text:
    Care L. White, Jr. v. Joanne S. McBride, et al
    4698
    434 S.W. 2d 79
    Opinion Delivered November 11, 1968
    [Rehearing denied December 16, 1968.]

      Arnold, Hamilton & Streetman for appellant.

      Brew & Hollaway for appellees.
   Paul Ward, Justice.

This is an appeal by Carl L. White, Jr. (appellant) from a chancery decree denying him a portion of his father’s property. His father was Carl L. White, Sr. who died on October 19, 1965. Appellant was one of three brothers. One brother was J. Austin and the other was Robert Gr. who died in December 1959, leaving his widow Joanne (Smith) McBride and a son named Robert L. White. Austin, Joanne and Robert L. are the appellees in this case.

On September 9, 1966 appellant filed a complaint in chancery court, alleging, in substance: (a) That his father [referred to at times as Senior] was once the owner of the stock in Breece-White Manufacturing Company (called Co.) which owned numerous tracts of land; (b) That in 1950 Senior, pursuant to a family agreement, transferred to Robert Gr. all his unencumbered stock in the Co. to hold same in trust for himself, J. Austin, and appellant, with the understanding that he (Senior) reserved the right to manage the Co. at a substantial salary as long as he lived; (c) That without appellant’s knowledge appellees converted to their own use all the stock in the Co., liquidated the Co., and that Senior conveyed the real estate (by warranty deeds) to J. Austin and Joanne, Executrix. Appellant asked the court to find that appellees were holding one-third of all assets in trust for him.

In answer to the above, complaint, appellees denied all material allegations and affirmatively pleaded the statute of frauds, the statute of limitations, and laches.

After hearing the testimony the trial court dismissed the complaint, finding appellant’s cause of action was barred by laches and the statute of limitations.

It is our conclusion that the trial court was correct and that the decree must be affirmed.

The trial court found that in 1950 there was a family agreement between Senior and his sons whereby Robert Gr. was to hold Co. property in trust for all three of them. On appeal, appellees have spent much time and effort to show there was no such agreement. Under the view we take it is unnecessary to resolve that conflict. We do point out such agreement, if any, was not in writing. Assuming, for the purpose of this opinion there was such agreement, we still are of the opinion that the trial court was correct in dismissing appellant’s complaint on the ground his cause of action was barred by the statute of limitations.

Appellant, in his brief, agrees that he had knowledge of repudiation of the trust agreement not later than April 9, 1961. The trial court found the trust was repudiated by Joanne in June, 1960. A careful search of the records confirms both appellant and the court. In view of this situation, and in view of the fact that the complaint was not filed until September 9, 1966, we think appellant’s alleged cause of action was barred by Ark. Stat. Ann. § 37-206 (Repl. 1962) which, in material parts, reads:

“The following actions shall be commenced within three [3] years . . . after the cause of action shall accrue . . . forth, all actions (of account, assumpsit, or on the case, founded on any contract or liability, expressed or implied . . . .”

The above statute was interpreted and applied in Air Leases, Inc. v. Baker, 167 F. Supp. 145 (W.D. Ark., 1958). In that opinion we find this statement:

‘ ‘ It will be noted that in the amended complaint plaintiff attempted to state two claims against the defendant: (1) A claim in tort for fraud and deceit . . . The statute of limitations begins to run as soon as the cause of action accrues. There is no allegation by plaintiff or any fraudulent concealment by defendant of plaintiff’s cause of action . . . The three-year statute of limitations, Ark. Stats. Ann. Sec. 37-206 (1947), applies to bar torts, Burton v. Tribble, 189 Ark. 58, 70 S.W. 2d 503; Field v. Gazette Publishing Company, 187 Ark. 253, 59 S.W. 2d 19. An action for fraud and deceit is, of course, a tort, and is barred by the three-year limitations. Lilly v. Simmons National Bank, 108 Ark. 342, 158 S.W. 144.” (Emphasis ours.)

Said section was also construed in Tellier v. Darragh, 220 Ark. 363, 247 S.W. 2d 960. There we said:

“By accepting a contractual lien upon this land Mrs. Tellier brought herself within . . . the three-year statute applicable to implied obligations not in ivriting (Ark. Stats., § 37-206 ...” (Emphasis ours.)
* # *
“It is familiar law that, in the absence of concealment, the trustee of a constructive trust is entitled to the benefit of the statute of limitations and the defense of laches. Matthews v. Simmons, 49 Ark. 468, 5 S.W. 797.”

The trial court also held that appellant’s cause of action was barred by laches. We agree, but deem it unnecessary, in view of the conclusion already reached, to belabor that point. We do point out the record discloses that after appellant learned he was allegedly being deprived of part of the property he waited until his father died before taking legal action. Obviously, his father would have been a material witness.

Affirmed.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Freddie D. Nagel v. Minnie Doris Nagel
    4672
    433 S.W. 2d 371
    Opinion Delivered November 11, 1968

      John F. Gibson for appellant.

      William H. Drew for appellee.
   Lyle Brown, Justice.

This is a controversy over the custody of two small children. This appeal by Freddie D. Nagel, the father, stems from the court’s denial of his petition to set aside a custody order which had previously given the appellee (mother) custody, subject to visitation rights of the father.

The parties married in 1960 and lived together until January 1965. Judy was born to the union in September 1963, and Freddie was born in June 1964. In a contested proceeding in early 1965, the father obtained a divorce; the mother was awarded temporary custody of the children; the right of reasonable visitation was vested in the father, along with the privilege of having Judy visit with the father and paternal grandparents each weelc-end; and, provisions were made for child support to be paid the mother. Late in the same year the parties were back in court concerning custody. The mother sought modification of the week-end visitation privilege concerning Judy; the father responded that Minnie Doris Nagel had married one Travis Gibbs; that Gibbs had a drinking problem and principally for that reason the children would not be in a good environment; and that custody should be vested in the father. The trial court, after testimony, declined to modify the previous custody arrangements; however, the court did add a provision which would diminish the chances of the children being exposed to the environment of alcoholic beverages. That part of the modification which is here significant is as follows:

“. . . ; that she [mother] not allow said wards to remain at any place where alcoholic beverages are being consumed, sold, stored, or kept for human consumption. It is further ordered, that in the event of the violation of this order, this custody order be, and the same is hereby ipso facto vacated and the court will remove the custody of said wards from Minnie Doris Nagel, now Gibbs, and award custody to a qualified custodian.”

That order was entered January 25, 1966. The recited prohibition provision formed the basis of a subsequent petition for modification, this time by the father. In June 1966, Freddie D. Nagel alleged that Gibbs was drinking excessively and in the presence of Nagel’s children; that Minnie Doris Nagel Gibbs had violated the order; and, that she had permitted the children to remain in the presence of Gibbs when he was intoxicated. Nagel prayed that he, the father, be given custody of the children.

Some ten witnesses testified at the hearing. The second husband of Minnie Doris Nagel — Travis Gibbs —was the principal subject of the testimony; it concerned his drinking habits. The mother was called as a witness by the father. She conceded that since the court order of January 1966, she had on probably five occasions acceded to Travis Gibbs’ request that she pick up a bottle of whisky for him at a retail outlet; and that on two of those occasions, one or both children may have been with her. However, she insisted that she left the liquor in the pick-up truck and insisted that at no time was it taken into the home. Another witness (Mrs. Ramey) for Nagel testified that she had seen Travis Gibbs, subsequent to the court order of January, consume liquor in the Gibbs home and in the presence of the children. However, on cross-examination it developed that the witness never saw the bottle because it was in a paper sack. She conceded she was not sure it was liquor. Another witness testified that a month after the January court order he accosted Gibbs asleep in a truck by the side of the road late at night; that the truck was stranded and Gibbs was intoxicated. Freddie Nagel testified that on one occasion he came upon Gibbs on the highway and Gibbs was intoxicated and belligerent; and that on February 20, 1966, and three times thereafter, Nagel witnessed Gibbs buying liquor.

In her own behalf, Doris Nagel Gibbs denied having knowingly violated the court order. She asserted that she did not understand the order forbade her from running errands for her husband; that to her knowledge no liquor had been consumed in her house since the January 1966 court order; that she drinks no intoxicants of any kind; that if Mrs. Ramey saw her husband drink something out of a bottle enclosed in a sack, it probably was his medicine, which is non-alcoholic.

That hearing was conducted November 18, 1966. The trial court kept the matter under advisement for more than eleven months, principally in the hope that the parents would develop a more cooperative attitude over their custody obligations. In the interim the court enlisted the aid of the child welfare division of the Department of Welfare, pursuant to Ark. Stat. Ann. § 22-136 (Repl. 1962). Child Welfare investigated “to ascertain if there was any further evidence in existence to show that he [Gibbs] was causing his wife to be in violation of the order so that the action could be reopened for further testimony.” That report was negative, that is, no additional evidence was found against the mother.

The chancellor refused to disturb the custody arrangements contained in his order of January 1966. The basic issue before the chancellor was whether the mother had permitted the children “to remain at any place where alcoholic beverages are being consumed, stored or kept for human consumption.” Specifically, it centered on the unquestioned drinking habits of Travis Gibbs — not whether Gibbs drank intoxicants in the presence of the children — but rather, whether the mother allowed these children to remain at a place where they would be exposed to the intoxicants and/or the consumption thereof. We are not unmindful of other allegations made by Nagel; we have examined the abstract and agree with the chancellor that they are without merit ; and that conclusion is not seriously questioned by appellant.

The phraseology of the January 1966 order was that of the chancellor. He knows better than any other person precisely what type of activity was included in his order pertaining to intoxicants. The chancellor stated in his findings that he had made “a careful and deliberate evaluation” of the testimony and concluded that the evidence against appellee mother did not establish a violation; at least it did not preponderate to the degree required to sustain the charge. Considering the facts that the chancellor authored the phraseology of the prohibition, heard the witnesses, had the problems of this family before him almost continuously for a period of three years, and satisfied himself that no other evidence existed against the mother — in view of those combined factors — we refuse to substitute our judgment for that of the chancellor. Holt v. Taylor, 242 Ark. 292, 413 S.W. 2d 52 (1967). At least we certainly cannot say his findings were against a preponderance of the evidence.

Appellant here confines his argument to citing the prohibition against intoxicants, directing attention to appellee’s alleged violations, and reasons that it became obligatory on the chancellor to change the custody of the children. With that reasoning we cannot agree. In a case of this nature we should cleave to the paramount concern of the chancellor — the welfare of the children. The fact that they are of tender years, and being well nutured by a mother who practices abstinence — these and other factors are certainly to be evaluated.

Affirmed.

Byrd, J., not participating.


author: J. Feed Jones, Justice.

text:
    John E. Yarbro v. Joseph A. Gentry
    4684
    433 S.W. 2d 381
    Opinion Delivered November 11, 1968

      Van Albertson and John W. Cloer for appellant.

      M. D. Anglin for appellee.
   J. Feed Jones, Justice.

This is an appeal from the Madison County Chancery Court and it is difficult to determine from the record before us, exactly what this case is about. Apparently the pleadings, exhibits, testimony and arguments in this case, were as confusing to the chancellor as they are to us.

The record reflects that on June 17, 1964, the appellee, Gentry, filed a complaint in the Madison County Chancery Court alleging that on March 6, 1959, he entered into a contract with the appellant, John E. Yarbro, under the terms of which he sold to Yarbro certain personal property on which he retained a lien for the purchase price which had not been paid. Although the complaint recites that a copy of the contract was attached to the complaint as exhibit “A”, no exhibit “A” appears in the record before us and no contract is attached to the complaint. The complaint alleged that the contract was a security arrangement in that Gentry had a first lien on all of the property contained and described in the contract. The complaint alleged that the defendant, Yarbro, was in default in the terms of the contract, and that the plaintiff elected to foreclose the security transaction. The complaint then prayed judgment against Yarbro in the sum of $10,923.59, plus interest from April 1, 1964, and that if the judgment be not paid within the time fixed by the court, the property be sold at public auction in the manner and under the terms to be fixed by the court. In the alternative, the complaint prayed that if the court should find “this is not a security contract,” the court order said contract canceled and that the defendant be ordered and directed to deliver to the plaintiff all of the property called for and described in the contract, together with costs.

Following the complaint in the transcript, appears a separate mimeographed copy of a sheet of paper containing a list of various items of machinery. At the bottom of this list of items a deletion appears in the mimeographing process, leaving the last item on this mimeographed list as follows: “One lease contract, dated February 4, 1952, covering the following described real estate:

“The NE Quarter of the SW Quarter of Section 19, Township 17, Range 25, including the location of the two [2] rock quarries.”

No lease contract, or copy thereof, appears in the entire record. This mimeographed sheet has a notation in the margin “Ex. #1” and on the bottom of this sheet appears a notation as follows: ‘ ‘ This was marked exhibit No. 1 for the defendant-petitioner, to the testicony of Mr. Gentry.” Preceding this notation there is also what appears to be a reporter’s notation, and one with which we heartily agree, as follows: “This was not attached to any pleading, so do not know where it is supposed to be placed in this record.”

It would only prolong this opinion to point out all the inadequacies of the record, but it appears that on June 9, 1965, the chancellor signed an order which was recognized and treated by the parties at the time, as a judgment for Gentry against Yarbro in the amount of $11,657.99 and for a foreclosure of a lien against property. This order recites as follows:

“It is, therefore, ordered, adjudged and decreed that the equity of redemption of defendant and all persons claiming under, through or from him in and to the said property, to-wit: Be and the same hereby is forever barred and foreclosed as well as any rights, equities, title or interest of any such persons to any property into which any part of the value of the above described property has been transformed by ‘trade-in,’ ‘set-off’ or in any other manner.”

This order then directed the sale of the property by the sheriff and directed the disposition of the proceeds from such sale toward the satisfaction of the judgment.

On July 2, 1965, the chancellor signed an order reciting that by the order of June 9, he had found for the plaintiff in the amount of $11,657.99 upon a contract and vendor’s lien set forth in the complaint and the sheriff of Madison County was ordered to proceed to execute on the judgment, and apply the proceeds from sale “First, to the payment of all costs accrued in this action; Second, to the costs and expenses of said sale; Third, to the amount found due to plaintiff aforesaid, with interest and costs as aforesaid, and with attorney’s fees in the amount of 10% of the total amount recovered for plaintiff.”

The next item in the transcript of record before us is an instrument titled “Writ of Execution” directing the sheriff of Madison County as follows:

“You are commanded that of the estate of John E. Yarbro, you caused to be made the sum of $11,-657.99 which Joseph A. Gentry, late in our court, recovered against him for debt with interest thereon from the 18th day of May, 1965, to June 9, 1965, at the rate of 5% per annum and from June 9, 1965, to date of the decree, which is the basis of this Writ of Execution at the rate of 6% per annum; also, attorney’s fee in the amount of 10% of the total amount recovered and the costs of said Joseph A. Gentry in this suit expended; and that you have said sums of money within sixty (60) days to render to the said Joseph A. Gentry his debt, interest and the costs aforesaid.
“The execution herein is as to that property which was the subject of a contract between Joseph A. Gentry, plaintiff, and John E. Yarbro, defendant, dated March 6, 1959, more specifically the following property, to-wit:”

Then follows a list of machinery and equipment but no lease on real property is mentioned in this instrument. This instrument does show a date of July 3, 1965, and was apparently signed by the clerk of the chancery court of Madison County, but it bears a reporter’s notation “no filing mark on this paper.”

The record indicates that a public sale was carried out by the sheriff of Madison County at which eighteen items of the personal property contained in the writ of execution were offered for sale, and that Gentry offered the highest and best bid at the sale and purchased the items for $100,00 which was credited on his judgment against Yarbro. This accreditation is only evidenced by an unsigned, and apparently unfiled, bill of sale form prepared with the intention that the sheriff would sign it on September 3, 1965.

Such was the status of the record in this case when on February 5, 1968, a motion was filed by the defendant, Yarbro, stating that on the 9th day of June, 1965, the court made an order directing that certain personal property and one lease contract, dated February 4, 1952, be foreclosed and sold under the direction of the sheriff of Madison County; that in said order no judgment was rendered against defendant in favor of the plaintiff; that such order provided, “if proceeds of sale are not sufficient to make said payments, this decree shall not bar the decree of deficiency judgment against defendant herein.” The motion then alleged that the personal property and lease described in the order were not sold as directed by the conrt, and that no decree of deficiency judgment was ever rendered against the defendant; that the court should direct the sale of said property so that the court order dated June 9, 1965, could be carried out and the proceeds from such sale could be credited on any sums that defendant may owe to the plaintiff and a deficiency judgment rendered against the defendant for any sum remaining unpaid. This motion concludes as follows:

“Wherefore defendant prays that the court make an order finding (1) that said personal property and lease described in the order of the court dated June 9, 1965, were not sold and should be sold to carry out said order in all respects, (2) that no valid judgment was rendered against the defendant in said order, (3) that by the terms of said order of June 9, 1965, a deficiency judgment was not to be rendered against the defendant until a later date which was not done, as the property was not sold, (4) that writs of garnishment issued hy the Clerk of the Court should he quashed and set aside, and for all other just and proper relief.” (Emphasis supplied.)

Gentry responded to this motion setting out that the order of June 9, 1965, had been carried out by the sheriff in levying on the property under the order of July 2, 1965; that the order had been fully executed by the sheriff; that no mention was made pertaining to the sale of real estate or lease on real estate; that the judgment obtained by Gentry against Yarbro had not been appealed; that the very matters litigated in the original suit are now being sought to be re-litigated by the defendant and the defendant is estopped by judgment in the original suit and by delay in attempting to litigate the matter further. The plaintiff concludes his response to defendant’s motion with a one sentence paragraph as follows: “The plaintiff further sets up the defense by res adjudicata.”

The chancellor made a finding of facts indicating that the record in this case was as confusing to him as it is to us, but the chancellor overruled the motion in the following language:

“1. [T]he motion of the defendant asking for sale of the lease contract dated Feb. 4, 1952, covering the following real estate in Madison County, Arkansas, to-wit: NEx/4 of SW% of Sec. 19, Township 17, Range 25, including the location of 2 rock quarries, is denied and the motion dismissed.
“2. [T]he plea of the plaintiff, Joseph A. Gentry, of estoppel and res adjudicata is sustained.
“It is therefore decreed and ordered that the motion of the defendant, John E. Yarbro, is dismissed for want of equity, with costs to be paid by defendant. ’ ’

Yarbro appeals to this court and relies on the following points for reversal:

“1. The court erred in allowing the claim of estoppel which was not specially pleaded and proved.
“2. The court erred in allowing the claim of res adjudicata which was not specially pleaded and proved.
“3. The court erred in not ordering the sale of the lease.”

We gather from the overall record before us, that Yai’bro purchased mining equipment, together with a lease from Gentry, and defaulted in payment when due. Gentry sued and obtained judgment for balance due. Gentry attempted execution and purchased some of the personal property at a sheriff’s sale and credited the sale price on his judgment against Yarbro. Gentry has now sued out a garnishment against funds due Yarbro, and Yarbro contends that Gentry retained a lien on the lease, as well as other property, to secure the sale price and that the lease should be sold and the proceeds credited to the judgment before garnishment should attach. Gentry contends that he now owns the lease as a result of another lawsuit.

The record is not at all clear as to what happened to the alleged lease as between Gentry and Yarbro in this case. The complaint does not mention a lease, and although the complaint does refer to a contract, the contract is not in the record. The order of June 9, 1965, ordering the sale of mortgaged property does not mention a lease and no mortgage appears in the record. There was no lease mentioned in the order of sale and there is nothing in the record before us that would indicate that a lease on real property should have been sold under execution.

Both Mr. Gentry and Mr. Yarbro, however, seem to recognize that a lease on real property constituted a part of what Gentry sold to Yarbro and for which Yarbro had not paid Mr. Gentry when this lawsuit was commenced. Both Gentry and Yarbro seem to recognize that Gentry obtained a judgment against Yarbro which included the amount Yarbro had agreed to pay for the lease, together with other property. On this point Mr. Gentry testified as follows:

“Are you the same Joseph A. Gentry that was in a case against John E. Yarbro, being number 3484 in the Chancery Court of Washington County-Madison County, Arkansas?
A. Yes, sir.
Q. In 1965?
A. Yes, sir.
Q. And Mr. Gentry, in that suit, yon were foreclosing, I believe, a lien, was it not?
A. A sales contract.
Q. A sales contract consisting of what?
A. Equipment, mining equipment.
Q. And a lease?
A. Yes.
Q. Was it this particular lease which is mentioned in the pleadings here?
A. Yes.
Q. All right.
A. A lease.
Q. I hand you this, document and ask yon to tell me what that is?
A. It’s a list of the equipment I sold to Mr. Yarbro.
Q. Does it include the lease also down at the bottom: ‘The Northeast quarter of the Southwest quarter of Section 19, Township 17, Range 25, including the location of two rock quarries.’
A. I believe that is correct. I wouldn’t say for sure. It’s the same lease that the Supreme gave back to me. [sic].
Q. It’s the same what?
A. The same lease that the Supreme Court said was mine. The same one.
Q. Do you know who owned that lease at the time you filed this action against Mr. Yarbro?
A. Berry Denny owned the land and Mr. Yarbro was supposed to own the lease.”

Certainly the appellant, Yarbro, by his motion filed in this case, recognizes the lease as being a part of the property he purchased from Gentry and for which the judgment was rendered against him. Gentry contends that he already owns the lease which Yarbro contends should be sold and the proceeds applied on Gentry’s judgment against him.

The mandate and decision of this court in Gentry v. Holland, 243 Ark. 172, 419 S.W. 2d 130, was offered in evidence by the appellee, Gentry, and was made a part of the record in this case. Extrinsic evidence was offered to the effect that the lease involved in the Holland case is the same lease that is involved here, so we conclude that our decision in the Holland case is res judicata only as to the identity of the same lease in both eases. (Hastings v. Rose Courts, 237 Ark. 426, 373 S.W. 2d 583). Gentry v. Holland, as the decision points out, was a suit by Holland to quiet his title, the lease here involved being the primary cloud complained of. Holland, as fee owner, claimed forfeiture of the lease for default in monthly rental payments. The chancellor held that the mining lease had forfeited to the fee owner in that case and we reversed, holding that Gentry was the owner of the lease.

As to the lease in the Holland case, we said:
“ Gentry sued Yarbro and on June 9, 1965, a judgment was entered in that case in the Madison Chancery Court. All rights of Yarbro in and to the lease were cancelled. The personal property was ordered sold to apply on Gentry’s judgment. * * * The Madison Chancery Court, in an action separate from the one before us, determined that Gentry was entitled to be reinvested with that which he conveyed to Yarbro. * * * We affirm the trial court’s findings in all respects except as to the lease in question, title to that instrument being vested in Gentry.”

Our decision in the Holland case indicates that it may have been partially based on the record in the case now before us, but the case now before us does not contain any part of the record upon which the Holland decision was based. We do not take judicial notice of records of evidence in other cases in deciding a case that is before us. Murphy v. Citizens’ Bank of Junction City, 82 Ark. 131, 100 S.W. 894, 11 L.R.A. (n.s.) 616, 12 Ann. Cas. 535; Adams v. Billingsley, 107 Ark. 38, 153 S.W. 1105; McCoy v. Anthony Land Co., Inc., 230 Ark. 244, 322 S.W. 2d 439; Gibson v. Buckner, 65 Ark. 84, 44 S.W. 1034; Hall v. Cole, 71 Ark. 601, 76 S.W. 1076.

As we view the case now before us, res judicata as to Gentry’s ownership of the lease is beside the point. The actual difference between Yarbro and Gentry, is not which of them owns the lease. The question is not whether the lease reverted to Gentry by cancellation of a contract with Yarbro under.the terms of the contract, or under a court order. The question is not whether title to the lease vested in Gentry through foreclosure of his “contract” or mortgage against Yarbro, or because of Yarbro’s default in diligence in the Holland case. The actual question as between Gentry and Yarbro as we see it, is whether Gentry’s judgment against Yarbro includes the sale price of the lease, and if so, whether the judgment has been credited with the value of the lease.

We are of the opinion that if Gentry sold the lease to Yarbro and retained a lien on it as security for its purchase price; and if the price Yarbro agreed to pay for the lease is included in the judgment against Yarbro for its purchase price, then such judgment should be credited with the value of the lease.

We conclude, therefore, that this case should be remanded to the trial court for a determination of whether the value of the lease was included in the judgment Gentry obtained against Tarbro, and if the value of the lease was so included, the value of the lease as of the date of the judgment, should be determined and credited on the judgment. This case is remanded to the Madison County Chancery Court for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Brown and Byrd, JJ., dissent.


author: Conley Byrd, Justice.

text:
    Fay L. Tuel v. National Central Life Insurance Co.
    4644
    433 S.W. 2d 369
    Opinion Delivered November 11, 1968

      Tom Gentry for appellant.

      Gannaway & Darrow and Lance Hanshaw for appellee.
   Conley Byrd, Justice.

This is a second suit by appellant Fay L. Tuel on a disability policy issued by appellee National Central Life Insurance Company, this suit being for continuous disability benefits alleged to have accrued at the rate of $150 per month after March 22, 1967. Appellant had earlier sued appellee for benefits accruing from April 15, 1964 (the date of the accident giving rise to the disability) to March 22, 1967, which resulted in a jury verdict of $600. The sole issue here is whether the prior judgment is conclusive of the total disability issue in the present action. The trial court held that the $600 judgment was res judicata.

Part Two and Part Three of the insurance policy sued upon provide:

“Part Two —TOTAL DISABILITY CONFINEMENT BENEFITS FOR LIFE
If “such injury” as is described in the Insuring Clause, independently of all other causes, shall within twenty-four hours from and after the date of the accident render the Insured totally and continously disabled and prevented from performing any and every duty pertaining to any business, household duty, or occupation, or if a Minor, prevented from attending school or engaging in any recreational activity, but as a direct result thereof shall necessarily continuously and totally confine the Insured within doors, while requiring regular treatment therein by a legally qualified Medical or Osteopathic physician or surgeon, then the Company will pay to the Named Insured, commencing with the first treatment by a physician or surgeon, an indemnity for one day or more at the rate of One Hundred Fifty Dollars ($150.00) per month, even for life, so long as such total disability and total confinement is continuous. Benefits payable under this part are in lieu of benefits under Part One and if hospital confined, benefits under this
Part Two are payable in addition to benefits payable under Part Three.

Part Three —TOTAL DISABILITY HOSPITAL CONFINEMENT BENEFITS

If “such injury” as is described in the Insuring Clause, independently of all other causes, shall within twenty-four hours from and after the date of the accident render the insured totally and continuously disabled, and as a result thereof thereby shall necessarily continuously and totally confine the Insured within a hospital while requiring regular treatment within the hospital by a legally qualified Medical or Osteopathic physician or surgeon, then the Company will pay benefits to the Named Insured, commencing with the first treatment by a physician or surgeon, an indemnity for one day or more, resulting from any one accident, at the rate of Ten Dollars ($10.00) per day for a period not to exceed Fifty Days. Benefits payable under this Part are in lieu of benefits under Part One and shall be payable in addition to benefits payable under Part Two.”

The complaint in the prior action sought judgment from the insurer for $150 per month from April 15, 1964 through August 2, 1964, and from August 13, 1964 to the date of trial. For the period of August 2 to August 13, 1964, Mrs. Tuel sought compensation at the rate of $170 per week because she was hospitalized. The insurer’s answer admitted the issuance of the policy and denied all other matters. However, the trial court submitted three issues to the jury as follows:

“COURT’S INSTRUCTION NO. 1: If you find from a preponderance of the evidence that Mrs. Tuel sustained injuries directly and solely resulting from an automobile collision while an occupant of an automobile, and that within twenty-four hours thereafter such injuries rendered Mrs. Tuel totally and continuously disabled from April 15,1964 to the present time and rendered her unable to perform any and every household duty as explained in these instructions and that as a direct result of such injuries Mrs. Tuel has been necessarily, continuously and totally confined within doors as explained in these instructions and that as a direct result of such injuries Mrs. Tuel has required regular treatment by a qualified physician and that such disability and confinement as explained in these instructions has been continuous from the 15th day of April, 1964, to the present time, then your verdict will be for the plaintiff in the amount of $5,-290.00.”
“COURT’S INSTRUCTION NO. 2: If you find that the plaintiff has been disabled and confined as set out in these instructions but is no longer so disabled and confined as described in these instructions, then you may find for her in the amount of $150 per month for so long as you find her to be so disabled and confined as defined in these instructions.” (Emphasis ours.)
“COURT’S INSTRUCTION NO. 3: If you find that the plaintiff has not met the requirements of the policy as defined in these instructions, then you will find for the defendant.”

The jury’s verdict upon which judgment was entered read: “We, the jury, find for the plaintiff Fay L. Tuel, and assess her damages at $600.00.”

Appellant, relying upon Aetna Life Insurance Company of Connecticut v. Martin, 108 Fed. 2d 824 (1940), contends that a general verdict for less than the face amount of an insurance policy containing stipulated monthly payments while totally disabled for a certain period of time will not support a plea of res judicata when a subsequent suit is brought concerning a period of time which accrued after the time litigated in the first. In connection therewith appellant suggests that the partial jury award in the first Tuel case may have been the result of a compromise in the jury room recognized by this court in Fulbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 49 (1928), and Alexander v. Mutual Benefit Health and Accident Assn., 232 Ark. 348, 336 S.W. 2d 64 (1960).

Had the first suit been submitted to the jury solely on the issues of total disability and denial thereof as framed by the pleadings, we would be inclined to agree with appellant that a jury’s partial award would not be res judicata. However, such is not the situation here, for the jury clearly had three alternatives under the issues framed by the court’s instructions — i.e., (1) to find total disability for the full period; (2) to find that Mrs. Tuel had been totally disabled, but was no longer totally disabled; ahd (3) to find that Mrs. Tuel was not disabled at all. When the jury returned a verdict in accordance with the second theory submitted to them, we, like the trial court, can only conclude that the jury must have found that Mrs. Tuel had recovered from the disability which she sustained April 15, 1964.

It has been suggested that in determining the issue of res judicata we are limited to the pleadings filed and the judgment entered. To so hold would not only ignore Ark. Stat. Ann. § 27-1160 (Repl. 1962), which permits the trial court to consider the pleadings amended to conform to the proof, but would also be contrary to our adjudicated cases. See Carrigan v. Carrigan, 218 Ark. 398, 236 S.W. 2d 579 (1951), upholding the examination of the transcript in the former trial.

In holding the first action conclusive of the total disability issue in the second action, we do not find ourselves in disagreement with Aetna Life Insurance Co., supra. The policy here, unlike the policy in Aetna, requires a continuous disability commencing within 24 hours after the date of the accident and the jury was so instructed. In the Aetna case, the continuous disability had only to commence before age 60 and the commencement date was unimportant to the lawsuit except as to the amount of recovery.

In Fulbright v. Phipps, supra, the verdict rendered was not consistent with any theory submitted to the jury. Here the jury’s verdict on the first trial was thoroughly consistent with the second theory submitted to them — i.e., the first verdict was in exact multiples of the $150 monthly payment. Under the circumstances we agree with the trial court that the first action was res judicata.

Affirmed.


text:
    W. R. Livingston, as father, and next friend of Matthew Livingston, a minor v. Harvey J. Fuel
    4724
    433 S.W. 2d 380
    Opinion Delivered November 11, 1968

      Bernard Whetstone for appellant.

      John F. Gibson and Wm. K. Ball for appellee.
   Conley Byrd, Justice.

W. R. Livingston, as father and next friend of Matthew Livingston, a minor, and on behalf of himself individually, appeals from a $15,000 judgment in favor of appellee Harvey J. Fuel. This suit began as an action by Livingston in behalf of his son to recover the value of a horse Fuel had killed while driving his personal ear. Fuel, alleging that he collided with the horse while exercising his duties as Chief of Police, counterclaimed and cross complained against Livingston individually and in his capacity as next friend. The appellant, for reversal, relies upon the following points:

“1. The court committed fatal error in allowing evidence that appellant had repaired and improved the pasture fence after the horse was killed.
“2. The court committed fatal error in refusing to allow appellant to cross-examine appellee Fuel about his visits to the Chicot Club.
“3. The court committed fatal error in refusing to allow appellant to cross-examine appellee Fuel about his failure to claim Workmen’s Compensation from his employer.”

In Johns v. Pomtree, Adm’r., 240 Ark. 234, 398 S.W. 2d 674 (1966), we held that subsequent precautions taken to prevent a recurrence of an injury cannot be proved to establish negligence in the first place. We hold that the trial court committed error in permitting testimony of repairs made subsequent to the injury for the purposes of showing that the pasture fence holding the horse was inadequate.

It was the appellant’s theory at the trial that Fuel was not acting in the scope of his employment with the city, but that in fact, he was on a personal mission of his own — i.e., that he was speeding to the Chicot Club rather than chasing law violators as Fuel contended. On cross-examination appellant sought to interrogate Fuel relative to his frequent visits to the club and about use of intoxicants and the gambling that had existed at the club. Appellant also sought to show that Fuel had never claimed any Workmen’s Compensation benefits for injuries resulting in the collision with the horse.

Since Fuel was driving his personal car within the city limits of Lake Village at a speed of 65 miles per hour and in a direction which would have taken him away from his home and office toward the Chicot Club, we hold that the trial court erred in sustaining the objections to the proffered testimony. Likewise, we hold that the trial court erred in not permitting appellant to show that Fuel failed to claim Workmen’s Compensation benefits. These matters were circumstances to be considered on the issue of whether Fuel was acting in the scope of his employment as Chief of Police and, of course, were material on the issue of whether Fuel was negligently speeding in his personal car.

Reversed and remanded.


author: Carleton Harris, Chief Justice.

text:
    Jack L. Leslie d/b/a Jack L. Leslie Lumber Company v. Ben Burrow, Jr.
    4725
    433 S.W. 2d 831
    Opinion Delivered November 18, 1968

      Griffin Smith for appellant.

      John D. Eldridge for appellee.
   Carleton Harris, Chief Justice.

Appellant, Jack L. Leslie d/b/a Jack L. Leslie Lumber Company, received an order for a load of creosoted poles, 6 to 20 feet in length, from the White River Milling Company. The load was delivered to the premises of the milling company on November 9, 1965, in a truck driven by Earl Smith, an employee of Leslie. Ben Burrow, Jr., appellee herein, an employee of the milling company, who handled a large part of the buying for the company, directed Smith to the back of the lumber shed, where the poles were to be unloaded. Twenty-foot poles were on the bottom of the truck bed, these coming out almost to the end of the bed, and 18-foot poles and 16-foot poles were on top of those. Burrow climbed up on the back of the truck, and stood on the 20-foot poles for the purpose of counting them and ascertaining whether the proper load had been sent. Smith said nothing to appellee when the latter climbed up on the truck; while Burrow was counting the poles, Smith was engaged in pushing the 14-foot poles out through the stakes. Suddenly, three or four of the stakes broke, and part of the load fell off, Burrow falling with it. Appellee instituted suit against Leslie for injuries sustained, and on trial the jury returned a verdict in his favor in the amount of $6,000.00. From the judgment so entered, appellant brings this appeal.

For reversal, it is urged “under the undisputed proof, appellee was a licensee, not an invitee, at the time he voluntarily ascended the load and was injured. It was error to refuse motions and instructions submitted by appellant predicated on this fact.”

It is argued that Burrow climbed upon the truck of his own volition; that he was not requested to do so by appellant’s driver, and it is pointed out that Burrow readily admitted that the poles could have been counted while he was standing on the ground as they were unloaded. Having voluntarily climbed onto the truck, and this act (it is contended) being for the benefit of his own employer, appellant asserts that Burrow was a licensee and would only recover if his injury was caused by willful and wanton negligence on the part of the driver. There is no contention by anyone that Smith was willfully and wantonly negligent.

In addition to those already enumerated, the testimony reflected the following facts:

Smith testified that the stakes he had cut to haul the logs on the truck were pine. He was asked, “Is pine strong enough on that, Mr. Smith?” The witness answered that pine was not strong enough to support a load of the type delivered to the milling company, and he said that he had, at times in the past, used oak stakes. Admittedly, Smith knew that Burrow was standing on the poles, counting the load. Though from his statement he felt that the stakes could not be entirely depended upon to hold the load, Smith did not advise Burrow of this fact, nor intimate in any manner that there was danger in appellee’s standing on the logs (the danger being unknown to Burrow, who was participating in the unloading of poles for the first time in his life). Not only that, but Smith proceeded to unload these poles while Burrow was standing on the truck. In fact, it was while the driver was pushing poles through the stakes that the break occurred.

Let it be remembered that an owner who knows, or reasonably should know, that a licensee is in a position of danger, has a duty to use ordinary care to avoid injury to such licensee. AMI 1106.

Appellant objected to Instruction No. 1 offered by appellee which set out that it was the duty of all persons involved to use ordinary care for their own safety and the safety of others; there was also objection to Instruction No. 2 offered by appellee which defined ordinary care, and told the jury that the failure to use same constituted negligence; further objections were made to the giving of an instruction defining negligence. The court overruled the objections and gave the instructions. Appellant requested the following instruction:

“You are instructed that at the time plaintiff was on defendant’s truck he had the legal status of a licensee. As such, defendant owed him a duty to refrain from any act of willful or wanton negligence that might injure plaintiff. Unless you find from the evidence that defendant was willfully and wantonly negligent, proximately causing plaintiff to be injured, then plaintiff cannot recover.”
The court refused to give this instruction.

We agree that the court acted properly in refusing to give appellant’s instruction declaring Burrow a licensee, and telling the jury that appellant would only be liable if Smith acted willfully and wantonly. We think the evidence made a jury question on the issue of Burrow’s status in climbing on the truck to count the poles. The jury could have found that he was acting within the scope of his employment; that this act was for the benefit of both the milling company and appellant company, for if no count or inspection had been made until after all poles were on the ground, it might then have been necessary (if the purchased load had not conformed to the order) to reload the truck, or otherwise cause delay.

Appellant might well have been entitled to the use of AMI 1106, which defines licensee and invitee, and sets out the standard of care due to each. In other words, the testimony may well have presented a jury question relative to the status of Burrow, but appellant did not request this instruction; he relies upon the refusal to instruct the jury that appellee was a licensee.

Finding no reversible error, the judgment is affirmed.

      Smith stated that he cut the stakes used to hold the poles on the truck, placing approximately 12 stakes on each side, the stakes being placed in small metal holders known as pockets.


author: George Rose Smith, Justice.

text:
    Southwestern Bell Telephone Company v. Kenneth W. Poindexter
    5-4706
    433 S.W. 2d 833
    Opinion Delivered November 18, 1968

      Donald K. King and Robert M. Sanderford for appellant.

      Charles L. Honey for appellee.
   George Rose Smith, Justice.

In 1959 the appellant, Southwestern Bell Telephone Company, in the mistaken belief that it had a valid easement across the vacant 17-acre rural tract involved in this ease, buried a long-distance telephone cable along the east edge of the property. The cable was forty inches deep and about twelve feet inside the boundary line, which abutted a railroad right-of-way.

Six years later the appellee purchased the tract and, upon learning about the cable, demanded that Southwestern Bell remove it. The telephone company brought this suit to enjoin Poindexter from damaging the cable. At the company’s request the chancellor held the case in abeyance to permit Southwestern Bell to acquire a valid easement by condemnation. The judgment in tbe condemnation case was for $375. Thereafter the chancellor heard the present case upon Poindexter’s counterclaim and awarded him $170 in actual damages and $1,000 in punitive damages. Hence this appeal.

Bell’s plea of the governing two-year statute of limitations is decisive. Bell acquired its purported easement from E. J. Sprayberry on May 1, 1959, but Spray-berry had sold the tract to Ray O. Alley in the preceding March. Bell, ignorant of the defect in its title, recorded its deed and laid the cable in 1959. Its occupancy was not questioned until soon after the appellee Poindexter bought the land from Alley’s widow in 1965.

Even though Act 51 of 1951, which contains the two-year statute of limitations, is entitled, in §1, “Rural Telephone Cooperative Act,” we cannot sustain the appellee’s insistence that the act applies only to telephone cooperatives. Ark. Stat. Ann., Title 77, Ch. 16 (Repl. 1957). To the contrary, the act contains several provisions applicable to “telephone companies,” which are defined in §2 to include persons, firms, and corporations, “other than a cooperative,” that operate telephone systems within the state. Southwestern Bell unquestionably falls within the statutory definition of a telephone company.

For instance, § 4 (6) of the act authorizes cooperatives to interconnect with telephone companies. Section 32 (3) of the act required existing telephone companies to define their territorial limits in applying for certificates of convenience and necessity within 120 days after the passage of the act. Section 39 requires both telephone companies and cooperatives to construct their lines and facilities in compliance with the National Electric Safety Code.

The two-year statute of limitations is found in § 36, which by its express words applies both to private companies and to cooperatives. Here is its pertinent language: “No suit shall be brought against any telephone company or cooperative by the reason of the maintenance of telephone lines, poles, and fixtures, on [erroneously printed as “or” in the Annotated Statutes] any real property , . . . unless it is commenced within two years after the cause of action has accrued; ...” Ark. Stat. Ann. § 77-1636. We consider the explicit language of the statute to be conclusive.

Alternatively, Poindexter argues that the buried cable was so concealed that it did not put him (or his predecessor in title) on notice. According to the proof, however, Bell has maintained from the beginning three separate posts, 16 feet high, at intervals along its supposed easement, supporting yellow signs, 18 by 24 inches, that bear this message: “Warning. Telephone Cable Buried In This Vicinity. Please Do Not Dig In This Vicinity Without Calling Telephone Number Enterprise 9800.”

Poindexter seeks to escape the notice-giving force of those signs by his testimony that they were in an area “where you had to go through thick underbrush and pine trees to find it.” Even so, there are several flaws in his contention. First, he admits that he .did not inspect the property before he bought it; so he would not have seen the notices even if the underbrush and pine trees had not been there. Second, a prospective purchaser of part of the tract did make an inspection, discovered the signs, and told Poindexter about the cable. Thus the only relevant proof that has been brought to our attention indicates that the signs would have been discovered by a diligent purchaser. Finally, the proof does not suggest, and we are not told, how Bell might better have given notice of its underground cable than by posting conspicuous signs at intervals along the easement itself. That the landowner permitted the land to become overgrown with underbrush cannot fairly be used to nullify Bell’s effort to give notice of its occupancy of the easement.

The decree is reversed and the counterclaim dismissed.

Byrd, J., dissents.


author: George Rose Smith, Justice. Carleton Harris, Chief Justice.

text:
    Moon Distributors, Inc., et al v. Carl Thomas White, Jr., Administrator, et al
    5-4707
    434 S.W. 2d 56
    Opinion Delivered November 18, 1968
    [Rehearing denied December 16, 1968.]

      Hall & Tucker for appellants.

      Cockrill, Laser, McGehee, Sharp & Boswell for appellees.
   George Rose Smith, Justice.

This action for the wrongful death of Wandasue White was brought by her surviving husband, the appellee, who is the administrator of her estate. The appeal is from a verdict and judgment awarding $1,500 to the estate; $67,500 for the husband; $50,000 for the decedent’s stepdaughter, Karen White; $75,000 for the couple’s adopted daughter, Sherry White; and $800 to White for his property damage. For reversal the appellants argue two points of law, both of first impression, and question the liberality of the awards.

First, the appellants insist that the trial court erred in submitting the case to the jury both upon specific assertions of negligence and upon the doctrine of res ipsa loquitur. The appellants take our prior cases to hold that when the plaintiff introduces proof of specific acts of negligence he thereby abandons his right to have the issue of res ipsa submitted to the jury.

Upon this issue the facts, at least in broad outline, are pertinent. On March 30, 1967, Mrs. White and two other women were traveling on Interstate 30, a divided four-lane highway. Coming from the other direction was a wrecker towing a dump truck. Both vehicles were owned by the appellant, Moon Distributors. Its employee, the appellant Paul Hastings,, was driving the wrecker. For some reason not shown by exact proof the dump truck came unhitched, crossed the median, and ran over the White car, killing its occupants.

The plaintiff offered proof to show (a) that the coupling mechanism of the wrecker, which had been designed by Paul Hastings, was defective; (b) that the wrecker was being driven at an excessive speed; and (c) that just before the accident Hastings swerved from one lane to the other so suddenly as to cause the dump truck to fishtail before it came loose. The defendants contested that proof with evidence of their own. The court gave AMI instructions covering speed, control, and the statutory duties of one who is towing another vehicle. The court also gave AMI 610, on res ipsa. The final paragraph of AMI 610 was omitted, in accordance with the Note on Use, because specific acts of negligence were also being submitted.

The court was correct. In Johnson v. Greenfield, 210 Ark. 985, 198 S.W. 2d 403 (1946), we held that the plaintiff did not waive the doctrine of res ipsa merely by pleading specific negligence, but we did not explicitly reach the question of whether both theories might go to the jury. Elsewhere, however, the decided weight of authority approves that procedure in a case like this one, where the exact cause of the accident cannot he proved with precision.

The landmark case is Cassady v. Old Colony Street R. Co., 184 Mass. 156, 68 N.E. 10, 63 L.R.A. 285 (1903), where the court said:

“It is true that, where the evidence shows the precise cause of the accident . . . there is, of course, no room for the application of the doctrine of presumption. The real cause being shown, there is no occasion to inquire as to what the presumption would have been as to it if it had not been shown. But if, at the close of the evidence, the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumption applicable to it.”

A similar view was taken in Wells v. Asher, Mo., 286 S.W. 2d 567 (1955):

“Legally, defendant’s argument that plaintiff was precluded from a res ipsa submission by proof of specific negligence is, under the facts of the instant case, utterly self-destructive. For, it is firmly-established in this jurisdiction that, ‘even though the plaintiff’s evidence may tend to show the specific cause of the accident, he will nevertheless not lose the benefit of the doctrine, nor be deprived of the right to rely upon it in the submission of his case, if, after his evidence is in, “the true cause is still left in doubt or is not clearly shown.” ’ ”

Many of the cases were reviewed in Weigand v. Pennsylvania R. Co., 3rd Cir., 267 F. 2d 281 (1959), Avhere the court said:

‘‘However, we have before us not only a res ipsa claim but one capable of some specific proof regarding the railroad’s alleged negligence. In these peculiar circumstances to force the plaintiff to abandon one of his theories is not only illogical but unfair. Whichever he chose might fail and the discarded contention might have convinced the jury.”

See also Freitas v. Peerless Stages, 108 Cal. App. 2d 749, 239 P. 2d 671, and the annotation thereto in 33 A.L.R. 2d 778 (1952).

The case at bar illustrates the wisdom of the rule. As a practical matter, the eyewitnesses to the tragedy could not even describe what they saw without bringing specific negligence into the case. No description of the occurrence would be complete without some reference to Hastings’ speed and to the dump truck’s fishtailing. The jury’s first question would naturally be: Was the coupling between the wrecker and the dump truck defective? Realistically, the plaintiff had to answer that question. To compel the plaintiff to choose between specific negligence and res ipsa would put him in this dilemma: If he chose specific acts, the jury might find itself unable to decide that any one of the three asserted causes of the accident had been proved by a preponderance of the evidence. Yet, if the plaintiff chose res ipsa, the jury would be completely in the dark about the duties imposed by law upon Moon to drive at a reasonable speed, to keep its vehicles under control, and to provide a proper coupling device. As the court said in the Weigand case, supra, to put the plaintiff in that dilemma would be not only illogical but unfair.

The cases principally relied upon by the appellants are not out of harmony with the rule we are adopting. In Reece v. Webster, 221 Ark. 826, 256 S.W. 2d 345 (1953), the defendant’s tractor exploded and fatally injured a boy who was walking past it. On that proof alone tbe plaintiff could have relied on res ipsa. But the plaintiff went further and directed his entire proof to showing that the explosion was caused by a defective sediment bulb that allowed gasoline to drip upon hot metal and explode. No other cause of the explosion was suggested “either in pleadings, proof or argument.” Hence, in the language of the landmark Gassady case, supra, where the evidence shows the precise cause of the accident there is no room for presumption.

Our holding in Ford Motor Co. v. Fish, 232 Ark. 270, 335 S.W. 2d 713 (1960), is even farther from the mark. There the plaintiff testified that as he was driving his truck down the highway the brakes suddenly locked, causing the truck to leave the highway and turn over, injuring him. Unlike the situations in the Reece case, siopra, and in the one at bar, a mere account of how the accident happened did not, in the Fish case, make a submissible issue of res ipsa. That is, res ipsa involves a showing that the plaintiff himself was not negligent. That showing was not made by Pish, because, as we observed, ‘ ‘ automobiles ordinarily depart the road through negligence of the operator, rather than through negligence of the manufacturer.” Hence Pish was properly compelled to prove the specific cause of the accident, because it was really an instance of res ipsa non loqmtur\ The thing does not speak for itself.

On the first point we conclude that the trial court was right in submitting all the issues to the jury.

Secondly, the appellants contend that neither Karen White, a stepdaughter, nor Sherry White, an adopted daughter, is entitled to assert a cause of action for Wandasue White’s death. The two contentions must bo discussed separately.

Considering Sherry’s case first, the adoption statute provides that the adopting parents shall have “the right of recovery” for the child’s death by wrongful act, but there is no corresponding provision that the child shall have the right of recovery for an adoptive parent’s death. Ark. Stat. Ann. ^ 56-109 (1947). We do not agree with the appellants’ argument that the omission shows a legislative intent to deny an adopted child’s right to assert a cause of action for the wrongful death of a foster parent. In the case of the adopted child’s death the legislature had to choose between investing the cause of action in the natural parents and investing it in the foster parents. It chose the latter, specifically referring to “the” right of recovery. No similar choice had to be made with respect to the foster parent’s death; so the appellants’ argument fails.

With respect to Karen, a stepmother stands in loco parentis to the child when, as here, the two live in the same home as mother and daughter. See Dodd v. United States, 76 F. Supp. 991 (W.D. Ark. 1948), and Miller v. United States, 8th Cir., 123 F. 2d 715 (1942). Nevertheless, the appellants insist that a stepdaughter cannot recover for pecuniary injuries suffered upon the death of her stepmother, for the reason that the statute refers to “persons to whom the deceased stood in loco parentis” only with respect to damages for mental anguish and not with respect to damages for pecuniary injuries. Ark. Stat. Ann. § 27-909 (Repl. 1962). Hence, it is said, the court should not have submitted to the jury Karen’s cause of action for pecuniary loss.

We do not construe the statute so narrowly. Both § 27-908 and § 27-909 — sections of the same act- — have reference to the beneficiaries of the statute. In Peugh v. Oliger, 233 Ark. 281, 345 S.W. 2d 610 (1961), we held that a foster daughter was to be considered as the decedent’s “next of kin,” within the meaning of the act. The record in the Peugh case shows that the foster daughter had not been legally adopted by her foster mother; so the court was actually considering an in loco parentis relationship. Hence, on the authority of that case, we hold that a step daughter to whom the decedent stood in loco parentis is entitled to recover compensatory damages both for pecuniary losses and for mental anguish actually suffered by reason of the stepparent’s death. (We are not overlooking our decision in Fountain v. Chicago, R.I. & P. Ry., 243 Ark. 947, 422 S.W. 2d 878 [1968], which overruled the Peugh case in part. It was not, however, our intention in the Fountain case to construe the statute more strictly than we did in Peugh. To the contrary, we were careful to say: “We have no quarrel with the allowance to the foster daughter [in Peugh], although that recovery was permitted by a novel construction of the statute.” We adhere to that position.)

Thirdly, the appellants complain that the verdicts are excessive. Since we are unanimous in finding that the awards neither demonstrate prejudice on the part of the jury nor shock the conscience of this court, no useful purpose would be served by discussing this contention at great length.

Wandasue White, according to the proof, was a truly exceptional wife and mother. When she married the appellee, Tom White, in 1961, Tom’s daughter Karen was four years old and was living with his parents rather than with her divorced mother. Wandasue took Karen into her home and could not have treated her with greater affection had the child been her own daughter. “When the Whites found that Wandasue could not have children herself they adopted Sherry, then sixteen months old. Sherry was afflicted, having a cleft palate. The surgeon who was able to partly correct the deformity expressed his surprise that anyone would adopt a child with such an affliction. Yet Wandasue White not only had that compassion but also labored patiently and unselfishly with the child, teaching her to talk in a normal way. Considering what each of the children lost by Wandasue’s death, we cannot say that ¡either of their awards is excessive.

Nor do we so regard the $67,500 verdict for White himself. At her death Wandasue was 28, with a life expectancy of almost 47 years. She was earning $6,-216 annually as an employee of a Veterans Administration hospital. According to the proof her future earnings, reduced to present value, would be $119,272, without taking into account increases in salary that were to be reasonably expected. In the light of our holding in Strahan v. Webb, 231 Ark. 426, 330 S.W. 2d 291 (1959), and making proper allowance for White’s mental anguish and loss of consortium, the verdict cannot be considered excessive.

Affirmed.

Byrd, J., not participating.

Harris, C.J., dissents.

Carleton Harris, Chief Justice.

This was a terrible tragedy, and I have no fault to find with the amount of money awarded appellees. However, I think we are departing somewhat from prior cases in approving the submission by the trial court to the jury of two conflicting theories of negligence. Specifically, I do not think the instruction permitting the jury to apply the doctrine of res ipsa loquitur should have been given.

In Ford Motor Company v. Fish, 232 Ark. 270, 335 S.W. 2d 713, we pointed out that one of the essential elements to make res ipsa loquitur applicable to a given case is the absence or unavailability of direct evidence of negligence. Quoting from 65 C.J.S. Negligence § 220.6, we said:

“Although, * * * the doctrine of res ipsa loquitur provides a substitute for direct proof of negligence, the rule is nevertheless one of necessity to be invoked only when, under the circumstances involved, direct evidence is absent and not readily available. ’ ’

In the case before us there is a great deal of evidence as to specific acts of negligence. William Bailey testified that he was behind the dump truck as it approached the scene where the collision occurred, and that the wrecker and dump truck were traveling between 60 and 65 miles per hour; that the driver of the wrecker “changed sharply into my lane in front of me and I had to hit my brakes to keep from colliding with him; it was “fishtailing” around.

James Summers testified that the driver of the wrecker “whipped out,” and that it wasn’t a smooth lane change. He said that the dump truck was bouncing up and down, and kept bouncing until it broke loose.

Thomas Christenberry testified that the wrecker and truck passed him when he (Christenberry) was traveling at a speed of 60 miles per hour, and that the dump truck was weaving and bobbing up and down.

Robert Ferguson, operator of a wrecker service and body shop, testified that the hookup was not safe; that the tow bar was raised too high, permitting the towed truck upon application of brakes, to come up on the wrecker (this causing slack in the cable, which resulted in its breaking when the slack was taken up); the safety chains had too much slack, and this caused them to break after the cable broke; the weaving of the wrecker and tow truck either caused the stabilizer bar to break or weakened it. He also testified that the maximum safe speed for a wrecker rig of the size of the one involved was 40 to 45 miles per hour.

If direct evidence had not been readily available, I would certainly have permitted the use of the res ipsa instruction — but that was not the case.

My principal objection to tbe nse of instructions relating to both specific negligence and res ipsa loquitur in tbe same case is that I consider such use to be confusing to the jury. In most cases, res ipsa does not come into play, and the burden of proving negligence which caused the injury rests upon the plaintiff; however, under the res ipsa doctrine, the defendant is burdened with a presumption of negligence, and it is up to him to refute this presumption, though, on the whole case, the burden is on the plaintiff. To me, to tell a jury on the one hand, that the burden of proving specific acts of negligence is on a plaintiff — but on the other hand, under the res ipsa instruction, the defendant must prove he was not negligent (and this, in my view, is what it amounts to), can only result in perplexing the jury. It also seems to me that it becomes further confusing when the court gives the instruction, as it did in this case, “The fact that an accident occurred is not, of itself, evidence of negligence on the part of anyone.” This instruction might well appear to a layman to be the very antithesis of the doctrine of res ipsa loquitur, namely, that the very happening of the event is evidence of negligence on the part of the person having control of the instrument causing the injury.

In Reece, Administrator v. Webster, 221 Ark. 826, 256 S.W. 2d 345, we approved the rule governing the doctrine of res ipsa loquitur with which I thoroughly agree:

“Of course, in cases where the plaintiff has full knowledge and testified to the specific act of negligence which is the cause of the injury complained of, or where there is direct evidence as to the precise cause of the accident and all of the facts and circumstances attendant upon the occurrence clearly appear — then the doctrine would not apply” .

Accordingly, I would reverse, because of the giving of this instruction.

      It could certainly be considered by a jury that the driver of the wrecker could have felt this bumping, and thereupon slowed or stopped his vehicle.

       Emphasis supplied.


text:
    Patricia Taylor v. Plastics Research and Development Corp., et al
    4711
    433 S.W. 2d 830
    Opinion Delivered November 18, 1968

      Sam Sexton, Jr. and Franklin Wilder for appellant.

      Shaw, Jones & Shato for appellees.
   Lyle Brown, Justice.

The Workmen's Compensation Commission denied appellant Patricia Taylor’s claim for benefits beyond six months temporary total disability. On appeal to the circuit court the Commission was affirmed. An accidental Injury concededlv arose in the course of appellant’s employment; however, it was held that she no longer suffers from that injury. The only question on appeal is whether the holding is sustained by- the evidence.

From February until early May 1966, claimant worked in a spray paint area where some type of lead paint was sprayed on air conditioners. While spraying without a mask, claimant suffered a fainting spell which she attributed to a sudden explosive feeling in her chest, caused, so she asserted, from breathing paint fumes. She was taken to a doctor for emergency but the nature of the treatment is not in the record. She was not hospitalized at that time but apparently was an out-patient for a few weeks. Thereafter and in early July, claimant was sent to Dr. IT. C. Darnall, a thoracic and chest surgeon. Physical examination showed the chest, heart, and lungs to be clear and there was no temperature. The patient continued to complain of difficulty in the bronchial tree and she was hospitalized. After a week’s observation, Dr. Darnall suspected a chemical allergic bronchitis which, after the brief period of hospitalization, had cleared. The breathing of the fumes could, in the doctor’s opinion, have been the precipitating factor in the onset of the incident in May. However, he found no disability arising from that attack. He advised that claimant desist from working around the fumes.

Since Dr. Darnall could not discern physical findings which would resolve the source of the complaints which persisted, he referred claimant to Dr. McDonald Poe, specializing in internal medicine. Dr. Poe, after seeing claimant regularly for a number of weeks, categorized her problems as three-fold: (1) poor posture and breathing habits; (2) the responsibilities of caring for an invalid husband and five children a,nd the aftereffects of a hysterectomy, all combining to create a substantial emotional problem; and (3) an apparent allergy to certain types of paint fumes, which in the doctor’s opinion could be overcome by conquering the emotional problem and improving her posture and breathing habits.

When the medical evidence which has been summarized was presented to the Commission, appellees were directed to arrange for claimant’s examination by a Little Rock doctor selected by the Commission, authorizing that doctor to call in an allergy specialist if he desired. She was examined by Dr. Grimsloy Graham, specializing in thoracic and cardiovascular ailments. Dr. Graham gained the “impression that this patient might possibly have an allergic bronchitis.” Yet there were no subjective findings to support that impression. Iiis physical findings were completely negative. Dr. Graham referred claimant to an allergy specialist. All tests, both for allergies and asthma, were negative, but it was stated that no satisfactory test for allergy to fumes has been devised. That specialist concluded that the experience with the spray paint could not be the cause of her present trouble, that is, insofar as his area of tests and experience were concerned. It was his experience that those who react to fumes get almost immediate relief when they are removed from the area.

Our summary of testimony of all the doctors is not to insinuate that no statements made by them gave credence to a possible disability resulting from the experience with the spray paint. Careful and detailed cross-examination of a medical expert will usually bring forth statements which are encouraging to the cause of a claimant. Nevertheless, with the positive testimony we have summarized we certainly cannot say it was insubstantial; in fact, we think it amply supports the Commission’s finding that claimant is not suffering from any injury resulting* from the breathing* of the fumes. Our workmen’s compensation law is to be liberally construed in favor of the employee; however, a claimant has the burden of establishing the extent of the asserted injury. And when the Commission makes a finding of fact, that finding carries the weight of a jury conclusion. These are axioms which need no citation of authority.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Little Rock Land Company v. Ruth Raper, et al
    5-4728
    433 S.W. 2d 836
    Opinion Delivered November 18, 1968

      Wright, Lindsey & Jennings by Robert D. Cabe for appellant.

      Rose, Meek, House, Barron, Nash & Williamson and Hardin & Rickard for appellees.
   John A. Fogleman, Justice.

Little Rock Land Company appeals from a judgment for $2,500 in personal injury damages in favor of appellee Ruth Raper and from the denial of a recovery of the amount of this judgment by it from Westinghouse Electric Corporation. Ruth Raper claimed injuries to her left hand and arm when the doors to an elevator in the Doctors Building, an office building owned by appellant, closed on her. On the occasion of her injury, she was in the building en route with her husband to the office of a doctor by whom he was being treated. Her injury occurred when she attempted to board an empty elevator which was one of three elevators furnished by appellant for the use of those having business in the building. The elevators were designed, manufactured, and installed by Westinghouse. They were of a type known as automatic self-service elevators, but they can be changed over to manual operation.

Mrs. Raper testified that she got one foot and her arm into the elevator when the door closed rapidly, in spite of her putting her hand against it. She said she kept “bouncing” the doors by throwing her hands against them but they didn’t open. She said that the elevator caught her, and drug her up a piece, but the door pushed her loose and she fell at her husband’s feet. She felt bare metal closing against her arm. While she said both hands were caught in the door, only one was injured. There was no attendant on duty nor were there any instructions on the use of the elevator posted outside it. There was no safety button for opening the door from the outside. She had been on these elevators several times before without having had any trouble. She stated that she had never noticed any kind of rubber edging on the doors. Her testimony was substantially corroborated by her husband. Both Mr. and Mrs. Baper denied seeing any rubber strip on these elevator doors. Mr. Baper said that the doors were almost closed when Mrs. Baper put up her arm in trying to keep them from shutting. He said that she jumped back, jerked her arm out of the door, and fell at his feet.

The elevators are checked daily by an employee of appellant to be sure that they are operating properly and a trial run is made daily. An officer of appellant has offices in the building and uses the elevators constantly, as do maintenance employees. Malfunctions do occur and adjustments are necessary from time to time. All adjustments are made and maintenance work done by Westinghouse under a service contract. This contract requires the employees of Westinghouse to use all reasonable care to maintain the elevators in proper and safe operating condition and to periodically examine all safety devices and governors. One clause of this contract reads as follows:

“The Corporation shall not be required to make safety tests, nor to install new attachments on the elevator which may be recommended or directed by Insurance Companies, or (Government, State, Municipal, or other authorities.”

There were two sets of doors at the entrance to the elevator. Both sets consisted of two doors that met in the middle of the entrance opening when closed. The outer doors were called “hatch doors” and constituted the entrance to the elevator shaft. The inner doors were “car doors” and attached to the elevator car itself. There is a safety strip edged with rubber from floor to ceiling on each of the elevator car doors. When the doors are open, these edges protrude beyond the outer edges of the two doors on the elevator car. They are designed to prevent the doors from closing when touched. When the doors close, these safety strips retract but one of them always overlaps the space between the two car doors. There are also two safety light beams across the elevator opening. These are “electric eye” beams. "When either of the beams is broken, the doors will not close. One beam is 10 to 12 inches and the other 42 inches above floor level. The width of the hatch door is approximately one and one-half inches and the width of the hatch and car doors combined is approximately nine inches. There is a clearance of one and one-fourth inches between the car to the wall line of the elevator shaft. The safety edge is about six inches from the outer edge of the hatch door. There was evidence that the safety devices were in identically the same condition as when installed and there had been no change in the safety devices. Appellant’s witnesses testified that the elevator conformed to all requirements of the American Standard Code. The owners of the building did not attempt to adjust or regulate the controls or safety equipment. All adjustments were made by Westinghouse employees.

Immediately after the incident was reported to appellant’s officer in charge of the building, he checked the elevator and found that the light beams and safety strips were operating properly. A Westinghouse elevator mechanic made weekly inspections. Otherwise, he only came to the building when called by a representative of appellant to make a needed adjustment. This incident was not reported to Westinghouse until the next weekly inspection. The Westinghouse representative then found the safety devices functioning normally.

Appellant’s officer admitted that it was possible for one to get his hand in the door without breaking the light beams. The representative of Westinghouse stated that if Mrs. Raper failed to hit the safety edge and failed to break either of the light beams across the opening, the door could conceivably have closed on her hand if at the last moment she stuck it into the opening. According to him, the opening would be restored only if the safety edge was hit or one of the light beams broken. He stated that appellee’s injury could have occurred if her hand was in an upright position or at an angle.

This case was tried by the circuit court without a jury. The pertinent findings of fact of the circuit judge were :

“ # * * because the instrumentality, in this instance an elevator, was under the exclusive control of the defendant, the doctrine of res ipsa loquitur applies.
* * * there was roughly a six inch space between the inner door and outer door and the safety device being on the inner door, would permit a person to insert a hand or arm inside the outer door at such an angle that would permit the closing of the door without obtaining the benefit of any safety device. This, in the Court’s opinion, is what occurred. It might have not been foreseen by the engineer who designed the elevator, yet it is the only reasonable explanation of the occurrence which can be arrived at.
* * * the Court must find against the cross complaint because Westinghouse’s contract with tbe counterclaimant was to service the elevator and when the elevator was purchased the counter-claimant took the equipment as it was at the time of the purchase. ’ ’

Appellant made timely motions for a “directed verdict” on the complaint of appellee Raper, and now urges that the trial court erred in failing to grant these motions. The thrust of its argument on this point is that the court erroneously applied the doctrine of res ipsa loquitur.

There is no question that Mrs. Raper was an invitee of Little Rock Land Company in its building. One who invites the general public into his place of business is required to exercise ordinary care to keep it reasonably safe for all invitees. Davis v. Safeway Stores, Inc., 195 Ark. 23, 110 S.W. 2d 695. The owner is not an insurer of the safety of invitees on his premises, but his liability to an invitee must be based upon negligence. Kroger Grocery & Baking Co. v Dempsey, 201 Ark. 71, 143 S.W. 2d 564; Dr. Pepper Co. v. DcFreece, 234 Ark. 450, 352 S.W. 2d 579. He does assume the duty to exercise reasonable care to the end that such premises shall not contain dangerous obstructions, pitfalls or the like which result in injury to an invitee. An invitee may recover his damages from the owner for injuries sustained without fault or carelessness on his own part, by reason of the unsafe condition of the premises if such condition is the result of the owner’s failure to use ordinary care to prevent such injuries and to give timely notice to invitees or the public. St. Louis I. M. & S. Ry. Co. v. Wirbel, 104 Ark. 236, 149 S.W. 92, Ann. Cas. 1914C 277. An owner has been held liable when injury could have been avoided by timely notice of a defective condition on its premises to invitees and the general public. St. Louis I. M. & S. Ry. Co. v. Dooley, 77 Ark. 561, 92 SW. 789. The owner is liable regardless of his lack of knowledge of the defective condition if it was also unknown to an injured invitee, where the surrounding circumstances are such that the former could and would have known of the dangerous condition had he exercised reasonable care and foresight for the safety of those who might come upon his premises by invitation, express or implied. Faulkinbury v. Shaw, 183 Ark. 1019, 39 S.W. 2d 708. An invitee is entitled to be warned of a latent danger known, or which by the exercise of ordinary care should be known, to an owner or his employees. Dixon v. United States, 296 F. 2d 556 (1961).

Where elevators are concerned, the duty of the owner or occupier of premises is even greater. He has the same duty to protect passengers using his elevators from injury as do common carriers of passengers, i.e., to exercise the highest degree of skill, care and foresight consistent with the practical operation of the elevators to guard against accidents and injuries to passengers. Sweeden v. Atkinson Improvement Co., 93 Ark. 397, 125 S.W. 439, 27 L.R.A. (n.s.) 124. See Wade v. Brocato, 192 Ark. 826, 95 S.W. 2d 94. When a carrier provides equipment or devices to add to the comfort, convenience and safety of its passengers, they have the right to assume that the equipment is convenient and safe for the purposes intended and that it will be providently managed. Chicago, R. I. & P. Ry. Co. v. Simpson, 87 Ark. 335, 112 S. W. 875. One boarding or alighting from a train has been held to be a passenger. Hot Springs St. Ry. Co. v. Jones, 234 Ark. 693, 354 SW. 2d 278; Huckaby v. St. Louis I. M. & S. Ry. Co., 119 Ark. 179,177 S.W. 923; Dillahunty v. Chicago R. I. & P. Ry. Co., 119 Ark. 392, 178 S.W. 420. Mrs. Raper was a “passenger.”

The doctrine of res ipsa loquitur applies when the instrumentality causing injury is under the exclusive control or management of the defendant. Bullington v. Farmers’ Tractor & Implement Co., Inc., 230 Ark. 783, 324 S.W. 2d 517. It has been applied in personal injury actions by passengers against carriers based on defective equipment. See, e.g., St. Louis & S. F. Ry. Co. v. Mitchell, 57 Ark. 418, 21 S.W. 883.

Insofar as those expressly or impliedly invited into the Doctors Building are concerned, the owner certainly has the exclusive control or management of the elevators they use. Appellant argues that Westinghouse had this management and control by reason of a service contract with appellant. An owner or occupier cannot escape liability for his failure to use proper care for the safety of an invitee on his premises by a claim that the work which caused the injury was done by an independent contractor. Restatement of the Law 2d, Torts, 405, § 422; Prosser, Law of Torts 2d 359. See, also, Great American Indemnity Co. v. Deatherage, 175 Okla. 28, 52 P. 2d 827 (1936); Brown v. George Pepperdine Foundation, 23 Cal. 2d 256, 143 P. 2d 929 (1933); Northcross v. Theatre Co. & Const. Co., 3 Tenn. App. 51 (1925); Sheridan v. Aetna Cas. & Surety Co., 3 Wash. 2d 423, 100 P. 2d 1024 (1940); Besner v. Central Trust Co., 230 N.Y. 357, 130 N.E. 577, 23 A.L.R. 1081.

Under the evidence here, it is not unreasonable to say that this injury would not have occurred in the absence of negligence on the part of someone. While the court might have drawn an inference from the testimony that Mrs. Raper was guilty of negligence, reasonable minds could properly come to different conclusions on this point. The court’s finding was inferentially contrary to any finding of negligence on her part. In determining the propriety of a directed verdict in this case, we must draw all reasonable inferences in favor of the party against whom the verdict would have been directed. Beggs v. Stalnaker, 237 Ark. 281, 372 S.W. 2d 600. As between Mrs. Raper and Little Rock Land Company, the latter had exclusive control and management of the elevator. The application of the doctrine of res ipsa loquitur was not erroneous under the facts in this case.

Appellant contends the evidence that the elevator met all the requirements of the American Standard Code completely negated any inference or negligence under the doctrine of res ipsa loquitur, leaving no fact question on this point even if the doctrine is applicable.

Although appellant’s compliance with industry or statutory safety standards was proper evidence on the question of negligence, it is not conclusive because it is not necessarily a complete discharge of its duties toward the public. St. Louis Southwestern Ry. Co. v. Farrell, 242 Ark. 757, 416 S.W. 2d 334. Since Mrs. Raper had established the elements of a res ipsa loquitur case, the burden of proving that the injury to her was not caused through any lack of care on its part was on appellant. In order to prevent a recovery by Mrs. Raper, it was incumbent on appellant, as a carrier of passengers, to show that her injury occurred without any negligence on its part. Johnson v. Greenfield, 210 Ark. 985, 198 S.W. 2d 403.

Appellant also argues that undisputed proof that the elevator was free from discoverable defects in construction overcomes any inference or presumption arising from the occurrence. In spite of the testimony of the officer in charge of the building that it was possible for one to get his hand in the door without breaking a beam, and the obvious fact that it was possible for Mrs. Raper to get her arm between the hatch doors without touching the safety strip, appellant further contends that it had no knowledge of any defect in construction. In the first place, we do not agree that the undisputed proof shows that the defect in construction was not discoverable. In the nest place, the burden of proving latent defects and appellant’s knowledge thereof was not upon Mrs. Raper. Johnson v. Greenfield, supra. We think that a question for the trier of facts was presented on the issue and resolved adversely to appellant. Whether injury to Mrs. Raper occurred when she was attempting to hoard the elevator in the manner described by her was for the trier of the facts, and even if improbable, we cannot say that it was physically impossible for it to have been sustained in that manner. Missouri Pac. Transp. Co. v. Sharp, 194 Ark. 405, 108 S.W. 2d 579.

It is also urged by appellant that the doctrine of res ipsa loquitur should not be applied in the absence of evidence of malfunction of the elevator. We do not agree. Besides the absence of any warning of the possibility of injury to a passenger in the manner Mrs. Raper was injured, the manner of construction making the injury possible is also evidence of negligence. Appellant owed Mrs. Raper the duty to exercise the most exact care and diligence with respect to the structure and care of the elevator and in all subsidiary arrangements necessary to the safety of passengers. Fourche River Valley & I. T. Ry. Co. v. Camp, 139 Ark. 406, 214 S.W. 35; St. Louis, I.M. & S. Ry. Co. v. Richardson, 87 Ark. 602, 113 S.W. 794. The construction of an elevator in such a manner that protection from injury was not afforded to one who was injured when he inadvertently overstepped the edge of the elevator floor so that his heel partly extended into a three and one-half-inch clearance between the elevator floor and the back wall of the elevator shaft so that it was caught by a beam extending over the clearance has been held to justify a finding of negligence. Williams-Echols Dry Goods Co. v. Wallace, 142 Ark. 363, 219 S.W. 732.

We affirm the judgment in favor of appellee Raper.

On its appeal from the judgment in favor of Westinghouse, appellant contends that: (1) If the doctrine of res ipsa loquitur is applied in favor of Mrs. Raper, it should also be applied on its third party complaint against Westinghouse because Westinghouse was actually in exclusive control of the elevator; (2) the trial court’s finding on this phase of the case is, in effect, a finding that there was a disclaimer of warranties by Westinghouse in the sale of the elevators; and (3) Westinghouse is also liable on the theory of indemnity. On the other hand, Westinghouse contends that the doctrine of res ipsa loquitur has no application to the third party complaint; that under the maintenance contract, appellant assumed all liability to persons injured; and that there was no evidence of any breach of the contract constituting a proximate cause of Mrs. Raper’s injuries. It also contends that there can be no recovery for indemnity because that theory is inconsistent with recovery for contribution from a joint tort-feasor, and that the issue of breach of warranty was not raised by th^ pleadings.

The “third party complaint” contains allegations that the elevator was designed, manufactured and installed by Westinghouse and that Westinghouse assumed the duty of using all reasonable care to maintain the elevator in safe and proper working condition, and that if there was any liability to Mrs. Baper, it was that of Westinghouse, not appellant. No warranty is mentioned in this complaint, nor is any disclaimer of warranties alleged in the answer thereto. No effort was made by Westinghouse to require appellant to make its third party complaint more definite and certain and no action was taken to require appellant to elect as to its cause of action against Westinghouse.

Although “third party complaints” are appropriate only in actions for contribution under our statutes [Ark. Stat. Ann. § 34-1007 (Bepl. 1962)], we consider the substance of a pleading rather than the title in determining its character. When we do this, we find that the pleading is actually a cross complaint. There is no prayer for contribution by Westinghouse as a joint tort-feasor, nor any allegation to support such a prayer. While the doctrine of res ipsa loquitur might have been applicable to an action by Mrs. Baper against Westinghouse, or in a case where contribution as a joint tortfeasor was sought, we have not been cited any authority for its application in an action for breach of warranty or indemnity. The complaint of appellant against Westinghouse, in the absence of any motion to make more definite and certain or to require appellant to elect upon which cause of action it would proceed (if, in fact, the two are inconsistent), was sufficient to support the action upon either theory. The trial court obviously treated the action as one for breach of warranty and found that when appellant purchased the elevator, it took it as it was at the time of the purchase. The contract of purchase of the elevator is not in evidence, but there is some evidence that appellant did purchase the elevator from Westinghouse. The'admission that Westinghouse designed, manufactured and installed it, and the fact that appellant is designated as “Purchaser” in the maintenance contract, are sufficient support for a finding’ that Westinghonse sold the elevator to appellant. Under Ark. Stat. Ann. § 85-2-315 (Add. 1961), there was an implied warranty of the fitness of the elevator for its use for that purpose, unless excluded under the provisions of § 85-2-316. There was no evidence tending to show any such exclusion. Thus, we find no support for the court’s finding in that regard. Since the judgment in favor of Westinghonse was specifically based on this finding, we reverse the judgment and remand the case on the cross complaint of appellant against Westinghonse for a new trial.

Jones, J., dissents.