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

text:
    Interstate Fire Insurance Co. v. Tolbert.
    5-2330
    343 S. W. 2d 784
    Opinion delivered March 13, 1961.

      Cockrill, Laser <& McGehee, for appellant.

      Griffin Smith, for appellee.
   Paul "Ward, Associate Justice.

This appeal challenges the order of the Circuit Court refusing to set aside a default judgment. The default judgment was taken by appellee (Pete Tolbert) against appellant (Interstate Fire Insurance Company) in the amount of $2,985 plus interest, penalty and attorneys’ fee, amounting in all to $3,641.20.

Appellee’s complaint, filed on February 18, 1960, alleged that appellant issued two policies to him on August 24, 1959, “one insuring contents and the other the building at 1103 Van Street, North Little Rock, numbered 15695255,56 respectively;” and that “on September 20, 1959 a fire occurred causing total destruction of the building and damage to the contents amounting to $1,485,” such loss being insured against under the policies. It was further stated in the complaint that Tolbert had complied with all conditions in the policies applicable to him but defendant had denied liability and refused payment. The prayer was for $1,500 on the building and $1,485 for contents and for statutory penalty, interest, attorneys’ fee, and costs. On March 14, 1960, no answer or other pleadings having been filed by appellant, the court granted appellee a default judgment.

For no fault of their own the present attorneys of record for appellant did not know about the default judgment until four days after it was rendered, but on instructions from appellant’s general office in Chattanooga, Tennessee, they promptly filed a motion to vacate the default judgment. This motion and the default judgment were filed during the same court term. It is stipulated that the default judgment was granted without presentation of the insurance policies or any evidence.

In appellant’s motion to vacate and in the amendment thereto several grounds or reasons were set forth. The principal ones, briefly stated, were:

(a) Plaintiff’s complaint did not state a cause of action.

(b) There was no proper service on appellant.

(c) The court abused its discretion in refusing to set aside the default judgment because of “excusable neglect” on the part of appellant.

(d) The complaint was not verified.

(e) The court did require plaintiff to submit proof, the contents loss not being liquidated.

After hearing testimony on appellant’s motion the trial court denied the motion as to liability, but gave appellant an opportunity to submit proof as to the amount of liability. Appellant declined to take advantage of this opportunity, and on June 27, 1960 the court, after hearing such proof by appellee, affirmed the original judgment.

Due to the conclusions hereafter reached, we deem it unnecessary to discuss the last two mentioned points at any length. Conceding that the court should have taken proof on the amount of unliquidated damages before entering the default judgment, it corrected this error by reopening the case for the introduction of evidence on that feature. Also, under Ark. Stats., § 27-1111 a complaint “founded on a . . . written obligation” need not be verified. An insurance policy is, of course, a written obligation.

(a) The Complaint. We are not convinced by-appellant’s strenuous contentions that the complaint failed to state a cause of action. The essential parts of the complaint are heretofore set out. While it may have been subject to a motion to make more definite and certain as to certain features, we do not think it was subject to demurrer under the liberal rule often approved by this court. In Craft v. Armstrong, 200 Ark. 681, 141 S. W. 2d 39, it was stated: “Moreover, pleadings under the code are liberally construed, and every reasonable intendment is indulged in behalf of the pleader.” (Citing cases.) When thus liberally viewed we think the complaint in this case fully advises the insurance company of its contractual obligations to Tolbert, except as to the exact amount thereof, and that feature has heretofore been disposed of. In the case of Clark v. Collins, 213 Ark. 386, 210 S. W. 2d 505, there appears this statement with reference to a default judgment:

“The default fixed appellant’s liability on the cause of action and admits that something is due appellee by reason of the breach of the lease contract. Appellee is entitled to nominal damages whether he introduces any evidence or not, and the amount of the damages is all that he is required to prove, or that appellant is permitted to controvert.”

(b) Proper Service. The complaint was filed and summons issued on February 18, 1960. Summons was served on Jack Berry, appellant’s district manager in Little Rock. The same day Berry mailed the summons to appellant’s main office in Chattanooga. According to a notation made by the Clerk of the Court a copy of the complaint was delivered to the “defendant” on February 29, 1960. The motion by appellant to vacate the judgment was filed March 29, 1960.

The trial court held that appellant had been sufficiently served with notice of the pending litigation, and we think rightly so. Service on Berry under the facts in this case was proper under Ark. Stats., § 27-347 and also § 27-350. The first mentioned Section, in all material parts reads as follows:

“Any and all foreign and domestic corporations who keep or maintain in any of the counties of this State a branch office or other place of business shall be subject to suits . . . and service of summons . . . upon the agent, servant or employee in charge of said office or place of business shall be deemed good and sufficient service . . .”

The latter mentioned Section reads:

“Where the defendant is a foreign corporation having an agent in this State, the service may be upon such agent. ’ ’

Any doubt that the above quoted statutes apply to foreign insurance corporations has been removed by the decisions of this court in Pacific Mutual Life Insurance Company v. Henry, 188 Ark. 262, 65 S. W. 2d 32, and Mutual Benefit Health & Accident Association v. Kincannon, Judge, 202 Ark. 1128, 155 S. W. 2d 687. The first case construed C. & M. Digest Section 1151 (same as Section 27-350 above), and C. & M. Digest Section 1152 (same as Section 27-347 above.) The second case construed Pope’s Digest Sections 1368 and 1369, which are the same as sections copied above. In both cases the statutes were held to apply to foreign insurance corporations.

(c) Excusable Neglect. The trial court specifically found that appellant’s failure to plead within thirty days was not due “to excusable neglect or other just cause.” If the court had found, with justification, otherwise, then it would have had the discretion to set aside the default judgment under Section 2 of Act 53 of 1957 (Ark. Stats., § 29-401.) However, in this case, there is ample evidence to sustain the court’s finding. In fact there is little if any evidence to the contrary. Appellant’s own witness, in its general office at Chattanooga, admitted that it received the summons mailed to it by its district agent, and also admits that the delay occurred in that office. After detailing how snch matters were usually handled he stated: “In this case such practice was followed, but for reasons we do not know, there was an unusually long delay.”

Appellant also contends that “but for the death of Mr. Brickhouse, appellant’s former process agent, a timely answer would have been filed.” Granting this might have been the case, still it does not alter the fact that appellant was properly served and that the delay occurred in the general office. We think it is equally true to say that a “timely answer would have been filed” but for the delay in the general office.

Since the trial court correctly found there was no “excusable neglect” it had no discretion or power to allow appellant to file an answer. See: Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439, and Pyle v. Amsler, Judge, 227 Ark. 785, 301 S. W. 2d 441. So, it would appear to be an idle gesture in this case for the Court to set aside the default judgment. It would in no way benefit appellant.

The judgment of the trial court is therefore affirmed.

Affirmed.

Robinson, J. dissents.

Sam Robinson, Associate Justice,

dissenting. The majority are holding that the neglect of the insurance company to file its answer within the 20 day period is not excusable. As authority for the view expressed there are cited the cases of Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439 and Pyle v. Amsler, 227 Ark. 785, 301 S. W. 2d 441. Both of those cases were based squarely on Act 49 of 1955, which had no clause authorizing the trial court to set aside a default judgment for excusable neglect of the defendant in filing an appearance. Both the Metzler and the Pyle case were decided April 29,1957, which was prior to the time Act 53 of 1957 went into effect. The Act had no emergency clause, and it is this Act, Act 53 of 1957, that gives the trial court the authority to set aside a default judgment rendered by reason of defendant’s failure to answer in proper time.

It is pretty clear to me that the defendant’s failure to answer within 20 days was due to the death of Mr. L. L. Brickhouse, who had represented the defendant insurance company for many years prior to his death, which occurred about eight months before this suit was filed. Seemingly the appellant did not know of Mr. Brickhouse’s death because he was still listed with the Insurance Commissioner as agent for service for appellant. When the deputy sheriff attempted to serve summons on the Insurance Commissioner, he was told that Mr. Brickhouse was the duly authorized agent for service, so evidently neither did the Insurance Department know of Mr. Brickhouse’s death. Appellant cites cases to the effect that a default judgment cannot be set aside where the failure to answer is due to negligence of the defendant. Those cases were decided prior to the adoption of Act 53 of 1957, which makes excusable neglect a ground for setting aside a default judgment rendered because an appearance has not been filed within the time provided by the Act.

Here, undoubtedly there was neglect on the part of appellant, but in my opinion it was excusable neglect resulting from the death of Mr. Brickhouse, who according to the record represented the insurance company as agent for service and as its attorney for many years. It appears from the record that this is the first case against the insurance company since the death of Mr. Brickhouse, and there is no doubt in my mind that but for his death the answer would have been filed in proper time. When they were employed, present counsel took immediate steps to protect their client’s interests, but the 20 days had expired. There was no great delay causing the appellant any inconvenience. The suit was filed February 19th and a default judgment was taken just 24 days later, only four days after the 20 day period expired. Certainly no dilatory tactics were employed by the appellant. In my opinion the trial court abused its discretion in not setting aside the default judgment. I therefore dissent.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Gordon v. State.
    5010
    343 S. W. 2d 780
    Opinion delivered March 13, 1961.

      Donald Poe, for appellant.

      J. Frank Holt, Attorney General, by Sam H. Boyce, Asst. Attorney General, for appellee.
   Sam Robinson, Associate Justice.

Appellant, John M. Gordon, who was at the time County Judge of Polk County, was convicted, fined $200 and removed from office on a charge that be paid an excessive price for two road grader tires, in violation of Ark. Stats., § 17-706.

We reach only one question, and that is whether the evidence is sufficient to sustain the verdict. Our conclusion is that it is not sufficient. The evidence shows that Judge Gordon bought from Murry Johnson Service Station two Pennsylvania “Nylon Patrol” tires for $235 each. The State introduced evidence to the effect that the County could have bought other tires of an equal grade and quality for $175.69, and could have bought tires of like quality, only in 16-ply instead of 12-ply, for $193.77. It does not appear, however, that any tire dealer ever gave Gordon information that the tires could be bought for less than the County was paying for them. Of course, the amount paid to Johnson was a matter of public record, and anyone could easily ascertain just what the County was paying for tires.

Even if, as contended by the State, Ark. Stats., § 17-706 makes it unlawful to pay more than the customary price for materials furnished, there is no showing that appellant paid more than the customary price for the tires. In fact, there does not appear to be such a thing as a regular or customary fixed price in the tire business. All kinds of price lists are put out by the tire companies. There is a “suggested price list” published by one tire company that shows a price of $367.75 each for tires like the ones in issue (Judge Gordon paid $235 each for the tires). Then there is another price list, published by the same company, that prices the same tire at $297.85. This is called the “code price”. There is still another listing of the same tire in what is called the “confidential net State prices.” This list gives a price of $175.59. Another State’s witness who is a tire dealer testified that he had various price lists — one list showing a price of $193.77; another, $344.24; and still another list showing a price of $424.00 — all on the same tire. In speaking of the various price lists, the witness testified: “You have to be in the tire business to know exactly what that means. I couldn’t tell you so that you could understand it.”

It appears that this prosecution came about by the fact that Judge Gordon paid $235 for tires that perhaps could have been bought for $175 if he had been sufficiently skillful in bargaining to have obtained tires at that price. It seems that this was the “confidential State price”, but Johnson, from whom appellant purchased the tires, testified that he never saw the “confidential State price list” and that he would not sell tires at that price; that if the tires were sold at that price the dealer would make only 5% and that he could not stay in business by making a gross profit of only 5%. The price list which the undisputed evidence shows that Judge Gordon saw showed the price of the tires that he bought to be $384.45. He bought the tires for $235, which certainly appears to be cheap for the tires based on a regular price of $384.45.

In State v. Prescott, 31 Ark. 39, the county judge was charged with unlawfully granting a license to operate a saloon. This Court said: “The jury were not warranted in inferring corrupt motives from the fact that appellee erred, but it was incumbent on the State to show by other facts and circumstances in connection with his errors, that he erred willfully with corrupt motives.”

In Casey v. State, 53 Ark. 334, 14 S. W. 90, a county judge was convicted for nonfeasance in office for allowing a county claim to which no affidavit was attached. In reversing the judgment this Court said it was not probable that the legislature intended to punish a casual and unintended omission to do the act in a proper manner, and in Bromley v. State, 136 Ark. 270, 206 S. W. 436, the county judge was convicted of misfeasance in office. The Court said: “The testimony adduced on behalf of the State, at most, only tended to show that the appellant negligently allowed an account against the county in a greater sum perhaps, than should have been allowed. . . . The jury was not authorized under the law of the above statute to find the appellant guilty unless they found that the act charged was willfully done.”

We think the rule applied in the above cases should control in the case at bar, that is to say, that before a conviction can be sustained on a charge of violating Ark. Stats., § 17-706, there must be some showing of a willful violation of the statute inferring corrupt motives. There is not a scintilla of evidence in the case at bar indicating willful violation of the statute or corrupt motives. The judgment is therefore reversed and the cause is dismissed.


author: Jim Johnson, Associate Justice. Ed. F. McFaddin, Associate Justice, Carretón Harris, Chief Justice,

text:
    Binns v. State.
    4999
    344 S. W. 2d 841
    Opinion delivered March 13, 1961.
    [Rehearing denied April 24, 1961.]

      W. W. Shepherd, for appellant.

      J. Frank Holt, Attorney General, by Bussell J. Wools, Asst. Attorney General, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a conviction for having willfully damaged a building with dynamite in violation of Section 41-4237, Ark. Stats. (1947).

The appellant asserted seven alleged errors in bis motion for a new trial. In bis brief in this Court be argues only one of these matters which is the alleged error of the Court in refusing to set aside the jury panel and to appoint new jury commissioners to select a new jury. Appellant, a Negro, contends that the panel should have been set aside and new commissioners appointed because Negroes have been systematically excluded from the office of jury commissioner for a period of many years and no member of the jury commission which selected the panel which tried appellant was a Negro. This same contention has been previously rejected in Payne v. State, 226 Ark. 910, 295 S. W. 2d 312; and we refuse to depart from the holding of that case.

Despite the fact that appellant has not argued the other matters contained in his motion for a new trial, we are duty bound to examine and consider all the grounds alleged therein. Washington v. State, 183 Ark. 667, 37 S. W. 2d 882.

We find that there is no merit in five of the six grounds which appellant has failed to argue. The remaining ground is that the court erred in permitting the State to introduce in evidence the purported confessions of appellant. After much study and research, we are convinced that these confessions were improperly admitted in evidence because such confessions were involuntary.

In a situation such as this, we must determine the issue upon the testimony which is undisputed or upon the testimony of the State’s witnesses because on controverted issues of fact the verdict of the jury precludes us from further investigation. Brown v. State, 198 Ark. 920, 132 S. W. 2d 15.

The undisputed evidence shows that the defendant was questioned almost continuously for a period of 52 hours before giving the first confession. It is also undisputed that the officers continued to interrogate defendant for an additional 5 hours during which time he made two more confessions. The defendant was arrested at 5:00 p.m. on February 16th and interrogated from that time until 9:30 p.m. on February 18th, at which time he made a written confession. As soon as he (defendant) made this confession, the Prosecuting Attorney was called in and he interrogated the defendant for an additional 5 hours and procured two additional confessions.

The question for our determination is, was the interrogation persisted in long enough to exhaust him physically and mentally and overcome his will? If so, then all of the confessions were inadmissible. Brown v. State, 198 Ark. 920, 132 S. W. 2d 15; Barnes and York v. State, 217 Ark. 244, 229 S. W. 2d 484. In Barnes and York, supra, we said:

“If the undisputed testimony showed that the confessions had been extorted . . . ‘by a continuous inquisition persisted in to the extent of exhausting him physically and mentally and overcoming his will,’ such confessions would be inadmissible.”

In Brown v. State, supra, where the defendant had been subjected to prolonged questioning on two nights, we held that it was error to admit the confession which was finally given on the second night. In this connection we quoted with approval from Spurgeon v. State, 160 Ark. 112, 254 S. W. 376, as follows:

“Of course, the officers had a right to interrogate the accused concerning his participation in the offense, but they had no right to coerce him into a confession by a continuous inquisition persisted in to the extent of exhausting him physically and mentally and overcoming his will.”

In the Brown case, as in the case at bar, it was contended that there was a jury question on the matter of duress in obtaining the confession because the officers testified that the confession was freely made. The Court said in answer to this contention:

“In this case the officers testified that the confession was, in fact, freely made; but such testimony, in view of the undisputed facts herein recited proves only that they misapprehended what it takes to constitute duress. Under the circumstances here detailed it was, in our opinion, error to have admitted that confession as it does not appear to have been freely and voluntarily made. ’ ’

What we said in the Brown case is peculiarly appropriate here for the record shows that the facts previously mentioned are undisputed and the testimony of the officers amounted to no more than conclusions because they simply testified that no force or duress was exercised, while admitting the continuous interrogation of the suspect.

The appellant testified that he had no sleep during the entire 57 hour period. This testimony might ordinarily be considered as disputed but when the officers admitted the continuous interrogation, they impliedly admitted that defendant had no sleep. No other conclusion can be drawn from these admissions.

What is the effect of prolonged questioning and lack of sleep? It has been well stated as follows:

“The most commonly used method is persistent questioning continuing hour after hour, sometimes by relays of officers. It has been known since 1500 at least that deprivation of sleep is the most effective torture and certain to produce any confession desired.” [Report of Committee on Lawless Enforcement of Law made to the Section of Criminal Law and Criminology of the American Bar Association (1930); 1 American Journal of Police Science 575, 579, 580; IV Reports of National Committee on Law Observance and Enforcement (Wickersham Commission). U. S. Government Printing Office, 1931, Lawlessness in Law Enforcement, p. 47.]

In Ashcraft v. Tennessee, 322 U. S. 143, 64 Sup. Ct. 921, 88 L. Ed. 1192, the Supreme Court of the United States held that a confession obtained at the end of 36 hours of continuous questioning was inadmissible because in violation of the due process clause of the Fourteenth Amendment of the Constitution of the United States, saying:

“We think a situation such as that here shown by uncontradicted evidence is so inherently coercive that its very existence is irreconcilable with tbe possession of mental freedom by a lone suspect against whom its full coercive force is brought to bear.”

For the error indicated, the case is reversed and remanded for a new trial, at which time the voluntariness of the confession may be considered with all other matters.

Harris, C. J., dissents.

McFaddin, J., concurs.

Ed. F. McFaddin, Associate Justice,

concurring. I concur in the result reached by the Majority, but there are certain implications contained in the Majority opinion from which I desire to disassociate myself. It is true that some of the appellant’s testimony, if given unlimited meaning, might be taken to say that he was questioned continuously for long hours; and it is because such testimony is unexplained that I vote for a reversal. However, I think it is only fair to make certain observations for the benefit of the Bench and Bar.

We have a rule of long standing that in a felony case this Court considers every assignment contained in the Motion for New Trial, even though the assignment is not argued on appeal. In Martin v. State, 206 Ark. 151, 174 S. W. 2d 242, we stated and applied this rule and cited the cases of long standing; and it is because of this rule that the appellant is winning a reversal in the case at bar. The Motion for New Trial in the present case had seven assignments, and one of these related to the defendant’s motion to exclude the confession from the consideration of the jury. We have to consider this assignment even though it was not argued on appeal.

The appellant was represented in the Trial Court and on appeal by an experienced attorney. If that attorney had thought that his client had been questioned continuously for a long period of time, I am confident that the point would have been vigorously urged on appeal. So the loose statement contained in the appellant’s testimony about the time for which he was questioned went unnoticed by bis counsel, as well as by tbe State, and, therefore, remained unexplained. On this the appellant is winning a windfall reversal. On a retrial, the continuity of the questioning will be a matter that the Court and jury may consider in view of the reversal now made.

No one will sanction continuous questioning for a long period of time, but the Majority Opinion might be considered as criticizing the Trial Court and the officers on a point which the appellant’s experienced attorney did not even argue; and so, while I agree with the result in the case, I think some explanation is due in fairness to the Trial Court, the officers, the appellant’s attorney, and all others.

Carretón Harris, Chief Justice,

dissenting. I dissent to the reversal because I do not interpret the testimony in the same manner as the Majority. The Majority state:

“The undisputed evidence shows that the defendant was questioned almost continuously for a period of 52 hours before giving the first confession.”

Further:

“ * * * the record shows that the facts previously mentioned are undisputed and the testimony of the officers amounted to no more than conclusions because they simply testified that no force or duress was exercised, while admitting the continuous interrogation of the suspect.”

I find nothing in the record, other than the testimony of the appellant, which shows continuous questioning. It is true that in certain instances, replies to questions asked on cross-examination, might possibly leave an impression that appellant was continuously interrogated. For instance, during the cross-examination of Detective Sergeant Bentley:

“Q. Didn’t you apply some rather hypnotic spell over this ignorant Negro boy to get him to do that?

A. No, sir.

* * ^ *

Q. You just think he said that, and wrote all that out freely.

A. Yes, sir.

Q. After three days and three nights of quizzing?

A. From the evening of the 16th, sir.” (The confession was taken on the evening of the 18th.)

Further, during re-cross examination of the same witness:

‘ ‘ Q. Well, you didn’t let him out anywhere ?

A. No, sir.

Q. You didn’t let him talk to counsel?

A. No, sir.

Q. Or anybody? You kept him there in your custody?

A. He was either there or in the city jail all the time.”

This testimony to me simply means that Binns was questioned off and on for a period of three days, but it does not convey to me the idea that Binns was being continuously interrogated. In other words, he was not being questioned in “relays.” I take the testimony to mean that Binns would be questioned for awhile, and then taken back to his cell; on other occasions, he would be again brought out and questioned, and again returned to the cell, all over a period of three days. The Majority say:

“The appellant testified that he had no sleep during the entire 57 hour period. This testimony might ordinarily be considered as disputed but when the officers admitted the continuous inquisition, they impliedly admitted that defendant had no sleep.”

As stated, there is no testimony by the officers that I would interpret as an admission, implied or otherwise, that the defendant had no sleep. The testimony definitely establishes that Bentley was present on each occasion when appellant was questioned, and if Binns was exhausted from lack of sleep — it would appear that Bentley should have been likewise exhausted. Detective Bentley is indeed a zealous officer if he will go without sleep for 57 hours in order to interrogate a prisoner!

Counsel for appellant subjected the officers to a vigorous cross-examination, and if it is so obvious that appellant had been consistently questioned without let-up for 52 hours, I am at loss to understand why appellant’s counsel did not argue this matter in his brief. It is only mentioned as a point — but not argued. I think that even officers in small rural communities know that a confession, obtained in the manner set out in the Majority opinion, would be entirely inadmissible; I am of the opinion that members of the Little Rock Police Department, who have been with the department for eight years (as was Bentley) would likewise know this fact. Not only that, but the proof shows that Agent Tom Webb of the FBI was present most of the time during the periods of interrogation. Certainly, these agents are well trained in matters of law before assuming their duties.

Despite defense counsel’s reference about the “ignorant Negro” on cross-examination, the record reflects that such is not the case. Binns cannot be placed in that category. He attended two years at Philander Smith, and his testimony leaves no doubt but that he is moderately well educated.

Of course, Binns testified that he was deprived of sleep, though his complaint seems to deal mostly with failure to obtain cigarettes, “couldn’t eat the food”, couldn’t take a bath, and the fact that he was not permitted to call an attorney. From his testimony:

“Yes, sir, now, on the night of the 18th, I said, ‘Mr. Bentley, I am tired and I am weary. Would you please release me? You have nothing against me. I have told you for three days I don’t know who did it. I had nothing to do with it,’ and he said, ‘Well, yon are going to give me a statement before yon leave here. Yon are not going to leave before yon do.’ I said, ‘Please give me a cigarette, I am nervous.’ He said, ‘Well, here,’ and he had a filter and I don’t like filter cigarettes and I broke it off. I said, ‘Well, is there any way I can buy a package of cigarettes?’ He said, ‘No, yon are not going to get any cigarettes.’ I said, ‘I haven’t been able to sleep naturally you accusing me of this I haven’t had any cigarettes. You won’t let me buy any.’ ” ' '

The emphasized statement indicates to me that Binns ’ loss of sleep was due to worry over the charge, rather than continuous interrogation.

In addition to stating that he was forced to make the statement, appellant testified that he confessed because the officers were threatening to file charges against him because of obscene literature found in his automobile, and further threatening to file charges against his girl friend.

‘ ‘ They threatened to bring my girl friend in and lay some charges against her. I said, ‘To protect her, and she is innocent and Monts, then I will give you a statement if you will just let me call an attorney, let me have some cigarettes and release me so I can go home and bathe,’ and he said, ‘O.K.’ That is when I began to giving him statements slowly.”

Of course, it is not unusual for one who has made a confession to later claim that it was obtained through coercion or duress.

Since I do not agree with the majority opinion in stating that the facts upon which the reversal is based are undisputed, I am of the opinion that the question of whether the confessions were made voluntarily was a matter for the jury to determine. We have so held. In McClellan v. State, 203 Ark. 386, 156 S. W. 2d 800, this Court said:

4 4 In such cases the practice approved by us, which was followed in the instant case, is for the Court to hear the testimony in the absence of the jury as to the circumstances under which the confession was given, and if there is a substantial question as to whether it was freely and voluntarily made, to submit that question of fact to the jury, after admonishing the jury to disregard the confession unless it was found to have been voluntarily made.”

The Circuit Judge in this case gave a rather lengthy instruction to the jury relative to a confession, as follows :

"There is evidence here that the defendant made a confession. Before you can consider any confession as evidence, you must find: (1) That he did make a confession. (2) That the confession he did make was the one you heard on the witness stand. (3) That when he made it he told the truth. (4) That it was voluntarily made.

"In order for a confession to be voluntary you must find that it was made without hope of reward or fear of punishment. The basis of the statement that a confession must be voluntary is that the Constitution of the State says no person shall ever be compelled to give evidence against himself.

"The presumption of the law is that any confession made by a defendant, when he is in custody of officers, whether these officers be the Sheriff, Detectives, Policemen, the Prosecuting Attorney, or any other officer, is voluntary and incompetent and cannot be considered by you.

"The effect of that presumption is to place the burden of proof on the State to prove by a preponderance of the testimony that the confession was voluntary. They must overcome this presumption of law to your satisfaction and show that the confession was voluntary. If you find that the defendant, during the time of his custody was under the influence of officers at any time such as would make any statement or confession involuntary, the law presumes that this influence continues and makes all other statements or confessions made by him thereafter incompetent until the State shows by a preponderance of the testimony that this influence has been removed.

“Before any statements or admissions made by the defendant can be used against him as evidence, such statements or admissions must have been free and voluntary and which such statements or admissions, if any, are induced by threats of harm, promise of favor, a show of violence, a putting of fear or inquisitory methods are used to extort a confession, then the same is attributed to such influence and cannot be used against the defendant. ’ ’

This was a proper instruction, and under our holdings, I am of the opinion that it was within the province of the jury to say whether or not the confession was voluntary.

I respectfully dissent.

       Bentley stated that Binns did not ask for counsel.

       Emphasis supplied.


author: Cableton Habéis, CMef Justice.

text:
    Equitable Discount Corp. v. Trotter.
    5-2318
    344 S. W. 2d 334
    Opinion delivered March 20, 1961.

      J. Loyd Shouse, for appellant.

      V illines & Do shier, W. 8. Walker, for appellee.
   Cableton Habéis, CMef Justice.

Appellant, a New York Corporation, instituted suit against appellee, Dennis Trotter, wlao operates a grocery-feed store near Harrison. The Complaint alleged that Trotter had executed his three negotiable trade acceptances to Ohmlac Paint and Refining Company, Inc., said instruments being given for the purchase of paint by Trotter from Ohmlac. The trade acceptances were in the amount of $365.50 each, and appellant alleged that it had purchased the instruments, in the due course of business, from Ohmlac, and was the owner thereof; that demand had been made for payment, but same was refused. Judgment was sought in the amount of $1,096.50, together with interest from the date of maturity. Trotter answered, and pleaded, inter alia, that fraud was exercised in the procuring of the execution of the instruments, and appellant was not an innocent purchaser for value. On trial, appellant’s proof consisted solely of the deposition of Joseph Goodwin, president and treasurer of Equitable Discount Corporation, such testimony being taken by interrogatories, and appellee’s presentation consisted of the testimony of appellee, and three other merchants of Harrison and neighboring communities. The jury returned a verdict for appellee, and from the judgment dismissing the Complaint, appellant brings this appeal.

Appellant contends that it was entitled to a directed verdict because it was a holder in due course of the negotiable paper, and the contract was breached by appellee, rather than the Ohmlac Company. As stated, appellee’s defense was based on the defense of fraud, and the alleged fact that appellant was not an innocent purchaser in due course.

The contract provides that Trotter have an exclusive franchise to sell Ever Plastik Paint, and Trotter contended that Edwards Grocery, operated by Prank Edwards, was sold paint and likewise given an exclusive franchise, by the same salesman, which was purportedly from another company, but actually was a part of the same operation. Edwards testified that he entered into similar contract in 1956 for paint, with a person representing himself as a salesman for Sterling Materials Company. Eulis McEntire, operator of a store at Everton, entered into a contract in June, 1959, for the purchase of paint with the Sterling Materials Company, and Eugene Allen, operator of a grocery in Summit, Arkansas, in the same month, entered into a contract with "Wurtzilite Corporation for the sale of paint in Marion County. All of these companies Ohmlac, Sterling, and Wurtzilite, have store addresses in Long Island City, New York. The operators gave a general description of the salesman who sold them the paint, and the descriptions bore considerably similarity. The contracts offered in evidence were very much alike, several paragraphs being identical with the Trotter contract. Appellant contends that the testimony of these witnesses was inadmissible; points out that the transactions with witnesses McEntire and Allen were nearly three years subsequent to the contract herein involved, and argues that these contracts were with third companies, and in no way connected with any part to this litigation. We think this testimony was admissible as pertinent to appellee’s defense of showing a fraudulent scheme to sell paint to various stores, under different brand names, and purportedly from different companies, wherein all the merchants would be given an exclusive franchise. The record reflects that the Allen and McEntire contracts were entered into within three days of each other; both bore several almost identical provisions, and both included an exclusive franchise for Marion County. Incidentally, the McEntire contract also reflects another interesting fact in connection with Trotter’s allegation that the exclusive listing given him by Ohmlac had been violated because Frank Edwards had also been given an exclusive listing by the Sterling Materials Company (Trotter contending both named companies were actually the same organization). Though Edwards gave a different New York address for Sterling at the time of his purchase, the address the Sterling in the McEntire contract is the same address listed on the 1956 contract between Ohmlac and Trotter. This may, or may not, have significance; the address could refer only to the location of a building housing several different businesses or companies. Be that as it may, had Ohmlac instituted this suit instead of the finance company, the evidence heretofore mentioned in support of appellee’s defense, would have been sufficient to have made a jury question.

Of course, though it be established that Ohmlac, Sterling, and "Wurtzilite were all the same, and selling the same paint under different company names in order to attract additional customers, this would not affect appellant’s right of recovery if it were a bona fide holder of the trade acceptances, in due course of business. Mr. Goodwin, president of Equitable Discount Corporation, testified that there was no connection of any kind between his company and the Ohmlac Company except that, from time to time, his company buys negotiable paper from Ohmlac. He testified that Ohmlac likewise sold to other finance companies and banks in New York, and that his own company purchases negotiable instruments from other businesses. He stated that none of the officers, trustees, stockholders, or employees, of Ohmlac were in any way connected with or interested in the Equitable Corporation, nor any of the like Equitable officers ■ or employees connected with the Ohmlac Company. The offices, according to Goodwin, are about nine miles apart. The witness testified that his company had no knowledge or suggestion of defects at the time it purchased the acceptances. According to Goodwin, the company had purchased many acceptances from the Ohmlac Company, endorsed by Jacob Nadler, secretary of the Ohmlac Company. Under our holdings in Metropolitan Discount Company v. Fondren, 121 Ark. 250, 180 S. W. 975, and Metropolitan Discount Company v. Flippo, 163 Ark. 331, 260 S. W. 32, we think the testimony was sufficient to submit to the jury the issue of whether Equitable Discount Corporation was a bona fide holder. In those case.s, this Court affirmed judgments which, in effect, found that the discount company was not an innocent purchaser of acceptances. The proof showed that the company had purchased negotiable paper from a company selling junk jewelry. The evidence relating to the discount company established that it had been doing business with the jewelry concern for a long number of years; that the acceptances involved were not protested when appellees refused to pay them, and no effort was afterwards made to collect them from the novelty company. In the Fondren case, the proof reflected that the company purchased the acceptances for cash and 10% discount, and, in both cases, officials of the company testified that the paper was purchased in good faith for value received, and that the two corporations were entirely independent of each other and had no common officers or stockholders. In the instant case, the evidence of Goodwin showed that his company had been doing business with Ohmlac for a considerable period of time; there was likewise no protest or effort to collect from Ohmlac when appellee refused to pay, and there are additional facts much stronger than those in the Metropolitan cases, which pertain to the question of whether Equitable was a bona fide purchaser for value in due course of business. For instance, the trade acceptances were signed by Trotter on August 8, 1956, at his store several miles from Harrison, Arkansas. Two days later, in New York City, Equitable purchased these acceptances from Ohmlac, and the finance company directed a letter to Trotter on that date. Also, the testimony of Goodwin reflects that the discount corporation paid $768 for these three acceptances, which totalled $1,096.50. The discount was, accordingly, $328.50 — approximately 30%. This would seem an exceedingly high discount for a bona fide purchase of notes due within five months. We conclude that the evidence was sufficient to go to the jury on this point.

However, we feel that the court erred in admitting certain testimony, objected to by appellant, and this error necessitates a reversal of the judgment. We have many times held that where error is committed, such error will be treated as prejudicial unless it be shown that the appellant was not prejudiced thereby. State National Bank of Texarkana v. Birmingham, 166 Ark. 446, 266 S. W. 76. The testimony, hereafter referred to, could well have influenced the verdict of the jury, particularly since one of the other merchants testified in a like manner. Trotter stated that the representative of the paint company told him that the paint would be shipped to him prepaid, and after it arrived, the company would send a representative to sell the paint; that Trotter would simply be the distributor. When the paint arrived, $108 in freight charges was due; Trotter refused to pay, and the paint was eventually sold to pay storage and freight. The contract, titled “Exclusive Franchise for Ever-Plastic dealership”, and offered in evidence, refutes Trotter’s contention, since it very clearly provides that prices are f. o. b. from the factory, and it is understood “that the merchandise becomes the property of the purchaser when receipted for by the transportation company. ’ ’ Section 6 provides that if a dealer will send the name and address of prospects to the Sales Promotion Department, said department “will use its efforts solely through direct correspondence to assist the Dealer with these prospects.” It is further provided that “The facilities and cooperation agreed by the Company hereunder to be made available to the Dealer are designed to assist him to make the most of his Ever Plastik Franchise, but under no conditions are they to be construed, directly or by inference, to mean that the Company will sell the material for the Dealer, or that the Dealer is not obligated to pay for the Ever Plastik before it is sold.” Admittedly, a copy of the instrument was given to Trotter at the time the transaction was entered into, and he accordingly was not in the position of being forced to rely on any purported oral representations made to him; there was no reason, therefore, for him to be misled as to the freight charges and assistance the company was to render in selling the paint. Wre have held that where a contract of sale is in writing and recites that it constitutes the entire agreement between the parties, parol evidence is not admissible to vary the terms of the agreement. Hambrick v. Peoples Mercantile and Implement Co., 228 Ark. 1021, 311 S. W. 2d 785. Federal Truck & Motors Co. v. Tompkins, 149 Ark. 664, 231 S. W. 553. It is true there are exceptions to this rule, and we have several times held that even though the contract provided that the written instrument constituted the entire agreement between the parties, oral testimony was admissible to contravene this recitation. However, the facts in this case do not warrant the submission of this testimony. Trotter does not allege in his pleadings, nor in his oral evidence, that he executed the contract solely because of reliance upon these representations; there is no allegation, nor proof, that these two matters (freight charges prepaid and company aid in selling paint) constituted the inducement which prompted him to sign. Nor is there any evidence that the salesman, by act, or artifice, prevented Trotter from reading the contract; or that it was in small print; or that Trotter had no opportunity, because of stress of business, or poor education, of ascertaining the contents of the instrument. It appears that ordinary prudence and diligence would have required Trotter, in dealing with a man that, as far as the record shows, he had never seen before, to read the instrument which he was signing, and which obligated him to pay out over a thousand dollars.

The instructions have not been abstracted, and we therefore do not examine them. The fact that we do not discuss the instructions does not mean that we approve them.

Summarizing, the testimony of the merchant witnesses (Edwards, Allen and McEntire) relates to a fraudulent scheme allegedly concocted to induce merchants to sign contracts for an exclusive area paint franchise. The admission of this testimony in no wise varies the terms of the agreement, for Trotter was entitled, under the contract, to such a franchise, and the testimony was accordingly relevant, pertinent, and admissible.

On the other hand, the testimony relating to the statement by the salesman that freight charges would be paid and the paint sold by the company, is completely at variance with the written agreement, and the circumstances do not show any necessity for Trotter’s reliance upon these representations.

Because of the error heretofore mentioned, the judgment is reversed, and the cause remanded.

       Copy of the contract was not introduced into the record.


author: J. Seaborn Holt, Associate Justice.

text:
    Sherman v. Chicago Mill and Lumber Co.
    5-2344
    344 S. W. 2d 345
    Opinion delivered March 20, 1961.
    [Rehearing denied April 10, 1961.]

      Giles Bearing, for appellant.

      Baggett <& Baggett, by W. if. Baggett, for appellee.
   J. Seaborn Holt, Associate Justice.

This is an action to quiet title by adverse possession to certain lands in Phillips County described as Section 24, Township 6 South, Range 2 East. Mrs. Beulah Sherman has brought this action to quiet title in her name to these lands after the Chicago Mill & Lumber Company had requested that she remove her fences from the land and cease to graze her cattle upon the area. The lower court found that Mrs. Sherman had adverse possession of certain cleared lands and the land on which her house and outbuildings were situated but declined to award her possession of the entire tract of land. Mrs. Sherman has appealed this latter finding and Chicago Mill & Lumber Company has cross-appealed the former finding. Since the appeal and cross-appeal raise the question of adverse possession of the whole tract of land involved, we will discuss the appeal and cross-appeal together.

New points of law are better established and settled in this state than that of adverse possession. Possession to be adverse must be actual, open, notorious, hostile, continuous and exclusive for a period of seven years with intent to hold against the true owner. Wallace v. Ayres, 228 Ark. 1007, 311 S. W. 2d 758. Viewing the evidence on trial de novo here, which includes voluminous testimony, photographs, bills, receipts and maps, we think that the preponderance of the evidence clearly shows that Bob Sherman, deceased, and his wife, Beulah Sherman, acquired adverse possession of the entire 333.7 acre tract in question and not to just the cultivated land and the area surrounding the immediate premises of the buildings which the chancellor below found. It would unduly extend this opinion to set forth all the acts which show adverse possession of the entire tract, but we set forth the following facts brought out by the evidence which we think sufficiently demonstrates adverse possession to the whole acreage involved.

First is the nature of the land involved. The particular land involved forms a peninsula which borders and juts out into a chute which was at one time a part of the Mississippi River. The chute runs around this peninsula in a horseshoe shape fashion. The body of water involved is not the main channel of the Mississippi River but is a chute which is known locally as “66 Chute” or “Sherman Chute”. The Shermans have, since the early 1900’s, maintained a fence across the neck of this peninsula and grazed cows, goats, mules and hogs within this area bounded by the fence on one side and the natural barrier formed by the river on the other sides. The fence on one side and the natural barriers on the other sides effectively enclosed the whole area. There was testimony that the fence was rebuilt from time to time as it was destroyed by bigb water and overflows; This statement is substantiated by several photographs which show barbed wire running through the middle of large trees; other photographs show the wire only a few inches inside the bark of the trees. The original fence was built by Mr. J. H. Sherman who moved on the land in 1900 and lived there until 1918 but continued to farm the land until he gave it to one of his sons and daughter-in-law, Bob and Beulah Sherman, in 1936. Bob and Beulah Sherman have lived on this land continuously since 1936 until Christmas Day 1957 when Bob passed away. Mrs. Beulah Sherman and her children have continued to live on the place. During the time Bob Sherman was living the fence was maintained. One witness, not related to any of the parties, stated that he- knew the Shermans when they moved on the place in 1936 and had helped Bob Sherman repair the fence and helped roundup the cattle on the place. He further testified that Mr. Sherman had started with just a few head of cattle but the year before he died there were over 100 head on this ground, a great number of hogs, four mules and a goat or two. Besides the grazing of cattle in the area, the Shermans have from time to time sold timber off the premises involved. The record is also replete with testimony that the Shermans have planted, cultivated, and harvested crops every year from the land. Additional acreage was cleared each year for more crops. The land was put in the government soil bank program and cotton acreage allotments secured by the Shermans from the land. A new house was built when the old, original family house was destroyed by a storm in 1946. Barns and outbuildings have been erected to house equipment an livestock. A family burial plot was established and used by the Shermans which contains twelve graves of relatives. Most of these acts have continued since 1900 when Mr. J. H. Sherman, father-in-law and grandfather of the present appellants, moved on the land and certainly such acts have been carried on continuously since 1936 when Bob Sherman and his wife [appellant here] returned to the home place to live.

Mr. Thomas J. Strode, county surveyor of Arkansas County and a civil engineer since 1927, made a detailed survey and plat of the lands claimed by Mrs. Sherman and he said of the entire 333.7 acre tract [as abstracted]: “Everything east of that fence in the whole peninsula has been disked up and there has been some means of cultivation, the whole area has been cultivated, I am sure. There is no undergrowth on it, the timber is very thin. It has the appearance of a picnic ground, resembles a picnic ground very much. I have been in the woods all my life and am familiar with forests. There is no comparison in the tract lying east of the fence with that lying west of the fence. This is due to the fact of cultivation in the past years. This chute is known locally as Sherman Chute. The banks are 1,000 feet apart at the narrowest point as seen from high bank to high bank, at low stage it is about 400 feet from waters edge to waters edge.” The fence across all of the low side, along with the water on all other sides, served as an enclosure of the entire 333.7 acres. Barboro v. Boyle, 119 Ark. 377, 178 S. W. 378; Goodrich v. Mitchell, 177 Ark. 842, 7 S. W. 2d 979; Dowdle v. Wheeler, 76 Ark. 529, 89 S. W. 1002.

It is argued by Chicago Mill & Lumber Company that the possession of Bob Sherman was not hostile but permissive only. To prove this, Chicago Mill introduced into evidence a letter which states in substance that Bob Sherman recognizes the superior title of Chicago Mill to the land in question and expressly provides that the possession of Bob Sherman is permissive only. This letter was signed by Bob Sherman in 1953 with his mark. While it is true that such evidence as this is admissible even after the time has lapsed for acquisition of land by adverse possession to bear on the question of whether the claimant’s possession was in fact hostile or not, Deweese v. Logue. 208 Ark. 79, 185 S. W. 2d 85, we cannot agree that the letter has any application here. First of all the letter refers to the body of land known as “Island 66” and the proof shows that the land in controversy here is not on “Island 66” but upon the mainland. Second, the letter refers to a small tract of land but the testimony demonstrates that the Shermans have had possession of the entire peninsula which is composed of 400 acres of land, a rather large body of land and not a small tract. Last, the letter mentions the land as being in Section 14 when the proof indicates that the land here was in Section 24. We think the letter utterly fails to cast any light upon the character of the possession of lands involved in this controversy. As a sidelight, it might be mentioned that when Chicago Mill requested Mrs. Sherman to remove her cattle from Island 66, which is mentioned in the letter, she did so and it was only when the appellees requested that she remove her fences and cattle from the peninsula that the present action was filed.

The oft quoted language of Judge U. M. Rose found in the case of Cunningham v. Brumback, 22 Ark. 336, is highly relevant here: ‘ ‘ The law wisely holds that there shall come a time when even the wrongful possessor shall have peace; and that it is better that ancient wrongs should go unredressed than that ancient strife should be renewed. ’ ’

The judgment is reversed on direct appeal and the cause remanded with directions to enter a decree quieting title to the entire tract in question to Mrs. Beulah Sherman, appellant.

G-eorge Rose Smith and Robinson, JJ., dissent.


author: Ed. F. McFaddin, Associate Justice.

text:
    Peugh v. Oliger, Admx.
    5-2243 & 5-2244
    345 S. W. 2d 610
    Opinion delivered March 20, 1961.
    [Rehearing denied May 15, 1961.]

      J. M. Smallwood, for appellant.

      Gordon do Gordon and Charles L. Parish, for appellant.
   Ed. F. McFaddin, Associate Justice.

This appeal necessitates a study of Act 255 of 1957, insofar as concerns mental anguish. Mr. and Mrs. Eugene H. Eubanks and Mr. and Mrs. Albert Henley were all killed in an automobile collision that occurred between the Eubanks car and a truck belonging to McClure Gin Company. Separate actions were instituted against the McClure Gin Company and its driver, James T. Peugh. In one case the plaintiff was Gene Prances Oliger, as Administratrix of the Estates of Mr. and Mrs. Eubanks; and in the .other case the plaintiff was Luther Drake, as Administrator of the Estates of Mr. and Mrs. Henley. Each action sought recovery of both compensatory and punitive damages for the estate of each deceased, and also sought damages for mental anguish suffered by the relatives of each of the four deceased persons. The damages for mental anguish were sought under the provisions of Act 255 of 1957. The actions were consolidated for trial and resulted in verdicts and judgments for the estates of the deceased parties covering medical and funeral expenses, property damages, and conscious pain and suffering, which judgments have been paid, and are not here involved. Verdicts and judgments were also rendered for the use and benefit of certain relatives of each of the deceased persons for the mental anguish suffered by such relatives. The jury apportioned the negligence of the drivers of the vehicles under the Contributory Negligence Statute (§ 27-1730.2, Ark. Stats.), as follows: James T. Peugh, 55%; and Mr. Eubanks, 45%. Judgments for mental anguish, which are the subject of this appeal, were rendered in accordance with verdicts of the jury, as follows:

For the death of Eugene H. Eubanks (aged 76 years) the jury awarded G-ene Frances Oliger, an only child, $12,500.00; and Mrs. Luther (Lela) Drake, a sister. $3,000.

For the death of Mrs. Blanch Eubanks (aged 65 years) the jury awarded Mrs. Gene Frances Oliger, an only child, $12,500.00; Mrs. Fannie Oliphant, mother, $2,500.00; Mrs. lone Brewer, a sister, $2,500.00; and Vernon Tolbert, a brother, $2,500.00.

For the death of Albert Henley (aged 81 years) the jury awarded his five children by a former marriage: Homer Henley, Willett Henley, Hugh Henley, Irene Abbott, and Albert Henley, $2,000.00 each.

For the death of Mrs. Henley (aged 81 years) the jury awarded Mrs. Leta Ring, a niece, who stood in the position of a foster daughter, $10,000.00; and Mrs. Luther (Lela) Drake, a sister, $2,000.00.

From these judgments totalling $50,525.00 for mental anguish, W. H. McClure Gin Company, Inc. and James T. Peugh prosecute this appeal and urge, inter alia, the points hereinafter mentioned.

I. The Constitutionality Of Act 255 Of 1957 Insofar As Concerns The “Mental Anguish” Provision. The said Act — insofar as is here germane — provides:

‘ ‘ The jury, or the Court in cases tried without a jury, may fix such damages as well be fair and just compensation for the pecuniary injuries . . . and/or mental anguish resulting from such death, to the surviving spouse and next of kin of such deceased person. However, when mental anguish is claimed as a measure of damages under this statute, such mental anguish will be applicable only to the surviving spose, children, father and mother, brother, sister or persons standing in loco parentis to the deceased and persons to whom the deceased stood in loco parentis, at the time of the injury which caused the death of the deceased.”

In claiming that the said mental anguish provision is unconstitutional, the appellants quote extensively from St. L. I. M. & S. Ry. Co. v. Taylor, 84 Ark. 42, 104 S. W. 551, 13 L.R.A., N. S. 159, wherein this Court said, inter alia: “The reason that mental suffering, unaccompanied by physical injury, is not considered as an element of recoverable damages is that it is deemed to be too remote, uncertain, and difficult of ascertainment. . . .” Appellants also point out that Article II, § 13, of the Constitution of Arkansas provides: ‘ ‘ Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in her person, property or character; . . . ” From the quoted provisions of the case and the Constitution, appellants say that, since the Court held that mental suffering was “uncertain,” and since the Constitution guarantees “a certain remedy,” it would necessarily follow that a recovery for mental anguish would violate the quoted section of the Constitution since mental suffering is “uncertain.”

We do not agree with the appellants in their arguments on this point. Article II, § 13 of the Constitution is a part of the Bill of Rights, and is a guarantee of rights, and not a restriction on the power of the Legislature to enact remedial laws. Article Y of the Constitution relates to the Legislative Department; and we find nothing in that Article which would prohibit the Legislature from passing the act herein questioned. The extent of the Legislature ’s authority was determined in some of our very earliest decisions wherein we held that the Legislature may pass any law not prohibited by the State or Federal Constitutions. See State v. Ashley, 1 Ark. 513; State v. Fairchild, 15 Ark. 619; Henry v. State, 26 Ark. 523; Straub & Lohman v. Gordon, 27 Ark. 625; Dabbs v. State, 39 Ark. 353, 43 Am. Rep. 275. This rule has been consistently adhered to in Arkansas down through the years and was restated in one of our more recent cases — Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595 — in the following language: “In determining the answer to the posed question, we emphasize that the Legislature, as the supreme law-making body, possesses all legislative powers except those expressly or impliedly prohibited by the Constitution."

The appellants further argue that the effect of the Act 255 — -insofar as concerns mental anguish — is to overcome the quoted language of this Court in the Taylor case, supra. It frequently happens that the Legislature passes laws to overcome decisions of this Court, which is one of the intended functions of the Legislative Department in our three department system of checks and balances. For example, Act 36 of 1957, compiled as § 34-1208.1, Ark. Stats., overruled the holding in Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585, and restored the rule with respect to what constitutes residence in a divorce action which had been stated in Squire v. Squire, 186 Ark. 511, 54 S. W. 2d 281. And yet in Wheat v. Wheat, 229 Ark. 842, 318 S. W. 2d 793, we upheld the Act 36 of 1957. In 11 Am. Jur. 899, Constitutional Law, § 196, in speaking of the extent of the legislative power, the rationale of judicial holdings is clearly stated:

“It is said that a person has no property or vested interest in any rule of the common law, and the powers of the legislature are in no manner limited or restricted by the common law of a particular state. A state undoubtedly has the constitutional and legislative power to change or modify the common law, for the Constitution does not forbid the creation of new rights or the abolition of old ones recognized by the common law to attain a permissible legislative object. Moreover, the mere grant of legislative power in a Constitution implies the right to change the common law. For example, changes may be made with reference to administrative and remedial processes, and a state may change the common law so as to create duties and liabilities which never existed before. Hence, it is not a valid objection to a statute that it creates a right of action and imposes a liability unknown to the common law.”

We therefore hold that the said Act 255 is constitutional insofar as concerns the attack here made on it.

II. Appellants Say: “Act 255 Of The Acts of 1957 Does Not Create Nor Confer A Cause Of Action For Mental Anguish. . . .” In presenting this point, appellants urge: (a) that Section 1 of the Act 255 is a re-enactment of § 27-903, Ark. Stats., with only one sentence added; (b) that Section 1 of the Act did not create a new cause of action; and (c) that it is not until Section 4 of the Act 255 — in considering damages — that mental anguish is first mentioned. Appellants then summarize: ‘ ‘ Succinctly stated, the question presented is, can the Legislature create a cause of action by merely providing for an additional measure of damages? The answer should be obvious, that it takes a cause of action before an action can be brought, to which an element of damage could be applied. The creation of a new element of damage does not ipso facto create a new cause of action.”

This very adroit argument can best be answered by a consideration of the law prior to the passage of the Act 255 in order to ascertain what conditions the Legislature was attempting to change. Under the common law, there could be no recovery in tort cases for mental anguish independent of physical injury. A classic example of this is the case of C. R. I. & P. Ry. Co. v. Caple, Admr., 207 Ark. 52, 179 S. W. 2d 151. Furthermore, when the death of a little child was wrongful and the parents sued to recover, the recovery was limited to the net amount that the parents would gain from the earnings of the child during minority. There could be no recovery for grief and mental anguish of the parents of the deceased minor. L. R. & F. S. Ry. Co. v. Barker, 33 Ark. 350, 34 Am. Rep. 44; Interurban Ry Co. v. Trainer, 150 Ark. 19, 233 S. W. 816; St. L.-S. F. Ry. Co. v. Perryman, 213 Ark. 550, 211 S. W. 2d 647.

To overcome the situation created by the foregoing holdings and to allow a recovery for mental anguish, there was passed Act 39 of 1949 and Act 115 of 1949, which Acts allowed recovery for mental anguish. In the case of Bockman v. Butler, 226 Ark. 159, 288 S. W. 2d 597, we allowed a recovery for mental anguish — under Act 115 of 1949- — -to grandparents who stood in loco parentis to the child. The Committee on Jurisprudence and Law Reform of the Arkansas Bar Association gave further study to our wrongful death statute and submitted a report to the Association, which may be found in Yolume 9 of the Arkansas Law Review at Page 105. A model bill was taken to the Legislature and, with changes made to incorporate some of the provisions of the Act 115 of 1949, became what is now Act 255 of 1957. We have already quoted the germane portions of this statute which relate to mental anguish. Act 115 of 1949 allowed a recovery for mental anguish, as we held in Bockman v. Butler, supra and the provisions of the Act 255 of 1957 contain practically the same language regarding mental anguish, as did Act 115 of 1949. Therefore,- we reach the positive conclusion that it was the intention of the Legislature to allow recovery for mental anguish under the Act 255; and we find no merit in the appellants ’ argument on this point.

III. Who May Recover Damages For Mental Anguish Under The Act 255. In several points the appellant presents this question; and its determination is essential to a decision regarding several of the appellees. The Act says in the first sentence of Section 4 that recovery for mental anguish is ‘ ‘ to the surviving spouse and next of kin of such deceased person.” Then in the succeeding sentence, there is a limitation on the “next of kin” to “children, father and mother, brother, sister or persons standing in loco parentis to the deceased and persons to whom the deceased stood in loco parentis.” The first sentence limits mental anguish to the spouse and next of kin; and the succeeding sentence further limits the next of kin who may recover. We revert to the words, “next of kin,” as contained in the first sentence of Section 4 of the Act because those words serve to exclude some of the persons who obtained verdicts and judgments in the case at bar. When the Legislature used the words “next of kin” in Act 255, those words already had a definite legal meaning. In Law v. Wynn, 190 Ark. 1010, 83 S. W. 2d 61, this Court construed the words “next of kin” as used in § 1075 C. & M. Digest (which became § 27-904, Ark. Stats.); and held that “next of kin” meant the same as “heirs at law.” We therefore conclude that the damages to be recovered for mental anguish under Act 255, are limited to the heirs at law, as further limited by the sentence in Section 4 following the reference to next of kin. If there are living children of a deceased, then any recovery for mental anguish must be for the widow and said children, and cannot be for the father and mother, or brothers and sisters. That is the effect of the use of the words “next of kin” in the Act here involved. Only when there are no living spouse and children of the deceased, can the parents or brothers and sisters recover for mental anguish. Applying this conclusion to the verdicts and judgments awarded in the case at bar, brings these results:

A. For the death of Mr. E. H. Eubanks, there was a recovery of mental anguish damages by his daughter, Mrs. Gene Frances Oliger, as his next of kin; so there could not also have been a recovery of mental anguish damages by his married sister, Mrs. Luther Drake, since she was not, at that time, his next of kin. The Trial Court should have instructed a verdict against Mrs. Luther Drake as prayed by appellants.

B. For the death of Mrs. Blanch Eubanks, there was a recovery of mental anguish damages by her daughter, Mrs. Gene Frances Oliger, as her next of kin; so there could not also have been a recovery of mental anguish damages by Mrs. Fannie Oliphant, as mother of Mrs. Eu-banks ; or by Mrs. lone Brewer, as sister of Mrs. Eubanks or by Yernon Tolbert, as brother of Mrs. Eubanks. The Trial Court should have granted appellants’ prayer for instructed verdicts against Mrs. Oliphant, Mrs. Brewer, and Mr. Tolbert for damages for mental anguish for the death of Mrs. Eubanks.

C. For the death of Mrs. Connie C. Henley, there was a recovery of mental anguish damages by Mrs. Leta Ring, the foster daughter, as next of kin. The evidence is uncontradicted that Mrs. Henley was the foster mother of Mrs. Leta Ring and stood in loco parentis to her. So Mrs. Ring became entitled under the Act 255 to stand as next of kin. There could not also have been a recovery of mental anguish damages by Mrs. Luther Drake, as the sister of Mrs. Henley, since Mrs. Leta Ring, as foster daughter stood as next of kin. The Trial Court should have granted the appellants’ prayer for an instructed verdict against Mrs. Luther Drake for mental anguish damages for the death of Mrs. Henley.

It follows, therefore, from what has been herein stated, that the following judgments for mental anguish damages are set aside and dismissed, to-wit: Mrs. Luther Drake for mental anguish damages for the death of Mr. Eugene H. Eubanks; Mrs. Fannie Oliphant, Mrs. lone Brewer, and Mr. Vernon Tolbert, for mental anguish damages for the death of Mrs. Blanch Eubanks; and Mrs. Luther Drake for mental anguish damages for the death of Mrs. Connie C. Henley.

IV. The Excessiveness Of The Remaining Verdicts. Appellants claim that each of the remaining mental anguish verdicts is grossly excessive; and this requires a consideration of what is mental anguish. The Act No. 255 does not define “mental anguish,” but the Arkansas Legislature, in allowing a recovery for mental anguish, undoubtedly used the words as they had been construed by this Court. In Western Union Tel. Co. v. Archie, 92 Ark. 59, 121 S. W. 1045, Mr. Justice Hart, speaking for this Court, said: “As held in the cases of McAllen v. Western Union Tel. Co., 70 Tex. 243, and Morrison v. Western Union Tel. Co., 24 Tex. Civ. App. 347, in order to recover damages under the mental anguish doctrine, it is necessary that the mental anguish suffered he real and with cause, and not merely the result of a too sensitive mind or a morbid imagination.” And in Western Union Tel. Co. v. McKenzie, 96 Ark. 218, 131 S. W. 684, 49 L.R.A., N.S., 296, in an opinion written by Mr. Justice Frauenthal, it is said: “It will thus be seen that the mental anguish for which a recovery can be had must not consist simply of annoyance or disappointment or a suffering of the mind growing out of some imaginary situation, but it must be some actual distress of mind flowing ‘from the real ills, sorrows and griefs of life.’ ”

Other Courts throughout the nation, as well as the law book text writers generally, have discussed the words, “mental anguish. ’’ In Black’s Law Dictionary, in speaking of mental anguish as a ground for damages, it is said that mental anguish ‘ ‘ includes the mental suffering resulting from the excitation of the more poignant and painful emotions, such as grief, . . . despair, etc.” “Anguish” is therein defined as, “Extreme pain, . . . agony; distress; . . ., pain of mind. ’ ’ In Hancock v. Western Union Tel. Co., 137 N. C. 497, 49 S. E. 952, 69 L. R. A. 403, the North Carolina Supreme Court said that there is a very material difference between disappointment and regret and that keen and poignant mental suffering signified by the words, “mental anguish.” In short, the Legislature, in allowing recovery for mental anguish, meant something more than recovery for the normal grief occasioned by the loss of a loved one. To be grieved or to be shocked by the death of a loved one is natural, but in order to recover under the Act No. 255, one must suffer more than the normal grief. The Court did not give an instruction defining “mental anguish”, and did not indicate to the jury the difference between normal grief and “mental anguish”; and we conclude that the jury, in giving the amounts which it did, was moved by evidence of normal grief as much as by evidence of mental anguish.

With the foregoing to guide us, we consider the remaining verdicts.

A.

The jury returned a verdict for Mrs. Gene Prances Oliger for $12,500.00 for mental anguish for the death of her father, Mr. Eubanks; and also a like verdict for $12,500.00 for mental anguish for the death of hex-mother, Mrs. Eubanks. Were these two verdicts, total-ling $25,000.00, grossly excessive? Mr. Eubanks was 76 years of age and Mrs. Eubanks was 69 years of age, and they were both killed almost instantly. Mrs. Oliger, their only child, was 31 years of age, married, and living with her husband in Morrilton; but the relationship between Gene Prances Oliger and her parents was extremely close. When she learned of their death, she fainted. She was with her father and mother nearly every day in the hardware store which they owned and operated in Morrilton; and she had been on a picnic with them on the day of the tragedy. Even taking into consideration the close relationship of this lady with her parents, and the evidence of her grief and anguish, we conclude that a recovery of $7,500.00 for mental anguish resulting from the death of each parent would be correct, and that any amount above that amount is grossly excessive.

B.

The jury returned a verdict for mental anguish damages for $2,000.00 to each of the five children of Mr. Albert Henley because of his death. These children are: Homer Henley, Willett Henley, Hugh Henley, Mrs. Irene Abbott, and Albert Henley. Were these verdicts, totaling $10,000.00 grossly excessive? As previously stated, their father was 81 years of age. Three of his sons lived in California, one lived in the State of Washington, and the daughter, lone Abbott, lived in Rapid City, South Dakota. Homer Henley and Willett Henley, aged 49 and 46 respectively, did not appear at the trial of this case and did not testify that they suffered any mental anguish at all. Neither did they attend their father’s funeral. One of the other brothers testified that Homer and Willett were ‘ ‘ shocked and grieved as we were. ” Under the definition of “mental anguish,” as herein set out, we cannot see how any recovery can be sustained for Homer Henley and Willett Henley, and, as to them, the verdicts are set aside and the judgments reversed and dismissed. Hugh Henley was 43 years of age, married, and lived in Long Beach, California; Mrs. lone Abbott, a married daughter, was 39 years of age and lived in Rapid City, South Dakota; and Albert Henley was 38 years of age, married, and lived in Garden Grove, California. Each of these people testified at the trial that their father’s death was “quite a shock” to them. Their father and their own mother were separated in 1936, and some of them had not seen their father in four or five years. There were no close ties or associations. They were separated by miles, and by years of absence from their father. It is a very close question whether they are entitled to any recovery for mental anguish, but, at most, we are con vinced that any verdict in excess of Five Hundred Dollars ($500.00) each, to Hugh Henley, Albert Henley, and Mrs. lone Abbott, would be grossly excessive.

C.

The jury returned a verdict for $10,000.00 for Mrs. Leta Ring for mental anguish damages because of the death of her foster mother, Mrs. Henley. Was this verdict grossly excessive? Mrs. Leta Ring was 51 years of age at the time of the trial. When her own mother died, Mrs. Ring was four or five years of age, and Mrs. Henley took the little girl to raise. Mrs. Henley made a wonderful mother. After Mrs. Ring married, she continued to live in Morrilton near Mrs. Henley and saw her every day. Mrs. Henley was with her when Mrs. Ring’s first husband died. In 1955, Mrs. Ring married again and moved to West Memphis, but she continued to write Mrs. Henley twice a week and, when she did not hear from her foster mother, she telephoned her. Mrs. Ring was so grieved with the passing of Mrs. Henley that she suffered what was almost a nervous breakdown. Under all of these facts, and other detailed in the record, we cannot say that the verdict in favor of Mrs. Ring for $10,000.00 was so grossly excsssive as to shock the conscience.

If remittiturs be entered as stated in this Topic IV within seventeen calendar days, then the judgments discussed in this topic will be affirmed for the amounts herein stated; otherwise, the judgments in this Topic IV will be reversed and the causes remanded, with the exception of the judgment in favor of Mrs. Leta Ring, which is affirmed.

George Rose Smith, J., dissenting. I am unable to agree with Part III of the majority opinion, which puts a limitation upon the beneficiaries who are permitted to recover damages for mental anguish. As I read Act 255 of 1957 the legislature meant to retain the existing limitation upon the beneficiaries who may recover damages for the pecuniary injuries resulting from a wrongful death, but no similar limitation was intended with respect to the beneficiaries recovering damages for mental anguish.

Under the law as it existed before the enactment of Act 255 of 1957 the cause of action for wrongful death was confined to “pecuniary injuries,” and the recovery was plainly for the benefit of the widow and the next of kin or heirs at law. The statute provided that if there should be no personal representative the action might be brought by the heirs at law, and it directed that the amount recovered be distributed “to such widow and next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate.” Act 53 of 1883; Ark. Stats. 1947, § 27-904.

In the case cited by the majority, Law v. Wynn, 190 Ark. 1010, 83 S. W. 2d 61, the court simply held that the effect of the statutory language just summarized was to vest the right to recover for wrongful death in all the heirs at law or next of kin of the decedent, whether or not they had been dependent upon him for support. This language in the opinion discloses the basis for the court’s conclusion: “It is not reasonable to suppose that the Legislature would create or vest a right to bring a suit at law in a class of persons [the heirs at law] who had no interest in the subject-matter thereof or in the proceeds of recovery. It evinces a legislative intent to vest the cause of action in the heirs at law of the deceased person in whom the rights of inheritance would vest under general law, had the deceased died intestate. Moreover, the language which follows, ‘shall be distributed to such widow and next of ldn in proportion provided by law in relation to distribution of personal property left by persons dying intestate,’ evinces a clear and unmistakable intent to distribute the net recovery in all such actions to the heirs at law of such deceased persons as is provided by general law of descent and distribution and not to a restricted class of persons, as contended by appellee.”

Act 255 must be read in the light of its statutory background. Section 1 of the act re-enacts the existing provision that the cause of action for wrongful death shall survive, with an additional clause to the effect that the cause of action also survives the death of the tortfeasor. Ark. Stats., § 27-906. Section 2 provides that the action shall be brought in the name of the personal representative, or if there be none then by the heirs at law. § 27-907. Section 3 places a limitation upon the heirs at law who may recover for the beneficiaries of the act are confined by this section to the surviving spouse, children, father and mother, brothers and sisters, and persons standing in loco parentis. § 27-908. The act does not contain the former provision that the recovery be distributed pursuant to the law of descent and distribution.

We come now to § 4 of the act, which controls the point now at issue. Its language must be studied carefully: “The jury, or the Court in cases tried without a jury, may fix such damages as will be fair and just compensation for the pecuniary injuries, including a spouse’s loss of the services and companionship of a deceased spouse and/or mental anguish resulting from such death, to the surviving spouse and next of kin of such deceased person. However, when mental anguish is claimed as a measure of damages under this statute, such mental anguish will be applicable only to the surviving spouse, children, father and mother, brother, sister or persons standing in loco parentis. . . .” §27-909.

My disagreement with the majority centers upon this sentence in their opinion, which contains the heart of the court’s reasoning: “The Act says in the first sentence of Section 4 that recovery for mental anguish is ‘to the surviving spouse and next of kin of such deceased person.’ ”

I cannot so read the first sentence in § 4 of the act. The only reference to mental anguish in that sentence is in a clause, set off by commas, which relates only to the surviving spouse. "When this clause is eliminated it will be seen that the first sentence in § 4 deals only with pecuniary injuries: “The jury, or the Court in cases tried without a jury, may fix such damages as will be fair and just compensation for the pecuniary injuries .....to the surviving spouse and next of kin of such deceased person.” Thus this sentence, except for the clause set off by commas, is a re-enactment of the former statute with respect to the recovery of compensation for the pecuniary injuries to the surviving spouse and the next of kin.

The recovery for mental anguish, as distinguished from pecuniary injuries, is treated in the second sentence in § 4, and this sentence makes no reference either to the next of kin or to the heirs at law: “However, when mental anguish is claimed as a measure of damages under this statute, such mental anguish will he applicable only to the surviving spouse, children, father and mother, brother, sister or persons standing in loco parentis. . . .” While we are not called upon to supply a reason for a policy plainly expressed by the legislature, it is easy to see why the lawmakers saw fit to permit all members of the class to recover for mental anguish. Such agony is a personal experience, peculiar to each of the beneficiaries of the act, and has nothing to do with the law of descent and distribution. A mother, for example, would suffer the same mental anguish upon the wrongful death of her son whether he died with or without children. Consequently it is logical and fair to allow all the beneficiaries of the act to recover for the mental anguish that they suffer.

If there were any doubt about the legislative intention it si mid be set at rest by this language in § 5 of the act: “Nothing in this act shall limit or affect the right of Probate Courts having jurisdiction to approve or authorize settlement of claims or causes of action for wrongful death, but the Probate Courts shall consider the best interests of all the beneficiaries under this act and not merely the best interest of the widow and next of kin as now provided by Section 8 of Act 255, Acts of 1951.” §27-910. I do not agree with the observation in Footnote 10 to the majority opinion, that § 5 of the act has no application to the case at bar because the verdicts and judgments were not obtained through probate settlements. Section 5 is part of the act and certainly must be taken into account in arriving at the legislative intention.

By § 5 the probate courts, in approving settlements, are directed to consider the best interests of all the beneficiaries of the act “and not merely the best interest of the widow and next of kin” as previously provided by law. The plain effect of the majority opinion is to read this clause out of the statute, because the recovery both for pecuniary injuries and for mental anguish is being-limited to the surviving spouse and the next of kin. How, then, is it possible for the probate courts to consider the best interests of all the beneficiaries of the act rather than merely the best interest of the widow and next of kin? The statute can be given effect only if all the beneficiaries of the act are allowed to recover for mental anguish as distinguished from pecuniary injuries. Consequently I am compelled to conclude that the legislature did not intend to restrict the cause of action for mental anguish to those beneficiaries of the act falling within the definition of next of kin or heirs at law.

Johnson, J., joins in this dissent.

       The Act 255 of 1957 may be found in § 27-906 et seq. in the Cumulative Pocket Supplement to Arkansas Statutes. The Act has other provisions aside from the mental anguish matters herein discussed.

       Judgment was rendered by the Court on this verdict in the sum of $6,875.00, the recovery being diminished in proportion to the contributory negligence of deceased as determined by the jury (§ 27-1730.2, Ark. Stats.).

       Judgment was rendered by the Court for the use and benefit of Mrs. Luther (Lela) Drake in the sum of $1,650.00, in accordance with the verdict of the jury as to the apportioned negligence. In other words, the jury allowed a total of $57,500.00 for the mental anguish of the relatives, which amount was reduced in the Court’s judgment to $50,-525.00 by reason of the contributory negligence of Eugene H. Eubanks, his relatives receiving judgment for 55% of the jury’s verdict.

         Emphasis supplied here as pertinent to discussion under Point IV infra.

       Emphasis supplied.

       Just as we speak of the first ten Amendments to the United States Constitution as the “Bill of Rights,” so also we call Art. II of the Arkansas Constitution the “Bill of Rights.” In some instances the said Art. II is a restriction on the Legislature, as when the questioned legislation violates the rights guaranteed in Art. II; but such is .not the situation in the case at bar.

       In 14 A.L.R. 2d 485, there is an Annotation on “Measure and elements of damages for personal injury resulting in death of infant.” There is also another Annotation in 14 A.L.R. 2d 550, entitled, “Excessiveness and inadequacy of damages for personal injury resulting in death of infant.”

       In 3 Ark. L. Rev., p. 373, there is a discussion of the two acts of 1949.

       In Delong v. Green, 229 Ark. 100, 313 S. W. 2d 370, we had occasion to briefly refer to this matter. See also Strahand v. Webb, 231 Ark. 426, 330 S. W. 2d 291.

       Section 5 of the Act 255 relating to settlements authorized by the Probate Court has no application to the case at bar since the verdicts and judgments here involved were not obtained through probate settlements.

       There is an annotation in 112 A.L.R. 30, supplemented in 171 A.L.R. 204, entitled, “Division among beneficiaries of amount awarded by jury or received in settlement upon account of wrongful death.” See also discussion in 11 Ark. L. Rev. 68. In Words and Phrases, there are a number of cases construing the words, “next of kin.”

       Section 4 of the Act 255 contains a provision about “loco parentis” that is not found in our general statutes of descent and distribution (§ 61-101, Ark. Stats.); but what we have said herein applies to recovery of mental anguish under the Act 255.

       Since the jury found that Mr. Eubanks was guilty of 45% of the negligence, her verdict of $12,500.00 was reduced to $6,875.00, as shown in Footnote No. 2.

       Recovery for the death of Eugene H. Eubanks is to be diminished in proportion to his contributory negligence as determined by the jury.


author: George Rose Smith, J.

text:
    El Dorado & Wesson Railway Co. v. Smith.
    5-2348
    344 S. W. 2d 343
    Opinion delivered March 20, 1961.

      Gaughan S Laney, for appellant.

      Shackleford <fc Shackleford, for appellee.
   George Rose Smith, J.

The appellees own a forty-acre tract which for many years was crossed by the right of way and tracks of the appellant railway company. In 1959 the company discontinued its service upon this line, removed its trackage, and attempted to convey to the other appellant, Natural Resources, Inc., the land formerly used as a right of way. The appellees then brought this suit to quiet their title to the disputed strip, contending that the carrier had had only an easement which terminated when the line was abandoned. The chancellor sustained the plaintiffs’ contention and entered a decree quieting their title and canceling the deed to Natural Resources.

It is conceded that the decision in the case turns upon the proper interpretation of the deed by which the appellees ’ predecessors in title conveyed the right of way to the railway company in 1906. That instrument was entitled Bight of Way Deed and read essentially as follows:

“Know all men by these presents: That we, B. E. L. Combes and Annie A. Combes, his wife, for and in consideration of the sum of Fifty-five ($55.00) Dollars (and for no other consideration) . . . do hereby grant, bargain, sell and convey unto the El Dorado & Wesson Bail-way Company, and unto its successors and assigns, forever a strip of land one hundred (100) feet in width, over and upon the following described land [five forty-acre tracts are described]. Said strip of land being fifty (50) feet in width on each side of the center of the main track of said railroad as the same is now, or may hereafter be located and constructed on and across said tract of land, with the right to change water courses and to take stone, gravel and timber, and to borrow earth, on said right of way for the construction and maintenance of said railroad; and if said railroad company its successors or assigns, shall deem it necessary to the proper construction of said railroad to borrow earth, make embankments, or cuts, or other works that require a greater width than said right of way it shall have the right to borrow earth, make such cuts, embankments, or other works, on either or both sides of said right of way, but not to exceed one hundred (100) feet in width on each side'of said right of way at any one point. Said additional land when taken to be paid for at the same rate as the above described right of way.

“And in further consideration of the premises, we do hereby acknowledge receipt in full of all compensation and satisfaction for property taken, or to be taken, and damage done, or to be done, by reason of the construction of said railroad.” The deed concludes with a release of dower and the grantors’ signatures and acknowledgment.

The chancellor was right in considering the case to be governed by the holding in Daugherty v. Helena & N. W. Ry., 221 Ark. 101, 252 S. W. 2d 546. In the deed now before us there are present substantially the same factors that led us to conclude that the deed in the Daugherty case created only an easement. In the earlier case the conveyance was of a strip of land “for a right of way”; here the instrument is captioned “Right of Way Deed” and contains a reference to “the above described right of way.” In both instances the shape of the tract, a 100-foot strip, is peculiarly suited to railway purposes and to little else. Neither instrument contains a habendum or a warranty clause. And in both cases the conveyance expressly gives the grantee a right to take stone, gravel, and timber, which is hardly consistent with the grant of a fee simple estate. The only significant difference between the cases is that here the consideration paid, $55.00 for a right of way totaling about ten acres, is not as clearly nominal as was the payment in the Daugherty case. We do not think this slight difference to be a sufficient reason for not following our prior decision. See also Chicago, R. I. & P. R. Co. v. Olsen, 222 Ark. 828, 262 S. W. 2d 882.

The case principally relied upon by the appellants, Lynch v. Cypert, 227 Ark. 907, 302 S. W. 2d 284, is easily distinguishable from this one. There the conveyance was an ordinary warranty deed, with the usual granting clause, habendum, and covenant of warranty. Although the instrument seemed to convey a fee simple it was argued that an intention to create only an easement should have been inferred from the fact that the land was conveyed “for depot grounds.” We rejected that argument, but even so there is very little similarity between the warranty deed construed in the Lynch case and the right of way deed now before us. Instead, the precedent established by the Daugherty case controls the present litigation.

Affirmed.