text:
    Holmes v. Thompson
    5-3890
    402 S. W. 2d 400
    Opinion delivered May 9, 1966

      Donald F. Seay, Ward & Mooney, for appellant.

      James F. Daugherty, Shaver & Shaver, for appellee.
   George Rose Smith, Justice.

This is a foreclosure suit brought by the appellee Vance M. Thompson and his trustee upon three promissory notes, each secured by a separate deed of trust. The defendants, Roddy Holmes and his wife, pleaded the five-year statute of limitations as a bar to all three notes. Ark. Stat. Ann. § 37-209 (Repl. 1962). The chancellor sustained the plea as to one note but rejected it as to the other two. The correctness of the latter holding is the issue here.

This suit was filed on August 7, 1962. One of the notes, for $600, was then barred on its face, for the due date of its last annual installment was December 1, 1954. In finding that this note was not barred the chancellor evidently concluded that its maturity date had been extended by agreement. There is no contention, however, that either debtor signed a written acknowledgment of the debt, by which the running of the statute would have been tolled. Ark. Stat. Ann. § 37-216; Burnett v. Turner, 105 Ark. 290, 151 S. W. 249 (1912).

Thompson testified that when Holmes made an interest payment in the fall of 1956 Thompson agreed to extend the due date of the note to December 15, 1957. Thompson states that he, at Holmes’s insistence, then made this endorsement on the back of the note: “Int paid to 11-1-56 and agreed to extend all payment to 12-15-57.” The oral extension agreement, which Holmes denies having made, is now relied upon to arrest the running of the statute.

We are unable to find any semblance of a valid consideration for the asserted agreement. All Holmes did was to make a payment of interest that was unquestionably long past due. We have repeatedly held that such a payment is not a sufficient consideration for a supplementary contract. An early statement of the rule appears in Killough v. Payne, 52 Ark. 174, 12 S. W. 327 (1889): “The consideration of this promise was the payment, by Edgar, Gage & Co., of an undisputed debt due from them to Killough & Erwin . . . ; but the payment of a sum which one is already legally bound to pay is not a valid consideration for a contract.”

The principle was restated in Feldman v. Fox, 112 Ark. 223, 164 S. W. 766 (1914): “If no benefit is received by the obligee except what he was entitled to under the original contract, and the other party to the contract parts with nothing except what he was already bound for, there is no consideration for the additional contract concerning the subject matter of the original one.” Later cases to the same effect include Buchanan v. Thomas, 230 Ark. 31, 320 S. W. 2d 650 (1959), and DeSoto Life Ins. Co. v. Jeffett, 210 Ark. 371, 196 S. W. 2d 243 (1946). We must reverse that part of the decree which permits the enforcement of the $600 note.

The other note, for $2,141, presents a different question. That note was payable in five successive annual installments beginning December 15, 1956, and was therefore not barred on its face when the suit was filed. The debtors contend, however, that the note contained an automatic acceleration clause which had the effect of making the entire indebtedness immediately due when the first principal installment was not paid on December 15, 1956. The difference between an automatic acceleration clause and an optional one was examined in Mitchell v. Federal Land Bank, 206 Ark. 253, 174 S. W. 2d 671 (1943).

Here we have an automatic clause, but we do not find that the debtors’ default was such as to set it in motion. The note, after providing for interest at 8 per cent per annum, payable annually, goes on to declare that “if said interest is not paid within thirty days from the time the same may become due, for any payment thereof, then the whole of the said sum with all interest due thereon, shall at once become due and payable.” It will be seen that the acceleration of maturity occurs if an installment of interest is not paid within thirty days after its due date. There is no declaration that a default in the payment of an installment of the principal accelerates the maturity of the debt.

Thompson testified that Holmes paid the interest that was due on December 15, 1956. Thompson stated that he then entered this endorsement on the back of the note: “On Dec. 15-56 paid interest to date $85.64 and agreed to extend payment due this date to 12-15-57. VMT.” Holmes testified that the payment of interest was made on October 26,1956, hnt even if that testimony was meant to imply that there was a default in the payment of interest due on December 15 of that year, the issue is one of credibility, upon which we defer to the chancellor’s better opportunity to reach a decision.

As we have seen, the attempt to extend the due date of the 1956 installment of principal was ineffective, for want of consideration; so to that extent only the statute had run when this suit was filed. The appellee is entitled to collect the other four installments of the principal.

The decree is affirmed in part and reversed in part, and the cause is remanded for the entry of a decree consistent with this opinion. Each party will pay his own costs.

Bland, J., not participating.


source: Caselaw Access Project

author: Paul Ward, Justice.

license: Public Domain

text:
    Lewis v. Burdine
    5-3887
    402 S. W. 2d 398
    Opinion delivered May 9, 1966

      McKay, Anderson & Grumpier, for appellant.

      Brown, Compton & Prewett, for appellee.
   Paul Ward, Justice.

This is an appeal from a $1,-500 jury verdict against appellants who attempted to collect a $72 doctor’s bill allegedly owed by appellee. For a better understanding of the issues involved and how they arose we set out below a summary of the background facts and circumstances.

Mrs. Relma Burdine (appellee herein) began working for the Southern Extrusion Company in 1961, making $40 per week which (she says) was needed to help feed the family, including five boys. Soon thereafter her husband, who works in the oil fields, became ill, went to the hospital, and incurred a sizeable bill for medical treatment by Dr. Charles W. Kelley and a bill of over $60 for ambulance service. When these bills were not paid by Mr. Burdine Dr. Kelley turned them over to the Magnolia Collection Agency, Inc. for collection. Appellant, Mrs. Ruby Lewis, is the owner and manager of the Agency.

On August 18, 1964 suit was filed against appellee in the Magnolia Municipal Court to collect $72, being the balance due Dr. Kelley. On the same day and in the same action a writ of garnishment was issued against appellee’s employer to impound her salary. As a result appellee was discharged by her employer in accord with a company rule. As soon as Mr. Burdine learned of the suit he promptly went to the agency and paid the $72, and the suit in the municipal court was later dismissed.

In December 1964 appellee instituted the present litigation by filing suit in circuit court against Mrs. Lewis, the agency, and Dr. Kelley, alleging their actions in connection with the municipal court proceedings constituted an abuse of process in that they knew the debt or bill in question was not her debt and that she was under no legal obligation to pay the same. Her prayer was for damages in the sum of $10,000. Appellants’ answer was to the effect that appellee owed the debt to Dr. Kelley since she had agreed to pay the same. During the trial the suit was dismissed as to Dr. Kelley, and the jury returned a verdict for $1,500 against Mrs. Lewis and the Agency.

After a careful consideration of the factual questions and the available authorities we have concluded the judgment of the trial court must be affirmed.

We refrain from discussing in detail the points relied on by appellants for a reversal for the reason that they deal primarily with questions related to an action for malicious prosecution. Appellants’ contentions are that they would not be liable in the absence of a showing of malice on their part in bringing the original action in municipal court. Also, it is stressed that they could not be held liable in this case because the litigation terminated in their favor, citing numerous cases in support.

We think, however, that the case must be affirmed because there was the showing of an abuse of process in connection with the garnishment served on appellee’s employer. The jury found, under proper instructions (supported by substantial evidence) that the debt in question was not the debt of appellee; that appellee did not agree to pay her husband’s debt, and; that appellants were aware of all these facts at all times.

Damages based upon an abuse of process were recognized as proper in the early cases of Baxley v. Laster, 82 Ark. 236 (p. 242), 101 S. W. 755 and Greer v. Cook, 88 Ark. 93 (p. 96), 113 S. W. 1009. In the Baxley case we find this statement:

“But if he employed process, legally and properly issued, wrongfully and unlawfully for a purpose which by law it was not intended to effect, he was guilty of a malicious abuse of process, and would be liable in damages for the abuse.”

To the same effect we said, in the Greer case:

“The fact that the creditor instituted the suit in a foreign jurisdiction for the sole purpose of vexation and oppression does not authorize the interposition of a court of equity by injunction. The remedy, if any, is at law for the malicious abuse of process.”

Volume 1. Am. Jur. 2d, Sec. 6, page 255, Abuse of Process, contains this statement:

“The abuse consists in the unlawful method by which the act is done; the intentional use of this method constitutes malice in law, and the action will lie if there is proof that the process was used under circumstances amounting to either actual or implied malice. ’ ’

Prosser, Torts, § 115 (3d ed. 1964) contains this statement:

“Abuse of process differs from malicious prosecution in that the gist of the tort is not commencing an action or causing process to issue without justification, but misusing or misapplying process justified in itself for an end other than that which it was designed to accomplish. . . . Consequently in an action for abuse of process it is unnecessary for the plaintiff to prove that the proceeding has terminated in his favor, or that the process was obtained without probable cause. ... It is often said that proof of ‘malice’ is required; but it seems well settled that, except on the issue of punitive damages, this does not mean spite or ill will, or anything other than improper purpose itself for which the process is used. . . . The essential elements of abuse of process . . . have been stated to be: First, an ulterior purpose, and second, a willful act in the use of the process not proper in the regular conduct of the proceeding.”

In Restatement of Law, Torts, p. 443, § 674 d., under the topic of “Wrongful Civil Proceedings,” there appears a statement which is pertinent here and in line with the authorities above mentioned.

Not only did appellants know the debt in question was not the debt of appellee hut the records show they also knew (by their own Exhibit No. 2) that seven regular payments had been made thereon since June 28,1963. These payments had reduced the debt from $121 to $72, the last payment being made just twenty days before the issuance of the garnishment.

It is our conclusion therefore that the judgment must he affirmed, and it is so ordered.

Affirmed.

Bland, J., not participating.


author: Osro Cobb, Justice.

text:
    Routen v. Van Duyse
    5-3896
    402 S. W. 2d 411
    Opinion delivered May 9, 1966

      Detector Tiller, for appellant.

      Terral, Rawlings, Matthews & Purtle, for appellee.
   Osro Cobb, Justice.

This is a controversy between adjacent rural landowners in Pulaski County. Appellee recovered judgment in the Circuit Court, a jury having been waived, for damages in the sum of $225 resulting from a fire which originated on appellant’s lands and. spread to the lands of appellee.

After the filing here of appellant’s abstract and brief, appellee filed motion for affirmance of the judgment of the trial court under the provisions of Ark. Supreme Court Eule 9(d), alleging insufficiency of appellant’s abstract. We quote the pertinent provisions of said Eule as follows:

“Abstract.—The appellant’s abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of only such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision. ...”

We have concluded that the motion to affirm the judgment of the lower court should be granted. Appellant’s abstract is inadequate to enable us to understand what legal and factual issues were raised in the pleadings ; what legal and factual issues were actually joined and at issue at time of trial; and what the trial court found in adjudicating the controversy. Furthermore, the abstract fails to make any reference to the testimony of two of the witnesses who testified. It follows that such an insufficient abstract is inadequate to enable us to reach the merits of the case. In such a situation we must affirm the judgment or decree of the trial court.

We have stated numerous times that we are not required to explore the one record (transcript) that is presented to us. This duty rests on appellant, and it is further his duty to furnish this court in the form of an abstract of the record such an abridgment of same as will enable us to understand the matters presented for decision. Tenbrook v. Daisy Manufacturing Co., 238 Ark. 532, 383 S. W. 2d 101 (1964); Allen v. Overturf, 236 Ark. 387, 366 S. W. 2d 189 (1963); Ellington v. Remmel, 226 Ark. 569, 293 S. W. 2d 452 (1956).

Affirmed.

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

Bland, J., not participating.


text:
    Gibson v. Gibson
    5-3904
    402 S. W. 2d 647
    Opinion delivered May 9, 1966
    [Rehearing denied June 6, 1966.]

      Arnold & Hamilton, for appellant.

      John F. Gibson, for appellee.
   Osro Cobb, Justice.

In Gibson v. Gibson, 234 Ark. 954, 356 S. W. 2d 728 (1962), we determined that appellant, then Mrs. Gibson, was entitled to a decree of absolute divorce, having established her charge of adultery against her spouse. This case is somewhat of a sequel in that appellant is now suing the present Mrs. Gibson, a co-respondent in the former divorce action, for damages by reason of alleged alienation of the affections of appellant’s former husband.

Appellee filed a motion to dismiss appellant’s complaint on the ground that the cause of action is barred under Art. Stat. Ann. § 37-201 (Eepl. 1962), a one-year statute of limitations. The trial court heard the motion and entered an order of dismissial of the complaint under said statute of limitations. No language appears in the motion for dismissal, or in the order of the court granting same, which indicates that any other statute of limitations was either considered or relied upon for said dismissal.

Appellant is here on appeal urging that said one-year statute of limitations is not applicable to the instant case and that the trial court erred in dismissing the complaint by invoking said statute. Appellant further contends that the proper statute of limitations applicable in this case is a five-year statute, Ark. Stat. Ann. § 37-213 (Eepl. 1962).

Appellee contends for affirmance that the one-year statute of limitations specifies its applicability to cases of criminal conversation (adulterous conduct) and that the words “criminal conversation” in the said statute include actions for alienation of affections so as to bring such actions within said statute.

The dispositive question on this appeal is which of the two statutes of limitations is applicable in this case. Said statutes of limitations are brief, and we set them forth in full.

“37-201. Actions which must be brought in one year—Tort actions.—The following actions shall be commenced within one [1] year after the cause of action shall accrue, and not after: first, all (special actions on the case), [actions] for criminal conversation, assault and battery and false imprisonment; second, all actions for words spoken slandering the character of another; third, all words spoken whereby special damages are sustained.”
“37-213. Actions not otherwise provided for—Five years.—All actions not included in the foregoing provisions shall be commenced within five [5] years after the cause of action shall have accrued.”

Counsel for the parties have not called our attention to any cases decided by us on this point and the issue, therefore, appears to be one of first impression. We have explored decisions of other jurisdictions along with publications of recognized legal authorities relating to this question.

We note at the outset of this discussion that this court has many times expressed its reluctance to apply a statute of limitations to actions not specifically enumerated therein. In Breining v. Lippincott, 125 Ark. 77, 187 S. W. 915 (1916), we had under review an action by a mother to recover damages which arose as a result of the seduction of her daughter, and it was there contended that the action was barred by the one-year statute of limitations as being included in the language “criminal conversation.” We quote from that opinion, wherein we rejected this contention:

“It follows that the one year statute, as it has been construed by this court, is applicable only to those actions that are specifically enumerated therein. # # #
“The statute is plain and the intent of the legislature must be gathered from the words used, and where the words used are unambiguous courts cannot add to or take from them their obvious meaning. The legislature used the specific term ‘criminal conversation,’ which had a well defined meaning.”

We observe here that the one-year statute, Ark. Stat. Ann. § 37-201 (Repl. 1962), does not enumerate or make any specific reference to causes of action for alienation of affection.

Appellee has referred us to only one case holding that an action for alienation of affections is included in a statute of limitations which specifically enumerated criminal conversation but not alienation of affections. Rheudasil v. Clower, 197 Tenn. 27, 270 S. W. 2d 345 (1954).

In an early Illinois case, Bassett v. Bassett, 20 Ill. App. 543 (1886), the court held that enticement and alienation of the spouse was not barred by the statute of limitations applicable to criminal conversation. The Illinois court said:

“Applying the familiar principle that the statute does not bar a cause of action unless it comes clearly within its provisions, we are of the opinion that the section relied upon is not broad enough to include the present case.”

In a New York case directly in point, Deming v. Leising, 214 App. Div. 398, 212 N.Y.S. 213 (1925), the court clearly distinguished between the two separate torts of alienation of affection and criminal conversation. A headnote taken from that decision states:

“'Complaint alleging that defendant ‘undertook to alienate the affection of plaintiff’s wife and to accomplish his purpose’ acquired improper influence of her, debauched and carnally knew her, enticed her away from plaintiff’s residence, and has since harbored her without plaintiff’s consent, thereby depriving plaintiff of the comfort, society, aid, and services of his wife, held to state cause of action for alienation of affection, and not one for criminal conversation to which the two years’ statute of limitations was (a) bar.”

"We quote from the Deming opinion:

“The gist of the wrong is the invasion of plaintiff’s right of consortium—the right to conjugal fellowship, whether of husband or wife, to his or her company, co-operation and aid in every conjugal relation. The means by which the evil result may be brought about are as varied and as wonderful as the way of a man with a maid. Adultery is but one of them.
“In criminal conversation, however, the fact of adultery is all-important .... In alienation, the allegation of adultery is incidental. So, in criminal conversation, is the allegation of alienation of affections. In each case the incidental may be and usually is pleaded by way of aggravation of damages. * * *
“Unless every vestige of the art of pleading has disappeared, this complaint states a cause of action for alienation of affections, and does not state one for criminal conversation.
“It follows that the defense pleaded is insufficient J >

In a situation which was converse from the case at bar, the Wisconsin court held that an action for criminal conversation was not barred by a statute of limitations which barred actions for alienation of affections after two years. Woodman v. Goodrich, 291 N. W. 768 (Wisc. 1940). This was an action by the wife against another woman to recover damages which the plaintiff sustained by defendant’s alienating the affections of plaintiff’s husband and inducing him to have carnal intercourse with the defendant. The court said that, since the elements of criminal conversation were present, the alienation of affections statute of limitations did not bar the action. Collateral authorities appear to sustain this position.

“It has been held that a limitation statute specifically applicable to actions for alienation of affections does not govern an action for criminal conversation.” Annot. 46 ALR 2d 1086 (1956); 27 Am. Jur., Husband & Wife, § 541 (Supp. 1965). •

Furthermore, in Breining v. Lippincott, supra, we defined criminal conversation as follows:

“Criminal conversation, as above stated, is an action for damages caused by adultery with the wife, and the husband’s injury by the wrong consists in mental suffering from the dishonor of the marriage bed, a/nd the loss of affection of his wife, and the comfort of her society, as well as the pecuniary loss of her services.” (Emphasis added.)

We have considered the question of alienation of affections on several occasions. In the case of Hodge v. Brooks, 153 Ark. 222, 240 S. W. 2d (1922), it is made clear that adultery between the unfaithful spouse and the defendant is not necessary to sustain an action for alienation of affections. The following is a quotation therefrom:

“Appellant Hodge was the plaintiff below, and sued to recover damages for the alleged alienation of the affections of his wife by appellee Brooks, defendant below. The testimony made a case which would have supported the verdict had it been in Hodge’s favor, although no attempt was made to show that any immoral relation ever existed between Brooks and Mrs. Hodge, nor was there any testimony that these two had ever been seen in a compromising position, the nearest approach thereto being that it was testified that on one occasion Brooks showed Mrs. Hodge how to drive an automobile and during the lesson had his arm resting on the seat back of Ms pupil. This occurred, however, in the day-time and on one of the principal streets of the town of Mineral Springs. # # #
“What we understand to be a correct statement of the rule in such cases is found at section 515 of the article on Husband and Wife in 13 R.C.L. p. 1466, where it is said: ‘As a general rule an intentional alienation or enticing away must be shown, and it may be laid down as a general rule, where there is no element of seduction or adultery, that a defendant in an action for alienation of affections is not liable unless he acted maliciously or from improper motives implying malice in law, whether he is a parent of or a stranger to the plaintiff’s spouse.’ ” (Emphasis added.)

We note that appellant’s complaint charges appellee with malicious and deliberate acts of enticement, etc.

In summary, we think our announced rule of construction of statutes of limitations restricting same to the causes of action enumerated therein is sound and we do not recede therefrom. Furthermore, we agree with the decisions herein cited from the New York, Illinois and Wisconsin courts, holding that “criminal conversation” does not include alienation of affections. We find no difficulty in harmonizing our views with those of these courts. We have accordingly concluded that the five-year statute of limitations is applicable to this case.

Having reached the conclusion that the five-year statute is applicable to actions for alienation of affections and that this position is sustained by well-reasoned authorities of other jursidictions, the action of the trial court is reversed and the cause is remanded for further proceedings not inconsistent herewith.

Reversed and remanded.


author: Guy Amsler, Justice.

text:
    Herr v. Murphree
    5-3879
    402 S. W. 2d 393
    Opinion delivered May 9, 1966

      Reed & Blackburn, for appellant.

      Murphy, Arnold & Turtle, for appellee.
   Guy Amsler, Justice.

This litigation involves the foreclosure of a vendor’s lien which was retained by appellee H. C. Murphree when he conveyed 80 acres of land to appellant H. A. Herr.

The background facts are brief. Appellee Murphree is a businessman and former county official who lives in Heber Springs. Appellant H. A. Herr is a practicing physician in Plainview, Yell County, Arkansas, whose appellant wife is his nurse, secretary, and bookkeeper. He had formerly practiced in Heber Springs and owns some 800 to 1,300 acres of land in Cleburne County, where Heber Springs is located. Some of this acreage is owned jointly with appellee Murphree. All the parties are of more than average intelligence.

Sometime prior to July 3, 1963, appellee Murphree telephoned appellant Dr. Herr at his office in Plainview and offered to sell him two 40-acre tracts of land in Cleburne County for $7,500, which offer appellant verbally accepted. Mrs. Herr listened in on this conversation on an extension telephone.

Appellee Murphree’s deed, dated July 3, 1963, was executed, notarized, recorded and mailed to appellant at Plainview, together with a promissory note, of even date; for $7,500 payable to appellee in one year. Appellant Herr executed and returned the note to appellee, on a date that is not clearly established. Dr. Herr then requested and received an abstract of title to land and then concluded that one of the two forties contained in the deed was not one that he had contemplated buying. Shortly thereafter he made two trips to Heber Springs to discuss the matter with appellee and express his dissatisfaction with the inclusion of the one 40. He allegedly told appellee that the transaction ‘Cvas off”, hut he took no steps to invalidate the previously executed note or deed.

On September 26, 1964, the note being nearly three months past due, appellee Murphree filed suit in the Cleburne Chancery Court alleging execution, consideration and non-payment of appellant’s note and praying foreclosure of the vendor’s lien retained in the warranty deed.

Appellants answered, alleging that the promissory note had been obtained by fraud in that the deed conveyed one different 40-acre tract than that agreed on between the parties, and offered, alternatively, to return the deed for cancellation or to pay for one of the forties and deed back the other forty. Appellants later amended their answer alleging that the signature of Mrs. Catherine Murphree, wife of H. C. Murphree, was forged on the deed to Dr. Herr. Appellee’s wife was then made a party to the suit and later executed a formal ratification of the deed.

At the conclusion of trial on June 15, 1965, the chancellor found that appellee was entitled to recover $7,500 with interest, attorneys’ fee (as the note provided) and costs. A commissioner was appointed to sell the property in accordance with the terms set out in the decree and this appeal followed.

For reversal appellants first urge that “the defense of fraud and false dealing was proved by an overwhelming preponderance of the evidence, and was clear, unequivocal, and decisive and the court erred in not rescinding the warranty deed.”

It is not entirely clear just what relief appellants seek—they claim on the one hand that the complaint (foreclosure) should be dismissed because of misrepresentation as to one forty but not as to the other—but, on the other hand they ask no rescission as to the other forty—no offer was made to reconvey the two forties to appellee Murphree until after foreclosure suit was filed and that offer appears not to have been timely made and no deed was tendered. 55 Am. Jur. Vendor and Purchaser § 604 (1946); 91 C.J.S. Vendor and Purchaser § 170 et seq. (1955).

The main contention to substantiate fraud is that Murphree represented one 40 to he “the old John Bittle place”, which was the property of Mrs. Herr’s grandfather. Dr. Herr claims it had a sentimental value, but there is no suggestion that the two forties deeded by appellee were of less value than $7,500.

If the appellants’ answer is treated as a prayer for cancelling or rescinding the written note and deed, then the proof must be clear, cogent, and convincing. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517; Henderson v. Henderson, 204 Ark. 956, 165 S. W. 2d 897; Jones, Arkansas Titles, § 92. It is our conclusion that appellants did not meet the burden that rests on them to make such proof.

Appellants’ second point urged for reversal is that the warranty deed was a forged instrument and the court erred in not holding it to be void.

There is no question that appellee Murphree executed the deed in question or that he owned and intended to convey the lands described in the deed. Appellee wife, Catherine Murphree, testified that she knew of the transaction, approved it and she executed a formal ratification of the deed to Dr. Herr, although she did not remember whether she had personally signed the deed, on the date it shows to have been executed. She testified that she had been nearly blind for eight years and that she usually asked her husband to sign for her. If the deed were signed by another, it was with her consent, and obviously with no intent to defraud appellants. The necessary ingredients of forgery lacking, the trial court properly refused to declare the deed void on the grounds of forgery. Forrest City Gro. Co. v. Catlin, 193 Ark. 148, 97 S. W. 2d 910.

Finally appellants claim that “the chancellor erred in not applying the law applicable to the instant case and refused to consider any defense set up by appellants”. This objection appears to be based on the chancellor’s findings which follow:

“The time for the defendant to object to the land he got and the time for the defendant to seek counsel was before he sent that note back. His sending the note back, no matter what he got—he had the deed there to see what he got, he signed the note, he sent it back—by doing that he completed the deal and cannot now come along to set up that as a defense.”

The chancellor in effect appears to have found that since Dr. Herr knew what land was described in the deed before he signed and returned the note there was no fraud or overreaching practiced on appellants and we agree with that conclusion. It is well settled that the trial court’s reasoning is immaterial if it reached the proper conclusion. Pharris v. Vanderpool, 230 Ark. 233, 321 S. W. 2d 757; Dicken v. Simpson, 117 Ark. 304, 174 S. W. 1154.

Affirmed.

Bland, J., not participating.


author: Carleton Harris, Chief Justice.

text:
    Brown v. Devine
    5-3868
    402 S. W. 2d 669
    Opinion delivered May 16, 1966

      Drew & Holloway, for appellant.
    No brief filed for Appellee.
   Carleton Harris, Chief Justice.

Belford Brown, appellant herein, is the owner and operator of Brown Aero Service, a commercial flying service providing the distribution of agricultural insecticides, chemicals, seed, and fertilizers by airplane. David W. Devine, appellee herein, a commercial pilot, was employed by Brown to operate one of appellant’s aircraft in furtherance of providing this service, commencing employment in May, 1964. On July 24, 1964, Devine entered into a written contract with Brown, which provided that appellee would not,

“for a term of five (5) years, after the termination of his employment by Belford Brown, engage in, directly or indirectly, the distribution of any fertilizers, seeds, insecticides, or chemicals, within a radius of fifty (50) miles of Eudora, Arkansas, and that he will not within five (5) years after the termination of employment by Belford Brown, render such services for wages or otherwise for any other flying service, directly or indirectly, either as employer or employee, within a fifty (50) mile radius of Eudora, Arkansas.”

In January, 1965, Devine terminated his employment with Brown, along with C. W. Stephens, Jr., likewise a pilot flying for appellant, and the two entered into agricultural spraying service in Chicot .County under the name of McAlpine Brothers Farm Air Service. The new business concern acquired a number of Brown’s customers, and appellant instituted suit to enjoin Devine and Stephens from rendering services within 50 miles of Eudora, Arkansas, and also sought damages. On trial, the Chancellor found that the contract was reasonable as to area, but the 5-year restriction was unreasonable, and the complaint for injunction was dismissed. From the decree so entered, appellant brings this appeal.

Mr. Brown testified that it takes considerable training in order to properly plant rice by airplane; that the pilot is required to know how much seed to carry in the airplane, the length of the fields, and “how wide a swath he is going to take ’ ’ in order to plant the allotted amount of seed per acre. Brown testified that he gave Devine this training. Appellant also stated that special training is needed to apply fertilizers and that he trained Devine to do this type of work. According to the testimony of the witness, all pilots have access to his confidential records, which relate to special equipment used and the manner in which this equipment is to be used. Brown stated that a pilot has the name of every customer, the acreage of the customer, and maps of the farm layout. He testified that a 50-mile radius is used because that covered the area that he worked. As to the reason for the 5-year restriction, Brown said:

“* * * If this pilot leaves you and goes to one of your customers and gets that customer from you, it usually takes you a period of four to five years to ever get this customer back. # * *

“ * * * A man that is in business has equipment that is, say, two years old,—use this for example—all right, you train these pilots to take a job, you show them what to do and they go into competition with you usually with new equipment. All right, that is a selling point to the farmer. This equipment that you buy will take you five years to pay for it, at the least. Now, these men move in here with new equipment and they tell the farmer, ‘Well, we have got the latest, Brown is two years behind time.’

He also stated that his pilots know where all of the farm acreage is located,

“how it lays, how it works, the way the farmer has it set up. And, it takes about a five year period for this land to move around where the acreage is in different places. In other words, crop rotation in maybe a new-ground that has been cleared up, it takes a period of that long for it to change up to where you might say would give both parties an even break at it again. ’ ’

The testimony that rice planting from the air requires specialized training was disputed by witnesses offered by appellee. C. C. Gibson, a farmer of Jerome, who owned an airplane, testified that his rice crop was planted by a pilot who had no experience in sowing rice, but that the planting was entirely satisfactory. The witness testified that he knew of no trade secrets in the business. Gibson said that he had used Devine along with Brown and several others, and that he had not been solicited by appellee. “I needed the work done and. needed it done then and so I went and got him.” Ernest Ellington, Jr., also a farmer of Jerome, testified that he-knew of no secrets in agricultural flying; further, that he had used both Devine and Brown during the year,, and that Devine did not solicit his business.

Appellee testified that he had operated as a commercial pilot since February, 1963, and had worked in. Oklahoma before coming to Arkansas. He stated that he-had previously applied cotton insecticides and fertilizers,, and that seeding rice was similar to fertilizer application. According to his testimony, Brown only gave him “advice,” and he only recalled one occasion on which, appellant had flown with him.

Further discussion of the facts is not necessary,, since we agree with the Chancellor that the 5-year period of restriction set forth in the contract of employment is too broad, i.e., the restraint is for an unreasonable length of time, and is therefore void and unenforceable. It might be stated that the agricultural flying service is a proper field for this type of contract, and, in fact, we are convinced by the record that there is some merit in Brown’s complaint, and that he has possibly suffered some damage, because of the acts of appellee. It may well be that a contract along this line, but limited to 2 years instead of 5, would be held reasonable, and thus enforceable. But we think, and have consistently held, that a 5-year restraint provision in contracts of employment is unreasonable. See Marshall v. Irby, 203 Ark. 795, 158 S. W. 2d 693; American Excelsior Laundry Company v. Derrisseaux, 204 Ark. 843, 165 S. W. 2d 598 ; Little Rock Towel and Linen Supply Company v. Inde pendent Linen Service Company of Arkansas, 237 Ark. 877, 377 S. W. 2d 34; and McLeod v. Meyer, 237 Ark. 173, 372 S. W. 2d 220. In the last case, we were requested, if we felt that the 5-year restriction was too long, to extend the protection for a lesser period of time. We declined, pointing out that courts have no authority to vary the terms of a written agreement, for to do so would simply be to make a new contract between the parties. We have repeatedly held that this will not be done. Refrigeration Discount Corp. v. Haskew, 194 Ark. 549, 108 S. W. 2d 908; Roth v. Prewitt, 225 Ark. 466, 283 S. W. 2d 155.

The Chancellor was correct in dismissing the complaint for an injunction.

Affirmed.

      Some time after suit was commenced, Stephens was killed in an airplane crash, and the action was dismissed as to him.

      The court found, inter alia, that Devine had not been actively engaged in soliciting Brown’s customers, and that there are “no trade secrets or secret formula associated with the agricultural aerial service or the business of Brown.”

      Appellee tendered testimony that he signed the agreement because he had already been working for Mr. Brown for two months, had turned down all other possible jobs, and his wife and, children were on the way to make their home in Chicot County. The testimony was held inadmissible by the court.


text:
    Harberson v. Wolfe, Judge
    5-3892
    402 S. W. 2d 643
    Opinion delivered May 16, 1966
    [Rehearing denied June 6, 1966.]

      Donald Poe., for petitioners and appellants.

      Warner, Warner, Rag on & Smith, for respondent and appellees.


author: ■Carleton Harris, Chief Justice.

text:
    Harberson v. Yoes
    5-3893
    Opinion delivered May 16, 1966

      Donald Poe, for petitioners and appellants.

      Warner, Warner, Rag on & Smith, for respondent and appellees.
   ■Carleton Harris, Chief Justice.

This litigation involves the construction of Ark. Stat. Ann. § 27-301 (Bepl. 1962). The facts are as follows:

Bernice Harberson, a resident of Scott County, Arkansas, while driving an automobile' owned by her husband, Lloyd Harberson, was involved in a collision with a truck operated by Ellis G-. Yoes, the collision occurring in Scott County. Accompanying Yoes at the time of the collision was Charles Mankin. According to a complaint subsequently filed by the Harbersons, Mankin was on a joint venture with Yoes, and the truck bore signs of Yoes’ Printing and Lithographing Company. The collision occurred on March 19, 1965.

On Thursday afternoon, March 25, 1965, Ellis Yoes,. Charles Mankin, residents of Sebastian County, and the Franklin Printing Company, a corporation d/b/a Yoes Printing and Lithographing Company in Fort Smith (hereinafter called “Respondents”), instituted their complaint in the Sebastian Circuit Court against Bernice and Lloyd Harberson (Fort Smith District). Summons-' and complaint were forwarded by mail to Clyde Hawkins, Sheriff of Scott County at Waldron, on the same day, along with a note, directing him to serve same on the Harbersons. Sheriff Hawkins received the summons and complaint when he went to his post office box in Waldron at 5:00 P.M., Saturday, March 27. The Harbersons were served later that day.

Mr. and Mrs. Harberson instituted suit against Yoes, Mankin and the printing company at 10:00 A.M. on Saturday, March 27, 1965, in the Circuit Court of Scott County, Arkansas. Summons and complaint were hand delivered by the Harbersons’ attorney to the •sheriff’s office in Port Smith at 12:45 P.M., and receipt was noted. Service on these defendants was obtained later on the same day. The Harbersons (hereinafter «called “Petitioners”) filed a motion in the Sebastian (County Circuit Court to quash service and dismiss respondents’ cause of action, alleging that no valid service had been obtained, and that the Sebastian County Circuit Court did not have jurisdiction; respondents filed a like motion in the Scott County Circuit Court. Consolidated hearings were subsequently held, and on December 13, 1965, orders were entered overruling the motion to quash and dismiss in the Sebastian County action, while similar motions by the respondents in the Scott County action were sustained. Petitioners seek a Writ of Prohibition to prevent the Sebastian Circuit Court from proceeding further in that county, and have .appealed from the order issued by the Scott Circuit Court, sustaining the motion of the respondents.

The question before this court is whether the Sebas"tain County Circuit Court, or the Scott County Circuit ■Court, has jurisdiction over the subject matter asserted in the respective complaints of the petitioners and the respondents. Ark. Stat. Ann. § 27-301 (Repl. 1962), reads as follows:

“A civil action is commenced by filing in the office -of the clerk of the proper court a complaint and causing a summons to be issued thereon, and placed in the hands of the sheriff of the proper county or counties. If two (2) or more actions are commenced in different courts involving the same subject matter, where the venue is proper in each, then that court shall acquire jurisdiction, to the exclusion of the other, wherein a complaint was filed and a summons issued thereon, and first placed in the hands of the sheriff of the proper county or counties, irrespective of the time of service of summons. Each clerk of court shall indorse on each complaint the exact date and time of day when the complaint was filed and a summons issued thereon and each sheriff shall indorse on each summons the exact date and time of day when the summons was placed in his hands. ’ ’

As stated, the proof reflects that petitioners filed their complaint in the Scott County Circuit Court on Saturday, March 27, 1965, and counsel went to Fort Smith and personally delivered the summons and copy of complaint to the sheriff’s office there at 12:45 P.M. Likewise, the proof reflects that respondents filed their complaint in the Sebastian County Circuit Court on March 25, and forwarded the summons and copy of complaint to the Scott County Sheriff on that date, by depositing same in the United States mail prior to 4:00 P.M. with adequate postage. Mail was picked up from the courthouse box in Fort Smith at 4:13 P.M., and again at 5:06 P.M., and arrived at the Fort Smith post office not later than 5:32 P.M. on March 25. All mail was worked before midnight, March 25. Cene Dunldn, Assistant Superintendent at this post office,' testified that the mail chute in the courthouse has an air lock, and no one has access to it but the Post Office Department . . . There had been no complaints of letters being blocked in the chute . . . mail was picked up on March 25; all pickups were on schedule and arrived at the post office on schedule . . . mail would leave Fort Smith at 8:30 P.M. and arrive at Waldron at 6:50 A.M. on March 26 . . . mail would also leave Fort Smith at 6 -.30 A.M. on March 26 and arrive at Waldron at 8:30 A.M. on March 26 . . . both mail runs departed on schedule ... no complaints were received and there was no notice of any missent letter. Mr. Dunkin testified that the post office keeps no records of specific mail except registered mail.

Wendell Henderson, Postmaster at Waldron, verified the arrival times of mail from Port Smith. He testified that Sheriff Hawkins has a post office box, and comes in and picks up his mail. The postmaster stated that all mail from Port Smith is put up in the boxes by 9:00 A.M., and there had been no difficulty in receiving Port Smith mail prior to, or after, March, 1965. He said that no Port Smith mail is placed in the post office boxes after 12:00 noon on Saturday, and that any out-of-town mail found in the box on Saturday afternoon, would necessarily have been placed there by noon on that date.

Sheriff Clyde Hawkins testified that he maintains a post office box at the Waldron post office, and that he picks up his mail from this box. The sheriff stated that normally he did not pick up his mail every day ... he might go two or three days without picking up the mail if he is out of town ... a short time before, he had been away for a week, and his mail was not touched ... he did not remember whether he picked up mail on Friday, March 26 ... on Saturday, March 27, prior to getting his mail, lie had been in Sallisaw, Oklahoma ... he obtained the mail from his box on March 27, around 5:00 P.M., and the summons and complaint, here under discussion, were picked up at that time . . . he forthwith served same on petitioners.

Respondents rely upon our holding in King, Admr. v. Bean, Judge, 239 Ark. 653, 391 S. W. 2d 24. The facts there reflected that Clayton King and Suzanne Seago, residents of Pulaski County, collided with an automobile occupied by residents of Conway County. The collision took place in Pulaski County, and King was killed. Suit was filed in Pulaski County by the King administrator and Suzanne Seago, and summonses were issued and directed to the sheriff of Conway County. These were sent by registered mail. An attempt was made by postal employees to deliver the registered mail containing the summonses to the sheriff of Conway County on October 17, but that officer was not in his office, and the postman would not leave the registered mail without the sheriff personally signing for it; however, written notice was left at the sheriff’s office, advising that the registered mail was at the post office. "Written notice was again left a few days later. Eleven days after the first attempt to deliver the registered mail, the sheriff obtained it, and served the summonses the next day. In the meantime, the residents of Conway County involved in the wreck, on October 19, had instituted suit against the Pulaski County residents in Conway County, and summonses were placed in the hands of the sheriff of Pulaski County, and served on October 20. We were thus presented with the question of whether there was a delivery of the summonses issued out of the Pulaski Circuit Court to the sheriff of Conway County within the meaning of the statute when the postal employee attempted to deliver the registered mail on October 17 (this being two days before the actions were filed in Conway County). This court, after discussing the reasons of the 1961 G-eneral Assembly for amending the statute, held that it is not necessary that a summons be literally placed in the hands of the sheriff in a situation of this nature; rather, we stated:

“We hold that the summonses were placed in the hands of the sheriff, within the meaning of the statute, when the postal employee took the registered mail containing the summonses to the sheriff’s office and attempted to deliver it, and upon being unable to do so, left a written notice that the registered mail was at the Post Office. It necessarily follows that petitioners’ action was commenced in Pulaski County before their adversaries’ action was commenced in Conway County.”

It will be quickly noted that there is a distinct difference between the King case and the one at Bar. In the King case, we have positive proof of when the summons was delivered to the sheriff. In the instant case, the positive proof is lacking. “While the evidence tends to show that the respondents ’ letter was in the Scott County sheriff’s post office box on Friday, March 27, and if not then, certainly on Saturday morning, March 28, there still is no positive- proof that this is true. No witness could testify that this particular letter was placed in the box; no postal employee remembered this particular letter at all; no one could say of his personal knowledge that this particular letter was not placed in the Hawkins box at some time on Saturday afternoon. The testimony by the Scott County postmaster related only to the general practice of handling mail, and the general rules that were ordinarily observed. However, aside from that feature of the case, we think it impractical (even if the exact time that ordinary mail is placed in a sheriff’s box eould be determined) for us to hold that a summons is placed in the hands of a sheriff, within the meaning of the statute, the minute that a letter, containing a summons and complaint, is placed in the box. It would certainly appear that the sheriff should be given a reasonable time within which to pick up his mail. It cannot be contemplated that he would stand waiting at the box and get it as soon as it was placed therein. To use a hypothetical case, let us suppose that a plaintiff from “A” County files suit against a defendant in “B” County, obtains summons, mails it, and the summons is placed in the “B” County sheriff’s box at 9:00 A.M. Suppose the party in “B” County institutes suit on the same day, obtains summons, and literally places it in the hands of the sheriff of “A” County at 9:10 A.M. As a matter of fairness, could it really be said that the party in “A” County placed the summons in the hands of the sheriff first! Of course, this situation could not arise for the reason that has already been mentioned, i.e., there is no way to determine the exact hour and minute that ordinary mail is placed in a post office box.

It may well be true that in the present case, the summons and copy of complaint filed by appellee, were placed in the box on Friday, March 2G, but no one testified, or could testify, that this was absolutely true. Mr. Henderson, when asked if he was saying that “Mr. Clyde Hawkins did receive a letter from the Circuit Clerk’s office of Sebastian County on the 26th day of March, 1965,” replied, “I am saying that I couldn’t tell if he received one or not.” When asked if he could say if Hawkins received one on the 27th day or March, Henderson likewise replied, “Again, I could not say.”

The law favors certainty, and it would only be in a rare or unusual case, that proof could be offered of the exact time ordinary mail was placed in a post office box. It, of course, is also true that such a holding would absolutely conflict with the requirement of the statute, which provides that that court shall acquire jurisdiction “wherein a complaint was filed and a summons issued thereon, and first placed in the hands of the sheriff. * * * ” In King, the registered mail was taken to the sheriff’s office, and because of his absence, a notice was left. As stated in King,

“ * * * There is no surer way a litigant could get a summons to the sheriff and be able to prove the time of delivery than to send it by registered mail. Here, the petitioner did that very thing.”

We decline to enlarge or extend further the holding in King.

It follows that the court erred in entering its order (judgment) quashing the summons and dismissing the complaint in the Scott County case, and the judgment is reversed with directions to reinstate the complaint filed by petitioners.

It follows that the court also erred in entering its order in the Sebastian County case refusing- to quash the summons and dismiss the complaint filed by respondents. This should have been done, for the court is without jurisdiction of the subject matter in Sebastian County.

Writ granted.


author: Ed. F. McFaddin, Justice.

text:
    Ward v. Lamb
    5-3882
    402 S. W. 2d 675
    Opinion delivered May 16, 1966

      Mitchell D. Moore, for appellant.

      Maddox & Van Ausdall, for appellee.
   Ed. F. McFaddin, Justice.

This litigation arises because of a traffic mishap which occurred in Memphis, Tennessee, in October 1963. The vehicle in which appellee, P. H. Lamb, was seated had stopped at a traffic light when a truck owned by the appellant, Buchanan Chevrolet Company, and driven by its employee and co-appellant, James Ward, struck the rear of the Lamb vehicle, resulting in alleged injuries to Mr. Lamb. For such injuries he filed this action, which resulted in a verdict and judgment in his favor, and from such judgment the appellants prosecute this appeal, presenting, under various points, the matters now to be discussed.

I.

Negligence. Appellants claim that they were free of any negligence because their witnesses testified that the foot brake on the truck which Ward was driving suddenly failed, due to a leak in the fluid line, and that such failure was unexpected and unavoidable. The jury gave no weight to this defense, and the evidence supports the verdict. Without objection, the Court instructed the jury:

“You are instructed that there is a statute in Tennessee requiring every motor vehicle operated upon a highway to be equipped with brakes adequate to control the movement of and to stop and hold 'such vehicle, including two (2) separate means of applying the brakes, each of which means shall be effective to apply the brakes to at least two (2) wheels. You are further instructed that violation of a statute is negligence per se.”

Ward, the driver of the truck, admitted that when the foot brake failed he made no effort to apply the emergency brake, claiming that he did not have time to do so. One of the allegations of negligence was that Ward was following too close to the vehicle in front of him, and the jury could well have found this allegation to be true when the driver admitted that there was no time to apply the emergency brake after the foot brake failed. Furthermore, it was shown that the truck which Ward was driving was more than ten years old and no thorough checking of the brake system was shown. On this matter of the sudden failure of the brakes, we call attention to onr cases of Brand v. Rorke, 225 Ark. 309, 280 S. W. 2d 906; Pitts v. Greene, 238 Ark. 438, 382 S. W. 2d 904; and Houston v. Adams, 239 Ark. 346, 389 S. W. 2d 872.

II.

Cross Examination Of Dr. Forestiere. Mr. Lamb claimed that in the collision he sustained a whiplash injury which caused him great suffering and permanent injury. To sustain his claim he called Dr. A. J. Forestiere, a regular practicing physician in Poinsett County, who testified that he examined and treated Mr. Lamb on October 31, 1963 (the date of the injury) and had subsequently examined and treated Mr. Lamb up until the time of the trial. Dr. Forestiere testified:

“Well, he came in complaining with an injury to his .neck and head. Complaining of his back hurting. On examination, the diagnoses I listed at that time, were, whiplash type injury involving posterior neck muscles and posterior cervical ligaments and hematoma formation involving the occipital area of the skull. Putting it in layman’s terms, that is a blood clot at the back of the head and a sprain of the lumbar area of the spine, right side, lower back. X-rays were made at that time. It was ascertained there were no fractures or dislocations. However, he did show on the neck x-rays a diminution of the joint spaces between the lower cervical vertebra and hypertrophy area changes in the vertebra, lumbar spine level, small changes ....
“A. ... ‘Whiplash’ is a layman description, itself. It is a snapping. Better term would be acute flexion-extension of the neck due to a force from behind.
“Q. Damage usually occurs, results, to what part of the body?
“A. Usually the neck. Can involve other parts of the spine. Usually, -whiplash is referred mostly to the neck.
“Q. When yon say ‘cervical spine’ . .
“A. Cervical spine includes the neck from the base of the skull to the dorsal vertebra at the top of the shoulders.
‘ ‘ Q. When you examined Mr. Lamb that time, did the injury in the cervical spine appear?
“A. No. Not until—he did sustain a mild sprain to the lumbar area of the back.
“Q. Where is the lumbar area?
“A. In the area between the lower part of the ribs and the hip, in layman terms.
“Q. Dr. Forestiere, I believe, you said he was suffering, complaining of pain over his right kidney?
“A. That would include part of the lumbar area, little above it, maybe.
“Q. Dr. Forestiere, as a result of that examination, did you prescribe medicine or treatment for Mr. Lamb?
“A. He was started on analgesics or pain tablets and muscle relaxant tablets and physical therapy in the form of diathermy treatments to the back and neck.
“Q. Subsequent to the examination on October 31st, I think you treated him on 16 different occasions ?
“A. That is right. ”

Then on cross examination appellants’ attorney asked Dr. Forestiere:

“Q. Do you know Dr. Nicholas Gotten, then, professionally?
“A. Yes, sir.
“Q. Would you recognize Mm as an authority on the so-called whiplash?
“A. I would recognize him as an authority on neurosurgical disease.
“Q. That is a particular—
“A. That may or may not fall under it.
“Q. Where does it fall under it?
“A. Where it would fall under it is problematic. For instance, if there is a disk injury involved, it would be a neurosurgeon’s job.
“Q. Would you say Nicholas Gotten is qualified to make a diagnosis of a whiplash injury?
“A. I am sure he would be.
“Q. Are you not familiar with the writings of Dr. Gotten?
“A. I don’t believe I have had occasion to read all of his writings, or any of them, to my knowledge.
“Q. Would you recognize his writings as any measure of authority?
“A. Yes, sir.”-

Thereupon, appellants’ attorneys sought to ask Dr. Forestiere a question about what was contained in a pamphlet written by Dr. Nicholas Gotten of Memphis, Tennessee, involving whiplash injuries. It was a survey of 100 cases, made subsequent to the settlement of litigation involving whiplash injuries:

“MR. MOORE: I want to ask Dr. Forestiere, ‘We were forced by ... ,’ on page three (3) of Defendant’s Exhibit ‘A’ the last paragraph on that page. Quote, Dr. Nicholas Gotten, ‘We were forced by the survey to draw definite conclusions as respects psychosomatic symptoms which developed in a considerable number of these patients. The medical examiner in his interviews with the patients came to the conclusion in some instances the injury was being used by the patient as a convenient lever for possible gain, so to speak, though not necessarily on the conscious level.’ ”

The Court refused to allow the last copied question to be asked Dr. Forestiere; and the correctness of such ruling is the point now before us. Assuming, without deciding, that the point is properly presented here, we nevertheless conclude that the Court was correct in its ruling. A physician may be cross examined concerning a recognized medical text with which he is familiar. (Scullin v. Vining, 127 Ark. 124, 191 S. W. 924.) But Dr. Forestiere stated that he did not know of, and had never read, the Gotten writing, about which the appellants ’ attorney sought to cross examine him. Thus, the rule stated in the cited case has no application to the case at bar. The article by Dr. Gotten is in the record before us and is a report of what Dr. Gotten, and others, concluded from examination of 100 persons claimed to have sustained whiplash injuries. The appellee Lamb was not one of those persons so examined; so, in effect, to allow Dr. Gotten’s article would be to proceed from a few specific cases to the particular case before the jury.

By the cross examination the appellants were cleverly attempting to put before the jury Dr. Gotten’s views, without having him present to testify as a witness. If the appellants had thought Dr. Gotten’s testimony worthwhile, they could have had him examine Mr. Lamb, and then Dr. Gotten could have testified. The Court was correct in its ruling refusing the question on cross examination. On this matter of seeking to introduce written articles as evidence instead of having the author of such article present to testify, attention is called to our recent case of Davis v. Ark. Best Freight, 239 Ark. 632, 393 S. W. 2d 237, which, has some slight bearing on the point here.

III.

Excessiveness Of The Verdict. The jury awarded Mr. Lamb $16,391.00 as damages, and the appellants claim that this amount is grossly excessive. Without objection, the Trial Court instructed the jury as to the elements of damages to be considered. The facts in the case at bar bear a striking resemblance to those in the case of Breitenberg v. Parker, 237 Ark. 261, 372 S. W. 2d 828. In the cited case, Mr. Parker was a man 63 years of age and had always been well and active until he received a whiplash injury. The jury awarded him a verdict for $20,000.00, and we held that the verdict was not so grossly excessive as to shock the conscience of the Court. In the case at bar, Mr. Lamb was a man 62 years of age at the time of’ receiving his injury, and he sustained a whiplash injury under circumstances entirely similar to those in the adjudicated case. In the case at bar, Mr. Lamb was awarded $16,391.00 as damages. The rule as to the province of this Court in regard to reducing a verdict is well stated in Ark. Amusement Corp. v. Ward, 204 Ark. 130, 161 S. W. 2d 178:

“A verdict will be set aside by an appellate court as excessive where there is no evidence on which the amount allowed could properly have been awarded; where the verdict must of necessity be for a smaller sum than that awarded; where the testimony most favorable to the successful party will not sustain the inference of fact on which the damages are estimated; where the amount awarded is so excessive as to lead to the conclusion that the verdict was the result of passion, prejudice ... or of some error or mistake of principle, or to warrant conclusion that the jury were not governed by the evidence

In Breitenberg v. Parker, supra, we said:

“Every case involving the issue of excessiveness must be examined on its own facts; and before this Court can constitutionally reduce a verdict we must give the evidence in favor of the verdict its highest probative force and then determine whether there is any substantial evidence to sustain the verdict.”

In the case at bar, the evidence shows that when appellants’ truck hit the vehicle in which Mr. Lamb was riding his head was thrown against the back of the car with such force as to give him a terrible blow on the head, and this, in addition to the whiplash injuries. Dr. Forestiere detailed the extensive treatment and medication prescribed for Mr. Lamb, from the examination on the date of the injury up to the date of the trial, and stated that Mr. Lamb had suffered permanent injuries. It is furthermore shown that Mr. Lamb, being a man 62 years of age, had some arthritic condition in his neck prior to the injury ; but he was entirely ignorant of such condition and it had never given him any trouble; and as a result of this whiplash injury, this arthritic condition has been aggravated and he is now suffering and -will probably continue to suffer for a long time to come. We cannot say that this verdict is so grossly excessive as to shock the conscience of the Court.

As a part of this matter of the excessiveness of the verdict, the appellants claim that the Court committed error in allowing Mr. Lamb to testify that, but for this injury, he would have accepted a position that would have brought him far greater remuneration. We find no error committed by the Court in allowing Mr. Lamb to answer such question. What we said in Rudolph v. Mundy, 226 Ark. 95, 288 S. W. 2d 602, is an answer to the appellants’ contention.

Finding no error, the judgment is affirmed.

      The fact that the mishap occurred in Tennessee is important to note at the outset because of one of the instructions later copied.

      Without objection, the Court applied the Tennessee law in this case, as above stated. Of course, the Arkansas rule is that failure to comply with the statute is merely “evidence of negligence.” Mays v. Ritchie Grocer Co., 177 Ark. 35, 5 S. W. 2d 728; Browder v. St. L. S. W. Ry. Co., 221 Ark. 773, 256 S. W. 2d 333.

      The said instruction read:
      “You are instructed that if by your findings herein the plaintiff, D. H. Lamb, is entitled to recover, you should assess as his damages such a sum of money as you find, from a preponderance of the evidence, will reasonably compensate him for his injuries, and in this connection you may take into consideration the following:
      (A) For his pain and suffering in the past and for such pain and suffering as you find from a preponderance of the evidence he will reasonably be expected to endure in the future.
      (B) For any permanent or partial disabilities he may have had or will have in the future by reason of the injuries directly attributable to the collision.
      (C) For the reasonable cost of hospitalization, drugs and medical treatment, and any other expenses reasonably incurred to date.
      (D) Any loss of earning which plaintiff has sustained or will sustain in the future by reason of said injury and in this connection you are told that if he was unable to accept a job at a higher rate of pay than his present job, because of his physical injuries sustained in this accident, then you should take this into consideration.”

      The language referred to is as follows:
      “In connection with the contention that the jury’s verdict was excessive, appellant says that certain testimony regarding Mrs. Cassidy’s earning capacity was improperly introduced. We do not think the record supports appellant’s contention in this matter. After Mrs. Cassidy had testified that she had a top rating with the Soil Conservation Service as senior secretary, she was asked if she had recently had an offer from that agency. Appellant objected to this question on the ground that it was self serving. Mrs. Cassidy then stated she had a letter from her immediate boss offering her a job. Appellant objected on the ground that the letter was the best evidence. Following this the letter was offered in evidence and marked Exhibit 6, though it does not appear in the record. This was not a self serving- declaration on the part of Mrs. Cassidy and her testimony was properly introduced.”


author: G-eorgb Rose Smith, Justice.

text:
    Palmer v. Sanders
    5-3884
    402 S. W. 2d 680
    Opinion delivered May 16, 1966

      J. B. Milham and Gladys M. Wied, for appellant.
    No brief filed for appellee.
   G-eorgb Rose Smith, Justice.

Upon the death of A. B. Smith in 1930 the tract of land now in dispute was inherited by his eight children. In 1962 one of the children, the appellee Annie Sanders, brought this suit for a partition of the land, asserting record title to a two-eighths interest. The defendants are another of Smith’s daughters, Celestia Palmer, who has a five-eighths interest, and the heirs of a third daughter, Kate Schlachlin, who owned the other one-eighth interest at her death in 1954. Upon the filing of the complaint a warning order was published against the Schlachlin heirs, but they did not appear in the case.

Mrs. Palmer filed a cross complaint asserting title by adverse possession to the entire tract. Upon trial the chancellor rejected the claim of title by adverse possession and ordered that the land be partitioned among the owners. In this court Mrs. Palmer renews her insistence that she has acquired title to the whole tract.

We agree with the chancellor’s conclusion that title by adverse possession was not established by the testimony. Mrs. Palmer occupied the land and paid the taxes during the years between her father’s death in 1930 and the filing of this suit in 1962. It is firmly settled, however, that mere possession and payment of taxes are not evidence of adverse possession as between tenants in common. A cotenant who relies upon adverse possession must go a step farther by proving that he asserted a hostile claim and that notice thereof was brought home to his co-owners. Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809 (1952). There is no such proof in this case. Quite the opposite, the fact that Mrs. Palmer obtained conveyances from four of her brothers and sisters shows that she recognized their ownership.

Mrs. Palmer testified that she sold timber from the land in 1959 and that she made extensive repairs to the house about three years before the case was tried. Even if such acts should be treated as the assertion of a hostile claim they are ineffective in this instance, for they occurred less than seven years before suit was brought. Smith v. Kappler, supra.

The appellant also argues that in any event she was entitled to a default judgment against the Schlachlin heirs. It was incumbent upon Mrs. Palmer, in asserting a new cause of action against her codefendants, to bring them into court by service of process. Ark. Stat. Ann. §§ 27-1134 and -1135 (Repl. 1962); Pillow v. Sentelle, 49 Ark. 430, 5 S. W. 783 (1887). There is no indication that any process was issued upon the cross complaint; so the Schlachlin heirs were not in default in failing to respond to that pleading.

The appellant’s remaining argument, that the deed by which Mrs. Sanders acquired the interest of one of her brothers was void on account of a defective acknowledgment, is not of sufficient merit to warrant discussion.

Affirmed.


text:
    Treat v. Safe Buy Real Estate Agency
    5-3897
    402 S. W. 2d 682
    Opinion delivered May 16, 1966

      Len Jones, James E. Evans, for appellant.

      N. J. Henley, for appellee.
   Paul Ward, Justice.

This litigation concerns the collection of a fee by a real estate agency for finding a buyer ready, able and willing to purchase real estate.

The appellee herein, the Safe Buy Beal Estate Agency, has its main office in Little Bock with general agents in the town of Marshall. It will he referred to as “Agency.” T. J. and Geneva Horton are the general agents and they will be referred to as such. Appellants herein are Lonnie Treat and his wife Frankie Treat.

Appellants were the owners of eighty acres of land which they had purchased from Ethel Treat. They owed $2,800 (part of the purchase price) to Ethel who held a mortgage on the land to secure payment of said sum.

On April 17, 1965 appellants signed an “Open Listing Agreement” (on the agency’s printed form) employing the general agents “to procure a purchaser, ready, willing and able to buy” the lands in question for the price of $5,800 including a down payment of $2,400, balance to be paid on “good terms.” The instrument contained this sentence:

“I agree to pay you forthwith as commission 10% of the selling price, when a purchaser is procured through you, or your representative, at the stated price and terms, or at any other price and terms acceptable to me.”

On August 2, 1965 appellee filed a suit in circuit court alleging, in substance and essence, as follows: (a) That appellants signed the Open Listing Agreement mentioned above; (b) that subsequently appellants and appellee agreed upon a modification of the original listing in that the sales price was reduced to $4,000 (including a down-payment of $500), payable at the rate of $60 per month with interest at 6% ; (c) that on June 21, 1965 appellee procured a purchaser who agreed to buy said land for the modified price; (d) appellants refused to execute a deed to the purchaser, and; (e) appellees were entitled to judgment against appellants for $400, being 10% of the agreed sales price. Answering the complaint, appellants admitted signing the Open Listing Agreement but specifically denied agreeing to any modification thereof, and they also denied all other material allegations.

The record contains a written “Agreement of Sale” signed by William 0. Horton and his wife, dated June 21, 1965, in which they agreed to buy the land for the price of $4,000 on the terms above specified in the complaint.

The trial resulted in a jury verdict of $400 against appellants, hence this appeal.

One. It is first insisted the trial court erred “in excluding evidence offered” by appellants showing a sale could not be made by them. By this we presume appellants mean they could not sell the land because Ethel Treat had a $2,400 mortgage on the land, and the down payment of $500 would not be enough to satisfy her. There can be no merit in this contention for at least two reasons. One, it is not pointed out by appellants that any such testimony was excluded by the trial court. Two, the existence of the $2,400 lien on the land did not necessarily excuse appellants from liability for the brokerage fee. In the case of Reynolds v. Ashabranner, 212 Ark. 718 (p. 722), 207 S. W. 2d 304, there appears this statement:

“The general rule is, that, unless there are provisions to the contrary, one who employs a broker is liable for the broker’s compensation, regardless of the employer’s interest in the property. ’ ’

Two. It is next insisted that “there was no competent evidence to show a sale was made by anyone to William O. Horton.” We do not agree. It appears sufficient to point out that Mr. and Mrs. Horton signed the written agreement which was introduced in evidence without any objection by appellant; that in the agreement they agreed to buy the land on certain terms, and; that they testified they did in fact buy on those same terms. It is not disputed that appellee induced the Hortons to sign the sales agreement.

Three. Here appellants contend it was error for the court to admit “into evidence the alleged sales agreement of William 0. Horton.” We find no objection by appellants to such admission. Here is the record:

“Q. Subsequent to that, did you obtain this agreement of sale from William 0. Horton and Melba Sue Horton?
“A. I did.
“Q. Is that the agreement of sale?
“A. It is.
THE COURT: Q. “Are there any objections to the introduction?
MR. JONES: “No objections.
THE 'COURT: “Let it be introduced and marked Plaintiff’s Exhibit No. 1.”

Four. Appellants’ point here is: “The Trial Court erred in submitting the issue of modification as to Frankie Treat to the jury.” In the first place we point out that no objection is shown in this connection. We find in the record evidence that Mr. Treat agreed to the modification and that Frankie knew of it and that she made no objection to appellee.

If appellants mean such a modification could not be shown by oral testimony, they are in error. In Hatchett v. Robinson, 237 Ark. 92 (p. 97) 371 S. W. 2d 618, we said:

“It is true that parties to a written agreement may orally modify the terms by mutual agreement or consent of the contracting parties.”

To- the same effect see: Elkins v. Aliceville, 170 Ark. 195, 279 S. W. 379, and Afflick v. Lambert, 187 Ark. 416, 60 S. W. 2d 176.

Five. Finally appellants say:

“The plaintiff’s instructions number two and number three are inherently erroneous and require reversal of the cause.”

We refrain from discussing the merits or demerits of these instructions because they are not'set out, in whole or in substance, in appellants’ brief. Moreover, an examination of the record reveals that no objection was made to said instructions.

Finding no reversible error, the judgment of the trial court is affirmed.

Affirmed.


text:
    Home Mutual Fire Ins. Co. v. Pierce
    5-3880
    402 S. W. 2d 672
    Opinion delivered May 16, 1966

      Peter G. Estes, for appellant.

      Clayton & Little, for appellee.
   Osro Cobb, Justice.

On January 12, 1965, appellee’s chicken brooder house and equipment and supplies contained therein were damaged by fire in the amount of $15,550. At the time of the loss, appellee was covered by appellant’s policy of insurance scheduling coverage on the brooder house at $10,000 and on equipment and supplies there at $6,000. A feed tank valued at $450 was salvaged from the fire and the loss resulted in a claim against appellant in the sum of $15,550. Appellant took the position that its liability was limited to two thirds of the loss. All of the facts relied upon by the parties were stipulated in the trial court and jury waived. The court found for appellee in the full amount of the loss, and appellant is here on appeal.

The Pertinent Facts as Stipulated

Appellee is a large operator of chicken brooder houses, using four farms in the general vicinity of Gravette as sites for same. Much expensive equipment is used. Prior to December 23, 1964, appellant had issued to appellee a separate policy of insurance on dwellings and named structures on each of said farms. On December 23, 1964, a new policy was written consolidating the coverage and on December 31, 1964, an endorsement was placed on the policy increasing some of the coverage. The provisions of the policy at issue are quoted in full in our discussion below of the law applicable to the particular facts of this case.

The farm site where the fire loss occurred had a dwelling thereon. When appellant inspected the property to write the original insurance a tenant was residing in the dwelling, but said tenant was engaged solely in hog raising and had and exercised no authority or responsibility as to appellee’s brooder house. Special personnel operated the brooder house, visitng same three or more times per day.

When appellant wrote and delivered the new policy covering the four farms, it made no additional physical inspection of same. Prior to the issuance of said new policy the tenant moved from the dwelling. It is stipulated, without providing any details, that said dwelling had not been occupied for more than 30 days prior to the fire.

Appellant urges two points for reversal and we discuss same in the order presented.

Point 1—Appellant contends that when the insurance is upon a farm dwelling and subordinate buildings, the occupancy of the dwelling determines the character of the occupancy of the barn and other outbuildings used in connection with it.

The principle stated under Point 1 is one that has been approved and widely applied in many jurisdictions including our own. It was exhaustively examined and approved in one of our cases upon which appellant primarily relies. Farmers Fire Ins Co. v. Farris, 224 Ark. 736, 276 S. W. 2d 44 (1955). In Farris we referred to American Ins. Co. v. Hays, 174 Ark. 772, 296 S. W. 724 (1927), where we quoted with approval a Wisconsin decision, Hotchkiss v. Insurance Co., 76 Wis. 269, 44 N. W. 1106 (1890), as follows:

“Under certain circumstances, premises may be vacant or unoccupied when, under other circumstances, premises in like situation may not be so, within the meaning of that term in insurance policies.”

Appellant has called our attention to several cases from other jurisdictions. Continental Ins. Co. v. Dunning, 249 Ky. 234, 60 S. W. 2d 577 (1933); Republic County Mut. Fire Ins. Co. v. Johnson, 69 Kan. 146, 76 Pac. 419 (1904); Agricultural Ins. Co. v. Hamilton, 82 Md. 88, 33 Atl. 429 (1895); Ashworth v. Builders Mut. Fire Ins. Co., 112 Mass. 422, 17 Am. Rep. 117 (1873).

After examining said case authorities we have reached the conclusion that the brooder house and equipment therein destroyed in this fire was neither subordinate to or used in connection with the farm dwelling, the facts in the case at bar being clearly distinguishable from the facts in the cases relied upon by appellant. Our principal reasons for this conclusion follow:

1. Webster’s New International Dictionary, 2d ed., defines subordinate: ‘ ‘ Inferior in order, nature, importance, or the like—dependent.”

2. In all cases cited by appellant the dwelling was of much greater value than the outbuildings—the outbuildings consisting of barns, corn cribs, smoke houses, etc. Indeed, appellant cites no case involving a brooder house operation.

3. In this case the brooder house and equipment therein was insured for $16,000, same being more than five times the amount of insurance on the dwelling.

4. The brooder house was operated by personnel entirely separate and apart from other operations on the farm.

5. When appellant inspected the premises prior to writing insurance, it learned that the tenant in the farm dwelling was engaged solely in hog raising and had and exercised no authority or responsibility whatever as to the care and operation of the brooder house.

6 Appellant was at all times here under review on notice that the tenant of the dwelling, whether occupying same or not, had no connection with the brooder house and its operation.

7. The brooder house operation was the most important enterprise on this farm. It had no dependence upon the dwelling and the occupant thereof, if occupied.

8. Under the particular circumstances of this case, stipulated by the parties, the brooder bouse simply was not used in connection with the dwelling.

It is clear to us that appellant’s Point 1, while sound in principle, is inapplicable to the stipulated facts of the case. We therefore find no merit in appellant’s contentions under said point.

Point 2—Appellant next contends that the farm dwelling had not been occupied on the farm in question for more than 30 days at the time of the fire and that under the terms of its policy of insurance it was liable to appellee only to the extent of two thirds of the loss or $10,366.67.

On December 23, 1964, appellant issued its policy No. 4627 for a period of five years, replacing four other unexpired policies previously issued by appellant to appellee. On December 31, 1964, an endorsement was issued increasing the coverage on the equipment in the brooder house that subsequently burned from $5,000 to $6,000. The fire occurred on January 12,1965, less than 30 days from the date of the new policy and only 12 days subsequent to the specific added coverage provided in the policy endorsement of December 31.

It can not be said that policy No. 4627 related to any other period of coverage except the five years beginning on December 23,1964, the by-laws of the insurance company expressly limiting its policies to a five-year period.

Appellant contends that its endorsement of the policy No. 4627 by Form 50, which specifically refers solely to the farm dwelling, has equal application to the brooder house. We quote same:

“VACANCY OR UNOCCUPANCY PERMIT—
‘In consideration of the waiver of additional premium for increased hazard by reason of vacancy or unoccupancy, permission is hereby given for divell ing insured under this policy to become or remain vacant or unoccupied for periods in excess of thirty days, provided that in case any dwelling is damaged or destroyed by fire during such vacancy or unoccupancy in excess of thirty days this company shall not be liable to pay or make good to the insured in excess of two-thirds of the amount of insurance covering such dwelling.’ ” (Emphasis ours.)

The trial court, after considering the stated provisions of said Form 50, rejected appellant’s contention of its application in this case to the brooder house. We agree with the trial court.

We therefore look to the provisions of the original policy which contains a vacancy clause, as follows:

“Unless otherwise provided by agreement in writing added hereto, this Company shall not be liable for loss or damage occurring. . . . (f) while a described building whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of thirty days.”

The above is virtually identical with language in a policy of insurance considered in Old Colony Ins. Co. v. Garvey, 253 F. 2d 299 (4th cir. 1958). We quote with approval from the opinion written by Chief Judge Parker in said case:

“We think that the District Judge was clearly correct in holding that the sixty (60) day vacancy allowed by the policy was to be computed from the time of issuance of the policy and not from the time when the house became vacant. If it had been intended that existing vacancy be taken into account, language to that effect should have been used...; and in the absence of such language the policy should be held to speak as of the time that it became effective. Directly in point is the case of Hurst v. Donegal & Conoy Mut. Fire Ins. Co., 224 S. C. 188, 78 S. E. 2d 189. In that case a policy was prepared and dated December 12,1950, but was not delivered and did not become effective until January 15, 1951. The house, which was vacant on December 12,1950 and which remained vacant, ivas destroyed by fire on February 16, 1951. It was held that since the policy did not become effective until delivery, recovery was not barred by the sixty day provision. We are cited no authority to the contrary and we know of none.If there is any ambiguity with respect to when the sixty day period begins to run, it is elementary that such ambiguity must be resolved in favor of the insured.”

Also 4 Applemcm, Insurance, § 2844 (1941) contains the following:

”... the period of vacancy permitted by the policy commences at the date of the inception of the risk, if the premises are then vacant, and the policy may be breached thereby. . . . Nor could a vacancy existing prior to the date' of the contract have any effect upon the insurer’s liability.” (Emphasis ours.)

Appellant has cited no Arkansas case relating to the principle of law set forth above.

We have therefore concluded that all of appellant’s contentions under Point 2 are without merit.

Having found no merit in any of the contentions of appellant the judgment of the trial court is affirmed.