author: John A. Fogleman, Justice. Conley Byrd, Justice,

text:
    PICKENS-BOND CONSTRUCTION COMPANY and AETNA CASUALTY & SURETY CO. v. NORTH LITTLE ROCK ELECTRIC COMPANY
    5-5352
    459 S. W. 2d 549
    Opinion delivered November 9, 1970

      Smith, Williams, Friday & Bowen; By: William S. Sutton and Max C. Mehlburger, for appellants.

      Wright, Lindsey & Jennings; By: James D. Storey, for appellee.
   John A. Fogleman, Justice.

Appellant Pickens-Bond Construction Company and its liability insurance carrier Aetna Casualty & Surety Company sought to recover from appellee North Little Rock Electric Company all sums paid by the carrier in settlement of personal injury claims of an employee of appellee. Pickens-Bond was the general contractor on a construction job, and appel-lee was the electrical subcontractor. The employee was injured while performing work for this subcontractor on the job site. He was burned by explosion of liquid fuel obtained from a heating stove. The fuel, its container and the stove all belonged to Pickens-Bond. The can of fuel was near the heating stove when the explosion occurred. The only persons in the vicinity of the stove and fuel can at the time were North Little Rock Electric Company employees, although Pickens-Bond employees were working on the job site on that day. While specified employees of Pickens-Bond had the responsibility of refueling the stove from time to time, employees of other subcontractors occasionally put fuel in the stove. The identity of neither the person who last filled the stove before the explosion, nor of the one who placed the fuel can in proximity to the stove, is known.

Appellants’ suit was based upon an indemnity clause contained in the contract between Pickens-Bond and North Little Rock Electric Company. The circuit court granted appellee’s motion for summary judgment. It found the agreement too broad in its terms. That court held that the clause should not be construed to indemnify against the negligence of the indemnitee because this intention is not expressed in unequivocal words. We reverse the judgment because we feel that a question of fact must be determined before the question of coverage of the negligence of Pickens-Bond can be considered. The clause in question follows:

Party of the second part shall be responsible for his own work and every part thereof, and all of the work of every description used in connection therewith. He shall specifically and distinctly assume, and does assume, all risks of damage or injury from whatever cause to property or persons used or employed on or in connection with his work, and of all damage or injury from any cause to property wherever located, resulting from any action or operation under this sub-contract or in connection with his work, and undertake and promise to protect and defend the party of the first part against all claims on account of any such damage or injury.

Appellants contend that the subcontractor, by this clause assumed all risk of injury to his employees from any cause whatever, including the negligence of the general contractor. Appellee contends that the indemnity does not cover injuries resulting from negligence of the general contractor. It contends that the indemnity is only effective against injuries to employees resulting from any action or operation under the subcontract in connection with the work thereon. In order .to demonstrate these conflicting constructions we set out the two versions of appellee’s undertaking.

APPELLANTS’ VERSION

He shall specifically and distinctly assume all risks

(1) of damage or injury from whatever cause to property or persons used or employed (a) on or (b) in connection with his work,

and

(2) of all damage or injury from any cause to property wherever located, resulting from any action or operation under this subcontract or in connection with his work,

and undertake and promise to protect and defend the [general contractor] against all claims on account of any such damage or injury.

APPELLEE’S VERSION

He shall specifically and distinctly assume all risks

(1) of damage or injury from whatever . cause to property or persons used or employed on or in connection with his work

and

(2) of all damage or injury from any cause to property wherever located

resulting from any action or operation under this subcontract or in connection with his work, and undertake and promise to protect and defend the [general contractor] against all claims on account of any such damage or injury.

It will readily be seen that if appellee’s construction is adopted there are many unnecessary words in the clause. A contract of indemnity is to be construed in accordance with the rules for the construction of contracts generally. Anthony v. Louisiana and Arkansas Railway Co., 316 F. 2d 858 (8th Cir. 1963), cert. denied, 375 U. S. 830, 84 S. Ct. 74, 11 L. Ed. 2d 61 (1963), aff’g 199 F. Supp. 286 (W. D. Ark. 1961) involving Arkansas contract and Arkansas law; 41 Am. Jur. 2d 697, Indemnity § 13; 42 C. J. S. 574, Indemnity § 8. In construing a contract, the courts must endeavor to give meaning and effect to every word and may discard words as surplusage only when the intention of the parties clearly makes them such. Miller v. Dyer, 243 Ark. 981, 423 S. W. 2d 275; Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S. W. 2d 611. Repetition of the preposition “of” in the two “damage” clauses clearly indicates a parallel of two separate and distinct types of damage or injury: first, to persons or property used on or in connection with the subcontractor’s work, from whatever cause; and second, to property, wherever located, from any cause resulting from any action or operation under the subcontract or in connection with the work of the subcontractor. Then, if appellee is correct, there would have been no necessity for repetition of the words damage or injury. Furthermore, the word “property” need not have been repeated. If there be any doubt about the surplusage of the above words, we are sure that the words “in connection with his work” would not have been repeated if the parties intended the result appellee urges.

Surely if the parties had intended to contract according to appellee’s version the opening clause would have read:

He shall specifically and distinctly assume all risks of damage or injury to persons used or employed on the work or to property, wherever located, from any cause resulting from any action or operation under this subcontract or in connection with his work # * #

The contrast between the words “from whatever cause” and “from any cause” also indicates that the modifying clause “resulting from any action or operation under this subcontract or in connection with his work” is intended to limit the latter phrase only and serves as a contrast of “whatever cause” where persons and property “used or employed on or in connection with his work” are concerned with “any cause” where “property wherever located” is involved.

We cannot agree with appellee’s construction of the contract. It seems clear to us that appellants’ version is the correct construction. We find no ambiguity in the language of the contract, which would cause us to resort to rules of construction to ascertain the meaning of its words. Thus, for example, we are not called upon to construe the contract most strictly against Pickens-Bond, who apparently prepared it. Miller v. Dyer, 243 Ark. 981, 423 S. W. 2d 275; Coffelt v. Decatur School District, 212 Ark. 743, 208 S. W. 2d 1; Stoops v. Bank of Brinkley, 146 Ark. 127, 225 S. W. 593.

Óur construction of the contract, however, does not completely foreclose appellee’s argument that, in the absence of specific words requiring indemnification of Pickens-Bond against liability for its own negligence, the contract cannot bind appellee to this liability. There is an important factual problem confronting us before we can reach this argument of appellant. In this case, the language “damage or injury from whatever cause” is about as broad and comprehensive language as is likely to appear in such a contract. A literal construction of it would certainly include the negligence of the indemnitee. We have stated our position on a contract such as this in Hardeman v. Hass Company, 246 Ark. 559, 439 S. W. 2d 281. We said:

The precise question is whether this indemnity provision obligates the subcontractor to indemnify the prime contractor for damages arising out of the negligence of prime contractor which was the proximate cause of Turpin’s injuries. The intention of Hass to so obligate itself must be expressed in clear and unequivocal terms and to the extent that no other meaning can be ascribed. 41 Am. Jur. 2d, Indemnity § 15. Where an injury is caused by the sole negligence of the indemnitee many courts, in interpreting the indemnity contract, predicate their interpretation on the theory that such a liability would be unusual and harsh; consequently, the courts endeavor to relieve the indemnitor of liability to the negligent indemnitee. 175 A. L. R., p. 32, § 18.

The burden of demonstrating the nonexistence of questions of fact lay upon appellee. Mason v. Funderburk, 247 Ark. 521, 446 S. W. 2d 543. It has failed to discharge this burden. In determining this point the evidence must be liberally construed in favor of the party opposing the motion, all doubts resolved against the judgment and all presumptions and inferences resolved against the movant. Wilson v. McDaniel, 247 Ark. 1036, 449 S. W. 2d 944; Mason v. Funderburk, supra.

We cannot say as a matter of law that the injuries of Cornelius were caused, either wholly or in part, by negligence of Pickens-Bond. If the negligence of Pickens-Bond was not a proximate cause of these injuries, then it seems clear that the resulting damages come within the coverage of the indemnity clause. In that event, it would be unnecessary to determine whether the agreement is as comprehensive as appellants contend.

Because there is an unresolved fact question, we must remand the case for further proceedings. Since the question posed by appellee will arise if it be shown that the negligence of Pickens-Bond was a proximate cause of the injuries to Cornelius, we will consider appellee’s argument as to the effect of the lack of express words in order to guide the trial court and the litigants. The question has given us a great deal of difficulty. We find no ruling precedent in our own jurisdiction, and a wide divergence of authority on this subject. Decisions based upon public policy considerations bave little bearing here, because of the position we took in the Hardeman case. By the same token, we disregard those factors which would govern if Pickens-Bond were a public utility, a common carrier, a public service agency or the conductor of any business coupled with a public interest.

It seems that a majority of decisions in other jurisdictions support the rule that mere general, broad and seemingly all-inclusive language is insufficient to create a binding agreement to indemnify a party against the consequences of his own negligence. See 13 Am. Jur. 2d 152, Building and Construction Contracts § 141; 41 Am. Jur. 2d 699, Indemnity § 15; Annot. 175 A. L. R. 8 (1948). This rule arises from the natural aversion of the courts to hold one liable for the acts or omissions of another over whom he has no control. It also has its basis in the rule of strict construction, which probably should have no application where there is no ambiguity.

Some of these cases are based upon clauses somewhat different from the clause at hand, as we have construed it, in that the claim for damage or injury must have resulted from the performance, nonperformance or malperformance of the contractual undertaking of the indemnitor. See, e. g., Glens Falls Indemnity Co. v. Reimers, 176 Ore. 47, 155 P. 2d 923 (1945). Others merely hold that indemnity agreements containing broad, general language such as that employed here do not cover losses caused solely by the negligence of the indemnitee. See, e. g., Southern Pac. Co. v. Layman, 173 Ore. 275, 145 P. 2d 295 (1944) and cases cited therein.

There are also holdings that general terms are sufficient where the injuries result from concurring negligence of indemnitor and indemnitee, even though not requiring indemnity where the sole cause is the indemnitee’s negligence. See, e. g., Sinclair Prairie Oil Co. v. Thornley, 127 F. 2d 128 (10th Cir. 1942). Some courts hold that a contractor’s or subcontractor’s agreement to indemnify an owner or contractor against liability for damage to person or property cover injuries caused, in part, by the contractor’s or subcontractor’s negligence for which the owner or contractor would have been liable only for passive negligence in failing to perform a duty to the injured party. See, e. g., Dudar v. Milef Realty Corporation, 258 N. Y. 415, 180 N. E. 102 (1932); Mayer v. Fairlawn Jewish Center, 38 N. J. 549, 186 A. 2d 274, 97 A. L. R. 2d 604 (1962). In the same vein, it has been said that coverage should be excluded by the rule of strict construction in cases involving affirmative acts of negligence. See Vinnell Company v. Pacific Electric Railway Co., 52 Cal. Rptr. 2d 411, 340 P. 2d 604 (1959).

We also find many cases, based upon persuasive reasoning, holding that clauses similar to that involved here do cover damages resulting from the negligence of an indemnitee who was a general contractor or owner. See, e. g., Griffiths v. Broderick, 27 Wash. 2d 901, 182 P. 2d 18, 175 A. L. R. 1 (1947); Standard Accident Ins. Co. v. National Fire Proofing Co., 39 Ohio App. 1, 176 N. E. 591 (1931); American Agric. Chem. Co. v. Tampa Armature Works, 315 F. 2d 856 (5th Cir. 1963); New Amsterdam Cas. Co. v. Kilroy Structural Steel Co., 159 N. E. 2d 797 (Ohio Ct. App. 1959); St. Paul Mercury Indemnity Co. v. Kopp, 121 N. E. 2d 23 (Ohio Ct. App. 1954); Ohio Oil Company v. Smith, 365 S. W. 2d 621 (Tex. Sup. Ct. 1963); Princemont Const. Corp. v. Baltimore & Ohio R. Co., 131 A. 2d 877 (Mun. Ct. App. D. C. 1957); Northern Pac. Ry. Co. v. Thornton Bros. Co., 206 Minn. 193, 288 N. W. 226 (1939); Russell v. Shell Oil Co., 339 Ill. App. 168, 80 N. E. 2d 415 (1949). See also, Atlantic Coast Line R. Co. v. Robertson, 214 F. 2d 746 (4th Cir. 1954); Buckeye Cotton Oil Co. v. Louisville & N. R. Co., 24 F. 2d 347 (6th Cir.1928). Most of them point out that rules of strict construction against the indemnitee have no application where the language is unambiguous or that the fact that the language is general and comprehensive does not render it unclear, equivocal or uncertain. In at least one case it was said that to apply the strict construction rule to reach an opposite result would cause a construction patently inconcistent with the plain and clear language of the contracting parties. Jacksonville Terminal Co. v. Railway Exp. Agency, 296 F. 2d 256 (1962), cert. denied, 396 U. S. 860, 82 S. Ct. 949, 8 L. Ed. 2d 18. Many recent cases have tended to follow this trend. In one of these [General Acc. F. & L. Assur. Corp. Ltd. v. Smith & Oby Co., 272 F. 2d 581 (6th Cir. 1959), 77 A. L. R. 2d 1134, reh. denied, 274 F. 2d 819] it was suggested that, if the liability for negligence were spelled out specifically, the clause might be limited to liability only for negligence. In Moses-Ecco Company v. Roscoe-Ajax Corporation, 320 F. 2d 685 (D. C. Ct. App. 1963), the court said:

It is difficult to conceive of any phraseology broader than Moses-Ecco’s agreement to indemnify Roscoe-Ajax against “any and all loss, cost, damage, or expense * * * on account of any claim, demand or suit * * * by or on behalf of any employee of [Moses-Ecco] * * Since the parties specified that “all” losses on “any” claims included those of Moses-Ecco’s employees, we think further specification would be superfluous and ritualistic. Moreover, it would appear that no valid claim by an employee of Moses-Ecco could arise against Roscoe-Ajax except through Roscoe-Ajax’s own negligence. Consequently to exclude losses caused by Roscoe-Ajax’s negligence would deprive that part of the clause which refers to the claims by employees of Moses-Ecco against Roscoe-Ajax of virtually the only meaning it can possibly have.

The appellate division of the New Jersey Superior Court has wrestled with the problem in considering an indemnity agreement between an owner and a contractor. There a building owner was sued by an employee of the contractor engaged in converting the owner’s building. The employee was injured when a part of the ceiling fell on him. He alleged that the injury was the result of the owner’s failure to furnish a safe place to work in that the ceiling was in a weakened state of repair. The contractor defended the owner’s suit to recover for the amount paid by the latter on account of the employee’s injury on the ground that the contract should not be construed to indemnify the owner against losses arising out of his own negligence. The New Jersey court’s critical evaluation of the cases in support of the rule requiring a clear and unequivocal expression of the intent to indemnify against the in-demnitee’s negligence revealed that it was not generally applied to frustrate coverage of losses partially attributable to negligence of the indemnitee, if the language of the agreement and the surrounding circumstances are indicative of a contractual intent that broad. That court said the weight of authority supported the rule that something less than an express reference to losses from an indemnitee’s negligence was sufficient if the intent otherwise appears from the language of the contract and surrounding circumstances. Among the circumstances there considered were the passive nature of any circumstances there considered were the passive nature of any negligence on the part of the owner and the likelihood that negligence of the owner and negligence of the contractor were concurring causes. It was pointed out that to preclude recovery in every case where the negligence of the indemnitee contributed in any degree to the loss would leave practically rio occasion where the indemnity was actually operative. The ultimate holding was that the claim was a contemplated basis for indemnification under the agreement regardless of negligence of the owner with reference to the condition of the ceiling, even though the contractor may have been guilty of no negligence. The court stated that the intent expressed would be frustrated if the obligation were construed to be qualified by the kind or degree of fault or negligence causally related to the injuries, so long as they were precipitated by any phase of doing the work contracted. Still, a distinction seems to have been made between the applicability of the clause in cases of active and those of passive negligence. This distinction may be attributable to the fact that the entire project was under the contractor’s control, and he was to have had exclusive possession of the premises as well. Particular attention was called in the opinion to cases holding that the negligence of the indemnitor is immaterial as long as the negligence of the indemnitee was not the sole cause.

An extensive annotation on a building contractor’s liability upon an agreement to indemnify an owner for injury to third persons resulting from an owner’s negligence appears in 27 A. L. R. 3d 663 (1969). There, it was indicated that even in the absence of specific coverage of an owner’s negligence, it is generally held that the owner is afforded protection where his passive or secondary negligence concurs with the contractor’s active or primary negligence, but not when the owner’s active or primary negligence was the sole or concurring cause. However, the annotator found a number of cases where the owner has been held to be entitled to indemnity under clauses similar to the one involved here, even though the injuries involved were caused or con-tribu ted to by his own negligence, and others in which the courts have been aided in holding that general clauses afford indemnity where the owner’s negligence was a factor, upon the basis that otherwise the clause would be meaningless, or virtually so. The annotator also found that the great majority of the courts had held or recognized that specific or express language covering the owner’s negligence, including active or affirmative negligence, is unnecessary, if the intention to afford such protection clearly appears from the language used, the surrounding facts and circumstances and the purposes and objects of the parties. Among the circumstances considered by these courts were the existence of insurance or contractual requirements pertaining thereto, other contract provisions and the extent of the possession and control of the work premises. While a number of cases were cited denying coverage of injuries caused solely by primary or active negligence on the part of the owner, some jurisdictions (Pa. and N. Y.) seem to deny coverage where active negligence of the owner was a concurrent cause. No real basis exists for making a distinction between rules of law applicable to contracts between owners and contractors and to those between contractors and subcontractors.

Resort to other clauses in the contract at hand discloses that appellee was required to furnish statutory workmen’s compensation and public liability insurance, and, apparently, security for his “hold harmless agreement.” The certificate of insurance furnished Pickens-Bond covers these requirements and specifically mentions the “hold harmless agreement” as an adjunct of a comprehensive general liability policy. If it was intended that appellee’s indemnity cover only the injuries to its employees arising out of the employment, the workmen’s compensation policy would have adequately covered the situation. Since no valid claim could possibly be asserted against the general contractor in the absence of some negligence on its part, it seems obvious that the contract clause should cover situations in which there is some legal basis for liability on the part of Pickens-Bond. This conclusion, however, does not amount to a complete solution, because there is a logical basis for the passive-active negligence and sole-concurring cause distinctions.

In reaching our conclusion, in the absence of direct precedent, we must be quided by the spirit of our law expressed in decisions involving other relationships. In Gulf Compress Co. v. Harrington, 90 Ark. 256, 111 S. W. 249, 23 L. R. A. (n. s.) 1205, we held that a stipulation in a warehouse receipt that the warehouseman was “[n]ot responsible for loss by fire” did not provide exemption from liability for loss by fire resulting from the warehouseman’s negligence, in the absence of express words indicating the intention to do so. The court said that the fact that the warehouseman would not have been liable in the absence of the clause unless he were negligent was not significant because the same contract also enumerated other exemptions from liability for which there would have been no legal basis. This latter argument cannot be advanced as to the contract before us.

Even though an exculpatory, rather than an indemnity clause, was involved in the Gulf Compress case, it would not seem consistent with its holding to say that the general words employed here were sufficiently clear to impose indemnity for injuries of which the sole proximate clause was the general contractor’s active negligence.

It is quite a different matter, however, where there was no negligence on the part of the general contractor, or where his negligence is only a concurring cause. If we held that the general contractor was not indemnified under this clause in those situations, then the clause would be virtually meaningless. Under our law, the general contractor may be held liable for the full amount of damages to a subcontractor’s employee who has been fully compensated under the latter’s workmen’s compensation insurance, if the former’s negligence contributed to the employee’s injury in any degree, however slight. The Baldwin Company v. Maner, 224 Ark. 348, 273 S. W. 2d 28. But the general contractor who has paid such a judgment cannot recover contribution from his subcontractor who was a joint tort-feasor, even though the latter may have been guilty of 99% of the negligence causing the injuries. C. & L. Rural Electric Coop Corp. v. Kincaid, 221 Ark. 450, 256 S. W. 2d 337. This clause in the contract was obviously addressed, at least in part, to avoidance of this inequitable result. It would also avoid litigation as to degrees of negligence. The case just cited recognized the enforceability of a proper indemnity agreement in such circumstances. Consequently, we find that the clause in question clearly and unequivocally provides indemnity to the general contractor, even though he was guilty of negligence contributing to injury and damage to the subcontractor’s employee, unless the general contractor’s active negligence was the sole proximate cause.

Of course, there is no reason why an indemnity against the general contractor’s being held liable for acts or omissions of third parties should not be given by a subcontractor. In Batson-Cook Company v. Industrial Steel Erectors, 257 F. 2d 410 (5th Cir. 1958), relied upon by appellee, it was clearly recognized that the indemnity would cover injuries or damages caused neither by indemnitor nor indemnitee, but by unrelated third parties, even though the court held that the indemnity did not cover the consequences of the indemni-tee’s own negligence. Unlike the contract here, the clause in question provided indemnity against injury or damage "sustained or alleged to have been in connection with or to have arisen out of or resulting from the performance of the work by the Subcontractor * * The purpose of the indemnity is not confined to requiring the subcontractor to save the general contractor harmless from acts or omissions of the subcontractor. It is general in scope and would cover any situation where the damage or injury is not due to the general contractor’s sole active negligence, which is eliminated only for the reasons hereinabove stated. The shifting of the risk of incidents for which the contractor has no responsibility is not unreasonable, particularly when we realize, as we must, that the real responsibility assumed is actually that of the payment of insurance premiums.

We should not read the conjunction “or” as “and” in order to restrict the indemnity to matters 'which are, or might be, under the subcontractor’s control. It is permissible to so read the word “or” when the context in which it is used requires that it be done to effectuate a manifest intention or when not to do so would render the meaning of the clause ambiguous or result in an absurdity. Hines v. Mills, 187 Ark. 465, 60 S. W. 2d 181; McCarroll v. Southwest Distilled Products, 198 Ark. 729, 131 S. W. 2d 5; Beasley v. Parnell, 177 Ark. 912, 9 S. W. 2d 10; Williams v. State, 99 Ark. 149, 137 S. W. 927, Ann. Cas. 1913A 1056. No such condition exists in the clause before us.

The summary judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

Byrd, J., concurs.

Conley Byrd, Justice,

concurring. I concur with the reversal and virtually arrive at the same result, but it appears to me that so long as the risk of damage or injury must arise, “in connection with (the subcontractor’s) work,” any injury resulting from the general contractor’s sole active negligence is excluded from the indemnity agreement. Since it is possible that a subcontractor’s employee can be injured from a risk not arising in connection with his employer’s work and not from the sole active negligence of the general contractor, then it appears that the majority is making the indemnity broader than the parties bargained for.

Suppose that the general contractor was building a 24 story skyscraper, that the subcontractor was installing electrical wiring on the 12th floor and that a boiler manufacturer in testing the pressure of a boiler in the basement caused the boiler to explode in such manner as to cause the building to fall. In this case the injury to the subcontractor’s employees would not be caused by the general contractor’s sole active negligence but the language of the majority opinion could lead one to think that the subcontractor’s indemnity agreement here involved would protect the general contractor. On the other hand, if the indemnity agreement is construed as protecting only those injuries of employees arising in connection with the subcontractor’s work, the general contractor would be without indemnity. It seems to me that the latter interpretation is the more preferable construction because it would give the subcontractor some control, by safety rules or inspections, over those matters under his control.

Admittedly in arriving at my construction of the indemnity agreement, I am reading the word “or” as “and” in the phrase, “employed on or in connection with his work.” This is in accord with the authorities. They point out that the popular use of “or” and “and” is so loose and frequently inaccurate that their strict meaning is more readily departed from than that of other words and that one may be read in place of the other in deference to the meaning of the context. See Williams v. State, 99 Ark. 149 (1911). Furthermore, this construction comports with the first sentence of the clause which provides: “Party of the second part shall be responsible for his own work and every part thereof, and all of the work of every description used in connection therewith.” Other phrases of the same clause refers to damages . . . “resulting from any action or operation under this sub-contract or in connection with his work.”

For the reasons stated, I only concur with the result of the majority opinion.

       This case applied what was thought by the United States Circuit Court of Appeals to be Florida Law. In Gulf Oil Corp. v. Atlantic Coast Line, 196 So. 2d 456 (Fla. App. 1967), cert. denied, 201 So. 2d 893 (1967), the rule requiring explicit and specific language was applied. Although a subsequent case in that United States Circuit Court of Appeals applied the rule of this Florida decision, the language referred to in the text seems no less appropriate.

       See Stern v. Larocca, 49 N. J. Super. 496, 140 A. 2d 403 (1958).

       This holding was recognized in Missouri Pac. Transportation Co. v. Williams, 207 Ark. 750, 182 S. W. 2d 762.

       See also, Fidelity if Casualty Co. of New York v. J. A. Jones Construction Co., 200 F. Supp. 264 (E. D. Ark. 1961), aff'd 325 F. 2d 605 (1963).


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Bud EASLEY v. STATE of Arkansas
    5529
    459 S. W. 2d 410
    Opinion delivered November 9, 1970

      Eugene Coffelt and W. Gary Kennan, for appellant.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Bud Easley was charged on information filed by the prosecuting attorney of Benton County with the unlawful possession of stimulant and/or depressant drugs. Upon waiving a jury trial, he was tried before the circuit judge sitting as a jury and was convicted.

Easley’s father owned a farm near the small village community of Hiwasse in Benton County. He had moved an extra house onto the farm and the appellant Easley was in the process of moving into the house. Mr. Carl Merkey, an electrician, was employed to do electrical wiring in the house and while he was so engaged and after Easley had moved some furniture and personal effects into the house, Mr. Merkey found a large supply of contraband drugs in one of the clothes closets. He reported his find to the authorities.

A search warrant was issued on Merkey’s affidavit and the drugs were seized through the use of the search warrant. The drugs were accepted in evidence after Easley’s motion to suppress was denied by the trial court. The search warrant was directed to the sheriff of Benton County and reads as follows:

“Whereas, complaint has been made on oath before the undersigned, one of the Municipal Judges in and for the County of Benton, by Carl Merkey that certain personal property of Bud Easley to-wit: Stimulant and I or Depressant Drugs (Amphetamines and/or Barbiturates) are in the possession of Bud Easley the said complainant knows of his own knowledge that such property is concealed in the house occupied by Bud Easley in or near Hiwasse in the County of Benton; and, whereas, being satisfied that there is reasonable ground for such suspicion, you are, therefore, hereby commanded to search the place above mentioned, where such property is suspected to be concealed, in the p.m. time, and to bring such property, or any part thereof which may be found, before me, tbe said Judge, forthwith.”

Easley has appealed to this court and relies on the following point for reversal:

“The judge erred in denying the motion to suppress the evidence.”

Easley was not present when .the warrant was executed but he had left the doors open or unlocked for the convenience of Merkey. The officers who executed the warrant testified that Merkey gave them some additional verbal directions as to how to get to the Easley house. Easley presents two primary arguments in support of his designated point. He argues that the search warrant was invalid on its face in that it did not par-, ticularly describe the place to be searched as required in the second clause of the Fourth Amendment to the Constitution of the United States; and that the search was invalid because Easley was not notified of the impending search and the search warrant was not served on him.

A search warrant is directed to the officer who is to make the search and Easley does not contend that the officers searched the wrong house under the warrant. Common sense dictates that the constitutional requirement that a search warrant contain a particular description of the property to be searched, is designed and intended to aid the officers in locating the right property to be searched, as well as to protect innocent property owners from unreasonable searches and seizures and prevent officers from searching the wrong property.

In the Tennessee case of O’brien v. State, 14 S. W. 2d 51, the court said:

“. . . In this case the warrant directed the officer to search the dwelling house of James O’Brien on TeCoy Road in Ninth civil district, Knox county, Tenn. According to numerous authorities, such a description is held sufficient because it enables the officer to whom it is directed to locate with reasonable certainty the place to be searched.”

In the Tennessee case of Webb v. State, 121 S. W. 2d 550, the affidavit for a search warrant was incorporated by reference in the warrant. In that case, the Tennessee court quoted from 56 C. J. 1233 and 1237 as follows:

“ ‘Moreover, it is held that the word “particularly” in the constitution requiring such a description means that the description must be such that any person familiar with the locality can by inquiring identify the premises described.
* * *
As it seems neither necessary nor practical to describe a farm dwelling house with the same degree of particularity as a dwelling house located in the city, the requirements are therefore not so strict, although the degree of particularity required is obviously governed by the circumstances of each case. Thus since houses in rural communities are commonly known by the name of the owner rather than by any technical legal description, a description of rural property as the premises occupied by a named person may be held sufficient, even though the property is incorrectly described as to section and range. Likewise the description may be sufficient if the farm is named and the particular district disregarded.’ ”

The Tennessee court then concluded:

“. . . There is no uncertainty or obscurity as to the building, to be searched. Such a warrant confers upon the officers no discretion or authority to search any other dwelling than that of Joe Webb, ‘on the Ander-sonville Pike, Knox County, Tennessee.’ ” See also Norton v. State, 543 S. W. 2d 361 (Ky.).

In the Texas case of La Fitte v. State, 54 S. W. 2d 134, an affidavit and search warrant were attacked as insufficiently describing the premises to be searched. The premises were described as “the white frame house well known to these affiants to be the residence of Earnest La Fitte, situated on the Logansport hiway about two miles from the courthouse in Center, and located on the east side of said hiway No. 76. . .” The Texas court simply stated: “The description of the residence to be searched seems to be sufficient.”

In the Texas case of Boone v. State, 26 S. W. 2d 655, the appellant questioned the sufficiency of the affidavit to support the warrant under which the officers acted in making the search of appellant’s residence and premises on the ground that the property to be searched was not described with sufficient certainty. The property was described as follows: “A certain residence, barn and dug-out located upon a farm owned by Mrs. T. C. M. Boone and occupied by Bud Boone, and located about two miles and a half northwest of Vera, in Knox County, Texas, together with barns and outhouses, pastures and fields upon said farm. . .” In holding the descrption sufficient, the Texas court said: “We fail to discover any uncertainty in the description.” See Odell v. State, 105 Tex. Cr. R. 646, 290 S. W. 164; Watson v. State, 110 Tex. Cr. R. 199, 7 S. W. 2d 586, 9 S. W. 2d 265; Hennandez v. State, 109 Tex. Cr. R. 246, 4 S. W. 2d 82.

In 79 C. J. S., § 83 f is found the following:

“Absence of accused. Since the service of a warrant for the search of premises is sufficient when made at the place designated in the warrant, it is not necessary to the validity of a search and seizure that it be made in the presence of accused. Accordingly, the effect of the warrant cannot be avoided by accused by absence when the warrant is executed, nor is it necessary that service of the warrant be made on the owner of the premises when he is in jail. Moreover, where accused is not present at the time of the search of his residence, it is not necessary that a copy of the warrant be served on anyone or posted on the door; and the fact that a copy of the warrant was left on his bed does not invalidate the search.”

In the Tennessee case of Garrett v. State, 250 S. W. 2d 43, a search warrant for gambling devices directed the officers to search the house of J. F. Garrett on the Bells Road in Madison County. The warrant was assailed on the ground that the description was inadequate, and that the search was illegal because the officer did not read the search warrant or exhibit it to the defendant. The Tennessee court said: “The description is sufficient if it enables the officer to locate with reasonable certainty the place to be searched. The description here met this requirement by directing the officer to search the house of J. F. Garrett on the Bells Road in Madison County.” In answer to the second contention, the court said: “We have no statute requiring the officer to exhibit or reveal the search warrant at the time of the search.” And citing 47 Am. Jur., Searches and Seizures, § 39, the Tennessee court continued: “ ‘No formal statement as to the contents of the warrant is necessary to its execution. And unless the statute so provides, an officer charged with the execution of a lawful warrant is not obliged to exhibit the warrant as a prerequisite to the right to execute it.’ ”

A search warrant serves as the officer’s authority to make the search and seizure as well as his directions as to where to search and what to seize. We have no statute in Arkansas requiring the officer to exhibit or reveal the search warrant at the time of the search but, as a mattter of course, he must reveal his identity and his authority when requested to do so by the owner, occupant or one in rightful possession of the property to be searched or the thing to be seized.

We are of the opinion, and so hold, that the description of the property as set out in the search warrant was sufficient, and that it was not necessary for the officers to notify Easley of the impending search or to serve the search warrant on him.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Bill NEEDHAM v. Marilyn NEEDHAM
    5-5363
    459 S. W. 2d 417
    Opinion delivered November 9, 1970

      Sexton, Wiggins ir Christian, for appellant.

      Garner ér Parker, for appellee.
   Conley Byrd, Justice.

The trial court in this divorce case awarded the custody of Marshall Wayne Needham, age 3, to the mother of appellee, Marilyn Needham. In so doing it gave appellee reasonable visitation rights at any and all times but limited the appellant, Bill Need-ham to every other week-end and on Wednesday from 4:00 to 10:00 P. M. Appellant here contends that the custody should have been awarded to him.

The record shows that the parties were married in 1965 and lived together until July 22, 1969. To this marriage was born Marshall Wayne Needham.

The unfitness of the appellee to have custody is not seriously in dispute. The record is replete with indiscretions involving other men and in particular one boy, age fifteen, to such an extent that the boy’s mother complained to appellee. Further appellee at one time was on dope until her mother had her committed to an institution.

The record shows that appellant, the father of the child, is steadily employed and that if awarded custody he would keep the child at his mother’s and father’s home. The only testimony touching upon appellant’s character was that on one or two occasions he slapped or hit the appellee and that early one morning he attempted to kick a front door down when he found ap-pellee and another man in their jointly purchased house under circumstances from which one could surmise that the man had spent the night.

Appellant’s mother testified that her home consisted of two bedrooms upstairs, two bedrooms downstairs and a living room and kitchen. Living at her home were her husband, her son Charles and his three children and appellant. When Marshall Wayne spent the night with her, he slept with appellant. Her son Charles was divorced from his wife and she was helping him with his children.

It was pointed out in Rayburn v. Rayburn, 231 Ark. 745, 332 S. W. 2d 230 (1960), that a natural parent’s right to custody of a child is paramount to all others unless the parent is proved to be incompetent or unfit. Here, we can find, nothing in the record to show that the father is either incompetent or unfit. On the contrary the record demonstrates the appellant to be a steadily employed man who has attempted on numerous occasions and under some rather trying circumstances to maintain a home for himself and the child.

The appellee, to sustain the award of custody to her mother, argues that the appellant’s proposed arrangements for keeping the child at his mother’s home were inadequate because of the number of people living there. Appellee’s assertion in this respect is not supported by the record.

For the reasons stated, the award of custody is reversed with directions to award custody to the appellant, . subject to the appellee’s reasonable visitation rights.

Reversed and remanded.


author: Frank Holt, Justice.

text:
    Lillian E. ANDING (Anders) v. Lindall Boyd ANDERS
    5-5360
    459 S. W. 2d 416
    Opinion delivered November 9, 1970

      Spencer ir Spencer, for appellant.

      Brown, Compton, Prewett & Dickens, for appellee.
   Frank Holt, Justice.

This appeal results from the refusal of the chancellor to modify a divorce decree. Appellant was granted a divorce in 1964. A property settlement between the parties was approved by the court and incorporated into the decree. About four years later, the parties entered into a “Supplemental Property Settlement Agreement” whereby appellee was to pay $35.00 per month to appellant in addition to the $75.00 each month set forth in the original settlement. This was in lieu of appellee’s oral covenant to pay grocery money to appellant every two weeks. The supplemental agreement also provided that “either party is given the right to make this agreement a part of the original divorce decree and seek its enforcement thereunder.”

When appellee became delinquent in his payments under the supplemental agreement, appellant filed a “Motion For Judgment” with the chancery court for the arrearages. Appellee alleged in his answer that the supplemental agreement was void for lack of consideration and was obtained by duress and misrepresentation. Appellant then amended her motion for judgment by requesting that the supplemental agreement be made a part of the original divorce decree and be enforced. The court granted appellee’s subsequent motion to dismiss which asserted that the court had no jurisdiction and that an adequate remedy at law existed. This appeal follows that order.

We agree that the chancellor was correct in dismissing appellant’s motions for judgment. The original property settlement, complete in itself and without provision for its amendment or change, was approved by the court and incorporated into its divorce decree by the consent of the parties. Absent a showing of fraud in the inducement of the original agreement [Collie v. Collie, 242 Ark. 297, 413 S. W. 2d 42 (1967)], or unless both parties presently consent [Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409 (1953); McCue v. McCue, 210 Ark. 826, 197 S. W. 2d 938 (1946)], the court is powerless to modify that portion of the decree based on the contract settlement between the parties. See Hodge v. Hodge, 241 Ark. 712, 409 S. W. 2d 316 (1966); Johnston v. Johnston, 241 Ark. 551, 408 S, W. 2d 885 (1966). The rationale of this rule is simply that: “* * * a modification of the decree would be no less than a modification of the contract itself.” Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700 (1908). See, also, Annot., 166 A. L. R. 675 (1947).

In the case at bar, fraudulent inducement was neither asserted nor shown by appellant as to the original agreement. Furthermore, appellee resisted appellant’s attempt at modification thereby negating any attitude of present consent. The question then becomes: Does the supplemental agreement itself constitute “consent” for the requested modification? The answer to this depends upon the validity of the supplemental agreement which, in this instance, is nothing more than an alleged (and presently disputed) contract. Its validity being denied, the supplemental agreement is ineffective for purposes of consent. It thereby follows that in the circumstances the court is powerless to modify the decree.

Appellant relies upon Dunn v. Dunn, 174 Ark. 517, 295 S. W. 963 (1927), where we held that the chancellor erred in refusing to confirm a settlement which was voluntarily agreed to and executed between the parties subsequent to the entering of the divorce decree. That case, however, is significantly distinguishable. There the original divorce decree did not contain a property settlement agreement between the parties. Their property rights were first determined by the chancellor. The court, therefore, maintained a continuing power to alter its own decree. The fact that a later property settlement between the parties was evidently voluntary justified a modification. Here, however, the supplemental (and disputed) agreement is asserted first to confer upon the court the power to make a modification, and then to justify that modification. In other words, the court, in the Dunn case, had the power to modify; whereas here, absent consent of both parties, the court does not.

Affirmed.


author: James B. Sharp, Special Justice.

text:
    Dr. Grady ROPER v. M. E. RODGERS
    5-5483
    459 S. W. 2d 419
    Opinion delivered November 9, 1970

      Rasmussen if Hogue, for appellant.

      William W. Green, for appellee.
   James B. Sharp, Special Justice.

A complaint was filed in the Chancery Court of Garland County, Arkansas, by a qualified elector and tax payer of that county, who was the owner of real and personal property located in the State of Arkansas. In his Petition, the Plaintiff asked that the Garland County, Arkansas, Board of Election Commissioners be restrained, enjoined and commanded to omit the name of the appellant from the official ballot to be printed and prepared by them and to be voted on in the General Election with regard to the office of coroner for that county, and that the appellant be declared ineligible to run or to seek election for that office.

The appellant was duly certified as the Republican nominee for County Coroner, and the Election Commission of Garland County attempted to place his name upon the ballot for election to the office of County Coroner.

A hearing was held on the Petition on October 6, 1970, resulting in a decree “. . . that the Garland County, Arkansas, Board of Election Commissioners . . . be . . . enjoined and restrained from placing the name of Dr. Grady Roper on the Ballot . . . for the office of Coroner . . . and, in the event the said name cannot be stricken, not to certify the votes for said Dr. Grady Roper, that . . . Dr. Grady Roper, be and he is hereby declared to be ineligible to seek election for the office of Coro-nor . . . , that the injunction will issue upon the Plaintiff’s posting an adequate bond . . .”. The bond was posted and the Injunction issued.

There were a number of issues which came before the Chancellor on which decisions were made, but we do not deem any, except the following, to be of any significance in view of the decision which we make here.

“It was merely a political matter not involving any property rights or any matters of public taxation, and the chancery court had no power to interfere either by injunctive process or otherwise.” Miller v. Tatum, 170 Ark. 152, 279 S. W. 1002 (1926).

As we stated in Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S. W. 2d, 651:

“The landmark decision is Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980 (1913), where we held that a chancery court could not review the action of the State Democratic Central Committee in certifying a nominee for the office of governor. This language from that opinion is directly in point here:
“ ‘Wherever the established distinction between equitable and common law jurisdiction is observed, as it is in this State, courts of equity have no authority or jurisdiction to interpose for the protection of rights which are merely political, and where no civil or property right is involved. In all such cases, the remedy, if there is one, must be sought in a court of law. The extraordinary jurisdiction of courts of chancery can not, therefore, be invoked to protect the right of a citizen to vote or to be voted for at an election, or his right to be a candidate for or to be elected to any office. Nor can it be invoked for the purpose of restraining the holding of an election, or of directing or controlling the mode in which, or of determining the rules of law in pursuance of which, an election shall be held. These matters involve in themselves no property right but pertain solely to the political administration of government.’ ”

None of the parties raised the issue of jurisdiction in this matter, but as we also stated in Catlett v. Republican Party of Arkansas, Supra, at page 285:

“It is immaterial that the parties have not raised the issue of jurisdiction, for, as we held in Sheffield v. Heslep, 206 Ark. 605, 177 S. W. 2d 412 (1944): ‘Even though both sides in the present litigation have asked this court to pass on the eligibility of Heslep, nevertheless we cannot do so in this equitable action, because there is no foundation for equitable jurisdiction.’ Nor was the situation changed by the passage of our declaratory judgment statute, because that act empowers a court of equity to render a declaratory judgment only when the subject matter is within the jurisdiction of chancery. Jackson v. Smith, 236 Ark. 419, 366 S. W. 2d 278 (1963).”

Since the Chancery Court of Garland County was without jurisdiction, this cause is reversed and dismissed.

Holt, J., not participating.


author: Carleton Harris, Chief Justice.

text:
    Jack B. OLIVER et al v. Paul N. HOWARD Co. et al
    5-5358
    460 S. W. 2d 91
    Opinion delivered November 16, 1970

      Frances D. Holtzendorff, for appellants.

      William H. Sutton and Phillip Carroll, for ap-pellees.
   Carleton Harris, Chief Justice.

Jack Oliver and others, appellants herein, instituted suit against Paul N. Howard Company and Spears Tunnelling Corporation, appellees herein, alleging property damage against appellee’s construction companies resulting from dynamite blasting. On trial, the jury returned a verdict for appellees. Subsequent thereto, appellants filed a motion for a new trial, alleging inter alia, “That the questions propounded to the jurors testing their qualifications were not answered as required by law, to the detriment of the plaintiffs”. The motion was heard by the court and overruled. From the order so entered, appellants bring this appeal. The sole ground for reversal is as stated above, and it is contended that the trial court should have set aside the verdict and granted a new trial.

While the point for reversal is as stated, the contention actually is that Shannon Reed King, a juror who served in the case, did not disclose the fact that he was connected with the building business. King was employed by a supplier of door and building specialties.

The motion was supported by the affidavit of Thomas F. Davis, said affidavit being as follows:

“That I was a spectator in the Third Division Circuit Court on Tuesday, November 25, 1969, at the commencement of the case of Oliver and Hampton v. Paul N. Howard Company and Spears Tunnelling Corporation. Further, that I was not a party, juror, witness, nor court personnel involved in the action, but merely an on-looker.
I was present during the questioning of prospective jurors by the attorneys for the parties and heard Mr. Dale Price ask the jurors if any of them were engineers, or connected in any way with the building trade, or if any had been suppliers of materials to the Paul N. Howard Company, Spears Tunnelling Corporation or Chapman Brothers. I recall only three jurors indicating answers to his questions. One stated that he was an engineer with the Telephone Company, and two others stated that they had done business with the Paul N. Howard Company. No one else held up his hand indicating that he was engaged in or was connected with the building trade.”

At the hearing, appellant called Mr. King and Mr. Davis to testify. King testified that, at the time of the trial of the case, he was an employee of the Will B. Erwin Company, being a salesman or an estimator. King said the company was an acoustical ceiling subcontractor, and was a supplier of window units, doors, appliances, and other materials for contractors; that in his position with the company, he did sell to, and make estimates for contractors, architects, and occasionally engineers. King recalled that on voir dire, inquiry was made by one of the attorneys as to whether any of the jury panel were engineers, and he also remembered that the jurors were asked if any did business with Paul N. Howard Company or with Spears Tunnelling Corporation. He said he did not remember that the panel was asked whether any members of the panel were engaged in the building business in any way, and added that if such a question had been asked, he would quickly have responded, stating, "I would have been glad to raise my hand because I needed to work that day a lot worse than I needed to be a juror”. He remembered that the panel was told in the beginning that the trial would likely take three days, and he stated “That made me doubly want to be off”.

Mr. Davis, the former husband of one of the attorneys for appellants, testified that, finding things dull at the Marion Hotel, he “wandered up to the courthouse to visit”. He said that he had knowledge that the case under discussion was set for trial, "but it was a civil case, and it was certainly a secondary thing, I was just idling”. The witness stated that he had known Mr. Oliver, one of the appellants, for several years but had not seen him for a number of months until he saw him in the courtroom. Davis’ testimony was not quite so definite as his version in the affidavit. In referring to the examination of the panel by one of the attorneys for appellants, Davis said:

“The thing that I recollect was his inquiry about an association in the engineering field. It was my thinking that he was inquiring about who worked as an engineer or related fields to engineering, having to do with construction. Then, there was an inquiry about the relationship of the jurors to these three companies and that was very confusing to a bystander, I had a rough time trying to keep up with it, and I will say frankly that I didn’t, there was such an interweaving of names. But, in this thing to the jury, in addressing the jury, there was this inquiry about whether or not the jurors were associated either in businesses of selling to the suppliers, that sort of thing, or as you have described it, are you associated with the building trade as a supplier to these people that are in the courtroom.”

He said that he did not recall any other questions asked by appellant’s attorney of the jurors except those mentioned in the affidavit. Of course, we have held that the complaining party must show that diligence was used to ascertain a juror’s disqualification, and to prevent his selection as a juror, before he can raise the eligibility of the juror to serve (after the verdict has been rendered). Arkansas State Highway Comm. v. Kennedy, 233 Ark. 844, 349 S. W. 2d 133. In this connection, it might be mentioned that persons selected for jury service in Pulaski County fill out a “juror ques-tionaire” which is placed in a box and left in the clerk’s office for the use of lawyers. King filled out such a questionaire giving inter alia his name, age, marital status, occupation, and employer. To this last, King had stated “Salesman and Estimating, Will B. Erwin Co., Inc., Little Rock, Arkansas”. A sheet from the yellow pages of the telephone directory was offered in evidence which reflects a 2/" x 5" ad of the Erwin Company advertising “All types of doors and building specialties”.

We do not agree that the trial court committed error in refusing to grant a new trial. It is not suggested that Juror King was prejudiced or biased, only that he was “away in mind and spirit” when questions were being propounded, nor is there any showing that the substantial rights of appellants were materially affected by King’s presence on the jury. See Big Rock Stone & Material Co. v. Hoffman, 233 Ark. 342, 344 S. W. 2d 585. In fact, it only appears from the argument that appellants might have exercised a peremptory challenge on King rather than on some other member of the panel. While carrying no weight in the case before us, it is interesting to observe that the jury verdict was unanimous.

As previously mentioned, whether the question at issue was actually asked is in dispute. The applicable rule is stated in Fones Bros. Hardware Co. v. Mears, 182 Ark. 533, 32 S. W. 2d 313, where this court, quoting an earlier case, said:

“We have stated the rule on this subject to be that ‘when objection is made to a juror after the verdict for the first time, due diligence must be shown by the objecting party,’ and that it then ‘becomes to some extent a matter of discretion with the trial court as to whether or not the verdict shall be set aside; and when there is no fraud intended or wrong done or collusion on the part of the successful party, it is not reversible error for the trial court to refuse to set aside the verdict.’ ”

Under the facts and circumstances of this case, we have no hesitancy in stating that there was no abuse of discretion.

Affirmed.

         Durben v. Montgomery, 145 Ark. 368, 224 S. W. 729.


text:
    WHISTLE-VESS BOTTLING CO. v. T. A. OWENS
    5-5375
    459 S. W. 2d 562
    Opinion delivered November 16, 1970

      Wright, Lindsey ir Jennings, for appellant.

      Acchione ir King, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from a judgment rendered against Whistle-Vess Bottling Company, appellant herein, and in favor of T. A. Owens, appellee, who was injured in an accident in Little Rock on December 16, 1965. Owens, a member of the Little Rock Police Department, was operating a police motorcycle on West Third Street on the date in question, and received a call to assist another officer at Second and Summit Streets. Just prior to the accident, both appellee and appellant’s soft drink truck were traveling west on Third Street, both vehicles being in the inside lane nearest the yellow center line. The officer testified that he noticed the truck as it pulled away from the signal light at Third and Cross, at that time quite some distance ahead of him. There was also a blue pick-up truck traveling just abreast of the soft drink truck in the outside lane. Owens said that he made several attempts to find an opening to get through the two trucks but none was available. At Third and Victory, he observed that the east bound traffic had sufficiently cleared for him to attempt to pass, and he accordingly started to the left of appellant’s truck. According to the officer, no signal for a turn was made by the truck driver but the vehicle commenced a left turn, and the motorcycle struck the truck, and then went out of control. As a consequence, Owens was injured, and his injuries are not questioned on this appeal. Appellee testified that the red lights on the handle bars of the motorcycle were burning (in a constant, rather than a blinking light), that he had blown his horn several times previously, and also blew it before starting around the truck; admittedly, he did not sound his siren at any time. While the question of substantial evidence to support the jury verdict is not at issue on this appeal, it might be mentioned that one apparently disinterested witness testified that the truck did give a left turn signal and another apparently disinterested witness testified that he did not see any signal for a turn. Only one point is relied upon for reversal of the judgment, viz, “The trial court erred in submitting to the jury instructions with respect to the law applicable to authorized emergency vehicles’’.

We agree that error was committed. Sub Section (b) of Section 75-725 Ark. Stat. Ann. (Supp. 1969), provides inter alia:

“Every authorized emergency vehicle shall be equipped with siren, whistle, or bell, capable of emitting sound audible under normal conditions from a distance of not less than 500 feet and of a type approved by the department, but such warning device shall not be used except when such vehicle is operated in response to an emergency call or in the immediate pursuit of an actual or suspected violator of the law, in which said latter events the driver of such vehicle shall sound said warning device when necessary to warn pedestrians and other drivers of the approach thereof.”

Subsection (a) of Section 75-625 Ark. Stat. Ann. (Repl. 1957), provides:

“Upon the immediate approach of an authorized emergency vehicle, when the driver is giving audible signal by siren, exhaust whistle, or bell, the driver of every other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to, and as close as possible to the right-hand edge or curb of the highway clear of any intersection and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.”

The court gave an instruction (AMI 912) relative to the duty of a driver of any vehicle to yield the right-of-way to an authorized emergency vehicle, and then gave a modified version of AMI 911 as follows:

“One issue you must decide is whether the police motorcycle was an authorized emergency vehicle at the time and place of the occurrence. If you find that T. A. Owen was responding to an emergency call and was operating an appropriate audible signal on the police motorcycle which he was driving, then the police motorcycle was an authorized emergency vehicle, and the driver was entitled to operate the vehicle in accordance with the following traffic law applicable only to emergency vehicles: * * * *”

Appellant objected generally and specifically to the giving of these instructions, the specific objection to AMI 912 being that there was no evidence in the record upon which a jury could find that the motorcycle operated by T. A. Owens at the time of the accident was an emergency authorized vehicle; the same objection was made to the modified version of AMI 911, with the added observation:

“That under the undisputed facts of the case, the only signal given by T. A. Owen was to blow his horn, which had been ineffective as a warning or signal during the blocks immediately preceding the accident, and that he must have used his siren or a whistle or bell as provided by Ark. Stats. Ann. 75-625”.

It is readily apparent that error was committed, for the statute makes clear that the audible signal by the emergency vehicle must be by siren, exhaust whistle, or bell. The instruction given by the court only required the jury to find that an appropriate audible signal was given by the operator of the police motorcycle, but this is obviously not the requirement of the statute.

Appellee recognizes that the instructions on emergency vehicles should not have been given, but he contends that no prejudicial error resulted since the court also instructed upon comparative negligence, and appel-lee takes the position that this was the basis of the jury verdict. Since we are likewise of the opinion that the evidence did not justify the giving of the instructions concerning emergency vehicles, we agree that the case would have to be decided upon the basis of comparative negligence but we cannot concur with appellant’s argument that any error in the giving of these instructions was harmless. The case of Gookin v. Locke, 240 Ark. 1005, 405 S. W. 2d 256, is not in point with the instant litigation for more than one reason, but, in disposing of this argument, it is sufficient to point out that no instruction was given in Gookin which changed the requirements of the law; to the contrary AMI 911 was given without any change, and there was evidence, though disputed, in that case that Officer Locke was operating his siren when the collision with Gookin occurred. In the case before us, the parties agree that no siren was being sounded, but the modified instruction permitted the jury to make a determination that the blowing of the motorcycle horn was sufficient warning that an emergency vehicle was approaching. Whether the jury actually took this view is immaterial, for we have said that prejudice is presumed from an erroneous instruction unless it can be clearly shown that it was not prejudicial. McCord v. Bailey, 195 Ark. 862, 114 S. W. 2d 840. Under the facts of this case, we are unable to say that appellant was not prejudiced by the erroneous instructions.

Reversed.

       The testimony reflected that the police department had received a report that an officer was attempting to apprehend a subject in a house and that Owens had been directed to go to the assistance of that officer. In such a case, the officers endeavor to get to the location with as little noise as possible in order to prevent the law violator from knowing that they are there. This was the reason given for not sounding his siren.

       Our emphasis.


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    EMPLOYMENT SECURITY DIVISION, ARKANSAS DEPARTMENT OF LABOR v. SHILOH TRUST and SHILOH SERVICE STATION
    5-5366
    460 S. W. 2d 66
    Opinion delivered November 16, 1970
    [Rehearing denied December 21, 1970.]

      Herrn Northcutt, for appellant.

      Putman, Davis fr Bassett, for appellees.
   George Rose Smith, Justice.

This is a proceeding to determine the taxability of Shiloh Trust under the Employment Security Law. Shiloh Trust is a small nonprofit organization that operates, among other activities, a service station at Sulphur Springs, Arkansas. In 1969 the appellant, the Employment Security Division of the Labor Department, issued a written determination holding that Shiloh Trust is liable for contributions under the law with respect to the remuneration it pays to its service-station attendants. On appeal that determination was affirmed by the Board of Review. The circuit court reversed the Board’s decision, holding that the attendants do not perform services for wages and that no employer-employee relationship exists. The question here is whether there is substantial evidence to support the holding of the Board of Review. Terry Dairy Products Co. v. Cash, 224 Ark. 576, 275 S. W. 2d 12 (1955).

Shiloh Trust, as an entity, is so nearly unique that it must be described in detail rather than by reference to familiar legal concepts. We should note at the outset that when gaps appear in the proof, as they will, the omission is Shiloh’s responsibility, for it has the burden of proof in seeking an exemption under the Employment Security Law. McKinley v. R. L. Payne & Son Lbr. Co., 200 Ark. 1114, 143 S. W. 2d 38 (1940).

Basically, Shiloh is a comparatively small, self-sufficient organization, apparently having some interdenominational religious aspects. The organization originated in Sherman, New York, where it still conducts its largest activity: the sale to the public of what are referred to as “natural” foods. Shiloh also sells paper injectors (a patented device) and runs the filling station now in question.

In August of 1968 Shiloh moved its headquarters and most of its members to Sulphur Springs. There it bought and now occupies 118 acres that are the site of a dormitory and other buildings formerly owned by John Brown University. Shiloh has from 20 to 25 members in Arkansas and a few others in New York. The membership evidently includes some families with children.

The Reverend James Janisch, whose denomination and ecclesiastical standing are not shown, is the sole trustee of the Trust and is the “pastor” of the group. He testified that Shiloh is basically a religious organization, though the record reveals nothing about the the group’s religious activity, nor is it indicated that any outsider participates in or receives benefit from the group’s religious endeavors.

Mr. Janisch gave this account of the members’ daily life: They begin the day at six o’clock with an hourlong meeting, the nature of which is not shown. After breakfast together the members go to their assigned duties, which are described only as including “co-ordination as well as inspiration.” The members lunch together and then resume their duties. They again assemble for dinner, after which there may be other work to do. If not, the members may linger for fellowship or engage in recreation of their own choice.

Our decision turns primarily upon Shiloh’s property holdings, its business activities, and its payments to its members. The formal Trust was created in New York by Shiloh’s founder, E. Crosby Monroe, who executed the governing declaration of trust in 1952. In that document Mr. Monroe declared that he held certain real and personal property in trust, as Trustee of Shiloh. The net income is to be used, in the trustee’s uncontrolled discretion, exclusively for religious, charitable, scientific, literary, or educational purposes, which may include the rehabilitation, physically, mentally, and spiritually, of persons in need thereof; the provision of necessaries for needy persons; the maintenance of a school for instruction in religious subjects; and the carrying on of farming, processing of farm products, and marketing of such products. No part of the income or principal of the Trust is to inure to the benefit of any private individual except insofar as he is a beneficiary of the Trust.

Each successive trustee has almost unlimited authority in the acquisition, management, and disposition of the trust property. The trustee, among other powers, can employ agents, clerks, or other employees and pay them reasonable compensation. There is an executive council, appointed by the trustee, but its only duties are to approve the trustee’s accountings when the trustee chooses to submit them and to select successor trustees when vacancies occur.

Mr. Janisch, the third trustee in Shiloh’s history, testified that the trust property is worth more than $150,000. It includes real estate and stocks and bonds. The profits from the Trust’s three business activities are put into the trust fund.

All members of Shiloh receive their room and board free and are paid an allowance that varies in amount with age. Pre-school children receive $3.00 every four weeks. That allowance is increased in stages until it reaches $15.00 for students in the 11th and 12th grades. All adults receive $28.60 every four weeks, which is intended to provide for their clothing, toilet articles, minor medical bills, recreation, and other personal expenses.

The filling station at Sulphur Springs has been operated by a total of four Shiloh members. The station, which is leased to Shiloh, is open daily from 8:00 a.m. to 6:30 p.m. It services “pastoral vehicles” and sells petroleum products to the general public in competition with others.

The attendants at the station receive their regular benefits from the Trust: room, board, and $28.60 every four weeks. Mr. Janisch testified that all members of Shiloh receive their allowances whether they work or not, but he mentioned only one adult, almost 100 years old, who does not work. It is not shown how a person joins Shiloh or what is necessary for the maintenance of one’s membership. The Board of Review, however, could reasonably have concluded that the members are normally required to perform services for the organization, which obviously could not support an indefinite number of persons without receiving something in return.

We are of the opinion that the Board’s decision is supported by substantial evidence. The statutory definition of an “employing unit” includes a “trust . . . which has . . . one or more individuals performing services for it within this State.” Ark. Stat. Ann. § 81-1103(g) (Repl. 1960). The statute defines “employment” as any service performed for an employing unit. Id., subsection (i). “Wages” means all remuneration payable for personal services, including the cash value of remuneration paid in any medium other than cash. Id., subsection (n).

The Board could readily have concluded that Shiloh is an employing unit operating a filling station for profit and paying wages to its members who work there. We are not impressed by the argument that the Employment Security Law simply has no application to an organization such as Shiloh. True, Mr. Janisch testified that a member could not become unemployed, because he would receive his allowance even if he stopped working. The Board might nevertheless have believed that unemployment is an economic hazard to which the service station attendants are subject. Among other possibilities, the Trust might become insolvent and shut down the station, or an attendant might withdraw from Shiloh and consequently be discharged, or he might be expelled from the organization for failure to abide by its rules.

We cannot disregard the fact that, even though Shiloh is a comparatively small group, our decision serves as a precedent in other cases. Here we have a self-sufficient colony whose members are earning a livelihood by carrying on business activities in competition with others. If Shiloh is exempt, the same exemption might be claimed by larger co-operative groups engaged in substantial business ventures and paying their members much larger sums than those involved here. The end result would be to cast upon the competitors of the exempt organization an unfair share of the tax burden that is needed to combat unemployment.

We find no merit in Shiloh’s alternative contention, rejected both by the Board of Review and by the circuit court, that the Trust should be exempt as a “fund or foundation, organized and operated exclusively for religious, charitable, scientific, literary, or educational purposes.” Ark. Stat. Ann. § 81-1103(i) (6) (0). The controlling fact is not the recitations in the declaration of trust but the actual course of conduct pursued by Shiloh. At the hearing Shiloh failed to sustain its burden of proving its claim to exemption as an exclusively religious endeavor. To the contrary, the main aim of its commercial activities appears to be that of providing the living expenses of a small group of persons who have banded together as a self-supporting community. We note that Mr. Janisch testified, without producing documented proof, that the Federal Internal Revenue Service does not require Shiloh to withhold income taxes from its members’ allowances, but the reason given is that such payments are considered to be dividends. There is no proof that the dividends are tax exempt, nor would such an interpretation by the Internal Revenue Service be conclusive with respect to the intent of our Unemployment Security Law. Moreover, Mr. Janisch admitted that Shiloh pays property taxes and school taxes, which of course would not be due if Shiloh were an exclusively religious or charitable organization. Upon this point we find the Board’s decision to be amply supported by the proof.

Reversed.

Harris, C. J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. I disagree with the majority only in its finding substantial evidence that the services performed by the members of the Shiloh Trust in operating the service station were “for wages” as required by Ark. Stat. Ann. § 81-1103 (i) (5) (Repl. 1960). “Wages” for the purpose of the act are defined as “remuneration payable for personal services.” Ark. Stat. Ann. § 81-1103 (n) (Repl. 1960). As weird and unrealistic as the method of operation of the Shiloh Trust, in the existing world, may seem to us, I cannot agree that those persons operating the service station receive remuneration for their personal services.

The trust is described as having been initiated for the rehabilitation of man. The personnel utilized in the service station are drawn entirely from the members of the group and reside on the trust property. The member who started the station is now assigned to another operation. The allowance to each member is called a “student requirement.” It is determined solely by the age of the member. The chores or duties performed have no bearing upon the payment or its amount. People among the members who have reached “substantial” age and perform no services whatever receive the same allowance. One of these at Shiloh was stated to be an example. The income produced from the station is kept in a separate bookkeeping account, and the profit remaining after all bills are paid goes into the trust fund, from which allowances are paid to all members. A member who did not render any services would continue to receive his allowance. Four members have served at the service station, but. not all of them simultaneously. Little profit has been realized at the service station. No time records are kept on chores or assignments performed by members.

The findings made by the circuit court include the following:

The decisive point in issue it seems to this Court is whether services are being performed for compensation. On this issue a determination is being made that the members do not work for wages as reflected by the record presented in the case. Recognition is given to the fact that Shiloh does not withhold any State or Federal income taxes from the allowance and do not deduct anything for Social Security taxes. Too, the fact that the Internal Revenue Service has ruled that the allowances do not constitute wages and therefore requires no deductions or withholdings appears to be highly significant.
The Employment Security Act specifically states a declaration of State public policy. An examination of 81-1101 forces me to the conclusion that the individual members of Shiloh could never make claim against an employer; that there is no employer-employee relationship and that no contributions should be exacted.
In reaching this decision language used in the case of McCain, Commissioner of Labor v. Crossett Lumber Company, 206 Ark. 51, appears to be applicable:
“. . . in construing an act imposing a special tax, such as we have here, we must construe the same strictly against the State and favorably to the taxpayer, and all ambiguities or doubts therein respecting liability for such tax must be resolved in favor of the taxpayer.”

I submit that the eminent circuit judge was correct in his findings. Consequently, I would affirm his judgment.

I am authorized to state that Harris, C. J., joins in this dissent.


author:
Lyle Brown, Justice.
      John A. Fogleman, Justice,

text:
    Fred STUCKEY v. BANK OF TRUMANN et al
    5-5337
    459 S. W. 2d 572
    Opinion delivered November 16, 1970

      Gardner ir Steinsiek, for appellant.

      Barrett, Wheatley, Smith <tr Deacon, for appellees.
   Lyle Brown, Justice.

This litigation had its inception in the filing of a foreclosure suit by one of the appellees, Bank of Trumann, against C. E. Tolliver and Johnny Riley. Before foreclosure was perfected, the Bank of Trumann assigned the note and mortgage to the appellant, Fred Stuckey. The latter, as assignee of the bank, took the judgment in foreclosure. That judgment recited that Stuckey was entitled to be paid from monies then in the hands of another appellee, Jim H. Vandiver, clerk of the Poinsett County Chancery Court. The clerk had parted with the funds, having delivered them to C. E. Tolliver upon being assured that the note sued upon had been paid. All parties were permitted to intervene in the foreclosure suit, wherein they set up claims against each other as will hereinafter be detailed. As to the claims of Stuckey against Riley and Vandiver, the court granted Riley and Vandiver judgment on the pleadings. As to the claim of Stuckey against the Bank of Trumann, the bank’s demurrer to the evidence was sustained. Stuckey here challenges the court’s ruling in favor of Riley, Vandiver, and the Bank of Trumann.

Initially, C. E. Tolliver owned a liquor store located on a two-acre tract in Poinsett County. In 1963 he borrowed $5,000 from the Bank of Trumann and gave it a mortgage on the property. In February 1965, Tolli-ver sold the business to Johnny Riley and executed a contract of sale and purchase, and a warranty deed to the premises. A dispute arose relative to the contract, Tolliver contending he had never received all the purchase price. Tolliver filed suit against Riley, seeking cancellation of the written instrument. Tolliver deposited with the court two certificates of deposit given him by Riley when the written instruments were executed. He asked that the money be held by the clerk and paid out upon orders of the court. (Apparently it was anticipated that the money would be refunded to Riley upon cancellation of the written instruments, less any damages Tolliver might have suffered from the fact that Riley took charge of the liquor store and proceeded to operate it.) Riley’s contention of full payment and valid delivery of the instruments prevailed in that case and we affirmed. Tolliver v. Riley, 242 Ark. 467, 414 S. W. 2d 92 (1967). Subsequent to that decision the clerk of the chancery court was directed to disburse the $10,000, first in satisfaction of the note held by the Bank of Tru-mann, and the balance to Tolliver.

Our decision in Tolliver was handed down May 1, 1967. Jim Vandiver, court clerk and one of the appel-lees, testified that Tolliver and his attorney came to the clerk’s office shortly after the decision and requested delivery of the full deposit; that he was by them advised that the bank had been paid; that he called the bank and was advised to the same effect; and that he delivered to Tolliver and his attorney the $10,000. Subsequently thereto, so Vandiver testified, he took his mortgage record to the bank for marginal endorsement and was then advised that the indebtedness had been assigned to Stuckey.

Since December 1965, there had been pending in the Chancery Court of Poinsett County a foreclosure suit styled Bank of Trumann v. Tolliver and Riley. That suit was based on a delinquency in payment of the $5,-000 note made in 1963 to the bank by Tolliver. Riley was named because he naturally claimed some interest in the land by virtue of his transaction with Tolliver.

Early in February 1966, the Bank of Trumann verbally agreed to assign the Tolliver note and mortgage to Fred Stuckey, appellant here. That transaction was to be without recourse and with the right vested in Fred Stuckey to continue the foreclosure suit in the name of the bank. (Stuckey filed an amendment setting up the assignment.) The assignment was not recorded. Shortly thereafter — on February 16, 1966 — Tolliver presented to the bank teller a check drawn by Stuckey for the full amount of the debt. The teller marked the note paid and turned it over to Tolliver, along with a release deed made to Tolliver. When the bank president shortly discovered the transaction he executed the assignment to Stuckey and notified the latter of the teller’s transaction with Tolliver.

The foreclosure action proceeded to decree on May 24, 1968. The court awarded Stuckey judgment on the note and directed the clerk to pay the judgment from funds then held in escrow. The court had not been informed that the escrow funds had been released to Tolliver.

Upon being made aware of the court order the chancery clerk (Vandiver) forthwith petitioned for modification of the decree, asserting that he had released the funds upon being assured by Tolliver and the Bank of Trumann that the debt had been paid. He emphasized that he had no notice of the assignment to Stuckey. Vandiver asked that Stuckey be required to release the lien; and alternatively Vandiver asked for judgment against the bank and against Tolliver.

The Bank of Trumann answered the pleading of the clerk. It was there asserted that the bank’s advice to the clerk was that the bank had been paid. It specifically denied advising the clerk that the note itself, which the bank knew to be in the hands of Stuckey, had been extinguished.

Riley responded by asking for judgment against the bank in case the land sold for the debt. Alternatively he prayed judgment against the clerk if the bank was held not to be liable.

. Still another and important issue was raised by amendments to the multitude of pleadings we have summarized. Both Riley and the clerk alleged that the Bank of Trumann had released the mortgage prior to its assignment to Fred Stuckey; and that the note had been marked paid by» the bank and delivered to Tolliver, along with a deed of release. In reply to those allegations the bank admitted that on February 16, 1966, Tolliver presented it a check drawn by Stuckey, in return for which the bank marked the note paid and delivered it to Tolliver, along with a release deed. Subsequently and on the same day, so the bank asserted, it was informed that Stuckey’s check was not intended to be used to extinguish the note, but was for the purpose of perfecting an assignment; and that such an instrument of assignment was drafted and delivered to Stuckey.

Then came another amendment by Stuckey. He prayed that if he was barred from foreclosing due to actions of the bank, he recover from the bank as damages for breach of the written assignment given Stuckey by the bank. In that event he fixed his damages in a sum equal to the amount of the assignment.

Before any testimony was taken in the case, Van-diver and Riley introduced as a supplement to their pleadings, and by stipulation, the original note, the release deed, and the assignment. Thereupon each of them — Riley and Vandiver — moved for judgment on the pleadings. Those motions were granted. The principal benefit of the judgment in favor of Riley was to extinguish the lien and clear his title to the two acres. By the same token, Vandiver, the clerk, was relieved of any liability.

The effect of the recited rulings was to leave for determination the claim of Stuckey against the Bank of Trumann, namely that the assignment of the note by the bank to Stuckey carried an implied warranty that no action had been taken by the bank which had nullified the note and the security. On that issue the testimony revealed that before the assignment' of the note to Stuckey, the bank had marked the note paid and delivered it to Tolliver, along with a release deed. That action was taken by a teller when Tolliver brought a Stuckey check to the bank and paid the debt. That transaction was contrary to a prior arrangement between the president of the bank and Stuckey, wherein it was agreed that Stuckey would pay the debt, take an assignment, and proceed with the foreclosure. When the error was discovered the assignment to Stuckey was prepared and delivered. Then Jim Vandiver, the clerk, was called as a witness for Stuckey. He testified that when Tolliver and the latter’s attorney asked to draw down the $10,000 deposit, Vandiver called the bank; that he explained the purpose of his call and was assured that the debt had been paid; that several days later he contacted the executive vice-president of the bank about releasing the record; and that he was then advised that the note had been assigned.

We have recounted the essence of the proof made by Stuckey. Thereupon the Bank of Trumann demurred to the evidence and that motion was sustained. Stuckey appealed from the granting of that motion; additionally, Stuckey appeals from the judgments awarded on the pleadings to Riley and Vandiver.

The Judgments on the Pleadings. The judgment in favor of Riley was clearly proper. The escrow fund came from money, which Riley paid to Tolliver. The trial court vested in its clerk the responsibility of seeing to it that part of those funds be used to clear the lien against Riley’s property. The lien was in fact cleared by a release deed from the bank. No party, save Tolliver, who did not appeal, charged Riley with any misconduct relative to the release of the escrow money.

Likewise, we conclude that the judgment on the pleadings in favor of Vandiver, the clerk, was appropriate, insofar as Stuckey was concerned. (Stuckey is the only litigant who appeals from that action in favor of Vandiver.) It was revealed by the pleadings that Stuckey placed in Tolliver’s hands a check payable to the Bank of Trumann for the balance due on the Tolliver note; that the bank marked the note paid and executed a release deed; that the bank assured Vandiver that the debt had been paid; and that as a result of the recited transactions Vandiver released the funds to Tolliver. Stuckey cannot now be heard to complain about a transaction which Stuckey himself initiated. Nor can any mistake of the bank (due to lack of information possessed by the teller) be charged to Vandiver.

Appellant Stuckey contends that the motion for judgment on the pleadings is the same as a motion for summary judgment and asked us to set aside the judgments because the ten day notice provision in the summary judgment statute was not complied with. Ark. Stat. Ann. § 29-211 (c) Supp. 1969). When the Riley and Vandiver motions for judgment were made, Stuckey made no specific objection thereto. More particularly, if Stuckey called the court’s attention to the notice requirement of the statute, it is not in the record. He waited until the court had ruled on the demurrer and then made a general objection in the words, “note our exceptions to the ruling of the court.” Not only should the objection be timely made, but it should have been sufficient to apprise the trial court of the specific contention of error.

Appellant Stuckey further contends that there was a genuine issue of a material fact to be resolved. We do not agree as between Stuckey on the one hand and Riley and Vandiver on the other. All material facts as between them were so substantially agreed to as to leave no factual dispute to be settled; we think that conclusion is reflected from an examination of our comments on the pleadings.

The Sustaining of the Bank’s Demurrer to the Evidence. The action of the court must be sustained. Stuckey completely failed (in fact did not offer) to produce evidence of damages. It is not questioned that he owned the Tolliver note and that he obtained judgment thereon against Tolliver. The burden therefore was upon Stuckey to establish that the judgment, or some part thereof, was not collectible, and to further establish the amount of his damages by reason of being unable to foreclose on the lands in question. Also, when Stuckey accepted the assignment from the bank (without recourse) he did so with full knowledge of the Tolliver-bank transaction; in fact Stuckey retrieved the note from Tolliver.

Affirmed.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I would agree that a decree rendered only upon the evidence heard by the court after all parties had rested should be affirmed. I cannot agree, however, that either the judgment on the pleadings in favor of Vandiver or the sustaining of the bank’s demurrer was proper.

A motion for judgment on the pleadings is nothing more than a belated demurrer. Walker v. Von Wedel, 108 Okla. 292, 237 P. 86 (1925); Hirt v. Bucklin State Bank, 153 Kan. 194, 109 P. 2d 171 (1941); State v. Skagit River Navigation & Trading Co., 181 Wash. 642, 45 P. 2d 27 (1935); Art Bronze & Iron Works v. Beaman, 199 N. C. 537, 155 S. E. 166 (1930); Power v. Gum, 6 Mont. 5, 9 P. 575 (1886); Harman v. Yeager, 100 Utah 30, 110 P. 2d 352 (1941); Erickson v. Starling, 235 N. C. 643, 71 S. E. 2d 384 (1952). It questions the sufficiency of the pleadings of the adverse party to state a cause of action which would support a judgment in his favor, admitting, for the purposes of the motion, each fact well pleaded. Pennington v. Kross, 154 Kan. 667, 121 P. 2d 275 (1942); Arnote v. Southwestern Pipe & Supply Co., 189 Okla. 394, 117 P. 2d 529 (1941); Dixon v. Fulker, 155 Kan. 399, 125 P. 2d 364 (1942); Harman v. Yeager, supra. All such facts pleaded must be favorably construed and all fair inferences drawn in favor of the adverse party and all pleadings of the moving party left out of consideration. Hirt v. Bucklin State Bank, supra; Erickson v. Starling, supra. It also admits the untruth of the moving party’s allegations. State v. Skagit River Navigation & Trading Co., supra. It presents the question whether there is any issue of material fact stated in the pleadings. If there is, the motion should not be sustained. Redskin Mining Co. v. McNeal Machinery Co., 108 Okla. 213, 234 P. 985 (1925); Floyd v. Johnson, 17 Mont. 469, 43 P. 631 (1896); Pennington v. Kross, supra; Erickson v. Starling, supra. These motions are not favored by the courts and, when made, great liberality in construing the assailed pleading should be accorded. Harman v. Yeager, supra. They are to be granted only whenever it appears that one of the parties is entitled to judgment as a matter o£ law from conceded facts appearing from the pleadings making up the issues. Cole v. Thacker, 158 Kan. 242, 146 P. 2d 665 (1944); Peppers Gasoline Co. v. Mitchell, 190 Okla. 259, 122 P. 2d 998.

The directions to the clerk with reference to the deposit placed in his hands were explicit. They were:

That the Clerk of this Court should be ordered and directed to pay the present holder of the note and mortgage hereinbefore mentioned all amounts now due for principal and interest on said note and secured by the lien of said mortgage and that such payment should be made from the proceeds of the time deposit certificates now in possession of the Clerk and in the registry of the Court as herein-above mentioned; that in making such payment the Clerk of the Court shall require the present holder of said Note to mark such note “paid in full” and to surrender saime to the Clerk and further require the holder of said note to satisfy such mortgage of record and release the lien thereof.

The request for release of the deposit came from the unsuccessful litigant and his attorney. The record does not reflect that the information that the Bank of Tru-mann had been paid was confirmed either by the attorney for the adverse party, by the bank’s attorney of record, or for that matter by anyone at the bank having authority to act in such matters. As soon as the record was submitted to a properly authorized official of the bank for satisfaction, the true situation was disclosed. It does not appear that the note marked paid or the release deed executed by the bank was displayed to the clerk. Even after the bank’s officers had refused to enter satisfaction of the record, the court was not informed of the release of the funds placed in escrow. It seems to me that there was a material issue of fact as to the propriety of the clerk’s action under the circumstances.

Neither do I agree that failure to prove the amount of his damages justified sustaining a “demurrer to the evidence.” On appeal from the sustaining of such a motion, the evidence must be viewed in the light most favorable to appellant and given its strongest probative force in his favor, and the court’s action will be held proper only if such evidence when so considered fails to make out a prima facie case. Ashworth v. Hankins, 238 Ark. 745, 384 S. W. 2d 254; Keck v. Gentry, 238 Ark. 672, 384 S. W. 2d 242. I submit that Stuckey did show that the bank was liable to him for a breach of their agreement. Having done so, he was entitled to collect nominal damages, even if he did not show entitlement to a greater amount. Adams v. Adams, Executrix, 228 Ark. 741, 310 S. W. 2d 813. In the cited case, we remanded a chancery court decree with directions to award nominal damages. It was pointed out that some damages are always presumed to follow from the violation of any right.

We have consistently held that nominal damages may be recovered for the bare infringement of a right, for a breach of contract unaccompanied by actual damages, or when other damages from the violation of a right cannot be proved. Western Union Telegraph Co. v. Aubrey, 61 Ark. 613, 33 S. W. 1063; Cathey v. Arkansas Power & Light Company, 193 Ark. 92, 97 S. W. 2d 624; Brock v. Smith, 14 Ark. 431; Yaffee v. Fort Smith Light & Traction Co., 159 Ark. 636, 252 S. W. 925; Missouri & Arkansas Railway Company v. Treece, 210 Ark. 63, 194 S. W. 203.

I would reverse that part of the court’s decree granting the clerk’s motion for judgment on the pleadings and the bank’s “demurrer to the evidence” and remand the cause for further proceedings.