author: Paul Ward, Associate Justice.

text:
    Harper v. Henry J. Kaiser Construction Co.
    5-2288
    344 S. W. 2d 856
    Opinion delivered April 3, 1961.

      Shackleford d Shackleford, for appellant.

      Mahony d Yocum, for appellee.
   Paul Ward, Associate Justice.

George L. Harper at the 'age of 45 died suddenly with a heart attack while working for the Henry J. Kaiser Construction Company (appellee) about 11 o’clock a.m. on March 18, 1958. Mrs. George L. Harper his widow filed a claim under the Arkansas Workmen’s Compensation Act to recover compensation for her husband’s death. Her claim was disallowed by the referee, the full commission and the Circuit Court. From the judgment of the Circuit Court she prosecutes this appeal for a reversal.

There is very little conflict in the lay tesitmony but there are, as often happens in a case of this kind, sharp differences in the medical testimony.

Factual Background. Harper for some time had been engaged in industrial construction, performing the duties of an iron worker. In early 1957 he sustained a heart attack and remained inactive until about the middle of that year. Thereafter he worked in Baton Rouge, Louisiana, El Dorado, Arkansas, and finally at Foreman, Arkansas, where appellee was constructing a large cement plant. Approximately 5 days prior to his death Harper was promoted to the position of foreman in charge of a crew of workers. It was his duty to supervise and direct the work of the men in his crew. It is conceded that he was a very conscientious worker and that he took seriously his job as foreman. On the morning of March 18, 1958, Harper, his stepson, Ronald Harper, and two fellow workers reported for work at the plant at approximately 8 a.m., travelling from Texarkana in a car. It had rained the preceding day and the construction area was wet and somewhat muddy. When they arrived at the construction site, Harper walked approximately 200 yards from the gate entrance to the shack where the employees changed into working clothes; he then left the shack and went approximately 350 yards to a pit where his crew, in co-operation with a crane or dragline, was engaged in lowering into position a metal pipe about 14 feet in diameter and 35 to 40 feet long. Near the middle of the morning Harper walked approximately 350 yards back to the shack to confer with his stepson thereafter returning to the pit. The assigned task was completed at about 11 a.m. when the crane was moved very slowly under its ■own power about 300 yards to a ball mill. Harper, who walked along with the crane, apparently walked to one ■side some 30 or 40 feet where he was found lying on the ground. He was dead within a few minutes after he was ■discovered.

Lay Testimony. W. L. Shoemaker, a witness for the claimant, after reiterating many of the facts above •set forth, in substance stated: I am a structural iron worker and knew Harper; I had been working with him approximately two months before his death; I was with him when he went to work on the 18th, and our job was to place the large pipe in the underground tunnel; my job was to put the chokers around the pipe in order that the crane could lift it; Harper was watching to see that we did the job right — he was directing and showing us how to put the choker on; Harper tried to do a good job and took his responsibilities as a foreman seriously. The witness further stated that the ground was muddy and it was more difficult to walk than usual. On cross-examination he stated that he did not see Harper perform any manual labor on the morning he died. Ronald Harper, the deceased’s stepson, in substance stated: We ate breakfast together on the morning of the 18th; Harper ate a good breakfast and was in good spirits — had no complaints; my father had been made a- foreman 4 or 5 days previously and he took his responsibilities seriously and was anxious to do a good job; I went to work with him on the morning of the 18th; he was supervising and I just glanced over there and saw him helping a boy put the choker around the steel pipe. Mrs. Harper stated that her husband had a heart attack in 1957; that on the weekend prior to his death he was in good spirits but felt a deep sense of responsibility for his work; he had just been a foreman for a few days and was real excited.

L. C. Jones, a witness for appellee, in substance stated: I saw Harper down there around the rig, and I saw him from time to time that morning — he was standing around like a foreman will; I didn’t pay any attention to what Harper was doing. Horace Houser, a witness for appellee, in substance stated: I knew Harper had some heart trouble as he had told me about it; the week before he died it was Harper’s job to tie reinforcement rods that go into concrete foundations but he had been made foreman 4 or 5 days before,he died; I was operating the crane on this occasion and I saw Mr. Harper there that day, and I also saw him when he was lying on the ground. G. M. Leverett, a witness for appellee, in substance stated: I am an iron worker employed by appellee, and I knew Harper; his duties as foreman were to supervise the work of his crew; it was very muddy and in places it was worse than in others, but a man going from place to place could stay in the tracks where the crane had gone; the entire area was muddy and it did require more effort on my part to walk than if it had been dry.

Medical Testimony. Dr. E. J. Munn, a witness for the claimant, in substance stated: I am a general practitioner and was acquainted with Harper. I treated him for a heart condition in March of 1957 — he had angina pectoris and high blood pressure; the reason for death as set forth in the autopsy is arteriosclerotic coronary artery disease with coronary thrombosis, which is a hardening of the arteries, probably high blood pressure and a thrombosis or clot in his coronary artery; there was a complete obstruction which cut off the blood supply; I heard the testimony of the witnesses, particularly about the outward signs of excitement and anxiety displayed by Harper, about the terrain being muddy, about the distances traversed by Harper, and about the placing of the choker around the large pipe; I believe the work and activities performed by Harper on the morning of March 18, 1958, were a contributing factor to the aggravation of the pre-existing heart condition and the resulting injury which caused his death; in my opinion his activities on that morning hastened the coronary thrombosis — the reason being the distance he walked and the softness of the earth; in my opinion Harper went beyond his limits of endurance in view of his condition/ On cross-examination he stated: I don’t know how thick the mud was but it caused extra effort to a degree; in forming an opinion I would have to know how much strain he was under and how much he lifted — it would depend on how much he exerted himself; being promoted to a foreman probably made him feel the responsibility; the promotion might have had something to do with his heart condition; it is just a natural thing for a man having responsibilities to be alert and make a little extra effort; they don’t always have to have any excitement or any exertion or any unusual exercise at all to die from heart failure — he could have died in bed. Dr. Jach M. Sheppard, a witness for claimant, in substance stated: I am a physician and surgeon; I have been present in the courtroom and heard the testimony relative to the activities of Harper on the morning he died; I understand that he had a pre-existing heart condition as related by Dr. Munn; considering all of these factors it is my opinion that the activities performed by Harper constituted a contributing factor to the aggravation of the pre-existing heart condition, and that they did accelerate or hasten the coronary thrombosis which resulted in his death; I could not say that it definitely produced the coronary thrombosis but they were a contributing cause; the heart puts out a certain amount of energy at all times, and even taking a deep breath puts a certain amount of exertion on it — people frequently die without any more exertion than that; lifting hands above the head without any strain might have caused it but the more weight he lifted the more important it would have been.

Dr. Joe B. Wharton, Jr., a witness for appellee, in substance states: I am a physician and surgeon in the general practice of medicine; this condition of the clot can form gradually or it can form suddenly, the precipitating causes are there for some time prior to the formation and thrombosis can build up over a period of time ; it does not necessarily require exertion or exercise or work for it to build up —• one can have a coronary thrombosis without any history of exertion at all and death occurs from that cause in bed or at rest; iri reviewing the whole story I don’t see how it is logical to assume that what Harper did on the morning of his death on the job could have had anything to do with his death, when he had done more strenuous activity with an already diseased heart for some months prior to that time; I do not feel that strenuous work has anything to do with the coronary thrombosis that caused Harper’s death, and I am sure that statistics will show that by far many more white collar workers have coronary thrombosis than do men who perform heavy labor, although we advise them not to do strenuous work; I believe that Harper could have had it just as logically while sitting at the breakfast table or lying in bed — the majority of cases of heart failure do not occur when a person is straining himself or when he is doing heavy physical work; I can not see how it would be logical for me to assume that in any way the physical activities had anything to do with Harper’s disease or death; we know the precipitating cause of coronary thrombosis, is that the blood vessels nearly always harden, but why they harden earlier in some people than they do in others is what we don’t know. Dr. D. E. White, a witness for appellee, in substance stated: I am considered a general practitioner; I have read the transcript of evidence taken before the Referee for the purpose of determining whether Harper’s activities had anything to do with his death, and I do not believe that his work that morning or his activities had anything to do with it; in my opinion it would be absurd for a man to be promoted to a foreman and have that bring on a heart attack; I sometimes recommend exercise treatment for my heart patients after they get over the acute stage; I advise my patients to walk; I do not believe that Harper’s activities could have accelerated or hastened the thrombosis — we have many patients that die in bed while they are asleep.

Appellant relies on two principal grounds for a reversal in this case, namely; One, the Commission erred as a matter of law, and; Two, there is no substantial evidence to support the Commission’s findings. We shall now discuss these grounds in the order mentioned.

One. The principal contention in this connection is that the Commission and the Referee placed upon the claimant the unwarranted burden of showing unusual physical exertion on the part of Harper on the morning he died. If the Commission actually did this then the cause should be reversed just as we reversed the Commission for the same reason in the case of Clark v. Ottenheimer Brothers, 229 Ark. 383, 314 S. W. 2d 497. However, a careful review of the findings by the Commission and the Referee forces us to the conclusion that appellant’s contention can not be sustained. To sustain her position appellant quotes from the Referee’s opinion the following: “It would appear from a medical standpoint herein that the doctors are all in agreement as to the heart attack being related to the work a man was doing. If there were heavy exertion expended by the deceased there might be a causal relation . . .” We find nothing in the above quotation which indicates that the Referee had any misconception of the law in this regard. We think the Referee merely meant that if Harper had been engaged in some kind of strenuous work, whether in the normal course of employment or otherwise, it would have been a circumstance to show causal connection. Any doubt as to what the Referee meant is removed by the next to the last sentence in his opinion where it is stated: “Therefore, this referee feels there is no substantial proof to show that the job deceased was doing was in any way related to the attack he suffered.” Regardless of what the Referee may have held or found this appeal is from the full Commission and not the Referee. To further sustain her contention, appellant quotes from the findings of the full Commission the following statement:

“We find that there is no proof to show that there was any unusual effort or exertion on the part of the deceased in any of his movements from place to place, or in any other actions, ... in other words, then there is no evidence to support the contention that any exertion on the part of the deceased caused or contributed to the coronary thrombosis resulting in his death.” (Emphasis supplied.)

We think the last clause in the above quotation fully explains the first part of the quotation where the word unusual is used, and it is further clarified in the last paragraph of the Commission’s opinion where it stated: “We are therefore of the opinion that the conclusion of the Referee that there is no substantial proof to show that the work deceased was engaged in was in any way related to the attack of coronary thrombosis was correct.” It is possible that there is still some confusion as to what part the word unusual plays in this kind of case. Although it is well established by our decisions, including the Ottenheimer case supra and the case of Bryant Stave & Heading Company v. White, 227 Ark. 147, 296 S. W. 2d 436, that an unusual work load (that is more than the normal work load) is not necessary to establish compensation, yet we have not said that an unusual work load or an unusual exertion was not a factor that could be considered in determining whether there was an “accident” or a causal connection. "We think it is clear then that merely because the Commission took cognizance of the fact that in this case there was no showing of any unusual effort or exertion on the part of Harper is no indication that it understood or believed that there could be no allowance of compensation unless there was a showing of some unusual effort or exertion. It is significant that in this case appellant made an effort to show that Harper did engage in some unusual effort or exertion by introducing testimony about the condition of the ground and about Harper lifting a choker as testified to by his stepson. This demonstrates conclusively that appellant sought to profit by showing unusual exertion not normally involved in Harper’s duties as a foreman. This she was entitled to do as a circumstance to show causal connection. The Commission had a right to point out the weakness of such showing. Therefore, we cannot say that the Commission erred as a matter of law.

Ttuo. We do not agree with appellant’s contention that there is no substantial evidence to support the Commission’s findings that there was no causal connection between Harper’s work and his death as a result of a heart failure. We are keenly aware of the fact that in this case, as in other cases before this court, there is a conflict, at least an apparent conflict, between the medical testimony offered by appellant and other such testimony offered by appellee. As is well established by our decisions, and as is now generally understood by all, the burden is on the claimant to show a causal connection, and also the findings of the Commission, just like a jury verdict, will be sustained if supported by substantial evidence. Perhaps no one can confidently say exactly what brings on a heart attack, or what causes a person to die from a heart attack at á certain instant, or to say just how much or what kind of physical effort contributes to or hastens a heart attack, but it is incumbent upon someone to make a decision. Under our law and procedure it is the Commission. The Commission and not this court weighs the testimony that is introduced by both sides. It is conceded by the doctors for the' appellant and the appellee in this case that persons can die of a heart attack while they are resting, walking or; sleeping. If this court is to hold that compensation is payable in every instance where a person dies in the course of his employment it would be to transform the Workmen’s Compensation Act into an insurance policy. In the case of Auto Salvage Co. v. Rogers, 232 Ark. 1013, 342 S. W. 2d 85, we noted the lack of harmony among doctors regarding the cause of heart attacks and also noted a lack of power in this court to abolish or ignore the necessity of showing a causal relation in all such cases notwithstanding the attending difficulties. Here, the Commission found there was no causal relation between the deceased’s work and his death, and we find the record as heretofore abstracted, constitutes substantial evidence to support that finding.

It follows from what we have heretofore said that the judgment of the Trial Court must be, and it is hereby, affirmed.

Affirmed.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Creswell v. Keith.
    5-2339
    344 S. W. 2d 854
    Opinion delivered April 3, 1961.

      Mitchell & Mitchell and Roger L. Murrell, for appellant.

      Nathan Schoenfeld, Spencer & Spencer, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Arch N. Creswell, filed this suit, alleging that he has invested $61,500 in Creswell-Keith Mining Trust. He also alleges that there is an Arkansas corporation known as CreswellKeith, Inc.; that this corporation is “wholly controlled by R. Neville Keith [one of the appellees] and entirely subject to his whims, wishes and uses”; that the entire concept and intent of Creswell-Keith Mining Trust was for the design and purposes of obtaining the assets of third parties and thereafter manipulating such assets for the primary and sole benefit of R. Neville Keith, Arkansas Securities Corporation and Creswell-Keith-, Inc., and not for any legitimate business trust purpose or for the appropriate profit of the respective shareholders and investors of the true money, property and capital therein. It is further alleged that in order to prevent waste and manipulation on the part of R. Neville Keith and other defendants, the court should order the appointment of a receiver and order an examination of the records, ledgers, papers, etc.; that 51% of the common shares of the mining trust, constituting 2,040,000 shares, was transferred to Creswell-Keith without consideration and that such transfer should be cancelled. The defendants demurred to the complaint and the demurrer was overruled by the trial court. There has been no cross appeal from the court’s action in that respect.

Appellees then answered, setting up the affirmative defense that appellant Keith had released appellees from all liability. The alleged release was made a part of the answer and is as follows:

“I, Arch N. Creswell, of the City of Hot Springs, County of Garland, State of Arkansas, for and in consideration of the sum of $910.00 Dollars in U. S. Currency to me in hand paid by R. Neville Keith, of the City of Hot Springs, County of Garland, State of Arkansas, paid for and in behalf of himself personally and as Trustee and on behalf of Creswell-Keith, Inc. and the Creswell-Keith Mining Trust both of Hot Springs, Arkansas, do release, remise and discharge R. Neville Keith personally, R. Neville Keith as Trustee, CreswellKeith, Inc. and the Creswell-Keith Mining Trust of and from all, and all manner of actions, judgments, executions, debts, dues, claims, and demands of every kind and nature whatsoever which against R. Neville Keith personally, R. Neville Keith as Trustee, Creswell-Keith, Inc. and the Creswell-Keith Mining Trust ever had or now have, or which I or my Heirs, executors or administrators have now or may hereafter have by any reason whatsoever.”

The answer pleading the release is not verified.

Appellant responded to the answer, alleging that the release is not in fact voluntary and that the execution of it was not freely made; that appellant did not have information as to his rights and that pertinent facts were misrepresented and concealed from the plaintiff by R. Neville Keith; that there was no substantial consideration for the release and at the time of the alleged execution of the release appellant was acting under duress. The response was verified. Without taking any testimony the court held that the release was a complete defense to the suit filed by appellant, and dismissed the canse. The court said: “I am going to hold that there is a release of voluntary nature, and the case will be dismissed.” Creswell has appealed from the order of dismissal.

There are several allegations in the response filed by Creswell that if true would render the release ineffective. Lack of consideration, misrepresentation amounting to fraud, and also duress may be shown to set aside a release, and these are questions of fact. Perkins Oil Co. of Delaware v. Fitzgerald, 197 Ark. 14, 121 S. W. 2d 877; Wilson v. Southwest Casualty Ins. Co., 228 Ark. 59, 305 S. W. 2d 677; Mo. Pac. Transportation Co. v. Robinson, 191 Ark. 428, 86 S. W. 2d 913.

Reversed.


author: Jim Johnson, Associate Justice.

text:
    Hanna v. Johnson.
    5-2308
    344 S. W. 2d 846
    Opinion delivered April 3, 1961.

      ■Bernard Whetstone, for appellant.

      Shackleford & Shackleford, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a decree denying appellant, Naomi Hanna, the widow-beneficiary, damages against an organized brotherhood, (Teamsters Union), its secretary-treasurer-business agent, appellee E. F. Johnson, the assistant secretary-treasurer-business agent, appellee W. M. Hayes, and her late husband’s employer, appellee Gibbon Petroleum Transport, (hereinafter called Gibbon), for failure to procure life and accident insurance benefits and to pay and/or see that the premiums were paid thereon.

The deceased, S. H. Hanna, was a truck driver and went to work for Gibbon’s Petroleum Transport, one of the appellees, in September 1955. At that time he did not belong to the Brotherhood. Apparently Gibbon began paying $2.25 a week insurance premiums to the Union insurance company on Hanna 30 days after his employment in accordance with a contract Gibbon had with the Brotherhood.

On January 19, 1956, Hanna signed a written application at the office of his employer, Gibbon, for a group policy with Equitable Assurance Society of the U. S., which application authorized the deduction of $4.63 per month insurance premiums from his pay check. Gibbon’s employee testified that Gibbon added another $7.35 to this to make a total premium for $2,000 coverage for natural death or $4,000 for accidental death. Although signed January 19, 1956, the Equitable policy took effect December 14, 1955. The $4.63 per month was deducted from Hanna’s check up to the time of his accidental death,. August 7, 1956.

In March of 1956, Hanna, having formerly been a member of the Brotherhood (Teamsters Union) prior to his employment with Gibbon, applied for reinstatement in the Union. Hanna’s reinstatement was accepted at a Union meeting held in El Dorado on March 18, 1956. Appellee Hayes conducted. the meeting and as a procedure for making application for Union membership certain forms were to be completed. During the meeting appellee Hayes notified the men present, including Hanna, that there were two insurance plans in effect for employees of Gibbon; one being the Union plan and the other Gibson’s plan, but only coverage under one plan was permissible. The applications signed at the meeting were processed and as a result Hanna was issued a certificate by the insurance company under the Union policy. However, Hanna, at the time he applied for the Union plan, was covered under the employer’s policy. As stated above, the employer’s policy premiums were paid part by the employee out of payroll deductions and the balance by Gibbon. The Union policy premiums were paid by Gibbon. It was a policy of management which prevented a single employee from coverage under both policies because of the prohibitive cost to the employer. It was required by Gibbon that an employee desiring to go from one insurance plan to another notify the personnel office at his home terminal of such election or change and a form was completed in this connection.

Although Hanna was issued a certificate under the Union plan, he never advised the personnel office of Gibbon to transfer him from the employer’s plan back to the Union plan and as a result no premiums were paid on the Union policy subsequent to 1955. The employer’s plan continued with Hanna paying a share of the premiums and Gibbon paying the greater part. On August 11,1956, Hanna was killed and his wife-beneficiary, appellant herein, was paid under the employer’s policy the sum of $4,000.

After Hanna’s death, appellant was contacted by appellee business agent who offered her every assistance. Sometime later Hayes contacted her in person in El Dorado (from Shreveport) and took, her insurance certificates and part of proof of death in support of claim and instructed her as to forwarding balance of proof to him. Upon receipt of' all proofs in support of claim, appellee Hayes forwarded them to Union insurance company which, after some delay, denied liability on grounds that premiums had not been paid.

Gibbon had a system of bookkeeping which included a form prepared once a month listing the names and amounts of insurance premiums he was paying direct to Union insurance company, copy of said form being furnished to the business agents. Hanna’s name was omitted.

When the Union Insurance Company refused to pay appellant, she filed in the United States District Court for the Western District of Arkansas, El Dorado Division, for the $5,250 plus penalty and attorney’s fees. Appellee Johnson and one of Gibbon’s employees in that case testified to the fact, and the Court found, that the issuance and deliverance of the insurance certificate was a mistake. The trial court directed a verdict against appellant on the basis that the evidence conclusively showed that Gibbon paid no premiums on behalf of Hanna to the Union Insurance Company subsequent to 1955, resulting in the group policy being lapsed as to Hanna for non-payment of premiums prior to Hanna’s death on August 11, 1956. This ruling was affirmed by the United States Circuit Court of Appeals. Hanna v. Insurance Co., 260 Fed. 2d 244.

Appellant then instituted this present suit against the Brotherhood, the business agent and assistant business agent personally and individually, and the employer, alleging that there existed an oral agreement between her deceased husband and appellees whereby the former would be insured under the Union plan, this oral agreement having been made at the Union meeting in March 1956. She further alleged that appellees, Hayes and Johnson, were responsible under the oral agreement to secure the Union plan coverage for Hanna. By virtue of the denial of coverage under the Union policy in the Federal Court, appellant brought this action urging appellees had breached the oral agreement to procure the Union coverage and she would be entitled to recover as against them the amount of the coverage under the Union plan, $2,500 for life insurance and $2,700 for accidental death, or a total of $5,250. In addition, appellant states she should also he entitled to recover her expenses of the Federal Court litigation. Appellant seeks to recover in this action the total sum of $10,000 from appellees.

Appellant also alleged that Gibbon was the principal of appellees, Hayes and Johnson, and as a result of this relationship she is entitled to recover against all the appellees, either jointly or severally, the sum of $10,000 as her damages for breach of the alleged oral agreement.

Appellees have denied the existence of an oral agreement to procure insurance and contended there was no duty upon them to secure insurance coverage for Hanna under the Union plan.

Appellant filed certain interrogatories addressed to each of defendants (appellees) and the trial court quashed them all over appellant’s objection.

The court dismissed as to the brotherhood on the ground that it couldn’t be sued and after a full hearing found the evidence insufficient to support a judgment in favor of appellants. Hence, this appeal.

There is no contention here that the trial court erred in the dismissal as to the Brotherhood. However, for reversal appellant does masterfully argue seven points, six of which, in effect, question the sufficiency of the evidence. The remaining point is a contention that the trial court erred in quashing the interrogatories propounded to the appellees.

INTERROGATORIES

The record reveals that appellant propounded 14 interrogatories to the appellees. Exactly the same interrogatories were propounded to each. Interrogatories 3 through 10 are as follows:

“3. Tell everything you know with reference to the allegations contained in paragraph (6) of Plaintiff’s Complaint.

“4. Tell everything you know with reference to the allegations contained in paragraph (7) of Plaintiff’s Complaint.

“5. Tell everything you know with reference to the allegations contained in paragraph (8) of Plaintiff’s Complaint.

“6. Tell everything you know with reference to the allegations contained in paragraph (9) of Plaintiff’s Complaint.

“7. Tell everything you know with reference to the allegations contained in paragraph (10) of Plaintiff’s Complaint.

“8. Tell everything you know with reference to the allegations contained in paragraph (11) of Plaintiff’s Complaint.

“9. Tell everything you know with reference to the allegations contained in paragraph (14) of Plaintiff’s Complaint.

“10. Tell everything you- know with reference to the allegations contained in paragraph (15) of Plaintiff’s Complaint. ’ ’

Appellees filed a motion to quash the interrogatories on the grounds that, “the interrogatories are irrelevant and immaterial and do not seek such information as is contemplated by Section 28-355 of the 1947 Statutes Annotated of Arkansas, and that such interrogatories are not reasonably calculated to lead to the discovery of admissible evidence, and further that they would not be of any benefit to the appellant in the discovery of witnesses or any other information that would be of benefit to her and further that the interrogatories are annoying, embarrassing and oppressive and would require unreasonable and unwarranted time and expense.”

The trial court after a hearing granted the motion to quash.

Appellant argnes inter alia that if this Court should hold that she is entitled to no relief by virtue of the trial court’s granting of the motion to quash that the effect of such holding would be to nullify the discovery statute relating to interrogatories.

Although this particular question has not previously been presented to this Court and since the Arkansas Discovery Statutes are taken from the Federal Rules of Procedure, we find ample authority from the Federal Courts to sustain the action of the trial court.

In Newell v. Phillips Petroleum, 144 F. 2d 338, the Court said:

“. . . The federal rules authorizing any party to propound interrogatories to an adverse party should be accorded a liberal interpretation, but the District Court is vested with reasonable discretion in determining whether a party is entitled to have interrogatories answered, and its action will not be disturbed except in case of abuse of discretion.”

Where interrogatories appeared to be immaterial, some cumulative, some onerous, and some unreasonably burdensome, the Court did not abuse its discretion in sustaining objections.

In U. S. v. Matles, 19 F.R.D. 319, the Court agreed that the rule must be applied with discretion. In that cause the defendant alleged that he would be handicapped in preparation for trial if his interrogatories were, not answered. In response, the Court stated:

“. . . Moreover,, it must be noted that this is a non-jury action, and the trial Judge will have the power, when the Grovernment witnesses are examined at the trial, to grant such adjournment as he may deem fit and proper on a substantial showing by the defendant of the necessity for his so doing. . .”

This cause was tried before the Chancellor and if .appellant believed she needed additional information it would have been entirely in order to request additional time from the Court.

Certainly it cannot be said that to answer interrogatories 3 through 10 as set out above would not be “unreasonably burdensome”. In our view, the Arkansas Discovery Statutes were never intended to require a party answering interrogatories to write a complete essay relative to all of the allegations contained in a complaint. In the case at bar, after looking at the case as a whole, we find that all the interrogatories propounded to the parties had theretofore been fully answered in the proceedings in Federal Court and those interrogatories could hardly be calculated to lead to discovery of matters that were not already known. Therefore, we conclude that there was no abuse of the Court’s discretion in quashing the appellant’s interrogatories.

SUFFICIENCY OF THE EVIDENCE

In order for appellant to establish her case it was necessary for her to prove by a preponderance of the evidence the existence of an oral agreement between the appellees, Hayes and Johnson, to secure for her deceased husband coverage under the Union plan. J. H. Magill Lumber Co. v. Lane-White Lumber Co., 90 Ark. 426, 119 S. W. 822; Williams v. Chicago, Rock Island & Pacific Railway, 109 Ark. 82, 158 S. W. 967. In this case the appellant urges the existence of an oral agreement and it was incumbent upon her to prove such agreement was a valid one. Stooksberry v. Pigg, 172 Ark. 763, 290 S. W. 355.

Since this is obviously a question of fact, it was necessary that the appellant show by a preponderance of the evidence the existence of such parol agreement, a breach and damages.

A Court cannot make a contract for the parties but can only construe and enforce the contract which they have made, and if there is no meeting of the minds there is no contract. Irvin v. Brown Paper Co., 52 F. Supp. 43, rev’d., 146 F. 2d 232. It is well settled that in order to make a contract there must be a meeting of the minds as to all terms. Dodson v. Wade, 193 Ark. 534, 101 S. W. 2d 182; Gatling v. Goodgame, 209 Ark. 867, 192 S. W. 2d 878.

With these cardinal principles of law as set out above to guide us as to the test appellant was required to meet, and after carefully reviewing the record in its entirety, we have no choice but to find that the decree of the Chancellor holding that appellant failed to meet the test was not against the weight of the evidence.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Stephens v. Smith.
    5-2341
    345 S. W. 2d 10
    Opinion delivered April 10, 1961.

      O. E. Gates, for appellant.

      Boyce B. Love, for appellee.
   Carleton Harris, Chief Justice.

On September 20, 1954, appellees, Terrell (Bunk) Smith, and A. B. Good-game, entered into an agreement with appellant, Sam Stephens, of Monticello, d/b/a Stephens Pontiac & Equipment Company, to purchase a mechanical cotton picker, for the price of $8,517. As purchasers, they executed a conditional sales contract agreeing to pay for the picker as follows:

Cash with Order $ 100.00
Cash on Delivery 3.081.00
Installment Note, 12-1-54 1.231.00
Installment Note, 10-15-55 1.652.00
Installment Note, 12-1-55 2.463.00

The $100 in cash was paid, and a down payment note was given for the $3,081. This note bore the notation at the bottom of the left hand corner, “to be paid out of picking”, followed by another notation, just beneath, “subject to renewal”. Admittedly, $807 was paid on the down payment note through monies received from picking. This constituted the total payment made, and suit was subsequently instituted by appellant to enforce payment on the down payment note. On hearing, the court, sitting as a jury, entered judgment for appellees. From such judgment, comes this appeal.

We are only concerned with whether there was substantial evidence to support the judgment of the trial court. All parties agree that appellees were to pay $25 out of each bale of cotton picked by the machine on the down payment note. Appellees contend that their liability was limited to the $25 per bale for each bale picked, and that the picker was retaken by appellant, thereby preventing appellees from picking any additional cotton with the machine. Appellant contends the parties agreed that if the $25 payments from each bale were not sufficient to discharge the indebtedness due on this note, the note would be renewed, and he asserts that he did not repossess the picker. As to the renewal notation, appellees assert that this notation was placed there for their protection. As stated by Goodgame:

“The first words, 'To be paid out of picking’ to me meant, and to Mr. Stephens at the time that I entered into this agreement to buy the picker, was that for every bale of cotton we picked, $25.00,1 assumed we were going to be picking for $2.00 a hundred, and $25.00 was to be given to Mr. Stephens as against this note up until the time it was paid off, and subject to renewal written underneath was placed there when, as I at the time thought, about the fact that we might pick $2,000.00 worth of cotton and not $4,000.00 worth, inasmuch as I was working hauling cotton and so forth, I didn’t want to pay say half of the note and then lose all of my work, my equity in the picker, because it was not full satisfaction, so that is the reason it was subject to renewal. That meant if we didn’t pick enough cotton that year as long as we paid $25.00 against the note for all we did pick, then we were to have more time and nothing was to have been billed according to our agreement except what the picker earned — no cash was involved because at the time I had no cash to put in.”

Stephens’ testimony is not clear on the point of whether he expected the notes to be paid by appellees with additional monies other than that gained from picking.

The arrangement between appellant and appellees is a little ont of the ordinary, but we agree with the trial court that the parties had the right to make the agreement relative to the manner of the payment of the note. See Toulmin & Toulmin v. Underwood, 172 Ark. 813, 290 S. W. 377. Likewise, in 7 American Jurisprudence, § 49, p. 815, we find:

“The cardinal rule of construction is to ascertain the intention of the parties. * * * The contract primarily must be collected from the four corners of the document, and no part of what appears there is to be excluded. In expounding any agreement, however, the court must consider the subject matter; the object of making it; the sense in which the parties mutually understood it at the time it was made; and the place where it was entered into.”

Further, § 53, p. 816:

“It is a general rule, well supported by authority, that marginal notations or memoranda, placed on a bill or note at the time of the execution thereof with the intention of making them a part of the contract, constitute a part of the contract, and must be construed with the body of the instrument to arrive at the true agreement existing between the parties.”

We conclude there was substantial evidence to support the finding that the picker was to be paid for only from the proceeds of bales picked, at the rate of $25.00 per bale.

Relative to the repossession of the picker, the evidence was conflicting. Appellant first testified that he did not pick np the machine, hut that appellees drove it to his place in Monticello; however, Stephens subsequently testified that he took possession of the machine in January, 1955; that it was taken to his shop at Dumas for replacement of parts and reconditioning for further picking by appellees, but that they did not pick up the machine. “I drove it off, drove it in for repairs — -I didn’t drive it in for the purpose of repossessing it as stated before in my testimony.” Goodgame denied that he took the machine in, and stated that it was picked up by “some man, I assume out of Mr. Stephens’ office”; that he was in the Veterans Hospital in Little Rock at the time, and on returning home, found that the picker was no longer there. Smith knew nothing about the repossession except what he had been told by Goodgame. Mrs. Goodgame testified that the cotton picker was repossessed by one of Mr. Stephens’ employees, who told her that he was appellant’s brother; that the latter came to her place of employment and obtained the key to the machine. She stated that she gave him the key and told him where the picker was located, and when she returned home from work, the picker was gone. The court found that:

“The testimony on the part of the plaintiff showed that he took the cottonpicker back about the 7th day of January, 1955. This he had a right to do since the $1,231.00 installment due 12-1-54 (included in the $4,312.00 note) was not paid.

‘ ‘ The plaintiff took the picker and by his actions, the defendant was prevented from picking cotton the following season and paying the note in the manner specified, and for this reason the plaintiff does not have a cause of action against the defendant for the past due amount on the down .payment note.”

We are unable to say that this finding was not supported by substantial evidence.

Affirmed.

       Actually, the note was for $4,312, including the note due December 1, 1954, for $1,231, which was a part of the installment paymerat.

       From the testimony: “Now, Mr. Stephens, that was to be paid out of picking', this notation on here, I notice, it is in typewritten letters, as the rest of the note is, which evidently was put on there by someone in your office, is that true? A. Yes. Q. That meant that $26.00 out of every bale picked with this picker was to be applied against this note, is that correct? I believe that is what you testified? A. Yes. Q. What happened if no cotton was picked? Was there any agreement on that originally? Suppose the thing broke down and could not pick any cotton? A. Well, it states on the note we would renew the note. Q. I want to ask you about that. As far as any agreement you all had, wasn’t that the complete agreement, the $25.00 out of every bale was to be applied against this thing and that was the way it was to be paid? A. Not necessarily. The note was due December 1st — -all picked before that was supposed to be applied on the note. I couldn’t say that is all we were expecting to get on it. Q. But you say this thing is executed in September, I guess they commenced cotton picking about that time did they not? A. Yes. Q. The cotton picking season would be over within a couple of months — you knew they were not picking enough cotton to pay this by December 1st, did you not? Was it possible for them to pick enough cotton to pay for it by December 1st? A. Well, I couldn’t answer that exactly. I think it was, but I wouldn’t say about that. Q. There is a slight possibility of it? A. How they were going to pay the rest of it, I don't know.”


author: Ed P. McPaddin, Associate Justice.

text:
    Brown v. Brown.
    5-2353
    345 S. W. 2d 27
    Opinion delivered April 10, 1961.

      John E. Coates, for appellant.

      Langston & Walker, for appellee.
   Ed P. McPaddin, Associate Justice.

This is a case in which neither side is entirely satisfied with the decree rendered by the Chancery Court. The decree covered several points. Mrs. Beadle appeals from some of these; and Mr. Brown cross-appeals from others. We will list the points and discuss them after giving the facts leading up to the. decree here challenged.

Appellant (now Mrs. Beadle) and appellee (Mr. Brown) were married in 1929, had a family of four children, and accumulated considerable property which they held as tenants by the entirety. The Browns separated in 1942, and a divorce decree was rendered by the Pulasld Chancery Court on October 29, 1942, which (a) awarded the wife an absolute divorce; (b) gave each parent part time custody of the children, then from twelve to five years in ages; (c) required the parent having the custody of the children to provide all support during such time; (d) awarded one house to the wife and another house to the husband; (e) awarded the wife $2,775.00 in cash; and (f) contained the following quoted language:

“It is further considered, adjudged and decreed that these parties have real property which stands in the name of Lilly Brown and W. L. Brown as husband and wife and that this property constitutes an estate by the entirety; this property is to remain an estate by the entiretjr but the rents shall be collected by either, or both of these parties and shall be divided 50/50 between them; . . . It is further adjudged and decreed that these parties have real property in the name or names of their minor children; that these parties shall collect the rents from said property and shall divide same 50/50 between them. ’ ’

After the divorce decree the parties continued in a friendly business relationship, and prosecuted their joint claim against the Government for compensation for property which the United States had appropriated. In October 1942, from a part of the proceeds received from the Government, the erstwhile spouses purchased some property, with the grantees being named, “W. L. Brown and Lillie G. Brown, his wife.” We refer to this as “the Kinney property.” ■

The divorced wife married Mr. Beadle and moved to New Mexico in 1945. The divorced husband also remarried. Mrs. Beadle and Mr. Brown mutually agreed that certain portions of the said decree of October 29, 1942, should be changed; so on December 17, 1945, they jointly obtained a consent decree from the Pulaski Chancery Court which modified the 1942 decree in the following particulars:

(a) The full control of all the entirety property was delivered to W. L. Brown, who, “. . . shall collect the rents, pay the taxes, make all necessary needed repairs, and shall have the right to make improvements and additions to said property if he so desires, and that he shall pay on the 15th day of January, 1946, the sum of $100. and shall pay upon the 15th day of each month thereafter the sum of $100. to Lillie Brown through the registry of Pulaski Chancery Court, which shall be in full payment of Lillie Brown’s portion in the income or receipts of said property and this $100. per month shall be paid permanently, or so long as W. L. Brown is in possession and has the use and occupancy of said property.”

(b) Mrs. Beadle received $700.00 as her part of the rents from the entirety property collected prior to December 17, 1945.

(c) Mrs. Beadle was to receive the further sum of $2,500.00 from the United States Government, “. . . in full settlement of the said Lillie Brown’s interest in and to said judgment.”

(d) Mr. W. L. Brown was “. . . given care, custody and control of the said children with the requirement that he maintain and support and educate them without any contribution on the part of the mother, Lillie Brown, outside of that contribution which she is herein and hereby making by agreement to accept $100.00 per month for her interest in the proceeds and earnings of said property in the future; . . .”

No further court proceedings occurred until May 17, 1960, when Mrs. Beadle filed a petition in the Pulaski 'Chancery Court seeking a modification of the 1945 decree. She claimed:

(1) That W. L. Brown had violated the 1945 decree in failing to support the minor son, W. L. Brown, Jr.; that she had expended $250.00 for snch support; and she prayed judgment for that amount and attorney’s fee.

(2) That W. L. Brown had obtained a deed to himself as the sole grantee from their son, Larry Leroy Brown (then of full age), covering some property referred to in the 1942 decree as property, the title to which stood in the name of the minor son of the parties; that the 1942 decree recognized this as entirety property, and the deed from Larry Leroy Brown to W. L. Brown should be reformed by the Court to show the title to be held by entirety.

(3) That the Court should order a partition of all of the entirety property or should reapportion the distribution of the rents.

Mr. Brown resisted Mrs. Beadle’s petition in all matters and also cross-complained, seeking to have the “Kinney deed” reformed to entirely exclude the name of Mrs. Brown (Beadle) as grantee. With all issues joined, the matters proceeded to trial, which resulted in a decree of the Pulaski Chancery Court of September 27, 1960, which covered several points — as first mentioned— and which we will now list and discuss.

I.

Mrs. Beadle was given judgment against Mr. Brown for $250.00 as the amount she had expended to support the boy, W. L. Brown, Jr., during the time he was still a minor; and from this judgment Mr. Brown cross-appeals. Without reciting the evidence in detail, we conclude that the Trial Court was correct in this award. In the 1945 decree, Mr. Brown had agreed to support the children during their minority. Mr. Brown breached that agreement, during the last five months of the minority of W. L. Brown, Jr. Our cases hold that the father is under a legal obligation to support his minor children. McCall v. McCall, 205 Ark. 1123, 172 S. W. 2d 677; Worthington v. Worthington, 207 Ark. 185, 179 S. W. 2d 648. Our cases also hold that this obligation can be enforced against the father unless barred by the five year statute of limitations. Brun v. Rembert, 227 Ark. 241, 297 S. W. 2d 940; Wilson v. Wilson, 231 Ark. 416, 329 S. W. 2d 557. W. L. Brown, Jr. became 21 years of age on November 7, 1958; so the cause of action was not barred when the petition was filed by Mrs. Beadle on May 17, 1960. The evidence sustains the amount awarded and the Chancery Decree is affirmed on this point.

II.

The Chancery Court awarded Mrs. Beadle’s attorney a fee of $100.00 for his services; and, on appeal, Mrs. Beadle’s attorney asked for an additional fee in this Court, since Mr. Brown has cross-appealed from the judgment allowing $100.00 as fee. The Chancery Court was correct in allowing this fee. Mr. Brown had agreed in the 1945 decree to support the children and had failed to carry out that agreement as regards W. L. Brown, Jr. Mrs. Beadle, as the mother of the boy, paid for his support during the last five months of his minority. She was entitled to recover from Mr. Brown for the amount which she paid out, and also she was entitled to a reasonable attorney’s fee for being compelled to pursue the matter. We have frequently allowed attorneys’ fees to a parent who sues to recover support money payments. Waller v. Waller, 220 Ark. 19, 245 S. W. 2d 814; Brun v. Rembert, 227 Ark. 241, 297 S. W. 2d 940; Wilson v. Wilson, 231 Ark. 416, 329 S. W. 2d 557. Since Mr. Brown cross-appealed the ruling to this Court, Mrs. Beadle has been obliged to have representation; and an additional fee of $100.00 is allowed in this Court. This makes a total of $200.00 adjudged against Mr. Brown. It is understood that this fee is only for that portion of the case that relates to the support money for the child and has no application to the other issues on this appeal.

III.

As heretofore recited, Mr. Brown obtained a deed in 1954 from his son, Larry Leroy Brown, who had then become of age, and this deed covered property which had been referred to in the 1942 decree as being property that the parties (Mrs. Beadle and Mr. Brown) owned by entirety in the name of their minor children. The Chancery Court reformed the 1954 deed from Larry Leroy Brown to W. L. Brown so as to have Mrs. Beadle and Mr. Brown continue to own the said property as tenants by the entirety; and on this point Mr. Brown has cross-appealed. The 1942 decree recited:

“It is further adjudged and decreed that these parties have real property in the name or names of their minor children; that these parties shall collect the rents from said property and shall divide same 50/50 between them . . .”

The 1945 decree did not divest Mrs. Beadle of her entirety interest in this property. Larry Leroy Brown continued to be the trustee for his mother and father; and when Mr. Brown took the deed from Larry Leroy Brown in 1954, he knew that Larry Leroy Brown was trustee for him and Mrs. Beadle as tenants by the entirety, and that by omitting her name from the deed he could not divest her entirety interest as he attempted. His feeble claim in the present case is that the property was his own and that her name should not have been included in the first instance. The 1942 decree precludes any such claim. The Chancery Court was correct in restoring this property to the entirety estate.

IV.

In 1944, and after the divorce, Mr. Brown and Mrs. Beadle acquired some property from W. E. Kinney and wife, and the grantees in that deed were, “W. L. Brown and Lillie G. Brown, his wife.” The Chancery Court allowed Mr. Brown to testify that he personally paid all the consideration for the Kinney deed and that Mrs. Brown’s name was included by mistake. On such testimony, the Chancery Court decreed that Mr. Brown was the sole owner of the said Kinney property; and from such decree Mrs. Beadle has appealed. We hold that the Chancery Court was in error in regard to the Kinney property. Mr. and Mrs. Brown own the Kinney property as tenants in common. The deed recited that they owned the property as husband and wife, but since they were divorced the words, “his wife,” must be construed to mean, “his former wife.” At all events, Mrs. Lilly Brown (now Beadle) was a grantee; and in 1945, when the amendatory decree was entered, nothing was said about the Kinney property being owned other than by Mr. Brown and Mrs. Beadle. When Mr. Brown failed to make this claim in the 1945 decree, he waived it; and we hold that Mr. Brown and Mrs. Beadle own the Kinney property as tenants in common.

V.

The Chancery Court directed Mr. Brown to forthwith, “. . . procure adequate fire insurance coverage on said entireties to protect the parties’ interest in said property . . .”; and, as against that portion of the decree, Mr. Brown has cross-appealed. This has given us considerable concern and is not free of doubt; but we have concluded that, under the peculiar conditions here existing, Mr. Brown should not be required to maintain insurance coverage if he does not so desire.

Under the original 1942 decree, the parties retained equal control of the entirety estate and divided the rents equally. Under that decree, either party could have effected reasonable insurance coverage and charged the premiums against the income; but there is nothing in the record to show that Mrs. Beadle ever had any insurance on the entirety property. If insurance had existed prior to the 1945 decree, then insurance should have been continued; but there is no showing that Mrs. Beadle carried any insurance on the property when she was herself in equal control of it.

The 1945 decree allows Mr. Brown to . . collect the rents, pay the taxes, make all necessary needed repairs, and shall have the right to make improvements and additions to said property if he so desires. . . ” There is nothing in the 1945 decree that obligates Mr. Brown to have insurance ceverage. If Mrs. Beadle had wanted to have the property insured, she should have made some provision for such insurance before she agreed to the 1945 decree. Mr. Brown is a tenant by entirety and also has the right of exclusive possession under the 1945 decree. His status is thus somewhat similar to that of a life tenant; and we said in Jackson v. Jackson, 211 Ark. 547, 201 S. W. 2d 218:

“In the absence of anything that requires it in the instrument creating the estate, or of any agreement to that effect on the part of the life tenant, we think that the life tenant is not bound to keep the premises insured for the benefit of the remainderman. Each can insure his own interest, but, in the absence of any stipulation or agreement, neither has any claim upon the proceeds ■of the other’s policy, any more than in the case of Mortgagor and mortgagee, or lessor and lessee, or vendor and vendee. . .”

Mr. Brown testified that the insurance rates were ■extremely high. It was shown that one building had been destroyed by fire and replaced by a new building. Mr. Brown testified, without contradiction, that he had spent •$30,000.00 on improvements and buildings on the prop■erty, and certainly the value has increased considerably. In view of all we have recited, wfe think Mrs. Beadle has waited too long to now assert the claim that Mr. Brown should insure the property for her benefit. As a tenant by the entirety she has an insurable interest, but she cannot now require Mr. Brown to carry insurance for her benefit in view of the conditions prior to the 1945 decree and the language contained in that decree. Therefore, that portion of the Chancery Decree, requiring Mr. Brown to carry insurance, is reversed and set aside.

VI.

Mrs. Beadle asked the Chancery Court to partition the entirety property; and she appeals from that portion of the decree which refused her the prayed relief. She asserted two grounds for partition. First, she claimed that Mr. Brown was committing waste of the property; but the evidence entirely failed to support her claim of waste. Even if waste would require a partition of entirety property — a point we need not decide— the proffered evidence is insufficient to show waste.

The second ground asserted for partition was the wording of Section 34-1801 Ark. Stats., the germane portion of which, with amendments, reads:

“Any persons having any interest in and desiring a division of land held in joint tenancy, in common, as assigned or unassigned dower, as assigned or unassigned curtesy, or in coparceny, absolutely or subject to the life estate of another, or otherwise, or under an estate by the entirety where said owners shall have been divorced either prior or subsequent to the passage of this Act, except where the property involved shall be a homestead and occupied by either of said divorced persons, shall file in the circuit or chancery court a written petition. . .”

Mrs. Beadle concedes that all of the entirety property here involved was acquired prior to the effective date of Act 340 of 1947, and that our holding in Jenkins v. Jenkins, 219 Ark. 210, 242 S. W. 2d 124, 27 A.L.R. 2d 861, prevents a division of the entirety property under Act No. 340 of 1947, which is now § 34-1215, Ark. Stats. But Mrs. Beadle urges that her right to obtain partition under § 34-1801, Ark. Stats. is entirely distinct from her inability to obtain division of the entirety estate under ■§ 34-1215, Ark. Stats. We are unable to agree with Mrs. Beadle’s arguments. Prior to the Act No. 161 of 1947, the section that is now § 34-1801 Ark. Stats, was § 10509 Pope’s Digest; and the germane portion of that section read: “Any person desiring a division of land held in joint tenancy, in common or in coparceny shall file in the •circuit court a written petition. . .’’It was not until 1947 that the Legislature, by Act No. 161 of 1947, first mentioned entirety estates as subject to partition.

The case of Jenkins v. Jenkins, supra, held that previously vested entirety estates could not be divested by subsequent legislation; and the same reasoning and .authorities cited in Jenkins v. Jenkins, as regards Act No. 340 of 1947, must apply also with equal force to Act No. 161 of 1947. In other words, if an entirety estate •created prior to 1947 could not be divided against the wishes of one tenant in the divorce proceedings, the entirety estate could not be partitioned against the wishes of one tenant in a partition proceeding. To hold •otherwise would be to allow a dissatisfied spouse, .against the objection of the other spouse, to accomplish in two suits what was forbidden in one suit. That is to •say, there could first be a divorce, leaving unimpaired .an entirety estate created prior to 1947; and then in a subsequent partition suit under Act No. 161 of 1947, one tenant could obtain a partition of the entirety estate against the wishes of the other tenant.

We conclude that the Act No. 161 of 1947, just as Act No. 340 of 1947, operates prospectively as regards entirety estates and cannot affect those created prior to the effective date of the Act. Tenants by the entirety can mutually agree to the division or partition of the property; but one tenant by the entirety cannot force partition against the wish of the other tenant if the estate came into existence prior to the effective date of Act No. 161 of 1947. The Chancery Court was correct in refusing partition of the entirety estate.

CONCLUSION

The Chancery decree is affirmed in part and reversed in part and the cause remanded to reinvest the Chancery Court with jurisdiction to enter a decree in accordance with this opinion. A partition of the Kinney property may be had if desired by either party. This being a Chancery Decree and being affirmed in part and reversed in part, we are privileged to adjudge the costs as seem equitable to us; and so we adjudge the costs of all courts to date against Mr. Brown.

       Of interest is the annotation in 69 A.L.R. 2d 203, particularly the section on page 244, et seq., entitled, “Procedural matters.”

       In Hayes v. Gordon, 217 Ark. 18, 228 S.W. 2d 464, there was an unsuccessful attempt by a husband to defeat his wife’s entirety estate by means of acquiring quitclaim deeds.

       The Jackson case is cited with approval in Coleman v. Gardner, 231 Ark. 521, 330 S.W. 2d 954. An informative case on insurance of entirety property is Conley v. Fidelity-Phenix Fire Ins. Co. (U.S.D.C. Ark.), 102 F. Supp. 474.

      This concerns all of the realty except the Kinney property discussed in Topic IV supra. The Kinney property is held by tenancy in common; and is in no way concerned with the entirety property now being considered in this Topic V.

       The language as to dower and courtesy was added by Act No. 324 of 1957 after our holding in Monroe v. Monroe, 226 Ark. 805, 294 S.W. 2d 338.

       Emphasis supplied to show the language contained in Act No. 161 of 1947.

       Section 34-1801, Ark. Stats, has been amended many times, the last amendment being- Act No. 324 of 1957.

       In the case of Jenkins v. Jenkins has been followed in these cases: Meadows v. Costoff, 221 Ark. 561, 254 S.W. 2d 472; Young v. Young, 222 Ark. 827, 262 S.W. 2d 914; Brimson v. Brimson, 227 Ark. 1045, 304 S.W. 2d 935; Poskey v. Poskey, 228 Ark. 1, 305 S.W. 2d 326; Anderson v. Walker, 228 Ark. 113, 306 S.W. 2d 318; Harbour v. Harbour, 229 Ark. 198, 313 S.W. 2d 830; and Perry v. Perry, 229 Ark. 202, 313 S.W. 2d 851.


author: George Rose Smith, J.

text:
    City of Little Rock v. Henry.
    5-2370
    345 S. W. 2d 12
    Opinion delivered April 10, 1961.
    [Rehearing denied May 1, 1961.]

      Joseph C. Kemp, City Attorney and Jaclc Young, Asst. City Atty., for appellant.

      John T. Jernigan, Prosecuting Atty., Rodney Par-ham, Chief Deputy Prosecuting Atty. and John W. Barron, Jr., Deputy Prosecuting Atty., for appellee.
   George Rose Smith, J.

By Act 484 of 1949 the voters of each county were authorized to approve the use of voting machines in popular elections within the county. Ark. Stats. 1947, Title 3, Ch. 17. Section 1 of the act prohibits the use of any particular make of voting machine until it has first been approved by the State Board of Election Commissioners, and Section 2 enumerates eighteen specifications that a machine must meet to be eligible for approval.

In 1958 the electors of Pulaski county voted in favor of the installation of voting machines. Under Section 8 of Act 484 it then became the duty of the appellees, the county election commissioners, to arrange for the purchase of the machines, but the commissioners indicated by resolution that they did not intend to comply with the act. The appellants then brought this action for a declaratory judgment as to the validity of the act and for a writ of mandamus to compel the appellees to purchase and install the machines. The trial court found that the use of the machines would be contrary to Article 3, Section 3, of the state constitution. The appellants’ complaint was accordingly dismissed.

The testimony in the case describes the Shoup voting machine, which has been approved by the state board and was found by the trial court to meet the specifications of Act 484. The Shoup machine is essentially a voting booth equipped with its operating mechanism and with a movable curtain that affords privacy to the elector as he oasts his vote.

In order for the Shoup machine to function the election officials must turn a control knob on the outside of the machine before each voter enters the booth. With each turn of the control knob the voter’s number, beginning with number one and proceeding in numerical order, is shown upon a counter that is exposed to public view. It is contemplated that this number will be entered with the voter’s name upon the lists kept by the election judges and clerks.

Upon entering the booth the voter closes the curtain by means of an electric switch. The names of the candidates and issues to be voted upon are set forth on a printed card similar to the written ballot that we have used in the past. The voter does not actually touch this printed list, which is behind glass or a transparent plastic. Instead, he makes his selections by moving the levers that are provided for each office and issue to be voted upon. When the voter has positioned the levers to indicate his choices he casts his vote by pulling a master lever, which registers the vote and clears the panel for the next elector'. The voter then opens the curtain and leaves the booth. No additional vote can be cast upon the machine until the election officials turn the control knob mentioned earlier, which releases the operating mechanism for the next voter.

The Shoup machine, in common with other voting machines now on the market, does not make a separate record of the vote cast by each elector. Instead, the machine contains only a number of hidden adding machines which keep a running total of the votes for the various candidates and upon the various issues. These running totals are ingeniously protected against inspection by anyone at all until the polls have closed. At that time the election officials can open the machine and expose the total vote upon every office and issue that appeared on the printed card, or ballot. The machine has many other features, such as a provision for write-in voting, that are not especially pertinent to the issues in this case.

The question is whether an ele.ction conducted by using the Shoup machine would conform to Article 3, Section 3,, of our constitution: “All elections by the people shall be by ballot. Every ballot shall be numbered in the order in which it shall be received, and the number recorded by the election officers on the list of voters opposite the name of the elector who presents the ballot. The election officers shall be sworn or affirmed not to disclose how any elector shall have voted, unless required to do so as witnesses in a judicial proceeding, or a proceeding to contest an election.”

The appellants rely upon a number of cases which have upheld the constitutionality of statutes authorizing the use of voting machines, but none of the cases deal with a constitutional provision like ours. Most of the decisions merely hold that voting machines are permissible when the constitution simply declares that all elections shall be by ballot. Lynch v. Malley, 215 Ill. 574, 74 N. E. 723; Norris v. Baltimore, 172 Md. 667, 192 Atl. 531; State v. Green, 121 Ohio St. 301, 168 N. E. 131; Mooney v. Phillips, 173 Tenn. 398, 118 S. W. 2d 224. In Texas the constitution also directed that the legislature provide for “the numbering of tickets,” and the court held that this provision was complied with when it was shown, as it is here, that the voting machine assigned a number to each elector. Wood v. State, 133 Tex. 110, 126 S. W. 2d 4, 121 A. L. R. 931.

The machines were disapproved in Massachusetts, however, because the constitution required an election “by written votes.” Nichols v. Board of Election Commrs., 196 Mass. 410, 82 N. E. 50, 12 LRANS 280, 124 A.S.R. 568. The same result was reached in Kentucky, where the constitution provided that “all elections by the people shall be by secret official ballot, furnished by public authority to the voters at the polls, and marked by each voter in private at the polls, and then and there deposited.” Jefferson County v. Jeffer son County Fiscal Court, 273 Ky. 674, 117 S. W. 2d 918. The court held that voting machines did not satisfy the specific directions that the ballots be furnished, marked, and deposited.

After studying the question we are unanimously of the opinion that an election conducted with the Shoup machine would not conform to the detailed requirements of our constitution. The controlling section requires that every ballot be numbered and that the number be recorded opposite the elector’s name on the list of voters. It is also mandatory that the election officers be sworn not to disclose how any elector voted unless they are required to do so in an election contest or other judicial proceeding. We are unable to reconcile the use of the Shoup machine with these basic constitutional commands.

It is perfectly clear that the draftsmen of the constitution did not consider the numbering of the ballots to be a mere gesture having no practical significance. To the contrary, the matter was deemed so important that it was written into the constitution as a fundamental requirement in every election, not to be dispensed with by the legislature or by the courts.

When Section 3 of Article 3 is studied as a whole the reason for the mandatory numbering of the ballots cannot be open to doubt. If the number of each ballot is recorded alongside the voter’s name it becomes possible in an election contest to open the ballot box and determine how each person voted. Thus if ah election should apparently be decided by a margin of ten votes and it is shown that twenty ineligible persons voted, the numbering of the ballots enables the courts to declare the winner with certainty. Obviously this clause in the constitution is an effective precaution against fraud and a valuable safeguard to the purity of elections.

The appellants argue that the Shoup machine numbers the ballots when it assigns a number to each voter as he enters the polling booth. The trouble is that this numbering has no practical significance, in the absence of any method for determining later on how a particular person cast his vote. It is really the voter who is numbered, and even that number is meaningless. All the Shoup machine number shows is the chronological order in which the electors cast their votes, but that information is without practical value and could just as well be obtained from an unnumbered list of voters. The point is that in an election contest the machine numbers would be useless in the absence of some method for determining conclusively how each ineligible person cast his vote. The basic purpose of the constitution is defeated by the machine’s inability to make a record of each individual vote.

In holding that the Shoup machine does not satisfy the minimum requirements for an election under our constitution we do not, of course, express any opinion as to the desirability of such machines. That is not our concern, for we must give effect to the language of the constitution as it is written. It cannot be doubted that the secrecy of the ballot is better protected by the voting machine than by our traditional method of balloting, since the use of the machine prevents anyone else from ever discovering how an elector voted. But this circumstance is offset by the fact that the draftsmen of the constitution, with the knowledge available to them in 1874, chose to subordinate the secrecy of the ballot to the purity of the election.

The trial court declared Act 484 to be unconstitutional, but we think the declaration should be only that the use of the Shoup machine in its present form is contrary to the constitution. The machine’s defect is that it does not make a record of individual votes. Act 484 is silent upon that point, however, and ©onsequently the act cannot be said to violate the constitution. We perceive no constitutional objection to a machine conforming to the specifications of Act 484 and having the additional characteristic that is lacking in the Shoup machine.

With the indicated modification the judgment is affirmed.

McFaddin and Robinson, JJ., concur.


text:
    Powell v. State.
    4972
    345 S. W. 2d 8
    Opinion delivered April 10, 1961.

      Clifton Bond, for appellant.

      J. Frank Holt, Attorney General, for appellee.
   George Rose Smith, J.

On June 6, 1960, we handed down an opinion reversing the appellant’s conviction for violations of the liquor laws and remanding the cause for a new trial. Powell v. State, 231 Ark. 737, 335 S. W. 2d 816. The judgment of reversal, as is usual in such cases, provided that the appellant should recover of the appellee “all his costs in this court.” The case has not yet been retried. The appellant has filed a motion in this court asking (a) that our clerk be directed to issue a writ of execution against the State or against Drew county for the collection of the appellant’s judgment for costs, and (b) that we modify our judgment by permitting the appellant to recover his costs expended in the trial court as well as in this court.

Upon the first point it is plain that the appellant is not entitled to a writ of execution against the State, for such a coercive proceeding would amount to a suit against the State, which the constitution prohibits. Ark. Const., Art. 5, § 20; Watson v. Dodge, 187 Ark. 1055, 63 S. W. 2d 993. Nor is the appellant entitled to such a writ against the county. By statute the county is liable for the costs in an unsuccessful criminal prosecution, Ark. Stats. 1947, § 43-2406; but the statute also provides the method for its own enforcement: “In all cases where the county shall be liable to pay the costs and expenses in criminal cases, the circuit court for the county in which the case was tried, shall adjust the same, and cause the same to be certified to the county court.” Ark. Stats., § 43-2408. The appellant is limited to the remedy given by the statute. Grayson v. Arrington, 225 Ark. 922, 286 S. W. 2d 501.

Upon the second point the established rule is that an appellant who wins a reversal and remand for a new trial is thereby entitled to recover only his appeal costs; liability for costs in the trial court must abide the final decision of the case. DuVall v. Witt, 196 Ark. 560, 118 S. W. 2d 851. The appellant argues that a different rule should prevail in criminal cases, but the situations are so essentially similar that they should both be governed by the same principle.

Motion denied.


text:
    Taylor v. Connell.
    5-2319
    345 S. W. 2d 4
    Opinion delivered April 10, 1961.

      Erwin & B eng el, for appellant.

      Eldridge & Eldridge, for appellee.
   Paul Ward, Associate Justice.

The question presented here is whether Chancery should decree specific performance of an alleged contract to convey real estate. The trial court refused to order specific performance, hence this appeal seeking a reversal. Appellant, Charles Taylor, whose home is in Newport and who owns property in that vicinity had apparently for some time considered purchasing a small parcel of land adjoining or near the city golf course for the purpose of erecting a drive-in eating place. It seems that he knew this parcel of land was owned jointly by Josephine W. Connell and the E. D. Wilmans & Sons, Inc., and also knew that Kaneaster Hodges, a Newport attorney, represented the said owners. Mrs. Connell was a non-resident. The said company was domiciled in Newport, and J. E. Wilmans was its president and E. D. Wilmans, its secretary.

Background Facts. Sometime in the spring or summer of 1958, appellant began negotiations with Hodges relative to the purchase of said parcel of land. According to appellant he and Hodges reached an agreement as to all essential terms such as the description of the land and the purchase price. Sometime thereafter in October, 1958, Hodges prepared a “Contract for Sale of Land,” a copy of which, marked Exhibit 3, was introduced in evidence. It showed Mrs. Connell and the Wilmans Company as “sellers” and appellant as “purchaser”; it showed that the purchaser agreed to pay the total sum of $1,500, with $500 to be paid upon execution of the agreement and the balance of $1,000 to be paid on or before one year; it bound the sellers to execute and deliver to appellant a good warranty deed; it provided that the purchaser might enter into possession subject to the rights of the sellers and it further provided that the purchaser would leave standing such trees as would be designated by a committee of the Newport Country Club. The description of the land set forth in the contract reads:

“All that part of the Northwest Quarter of the Southeast Quarter, Section 12, Township 11 North, Eange 3 West bounded on the east by Highway 17 and 14, on the north by the property of the Free Will Baptist Church, on the west by Newport Golf Club property and on the south by the property of the Newport Levee District and/or the public road.”

The original contract and all copies thereof were retained in Hodges’ office. Neither the original contract or any copies thereof were ever delivered by Hodges to appellant, but the original was signed by Mrs. Connell and by the secretary of the Wilmans Company. It was never signed by Mr. J. E. Wilmans, the president of Wilmans Company.

Before the contract was written (according to the date shown thereon) and on July 31, 1958, appellant delivered to Hodges a check in the amount of $500 made out to ‘ ‘ Kaneaster Hodges, Att.” This check was deposited by Hodges in a local bank.

Appellant, apparently thinking the transaction had been completed and everything settled, began cutting timber on the land about the last of November or first of December, 1958. A few days thereafter Mr. Wilmans noticed that the timber was being cut and promptly directed Hodges to have the cutting stopped. Thereafter appellees refused to execute the contract or make a deed to appellant, thus precipitating this litigation.

Pleadings. On July 23, 1959, appellees filed a suit in Circuit Court to recover the value of the trees cut by appellant. In due time appellant filed a general denial and also a counterclaim. At the same time appellant moved to transfer to the Chancery Court, which was later granted. In the counterclaim appellant among other things asserted: That the sales contract was executed but appellees refused to give him the original or a copy; that he had paid $500 on the contract and had offered and was then offering to pay the balance due, which appellees refused to accept; that he was put into possession under the contract and had complied with all the terms, and that he was entitled to have the contract specifically performed. The prayer was in accordance with the above assertions.

Appellees filed a reply to the counterclaim which in substance stated: Appellees admit negotiating with appellant for the sale of a certain parcel of land but deny that there was any agreement as to the exact location or description of the land; appellees deny that the Wilmans Company had any authority to sell the land and deny that appellant had any authority to go on the land; they admit that Hodges was given a check for $500 but state that it was not requested but given at appellant’s insistence, and that it was tendered back to appellant when it became clear that no agreement conld be reached; they say “it was the design, intent and purpose of all the parties in their negotiations that whatever contract was entered into be integrated in a written contract, which was never executed by the parties thereto”; and that the copy of the contract attached to appellant’s counterclaim was obtained from Hodges’ office without his knowledge or authority.

For a reversal of the Chancery Court’s decree appellant sets forth several assignments of error but they are all embodied in, and we will discuss only, the contentions that: (a) Hodges was the agent of appellees: (b) appellees ratified Hodges’ acts and are estopped from denying the contract; and (c) the court should have at least decreed specific performance against Mrs. Connell.

(a) To prevail on the ground that Hodges was an agent and that therefore appellees were bound by all his acts, it was incumbent upon appellant to show that he was something more than just an attorney acting for appellees in closing a sale. It was necessary for appellant to show that appellees had clothed Hodges with full power to sell and dispose of their land. In the case of McCarroll Agency, Inc., v. Protectory For Boys Under Care of Franciscan Brothers, 197 Ark. 534, 124 S. W. 2d 816, it was stated: “The authority of an agent, and its nature and extent, where these questions are directly involved, can only be established by tracing it to its source in some word or act of the alleged principal. The agent certainly cannot confer authority upon himself or make himself agent merely by saying that he is one.” We find no evidence in the record to bring Hodges within the rule above stated. It is not contended that he was a real estate agent, and it is not shown that he was acting in any way inconsistent with his employment as an attorney for appellees. Therefore, any mistake that Hodges may have made relative to the location and description of the property in his negotiations with appellant would not be binding upon appellees unless it was later known and ratified by appellees.

(b) It is strongly contended by appellant however that appellees ratified what Hodges did and said during the negotiations. The Chancellor did not set forth the exact grounds upon which he refused specific performance but he evidently found that ratification was not supported by any of the testimony, and we think correctly so. The pivotal issue in this connection relates to the proper description of the land. There is a conflict in the testimony as to whether appellant ■ was ever authorized to enter upon any portion of the land, but that is not a decisive issue. We gather from the record that there is a small stream running in a northwesterly and southeasterly direction somewhere near the middle of the parcel of land heretofore described. It'is appellees’ contention that they never understood that they were selling appellant any land north of this stream. Appellant points to the fact that the representative of the Newport Country Club, acting on direction from Hodges, pointed out certain trees north of the stream— indicating that appellant was to get that portion of the land. However, it appears from the record that this representative had no directive from any of the appellees, but possibly did have from Hodges. It is contended by appellant that one of the Wilmans went out to the land with him and that he knew what land was being sold and that he indicated all of the land was to be included. Wilmans’ testimony is to the effect that he stood at or near the lower portion of the land and never indicated that appellant was getting that portion north of the stream. It is not denied that as soon as Wilmans knew appellant was claiming and cutting timber on the north portion he immediately intervened. From all of the record we think the Chancellor was justified in finding, and we so find, that there was never a complete meeting of the minds between appellant and appellees as to the exact amount of land 'involved. Hodges admits that he made a mistake in describing the land and there is nothing to indicate that appellees knew of this mistake until the time when appellant was stopped from cutting timber. Appellees could not be held to have ratified any contract entered into by appellant and Hodges until after they were in possession of all the material facts. The rule in this contention is very well stated in the case of Emco Mills v. Isbrandtsen Co., 210 Fed. 2d 319. At page 324 there appears this statement: “The law of Arkansas as announced by the Arkansas Supreme Court is settled that before one can be held to have ratified an unauthorized act of an agent the principal must have knowledge of all the material facts. And ignorance of such facts renders the alleged ratification invalid.” The above statement is followed by several Arkansas citations. In support of the conclusion we reach in this connection, it is pointed out that the contract in question was never fully executed, that it remained in Hodges ’ office, and that it was never delivered to appellant or to appellees. Mr. Hodges testified, among other things, that: “Mr. Wilmans thought and said that Mr. Taylor was buying a triangular tract in the southeast part of what you’re talking about . . .” Mr. R. D. Wilmans, among other things, stated: “He (appellant) told me repeatedly that he didn’t want to buy any land that there were any trees on, that all he wanted was that three cornered piece . . .” All of this we tbi-nb strongly indicates that appellant was thinking about one parcel of land and appellees were thinking about another parcel.

(c) We are unable to agree with appellant’s contention that, in any event, he is entitled to have specific performance against Mrs. Connell who signed the written contract. Considering that Mrs. Connell owned only an undivided interest in the land in conjunction with the Wilmans Company which owned the rest of the interest, and considering further that Hodges was acting for all of them, it would be unrealistic to assume, in the absence of proof to the contrary, that separate sales were contemplated or that either party agreed to seil independently of the other. That being true we think appellant is barred by the rule set out in 17 C. J. S., page 412 (Contracts, § 62, sub. sec. signature) where it is stated: “The question as to whether those who have signed are bound is generally to be determined by the intention and understanding of the parties at the time of the execution of the instrument.” Although our research reveals that there may be some exception not applicable here, the general rule in cases of this nature was approved in Wallace v. King, 205 Ark. 681 (at page 687), 170 S. W. 2d 377, where there appears this statement: “The authorities are uniform in the holding that persons signing a contract prepared for signatures of other persons, to be affixed along with theirs, and intended to be signed by all of the parties named in it, are not bound until all have signed it, and incur no obligation, if any of those who were to have signed it refuse to do so.” In addition to the above we also note, as before mentioned, that the contract was not delivered, that Hodges was not clothed with authority to sell land, that there was no meeting of the minds, and, in addition, there is no evidence that Mrs) Connell ratified the mistake made in the description of ..the land.

It follows from the above that the decree of the trial court must be, and it is hereby, affirmed.

Affirmed.


text:
    Foster v. Polk Chevrolet Co.
    5-2345
    345 S. W. 2d 479
    Opinion delivered April 10, 1961.
    [Rehearing denied May 15, 1961.]

      E. L. Holloway, for appellant.

      Dennis L. Berry, Bryan J. McCallen, Trantham & Knauts, for appellee.
   Sam Robinson, Associate Justice.

This case grows out of the action of one of the appellees, Burley Smith, the mortgagee named in a chattel mortgage, in taking the mortgaged property, an automobile, from the appellant, Foster, the mortgagor, and selling it at public sale to satisfy the mortgage. The court directed a verdict against the appellant on the theory that the evidence shows the mortgagee had the right of possession, and since this is an action of replevin, the mortgagor cannot recover because he is not entitled to possession. Geiser Manufacturing Co. v. Davis, 110 Ark. 449, 162 S. W. 59. In directing the verdict, the court said: “At the conclusion of the testimony in behalf of the plaintiff, the defendants move for a directed verdict, which motion the court is going to grant.”

Under the terms of the mortgage the mortgagor was entitled to possession of the automobile unless there was default in the payments on the note secured by the mortgage or other contingencies occurred. Default in payment of the mortgage indebtedness is relied on by the mortgagee as giving him right of possession. The mortgage secured a note dated April 4, 1959, in the sum of $700, payable $200 monthly. Appellant testified that later he and the mortgagee agreed that the payments would be reduced to $50 per month. It appears that on June 16th appellant paid $110, which would take care of the May and June payments and in addition appellant, the mortgagor, testified that he did some ditching for appellee, Burley Smith, for which Smith owed him $109.97, and this offset would more than take care of the July payment on the note. On July 15th Burley Smith had Wid Rice take the car from Foster. According to the testimony, the payments on the note were not in default at the time Burley Smith had Rice take possession of the car. Burley Smith did not testify. In fact, the appellees introduced no evidence except that the note and mortgage were introduced in the cross examination of appellant Foster. Hence it cannot be said that as a matter of law the mortgagee was entitled to possession of the automobile.

Rice stored the car with Polk Chevrolet Company. Mrs. Foster, appellant’s wife, acting for him, went to the Chevrolet Company that same day and demanded that the car be returned, but her demand was' refused. On July 30th Foster filed suit in the chancery court against Burley Smith and the Chevrolet Company, alleging that he owed a balance on the car of $480.03, which amount he tendered and deposited in court; and alleged that the mortgagee was demanding the sum of $604.00. He asked for possession of the car and that Smith and the Chevrolet Company be enjoined from interfering with his enjoyment of it. No immediate action was taken in chancery court. The next morning Foster filed the case at bar, a replevin action against the Chevrolet Company. However, the officer serving the replevin papers did not get possession of the car, and later that day it was sold to appellee, Otto Smith, who subsequently, along with Burley Smith and Wid Rice, was made a party to this action.

During the trial of this case it appeared .that the money deposited in chancery court by appellant, in tender of the amount he claims he owes on the car, was still there. The action in chancery was filed prior to the replevin action and was pending at the time of the trial of the case at bar. Chancery court has jurisdiction of the subject matter under the allegations of the complaint filed there, and since this cause must be reversed because of the error in directing a verdict for the defendants, it appears that the better procedure would be to transfer the cause to chancery, where the original suit is still pending and all of the issues can be resolved.

Reversed.