author: Paul Ward, Associate Justice.

text:
    Boyd v. Brown.
    5-3163
    373 S. W. 2d 711
    Opinion delivered December 23, 1963.
    [Rehearing denied Jan. 27, 1964.]

      Davis & Davis, Memphis, Temí., for appellant.

      Chas. A. Walls, Jr., Joe P. Melton, for appellee.
   Paul Ward, Associate Justice.

The trial court ruled that appellant, James Harris Boyd, had no right to share equally with his half brother and his three half sisters in certain real estate—hence this appeal. The factual background is summarized below.

James Thomas Boyd and his wife, Mary Etta, were the parents of one son and three daughters, named respectively: William Bentley Boyd, Clara Lillian Rowe, Etta Blanche Eifling, and Minnie Lucy Brown. We will at times hereafter refer to these as the four heirs. Appellant was the son of the said James Thomas Boyd by a former wife. James Thomas Boyd died in 1949 and his wife, Mary Etta, died later, intestate, in possession of the real property here involved. Other pertinent facts are revealed by the following summary of the pleadings.

Petition: Minnie Lucy Brown filed a complaint against her brother and two sisters alleging that they were equal owners of four parcels of land in Lonoke (each parcel specifically described); that the lands were not susceptible of division in kind; that they should be sold and the money equally divided between the four heirs. Order: The court ordered the lands to be sold and the proceeds to be divided between the four heirs. Intervention: Appellant set out the relationship mentioned above; that the property was an ancestral estate of James Thomas Boycl; that he (appellant) was entitled to an undivided one-fifth interest; that James Thomas Boyd deeded the property to Mary Etta Boyd in 1932 for a consideration of $1,000, no part of which was paid; that James Thomas Boyd willed all his property to Mary Etta with the understanding she would give appellant one-fifth; and that the four heirs were estopped to deny his one-fifth interest. The prayer was to have the land sold and the proceeds divided equally between the five parties. Response: The four heirs denied all allegations of intervenor; admitted Mary Etta bought the lands from James Thomas Boyd for $1,000 which amount was paid; admitted the will but said none of subject lands were included; admitted paying appellant one-fifth of proceeds of an insurance policy on the life of Mary Etta payable to James Thomas Boyd.

After a hearing on the above issues the court resolved all issues against appellant, who now prosecutes this appeal for a reversal on four separate grounds.

First, appellant says the court erred in refusing-certain testimony proffered by him. ‘ ‘ Q. Mr. Boyd, your father, did he ever say anything to you—?” The court sustained an objection to the proffered testimony. Obviously, no reversible error is shown. Appellant did not set out what his testimony would have been if he had been allowed to testify. No principle of procedure is better established by our decisions than the rule that an objection to the exclusion of testimony cannot be considered on appeal in the absence of a showing what the testimony would have been. See: Wallace v. Riales, 218 Ark. 70, 234 S. W. 2d 199, and Weston v. Hilliard, 232 Ark. 535, 338 S. W. 2d 926.

Second, we see no reversible error in the court’s refusal to allow appellant’s witness to testify as an expert regarding the market value of the subject real property. Regardless of the qualifications of the witness as an expert, any such testimony was immaterial since it was not shown that appellant had any interest in the land. ' •

Third, appellant contends the court erred in not disposing- of the property as provided by law for the division of an ancestral estate. There can be no merit in this contention because there was no testimony to show the land belonged to James Thomas- Boyd at the time of his death.

Finally, we cannot agree with appellant’s contention that the four heirs were estopped to deny he had a one-fifth interest in the subject lands. This contention is based on the fact that appellant was given one fifth' of the personal estate of Mary Etta Boyd, deceased. This could have been merely an act of generosity on the part of the four heirs or it could have been because (as contended by the four heirs) a life insurance policy on Mary Etta’s life was payable to appellant’s father. In either case, this circumstance in no way amounts to an admission on the part of the four heirs that appellant owned a one-fifth interest in the subject real estate.

Although the point is not raised or argued by appellant, it might be contended that the rule in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, is applicable here because no testimony was introduced by the four heirs in response to the testimony introduced by the intervenor. Even so, the case must be affirmed since appellant’s testimony wholly failed to make out a prima facie case in his favor.

Affirmed.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    McGehee Hatchery v. Gunter.
    5-3122
    373 S. W. 2d 401
    Opinion delivered December 23, 1963.

      Ganaway <& Ganaivay, for appellant.

      House, Holmes, Butler S Jewell, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Mc-Gehee Hatchery Company, is engaged in the business of hatching eggs on a large scale at McGehee, Arkansas. Appellee, Keno R. Gunter, who lived in Mississippi, sold newly hatched chickens for appellant; his salary was $285.00 per month. At the same time, Gunter also worked for other concerns who were engaged in some angle of the chicken business. On January 22, 1958, Gunter was severely injured in an automobile accident in Mississippi. At the time, he was on business for appellant, McGehee Hatchery, and also on business for the Warren Produce Company of Greenville, Mississippi. Gunter was awarded workmen’s compensation in Mississippi as an employee of the Warren Produce Company. Later, he filed a claim with the Arkansas Workmen’s Compensation Commission for benefits as an employee of the McGehee Hatchery Company. The Arkansas Commission denied the claim on the ground that payment of benefits in Mississippi barred Gunter from receiving benefits under the Arkansas law. The claimant appealed to the circuit court and there the court reversed the Commission. The McGehee Hatchery Company then appealed to this court. We affirmed the judgment of the trial court with the modification that there could be no duplicate cash award for hospital and medical expenses. McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S. W. 2d 608. The case went back for a hearing on the merits before the Workmen’s Compensation Commission. The Commission awarded compensation. The trial court affirmed the action of the Commission, and McGehee Hatchery Company has appealed.

Appellant now contends that Gunter was not its employee at the time he was injured; that he was an independent contractor. When' the case was here the first time it was not suggested that Gunter was not an employee. In that case we said: “. . . [Gunter] was also employed as a traveling salesman by the appellant, an Arkansas concern, at a salary of $285.00 a month.” But we need not decide whether the above language constitutes the law of the case, because in the case at bar there is substantial evidence to sustain the finding ^ the Commission that Gunter was an employee and not an independent contractor. In fact, there is very little, if any, evidence to the contrary. No written contract showing Gunter to be an independent contractor was introduced in evidence, and no one testified that there was an oral contract to that effect. Actually, Mr. Floyd, president of the McGehee Hatchery, testified that Gunter was an employee. Gunter was paid a regular salary of $285.00 per month; social security and income taxes were deducted from his salary. However, workmen’s compensation insurance premiums were not paid on claimant, but the failure to pay such premiums was not for the reason that appellant company did not consider that Gunter was its employee, but was due to the insurance agent having told appellant not to pay premiums on Gunter because he lived in another state.

Appellant argues that the fact that the appellant company did not tell Gunter when and where to sell chickens is strong evidence that he was an independent contractor. Even so, such evidence in itself is not sufficient to overturn the finding of the Commission based on substantial evidence that an employer-employee 'relationship existed.

Agricultural farm labor does not come within the purview of the Arkansas workmen’s compensation law. Ark. Stat. Ann. § 81-1302(c) (Repl. 1960). In this case the Commission made a finding that the McGehee Hatchery is engaged in agriculture within the meaning of the statute, and is, therefore, not subject to the workmen’s compensation law. But, the Commission held that the hatchery had waived its exemption under the provisions of Ark. Stat. Ann. § 81-1307 (Repl. 1960). The Commission based its finding that appellant was engaged in agriculture on the case of Franklin v. McCoy, 234 Ark. 558, 353 S. W. 2d 166. Our decision in that case was founded squarely on the facts of that particular case. There, the employer had been engaged in farming for many years, raising cotton, hay, peanuts, popcorn, soybeans, hogs, cattle and chickens. But in 1959, at the time the employee was injured, only chickens were being raised. We said: “In view of the foregoing we are unwilling to say that the legislature . . . meant that .raising chickens (in the manner previously set out) is not an agricultural farm activity. ’ ’

We do not construe the Franklin case as broadly as construed by the Workmen’s Compensation Commission in the case at bar. It would appear from the evidence in this case that the McGehee Hatchery is not engaged in agriculture within the meaning of the workmen’s compensation law. But we do not turn our decision on that point because the evidence is sufficient to support the finding of the Commission that the appellant waived the exemption even if it was exempt.

As heretofore pointed out, the Workmen’s Compensation Commission held that appellant was engaged in agriculture, and therefore did not come under the provisions of the Workmen’s Compensation Act, but that appellant could and did waive such exemption. Appellant argues that to effect such waiver there must have been a strict compliance with the act, and that there was no such compliance by appellant because notices of the waiver of exemption were not posted in accordance with the act. Ark. Stat. Ann. § 81-1307 (Eepl. 1960) provides: “Any employer carrying on any exempted or excepted employment may at any time waive such exemptions or exceptions as to any employee or all employees engaged in such employment as he may elect by giving notice of waiver of such exemptions or exceptions as provided in section 8.”

Ark. Stat. Ann. § 81-1308 (Eepl. 1960) provides: “Notice of waiver of exclusion or exemption heretofore referred to shall be given in accordance with the following provisions: (a) Every employer who waives such exclusion or exemption shall post and keep posted in and about his place of business typewritten or printed notices to such effect in accordance with a form to be prescribed by the Commission and he shall file a duplicate of such notice with the Commission, (b) Such notice shall be given at least thirty [30] days prior to any injury; provided, however, that if the injury occurs less than thirty [30] days after the date of employment, such notice, if given at the time of employment, shall he sufficient notice. ’ ’

The Workmen’s Compensation Act is highly remedial and is entitled to a liberal construction. Williams Mfg. Co. v. Walker, 206 Ark. 392, 175 S. W. 2d 380. The act should be accorded a broad construction and doubtful cases should be resolved in favor of compensation. Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S. W. 2d 113; Triebsch v. Athletic Min. & Smelting Co., 218 Ark. 379, 237 S. W. 2d 26.

No doubt appellant considered that it was subject to the provisions of the act and accordingly secured insurance coverage for protection. In all probability, neither the McGehee Hatchery Company nor its insurance carrier ever considered that the company was exempt under the act until the decision in Franklin v. McCoy, supra, rendered on the 29th day of January, 1962, some four years after the date Gunter was injured. For its own protection and for the protection of its employees, the appellant had secured a policy of workmen’s compensation insurance and filed the policy with the Workmen’s Compensation Commission. For all intent and purposes the company had secured itself against the hazards of being subject to the common law of torts; and then months after the employee was injured, it is claimed that there is no liability under the workmen’s compensation law on the part of the employer because the employer did not strictly comply with the statute in posting notices. In this case, apparently, except for the workmen’s compensation law, there would be no liability on the part of the employer.

In 136 A.L.R. 900, it is said: “Workmen’s compensation acts generally contain provisions governing the acceptance of them by employers as to whom the acts are not mandatory. No general rule can be laid down other than that a substantial compliance with these provisions is usually required. The question as to whether there has been a sufficient compliance depends upon the facts of the individual cases.”

No doubt appellant elected to operate under the act. Certainly appellant would not have bought and paid for a policy of insurance and then deliberately failed to post a simple notice whereby there could be recovery on the policy. Moreover, when the case was here the first time, the employer made no contention that it was not operating under the act. The. requirement of the posting of the notice was for the benefit of the employee, to let him know that the company had waived the exemption, and that the employee was, therefore, bound by the provisions of the workmen’s "compensation law. But here the employer claims that there is no liability on his part because he failed to give the employee a notice that was required by law for the benefit of the employee. Of course the employer did not need to notify himself for his own benefit that he had waived the exemption.

In similar cases it has been held that the employer is estopped to deny that he is operating under the act. In the case of L. E. Marks v. Moore, 64 S. W. 2d 426, the court held that although the employer had failed to comply with all requirements to come under the compensation act, he was estopped to deny that he had elected to and was operating under the act at the time the employee was injured. To the same effect is Yeomans v. Anheuser-Busch, Inc., 198 S. C. 65, 15 S. E. 2d 833, 136 A.L.R. 894. In that case the record did not show that notice was not given, but the decision did not turn on that point. The court said: “We agree with the trial judge that if it [notice] was not given, default of the employer cannot be taken advantage of by the latter and his carrier to defeat the claim of an employee.” And, in Ham v. Mullins Lumber Co., 7 S. E. 2d 712, the court said: “Defendants also contended that decedent was not given notice of his employer’s election, and consequently was not covered by the Act. That contention has already been disposed of in this order. However, even if it were true that such notice was not given, defendants could not plead as a defense to the claim of decedent’s heirs after his death their own failure to perform their duty to him under the law. It appears to me that in good morals, justice and law they could not do so, and that they would be estopped from so doing.”

Appellant also argues that even if it waived the exemption as to certain employees, it did not do so as to appellee because no premium was paid to the insurance carrier on him. Since it is being held that appellant cannot take advantage of its own failure to post notices that were for the benefit of the employee, the employee’s right to benefits is not affected by the employer’s failure to pay premiums.

Affirmed.


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

text:
    Ex parte Barton.
    5-3211
    373 S. W. 2d 411
    Opinion delivered December 23, 1963.

      Andrew Henry, attorney for appellant.
    Response by Bar Rules Committee, by E. B. Dillon, Jr., Little Rock, for appellee.
   Sam Robinson, Associate Justice.

The petitioner is a lawyer whose license to practice law was suspended on the 22nd day of October, 1962, by an order of the Pulaski Circuit Court, the Honorable Charles Light, Judge of the Second Judicial District, presiding on exchange ; the suspension was for a period of three years. The petitioner is now asking this court to revoke the suspension and restore her license to practice at this time, more than a year having expired since the date of the suspension.

The disbarment proceeding was prosecuted in the Circuit Court by the Bar Rules Committee of this court, and the committee is resisting the petition for revocation of the suspension. The charge in the disbarment proceeding was that the petitioner had converted to her own use about $2,500.00 belonging to a client. The client has long since been paid in full; in fact, payment was made prior to the issuance of the order of suspension.

No doubt petitioner committed a grievous offense in using her client’s money at all, even though she may have intended to use it only for a short time. The Bar Rules Committee has done its full duty in prosecuting the disbarment proceeding and in resisting the petition for reinstatement, and we want to take this opportunity to thank the fine lawyers on that committee for their devotion to duty and their diligence in performing the work of the committee.

The question before the court at this time is not the guilt or innocence of the petitioner, but whether it would be better for everyone concerned to restore petitioner’s license at this time, or that it be restored only after the full three year period has expired.. The rvrongful act committed by petitioner was not of such magnitude as to call for a complete disbarment, but it appeared that it would not be best for the public to allow petitioner to go unpunished. The idea of punishment is not to wreak vengeance upon the wrongdoer, but to reform the wayward and deter others. The spirit of revenge has no place in our procedure.

Through the proceedings in this case it has now been conclusively demonstrated that a lawyer’s misapplication of a client’s money will not be tolerated. The attorney has been severely punished. We cannot see where further punishment would benefit the petitioner or the public. Furthermore, we think this is a situation where the application of the quality of mercy will not be misplaced.

The petition is granted. Petitioner’s license to practice law is hereby restored.

Harris, C. J. and McFaddin and George Rose Smith, JJ., dissent.

Ed. F. McFaddin, Associate Justice

(dissenting). I do not agree with the Majority Opinion which grants the Petition for Reinstatement at this time.

On October 22, 1962, the Circuit Court entered an order suspending for a period of three years the petitioner’s right to practice law. If the Petitioner thought the said order too severe, she should have appealed the order to this Court. In the absence of a direct appeal, I cannot indulge the presumption that the Circuit Court judgment was incorrect.

The Petitioner has waited a little over a year (one-third of the suspension period), and now asks this Court to grant her a reinstatement. The Majority, in exercising “the quality of mercy”, is proceeding either on the theory that the Petitioner, having served one-third of the period of the judgment suspension, is now entitled to parole for the remaining two years; or on the theory that the original judgment was too severe. On either theory I do not agree with the Majority. The right to practice law should not be considered on the same basis as that of paroles and pardons. Neither should we indulge the presumption that the original judgment was too severe when'—as here—the Bar Rules Committee is resisting the petition in this Court, and the Petitioner has not presented us with any statement from the Trial Judge that he favors reinstatement at this time. Furthermore, the Petitioner is not supported by the recommendation of any members of the Bar.

Therefore, I would deny the Petition for Reinstatement at this time.

Harris, O.J. and George Rose Smith, J. join in this dissent.


author: Jim Johnson, Associate Justice.

text:
    Coddington v. Safeguard Ins. Co.
    5-3157
    373 S. W. 2d 413
    Opinion delivered December 23, 1963.

      Peter G. Estes, for appellant.

      Greenhaw é Greenhaw, Fulh, Lofton, Wood, Lovett & Parham, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from an order sustaining demurrers filed by appellees Safeguard Insurance Co. of New York and McCartney-Lewis-Faucette, Inc., resulting in the dismissal of appellant Juanita Coddington’s complaint. The original complaint was filed in Washington Circuit Court on March 22, 1962, by Juanita Coddington and her late husband, M. A. Coddington. For simplicity we shall refer to them as appellants. The complaint alleged substantially as follows:

That appellants were husband and wife and citizens of Washington County and were .owners of a certain dwelling house located in the City of Fayetteville.

That appellee Safeguard Insurance Co. of New York is a capital stock company operating in the State of Arkansas as an insurer of buildings and that appellee McCartney-Lewis-Faucette, Inc., is a corporation authorized to do business in the State of Arkansas and is engaged in the sale of fire and casualty insurance with its principal place of business in Fayetteville.

That on or about the month of July, 1960, and for many years prior thereto, appellants had owned the dwelling house herein mentioned which was covered and had been covered by a fire insurance policy issued by appellee Safeguard Insurance Company in the sum of $3,000.00, the same being sold to them by appellee McCartney-Lewis-Faucette, Inc.

That during the month of July, 1960, the dwelling house was completely destroyed by fire while the said insurance policy No. 335712 was in force and effect; that for many years prior thereto and up until a few months prior to the aforesaid fire, appellants had occupied the house as their resident but had moved therefrom and had within one week thereafter notified appellee McCartney-Lewis-Faucette, Inc. of their vacating the property, and that the policy was thereafter renewed by a renewal notice.

That appellants had been assured by appellee McCartney-Lewis-Faucette, Inc., that their property was fully covered in the sum of $3,000.00 and that they had relied upon said representation aiid paid their premium to appellee therefor, and notwithstanding the Valued Policy Law of'the State of Arkansas, the agent, servant and employee of appellee Safeguard Insurance Company by misrepresentation, fraud and deceit induced appellants to accept tbe sum of $2,000.00 for their complete loss of their building by fire, instead of paying them the sum of $3,000.00 as required by the terms of their policy;

That if their building was not covered by said policy of insurance as was represented to them by appellee" McCartney-Lewis-Faucette, Inc., then said failure to coverage was due to the negligent issuance and handling of their insurance policy through no fault on their part.

Appellants prayed that the release executed by them be cancelled and declared void by the court and that they have judgment against appellees for the sum of $1,000.00, together with the statutory penalty and attorney fees.

An amendment to appellants’ complaint was filed on October 18, 1962, which alleged in addition to those things pleaded and prayed for in the original complaint that appellee McCartney-Lewis-Faucette, Inc., was at the time of the issuance of the policy in question and the renewal thereof, a general agent of appellee Safei guard Insurance Company, having power to issue policies of insurance and transact other business of the company; did, in fact, issue the policy of insurance in question and have power to waive any of the terms of said policy allowed to be waived by law;

That within one week after appellants had vacated the premises here in question, they notified appellee McCartney-Lewis-Faucette, Inc., that they had vacated the property and appellee’s agents made no objection to the vacancy and in fact while said property was vacant and being so notified of the vacancy renewed said policy of insurance, and that the course of action of appellee Safeguard Insurance Company, by its authorized agent, McCartney-Lewis-Faucette, Inc., led appellants honestly to believe that the occupancy clause in said policy had been waived and by reason thereof appellees were estopped from invoking the provision in the policy involving occupancy;

That appellees had by misrepresentation, fraud, deceit and contrary to the Valued Policy Statutes of the State of Arkansas induced appellants to accept the sum of $2,000.00 for the loss of their building by fire and induced them to sign releases and other documents, without knowing the contents thereof, and by reason thereof releases and other documents having to do with the settlement should be cancelled and further prayed that appellees be held to have waived the clause in the policy pertaining to occupancy; be estopped from enforcing the clause in the insurance contract; and that the attempted settlement be cancelled and declared void.

Appellees had filed their separate demurrers to appellants’ complaint in April, 1962.

On June 13, 1963, the trial court concluded as follows :

<<[T]hat the demurrers should be sustained for the reason that the complaint of the plaintiff alleges fraud •but it does not allege facts sufficient to constitute fraud to bring the case under an exception to the general rule which requires that any payment made in accord and satisfaction be returned prior to the institution of suit. The general pleading of fraud is not enough but the facts must be plead to support the fraudulent acts alleged which are an exception to the general rule. Some of the exceptions to the general rule are set out in 178 Ark. 1110, Texas Co. v. Williams, and 114 Ark. 559, Pekin Cooperage Co. v. Gibbs, and consist of the following specific acts:

“1. Mental incapacity to execute release.

1 ‘ 2. Fraudulent representation as to the contents of written instrument.

"3. Trick or subterfuge where papers were substituted at time of signing.

“4. Illiteracy or infirmity.

“5. Minority.

“Tlie only allegation of fact in the complaint sets out that the plaintiff signed the release and proof of loss without reading it and that the release was contrary to the stated value of policy requirement (66-3901).”

Following this order sustaining the demurrer, appellants declined to plead further, and on July 17, 1963, their complaint was dismissed with prejudice. From that order comes this appeal.

For reversal appellants contend that a compromise settlement made contrary to the Valued Policy Statute is not an accord and satisfaction, is contrary to law, against public policy and void from its inception as distinguished from voidable aud is an exception to the general rule which requires that payments made in accord and satisfaction be returned prior to the institution of suit.

As stated by Mr. Justice' Hart speaking for this court in Sharp v. Drainage District No. 7, 164 Ark. 306, 261 S. W. 923, “The allegations of the bill, which are confessed by the demurrer, control in this case. Contrary to the common-law rule, under our Code every reasonable intendment and presumption is to be made in favor of a pleading, and a complaint will not be set aside on demurrer unless it is so fatally defective that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever. Ferrell v. Elkins, 159 Ark. 31, 251 S. W. 380.”

Applying the above stated rule to the complaint here in question it appears that appellees have admitted the existence of the fire insurance contract between appellants and Safeguard Insurance Company in the amount of $3,000.00; that appellee McCartney-LewisFaucette, Inc. was the general agent of appellee Safeguard Insurance Company; that the dwelling, covered by the policy in question was completely destroyed by fire; that appellants were induced to accept the sum of $2,000.00 for their loss instead of the face value of the policy; that appellees made no objections to the vacancy of the property and in fact, after being so notified of the vacancy, renewed the policy of insurance in question, which action on the part of appellees led appellants honestly to believe that the occupancy clause had been waived, and admit all other proper allegations contained in the complaint and amendment to complaint.

On appeal appellants, with commendable candor, concede that they failed to make sufficient allegations of fraud in their complaint to withstand a demurrer on that point. However, they insist that the trial court in sustaining the demurrers failed to consider that the alleged compromise settlement and release were contrary to the Valued Policy Statute of Arkansas.

With the admissions by demurrer and the concession by appellants, we are squarely confronted with the question of whether, in the light of our Valued Policy Law, the trial court erred in sustaining appellees’ demurrers. Section 66-515 of Arkansas Statutes, entitled “Total Loss by Fire.—Recovery of Full Amount” is the original Valued Policy Statute passed in 1889. This act was amended by Ark. Stat. Ann. § 66-3901 (Supp. 1961), passed by the 1959 Legislature, which is as follows:

“Valued Policy Law.—A fire insurance policy, in case of a total loss by fire of the property insured, shall be held and considered to be a liquidated demand and against the company taking such risk, for the full amount stated in such policy, or the full amount upon which the company charges, collects or receives a premium; provided, the provisions of this section shall not apply to personal property. ’ ’

Our research reveals that this court has never had occasion to pass directly on the validity of a settlement between insurer and insured contrary to the Valued Policy Statute. We have, however, in at least two cases held that a provision in a fire insurance policy in conflict with the valued policy statute was void. See London and Globe Ins. Co. v. Payton, 128 Ark. 528, 194 S. W. 503; Tedford v. Security State Fire Ins. Co., 224 Ark. 1047, 278 S. W. 2d 89.

Both appellants and appellees direct our attention to an excellent discussion on problems arising under valued policy statutes in 12 Arkansas Law Review 184. On page 193 of this article there is cited a Washington case which seems to be on all fours with the case at bar. The case is Grandview Inland Fruit Company v. Hartford Fire Insurance Company, 189 Wash. 590, 66 P. 2d 827. There is also a comprehensive annotation of this case in 109 A.L.R. 1477. In the Washington case as here the insured agreed and did accept in full compromise settlement of his claim under a fire policy one thousand dollars less than the face amount of the policy. There was, as here, a total loss of the building and, as in Arkansas, the State of Washington has a Valued Policy Statute.

The trial court in Washington held that the insured was entitled to recover despite the compromise for less than the face amount of the policy, and in affirming that judgment, the Supreme Court of that state used the following language with which we agree and adopt as our own. “Under the valued policy statute . . . whenever an insured building is totally destroyed, the amount of insurance written in the policy shall be taken conclusively to be the amount of the loss. This statute is a part of the public policy of this state, which was not waived by the appellant in its agreement with the respondent to accept less than the face of the policy.” . . .

“The purpose of statutes of the character of the valued policy statute would be defeated if their effect could be avoided by contract. While generally, parties may waive their contractual or statutory rights by agreement to waive, yet an agreement to waive rights involving a question of public policy would be void. It would be contrary to the public policy of this state declared by the valued policy statute, to enforce the compromise in the case at bar. There was not a valid accord and satisfaction. To deny a recovery to the appellant would, in effect, be a holding that one could bind himself by contract not to avail himself of a right which the law has allowed to him on the grounds of public policy. While one may decline to take advantage of a privilege given to him by snch a statute, he may not bind himself by or be held to a contract which denies to him a right which the law has allowed to him on grounds of public policy. ’ ’

Having thus determined that the compromise settlement in the case at bar was contrary to public policy and therefore void ab initio, we reach the sole remaining question of whether the tidal court erred in sustaining the demurrers in the absence of a return or tender by appellants of the amount paid them in connection with their execution of the settlement or release.

Mr. Justice Prank Smith speaking for this court in Pekin Cooperage Co. v. Gibbs, 114 Ark. 559, 170 S. W. 574, answered that question for us when he cited, with approval 1 Cyc., page 339, as follows:

“As a general rule one who seeks to avoid the effect of accord and satisfaction on the ground of fraud, mistake, or for any other reason (it is apprehended) must restore or offer to restore whatever he has received by virtue of the transaction. The rule, however, is subject to some limitations and exceptions. It does not apply where the agreement is absolutely void, ...”

It follows, from what has been said, that the trial court erred in' sustaining the demurrer to the complaint, and for that error the judgment must be reversed, and the case will be remanded for further proceedings according to law.


author: Frank Holt, Associate Justice.

text:
    Missouri Pacific Railroad Co. v. Stroupe.
    5-3150
    373 S. W. 2d 709
    Opinion delivered December 23, 1963.
    [Rehearing denied Jan. 27, 1964.]

      William J. Smith and William II. Sutton, for appellant.

      Jack Yates, for appellee.
   Frank Holt, Associate Justice.

This is an action by the appellee against the appellant for recovery of damages and statutory penalty resulting from the loss of a cow. This action is predicated upon the appellant’s failure to construct suitable and safe stock guards as required by statute. Upon a jury trial the appellee was awarded $225.00. On appeal the appellant urges for reversal that under the facts in this case there was no duty upon the Railroad Company to construct and maintain stock guards at the crossing in question.

The appellee owns and operates a dairy farm. His home and barn are situated on thirteen acres on the east side of the railroad tracks. On the west side of the tracks he owns ninety-five acres of pasture land. According to the appellee a public crossing, at or near his farm, was the only way he had of getting his cattle from one side of the tracks to the other. The appellee maintained that he had given proper notice to appellant to restore the cattle guards removed by it in 1957. Appellee testified that on the west side of the railroad his property comes up to the railroad right-of-way where the roadway crosses in an east-west direction. Appellee’s wife testified that each day she drove the herd of cattle back and forth across the railroad tracks at this highway crossing and that she had to open a big gate on each side of the tracks. She testified that on this particular day as she was herding the cattle across the tracks some of them strayed up the tracks at the crossing and one of the cows, heavy with calf, fell off the side of the tracks and into a ditch where it died. She testified that she did not know why the cow slipped and fell. The foregoing constituted appellee’s pertinent evidence as to an enclosure.

It is our duty as a matter of law to determine the sufficiency of evidence. St. Louis Southwestern Ry. Co. et al. v. Braswell, 198 Ark. 143, 127 S. W. 2d 637.

Viewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee, as we must do on appeal, Capital Trans. Co. v. Howard, 217 Ark. 333, 229 S. W. 2d 998, we do not find any substantial evidence that meets the proof required by this statute upon which appellee bottoms his claim. This statute reflects that it is the duty of appellant, upon proper notice, “to construct suitable and safe stock guards on either side of said inclosure where said railroad enters said inclosure.” [Emphasis added.] Construing the evidence in the light most favorable to the appellee it is to the effect that he owned land on both sides of the railroad tracks and that it was necessary to drive his cattle across the tracks at a “public crossing.”

In Missouri Pacific Railroad Co. v. Miller, 185 Ark. 937, 50 S. W. 2d 618, we said:

¡i* =* * reme¿y tinder the statute referred to is exclusive to the oivners of inclosures, but has no application to damages sustained by others on account of the negligent and careless maintenance of a cattle guard.” [Emphasis added.]

Also, see Chicago, R. I. & P. R. Co. v. Fitzhugh, 82 Ark. 179, 100 S. W. 1149.

This statute does not place any duty upon the railroad to construct stock guards at a public crossing or road. The duty is to construct guards where the railroad enters one’s enclosure. There is no substantial evidence presented in the case at bar that appellee is the owner of an enclosure bisected by the railroad. Further, since this statute is in derogation of the common law and penal in nature, we must strictly construe it. St. Louis Iron Mountain & So. Ry. Co. v. Hood, 67 Ark. 357, 55 S. W. 134.

Inasmuch as it is necessary to reverse the case on the point discussed, we do not reach the other points appellant relies upon for reversal.

The judgment is reversed and the cause remanded.

       Ark. Stat. Ann. (Repl. 1957).
      “73-623. Stock guards required when railroad passes through inclosure—Notice.—It shall be the duty of all railroad companies organized under the laws of this State or any other State, which have constructed or may hereafter construct a railroad which may pass through or upon any inclosed lands of another, whether such lands were inclosed at the time of the construction of such railroad or were inclosed thereafter, upon receiving ten [10] days’ notice in writing from the owner or agent of said lands to construct suitable and safe stock guards on either side of said inclosure where said railroad enters said inclosure, and to keep the same in good repair. * * *”
      “73-624. Penalty for failure to maintain stock guard.—Any railroad company failing to comply with the requirements of the preceding section shall be liable to the person or persons aggrieved thereby for the actual damages caused to said person or persons by reason of the failure of any railroad company to properly construct, keep and maintain in good repair said stock guards; and in addition to the actual damages, said railroad company shall be liable for a penalty of not less than twenty-five dollars [$25.00] nor more than one hundred dollars [$100.00] for each and every offense; and said penalty may be collected, together with said actual damages, by a civil suit in any court having jurisdiction thereof.”

       Statutes on “public crossings” are: Ark. Stat. Ann. § 73-1601 at seq. and § 76-113 (Repl. 1957). However, such statutes do not appear applicable to the case at bar.


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

text:
    Potlatch Forests, Inc. v. Smith.
    5-3099
    374 S. W. 2d 166
    Opinion delivered January 13, 1964.
    [Rehearing denied Feb. 3, 1964.]

      Williamson, Williamson S Ball, for appellant.

      TIuey & RotTvwell, for appellee.
   Carleton Harris, Chief Justice.

This is a Workmen’s Compensation case. Sylvester Smith was employed by Potlatch Forests, Inc., and contends that on September 19, 1961, he sustained a compensable injury, which resulted in the loss of his right eye. Appellant company controverted the claim, contending that the injury did not arise out of, and in the course of, his employment. The referee heard the evidence, concluded that the claim was compensable, and entered an order accordingly. The company appealed to the full commission, and that body found that a preponderance of the evidence sustained appellant’s contention that Smith’s injury did not arise out of, and in the course of, his employment. The referee’s opinion was therefore reversed, and the claim for compensation denied and dismissed. Thereafter, claimant appealed to the Bradley Circuit Court, and the court reversed the finding of the Commission and remanded the case back for orders consistent with the award of the referee. From the judgment so entered, the company brings this- appeal.

The only question before this court is whether there was any substantial evidence to support the finding of the Commission. Preliminarily, we might dispose of one of the arguments advanced by appellee. It is pointed out that the referee, who originally tried this case*. heard all of the witnesses in person, both for claimant and the company, and, on appeal, no additional testimony was presented to the Commission. Appellee states that the referee, therefore,

“* * ® was the sole and exclusive judge of the weight of the evidence and the credibility of the witnesses. In case of contradictions or inconsistencies he had the right to accept the testimony of the witnesses’ he believed to be most worthy of credit and reject the testimony of those he believed less worthy of credit, or accept, any part he believed true and reject any part he believed untrue. He was in position to take into consideration all the surrounding circumstances of each witness, and of particular importance, the manner and demeanor of each witness on the witness stand. * * *”

This contention must be rejected. As recently as October 21 of last year, we had occasion, in Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S. W. 2d 528, to comment upon this contention, stating,

“We take this occasion to point out that it is the duty of the Commission to make a finding according to a preponderance of the evidence, and not whether there is any substantial evidence to support the finding of the Referee.”

Cases are then cited in support of the statement. Thus, as stated at the outset, we can only concern ourselves with whether the finding of the full Commission was supported by any substantial evidence.

Claimant’s case was primarily dependent upon the testimony of Smith himself. Appellee testified that he commenced work for Bradley Lumber Company in 1952, and had been working for that company and its successor, Potlatch, since that time. He stated that on September 19, he worked from 6:00 A.M. until 2:30 P.M. His duties consisted of pulling lumber off “the green chain.” At 2:30, he “punched out,” but waited around on the dock for about ten minutes to determine whether all night shift workers appeared, it being his purpose to put in extra time by work on the night shift if any workers were absent. During this period, he sat and smoked a cigarette. After observing that all of the night crew had reported in, he got up and started toward his parked car, walking underneath the conveyor belt. After walking ten or fifteen feet, his foot struck a stick, which “flew up” and hit him in the eye. Subsequently, he stated, “I remember my feet hitting the stick and something flew up and hit me’ in the eye is all I can say. ’ ’ The witness said he could not see out of his eye, but that he did not have any pain at that time. He could feel something “running” out of the eye, and wiped it with his handkerchief, but walked right on to his car and drove home. Smith testified that when the foreign object hit him in the eye, he sat down a few minutes, and then walked on, no pain occurring until after he reached his home. Appellee stated that he was able to drive his car normally, and that it took him about five or six minutes to drive from the plant to his house. Claimant’s wife took him to the hospital about 3:00 P.M. Around 4:00 o ’clock, Smith reported the accident to Herbert Bliss, yard foreman.

Smith’s wife, Velma, testified that her husband drove up to the house, but didn’t get out of the car. When she inquired as to the reason, he complained of his eye, and she then “taken him out of the car and carried him in the house.” Velma then drove her husband to the hospital. This testimony was corroborated by Rosa Benson, a neighbor.

Gilbert Block, a resident of Warren, testified that he (Block) had an artificial right eye, having lost the sight of his eye while working on his automobile, “and a piece of steel flew off and hit me and went through it. ’ ’ Block stated that he did not feel any pain in the eye until four days after it happened, “after Dr. Lanford took it out.”

Smith’s eye was treated by Dr. James "W". Marsh of Warren, who stated that he understood Smith to say that “something flew out of the clock (time clock) and hit him. But I am not at all sure of this because he was in pain and does not speak very clearly, and I didn’t question him on the history. ’ ’ Dr. Marsh found ‘ ‘ a laceration of the center of his cornea which was transverse with a slight ellipse. It had penetrated all the way through his cornea and had dislodged the lens to some extent so that the lens was partially protruding through this laceration. There was fluid escaping from the inside of the eye.” The iris was not struck by the object. In reply to a question as to whether he had any opinion concerning whether the object which caused the eye injury came from the ground level, the doctor replied, “I don’t think it could have.” As the basis for- this conclusion, Marsh stated that “the object hit him in the central cornea and went through the cornea and through the lens with no injury at all to the iris. And the angle of an object coming up from ground level from near him would have been such that to have penetrated both the central cornea and the lens would have caused some injury to the iris.” The doctor was of the view that the object came from approximately eye level, rather than from the ground. He likewise was of the opinion that the injury was not caused by a stick. The physician also testified that, in his judgment, initial pain would have been marked and severe, and probably would have continued from the time of the occurrence until Smith was taken to the hospital.

Dr. Marsh, after rendering emergency treatment, immediately made arrangements for Dr. W. R. Nixon, a Pine Bluff ophthalmologist, to see the patient. The history taken by Dr. Nixon reflected that Smith had stepped on a stick which “flipped up” and struck claimant in the right eye. Smith was complaining of intense pain, and, most of the time, kept both eyes shut, particularly the right one. The doctor testified that at the time he saw appellee, he (Nixon) wondered about the injury being caused by any object from the ground. “Because when something flips up, hitting the eye, it would strike at an angle. Unless he was looking down at the ground it was rather difficult for it to go through the eye.without perforating the iris.” The doctor stated, “I wouldn’t necessarily say it hit at eye level. He could have been lying on his back and it dropped in his eye. ’ ’ Nixon was of the opinion that the object “would have to be reasonably sharp or thrown with extreme force to penetrate the eye, one or the other, or both. A blunt object hitting the eye would require a great deal of force to penetrate the eye.- They are a lot tougher than we think. For instance, a beebee gun so often hits the eye and bounces off. They cause a hemorrhage and damage, but bounce. * * * Another thing, this thing apparently hit between his lids, and the eye has a rapid- blink reflex. It has to hit with pretty good speed to hit the eye without damaging the lids. ’ ’ The doctor was of the opinion that the injury described by Smith Would have caused severe pain for at least a few minutes, probably “five to ten minutes.” Thereafter, he stated that the eye certainly Avouldn’t feel normal; there would be a certain amount of discomfort.

“I would think that, after looking at him, that the man Avas unable to see immediately from the injury out of that eye. Of course he has the other eye. He has been a two-eyed man and suddenly becomes a one-eyed man for all purposes. I am sure he has a loss of depth perception, plus peripheral vision. He could still drive. He would certainly be doing something a little bit difficult because he has had a sudden and abrupt change that he has never had to cope Avith before.”

Efforts were first made to save the sight of the eye, but subsequently, it became necessary to remove it. The testimony of these Avitnesses comprises the case for appellee.

On behalf of appellant, Arthur Weaver, a fellow employee of Smith, testified that on September 19, at 2:30, he was in the outhouse located across from the “green chain.” He heard the 2:30 siren blow, and came out a minute later. Weaver stated that he saw Smith, who was walking between the conveyor belt and the parking lot (having already passed under the belt), heading toward the lot. From subsequent measurements, Weaver testified that when he first saw Smith, the latter was “27 long steps” east of the conveyor belt, and twenty-four steps away from the witness. He said that Smith was walking toward his car, smoking a cigarette, with both hands down beside him. Smith was walking in his usual manner “in a kind of frisky way, the way his pants dangled on him when he walked.”

Clifton Roberts, another employee of Potlatch, testified that on the date Smith was injured, he (Roberts) “punched out” with the others at 2:30 P.M., and walked directly toward the parking lot. While walldng beneath the conveyor belt, he observed appellee about twenty-five steps away, not quite half way between the belt and the parking lot. According to the witness, Smith “was just walking along normal,” was not holding his eye, and there was no indication that anything was wrong with the claimant. Roberts testified that he saw Smith back his car out from where it was parked, and drive away.

Charlie Brown, another employee, testified that he left work at 2:30, and went straight to the parking lot ;■ that he knew where Smith usually parked his car, and that Smith’s car had already been moved from its usual location when the witness arrived at the parking lot. Subsequently, he passed Smith’s house, and noticed that claimant’s car was not there. A block or so later, he observed the Smith car “headed north towards home.” Linton Marks, another ■ employee, rode with Brown, and testified to substantially the same facts, viz, that Smith’s car was not in its usual parking place when he reached the parking lot; that claimant’s car was not at his home when they passed, and that subsequently they observed Smith, approaching approximately a hundred yards away.

Kirby McClendon, employed by Potlatch as a personnel worker, testified that Smith and his wife reported the injury to him between 4:00 and 4:30 P.M. (apparently after seeing Bliss). Smith told the witness that he stepped on a stick which flew up and hit him in the eye, the accident occurring under the lumber conveyor belt. McClendon, Herbert Bliss, and Pete Denson, assistant yard foreman, all testified to various contradictions and discrepancies in Smith’s account, and that of his wife. For instance, Bliss stated that claimant said that “he started out and walked right across the ramp and got across the ramp to the corner and said he set down there and set there fifteen minutes and smoked a cigarette and he got up from there, walked across the railway track, under the conveyor belt and about nine spaces I believe Sylvester spaced it off himself, he said he felt something under his foot and it flew up and hit him in the eye or something hit him in the eye, said at that time it hurt him so bad he fell down on his knees and caught his eye with his hands, stayed there a little bit and got up and went on to the car with his hand over his eye and got in the car and drove home.” Further, that Smith stated that his eye hurt “bad” and in wiping it, “he got some bloody water on his hand. ’ ’ The foreman also stated that he checked the area for sticks, and found but one.

Appellee asserts that the Commission committed an error of law in its finding, contending that the claimant is entitled to an award of compensation if there is any substantial evidence to justify the claim. Appellee is mistaken in this statement. It is true that our Compensation Act should be broadly and liberally construed, but it is also true that the burden of proof is placed upon the claimant to establish that his disability was occasioned by an injury received in the course of his employment. Pruitt v. Moon, 230 Ark. 986, 328 S. W. 2d 71. The commission determines litigation from what it deems to be the preponderance of the evidence, and we affirm if there is any substantial evidence to support the Commission’s ruling. Chicago Mill and Lbr. Co. v. Fulcher, 221 Ark. 903, 256 S. W. 2d 723; Moss v. El Dorado Drilling Co,, supra. Of course, it is established that Smith injured his eye. It is likewise established that the injury occurred between 2:30 and 3:00 P.M. on September 19, but we are unable to say that the Commission’s finding (to the effect that the injury did not occur on the premises) is not supported by substantial evidence. Actually, it is apparent that the Commission did not place credence in Smith’s testimony, and there is no requirement, that that body must accept, at face value, the testimony of a claimant—or for that matter, the testimony of aim person. A similar situation existed in the case of Ray v. D. H. Garner Construction Co., 236 Ark. 654, 370 S. W. 2d 73. In that case, Ray testified to a back injury. Admittedly, he had suffered such an injury (as here, Smith admittedly had suffered an injury). Ray testified that this injury happened on the job, and detailed the circumstances relative to the occurrence. No one was able to verify that the injury happened in the course of employment (as here). However, in Ray, two doctors testified that, in their opinion, Ray incurred the injury to his back from the incident described by him, rather than from a subsequent injury which occurred off the job. Dr. Horace Murphy testified that the history recited by appellant was entirely consistent with his testimony. However, the Commission denied the claim, obviously because it did not believe appellant’s testimony. It is apparent that a similar situation exists in the instant case, i.e., the Commission was not persuaded by claimant’s version of the manner in which the injury occurred. And there are facts which support the position taken.

According to the testimony of Weaver and Roberts, both observed Smith after the stated time of the accident, i.e., he had already passed the place where he alleged the injury to have been received. Both testified that Smith was proceeding toward his car in his usual manner, giving no indication that anything out of the ordinary had happened to him. Bear in mind the testimony of Roberts who testified, that, after checking out, he proceeded immediateley toward his own car in the parking lot. It would have been impossible for Roberts to have seen Smith walking toward his car if the latter, as he testified, had waited around for at least ten minutes before leaving. This witness also observed claimant, apparently acting in a normal manner, driving his car from the premises. Witnesses Brown and Marx testified that they (separately) walked to Brown’s truck, and that Smith’s car was not in its regular parking place. This evidence corroborated the testimony of Weaver and Roberts that Smith had, instead of staying around the plant, immediately left the premises. Claimant admitted that he had parked his car, on coming to work, at his usual parking-place.

As stated, there was a direct conflict in the evidence. If the testimony of these four witnesses was correct— then Smith’s testimony was incorrect. If Smith’s statements relative to the injury were true—then, the evidence of these four witnesses was false. There is nothing-in the record which indicates that these co-workers had any reason to deliberately prevaricate as to what they had observed. In addition, the evidence of both doctors tends to contradict Smith’s version.

At any rate, even though we might feel that the Commission had reached the wrong result, we are without authority to upset the finding, unless there is no substantial evidence to support the order. Fagan Electric Co. v. Green, 228 Ark. 477, 308 S. W. 2d 810. Undoubtedly, there was evidence in behalf of both Smith and the company, which could be considered substantial evidence—but the Commission is the trier of the facts, and a determination of the weight of the testimony falls within its province.

In accordance with the reasoning herein set out, the judgment of the Circuit Court is reversed, and the cause is remanded with instructions to affirm the order of the Commission.

Robinson and Johnson, JJ., dissent.

Jim Johnson, Associate Justice

(dissenting). I do not agree with the majority opinion. In my view there is no dispute in this case about the facts. Appellee clocked out from work at 2:30 p.m.; he waited around the area for approximately ten minutes; walked under the conveyor belt towards the parking lot; was struck in the eye by some object; the doctors both testified the material around this area would be a producing cause of the injury they found if appellee were struck in the eye; appellee arrived at home at 2:45 p.m.; two of appellant’s own witnesses observed him in his ear driving home; appellee was taken immediately to the hospital and it was stipulated he was seen by Dr. James W. Marsh, M. D. at 3:00 p.m.

“. . . The Appellee stated he did not know what hit him in the eye. The Appellee told both these doctors that the incident occurred at the mill. It is not to be expected that an ordinary individual, immediate^ after suffering the traumatic loss of an eye, would think to fabricate a story as to how it happened upon first examination by a physician within twenty or thirty minutes subsequent to the incident. It is reasonable to conclude that an ordinary individual, knowing that the physician’s successful treatment of an injury might well depend on his knowing the cause therefor, would tell the physician the truth concerning the cause ... It is also apparent, that in the tragedy of the moment, an ordinary person does not cooly reflect on a fictitious tale as to where an incident occurred.” [Referee’s opinion.]

Appellee lost the sight of his eye;—all this took place between 2:30 p.m. and 3:00 p.m.

The time element alone in this case demands an affirmance of the judgment of the Circuit Court. Couple this with the fact that against the positive testimony of appellee’s witnesses, the self-insured appellant even with the apparent full cooperation of its employees couldn’t produce one witness who would testify that the accident did not occur at the time or place or in the manner alleged by appellee.

For the reasons stated, I respectfully dissent.

Mr. Justice Robinson joins in this dissent.

       No prior claims were indicated from his work record.

         This meant that Smith had already passed under the conveyor belt, and had walked that distance from it.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Hogg v. Darden.
    5-3132
    374 S. W. 2d 184
    Opinion delivered January 13, 1964.

      Bernard Whetstone, for appellant.

      Shaver, Tctdcett £ Jones, for appellee.
   Ed. F. MoFaddin, Associate Justice.

We are here concerned with the voir dire examination of the jury panel. Appellants, Mrs. Elizabeth Hogg, and her husband, filed this action against George A. Darden and his son, alleging- that in a traffic mishap Mr. and Mrs. Hogg sustained injuries and damages all because of the fault and negligence of the defendants. Upon issues joined the cause was tried to a jury and a verdict rendered for the defendants (appellees here). The appellants seek a new trial because of the rulings of the Tria Court in regard to the voir dire examination of the jury panel, and urge two points:

“I. The Court erred in denying plaintiff’s counsel’s request that the Court refrain from interrogating the panel regarding liability insurance and not permitting counsel to do this himself.

“II. The Court erred in not permitting the requested question regarding defendant’s apparent ability to pay.”

Prior to the voir dire examination, appellants’ attorney filed the following written request with the Trial Court:

“NOW COMBS Plaintiff and requests of the Court in chambers immediately in advance of trial, that he be permitted to ask each of the members of the jury panel, separately and individually, each of the following questions:

“1. Do you or any member of your immediate family work for, own any stock in, or have any direct or indirect interest whatever in any casualty insurance company?

“2. If you believe from the testimony and the instructions given to you by the Court that plaintiff in this case is entitled to a judgment in a substantial amount and if you also at the same time believe that either or both of the'defendants may not be financially able to pay the amounts to which you think plaintiff is entitled, will you be freely willing to go ahead and render judgment in the full amount to which you think plaintiff entitled, without any reduction on account of defendant’s apparent inability to pay, and just let us worry about collecting the judgment?

“The Court having previously given indication to plaintiff that the Court feels (a) that plaintiff’s counsel is not entitled to interrogate each prospective juror on the jury panel voir dire separately and individually and (b) that one or more of the foregoing questions might not be proper, and plaintiff’s counsel preferring to have these matters ruled upon in advance and out of the presence of jury and without colloquy in the presence of jury, now respectfully requests that the Court make his ruling out of the presence of the jury in advance of voir dire and it is the further request of plaintiff that these questions not be propounded to the jury by the Court. ’ ’

The written request was heard by the Court away from the jury; and the Court ruled as to Request No. 1:

“The Court holds that Request No. 1 is a proper question and can be asked if counsel for the plaintiff thinks he needs to ask it. But the Court reserves the right to use his discretion in whether this question is asked each individual juror of the jury panel, which in this case consists of twenty-four members, and if he propounds this question to twenty-four members, twenty-four different times, the Court certainly reserves the right, in its discretion, to stop the propounding of the question individually to each member of the jury panel, if it appears not to serve any useful purpose in testing the interest on voir dire of any member of the jury panel. ’ ’

As to Request No. 2, the Court ruled:

“The Court finds that it is not a proper question in the form in which it is asked. The content of that question may be inquired of the jury. ’ ’

As to so much of the request, which sought to have the Court agree not to ask any questions, the Court ruled:

“As far as the request saying that the Court is.requested not to ask certain questions, the Court overrules that part of the request, and the Court -will ask whatever questions the Court feels is proper to ask the jury panel. ’ ’

The records reflects that after the Court made the foregoing rulings outside of the hearing of the jury the following occurred, in open Court on voir dire examination of the jury panel:

“Thereupon the Court and counsel went into open Court and after the jury panel was sworn to answer questions touching on their qualifications as jurors in the above styled case, the Court interrogated said panel as to knowledge of the collision involved, knowledge of the suit about to be tried, acquaintanceship and relationship to parties and their attorneys, whether any member of the jury panel had been a party either as plaintiff or as defendant in a suit growing out of an automobile collision, if any of them were agents, employees, or in any other capacity represented any insurance company or companies writing automobile casualty liability insurance, or if any of them owned any stock in or had any financial interest in any insurance company or companies writing automobile casualty liability insurance, whether any of them knew any reason at all that would keep them from trying this case in accordance with the evidence presented and the instructions of law given to them by the Court, and if each of them would, if selected to serve on the jury, try this case and decide the same solely on the evidence introduced and on instructions of the Court without sympathy for our prejudice against either party . . .

“The Court then inquired of counsel if either of them hacl any additional questions to ash the jury and both replied that they did not have any questions to ash of the jury panel. The Court then told the jury panel to be seated while the Clerk prepared the list of eighteen names. The list of the first eighteen names being prepared by the Clerk, counsel for both parties exercised three peremptory challenges and the twelve remaining members were seated as jurors, sworn, and served as the jury that tried this case.”

The failure of appellants’ counsel to ask any question of the jury on voir dire in open Court—as shown by the italicized portion of the above—is the decisive matter on this appeal. It has long been recognized in this State that “litigants in civil cases, as well as in criminal cases, have the right to examine the jurors separately in order to determine whether such jurors are subject to challenge for cause, or to elicit information on which to base the right of peremptory challenge, subject of course to the right of the Court to control the extent of such examination, acting in its sound discretion.” (Baldwin v. Hunnicutt, 192 Ark. 441, 93 S. W. 2d 131.) In Mo. Pac. Transp. Co. v. Johnson, 197 Ark. 1129, 126 S. W. 2d 931, the above quoted language was reaffirmed, ■with the additional holding that Section 16 of Initiated Act No. 3 (as found in Ark. Stat. Ann. § 39-226 [1962' Repl.]) did not take away such right of the litigant to interrogate the individual juror, subject always to the right of the Trial Court to control “the extent of the examination of each separate juror.”

The record in the case at bar clearly shows that the Trial Court was thoroughly familiar with the law. As to the questioning of each juror regarding connection with insurance companies, the Court advised the appellants’ counsel that the question “is a proper question and can be asked if counsel for plaintiff thinks he needs to ask it.” That ruling gave the plaintiffs the right which they had requested; so appellants cannot now say that such right was denied them. The Court properly reserved the power to control the extent of the questioning; and that ruling was in accordance with our cases, as previously quoted. The point is that when the hearing* was resumed in the presence of the jury, appellants’ counsel did not see fit to ask any question; so the claimed right was recognized but remained unexercised. The failure to make examination constitutes a waiver. Charles v. State, 198 Ark. 1154, 133 S. W. 2d 26. See also 5 C.J.S. 1014, “Juries” § 252. We find no error in the ruling of the Trial Court as regards the right of appellants to interrogate the jurors personally.

As regards the second request of .appellants, the Court advised the counsel in chambers that the question was not properly framed; but appellants’ counsel did not see fit to reframe the question or propound any question like it in the voir dire examination; so no right was denied the appellants. Affirmed.

       Emphasis supplied.

       In 11 Ark. Law Rev. p. 117 there is an article by Hon. R. A. Leflar entitled: “The Criminal Procedure Reforms of 1936—Twenty Years After”; and, as regards Section 16 of the Initiated Act, the author says on Page 126:
      “Selection of Jurors. Prior to adoption of the Initiated Act, interrogation of prospective jurors was almost always left to counsel, who commonly asked the same questions at length of each juror, thereby taking up a vast amount of time. Often the selection of jurors took more time than all the rest of the trial. Some lawyers tried to expedite the process but others, practically uncontrolled by the judge, asked apparently irrelevant as well as relevant questions almost interminably. Section 16 of the act provided that in all cases, both civil and criminal, the judge shall examine prospective jurors upon their statutory qualifications, leaving further questions to be asked, in the judge’s discretion, by either the judge or the lawyers in the case. This permits many questions to be asked of the jury panel as a group, rather than individually, but it does not eliminate the right of counsel to have jurors questioned individually upon matters of disqualification which may have a personal basis, nor does it justify an arbitrary refusal by the judge to allow counsel to examine the panel or its members. The practice as it stands now conforms with the American Bar Association recommendations on the topic.”

       We have had occasion in comparatively recent cases to discuss the matter of how to examine the jury panel on voir dire as to insurance connections. See DeLong v. Green, 229 Ark. 100, 313 S. W. 2d 370; and Malone v. Riley, 230 Ark. 238, 321 S. W. 2d 743.


author: George Rose Smith, J.

text:
    McHenry v. Littleton.
    5-3109
    374 S. W. 2d 171
    Opinion delivered January 13, 1964.

      G. E. Simggs, for appellant.

      Spencer $ Spencer, for appellee.
   George Rose Smith, J.

This is a suit by the appellant to foreclose a mortgage upon forty acres owned by the appellees, husband and wife. The mortgage was executed in 1948 to secure a $300 note, plus future advances. There were a number of such advances and a number of payments upon the debt between the date of the mortgage and the filing of this suit in 1961. There were, however, no payments whatever during a period of more than five years, from October 22, 1954, to January 22, 1960. The chancellor held that as a result of this intermission the five-year statute had barred all the account except one note, for $295, executed less than five years before the 1960 part payment. Among other arguments for reversal the appellant insists that there was a written acknowledgment of the debt in 1960.

Before reaching this main issue we must consider the appellees’ contention that the $200 payment that was made on October 22, 1954, was in fact a payment in full of the entire debt with the exception of the one subsequent note that the chancellor found to be enforceable. On this point both the appellees testified that in 1954 they thought their debt amounted to only $200, so that their payment in that sum satisfied their liability in full.

This testimony was not accepted by the chancellor and is against the decided weight of the evidence. McHenry, the lender, kept carbon copies of his typewritten letters to Littleton; their authenticity is not open to question. These letters convince us that the Littletons could not have believed their debt to be only $200 in 1954. In May of 1953 McHenry had written Littleton that the account stood at $587.64 plus interest. Later that month there was an additional advance of $200. In September of 1954, less than a month before the $200 payment, McHenry wrote Littleton and referred to the debt as being $787.64 plus interest. Moreover, in 1957, long after the $200 payment, McHenry wrote that tire ‘ ‘ additional loan” made in January of 1956 (the $295 note upheld by the chancellor) had increased his investment beyond the value of the forty acres. Finally, in 1960, when, according to the Littletons, only the $295 note was outstanding, Littleton’s wife wrote for him a letter offering to pay $500.00 on my account immediately if you will accept it. I cannot pay it all now. ’ ’ In view of this unimpeached written evidence we find it impossible to believe that the Littletons had any reason to think that the $200 payment in 1954 would be accepted as a full satisfaction.

On the main issue we find that the debt, even though barred, was revived by written acknowledgment. On January 13, 1960, McHenry, apparently realizing that the validity of the account was in jeopardy, wrote a letter to Littleton in which he said: “This is notice to you to get in touch with me right soon so that we can make some arrangements about your debt on you[r] property. It will be necessary that we at least make a new mortgage and make some small payment at least on your mortgage debt. ’ ’

In response to this letter the Littletons sent McHenry a $25 money order on January 22, 1960. In the accompanying letter the Littletons (the wife writing for her husband) said: “Please find enclosed p.o.m.o. for $25.00 on my account. I am hoping to be able to pay the account in full in the near future. I thought when I talked with [you] last that I would soon be able to pay you every penny on my account at once, but have been disappointed.” Again, in September of 1960 Littleton, as we have already said, offered by letter to pay $500 on the account and added: “I cannot pay it all now.”

Under our holding in Morris v. Carr, 77 Ark. 228, 91 S. W. 187, these letters were sufficient acknowledgments to revive the debt. In the Morris case the debtor, in reply to an inquiry by the creditor,, merely stated that “I will use the money another year. ’ ’ In finding that this letter constituted an acknowledgment of the debt we pointed out that such an acknowledgment need not affirmatively express an intention to pay the debt. It is enough, if the debtor unequivocally recognizes the indebtedness as a subsisting obligation and makes no statement repelling the presumption that he intends to pay.. In the case at bar the Lit-tletons’ letters fall well within the principles announced in the Morris case and thus had the effect of reviving the debtors’ liability.

The appellees insist, however, that under the rule stated in Opp v. Wack, 52 Ark. 288, 12 S. W. 565, 5 L.R.A. 743, where there are two or more obligations due to the creditor the written acknowledgment must identify the one or ones to which the promise to pay attaches. The answer is that, although McHenry held several of the Littleton notes, the parties always regarded the indebtedness as a single account, secured by a single mortgage. It was frequently so referred to in their correspondence. Hence when Littleton recognized his obligation to pay “every penny on my account” he must be taken to have meant the account as a whole.

Reversed and remanded.