text:
    Southern Farmers Assn. Inc. v. Whitfield.
    5-3359
    383 S. W. 2d 506
    Opinion Delivered November 9, 1964.

      Edgar B. Thompson, for appellant.

      Fred A. Neivth, Jr., for appellee.
   Sam Robinson, Associate Justice.

This is an appeal from a judgment for the plaintiff in a malicious prosecution action. The appellant, Southern Farmers Association, Inc., sells gasoline at wholesale. Appellant Shaw Wilson is apparently manager of that company; there is no contention that he was not acting within the scope of his authority in the action he took in this matter.

Appellee, G. AY. Whitfield, operated a filling station; he bought gasoline from Southern Farmers. Along about 1958 he had become indebted to Southern Farmers for an amount between $7,000 and $8,000. Southern Farmers cut off his regular credit and thereafter sold him gasoline on a plan whereby a tank of gasoline, amounting to something over $1,400, would be delivered to him and he would give his check for it, although he would not have sufficient money in the bank to cover the check. Southern Farmers was fully aware of that fact, and would hold the check until AYhitfield had sold enough of the gasoline to deposit in the bank sufficient funds to make good the check held by Southern Farmers. This method of operation was carried on for several years.

Finally, on July 13, 1962, Whitfield gave to Southern Farmers a check in the sum of $1, 480.66 in payment of a load of gasoline. Southern Farmers ran the check through the bank the first time about 10 days later, on July 23, and twice thereafter; there never was sufficient money in the bank to cover the check.

On September 25, 1962, appellant, Shaw Wilson, acting in his capacity as agent for Southern Farmers, along with the attorney for the company, appeared before Virginia Ham, Deputy Prosecuting Attorney in Pulaski County, and prevailed upon her to approve the issuance of a warrant of arrest for appellee, Whitfield, charging him with giving a bad check with the intent to cheat and defraud. Whitfield was arrested. A hearing was conducted in the Little Pock Municipal Court. At the time of the hearing, the case was passed indefinitely by the court with a notation that it was to be dismissed if not tried by October 19, 1962.

Nothing further was done about the case, and about. a year later Whitfield filed this suit against Southern Farmers and Shaw Wilson for malicious prosecution. The cause was tried to a jury, resulting in a verdict and judgment for Whitfield in the sum of $1,000.00. Southern Farmers and Wilson have appealed.

Three points are argued. First it is contended that there has been.no termination of the prosecution. This is a necessary requisite to an action for. malicious prosecution. But, even if it could be said that the Municipal Court reached no decision in the case, the undisputed facts would support a finding by a jury that appellants had abandoned the prosecution and this is a sufficient termination of the action against the accused to form the basis of an action for malicious prosecution. The court said in Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851: “There was testimony from which the jury might have found that appellant Twist abandoned the criminal prosecution instituted by him against appellee before the justice of thfe peace. Such abandonment, as we have seen, constituted a legal termination of that prosecution.” See also Winkler v. Lenoir & Blowing Rock Lines, 143 S. E. 213.

Next, appellants contend that a full disclosure of all pertinent facts was made to the attorney for appellants and also to the Deputy Prosecuting Attorney, and that appellants acted on their advice. If the record supported this contention it would constitute a valid defense to a suit for malicious prosecution. Jennings Motors v. Burchfield, 182 Ark. 1047, 34 S. W. 2d 455. Here, however, the record does not bear out the assertion that Wilson disclosed all the facts to the attorney for Southern Farmers and to the Prosecuting’ Attorney. Mrs. Ham, the Deputy Prosecuting Attorney, when asked whether either Mr. Wilson or his attorney had told her that it had been a policy of 'the Southern Farmers to hold the checks and let Whitfield pay them off as he sold the gasoline, testified: “A: No sir. Not to my recollection they did not. Q: They didn’t relate those, facts to you? A: No sir.”

The attorney for Southern Farmers testified: ‘ ‘ Q: In other words you know that Mr. Shaw Wilson knew no money was in the bank? A: I did not know that.”

A great preponderance of the evidence shows that Mr. Wilson did know that the money was not in the bank to cover the check at the time he accepted it, and that it had been his practice to accept checks on the same basis for about five years. If Wilson had’made the full disclosure that he had been regularly accepting Whitfield’s checks over a period of about five years when he knew that the checks were not good at the time he accepted them, and knew the same thing about the particular check involved here, perhaps the warrant for Whitfield’s arrest would not have been issued.

Affirmed.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Reynolds v. Bounds.
    5-3332
    383 S. W. 2d 496
    Opinion Delivered November 9, 1964.

      Mahony S Yocum, for appellant.

      Brown, Compton & Prewett, for appellee.
   Jim Johnson, Associate Justice.

This suit resulted from a collision between a passenger car and a pick-up truck being driven to a service station for servicing by the service station operator. At the time of the collision appellants Jim Reynolds, S. P. Reynolds and C. W. Williams, doing business as Reynolds & Williams Contractors, and Construction Company, were engaged in widening and resurfacing part of Highway 167 near El Dorado. On Saturday morning June 12, 1961, the superintendent of appellants’ concrete work, Gordon Smith, drove into El Dorado. After completing other business, Smith went to the service station of John H. Davidson, where Smith had been having appellants’ automotive equipment serviced for the past few weeks. He asked Davidson to wash, grease and change oil in the truck and asked if the truck could be ready by 12:00 or 1:00 P.M. Davidson then, either at his suggestion or Smith’s request, rode with Smith several miles out of El Dorado toward appellants’ job site, where Smith turned tlie truck over to Davidson. En route to his service station, Davidson collided with a car belonging to appellees C. R. Bounds and Gloria Bounds, his wife, and driven by Mrs. Bounds.

On September 27, 1961, appellees filed suit in Union Circuit Court, Second Division, against Davidson and appellants. Appellees alleged that Davidson was acting-as the agent, servant and employee of' appellants, that Davidson was driving appellants’ truck and at a certain location negligently lost control of the truck and collided with Mrs. Bounds’ automobile. The complaint alleged in detail the particulars of Davidson’s negligence, the extent of Mrs. Bounds’ injuries and the damages to both Mr. and Mrs. Bounds. On November 1st, the complaint was amended to join Gordon Smith as a party defendant and to allege that appellants’ truck was in the custody and possession of appellants’ employee, Gordon Smith, that at the time of the collision Davidson was acting as an agent, servant and employee of appellants or of.Smith.

In their answer appellants and Smith denied1 the complaint and pleaded contributory negligence of Mrs. Bounds. On May 24, 1962, their answer was amended to allege, inter alia, that, at all times since delivery of the truck to Davidson for servicing he was a bailee and independent contractor, and not an agent, servant or employee of appellants and Smith. Davidson answered separately by general denial, and .on May 29,' 1963, Davidson’s answer was amended to allege that the collision was the result of unavoidable accident. After a slight shuffling of attorneys and judges (one of appellees ’ original attorneys having- become circuit judge, the other being joined by Davidson’s original attorneys as partners and thus now representing appellees, and Davidson having acquired other counsel prior to trial), and the circuit -judge and chancellor exchanging circuits, the case was brought to jury trial on October 29, 1963. At the close of all the evidence the court on motion directed a verdict in favor of Gordon Smith. After deliberation the jury returned a verdict for appellees against Davidson and appellants. From judgment on the verdict, appellants have prosecuted this appeal. Davidson did not appeal the judgment against him.

For reversal, appellants rely on two points: (1) the trial court erred in overruling appellants’ motion for a directed verdict, and (2) the trial court erred in refusing to give appellants’ requested instruction No. 2 (which read: “The evidence is not sufficient to entitle the plaintiffs to recover damages in any amount against the defendants . . . Reynolds & Williams and you will return a verdict for said defendants.”).

Appellants urge that Andrews v. Bloom, 181 Ark. 1061, 29 S. W. 2d 284, is squarely in point and controlling of this case. In that case an automobile owner’s (Andrews’) wife telephoned their usual auto repairman and asked that her husband’s car be picked up at their home for servicing, which the garage did as an accommodation to regular customers. The garageman sent two of his regular employees to get the car and-on the way back to the garage the one driving (G-ullett) collided with Bloom. This court 'held that Gullett received his instructions- from the garage owner, was subject to his direction and control, was therefore the servant of the garage owner and no.t Andrews, the car owner, and reversed and dismissed the suit against Andrews.

Appellees urge, on the other hand, the law applicable here is represented by the recent case, Campbell v. Bastian, 236 Ark. 205, 365 S. W. 2d 249. In this case Campbell’s car was parked near the home of one Ellis. Campbell called'Ellis and asked him to bring the car to his (Campbell’s) home, which Ellis proceeded to do. As Ellis was turning into Campbell’s drive, he collided with Bastian’s truck, who sued Campbell for the damages. The trial court instructed the jury that Ellis was the agent of-Campbell at the time of the collision and on this point, inter alia, Campbell appealed. This court held that, “When an owner asks another person to drive a vehicle for him to a certain place and such requested person undertakes to comply with the request and is on the prescribed route, it is clear, as a matter of law, that the driver in such a situation is acting as the agent of the owner and not as a bailee of the vehicle. Because of Campbell’s testimony as herein quoted, we find no error committed by the trial court in declaring as a matter of law that Ellis was the agent of Campbell.”

These apparently divergent views brings us to the review of a number of references including 35 ALR 2d 804, “Liability of owner of motor vehicle for negligence of garageman or mechanic.” In Section 7 of the annotation on picking up and delivering cars it is said in general that ‘ ‘ an automobile owner is not liable for damage caused by his automobile when being picked up for transportation to a garage for storage or service, or when being returned to the owner, through the negligence of an employee of the garage, such employee being regarded as the servant of the garage operator rather than the car owner,” citing Andrews v. Bloom, supra.

In general on an owner’s liability for damage caused by his car while it is being serviced or repaired, 35 ALR 2d 804 states:

“In the great majority of cases involving negligent operation of a car by service personnel in connection with the work for which it has been placed in their custody, the courts have held that the owner is not liable.
“This result is generally reached on the theory that the service establishment becomes the bailee of the car as an independent contractor, since the owner is concerned only with the results of the work and not with the detailed manner in which it is carried out. ’ ’

Review of a number of cases wherein motor vehicle owners were or were not found liable for the negligence of a garageman or his employee reveals that liability of an owner depends on his legal relationship with the garageman or his employee at the time of the accident, and this relationship is usually a question of fact.

To clarify this abstruse statement are some examples:

A delivers his car to B’s garage and leaves it there for servicing, planning to pick it up later. This is a simple bailment and A would not be liable for damage caused by his ear through the negligence of B or one of B’s employees. 8 Am. Jur. 2d, Automobiles and Highway Traffic, § 578, p. 132.

When the car has been serviced, A calls C who works near the garage and asks C to drive his (A’s) car home. C does so and causes an accident. This is simple agency; no bailment involved. A is liable for damages fromC’s negligence. Campbell v. Bastian, supra.

Or, when the car has been serviced, Á calls D, an employee of B’s garage, who has just gone off duty, and persuades D to deliver the car to A. B’s policy is never to deliver cars. D, however, undertakes to do so, even though he has no driver’s license, and causes an accident. Here D, acting entirely without B’s authority, was A’s servant and A was therefore liable for his negligence. Marron v. Bohannan, 104 Conn. 467, 133 Atl. 667, 46 ALR 838.

Next time the car needs servicing, A calls B and asks B to pick up the car at A’s home and take it to B’s garage for servicing, as B frequently does for regular customers. B sends an employee, C, for A’s car, who picks up the car and has an accident on the way to the garage. Since C is entirely under the direction and control of B, A is not liable for C’s negligence. Andrews v. Bloom, supra; Luckett v. Reighard, 248 Pa. 24, 93 Atl. 773, Ann. Cas. 1916A, 662.

Next time, A asks B to pick up the car and do some errands for A on the way back to the garage. B causes an accident while engaged in A’s errands. "While doing A’s errands B is subject to A’s direction and control and A is therefore liable for B’s negligence. This would also be true where A sent C, B’s employee, on an errand ,for A and C caused an accident. Gordon v. Peters, 313 Ill. App. 261, 39 N. E. 2d 680.

A, car owner, stores Ms car by the month at B’s garage. B had stipulated that any delivering of A’s car must be at A’s risk. A drove up to B’s garage one day and C, B’s employee, got into the car and drove or rode off with A, apparently to deliver A home. Returning to the garage in A’s car, C has an accident. Since C was subject to the direction and control of A, A is liable for C’s negligence. Holloway v. Schield, 294 Mo. 512, 243 S. W. 163, 22 NCCA 310.

A arranges with B, who owns the storage garage where A stores his car, to pay B so much an hour to have one of B’s employees, C, chauffeur A. Although A pays B for C’s services, C, who is subject to A’s direction and control, is A’s servant, and A is liable for, C’s negligent auto operation while ehauffeuring A. Jimmo v. Frick, 255 Pa. 353, 99 Atl. 1005.

In one case difficult to reconcile and apparently contra to Andrews v. Bloom, supra, A delivered his car to B for repairs.. B was a bailee for that purpose. B did not deliver cars for his customers, except occasionally for A as a favor or accommodation. The Missouri court held that while the car was being repaired, B was a bailee, but that when he delivered it as an accommodation, without charge and not as a usual matter, B was A’s servant in making the delivery. Andres v. Cox, 223 Mo. App. 1139, 23 S. W. 2d 1066.

And so we reach the case at bar. We have no doubt that at the garage Davidson was bailee of appellants’ truck as an independent contractor. And we have no doubt that appellants could have made Davidson their agent for some purpose during the course of delivering the truck to his garage. But did they? The issue resolves itself simply to whether there was sufficient evidence of agency (rather than bailment) to create a jury question. In this particular instance we think not. The tone of all the testimony on this point convinces us that Davidson was simply accommodating a fairly new customer who had still other trucks and equipment which would require servicing. Davidson testified that he frequently delivered cars for Ms customers as an accommodation when asked, although he didn’t advertise the fact; and did not customarily go out of the city limits to pick up or deliver a car. Davidson further testified that in the instant case he wanted the business and was willing to accompany Smith and bring the truck back; that he was going out there (past the city limits) and bring it back for the profit he could make off the wash, grease and oil change, and he didn’t ask how far he had to go to get the job. It is undisputed that Smith gave Davidson no instructions relative to the return trip and that the purpose of the return trip was solely to accomplish the servicing job.

Appellee makes a commendable but strained effort to draw a fine line between the work to be done at the station and the trip back to the station, conceding in effect that during work at the station a bailor-bailee relationship would have existed, while contending that on the trip back to the- station an agency relationship obtained, and cites Andres v. Cox, supra. This. Missouri case is interesting and would be most persuasive if this question were a matter of first impression in this jurisdiction. We are bound, however, by our own rule expressed in Andrews v. Bloom, supra, which stands for the proposition quoted as the general rule in 35 ALR 2d 804, § 7, set out above, and upon considered reflection thereof wé believe this to be the better rule. Applying this rule to the facts in the case at bar, there is no evidence that any other relationship'-than a bailment was created when Smith delivered possession of the truck to Davidson.

Reversed and dismissed.


author: Frank Holt, Associate Justice.

text:
    Norman v. Gray.
    5-3337
    383 S. W. 2d 489
    Opinion Delivered November 9, 1964.

      Smith, Williams, Friday & Bowen and Wootton, Land é Matthews, for appellant.

      McMath, Leatherman, Woods c& ToungdaM and Richard W. Hobbs, for appellee.
   Frank Holt, Associate Justice.

The appellees, Mary Ellen Gray, administratrix of the estate of Martha Imogene Gray, deceased, and Lee Beavers, administratrix of the estate of Verona Beavers, deceased, brought separate actions against the appellants, William T. Norman and Better Built Homes, Inc. These actions, consolidated for trial, resulted from the deaths of appellees’ two girls, each twelve years of age, who were killed instantly while riding a bicycle near their homes when they were struck by an automobile driven by appellant William T. Norman, an employee of appellant Better Built Homes, Inc. A verdict was rendered by a jury awarding each of the appellees $35,000.00 against both of the appellants.

For reversal appellants rely upon seven points. They first argue that the court should have directed a verdict for the appellants at the conclusion of all the evidence. We cannot agree when we review the evidence in the light most favorable to the appellees as we must do on appeal. Harkrider v. Cox, 232 Ark. 165, 334 S. W. 2d 875. The case at bar was submitted to the jury upon the conflicting theories of negligence and contributory negligence as to how the accident occurred. It was within the province of the jury to believe appellees’ theory and disbelieve appellants’ version. Therefore, the only question we can consider is whether there is any substantial evidence to support the jury’s determination of these issues. We will not disturb the finding of fact by a jury on conflicting evidence if there is any substantial evidence to support the jury’s determination. St. Louis-San Francisco R. Co. v. Bishop, 182 Ark. 763, 33 S. W. 2d 383.

Appellees ’ evidence was to the effect that the twelve-year-old girls, while both were riding an unlighted bicycle on the shoulder of Highway No. 70 about six p.m., were struck from behind by a speeding automobile. The grandfather of one of the children testified that he went to the scene immediately following the accident and observed the position of the children’s bodies and that early the next morning he measured distances with a tape measure from the point where their bodies were found by following a trail of blood. According to his testimony, the physical facts established that the point of impact was on the shoulder of the road 5 feet and 3 inches south of the edge of the blacktop pavement and 91 feet east of an intersection. Both the children and appellant Norman were traveling eastward. The physical facts further reflected that the vehicle carried the bicycle and the children’s bodies 74 feet before appellant Norman’s brakes became fully effective at a point south and near the center line of the highway; that from this point the skid marks indicated appellant’s vehicle traveled 241 feet in an arc from the center line to the north edge of the pavement and back to the center line; that as the vehicle veered back to the center line, the bodies of the girls were flung from the hood and windshield of the car to the north shoulder of the highway and came to rest, along with the bicycle, near each other; that one body skidded 92 feet on the pavement and an additional 30 feet on the north shoulder and the other body skidded 30 feet on the pavement and 9 feet on the shoulder. According to him, there was evidence of gouge marks from the bicycle on the pavement indicating the path of the car. He testified that before the continuous skid marks of the automobile began, he found irregular skid marks-left by the bicycle tires. He found shattered glass beginning about 53 feet from the point of impact at regular intervals in the eastbound traffic lane to where the car came to rest. His testimony of the physical facts was corroborated in some respects.

According to appellant Norman’s theory of the case, he was traveling 40 to 45 miles per hour as he proceeded through the intersection; that as he passed an oncoming-car he put his lights on high beam and saw in his eastbound lane an object which was 175 to 200 feet ahead of him and about one-half to two feet from the shoulder of the road. He began to slow up and observed it. was either one or two children on an unlighted bicycle; that he then locked his brakes and made a sharp turn to the left or into the westbound lane in order to go around the children; tha't they unexpectedly turned to their left and into his path where the right front fender of his car struck them at a point about 250 feet [instead of 91 feet as claimed by appellees] from the intersection; that the beginning of glass spray was found 350 feet from the intersection; that the bodies of the girls were carried on his hood and windshield and they were propelled from the car when he cut back sharply into his eastbound lane of the road. There was other evidence, direct and circumstantial, which tended to corroborate the appellant.

Where there are two conflicting versions of the cause of a collision or accident, it is within the province of the jury to resolve the conflict or inconsistencies in the evidence. Jonesboro Coca-Cola Bottling Co. v. Holt, 194 Ark. 992, 110 S. W. 2d 535; Schwam v. Reece, 213 Ark. 431, 210 S. W. 2d 903 ;Fields v. Freeman, 177 Ark. 807, 8 S. W. 2d 436. It is true that in the case at bar the appellees relied largely upon physical facts and circumstances in establishing the allegations of their complaint. We have reiterated many times that physical facts can be more persuasive than statements by witnesses. East Texas Motor Freight Lines Inc. v. Dennis, 214 Ark. 87, 215 S. W. 2d 145. In Pekin Wood Products Co. v. Mason, 185 Ark. 166, 46 S. W. 2d 798, we said:

‘ ‘ * * * that a well connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence, and frequently outweighs opposing direct testimony, and that any. issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions. ’ ’

See, also, Phillips Motor Co. v. Price, Admx., 204 Ark. 827, 165 S. W. 2d 251; Arkmo Lbr. Co. v. Luckett, 201 Ark. 140, 143 S. W. 2d 1107.

In the case at bar the issue of appellants’ negligence was properly submitted to the jury since there was substantial evidence to sustain its verdict in resolving the two conflicting theories.

Appellants contend in their next three points that there was no evidence to justify the court giving instructions on the duty of a driver (1) to keep a proper lookout, (2) to keep the vehicle under proper control, and (3) on the subject of speed. We think the court properly submitted these issues to the jury. Appellants argue that since the bicycle had no light or reflectors, appellant Norman had met the requirement to kéep a proper lookout. We have often said that a violation of a traffic statute is only evidence of negligence. The unlighted bicycle was a proper matter for the consideration of the jury, however, as we said in Duckworth v. Stephens, 182 Ark. 161, 30 S. W. 2d 840:

“* ’* * the failure to attach lights to the buggy was a matter of proper consideration, but it did not 'relieve Duckworth from the duty of acting as a reasonable prudent person in the operation of his car and of keeping such lookout as prudence for his own safety and humanity for the safety of others would dictate.”

Appellant Norman himself testified that he was 175 or 200 feet from the children on the bicycle when he first observed them in his traffic lane. There was evidence that this area was somewhat congested and that he had previously observed children playing in this vicinity. In Self v. Kirkpatrick, 194 Ark. 1014, 110 S. W. 2d 13, we said:

“Persons operating an automobile and seeing children ahead of them must exercise such care as a man of ordinary prudence would exercise under the circumstances.”

It is appellees’ version that the children were carried 74 feet from the point of impact before the beginning of skid marks from appellant’s vehicle. According to appellees’ evidence, it took appellant Norman 315 feet— 241 feet of which was a continuous skid — to bring his vehicle to a stop from the point -of impact. Appellant Norman testified that at the time of the accident he was driving 40 to 45 miles per hour. He also testified that he left Hugo, Oklahoma about 3.20 P.M., a distance of 168 miles to the scene of the accident which occurred two hours and forty minutes later or about 6:00 P.M. He further testified that he made three or four brief stops in traveling this distance. There was testimony that appellant Norman stated on two different occasions that he didn’t know what happened. When we consider the evidence in the case at bar relating to proper lookout, control, and speed, we are of the opinion that each of these was a proper issue for the jury to consider. Craighead v. Missouri Pacific Transp. Co., 195 F. 2d 652; Patterson v. Bell, 204 Ark. 777, 164 S. W. 2d 902; Black & White, Inc. v. Fisher, 224 Ark. 688, 275 S. W. 2d 876.

Appellants next contend that the court erred in refusing to give their requested instruction on unavoidable accident. We think the court properly refused this instruction. In Bennett v. Staten, 229 Ark. 47, 313 S. W. 2d 232, we recognized that the issue of unavoidable accident is raised:

í < * * * only when there is evidence tending to prove that the injury resulted from .some cause other than the negligence of the parties.”

See, also, Itzkowitz v. P. H. Reubel, 158 Ark. 454, 250 S. W. 535. It must be said that the deaths of these,little girls would not have occurred unless somebody was negligent. Appellants alleged that the accident was caused by the negligence of the children and appellees-asserted that the accident was caused by the negligence of appellant Norman. The court submitted these issues of negligence and contributory negligence to the jury under proper instructions. We are of the view there was no evidence in the case at bar that made a submissible issue to the jury on an unavoidable accident.

The appellants next argue that the court erred in refusing to give their instruction which recites that the rules of the road apply to riders of bicycles in the same manner as drivers of motor vehicles. We think that adequate instructions relating to the conduct of bicycle riders were given by the court. The court is not required to duplicate instructions on any subject. Nuckols v. Flynn, 228 Ark. 1106, 312 S. W. 2d 444.

The appellants’ final contention is that the judgments of $35,000.00 awarded to each of the appellees are excessive. In the case at bar the court’s instruction contained three elements of damage for the jury’s consideration, namely, mental anguish, loss of services of the deceased children, and funeral expenses. After deducting the undisputed funeral expenses, approximately $34,000.00 remains covering the elements of mental anguish and loss of services. There was a general verdict so we do not know how much the jury allocated to each of these two elements of damage. J. Paid Smith Co. v. Tipton, 237 Ark. 486, 374 S. W. 2d 176. The award of damages for mental anguish is most difficult to evaluate as was aptly said in Winner v. Sharp, 43 So. 2d 634.

“No other affliction so tortures and wears down the physical and nervous system. Psychosomatic illness of a serious nature may follow. The emotions may be unstrung, the nerves put on edge and the end effect may be a period in a rest home, a mental hospital, serious physical derangement and sometimes death.”

In the case at bar both little girls were healthy, talented, and industrious. Imogene Gray was a good student in conduct and grades. She was a majorette and particularly talented in art. Verona Beavers was also a good student and possessed unusual musical talents. She performed in talent shows at her school and was also a member of the choir in her church. Both mothers required medical attention because of their grief. Mrs. Beavers was described as “a nervous wreck.” She had lost weight and suffered a change in personality. Mrs. Gray had lost her husband after an extended illness only nine days before this accident. Imogene was the only child she had left in her home. There was evidence that as a result of the death of Imogene, Mrs. Gray was suffering from a “very bad mental and physical condition.”

In 15 Am. Jur., Damages, § 602, it is said:

“ Mental anguish from a pecuniary standard, is incapable of definite calculation. The law furnishes no definite rule or standard by which -such suffering may be valued or compensated for in money or which will afford a certain basis upon which damages therefor can be estimated. The amount to be awarded in any particular case necessarily, therefore, rests in the discretion of the jury, subject to review as in other cases. The difficulty in measuring damages of this kind, moreover, should not preclude their recoveiy in a proper case.” See, also, International Harvester v. Land, 234 Ark. 682, 354 S. W. 2d 13; Tiner v. Tiner, 238 Ark. 22, 379 S. W. 2d 425; and Pitts v. Greene, 238 Ark. 438, 382 S. W. 2d 904, where we approved substantial verdicts on the element of mental anguish alone.

Appellants argue that there is little or no proof on loss of services. There was proof that these little girls dutifully assisted their widowed mothers. Imogene was most helpful to her mother in nursing her ailing father. It is true that a twelve-year-old girl is incapable of earning very much of value, but the jury is permitted to indulge in conjecture on the future value of such services. In Missouri Pacific RR Co. v. Maxwell, 194 Ark. 938, 109 S. W. 2d 1254, we approved the following instruction:

“You are instructed that where damages are claimed for the death of a child incapable of earning anything or rendering services of any value, the value of its probable future service to the parent during its minority is a matter of conjecture and may be determined by the jury without the testimony of witnesses.”

In the case at bar these verdicts include damages for “pecuniary injuries” and “mental anguish.” We cannot say, under the facts in this case, that the awards fixed by the jury should be reduced by us.

The judgment is affirmed.


author: Carleton Harris, Chief Justice.

text:
    Wineland v. The Security Bank & Trust Co.
    5-3376
    383 S. W. 2d 669
    Opinion delivered November 16, 1964.

      Kirsch, Cathey é Brown, for appellant.

      Cecil Grooms, for appellee.
   Carleton Harris, Chief Justice.

This appeal relates to the construction of a trust instrument. Arthur Wine-land, an elderly widower, who contemplated remarriage, on February 9, 1959, conveyed certain farm lands (being all the property that he owned) to the Security Bank & Trust Company, as trustee. The bank executed a declaration of trust, the construction of which is now before this court. The trust instrument provides that the beneficiaries are Arthur Wineland (the settlor), the widow of Arthur Wineland, two sons, Albert Wineland and Oscar Wineland, and a daughter, Winnie Wineland Fletcher. Article II sets out the terms of the trust, and Article III provides for the distribution of income. These are the pertinent sections that are at issue in this litigation, and they read as follows':

ARTICLE II — Term of The Trust
"The Trust shall continue during the lifetime of Arthur Wineland, any widow that survives him, and Oscar Wineland, upon the death of the survivor of these three persons, the trust shall terminate and the trustee shall convey, pay over and distribute all remaining assets to the other beneficiaries named above, to-wit; Albert Wineland and Winnie Wineland Fletcher, in equal shares, if living. In the event either Albert Wineland or Winnie Wineland Fletcher dies before receiving full distribution from the Trust estate, his, or her, heirs shall take that which the one so dying would have taken, if living.
ARTICLE III — Distribution of Income
"All net income from the Trust Estate, after payment of principal and interest on mortgage indebtedness, shall be distributed annually, or at such more frequent intervals as the trustee may elect, to Arthur Wineland, the trustor, during his lifetime, after the death of Arthur Wineland, net income shall be distributed to any widow surviving him. After the death of the trustor and his widow, if she survives, income shall be distributed as follows: The trustee is authorized to pay net income to, or for the son of Arthur Wineland, Oscar Wineland, but when the same shall be done, and to what extent, shall be determined by the son, Albert Wineland, if living, otherwise by the trustee. The discretion vested in Albert Wineland and the Trustee shall be uncontrolled,, as it is not the intention to vest any beneficial interest in the Trust Estate in Oscar Wineland. Any net income of the Trust Estate not distributed, or paid to or for the benefit of Oscar Wineland, shall be divided equally between Albert Wineland and Winnie Wineland Fletcher. ’ ’

Arthur Wineland died on May 8, 1962, leaving no surviving widow (divorce having intervened), but being survived by the three children heretofore mentioned. On August 17, 1963, Oscar Wineland instituted suit against the Security Bank and against his brother and sister, alleging that, under the terms of Article III of the trust, he was entitled to receive the net income of the trust, subject only to any withholding that might be made because of some valid reason; that he was capable of handling the funds and that neither the bank nor his brother, Albert, had justified, or attempted to justify, in any manner, withholding the net income from him; that the actions of the bank and Albert Wineland were arbitrary and contrary to a proper interpretation of the trust instrument. It was further asserted that Albert Wine-land had refused to make any payments to Oscar, except on the condition that Albert, individually, together with Winnie Fletcher, should receive like payments, and that this ‘ ‘ is contrary to and in violation of the terms of the declaration of trust, whereby the plaintiff is entitled to the net income of the trust estate during his lifetime.” Oscar Wineland prayed for an accounting as against the trustee of all income received after the death of Arthur Wineland; that the bank should be charged with all expenditures which it had made, or permitted to be made, from the trust estate, other than mortgage loan payments, taxes and reasonable repairs; that personal judgment should be rendered against his brother, Albert Wineland, and sister, Winnie Wineland Fletcher, with respect to any sums they had received from the trust estate, and that the bank should be directed to pay to appellant the entire net income of the trust estate; further, that it should be enjoined from paying any portion to his brother and sister during his (Oscar’s) lifetime, and that a declaratory judgment should be entered construing the declaration of trust and defining the rights of the bank and all beneficiaries.

Appellees answered, contending that Albert Wine-land was given uncontrolled discretion in what should be paid to Oscar, and that, under the trust provision, any balance left should be divided between appellees, Albert Wineland and Winnie Fletcher. Appellees joined in asking the .court to declare the rights and responsibilities of the several parties to the litigation. At the conclusion of the trial, the court made extensive findings, holding that Albert Wineland and the bank, to date, had not been guilty of an abuse of discretion, and had not acted contrary to the provisions of the trust instrument in withholding certain trust income from Oscar. Albert Wineland had previously tendered a check for $200.00 to Oscar, preparing like checks for his sister and himself, but this payment was refused by appellant, and Albert then proposed to distribute an equal one-third of the net income from the trust estate which had accrued to date to each of the children, after deducting a sufficient amount for state and county taxes, and a reasonable reserve for other essential expenses, including repairs to improvements on the trust funds. The bank and Albert Wineland were directed to pay to Oscar Wineland one-third of the net income from the trust estate which had accumulated to date, after the withholdings heretofore mentioned, and with regard to the future, the court found:

“The defendant, Albert Wineland, has the discretionary power to postpone or withhold income payments in the event in the future, the plaintiff, Oscar Wineland, should become intemperate or other than thrifty with regard to the handling of his personal finances, with the determination as made by Albert Wineland to be conclusively upon all parties unless made contrary to any factual basis.”

The request of Oscar for an injunction against the payment of any portion of the net income to his brother and sister was denied. The court, however, found that the bank had, acted contrary to the provisions of the trust in permitting portions of the income to be used for the payment of expenses of the last illness of the decedent, Arthur Wineland, for his burial, and the erection of a monument, and the bank was directed to restore the amount so spent ($275.03). The costs of the action were assessed against the net income of the trust estate. From the decree entered, appellant brings this appeal, contending that the court erred in not ordering that all the net income of the trust estate should be paid to appellant, and that the costs of the action should have been .assessed against appellees, individually, without right of reimbursement from the income of the trust estate. Appellees cross-appeal from that portion of the decree wherein the hank was charged with the sums expended from the trust estate representing certain debts of the decedent, the funeral expenses, and expenses of the monument.

The material facts in this litigation are not in dispute, and the parties also agree completely upon the meaning of one provision of Article III, vis, that Arthur Wineland, definitely intended that Oscar’s wife or children should not acquire any ownership interest in the farm lands. From the evidence, it appears that Oscar, several years prior to the death of his father, had been in financial difficulties, and also had been very intemperate in his drinking habits. Oscar had, at one time, farmed some of his father’s land (not here involved), hut discontinued doing so in 1945, when that particular land was sold. The sale of the farm created some resentment and ill will, and Oscar moved to Michigan, where he lived for twelve years. Upon returning for visits, Oscar would visit his father, but there were still conflicts over the son’s drinking habits. Apparently, Oscar quit drinking in 1960 or 1961, hut his father never did learn of this fact before his death. Appellant asserts that the trust instrument was executed because of the fact that the father did not feel that Oscar was competent (because of habits) to properly handle his finances, hut, inasmuch as Oscar’s beneficiaries would never receive any part of the land, the elder Wineland intended that the son should receive all of the net income. Appellant says that this interpretation is strengthened because of the fact that Oscar is thirteen years older than his brother, Albert, and sixteen years older than his sister; that the father recognized that Oscar would, in all probability die first, and that tbe other two children would still have the opportunity to enjoy the use of the property which had been placed in trust. Also, appellant insists that the father certainly would not have intended to punish his son because he had “reformed,” and that an interpretation to the effect that Oscar was entitled to all of the money if he was in dire need, or if he became a public charge, but only entitled to a one-third portion if he conducted himself properly, has the effect of rewarding slothfulness, and punishing virtue. Oscar had testified that his brother, in discussing the provisions of Article III, had told him, “The way I see it, I can give you $1.00 or whatever I want to.” Both Albert and his sister testified that they knew of no misconduct, lack of thrift, or any other fact relating to the personal habits of Oscar which would justify a refusal to pay the net income of the trust estate to appellant.

Albert took the position that his father had intended, in creating the trust, that Oscar would not be allowed to go in need, or become a public charge, and had accordingly left it up to the "younger son to see that this did not happen; that if hungry and in need, Oscar would be entitled to receive up to the full amount of net income; that since Oscar was self-supporting, his position was the same as that of the other two children.

It would appear that the trustor had in mind that his daughter and younger son would, at least for some part of the time, participate in the net profits; otherwise, there would be no need for the provision, “any net income of the trust estate-not distributed, or paid to or for the benefit of Oscar Wineland, shall be divided equally between Albert Wineland and Winnie Wineland Fletcher.”

Appellant cites a number of cases to the effect that the language employed wherein Albert is given complete discretion to determine when, and to what extent, payments shall be made, is not, legally speaking, so broad as it appears. We agree that Albert is not permitted to act arbitrarily or without the exercise of reasonable judgment. These eases need not be discussed since we concur that the holdings to this effect constitute sound law. For instance, Albert would not be permitted, under present circumstances, to give to his brother only $1.00, for this would constitute an arbitrary act. However, under the facts, as presented by the evidence, we conclude, as did the chancellor, that there has been no arbitrary action; and we are unable to agree with appellant that the division approved (one-third of the net income to each child) was improper. As to the argument that, under the construction rendered by the Chancellor, the son is being penalized for “turning over a new leaf,” and that the father did not intend such action, we can only say that, under the evidence, Arthur Wineland apparently never considered this possibility. The trust agreement was executed by the settlor under the belief that his son was not competent to handle his affairs, since it seems to be undisputed that the elder Wineland did not know of the change in Oscar’s habits. But in interpreting the provisions, we cannot consider what Arthur Wineland might have done if he had known this fact; rather, the trust can only be construed in the light of the father’s knowledge at the time he executed the instrument.

It might be pointed out here that we do not pass upon Article III of the trust insofar as it relates to the future, i.e., the power of Albert to hold or withhold trust income, or to determine whether Oscar would be entitled to a greater portion of such income, or the full amount, under a different set of facts. That question is not now before us.

We do not agree with appellant’s contention as to the costs. While the complaint was filed against the bank, and the brother and sister, individually, the suit actually sought a construction of the trust agreement. In fact, part of the relief sought in the pleading is a prayer to construe the declaration of trust. Appellees also requested construction of the trust instrument. Under these circumstances, we think the Chancellor properly exercised liis discretion in taking the costs against the trust estate.

We thus also dispose of that portion of the cross-appeal, but we find merit in the other argument advanced by appellees. In making this determination, it is not necessary that we discuss the question of the use of trust funds for the payment of the bills in question. At the time of his death, Arthur Wineland had a deposit of $352.77 in the bank. This money was used to apply on the debts heretofore mentioned, together with $275.03, which was taken from the trust income. The Chancellor directed that this latter amount be replaced in the trust estate by the bank. It will be recalled that, under Article III of the trust agreement, Arthur Wineland received the income from the trust, payable annually (or at more frequent intervals, if the trustee so elected). Wineland died on May 8, 1962, and the record does not reflect that any income for 1962 was ever distributed to him. Prorating the net income over the entire twelve months, Arthur Wineland’s estate would be entitled to approximately one-third of $2,000.00, this figure representing the approximate net income for that year. The subsequent beneficiaries of the trust (succeeding Arthur Wineland) were not entitled to receive any net income until the father’s death, which means that the settlor’s estate was entitled to considerably more than $275.03. In Rogoski, Admr. v. McLaughlin, 228 Ark. 1157, 312 S. W. 2d 912, this court said: .

“We are unable to agree with the trial court’s conclusion that these paragraphs of the will had the effect of bequeathing to the surviving husband the entire net income for the first three months of 1956, most of this income having already accrued before Mrs. Upton’s death on March 13. A will is ordinarily construed to speak as of the death of the testator, Weeks v. Weeks, 211 Ark. 132, 199 S. W. 2d 955, and as a general rule the beneficiary of a testamentary trust is entitled to the income only from the date of the testator’s death. Rest., Trusts, § 234.”

We think that the Chancellor erred in charging the bank with these items, and that portion of the decree is accordingly reversed.

Affirmed on direct appeal; reversed in part on cross-appeal.

       Appellees also cross-appeal as to the assessment of the costs, contending that the costs should have been taxed against appellant individually.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Sutherland v. Sutherland.
    5-3161
    383 S. W. 2d 663
    Opinion delivered November 16, 1964.

      Shelby C. Ferguson, for appellant.
    No brief filed for appellee.
   Ed. F. MoFaddin, Associate Justice.

The vital question is the custody of a little girl four years of age named Alicia Faye Sutherland, the child of the appellant, Mrs. Dorothy Sutherland, and the appellee, John D. Sutherland.

In June 1962 John D. Sutherland, by his guardian, N. W. Sutherland, filed suit for divorce and for care and custody of the little girl. By cross complaint Mrs. Dorothy Sutherland also sought divorce and care and custody of their child. There were several hearings, and, during the pendency of the divorce suit, the parties resumed cohabitation and then re-separated. The cohabitation ended the pending divorce suit; but the Chancery Court had heard enough testimony to be seriously concerned about the welfare of the child. A deplorable situation is presented by the evidence, some competent and some incompetent. At all events, on April 30, 1963, the Chancery Court entered this decree:

“Now on this 30 day of April, 1963, comes on to be heard the matter of the custody of Alicia Faye Sutherland, minor child of John D. Sutherland and Dorothy Sutherland, pursuant to a decree of this Court dated January 8, 1963.
/‘This Court finds that on January 8, 1963, the Arkansas State Department of Public Welfare was asked to make a full, careful, and complete investigation of relatives of said child in order for this Court to determine where the custody of the child should be placed. The Welfare Department was also directed to report its findings and judgment as to the custody to this Court. However, shortly after the Order was made, the home was involved in a murder attesting to the unsuitability of the mother’s home.
“That from this event and a report made by Mr. J. 0. Benton, Director of Fulton County, the Court finds that the custody of the said minor child should be placed with the Child Welfare Division of the State Department of Public Welfare.
“IT IS THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED that the custody of Alicia Faye Sutherland be and hereby is placed with the Child Welfare Division of the State Department of Public Welfare until further orders of this Court or the Probate Court of this County. The mother, Mrs. Dorothy Sutherland, is hereby ordered and directed to bring Alicia Faye Sutherland to this Court and turn the child over to a representative of the Child Welfare Division of the State Department of Public Welfare or to be in contempt of this Court.
“IT IS SO ORDERED.”

It is from the foregoing decree regarding the custody of the daugther that Mrs. Sutherland has prosecuted this appeal, proceeding in forma pauperis through her attorney, who is serving without compensation. She urges these five points:

“1. When the plaintiff and defendant resumed marital relations, the Chancery Court was without further jurisdiction of the parties or subject matter.
“2. The Court’s Decree of April 30 is void because no notice was given to either the plaintiff or defendant that the Court was about to take action on custody of child.
“3. The Court’s Decree in awarding custody of child is void because custody was awarded to a stranger to the action.
“4. Court was without authority to -rely on mere reports of officers of departments and double hearsay to base his decree of custody of child.
“5. The sworn testimony does not justify the Court’s Decree.”

It is unnecessary for us to consider each point separately. There is no appearance here by the appellee, John D. Sutherland, or his guardian; but the State Welfare Department has appeared in this Court as intervener. The Attorney for John D. Sutherland has died and the appellee’s guardian has not employed other counsel. The Welfare Department states:

“Both the juvenile court and the chancery court hesitate to make any orders regarding the welfare of this child while this action is pending. Since the mother has had the child for over two years and there have been changes in circumstances that would necessitate a rehearing to determine whether the home of the mother is suitable for the child at this time, the ease should be remanded to the chancery court. ’ ’

The best interest of the child is always the polestar in these custody cases. Roberts v. Roberts, 216 Ark. 453, 226 S. W. 2d 579; Venegas v. Mascorro, 216 Ark. 173, 224 S. W. 2d 532. Here, the Chancellor made an order that was only intended to be temporary. The mother wants the custody case heard on its merits; the Welfare Department desires the same thing; and the father has not appeared. We therefore conclude that the best interest of the little girl will be served by remanding this cause to the Chancery Court to reinvest it with jurisdiction. There, the parents, the Welfare Department, and/or the juvenile authorities will have ample opportunity to take proper steps to insure that the best interests of this little girl are properly protected.

It is so ordered.

       In some places, the first name of the child appears as “Letha.”

       It is alleged that the guardianship of John D. Sutherland is because of a mental condition.


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    Fort Smith Chair Co. v. Laney, Commissioner.
    5-3324
    383 S. W. 2d 666
    Opinion delivered November 16, 1964.

      Gayle Windsor, Jr., Bethell & Pearce, for appellant.
    No brief filed for appellee.
   Ed. F. MoFaddin, Associate Justice.

This is an unemployment compensation case -, and the employer is resisting the claims of three employees, Ballard, Wilson, and Rhodes, who worked at the Fort Smith Chair Company. On account of lack of business the three were temporarily laid off from work some time prior to May 1961. Such was their status on May 31, 1961, when a labor dispute arose between the employer and the workers, who were members of United Furniture Workers of America. A strike went into effect on that date, with picket lines established.

On June 13, 1961 Fort Smith Chair Company notified Ballard, Wilson, and Rhodes to return to work, but they refused to return to work because they were members of the striking Union and would not cross the picket line. Thereupon, the Fort Smith Chair Company objected to Ballard, Wilson, and Rhodes receiving any further unemployment benefits after June 13, 1961. The local unemployment office in Fort Smith held that Ballard, Wilson, and Rhodes could not receive unemployment compensation after June 13th; the Appeals Referee reversed the holding and held that they were entitled to unemployment compensation; the Board of Review and also the Circuit Court affirmed the Appeals Referee; and the case is here on appeal. Thus the problem is: an employee is temporarily laid off because of lack of work, and during such period a strike occurs, and during such strike the.employee is recalled to his former work and refuses to cross the picket line to return to work. Under suck facts, is the worker entitled to unemployment compensation benefits after he refuses to cross the picket line to return to his former work?

Our applicable statute is Ark. Stat. Ann. § 81-1105 (f) (Repl. 1960), the germane portion of which reads:

“... no individual may ... be paid benefits for the duration of any period of unemployment if he lost his employment or has left his employment by reason of a labor dispute ... at the factory, establishment, or other premises at which he was employed (regardless of whether or not such labor dispute causes any reduction or cessation of operations at such factory . . .) as long as such labor dispute continues; . . . provided, however, that this sub-section shall not apply if it is shown that he is not participating in or directly interested in the labor dispute; . . . ”

Under the above statute an employee may not be paid benefits for the duration of unemployment if he lost his employment or left his employment by reason of a labor dispute. It would be an unreasonable refinement to say that these three employees were on temporary layoff prior to the strike and did not ‘‘lose employment” or “leave employment” because of the strike. They were on temporary layoff, and when called back to employment they refused to return; so they thereby lost employment. Refusal to cross the picket line made the claimants participants in the strike. 81 C.J.S. p. 279, “Social Security” § 186. Some of the cases from other jurisdictions bearing on the question here posed are: Employees of Lion Coal Corp. v. Industrial Comm. (Utah), 111 P. 2d 797; Muncie Division v. Review Board (Ind.), 51 N. E. 2d 891; Tucker v. American Smelting Co. (Md.), 55 A. 2d 692; Jones & Laughlin v. Unemploy ment Board (Pa.), 195 A. 2d 922; Abbott v. Appeal Board (Mich.), 34 N. W. 2d 542; Clapp v. Appeal Board (Mich.), 38 N. W. 2d 325; In Re Persons Unemployed (Wash.), 110 P. 2d 877; and In Re Sadowski, 13 N. Y. S. 2d 553.

In Muncie v. Review Board, supra, this statement appears:

“If unemployment is originally caused by lack' of work but thereafter work becomes available at the factory, establishment or other premises where he was last employed, and the employee refuses to work because of a labor dispute at such place in which he is participating, he is thereafter disqualified for benefits under the Act.”

In Jones & Laughlin v. Unemployment Board, supra, there is the quotation of the general rule from C. J. S.:

‘ ‘ The general rule in cases of this nature, established by cases from other jurisdictions, would seem to be that ‘ * * * if unemployment is originally caused by a lack of work and a labor dispute develops during the unavailability of work, the dispute does not disqualify the employee until work becomes available and he refuses the work because of the dispute.’ ” 81 C. J. S. Social Security and Public Welfare, § 187.

From a study of our statute and the adjudicated cases, we reach the conclusion that the three employees— Ballard, Wilson, and Rhodes — refused to return to their prior employment because of the strike and therefore made themselves a part of the strike and cannot draw unemployment compensation benefits from the time they refused to return to employment. Therefore, the judgment of the Circuit Court is reversed and the cause remanded to the Board of Review to enforce the result of this decision.

Johnson, J. dissents.

       Some of our more recent cases concerning unemployment compensation are: Reddick v. Scott, 217 Ark. 38, 228 S. W. 2d 1008; Little Rock Furn. Co. v. Commissioner, 227 Ark. 288, 298 S. W. 2d 56; Thornbrough v. Schlenker, 228 Ark. 1012, 311 S. W. 2d 753; Monsanto v. Commissioner, 229 Ark. 362, 314 S. W. 2d 493; and Thronbrough v. Stewart, 232 Ark. 53, 334 S. W. 2d 699.

       The strike was held to have been unlawfully called. See Fort Smith Chair Co. V. Local 270, 143 NLRB 28, also reported in 1963 Commercial Clearing House NLRB decisions, § 12, 475. This was affirmed by the Circuit Court of Appeals of the District of Columbia on April 16, 1964 in United Furn. Workers v. NLRB, reported in CCH 49 Labor Cases, § 18, 897; and certiorari was denied by the U. S. Supreme Court on October 12, 1964 in Case No. 276 styled United Furn. Workers v. NLRB.

       Of course, all the striking employees were refused unemployment compensation because of Ark. Stat. Ann. § 81-1105 (Repl. 1960), which so provides.

       The above statute is the Act No. 99 of 1959. Prior to 1959 the labor dispute section was Ark. Stat. Ann. § 81-1106 (d), but in 12 Ark. Law Review, p. 416, in commenting on our holding in Monsanto v. Thronbrough, 229 Ark. 362, 314 S. W. 2d 493, it is stated: “. .. it seems tacitly apparent that the shift of the labor dispute section of the Employment Security Act from disqualification, Ark. Stat. Ann. § 81-1106(d) (1947), to eligibility, Ark. Stat. Ann. § 81-1105 (f) (1957), does not change its effect.”

       In 28 A.L.R. 28Y there is an annotation entitled: “Construction and application of provisions of unemployment compensation or social security acts regarding disqualification for benefits because of labor disputes or strikes.” And in Paragraph 9 of that annotation there is a discussion of various cases involving strikes during a layoff period. See also 48 Am. Jur. 540, “Social Security” § 36. See also 12 Ark. Law Rev. 123.


author: George Rose Smith, J.

text:
    Christian v. State.
    5117
    383 S. W. 2d 659
    Opinion delivered November 16, 1964.

      Harold C. Raines, Jr., for appellant.

      Bruce Bennett, Attorney General, By: Bussell J. Wools,- Asst. Atty. Gen., for appellee.
   George Rose Smith, J.

The appellant, Stephen A. Christian, was convicted of embezzlement and sentenced to imprisonment for one year. He contends that the jury’s verdict of- guilty is not supported by sufficient evidence.

In some respects the State’s proof is so fragmentary that it is difficult to recount the facts with precision. In the fall of 1962 Christian appears to have been the executive vice-president of New Era Construction Company, a corporation engaged in building houses. The prosecuting witness, Joseph P. Roderick, entered into a written contract employing New Era to construct a house for $6,000. In the course of construction Roderick delivered to Christian three checks, payable to the corporation, totaling $3,350.80. It is evident that New Era was prevented by insolvency from completing its contract. An expert witness called by the State was of the opinion that the unfinished construction represented an outlay of not more than $2,000 for labor and materials. In addition, Roderick was compelled to pay off materialmen’s liens that amounted to more than $1,600.

About a year and a half after New Era abandoned the job Christian was charged by information with having embezzled all the money that Roderick had paid to the corporation. The State, to sustain the charge of embezzlement, had the burden of proving that the accused, as an officer of the company, had participated in misappropriating funds to such an extent as to be criminally responsible. State v. Guthrie, 176 Ark. 1041, 5 S. W. 2d 306. It is upon this pivotal point that the State’s proof is fatally deficient.

There is no substantial testimony to establish Christian’s guilt. He received the checks from Roderick, but there is no proof that he controlled the expenditure of their proceeds. An attorney testified that he sent a letter to Christian asking for an accounting of the sums paid to New Era. In reply Christian submitted a number of receipts that fell decidedly short of demonstrating where all the funds had gone. It is plain enough, however, that Christian’s failure to explain what the corporation had done with the money does not satisfy the State’s burden of proving that he was personally at fault.

Roderick testified that, at Christian’s request, Roderick advanced $350 to the corporation to enable it to pay a franchise tax that was overdue. Tet it certainly cannot be said that Christian was guilty of embezzlement in using this sum in the very way that Roderick expected that it be used. The State also produced a receipt indicating that New Era had paid $51.72 to a carpenter who never worked upon the construction job in question, but the testimony fails to show that the accused was criminally implicated in the transaction.

There is no reason to doubt that Roderick’s payments to the New Era company were misapplied, but Christian’s culpable participation in any wrongdoing that may have occurred is a matter of speculation rather than of proof. Upon this record the conviction cannot be upheld.

Reversed and remanded for a new trial.


author: Paul Ward, Associate Justice.

text:
    Yohe v. Yohe.
    5-3364
    383 S. W. 2d 665
    Opinion delivered November 16, 1964.

      Richard W. Robbs, for appellant.

      Walter G. Wright, for appellee.
   Paul Ward, Associate Justice.

Our only concern here is with the amount of temporary alimony and attorney’s fee allowed the wife in a divorce suit which is still pending.

Appellant Charlene B. Yohe and appellee Charles D. Yohe were married June 8, 1963 and lived together until November of the same year. On January 20, 1964 appellant filed suit for a divorce on the ground of indignities, asking for her attorney’s fee and alimony pendente lite. Appellee filed a motion to dismiss the complaint on the ground appellant was not a domiciliary of Arkansas. Then appellant renewed her motion for temporary alimony and preliminary attorney’s fee.

A hearing was had on the two motions upon the testimony of appellant. The court denied appellee’s motion to dismiss and ordered him “to pay plaintiff’s attorney a preliminary fee of $125.00 and to pay plaintiff for her maintenance the sum of $150.00 per month, until further order of tlie court”. From the above order appellant now prosecutes this appeal, contending the trial court erred in refusing to allow her more money for alimony and attorney’s fee pending further litigation.

After a careful review of the record we are unable to say the trial court committed reversible error, especially in view of the inconclusiveness of the testimony. Appellant was of the opinion her husband’s income was around $2,500 per month, but at the same time she admitted he placed a $2,000 mortgage against his automobile to pay current bills. She also stated that appellee’s office overhead-was between $600 and $700 per month, and.that it cost around $1,700 per month to maintain a home. Also appellee’s testimony indicates she may not have been in great need of money to live while prosecuting the divorce suit. She owns a home in which she has an equity of over $20,000, and appellee gave' her $7,000 three months before they were married. Appellant says she has been living with her daughter (by a former marriage) in another state for which she pays $25 per week.

Considering the fact that the allowances were only temporary and that there was no way of knowing, pending a full and final hearing, the needs of appellant or the financial status of appellee, we cannot say the trial court abused its sound discretion. This court has been consistent and specific as to the applicable rule in a situation of this nature.

In the case of Kearney v. Kearney, 224 Ark. 484, 274 S. W. 2d 779, we said:

“We have consistently held, through a long line of cases, that the question of alimony (under the provisions of § 34-1210, Ark. Stats. 1947), and the amount to be allowed to the wife pending the suit for divorce, together with her costs for attorneys’ fees and suit money, are within the sound discretion of the court, and unless abused, the court’s action will not b’e disturbed here.”

In Allen v. Allen, 171 Ark. 241, 283 S. W. 984, there is this language which is also applicable here:

“It cannot be determined in advance what amount of fee will be earned, and it must be left to a decision at the end of the litigation, when the extent of the services will be known and the result of the recovery and appellant’s ability to pay.”

The order of the trial court is accordingly affirmed.

Affirmed.


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    Belt v. Baser.
    5-3366
    383 S. W. 2d 657
    Opinion delivered November 16, 1964.

      Spears & Sloan, for appellant.

      Nance £ Nance,-for appellee.
   Jim Johnson, Associate Justice.

This suit involves ownership of the proceeds of a life insurance policy.

On May 26, 1962, Horace R. Baser was issued a certificate of insurance by Travelers Insurance Company under Baser’s employer’s group life policy in the sum of $2,500.00. The beneficiary was his mother, Ruby E. Baser. On November 29, 1962, the named beneficiary was changed to Joan D. Baser, his wife. On the morning of January 23, 1963, Horace Baser and Joan Baser were found dead in their home, apparently the result of gunshot wounds.

Appellee Ruby Baser filed a petition in Crittenden Probate Court on March 8, 1963, for appointment of an administrator of the estate of Horace Baser and after qualification, letters were issued to her as administratrix. Her inventory of the estate included the proceeds of the Travelers policy. A petition for distribution of funds was filed on October 16, 1963, by appellant J. W. Belt, adoptive father of Joan Belt Baser’s three children (born of a prior marriage), praying that the insurance proceeds be declared the property of the estate of Joan Baser. Appellee’s motion to dismiss the petition for distribution was denied, the court finding that the petition was not a claim for distribution but was in fact a claim that the funds do not belong to the estate of Horace Baser. After hearing on December 17, 1963, the probate court found (1) that the insurance policy-named Joan Baser as beneficiary and further provided that in the event of the death of the beneficiary prior to the death of the insured, the proceeds of the policy should be paid to the insured’s estate, and (2) that there was no sufficient evidence that Horace Baser and Joan Baser died otherwise than simultaneously and that the proceeds are assets of Horace Baser’s estate, and dismissed appellant’s petition.

For reversal appellant urges first that “the findings of the court are erroneous and contrary to both the law and the evidence.”

The insurance policy provisions applicable in this case are as follows:

“If death, shall occur while the employee is insured under said policy in accordance with the terms, conditions and provisions thereof, the amount of insurance in force thereunder on his life at the date of death will be paid to the beneficiary by the employee.” . . .
“Payment of any part of the insurance for which there is no beneficiary . . . surviving at the death of the employee, shall be made to the executors or administrators of the employee ...”

Appellant contends that the burden was on appellee to prove that the beneficiary was not “surviving at the death of the employee,” and cites Watkins v. Home Life & Accident Ins. Co., 137 Ark. 207, 207 S. W. 587. In that case the insured and the beneficiary were shot and killed from ambush and there was nothing in the proof to indicate which died first. The estates of both men claimed the proceeds of the policy. The relevant portion of Judge Hart’s opinion is as follows:

“The clause relied on, therefore, is the following: ‘If any beneficiary shall die before the insured, that the interest of such beneficiary shall vest in the insured.’ This provided for a substituted beneficiary in case of the death of the primary one. The beneficiary, therefore, had a qualified interest in the policy, and his death in the lifetime of the insured is therefore d condition ivhich must exist and must be shown to exist before the right of any subsequent beneficiary can be asserted. J. E. Fischer was the beneficiary named in the policy, and under its terms his representative had a prima facie title to the fund. In this case by the terms of the policy itself the substituted beneficiary could only take in case the insured survived the beneficiary. It is not a case where the beneficiary takes in the event he survvoes the insured. The insured and the beneficiary both died in the same disaster. There is no proof as to which one died first. Until it is shown that the beneficiary died in the lifetime of the insured, we think, according to the terms of the policy of insurance, the fund is payable to the representative of the beneficiary because it is only in the event of the death of the named beneficiary in the lifetime of the insured that the heirs of the insured can take.” [Emphasis ours.]

In the case at bar, the policy provides that the beneficiary will take in the event the beneficiary survives the insured, and the burden was therefore on appellant to prove that the beneficiary (under whom he claims) survived the insured, which he failed to do.

Appellant next states that the trial court erred in holding that under the Uniform Simultaneous Death Act [Ark. Stat. Ann. §§ 61-127, 61-128 (1947)] the presumption is that the insured survived the beneficiary, urging that there is no presumption either way and is a question of proof.

Section 61-127 provides:

“Where the insured and beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they have died other than simultaneously the proceeds of the policy shall be distributed as if the insured had survived the beneficiary.”

Section 61-128 states:

“This act shall not apply in the case of wills, living trusts, deeds, or contracts of insurance wherein provision has been made for distribution of property different from the provisions of this act. ’ ’

The policy provisions here coincide with the provisions of the Simultaneous Death Act. The trial court found that there was no sufficient evidence that the insured and the beneficiary died other than simultaneously. The record sustains the trial court’s findings. The Act creates its own presumptions and exceptions and like all prima facie presumptions falls when the fact to be presumed can be proved. It follows, therefore, there would be no presumption either by Act or policy wording if appellant had proved that the beneficiary had survived the insured.

Appellant’s final point urged for reversal is that “it is against public policy for one committing homicide, or anyone claiming under him, to profit by his wrongful act.” This is irrefutable — as far as it goes. See Ark. Stat. Ann. § 61-230 (1947). In the case at bar there were inferences but no legal proof that the insured murdered the beneficiary and killed himself. They were found dead in their bedroom, each with two gunshot wounds in the head and a pistol lying closer to Horace Baser than to Joan Baser. “To conclude that the insured killed his wife in order to do what he could have accomplished by notifying the .company of his desire to change the beneficiary is too absurd to require any discussion. And a denial of liability on the ground of public policy based on such a premise, as respects a contract of insurance on his own life, is carrying the doctrine far beyond its limits as recognized in this state. The killing of the wife initiated no-claim whatever upon the policy on the husband’s life; it was his suicide which made the policy payable.” Longenberger v. Prudential Ins. Co. of America, 121 Pa. Super. 225, 183 Atl. 422.

“ ‘Public policy is based upon the theory that the murderer himself intends to enjoy and that that is the reason he murdered; but where he could have no enjoyment out of it, he could not have had the intent. The rule of public policy doesn’t apply at all.’ . . . When the reason for the application of the rule does not exist the rule cannot be invoked.” Union Central Life Ins. Co. v. Elizabeth Trust Co., 183 Atl. 181 (N. J. 1936).

Affirmed.


text:
    Riggan v. Langley.
    5-3373
    383 S. W. 2d 661
    Opinion delivered November 16, 1964.

      Robert N. Karelin, Ed McDonald and Ben McCray, for appellant.

      Coclcrill, Laser, McGehee $ Sharp and Burl C. Rotenberry, for appellee.
   Frank Holt, Associate Justice.

The appellants, Tommy Riggan and his father, James A. Riggan, brought this action against the appellee, P. J. Langley, for the recovery of damages resulting from an automobile collision. A jury trial resulted in a verdict and judgment for the appellee. For reversal of this judgment the appellants first contend that the court erred in permitting the introduction of pictures of the roadway where the accident occurred. Appellants'argue that the pictures were inadmissible because they were taken a year after the accident and at a time when the conditions of the road had been changed. The pictures in question represent different views of the road at the crest of the hill where this accident occurred, the scene of the accident itself, and the location of certain vehicles exactly as they were following the accident.

The accident occurred when appellants’ vehicle collided with an oncoming car while going around appellee’s unoccupied vehicle which was parked partially on the road and in a roadside ditch. Appellee’s evidence shows that in all material respects the photographs substantially represented conditions as they existed on the day the collision occurred with the exception that the roadside ditch was not as deep because of the grading of the road in the interim. Any variance in the road conditions, as well as the time interval of one year, was fully explained to the jury. The true test of the admissibility of photographs into evidence depends upon the fairness and accuracy of the portrayal of the scene. Wheeler Admx. v. Delco Ben, 237 Ark. 55, 371 S. W. 2d 130. In Powell Brothers Truck Lines, Inc. v. Barnett, 196 Ark. 1082, 121 S. W. 2d 116, we said:

* * It makes no difference, of course, when a picture was taken, if the evidence shows that the conditions are the same as when the accident occurred, or when the evidence shows the difference, if there is any.” Also, see 20 Am. Jur., Evidence, § 731; Jewell Tea Co. v. McCrary, 197 Ark. 294, 122 S. W. 2d 534, and Southern National Insurance Co. v. Williams, 224 Ark. 928, 277 S. W. 2d 487. The admissibility of photographs as an aid to the jury is a matter within the sound discretion of the trial judge and unless that discretion is abused we do not disturb the trial court’s ruling. McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566. In the case at bar we think the trial court correctly admitted the photographs in evidence. The jury was not misled since the evidence fully apprised the jury of any variance in any material conditions.

The appellants next contend that the court erred in giving appellee’s Instruction No. 8 to which a general objection was made. This standard instruction defined the duties of both the appellants and the appellee with respect to keeping a proper lookout and a vehicle under control. The final sentence of this instruction tells the jury that the failure to meet the defined standard of .care is negligence. Appellants urge that the court should have told the jury that violation of these ‘ ‘ rules of the road ’ ’ is only evidence of negligence. The question presented is somewhat similar to the one considered in Wright v. Covey, 233 Ark. 798, 349 S. W. 2d 344.

* * In many instances it is proper to say that a certain fact, such as the violation of a statute, is merely evidence of negligence rather than negligence in itself. Gill v. Whiteside-Hemby Drug Co., 197 Ark. 425, 122 S. W. 2d 597. But this instruction is not confined to a particular fact; it is concerned with the plaintiff’s failure to exercise such care as would be exercised by a reasonably prudent person. It must be obvious that the plaintiff’s failure to conform to that standard of care is negligence, simply because that is really the legal definition of negligence.”

This instruction was not inherently erroneous and the fallacy, if any, should have been reached by a specific objection in order to give the court the opportunity to correct it. Swift v. Barker, 236 Ark. 805, 370 S. W. 2d 71; Bussell v. Missouri Pacific RR Co., 237 Ark. 812, 376 S. W. 2d 545. No error was committed in giving this information.

Appellants’ final contention is that the court erred in giving appellee’s Instruction No. 9 as modified. This instruction also defined several statutory “rules of the road” applicable to the issues in this case. In givingappellee’s instruction the court modified it by including verbatim one of appellants ’ instructions which purported to be verbatim Ark. Stat. Ann. § 75-647 (a) (Supp. 1963). However, it omitted certain words from this statute. Thus, this invited error cannot be assigned to the trial court. The Home Company v. Lammers, 221 Ark. 311, 254 S. W. 2d 65.

Finding no error, the judgment is affirmed..