author: CoNley Byrd, Justice. JohN A. FoglemaN, Justice,

text:
    St. Louis Southwestern Railway Co. et al v. Ward Jackson, Adm'r et al
    5-4096
    416 S. W. 2d 273
    Opinion delivered June 5, 1967.
    [Rehearing denied July 26, 1967.]

      Barrett, Wheatley, Smith & Deacon, for appellant.

      Gordon & Gordon, for appellee.
   CoNley Byrd, Justice.

Appellants, St. Louis Southwestern Railway Company; W. D. Simpson, B. 0. Hank-ins and J. A. Massey, the crew on the train in question; and Gerald Slocum, the signal maintainer for the “Cotton Belt” Railroad, appeal from a judgment in favor of administrators of the estates of Tommy N. Jackson, Catherine Jackson, Tommy N. Jackson, Jr., and Melinda Jackson, all deceased. The Jackson automobile was the third car in a two-week period, from June 1 to June 14, 1964, to collide with a southbound train at the Fair Oaks crossing in Cross County where Highway 64 crosses the “Cotton Belt” tracks. In each of the three collisions the automobiles were driving into the sun either toward the east in the morning or toward the west in the afternoon; in each instance the automobiles hit either the second or third diesel of a southbound train; and in each instance all of the occupants of each automobile were killed. The flasher lights erected by -the Arkansas State Highway Department in 1940 and maintained by the railroad since that time were activated and blinking in each instance.

Highway 64 runs almost due east and west for a considerable distance on either side of the railroad, which runs in a northeast-southwest direction. Highway 39 from the north parellels the east side of the railroad tracks, and after intersecting Highway 64 eighty feet east of the tracks it crosses over and parallels the railroad on the west going south. There is also a gravel road south from Highway 64 which parallels the railroad on the east for approximately one half mile. About a half mile south of Highway 64 the “Cotton Belt” Railroad crosses the Missouri Pacific Railroad tracks. There was testimony showing that a westbound motorist traveling on Highway 64 could not see a southbound train until he was within 150 feet of the tracks, and that the view of an eastbound motorist was obstructed until he got within 50 feet of the tracks.

POINT I. The jury panel should have been quashed because the panel had served at the preceding term of the court.

Appellants rely upon Ark. Stat. Ann. § 39-225 (Supp. 1965) and Edens v. State, 235 Ark. 178, 359 S. W. 2d 432 (1962). We hold that the contention is not'well taken because the Second Division of the Conway- Circuit Court was temporarily established by Act 96 of 1965. This act specifically provided that jurors impaneled by the First Division were eligible to serve in the Second Division. In this situation the jury selected at the October term of the First Division was properly serving at the time of trial, even though the Second Division began a new term on the date in January when the case was tried.

POINT II. The trial court committed error in its ruling upon several points.

POINT 11(1). Permitting testimony of two other accidents which occurred at the crossing during the preceding two weeks.

Appellees contend that evidence of the prior accidents shows that they occurred under substantially similar conditions and that they were admissible to show a dangerous condition and notice of that condition on behalf of the railroad.

The facts show that for many years the railroad was approximately two and one half feet above the elevation of the highway and that, because of the difference in elevation, automobiles had to slow down to cross over the “hump.” During the latter part of 1963, Highway 64 was improved to the extent that it is now a 24-foot asphalt pavement with two shoulders, and the elevation has been raised practically even with the railroad so that automobiles no longer slow down to cross the railroad.

Following the improvement of Highway 64, on June 1,1964, at 8 -.35 a.m. and on June 6,1964, at 6 -.15 a.m. fatal accidents occurred at this same crossing. In each of these accidents a motor vehicle collided with either the second or third diesel unit of a southbound freight train. The accident at issue here occurred on June 14 at 5:25 p.m. and the motor vehicle also collided with the second diesel unit of a southbound freight train. All three accidents occurred under substantially similar conditions, in that the sun was rising and setting almost directly in line with the highway and was rather low on the horizon. The only difference in the factual situations is that the Jacksons were traveling west while the other two vehicles were traveling east. The obstruction to visibility of motorists to the north as they approach the crossing is substantially the same whether they are traveling east or west.

The railroad, through a request for admission of fact, admitted that C. C. Mitchell, Claim Agent for the “Cotton Belt,” following the first two collisions and before the collision in question, called the State Highway Department on June 10, 1964, and asked that a representative of the Highway Department go with him to check the Fair Oaks crossing. Mr. Mitchell at the time suggested that the trip be made during the week of June 21, but on June 15 he again called the Highway Department and made arrangements for Lester Jester of such Department to accompany him to Fair Oaks on June 17.

At the close of the trial, appellees offered the following instruction:

“You are instructed that evidence of prior accidents cannot be considered by you as evidence of negligence on behalf of the railroad company or its employees.
“Evidence of prior accidents is only admissible to show a dangerous condition and notice of that condition on behalf of the railroad company and its employees.
“Evidence of signs erected by the Highway Department after the accident cannot be considered by you as evidence of negligence on behalf of the railroad company or its employees.
“Such evidence can be considered by you only for the purpose of showing whether or not Tommy Jackson and Catherine Jackson were in the exercise of due care as they .approached the crossing.”

When appellants objected to the giving of the instruction it was withdrawn.

The annotation in 70 A. L. R. 2d 170 points out that 38 states and several of the federal courts have held evidence of a prior similar accident at the same place as the accident admissible to establish a dangerous or defective condition at the place in.question, where the dangerous condition of the place in question is at issue. In addition, 36 such states and several of the federal courts have held such evidence admissible to show defendant’s notice of the existence of the defect.

The annotation, 70 A. L. R. 2d 170, 172, states that the strongest attack on evidence of the type here considered has been based upon grounds of trial convenience rather than upon its lack of relevancy. In the earlier cases, the courts expressed the fear that if the evidence were received the trial would be disrupted by the necessity of investigating all the circumstances of the various incidents in question, and concluded that the most desirable solution was to exclude all such evidence. However, in more recent decisions the tendency has been to leave it to the trial judge in each case to determine whether the evidence should be excluded on the ground that it is collateral and to determine the extent to which the earlier accident can be investigated.

In Lindquist v. D. M. Union Ry. Co., 239 Iowa 356, 30 N. W. 2d 120 (1948), defendant had parked a box car on a crossing. It was charged that the railroad had failed to exercise ordinary care for plaintiff and others using the highway by knowingly creating a hazardous condition. In holding that the trial court erred in excluding testimony of other accidents, near-accidents, and observations of witnesses at the same place under the same or similar circumstances, the court said:

“ . . . One of the principal reasons for the rejection of such testimony is that- it injects collateral issues into the case on trial. However, this evidence is not offered upon any theory of liability on the part of appellee. No dispute is made as to the accidents, no recovery asked on account thereof, no increase in damages sought. It is merely showing that an accident did happen at the same place under substantially similar circumstances. It is no more an injection of collateral issues in this type of case than in other types of negligence cases in which we have upheld the admissibility of such type of evidence. See Moore v. City of Burlington, 49 Iowa 135; Frohs v. City of Dubuque, 109 Iowa 219, 80 N. W. 341; Spurling v. Incorporated Town of Stratford, 195 Iowa 1002, 191 N. W. 724 (defective sidewalk cases); Larson v. Stanton State Bank, 202 Iowa 333, 208 N. W. 726 (other fraudulent representations to show fraud in instant case); Crouch v. National Livestock Remedy Co., 205 Iowa 51, 217 N. W. 557 (ill effect of defective hog remedies upon other hogs); Graeser v. Jones, 217 Iowa 499, 251 N. W. 162 (evidence of a conversation, otherwise hearsay, to show the conversation was actually had).
“While the weight and credibility of such evidence is for the trier of fact, it would appear that it is relevant to the issues involved (the existence of a hazardous condition and notice thereof to the defendant) ; that by the great weight of authority, and based upon sound principle, such evidence is admissible as an abstract proposition ...”

In Sterling Stores, Inc. v. Martin, 238 Ark. 1041, 386 S. W. 2d 711 (1965) the issue was whether appellant had notice or knowledge of defective or dangerous condition of a swinging door. In holding evidence of prior occurrences admissible, we said:

“Where knowledge or notice of a danger or defect is in issue, evidence of the occurrence or near-occurrence of other accidents or injuries at a particular place or from the doing of a particular act or the employment of a particular method or appliance on occasion prior to the one in question is admissible to show that the person charged knew or should have known of the danger therein or thereat. ...”

The issue in Colyar v. Little Rock Bottling Works, 114 Ark. 140, 169 S. W. 810 (1914), was whether the bottling company had notice or knowledge of the defective or dangerous condition of an exploding bottle by which Mrs. Colyar was injured. One Sallie, a former employee of the bottling company, testified that during the three and one half years that he worked for the company, it was a common occurrence for bottles to explode while he was handling them without their having come into contact with anything; that he had instructions to replace customers’ broken bottles with bottles containing soda pop; and that he had cautioned his employer that too many bottles were exploding. Judge Frank Smith; writing the majority opinion, held that the issue of negligence upon the foregoing evidence should have been submitted to the jury.

In State v. Dulaney, 87 Ark. 17, 112 S. W. 158 (1908), we held that the court should have permitted evidence showing that Dulaney had accepted bribes on other occasions, to show that the money received in the instant case was received under the same scheme and for the same purpose.

In Hall v. State, 161 Ark. 453, 257 S. W. 61 (1923), a prosecution for larceny for wrongful conversion of warrants issued by the state auditor, proof that defendant on prior occasions had procured similar warrants of others and cashed them was held admissible to show intent or guilty knowledge.

Appellees here contend that the crossing was abnormally dangerous; that the railroad was negligent in operating its train at excessive speed because of the knowledge it had with respect to the alleged defective condition of the crossing; and that the railroad failed to use ordinary care to give a warning of the train’s approach reasonably sufficient to permit the traveling public to use the crossing with reasonable safety. Thus it is seen that the evidence of prior similar accidents on June 1 and June 6 was relevant to show both the abnormally dangerous condition of the crossing and the railroad’s notice or knowledge that there was something abnormally dangerous about the crossing.

In all. the cases cited herein in which this coui’t has held that evidence of prior occurrences was properly admitted or should have been admitted, no trial difficulty has been experienced regarding the investigation of collateral matters. It therefore appears that the expressed fears of the earlier decisions, that if such evidence were received the trial would be disrupted by the necessity of investigating collateral matters, are unfounded. The record here indicates that the proof of the two prior collisions and their similarity was taken .up with the trial court at a pretrial conference. When .the matter is thus handled, no surprise is forthcoming to either party and. the trial court, by determining who the witnesses are going to be and substantially what their testimony will be, can at that time exercise his discretion to determine whether admission of the testimony will, inject too many collateral issues.

Consequently, we hold that the trial court did not err in admitting testimony concerning the two prior accidents that occurred under substantially similar conditions for the purpose of showing the railroad’s knowledge of the condition of the crossing. Nor can we find anything in Fleming, Adm’x v. Missouri & Ark. Ry. Co., 198 Ark. 290, 128 S. W. 2d 986 (1939), which holds that such evidence may not be introduced to show notice and knowledge where the substantial similarity of the prior collisions to the present collision is shown.

POINT 11(2). Allowing evidence of changes made in the signal lights and in the highway signs subsequent to the accident.

The first point under this topic is that appellees were permitted to introduce evidence on direct examination that the signal lights were much brighter after the accident. Appellants also complain that such evidence was brought out on cross examination of their witnesses who had viewed the signal lights three days after the accident. The objection to such testimony is that changes were made in the signal lenses subsequent to the accident as part of a system-wide railroad dhangeover to new standard equipment and that the testimony that the lights were brighter after the accident was to suggest by inference to the jury that something had been done to the signal lights.

The record also shows that after the other two accidents and before this one, an experimental lens was installed on the top of the signal light on the southwest side of the crossing, but that the particular signal light was directed toward motorists traveling north on Highway 39 and could not be seen by those traveling west on Highway 64.

Appellees admit that evidence of subsequent repairs or precautions taken by the alleged tort feasor after an accident is not admissible to show negligence, but contend that evidence of subsequent changes, repairs, or precautions is admissible to show conditions at the time of the injury and for impeachment purposes. There is also a suggestion that it was admissible for purposes of the witnesses’ comparison of the lights before and after.

The direct testimony on changes in the signal lights at this railroad crossing poses a problem in the trial of a lawsuit where considerable time elapses between the collision and the trial. It would be almost impossible to impanel a jury, some or many of whom have not observed signal lights at crossings where appellants’ changeover lights have been installed. Jurors are expected and instructed to nse their common sense and observations in determining the fact issues between parties. In this situation a conscientious juror who bas become accustomed to tbe brighter and improved lights after the changeover may have good reason to doubt testimony about dimness of the signal lights at the time of the collision, unless he is made aware of the changes made after the collision and before trial for purposes of showing the conditions at the time of the injury.

The admissibility and inadmissibility of evidence is the subject of annotations in 170 A.L.R.7 and 64A.L.R. 2d 1296. The many cases there cited permit testimony to show changed conditions of matters viewed by jurors. See Panagoulis v. Philip Morris & Co., 95 N. H. 524, 68 A. 2d 672 (1949), change in condition of handrail between time of injury and view by jury; also Agler v. Schine Theatrical Co., 59 Ohio App. 68, 17 N. E. 2d 118 (1938), alteration to signboard after accident to show condition at time of injury.

An example of the direct testimony involved in the instant case is that of witness Bennie Holmes:

“Q. Was there any change in the lights after June 14, 1964, with reference to their intensity?
A. The lights are a lot brighter.”

Under the circumstances we hold that the trial court did not abuse its discretion in admitting the testimony to show conditions at the crossing at the time of the collision. Appellants did not ask that it be limited to that purpose, and they are not now in a position to allege error.

Because this issue is apt to arise on a new trial, we point out that such testimony was not admissible for purposes of comparison of the intensity of the signal lights. This does not mean, however, that appellees cannot use the one experimental lens installed for use of northbound traffic on Highway 39 for purposes of comparison. That lens does not fall into the category of subsequent repairs or precautions since it existed at the time of the collision.

The evidence elicited by appellees on cross examination of appellants’ witnesses Lester Jester and Lee Gibbons falls into a different category. After it was shown that their testimony concerned their observations made on June 17 following the collision on June 14, appellees were certainly entitled by way of explanation or rebuttal to determine whether any changes had been made in the signal lights between the date .of the collision and the date of their observations.

Appellants allege error in the admission of evidence relative to changes in the highway signs following the accident. Of course this testimony is not subject to the exclusion of subsequent repairs, because these changes were not made by appellants but by the State Highway Department. Further, such testimony was certainly admissible to explain that the signs and markings in the photographs introduced by appellees were placed there after the accident.

Appellants’ alleged error with respect to introduction of an inter-office memorandum of the State Highway Department arose in this manner. Lester Jester and Lee Gibbons, employees of the State Highway Department in the Planning and Besearch Division, testified that on June 17, 1964, at the request of the railroad’s Chief Claims Agent, they visited the Fair Oaks crossing; that the signal lights were visible from a distance of 1,500 feet back from the crossing; and that they made no recommendations, as a result of their visit, requesting any action by the railroad. On cross examination appel-lees brought out an inter-office memorandum prepared by the two witnesses. The memorandum in part states:

“. . . Three accidents have occurred at this location within the past two weeks resulting in seven fatalities. In all cases the vehicles involved hit the train with a hard impact indicating the drivers had not been made aware of the railroad crossing and the apparent danger. This section of highway has recently been widened and resurfaced and as a result the speed of vehicles has increased. It is believed that the proposed measures, in addition to the signs erected this week by Traffic Services Division, will properly alert the motorists of the railroad crossing involved. .
# # *
“Additional observances will be made with a representative of the railroad company on June 22nd and 23, 19.64, to study measures that may be taken by the< railroad company.”

Under the circumstances existing when the interoffice memorandum was presented, it was certainly admissible to impeach the testimony of the witnesses about the adequacy of the signal lights and to explain their statement that they had made no recommendations requesting any action by the railroad.

POINT 11(3). Permitting testimony showing that Tommy Jackson, driver of the automobile involved, was a good and careful driver.

This contention is without merit. See Bush v. Brewer, 136 Ark. 246, 206 S. W. 322 (1918) and Arkansas Power & Light Co. v. Cummins, 182 Ark. 1, 28 S. W. 2d 1077 (1930). We there held that where negligence is charged, the care and caution of the one charged therewith is relevant and a circumstance tending to disprove negligence. Likewise, it would be admissible to show that a person charged with negligence was a reckless driver as a circumstance tending to prove the fact.

POINT 11(4).- Permitting expert testimony relative to the coefficient of friction and that the crossing was abnormally dangerous.

For the purposes of showing the stopping distance of a vehicle traveling 60 miles per hour when approaching the crossing, appellees used the Safety Director for the Pepsi Cola Bottling Company of Tulsa, Oklahoma. The court permitted Mr. Coulson to testify about his experiments to determine the coefficient of friction and the stopping and braking distance of cars traveling 60 miles per hour when approaching the crossing. Appellants complain that these experiments were made in an automobile of a different make from that driven by the Jackson family. In this we find no error, for the coefficient of friction can be scientifically established. Furthermore, in this instance the witness stated that the make or model of the automobile involved would not make any appreciable difference.

We hold that the trial court erred in admitting the expert testimony about the abnormally dangerous condition of the crossing. The.facts submitted to the witness for the basis of his opinion were as follows:

1. The type of highway.
2. The speed of automobiles approaching the crossing..
3. The approach to the crossing — namely, a straight level highway running due east and west.
4. The advance warning signs.
5. The number of vehicles that daily cross the crossing.
6. The number of trains that pass the crossing daily.
7. The speed of the tráins.
.8. The angle of the approaches — namely, right angles. .
9.Obstruction to vision of motorist.
10. Obstruction to vision of train crew.
11. Previous accidents that bad occurred recently under similar conditions.
12. Distraction elements to motorists.
13. Bailroad crossing signals.
14. The kind of day.
15. The position of the sun.

Not a single one of the foregoing facts taken individually is beyond the comprehension of the average juror; nor can we find any reason to say that an average juror would not be competent to determine from the facts when considered together whether the crossing was abnormally dangerous. We have consistently held that it is prejudicial error to admit expert testimony on issues which could conveniently be demonstrated to the jury from which they could draw their own conclusions. See S & S Construction Co. v. Stacks, 241 Ark. 1096, 411 S. W. 2d 508 (1967). Therefore we hold that the trial court committed reversible error in admitting the expert testimony on the abnormally dangerous crossing.

POINT 11(5). Allowing railway regulations entitled “Special Instructions No. 2” to be introduced in evidence.

Appellees, over the objection of appellants, introduced a document entitled “Special Instructions No. 2.” These are detailed instructions which govern railroad employees in train, engine, yard, station and telegraph service as well as in maintenance of way and structures. Appellees’ counsel, when placing the document in evidence, advised the trial court that he did so in order to show the limitation on speed that the railroad had estab-listed at certain crossings otter ttan tte Fair Oaks Crossing.

No factual background was laid for tte introduction of tte document — i.e., no stowing of relevancy was made, relative to controls or conditions at otter crossings, at tte time tte document was introduced or later. Wtile we agree with appellees ttat they are entitled to stow on tte issue of speed ttat appellants tave slowed down at similar crossings wtere ttey tad tad notice of a dangerous condition, we ttink ttat before introducing regulations involving other crossings, there should first be a foundation laid to show some similarity of conditions. Furthermore, we ttink it was too great a burden on tte railroad to introduce a document regulating the speed of trains at every crossing in its whole system. It would be a Herculean task to furnish rebuttal testimony for tte myriad causes requiring reduction of speeds on all suet crossings in the whole system.

Questions involving tte admission into evidence of safety regulations to show negligence usually arise wtere there is a violation of tte regulations, and suet regulations are admitted as some evidence of tte measure of caution which ought to be exercised in situations to which tte rules apply. 50 A. L. R. 2d 16; 44 Am. Jur. Railroads § 626. Tte relevancy of tte safety regulations to tte issue on negligence is often shown by tte regulation itself, but such is not the case here. The fact that the railroad has regulations requiring tte reduction of tte speed of trains at otter crossings has no probative value to tte issues here involved until it is shown ttat tte reduction in speed was caused by a railroad safety policy toward tte public. Thus it can readily be seen ttat a regulation requiring tte reduction of speed at another crossing, because of a municipal ordinance, has no probative value wtere the issue is a violation of a company safety policy toward tte public.

Therefore, we told ttat it was error for the trial court to permit introduction of tte document without a foundation having first been laid and without limiting the document to crossings on which the foundation had been laid. In view of the fact that we are reversing this case because of the error set forth in Point 11(4) above, we need not decide whether this error was prejudicial. We make the explanation because the record is not clear that any portion of the document was read to the jury.

POINT 11(6). Giving an instruction on exces-sivespeed of trains.

The record, as will be pointed out under Point 11(7), infra, shows that there was sufficient evidence to go to the jury on an abnormally dangerous crossing. There is testimony that the view of the railroad track to the north by an approaching motorist was obstructed until the motorist got within 150 feet of the tracks. Many witnesses testified that the signal lights were dim and that when approaching the crossing when headed into either the early morning or late evening sun it was almost impossible to see the lights unless one was looking for them. One witness who worked nearby stated that it appeared to him that motorists traveling the highway often saw the train before they saw the lights. Furthermore, the testimony shows that there had recently been two similar accidents in which it appeared that the motorists were not made aware by the signal lights of the train’s approach, and that following these accidents the chief claims agent for the railroad called the State Highway Department and made an appointment to inspect the crossing some two weeks from that time.

While the testimony is that the motorists’s view of an approaching train was obstructed until he was within 150 feet of the track, we do not take this to mean that he could not have seen a train in any situation until he got within 150 feet of the track. In fact, the exhibits introduced and the inferences from the testimony indicate that when a train moves within a distance of approximately 200 feet or less to the highway, it is visible to a motorist at a distance greater than the 150 feet from the crossing.

Therefore, in view of the fact that the railroad and its train crew were put on notice that something was wrong at the particular crossing, and the fact that the sight distance by a motorist of an approaching train increased as the train «approached within 200 feet of the highway crossing, we hold that the issue of excessive speed was properly submitted to the jury. See Sherman, Adm’x. v. Missouri Pac. Ry. Co., 238 Ark. 554, 383 S. W. 2d 881 (1964) and Harper v. Missouri Pac. Ry. Co., 229 Ark. 348, 314 S. W. 2d 696 (1958). Under the circumstances here excessive speed of the train became a question of fact for determination by the jury.

POINT 11(7). Submitting issue of abnormally dangerous crossing to jury.

Our abnormally dangerous crossing instruction, AMI 1805, being based on our decision in Fleming, Adm’x v. Missouri & Ark. Ry. Co., 198 Ark. 290, 128 S. W. 986 (1939), which was given in this instance, provides as follows:

“Plaintiffs, Ward Jackson and Charley Eddy, Administrators, contend that the railroad grade crossing in this case was abnormally dangerous, and they have the burden of proving this proposition.
“If a railroad grade crossing is frequently used by the traveling public, if trains pass over it frequently, and if the crossing is so dangerous because of surrounding circumstances that a reasonably careful person could not use it with reasonable safety in the absence of special warnings, then it would be an abnormally dangerous crossing. Whether the railroad grade crossing in this case was abnormally dangerous is for you to decide.
“If you find that the crossing was abnormally dangerous, as I have defined that term, then it was the duty of the railroad to use ordinary care to give a warning reasonably sufficient to permit the traveling public to use the crossing with reasonable safety. ’ ’

Here the record shows a daily traffic count on Highway 64 at the Fair Oaks crossing from a low in May of 1,141 to a high in August of 1,899 cars per day. An average of 16.4 trains per day traveled over the crossing.

When we consider the obstructions to the motorist’s view of approaching southbound trains, the testimony relative to the dimness of the signal lights, and the frequency of use of the crossing by both motorists and trains, we hold that the evidence was sufficient to warrant the giving of the abnormally dangerous crossing instruction to the jury.

We do not construe Fleming, Adm’x v. Missouri & Ark. Ry. Co., supra, and Harper v. Missouri Pac. Ry. Co., supra, as holding that a railroad has discharged its duty to give a warning at an abnormally dangerous crossing where the signal lights are found, upon sufficient evidence, to be inadequate to give a warning to approaching motorists.

POINT 11(8). Permitting grandparents to recover damages for mental anguish occasioned by the death of grandchildren where the father of such children survived them.

Appellants’ contention here is based on the premise that Tommy Jackson lived some few moments after the death of his children. Based on this premise, appellants, relying on Peugh v. Oliger, Adm’x, 233 Ark. 281, 345 S. W. 2d 610 (1961), which limits recovery of mental anguish to the “heir at law” of a decedent, and Smith v. Smith, 229 Ark. 579, 317 S. W. 2d 275 (1958), contend that any cause of action for mental anguish died with Tommy Jackson.

There is testimony elicited from the conductor, J. A. Massey, and the brakeman, F. E. Senyard, Jr., from which the jury could find that all occupants of the automobile were killed instantly, and nnder these circumstances the issue was properly submitted to the jury.

It is true that when we had our mental anguish statute before us in Peugh, supra, we there limited recovery for mental anguish to “heirs at law” of the decedent. However, where a whole family is killed in a matter of moments, as is the situation here, the bench and bar should not expect a too literal interpretation of the words “heirs at law” as the same are used in Peugh. Act 255 of 1957, creating the right to recover for mental anguish,. certainly did not intend that right to be so limited.

POINT 11(9). We can find no merit in appellants’ contention that the case should have been submitted to the jury upon interrogatories. This is a matter within the sound discretion of the trial court. St. Louis S. W. Ry. Co. v. Robinson, 228 Ark. 418, 308 S. W. 2d 282 (1957).

POINT 11(10). We agree with appellants that it was error for the trial court to submit to the jury a form of verdict which required verdicts against all the defendants, including the employee defendants, if against any defendant.

POINT III. The court should have directed a verdict for employee defendants.

Appellees agree that the only negligence chargeable to W. D. Simpson, B. 0. Hankins and J. A. Massey under the issues in this case was the issue of excessive speed.

J. A. Massey, the conductor, was in charge of the train, and along with the engineer, W. D. Simpson, was responsible for the operation of the train. In view of the fact that we are holding that the issue of excessive speed was properly submitted to the jury, we must hold that the trial court properly denied the directed verdict as to them. However, there is no showing that B. 0. Hankins, the fireman, was charged in any way with the speed at which the train was rnn. Consequently we hold that he was entitled to a directed verdict in his favor.

The signal maintainer, Herald Slocum, was charged with negligence in failing to properly maintain the signal lights in that they were so defective they could not he seen. On this issue there is testimony showing that he had repaired the lights between the June 6 collision and the present collision on June 14, hut that the lights were so dim that they did not comply with standards established by the Association of American Bailroads and adopted by the Highway Department. Under the circumstances we are unwilling to say that he was entitled to a directed verdict.

POINTS IV and V. The court should have directed a verdict for all of appellants and the verdict of the jury was against the weight of the evidence.

As has been pointed out, there was sufficient evidence to submit to the jury the issues of excessive speed and abnormally dangerous crossing, and, except for the errors committed, the evidence was sufficient to sustain the jury verdict.

Therefore, for the errors heretofore set out, this case is reversed and remanded for a new trial against all defendants except B. 0. Hankins. It is reversed and dismissed as to B. 0. Hankins.

WaRD, Brown, and FoglemaN, JJ., eoncur.

JohN A. FoglemaN, Justice,

concurring. I concur in the result but not all the bases for reaching it nor in those holdings overruling certain assignments of error.

I would reverse on Points I, 11(1), 11(2), 11(4), 11(5) and 11(10). I would also reverse on failure to direct a verdict for appellant Hankins. On Point 11(1) I think the proper distinction is made in Railway Company v. Harrell, 58 Ark. 454, 25 S. W. 117. Such evidence is admissible only to show use of defective machinery and equipment and the knowledge of such use by the owner or operator, when it is impossible or impracticable to obtain direct proof of the particular fact. The evidence was not offered for this purpose and there was other evidence actually used to show that this was an abnormally dangerous crossing. With the proper foundation it might be used to show that machinery or appliances were defective and that the operator had knowledge thereof.

On Point 11(2) I do not think there was any jury view that required explanation, nor do I think we should assume that the jury was familiar with the conditions at the time of trial. After witnesses testified as to conditions on a later date, it was certainly proper to show the differences between conditions existing on the two dates. It was also proper to show which of the highway signs shown in pictures of the crossing were not in place at the time of the collision.


source: Caselaw Access Project

author: CoNley Byed, Justice. George Rose Smith, Justice, J. Fred Jones, Justice,

license: Public Domain

text:
    St. Paul Fire & Marine Ins. Co. v. Wood et al.
    5-4148
    416 S. W. 2d 322
    Opinion delivered June 5, 1967
    [Rehearing denied July 26, 1967.]

      Wright, Lindsey & Jennings, by Isaac A. Scott, Jr., for appellant.

      Rose, Meek, House, Barron, Nash & Williamson and Murphy & Arnold and H. David Blair, for appellee.
   CoNley Byed, Justice.

This appeal calls for construction of § 40 of the Workmen’s Compensation Act (Ark. Stat. Ann. § 81-1340 [Repl. 1960]) to determine whether an employee can settle his common law cause of action in negligence against a tort feasor free of any claims of his employer’s Workmen’s Compensation carrier, where the settlement documents specifically preserve all rights of the carrier.

The facts giving rise to this litigation show that on November 17, 1964, appellee Hershel Wayne Wood was injured while employed as a truck driver by Southern Farmers Association when a hydraulically operated auger on his truck came into contact with a high voltage line maintained by appellee First Electric Cooperative Corporation. As a result of the injury Wood was horribly and terribly burned, shocked, and injured; both feet have been amputated; and a hole was burned in his skull, with undetermined effects on his mind. Appellant St. Paul Fire & Marine Insurance Company, the Workmen ’s Compensation carrier for Southern Farmers Association, has expended in weekly benefits and medical payments through May 4, 1966, the sum of $26,116.68. In its pleading, St. Paul estimates that its expenditures will reach $50,000.

Following the injury, Wood filed an action against First Electric Cooperative Corporation for the sum of $500,000, alleging negligence on its part in the construetion and maintenance of its power lines in many respects. Appellee, Employers Mntnals of Wansan, is the liability carrier of First Electric and as such is the real party in interest as between it and First Electric.

Appellant St. Paul Fire & Marine Insurance Company intervened in Wood’s suit against First Electric under § 40 of the Workmen’s Compensation Act, seeking a lien in accordance with the act upon any recovery by Wood for compensation paid and to be paid him.

Before trial of Wood’s suit against First Electric, Wood and First Electric agreed on a figure which to their minds represented a fair settlement of the Wood phase of the case, but First Electric and St. Paul were unable to agree on a fair settlement of St. Paul’s subrogation claim. It was and is St. Paul’s position that it is entitled to receive, after payment of litigation costs and counsel fees, two thirds of any amount Wood might receive, up to the amount of St. Paul’s obligations under the Workmen’s Compensation Act.

The figure which Wood was willing to receive and Employers Mutuals was willing to pay for Wood’s end of the case was $78,000, provided Wood did not have to repay to St. Paul the Workmen’s Compensation benefits paid, and provided further that this would not affect his right to further compensation. Employers Mutuals was willing to pay said amount to Wood provided such payment would not make it automatically liable to St. Paul for compensation paid.

In an attempt to accomplish this purpose, Wood, First Electric and Employers Mutuals entered into an escrow agreement pursuant to which Employers Mutuals deposited with a bank at Batesville as Escrow Agent the sum of $78,000, and Wood deposited with the Escrow Agent his Release in the form hereinafter mentioned. The agreement provided in substance that, when it was determined by Wood and his attorney that Wood could receive this sum without being required to reimburse St. Paul for compensation paid and to be paid, then tbe Escrow Agent would deliver tbe $78,000 plus accrued interest to Wood, and tbe Belease to First Electric and its carrier. But if it be determined that Wood could not accept tbe money and deliver tbe Belease free of St. Paul’s claim, then tbe Escrow Agent would deliver tbe money plus interest back to First Electric and its carrier, and tbe Belease to Wood.

It was further provided in tbe Escrow Agreement that if it were determined that the effect of the proposed transaction would be to subject First Electric to liability to St. Paul for compensation paid or to be paid, without regard to negligence on tbe part of First Electric — that is, automatically — then the Escrow Agent would deliver tbe money plus accrued interest to Employers Mutuals and the Belease to Wood. It was also agreed that if these various determinations were not made until after the statute of limitations bad barred another suit by Wood against First Electric, then First Electric and its carrier, Employers Mutuals, would waive the defense of limitations; that .if the settlement was consummated, Wood would dismiss bis suit without prejudice, and such dismissal would not prejudice St. Paul’s right to pursue its claim against First Electric; that nothing in the agreement was intended to or should affect St. Paul’s right to do so, and that nothing in the agreement should constitute an admission of liability on the part of First Electric.

Finally, it was agreed that in any suit by Southern Farmers Association or St. Paul against First Electric to recover on its subrogation right under the Arkansas Workmen’s Compensation Act, First Electric would not plead as a defense the Belease referred to, except as it might be necessary to do so in order to avoid a recovery of more than had been and would be expended by St. Paul.

The proposed Belease is in conventional form, except that it contains recitals to the effect that the rights of Southern Farmers Association or St. Paul, which it may have by way of subrogation against First Electric, spe-eifically including all the rights given under § 40 of the Act, shall not be affected by the Release, and it recites the intention of the parties to leave unimpaired St. Paul’s right to litigate against First Electric in order to recover all Workmen’s Compensation benefits, past, present and future, paid to or for the benefit of Wood in discharge of its obligation under the Compensation Act.

Wood, to determine his rights under the escrow agreement, filed a cross-complaint, in the pending action, against St. Paul for a declaratory judgment. In this proceeding Wood sought to determine whether he could receive the settlement free of any claims of St. Paul; whether it would affect his rights to receive Workmen’s Compensation benefits in the future; and whether St. Paul would he free to assert its own cause of action against First Electric for compensation paid and to be paid.

The case was submitted upon a stipulation of the parties reciting, inter alia, the foregoing facts and also reciting that St. Paul took the position outlined in its letter of October 21, 1965, to the Workmen’s Compensation Commission, that there was a controversy between the parties as to the legal effect of the proposed settlement. St. Paul’s position in said letter was that it understood the case had been settled for $78,000; it claimed a lien thereon under the Act, for compensation paid and payable; and it requested permission to suspend payment of future compensation and future medical. The settlement, of course, has not as yet been consummated, but it is St. Paul’s position that if Wood accepts the money and executes the proposed Release, he will have to repay it for compensation paid and payable.

It was also stipulated that First Electric recognized St. Paul’s right to pursue its own statutory cause of action against First Electric as provided by law, and that if St. Paul did so, First Electric would not plead in bar of said cause, or as a defense thereto, the release from Wood, except as it might be necessary to prevent recovery for a sum in excess of compensation paid and to be paid. First Electric and Employers Mutuals acknowledge that the proposed settlement, if consummated, will not prejudice or impair such cause of action by St. Paul.

First Electric and Employers Mutuals by stipulation are parties plaintiffs to the cross-complaint filed by Wood against St. Paul.

Upon the pleadings and the stipulations, the trial court approved the proposed settlement as fair and reasonable and entered a declaratory judgment as prayed for.

For reversal, St. Paul relies on one point — i.e., the court should have denied the action of plaintiff for a declaratory judgment and granted St. Paul’s statutory lien against the settlement proceeds.

Section 40 of the Workmen’s Compensation Act (Ark. Stat. Ann. § 81-1340 [Repl. 1960]) provides:

“Third party liability. — (a) Liability imaffected.
(1) The making of a claim for compensation against any employer or carrier for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make claim or maintain an action in court against any third party for such injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in such action. If they, or either of them, join in such action they shall be entitled to a first lien upon two-thirds [%] of the net proceeds RECOVERED in such action that remain after the payment of-the reasonable costs of collection, for the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.
“(2) The commencement of an action by an employee or his dependents against a third party for damages by® reason of an injury, tw which this act [§§. 81-1301 — 81-1349] is applicable, or the adjustment of any such claim shall not affect the rights of the injured employee or his dependents to recover compensation, but any amount RECOVERED by the injured employee or his dependents from a third party shall be applied as follows: Reasonable costs of collection shall be deducted; then one-third [%] of the remainder shall, in every case, belong to the injured employee or his dependents, as the case may be; the remainder., or so much thereof as is necessary to discharge the actual amount of the liability of the employer and the carrier; and any excess shall belong to the injured employee or his dependents.
“ (b) Subrogation. An employer or carrier liable for compensation under this act [§§ 81-1301 — 81-1349] for the injury or death of an employee shall have the right to maintain an action in tort against any third party responsible for such injury or death. After reasonable notice and opportunity to be represented in such action has been given to the compensation beneficiary, the liability of the third party to the compensation beneficiary shall be determined in such action as well as the third party’s liability to the employer and carrier. After RECOVERY shall be had against such third party, by suit or otherwise, the compensation beneficiary shall be entitled to any amount recovered over and above the amount that the employer and carrier have paid or are liable for in compensation, after deducting reasonable costs of collection, and in no event shall the compensation beneficiary be entitled to less than one-third [%3 of the amount RECOVERED from the the third party, after deducting the reasonable cost of collection.
“(c) Settlement of claims. Settlement of such claims under subsections (a) and (b) of this section must have the approval of the Court or of the Commission, except that the distribution of that portion of the settlement which represents the compensation payable under this act [§§ 81-1301 — 81-1349] must have the approval of the Commission. Where liability is admitted to the injured employee or his dependents by the employer or carrier, no cost of collection shall be deducted from that portion of the settlement under subsections (a) or (b) of this section, representing compensation, except upon direction and approval of the Commission. [Init. Meas. 1948, No. 4, § 40, Acts 1949, p. 1420.]” (Emphasis ours.)

Section 40(a) (1) recognizes the employee’s common law tort action against third persons. It gives the compensation carrier a first lien upon two-thirds of the net proceeds “RECOVERED” in such action. Likewise, § 40(a) (2) provides that the employee’s commencement or adjustment of any such action against a third party shall not affect the rights of the injured employee to compensation benefits, but that any amount “RECOVERED” by the injured employee, after the reasonable costs of collection, shall be divided one-third and two-thirds to the employee and the carrier respectively, up to the amount paid or to be paid by the carrier.

Section 40(b) gives the compensation carrier the right to maintain an action in tort against any third party responsible for an injury to an employee. In doing so it provides that after “RECOVERY” shall be had against such third party “by suit or otherwise” the employee shall (after deducting the reasonable costs of collection) be entitled to any amount recovered over and above any amount paid or payable by the carrier. Furthermore it provides that in any event the injured employee is entitled to one-third of the amount “RECOVERED” from the third party after the deduction of the reasonable costs of collection.

Section 40(c) was before us in Winfrey & Carlile v. Nickles, 223 Ark. 894, 270 S. W. 2d 923 (1954). There a recovery was had upon a suit brought pursuant to § 40(a), and the issue was whether an attorney’s fee could be allowed upon the net recovery as determined by the circuit court or whether its allowance was prohibited by the second sentence of subsection (c) as determined by the Workmen’s Compensation Commission. We there held that subsection (c) applied only to compromise settlements and that the prohibition on the allowance of a fee therein did not apply to a recovery under subsection (a) (1).

It is observed that when dealing with the rights of the compensation carrier under subsections? (a) and (b), the statute uses the words “RECOVERED” and “RECOVERY.” “RECOVERY” is defined in Black’s Law Dictionary (3rd ed.) as follows: “In its most extensive sense, a recovery is the restoration or vindication of a right existing in a person, by the formal judgment or decree of a competent court, at his instance and suit, . . . ” Therefore by applying this 'technical definition to “RECOVERED” and “RECOVERY,” except where they are specifically qualified in subsection (b) by the use of the prepositional phrase “by suit or otherwise,” we can reach not only a practical construction of the statute, but one consonant with our prior decisions.

In Barth v. Liberty Mutual Insurance Co., 212 Ark. 942, 208 S. W. 2d 455 (1948), we had before us a consent judgment releasing in full the third party wherein the money had been paid into the registry of the court. Under the technical definition of the word “RECOVERED” above set out, the distribution of the funds in accordance with the provisions of subsection (a) was proper.

In Winfrey & Carlile v. Nickles, supra, we made the distinction of a compromise settlement under subsection (c) and a “RECOVERY” under subsection (a). The distribution there made is consonant with the technical definition of “RECOVERY.”

In Maxcy v. John F. Beasley Construction Co., 228 Ark. 253, 306 S. W. 2d 849 (1957), a compromise settlement fully releasing the third party had been reached after a suit, pursuant to subsection (a), bad been filed in federal court. Tbe matter came to tbis court from an order of tbe Workmen’s Compensation Commission distributing tbe proceeds wbicb first deducted tbe reasonable costs of collection and distributed tbe balance, one-tbird to tbe injured employee and tbe remaining two-tbirds to the compensation carrier. We pointed out tbe Commission’s authority to make the distribution of a compromise settlement under subsection (c), and approved as correct a distribution made in accordance with tbe statutory scheme authorized in subsections (a) and (b). Since the compromise extinguished tbe rights of tbe compensation carrier, it was tantamount to a recovery, and tbe Commission, under such circumstances in approving tbe same, properly followed tbe statutory scheme of distribution; but in so bolding, it does not follow that every compromise settlement is a “RECOVERY” within tbe meaning of subsections (a) and (b).

It is the policy of tbe law to encourage compromise settlements. If we should accept appellant’s construction of tbe statute, we would be discouraging them in many instances. In discussing tbe problem in Lang v. Williams Bros. Boiler & Mfg. Co., 250 Minn. 521, 85 N. W. 2d 412 (1957), it was said:

“Tbe vice of preventing settlement at all without tbe consent of tbe employer or his insurer is that tbe employee may then be put in a position where, against his will, be must face tbe uncertainties of a trial. While both employer and employee face tbe risk that tbe result of the trial will not equal the amounts offered in settlement or tbe amount wbicb must be paid in compensation, tbe employee’s burden probably is greater than that of tbe employer in that ordinarily tbe employee has no great resources upon which to rely if the gamble of a trial fails, whereas the insurer not only has greater resources but tbe case as to it is only one of many.”

Therefore the most reasonable and practicable construction of subsections (a) and (b) of § 40 is that the mandatory provisions thereof control where the action is prosecuted to judgment and that subsection (c) is controlling where there is any type of termination prior to the rendition of a judgment against the third party.

While § 40 recognizes that either the injured employee or the compensation carrier may initiate a tort suit against a third party, it requires that reasonable notice of the initiation of such cause of action be given to the other party. Thus there is but one cause of action. In this situation, can we hold that the rule against splitting a cause of action prohibits the compromise settlement here proposed by Wood and First Electric? The answer is that the rule against splitting a cause of action is for the benefit of the defendant to protect him against a multiplicity of suits, and in this instance First Electric and its insurance carrier have specifically agreed to a splitting of the cause of action between St. Paul and Wood.

It is observed that Wood, as an employee, is not obligated under § 40 to further pursue the present action. Nothing therein prevents him from taking a voluntary non-suit, nor would such action on his part affect his right to continue to receive compensation benefits.

In conclusion, we hold that St. Paul, as the compensation carrier, has no lien upon the proceeds of the compromise settlement here, negotiated. Under the terms of the proposed compromise, St. Paul has all of the right of subrogation against First Electric that was given to it by law and that it would have had if Wood had taken no action whatsoever. It follows that the trial court properly approved the proposed settlement between Wood and First Electric upon the terms and conditions there set out. To interpret § 40 in the manner suggested by appellants would require us to hold that the statute gives the employer or his compensation carrier a first lien upon RECEIPTS OF ANY MONIES RECEIVED FROM THE THIRD PARTY BY SUIT OR OTHERWISE. The statute does not so read.

Therefore the judgment appealed from is affirmed.

George Rose Smith, J., concurs.

HaeRis, C. J., and Brown & Jones, JJ., dissent.

George Rose Smith, Justice,

concurring. I should like to emphasize, somewhat more than the majority have done, the extent to which the equities in the case favor the claimant, Wood. Under the proposed settlement he will receive $78,000 in settlement of a claim which might well be worth $200,000 if he won the case before a jury. The Co-op’s liability, however, is by no means certain; in the event of a trial Wood might recover nothing. As a matter of simple justice he ought to be able to settle his claim as best he can.

On the other hand, St. Paul stands, after the settlement, exactly as it did before the settlement. That is, it is free to sue the Co-op in Wood’s name, so that as far as the jury is concerned the case will ostensibly be a genuine lawsuit brought by Wood. Yet, in attempting to block the settlement, St. Paul is in the attitude of being unwilling either to take the risk itself that it would force Wood to take or to indemnify Wood (as he has requested) for the loss of $78,000 if Wood proceeds with his lawsuit against the Co-op and loses. In such a situation our rule that the compensation act must be construed liberally in favor of the workman is peculiarly and demonstrably just.

J. Fred Jones, Justice,

dissenting. I cannot agree with what I consider to be the majority’s misinterpretation or misapplication of the workmen’s compensation law in this case.

Arkansas was the 47th state to adopt a workmen’s compensation law and the legislation in this field, as well as the philosophy upon which it is based, both in England and in this country, has a long and interesting history.

All Workmen’s Compensation Acts are in derogation of the common law and all of them provide for benefits to an injured employee during disability caused by industrial injury regardless of any negligence, and in spite of contributory negligence involved in causing the injury.

The laws vary to some degree in the various states. In some states the employer pays into a state fund out of which an employee is paid benefits during disability caused by injury sustained during the course of his employment. In other states, including Arkansas, an employer is required to carry insurance protecting the employee against compensable injuries, or the employer may, if he so desires, bear his own losses by qualifying-under the law as a self insured.

In some states when an employee is injured while in the course of his employment, but by the common law negligence of some third party, the employee must elect whether he will accept compensation benefits from his employer or the employer’s compensation insurance carrier, or whether he will pursue his claim against the third party tort-feasor. In Arkansas the injured employee may do both. He may claim his compensation benefits from liis employer or the employer’s insurance carrier and at the same time he, or his employer, or both of them together, may pursue the claim against the third partv- tort-feasor under Ark. iStat. Ann. § 81-1340 (Repl. I960).

It is the text and intent of § 81-1340, that the employer, or his insurance carrier, shall be liable in any event to the injured employee for injury growing out of, and occurring within the course of the employment. It is also the text and intent of $ 81-1340, that the employer, or his insurance carrier, recoup all or a part of the losses they pay in compensation benefits, out of damages recovered from the third party tort-feasor whose negligence caused the employer, or his insurance carrier, to be liable for the compensation benefits and whose negligence caused the employee to suffer injuries and damages. In such a case both the employer and the employee have been damaged by the same tort-feasor and in the same accident, and by the same negligent act, and they share in the same recovery by action, settlement, or otherwise.

It should be remembered that the very same act that gives the employee his right of recovery against his employer regardless of fault, and at the same time preserves his common law right of recovery from a third party causing his injury, also gives to the employer a right to share in the recovery from the third party causing the injury, to the extent and only to the extent, of what the employer has been forced to pay and will be forced to pay, because the injury caused by the third party and through no fault of the employer.

It is my view that when appellant joined in.the action in this case, it perfected its lien on two-thirds of the net proceeds recovered, or that will be recovered, from the third party tort-feasor (or its insurance carrier) in this case under the plain wording-of paragraph (a) (1) of Ark. Stat. Ann. § 81-1340 (Repl. 1960), and I am of the view that except for the majority opinion in this case, it would require an act of the Arkansas Legislature to remove that lien. It is my further opinion that even an act of the legislature could not remove the lien that has already attached in ¿Ms case.

The employee’s right of action against a third party and the employer’s share therein are carefully and clearly'set out in Ark. Stat. Ann.' § 81-1340 (Repl. 1960). This statute is sound in logic; it is sound in principle, and the plain wording of the statute has been fully administered in Arkansas and its plain meaning never questioned until now. But now, by what I consider a strained interpretation of the word “recovered” the majority destroys not- only the subrogation rights of' an employer, or his insurance carrier, in the first $78,000'.00 of a recovery from a third party tort-feasor, but destroys and repeals a statutory lien fixed by law on that amount.

Ark. Stat'. Ann. § 81-1340 fa)' (1) is as follows:

“The making of a claim for compensation against any employer or carrier*for the injury or death of an employee shall not affect the right of the employee, or his dependents, to make claim or maintain an action in court against any third party for such injury, but the employer or his carrier shall be entitled to reasonable notice and opportunity to join in such action. If they, or either of them, join in such action they shall he entitled to a first lien upon two-thirds [%] of the net proceeds recovered in such action that remain after the payment of the reasonable costs of collection, for the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.” (Emphasis supplied.)

All of the recovery against a third party tort-feasor in a compensation case, simply does not belong to the injured employee. That part of the recovery for injury which the employer has already paid, belongs to the employer, or his insurance carrier, and by joining in a cause of action against the third party the employer perfects his statutory lien.

The legislature carefully preserved the employee’s right to compensation benefits from his employer under the act, regardless of the action or its results against the third party, and the legislature carefully and definitely set out how the amount recovered from the third party, either in an action for damages- or the adjustment of a claim, shall be divided between the employee and the employer, or its insurance carrier. Ark. Stat. Ann. § 81-1340 (2), is as follows:

“The commencement of an action by an employee or his dependents against a third party for damages by reason of an injury, to which this act [§§ 81-1301— 81-1349] is applicable, or the adjustment of any such claim shall not affect the rights of the injured employee or his dependents to recover compensation, but any amount recovered by the injured employee or his dependents from a third party shall be applied as follows: Reasonable costs of collection shall be deducted; then one-third [Vs,] of the remainder shall, in every case, belong to the injured employee or his dependents, as the case may be; the remainder, or so much thereof as is necessary to discharge the actual amount of the liability of the employer and the carrier; and any excess shall belong to the injured employee of his dependents.” (Emphasis supplied.)

Thus it is seen that the rights of the employer, or his insurance carrier, and the rights of the employee are merged into a single cause of action against the third party tort-feasor causing the injury and loss. These two subsections (a) (1) and (2) not only place the employer and injured employee in common interest with a single cause of action against the third party, these subsections specifically spell out how the recovery from the' tort-feasor is to be divided between the employer and employee where the employee brings the action or compromises the claim. Where the employer, or his carrier, joins in the action, a lien is perfected under (a) (1) and where they do not join in the action or where there is no action brought for them to join in, the employer, or his insurance carrier, is still entitled to the same amount under (a) (2), but no lien can be perfected.

If for any reason the employee is satisfied with compensation benefits and does not see fit to pursue his claim against the third party tort-feasor, the ‘ employer, or his insurance carrier, may do so. But in that event, the employee must be notified, so that he may employ his own counsel if he desires to do so. The injured employee is not required to intervene at all in the cause of action brought by the employer or insurance carrier. The employee may simply continue to receive his compensation payments and do nothing in the third party action and still be entitled to exactly the same division of any recovery as he would be entitled to had he brought the action and the employer had intervened under (a) (1), or had sued or settled without joinder of action under (a) (2). Ark. Stat. Ann. § 81-1340 (b) (Repl. 1960) is clear and unambiguous as to the rights of the parties where the employer, or carrier, brings the action, and this section is as follows:

“An employer or carrier liable for compensation under this act [$§ 81-1301 — 81-1349] for the injury or death of an employee shall have the right to maintain an action in tort against any third party responsible for such injury or death. After reasonable notice and opportunity to be represented in such action has been given to the compensation beneficiary, the liability of the third party to the compensation beneficiary shall be determined in such action as well as the third party’s liability to the employer and carrier. After recovery shall be had against third party, by suit or otherwise, the compensation beneficiary shall be entitled to any amount recovered over and above the amount that the employer and carrier have paid or are liable for in compensation, after deducting reasonable costs of collection, and in no event shall the compensation beneficiary be entitled to less than one-third [%] of the amount recovered from the third party, after deducting the reasonable cost of collection.”

Thus we see that there are three methods of procedure in third party compensation cases: (a) (1) — The employee may commence the action and the employer, or his carrier, join and perfect its lien, (a) (2) — The employee may bring an action or compromise with or without action and the employer, or carrier, do nothing, (b) —The employer, or carrier, may bring an action and the employee do nothing.

Under the provisions of § 81-1340, the division of the proceeds between the employee and his employer, or carrier, recovered from the third party is exactly the same whether the employer joins in an action brought by the employee under (a) (1), or doesn’t join in action brought or adjustments made by the employee under (a) (2), or is brought by the employer or his insurance carrier alone under (b). The only difference being that the employer has a lien when he intervenes or joins the employee in a cause of action under (a) (1).

When the compensation carrier joined in the action in the case at bar, it fixed its statutory “first lien upon two-thirds [%] of the net proceeds recovered in such action that remain after the payment of the reasonable costs of collections, for the payment to them of the amount paid and to be paid by them as compensation to the injured employee or his dependents.”

The injured employee in this case has a right to. adjust his claim against the tort-feasor for $78,000.00 and such adjustment “shall not affect the rights of the injured employee .or his dependents to recover compensation, but any amount recovered by the injured employee * * should be (the statute says ‘shall be’) applied as follows: Reasonable costs of collection shall be deducted; then one-third [%] of the remainder shall in every case belong to .the employee * * * ; the remainder, or so much thereof as is necessary to discharge the actual amount of the employer and the carrier; and any excess shall belong to the injured employee * * * .”

Winfrey So Carlisle v. Nickles cited by the majority is anemic precedent for their holding in this case. In the Nickles case the compensation carrier was paid its two-thirds of the recovery as has always been done until now, and no question arose as to that being the proper distribution under the law. The argument in the Nickles case was whether the court or the commission would approve the attorney’s fees on that portion of. the settlement representing compensation. Section (c) of Ark. Stat. Ann. § 81-1340 is not involved in the case at bar.

I. am unable to follow the reasoning of the majority on their construction of this court’s holding in Barth v. Liberty Mutual. In the Barth case the claimant drew all he was entitled to draw under the Compensation Act. He then attempted to defeat the employer, or compensation insurance carrier’s, rights in two-thirds of the recovery against a third party by simply bringing an action for pain and suffering (not compensable under the act). He settled his claim by consent judgment and this court simply affirmed the trial court in holding that the compensation carrier was entitled to the enforcement of its lien on two-thirds of the net recovery.

All the Arkansas cases cited by the majority recognize the lien right of the employer, or his compensation carrier, to two-thirds of the net proceeds recovered from the third party tort-feasor. Maxcy v. Beasley cited in the majority opinion is as good as any Arkansas case on the point. In the Maxcy case, in distributing the proceeds of a third party settlement under section (c), the commission approved a fifty per cent fee to be first deducted as a part of the cost of collection from the proceeds of the recovery. One-third of. the remainder was then distributed to the injured employee and the remaining two-thirds to the compensation insurance carrier. The claimant’s attorney claimed an additional fee from the compensation carrier’s two-thirds of the recovery. This was denied by the commission, the Circuit Court, and this court, and in connection with the compensation carrier’s rights under (a)(1) and (2) of the act, this court set out these two sections of the act and then said:

“It seems clear to us that the above section, after giving an injured employee the right to sue a third party for his injury and providing that the employer may join in such action and thereby be entitled to a first lien on two-thirds of the net proceeds recovered, and providing that the commencement of such action should not affect the employee’s right to recover compensation, there is the further provision that any amount recovered by the employee from a third party shall be applied after deducting reasonable costs of collection: ‘ — One-third of the remainder shall in every case belong to the injured employee or Ms dependents as the case may be; and the remainder or so .much thereof as is necessary to discharge the actual amount of the liability of the employer and the carrier; and any excess shall belong to the injured employee or his dependents.
“It is our view that the order of the commission directing distribution, after allowing reasonable costs of collection, in the circumstances here is strictly in accordance with the above statutory authority and is correct.
“As indicated, the settlement here was effected without the suit being contested in federal court. It was a voluntary compromise settlement and we think the commission, under the authority of Section 81-1340 (c) had the right to approve the allowance of attorney’s fee and other reasonable costs of collection where, as here, a voluntary settlement was made. The commission, after allowing Whetstone $142.40 expenses, itemized as follows:
$ 16.50 Court Costs
100.10 Court Reporter
15.00 Clerk Costs
2.00 Marshal’s Fee
8.80 Pictures
allowed Maxcy one-third of the balance of $4,851.60, or $1,617.20, and allowed the insurance carrier, Liberty Mutual, $3,234.40 which was $495.96 less than it had paid Maxcy in compensation benefits.”

The injured employee in the case at bar filed a suit in tort against the third party defendant, and the employer’s compensation carrier joined in the action. The employee and the defendant are attempting to adjust (by declaratory judgment) tire third party claim by payment of $78,000.00 rather than hazard the verdict of a jury. The defendant has agreed to pay $78,000.00 and the employee has agreed to accept $78,000.00 net to himself and unencumbered by the first lien of the employer’s compensation carrier. In other words, the injured employee and the third party defendant are reasonably close to a settlement in this case. Only the amount due the compensation carrier stands between the employee and the third party in reaching a settlement figure.

The employee in this case sustained horrible injuries and the amount of medical expenses the employer’s compensation carrier has paid, and will continue to pay, is eloquent enough testimony as to extent of injuries. The compensation carrier has refused to relinquish its first lien on the proceeds of the proposed compromise settlement, and perhaps has not gone as far as it should toward sharing in a loss by compromise. But, we are confronted with a matter of law in this case, and the law was not designed to fit this case alone.

I would continue to follow the procedure laid down in § 81-1340, supra, as I interpret it, and as has been followed without question in all cases to date where a division of a third party recovery is involved. I would continue to follow the procedure that was followed in Winfrey & Carlile v. Nickles, 223 Ark. 894, 270 S. W. 2d 923; Barth v. Liberty Mutual Insurance Co., 212 Ark. 942, 208 S. W. 2d 455; Maxcy v. John F. Beasley Construction Co., 228 Ark. 253, 306 S. W. 2d 849; Gilbert v. Missouri Pacific Railroad Co., 208 Ark. 1, 185 S. W. 2d 558; McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566.

I would reverse.

Harris, C. J., and Brown, J., join in dissent.


author: Conley Byrd, Justice.

text:
    Barrett Hamilton, Inc. v. Heublein
    5-4252
    416 S. W. 2d 309
    Opinion delivered June 5, 1967
    [Rehearing denied July 26, 1967.] •

      Catlett & Henderson, for appellant.

      Smith, Williams, Friday & Bowen; By: B. C. Clark, for appellee.
   Conley Byrd, Justice.

Appellant, Barrett Hamilton, Inc., pursuant to Ark. Stat. Ann. § 48-1316 (Repl. 1964), brings this appeal to question the Alcoholic Beverage Control Board’s action in approving the transfer by appellee, Heublein, Inc., of Smirnoff Vodka from appellant to Central Distributors, Inc.

Appellee, Heublein, Inc., is a distiller of spirituous liquors. Its brands include Smirnoff Vodka, Relska, Bell’s Scotch, Heublein Vermouth, Pop-Off Vodka and Hilshire Gin.

Barrett Hamilton, Inc., is a wholesale liquor distributor which, prior to 1965, was Arkansas wholesaler of all of appellee’s products and those of four other major distillers. In February, 1965, Heublein, with Barrett Hamilton’s reluctant consent, transferred some of its brands (not Smirnoff) to Central Distributors, Inc.

Central Distributors, Inc., is a wholesale liquor distributor which in June, 1966, handled part of the Heu-blein products as well as those ,of three other distillers.

Ark. Stat. Ann. § 48-1311 (Repl. 1964) authorizes the Director of Alcoholic Beverage Control to pdopt rules and regulations to carry out the intent and purposes of the act creating the Alcoholic Beverage Control Board (Ark. Stat. Ann. 48-1301—48-1321 [Repl. 1964]). Pursuant to this authorization Regulation 118, here involved, was adopted. The regulation provides:

“All wholesale liquor distributors shall register their brands of alcoholic beverages handled and distributed in this State with the Director of Alcoholic Beverage Control, and no wholesale liquor distributor shall add an additional brand to his stock without first securing the written approval of the Director of Alcoholic Beverage Control; no distiller, rectifier, importer or other person shall be permitted ... to transfer a brand from one wholesale liquor distributor to Mother . . . without reasonable cause, which cause must be submitted to the Director of Alcoholic Beverage Control in writing. ’ ’ (Emphasis added.)

In notifying the Director of the proposed transfer, Heublein assigned the following reasons:

1. Barrett Hamilton, Inc., represents other major distillers which, of necessity, require considerable attention from the management of the company.
2. The move would increase the sales potential for all Heublein products.
3. The move will afford Heublein products opportunities to reflect sales gains in keeping with national gains.
4. The move will be in the best interest of Arkansas.

The Director approved the transfer after a hearing on June 21, 1966. In so doing, he found:

‘ ‘ That Barrett Hamilton, Incorporated, had been the Distributor for Smirnoff Vodka in the State of Arkansas for approximately twenty years and that the sales of such vodka has shown a favorable increase over this period; that Heublein, Incorporated, has other brands of alcoholic beverages that have been distributed by Central Distributors, Incorporated, for the past few years, and that it is the desire of Heublein, Incorporated, to have the same distributor to handle all of their brands in this State; that some unpleasantry had developed between employees of Heublein, Incorporated, and Barrett Hamilton, Incorporated, which is not conducive to good business; that the relationship heretofore existing between Heublein, Incorporated, and Barrett Hamilton, Incorporated, was not contractual but permissive and subject to cancellation and termination at will by either party; and that Heublein, Incorporated, has shown reasonable cause to transfer the account as required by Regulation 118 and should be allowed to transfer all of its brands, including the Smirnoff Vodka account from Barrett Hamilton, Incorporated, to Central Distributors, Incorporated. ”

On appeal to the Board, additional testimony was taken and, on that testimony and the record made before the Director, the action of the Director was affirmed. Prom the circuit court’s affirmance of the Board’s action, Barrett Hamilton brings this appeal, relying upon the following points:

1. No proof appellant neglected Smirnoff Vodka in favor of other lines.
2. No proof that transfer would afford greater sales potential for Smirnoff Vodka.
3. Transfer would penalize refusal to violate law.
4. There being no evidence to support orders below, transfer of the line constitutes error of law.
5. Quasi-judiical proceedings should be fair — %. e., the Alcohol Beverage Control Board was not an impartial and disinterested tribunal.

Appellant is faced with the limited scope of review permitted here by Ark. Stat. Ann. § 48-1316 (Repl. 1964), which provides:

“Within thirty (30) days after the mailing of the order of the Board, the licensee, if dissatisfied with the decision of the Board, may appeal to the Circuit Court of Pulaski County. The appeal shall be taken by the filing with the Clerk of the Circuit Court a transcript of the proceedings before the Board. The Circuit Court shall hear no new evidence on this appeal and shall render its judgment only on errors of law. An appeal from the judgment of the Circuit Court may be taken to the Supreme Court of Arkansas. ’ ’

We interpret the statute to mean that the Board’s action on matters of fact must be affirmed if supported by any substantial evidence.

We understand the phrase “reasonable cause” used in Regulation 118 to refer to that ordinary business care and prudence exercised by business men in general.

POINT I. We agree with appellant that there is no substantial evidence to show that it neglected Smirnoff Vodka in favor of other lines. However, we do not interpret the orders of the Director and the Board approving the transfer as standing or falling on this one issue.

POINT II. On the issue that the transfer to Central Distributors would increase the sales potential for all Heublein’s products, we hold that there was substantial evidence to support the Board’s finding that Heu-blein had reasonable cause to transfer Smirnoff Vodka to Central Distributors.

The testimony of I. L. King-Riggs, southwest regional manager for Heublein, is that the portion of its lines transferred to Central Distributors in March, 1965, had shown a dramatic increase in sales after the transfer. From July through December, 1964, Barrett Hamilton handled Relska Vodka and sold 78 cases, while from July through December, 1965, Central Distributors sold 271 cases. From July through December, 1964, Barrett Hamilton sold 392 cases of Heublein Cocktails and for the same period in 1965 Central Distributors sold 564 cases. Barrett Hamilton, from July through December, 1964, sold 19 cases of Heublein Vermouth, while Central Distributors for the same period in 1965 sold 25 cases. Based on these comparisons, it was King-Riggs’ opinion that if the remainder of the Heublein line were transferred to Central a similar increase in sales would be experienced.

Opposed to the testimony of King-Riggs was that of Barrett Hamilton, showing that Smirnoff Vodka sales had advanced under its wholesale distributorship from 38 cases in 1947 to 17,386 cases in 1965. For the period from July 1, 1965, to June 13, 1966, appellant had sold 18,000 cases of Smirnoff Vodka.

When all the testimony is viewed in the light of the limited review allowed under § 48-1316, above, we must find that the testimony of King-Riggs was sufficient to substantiate the Board’s findings that appellee had reasonable cause to transfer its Smirnoff brand to Central Distributors.

POINT III. Appellant, by way of an affirmative defense, undertook to prove that the transfer of Smirnoff Vodka was being made to Central Distributors because appellant’ had refused to encourage its salesmen to violate the liquor Fair Trade Law.

In support of this defense, Malcolm Webre, appellant’s sales manager, testified that on April 28, 1966, Henblein’s representative, Judd Lynn, told him about a national sales drive for Smirnoff; that Heublein wanted appellant to increase its Smirnoff sales for March, April, May and June, 1966, by 25 per cent; that Lynn wanted the drive to commence in May; that when Webre explained the figures were unrealistic, Lynn suggested that appellant give its salesmen a $500 bonus; that Webre replied that if they gave that kind of a do-or-die bonus the salesmen would violate the Fair Trade Law by buying the business from the retailer, and Mr. Lynn agreed; and that Webre pointed out that since March and April had passed, appellant would have to make a 34 per cent increase in May and June to meet the quota.

Judd Lynn testified for appellee that he talked to Webre about the sales drive in March ,and told him the 25 per cent increase was to be made during the month of January-through June; that Smirnoff was running about an 18 per cent increase in the first three months; that the 25 per cent increase was a little less than 10,000 cases; that the amount sold in January and February was to be subtracted from the 10,000 cases and the balance was to be sold for March, April, .May and June; and that if each salesman made the goal, each salesman would receive $500. He did not tell Webre that the reason for presenting the program was to force Webre’s salesmen to make deals with their bonus money.

Based on the premise that the 25 per cent increase was for the four months of March through June, appellant demonstrably argues that the figures were so excessive that the actual reason for the transfer of Smirnoff was that appellant refused to encourage its salesmen to violate the Fair Trade Law. On the other hand, Heu-blein points to its exhibit Nn. 1, notes allegedly in the handwriting of Bob Brewster, an employee of appellant, as corroborating Lynn’s testimony that the program was for a six-months period. On the basis of a six-months period with credit being given for increased January and February sales already made, appellee argues that the 25 per cent quota was not unrealistic or beyond attainment. ■

The Board gave credit to Judd Lynn’s testimony and found that Barrett Hamilton had failed to sustain the burden of showing that the sales incentive program was calculated .to induce Barrett Hamilton to violate laws and regulations for the purpose of accelerating sales of Smirnoff Vodka.

"We find that there is substantial evidence to support the decision of the Board.

POINT IV. Appellant argues that since there is no evidence to support the orders of the Board, the transfer of the Smirnoff Vodka constitutes, error of law. In this we find no merit, for as we have already shown under Point II, there was substantial evidence to support the Board’s finding.

POINT V. Appellant argues that the Alcoholic Beverage Control Board was not. an impartial and disinterested tribunal.

At the start of the Board hearing, each of the three Board members was sworn and responded quite frankly to appellant’s examination. It was shown that the present transfer had been mentioned or discussed generally at a prior Board meeting; the chairman testified he had no opinion on the change of brands from one wholesaler to another which evidence would not change; another was of the same opinion; and the third stated he did have an attitude about changing brands because he had had experience with it some years ago, but he had made no final decision on the matter at hand. Their testimony further reflects that one Board member had owned Central Distributors which he sold in 1955, and that Heublein had bought some cars from an automobile company in which another Board member owned a 20 per cent interest.

No provision is made in the Alcoholic Beverage Control Act for disqualification of Board members for bias, prejudice or preconceived opinion. Actually, appellant does not argue bias and prejudice, but preconceived opinion. The Alcoholic Beverage Control Board, like most administrative bodies, is expected to be manned by persons having some knowledge of the problems involved and in this situation one would not expect to find a member who would not have some preconceived idea about the problems involved in transferring brands from one wholesaler to another.

Even if appellant argued bias and prejudice in addition to preconceived opinion, we do not find sufficient facts in the record to warrant a conclusion that the Board members were so partial or interested that justice was nullified or barred.

For the reasons stated we find no merit to this contention.

Affirmed.


author: CoNley Byrd, Justice.

text:
    William H. Jones, et al v. Jack Etheridge, et al
    5-4284
    416 S. W. 2d 306
    Opinion delivered June 5, 1967
    [Rehearing denied July 26, 1967.]

      Arnold, Hamilton & Streetmcm, for appellants.

      W. C. Medley and Brown, Compton & Prewett, for appellees.
   CoNley Byrd, Justice.

This is a wet and dry local option election contest between appellants, William H. Jones et al, the contestants, and appellees, Jack Ethe-ridge et al, the contestees. The legal issues involved are:

(1) Can a local option liquor election be held within three years of a prior such election;
(2) The sufficiency of a petition for contest which does not charge any specified vote was illegally cast but contains only generalities or conclusions to the effect that illegal votes were cast; and
(3) Can a petition for the contest of an election be amended, after the expiration of the time limitation set forth in Ark. Stat. Ann. § 48-820 (Repl. 1964) for contesting an election, so as to set forth the names of the voters alleged to have voted illegally and to state that if the named votes were purged the election would be 1,008 for and 1,185. against the sale of alcoholic beverages.

The original petition alleged (1) that the election on November 8, 1966, was not valid, being barred by the three-year limitation period contained in Ark. Stat. Ann. § 48-818 (itepl. 1964), because a prior local option election was held in 1964; (2) that numerous election irregularities occurred which allowed individuals to vote who were not qualified, not properly registered, under a disability of incompetency, not registered in the voting precinct in which they voted, and residing outside the county, or were incompetents; (3) that a number of votes were not counted; and (4) that if the alleged illegal votes were not included, the majority of the votes oast would be against the manufacture and sale of intoxicating liquors.

The county court overruled the contestees ’ demurrer and an appeal was taken to the circuit court. There the contestants filed .a motion for summary judgment under § 48-818, supra, and more than ten days after the vote certification filed their first and second amendments to their petition, wherein they listed for the first time the names of the persons alleged to have voted “wet” who were not bona fide residents of the county; who voted outside of their legal voting precincts; who were not registered as required by law at time of voting; who were permitted to. vote by marking “X” for their signatures although not qualified voters; who voted “wet” by absentee but were not actually absent from their precincts on the date of election; and alleged that 1,199 votes were cast and certified for legal sale and 1,185 were cast and certified against legal sale of alcoholic beverages at the election, and that if the 191 alleged illegal votes were purged, the results would be 1,008 votes for and 1,185 against legal sale of alcoholic beverages.

From orders of the circuit court overruling contestants’ motion for summary judgment, sustaining a demurrer to the original petition, and striking contestants’ first and second amendments to the petition, contestants appeal, relying upon the points above stated.

POINT I

For .their contention that a local option election cannot be held within three years of a prior election, contestants point ont that .a local option election was held in November* 1964, where the election was in favor of the “drys” [see Titsworth v. Mayfield, 241 Ark. 641 409 S. W. 2d 500 (1966)]; and rely upon § 48-818, supra, which states: “The election or elections herein provided for shall not be held for any connty, city, town, district or precinct oftener than once in every three years.”

We hold contestants’ position to be without merit. Grubbs v. Rowland, 226 Ark. 874, 296 S.W. 2d 201 (1956). Ark. Stat. Ann. § 48-802 (Repl. 1964), being Initiated Measure 1942, No. 1 § 2 Acts 1943, p. 998, and enacted subsequent to § 48-818, supra, specifically provides that only two years must elapse between such elections. Contestants argue that § 48-802 is only cumulative to § 48-818, but in view of the unavoidable conflict between the two statutes the argument is untenable.

POINT II

We have repeatedly held that a petition for contest of an election does not state a cause of action where it does not charge that any specified vote was illegally cast, or does not contain sufficient information which would identify any such illegal voter, and contains only generalities or conclusions of law to the effect that illegal votes were cast. See Ark. Stat. Ann. § 48-820(2) (Repl. 1964); Craig v. Barron, 225 Ark. 433, 283 S. W. 2d 127 (1955); and Countz v. Roe, 231 Ark. 108, 328 S.W. 2d 353 (1959). Therefore we hold that the original petition, above set out, did not state a cause of action and was subject to demurrer.

POINT III

We agree with the trial court that the amendments to the petition, which were filed after the ten-day period set forth in § 48-820, supra, were properly struck from the record. As has been pointed ont in Point II above, the petition failed to state a canse of action, and to permit amendments setting forth names of the alleged illegal voters who voted “wet” so as to state a cause of action would, in effect, permit contestants to assert for the first time their cause of action after expiration of a ten-day period. Wheeler v. Jones, 239 Ark. 455, 390 S. W. 2d 129 (1965). It should be noted that the ten-day period is not from the date of the election but is from the date the votes are certified by the county board.

It places no burden on contestants to require them to state the names of the voters who allegedly voted “wet” and illegally and to show that if alleged illegal votes were purged it would change the election results. Before one can in good faith contest an election, he must have knowledge of the persons who voted illegally, some knowledge of how the persons allegedly voted, and he must be able to show that if the votes were purged it would make a difference in the outcome of the election. Otherwise, an election contest would become a fishing expedition. An election by the people should not be so lightly impugned by those who only hope to find enough information to change the result of an election.

Contestants rely on Wassell v. Sprick, 208 Ark. 243, 185 S.W. 2d 939 (1949), to substantiate their contention that the supplying of the names amounted to nothing more than a permissible amendment to the petition. A close reading of Wassell v. Sprick shows that no objection was there made to the amendments and that they were not an issue before this court We know of no reason why the matter of amendments after the time could not be waived, and it is altogether possible that the contestee, Sprick, in that case preferred that the matter be tried on its merits rather than to stand on the technicalities of the period of limitations for filing a petition.

Finally, appellants in their reply brief argue that Ark. Stat. Ann. § 27-1117 (Repl. 1962) provides that a party may amend Ms pleadings before trial where a demurrer thereto has been sustained; and that if we fail to permit such amendment in tMs case it will deny to contestants the equal protection guaranteed to them under the 14th Amendment to the TJ.Q. Constitution. We disagree with contestants’ position, for the statute applies alike to all petitioners contesting local option elections. Moore v. Childers, 186 Ark. 563, 54 S.W. 2d 409 (1932).

Affirmed.