text:
    Smith v. Smith.
    5-1916
    328 S. W. 2d 133
    Opinion delivered October 19, 1959.

      Vol T. Lindsey, for appellant.

      Bryce Ballinger, Miami, Oklahoma, Jeff Duty, and-Claude Duty, for appellee.
   George Rose Smith, J.

This is a suit by the appellee, Berna E. Smith, to quiet her title to three parcels of land in Benton county. She contends that she and her husband, Wesley M. Smith, owned the lands as tenants by the entirety and that she succeeded to the title upon her husband’s death in 1957. The appellant, Wesley’s sister and sole heir at law, denies that an estate by the entirety existed and insists that the three parcels were owned by Wesley alone, so that his widow is entitled only to her dower interest. The chancellor awarded the lands to the widow, holding that a tenancy by the entirety was created by a written agreement executed on October 1, 1955, by Wesley and Berna Smith and by Earl T. and Minnie (x. Wayne. The proper construction of that agreement is the decisive issue in the case.

All the facts are stipulated. Before his marriage to the appellee in 1954 Wesley Smith had lived for several years in the home of his friends, Mr. and Mrs. Wayne. In 1950 and 1951 Smith, a man of substantial means, purchased the three parcels now in dispute, with an oral understanding that the Waynes were to have an interest in the properties. One or both of the Waynes were named as grantees in each of the deeds, but in the trial court the Waynes, who were made defendants, asserted no claim under the deeds and conceded that their interest in the lands was only that set forth in the contract of October 1, 1955. The chancellor’s decree protected the Waynes’ interest as recited in the contract, and no one has appealed from that part of the decree.

When the Smiths and the Waynes executed the contract upon which this case turns the title to each of the three parcels was as follows: (a) One parcel, the apartment house property, had been paid for in full by Smith, and at his direction the sellers had conveyed that parcel to Earl T. Wayne and Wesley M. Smith. (b) Another parcel, the clubhouse property, had been partly paid for by Smith, and a deed to Earl T. and Minnie O. Wayne was being held in escrow by a Spring-dale bank, delivery to be made upon the payment of the final annual installment of the purchase price in 1959. (c) The third parcel, the farm property, had been partly paid for by Smith, and a deed to Wesley M. Smith and Earl T. Wayne was being held in escrow, delivery to be made upon the payment of the final annual installment on October 1, 1955.

On the date just mentioned Smith paid the last installment on the third parcel and directed that the deed in escrow be destroyed and that the sellers execute a new deed to Wesley M. and Dema E. Smith, which was done. At the same time the Smiths and the Waynes undertook to define their respective interests in the three parcels by executing the following instrument:

“Agreement.
“This agreement, made and entered into this October 1, 1955, by and between Wesley M. Smith and Dema E. Smith, husband and wife, hereinafter referred to as first party, and Earl T. Wayne and Minnie G. Wayne, husband and wife, hereinafter referred to as second party, witnesseth:
“In confirmation of original oral agreement and oral or written agreements since then, with reference to purchase of three properties in Benton County, Arkansas, consisting of two residence properties in Rogers, Arkansas, and one farm, described as follows: [Here appears the legal description of each parcel, together with a statement of the original cost of each parcel] . It is herein understood and agreed by and between the parties that first party is to pay the purchase price for each property as and when they become due.
“Second party agrees to manage and supervise all property above described in cooperation with first party. He is to collect rentals, supervise rental of the property, pay taxes and repair bills from the income received from rentals until such time as any or all of the properties are sold or disposed of. Second party agrees to maintain all properties in good repair. If any property is sold, first party is to be reimbursed his entire investment in each property. Thereafter second party is to share 50-50 or in equal parts in any and all money received over and above the original cost of the property. When first party has been reimbursed his original investment, then any income to the above described properties shall be divided equally between the parties over and above cost of maintenance. No property shall be sold at a loss, nor shall it be sold at a price lower than a fair prevailing profit-yielding price that is mutually agreed upon. Should any money accumulate from rentals of the above properties, first party is to receive any amount over necessary expenses and any money lie receives from such rentals shall reduce the original cost of the property to that extent.
“This confirmation agreement is accepted by Earl T. and Minnie Gr. Wayne and Wesley M. Smith.
"In witness whereof we have hereunto set our hands and notarial seal this 1st day of October, 1955.
Wesley M. Smith, First Party
Dema E. Smith, his wife
Earl T. Wayne, Second Party
Accepted:
Earl T. Wayne
Minnie Gr. Wayne
(Acknowledgment.)”

We are unable to agree with the chancellor’s conclusion that this contract created a tenancy by the entirety. It seems quite apparent that the dominant motive .of the Smiths and the Waynes was to reduce to writing the oral agreements by which the Waynes’ interest in the three parcels was actually much smaller than their ostensible interest under the wording of the deeds. The agreement twice refers to its confirmatory nature; every operative provision deals with the reciprocal rights of Smith and the Waynes rather than •with rights between Smith and his wife. Dema Smith was evidently made a party to the contract in order to bind her to a recognition of the rights vested in the Waynes; she was not joined for the purpose of being made a grantee.

In discovering an intention to create an estate by the entirety the chancellor relied largely upon the fact that the first paragraph of the agreement refers to Mr. and Mrs. Smith as the first party. We are unwilling to attribute such a far-reaching substantive effect to what we regard as merely a preliminary designation of the parties. If Wesley Smith sought to use this contract with the Waynes as a vehicle for conveying to his wife an interest in the properties he could, and we think he should, have inserted language making his intention at least reasonably clear. In the absence of such language we do not think a precedent should be set by which an estate by the entirety might spring from any casual reference to a husband and wife in a deed, mortgage, lease, or other instrument affecting the title to land.

The decree is affirmed as to the third parcel, the farm, for this tract was conveyed to Wesley and Dema Smith, husband and wife. That deed undeniably created an estate by the entirety, subject to the rights of the Waynes as recited in the contemporaneous agreement. But with respect to the other two parcels the decree must be reversed and the cause remanded for the entry of a decree not inconsistent with this opinion.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Bugh v. Webb.
    5-1902
    328 S. W. 2d 379
    Opinion delivered October 19, 1959.
    [Rehearing denied November 23, 1959]

      Bernard Whetstone and Joe B. Hurley, for appellant.

      L. B. Smead, W. B. McHaney, Melvin E. Mayfield, for appellee.
   Paul Ward, Associate Justice.

This litigation arises out of a “drag-racing” incident. The principal question to be resolved is: Does a guest assume the risk of injury when he consents to ride with one who engages in drag racing? Most of the material background facts leading up to the issue here involved are not in dispute.

On Saturday night, September 14, 1957, the appellee, Charles Webb (a minor), was riding in a Dodge car being driven by appellant, Joe Bugh (a minor), when Joe engaged in an automobile race, commonly known as a “drag race”, with a Ford car being driven by one Jerry Smith on Highway No. 7 about one and one-fourth miles north of Smackover. Incident to the race a pickup truck was struck by the Ford car and instantly thereafter by the Dodge car, resulting in damage to the vehicles involved and in injuries to Charles. Charles’ ■father, individually and as next friend of Charles, brought suit against Joe and his father to recover damages.

Upon a trial the jury returned a verdict in favor of the complainants and from the judgment entered thereon, the Bughs prosecute this appeal. For a reversal appellants rely on one ground only, i. e., that the trial court erred in refusing to instruct a verdict in their favor. After much deliberation we reach the conclusion that the trial court erred in refusing to grant appellants’ motion because, we think, appellees’ own testimony shows that Charles assumed the risk.

At the close of plaintiffs’ testimony appellant moved for a directed verdict. This motion was based on several different grounds which included the guest statute, joint enterprise and assumption of risk. The motion was overruled and exceptions duly saved. When the trial judge overruled appellants’ motion for a directed verdict he stated that he thought the testimony of Charles Webb was sufficient to make a jury question. We, likewise, think that the issue depends almost entirely upon the testimony of Charles Webb and we shall set out that testimony in some detail, but first we refer briefly to the testimony of appellees’ other witnesses.

Wylie Parham, a State Policeman, testified that the collision occurred at approximately 7:45 P. M., Saturday, September 14, 1957, and that he appeared on the scene approximately thirty minutes later; that Highway No. 7 on which the collision occurred “is a very heavy traveled highway” and that “the traffic at all times is heavier on Saturday nights than at other times ’ ’. Clifford Brewer testified that he lives on the outskirts of Smaekover and that he heard the collision and that it happened on the highway near a drive-in. Ivy Fowler, who was driving the pick-up truck, stated that he was in the process of making a turn from the highway when he “heard a loud, roaring noise” and saw a car coming-trying to get around him; that the Ford car (driven by Smith) hit his left front fender and almost simultaneously another ear hit the pick-up truck from behind and knocked him two hundred feet across the road into a ditch, and that the second car that hit him was a Dodge car. Curtis Butterfield testified that he knew Charles Webb and that he saw him at a dance a short while before the collision occurred. The father of Charles Webb and the father of Joe Bugh each testified but gave no testimony material to the issue here to be decided.

The uncontradicted testimony shows that this portion of Highway No. 7 where the drag- racing took place was a heavily traveled highway and particularly so on Saturday nights. This was testified to by the highway policeman and was admitted by Charles Webb. The testimony shows beyond question that Charles Webb had engaged in drag- racing- on previous occasions not only with Joe Bugh but with the other boys involved on this occasion. This is shown by his own testimony:

“Q. Also, when you were working at Kenova and they were in school would you come at noon time and you all would have drag races toward the colored schoolhouse, or, did that occur?
A. Once or twice.
Q. That was after you were working at Kenova and they were going to school?
A. Yes, sir.
Q. And you had already assumed the position of a young man and you were making $265.00 a month at that time, and they were in school, is that right?
A. Yes, sir, that’s right.
Q. And you did take your noon hour off and come up and drag race with them during the noon hour, is that right?
A. Not very often, once or twice.
Q. But you’ve done that, haven’t you?
A. I have done that.
Q. Do you remember dragging anywhere at night when Malory was present and Joe was present?
A. One time on the bridge, out there, it might have been after dark, that’s all the time I recall.”

Witness Charles Webb also stated that he remembered dragging one time with Jerry Smith out on what was called “Nigger Hill” about two miles south of Smackover.

“Q. And Malory Neal has gone with you dozens of times when you and Malory would be together and you would drag against somebody?
A. No, sir; not many times.
Q. About how many times have you ever dragged with Malory Neal with you?
.A. Probably two or three times, would be the most.
Q. How frequently were you and Joe together for the last five months before this collision?
A. We were together several times a week.
Q. And many times you would bring your car over to his house, and leave your car there, and the two of you would get in his car and ride around, didn’t you?
A. Not many times; I have done it.
Q. At other times he would park his car and ride with you, wouldn’t he?
A. Yes, sir.
Q. You have seen him break the speed limit a few times, is that what you are saying?
A. I have seen him break the speed limit.
Q. And you and him were both interested in dragging, generally, isn’t that right?
A. I dragged with him a few times.
Q. And you and him were interested in the subject of drag racing?
A. I guess so.
Q. You and him talked about dragging and racing?
A. On a few occasions.”

Charles Webb’s testimony likewise shows that he knew they were going to drag race on this particular occasion. In speaking of Jerry Smith who was driving the Ford car the witness stated:

“A. He pulled over on the lefthand side of the slab and Joe pulled up beside him.
Q. Well, let’s get this straight; now, did you know when Jerry parked on the lefthand side of the slab, or not?
A. I noticed him over there when Joe pulled up beside of him.
Q. Now, what did you think when you saw Jerry Smith stop over on the lef thand side of the slab ?
A. And then we pulled up beside him and they counted and took off.
Q. Well, here’s my question, though: What did you think when you saw this car stopped there on the lef thand side of the road?
A. I didn’t know what to think. I thought that Joe was going to pull up—
Q. You were real familiar with drag racing, weren’t you?
A. Yes, sir, I was familiar with it.
Q. And then he (Joe) stopped and they were abreast of each other and both of them stopped, is that right?
A. Yes, sir.
Q. At that time did you have any idea what was about to happen?
A. Yes, sir, I had an idea of what was going to happen.
Q. I believe you said you realized, though, when they both were stopped there by the side of each other, you realized for the first time that they were going to drag, is that right?
A. That’s right.
Q. And the cars were stopped at that time?
A. Until they counted one, two, three.
Q. Yes, sir, and all the time they were counting one, two, three you knew they were fixing to drag?
A. I thought that was what they were fixing to do.”

Charles Webb at no time contends that he made any effort to get out of the car or that he in any way voiced his disapproval of what he knew was about to take place. In view of the above admissions and the undisputed facts as we have disclosed them it is our opinion that Charles Webb, as a matter of law, assumed the risk and that he should not be allowed to recover in this case.

In this State our court has recognized that the defense of the assumption of the risk applies not only in master and servant cases but that it also applies in ordinary cases of negligence. This was discussed in the case of Chicago, Rock Island and Pacific Railway Company v. Lewis, 103 Ark. 99, 145 S. W. 898. In that case the court stated: “The doctrine of assumption, or, as sometimes termed, acceptance of the risk is founded on the maxim ‘volenti non fit injuria’. It is generally applied as part of the law of master and servant, but it is a distinct principle of lav/ which may be otherwise applied in some instances.” See also St. Louis and San Francisco Railroad Company v. Fritts, 85 Ark. 460, 108 S. W. 841.

In the case of Peay v. Panich, 191 Ark. 538, 87 S. W. 2d 23, appellant contended that appellees’ Instruction No. 4 was erroneous because it stated that a guest assumes the usual and customary habits of the driver which are known to the guest. The court, however, rejected this contention stating: “We think this instruction is a correct declaration of the law, when measured by the facts and circumstances of this case. The great weight of authority is to the effect that one who enters an automobile as a guest takes not only the car as he finds it but also assumes the known risks incident to the driver’s ineompetency, inexperience and driving habits”.

In an article by Robert S. Lindsey found in Volume 10, Arkansas Law Review at Page 70, the writer stated: “Many of us are in the habit of thinking that assumed risk is peculiar to master-servant cases but that is not correct. Not infrequently the same set of facts from which contributory negligence has been argued can be the basis for an assumed risk defense”. This statement we find is fully justified by the authorities. The rule which we think is most applicable in the case under consideration is set forth in 15 A.L.R., Second, Page 1180, Section 9, under the heading “Assumption of Risk.” It is there stated that the necessary elements of assumption of risk by guests are clearly defined as follows: “First, there must be a hazard or danger inconsistent with the safety of the guest; second, the guest must have knowledge and appreciation of the hazards; and third, there must be acquiescence or willingness on the part of the guest to proceed in the face of danger.”

Applying the rules above announced to the case under consideration we cannot escape the convictions; first, that the hazard of drag racing at night on such a heavily traveled highway was inconsistent with safety; second, that Charles Webb was fully cognizant of this hazard and third, that he had an opportunity to make a protest of some nature but wholly failed to do so. Since the testimony on which these conclusions are founded was furnished by appellee, Charles Webb, himself, and since it is susceptible of only one reasonable interpretation, no jury question was presented.

It is our conclusion, therefore, that the trial court erred in not sustaining appellants’ motion for a directed verdict and the judgment of the court is, therefore, reversed and the cause of action dismissed.

Reversed and dismissed.


author: Sam Robinson, Associate Justice.

text:
    Sariego v. Sariego.
    5-1920
    328 S. W. 2d 136
    Opinion delivered October 19, 1959.

      Sydney S. Taylor, for appellant.

      G. A. Stanfield, for appellee.
   Sam Robinson, Associate Justice.

This is an appeal from a decree of the chancery court refusing to set aside a divorce decree granted appellee on May 8, 1956. The appellant alleges as grounds for setting aside the decree that it was obtained by fraud on the court in that appellee was never a resident of Arkansas and that the grounds for divorce were untrue.

The Sariegos were married in New York City in March, 1950. The next year appellee entered the United States Air Force and has been on active duty since that time. While stationed at a United States Air Base in Puerto Rico, appellant and appellee lived together until October, 1953, when appellant returned to New York. Appellant testified there was no separation at that time and, in fact, that she and appellee cohabited as late as November, 1954. Appellant’s testimony is to the effect that she was prepared to rejoin her husband upon his return to the United States when, in September, 1955, she received a letter from a Hot Springs attorney asking that she execute a waiver and entry of appearance in a divorce action her husband had filed. This was executed by appellant and sent to appellee’s attorney, C. A. Stanfield. During this time appellant was employed by Hamburger & Green, attorneys at law, New York City.

After some delay in the divorce proceeding, on November 25, 1955, one of appellant’s employers, who was • acting as her attorney, wrote Stanfield for the return of the waiver and entry of appearance, which had not been filed. Stanfield promptly returned same. Subsequently appellee commenced constructive service by publication of warning order on April 3, 1956. About April 5, 1956, appellant received a letter from the attorney ad Mem enclosing a copy of the divorce complaint and informing appellant that she had thirty days within which to file an answer.

Appellant testified that after consulting with her attorneys she decided to do nothing and that no defense would be offered. On this point her testimony is as follows:

“Q. Did you decide not to defend the action?
A. Inasmuch as the Chancery Court of Garland County, Arkansas had no jurisdiction over me nor my husband because neither of us was a resident of Arkansas, there was nothing to defend.
Q. What steps did you take, if any?
A. I took no steps because I did not believe the Court would grant a decree where it was without jurisdiction and I did not believe my husband would perjure himself. ’ ’

Appellee was awarded a divorce May 8, 1956, and on the following day he was married to one Catherine Dempsey Beyea.

On October 22, 1956, after term, appellant brought suit to vacate the decree for the reasons above stated. Appellee demurred to the complaint and upon same being overruled entered a general denial. Catherine Beyea Sariego intervened, stating that she and appellee were married and she would be injured if the divorce decree were set aside.

To support her complaint appellant introduced evidence pertaining to the residence of appellee during the period from the date of their marriage until the divorce decree was granted. Certain portions of the testimony went toward contradicting the grounds on which the divorce had been awarded (three years’ separation). Both the testimony of the appellant and that of supporting witnesses were supplemented by various exhibits. The entire file of the divorce action was also made a part of the record. Appellee presented no testimony in defense.

"We will not comment further on the evidence in that the case should be disposed of on other grounds.

All of the evidence offered by appellant goes toward contesting the jurisdiction of the court and grounds for divorce. This same evidence was readily available to appellant at the time the divorce action was pending. Despite the fact that she had actual notice of the filing of the action and had received proper notification from the attorney ad litem, she allowed her husband to proceed without offering any defense, either to jurisdiction or on the merits of the case. Further, she waited six months from the granting of the divorce to file the present suit, despite knowledge of all the facts.

It is well established by this Court that a party seeking to cancel a decree of divorce for fraud must proceed with diligence after discovery of the fraud. Allsup v. Allsup, 199 Ark. 130, 132 S. W. 2d 813; Bauer, Exr., v. Brown, 129 Ark. 125, 194 S. W. 1025. In Corney v. Corney, 97 Ark. 117, 133 S. W. 813, we said: “In deciding upon an application to strike out a judgment after the term is past, for fraud, irregularity, deceit, .or surprise, the court acts in the exercise of its quasi equitable powers, and in every such case requires the party making the application to act in good faith and with ordinary intelligence. Relief will not be granted if he has knowingly acquiesced in the judgment complained of, or has been guilty of laches or unreasonable delay in seeking his remedy.”

In the case at bar the appellant had actual notice and was properly served under our law, yet she sat idly by and allowed the court to enter judgment by default, without raising a hand in defense, and six months later asked that the decree he set aside for fraud. In the meantime, appellee had married again. In the case of Hagen v. Hagen, 207 Ark. 1007, 183 S. W. 2d 785, this Court said: “Moreover, appellee was negligent in not defending the original action. She had ample notice of the pendency of the action and when it would be heard. She made no defense and took no appeal, although promptly advised that the decree had been granted on October 19, 1942. She waited until March 15, 1943, to take any action whatever. In Gaines v. Gaines, 187 Ark. 935, 63 S. W. 2d 333, we held, to quote a headnote, that: ‘A nonresident defendant, who received notice seven days before entry of a decree of divorce but took no action thereon, could not have the decree set aside for fraud.’ ”

The decree is affirmed.


author: Jim Johnson, Associate Justice.

text:
    Missionary Supporters, Inc. v. Ark. State Board of Dental Examiners.
    5-1908
    Opinion delivered October 19, 1959.

      Kenneth C of felt, for appellant.

      James A. Robb and Robert H. Dudley, for appellee.
   Jim Johnson, Associate Justice.

This case has caused us moré than the usual amount of concern. This same concern is reflected in the learned Chancellor’s profound opinion which sets out so clearly the facts and issues here involved that we adopt it in its entirety as our own:

“This is an action by the Arkansas State Board of Dental Examiners to enjoin and restrain the respondents from further violation of the Arkansas Dental Practice Act (Sections 72-538, 72-540, 72-543, and 72-559) and from the pleadings, the testimony adduced at the trial of the cause at Salem on October 23, 1958, and the very able briefs submitted to the court by counsel for petitioners and respondents, the court finds:
“That W. G. Lewis is a very intelligent and well •educated man who has many years of practical experience in dentistry, having practiced in many parts of the world and that, for more than twenty years he has devoted much of his time and personal income to foreign mission work; that he formed respondent, Missionary •Supporters, Inc., under the laws of the State of Delaware for the purpose of lending aid to his work in providing dental training to those who were engaged, or planned to enter, foreign mission fields.
“Mr. Lewis, learning of the very serious need for •dental services in Fulton and surrounding counties, came to Salem and, with the aid and assistance of local people, opened his training school for missionaries there. It had been operating for several weeks when this action was filed and it seems to have served about 950 patients up to the time of the trial. Testimony seemed to indicate that only ten to twelve weeks are required for the trainees to complete the course. Although contributions are accepted, no fee is charged the patient. No proof was made as to any actual damage or injury to any patient and, while the service of the patients is wholly incidental to the main purpose of training practical missionary dentists, it has in fact helped to alleviate a desperate need for dental service in Pulton and adjoining counties and it offers little, if any competition to licensed dentists because of the scarcity of licensed dentists all through that area.
“Section 72-538 of the Arkansas Statutes clearly defines the qualifications and requirements of dental college but respondents make no pretense of qualifying anyone to become licensed dentists or to practice dentistry anywhere in the United States and no diploma is awarded any of the trainees.
“Section 72-540 reads as follows: ‘No person shall practice dentistry or dental hygiene, or attempt or offer to practice either, within the State of Arkansas, without first having been authorized, and issued a regular license, by the Arkansas State Board of Dental Examiners.’ The language of this statute is clear and unequivocal and does not leave any room for interpretation or construction. Respondents lay no claim to license for the practice of dentistry from the Arkansas State Board of Dental Examiners or elsewhere and are clearly operating in violation of this Section.
“Section 72-543 clearly defines what constitutes practicing dentistry within the meaning of the statute and respondents’ testimony brings the respondents clearly within this definition.
“Section 72-559 reads as follows: ‘It is unlawful for a dentist or dental hygienist to practice in the State of Arkansas under any name other than his own true name or to use the word ‘company, corporation, association,’ or any word of similar import in connection with the practice of his profession; or to operate, manage, or be employed in any room, office or laboratory where dentistry or dental hygiene is practiced or contracted for in the name of any company, corporation or association; or to aid or assist in any manner any unlicensed person to practice dentistry or dental hygiene or any branch thereof. It is unlawful for any corporation to practice dentistry or dental hygiene or to hold itself out as entitled to engage therein’.
“Prom testimony of respondent, Lewis, the President of Missionary Supporters, Inc., it is clear that the respondent corporation is in violation of this Section through the activities of its President.
“Counsel for respondents argues very forcefully that petitioners do not have an absolute right to injunction. Section 72-542 reads as follows: ‘The Arkansas State Board of Dental Examiners is entitled to the equitable remedy of injunction against any person who practices dentistry or dental hygiene, or attempts or offers to practice either, in violation of Sec. 7 (Sec. 72-540).’
“The language of this Section clearly refutes counsel’s contention, is very pointed and leaves nothing to the discretion of the court.
“Counsel for respondents also argues with equal force and conviction that the Arkansas Dental Practice Act in this case conflicts with respondents’ rights under the First and Fourteenth Amendments to the Constitution of the United States in that it affects their Freedom of Beligion. The State has the right under its police power to regulate the practice of dentistry and to prescribe such rules as it may deem best for the protection of the public health, safety and welfare.
“Such regulation does not violate rights of respondents under either the First or the Fourteenth Amendment.
“Although close scrutiny and reappraisal seems to be indicated with a view to remedying such a situation as has been revealed as existing in so large an area of our state where not even one licensed dentist is available, the statutes are clear and petitioners are entitled to the relief prayed. The court knows of no better way to correct the situation than to enforce the clear and unambiguous provisions of the statutes. The courts are quick to resent attempts of the legislative body to infringe on the rights of the judiciary and the Legislature would have just as much right to resent intrusion of the Judiciary on its rights to make the laws. If this is a matter that requires correction, it is the responsibility of the Legislature to make such correction.
“Respondents will be restrained as prayed in the Petition filed herein.”

A careful review of the record reveals that it isn’t denied that appellants’ practice is clearly within the terms of the statute. Those terms are mandatory, and the court may not write into them an exception or exemption. We must recognize the ancient maxim that “equity follows the law” and that the appellant has collided with the law. See: Rithols v. State Board of Optometry, 206 Ark. 671, 177 S. W. 2d 410; Hudkins v. State Board of Optometry, 208 Ark. 577, 187 S. W. 2d 538; Marvel v. State ex rel. Morrow, 127 Ark. 595, 193 S. W. 259; Melton v. Carter, 204 Ark. 595, 164 S. W. 2d 453.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Robinson v. Martin.
    5-1936
    328 S. W. 2d 260
    Opinion delivered October 26, 1959.

      Dinning & Dinning, for appellant.

      Gracraft $ Gracraft, for appellee.
   Carleton Harris, Chief Justice.

Suit was instituted by Maggie L. Martin, appellee, for the possession of a motor vehicle held by appellant, Rosetta Robinson. Affidavit for delivery was executed by appellee, in which she asserted the value of the vehicle (a 1955 Ford convertible automobile) to be $1,250, and the vehicle was seized under a Writ of Replevin. Appellant answered, denying that Maggie Martin was the owner of the vehicle, or had any right or claim to same, and asserted, to the contrary, that she (appellant) was the sole and exclusive owner of the property. At the conclusion of the testimony, appellee moved for an instructed verdict, which was acted upon by the court as follows:

‘ ‘ The motion for an instructed verdict will be granted in favor of the Plaintiff for the reason that the certificate of title introduced in evidence by the Plaintiff makes a prima facie case insofar as the title to the vehicle is concerned and this Court holds there is no evidence to rebut or overturn a prima facie case.”

Whereupon, the court instructed the jury to return a verdict for appellee, and judgment was entered in accordance therewith. From such judgment comes this appeal.

Admittedly, the automobile in question had belonged to Willie Bridgman at the time of his death, which occurred on January 16, 1958. Appellee claims to be the daughter of the deceased, and appellant had lived with Bridgman for several years prior to his death.

Appellant contends that the court erred in excluding her testimony that Bridgman had stated he was buying the automobile for her (appellant), and further, that the deceased in referring to appellee, “always told me that she was his step-daughter”; still further, that Bridgman had stated he was not married to the mother of Maggie Martin. The court held that the “Dead Man Statute” applied, and the witness could not testify to anything told to her by Bridgman. The transcript reflects the following colloquy between the court and counsel:

“The Court: You can’t testify to that, he is dead.
Counsel: Isn’t there an exception to that rule?
The Court: No, sir, I don’t think so.
Counsel: This is not a contest with the dead man, this is a contest between two persons claiming the car.
The Court: Nevertheless, the Court holds the “Dead Man’s Statute” applies and witnesses can’t testify to anything the dead man told them.
Counsel: As to the relationship between the parties?
The Court: Yes, sir.
Counsel: Doesn’t the court think there is an exception to the “Dead Man’s Statute” where relations between members of the family are involved?
The Court: That was not involved in the question you just asked the witness, was it?
Counsel: If the Court holds differently, it is all right.
The Court: Proceed.”

Under this state of the record, it becomes unnecessary for this Court to pass on appellant’s contention, since no proper objection was made to the trial court’s ruling which precluded the evidence offered.

The instructed verdict was based on the certificate of title, introduced by appellee, showing herself as owner, issued by the State Department of Revenues, on May 8, 1958, which made a prima facie case of ownership; the trial court found that there was no evidence to rebut this prima facie case. We do not agree. Though she held the certificate of title, appellee’s claim to the automobile is actually based on the contention that she is the daughter, and only heir, of deceased. It might be here noted that her testimony relative thereto, was somewhat less than positive. For instance, “Q. * * * as a matter of fact, you are not his daughter, are you? A. He is the only father I know anything about. Q. Don’t you know he always called you his stepdaughter? A. No, sir, if he did, I didn’t know anything about it. Q. He was not married to your mother at the time of your birth, was he? A. That is what my mother said. Q. When do you first remember seeing Willie Bridgman? A. I was a very small kid, he was the only father I knew anything about. * * * Q. You make no claim to the car at all except as the daughter and only heir of Willie Bridgman? A. That is right. Q. Are you his daughter? A. He is the only father I know anything about, if he was not my father, I was never told that he was not. Q. Were you ever told that he was? A. Yes, sir, my mother told me he was.”

The certificate of title was not obtained until several months after the death of Bridgman. Appellant had possession of the automobile until it was taken from her by virtue of the Order of Delivery. According to her testimony, she had in her possession the “pink slip” and other papers relating to the title of the car, but turned them over to appellee. From the testimony:

“Q. How did she get the papers away from you?
A. She came to my house and told me she would help me. I let her have the papers because of the shock, the man died all of a sudden, and she claimed she came to help me.
Q. You had all of the papers in your possession?
A. Yes, sir.
Q. She told you she was going to help you?
A. That is right.
Q. That is the reason you gave her the papers?
A. That is right.
Q. Then you had possession of this property from the time it was bought until he died?
A. Yes, sir.”

As reflected by the evidence, Bridgman worked on a boat which would dock at Memphis, and appellant would drive the car to Memphis and pick him up. She further testified that she operated the car for her personal use. While, as previously set out, appellee held this certificate of title at the time of instituting the suit, — we have held that the certificate is not title itself, but only evidence of title. House v. Hodges, 227 Ark. 458, 299 S. W. 2d 201. We are of the opinion that the evidence was sufficient to place in issue whether appellant held the vehicle by gift, or whether appellee was actually the owner.

The judgment is accordingly reversed, and the cause remanded.

       Section 2, under “Schedule” of Arkansas Constitution of 1874.

       Emphasis supplied.

       The testimony relative to appellee acquiring the certificate of title is rather vague. There is an indication that the clearing of the title was handled through an attorney, but this is not definite. From the testimony of appellee: “Q. I hand you a paper which purports to be a certificate of title to a motor vehicle, have you ever seen it before? A. Yes, sir. Q. Where did you see it? A. It was sent to me. Q. From where? A. I don’t remember where, but I was living on Route 2, Lexa. * * * Q. You don’t know who caused this to be issued, do you? Did Mr. Sheffield get this for you? A. I don’t know, it was sent to me.”


author: J. Seaborn Holt, Associate Justice.

text:
    Goynes v. Goynes.
    5-1930
    328 S. W. 2d 258
    Opinion delivered October 26, 1959.

      Byron Goodson and M. M. Martin, for appellant.

      Nabors Shaw, for appellee.
   J. Seaborn Holt, Associate Justice.

The sole question for our decision on this appeal, is whether the trial court abused its discretion in allowing the wife (appellee), against whom her husband (appellant) had filed a suit for divorce in Arkansas, January 19, 1959, $200 for her attorney’s fees and $50 expense money. The court’s order contained this recital: ‘ ‘ That plaintiff (husband) should be and is hereby ordered to pay the sum of Two Hundred ($200) Dollars into the registry of this court as attorney fees, and the sum of Fifty ($50) Dollars as expense money in the taking of depositions on behalf of the defendant in the defense of this cause of action. After the plaintiff has complied with the terms of this order, by paying the attorney fees and expense money for defending this cause of action, into the registry of the Chancery Court of Polk County, Arkansas, the defendant will then be ordered to file her answer or otherwise plead, and the cause will be set down for hearing upon its merits.”

The record reflects that the parties here were married March 30, 1913, and separated January 8, 1958 in Baton Rouge, Louisiana where they owned a home. Appellee has never left Louisiana, but continues to occupy the home property there. Appellant left his wife, came to Mena, Arkansas on January 8, 1958 and on January 24, 1958, he and his wife entered into a property settlement under the terms of which his wife was awarded the home in Louisiana which was unencumbered and valued by appellant at $7,000, and also $5,000 in cash. Appellee (wife) also receives Social Security in the amount of $52.50 per month. Appellant received $3,000 in cash, a 1949 model Dodge automobile and draws a “pension” of $200 per month. In addition, appellee did “convey, transfer, assign and deliver unto Lester Aubrey Goynes the following described property, to-wit: 1. Whatever interest she may have in that certain property acquired by inheritance by Lester Aubrey Goynes situated in the County of Nevada, State of Arkansas.”

After a careful review of the record presented, we cannot say that it has been shown that the trial court abused its discretion in awarding appellee (the wife) attorney’s fees and suit money pendente lite. We reannounced our rule relating to the granting of attorney’s fees and suit money in Gladfelter v. Gladfelter, 205 Ark. 1019, 172 S. W. 2d 246, in this language: “This court has also consistently held that the questions of alimony, and the amount to be allowed to the wife, during the pendency of a suit for divorce, together with her costs and attorney’s fees, are within the sound discretion of the trial court, and unless there has been abuse of this discretion the court’s action will not be disturbed here. In Plant v. Plant, 63 Ark. 128, 37 S. W. 308, this court held (quoting the headnote) that “The allowance of alimony to a wife during the pendency of a suit by her for divorce, and of her costs and attorney’s fees, is within the discretion of the chancellor, under Sand. & H. Digest, Sec. 2512, Sec. 4388 Pope’s Digest (now Sec. 34-1210 Ark. Stats. 1947), providing that during the pendency of an action for divorce the court may allow the wife maintenance and a reasonable attorney’s fee.”

In the very recent case of Fitzgerald v. Fitzgerald, 227 Ark. 1063, 303 S. W. 2d 577, we said: “The court did not err in awarding costs and an attorney’s fee to appellee. Such allowances are always within the sound discretion of the trial court and unless abuse of such discretion be shown, we will not disturb it.”

Finding no error, the decree is affirmed.


author: Ed. F. McFaddin, Associate Justice. Jim Johnson, Associate Justice,

text:
    Smith v. McNair.
    5-1925
    328 S. W. 2d 262
    Opinion delivered October 26, 1959.

      James L. Sloan, for appellant.

      J. Frank Holt, Prosecuting Attorney, for appellee.
   Ed. F. McFaddin, Associate Justice.

The purpose of this suit is to determine the constitutionality of Act No. 70 of the Arkansas General Assembly of 1951, which Act is captioned: “An Act Directing the Issuance of Hunting and Fishing Licenses to Persons Sixty-five (65) Tears of Age and Over Without Fee or Charge Therefor.” The first sentence of the Act reads: “After the effective date of this Act any resident of this State who has attained the age of sixty-five (65) years shall be entitled to have issued to him upon application therefor a license to hunt and fish in this State without payment of any fee or charge therefor”.

Appellant, as plaintiff below, filed suit for declaratory judgment and mandamus. The complaint alleged that the plaintiff was a citizen and resident of Arkansas over the age of 65 years; that the defendant was the Circuit Clerk of Pulaski County; that the plaintiff, with due proof, applied to defendant for a free fishing license under the provisions of said Act No. 70 of 1951; and that defendant refused to issue such license, making the claim that the Act was unconstitutional. The defendant’s demurrer to the complaint was sustained; and from a judgment dismissing the complaint there is this appeal.

We conclude that the Trial Court was correct, because the Act No. 70 of 1951 is unconstitutional. Amendment No. 35 to the Arkansas Constitution was adopted in November 1944; and the amendment has this positive language: “Resident hunting and fishing license, each, shall be One and 50/100 Dollars annually, and shall not exceed this amount unless a higher license fee is authorized by an act of the legislature. The Commission shall have the exclusive power and authority to issue licenses and permits, . . .”

The quoted language does several things: (a) it puts a floor on the license fee at $1.50 per annum, but gives the Legislature power to increase the fee to a greater amount, as the Legislature has done by Act No. 190 of 1957; and (b) it vests the Commission, and not the Legislature, with “exclusive power and authority to issue licenses and permits”. Thus, after the 1944 Constitutional Amendment became effective, all the Legislature could do, as regards license fees, was to determine an increase: the Legislature had no power to say who might be entitled to free license. Amendment No. 35 expressly limits the legislative power as regards license fees, and vests the Commission with “exclusive power and authority to issue licenses and permits”. This constitutional language is crystal clear.

Affirmed.

Jim Johnson, Associate Justice,

dissenting. I do not believe with the majority of the Court that Amendment 35 has so enfeebled the Legislature’s lawmaking function that it was impotent to exempt residents of 65 years of age or over from the burden of paying a fee for the privilege of hunting and fishing in Arkansas.

In my opinion the majority has elevated form over substance in holding that because Amendment 35, Section 8, provides that, “The Commission shall have the exclusive power to issue licenses and permits ... ”, it must follow that the Legislature is bereft of power to make exemptions relating to the objects upon which the power of the Commission can be brought to bear. This is what the Legislature did in substance, though in form it directed the issuance of licenses without payment of fees therefor. Undoubtedly Amendment 35 has granted powers of broad scope to the Commission. In Section 1 the Commission is invested with the “control management, restoration, conservation, and regulation of birds, fish, game and wildlife resources of the State ...”. However, it is hardly reasonable to assert that the Legislature cannot enact laws on general subjects merely because a game animal, a bird, or a fish lurks in the background. For if this were so, the Legislature would be hamstrung in such areas as water conservation, water pollution control, irrigation, forestry, and many others. What is there, if the majority of the Court is correct, to prevent the Commission from frustrating a legislative program of water pollution control or of forest conservation on the bases that fish live in the water and game animals and birds live in the forest. It is hardly consoling to consider that this has not happened yet — that when it does, a line would have to be drawn between the powers of the Legislature and of the Commission.

I believe the time for drawing a line is now, because I am convinced that the people did not intend by the adoption of Amendment 35 to create a Game and Fish Dictatorship but a Game and Fish Commission. They did not intend to embarrass the enactment of welfare legislation for the benefit of elderly people, but to provide for the conservation of wildlife resources for the enjoyment of all.

The majority opinion today, however, gives the Commission a earte blanche to exercise power unparalleled in any other department of State government, and, it has in the process, unwisely, I think, deprived a class of citizens of a privilege richly deserved to the detriment of all.

If the Legislature cannot provide for the welfare of the State’s elderly people, who can!

For the foregoing reasons I respectfully dissent.

       In 1953 the then Attorney General of Arkansas gave an opinion that the Act was unconstitutional; and in 1958 the present Attorney General of Arkansas gave an opinion that the Act was unconstitutional ; so the defendant was merely following official legal advice in claiming the Act to be unconstitutional.

       We have considered this amendment in a number of cases, some of which are: W. R. Wrape Stave Co. v. Ark. State Game & Fish Comm., 215 Ark. 229, 219 S. W. 2d 948; Hampton v. Ark. State Game & Fish Comm., 218 Ark. 757, 238 S. W. 2d 950; State Game & Fish Comm. v. Hornaday, 219 Ark. 184, 242 S. W. 2d 342; Shellnut v. Ark. State Game & Fish Comm., 222 Ark. 25, 258 S. W. 2d 570; State ex rel Wright v. Casey, 225 Ark. 149, 279 S. W. 2d 819; and Farris v. Ark. State Game & Fish Comm., 228 Ark. 776, 310 S. W. 2d 231.

       A nice question could be posed as to whether the Act No. 190 of 1957 impliedly repealed the Act No. 70 of 1951, even if the 1951 Act had been constitutional; but our present decision renders such question immaterial.

       Appellant argues that the classification, by age of 65, is a reasonable classification. Such an argument might be made if we were considering Constitutional Amendment No. 14, which prohibits special legislation, but that Amendment is not the one ruling in this case.


author: George Rose Smith, J.

text:
    Hicks v. State.
    4961
    328 S. W. 2d 265
    Opinion delivered October 26, 1959.

      Charles Roscopf and W. G. Dinning, Jr., for appellant.

      Bruce Bennett, Atty. General, by Bill J. Davis, Asst. Atty. General, for appellee.
   George Rose Smith, J.

Hicks was tried upon two charges of burglary, it being alleged that he broke and entered the dwelling of J. W. Stevens and on another occasion broke and entered the dwelling of Prank De-Gunnion. The informations did not specifically allege that the unlawful entries were made with the intent to commit the felony of assault to rape, but the State’s proof was to that effect, and the jury were instructed upon that theory of the ease. Hicks was found guilty and appeals from a judgment sentencing him to the maximum confinement of twenty-one years upon each count.

The judgment must be reversed for the court’s error in permitting a deputy sheriff and others to testify that Stevens’ daughter and DeGunnion’s wife had each identified Hicks by singling him out in a lineup of suspects arranged by the police. We have frequently held that the admission of such testimony constitutes reversible error; the cases were reviewed recently in Trimble & Williams v. State, 227 Ark. 867, 302 S. W. 2d 83, and need not be re-examined in this opinion.

Among the other asserted errors there is one matter that should be discussed, as it is apt to recur upon a new trial. The State was allowed to prove, in addition to the two unlawful entries described in the informations, that at about the same period Hicks had wrongfully entered a third dwelling and committed rape therein and had attempted to break into a fourth house by cutting a window screen. The court charged the jury that the evidence of the other offenses was admitted only for its bearing upon the defendant’s intent in the two cases being tried.

The State had the burden of proving, by the circumstances if not by direct evidence, that Hicks made each of the two unlawful entries charged in the informations, with the specific intention of committing an assault with intent to rape. Ark. Stats. 1947, § 41-1001, as amended in 1955; Duren v. State, 156 Ark. 252, 245 S. W. 823; Sanders v. State, 198 Ark. 880, 131 S. W. 2d 936. In neither instance was Hicks’ intention incontrovertibly established by his own conduct, for he was frightened from both houses as soon as his presence was discovered. In the DeGunnion home he was seen in a lighted hallway and fled at once when an alarm was given; in the Stevens home he pulled the cover off Stevens ’ sleeping daughter but ran away when the girl screamed.

In view of this proof the State was properly permitted to show that Hicks had entered another dwelling and committed rape. This case differs from Alford v. State, 223 Ark. 330, 266 S. W. 2d 804, relied on by the appellant, in that there Alford overpowered his victim and ravished her, so that his intention could not be in doubt. Here the intention with which Hicks broke and entered the Stevens and DeGunnion houses was not demonstrated by an unequivocal overt act; hence evidence of a similar offense was competent to assist the jury in ascertaining his real intention. On the other hand, the fact that he had previously cut a window screen in an effort to effect an entry for some unknown purpose could shed no light upon the specific reason for the unlawful entries upon trial. Consequently that evidence should have been excluded, for the reasons given in the Alford case.

Reversed.


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    Manufacturers Casualty Insurance Co. v. Wilhelm.
    5-1886
    328 S. W. 2d 270
    Opinion delivered October 26, 1959.

      O. E. Williams and Wright, Harrison, Lindsey & Upton, for appellant.
    No brief filed for appellee.
   Paul Ward, Associate Justice.

This litigation presents a legal question of first impression in this State relative to rights of subrogation. The pertinent facts are not in dispute.

On June 25, 1957, Mrs. Margaret McLaughlin secured a judgment in the Carroll Chancery Court against Milton Wilhelm in the amount of $3,700.00; against Jeanne Luptak in the amount of $1,300.00, and, against the Manufacturers Casualty Insurance Company (hereafter called Company) in the amount of $2,000.00.

A brief explanation of the reasons for the above judgments is necessary. Wilhelm, who was a real estate broker, and Luptak, who owned a motel, were supposed to have mishandled a business transaction for McLaughlin, the Company having undertaken to see that any judgment against Wilhelm (up to $2,000.00) would be paid. Hence, the June 25th decree provided that when the $2,000.00 was paid it would apply on the $3,700 judgment against Wilhelm. In other words, McLaughlin was entitled to collect only $5,000.00 ($3,700.00 and $1,-300.00).

Within apt time Wilhelm and Luptak prosecuted an appeal to this court (See Wilhelm v. McLaughlin, 229 Ark. 118, 313 S. W. 2d 821), where the judgments against them were affirmed. Before the appeal was perfected Wilhelm and Luptak executed a supersedeas bond with Sheehan and Tyrrell as sureties. However, the Company did not appeal from the $2,000.00 judgment against it, and, after the time for appeal had lapsed, McLaughlin had an execution issued and the Company paid over to her $2,000.00. This payment by the Company was made after its attorneys had written Wilhelm’s attorneys that it would expect reimbursement from Wilhelm.

On July 21, 1958, after this court’s affirmance above mentioned, the Company filed, in the original case, a Motion for Summary Judgment against Wilhelm and all the sureties (on the said supersedeas bond) for the sum of $2,000.00. Attached to the motion, as exhibits, were copies of the decree in the original case, of the said supersedeas bond, McLaughlin’s assignment to the Company, and Wilhelm’s agreement (in his application for a bond) to hold the Company harmless for any loss. The Motion also set out many of the pertinent facts heretofore stated.

The trial court sustained the Company’s motion for judgment against Wilhelm for $2,000.00 but denied the motion as to the sureties on the supersedeas bond executed for Wilhelm. The Company now presents this appeal from that portion of the decree denying judgment against the sureties.

In the absence of any brief on behalf of the appellees we have made our own research of the authorities but are unable to find any definite pronouncement which sustains the trial court’s action. On the other hand all the legal and equitable principles of which we are cognizant indicate the contrary.

The supersedeas bond signed by appellees bound them to "satisfy and perform the judgment . . . appealed from in case it should be affirmed”. The judgment against Wilhelm was, of course, affirmed as heretofore noted. Ark. Stats. § 27-2146, dealing with appeals to the Supreme Court, provides that upon the affirmance of a judgment which has been superseded —• "Judgment shall be rendered and entered up against the securities on the supersedeas bond, and the Court shall award execution thereon”. It is obvious then that McLaughlin had the right to collect the $2,000.00 in question from the sureties had appellant not paid her that amount. But when she did receive $2,000.00 from appellant she assigned her right to collect to appellant. This assignment reads as follows: "In consideration of payment of the $2,000.00 judgment against the Manufacturers Casualty Insurance Company, which was paid to me after execution was issued in the case of Margaret O. McLaughlin v. Milton Wilhelm, et al, in the Carroll Chancery Court, Western District, I hereby transfer, assign and set over unto the Manufacturers Casualty Insurance Company, the surety on Wilhelm’s real estate broker’s bond, all the right, title, interest and equity that I may have had in said judgment on October 3, 1957, or at any other time”.

It seems logical to us then, since appellant was not primarily liable and since appellees voluntarily assumed payment of the $2,000.00 to McLaughlin, that appellees are legally bound to pay the $2,000.00 to appellant. In other words, we fail to see how appellees have been placed in a worse condition merely because one payee has been substituted for another. This same view was expressed in Howell v. Alma Milling Co., 36 Neb. 80, 54 N. W. 126, where surety liability to a substituted party was under consideration in a situation similar to the one here, and where the court said: “The surety took this risk of substitution. He was not in the least prejudiced by the change of plaintiffs. The cause of action remained the same. He was not placed in a worse situation, for had there been no substitution Howell could have prosecuted the suit to judgment in the name of the original plaintiff”. A similar statement is found in 3 Am. Jur., Appeal and Error, § 1296: “Where the substitution of a person who has succeeded to the rights of a party to an action is authorized, á surety on an appeal bond is not discharged by the fact that a person to whom the appellee’s interest in the subject matter of the action has passed, while the appeal is pending, is substituted for the appellee without the consent of the surety, as the law permitting the substitution of parties must have been known to the surety when he became surety and he must be held to have signed the bond subject to such contingency; and so, if there had been no substitution, the person succeeding to the rights of the appellee could have prosecuted the action in the name of the appellee, and as the cause of action remained the same, the surety is in no way prejudiced by the substitution.”

In addition to the above there appears to be respectable authority, in cases of this nature, to the effect that a later surety (in point of time) will be liable to an earlier surety, based on equitable principles. Although not in point on facts, the early case of Chrisman v. Jones, et al, 34 Ark. 73, apparently bears out the significance of the time factor. At Page 77 we find this statement: “The principle in equity seems to be well established, that when successive securities for debt have been given in judicial proceedings upon the request of the debtor alone, to enable him to prolong the litigation, whilst all will be liable directly to the creditor, they will be, as amongst themselves, liable to exoneration in the inverse order of their undertakings. That is to say, those who contract last become sureties, not only for the benefit of the creditor, but in the exoneration of those who precede, and all will be liable to exonerate the original sureties for the debt, if any there be”. The Ghrisman case (along with other cases) is cited in support of the above announced rule in L.R.A. 1918 D at Page 1191, where it is stated: “. . . In cases where the appeal is not taken with the consent of the prior surety, the first surety, upon payment of the obligation of his bond, is entitled to be subrogated to the rights of the creditor as against the sureties on the supersedeas bond”. The rule relevant to the sequence of liability among sureties, often referred to as the rule of inverse order, is recognized to depend to some degree on the equities involved. The equitable element is recognized in connection with the inverse order rule in 117 A. L. R. at Page 584. It is there said: “The rule of inverse order, considered infra, III., has been sometimes laid down, to the effect that the sureties will be exonerated in the inverse order of their undertakings. However, it will be noted that this is not an absolute rule, distinct from the equitable rule, and that the cases in which the rule as to inverse order has been applied have usually been those in which there was some equity in favor of the earlier surety”.

A consideration of the present case under the modified rule still, we think, calls for a reversal. Although the equities on the side of appellant and the sureties are not easy to assess, we believe, as before indicated, that they favor appellant. In assessing the equities in favor of the sureties we should not be swayed too much by the fact that they must pay a debt which they did not create and from which they derived no tangible benefit, because it is after all an obligation which they voluntarily assumed with full knowledge of all inherent consequences. Equity must not be confused with hardship. It is always a hardship for one person to have to pay the debt of another, but it is no excuse for refusal to pay. On the other hand, under appellant’s policy of indemnity, its obligation to pay could arise only in case McLaughlin could not obtain payment from Wilhelm who was the prime obligor. The sureties, in an effort to help free their friend (Wilhelm) from all liability (by appealing) chose to assume Wilhelm’s debt, and we fail to see in what way it is inequitable for appellant to reap the benefit. After all, appellant seeks not to gain but only to avert a loss.

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

Eeversed.

McFaddin and Johnson, JJ., dissent.

Ed. F. McFaddin, Associate Justice,

dissenting. The majority is holding that the Manufacturers Casualty Insurance Company was subrogated, to the extent of $2,-000.00 to the position of Mrs. McLaughlin against Sheehan, Tyrrell, and Hoover, who were sureties on Wilhelm’s supersedeas bond in his first case in this Court. My study convinces me: (a) that the insurance company can now assert by subrogation only the rights that Mrs. McLaughlin could have asserted against the sureties on Wilhelm’s supersedeas bond; (b) that Mrs. McLaughlin lost the right to assert the $2,000.00 claim here involved, against the sureties, Sheehan, Tyrrell, and Hoover, on the supersedeas bond because Mrs. McLaughlin did not rely on that bond: instead she pursued the insurance company by execution; and (c) that when the insurance company paid the $2,-000.00, it merely satisfied a judgment against the insurance company, and is not entitled to any subrogation.

The present case is a sequel to that of Wilhelm v. McLaughlin, decided by this Court on June 2, 1958, 229 Ark. 118, 313 S. W. 2d 821, and referred to as the “first case”, to distinguish it from this one, referred to as the “present case”. Wilhelm was a real estate broker, duly licensed by the State, and, as a prerequisite for such license, Wilhelm was required to, and actually did, file with the State a fidelity bond in the sum of $2,000.00, with Manufacturers Casualty Insurance Company as surety thereon. The bond was conditioned as required by law. (See § 71-1301 et seq. Ark. Stats.)

In the first case, Mrs. McLaughlin established that Wilhelm had defrauded her. She sued, not only Wilhelm, but also Manufacturers Casualty Insurance Company (hereinafter called “Manufacturers”), as surety on his said real estate broker’s bond. Mrs. McLaughlin recovered judgment against Wilhelm for $3,700.00, and against Manufacturers for $2,000.00 on its bond, and the judgment provided that the $2,000.00, when paid, would apply on the $3,700.00 judgment against Wilhelm. Manufacturers did not appeal from the judgment against it in the first case. Wilhelm appealed to this Court in the first case and posted a supersedeas bond with Sheehan, Tyrrell, and Hoover as the sureties thereon. The judgment against Wilhelm in the first case was dated June 25,1957, and the supersedeas bond was dated July 23, 1957. When Manufacturers did not appeal the judgment against it, Mrs. McLaughlin threatened execution against Manufacturers and took the matter up with the State Insurance Department to recover on the bond. Manufacturers finally paid Mrs. McLaughlin the $2,000.00, which was the judgment against Manufacturers, and took from Mrs. McLaughlin, under date of October 3, 1957, a so-called “Assignment”.

When we affirmed the chancery decree in the first case, Manufacturers then initiated the present case by filing in the Chancery Court on July 21, 1958 its “motion for Summary Judgment” against Myrtle A. Sheehan, E. F. Tyrrell, and Warren P. Hoover, for the said $2000.00 that Manufacturers had paid Mrs. McLaughlin to satisfy the judgment rendered against Manufacturers by the Chancery Court in the first case. The Chancery Court refused Manufacturers’ plea for summary judgment against Sheehan, Tyrrell, and Hoover (but gave summary judgment against Wilhelm), and Manufacturers has now appealed. The majority of this Court is now allowing Manufacturers a judgment against Sheehan, Tyrrell, and Hoover on the theory of subrogation; and I dissent from the majority opinion. Here are my reasons:

(1) Manufacturers was a party to the first case and suffered a judgment to go against it for $2,000.00 and failed to appeal or supersede the judgment; rather, Manufacturers paid the judgment against it and should not now reap a windfall profit against the sureties on Wilhelm’s bond.

(2) Mrs. McLaughlin did not rely on the supersedeas bond signed by these sureties, Sheehan, Tyrrell, and Hoover: rather, she pursued Manufacturers with a threat of execution. When Mrs. McLaughlin did not rely on the supersedeas bond, she thereby discharged the sureties; and Manufacturers cannot stand in any position better than Mrs. McLaughlin could occupy. The text in 3 Am. Jur. 773 states the rule:

“Where the appellee declines to accept the potection of an appeal or supersedeas bond, the surety has been held discharged in some, though not all, of the cases.”

Likewise, in C. J.'S. Volume 5B, page 720, the text gives the rule :

“A surety on a supersedeas bond may set up the defense that plaintiff has declined to accept the full protection of the bond and has acted inconsistently therewith concerning the subject matter of the judgment.”

In 53 A.L.E. 807, there is an annotation entitled: ‘ ‘ Failure of obligee in supersedeas bond to accept protection thereof or his act inconsistent therewith as affecting liability on bond.”

It is true that the sureties, Sheehan, Tyrrell, and Hoover have filed no brief in this Court; but, from the study I have made, I have reached the conclusion that we should not allow subrogation in this case in the face of the authorities that I have mentioned none of which is cited or discussed in the majority opinion. When Mrs. McLaughlin pursued Manufacturers, she waived her right to also claim under the supersedeas bond; and she could not convey to Manufacturers a right that she had already waived. I submit that the Chancery Court was eminently correct in refusing Manufacturers its summary judgment against the sureties; and for these reasons I respectfully dissent, with Justice Johnson joining in this dissent.

       Mrs. Luptak was a defendant in the first ease. Mrs. McLaughlin obtained a separate judgment against Mrs. Luptak for $1,300.00, but that is not involved in the present case in any way.

       This instrument, which is the basis of the claim of subrogation herein, reads as follows: “In consideration of payment of the $2,000.00 judgment against the Manufacturers Casualty Insurance Company, which was paid to me after execution was issued in the case of Margaret O. McLaughlin v. Milton Wilhelm et al, in the Carroll Chancery Court, Western District, I hereby transfer, assign and set over unto the Manufacturers Casualty Insurance Company, the surety on Wilhelm’s real estate brokers bond, all the right, title, interest and equity that I may have had in said judgment on October 3, 1957, or at any other time.”


text:
    Lincoln Income Life Insurance Company v. Alexander.
    5-1911
    328 S. W. 2d 266
    Opinion delivered October 26, 1959.

      Bethell & Pearce and Lawson Cloninger, for appellant.

      Sexton, Holland $ Morgan, for appellee.
   Jim Johnson, Associate Justice.

This appeal involves a suit to recover under a double indemnity clause in a life insurance policy.

Appellees, Elzo Alexander and Eosie Alexander, are the named beneficiaries in a life insurance policy issued by appellant, Lincoln Income Life Insurance Company, upon the life of Evard O’Leary Alexander, brother of Elzo Alexander. The policy provides for the payment of $1,000 in the event of death of Evard O’Leary Alexander and further provides for the payment of an additional $1,000 should the death of Evard O’Leary Alexander result from violent, external and accidental means.

The insured, Evard O’Leary Alexander, died on September 12, 1957. The cause of death was a penetrating stab wound in the abdomen inflicted upon him by one Lovely Lee during an encounter in front of the Nightingale Tavern in Kansas City, Missouri, on September 5, 1957.

Proof of loss was filed and appellant paid the appellees $1,000, the face amount of the policy, but declined to pay the double indemnity amount. Appellees filed this action to recover the sum of $1,000 under the double indemnity provision of the policy, plus the statutory twelve per cent penalty and attorneys’ fee.

Answering, appellant denied that the death of the insured resulted from accidental cause, and alleged that the insured died as a result of his participation in an assault and as a result of a stab wound intentionally inflicted by another, claiming that either would exempt the appellant from liability for double indemnity under the terms of the policy.

Appellant admitted that the death of Alexander was from violent and external means. It undertook to establish that the death was not accidental, or that if accidental, the death came within one of the exclusions contained in the policy. To sustain this burden appellant offered the testimony of four persons. The testimony of these witnesses is summarized as follows:

Rosa Lea Harding, a 29-year-old unmarried colored female, was evidently a woman of the night. Her testimony established solely that she was in the Nightingale Tavern on the evening of the fatal occurrence, that Lee and Alexander were present, that both were ejected for loud talk, and that she saw Alexander immediately after the stabbing and that he had no weapon.

Carl Di G-erlamo testified only that he was an insurance . agent and that he was in the Nightingale Tavern on business. Beyond this he professed no knowledge of the facts, except that he did not see a weapon on either man at any time.

Gfurinder Abner, the bouncer in the Nightingale Tavern, testified that he escorted both men from the Tavern because they were talking loud, but that both men were agreeable to leaving the establishment. That he walked between them to the door and that Lee preceded Alexander out the door because he, Abner, was between them until they reached the door. That he did not see any fight, but that he saw Alexander within one minute after Alexander left the Tavern and that at that time he had been stabbed and he did not have a weapon on him.

Lovely Lee, the admitted killer of the insured, admitted that he struck the fatal blow. Beyond that point his testimony is in conflict, not only with that of the other witnesses, but with his own testimony given at the time of his trial for the murder of Alexander. In fact, Lee was so evasive in giving answers that he refused even to concede that he was a colored man. Lee denied that either he or Alexander were ejected from the Nightingale Tavern. The testimony of Gurinder Abner and Rosa Lea Harding (witnesses for the defendant) squarely contradicts this. Lee claimed that he had left the Tavern and was sitting outside with his hand in his pocket when Alexander came out. The testimony of Gurinder Abner again squarely contradicts him for Abner testified that the two men left at the same time and that Alexander was outside the door less than a minute before returning stabbed. Lee here claimed that Alexander was coming at him with a knife. Yet he admitted that at his own trial for murder, where his life was at stake, his then story was that Alexander had his hand in his pocket. Portions of Lee’s testimony are undisputed. It is undisputed that Alexander did not strike Lee; it is undisputed that Alexander did not say a word to Lee after leaving the Tavern and it is undisputed that Lee and Alexander did not agree to fight. Lee also testified that someone outside had yelled “Look out” and that there were 25 or 30 persons inside the Tavern.

The case was tried before a jury. A verdict was returned for the appellees. Judgment was entered for appellees against appellant for the snm of $1,000, plus statutory damages of $120, attorney’s fee of $500, and court costs, from which comes this appeal.

For reversal, appellant relies on four points. Point 4, relied on by appellant for reversal, will be discussed first. Appellant contends that: “The Court erred in giving to the jury Instruction No. 11 at the request of plaintiffs and over the objections of defendant.” Instruction No. 11 is as follows:

“The killing of an unarmed person by one upon whom he is moving aggressively is by accident or accidental means if the unarmed person did not know and had no reason to believe that his adversary was armed and intended to kill him upon such advance. Thus, should you find that Alexander was moving aggressively upon Lee, but was unarmed, you are instructed that the death of Alexander was by accident or accidental means unless Alexander knew or had reason to believe that Lee was armed and intended to kill him.”

The language in this instruction is taken from Gilman v. New York Life Insurance Company, 190 Ark. 379, 79 S. W. 2d 78. . This rule has been the law in Arkansas for more than 20 years. It has been cited with approval by other courts and treatise writers and is in accordance with the prevailing general rule. We find no error in the trial court’s giving Instruction No. 11.

Appellant’s point 1, relied on for reversal, contends that “The evidence is insufficient to support a finding that the insured died as a result of accidental injury. ’ ’

It is undisputed that the death of Evard O’Leary Alexander was caused by a penetrating stab wound of the abdomen, and that the stab wound was caused from “violent and external means.” This being so, a presumption of law arises that the death was accidental. Gilman v. New York Life Insurance Company, supra. The jury was so instructed, without objection from appellant, and in fact appellant recognized this presumption and accepted the burden of proving that death was not caused by accidental means and claimed the privilege of opening and closing because of its assumption of the burden of proof.

Appellant introduced all of the evidence but the essential facts were in dispute. It was for the jury to decide which testimony it would accept and which it would reject and the weight to be assigned to each item of evidence and the credibility of the witnesses. Missouri Pacific R.R. Co. v. Hancock, 195 Ark. 414, 113 S. W. 2d 489.

Appellant’s point 2 relied on for reversal contends that “The evidence is insufficient to support a finding that death of the insured did not result from his participation in an assault.”

The policy of insurance sued upon contains an exclusion for “death resulting from . . . participation in a riot, assault, or felony.” It is settled law in this jurisdiction that the character of assault contemplated by such words of exclusion is not a simple assault but it must have been of such severity as would have justified the assaultee in inflicting death or serious injury by way of self-defense. Gilman v. New York Life Ins. Co., supra. Also see: 26 A. L. R. 2d, beginning on page 406 where it is said:

“But most of the courts, in stating the conditions of the accident insurer’s non-liability for injury or death to an insured in the course of an assault wrongfully committed upon another have indicated that in order to excuse the insurer, the insured’s injury or death must have been a reasonably foreseeable, as well as a natural consequence of his wrongful acts.”

Great weight is attached to the insured’s ability to foresee the natural and probable consequences of his action. If the action of the insured is such that a reasonable person would conclude that danger of serious injury might result, recovery would be denied. If the action is such that the insured could not reasonably foresee the fatal consequences, recovery will be permitted. The testimony on this point in the case at bar was in irreconcilable conflict, hence a question for the jury.

Appellant’s point 3 relied on for reversal contends that “The evidence is insufficient to support a finding that the death of the insured did not result from an injury intentionally inflicted by another. The general rule is that an exclusion for death resulting from injuries intentionally inflicted by another means that there must be an intention not only to commit the injury but that the fatal consequences will result therefrom. Southern National Insurance Company v. Lofton, 178 Ark. 839, 12 S. W. 2d 402.

Appleman, Insurance Law and Practice, Vol. 1, Sec. 483, states the rule:

“Under the principles of liberal construction, the courts have in many instances held that if the assailant did not intend to cause death . . . even though the assailant intentionally caused injury, recovery would not be denied.”

This author cites cases from Florida, Kentucky, Louisiana, Oklahoma, West Virginia, and California, as well as the Arkansas rule to support this proposition. In the instant case, Lee, the appellant’s star witness, told the jury that he did not intend to injure or kill'' the decedent at the moment of striking. The jury was justified in so believing and finding, since it was indicated that Lee was acquitted of the killing.

After a careful review of the record, we are convinced that there is substantial evidence to support the verdict of the jury. Finding no error, the judgment is affirmed.

We have decided that appellees’ attorneys are entitled to a combined additional fee of $100. This is because the trial court, in allowing the attorneys’ fees, made it plain that said amount did not include any attorneys’ fees for an appeal to this Court.