author: Paul Ward, Associate Justice. Sam Robinson, Associate Justice,

text:
    Grayer v. State.
    5022
    353 S. W. 2d 148
    Opinion delivered January 29, 1962.

      Elton A. Rieves III, for petitioner.

      Frank Holt, Attorney General, by Russell J. Wools, Asst. Attorney General, for respondent.
   Paul Ward, Associate Justice.

This Petition for a Writ of Habeas Corpus was filed in this Court as an original action by John Ed Grayer who is incarcerated in the Arkansas State Penitentiary, serving two sentences (one for burglary and one for grand larceny) for a total of twenty-eight years. Sentences, after conviction, were pronounced on August 21, 1958 by the Circuit Court of Crittenden County.

The petition, an unverified statement, signed by John Ed Grayer (apparently in his own handwriting), sets out, in substance, the following alleged facts:

(a) He was arrested for burglary and grand larceny in 1952 in Crittenden County and placed in jail, but the charges were dropped according to his information. A deputy sheriff of Crittenden County took him to Memphis, Tennessee where he was placed in jail.

(b) He was sentenced to prison in Tennessee where he served four and one-half years in the penitentiary, and then was released.

(c) He visited West Memphis (in Crittenden County) October 13, 1957 where he was arrested for driving while drunk, whereupon the officers there learned his identity.

(d) In August, 1958 he was tried on information for the 1952 offenses and convicted to serve a total of twenty-eight years in the Arkansas Penitentiary.

Petitioner prays that he “receive justice according to the due process of law of this State”.

Upon receipt of the above petition this Court appointed Elton Sieves III of West Memphis to represent the petitioner. The appointed attorney has filed an excellent brief in behalf of the petitioner in which it is forcefully contended that the Circuit Court of Crittenden County had no jurisdiction to try and convict the petitioner, and that therefore he should be released from prison. The petitioner has not in this case brought the records of his convictions before us by way of certiorari, but he has done what amounts to the same thing — he has. filed with the Clerk of this Court a duly authenticated record of his convictions in the trial court. We therefore-treat his petition as if it were one for certiorari, and will proceed to examine the merits of petitioner’s contention that the trial court had no jurisdiction to try and convict him.

Petitioner relies on Ark. Stats. § 43-1602 to show lack of jurisdiction in the trial court. This section, in all parts material here, reads:

“No person shall be prosecuted, tried, and punished for any other felony unless an indictment be found within three [3] years after the commission of the offense. . . .”

The record of petitioner’s 1958 convictions in the Critteden County Court above mentioned contains the information upon which he was tried. It shows he was tried for offenses allegedly committed in 1952 — more than three years before trial. Under, those facts alone we would be compelled to hold the trial court was without jurisdiction to try the petitioner. See Pate v. Toler, 190 Ark. 465, 79 S. W. 2d 444, where this Court, in construing § 43-1603 which is analogous in this connection to § 43-1602, said:

‘ ‘ The above section is somewhat more than a statute of limitations, as regards to time. Ordinarily, the statute of limitations in proceedings is a matter of defense, which may be pleaded or be waived. The above section, however, is a limitation upon the power of courts to try one for any offense less than a felony, unless the charge shall have been instituted within the year after the offense charged was committed.”

There is another statute however which, we think, nullifies the effect of § 43-1602 in this case when considered in connection with the facts set forth in the record. That statute is § 43-1604 and it reads:

“Nothing in the two preceding sections shall avail any person who shall flee from justice; and in all cases the time during which any defendant shall not have been a resident of this State, shall not constitute any part of the limitation prescribed in the preceding sections.” (Emphasis added.)

The petitioner states, as above noted, that he served four and one-half years in the Tennessee Penitentiary between 1952 and 1957. He here contends that during those intervening years he was a resident of Arkansas, and that therefore the three-year statute (§ 43-1602) continued to run during his imprisonment in Tennessee.

The pivotal issue therefore is the determination of what the legislature meant by the word “resident” as it is used in § 43-1604. Is its meaning similar to the word “domicile” or does it imply physical presence?

Petitioner apparently takes the position that, in this situation, “residence” is similar to “domicile” since he cites § 48 in 17A Am. Jur. under the heading “Domicil”. In § 1 of the above citation we find this explanation of the topic discussed:

“This article discusses the general principles relating to the nature and elements of domicil. . . .”

Petitioner also relies on the case of Metropolitan Life Insurance Company v. Jones, 192 Ark. 1145, 97 S. W. 2d 64, but that decision is not in point. That case construes C. & M. Digest § 6150 (Ark. Stats. § 66-516) which relates to the proper venue of a suit on an insurance policy.

We find no decision of this or any other Court exactly in point which construes a statute like the one here involved. There are, however, certain reasons and related decisions that lead us to conclude that the word “resident” as used in our statute refers to a person who is physically present in the state in the sense that petitioner would not be a resident of this State while he was incarcerated in Tennessee. It seems to us that any other interpretation would defeat the obvious purpose of the statute. Under the facts before us it cannot be said that it was the fault of this State that petitioner was not brought to trial within three years after he committed the crimes for which he was convicted. In the case of Pellegrini v. Wolfe, Judge, 225 Ark. 459, 283 S. W. 2d 162, we construed Ark. Stats. § 43-1708 which requires,. generally, that a person indicted for a crime must be tried before two terms of court have elapsed. Pellegrini, who was in a Texas prison, sought relief under the above statute, and we said:

. . Pellegrini is not now entitled to claim relief under the two-term-discharge Statute because he is only now bringing himself within the purview of the Statute. ’ ’

We further pointed out that “Pellegrini has a right to ask Arkansas to bring him here for trial. . . .’’In the above cited case, just as in the case under consideration, the State of Arkansas was not at fault in failing to prosecute the accused within the time allotted by the statutes. In a situation such as confronts us here, we think the rule set forth in C. J. S. is reasonable and realistic. In Yol. 54, under the heading of Limitations of Actions, sub-head Residence, § 212, at page 236, it is stated:

“In construing and applying statutes of the kind under consideration it has been held that ‘ residence ’ and ‘domicile’ are not convertible terms, and that the statute simply contemplates a residence of such permanency that, generally speaking, the person in question may be found in the state and served with ordinary legal process at any time.”

In the case of People v. Carman, 385 Ill. 23, 52 N. E. 2d 197, the Court construed an Illinois Statute of Limitations similar to our § 43-1604 above quoted. In that case the Court dwelled at length on the meaning of the word resident. Among other things the Court said:

“The word ‘resident’, when used as an adjective, as in this statute, is synonymous with the word ‘inhabiting’. Roget’s Int. Thesaurus. The Standard Dictionary also gives a further definition of the adjective, as having a residence or abiding in a place. When used as a noun, it is defined to mean a dweller, habitant or occupant; one who resides or dwells in a place for a period of more, or less, duration; it is distinguishable from the word inhabitant only as implying less fixity or permanence of abode. When used as a nonn it signifies one having a residence; one who resides or abides. ‘Reside’ is there defined as abiding in a place; one who resides. It is a synonym of live, dwell, abide, sojourn, stay or lodge.”

Black’s Law Dictionary defines the word “reside” to mean: “Live, dwell, abide, sojourn, stay, remain, lodge.” It defines “residence” as “A factual place of abode. Living in a particular locality.”

From all we have heretofore said it is our conclusion that the petitioner was not a resident of Arkansas during the time he was a prisoner in Tennessee, and that, therefore, the Crittenden County Circuit Court had jurisdiction to try and convict him in 1958 for crimes committed in 1952 upon an information filed in 1957 as shown in the record.

Writ denied. If the petitioner desires to file a Petition for a Writ of Habeas Corpus in the Circuit Court, this Certiorari proceeding will not prejudice any rights he may have to do so, except as to any point foreclosed by this opinion.

Robinson and Johnson, JJ., dissent.

Sam Robinson, Associate Justice,

dissenting. On January 9, 1953, the petitioner, a resident of Arkansas, was arrested in Crittenden County for the crime of Burglary and Grand Larceny said to have been committed in the year 1952. No charge was preferred against him; no felony information was filed against him by the Prosecuting Attorney and the Grand Jury returned no indictment, but he was not released.

On January 11 he was taken to Memphis by Arkansas officers and turned over to Tennessee authorities. He was then sent to the Tennessee Penitentiary for a crime committed in that state.

In 1957, after serving four and one-half years he was released. No charge had been preferred against him in Arkansas and po holdover had been placed against him in Tennessee. After having been released from the Tennessee prison in 1957 he returned to his home in Arkansas and was arrested for driving while drunk. Then, in 1957, for the first time, more than five years after the alleged crime was committed, he was charged in Arkansas with having committed the crimes of Burglary and Grand Larceny in Arkansas, in 1952.

Considering these facts, I do not believe petitioner was a non-resident of the State of Arkansas within the meaning of Ark. Stats. (1947) § 43-1604, during the time he was in the Tennessee Penitentiary. It will be recalled that the petitioner did not voluntarily leave the .State of Arkansas. In January, 1953, the Arkansas officers had him in jail for the alleged crime, but no charge was filed against him. It was not until 1957 that he was charged with the offense. In 1953 the Arkansas officers had delivered him to Tennessee. The majority has denied the petition solely on the ground that during the time the petitioner was in the Tennessee Penitentiary he was not a resident of Arkansas. In my opinion such holding is against the weight of authority and does not correctly construe our statute. The majority point out that the trial court did not have jurisdiction to try the defendant unless he was a non-resident of this state within the meaning of Ark. Stats. (1947) § 43-1604 during the time he was confined in the Tennessee Penitentiary. Pate v. Toler, 190 Ark. 465; 79 S. W. 2d 444.

Ark. Stats. (1947) § 43-1604 provides:

‘ ‘ 43-1604. Fugitives — Nonresidents. — Nothing in the two preceding sections [three-year Statute of Limitations] shall avail any person who shall flee from justice ; and in all cases the time during which any defendant shall not have been a resident of this State, shall not constitute any part of the limitation prescribed in the preceding sections.”

The majority say that our case of Metropolitan Life Insurance Company v. Jones, 192 Ark. 1145, 97 S. W. 2d 64, is not in point with the case at bar. I fail to see why it is not in point. The question in the case at bar is whether Grayer, the petitioner, was a resident of Arkansas during the time he was in the Tennessee Penitentiary. In the Metropolitan case the question was whether one Elam was a resident of Arkansas during the time he was in the Kentucky Penitentiary; this Court said: ‘ ‘ The evidence shows that Paul Elam lived in Mississippi County, and while living there he was convicted and sentenced to the federal penitentiary . . . Such place of residence or usual abode [in this case Arkansas] is not changed or abandoned by a constrained removal as by imprisonment . . . Whether the word “residence” be taken in the sense of domicile or of abode, it implies a place where the party is situated through choice, and where, in some conceivable manner, his personal belongings would be the more readily found; and it has been distinctly ruled that neither in its legal nor in its popular meaning, is the word ‘residence’ satisfied by an incarceration in any particular place.”

The majority say it was not the fault of this State that the petitioner was not brought to trial within three years from the time the crime is alleged to have been committed and cites Pellegrini v. Wolfe, Judge, 225 Ark. 459, 283 S. W. 2d 162. That case is not in point with the case at bar. Pellegrini contended that he was entitled to have the charge against him dismissed because he had not been brought to trial within two terms of court as provided by Ark. Stats. (1947) § 43-1708. This Court pointed out that the State could not bring him to trial because he was in the Penitentiary in Texas, but the Court did indicate that Pellegrini should make an effort to get the Arkansas authorities to bring him to trial by making some arrangement with the State of Texas as is done where Federal prisoners are charged with an offense by the State.

In the case at bar, it is not a question of the State of Arkansas having failed to bring the petitioner to trial— it is the question of having failed to file any charge against him for more than three years after the offense is alleged to have been committed. There was nothing whatever to keep the Prosecuting Attorney from filing a felony information or the Grand Jury from returning an indictment, and if this had been done the defendant could have petitioned the Court for an order setting his ease for trial as the court pointed out the defendant could do in the Pellegrini case. Here the defendant could not petition the Court for a trial when no charge of any kind was pending against him, and there was no point in attempting to get and preserve evidence in his favor when he had no reason to believe that any charge would be filed against him.

As authority for holding that our Statute of Limitations does not apply in the case at bar, the majority cite People v. Carman, 385 Ill. 23, 52 N. E. 2d 197. The Illinois statute is entirely different from ours. Ill. Rev. Stat. 1941, Ch. 38, Par. 632. Section 5 of Div. 4 provides: “No period during which the party charged was not usually and publicly a resident within this State shall be included in the time of limitation.”

The words “usually” and “publicly” are not in our statutes and the Illinois case turns squarely on those words. The Illinois Court said: “In this case, an analysis of the words of the statute and a brief reference to the meaning will be helpful. The word ‘usually’ is defined by lexicographers to mean such as in common use; ordinarily, or in ordinary course of events. It is derived from the word ‘usual’ which means that which happens in the ordinary course of events; that which is customary or according to common practice. It is the antithesis of uncommon; extraordinary; unusual, or abnormal . . . Prom the same authorities we find that the word ‘publicly’ is derived from the word ‘public’. It signifies something which is open to the knowledge or view of all; generally seen, known or heard, activities carried on before the public, or something which is done in an open and public manner; without concealment. ’ ’

It will be recalled that our statute merely tolls the running of the Statute of Limitations during the time the defendant “shall not have been a resident of this State.” There is a great difference between onr statute and the Illinois statute; our statute does not contain the words “usually” and “publicly”.

In citing the Illinois case, 22 Corpus Juris Secundum 606 emphasizes the words “usually” and “publicly” used in the Illinois statutes but not used in the Arkansas statutes.

In the case of Town of Freeport v. Board of Supervisors, 41 Ill. 495, the Illinois Court said: “A person imprisoned under operation of law does not thereby change his residence.” To the same effect is Clark v. Robinson, 88 Ill. 498. “And such place of residence or usual abode, is not changed or abandoned, by a constrained removal or by imprisonment.” Grant v. Dalliber, 11 Conn. 233.

“Nor can a person committed to prison gain residence where the prison is situated. He retains his residence at his abode or home before his commitment. A residence can only be acquired by voluntary choice or by right.” Shaffer v. Tepper, 127 F. Supp. 892. In the case last mentioned, a resident of Ohio was involuntarily incarcerated in the Kentucky State Penitentiary. In Topsham v. Lewiston, 74 Maine 236, the Court said: “He had never abandoned this as his place of residence; he had left it by constraint. The State prison was not the place of his abode; it was his place of punishment and while there he was absent from home.”

In the case at bar the petitioner did not voluntarily leave the State of Arkansas. He was taken to Tennessee by officers of the State of Arkansas. In my opinion he was still a resident of this State within the meaning of our statute. Therefore, I think the charge preferred against him in 1957 for a crime alleged to have been committed in 1952, was barred by our three-year Statute of Limitations. I would, therefore, grant the petition.

Mr. Justice Johnson joins in this dissent.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Franklin v. McCoy.
    5-2571
    353 S. W. 2d 166
    Opinion delivered January 29, 1962.

      Wynne é Wynne, for appellant.

      Thomas E. Sparks, for appellee.
   Paul Ward, Associate Justice.

The issue for deci - sion is: When is a chicken raiser a farmer? This issue, as it appears from the record in this case, presents a question of law rather than a question of fact.

Appellant, Louise Franklin, as an employee of appellee, Mitchell McCoy, (uninsured) filed a claim for compensation before a Workmen’s Compensation Referee for an injury received on July 18, 1959 arising out of and in the course of her employment. The only real question presented to the Referee was whether appellee’s employees were engaged in “agricultural farm labor”. The Referee and (later) the full Commission held the said employees were not so engaged. On appeal the Circuit Court held to the contrary and dismissed appellant’s claim — hence this appeal.

• Ark. Stats. § 81-1302 (c) 1 defines “employment”, as it is material here, to mean:

‘ ‘ Every employment carried on in the state in which five [5] or more employees are regularly employed by the same employer in the course of business or businesses, except domestic service, agricultural farm labor. . . .” (Emphasis added.)

For the purpose of this opinion it will be assumed that appellee employed five or more persons. The Commission so held, and we find substantial evidence to support that holding. It was not necessary for the Circuit Court to pass on this particular question since it held appellee’s employees were not engaged in “agricultural farm labor”.

Facts. The pertinent facts on which the Commission and the Circuit Court based their respective decisions are not in dispute. Appellee owns 188 acres of land of which 144 are woodland. For many years prior to about 1958 he was unquestionably engaged in farming the land by raising cotton, hay, peanuts, popcorn, corn, soybeans, hogs and cattle. He was not raising any of those things however when appellant was injured in July, 1959. The same situation obtained in 1958 with the exception that he did raise some hay but did not get to cut and bale it because of lack of help.

In 1946 appellee began raising chickens for market in connection with his other operations and has continued raising chickens for the market ever since. By 1959, and possibly sooner, the chicken business had grown to the extent that appellee had (on the land) eight chicken houses containing approximately 75,000 chickens at a given time. In that year he marketed some 5,500 chickens twice a week. Feed for the chickens was not raised on the land, but grain was purchased and prepared on the land by appellee’s employees. The result was that in 1959, and possibly in 1958, nothing was produced on appellee’s land except chickens for the market.

The Issue. Under the above state of facts was appellee engaged in agricultural farming in 1959 or, to be more specific, was appellant at the time of her injury engaged in “agricultural farm labor” in the sense those words are used in the statute above quoted? In trying to find the answer to the above question we find no certain guidepost in our own or other decisions.

Our Court, on three occasions, has considered the clause in our statute excepting “agricultural farm labor” from Workmen’s Compensation coverage. In Gwin v. J. W. Vestal & Son, 205 Ark. 742, 170 S. W. 2d 598, the Court held that Gwin was not covered by the Workmen’s Compensation Act although he was, at the time of the injury, a night watchman at a greenhouse located on a farm where hay was also grown. The decision apparently turned on the finding that floriculture or horticulture was a form of farming. In so holding the Court pointed with approval to a statement that “agricultural labor” had a broader meaning than just “farm labor”. We take this to mean that there could be some phase of activity included in agricultural labor that might not be included in farm labor.

In the case of Bailey v. Great American Indemnity Company, et al, 221 Ark. 469, 254 S. W. 2d 322, it was held that Bailey was covered by the Compensation Act for an injury received by falling from a tree on an 18-acre (so-called) farm belonging to his employer. This decision is of little value to us here because it seems to have been based on the fact that the so-called farm was merely a sideline to another (non-farming) operation also owned by the employer and was used merely as an advertising or diversional activity. A similar result on similar grounds was reached in the case of Dockery v. Thomas, 226 Ark. 946, 295 S. W. 2d 319, where the claimant was engaged in crop dusting. In effect the Court said there could be no logical or reasonable similarity between crop dusting and farming where the employer was engaged solely in the business of commercial crop dusting.

In order to determine what definition the courts and authorities have given to the term “agriculture” we have examined the following: 3 C. J. S. 365; 2 Am. Jur. 395; Hight v. Industrial Commission, 44 Ariz. 129, 34 P. 2d 404; Greischar v. St. Mary’s College, 176 Minn. 100, 222 N. W. 525; De Fontenay v. Childs, 93 Mont. 480, 19 P. 2d 650; and Beyer v. Decker, 159 Md. 289, 150 Atl. 804. All these cases and authorities say that feeding and raising cattle and horses come within the term agricultural farming; some of them include poultry.

In the case of Fleckles v. Hille, et al, 83 Ind. App. 715, 149 N. E. 915, the employer owned and operated a farm consisting of 40 acres, 10 acres being in cultivation and the rest of it being used for the production of eggs and poultry for the market. The principal part of claimant’s work was feeding and caring for the poultry, and claimant was so engaged when injured. The trial court held claimant was not a farm or agricultural employee and accordingly denied his claim. The appellate court reversed the trial court on the ground that the term “agriculture” means not only tilling the soil but includes raising, feeding and management of livestock and poultry. To the same effect is the decision in Bennett v. Stoneleigh Farms, Inc., et al, 4 N. Y. S. 2d 255, 254 App. Div. 790, where claimant worked on a farm where only cattle and chickens were raised.

Webster’s Third International Dictionary includes in its definition of “agriculture” the raising of animals useful to man and the disposition of same for market.

In view of the foregoing we are unwilling to say the legislature, in using the words found in the statute heretofore quoted, meant that raising chickens (in the manner previously set out) is not an agricultural farm activity. If that is what the legislature meant we pass to them the responsibility of saying so in unmistakable terms. The legislature may have indicated what its action would be in this situation when it passed Act 166 of 1961 where it defined the term “agriculture” to include the “cultivation, growing, harvesting and/or marketing of domesticated fish”.

It is accordingly our conclusion that the trial court was correct in dismissing the appellant’s claim.

Affirmed.

McFaddin, J,. not participating.


author: Sam Robinson, Associate Justice.

text:
    Aetna Ins. Co. v. Solomon Bros., Inc.
    5-2574
    353 S. W. 2d 346
    Opinion delivered January 29, 1962.
    [Rehearing denied February 26. 1962.]

      Dinning Jt Dinning, for appellant.

      John L. Anderson and David Solomon, Jr., for appellee.
   Sam Robinson, Associate Justice.

On July 1, 1919, the Missouri Pacific Railroad Company entered into a contract with certain individuals operating a gin as a partnership whereby the railroad company constructed a switch at a side track to furnish service to the gin. Among other things the contract provides:

“Shipper forever shall defend, indemnify as an insurer and save harmless the carrier from, for and against any and all liability, judgments, outlays, and expenses, whatsoever . . . consequent on any fire howsoever set out in Shipper’s premises.”

It appears that at least for the last past 19 years the gin has been operated by appellee, Solomon Brothers, Inc. It is not shown at just what time the partnership quit operating the gin nor is it shown how or under what circumstances the appellee became the operator of the gin.

In November 1954 a fire occurred on the gin property and destroyed three box cars belonging to the railroad company. Appellant, Aetna Insurance Company, had issued to the railroad company a fire insurance policy covering the box cars. Pursuant to the terms of the policy, the insurance company paid the railroad company for the loss sustained as a result of the fire and the railroad company in turn assigned to the insurance company its asserted claim against the gin company for damages alleged to be due under the terms of the 1919 contract between the railroad company and the partnership. The insurance company sued the appellant corporation on the assignment. There was a trial resulting in a judgment for the defendant gin company and the insurance company has appealed.

Several points are argued but we reach only one. There is no showing in the record that the appellee corporation assumed the obligations of the partnership on the contract between the partnership and the railroad company. In fact, there is no showing of how or from whom the gin company obtained the possession of the gin. It may have been that the corporation obtained the gin from the partnership. On the other hand the gin may have passed through the hands of several others before it was acquired by the corporation. In any event, there is no showing that the corporation assumed the obligations of the partnership or that the corporation ever heard of the contract in question until after the fire occurred.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Cheney, Commr. v. Murphy Corp.
    5-2576
    353 S. W. 2d 188
    Opinion delivered January 29, 1962.

      Herrn Northcutt, for appellant.

      Grumpier & 0’Connor and Jerry W. Watkins, for appellee.
   Jim Johnson, Associate Justice.

This case arises out of a dispute over the existence of a State Income Tax deficiency. The dispute concerns a disagreement in the interpretation of the meaning of the words “on or after the passage of this Act” as they appear in Act 147 of 1957.

The litigation began in 1961 following a notice of deficiency which appellant, Commissioner of Revenues, forwarded to appellee, Murphy Corporation, on January 18, 1961.

The notice of deficiency provided that Murphy could, within 30 days, request a hearing. Upon receipt of the notice, Murphy promptly requested a hearing. The only response the Commissioner made to such request was to reply that the matter appertaining to appellee was being placed in suspense pending the outcome of similar litigation. On February 21, 1961, Murphy made a formal request for a review of its tax return as provided in Ark. Stats., § 84-2037, and stated that a failure of the Commissioner to set a hearing would be considered a determination by appellant adverse to the claims of appellee. To this, the Commissioner made no reply. Thereafter, on March 10, 1961, appellee filed its complaint in the Union Chancery Court seeking a judicial review of the matter.

Appellant filed a motion to dismiss contending that:

“. . . defendant is domiciled in Pulaski County, Arkansas, and that the Arkansas Statutes, No. 27-603 and No. 34-201, provides that all actions brought against State Commissioners for their official actions shall be brought in the County wherein the site of government is located or the defendant resides, or in other words, Pulaski County, Arkansas. Therefore the Chancery Court of Union County, Arkansas, is without jurisdiction to hear and determine said cause.”

In answer to appellant’s Motion to Dismiss, appellee urged that:

“The Defendant moves to dismiss on the basis of Ark. Stats., Section 27-603 and Section 34-201, which are general venue statutes, last amended in 1871. Said motion should be denied for the reason that this action is brought under the provisions of Ark. Stats. Section 84-2038, enacted in 1929, which specifically provided that an action of this type may be brought in the county ‘in which the taxpayer resides or has his principal place of business.’ This statute was construed and upheld by the Supreme Court of Arkansas in Cook v. Wofford, 209 Ark. 824, wherein the jurisdiction of the Sebastian Chancery Court was upheld.”

Thereupon, appellant, at the hearing on the motion, requested permission to withdraw his motion to dismiss and to file a demurrer. The request was granted and the demurrer was filed. The trial court found that appellee’s petition stated a cause of action and overruled appellant’s demurrer in its entirety. Appellant declined to plead further and chose to stand on his demurrer. No further order or ruling was requested or issued by the court.

Prom the order overruling the demurrer, appellant attempts an appeal.

Por reversal, the following points are urged:

1. The appellee did not exhaust its administrative remedies before filing a court action.

2. The appellee is barred from filing its cause of action until it has paid or tendered the amount of assessment.

3. The allegations of appellee’s complaint were too general and insufficient to state a cause of action.

4. Sub-Item C of Item 2 of Sub-Section (1) of Section 13 of Act 147 of 1957, is irreconcilable with the grant of ‘Net Loss Operation’ deduction in the remainder of Items 1 and 2; stands last in position and should prevail.

To counter appellant’s contentions, appellee concedes that “as abstract propositions of law, appellant’s contentions are not without merit.” However, appellee insists that they have no application to this case since the matter should be heard on its merits. Notwithstanding the interesting and seemingly meritorious arguments advanced by both the appellant and appellee in support of their contentions, we find from an examination of the record that the only order entered by the trial coirrt was the order overruling appellant’s demurrer to appellee’s complaint. This being true, we have no choice but to apply the rule as set forth in the strikingly similar case of McCarroll, Commissioner of Revenues v. Gregory-Robinson-Speas, Inc., 197 Ark. 1175, 125 S. W. 2d 452, wherein this Court said:

“The order overruling the demurrer to the complaint was an interlocutory order and not being a final judgment was not appealable to this Court. The appeal was, therefore, prematurely taken. The case is still pending in the chancery court notwithstanding the attempted appeal from the order overruling the demurrer to the complaint. Gates v. Soloman, 73 Ark. 8, 83 S. W. 348. This Court decided in the case of Davis v. Biddle, 117 Ark. 393, 174 S. W. 1196, that no appeal lies where there is no final judgment, and an order sustaining a demurrer being only an interlocutory judgment, an appeal therefrom would be dismissed for want of jurisdiction and also decided in State v. Greenville Stone & Gravel Co., 122 Ark. 151, 182 S. W. 555, that orders overruling demurrers were not appealable since they were not final orders. . . .”

Accordingly, in the case at bar, the order overruling the demurrer to the complaint not being a final order, the appeal is dismissed.


author: Neill Bohlinger, Associate Justice.

text:
    Smart v. Gunnels.
    5-2558
    353 S. W. 2d 153
    Opinion delivered January 29, 1962.

      Kitchens & Kitchens, for appellant.

      Keith, Clegg & Eckert, for appellee.
   Neill Bohlinger, Associate Justice.

This appeal presents two law suits concerning the same tract of land, which suits were consolidated and tried in the Columbia County Chancery Court.

On November 8, 1933, E. H. Harrell was the owner of forty acres of land in Section 10, Township 15 S, Range 20 W, and on this date he conveyed this forty acres of land to G. M. Wesley and wife. G. M. Wesley’s wife was Bertha Wesley and this couple had no children, although G. M. Wesley and Bertha Wesley each had a child or children by former marriages.

G. M. Wesley and Bertha Wesley were divorced in 1951 and Bertha Wesley moved to California. In 1954 G. M. Wesley executed his deed to this forty acres of land to Collie Wesley, a son by a former marriage. In this deed Bertha Wesley did not join. G. M. Wesley died in 1955 and Bertha survived him.

Joella C. Gunnels and Maxine S. Ainsworth appear as the owners of a 5/8 mineral lease on this property and this lease is not questioned here. After the deed from G. M. Wesley to his son, Collie, the appellees unsuccessfully endeavored to obtain a lease from Collie on the remaining 3/8 of the mineral rights but the appellant, M. H. Smart, acquired this lease.

Under the lease held by the appellees they were required to secure oil production on the land by February 10,1959 and failing to do so, their lease would terminate. It appears that the appellees endeavored to have the appellant join with them in their effort to secure production but the appellant declined. Thereafter the appellees drilled a well and secured production. The parties, appellant and appellees, then agreed between themselves for the installation of a pipeline from the tank batteries to Sohio Petroleum Company to care for the oil produced on the land involved.

In order to market the oil from the property it was necessary that an abstract of title and a title opinion be secured and the parties hereto appear to have agreed on securing the abstract at their joint costs.

When the abstract was examined by counsel it was discovered that Bertha Wesley had an interest in the land involved and it further appears that the examining attorney endeavored to contact the appellant and advise him of this fact. However, the appellees became aware of this situation before the appellant was advised and the appellees dispatched an emissary to California where there was secured a mineral lease from Bertha Wesley to the appellees conveying the remaining 3/8 interest in the minerals on the land and this lease was promptly placed on record in Columbia County where the land is situated.

The appellant brings this action and raises six points for a reversal of the decree of the chancellor wherein it had been found that the appellees were the owners of the lease to the entire mineral rights in the property.

The controlling questions that must first be decided are the appellants’ contentions that the deed from Harrell and wife was a conveyance without limitation and no estate by the entirety was evidenced by the deed; that the deed was not ambiguous, and that the chancellor erred in taking testimony in order to arrive at the intent of the parties to the deed.

The deed is ambiguous and the chancellor was correct in taking testimony to establish the intention of the parties. A deed, like the evidence of any other contract, should be examined to ascertain the intention of the parties. We do not have the original deed but the copy in the abstract presents a deed that reflects poor draftsmanship. The preamble to the deed recites that the consideration for the property was paid by “G. M. Wesley and wife”. The granting clause was worded to “G. M. Wesley and wife and to his heirs and assigns forever”. The habendum clause contained the words “unto the said G. M. Wesley and unto his heirs and assigns forever”. The clause relinquishing dower and homestead by Mrs. Harrell was worded “relinquish unto the said G. M. Wesley all my rights”. The warranty clause reads: “And we hereby covenant with the said G. M. Wesley, E. H. Harrell that we will forever warrant and defend the title to the said lands against all claims whatever”. It thus appears in this last clause that Harrell was warranting title to himself.

In viewing this deed we first take into consideration the fact that Bertha Wesley was the daughter of E. H. Harrell, the grantor in the deed. Bertha Wesley and G. M. Wesley had no children but G. M. Wesley had children by a former marriage. A logical assumption at this point would be that the natural bonds of blood and affection would prompt the grantor, Harrell, to make provision for his daughter, Bertha Wesley. But aside from any assumption, the deferred payments on the land were made by the joint efforts of Gr. M. Wesley and Bertha Wesley, his wife, who worked the land and in addition, Bertha Wesley owned some timber which she sold and applied the proceeds on the payment on the property from all of which we must assume that she was something more than a nominal party. This court faced a similar problem in the case of Redmon v. Hill, 233 Ark. 45, 342 S. W. 2d 410. There the deed was made to Duncan Hill and Emma Hill and the granting clause contained the words “unto his heirs and assigns”. [Emphasis ours.] In reversing the chancellor and holding that an estate by the entirety was created in Hill and his wife, we said:

“* * * the Chancellor took the view that our decision in the case of Harmon v. Thompson, 223 Ark. 10, 263 S. W. 2d 903, precluded him from holding the deed conveyed an estate by the entirety to Hill and his wife. In this we think the Chancellor was in error. In two important respects the facts in the Harmon case are easily distinguishable from the facts in the case under consideration. One, in the cited case it is clear, because of the erasures and changes, that the word ‘his’ was deliberately and purposely used instead of the word ‘ their ’. Such is not the case here. Two, in the cited case the all important fact of intent is not definitely shown, as it is in this case. It may be also added in this connection that there is substantial evidence that Mrs. Hill furnished a large part of the money to pay the debt owing Meyer. This fact substantiates the direct evidence on the matter of intent. The decision and the reasoning in the Harmon case is sound, but it is based entirely upon the peculiar facts of that case. In the case of Jackson v. Lady, 140 Ark. 512, at page 523, 216 S. W. 505, at page 508, this court said: ‘In the construction of a deed like any other contract it is the duty of the court to ascertain, if possible, the intention of the parties, especially that of the grantor.’ To the same effect is the decision in Carter Oil Co. v. Weil, 209 Ark. 653, 192 S. W. 2d 215, 217, where it was stated that: ‘All deeds are to he construed favorably, and as near the intention of the parties as possible, consistently with the rules of law.’ ”

Viewing this case in the light of the authorities cited and viewing it from every angle, we think the chancellor was correct in finding that an estate by the entirety was intended to be conveyed to G. M. and Bertha Wesley and the deed was properly so construed, and that Bertha, as the survivor, had the fee.

The appellant contends, however, that since the parties had agreed on a partition of the land between themselves so as to prevent cross-drainage, the contract constituted a joint adventure. It must be borne in mind, however, that at the time the agreement to partition was made, the appellant had held himself out as the owner of a 3/8 interest in the minerals on the land which position was lost to him when it was determined that Bertha Wesley, as a survivor in the estate by the entirety, was the owner of the fee and that the deed from G. M. Wesley to Collie Wesley conveyed nothing.

We find nothing that indicates a joint adventure. In discussing the essentials of joint adventure, this court in State, Ex Rel. Attorney General, v. Gus Blass Co., 193 Ark. 1159, 105 S. W. 2d 853, said:

“To constitute a joint adventure, there must be the elements of a partnership. As between the parties themselves there must have been an intention to form a partnership as expressed in the contract or gathered from acts of the parties and circumstances which may interpret such agreements. As between themselves or third parties, ‘there are certain requisites necessary before the law will in any event regard the relationship as that of partners. The requisites of a partnership are that the parties must have joined together to carry on a trade or adventure for their common benefit, each contributing property or services and having a community of interests in the profits.’ Meehan v. Valentine, 145 U. S. 611, 12 S. Ct. 972, 36 L. Ed. 835. The doctrine announced in this case was quoted with approval in Cully v. Edwards, 44 Ark. 423, 51 Am. Rep. 614. That case was followed in Roach v. Rector, 93 Ark. 521, 123 S. W. 399, in which it was stated in effect that the parties to the contract must be co-principals in the business, and if it is owned by one, and the other receives the profits or a portion thereof, for services or otherwise, the relationship of partners does not exist. Quoting further from that case, it is said: ‘As between the parties themselves, before it has been said that the relationship of partners has been created, it is essential that the parties themselves intended by the effect of their contract to form such a partnership business, and that they should have a common ownership and community of interest in the properties of the business, and they should share in some fixed proportion in the profits thereof only as profits of the business.’

These rules apply not only to a general partnership, but to a limited one, a joint adventure.”

While the appellants did agree to provide part of the costs of a pipeline to care for the oil from the property, mere joint ownership of the property does not constitute joint adventure and after the pipeline had been laid, that undertaking was at an end. The appellant contends further that his agreement to pay one-half the costs of the abstract and title opinion brings his transaction within the realm of a joint adventure. We do not so view it. Before the oil from the property could be marketed it was necessary that an abstract and title opinion be procured. If the appellant did not join with the appellees in procuring these two things and bearing only one-half the costs he would have been faced with the necessity of procuring his own abstract and title opinion and the most that can be said of his action in this particular is that he was exercising good business judgment.

As to the matter of advance notice in regard to the title, we find that the attorney examining the abstract endeavored to locate the appellant at the time he prepared his opinion but was unable to do so. However, the appellant knew who the attorney was and he could have prepared for the eventuality. The appellees, on securing the information, moved promptly and we find nothing in the record which indicates that the relationship between the parties was such that the appellees were under any obligation to convey the information in regard to the title to the appellant.

Appellant’s final point is that he acquired interest in good faith for value without notice of claims of appellees, who are barred by laches and estoppel. We find no merit in this contention. The deed from Harrell and wife to Wesley and wife had been on record since February 5, 1938 and all matters touching the interest of the various parties hereto were matters of public record and the appellant is held to have proceeded in full knowledge thereof.

The decree of the chancellor is in all things affirmed.


author: Carleton Harris, Chief Justice.

text:
    Jolly v. J. M. Hampton & Sons Lbr. Co.
    5-2553
    353 S. W. 2d 338
    Opinion delivered February 5, 1962.

      Donald Poe, for appellant.

      Mahony <§ locum, for appellee.
   Carleton Harris, Chief Justice.

Tbis is a Workmen’s Compensation case. Jim Jolly was employed by J. M. Hampton and Sons Lumber Company, as a sawmill worker, near Mt. Ida, Arkansas. On the morning of October 13, 1959, Jolly, while performing the duties of Ms employment, came in contact with a defective conduit carrying electricity, and received an electric shock, and burns about the face, arm and leg. He was rendered unconscious for several hours, and was taken to St. Joseph’s Hospital in Hot Springs, where he was hospitalized under the care of the Burton-Eisele Clinic. Jolly was discharged a few days later, hut between November 11,1959, and the middle of April, 1960, appellant was, at intervals, in St. Joseph’s Hospital for more than 40 days for treatment, and for skin grafting on his face, mainly the lip and nose. Jolly was paid compensation for a period of twenty-seven weeks and five days, and on April 25th, received his final check in the amount of $36.49, which he refused to cash. On the same date, he resumed work at Hampton’s Mill. His duties were different from those engaged in before the accident, but his pay was the same. Claim for additional compensation was filed, wherein Jolly sought compensation for disfigurement, and permanent partial disability for loss of hearing and impairment of eye-sight. After a hearing before the full Commission, Jolly’s claim was denied and dismissed by that tribunal, and on appeal to the Montgomery Circuit Court, the Commission was affirmed. From such judgment of the court, comes this appeal. Appellant relies upon four points for reversal, the first three dealing with the failure of the Commission and Court to make an award for disfigurement, and the fourth, dealing with Jolly’s failure to receive an award for permanent partial disability. The first three points are all related, and we will discuss them together.

J oily, 55 years of age, testified that he was burned on the leg, arm, face, nose, head and lip — “All of my lip come out. ’ ’ He testified that part of one ear was removed in order to repair his nose, and, when meeting people, he was embarrassed because of his scars. The report of Dr. James A. Jenkins was offered by appellant, and pertinent portions are as follows:

“There is a skin graft scar, wedge shaped, approximately 2x1 1/2 x 1 1/2 cm., in the upper lip, and a nearly circular scar from skin grafting on the left nasal ala. There is a 12 x 15 cm. scar on the lateral aspect on the middle one-third of the left leg. He also has a very mild hyperopia. Neurological examination reveals an anesthesia of the upper lift and left nasal ala. There is also a donor site scar from the skin graft on the helix of the left ear.

It is my opinion that these scars are of disfiguring nature on his face and are permanent. The anesthesia associated with these scars is also permanent.”

Two letters from Dr. James H. French of the BurtonEisele Clinic, relative to Jolly’s condition, were offered in evidence as follows:

“Mr. Jolly was operated April 9, 1960, at which time he had division of the pedicle graft from the cheek to the nose, and further plastic repair to the upper lip. He was discharged from the hospital April 14, 1960, and was last seen in this office April 18, 1960. He was discharged to return to work April 25, 1960.

This patient will be left with noticeable scars about the upper lip and nose, but his prognosis otherwise is good. * * *

Mr. Jolly’s disability will be of a cosmetic nature, that is, scarring of the lips, nose, left cheek and ear. There should be no other physical handicap resulting from his injury.”

Appellant vigorously contends that the disfigurement alone warranted an award. Cases are cited from four states in support of his argument, vis, New York, Illinois, South Carolina, and New Jersey, but these cases are really of no aid to appellant, for statutes of those states are different from the Arkansas Statute. Section 81-1313, Ark. Stats., Anno., subsection (g) provides:

“The Commission shall award compensation for serious and permanent facial or head disfigurement in a sum not to exceed two thousand ($2,000.00) dollars, based solely upon the effect such disfigurement shall have on the future earning capacity of the injured employee in similar employment. No award for disfigurement shall be entered until twelve (12) months after the injury. ’ ’

The statutes of the states referred to do not contain the italicized provision. Of course, under this provision, the authority of the Commission to make an award for disfigurement is somewhat limited. Actually, this Court has already held that the only compensable disfigurement is one that affects earning capacity in a similar employment. Long-Bell Lumber Company v. Mitchell, 206 Ark. 854, 177 S. W. 2d 920. It is true that that decision was rendered under our first Workmen’s Compensation Act (Act 319 of 1937), but the provisions of the section of that act relating to disfigurement are substantially the same as the present statute. If anything, it appears that the present statute requires even more of a showing that the disfigurement must affect the future earning capacity of the injured employee.

There is no substantial evidence in this record that Jolly’s future employment has been impaired because of the disfigurement. Perhaps one could be so horribly disfigured that his appearance in itself would furnish sufficient evidence that employers would not be prone to employ him, and, of course, people engaged in some vocations or professions would be more adversely affected by disfigurement than those employed in other occupations. For instance, a receptionist, model, beautician, salesman, teacher, i.e., people who constantly deal with, and are before the public, would be much more apt to be refused employment because of their appearance than persons who were seeking employment in capacities where they would only come in contact with fellow employees. In the case before us, Mr. Jolly testified that he believed he was a better looking man before the accident, and this is undoubtedly true, but again, the award is only made when his future earning capacity in similar employment is affected. The Commission found:

"It is true that there are some appearances of disfigurement of claimant’s face, though skillful plastic surgery has tended to reduce it to a considerable extent. However, there is no evidence in the case to meet the requirement of the statute that such disfigurement has had effect upon the claimant’s future earning capacity in similar employment.”

Appellant contends that the Commission acted arbitrarily in refusing to accept the proffered evidence of Delbert Byers, a witness on behalf of appellant, who was asked the question: "Do you know whether or not that facial condition that he’s got, would interfere with getting employment in your part of the country over there?” A. “Well, it would to a certain extent.” Objection was made by appellees and the objection was sustained.

We agree that this was not competent evidence. Byers, a son-in-law of Jolly, possessed no particular qualifications for determining the likelihood of Jolly’s being refused employment. The record does not reflect that he was an employer, or a personnel director, or that he had any experience in employing job applicants. Of course, were it otherwise, the answer is far from positive, and the phrase, "it would to a certain extent”, is rather vague; likewise, there is no reference to the type of employment the witness referred to. There is no evidence in the record that Jolly had been refused employment, or (with the exception of the statement of Byers) that his disfigurement will cause, or tend to cause, any refusal in the future of employment similar to that engaged in at the time the injury was received. Actually, it is difficult to determine from the record the extent or seriousness of the disfigurement. There are no pictures of Jolly in the record, and accordingly, we have no manner of ascertaining his exact appearance. While the condition is permanent, the finding of the Commission, heretofore quoted would indicate that appellant’s appearance is not abhorrent or repugnant. It follows that this contention must fail.

Appellant contends that he is entitled to compensation for permanent partial disability for loss of hearing and impairment of eyesight. Jolly testified he had “good” vision and hearing prior to the accident. He stated that it is now difficult to hear anything at all while in noisy surroundings; that he did not wear glasses before he was injured. Audrie Black, a fellow employee, stated Jolly was always “a little hard of hearing”, but the condition had worsened since the injury. Delbert Byers testified that his father-in-law formerly helped his (Jolly’s) grandchildren with their school lessons, but “he just can’t see that fine print in them books any more.” He stated that Jolly formerly would read the paper, but had ceased to do so; that when the television was in operation, it was necessary to walk over to appellant’s chair in order to make him understand conversation. ‘ ‘ To me, he just can’t separate two different rackets apart. He can’t — he is just liable to start talking to you about something you haven’t even mentioned when you ask him something.” The witness said that appellant’s hearing was somewhat defective before the accident, but had grown considerably worse since that time. Jolly’s wife, Victoria, testified that her husband could not hear as well as before he received the injury, though she did admit some prior difficulty. “One of his ear drums was affected when he was a child, and that’s all of the trouble that there was any way at all.” She stated that his hearing was failing “a little” before the accident, “not too much.” Morgan Hampton, an employee of the lumber company, testified that he thought Jolly’s hearing was worse after receiving the burns.

The Commission, in compliance with a request of appellant’s counsel, appointed two physicians to examine J oily, with the view of determining whether his condition was attributable to the injury that he had received. Dr. H. A. Ted Bailey, Jr., was appointed to make an examination relative to loss of hearing, and Dr. John M. Fulmer was directed to make an examination with regard to Jolly’s vision. Dr. Bailey issued the following report:

“I examined Mr. Jim-Jolly today; 2/13/61, and Ms ear canals were normal except for a large piece of wax wliicli was removed from the left canal. The drums were both perfectly normal. Tuning fork tests and audiometric examination demonstrated a high tone hearing loss which is due to damage to the nerve of hearing on each side: AMA percentage loss was 42% in the right ear and 15% in the left. Inasmuch as his repeated pure tone testing came out the same each time and because the speech audiometry was compatible with the results of the pure tone tests we feel that this represents a true loss of hearing and this patient was not giving false responses in any way. As to the cause of his hearing loss, I am not familiar with any work in the medical literature and I have had no personal experience where an electric shock has caused any hearing damage. It is my opinion that most likely this hearing loss was not produced by the electrical shock which this patient had two years ago.”

Dr. Fulmer, on February 15, 1961, issued his report as follows:

“The positive findings in this case are the pterygiums and the early cataract of the right eye. The pterygiums are not related to Ms injury. The corrected visual acuity of 2/25+ would represent a visual loss of 3% in each eye and this is due to the astigmatism produced by the pterygiums. His difficulty in reading without glasses is due to presbyopia and is normal for a person of his age (55).

In determining the cause of the early cataract in the right eye, two factors have to be evaluated, the first factor is age and the second factor is electrical shock. Both factors can produce this type of cataract and I cannot differentiate or prove which factor is at fault. At the present time the cataract is not interfering with his vision but may very well do so within the next two to six years. I know of no way to prove whether or not the cataract is the direct result of his electrical shock or not.”

Of course, under our oft repeated rule, we are only concerned with whether there was any substantial evidence to support the findings of the Commission. We hold that Dr. Bailey’s report constitutes substantial evidence to support the finding made.

As to the alleged loss of vision, Dr. Fulmer’s report finds that pterygiums were not related to the injury, and he states that it is normal for a person of Jolly’s age to find it difficult to read without glasses. As will be noted, the report is not positive as to the cause of the cataract in the right eye, the doctor stating that this could be due to the age factor or to electrical shock. It is necessary that a claimant establish that his disability is occasioned by the injury received in the course of employment. Pruitt v. Moon, 230 Ark. 986, 328 S. W. 2d 71. Dr. Fulmer did state positively that the cataract is not presently interfering with appellant’s vision, so, of course, it could have no effect upon his present complaint. At any rate, it was within the province of the Commission to determine which factor applied. We cannot say, particularly in view of the overall report, that the Commission’s findings were not supported by substantial evidence.

Affirmed.

Johnson, J., dissents in part.

       Emphasis supplied.

       Under Act 319 of 1937: “The Commission shall award proper and equitable compensation for serious and permanent facial or head disfigurement, but not exceeding the sum of two thousand dollars ($2,000.00), provided, however, that in making such an award the Commission shall consider only the effect such disfigurement shall have on the future earning capacity of the injured employee in similar employment; and provided, further, that no such award shall be entered until 12 months after the injury.”


author: Ed. F. McFaddin, Associate Justice.

text:
    Ins. Co. of North America v. Ferrell.
    5-2585
    353 S. W. 2d 353
    Opinion delivered February 5, 1962.

      Arnold & Arnold, for appellant.

      Switser $ Switser, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal involves a cargo endorsement clause and also an insurance policy issued by the appellant, Insurance Company of North America, to appellee, S. C. Ferrell.

Ferrell was engaged in the business of moving houses, holding a permit from the Arkansas Commerce Commission as a carrier. In April, 1960, Ferrell held a policy issued to him by the appellant, hereinafter called ‘ ‘ Insurance Company, ’ ’ and attached to the policy was a cargo endorsement which will be first discussed. Ferrell contracted to move for R. M. Meeker an eight-room house from one location to another in Miller County, Arkansas. The house was transported to the new location when Ferrell claims the house was damaged by a windstorm. The Insurance Company refused Ferrell’s claim; he sued, both on the cargo endorsement and the policy; and trial resulted in a verdict and judgment for Ferrell. On this appeal the appellant urges, inter alia, the points herein discussed.

I. Ferrell’s Claim Under The Cargo Endorsement. At the outset, we dispose of the cargo endorsement. The only parties to this action were Ferrell, as plaintiff, and the Insurance Company, as defendant. Meeker was not a party. Ferrell was licensed as a common carrier by the Arkansas Commerce Commission to engage in the moving of houses. Section 73-1768 Ark. Stats, provides in part:

“No certificate or permit shall be issued to a motor carrier or remain in force, unless such carrier complies with such reasonable rules and regulations as the Commission shall prescribe governing the filing and approval of . . . policies of insurance . . . conditioned to pay . . . any final judgment recovered against such motor carrier for . . . loss or damage to the property of others.”

In accordance with its powers, the Commission required Ferrell to obtain an Arkansas Cargo Insurance Endorsement, the germane portion of which reads:

“. . . the insuring company hereby agrees to pay . . . any shipper . . . for all loss or damage to all property belonging to such shipper . . . and coming into the possession of the assured in connection with the transportation service, for which loss or damage the insured may be legally liable, . . .” (Emphasis our own.)

It will be instantly observed that this cargo endorsement was an obligation of the Insurance Company to pay “any shipper” for loss or damage for which “the insured may be legally liable.” Under this cargo endorsement, the Insurance Company did not agree to compensate Ferrell, but only to compensate the shipper, who, in this instance, was Meeker. Should the cargo endorsement be less broad than the statute requiring it, then the statutory liability would govern, but no such contention is made in this case. Ferrell,'as the carrier, had no cause of action against the Insurance Company on this cargo endorsement under the facts here shown. It was stipulated that there was damage to the house in the amount of $2,000.00; but Ferrell testified that he had not paid Meeker any amount. Ferrell did not admit liability to Meeker, and Meeker did not definitely state that Ferrell was liable to Mm. In short, Ferrell’s liability to Meeker had never been determined. Meeker might have sued Ferrell and had his liability established and then recovered from the Insurance Company under the cargo endorsement, or Meeker might have been a party to this; lawsuit and had his right of recovery judicially ascertained ; but, so far as this record shows, it has never been determined that Ferrell was liable to Meeker. Subrogation is not applicable here because Ferrell has paid nothing. Therefore, insofar as the cargo endorsement was-concerned, this action was premature on the part of Ferrell. We have found no case — and learned counsel have cited us to none — which holds that, on an endorsement like this one, the carrier has a cause of action against the insurance company, short of his liability to-the shipper being definitely determined. This endorsement is not like the one in Miami Jockey Club v. Union Assurance Society, 82 F. 2d 588, or Johnson Transfer v. American National Ins. Co., 168 Tenn. 514, 79 S. W. 2d 587, 99 A. L. R. 277. Nothing herein will prejudice the rights of Meeker to enforce his claim under the cargo-endorsement, or otherwise.

II. Ferrell’s Claim Under The Policy. Having disposed of the cargo insurance endorsement, we come to Ferrell’s attempt' to recover on the policy insuring him. The Insurance Company insured Ferrell (as assured) as follows:

(1) “COVEEAGE. On the Assured’s liability as a carrier for loss or damage caused directly by perils insured against hereunder, to lawful goods and merchandise consisting of house moving (hereinafter referred to as property).”

(2) “WHEN AND WHEEE COVEEED. Covering only while the property is in the custody of the Assured and only while contained in or on the following described motor vehicle or vehicles . . . (or) other-vehicle or vehicles . . . described herein, . . .”

(3) “CONDITIONS . . . OTHER VEHICLE CLAUSE. Wherever the term ‘vehicle’ is used in this policy it is deemed to include ‘motor truck,’ ‘tractor and semi-trailer units’ or ‘trailer.’ ”

(4) “THIS POLICY INSURES . . . The liability of the Assured as a carrier for loss or damage directly caused by: . . . Cyclone, tornado and flood (meaning rising rivers and streams).”

A. The Vehicle Issue. It will be observed that this policy covered Ferrell’s liability as a carrier for loss or damage directly caused by windstorm or tornado while the transported property was on a vehicle as defined in the policy. One of the defenses raised by the Insurance Company was that the house was not on a “vehicle” at the time of the alleged windstorm and, therefore, Ferrell was not covered under the policy. The Trial Court denied the Insurance Company’s motion for an instructed verdict on this theory, and the point is urged here. The evidence established that to move the house Ferrell placed two “I-beams” under it, elevated the house from its foundation by hydraulic jacks, placed dollies under the I-beams, attached the I-beams to a truck, and thus towed the house to the new location. It was further shown that when the house arrived near the new location it was six inches from the place desired, and it was decided to remove the dollies from under the I-beams and then roll the house and I-beams the desired six inches. The dollies had been removed but the house was still on the I-beams when the alleged windstorm damage occurred. Under these facts, the Insurance Company insists that the house was not on a “vehicle” when it was merely resting on the I-beams; that the policy coverage applies only while the cargo (i. e., the house) was on a “vehicle”; and that “vehicle” is defined in the policy as “motor truck, tractor, and semi-trailer units or trailer.”

Was there sufficient evidence from which a jury could have found that the Meeker house was on a trailer or semi-trailer at the time of the alleged windstorm? It was shown that the Insurance Company insured Ferrell as a house mover, and that the use of I-beams and dollies, as in this case, was the usual and ordinary way to move a house. An automobile is still an automobile, even when the wheels are removed; and a trailer is still a trailer when the wheels (dollies here) are removed. So if the I-beams and the dollies together constituted a trailer in moving a house, then it might reasonably be concluded by a jury that the I-beams under the house remained as a trailer, even with the dollies removed. When it issued the policy insuring Ferrell as a house mover, the Insurance Company must have known how houses were moved. If the policy was ambiguous, then it must be construed most strongly against the Company. (Morley v. McGuire, 219 Ark. 206, 242 S.W. 2d 112; and Washington Co. v. Ryburn, 228 Ark. 930, 311 S. W. 2d 302). In construing similar policies, the courts have taken a liberal view as to the coverage. See Johnson Transfer v. American National Ins. Co., 168 Tenn. 514, 79 S. W. 2d 587, 99 A. L. R. 277; and Utica Carting Co. v. World Fire Ins. Co., 277 App. Div. 483, 100 N. Y. S. 2d 941, 36 A. L. R. 2d 500; and see annotation in 36 A. L. R. 2d 506, entitled " Coverage of policy insuring motor carrier against liability for loss of or damage to shipped property.” We conclude that under all of the evidence there was sufficient ambiguity to submit the “vehicle” issue to the jury; and the Court was therefore correct in refusing the defendant’s motion for an instructed verdict on this issue.

B. The Act Of God Issue. The Insurance Company also moved for an instructed verdict on the claim that if the house was damaged by windstorm it was an Act of God and that Ferrell, as a carrier, would not be liable for an Act of God and he, therefore, could not recover under the policy. We find no merit in this argument. The Insurance Company issued a policy to Ferrell to protect him from liability from windstorm. Even if there was a windstorm that damaged the house, still, if Ferrell’s negligence concurred with the Act of God, Ferrell would be liable to the shipper. Jonesboro and L. C. Rd. Co. v. Dunavant, 117 Ark. 451, 174 S. W. 1187; and Mo. & N. A. Rd. Co. v. United Farmers, 173 Ark. 577, 292 S. W. 990. Here there was evidence of delay in moving, so the question should have gone to the jury as to whether Ferrell was liable to the shipper in this case, even if the house was damaged by a windstorm.

C. Instructions. There were errors in the instructions in this case which necessitate a reversal. On motion of the plaintiff, the Court amended and gave its Instruction No. 3, which read:

“If you find from a preponderance of the evidence in this case that the plaintiff entered into a contract with H. M. Meeker to transport a house belonging to Meeker from one place in Miller County, Arkansas, to another, and such house was insured under the provisions of the policy issued by the defendant to the plaintiff and such house was damaged by a peril, that is, a violent windstorm, insured against under the provisions of a policy while said house was in the custody of the plaintiff, Ferrell, your verdict will be for the plaintiff and against the defendant and you will assess plaintiff’s damage in the amount of $2,000.00.”

This instruction was given over the Insurance Company’s general and specific objections, which covered the points now mentioned. There were several vices in this instruction.

First: It sought to combine in one instruction the Insurance Company’s liability to Meeker as shipper (on the cargo clause previously mentioned) and also the Insurance Company’s liability to Ferrell under the policy issued to him.

Second: The policy which the Insurance Company issued to Ferrell was a liability policy rather than a policy insuring property. The damage to the house standing alone gave Ferrell no automatic right of recovery from the Insurance Company. The policy insured Ferrell against liability as a carrier and his liability had never been determined. In the case of Fidelity & Casualty Co. v. Fordyce, 64 Ark. 174, 41 S. W. 420, Judge Battle said of the assured (railway company in that case as Ferrell in the case at bar):

“In short, our conclusion in this case is that, when the amount of the liability of the railway company for damages in consequence of bodily injuries caused by the operation of its railway was determined, the Fidelity & Casualty Company became bound by its policy to pay so much thereof as does not exceed the sum it agreed to pay in such cases, . . . but that the same was not determined so long as the action therefor was pending in . . . court.”

Cases from other jurisdictions are to the same effect. See Annotation in 37 A. L. R. page 644: “Insurance against injuring property or person of third person as liability or indemnity insurance.”

The plaintiff’s Instruction No. 3 is erroneous, and the same vice occurred in plaintiff’s Instruction No. 7. In view of what we have said, it is obvious that Ferrell’s liability to Meeker must be established, but we presume that, on remand, evidence will be introduced to such effect. Other assignments need not be discussed in detail since similar situations may not occur on retrial. In view of the manner in which they were offered, we find no error in the Court’s ruling in excluding the defendant’s Exhibits Nos. 14 and 15. Neither do we find any error in the Court’s refusal to give defendant’s Instruction No. 2, or in modifying defendant’s Instruction No. 1.

The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Johnson, J., not participating.

       The full text of the Cargo Insurance Endorsement (attached to-the policy issued by the Insurance Company to Ferrell) reads:
      “The policy to which this endorsement is attached is a cargo insurance policy, and is hereby amended to assure compliance by the-assured, as a common carrier of property by motor vehicle, with Section 15, Act 367 of the Acts of Arkansas of 1941 with reference to-making compensation to shippers or consignees of all property belonging to shippers or consignees coming into the possession of such carrier in connection with its transportation service, and with the pertinent rules and regulations of the Arkansas Public Service Commission.
      “In consideration of the premium stated in the policy to which this endorsement is attached, the insuring company hereby agrees to pay, within the limits of the liability hereinunder provided, any shipper or consignee for all loss, or damage to all property belonging to such shipper or consignee, and coming into the possession of the assured in connection with the transportation service, for which loss or damage the insured may be legally liable, regardless of whether the motor vehicle, terminal, warehouse, and other facilities used in connection with the transportation of the property hereby insured, are specifically described in the policy or not. The liability of the company extends to such loss or damage, whether occurring on the route, or in the territory authorized to be served by the insured, or elsewhere within the boundaries of the State of Arkansas.
      “Within the limits of liability hereunder provided, it is further understood, or agreed that no condition, provision, stipulation, or limitation contained in the policy, or any other endorsement thereon, or violation thereof, of this endorsement by the insured shall affect in any way the right of any shipper, or consignee, or relieve the company from liability for the payment of any claim for which the insured may he held legally liable to compensate shipper or consignee, irrespective of the responsibility, or lack thereof, or insolvency or bankruptcy of the insured. However, all terms, conditions, and limitations in the policy to which this endorsement is attached are to remain in full force and effect as binding between the insured and the company. The insured agrees to reimburse the company for any payment made by the company on account of any loss or damage involving a breach of the terms, of the policy, and for any payment that the company would not have been obligated to make under the provisions of the policy, except for the agreement contained in this endorsement.

        “The liability of the company for the limits provided in this endorsement shall be a continuing one, notwithstanding any recovery hereunder.
      “The company shall not be liable for any amount in excess of the maximum shown in the policy (in no event to be less than $1,000.00) in respect to any loss/or damage to, or aggregate of loss/or damage of, or to the property herein insured accruing at any one time or place, or to loss/or damage to such property carried in any one motor vehicle, whether or not such loss or damage occurred while such property is on a vehicle, or otherwise. The minimum liability assumed under this endorsement shall be One Thousand ($1,000.00) Dollars.
      “This endorsement may not be cancelled without the cancellation of the policy to which it is attached.
      “The policy to which this endorsement is attached shall not expire, nor shall cancellation take effect until after thirty (30) days notice in writing by the company, shall have first been given to said Commission, said thirty (30) days notice to commence to run from the date notice is actually received by the Commission.”
      For cases involving somewhat similar cargo endorsements, see McIntosh V. Whieldon (S.C.), 30 S.E. 2d 851; Carolina Trans. Co. V. American Alliance Ins. Co., 214 N.C. 596, 200 S.E. 411; and William Atkin Co. v. National Liberty Ins. Co., 5 N.Y.S. 2d 863..
      Attention is also called to U.S.C.A. Tit. 49 §315, for provisions of the Federal Motor Carrier Act similar to the provisions of §73-1768 Ark. Stats,

       For general statements regarding parties and rights of action on policies see: Am. Jur. Vol. 29A, page 877, “Insurance” §1806; Apple-man on “Insurance Law and Practice” §4832 et seq. and §11771 et seq.; 41 C.J.S. page 112, “Insurance” §1191; 60 C.J.S. page 418, “Motor Vehicles” §116 (c) and §117; and see also annotation in 141 A.L.R. 628.

       Webster’s Third New International Dictionary gives this definition of “dolly”: “A platform on a roller, or on wheels or casters, used for transporting heavy objects (such as logs, girders or machines) short distances.”

       In 42 Words & Phrases 317, et seq., there are cited many cases, discussing “trailer”; and in 38 Words & Phrases 587, there are cases discussing “semi-trailer.”

         This was a liability policy as distinguished from an indemnity policy. In American Employers’ Co. v. Fordyce, 62 Ark. 562, 86 S.W. 1051, the distinction between indemnity insurance and liability insurance is clearly stated. See also Appleman on “Insurance Law and Practice” §4261.


author: George Rose Smith, J.

text:
    Ark. & Ozarks Ry. Corp. v. West.
    5-2584
    353 S. W. 2d 337
    Opinion delivered February 5, 1962.

      Virgil D. Willis, for Ark. & Ozarks Ry. Corp.; William 8. Walker and Bill Do shier, for cross-appellants, Ara R. Bailey, et al.
    No brief for appellee.
   George Rose Smith, J.

In 1960 the Arkansas '& Ozarks Railway Corporation abandoned its operations as a railroad. In 1961 the company brought this suit to quiet its title to a segment of its former right of way, 200 feet in width, lying in the town of Alpena. The former owners of the fee were named as defendants and were served by warning order, but they did not appear in the case. The suit was resisted by A. R. Bailey and others, who intervened and contended that the abandoned right of way had reverted to them as abutting owners. The chancellor dismissed both the complaint and the intervention for want of equity, and the plaintiff and the intervenors have separately appealed.

We consider first the railroad company’s appeal. The townsite of Alpena was formerly owned by George West as trustee for Allegheny Improvement Company, an Illinois corporation. On September 7, 1901, West as trustee conveyed the right of way now in question to St. Louis & North Arkansas Railroad Company, the appellant’s predecessor, with a provision in the deed that the right of way should be held by the grantee “so long as the same shall be required and used for railroad purposes and no longer.” Thus this appellant’s right of occupancy ostensibly ended when the line was abandoned in 1960.

To establish its claim to the fee the appellant filed two affidavits in which it was stated that the railroad company had been in open, notorious, and peaceable possession of the right-of-way strip for more than seven years. It was also stated that the company had paid the taxes for more than seven years and that there had been no adverse occupant of the property.

In a suit to quiet title the plaintiff has the burden of establishing its title to the land. Bullock v. Duerson, 95 Ark. 445, 129 S. W. 1083. The invalidity of the plaintiff’s title may be shown by an adverse party whose own claim to the land is void. Meyer v. Snell, 89 Ark. 298, 116 S. W. 208. These affidavits do not establish a prima facie title. The company was entitled to possession as long as the strip was used for railroad purposes. That possession, attributable to the easement, was not adverse to the fee title unless and until there was notice of a claim hostile to the fee. Terral v. Brooks, 194 Ark. 311, 108 S. W. 2d 489. Since there is no proof that the appellant ever asserted any claim other than its right to use the land for railroad purposes the chancellor correctly held that the plaintiff did not make a prima facie case.

The intervenors’ claim must also be rejected, because their land does not abut the abandoned right of way. When West as trustee platted the townsite in 1900 he dedicated River street along one side of what later became the railroad right of way and Main street along the other side. When West as trustee conveyed the strip to the railroad company in 1901 it was bounded on both sides by public streets, with no private property in between. The intervenors own various lots abutting one street or the other on the side opposite the abandoned railroad right of way.

A situation in effect identical to this one was considered in McGee v. Swearengen, 194 Ark. 735, 109 S. W. 2d 444. There a drainage district easement lay between Nance avenue on the north and a state highway on the south, just as the railroad strip lies between River and Main. Monaghan owned the fee underlying the drainage easement and also the land north of Nance avenue, just as West as trustee owned the entire Alpena townsite in 1900. Monaghan platted the land north of Nance avenue and sold it by lot and block number, just as West did in the ease at bar. We held that Monaghan’s reserved fee in the drainage property did not attach to and become a part of Nance avenue to such an extent that his conveyance of the lots on the other side of the street vested in the grantees any rights in the fee of the drainage district property. Under the rule laid down in that case the chancellor properly concluded that these intervenors have no claim to the abandoned right of way that lies across the street from their lots.

Affirmed.