sum of $262.00 in cash leaving a balance cash price of $3,188.00. This is the amount the purchaser could have paid and discharged his full obligation to the plaintiff. However, as the contract indicates, he elected to pay the balance in 36 monthly payments. It was then that the sum of $573.84 was added to the net cash price as ‘finance charges’, making the total deferred payment $3,761.84. The question before the Court then is what goes to make up this sum of $573.84 and does it include an excessive amount of interest. The Court finds the interest on the net cash balance $3,188.00 for the three year period at the rate of 10 per cent per annum to be $507.58. Therefore, the amount of the finance charges is $66.26 in excess of the maximum rate of interest allowed.

“Since the contract and the other written instruments in connection therewith were prepared by the plaintiff and on forms furnished by it, the plaintiff had ample opportunity to set out in detail the amounts that constituted these ‘finance charges’, but it failed to do so. It is the opinion of the Court that the burden of explaining the various amounts that go into this finance charge rests upon the plaintiff, and in the absence of such explanation, the Court must assume that the entire amount is interest. The plaintiff’s witness Mr. Huddles-ton did offer some explanation of this item and of what is included in the monthly payments when he stated that ‘each installment covers a monthly payment of the value of the press itself, a part of the financing charge, Heidelberg Southern’s monthly cost of overriding insurance carried by Heidelberg Southern until the buyer’s obligation is fully discharged and pro-rated share of periodic service visits’ . . . However, no definite amounts are given for any of these items, and the Court thinks that they do not meet the burden that rests upon the plaintiff to explain this ‘finance charge’.”

In Jones v. Jones, 227 Ark. 836, 301 S. W. 2d 737, we pointed out in a similar situation that the trier of 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”.

Appellant next contends that the instrument involved is a Texas contract and that therefore the law of Texas should be applied, and that according to the law of that state the charge of a usurious rate of interest does not forfeit the principal. True, the order for the machinery was accepted in Texas, and it was shipped from that state, but the monthly installments were payable in New York, Chicago or San Francisco; the delivery and acceptance were performed in Arkansas, and the chattel, until paid for in full, was to be located in Arkansas, where fire insurance was to be carried and taxes were to be paid. In these circumstances, the place of performance of the contract was in this state, and the validity of its provisions will be construed according to the law of this state. Summers, Rec’r. v. Carbondale Machinery Co., 116 Ark. 246, 173 S. W. 194.

Affirmed.


text:
    Manufacturers Casualty Insurance Company v. Hughes.
    5-1587
    316 S. W. 2d 827
    Opinion delivered October 20, 1958.

      W. B. Putman, for appellant.

      James B. Hale and Bex W. Perkins for appellees; Howard Cockrill, of Cockrill, Limerick & Laser, for Assn, of Casualty and Surety Companies, amicus curiae.

   Carleton Harris, Chief Justice.

On June 26, 1956, in the city of Fayetteville, Dan A. Spencer, 22 years of age, went to the office of Chester P. Leonard, Allstate Insurance Company agent, for the purpose of obtaining automobile bodily injury and property damage liability insurance on his 1953 Chevrolet automobile. Because of the fact that Spencer did not intend to live at home, Leonard was unable to write the policy in Allstate, and turned down the application. Leonard then told Spencer that insurance was available through the Arkansas Automobile Assigned Risk Plan, which is authorized under Act 347 of 1953, said Act being known as the Motor-Vehicle Safety Responsibility Act. Spencer made application for insurance through the Plan; the application form was filled out by Leonard, signed by Spencer, and the latter executed a draft for $15, required under the terms of the Plan to be sent along with the application. The draft bore the notation: “For down payment on insurance on 1953 Chev.” Later in the day, Leonard purchased a draft with the $15, drawn payable to the Arkansas Automobile Assigned Risk Plan and mailed it, along with Spencer’s application, to the Risk Plan Office in St. Louis, Missouri.

The application and draft arrived in the Risk Plan offices the next day, June 27th, and the Plan manager forwarded a notice to Manufacturers Casualty Insurance Company that the risk had been assigned to it, and called attention to the provisions of the Plan requiring the risk to be bound or a policy issued within two working days of the receipt of notice. This notice of designation was received by the company June 29th (a Friday), and on July 2nd, the insurance company notified Spencer that it was binding coverage on that date. Under terms of the Plan, Saturday and Sunday are not working days. The policy was subsequently issued and the company sent a commission to Leonard. In the meantime, unknown to the company, Spencer had, on June 27th, been involved in an accident while driving the Chevrolet, which resulted in the death of Charles Hughes. This, of course, was the same day Spencer’s application was received by the Assigned Risk Plan Office and two days before the insurance company received notice that the risk had been assigned to it. Emma M. Hughes, widow of Charles Hughes, and children, instituted suit against Spencer, and the latter made demand upon appellant to defend such suit. The company declined to do so on the ground that it afforded Spencer no coverage at the time of the accident. Mrs. Hughes, et al, recovered judgment against Spencer in the sum of $5,000, and the company refused to pay the judgment. After an execution against Spencer was returned nulla bona, Mrs. Hughes and children instituted the instant action against Manufacturers Casualty Company praying judgment for the $5,000, the statutory 12 per cent penalty, and attorney’s fees. At the conclusion of appellees’ evidence, and at the conclusion of all the testimony, appellant moved for a directed verdict. The motion was denied in each instance, and appellant’s exceptions noted. The jury, in answer to special interrogatories, found that Leonard had represented to Spencer that his insurance became effective upon payment of the $15 to Leonard, and further found that Spencer was justified in relying upon such representa- ' tion. The court found, as a matter of law, that Leonard was acting as the agent of Manufacturers Casualty Insurance Company, and also found that Spencer was entitled to recover $500 on a cross-complaint filed against the company, representing attorney’s fees expended by Spencer in defending the original suit. Verdicts were directed in favor of Spencer and Leonard on the plaintiff’s complaint, and judgment was entered against appellant in favor of Emma M. Hughes, et al, for $5,000, plus penalty in the amount of $600 and attorney’s fee in the amount of $750, together with costs; judgment was entered in favor of Spencer against the company for $500 and costs. From the judgment of the court, appellant brings this appeal.

Perhaps first, a brief discussion of the purpose of Act 347 of 1953, and the Assigned Risk Plan is in order. The purpose of the Act is expressed in the title: “AN ACT to Eliminate the Reckless and Irresponsible Driver From the Highways and to Provide for the Giving of Security and Proof of Financial Responsibility By Persons Driving or Owning Vehicles of a Type Subject to Registration Under the Laws of This State; and for Other Purposes.” In general, the Act makes certain requirements of one who has been involved in an accident, and provides methods for the establishment of future financial responsibility for those who have been convicted of certain offenses under the Motor-Vehicle laws, or who have failed to pay judgments arising from causes of action from automobile accidents. The assigned Risk Plan is authorized by Optional Section 86 of the Act, and reads as follows:

“Assigned Risk Plans. After consultation with the insurance companies authorized to issue automobile liability policies in this State, the Commissioner of Insurance shall approve a reasonable plan or plans, fair to the insurers and equitable to their policyholders, for the apportionment among such companies of applicants for such policies and for motor-vehicle liability policies who are in good faith entitled to, but unable to procure such policies through ordinary methods. When any such plan has been approved, all such insurance companies shall subscribe thereto and participate there- * ^ * # * J Í

The purpose of this Section is to provide insurance for those persons who cannot obtain liability insurance in the regular manner, though some of these may not have necessarily been involved in accidents, and perhaps have no record as traffic violators. For instance, many companies are reluctant to insure an elderly driver; many refuse to accept the application of a teen-age driver; still others have regulations preventing the acceptance, in the normal course of business, of an application such as we have in the instant case (Allstate Insurance Company would not issue a policy because of the fact that Spencer was not going to remain at home). In each of these instances, the refusal of the company is not based upon any misconduct of the applicant, but only because of the general policy of that company which refuses that type of risk. Pursuant to this Section, the Insurance Commissioner worked out a plan with the insurers authorized to issue automobile liability policies within this State, and all such companies are required to participate in the Plan. The purposes are set forth in Section One of the instrument:

“a. To provide a means by which a risk that is in good faith entitled to automobile bodily injury and property damage liability insurance in the State, but is unable to secure it for itself, may be assigned to an authorized insurance carrier.

b. To establish a procedure for the equitable distribution of such assigned risks among such insurance carriers. ’ ’

The Plan provides that an eligible applicant shall make his application and may designate any licensed agent of an authorized insurance carrier to act in his behalf in soliciting coverage. The application is then sent to the Manager of the Plan. Section 42 provides that the Manager shall designate an insurer to whom the risk will be assigned. Section 43 provides that upon receipt of notice of designation, and the premium or deposit from the Manager, the designated insurance company shall, within two working days,

“1. Issue a policy or binder if all information necessary for the carrier to fix the proper rate is contained in the application form, such policy to become effective 12:01 a.m. on the day following the second working day, or

2. Bind the risk if all information necessary for carrier to fix the proper rate is not contained in the application form, such binder to become effective 12:01 a.m. on the day following the second working day, or

3. In the event such carrier does not have on file rates applicable to the risks assigned to it, make the necessary filing and immediately upon its becoming effective issue a policy or binder, such policy or binder to become effective 12:01 a.m. on the day following the second working day following the effective date of the filing.

*****

The day on which the notice of designation and deposit are received from the Manager shall be deemed the first working day, whatever may be the time of such receipt.”

The provisions of the Plan here under discussion appear reasonable, and consistent with the Statute. The two working days which are allowed the designated company as a period within which to issue a policy or binder, would certainly appear to be a reasonable period of time. This being true, it follows as stated in Volume 42, American Jurisprudence, page 432:

“Rules, regulations, and general orders enacted by administrative authorities pursuant to the powers delegated to them have the force and effect of law. * * * Administrative regulations are binding on all persons subject to them without notice, and the courts will take judicial notice of them. * * *

Appellees questioned the materiality and relevancy of the Plan when it was introduced at the trial of the case, but since Spencer applied, and was insured, under its provisions, we certainly deem such provisions relevant.

We have concluded that Spencer, at the time of the accident, was not insured by appellant. This conclusion is reached because Spencer was not covered under the terms of the application executed by him and sent in to St. Louis, and as a matter of law, Leonard was without authority to orally bind the risk. At the top of the applicatin form, which was signed by Spencer, appears the word, in large black type, “Important.” Immediately beneath this word, appears the following:

‘ ‘ This application must be filled out in duplicate and accompanied by the investigation fee or deposit premium prescribed in the Assigned Risk Plan. Every item must be completed and answers typewritten or written legibly in ink. If you are eligible for insurance under the Plan, the allowance to the producer of record for services rendered in connection with this application will be paid by the company to which the risk is assigned.

This application does not constitute a binder of insurance. Coverage becomes effective only in accordance with the terms of the Plan.

The application lists certain questions relative to the occupation of the applicant, the purposes for which the car will be used, and certain information relative to the driving record of applicant. The testimony reflects that these questions were asked Spencer by Leonard, and the answers inserted by the latter, following which, the application was handed to Spencer, and signed by him. Spencer stated that he signed the application, but did not read it before signing. His testimony was to the effect that he “understood” he had insurance as of that date, though he admitted that he knew he was not being-insured by Allstate, and was not told by Leonard that the latter represented Manufacturers Casualty; he would neither affirm nor deny that Leeonard explained to him that coverage would only become effective in accordance with the terms of the Plan, and that the application was not a binder. Leonard testified that he explained the Plan to Spencer, and told applicant that he had best be careful because “* * * you won’t have any insurance for two or three days, until you get a letter back from the company that gets your assignment or gets you a policy back.” He further stated that he did not know of Manufacturers Casualty Insurance Company at the time of taking Spencer’s application. Under the view we take, the conversation between the parties, and what Leonard may have said, or left unsaid, are immaterial, and the court accordingly erred in submitting the interrogatories to the jury. The application very clearly and emphatically provides that it does not constitute a binder of insurance. In Universal C.I.T. Credit Corporation v. Lackey, 228 Ark. 101, 305 S. W. 2d 858, we quoted from Texas Company v. Williams, 178 Ark. 1110, 135 S. W. 2d 309, which Opinion had quoted Upton v. Tribilcock, 91 U. S. 45, as follows:

“ ‘It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract; and, if he will not read what he signs, he alone is responsible for his omission.’ ”

"While Spencer did not sign a contract, the same rule applies to his failure to read the offer made. There is no evidence in the cause before us that Spencer’s signature was obtained through fraud, and though we recognize that possibly many individuals sign instruments without reading them, in such event, the signer does so at his own risk. In the matter before us, by simply reading the opening paragraph, Spencer would have known that he was not then covered.

Aside from this point, there is an even more decisive reason why appellees cannot prevail. Por affirmance of the judgment, they rely, as indeed they must, upon the alleged ‘ ‘ oral binder ’ ’ by Leonard. They argue that by becoming a member of the Assigned Risk Plan, appellant made Leonard its agent, to take applications for policies, to issue binders, and to enter into the contract for insurance made with Spencer. It is pointed out that the policy itself listed Leonard as “local agent or broker.” The company forwarded the policy to Leonard, who in turn, delivered it by mail to Spencer, and the company sent Leonard a check for his commission.

"We cannot agree, that by becoming a member of the Plan, appellant designated Leonard as its agent. Appellant, as an insurance company doing business in this state, was required to enter the Plan, but its obligations, duties, and liabilities as such a member, are limited by the provisions of the Plan itself. It is true that the company forwarded the policy to Leonard, and that his name was listed under the space for the name of the local agent or broker (a standard company policy, but stamped “Assigned Risk”); that he in turn delivered the policy to Spencer, and Leonard received a commission, from appellant. This procedure is provided for in the Plan, but Section 41 of that instrument clearly negatives any contention that Leonard was a general agent for appellant. That Section provides:

“A risk which desired insurance and has been unable to obtain it for itself, and thus becomes an applicant under this Plan, shall proceed in accordance with this Article and the applicant may designate any licensed agent of any licensed and authorized casualty insurance carrier to act on his behalf in soliciting coverage from insurers as recited by Section 20 and this Article, but in either case the applicant must sign the application form.

The fully completed application, in duplicate, shall then be filed with the Manager of the Plan. ’ ’

It will thus be seen that any insurance agent who is approached to make the contact for any applicant desiring to obtain insurance under the Assigned Risk Plan, acts as the agent of the applicant rather than the agent of the insurer. In the case of Matsuo Yoshida v. Liberty Mutual Insurance Co., 240 F. 2d 824, we find:

‘ ‘ Gonzales filed his application for insurance under the California Assigned Risk Plan in early April, 1952. The Assigned Risk Plan is designed to provide automobile liability insurance for those persons who are unable to procure insurance through ordinary channels. All automobile liability insurance carriers engaged in business in California are required to participate in the Plan and each carrier is assigned its pro rata share of assigned risks. * * *

He made the application at the offices of Biebrach, Bruch and Moore, Inc., insurance brokers in San Jose, California. This firm represented G-onzales and was not the agent of appellee. Accordingly, any statements that may have been made by employees of the firm cannot effect appellee’s substantive legal rights, for they had no authority, actual or apparent, to bind it.”

This is entirely in accord with reason and logic. To hold otherwise would have the effect of making each licensed casualty insurance agent in the state of Arkansas, the potential general agent of every casualty company doing business in the state. How can one he a general agent for, issue a policy, or bind, a company that he has never heard of1?

Por the reasons herein enumerated, we hold that the court erred in not directing a verdict for appellant at the conclusion of all the evidence, and the judgment of the circuit court is, accordingly, in all respects, reversed, and the cause of action dismissed.

       Spencer and Leonard were also named as defendants.

       The company can only turn down a risk assigned to it for good cause; i.e., investigation reveals the driver to be irresponsible; reckless, etc.

       Emphasis supplied.

       Spencer testified that the first time he ever heard the name “Manufacturers Casualty Insurance Company” was when he received the bill for the balance, of his premium.

       The interrogatories were as follows: 1. Was a representation made by Leonard to Spencer that upon acceptance by Leonard of $15.00 check on June 26, 1956, that Spencer was covered by insurance on that date. Answer: Yes or No. 2. Was Spencer justified in relying upon representations of Leonard on 26 June, 1956, if you find such representations were made by Leonard to Spencer, that insurance was effective upon recepit of $15.00 check? Answer: Yes or no.

       Emphasis supplied.