author: Ed. F. McFaddin, Associate Justice. Carleton Harris, Chief Justice,

text:
    Jack Tar Of Ark., Inc. v. National Wells Television, Inc.
    5-2488
    351 S. W. 2d 848
    Opinion delivered December 11, 1961.

      Wootton, Land & Matthews, for appellant.

      B. Scott Campbell, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellee, National Wells Television, Inc., filed this action in the Garland Circuit Court against the appellant, Jack Tar of Arkansas, Inc., for amounts claimed due under the terms of a contract between the parties, dated October 15, 1955. Trial before the Circuit Court without a jury resulted in a judgment for the plaintiff; and this appeal ensued in which the appellant challenges the correctness of the Circuit Court judgment, raising four points, which will be consolidated and discussed.

The basic question is whether the appellee as a foreign corporation is barred from maintaining the present suit; and the Circuit Court answered the question in the negative. Three corporations are to be identified:

(1) Jack Tar of Arkansas, Inc. (hereinafter called “Jack Tar”) is and was at all times here involved an Arkansas corporation engaged in operating a motel in Hot Springs, Arkansas.

(2) Wells Television, Inc. (hereinafter called “New York Wells”) is and was at all times hereinafter mentioned a New York corporation that never qualified to do business in Arkansas.

(3) National Wells Television, Inc., (hereinafter called “National Wells”) is and was at all times here involved a Delaware corporation that qualified to do business in Arkansas on October 4, 1955, and has been domesticated since that date.

On February 9, 1955, New York Wells and Jack Tar entered into a contract whereby New York Wells was to install and maintain forty television sets on the premises of Jack Tar in Hot Springs, was to receive a specific rental per day for each such television, and the contract was to continue for five years. On September 9, 1955, negotiations began between New York Wells and Jack Tar for a modification of the contract. On October 15, 1955, New York Wells and Jack Tar agreed to mutually cancel their contract of February 9, 1955; and on the same day (October 15, 1955) National Wells and Jack Tar entered into a new contract concerning the forty television sets located in the Jack Tar Motel in Hot Springs, Arkansas. This contract was in the form of a letter, which we copy in full:

“NATIONAL WELLS TELEVISION, INC.
“October 15, 1955
“Jack Tar of Arkansas Inc.
856 Park Avenue
Hot Springs, Arkansas
“Attention: Mr. R. B. Ellis
Gentlemen:
“This will confirm our understanding in regard to our installation of the R. C. A. Master Antenna System, together with 40 R. C. A. Victor 21” Television Sets.
“We will leave on the promises of the Jack Tar the Radio Corporation of America’s Master Antenna System together with 40 connecting outlets and the 40-21” RCA Victor Television receivers with matching stands. We will continue to bear all cost of maintenance and repair of both the Master Antenna System and the television sets. You are not to be held responsible for any loss or damage to our television sets or system.
“In consideration of the above, for a period of 56 months from the above date you will pay us at a rate of 40 cents per calendar day for each television set which we have installed in the Jack Tar Hotel. The Jack Tar Hotel agrees to make payments of such rent in monthly installments in advance, the first payment becoming due on the date above and subsequent payments becoming due at intervals of one month thereafter.
“If the hotel fails to pay any installment of rent within thirty (30) days after it becomes dne, or fails to perform all of the conditions on its part to be performed, Wells shall have the right to terminate this lease without notice and take immediate possession of and remove from the hotel the television sets, system and related equipment. The hotel hereby grants to Wells or its duly authorized representative, permission to enter the hotel for such purpose and agrees that Wells shall not be liable for any reasonable acts in the removal of such equipment. In any such event, and in addition to any unpaid rent accrued to the date of termination, the hotel shall remain liable for and shall promptly pay to Wells for liquidated damages and stipulated damages an amount equal to the rent reserved hereunder for the unexpired portion of the term, discounted at the rate of 4% per annum to the present worth, together with all expenses Wells may reasonably incur in connection with retaking of possession of said system, television sets and related equipment and collecting the sums due hereunder.
“This instrument contains the entire agreement between Jack Tar Hotel and Wells. The right of Wells at any time to require strict performance shall not be affected by any previous waiver or course of dealing.
“This agreement shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, administrators, executors, successors and assigns.
“Very truly yours,
NATIONAL WELLS TELEVISION, INC.
/s/ Thomas A. Cronin
“ACCEPTED FOR:
JACK TAR OF ARKANSAS, INC.
/s/ R. B. ELLIS, Manager.”

It will be observed that by the said contract of October 15, 1955, the payments were to be on the basis of 40 cents per calendar day for each television, and the contract was to continue for 56 months from October 15, 1955. The officers of New York Wells and National Wells are the same, and the two corporations have the same office address. From time to time, National Wells wrote Jack Tar letters about the October 15,1955 contract; and some of the letters were written on stationery of New York Wells and signed by New York Wells. Jack Tar’s rental checks, in three instances, were payable to “Wells Television, Inc.”; and all the other checks were payable to “National Wells TV.” There can be very little doubt but that New York Wells and National Wells have interlocking directorates; but it must be remembered that National Wells has been domesticated in Arkansas ever since October 4, 1955.

In July of 1958 Jack Tar ceased making payments to National Wells and thereafter National Wells filed the present action against Jack Tar for the amounts due under the contract of October 15, 1955. For defense, Jack Tar claimed (inter alia) that National Wells was not the owner of the forty television sets; that neither New York Wells nor National Wells was authorized to do business in Arkansas when the original contract was made in February, 1955; that the instrument dated October 15, 1955 was an amendment to the original contract and was not a new contract; that National Wells was a mere assignee of the original New York Wells contract and that as such assignee National Wells could not maintain the action because of §64-1202 Ark. Stats. The case was submitted to the Circuit Court without a jury; the judgment of the Circuit Court was in favor of National Wells; and from that judgment Jack Tar prosecutes this appeal.

I. On this appeal, Jack Tar urges that there is no showing that National Wells owned the forty television sets when the contract was signed on October 15, 1955; but we consider this point as immaterial to the real issue, which is next to be discussed. On October 15, 1955, Jack Tar signed a rental contract with National Wells for the forty television sets, and still had them at the time of the trial from whence comes this appeal. Whether we view this contract between National Wells and Jack Tar as a bailment or a sale, the end result is the same.

In Estes v. Boothe, 20 Ark. 583, we held that in an action by a bailor against a bailee it was no defense for the bailee to assert title in some third party while the bailee still held the property. In 6 C. J. 1108, “Bailments ” § 37, the rule is stated:

‘ ‘ The more generally accepted rule is that the bailee may not deny the title of the bailor, either by claiming title in himself, or by alleging title in another, subject, however, to the exceptions that the bailee may show as against the claim of the bailor that he has been deprived of the property by process of law or has yielded possession to one having paramount title, or that he is defending on the title and right and by the authority of a third person.”

None of these exceptions were shown by Jack Tar in this case, and so Jack Tar is in no position to question the title of National Wells.

If we view the contract between National Wells and Jack Tar as a sale, then the case of Sumner v. Gray, 4 Ark. 467, is conclusive against Jack Tar; because we there held that the vendee of personal property, while he remains in possession and has not been evicted by a paramount title, cannot defend against an action for the purchase price on the ground that the vendor had no title. This holding was emphasized in Seaborn v. Sutherland, 17 Ark. 603: “It would be unjust to permit the vendee to retain possession and enjoy the benefit of the property, and put his vendor at defiance.”

In short, we find no merit in appellant’s argument as to which corporation owned the equipment involved in the suit. (Mr. Cronin, the Vice-President of both corporations, testified that the transfer was made between the two corporations.) Appellant executed the contract with National Wells without questioning its ownership of the equipment, and appellant operated under the terms of the contract for approximately three years. It cannot now obtain relief from its obligation by making this belated claim.

II. The other points urged by Jack Tar on this appeal relate to the legal right of National Wells to maintain this action in view of §64-1202 Ark. Stats., which provides that any foreign corporation which shall fail to domesticate in Arkansas and shall do business in this State shall not only be subject to a fine but also, “any foreign corporation which shall fail or refuse to file its articles of incorporation or certificate as aforesaid, cannot make any contract in the State which can be enforced by it either in law or in equity, and the complying with the provisions of this act after the date of any such contract, or after any suit is instituted thereon, shall in no way validate said contract.” In Republic Power & Service Co. v. Gus Blass Co., 165 Ark. 163, 263 S. W. 785, the question was whether the plaintiff, as a foreign corporation, conld recover on a contract, and we said:

“The test to determine whether the plaintiff is entitled to recover in an action like this, or not, is his ability to establish his case without any aid from the illegal transaction. If his right to recover depends on the contract which is prohibited by statute, and that contract must necessarily be proved to make out his case, there can be no recovery.”

Applying that test to the case at bar, it is apparent that in order to recover National Wells must claim exclusively under some contract, complete in itself, and dated after October 4, 1955, when National Wells domesticated in Arkansas. With this in mind, we turn to the contract dated October 15, 1955, between National Wells and Jack Tar. It has been previously copied in extenso. It contains, in itself, a complete contract between National Wells and Jack Tar, and unilateral expressions in subsequent letters did not have the effect of varying the contract. The previous contract between New York Wells and Jack Tar was not void. It was merely unenforceable in the courts of the State, but it could and did provide the basis for future negotiations. Waxahachie Medicine Co. v. Daly, 122 Ark. 451, 183 S. W. 741. Evidently National Wells recognized some time after February, 1955, that New York Wells had entered into a contract in Arkansas without domesticating; so National Wells domesticated on October 4, 1955, and the original Jack Tar contract was cancelled by mutual consent and the new contract of October 15, 1955 was entered into. It is complete in itself. It concerns the forty television sets in the Jack Tar Motel; provides that the rate of pay is 40 cents per calendar day beginning on October 15, 1955; that the payment is to be monthly in advance; and that the contract is to run for fifty-six months. Jack Tar made payments under that contract from October, 1955, until some time in 1958; and then, at that late date, decided to claim that the contract could not be enforced because of § 64-1202 Ark. Stats. We find no merit in such claim. The contract here sued on was entered into after October 4, 1955, the date of domestication; and this fulfills the statutory-requirement. Affirmed.

Harris, C. J., dissents.

Carleton Harris, Chief Justice,

dissenting. I do not feel that the contract between Jack Tar Hotel and National Wells Television can stand without aid from the unenforceable transaction entered into between Jack Tar and Wells Television. In other words, the contract entered into on October 15, 1955, is not complete within itself, but depends upon an earlier agreement entered into between Tar and Wells on September 1, 1955. This is clearly shown by a letter from Arnold Wells, executive vice-president of National, to Jack Tar, dated January 20, 1958, wherein he stated:

“We are enclosing a copy of our present agreement with your hotel. As you will note, the agreement is dated October 15, 1955, but the effective starting date of the contract was September 1, 1955, as indicated in attached copy of Mr. Ellis’ letter on September 16, 1955, and Mr. Cronin’s letter of September 20, 1955.
The term of the agreement is for a period of 56 months, starting September 1, 1955, and terminating April 30, 1960.”

This letter has reference to a contract entered into between Jack Tar and Wells Television on the date mentioned in the letter (which amended the original contract of February 9, 1955) and it seems clear to me that the October 15th contract behoeen National Wells and Tar was dependent upon the September agreement between Tar and Wells. Appellant accepted the proposal and supplied the agreed consideration for the month of September, 1955.

The record is replete with letters in 1958, written on Wells stationery, with various references to the contract, for instance, a reminder that rentals under “our” agreement for certain months, have not been paid, and acknowledging receipt of rentals for various other months. On October 3, 1960, an audit confirmation of indebtedness was sent to Tar, and in Item 1 appears: “Date of contract, (in ink) 9-1-55.”

Because I am unable to ascertain how proof of the October contract between National Wells and Tar can be made without reference to the agreement between Tar and Wells in September, 1955,1 respectfully dissent.

       Webster’s Third New International Dictionary has this definition of motel: “A hotel for automobile tourists.”

       Webster’s Third New International Dictionary defines “interlocking directorate” as “A directorate linked with that of another corporation by interlocking directors so that the businesses managed by them are to some degree under one control.”

       The history of § 64-1202 Aik. Stats, is extremely interesting. By Act No. 216 of 1901, the Legislature of Arkansas provided that no undomesticated foreign corporation “shall be authorized to sue on any contract made in this Stats.” In Woolfort v. Dixie Cotton Oil Co., 77 Ark. 203, 91 S. W. 306, it was held that a foreign corporation might recover on a contract mads in this State, even though the foreign corporation did not domesticate until after the commencement of the suit. By Act 313 of 1907 fknown as “The Wingo Act”), it was provided that domesticating after the suit was filed would not allow the suit to be maintained on the contract. That Act was construed in Watkins Medical Co. v. Mosley, 139 Ark. 294, 213 S. W. 385, and it was held that if the foreign corporation domesticated before it brought suit, it could still sue on the contract, even though made before the corporation domesticated. Then, by Act 687 of 1919, the statute was further amended to read as we now have it in § 64-1202 Ark. Stats., i.e., “. . . and the complying with the provision of this act after the date of such contract, or after any suit is instituted thereon, shall in no way validate said contract.” (Emphasis contained in original act.) These changes are discussed in an annotation in 75 A.L.R. 455.

       Emphasis supplied.


source: Caselaw Access Project

author: Georoe Rose Smith, J.

license: Public Domain

text:
    Daniels v. Johnson.
    5-2514
    351 S. W. 2d 853
    Opinion delivered December 11, 1961.

      William H. Drew, for appellant.

      D. A. Clarice, for appellee.
   Georoe Rose Smith, J.

This is a suit by the appellant to cancel a deed (conceded to have been in reality a mortgage) by which she and her late husband conveyed a 43-acre farm to the appellee, T. H. Johnson. The chancellor refused to cancel the instrument, holding that the debts secured by the equitable mortgage were neither usurious nor barred by limitations. This appeal is from a decree settling the accounts between the parties and ordering a foreclosure of the appellee’s lien for the balance found to be due.

The proof shows that in 1953 the appellant’s husband, T. E. Daniels, was indebted beyond his ability to pay. He owed more than $3,000 upon a mortgage to a federal lending agency. Foreclosure was threatened. He was also obligated upon six promissory notes, of which four were held by the appellee Johnson and the other two by a McGehee bank. Daniels’ application to a life insurance company for a refinancing of his mortgage had been refused.

In this situation Daniels sought Johnson’s help. On June 1, 1953, Daniels and his wife conveyed their farm to Johnson to enable him to obtain a refinancing of the real estate mortgage. This is the deed that the appellant seeks to cancel. Johnson testified that the agreement was “that I would take a deed to the property and hold it for what he already owed me and what I was to pay the Government” upon the federal mortgage. Johnson also agreed to assume the payment of the two notes held by the bank.

Daniels remained in possession of the land until his death in November, 1958. He made no payments upon the debts, but he did reimburse Johnson for the taxes that Johnson paid yearly. Early in 1958 the appellant obtained a $5,000 insurance policy upon her husband’s life, payable to Johnson, as additional security. After Daniels ’ death the proceeds of this policy were applied in reduction of the indebtedness. This suit for cancellation was filed in December, 1958.

The appellant makes three separate arguments to support her contention that she, as the surviving tenant by the entirety, should take the land free from her husband’s debts.

I. It is first argued that the appellant did not sign either the deed to Johnson or the promissory notes and that therefore her interest in the land ought not to be burdened with the debts. It is true that the appellant attempted to prove that her name was wrongfully signed to the deed by her daughter, but the decided weight of the evidence supports the chancellor’s finding that the appellant’s signature is genuine. By joining in the conveyance the appellant subjected her interest in the land to the indebtedness, of which she evidently had knowledge. She is right, however, in insisting that she is not personally liable, as she did not join in the execution of the notes. The chancellor’s opinion shows that the court did not intend to impose personal liability upon the appellant, but the decree did embody a money judgment against her. This inadvertent error may be corrected on remand.

II. It is contended that the appellee’s claims are barred by the five-year statute of limitations. Ark. Stats. 1947, §§ 37-209 and 51-1103. A sufficient answer to this argument is that the appellant is not in a position to take advantage of the statute. The title to the land is in the appellee. Even if the debts are barred the appellant cannot invoke the aid of equity without first doing equity herself by recognizing the validity of the appellee’s lien. Sturdivant v. McCorley, 83 Ark. 278, 103 S. W. 732, 11 L. R. A. N. S. 825. Here, as in the cascited, there is no contention that the debtors held the land adversely to the equitable mortgagee. To the contrary, Daniels and his wife repeatedly recognized Johnson’s security interest by repaying the taxes and taking out insurance as added indemnity.

III. The third argument is that Johnson’s demands are void for usury. At the outset it may be observed that there was no usury in Johnson’s original agreement with Daniels. In that transaction Johnson merely agreed that the land should stand as security for the refinanced mortgage debt and the six promissory notes. Those obligations did not bear an excessive interest rate, and there is no suggestion that the rate was increased when the land was conveyed to Johnson as security. Hence the claims were not usurious in the beginning.

A second opportunity for the intrusion of usury may have arisen on March 10, 1954, some nine months after the conveyance. Johnson testified that on that date Daniels agreed to consolidate the debts and pay them all by making ten annual payments of $1,080, which were intended to include both the principal and interest at 10 per cent. As corroborative evidence Johnson produced a vague memorandum, purportedly signed by Daniels, reading essentially as follows: “$1,080.00 per year for 10 years on October 15. Each. T. R. Daniels.”

Even if this memorandum should be accepted it does not in itself indicate usury, for the payment of $10,800 in ten equal annual installments would have been slightly less than the permissible maximum charge. The chancellor, however, quite properly rejected the memorandum and instead computed the indebtedness according to the original agreement. The incomplete memorandum is not convincing, especially now that Daniels ’ death has deprived the appellant of his testimony. It is doubtful if Daniels received any consideration for his supposed agreement to pay something more than he really owed. On the whole record we agree with the chancellor’s decision to disregard the 1954 memorandum.

With respect, however, to the two notes that were originally held by the bank Johnson sought by his pleadings and proof to recover interest at a rate in excess of 10 per cent per annum. In his cross complaint Johnson set out the 1954 memorandum and asked that the indebtedness be computed pursuant to its recitals. During the trial Johnson prepared and introduced in evidence an extended computation in which he undertook to show how the figure of $10,800 was arrived at in 1954. This exhibit does not succeed in confirming the accuracy of the memorandum, for Johnson’s computations at the trial result in a total claim that exceeds by $191.06 the memorandum figure of $10,800. Johnson was unable to explain this discrepancy satisfactorily, though he insists that his computations are correct.

This trial exhibit, based upon Johnson’s theory of the case, involves usury with respect to the two notes originally held by the bank. They were installment notes, with several monthly payments coming due after June 1, 1953, when Johnson assumed the responsibility for paying the bank. The fixed installments included not only the principal but also interest at the maximum rate of 10 per cent per annum until maturity. It follows that any additional charge before maturity would push the interest rate beyond the legal limit.

Upon assuming the notes Johnson did not go at once to the bank and pay them in full. Instead he paid the installments as they came due during the next nine months; this is clearly shown by his testimony and by the bank’s indorsements on the notes. Yet Johnson seeks to recover interest at the rate of 10 per cent per annum from June 1,1953, upon the full amount of his subsequent payments to the bank. Inasmuch as those payments already included the maximum permissible interest the additional 10 per cent charge is plainly usurious.

The claim upon these two notes should have been rejected. They are separable from the other debts, however; so their invalidity does not vitiate the rest of the claim. Hynes v. Stevens, 62 Ark. 491, 36 S. W. 689; Hughes v. Holden, 229 Ark. 15, 316 S. W. 2d 710.

In the main the decree is affirmed. In the particulars mentioned herein it is reversed and the cause remanded for further proceedings.


author: George Rose Smith, J.

text:
    The Crossett Co. v. Childers.
    5-2524
    351 S. W. 2d 841
    Opinion delivered December 11, 1961.

      Paul Sulims and Robert R. Wright, for appellant.

      McMath, Leatherman, Woods & Youngdahl, for appellee.
   George Rose Smith, J.

This is a hernia claim arising under the workmen’s compensation law. The commission found that the claimant, Childers, suffered a compensable inguinal hernia on February 12, 1960. The commission’s award was affirmed by the circuit court. For reversal the employer contends that the hernia really occurred on February 9, so that the statutory requirements with respect to notice and the attendance of a physician were not met within 48 hours.

Our statute governing hernia cases contains these provisions: “In all cases of claims for hernia it shall be shown to the satisfaction of the Commission:

“(a) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
“(2) That there was severe pain in the hernial region ;
“ (3) That such pain caused the employee to cease work immediately;
“(4) That notice of the occurrence was given to the employer within forty-eight hours thereafter;
“(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within forty-eight hours after such occurrence.” Ark. Stats. 1947, \ 81-1313 (e).

Childers testified that on February 9, while he was at work, a heavy wrench came in contact with his stomach as he was attempting to free certain jack screws. The pain was intense, but it went away after he had rested for five or ten minutes, and he was able to finish the day’s work. That night he observed a small lump in the hernial area, but it did not occur to him that he might have a hernia. He did his usual work during the next two days, though with some discomfort.

On February 12 there was a leakage of chlorine gas at the plant. Childers had trouble breathing and coughed steadily for twenty minutes or more. This coughing caused abdominal pain that Childers described as much more severe than that upon the first occasion. In the hernial region ‘ ‘ [it] felt like it just broke on through. A big swelling come out. ’ ’ Childers was forced to cease working and was sent to a doctor, who found that he had an inguinal hernia. Childers submitted to an operation on February 24 and was disabled for eight weeks.

Dr. Samuels, testifying as an expert witness for the claimant, was of the opinion that Childers had a congenital abdominal weakness that predisposed him to hernia. With respect to the wrench blow of February 9 Dr. Samuels testified: “I don’t think that produced a hernia. Of course, later he had this severe coughing episode due to irritation by some chemical irritation in the plant, and it is my opinion that the pre-existing congenital type hernia then became of clinical significance due to severe coughing and an increase of inner abdominal pressure.” Dr. Buchman, testifying for the employer, thought that the hernia occurred on February 9. The commission found that “in all probability, claimant’s hernia finally broke through on February 12, 1960, as a result of the excessive coughing.”

Special hernia statutes such as ours, it has been said, are intended to distinguish non-industrial congenital hernias from those definitely produced by trauma or effort at work. Larson, Workmen’s Compensation, § 39.70. There can be no doubt that it was Childers’ work and working conditions that caused his congenital weakness to be converted into an actual case of hernia. Under the appellant’s theory Childers’ injury could never have been compensable, for the incident of February 9 did not cause him to cease work, as the statute demands, and by February 12 it was too late for him to require the attendance of a physician within the limit of forty-eight hours. It is doubtless true, as the appellant insists, that the onset of hernia may in some cases be too gradual for it to meet the statutory conditions for compensability. In this record, however, there is substantial evidence to support the commission’s conclusion that it was not until February 12 that Childers’ condition actually became one of hernia. In that view all the statutory requirements are shown to have existed.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Renschler v. Brantley.
    5-2526
    351 S. W. 2d 842
    Opinion delivered December 11, 1961.

      George E. Pike, for appellant.

      John W. Bailey and William G. Daviss, for appellee.
   Paul Ward, Associate Justice.

This is a dispute between an association known as Little Rock A. A. Group No. 1 (hereafter referred to as No. 1) and an association known as Arkansas County A. A. No. 2 (hereafter referred to as No. 2) over a savings account in the amount of $2,399.80 and a checking account of $33.57 in the First National Bank of DeWitt to the credit of No. 1.

No. 1 was organized, but never incorporated, some twenty years ago in Little Rock where its members held regular weekly meetings. From time to time the membership of the association varied between seven and twenty. Approximately eight or nine years ago a few people (five to seven) from Arkansas County joined No. 1 and attended the weekly meetings. It was the usual thing for each member to donate one dollar each week whether he attended or not. This money was turned over to the person designated as treasurer for deposit. The money was used for various purposes, such as: to pay necessary expenses incurred, to pay for association luncheons once in a while and to make donations to worthy causes. The primary purpose of the association was to help members with problems arising from the use of alcoholic beverages. The association had a chairman, a secretary and a treasurer.

On October 30, 1958 at a regular meeting of No. 1 the members from Arkansas County, without any semblance of dissatisfaction or ill will, announced their decision to withdraw from No. 1, as a matter of convenience, and form an association in their own county. Following this No. 2 was organized. At this time Adolph Renschler of Arkansas County was the only selected treasurer of No. 1. On January 23, 1959 he wrote two checks on the DeWitt bank for one-half of the funds credited to No. 1, and mailed same to that association. At the same time Renschler wrote a check for the rest of the money on deposit to the credit of No. 1 and delivered it to No. 2.

Upon refusal of No. 2 to deliver all the money to No. 1, this suit was instituted against Adolph Renschler by the chairman of No. 1 for the use and benefit of the association to compel delivery. The complainant alleges he is duly authorized by and acting for the association. An answer was filed by appellant in which he admitted he was the duly qualified and elected treasurer of No. 1 when the checks were written and both No. 1 and No. 2 had cashed said checks. He also pleaded estoppel. Testimony was taken, and the trial court made extensive findings on two points: One, No. 2 had no right to the money, and; Two, there was no accord and satisfaction resulting from the fact that No. 1 cashed the check. Based on these findings the trial court entered a decree ordering No. 2 to deliver the money to No. 1 within ten days, otherwise a money judgment “is granted . . . against the defendant, Adolph Renschler”, personally.

The two points relied on by appellant for a reversal are the same two points mentioned above upon which the trial court based its decree.

One. We think the trial court was correct in holding appellant had no right to any of the money deposited in the DeWitt bank to the credit of No. 1. Without attempting to decide Avhether the members of No. 2 have any moral or legal right to a portion of the money deposited to the credit of No. 1 in the DeWitt bank, it is clear that appellant had no right or authority to make an arbitrary division of the same between the two groups. He admits that he was the duly qualified and elected treasurer of No. 1, and, as such, he held custody of the money as trustee. The money did not belong to him personally. There is no contention by appellant that the members of No. 1 authorized or directed him to divide the money. Neither does appellant contend he was so authorized or directed by the members of No. 2, and they are not parties to this suit.

Two. Again we agree with the chancellor that the facts in this case do not support accord and satisfaction. In fact, we are of the opinion that the rule of accord and satisfaction has no applicability to a situation of this kind. That rule is generally applied where the relation of debtor and creditor exists or where one person has a valid claim against another. See: Fleming v. Cooper, 225 Ark. 634, 284 S. W. 2d 857, and DeSoto Life Insurance Company v. Jeffett, 210 Ark. 371, 196 S. W. 2d 243. Moreover, the chancellor, after setting forth the testimony in detail, found that the facts did not support appellant’s claim of estoppel or accord and satisfaction and we think the chancellor’s finding is supported by the weight of the evidence. It is true that the members of Group No. 1 received and deposited the check for one-half of the Group’s funds but this action was consistent with their claim to being owner of all the funds since there was nothing on the check to indicate it was meant to he in full settlement. The testimony in the form of letters and conversations clearly shows that the members of No. 1 never at any time agreed to settle with appellant for one-half of the funds.

The decree of the trial court is accordingly affirmed.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Geary v. Kirksey.
    5-2566
    351 S. W. 2d 846
    Opinion delivered December 11, 1961.

      Thomas B. Tinnon, for appellant.

      Roy Danuser and W. B. Howard, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a Chancery Court Decree ordering partition by sale of certain lands in Baxter County.

The appellant makes two contentions: (a) The trial court erred in overruling a motion to dismiss appellees’ complaint; (2) The evidence did not justify a partition by sale.

Appellants’ first argument is based upon an assertion that the appellees had no title and therefore could not maintain the action. This contention is bottomed upon provisions of a contract for the sale of an undivided one-half interest in the lands by persons who are the common source of title of all parties to this appeal. In the motion to dismiss, it was alleged that the interest in the lands claimed by appellees had been conveyed to the appellees’ intermediate predecessors in title pursuant to the terms of a contract which contained a covenant that certain work would be done upon the lands. As indicated, this contract was between parties who then owned all the lands in question and parties through whom appellees claimed their undivided one-half interest.

The motion to dismiss contained an allegation that the work had not been done thereby resulting in a failure of consideration. It was then alleged that because of this failure of consideration the appellees’ predecessors had lost their title and that for this reason appellees acquired no title.

Appellees meet appellants ’ first contention with five counter arguments, all of which contain merit. It would unduly extend this opinion to discuss all of appellees’ contentions, therefore we will only treat with the one we find to be the most conclusive, i.e., “Appellants waived any right to question the title of appellees by stipulating upon the trial that appellees owned an undivided one-half interest in the lands in question.” Page 31 of the record shows the following stipulation:

“It is stipulated and agreed by and between the plaintiffs Claude Kirksey and Mildred Kirksey, and the defendant James E. Geary that the defendant James E. Geary is the owner of an undivided one-half interest . . . and that the plaintiffs Claude Kirksey and Mildred Kirksey are the owners of an undivided one-half interest in and to the lands described in the complaint and the answer subject to any typographical error.” Having so stipulated, it follows that appellant is precluded from questioning the trial court’s ruling on the motion to dismiss or to question appellees’ title. Orr v. Weaver, 203 Ark. 1147, 158 S. W. 2d 272.

As to the sufficiency of the evidence to support the decree, we cannot escape the conclusion that the evidence was overwhelmingly in favor of appellees.

An examination of the record shows that the land in question consists of two long narrow strips referred to in the testimony as “runways.” These runways intersect each other at an angle of approximately 115 degrees. One runway runs generally north and south, while the other runs generally east and west. The north-south runway is approximately 2,650 feet in length and 150 feet in width. The east-west runway is approximately 2,550 feet in length and 150 feet in width. The east-west runway is considerably closer to Lake Norfork than is the north-south runway.

We find the rule for determination of this evidentiary question aptly Stated in Nutt v. Strickland, 232 Ark. 418, 338 S. W. 2d 193, wherein it is said:

“As we have frequently stated, the Chancellor heard the witnesses, observed their demeanor on the stand and was therefore in a better position to judge the weight of the evidence. See: Willis v. Denson, 228 Ark. 145, 306 S. W. 2d 106. The findings of the Chancellor on a fact question, of course, will not he disturbed unless clearly against the preponderance of the evidence. ’ ’

Therefore, it would be our duty to affirm even if the evidence were evenly balanced. However, as heretofore indicated, we are of the opinion that the evidence preponderates strongly in favor of appellees. Without going into minute detail, the evidence shows that the land has comparatively little value for farming purposes whereas it has a substantial value for use as airplane landing strips. It is further shown that the land could not, as a practical matter, be utilized for an airport except as a unit because of terrain and changing winds which from time to time would require the use of one strip rather than another. There was other testimony showing that because the east-west runway was closer to the lake, it would have more value than the north-south runway, even if its use for an airport was not considered. There was even testimony that the lands comprising the two strips were unequal in fertility if used for agricultural purposes. The very dimensions of the land in question would militate against an equitable division in kind. This is because the runways are too narrow to be split in the middle and still utilized for landing strips. There was evidence to show that because of inaccessibility the lands had practically no value except as landing strips. The principal appellant impliedly recognized that the highest value of the land was for use as airstrips but stated that the land could be divided in kind without prejudice as to either party. In this latter assertion, he was contradicted by a host of witnesses. Suffice it to say there was ample evidence to justify a finding that the land could not be divided in kind without prejudice to the owners. Our statute (Ark. Stats. § 34-1826) authorizes a sale under these conditions. In 68 C. J. S., Partition, § 127 (E) P. 196, it is said:

‘ ‘ The effect on the value of the property of division in kind is a factor of major importance in determining whether the land is equitably divisible so as to preclude a sale for partition.”

In Hadfield v. Kitzmann, 223 Ark. 459, 266 S. W. 2d 801, which was a suit for partition wherein the appellant asserted the land should be divided in kind, we said, in part:

‘ ‘ There is also much evidence to show that the value of all five buildings would be materially diminished if three were divided in kind and the other two sold. The resulting separate ownerships would entail a loss of economy in management and would leave each proprietor exposed to the threat of rent reductions on the part of someone else. Without reviewing the testimony in greater detail, we think it sufficient to say that the Chancellor’s decision on the main issue is not contrary to the preponderance of the evidence.”

In applying the law to the evidence on this question, we must agree with the learned Chancellor that equity requires a partition by sale.

Affirmed.


author: Neill Bohlinger, Associate Justice.

text:
    Byrd v. State.
    5027
    351 S. W. 2d 844
    Opinion delivered December 11, 1961.

      John W. Bailey, for appellant.

      Frank, Holt, Attorney General, by Thorp Thomas,. Asst. Attorney General, for appellee.
   Neill Bohlinger, Associate Justice.

The petitioner, William Clifton Byrd, has filed in this court his motion for leave to proceed in forma pauperis. His affidavit is sufficient and this motion is granted.

The petitioner is requesting a writ of mandamus directed to the Pulaski County Circuit Court, First Division, requiring that court to grant a speedy hearing' on a cause which the petitioner states is pending against him in the Little Bock Municipal Court, which cause seems to be bottomed upon an information filed by the Prosecuting Attorney in Pulaski County charging the petitioner with forgery.

The record that is presented to us consists of the petitioner’s statement embodying ten items purporting to be instances in which his rights have been denied him and seven copies of letters which the petitioner states were sent by him to the Judge of the First Division Pulaski County Circuit Court and to the Clerk thereof and the Prosecuting Attorney of this district.

On the strength of this fragmentary showing -we are asked to mandamus the Circuit Judge to hear and make orders in a cause which is not before him and on which we are not advised. This we must decline to do and his petition for mandamus is denied.

The filings in this cause, as shown by the record presented, do not inform us of the information nor any proceedings that have been filed in the court in which the petitioner states his cause is pending. Neither do we find, in his presentation, any record of proceedings filed in the Circuit Court. The letters the petitioner says he sent to or received from the judge, clerks and prosecuting attorneys do not make a record that can be properly presented to us.

We are, however, impressed with the fact that the petitioner is in the Federal Penitentiary serving a sentence under conviction of a federal offense; that he is without money or friends and that he is in need of counsel.

To that end competent counsel has been appointed by this court to represent him and this counsel will make the necessary filings in the court wherein the petitioner states his cause is pending and will take all necessary steps to present the cause by appeal or other means to such other courts as to which he deems it necessary to apply in order that his client’s cause may be properly evaluated, and this counsel will do with the least possible delay.

The filing by petitioner contains statements that conflict with our Buie No. 6 under which no motion filed or made in this court shall contain language showing disrespect for the trial court. Since his petition is being dismissed on other grounds, we do not make resort to this rule except to strike from our files those items which show disrespect for the trial court and the presiding judge there. It is so ordered.


author: Carleton Harris, Chief Justice.

text:
    Brandon v. Gazette Publishing Co.
    5-2565
    352 S. W. 2d 92
    Opinion delivered December 18, 1961.

      Kenneth Coffelt, Fred A. Newth, Jr. and Marshall N. Carlisle, for appellant.

      Bose, Meek, House, Barron, Nash é Williamson, for appellee.
   Carleton Harris, Chief Justice.

This is a libel suit. Appellant was the operator and principal stockholder of Trinity Nursing Home in Little Bock. On July 16, 1959, Governor Orval Paubus released to news reporters at a special press conference a statement headed “Press Statement of Governor Paubus.” This statement dealt with irregularities in nursing homes, and improper acts by nursing home proprietors. As far as the charges against appellant are concerned, the report dealt with conditions which an investigation had allegedly shown to exist at Trinity Nursing Home. The Chief Executive’s official interest stemmed from the fact that some welfare recipients were patients in the home. The Governor revealed to the press the results of the investigation that he had caused to be conducted, and he characterized conditions as a “sordid and shocking story of mismanagement and misdeeds.” He advised that he had ordered welfare patients removed from the home, and also stated that Mrs. Brandon, an assistant part-time attorney for the Welfare Department, had been dismissed. A Little Bock evening paper carried the story of the press conference and the report there made, and a Gazette reporter, together with a photographer, went to Trinity to interview Mrs. Brandon. This meeting was apparently arranged by the then attorney for Mrs. Brandon. Appellant talked freely, and took the Gazette representatives through the nursing home. The next day, Friday, July 17th, the Gazette carried a front page story relative to the Governor’s charges, and a denial by Trinity. On June 7, 1960, Mrs. Brandon instituted suit against the Gazette, seeking compensatory damages in the sum of $200,000, and punitive damages in the sum of $300,000. She alleged, inter alia, that the article published was false and libelous; that as a result of the publication she had suffered great embarrassment and humiliation, and had sustained a severe loss of business in connection with the operation of the nursing home; further, that her earning capacity in connection with the home had been diminished. It was further alleged that appellee knew at the time that the publication was false and libelous, or by the exercise of ordinary care, could have so known, but that no precaution was taken to ascertain from appellant, or other reliable source, the truth or falsity of the libelous publication. The Gazette answered, admitting it published the article, but denying other allegations of the complaint. Appellee stated that those parts of the published article which were statements of fact were true, and that the statements unfavorable to appellant were taken from an official report made by the Governor of the state following an official investigation. The answer further asserted that the Gazette, as a publisher of news, was under a duty to publish contents of the report, and did so without malice or any desire to harm the plaintiff.. “The said publication was privileged and gives the plaintiff no basis for an action of libel. The said publication was also privileged as fair comment on a matter of public interest.” After the filing of several motions, amendments, and taking of depositions, the cause proceeded to trial on May 9, 1961, and the jury returned a verdict for appellee. Prom the judgment so entered, appellant brings this appeal. Several grounds for reversal are asserted, but under the view that we take, it is not necessary that each be discussed.

A substantial portion of the contents of both briefs deals with the question of whether the Governor’s statement was absolutely privileged. The issues in this litigation do not require a determination of that point, for the Governor is not a party, and a discussion of that question would, in our opinion, amount to nothing more than dictum. We therefore do not pass upon that matter. Here, we are only concerned with the privilege, if any, afforded the Arkansas Gazette in publishing the Governor ’s report. The trial court did not instruct the jury on absolute privilege; rather, the pertinent instruction was as follows:

“You are instructed that if you find from the evidence in this case that the Governor of the State of Arkansas in his official capacity and in carrying out the duties imposed upon him by law caused to be made an investigation into the operation of certain nursing homes in the State of Arkansas and on or about July 16, 1959, issued a press report based upon said investigation and further find that the defendant’s publication of said press release in its issue of July 17, 1959, was an accurate and impartial account of said press release and was published in good faith and was not published with the intent to harm the plaintiff, then you are told said publication was privileged * * *.”

This was a correct declaration of the law. In Restatement of the Law of Torts, Yol. 3, § 611, p. 293, we find:

“The publication of a report of judicial proceedings, or proceedings of a legislative or administrative body or an executive officer of the United States, a State or Territory thereof, or a municipal corporation or of a body empowered by law to perform a public duty is privileged, although it contains matter which is false and defamatory, if it is

(a) accurate and complete or a fair abridgment of such proceedings, and

(b) not made solely for the purpose of causing harm to the person defamed.”

The fact that the Governor’s report was given to the press, rather than filed with an agency of the state government (where reporters could have copied the contents), is of no moment. It was still an executive report, embracing the findings of a thorough investigation. The purpose of affording a conditional privilege to the publication of the report of an executive officer, is based upon the fact that the general public has an interest in, and a right to be informed of, the official acts of such officers.

There seems to be no question but that the Governor was acting officially. The Governor himself testified that he caused the investigation to be made, after receiving reports of irregularities in the nursing homes. The State Police assisted in the investigation, and a comprehensive report was filed with the Chief Executive. According to the Governor, the report consisted of approximately a dozen volumes, containing photostats and statements; numerous witnesses were interviewed. The press conference was the result of the investigation made. Actually, the fact that the Governor was acting officially was recognized by appellant herself. On July 21, 1959, Mrs. Brandon, as Manager-Director of Trinity, verified a complaint against Governor Faubus seeking to enjoin him from causing welfare patients to be removed from Trinity. Mrs. Brandon stated that she read the complaint, and admitted verifying it. That complaint, inter alia, alleged:

“Plaintiff states that the defendant, Orval E. Fan-bus, acting in his official capacity as Governor of the State of Arkansas, has made public statements of maltreatment of patients, including starvation, serving of spoiled and improper food, unsanitary conditions, negligence of the ill and bedfast and improper use of drugs that may have resulted in the death of patients being cared for in the nursing home operated by the plaintiff which is under the direct supervision of the Department of Welfare, State of Arkansas.”

At any rate, the jury, under the instruction heretofore quoted, apparently found that the Governor was acting officially.

In Tilles v. Pulitzer Publishing Co., 241 Mo. 609, 145 S. W. 1143, the Governor of Missouri ordered the Attorney General to investigate the operation of a race track. The latter, through his assistants, investigated, and made several reports to the Governor that the law was being violated. After the investigation, the Attorney General gave defendant’s correspondent an interview in which he stated, speaking as Attorney General, and in order to inform the public concerning what he considered a matter of public interest, that the owners of the race track were guilty of a felony. Both the Governor and the Attorney General threatened action against such owners. A libel suit was instituted against Pulitzer, as publisher of the St. Louis Post-Dispatch. In holding Por the publisher, the Supreme Court of Missouri said:

“The reason for such threatened action the public was entitled to know, to the end that those who did not desire to be present when wholesale arrests were made, or the militia was called into service, might keep away from the place. The Attorney General in the close of his testimony said that he was speaking officially, and intended that his opinion should be made public, on account of the public interest which was to be subserved. He was, in fact, expressing his opinion as to the condition and legal status of the Delmar Jockey Club and the acts of such club and of its owners.
Under these circumstances, we think that there was a privilege or at least a qualified privilege in the publication of the article containing this opinion of the chief law officer of the state.”

The report of the Gazette appears to have been accurately and fairly made. Governor Paubus testified that he recalled making all statements attributed to him in the Gazette article except one. “I do not recall the statement about Mrs. Brandon being astounded when confronted with the report which we had compiled. This is not to say that it isn’t true or that it did not happen, but I don’t happen to recall that particular one, but I recall the others.” The text of the Governor’s statement was published in the July 17th issue of the Gazette. The front page article is headed, “Paubus Says Probe Uncovers Scandal at Nursing Home.” The subhead to the reader’s right reads, “Shocking Conditions Are Alleged. ’ ’ This column was written by the Gazette reporter who covered the press conference, and it is mentioned that the charges were denied by appellant. To the reader’s left appears a subhead of equal size, “Trinity Denies Charges, Asks Probe by Jury.’'’ This story was written by Mr. Patrick Owens, heretofore referred to in paragraph one, and was based on his visit to the home and interview with Mrs. Brandon. This column sets out in full the denials of Mrs. Brandon and her attorney to each charge made, and in addition, quotes a statement from the Chief Sanitarian of the Little Rock Health Department, “To the best of my knowledge, we’ve had no unusual trouble up there. ’ ’ The article also mentions that Ivan H. Smith, attorney for the "Welfare Department, had praised the services rendered by Mrs. Brandon in handling court actions relating to enforcement of support in bastardy proceedings, and enforcement of orders of support from the Chancery Court. The story by Mr. Owens seems to be completely fair, and to adequately cover Mrs. Brandon’s denials. There is no contention, nor proof, that the publication was made solely for the purpose of causing harm to Mrs. Brandon.

Appellant cannot prevail in this litigation for yet another reason, i. e., there was consent to the publication of the article sued upon. Mrs. Brandon testified that Mr. Owens was invited to interview her at the home. According to appellant, she “wanted them to come out and look at the home and see it was not true.” The visit was arranged after the evening paper carried the Governor’s press release. It would appear from her testimony, that Mrs. Brandon wanted the Gazette to print her side of the controversy without printing the charges that had been made, but we find it difficult to understand how one’s denials to charges made can be published without also publishing the charges. There was testimony by the publisher of the Gazette that on July 17th, the day of the publication, Mrs. Brandon called to express gratitude and pleasure at the manner in which the Gazette had handled the story. Mr. Owens likewise testified that Mrs. Brandon later discussed with him the manner in which the Gazette had handled the story, and she was pleased. The court instructed the jury:

“If you find that on July 16, 1959, the Arkansas Democrat, a local paper, published a copy of the report released by the Governor of the State of Arkansas on July 16, 1959; that the representatives of the defendant called on the plaintiff and she consented, impliedly, either in person or acting through a duly authorized representative, that the defendant could publish said report made by the Governor of the State of Arkansas upon condition that at the same time it publish her denial of the contents and set forth her side of the issues raised by said report; that the defendant in good faith published her denial of the contents of said report and her version of the issues raised by said report, then the Court instructs you to return a verdict for the defendant. ’ ’

This was a correct statement of the law, and the jury would certainly have been justified in finding that for Mrs. Brandon’s denial to make sense, it was necessary to print the charges, and she therefore impliedly consented to the entire publication.

Judgment affirmed.

         Emphasis supplied.

       Of course, there is nothing libelous in reporting that one was “astounded” when accused of improper conduct.

       Mr. Owens testified there was no request that the Governor’s press release not be printed.


author: Ed. F. McFaddin, Associate Justice. Paul Ward, Associate Justice,

text:
    Aetna Casualty & Surety Co. v. Jordan.
    5-2515
    352 S. W. 2d 75
    Opinion delivered December 18, 1961.

      Riddick Riff el, for appellant.

      Howell, Price & Worsham, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a Workmen’s Compensation case and necessitates a study of paragraphs (b) and (e) of § 81-1318 Ark. Stats.

On March 4, 1955, Appellee Jordan, while an employee of Dickmann-Farnsworth, sustained accidental injuries in the course of his employment at Crossett, Arkansas. Aetna Casualty & Surety Company, as the insurance carrier of Dickmann-Farnsworth, upon learning of Jordan’s injuries immediately commenced payment of compensation to him for temporary total disability. The last of these payments was on August 16, 1955. Jordan lived in the State of Louisiana and instituted action in the District Court of that State for continuation of the Workmen’s Compensation payments, claiming that he was totally and permanently disabled. In that action, Jordan insisted that the Louisiana Workmen’s Compensation Law was applicable, and he proceeded by a suit in the District Court as provided by § 23:1311 Louisiana Revised Statutes of 1950.

Aetna Casualty & Surety Company, as Dickmann-Farnsworth’s insurance carrier, resisted the jurisdiction of the Louisiana Court, claiming that the Arkansas Workmen’s Compensation Commission had exclusive jurisdiction. On May 2, 1957, the Louisiana District Court held that the Arkansas Workmen’s Compensation Commission had exclusive jurisdiction and dismissed Jordan’s action there pending; and on July 6, 1957, Jordan filed his claim with the Arkansas Workmen’s Compensation Commission, claiming total permanent disability. The insurance carrier and the employer then insisted that Jordan’s claim was barred by limitations under § 81-1318(b) Ark. Stats., the argument being that Jordan was injured on March 4, 1955; received his last payment for compensation on August 16, 1955; the claim was not filed with the Arkansas Workmen’s Compensation Commission until July 6, 1957; and the cited statute says that in a claim for additional compensation, the claim must be filed “within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the accident, whichever is greater.”

The Referee and the Full Commission on appeal held that Jordan’s claim was barred by limitations; the Circuit Court reversed the Commission and remanded the claim to the Commission for development on the question of disability; and the insurance carrier and the employer prosecute this appeal. The determination of continued disability vel non has not been made. We have repeatedly held that the filing of a claim within the prescribed time is mandatory. The filing of the claim with the Commission on July 6, 1957, was more than one year from the date of the last payment and more than two years from the date of the accident. So the claim is barred pursuant to the provisions of § 81-1318 (b) Ark. Stats., unless the claimant can successfully rely on § 81-1318(e), which reads:

“Whenever recovery in an action at law to recover damages for injury to or death of an employee is denied to any person on the ground that the employee and his employer were subject to the provisions of this act (§§ 81-1301 — 81-1349), the limitations prescribed in subsections (a) and (b) shall begin to run from the date of the termination of such action. In such event the employer or carrier shall be allowed a credit for actual cost of defending the action at law, not to exceed two hundred fifty dollars ($250), which shall be deducted from any compensation paid.”

We look now at the facts in the record which cause the claimant to rely on the above section. At all times herein involved the claimant lived in the State of Louisiana. After the insurance carrier ceased making compensation payments on August 16, 1955, the claimant filed suit in Louisiana against the Aetna Casualty & Surety Company, as the insurance carrier of the employer. This was the correct procedure in Louisiana for the adjudication of compensation claims, i. e., rather than seeking an award from a commission, the claim is filed in the proper district court (§ 23:1311 Louisiana Revised Statutes of 1950). Originally, the claimant sued in the Eighth Judicial District Court in Louisiana, but took a nonsuit and refiled the action in the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge, Louisiana. The insurance carrier excepted to the jurisdiction of the Louisiana Court and claimed that the claimant was employed in Arkansas; that the injury occurred in Arkansas; and that the Arkansas Workmen’s Compensation Commission had exclusive jurisdiction. Evidence was heard on whether the claim would he governed by the Louisiana Compensation Law or the Arkansas Compensation Law. The Nineteenth Judicial District Court sustained the insurance carrier’s exception to jurisdiction and dismissed the action on May 2, 1957. Thereupon, the claim was filed with the Arkansas Workmen’s Compensation Commission on July 6, 1957.

In view of the Arkansas Statutes and the facts as recited, we hold that § 81-1318(e) is applicable, and that the claim is not barred by limitation. Learned counsel for the insurance carrier says that the action in the Louisiana District Court was not “an action for damages” and is therefore not within the purview of the said paragraph (e), but this argument is not impressive. The purpose of filing a claim is to set in motion the approved machinery for adjudication. The action in the Louisiana District Court certainly put the insurance carrier of the employer on notice. The purpose of subsection (e) is to toll the statute of limitations while an action is pending. The action in the Louisiana Court was to recover money for injuries sustained by the claimant. It was in a court of law. What more is a damage suit than an action in a law court to recover money for injuries sustained?

It would be putting form above substance to hold that subsection (e) of § 81-1318 Ark. Stats, was not applicable in this case. In Reynolds v. Brumley, supra, we said:

‘ ‘ In this situation we are committed to the rule that if a substantial doubt exists as to which is the applicable statute of limitations, the longer rather than the shorter period is to be preferred and adopted. Jefferson v. Nero, 225 Ark. 302, 280 S. W. 2d 884. This rule is in harmony with our settled policy of giving a broad and liberal interpretation to the construction of the provisions of the Compensation Act to effectuate its purposes, and the further policy of resolving doubtful eases in favor of the claimant. E. H. Noel Coal Company v. Grile, 215 Ark. 430, 221 S. W. 2d 49; Triebsch v. Athletic Mining and Smelting Co., 218 Ark. 379, 237 S. W. 2d 26. ”

In view of the foregoing, we affirm the judgment of the Circuit Court which remanded the claim to the Commission with directions to overrule the plea of limitations and for determination of compensation, if any, and for whatever sum, if any, the carrier should be allowed as a credit for the cost of defending the Louisiana action.

Affirmed.

Ward, J., dissents.

Paul Ward, Associate Justice,

dissenting. I am unable to agree with the majority opinion or the reasoning on which it is based.

The facts involved are not in dispute. Very briefly they are: Claimant, an employee of Dickmann-Farnsworth Contractors, was injured while working in Crossett on March 4, 1955; Promptly, the carrier started paying claimant for temporary total disability; The last of such payments was made August 16, 1955. Later claimant filed suit in a District Court of Louisiana for compensation under the Workmen’s Compensation Act of that State. That suit was dismissed on May 2, 1957 because the Louisiana Court had no jurisdiction, and claimant filed a claim for additional compensation before the Arkansas Compensation Commission on July 6, 1957. It will be noted that this claim before the Commission was filed two years and three months after the injury and one year and eight months after the last payment of compensation.

Based on the above facts alone it is obvious, as is conceded by the majority, that the claim was barred under Ark. Stats. § 81-1318, sub-section (b), i.e.; it was filed more than two years after the injury and more than one year after the last compensation payment to claimant. See: Phillips v. Bray, 234 Ark. 190, 351 S. W. 2d 147.

In the opinion of the majority the claim was filed in time under the provisions of sub-section (e) of the above mentioned Section. This sub-section, in all parts pertinent here, reads:

“Whenever recovery in an action at law to recover damages for injury to or death of an employee is denied to any person on the ground that the employee and his employer were subject to the provisions of this act . . ., the limitations prescribed-in . . . (b) shall begin to run from the date of the termination of such action.” (Emphasis added.)

Only a casual examination of the above quoted subsection indicates clearly that the majority have misapplied its provisions to the facts in this case.

One. Sub-section (e) applies to an “action at law”. The suit which claimant filed in the Louisiana court (conceded to be a law court) was nothing more or less than a claim for compensation. Under the Louisiana Workmen’s Compensation Act, that was the proper court in which to file a claim for compensation, just as under our procedure the proper place to file such claim is with the Commission.

Two. Sub-section (e) applies to an action to recover damages. In this case claimant did not file suit in Louisiana for damages but for compensation. In Dawson v. Ja-hnche Dry dock, Inc. et al, 33 F. Supp. 668 (E. D. La. 1940), a situation very similar to that presented here was under consideration, and it was held that a suit for compensation filed in the Louisiana District Court was not a suit for damages. There the Court said:

“Here, there was no suit for damages. The action in the State court was for no other purpose than the obtaining of the compensation . . .”

The Louisiana statute itself is abundantly clear on this point. It reads:

“In case of dispute over or failure to agree upon a claim for compensation between employer or employee, or the dependents of the employee, either party may present a verified petition to the district court which would have jurisdiction in a civil case, or to the district court of the parish in which the injury was done or the accident occurred, or to any court at the domicile, or at the principle place of business of the defendant, having jurisdiction of the amount of dispute, at the option of the plaintiff.” (La. Rev. Stats, ch. 23, § 1311 [1950])

Three. Sub-section (e) applies where the action at law is “denied” on the ground that “the employee and his employer is subject to the provisions of this act . . .” But claimant’s claim in the Louisiana court was denied because the court had no jurisdiction.

Four. In a portion of sub-section (e) not copied above, a penalty up to $250 is placed against claimant who unsuccessfully files a suit for damages in an action at law. The reason for that provision obviously is meant to discourage attempts to evade the "Workmen’s Compensation Act in an effort to obtain a large amount based on negligence as an independent contractor. Just such a situation was before this court in the recent case of Co-Ark. Const. Co. v. Amsler, Judge, 234 Ark. 200, 352 S. W. 2d 74. See also: Bell v. Wabash Ry. Co., 58 F. 2d 569 (8th Cir., 1932). To my mind, that is the kind of action at law to recover damages to which sub-section (e) applies. By no stretch of the imagination can I conceive it to be the intention of our Workmen’s Compensation Act to penalize a claimant $250 for inadvertently filing his claim for compensation (as opposed to damages) before the wrong court or tribunal. Could any one reasonably believe the Commission, in this case, has the right to assess a substantial penalty against claimant merely because he filed his claim for compensation in the wrong jurisdiction, especially since, as pointed out by the majority, the decision was difficult to make?

Two. The case relied on to some extent by the majority to support its opinion—Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S. W. 2d 211—is not in point, because it is based on an entirely different state of facts than those present in this case. In the Brumley case the claimant filed his claim for additional compensation within one year after he had received his last compensation payment. (It was there stated, as does the statute state, that payment of a medical bill amounts to a payment of compensation.) That fact brought the Brwmley case squarely within the statute, § 81-1318 (b), i.e. Brumley’s claim was filed within one year after the last compensation payment. That situation does not obtain here, and there is no contention or suggestion by the majority that it does.

Consequently, I would reverse the trial court, and would affirm the Referee and the Commission.

       Some of our cases involving § 81-1318 (b) Ark. Stats., or the earlier and somewhat similar statute, are: Sanderson & Porter v. Crow, 214 Ark. 416, 216 S. W. 2d 796; Wilson v. Border Queen Kitchen Cabinet Co., 221 Ark. 580, 254 S. W. 2d 682; Little v. Smith, 223 Ark. 601, 267 S. W. 2d 511; and Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 S. W. 2d 211.

       The Judge of the Louisiana Court wrote an opinion in the case which recited in part:
      “Suit was first instituted in the Eighth Judicial District Court of Louisiana, and upon an exception to the jurisdiction of that Court being filed, testimony was taken thereon. Prior to judgment on the exception in that suit Plaintiff voluntarily nonsuited same and instituted the suit in this District. By stipulation of counsel, the evidence previously taken was offered on the trial of the exception before this Court and the matter submitted thereon.
      “From the testimony of Mr. Jack C. Copeman, General Superintendent of Dickmann-Farnsworth Construction Company, and of a Mr. Charles R. Anding, Financial Secretary-Treasurer and Business Agent of the Iron Workers Local Union Number 710 of Monroe, Louisiana, it is my opinion that the Plaintiff herein became employed by Dickmann-Farnsworth Company only after he had arrived in Crossett, Arkansas, the place where the construction job was under way, and following the determination of the management of the Construction Company that Plaintiff was acceptable.
      “Inasmuch as the evidence shows that the Construction Company had an arrangement with the Union by which prospective employees were referred to the Construction Company by the Union and were guaranteed the equivalent of two (2) hours pay for reporting to the place of employment, counsel for Plaintiff contend that this was the actual employment of the Plaintiff by the Construction Company. Both the representative of the Union and the Superintendent of the Construction Company deny that, in fact, the Plaintiff was so employed — Mr. Anding disclaiming any authority to employ Plaintiff on behalf of the Construction Company and likewise Mr. Copeman testifying that the Agent had no such authority from the Construction Company. At most, the arrangement in my opinion was for a paid interview but under no circumstances could it be classed as an employment contract.
      “The cases of Cobb v. International Paper Company, 76 So. 2d 460; Reed v. Zurich General Accident and Liability Insurance Company, 83 So. 2d 660, and Rushing v. Travelers Insurance Company, 85 So. 2d 298, are, in my opinion, applicable to the issue here involved and therefore in my opinion the contract of employment between the Construction Company and Plaintiff was made and entered into in the State of Arkansas where Plaintiff allegedly sustained the injuries about which this suit was brought, and, in consequence, this Court has no jurisdiction.”

       In addition to the cases cited in this opinion, the following authorities have been cited in the briefs or discovered in the study made by the Court: Schneider’s Workmen’s Compensation Text, Vol. XII § 2369, “Conflict of Laws in Limitation Statutes,” and § 2404 “Louisiana Law on Limitations”; Giacalone v. Industrial Accident Commission (Cal.), 262 P. 2d 79; Rushing v. Travelers Ins. Co. (La. Ct. App.) 85 So. 2d 298; 100 C.J.S. §§ 355, 362; City of Brunswick v. King (Ga. App.), 14 S. E. 2d 760; Westrich v. Industrial Comm. of Ohio, 197 N.E. 823; Lineberry v. Town of Mebane (N. C.), 12 S. E. 2d 252; Hayes v. Barras, 6 So. 2d 66; and annotation in 78 A.L.R. 1294.


author: Ed. F. McFaddin, Associate Justice.

text:
    Holmes v. Hollingsworth.
    5-2521
    352 S. W. 2d 96
    Opinion delivered December 18, 1961.

      Martin, Dodds & Kidd, and Barter, Henry, Thurman & McCasJcill, for appellant.

      Moncrief & Moncrief and Howell, Price & Worsham, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a damage action which resulted from a motor vehicle collision. Appellee, Mrs. Hollingsworth, and her baby daughter, Grlenna Faye, were seated in a car waiting for a traffic light to change when the appellant, Holmes, drove into the rear of their car with such force that Mrs. Hollingsworth and the baby were both injured. Trial resulted in jury verdicts as follows: for Mrs. Hollingsworth, $2,500.00 compensatory damages, and $2,500.00 punitive damages; and for the Hollingsworth baby, $1,500.00 compensatory damages, and $2,500.00 punitive damages. From a judgment in accordance with the verdicts, appellant Holmes brings this appeal, presenting the points herein discussed.

I. Instruction No. 6. This instruction given by the Trial Court reads:

“If you find that the plaintiff, Mrs. C. T. Hollingsworth, is entitled to recover under these instructions, you will assess damages, if any, in favor of her in such sums as you find from a preponderance of the evidence will reasonably compensate her for the medical expenses she has incurred to date, if any, and the medical expense she will sustain in the future, if any; the mental pain and suffering she has endured to date, if any, and the mental pain and suffering she will endure in the future, if any, and upon these elements of damage you will assess such sums as in your judgment you find from a preponderance of the evidence will reasonably compensate Mrs. C. T. Hollingsworth, individually, for the injuries and damages she has sustained, if any.
“You are further told that if you find the plaintiffs are entitled to recover under these instructions, you will assess such additional sums in favor of the plaintiff, Mrs. C. T. Hollingsworth, as mother and next friend of Glenna Faye Hollingsworth, a minor, as yon find from a preponderance of the evidence will reasonably compensate her for the hospital and medical expenses she has incurred in behalf of said infant, if any, by reason of said injury, if any, and such sums as you find will reasonably compensate said child for the pain and suffering it sustained, and upon these elements of damage you will award such sum for the use and benefit of said minor child, Glenna Faye Hollingsworth, as in your judgment you find from a preponderance of the testimony will reasonably compensate her for the injuries and damages they have sustained, if any.”

It was shown by the evidence that the medical and drug bills to the date of the trial were in excess of $200.00; but appellant claims that these bills should have been paid by Mr. G. T. Hollingsworth as husband and father, and that Mrs. Hollingsworth cannot recover for these bills. It is true that we held in Beverly v. Nance, 145 Ark. 589, 224 S. W. 956, that a husband is liable for the necessaries of life furnished to his wife. But that holding does not prevent a wife from recovering from a wrongdoer the amounts she incurred on her own initiative or the amounts she may reasonably incur in the future as a result of the acts of the wrongdoer. Section 55-401 Ark. Stats, provides in part: “Every married woman and every woman who may in the future become married, shall have all the rights to contract and be contracted with, to sue and be sued, and in law and equity shall enjoy all rights and be subjected to all the laws of this State, as though she were a femme sole-, . . . ” So we see no merit in the appellant’s claim that Mrs. Hollingsworth was not entitled to recover for the medical and drug bills which she had incurred or might reasonably incur in the future.

Appellant also claims that there is no evidence that Mrs. Hollingsworth will have any future pain or damages; and on this contention the appellant is also in error. Hr. Stone, one of the physicians who treated Mrs. Hollingsworth, testified that she received, inter alia, a whiplash injury; that she had to wear a neck collar for some time; that at the time of the trial (over fifteen months after the injuries) she was still in need of tranquilizer drugs; that she would probably continue to need them in the future; and would probably also have a recurrence of pain in the neck. In view of this and other testimony in the record, we cannot agree with the appellant’s claim that there was no evidence to support an instruction on future pain, suffering, damages, or medical expense.

II. Excessiveness of The Verdicts. As aforesaid, the jury awarded $2,500.00 for compensatory damages to Mrs. Hollingsworth and $1,500.00 for compensatory damages to the baby, Glenna Faye. These verdicts are not excessive. There is no need for us to detail all of the injuries suffered and the pain endured, or to detail the many trips to the doctor and the bone specialist. We conclude that the verdicts for compensatory damages should remain undisturbed.

As regards the verdict for punitive damages, the situation is different. There was ample evidence to take the case to the jury on the question of punitive damages. It was shown that Mr. Holmes was intoxicated at the time he drove into the rear of the Hollingsworth car; that he got out of his car and went to the Hollingsworth car and insisted that there was nothing wrong with the baby, who at that time was unconscious and barely breathing; and it was shown that Holmes’ conversation and locomotion were noticeably affected by the intoxicants. In Miller v. Blanton, 213 Ark. 246, 210 S. W. 2d 293, in affirming a judgment for punitive damages against a drunken driver, Mr. Justice Robins said:

“You are instructed that if you find for the plaintiffs in compensatory damages, then you may consider the question of punitive damages. You are instructed that punitive damages are defined as damages assessed by way of punishment to the wrongdoer, or as an example to others, and may not be assessed in any event except after compensatory damages have been assessed against the defendant.
“You are further instructed that punitive damages are not intended to remunerate the injured party for damages he may have sustained. They are not to compensate; they are the penalty the law inflicts for wilful, wanton and culpable negligence, and are allowed as a warning or as an example to the defendant and others.
“Therefore, if you find from a preponderance of the evidence that the defendant’s negligent acts, if any, were committed wilfully or wantonly, then you are told if you find for the plaintiffs in compensatory damages, you may assess punitive damages in such amount as you may deem sufficient under the evidence, if any, to punish him for his misconduct, if any, and to serve as a proper warning to others.”
“The evidence showed that Miller, after drinking intoxicating liquor to the extent that his talk and his walk were noticeably affected, and to the extent that, according to his own statement, he was ‘half drunk,’ entered his car and sought to drive it over an improved state highway. In doing this he violated the criminal laws of this state (§ 6707, Pope’s Digest).
“When Miller imbibed alcoholic liquor he knew that he was taking into his stomach a substance that would stupefy his senses, retard his muscular and nervous reaction, and impair, if not destroy, the perfect coordination of eye, brain and muscles that is essential to safe driving. After Miller voluntarily rendered himself unfit to operate a car properly he undertook to drive his automobile, a potentially lethal machine, down a well traveled highway. His conduct in doing this was distinctly anti-social, and the jury was amply authorized in saying by their verdict that he was exhibiting a ‘wanton disregard of the rights and safety of others.’ ” To the same effect, see also Vogler v. O’Neal, 226 Ark. 1007, 295 S. W. 2d 629; and Hall v. Young, 218 Ark. 348, 236 S. W. 2d 431.

It is when we come to the amount of the punitive damages awarded in the case at bar that we experience difficulty. In 15 Am. Jur. 738, “Damages” § 297, many cases are cited to sustain the text:

“An award of exemplary damages is subject to revision by tbe court to tbe same extent as awards of compensatory damages. It is difficult to lay down any rule for testing the question of excess in a verdict for punitive or exemplary damages. In general, tbe award will be set aside if it is grossly excessive or appears to be the result of passion, prejudice, improper sympathy, improper remarks and conduct of tbe plaintiff’s counsel, . . . ”

In discussing tbe elements of punitive damages in § 298 of the same article, tbe text reads:

“In assessing exemplary damages tbe nature, extent, and enormity of tbe wrong, tbe intent of tbe party committing it, and, generally, all tbe circumstances attending the particular transaction involved, including any mitigating circumstances which may operate to reduce without wholly defeating such damages, may be taken into consideration, and so, as a rule, may tbe financial and social condition and standing of the party.”

And in § 346 of the same article there is this statement:

“As a general rule, evidence of the plaintiff’s pecuniary circumstances is admissible where tbe case is such as will justify tbe award of exemplary damages, although there is authority to tbe contrary. In most jurisdictions evidence of tbe financial condition of tbe defendant is admissible and may be considered by tbe jury in determining tbe amount of exemplary damages to be allowed and what amount of punishment would be inflicted thereby on tbe theory that tbe allowance of a given sum would be a greater punishment to a man of small means than to one possessing larger wealth.”

In tbe case at bar, Mr. Holmes offered no evidence to contradict tbe plaintiffs ’ proof of negligence, but contented himself with a frank showing of bis own financial status, and tbe undisputed showing that be and bis wife had visited Mrs. Hollingsworth and tbe baby tbe day after tbe injuries and offered sympathy and condolence. Tbe only defense offered by Mr. Holmes in this case was an effort to reduce tbe amount of punitive damages. It was shown, without objection, that Mr. Holmes was a plumber by trade and made $2.50 an hour when employed, but that he had been out of employment for some time; that he did not make enough money in 1960 to file an income tax return; and that his only possible assets were a rent house for which he paid $3,500.00 and a 1956 automobile that was worth $600.00. He even showed that none of his life insurance policies had any cash surrender value.

The jury found that $4,000.00 would compensate Mrs. Hollingsworth and the baby daughter for their injuries. Punitive damages are not intended to remunerate the injured parties for the damages sustained. Punitive damages are the penalty which the law inflicts on the guilty party, and are allowed as a warning or an example to others. What would be sufficient punitive damages against one person might be grossly excessive against another. After weighing all the evidence in this case and taking into consideration that the sole evidence offered by Mr. Holmes was on the matter of punitive damages, we have concluded that a verdict for punitive damages of $1,250.00 for each of these appellees — or a total judgment of $2,500.00 for all punitive damages — is fair and reasonable, and that any amount in excess of a total of $2,500.00 punitive damages would be grossly excessive.

If, therefore, within seventeen calendar days, the appellees will enter a remittitur for all punitive damages in excess of a total of $2,500.00 for the two appellees, then the judgment will be affirmed. Otherwise, the judgment will be reversed and the cause remanded.

Johnson, J., would not disturb the jury verdict.

Robinson, J., would reduce the punitive damages to a total of five hundred dollars.

       Here is the objection the appellant offered to this instruction: “To which said instruction the defendant objected generally and further specifically to that part of the instruction which permits the jury to take into consideration as an element of damage any future pain and suffering or future medical expenses incurred or to be incurred as a result of the accident in question for the reason the testimony is that she has fully recovered without any permanent disability and Dr. Stone testified he had recommended Mrs. Hollingsworth to Dr. Carruthers, a specialist, and that Dr. Carruthers told him she had fully recovered and that he concurred in that opinion.”

       The Court, without objection, gave this instruction on punitive damages:


author: George Rose Smith, J. Ed. F. McFaddin, Associate Justice,

text:
    Burton v. Rice.
    5-2545
    352 S. W. 2d 568
    Opinion delivered December 18, 1961.
    [Rehearing denied January 30, 1962.]

      Rhine <& Rhine and Howard, A. Mayes, for appellant.

      Kirsch, Cathey & Brown, for appellee.
   George Rose Smith, J.

This is an action at law by the appellant landlord to recover possession of a farm that he orally leased to the appellee in the fall of 1958 for a term of four years. At the close of the plaintiff’s proof he asked for a directed verdict on the ground that the principal allegations in the complaint had not been denied by the answer and were therefore admitted. The court denied the motion for a directed verdict; the correctness of that ruling is the only issue on appeal. The case was fully tried on its merits and resulted in a verdict for the defendant.

The lack of complete clarity in the pleadings was due to the fact that this is the second lawsuit about this lease. In January of 1960 the appellant filed his complaint in the first case, alleging among other things that the tenant had violated the lease agreement during the 1959 crop year by allowing the riceland to become infested with coffee beans, indigo, and other weeds. That case was tried in March of 1960. The jury awarded the landlord only $75 in damages and found specifically that the tenant was entitled to remain in possession of the land until December 31, 1962.

The present complaint was filed by the lessor in February of 1961. After alleging that the tenant took possession on January 1,1959, the plaintiff asserted that the tenant had allowed the land to become infested with weeds. There is no specific statement of just when this occurred. In response to this complaint the defendant pleaded the first judgment as res judicata.

At the trial the plaintiff introduced proof to show that weeds had been permitted to grow up on the land during the 1960 crop year. It is evident that the plea of res judicata would not be a defense to this charge of waste, since the events took place after the first trial, which had involved the 1959 crop year. Upon closing his case the plaintiff moved for a directed verdict, pointing out that the allegations of the complaint had not been denied.

The court reporter did not take down the ensuing colloquy, but counsel have stipulated that this is what occurred: “Whereupon, the appellee’s attorney called to the court’s attention the fact that there were no allegations in the complaint with reference to any matters occurring since the former trial on March 14, 1960, with reference to which res judicata had been pleaded. . . . The appellee asked the court to treat the complaint as amended to conform with the proof, and the answer as amended to deny the allegations of the complaint as amended. The court, without specifically ruling thereon, asked the appellant’s attorney whether he desired to plead surprise and ask for a continuance, whereupon said attorney answered in the negative and stated that he was standing on the pleadings. Thereupon, the appellant’s motion for a directed verdict was denied.”

The appellant recognizes the settled rule that the matter of allowing pleadings to be amended in the course of the trial is largely discretionary. The trial court’s action will he sustained unless there has been a manifest abuse of discretion, materially prejudicing the complaining party. Rucker v. Martin, 94 Ark. 365, 126 S. W. 1062. Here, however, the appellant insists that the trial court did not expressly grant the appellee’s request that the answer be treated as amended. Hence, it is argued, the request was tacitly denied, and the plaintiff was entitled to a peremptory charge.

The appellant is mistaken in construing the trial court’s ruling as a denial of the appellee’s request that his answer be treated as amended. It is important to remember that the court first asked the plaintiff’s attorney whether he desired to plead surprise. This inquiry had no relevancy to anything before the court except the request for leave to amend the answer. Unless we are to assume that the judge was making a useless inquiry we must conclude that he was seeking information as a basis for ruling upon the appellee’s request. It was only after the appellant disclaimed surprise that the court denied the motion for a directed verdict. We are convinced that he was merely stating the ultimate result; that is, the answer would be treated as amended and therefore the motion for a peremptory instruction would be denied. Thus the court by implication actually granted the appellee’s request. There is no indication of an abuse of discretion or of prejudice to the appellant. To the contrary, when it is recalled that the defendant’s oversight was invited by the plaintiff’s original failure to make a specific allegation we are inclined to believe that a denial of the appellee’s request might have been an abuse of discretion.

Affirmed.

McFaddin, J., concurs.

Ed. F. McFaddin, Associate Justice,

concurring. The appellant claims that he was entitled to an instructed verdict for possession of the leased land because he claims that the defendant had failed to deny certain portions of the complaint. My reason for denying the appellant’s claim is that, regardless of what the defendant failed to do, the appellant, himself, failed to either allege or prove that he was entitled to possession of the land. I have carefully examined the transcript, page hy page, and I fail to find any allegations in the pleadings or any statements in the evidence to the effect that the farm lease contained any provision for forfeiture in the event of nonperformance: that is, there was no provision that if Rice failed to perform the lease then Burton could recover possession.

We have repeatedly held that a mere breach of a covenant is not, in the absence of a stipulation in the lease to that effect, a ground for forfeiture. In Salley v. Michael, 151 Ark. 172, 235 S. W. 785, Mr. Justice Prank Smith said:

“Parties may stipulate for forfeitures for non-performance of the provisions of a lease, and the courts give effect to and enforce these stipulations; but, in the absence of a forfeiture clause, the lessor is remitted to an action for damages for a mere breach of a covenant. Buckner v. Warren, 41 Ark. 532; Williams v. Shaver, 100 Ark. 565; Sells v. Brewer, 125 Ark. 108; 16 R. C. L. p. 1115, § 633 of the article on Landlord & Tenant, and cases cited in the note to that text.”

Since Burton failed to allege or prove a forfeiture clause in the lease contract, he, therefore, was not entitled to possession of the leased premises during the term of the lease.

Therefore, I concur in the result reached by the Majority in affirming the judgment of the Trial Court.


text:
    Wood v. Wood.
    5-2543
    352 S. W. 2d 176
    Opinion delivered December 18, 1961.
    [Rehearing denied January 15, 1962.]

      Russell G. Morton and Jack Holt, Jr., for appellant.

      Rose, Meek, House, Barron, Nash <& Williamson, for appellee.
   Paul Ward, Associate Justice.

On December 1, 1960 appellee, Benjamin S. Wood, filed a complaint seeking a divorce from appellant, Barbara R. Wood under Ark. Stats. § 34-1202 based on separation for three consecutive years. On January 10,1961 the trial court, after hearing the testimony presented by appellee, granted him a divorce. Prom the decree of divorce appellant appeals to this Court, seeking a reversal on the two grounds hereafter discussed.

One. “Trial court erred by failing to follow mandate of Arkansas Supreme Court.” Clearly, there is no merit in this-point. These same parties were previously before us in Case No. 2237, decided November 28, 1960 (232 Ark. 812,340 S. W. 2d 393) to which reference is made for background facts. There Barbara was appellant and Benjamin was appellee. In reversing that case we said:

“In order to do full justice to both parties and to give appellant an opportunity to defend any divorce case against her — a right she claims was denied her in this case — we have concluded that the Chancery Court should, and it is hereby directed to, dismiss the present case without prejudice. Then either party is free to institute a new case if so desired.”

The record in this case shows the trial court did exactly as directed when it dismissed the original divorce action. The mandate of this Court required the trial judge to do nothing else.

Two. Under the only other ground (or point) relied on for a reversal, appellant says the decree rendered by the trial court is invalid because “It Ignores the Basic Premise of Constitutional Due Process.” Again we find no reversible error.

As we understand appellant’s argument under this point, as it is presented in her brief, she does not contend the trial court had no jurisdiction over the parties and the subject matter, nor does she contend she was not properly served. However, if the latter be appellant’s contention, we do not agree. First, there is no contention she was not properly served by Warning Order in proper form. Second, the Attorney Ad Litem mailed her a registered letter to her last known address which was returned, marked " refused ’ ’. Third, it is admitted she had actual knowledge of the suit one day before the date of trial.

We gather that the prime contention of appellant is that she did not have adequate time to prepare her defense. At one place in the brief appellant states “. . . appellee hastened to set this matter for trial ten days from the final date of notice to appear.” At another place she states “The trial court denied the appellant a reasonable opportunity to be heard and as such — denied due process.” Neither of these assertions amounts to a denial of the trial court’s jurisdiction. These assertions do suggest the trial court may have abused its discretion in refusing to grant appellant a continuance. However, error, on that basis, is not urged for a reversal. Again, even if we consider this appeal on that basis, we are unwilling to say the trial court abused its sound discretion. There are several circumstances disclosed by the record which could have led the trial court to believe appellant was merely using delay tactics. For one thing the trial court apparently made a fruitless effort to find out just what attorneys represented appellant, and also whether she had a meritorious defense. It appears that appellant’s present attorneys were not employed until after it was too late to formulate the issues raised on this appeal. In fact the record is replete with indications of the lack of due diligence on the part of appellant herself in defending the present suit against her.

Affirmed.

George Rose Smith, J., not participating.