author: John A. Fogleman, Justice.

text:
    Lloyd F. PRICKETT v. Virgle L. FARRELL, Administrator et al
    5-5261
    455 S. W. 2d 74
    Opinion delivered June 15, 1970

      House, Holmes ir Jewell and Barber, Henry, Thurman, McCaskill & Amsler, for appellant.

      Hall, Tucker ér Lovell and McMath, Leatherman & Woods, for appellees.
   John A. Fogleman, Justice.

Appellees are the personal representatives of the driver and three passengers of a Plymouth automobile who died as the result of a mishap which occurred on Interstate Highway BO in Saline County at about 11:45 p.m. on June 4, 1968. They brought wrongful death actions against appellant Lloyd F. Prickett, Prickett Dairy, Inc., E. W. Prickett, Texas Tool Traders and Eulogio B. Gonzales, Jr. Trial of the consolidated actions resulted in a judgment for appellees against Lloyd F. Prickett only, and he brings the direct appeal. As his only point for reversal, he contends that the uncontradicted evidence shows that he was guilty of no negligence which was a proximate cause of the deaths. We do not agree.

There seems little doubt that the chain of events resulting in the unfortunate deaths of four young people originated because of the presence of a brown and white spotted horse, or pony, in the lanes provided for southbound traffic on this divided, controlled-access highway. The vehicle in which appellees’ decedents were riding was being driven by Bradley Maxey in a southerly direction on the highway in the lanes provided for vehicles traveling in that direction. The circumstances clearly indicate that this horse or pony was struck by this Plymouth automobile and that the automobile then careened at an angle across the median, entered the northbound traffic lanes on the opposite side and collided with a tractor-trailer owned by Texas Tool Traders and driven by Gonzales. The issues as to liability of appellant and E. W. Prickett were limited by a pretrial order, entered without objection, to the sole question whether they were guilty of negligence for violation of Ark. Stat. Ann. § 41-430 (Repl. 1964). The gist of appellant’s argument is that there was no substantial evidence that he was the owner of the horse or that he was guilty of any negligence in allowing it to be on the highway.

One Roy Bishop testified that he sold the pony in question to Beecher Bullock, Lloyd Prickett’s father-in-law, who purchased it for the use of Prickett’s son; David. Lloyd Prickett testified that Bullock had given the pony to David about two years before this occurrence, when the lad was nine years of age. Appellant admitted that the gift was accepted both by him and his son. From this time until two weeks before the collision, the pony was kept in a pasture around Lloyd Prickett’s house. According to appellant, David looked after the pony for the most part, but both father and son fed and cared for it. Feed for the pony was bought by Lloyd Prickett and Bullock but not by David. Lloyd Prickett paid to have the horse shod. Appellant knew that this pony and another had escaped from the Lloyd Prickett pasture at least three times over a period of one year. The third time was on a Sunday about two weeks before the incident resulting in these deaths. When appellant returned to his home that Sunday afternoon, he saw boards off the pasture fence and immediately called his father, E. W. Prickett, to ascertain whether these ponies had escaped from the pasture. E. W. Prickett replied that they had gotten out and crossed the “freeway” and that he had put them in his own five-acre pasture on the opposite side of the highway from Lloyd’s pasture. Thereafter, the ponies were kept in E. W. Prickett’s pasture, but Lloyd Prickett never made any physical inspection of the fences or condition of the wire around this pasture bordering the busy highway.

In answer to inquiries on cross-examination as to the extent of his control over the animal, Lloyd Prickett stated that he felt sure that he could do anything he felt like he wanted to, like selling it, and get away with it. E. W. Prickett called his son Lloyd when he found the ponies were out. Lloyd Prickett was first notified of the tragic disaster, from which the deaths of these victims arose, by his brother-in-law, who heard the collision, went to the scene and called appellant.

We agree with appellant that only the “owner” of livestock at large upon a public highway may be held liable for damages resulting. Even though Ark. Stat. Ann. § 41-430 (Repl. 1964) is a penal statute to be strictly construed in favor of one against whom it is asserted, the word “owner” therein does not have the very narrow meaning appellant would have us give it. We have previously held that even in a statute of this nature the word “owner” should not be construed in a technical sense, but in a popular one. See Bush v. State, 128 Ark. 448, 194 S. W. 857. There we relied upon and quoted from a Pennsylvania case in which the statute involved required owners of certain buildings to proyide fire escapes. Yet, in a suit against a tenant, who leased a building, for damages resulting from the failure to provide a fire escape, it was held that the tenant was an “owner” in the sense of the statute. We applied that precedent in holding that a receiver of a railroad corporation, or anyone operating it came within the purview of the words “the corporation owning a railroad” in a penal statute requiring the giving of signals by trains approaching crossings. In arriving at this conclusion, we were greatly influenced by the obvious design of the legislature in enacting that law to protect travelers against accidents that might occur at railroad crossings were the signals not given. In this case, the obvious design of the General Assembly was to afford a similar measure of protection to travelers upon our highways.

We have also said that the word “owner” in an act subjecting an “owner” to civil and penal consequences for intentionally or negligently permitting his animals to run at large, includes one who has the right of immediate possession and control, and to exclude the one holding absolute title but not having such rights at the critical time. Fraser v. Hawkins, 137 Ark. 214, 208 S. W. 296. We once recognized that circumstances might exist under which a parent might exercise a certain degree of control over a slave given his child. Dodd v. McGraw, 8 Ark. 83, 46 Am. Dec. 301. Certainly we should not say as a matter of law that a parent may not, under any circumstances, have any control over an animal given his minor child.

When we consider the legislative purpose in enacting the statute in question here, w;e think it clear that the word “owner” therein was intended to encompass a father who actually had the right of control of an animal given to his minor son. Even though we doubt appellant’s legal authority to sell his son’s pony without court authorization, we find the evidence stated above sufficient to pose to the jury the question whether appellant was an owner of the pony in the sense that he had a right of dominion and control over it.

Appellant also argues that, even though this pony was on the highway outside the enclosure in which he was kept, there was no evidence of negligence on his part. Of course, violation of the statute is itself evidence of negligence to be considered along with other facts and circumstances. Rogers v. Stillman, 223 Ark. 779, 268 S. W. 2d 614. It then becomes necessary to determine whether there was substantial evidence that appellant allowed the pony to run at large on the. highway. We find such evidence.

Appellant knew that this pony and another kept with him had escaped three times. On at least one of these occasions it seemed to him that the animals had kicked boards off the fence enclosing the pasture where they were then kept. After these ponies were taken up by E. W. Prickett, appellant made no effort to determine whether the fences and gates enclosing the pasture where they were kept thereafter were adequate to confine them. Trooper Ronnie Burk,- who arrived at the scene soon after the occurrence, investigated the enclosures. Looking along the fence of the pasture where the Prickett boy’s pony was kept, he saw fresh manure at a point where the fence line crossed a creek. He also found fresh hoof marks both inside and outside the fence near the creek and fence. The bottom strand of this barbed wire fence struck the officer at a height two inches below his belt. If he had stepped into the creek to make his measurement the wire would have struck a higher point on his body. He described the wire as being extremely loose and without supporting posts for quite a distance at the creek. He found the first post west of the creek either broken off or rotted off at the ground, so that it did not keep the wire taut even though the wire was nailed to it. He described the whole fence line as having been in poor condition, with posts rotted off at the ground and the barbed wire extremely loose. He said that two or three strands of the wire were not even nailed to the post at one point.

Trooper Frank Mitchell, who arrived later and assisted in the investigation, found the pasture fence in a bad state of repair in the area near the creek. He found the wire loose and a strand broken at the creek. He described the post near the creek as broken or rotted off at the ground so that it was hanging on the wire. He estimated the height of the lowest wire on this post as “waist high” and said that the wire was higher off the ground than the pony would have been if it were standing.

The word “allow” in the sense it is used in this statute means “to permit by neglecting to restrain or prevent.” Webster’s Third New International Dictionary. The evidence was sufficient to support a finding by the jury that the Prickett pony escaped from the pasture because appellant was negligent in failing to observe that the fence was in a bad state of repair and to take reasonable precautions to prevent the escape. See Lavender v. Southern Farmers’ Association, 246 Ark. 762, 440 S. W. 2d 241.

Appellant also argues that we should reverse the judgment against him because the jury found that the fence was in good condition, that the horses did not escape because of any defect therein and that E. W. Prickett was not guilty of any negligence, by its verdict in his favor. Of course, this is not a case where the liability of either E. W. Prickett or Lloyd F. Prickett is dependent upon the liability of the other. Inconsistent verdicts are not grounds for reversal in a case like this. An alleged joint tortfeasor held liable cannot complain because the verdict was not against all the wrongdoers. Fireman’s Insurance Co. v. Jones, 245 Ark. 179, 431 S. W. 2d 728; Patterson v. Risher, 143 Ark. 376, 221 S. W. 468; Roach v. Rector, 93 Ark. 521, 123 S. W. 399; Harris v. Preston, 10 Ark. 201. Actually, the jury was instructed, without objection, that each defendant’s case would be decided as if it were a separate lawsuit. Furthermore, the jury may well have found that E. W. Prickett did not have such custody and control of the animal as to constitute him to be an owner in the sense of § 41-430, if in fact there was sufficient evidence to raise a jury question in this regard. So far as this record discloses, he did nothing except take up the ponies when he found them out, advise appellant, and subsequently allow the ponies to be kept in his pasture as an accommodation.

As a matter of fact, appellees on cross-appeal argue for reversal of the judgment in favor of E. W. Prickett on the sole ground that the court should have given their requested instruction which would have permitted recovery against both Pricketts on the basis of res ipsa loquitur. We have never applied that doctrine under the statute in a case such as this. Actually, we have held that the presence upon the highway of animals which had escaped from a pasture in the nighttime did not even constitute prima facie evidence of negligence. Favre v. Medlock, 212 Ark. 911, 208 S. W. 2d 439. Their argument, based upon one decision in a foreign jurisdiction, that we should adopt the “modern trend” and make the doctrine applicable here, is not found persuasive. It is sufficient, however, to say that the complaints were not based upon application of res ipsa loquitur, and that the pretrial order limited the issue to determination whether there was negligence in violation of Ark. Stat. Ann. § 41-430, without any objection on the part of appellees. It is clear from the record that the theory of res ipsa loquitur was first suggestéd when appellees’ requested instruction No. 21 was offered. Furthermore, the doctrine could not have applied to E. W. Prickett, because the evidence clearly shows that he never exercised the requisite exclusive control over the animal. See Bullington v. Farmer's Tractor & Implement Co., 230 Ark. 783, 324 S. W. 2d 517.

Appellees also contend that the court erred in directing a verdict in favor of Eulogio B. Gonzales, Jr., and Texas Tool Traders. Even giving the evidence its strongest probative force in favor of appellees, we find no error in this respect. Gonzales was driving the Texas Tool Traders tractor-trailer in his proper lane in a lawful manner. He was proceeding northwardly on the inside lane of a 24-foot concrete slab separated by a 40-foot median from the southbound lanes on which the Maxey Plymouth was proceeding. The total distance between the concrete slabs was 61' 6". After the Plymouth struck the pony, it traveled 253 feet at an angle across the median into the path of the truck driven by Gonzales in the northbound traffic lanes.

According to Gonzales, he saw a white object in the southbound lanes and a sudden flash. Immediately the white object came across the median toward his projected path of travel at a high rate of speed. When he became aware that this object, which he then realized was an automobile, was coming into his line of travel, he swerved his vehicle sharply to his right and reached for his brakes. The brakes on the truck had not taken effect at the moment of the impact. Gonzales said that only a split second elapsed between the time he saw that the Maxey vehicle was headed toward him and the collision. The object approaching him had no headlights, and it appeared to him that lights on the object disappeared when he saw the flash. The major impact of the collision was on the right front of his tractor, but both front wheels were damaged. The police officer testified that the left front wheel was damaged by efforts to stop the truck. Apparently the full impact of the collision was on the driver’s right-hand side of the Plymouth. Gonzales testified that the impact destroyed the braking system on the truck. Certainly, it cannot be said that a driver traveling in a proper lane in a lawful manner on a divided highway should constantly maintain a lookout for vehicles suddenly projected across a 40-foot median into his path of travel. He had a right to assume that vehicles proceeding in the opposite direction would not cross into his lane of travel. We cannot say that there is any evidence that Gonzales did anything he should not have done or failed to do anything he should have done or that any act or omission on his part contributed to the cause of this tragic collision. In the absence of proof of facts, or evidence from which reasonable inferences might be drawn, to establish substantial evidence that Gonzales was guilty of any negligence which was the proximate cause of the collision causing the deaths of appellees’ decedents, a verdict was properly directed. Steinberg v. Ray, 236 Ark. 569, 367 S. W. 2d 445.

The judgment is affirmed in all respects.

      This statute reads: "After the passage of this Act it shall be unlawful for owners of cattle, horses, mules, hogs, sheep, or goats to allow them to run at large along or on any public highway in the State of Arkansas.”

      For other cases in which we have held that the word "owner” in a penal statute has a meaning broader than its most restricted technical sense, see Hood v. State, 206 Ark. 900, 175 S. W. 2d 205; Arnett v. State, 188 Ark. 1106, 70 S. W. 2d 38; Chicago, R. I. & P. Ry. Co. v. State, 84 Ark. 409, 106 S. W. 199.

        Mercer v. Bryons, 200 F. 2d 284 (1st Cir. 1952). Other jurisdictions have refused to apply the doctrine, e. g., see Wilson v. Rule, 169 Kan. 296, 219 P. 2d 690 (1950); Abbott v. Howard, 169 Kan. 305, 219 P. 2d 696 (1950); Gardner v. Black, 217 N. C. 573, 9 S. E. 2d 10 (1940); Rice v. Turner, 191 Va. 601, 62 S. E. 2d 24 (1950).


source: Caselaw Access Project

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Russell C. ROBERTS, Judge
    5-5304
    455 S. W. 2d 125
    Opinion delivered June 15, 1970

      Thomas Keys and Philip Gouien, for petitioner.

      Jones, Stratton vr Jones and Clark, Clark & Clark, for respondent.
   John A. Fogleman, Justice.

Petitioner asks that the circuit court be prohibited from proceeding further upon an intervention of Robert C. and Betty E. Jordan in an eminent domain proceeding brought in that court by it. The intervenors alleged that they had an interest as remaindermen in a tract of land taken by petitioner in that proceeding and were entitled to compensation as such. Their petition alleges that the highway department has entered upon the property, but nothing in the record indicates the date of entry or the extent of construction upon the right-of-way taken. These intervenors asserted that they were not made parties in the action and asked that they be permitted to become parties defendant for the purpose of determining the amount of compensation due them. This intervention was permitted by the trial court after the entry of consent judgment awarding compensation to the life tenant as the owner of the fee simple title to the tract in question. The circuit court held that the judgment was void as to these owners.

There can be no doubt that the life tenant and the remainderman are entitled to separate compensation. Missouri & N. A. R. Co. v. Chapman, 150 Ark. 334, 234 S. W. 171; Bentonville R. R. v. Baker, 45 Ark. 252. The owner of any interest in the land involved is a proper and necessary party to the action. Arkansas State Highway Commission v. Thomas, 231 Ark. 98, 328 S. W. 2d 367. There also can be no doubt that a remainderman has no right to possession until the death of the life tenant. Wilson v. McDaniel, 247 Ark 1036, 449 S. W. 2d 944; Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809.

At the outset it must be emphasized that when the state becomes a suitor in its courts, it is subject to like restrictions as a private suitor, must be treated as other litigants and must submit to, and abide by, the result. Arkansas Game and Fish Commission v. Parker, 248 Ark. 526, 453 S. W. 2d 30; Arkansas State Highway Commission v. Partain, 193 Ark. 803, 103 S. W. 2d 53; Arkansas State Highway Commission v. McNeil, 222 Ark. 643, 262 S. W. 2d 129.

While the proceeding to acquire rights-of-way has been called a proceeding in rem, it is also a civil action between adverse parties, and subject to the ordinary incidents of a civil suit, at least insofar as determining just compensation is concerned. Linwood and Auburn Levee District v. State, 121 Ark. 489, 181 S. W. 892; State v. Rowe, 69 Ark. 642, 65 S. W. 463.

Notice to the owner of hearing on the highway commission’s petition in condemnation is required by Ark. Stat. Ann. § 76-533 (Repl. 1957). If the owner is a non-resident of the state, notice by publication is required for the same length of time “as may be required in other civil causes.” Of course, due process requires that the owner of lands taken under the power of eminent domain be given reasonable notice and opportunity to be heard with respect to compensation in pending proceedings. Arkansas State Highway Commission v. Scott, 238 Ark. 883, 385 S. W. 2d 636. We have said that a statute undertaking to permit determination of compensation without notice is void. State Life Ins. Co. of Indianapolis v. Arkansas State Highway Commission, 202 Ark. 12, 148 S. W. 2d 671. Statutes governing procedures must be pursued strictly. Hare v. Ft. Smith and W. R. Co., 104 Ark. 187, 148 S. W. 1038.

The owner of any interest in lands being taken under eminent domain is a proper and necessary party to the proceedings to determine compensation. Arkansas State Highway Commission v. Thomas, 231 Ark. 98, 328 S. W. 2d 367. It is the duty of the condemnor to ascertain the owners of the land and make them parties, and it acts at its own peril in selecting the parties against whom the proceedings are conducted. Bentonville R. R. v. Stroud, 45 Ark. 278; Young v. Red Fork Levee District, 124 Ark. 61, 186 S. W. 604; Board of Directors, St. Francis Levee District v. Home Life & Accident Co., 176 Ark. 558, 3 S. W. 2d 967; Arkansas Real Estate Co. v. Arkansas State Highway Commission, 237 Ark. 1, 371 S. W. 2d 1. An owner or one having any interest in land taken without notice to him is not ordinarily bound by any allowance of damages which may have been made, and the proceedings are nugatory as to him. Southwestern Bell Telephone Co. v. Biddle, 186 Ark. 294, 54 S. W. 2d 57; Hare v. Ft. Smith and W. R. Co., supra; Board of Directors, St. Francis Levee District v. Home Life & Accident Co., supra; Schichtl v. Home Life & Accident Co., 169 Ark. 415, 275 S. W. 745.

The sole argument relied upon by petitioner is the contention that granting this petition permits the intervenors to sue the state in contravention of Arkansas Constitution Art. 5, Sec. 20, citing Arkansas State Highway Commission v. Bush, 195 Ark. 920, 114 S. W. 2d 1061. This contention was rejected in Arkansas Real Estate Co. v. Arkansas State Highway Commission, 237 Ark. 1, 371 S. W. 2d 1. There we said that permitting intervention by an owner not named in an eminent domain proceeding against lands owned by him was not contrary to the holding in Arkansas State Highway Commission v. Kincannon, 193 Ark. 450, 100 S. W. 2d 969, the authority on which the Bush case depends.

We are unable to say from this record when the intervening parties had notice of the pendency of this condemnation suit, or the entry of the petitioner upon the right-of-way condemned. We are likewise uninformed as to the date a deposit to secure the payment of compensation was made by petitioner, although a certified copy of the consent judgment in favor of the life tenant filed November 30, 1965, indicates that the deposit had then been made. We have no means of assessing whether intervenors have unduly delayed their demand for compensation or the effect of that delay on their right to compensation or to a jury trial to determine it.

Prohibition is an extraordinary and discretionary writ, used cautiously. Harris Distributors v. Marlin, 220 Ark. 621, 249 S. W. 2d 3. Faver v. Golden, 216 Ark. 792, 227 S. W. 2d 453. It is never granted unless the applicant therefor is clearly entitled to the relief and the tribunal against which it is sought is wholly without jurisdiction. Schley v. Dodge, 206 Ark. 1151, 178 S. W. 2d 851; Skinner v. Mayfield, (April 21, 1969), 439 S. W. 2d 651. It will not be granted if the jurisdiction of the trial court depends upon determination of questions of fact. Skinner v. Mayfield, supra; Patrick v. Wood, 243 Ark. 418, 420 S. W. 2d 92.

On the basis of the record before us, we cannot say that the circuit court is clearly without any jurisdiction. Of course, this decision does not prevent petitioner from asserting any bar that may exist because of matters occurring or actions or omissions on the part of the remaindermen after the filing of its petition for condemnation.

The writ is denied.

        Arkansas State Highway Commission v. Hammock, 201 Ark. 927, 148 S. W. 2d 324.

      The record before us does not disclose whether intervenors are residents or non-residents.


author: J. Fred Jones, Justice. John A. Fogleman, Justice,

text:
    THE FIDELITY & CASUALTY CO. OF NEW YORK v. Marion L. CRIST & Associates, Inc.
    5-5292
    455 S. W. 2d 904
    Opinion delivered June 15, 1970
    [Rehearing denied August 3, 1970.]

      Barber, Henry, Thurman, McCaskill & Amsler, for appellant.

      Lester ir Shults, for appellee.
   J. Fred Jones, Justice.

This is an appeal by the Fidelity & Casualty Co. of New York from a judgment of the Pulaski County Circuit Court in favor of Marion L. Crist & Associates on an airplane insurance policy. The question for determination is whether coverage under the policy was excluded by a provision in the policy reading as follows:

“The coverage afforded by this policy shall not apply while the aircraft is used for any purpose for which the named insured directly or indirectly makes a charge to others, except: No Exceptions.”

The motions of both parties for directed verdicts were denied by the trial court and the verdict of the jury, in effect, found that the policy coverage was unaffected by the exclusion under the facts revealed by the evidence submitted. Judgment on the verdict was entered for $9,750, which was the face amount of the policy in the amount of $10,000 less $250 deductible. The judgment also awarded $1,170 penalty and $2,520 attorney’s fees. Upon appeal to this court Fidelity & Casualty relies on the following points for reversal:

“Trial court erred in refusing to direct a verdict for the appellant.
It was error for the Trial Court to give appellee’s requested Instruction No. 1, modified.
The Trial Court erred in refusing to give appellant’s requested Instruction No. 1.”

The factual background, as gathered from the testimony of Lawrence S. Woolsey, secretary-treasurer of the appellee corporation, is as follows: Marion L. Crist & Associates, Inc. is a consulting engineering firm consisting of six associates and was established by Marion L. Crist in 1943. In 1954 Mr. Crist purchased and piloted a new Beechcraft Bonanza E35 model airplane which was also used in connection with company business. Mr. Crist and two other members of the firm were pilots, so when Mr. Crist ceased flying in 1966, he sold the aircraft to the appellee corporate firm. The appellee kept the plane insured, with itself as named insured, and around the first of the year, 1968, it decided to sell the plane and listed it for sale with the Central Flying Service of Little Rock from whom Mr. Crist originally purchased it. Central found several prospects who appeared interested in the plane. Mr. Guy Freeling, Jr. was a neighbor and friend of Mr. Woolsey and he also indicated an interest in purchasing the plane. Mr. Freeling was a member of a flying club and holder of a pilot’s license, so he went with Mr. Woolsey to look at the plane and he flew the plane in trying it out. On this one trip Mr. Freeling offered to pay Mr. Bowlin (with flying service where the plane was kept and serviced) directly for the flight fuel used in trying out the plane. This offer was refused by Mr. Woolsey as he preferred to handle the expenses on his credit account with Bowlin, by merely having the plane fully serviced, then signing a ticket and paying later. Mr. Freeling inquired and was told the sale price of the plane, and Woolsey testified that it was understood that Freeling would fly the plane some more in trying it out with the idea of purchasing it. Woolsey testified that Freeling again offered to pay the actual operational expenses of the plane while he was flying it, and Mr. Woolsey says he accepted this offer. He says that the plane was checked over and the oil changed every 25 hours; and that since Mr. Freeling would make flights of very short duration in trying out, and learning to like the plane, it was understood that Mr. Freeling would pay for the expenses of his short trips at the rate of $15 per hour actual flying time as determined by the recording tachometer.

On September 2, 1968, Mr. Freeling had flown the plane, with two of his friends, from Little Rock to Lake Village for the purpose of hunting doves. As the plane took off from the landing strip at Lake Village for the return trip to Little Rock, it crashed. Mr. Freeling as well as his two companions was killed and the plane was a total loss. The appellant was promptly notified of the loss and on the following day sent its insurance adjuster to Little Rock and he obtained a statement of facts from Mr. Woolsey. The adjuster wrote the statement out in longhand and Mr. Woolsey read and signed it. This written statement was placed in the record and apparently appellant based its motion for a directed verdict more on the statement as written, than on Woolsey’s sworn testimony. The written statement recites as follows:

“Mr. Guy Freeling, Executive Vice President of the First American National Bank, North Little Rock, Arkansas became rather remotely interested in buying this aircraft and I worked out a rental agreement with him so that he could rent the aircraft and fly it. On August 21, 1968, he called and wanted to use our aircraft and in accordance with good practice we mutually agreed that he should be checked out in the aircraft before flying it alone. Frankie A. Bowlin, a certified flight instructor employed by Central Flying Service, where the aircraft was based, checked Mr. Freeling out. I went along on the check flight as an observer. I was satisfied in my own mind that Mr. Freeling was very competent in our aircraft. Bowlin commented to me that he was satisfied that Mr. Freeling was very competent to fly the Bonanza. The rental arrangement was that he pay $15.00 per hour for each flying hour per the recording tachometer. We furnished everything — gas, oil, maintenance, storage, etc. This was a sort of promotional price to Mr. Freeling for the purpose of getting him more interested in buying the aircraft from us. We also wanted to use the aircraft more than we had been using it, we had been flying it only about once a month. By renting it to Mr. Freeling we got more use out if it. Mr. Freeling had flown approximately four and one-half hours in our aircraft prior to September 2, 1968. On September 2, 1968, he rented the Bonanza to take two other men to Lake Village, Arkansas. On taking off from an airport at Lake Village he struck a radio tower with the wing of the Bonanza and crashed. All three occupants of the aircraft were killed. I am not personally acquainted with either of the other two men who were killed. I did not know prior to the crash what the purpose of the trip was. I have since heard that they had gone to Lake Village to dove hunt.”

Mr. Woolsey testified that he told the insurance adjuster the facts as he related them to the jury under oath, and that the adjuster wrote down the statement in longhand and he read and signed it. He says that the adjuster employed his own words and phraseology in writing out the statement and that he, Woolsey, did not check the statement for exact words and phraseology. He emphatically denies using the word “remotely” in connection with Mr. Freeling becoming interested in purchasing the aircraft. As to the rental agreement, as set out in his written statement, he testified as follows:

“Q. The statement also is to the effect that, and I am quoting, 1 worked out a rental agreement with him so that he could rent the aircraft and fly it.’ Was that the statement you made to this particular adjuster?
A. They were his words, I didn’t realize that the word ‘rent’ had any particular significance, I mean, we had an agreement that he would pay something for the expenses on the airplane, I wasn’t smart enough to realize that was the wrong thing to sign.
Q. Whether it was the wrong thing or right thing, did you relate to this particular adjuster the facts concerning Mr. Freeling’s use of the plane just like you related to us today?
A. Yes, sir.”

On cross-examination Mr. Woolsey again denied using the word “remotely” in the written statement in connection with Freeling’s interest in purchasing the airplane. As to the rental agreement, as set out in the written statement, Mr. Woolsey testified on cross-examination as follows:

“Q. Is it not true, Mr. Woolsey, that in that statement that you signed, the statement which you signed said, ‘The rental agreement was that he pay Fifteen Dollars per hour for each flying hour per the recording tachometer?’
A. The statement says that, yes.
Q. And that was the agreement which you made, was it not, Mr. Woolsey?
A. The tachometer time was the way we would get the length of time the aircraft had been flown, but it was not a charge I made, it was an offer I accepted for him to participate in the cost of the operation.
Q. That offer which you accepted, was that based upon the time recorded by the tachometer, Mr. Freeling was to pay to Marion L. Crist & Associates, Inc. Fifteen Dollars per hour?
A- Yes.
Q. That was the agreement, was it not?
A. Yes, sir.
Q. How many hours had Mr. Freeling flown this aircraft prior to the time he took off on the September 2 flight?
A. Approximately four hours, he had taken Dr. Crow to Cherokee Village on one occasion, he had taken Dr. Crow to Arkadelphia on one occasion, as I understand. He had made a local flight checking out the instruments, with his son as a safety pilot, somebody watched while he was flying under the hood, those times I know, approximately four hours or slightly more.
Q. I believe in your statement, prior to the September 2 flight, that Mr. Freeling had flown the plane approximately four and a half hours?
A. Approximately.
Q. And I take it from that, that you or someone on behalf of Marion L. Crist 8c Associates had kept a record of the hours that were reflected by the tachometer?
A. We had not checked the tachometer, Mr. Free-ling merely told us how long he had flown and we entered it on the log we keep at the office.
Q. Further in that statement, Mr. Woolsey, is it not true, the statement which you signed, that you made the statement that on September 2, 1968, that Mr. Freeling rented this Bonanza to take two men to Lake Village?
A. No, sir, I did not say that, the statement says that, but I signed it, the statement.
Q. That was in the statement which you signed?
A. Right.”

In his testimony Mr. Woolsey explains the charge of $15 per hour in the following language:

“Q. How did the figure Fifteen Dollars an hour get into this?
A. Mr. Freeling asked me should he pay for the gas and oil and then turn in the tickets to me, and I said, ‘No, you are taking short flights, local flights, well within the range of the aircraft’s fuel capacity, so do what we do, we don’t fill the airplane up on local flights except at the Central ramp and we bring it back to where we keep the airplane and then fill it up,’ and I suggested he do this and sign a ticket charged to us and then we would just charge him based on the tachometer time as a method of simplifying all that record keeping, so he wouldn’t have to keep a bunch of invoices to what he had spent.”

Mr. Claud Holbert testified that he is connected with Central Flying Service whose business is aircraft rental and sales and flying instruction and repair. He says that he is a dealer for Beechcraft and is familiar with the aircraft involved, having sold it originally to Marion Crist. Mr. Holbert testified that the appellee had recently listed the plane with him for sale and that he is familiar with the out of pocket cost in the actual operation of airplanes. He testified that on the particular plane involved, the usual out of pocket flight operation cost would be $14.11 per hour. He testified that this would not be the rental value of the plane, and that the operating cost of $14.11 would not include depreciation and that sort of thing. He testified that the fair rental value of the particular plane being flown by Guy Freeling at the time of his death would be $25 to $27.50 per hour.

Mr. Kenneth Hiegel, a witness called by the appellant, testified that he operates Hiegel Aviation, Inc. and is engaged in buying, selling, renting, repairing and servicing new and used airplanes. As to the rental value of the airplane involved in the case at bar, Mr. Hiegel testified as follows:

“Q. Mr. Hiegel, in your experience in this business and in your opinion, based on this experience, what would be the reasonable fair rental value of a 1954 Beechcraft Bonanza?
A. Depending on the equipment that is installed in the airplane, I would say an average 1954 model Bonanza that we are speaking of would, I would personally rent for around Twenty Dollars an hour.
Q. Would Fifteen Dollars an hour be unreasonable in your opinion, as a dealer?
A. Probably that would be a rock bottom minimum and as a dealer, I probably would not rent that airplane for that money, no.”

We find no error in the trial court’s refusal to direct a verdict for the appellant and we, therefore, find no merit in appellant’s first point. In the case of Houston Fire & Casualty Ins. Co. v. Ivens, 338 F. 2d 452, an aviation insurance policy covered an aircraft only while it was used for personal or family business “excluding any operation for which a charge is made.” The insurance company brought suit for a declaratory judgment requesting a determination of its liability under the policy issued to Ivens. Ivens was an independent contractor who owned the insured aircraft and he did independent work for a company of which N. M. Ulsch was president. One Fletcher had purchased from the company an item being manufactured in Tennessee and Ivens agreed to fly Fletcher from Florida to Tennessee to pick up the item. A day or so before the flight Ivens called Ulsch by telephone and asked for a contribution towards the cost of gasoline in making the trip. Ulsch was advised that gasoline for one hour in flight would cost $10, and that the flight would take approximately six hours. Ulsch agreed to contribute $60 toward the trip. In the Ivens case, as in the case at bar, evidence was presented that the charter, or rental rate on an airplane of the type involved, would amount to considerably more than the amounts agreed to be paid and accepted. In Ivens the court said:

“It is the opinion of the Court that when a charge is made for something, there is a distinct connotation that there is a quid pro quo. A charge may thus be considered as the price demanded for a thing or service. The agreement of Ulsch was merely the offer of a contribution made to help Ivens defray the cost of the gasoline.
* * *
Based upon the record before it, the Court is of the opinion that the offer of Ulsch to contribute $60.00 toward payment of the cost of the gasoline was not a charge within the meaning of the policy, and that the fatal trip was not an ‘operation for which a charge is made.’ ”

Appellant is correct in its statement that in Ivens a “charge” is defined as the price demanded for a thing or service, but the only difference we are able to distinguish between the “charge” made in the Ivens case and the one at bar, is that in Ivens the amount was $10 per hour and in the case at bar it was $15. As above set out the Ivens case reached exactly the opposite conclusion from that urged by the appellant in the case at bar. The appellant says that the court in the Ivens case would have considered the $15 per hour charge in the case at bar as within the exclusion provision of the insurance contract. We can draw no such conclusion. The appellant recognizes the $10 per hour in the Ivens case was a contribution toward the cost of gasoline as per verbal telephone agreement as testified by Ulsch. The appellant, in effect, asks us to usurp the duty and authority of a jury and hold that the $15 per hour in the case at bar constituted a charge within the meaning of the exclusionary clause rather than reimbursement for expense as testified by Mr. Woolsey. We are unable to do this.

As to the appellant’s second point, the appellee’s requested instruction No. 1 was a lengthy one and only that paragraph bearing on the specifically alleged error will be copied here. That part of the instruction as requested by the appellee is as follows:

“You are further instructed that the exclusion of coverage under this insurance policy is applicable only if the plaintiff actually made a charge for the use of the aircraft or contracted to make a charge under a binding, legally enforceable agreement.”

The appellee’s instruction No. 1, as modified and given by the court, and with our emphasis on the modification, is as follows:

“You are instructed that within the meaning of the terms of the policy, a ‘charge’ would be made for the use of the aircraft if it constituted the price demanded and agreed \o be paid for the use of the aircraft, without contingency or qualification.”

We recognize appellee’s instruction No. 1 both as requested, and as modified and given, as being far from an ideal instruction, but we confine our attention to the specific objections stated by the appellant as follows:

“The defendant, Fidelity 8c Casualty Company, objects generally and specifically to the giving of Plaintiff’s Requested Instruction No. 1, being the instruction requested by the plaintiff, as amended, objecting only to that part of the amendment wherein the Court had inserted the words, ‘without contingency or qualification.’ The defendant objects specifically for the reason that there is no evidence that there was any contingency or that the agreement between Woolsey and Freeling was in any way qualified. That the parties agreed on Fifteen Dollars an hour and that there was nothing in that agreement with reference to the liability for this charge regardless of whether Freeling did or Freeling did not purchase the aircraft.” (Emphasis supplied).

The crux of appellant’s argument as to error in this instruction, is that there was no evidence of contingency or qualification that would justify the inclusion of this phrase in the instruction. We do not agree with the appellant on this point. There was evidence that the $15 per hour agreed upon was reinbursement of expenses rather than charges for the use of the aircraft. Even if the $15 per hour could properly be considered “a charge” within the meaning of the policy, there was evidence that the purpose of the use for which the charge was made was to try the aircraft out with a view of purchasing it. There is no substantial evidence that a charge was being made for that purpose. On this point Mr. Woolsey testified as follows:

“Q. Did you reach any agreement with Mr. Freeling to rent or charter the plane for him?
A. No, I merely accepted his offer.
Q. Did you make any demand for a particular rental price for the plane?
A. No, he could have had it for nothing as far as we were concerned.
Q. Was there any agreement or understanding of what, if anything, would be paid if Mr. Freeling purchased the airplane?
A. We would not have charged him, we would have forgiven the charges and just applied them against the purchase price, just washed them out if he purchased the airplane, which I thought he was going to do in a few days.
Q. No charge made for that?
A. No charge.”

The appellant is correct in its contention that there was no evidence of “contingency or qualification” that $15 per flight hour was the amount Freeling agreed to pay and the appellee agreed to accept. The amount of money which Freeling agreed to pay and the appellee agreed to accept is not in issue ánd is not the important question in this case. The important question is what was the $15 per hour paid for. Was it for use of the aircraft and did the appellee charge that amount for the use of the aircraft, or did the appellee receive, either by charge or acceptance, that amount for reimbursement of the actual out of pocket expenses in the cost of operating the aircraft during the period of time Freeling did operate it? Woolsey answers this last question in the affirmative, and the additional testimony of Holbert and Heigel as to the cost of operating the plane, and the average cost of rental, lends weight and corroboration to Woolsey’s testimony that the $15 per hour to be paid by Freeling was not a charge made for the use of the aircraft at all, but was for reimbursement of expenses in its operation. So we hold that appellant’s second point is without merit.

As to appellant’s third and last point, we conclude that the trial court did not err in refusing to give appellant’s instruction No. 1 as requested. Appellant’s requested instruction No. 1 is as follows:

“Contracts of insurance, like other contracts, are to be construed according to sense and meaning of terms which parties have used, and if they are clear, their terms are to be taken and understood in their plain, ordinary and popular sense.”

This instruction correctly tells the jury how contracts of insurance are to be construed when the sense and meaning of the terms which the parties have used are clear; but it does not tell the jury how a contract of insurance is to be construed when the meaning of the terms employed is not clear. We are of the opinion that the contract here falls in the second classification, and we find no error in refusing to give the appellant’s requested instruction No. 1 as requested.

The appellant cites State Farm Mutual Auto Ins. Co. v. Pennington, 324 F. 2d 340, for the proposition that “contracts of insurance, like other contracts are to be construed according to sense and meaning of terms which parties have used, and if they are clear, their terms are to be taken and understood in their plain, ordinary and popular sense.” The Pennington case is so applicable to both sides of the question in the case at bar, we feel justified in quoting all of paragraphs [3-5] from the Pennington decision as follows:

“Provisions of a policy of insurance are construed most strongly against the insurance company that prepared it, Travelers Indemnity Company v. Hyde, 232 Ark. 1020, 342 S. W. 2d 295 [1961]. While it is true that the Court resorts to such rule of construction when there is ambiguity, the rule is equally well established that, where no ambiguity exists, the Court is not required to use a forced construction which is plainly outside the language of the policy. McKinnon v. Southern Farm Bureau Casualty Ins. Co., 232 Ark. 282, 335 S. W. 2d 709 [1960], Contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense. State Farm Mut. Automobile Ins. Co. v. Belshe, 195 Ark. 460, 112 S. W. 2d [1938],
This Court has stated, in Jefferson Insurance Co. of Pine Bluff, Ark. v. Hirchert, 281 F. 2d 396 [1960]:
‘The law of Arkansas relative to the construction of insurance contracts apparently differs in no respect from that almost universally applied. Mr. Justice Sutherland, in Bergholm v. Peoria Life Ins. Co., 284 U. S. 489, 492, 52 S. Ct. 230, 231, 76 L. Ed. 416, stated the rule as follows:
* * * It is true that where the terms of a policy aré of doubtful meaning, that construction most favorable to the insured will be adopted. # * * This canon of construction is both reasonable and just, since the words of the policy are chosen by the insurance company; but it furnishes no warrant for avoiding hard consequences by importing into a contract an ambiguity which otherwise would not exist, or, under the guise of construction, by forcing from plain words unusual and unnatural meanings.
Contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary and popular sense. * * *’ ”

The appellant cites several other cases for the proposition that where there is no ambiguity in an insurance policy contract, it is the duty of the courts to interpret the provisions of the contract according to the plain import of its language as is done in other types of contracts. Each of the cases cited also holds that' insurance policies are to be liberally construed in favor of the insured, and that where the language of the policy is ambiguous, the contract is construed most strongly against the insurance company that prepared it.

The judgment of the trial court is affirmed.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting in part. I disagree with the majority in this case only on the points relating to the jury instructions.

Plaintiff’s requested instruction No. 1 seems to have been a reasonably proper declaration of the law applicable to the facts and the policy clause involved. I think that the modification was error. Nowhere in that clause is there any statement from which it could be said that the exclusion applied only if the charge was a price demanded and agreed to be paid, without contingency or qualification. There was only a question of fact as to whether appellee made a “charge” for the use of the plane or merely sought reimbursement for expenses. There was no evidence that the agreement between the parties encompassed any understanding that the “charge,” if it was a charge under the terms of the policy, would be forgiven if Freeling did buy the plane. Any “ex post facto” statements of intention by the secretary-treasurer of the corporate appellee-plaintiff are wholly irrelevant. Yet, it seems to me that the court’s addition of the words “without contingency or qualification” inevitably led the jury to conclude that the real issue was what appellee might subsequently have decided to do about the charge in later bargaining with a prospective purchaser. I respectfully submit that the majority opinion does not answer the critical question, but avoids it.

I also feel that appellant’s requested instruction No. 1 should have been given. The majority concedes it to be a correct declaration of the law. Fault is found in its failure to state a related principle of law in the construction of insurance policies. Of course, a single correct instruction, which is not binding, is not required or expected to state all the law involved. If appellee had desired revelation of the “other side of the coin” he might have requested such an instruction. See St. Louis, I. M. & S. Ry. Co. v. Smith, 82 Ark. 105, 100 S. W. 884.

I would reverse the judgment for errors in the instructions as stated herein.


author: Conley Byrd, Justice. Frank Holt, Justice,

text:
    W. T. BABER et ux v. Myrna HICKS, Guardian
    5-5197
    455 S. W. 2d 104
    Opinion delivered June 15, 1970

      James H. Pilkinton, for appellants.

      Tompkins, McKenzie ér McRae, for appellee.
   Conley Byrd, Justice.

Appellants W. T. and Ruby Baber and appellee Myrna Hicks, Guardian of the Estate of Annie L. Christian, an incompetent, were previously before this court in Baber v. Hicks, 238 Ark. 674, 384 S. W. 2d (1964), relative to the validity of a deed from Mrs. Christian to the Babers for support and maintenance. Involved here is the Babers’ responsibility to Mrs. Christian while she refuses to accept performance of the contract at the place designated or contemplated by the parties.

This phase of the litigation was instituted by the Babers for a declaratory judgment as to their responsibility under the contract. Mrs. Hicks answered alleging that it was essential to Mrs. Christian’s well-being that she reside and be cared for in Wilcox Hall, a nursing home operated in conjunction with a hospital in Kings-port, Tennessee, and that Myrna Hicks as guardian was entitled to recover $10,891.20 for the reasonable cost of supporting Mrs. Christian in the nursing home from December 31, 1965, to the time of answering and also the cost of medical expenses incurred since December 31, 1965.

The trial court after a hearing held that the Babers were liable for the medical expenses according to the standards at Hope, Arkansas, in the amount of $2,127.47 and that Mrs. Christian’s estate was entitled to a reimbursement of $3,914.00 (being $10,265.00 less certain credits) for the nursing home expenses incurred. For reversal, the Babers raise a number of points, but because of our disposition, we will only discuss the obligation of the Babers with respect to the nursing home and the medical expenses.

The record shows that Mrs. Christian had lived with the Babers off and on from 1937 until late in 1962. When the Babers moved from Ozan to Hope in 1946, Mrs. Christian moved with them. Mrs. Christian owned some land worth approximately $22,000.00. In August 1962, subject to a life estate reserved in herself, she conveyed the land to the Babers under the following agreement:

“That I, Annie L. Christian, for and in consideration of the sum of Ten Dollars ($10.00) cash to me in hand paid by W. T. Baber and Ruby Baber, his wife, hereinafter called Grantees, the receipt of which is hereby acknowledged, and the further consideration that they, and each of them, and/or the survivor of them, do hereby agree to take me into their home and the home of the survivor, and care for me and furnish to me a separate room in such home and also furnish and provide for me all my necessary food, meals and board, and generally to support and look after and care for me as a member of their family as long as I live, except that I am to furnish and pay for my own clothing and wearing apparel...."

In December 1962, Mrs. Christian went to visit relatives in Tennessee and Virginia. Thereafter, Mrs. Myrna Hicks as guardian sued to set aside the deed because of alleged undue influence or mental incapacity. That litigation ended with Baber v. Hicks, 238 Ark. 674, 384 S. W. 2d 267 (1964), wherein we reversed the trial court’s action in setting aside the deed, and said:

“Upon the record as a whole we are persuaded that Mrs. Christian’s dissatisfaction with her contract is the result not of its invalidity in the first instance but of a change of mind on her part after she left the Babers’ home. In setting aside the chancellor’s decree we recognize, of course, that Mrs. Christian is still entitled to make her home with the appellants in accordance with the terms of the agreement.”

On July 10, 1964, Mrs. Christian was admitted to a Tennessee Hospital for a fractured hip. On September 23, 1964, she was again admitted for urinary incontinence, urinary tract infection and bronchitis. Upon her discharge each time she was returned to the home of her niece, Mrs. Hicks, in Gate City, Virginia. On February 20, 1966, Mrs. Christian was again hospitalized with pneumonia, chronic cystitis, osteoarthritis, parkinsonism, and cerebral arteriosclerosis. When Mrs. Christian was discharged on March 15, 1966, she again returned to Mrs. Hicks’ home. In April of 1966, Mrs. Christian was admitted to a nursing home operated in conjunction with the hospital. She was again hospitalized on April 11, 1967, and discharged on April 19, 1967, to the nursing home.

The guardian’s pleadings assert that it is not congenial for Mrs. Christian to reside in a room in the Baber home as a member of their family.

Mrs. Ruby Baber, age 64, testified she had lived at Ozan from 1937 to 1946 when they moved to Hope; that Mrs. Christian had lived in their home at Ozan and moved to Hope with them. Mrs. Baber’s youngest son was five weeks old when Mrs. Christian came to live with them. Mrs. Baber is now working as a school teacher because she has nothing else to do. If she had Mrs. Christian she would quit and care for her and that she has offered to do that for four years and would now if Mrs. Christian was returned to her care. Mrs. Baber’s mother is cared for by Mrs. Baber and her sisters in their respective homes from time to time. Mrs. Baber points out that she would employ all necessary help and assistance that would be needed to care for Mrs. Christian if she would return to her home. In fact, a Mrs. Bell McElmore, a registered nurse who lives just across the street, could be called on for help if needed. Mrs. Baber points out that her retirement income, if she now retired, would be $28 or $30 more a year than she is now drawing for teaching. On cross-examination she stated that if Mrs. Christian came back to Hope to live with her and the doctor said it was necessary for Mrs. Christian to live in a nursing home she would put her there until she could recuperate and come home.

Mr. W. T. Baber says that when they moved to Hope Mrs. Christian moved with them, that she’s lived with them off and on some 18 or 19 years prior to the time she went to Virginia. He would be glad to help with Mrs. Christian if she would come to live with them as they had agreed; that Mrs. Christian lived with them as one of the family, in fact she helped rear their sons. On examination by the court Mr. Baber stated that if it was necessary to sell an interest in their lands to provide for Mrs. Christian’s care, comfort and maintenance they would do so. He says the agreement between the Babers and Mrs. Christian was not entered into for money reasons, that it was out of personal love between Mrs. Christian and them.

Dr. Hobert M. Hampton of Gate City, Virginia, after testifying that he had recommended that Mrs. Christian be placed into a hospital initially and later transferred to a nursing home, stated:

“You have asked me if, at that time, after my examination, and with the knowledge I had of her condition, whether or not, in my opinion, Mrs. Christian could be properly cared for in a private home or residence, or whether it was best for her comfort, peace of mind and general and physical and mental condition that she be placed in a hospital or nursing home under professional care, and where hospital or nursing home facilities were constantly and readily available. This is a difficult question to answer, and in order to make some sense, I will go into some detail. She was initially admitted to Holston Valley Hospital on 7/10/64 with a diagnosis of fracture of the right hip. She was subsequently cared for by the orthopedic surgeons and myself during this hospital stay. Mrs. Christian’s next admission to the hospital was 9/23/64. Reason for this admission was urinary incontinence with urinary tract infection, and bronchitis. She was subsequently treated by myself and Dr. R. C. Jones, a urologist, and discharged again to Mrs. Hick’s care. The date of Mrs. Christian’s next admission to the hospital was 2/20/66, diagnosis on admission was pneumonia, chronic cystitis, osteoarthritis, parkinsonism, and cerebral arteriosclerosis. She was again discharged home to the care of Myrna Hicks. Mrs. Christian continued to do poorly at home of Mrs. Hicks because of her urinary tract disease as well as crippling arthritis and it was decided to admit her to Wilcox Nursing Home. She was admitted in April 1967, mainly because she had developed some decubitus ulcers as the result of her bedfast condition, and due to her urinary tract infection required Foley catheter drainage as well and frequent care, such as irrigation, as well as antibiotics for the infection. Also she required very intensive care for decubitus ulcers which were very slow to heal and required treatment at least 3 or 4 times a day by professional nursing care in form of medication, heat treatment, and turning every 2 to 4 hours in bed. It was felt by me that admission to nursing home was essential because of above conditions. Yes, my recommendations were borne out by subsequent condition of patient. Basically patient was unable to care for herself, could not turn herself in bed, or feed herself. Since she has been in nursing home, my visits have varied, sometimes every week or so, but of late I usually see Mrs. Christian every 2 or 3 months. I saw her last 2/9/69. The reason for my last visit was routine follow-up of nursing home care and physical evaluation, also to evaluate treatment instigated by an orthopedic surgeon several months ago in form of weights tied to her lower extremities to reduce flexure contractures of hips, knees, and ankles. You have asked me if in my opinion should Mrs. Christian continue to remain in the nursing home, and to give my reasons for my answer. This question is certainly debatable, at least by myself. She does require frequent and continuous 24. hour care, medication for parkinsonism and tremors, frequently turning in bed for delilitated condition, various cathartics, and sitting up in chair. Presently she is on leg straightening therapeutics of weights tied to lower extremities. I feel Wilcox Hall Nursing Home has done an excellent job. Whether this could be done in a home I think would be very much up to the individual concerned with the care. Since I first knew Mrs. Christian her physical condition had deteriorated in form of more serious, advanced, contractures of her joints. Nervous wise she is depressed at times but not to an incapacitating degree] Her mentation remains good. Medications I prescribed for her between December 1965 and December 1968 included antibiotics, Foley catheter drainage as well as irrigation of catheter, local medications for decubitus ulcers, tranquilizers for parkinsonism and nervousness at times, heat treatment to ulcers, bed rest, turning in bed 3 to 4 hours, getting up in chair 3 times a day. The purpose of antibiotics was to clear urinary infection and occasional bronchitis and ulcer care was to clear up open ulcer, and the effect was good. It was imperative that above treatment and medication be administered and followed up by a doctor between December 1965 and December 1968. Mrs. Christian did not have any problems with medicines I prescribed for her. Having treated her for 5 years, I am acquainted with her phsyical, mental and nervous condition. As to whether her continual treatment, her further treatment in the future is required to be in a nursing home, again is debatable as I mentioned before, for the reasons mentioned before. The foreseeable care for patient for 1969, if she remains in nursing home, is same as it was in 1968. Unless she develops further infectious complications, antibiotics will not be needed. At present time she is not on any antibiotics. She does not have any urinary tract infection or any bronchial infection. As to whether it will be necessary for her to have constant professional nursing attendance by an LPN or other similar type care, this again leads to a philosophy of patient care which is different in different families. I would leave it to the personnel involved to decide this on their own after they know the facts of the case. . .” (Emphasis ours).

Dr. Jack L. Royal, a physician of Hope, Arkansas, stated that he had read Dr. Hampton’s deposition and that assuming the conditions that Dr. Hampton had outlined are correctly stated, his opinion is actually the same as stated by Dr. Hampton and that is, it depends on motivation. He felt that if the motivation is proper, then with the conditions outlined in Hampton’s deposition, Mrs. Christian could very well be taken care of in a private home. He said that he has seen patients with the same conditions managed beautifully in a home, and that knowing full-well that these conditions were managed before nursing homes ever came into existence it is obvious that the only factor that would change things would be whether or not a person was motivated enough to keep Mrs. Christian in the home. Other testimony by Dr. Royal shows that it would be possible for a layman or laywoman to take care of a person in Mrs. Christian’s condition as described by Dr. Holbert Hampton.

Dr. James W. Branch, a witness for appellees, after stating that Mrs. Christian was certainly a candidate for a skilled nursing home, stated on cross-examination that he had two nursing homes in Hope. However, he would not say as a matter of fact that a patient could not be cared for in a private home — i. e., that it depended a lot upon the individual doing the caring and his training and motivation. He said that motivation is a big help to patients.

Mr. Charles W. Wilson of Hope, who has had 24 years experience in hospital and nursing home administration, testified that considering the information in Dr. Hampton’s deposition he thought Mrs. Christian could be taken care of in a private home. He was familiar with Mrs. Baber’s home and he thought it could be done. He knew patients with trouble similar to Mrs. Christian’s who are being satisfactorily cared for from the patient’s standpoint in private''homes.

In a memorandum opinion the trial court found: parties, now that that eventuality has occurred, even under such circumstances that have prevented the Babers to redeem their promise to Mrs. Christian to help her avoid a nursing home regime in her failing years. To hold that Mrs. Christian’s departure from Hope, never to return, excused the Babers from all responsibility and liability for the cost of nursing home care for Mrs. Christian, no matter what her condition, would not only in effect work a forfeiture as to Mrs. Christian, but would also, in the Court’s opinion, effect an unjust enrichment of the Babers in the premises.

. . Mrs. Christian, without justification, approximately four months after executing the deed, left the Baber home, never yet to return, and in all likelihood not to return for the rest of her life. The Court accepts at face value Plaintiffs’ testimony that their contract with Mrs. Christian for her care and support was entered into by both parties in part to avoid the necessity of Mrs. Christian’s ever becoming a nursing home patient. But this fact, in the Court’s opinion, is not determinative of the rights and obligations of the

In determining these parties’ mutual rights and liabilities, the Court feels that all the facts and circumstances of the original transaction must be born in mind, including the circumstances of the parties at that time, and as such circumstances have been changed by the passage of time. In taking these matters into consideration and giving proper weight to all factors, the Court must then attempt to determine what the words of the deed now require of Mr. and Mrs. Baber in view of Mrs. Christian’s needs as they have existed during the three year period in question.

The Court does not believe that the words ‘as a member of their family' used in the support contract should be given the meaning that Plaintiffs suggest to the Court, that is, a meaning which would exclude Mrs. Christian from all benefits of the contract, since she herself removed herself voluntarily and without justification from the Baber home and from the family circle that had been created by the deed. To the contrary, the Court believes that this phrase requires the Court to determine how members of a family should react toward another member of the family who falls on evil days so that it has become, in the judgment of her personal physician, essential for her physical well-being to live in a nursing home.”

As we view the record and the contract involved the Babers at. no time have breached their contract. Furthermore, their contract shows that it was to be performed by the Babers at their home. The agreement was that the Babers would “take me into their home and the home of the survivor, and care for me. . . as a member of their family as long as I live. . . .” Under these circumstances and the admission of the guardian that she does not consider the Baber home a congenial place for Mrs. Christian to live, it appears to us that the Babers are performing their agreement so long as they remain ready, willing, able and properly motivated.

A person has a right to contract to perform a contract in a particular place. IN THIS RECORD EACH DOCTOR WHO TESTIFIED STATED WITHOUT CONTRADICTION THAT WHETHER MRS. CHRISTIAN SHOULD STAY IN A NURSING HOME OR GO TO A PRIVATE HOME DEPENDED UPON THE MOTIVATION OF THE PERSONS IN CHARGE OF THE PRIVATE HOME. In this record there is no evidence to show that the Babers are not properly motivated. The overwhelming evidence is that they are willing to dispose of their total worldly possessions to uphold their contractual obligation to Mrs. Christian. Furthermore, the record shows that Mrs. Christian lived with the Babers for a substantial number of years, helped raise their sons, and that because of this enduring relationship the agreement between the Babers and Mrs. Christian was not solely a financial transaction but evolved in part from love and affection.

Thus so long as the record shows that the Babers are living up to their contract for furnishing the personal services for which they contracted and that it is possible for them to live up to their contract suitable to Mrs. Christian’s condition in life, then we are at a loss to understand why they should be obligated to perform their contract in Virginia or Tennessee or any other place away from their home in Hope, Arkansas. Any other construction of the contract would permit Mrs. Christian, or her guardian, to select the site of performance of the contract.

In 17A C. J. S. Contracts § 357, it is stated:

“If the contract is silent as to the place of performance, such place is to be determined in accordance with the supposed understanding of the parties at the time of the contract, and hence, will vary according to the nature and subject matter of the contract. Such mutual intention or understanding should be ascertained in accordance with the general rules of construction taking into consideration all the facts and circumstances of the case.”

In Currier v. Currier, 2 N. H. 75 (1.819), the son had contracted with the father to pay the father’s debts and to provide necessary support for him and his wife or in failure thereof to lease to them during their life fifty acres of the son’s lands. The father lived with the son until his death but the mother refused to live with the son. In holding that the place of performance was the son’s home, the court said:

“The pleadings put in issue only the fulfilment of the bond, after the death of the plaintiff’s husband.
That issue has been properly found for the defendant, if he was not obliged to fulfill the bond, either to the plaintiff in person, or at such place as she might appoint. For, otherwise, the house of the defendant appeared to have been a suitable place for her maintenance, and his readiness to support her at such place, would be sufficient without an actual tender of any articles. (1)
This readiness and notice of it to the plaintiff, in A. D. 1809, were distinctly proved at the trial; and after such an unqualified refusal to remove, as she then gave, it was unnecessary to repeat the invitation since her husband’s death.
We feel no disposition to doubt the correctness of the principle, that an obligation, which points out no place of performance, must be fulfilled to the obligee in person, wherever he may chance to be. (2).
But it is an established exception to this general principle, that when the obligation is not for money, but for articles which are cumbersome, ‘as an obligation for ten bushels of wheat,’ the wheat need not be delivered to the obligee in person, ‘for that the importableness thereof, shall excuse’ the obligor. (3)
Thus it must be apparent to every man acquainted with the business of real life, that a contract by a blacksmith to pay a certain sum in his work, when it was proved that he owned a shop in which he was accustomed to labor, ought and must have been intended to be performed at the shop of the promissor. While, on the contrary, if he owned no shop, and labored as a journeyman, and the promissee did own a shop, the inference would be, that the contract was to be performed in labor at the shop of the promissee.
The nature of the support to be furnished by the defendant in the present case, as it must consist of house-room, food, clothing, nursing, attendance,' and other things necessary for the comfort of his parents, would make it as ‘importable’ as ‘ten bushels of wheat.’ Hence he was not bound to carry them to the obligee, wherever she might happen to dwell.”

See also Patterson v. Jones, 13 Ark. 69 (1852), and Ziegler v. Illinois T. and S. Bank, 245 Ill. 180, 91 N. E. 1041 (1910).

The record shows that the Baber family have lived all of their lives in and around Ozan and Hope. We do not believe that either the Babers or the attorney representing Mrs. Christian in drawing the agreement ever thought that they would be called upon to perform any personal services under this contract in Tennessee or Virginia.

To affirm the action of the trial court appellee relies upon McKnight v. McKnight, 212 Mich. 318, 180 N. W. 437 (1920). In that case the proof showed no actual breach of the contract by the obligors, but many incidents which went to establish a strained relationship. Without setting forth the exact terms of the contract, the court there affirmed the action of the trial court in refusing to set aside the conveyance, but clothed the trial court with authority to require that congenial provision be made for the care and support of the stepmother at a place other than the stepson’s home. It also awarded a lien for security.

The holding in the McKnight case is not as favorable to appellee as she contends when it is construed in light of McLean v. Wortman, 353 Mich. 458, 91 N. W. 2d 811 (1958). In the latter case the agreement provided:

“Second parties in consideration of said agreement and transfers hereby agree to give and maintain a home for first party during the balance of her life, and to look after her, care for her, and see that her needs are taken care of so that she will have a home and be able to spend the balance of her remaining years in said home with good care to be furnished by second parties.
“Second parties further agree to take care of the necessary funeral expenses, if same have not already been taken care of, and to bury first party at the place of her request.”

The trial court after finding that the second parties did not agree to pay medical expenses and that they had not breached their contract at first dismissed the complaint, but subsequently granted a rehearing and awarded one half of the property to pay for the first party’s support while away from the second parties and for funeral expenses. In reversing the trial court, the Michigan Supreme Court said:

“In the first place it is unthinkable that it is the law of this state that a chancellor must in every case abandon all judicial discretion and out of hand grant such alternative relief to all plaintiffs who have otherwise failed to prove their main case. It is not only unthinkable but it happens not to be the law. Indeed in the usual case where no breach is proved no relief whatever is granted. Our reports teem with such cases. Alternative relief of any kind is granted only where there remain compelling and disturbing equities despite the lack of clear breach. The McKnight case (McKnight v. McKnight, 212 Mich. 318, 180 N. W. 437), and related cases cited by appellee for affirmance, in our opinion present residual and lingering plaintiff equities — 'which we do not here propose to calibrate — which are clearly not present in this case. Only recently we have held (Latowitz v. Tomaszewski, Mich., [353 Mich. 441] 91 N. W. 2d 809) that upon our finding that no breach was shown below the entire relief there granted plaintiff had to be set aside. In that case the equity of the plaintiff’s situation was arguably every bit as strong if not stronger than that presented here.”

From these authorities we conclude that the trial court erred in holding the Babers responsible for the nursing home care.

The medical expenses, to the extent that they do not exceed that chargeable in Hope, Arkansas, fall in a somewhat different category. The proof here shows that this was an item that the Babers expected to purchase or pay for as distinguished from an item that they expected to furnish themselves or through a unique arrangement other than that customarily used in the community. There are many arguments on either side of this issue, but in view of the fact that the Babers, notwithstanding Mrs. Christian’s consistent refusal to accept their personal services at the place where the Babers agreed to perform them, have a continuing obligation to offer to perform their end of the bargain, we believe that upon analysis the Babers are responsible for all necessary medical expenses so long as they do not exceed the comparable charge for medical expenses in Hope, Arkansas.

If Mrs. Christian while visiting a friend in Hope had broken a hip, we have no doubt but that the Babers would have been liable for the necessary medical expense. If Mrs. Christian had become miffed and removed herself to the same friend supposed in the first instance, there would appear no good reason why the Babers should not be liable for the medical expense. We can think of no reason why the same analysis should not apply with respect to medical expenses in Tennessee or Virginia so long as the cost of such necessary expenses does not exceed the cost in Hope, Arkansas, the expected place of performance. Since Mrs. Christian has by her conduct made only a part of the Babers’ contract impossible of performance, it seems to us that the rule stated in Restatement of Contracts § 463 is applicable to those services which the Babers expected, under their contract, to purchase on the open market. Section 463 provides:

“Where impossibility of performing part of the performance promised by a party to a bargain is of such character that if it related to the entire performance it would prevent the imposition of a duty or would discharge a duty that had arisen, and the remainder of the performance is not made materially more difficult or disadvantageous than it would have been if there had been no impossibility, the existence of duty is affected only as to that part; and if performance of the whole contract is possible with only an unsubstantial variation, the promisor is under a duty to render performance with that variation.”

The Babers argue that the Chancellor erroneously based his decree for money damages on what it cost in Virginia. The testimony of Dr. Branch was that the Virginia charges were comparable to those in Hope, Arkansas. Under these circumstances, we cannot say that the trial court erred in ‘ holding that the Babers are liable for the. necessary and reasonable medical expenses.

Affirmed as modified with the costs to be divided between the parties.

Harris, C. J. & Holt, J., dissent.

Frank Holt, Justice,

dissenting in part. I cannot agree with that part of the majority opinion which disallows the chancellor’s partial award of expenses to appellee for reasonable nursing home care which was based upon local costs. A portion of that part of the chancellor’s opinion reads:

“In arriving at this conclusion, the Court has taken into consideration the fact that nursing home care could be provided at Hope at less cost than the cost for similar care in Wilcox Hall, and that the wages of one employee by the Babers for forty hours a week during the two and two-thirds years Mrs. Christian has spent in the nursing home at Kingsport would possibly exceed the amount of the judgment here rendered in Mrs. Christian’s favor. The Court has also taken into consideration the fact that Mr. and Mrs. Baber have been deprived of an opportunity to economize on costs, while at the same time considering the fact that Mr. and Mrs. Baber [68 and 64 years of age respectively] have not had the physical strain of giving the care that is properly Mrs. Christian’s due.”

Mrs. Christian, now 87 years of age, admittedly is an invalid and described as essentially a nursing home patient requiring constant nursing attention. According to the evidence, had Mrs. Christian resided in the appellants’ home during the period in question, it would have cost the appellants at least $5,280 for only one attendant working a forty-hour week. The minimum cost for nursing home care in Hope, Arkansas would have been approximately $7,500. This would not include any additional costs for necessary medicines and medical care in either the appellants’ home or a nursing home. The total judgment rendered by the chancellor was for only $6,041. This included $2,127 for necessary medical bills which the majority approves. The balance of $3,914 was necessarily allocated to nursing home care. It appears both items were based upon local costs or standards. Obviously, that part of the judgment awarded for nursing home care is substantially less than the total costs would have been to appellants in providing either local home or nursing home care for Mrs. Christian during these approximately three years. I cannot see where this modest award, below local costs, is a substantial variation from the contractual duties of the grantees, nor disadvantageous to them.

The agreement between Mrs. Christian and the appellants provided, inter alia, that the appellants would: “* * *. take me into their home and the home of the survivor, and care for me and furnish to me a separate room in such home and also furnish and provide for me all my necessary food, meals and board, and generally to support and look after and care for me as a member of their family as long as I live, * * [emphasis added] With reference to the words “as a member of their family,” I agree with the chancellor’s statement that: “* * * This phrase requires the court to determine how members of a family should reáct toward another member of the family who falls on evil days so that it has become, in the judgment of her personal physician, essential for her physical well-being to live in a nursing home.” The chancellor’s interpretation and 'resulting award certainly comport with a fair and reasonable meaning of how members of a family usually react when “evil days” befall an elderly member.

These support contracts, by their very nature, invite controversy and often result in litigation distressing to both parties. In most every case it appears that the grantor is an elderly person who conveys his or her property in the belief that the grantee will reasonably provide security and comfort as the particular needs arise. The grantor rightfully trusts that the grantee will lessen and not add to the natural apprehensions of advancing age. The dreáded loneliness that so often faces an individual in declining years is a primary concern. In the nature of things, an individual, and particularly an elderly person, desires foremost to be with or near the loved ones of her family. This is especially true when members of a family show love and compassion for the elderly person.

It must be said this is a type of contract that is in a class by itself. These contracts are, and should be, liberally construed in favor of the aging grantor and if there is no exact precedent, then equity fashions a remedy. Blose v. Blose, 118 Va. 16, 86 S. E. 911 (1915); Bruer v. Bruer, 109 Minn. 260, 123 N. W. 813, 28 L. R. A., (n. s.) 608 (1909). See, also, State Ex Rel v. Cate, 236 Ark. 836, 371 S. W. 2d 541 (1963); Bowen v. Hockley, 71 F. 2d 781 (4th Cir. 1934); 27 Am. Jur. 2d, Equity § 103 (1966); and 30A C. J. S. Equity § 599 (1965). A court of equity looks into the circumstances under which a written instrument is made in order to interpret its substance and ascertain and enforce the real intentions of the parties. Schnitt v. McKellar, 244 Ark. 377, 427 S. W. 2d 202 (1968). And further, equity should never refuse relief merely because it finds no exact or similar situation in our own cases. Renn v. Renn, 207 Ark. 147, 179 S. W. 2d 657 (1944).

PERHAPS THE REMEDY NOW LIES WITH APPROPRIATE LEGISLATION TO AVOID THE HARSHNESS THAT SOMETIMES RESULTS IN THIS TYPE OF CONTRACT. BY STATUTE IN ALABAMA, THE GRANTOR IN A CONVEYANCE OF REALTY IS GIVEN THE OPTION TO RESCIND WHERE A MATERIAL PART OF THE CONSIDERATION IS SUPPORT AND MAINTENANCE. CODE OF ALABAMA, TITLE 20, § 15. HOWEVER, THE GRANTEE, WHO HAS COMPLIED WITH THE TERMS OF THE CONVEYANCE, HAS THE RIGHT TO RECOVER ON A QUANTUM MERUIT BASIS FOR SERVICES PERFORMED IN CARING FOR THE GRANTOR AND, ALSO, BE COMPENSATED FOR REASONABLE PERMANENT IMPROVEMENTS TO THE REALTY. McBrayer v. Smith, 278 Ala. 247, 177 So. 2d 571 (1965).

In the case at bar the chancellor thoroughly, painstakingly, and wisely took into consideration the relative positions of the parties and I think his decree renders substantial justice and fashions an equitable result. I would affirm.

Harris, G. J., joins in this dissent.