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

text:
    Caldwell v. Vestal.
    5-3057
    371 S. W. 2d 836
    Opinion delivered November 4, 1963.

      McMath, Leaiherman, Woods é Youngdahl, for appellant.

      Barber, Henry, Thurman & McCaskill, for appellee.
   George Rose Smith, J.

This workmen’s compensation case involves an employer’s liability for the expense of a surgical operation performed upon an injured employee. The operation was a success, and we know now that it was necessary; but it was performed by a surgeon engaged by the employee against the wishes of the insurance carrier and at a time when the physician selected by the insurer thought surgery to be inadvisable. The commission’s refusal to charge the employer with the expense of the operation was upheld by the circuit court.

There is no dispute in the material facts. Caldwell, the claimant, suffered a compensable back injury on August 23, 1960. He was unable to work for about a week, during which he was treated by a general practitioner. After the claimant returned to his job he continued to suffer pain, although he did not lose any more time from his work until he entered the hospital about fourteen months later.

Caldwell first saw a specialist on January 18, 1961, when the insurer sent him to Dr. Nixon, an orthopedic surgeon. In the course of visits extending over about two months Dr. Nixon prescribed an elevated shoe to compensate for a congenital difference in the length of Caldwell’s legs.

On August 8,1961, the claimant on his own initiative consulted Dr. Murphy, the orthopedic surgeon who was later to perform the operation in controversy. Dr. Murphy concluded that Caldwell had a disc problem and should have a myelogram. A myelogram is described as a diagnostic procedure in which an opaque dye is injected into the spinal canal so that X-ráy pictures can be taken. In September Dr. Murphy sent the insurance company a bill for his services, but the insurer refused to pay it, explaining that medical attention was being provided by other doctors. Later on a representative of the insurer also told Caldwell himself that the company would not pay for the operation that Dr. Murphy had in mind.

Later in August the claimant, without authorization from the insurer, was treated unsuccessfully by a chiropractor.

On October 18, at the direction of the insurer, Caldwell went to Dr. Hundley, another orthopedic surgeon. Dr. Hundley diagnosed Caldwell’s trouble as a degenerative disc and accordingly began a course of conservative daily therapy, involving exercise, heat application, and sonic treatments. On October 27, after nine days,- the patient appeared to be greatly improved.

On Sunday, October 29, Caldwell’s condition suddenly became much worse; he suffered severe pain in his back and partial paralysis. His wife called Dr. Murphy, who arranged for Caldwell’s admission to a hospital. On Monday Dr. Murphy did a myelogram, which indicated that the patient was suffering not from a degenerative disc but from a more serious condition known as an extruded disc. This extruded disc had been forced from its position between two vertebrae and was lying in the spinal canal. On Tuesday morning Dr. Murphy operated, removing the extruded disc and fusing the two vertebrae that it had cushioned. After a convalescence of several months Caldwell was able to return to work Avith entire freedom from pain. His recovery was complete except for some stiffness that was occasioned by the bone fusion and that resulted in a slight permanent partial disability.

It is shown by undisputed evidence that the operation not only was necessary but also was successful. It is true that Dr. Nixon and Dr. Hundley, concededly qualified orthopedic surgeons selected by the insurer, testified that they would have continued conservative therapy for a while longer before considering a myelogram or surgery. But their preference for conservative measures AAras based upon their belief that CaldAvell was suffering from a degenerative disc, for which conservative therapy is effective. Such treatment, however, is of no avail in the case of an extruded disc. Surgery alone can then give relief from pain and protection against the possibility of further complications. Thus the only real difference between the position taken by the insurer’s doctors and that taken by Dr. Murphy is that, the latter resorted to surgery earlier than the former thought such action to be advisable. In this conflict of opinion hindsight proves conclusively that Dr. Murphy’s decision was actually right. As the court observed in Laws v. Industrial Comn., 116 Utah 432, 211 P. 2d 194, surgery has rendered certain that which was previously uncertain.

Our statute requires an employer to provide promptly for an injured employee such medical and surgical service “as may be necessary” during the period of six months after the injury and for such additional time as the commission may require. Ark. Stat. Ann. § 81-1311 (Repl. 1960). (We should add that the six-month limitation is not in issue here, for the insurer recognized its continuing obligation to provide medical care, as, for example, by sending Caldwell to Dr. Hundley more than a year after the injury occurred.)

There is much discussion in the briefs about the right of an injured employee to make his own free selection of a doctor. We do not reach this issue-. Even if we should concede, without deciding, that the insurance carrier has the right in the first instance to select the physician, it does not unavoidably follow that Caldwell’s later choice of Dr. Murphy exempts the appellees from the expense of the operation.

It was the employer’s duty to provide this injured employee with necessary surgery. It has now been demonstrated with certainty that the operation was necessary. In fact, if the surgeons selected by the insurer had realized that the patient was suffering from an extruded disc they too would doubtless have recommended the procedures that Dr. Murphy adopted. The appellees ought not to be in a position to profit by their physicians ’ erroneous diagnosis, and this is true even though the error was made in complete good faith by doctors whose ability and standing are not questioned in the least.

Our holding is not intended to, and does not, give an injured workman unrestricted freedom to reject the medical care offered by his employer. Counsel for the appellant concede that Caldwell acted at his peril in overriding the insurer’s warning that the proposed operation would be at the claimant’s own expense. If the operation had disclosed a degenerative disc, for which conservative treatment was indicated, the surgical expense would not have been the employer’s responsibility. (Similarly, there is no contention that the appellees should pay for the claimant’s unauthorized and unavailing visits to the chiropractor.) It develops, however, that it was Dr. Hundley’s treatment that was in a sense unnecessary, in that it could not correct the condition that really existed, while the surgical operation was the right and necessary step. In this situation there is no sound basis for exempting the employer from liability upon the present claim. See Atlas Powder Co. v. Grimes, 200 Tenn. 206, 292 S. W. 2d 13.

The appellees also rely heavily upon this sentence in our compensation act: “The Commission may order a change of physicians at the expense of the employer when, in its discretion, such change is deemed necessary or desirable.” Ark. Stat. Ann. § 81-1311 (Repl. 1960). We believe that this provision was inserted in the statute to anticipate any possible doubt about the power of the commission to order a change of physicians. It should not be regarded as establishing an exclusive method of procedure, for, as a practical matter, an injured employee ordinarily has no lawyer and is not in a position to apply to the commission for a change of physicians. To construe the statute as narrowly as the appellees would have us do would convert this provision from a remedial measure designed to help the workman into a punitive measure designed to hurt him.

The judgment must be reversed, and the cause will be remanded, through the circuit court, to the commission for the entry of an award against the appellees for the reasonable expense of the surgical operation and for the claimant’s disability during his period of convalescence. The award should also provide compensation for any permanent partial disability that the commission finds to exist.

Reversed.

McF addin, J., concurs; Robinson, J., dissents.

Ed. F. McFaddin, Associate Justice

(concurring). The purpose of this concurrence is to emphasize my firm view that neither the employer nor the insurance carrier has the right to require an injured employee to he treated by a particular physician selected by the employer or insurance carrier, if the injured employee desires some other physician. I maintain that an injured employee has the right to select a physician of his own choosing. The statute (Ark. Stat. Ann. § 81-3111 [Repl. 1960]) says: “The employer shall promptly provide for an injured employee such medical, surgical, hospital, and nursing service ... as may he necessary ...” The important word in the statute is “provide”: that means to “supply,” or to “furnish.” The statute does not deprive the injured employee of the great American free enterprise right to select the doctor who is to treat him. The relationship of physician and patient is a personal one; and our Workmen’s Compensation Statute was not designed to usher in any phase of “state medicine.”

I realize that this concurrence may be dicta in the present case; but nevertheless I think it wise to state my views on this matter at this time.

Sam Robinson, Associate Justice

(dissenting). It might be well to keep in mind undisputed facts in this case. The employee was injured August 23,1960; he went to see Dr. Napper (presumably a doctor of his own choice) for about a week and then returned to work; he continued working every day and did not again go to a doctor until he went to Dr. Nixon about five months later on January 18, 1961. Dr. Nixon saw him again on February 20, March 14, and October 6; a total of four times in about 10 months. All during this period the employee was working every day.

In the meantime, the employee had visited Dr. Murphy on August 8, 1961. At that time Dr. Murphy reported.: “Mr. Caldwell is a 31 year old white male who, in my opinion, lias a disc problem. ... It is possible that surgery will have to be resorted to, but, of course, this depends on the symptoms and the wishes of the patient. At this time the patient has a disability in the neighborhood of 15% as related to the body as a whole. Whether or not this will improve will depend on future evaluations.” The employee had been injured for about á year and had a disability of only 15%. The employee’s visit to Dr. Murphy was more than six months after the injury occurred and the doctor was promptly notified that the employee was not authorized to engage the doctor’s services and that he must not look to the employer for his fee.

Following the visit to Dr. Murphy on August 8, the employee went to Drs. Kuhl and Kuhl, chiropractors, on August 18, 1961. During all this time the employee was working daily. After his fourth visit to Dr. Nixon over a period of about 10 months, the doctor recommended that he be referred to Drs. Watson, Adametz & Porter, neurosurgeons. On October 18, the employee went to see Dr. Hundley, an eminent orthopedic surgeon, who recognized at once that the man had disc trouble and that an operation might be necessary, but thought it advisable to first try conservative treatment. Just 12 days later, at a time when the employee had led Dr. Hundley to believe he was improving with the conservative treatment, he went to see Dr. Murphy, who performed an operation the very next day.

If the employer is liable for Dr. Murphy’s fee for operating on the employee, such liability must be based on Ark. Stat. Ann. § 81-1311 (Repl. 1960) which provides: “The employer shall promptly provide for an injured employee such medical, surgical, hospital and nursing service, and medicine, crutches, artificial limbs and other apparatus as may be necessary during the period of six [6] months after the injury, or for such time in excess thereof as the Commission, in its discretion, may require. If the employer fails to provide the services or things mentioned in the foregoing sentence within a reasonable time after knowledge of the injury, the Commission may direct that the injured employee obtain such service or thing at the expense of the employer, and any emergency treatment afforded the injured employee shall be at the expense of the employer.”

In my opinion, the above statute does not make the employer liable for Dr. Murphy’s fee for the operation, and there is no other statute or law making the employer liable under the facts in this case. Before the employer would be liable for Dr. Murphy’s fee for the operation, the treatment would have to be given within six months after the injury occurred, or such treatment must have been authorized by the Commission, or it must have been emergency treatment. None of these requirements existed. The treatment was not given within six months after the injury occurred; the treatment was not authorized by the Commission, and there Avas no emergency.

According to the undisputed evidence, the treatment did not occur within six months after the injury, and the Commission did not authorize it. That leaves the question of whether an emergency existed. The Commission held, in effect, that there was no emergency; there is more than substantial evidence to support that finding. The injury had occurred 14 months previously and the employee had worked every day for more than 13 months immediately preceding the operation.

It appears that the majority bases the decision in this case on a finding made by this court—not by the Workmen’s Compensation Commission—that Dr. Murphy had correctly diagnosed the case and that Dr. Nixon and Dr. Hundley had made an incorrect diagnosis. Even if the record justified such a conclusion—and in my opinion it does not—under the laAv the employer would not be liable because the treatment Avas given more than six months after the injury occurred, the Commission did not authorize the treatment, and no emergency existed.

The record does not justify a finding that any of the doctors Avere mistaken in the diagnosis. The last time the employee saAV Dr. Nixon Avas on October 6, 1961. The doctor suggested that he be transferred to Drs. Watson, Adametz & Porter for a neurological evaluation and treatment. These doctors are neurosurgeons who perform disc operations. There is weighty medical authority to the effect that only neurosurgeons should do this type of operation. It is shown by evidence that the Veterans Administration will permit only neurosurgeons to do this operation, and this is also the policy of Campbell’s Clinic, Mayo’s Clinic, and Johns Hopkins Hospital.

Definitely, the record shows that Dr. Hundley did not incorrectly diagnose the case. In fact, Dr. Hundley stated in his diagnosis: “It is felt that this patient very definitely presents organic evidence of an injury to his lower back which may consist of a mild herniation of the nucleus pulposus and certainly the great probability of this mildly degenerative disc at L5-S1. I have advised him to continue with his regular work, report daily for physical therapy and carry out the exercise in which he was instructed today.” Dr. Hundley’s diagnosis was made the first day he saw the man, October 18, 1961.

Of course no emergency was involved, the employee had been injured approximately 14 months before Dr. Hundley saw him, and furthermore, he was off from work for only a few days following the injury and had worked every day for more than 13 months at the time Dr. Hundley saw him. In these circumstances, the doctor thought conservative treatment was in order.

In Gray’s Attorneys’ Textbook of Medicine, Vol. 1, Page 304, in speaking of herniated nucleus pulposus (intervertebral disc) it is said: “Love (22) concludes all such diagnostic procedures and operations for removal of a nucleus pulposus to be of major significance. He recommends against operations except in cases of long standing with major symptoms, such as those who have spent perhaps six months in bed. Barr, Hampton and Mixter (14) point out that visualization by x-ray is an exacting procedure. They insist that treatment for sciatica should long be attempted before resorting to operation. ’ ’

Perhaps the majority opinion holding the employer liable for the surgeon’s fee is based entirely on the theory that Dr. Hundley had diagnosed the case as being one of a herniated disc, but when the operation was performed an extruded disc was found. For all practical purposes, where the condition of the disc is causing trouble there is no valid distinction between an extruded disc, a ruptured disc, and a degenerated disc. Prior to the operation the doctors do not appear to have laid any stress on the distinction. Even after the operation Dr. Murphy used all three terms in describing the employee’s condition. In a letter written by him to the insurance carrier regarding the employee following the operation, Dr. Murphy said: ‘ ‘ The following morning surgery was done. An extniclecl disc was noted at this level. ... I have conscientiously examined him, diagnosed his condition as a herniated disc, confirmed this with a myelogram, and rendered what I regard as competent treatment.” (our emphasis). In his testimony Dr. Murphy stated: "Now disc problems are not static. They are dynamic. There is a constant changing, depending upon whether or not the disc deterioration or degeneration continues to take place or remains static. Here we have an excellent example of injury caused by a known accident, causing the degeneration . . .” (our emphasis).

The distinction between an extruded, herniated, or degenerated disc appears to be a nice perception seized upon after the operation to make it appear that qualified orthopedic surgeons furnished by the employer had not correctly diagnosed the case. Just because appellee voluntarily furnished able and competent doctors after the six month period does not mean that the employee was at liberty to engage at the employer’s expense, a doctor unacceptable to the employer; one who had been notified that the employer would not pay his fee.

I might add that there is no question about the right of the employee to select his own doctor. Of course he has such a right, but there is no law that gives him the right to engage a surgeon to perform an expensive operation more than six months after the injury solely on his own initiative, and require his employer to pay the bill.

For the reason that I do not believe the law requires the employer to pay the surgeon’s fee in the circumstances of this case, I respectfully dissent.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Peerless Coal Co. v. Gordon.
    5-3058
    372 S. W. 2d 240
    Opinion delivered November 4, 1963.
    [Rehearing denied December 2, 1963.]

      Harper, Harper, Young $ Durclen, for appellant.

      Jack Yates, White & Martin, for appellee.
   Paul Ward, Associate Justice.

The Workmen’s Compensation Commission, in four separate cases, found appellees, Gerald Gordon, Robert Hyde, O. A. Richardson and James D. Wilson, totally and permanently disabled from silicosis contracted while working in a coal mine belonging to appellant—Peerless Coal Company. The award was affirmed by the circuit court, and this appeal follows. The four claims were consolidated for hearing at all stages on a joint record, and they are jointly here on appeal.

Appellant relies on two principal grounds for a reversal. One, the Commission’s awards are not supported by substantial competent evidence. Ttvo, the Commission acted without jurisdiction and in excess of its powers. For reasons hereafter set out we are unable to sustain appellant on either ground.

ONE

The Commission held that all four of the claimants are totally and permanently disabled with silicosis and that each was last injuriously exposed to the hazards of the disease within the last three years while employed in appellant’s mine. We do not understand appellant seriously challenges the finding that appellees are totally and permanently disabled, nor do we think it could do so. As to three of the claimants the evidence is beyond question, and, as to the other one, we find substantial evidence to support the finding of the Commission as to the extent of his disability.

Appellant does, however, ably and forcefully argue that there is no competent evidence to show its mine was ever a silica hazard. In support of this contention appellant introduced into evidence the results of three scientific tests performed in 1961. Rather than attempt to set out in detail the facts revealed by these tests, it may be conceded for the purpose of this opinion, that they show the silica content of the air taken from the mine to be harmless—that it would not induce silicosis. It appears to be appellant’s contention that such scientific evidence overcomes the testimony introduced on behalf of claimants. In fact appellant contends there is no evidence to show there was (in the mine) silica dust capable of causing silicosis. This being true, says appellant, there is no substantial evidence in the record .to sustain the finding of the Commission. For reasons presently set out, we are not convinced by the above argument.

In the first place we point out that the tests performed by appellant did not necessarily prove there was never at any time harmful silica dust in the mine. The air tested was taken in 1961 under conditions controlled by agents of appellant; it was near the entrance, and the ground had been dampened. These conditions bear little semblance to those under which appellees worked. It is undisputed that appellees worked for many years, often in a heavy dust, hundreds of feet underground. In the record there is testimony which, we think, amounts to substantial evidence to support the finding by the Commission that there was silica dust present in the mine sufficient to create a silica hazard. A few instances of such testimony are briefly set out below.

(a) The State Board of Health’s laboratory examined rock samples taken from subject mine in 1952 and found them to contain over 40% silicates.

(b) In the subject mine there is a layer of rock under the strata of coal. This rock is frequently blasted, causing a dense dust deep in the mine. It was often necessary to drill into the rock preparatory to blasting, and this also caused an accumulation of dust. To prevent an excess of rock dust, water was passed through the drill but sometimes the water hose broke while the drilling continued. At times the dust was so thick it was difficult to see clearly more than a few feet. Frequently it was necessary to put sand on the iron tracks used by the coal cars. Appellant admits silica is present in many rocks.

(c) The doctors first testified that claimants had silicosis, but later they admitted they were influenced by the knowledge that claimants had worked many years in coal mines. Apparently, had the doctors not had this information, they would have or might have diagnosed the disease as emphysema—a similar disease but one not covered by the act. In other words, it appears .to us that the doctors were merely taking into consideration the case history of the patient as a usual aid to diagnosis.

(d) Finally, x-rays of claimants’ lungs indicated the presence of silica.

For a reversal, appellant relies on the case of Collier-Dunlap Coal Company v. Dickerson, 218 Ark. 885, 239 S. W. 2d 9, pointing out what we there said:

“To affirm this case we would have to take judicial knowledge that the hazard of silicosis existed in appellant’s mine. This Court will not take judicial knowledge of such alleged fact.”

and further:

“If the rock, coal, or other elements in appellant’s mine give off silica dust causing the hazard of silicosis to exist, then such fact can be proved without great difficulty. Without such fact being proved the evidence is not sufficient to warrant the making of an award. ’ ’

In the cited case, however, we pointed out facts which differ from the facts in the case under consideration. We said: “There is no evidence in the record showing that any silica dust was ever in appellant’s mine. In fact there is no evidence on the point one way or the other.” We think, as previously pointed out, there is no such lack of evidence in the record in the case under consideration.

We are not convinced by appellant’s contention that the case here is distinguishable from the case of Peerless Coal Company v. Jones, 219 Ark. 181, 240 S. W. 2d 647. There we sustained appellee’s claim based on silicosis on even less direct proof than we have here. It is true that in the cited case there were no negative tests made of the air in the mines, but, as previously indicated, the tests in this case were not such as to preclude the possibility of silica dust in the mine at other times and locations.

From all the above we must conclude the record contains substantial evidence to sustain the Commission’s findings. Also, as stated in the Jones case, supra:

“We have many times held that the Workmen’s Compensation Law should be broadly and liberally construed, and that doubtful cases should be resolved in favor of the claimant.”

TWO

We see no merit in appellant’s argument that the Commission acted without jurisdiction because claimants did not give appellant notice according to Ark. Stat. Ann. § 81-1314 (c) (1) (Repl. 1960) which provides:

“(1) Except as herein otherwise provided procedure with respect to notice of disability or death, as to the filing of claims and determination of claims shall be the same as in cases of accidental injury or death. Written notice shall be given to the employer of an occupational disease by the employee, or someone on his behalf, within ninety (90) days after the first distinct manifestation thereof, and in the case of death from such an occupational disease, written notices of death shall also be given to the employer within ninety (90) days thereafter. ’ ’

Appellant says the record shows claimants failed to give it notice within the 90 days specified above. Conceding, for the purpose of this opinion, no proper notice was given, that fact does not bar appellees claim, because no objection was raised by appellant at or before the first hearing on their claims. See: Gunn Distributing Company v. Talbert, 230 Ark. 442, 323 S. W. 2d 434. It is true that the above case construed Ark. Stat. Ann. § 81-1317 which provides for notice in usual accidental injury cases. It reads: “Notice of injury or death for which compensation is payable shall be given within sixty [60] days after the date of such injury or death (1) to the Commission and (2) to the employer.” We know of no sound reason why the rule (regarding waiver of notice) applicable to occupational diseases should be different from that applicable to accidental injuries. In both instances the statute provides that notice shall be given. The only real differences are that § 81-1317 requires that notice be given within sixty days to both the Commission and the employer while § 81-1314 (c) (1) requires ninety days notice be given only to the employer. If, as held in the Talbert case, siopra, notice can be waived in accidental injury cases we think it can, in the same manner, be waived in occupational disease cases.

In conformity with what has been said above, we affirm the judgments of the trial court from which comes this appeal.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Prosser v. Ark. Baptist Hospital.
    5-3092
    372 S. W. 2d 395
    Opinion delivered November 4, 1963.
    [Rehearing denied December 9, 1963.]

      Robert J. Broten, for appellant.

      Acchione & King, for appellee.
   Sam Robinson, Associate Justice.

On December 19, 1957, William B. Moore was admitted, as a patient, to the Arkansas Baptist Hospital. In consideration of the services to be rendered by the hospital to Moore, appellant, Stewart K. Prosser, agreed in writing to pay for such services. When Moore left the hospital on December 24, there was a balance of $87.65 owed for services rendered. The account was not paid.

On June 2, 1959, in an effort to collect, the hospital filed this suit in the North Little Rock Municipal Court. Both Moore and Prosser were named as defendants. On motion of appellant Prosser, the case was transferred to the Municipal Court of Jacksonville. It does not appear from the record that either of the defendants filed an answer, and it does not appear that Moore was served with summons. In fact, the summons was returned by the Sheriff to the Municipal Court marked “non est” as to Moore.

On April 24, 1961, the cause came on for trial and judgment was rendered in favor of the hospital against the defendant Prosser. The judgment recites that both Prosser and Moore appeared in person and were represented by counsel; lienee, the fact that Moore was not served with summons is of no consequence. Nichols v. Arkansas Trust Co., 207 Ark. 174, 179 S. W. 2d 857; Purnell v. Nichols, 173 Ark. 496, 292 S. W. 2d 686; Austin v. Hemphill, 170 Ark. 945, 282 S. W. 1.

On August 11, 1961, the judgment of April 24 was set aside by the Municipal Court on motion of Prosser, and another judgment was entered against both Moore and Prosser. There was an appeal by Prosser to the Circuit Court, but it does not appear that Moore appealed. The trial in Circuit Court resulted in a judgment in favor of the hospital against Prosser, and he has appealed to this court.

It is appellant Prosser’s contention that he merely signed the agreement to pay the hospital as security for Moore and that it was the duty of the hospital, as provided by Ark. Stat. Ann. § 34-333 (Eepl. 1960), to commence suit against the alleged principal debtor, Moore, and prosecute such suit to a conclusion. It appears from the record before us that the hospital did the very thing that appellant contends it should have done. The record shows that not only did the hospital name Moore as a party defendant in this case, but actually secured a judgment against him in the Jacksonville Municipal Court.

Affirmed.

Harris, C. J., disqualified and not participating.


author: Jim Johnson, Associate Justice.

text:
    Napier v. Napier.
    5-3071
    371 S. W. 2d 841
    Opinion delivered November 4, 1963.

      Phillip E. Loh, for appellant.

      Thomas B. Tinnon, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from the Perry Chancery Court’s dismissal of a complaint for divorce. The parties, appellant Guy Napier and appellee Mary Napier, were married at Hartwell, Georgia, on September 27, 1960, and later moved to Mountain Home, where they purchased a home. Sometime in 1962 appellant moved to Perry County, appellee continuing to occupy the home in Mountain Home with their child who was born June 12, 1961. On November 16, 1962, appellant filed suit for divorce, alleging that appellant was a resident of Perry County, appellee a resident of Baxter County; that the parties had been separated since June 1962; that appellee treated him with contempt, neglect, hatred and abuse, systematically and continually, making his condition intolerable; that appellant had purchased a home in Mountain Home which was presently occupied by appellee; and prayed for determination of their interests in the real property and for a divorce. Appellee answered, admitting the marriage, the child and that her residence was Baxter County, denied all the other allegations, affirmatively alleged that appellant had deserted appellee and their child, without means of support or maintenance, and prayed for dismissal of appellant’s complaint. Appellee cross-complained for support, child support, attorney fees and costs, Avhich appellant answered and denied.

A hearing on appellee’s petition for temporary child support and attorney, fees Avas held on December 3, 1962, at AAdiich time appellant was ordered to pay $25.00 per week child support and $50.00 attorney’s fee pendente libe. The suit came to trial February 5, 1963, folloAving Avhich, by order filed April 23,1963, the Chancellor found that appellant failed to prove grounds for divorce, dismissed appellant’s complaint, and further ordered appellant to continue to pay $25.00 per week child support and aAvarded an additional fee of $100.00 to appellee’s attorney. From the decree comes this appeal.

For reversal appellant urges that the preponderance of the evidence established that appellee had been guilty of personal indignities such as to create in appellant grounds for divorce, and the trial court erred in failing to so find.

At final hearing, appellant had the testimony of three AAdtnesses, one to corroborate his residence and tAvo, himself and another (his mother), to testify concerning his grounds for divorce. In defense of the marriage, appellee Avas the only witness. The Chancellor had the opportunity to see, hear, and question these Avitnesses, which he did. Dearien v. Lancaster, 221 Ark. 98, 252 S. W. 2d 72. We do not feel that it Avould he helpful to detail the testimony, because on virtually every point the testimony was in conflict and frequently unconvincing for either party. As we have said so many times, the State is always a party to a marriage, Dunn v. Dunn, 222 Ark. 85, 257 S. W. 2d 283; Whitford v. Whitford, 100 Ark. 63, 139 S. W. 653; Hill v. Rowles, 223 Ark. 115, 264 S. W. 2d 638; Mohr v. Mohr, 206 Ark. 1094, 178 S. W. 2d 502; and this is one contract that should not be dissolved capriciously. Trying this case de novo on the record before us, we cannot say that the Chancellor’s conclusions that appellant failed to prove grounds for divorce are against the preponderance of the evidence. Snyder v. Snyder, 233 Ark. 188, 343 S. W. 2d 420.

Appellee’s attorney is hereby allowed $150.00 for his services in this court, which shall be taxed as costs.

Affirmed.


author: Prank Holt, Associate Justice.

text:
    Cheney, Commissioner v. Georgia-Pacific Paper Corp.
    5-3090—3091
    371 S. W. 2d 843
    Opinion delivered November 4, 1963.

      Lyle Williams, A. W. Nisbet and Henry Ginger, for appellant.

      Paul Sullins and Griffin Smith, Gaughan & Laney and Bridges, Young and Mattheivs, for appellee.
   Prank Holt, Associate Justice.

The main question presented in these consolidated cases is whether the use tax exemption provided by statute is applicable to the purchase of turbine generators which are being used by both appellees, Georgia-Pacific Paper Corporation and International Paper Company, in their respective operations of manufacturing or producing paper products. Georgia-Pacific Paper Corporation claims additional exemptions on its purchase of such items as anion resin, a sewer cleaning ball, miscellaneous conveyors, two small turbines, a towmotor and carrier, and recorder chart rolls. The appellant, the Commissioner of Revenues, levied an assessment in the sum of $30,935.84 against Georgia-Pacific Paper Corporation based upon the tux-bine gexxerator plus the other exxumerated items. The use tax assessxnexxt levied agaixist Ixxterxxatioxxal Paper Coxxxpaxxy was upoix the txxrbixxe gexxerator oxxly ixx the amouxxt of $27,063.69, or three per cexxt (3%) of the recexxt pux-chase px-ice of $1,908,549.04. The pexxalties were waived. The assessxnexxt agaixxst the Ixiterxxatioxxal Paper Coxxxpaxxy was paid xxxxder protest axxd actioxx was brought agaixxst appellaxxt to recover this sum paid uxxder protest oxx the basis the tux-bixxe gexxerator is exempt from the use tax. Appellee, Georgia-Pacific Paper Corporation, sought axx ixxjunctioxx to restraixx the Commissioxxer of Revenues from further proceedings to collect the tax assessed agaixxst it axxd sought a Declaratory Judgmexxt to establish that the above named itexxxs are primary facilities used directly ixx their maxxufacturixxg or processixxg operation axxd therefore, exempt pursuaxxt to Ax-k. Stat. Ami. § 84-3106 (Supp. 1961). This statute provides ixx pertiíxexxt pax-t as follows:

"84-3106. Exenxptioxxs.—There are hereby specifically exempted from the taxes levied ixx this Act [<$><$> 84-3101-84-3128]: * # *

Maxxufacturixxg or processixxg machinery, replacement parts, materials, and supplies used directly ixx the manufacturing or processixxg operation provided; such materials, machinery, supplies, axxd equipmexxt are xxot available within this State by reason of xxot being maxxufactured or produced within Arkansas; or are xxot available from ixxstate sellers’ or suppliers’ stocks in trade within this State. It is the intent of this subsection to exempt only such equipment, machinery, materials, or supplies that constitute the primary facility engaged in the direct production, processing or manufacturing of articles of commerce at industrial and processing plants in Arkansas and which are not available from the seller’s regularly maintained stock in this State.

The terms ‘manufacturing’ and ‘processing’ as used herein, refer to and include those operations commonly understood within their ordinary meaning and shall include mining, quarrying, refining, and the production of natural resources, cotton ginning, and rice drying. Hand tools, buildings, transportation equipment, expendable items, office machines and supplies, and all other materials which are incidental or useful in connection with the manufacturing or processing operations and not directly used in the primary production processing or manufacturing are not included or classified as exempt. ’ ’

The appellant controverted the claimed exemptions. The cases were consolidated for trial by agreement.

In the case of Georgia-Pacific Paper Corporation, the Chancellor found that “the items on which the tax is sought are all directly used in the manufacturing or processing operation, within the meaning of the exemption. ” As to International Paper Company, the Court found “that the 20,000 K.W. steam turbine generator as employed in the Pine Bluff Mill of the plaintiff is a primary facility used directly in the processing and manufacturing operation of making wood, pulp and paper * * * that it is exempt from * * *” the use tax.

On appeal appellant relies for reversal upon four points which are aptly encompassed by appellant’s statement that:

“The question as to all of the above mentioned articles is whether or not such are directly used in manufacturing or processing within the meaning of the compensating tax exemption statute,- Ark. Stat., Sec. 84-3106 (D) (Pocket Supp.) * * *”

There appears to be no dispute about the fact that these items were unavailable for purchase in Arkansas.

The appellant does, however, strenuously dispute that the evidence presented by the appellee was sufficient to bring the questioned items within the purview of the statue. We agree with appellant that the burden is on appellees to clearly show they are entitled to the exemption from the use tax. There is no implied exemption from a tax and a claimant must clearly establish an exemption, since taxation is the rale and exemption the exception. Biscoe v. Coulter, 18 Ark. 423; Scurlock v. Henderson, 223 Ark. 727, 268 S. W. 2d 619. With this rule of law in mind, we now proceed to review the pertinent facts as adduced by the testimony in the cases at bar.

In the Georgia-Pacific Paper Corporation plant the logs are debarked in a “barking drum.” The debarked logs are moved to a knife clipping machine where they are cut into small chips. The wood chips are placed in a silo for storage. They are withdrawn as needed and loaded into “digesters” where a cooking liquor compound is mixed with the chips. The “digester” is closed and then steam pressure at 160 pounds is admitted from the turbine generator. The chips are cooked for three hours at 100 pounds pressure. This dissolves the bonding material that holds the cellulose together in the wood. "When the cooking is complete, then the cellulose fibers known as pulp remain. The pulp is then further washed and screened in the assembly line process. The wood fiber or pulp, in a suspension of water, is delivered to the paper making machines. These machines have continuous fine mesh bronze wire which holds the cellulose on the wire while permitting the water to drain through this mesh. The fibers form a mat on top of this mesh screen. It is pressed to further remove moisture and then goes into and around a series of heated cylindrical driers. These driers operate under 40 to 60 pounds of steam pressure received from the turbine generator. The purpose is to further dry the product, the mat of fibers, into a finished sheet of unbleached paper such as paper for newsprint and telephone directories. A further process is required to produce bleached pulp from which is made a heavier, stronger product such as milk cartons and drinking cups.

There are several boilers which utilize as fuel the waste material such as the bark, the chipper residue and the concentrated spent cooking liquor from the “digesters.” This fuel is used to generate steam in the boilers at 850 pounds pressure. The steam is then funneled to the turbine at this high pressure. As the steam passes through the turbine, turning parts of it, the energy is gradually spent or the steam pressure reduced. At the reduced level of 160 pounds pressure some of the steam is extracted and supplied to the ‘ ‘ digesters ’ ’ for the cooking of the pulp. The balance of the steam continues on through the turbine until the pressure level is further reduced to 60 pounds. At this point some of the steam is further withdrawn and funneled to that portion of this assembly line process where it is used in drying, evaporation in the tubular heat exchangers and various other applications. As the turbine is turning because of the steam pressure, thus reducing the pressure, it drives the generator which generates the electricity. Thus it provided the motive power for the various machines, pumps and other equipment in the paper making process. Therefore, the turbine generator performs a dual function. It utilizes the steam to generate electrical energy and in so doing it reduces the steam pressure and emits it at certain levels to component parts of the paper manufacturing process where it is used for various purposes, such as cooking, drying and heating.

The turbine generator in the plant of International Paper Company performs basically the same functions. The steam pressure enters the turbine from the boilers at 1,250 pounds where it is reduced and discharged to component parts in the mill at pressure levels of 400, 140 and 60 pounds. This machine was built according to specifications to fit a particular need. Thirty-two per cent (32%) of the steam entering the turbine is consumed in generating electricity. The balance of sixty-eight per cent (68%) is processed to proper pressure levels by the turbine and thence flows directly to various applications in the paper making process. Only approximately one-half (%) of one per cent (1%) of the electricity generated by the turbine is used in the mill for such needs as lighting and air conditioning.

The tenor of the appellees’ evidence was that in modern paper mills the turbine generator is a facility of primary importance in fulfilling the unique requirements of a continuous and unitary mechanical operation. It is undisputed that the use of steam turbine generators creates a balance between two forms of energy in the paper making process,—steam for cooking, heating, evaporation and drying—electricity for motive power. Although appellant presents a forceful and persuasive argument, we think the Chancellor was correct in his findings that these turbine generators, as employed and used by appellees, are clearly primary facilities used directly in the processing and manufacturing of paper products and, therefore, exempt from the use tax. Certainly it cannot be said his findings are against the clear preponderance of the evidence.

Appellant contends that the function of the turbine generator is a separate and distinct process and is completed before the manufacturing of the paper actually begins. Appellant relies on Scurlock v. Henderson, supra, where it was held that ginning cotton is not a manufacturing process. We do not consider this case in point. When cotton is ginned it is still raw cotton without the seed. In the case at bar the entire process, including the turbine generator, converts a raw material into a finished product which is taxed when it enters commerce. It is significant that at the next legislative session following the Henderson decision the statute was amended to exempt cotton ginning.

There is compelling evidence in this ease by recognized authorities that a steam turbine generator is such a necessary facility to a modern paper mill that one would not be constructed without such machinery. Each of these turbine generators is located in the very heart of the manufacturing process and performs ■ much the same function as the mainspring of a watch. Appellant quotes from Black’s Law Dictionary (4th Ed.) that:

“Primary is defined as ‘First; principal; chief; leading.’ Primary Purpose is defined as ‘That which is first in intention; which is fundamental’.”

Applying this definition it seems apparent to us that the steam turbine generator is a primary facility in the paper manufacturing process. If the turbine generator were removed the manufacturing operation would cease.

Other jurisdictions have construed turbine generators to be machines used “directly” in a manufacturing process and thus exempt. Allis-Chalmers Mfg. Co. v. Iowa State Tax Comm., (Iowa) 92 N. W. 2d 129; City of Ames v. State Tax Commission, (Iowa) 71 N. W. 2d 15; Niagara Mohawk Power Corp. v. Wanamaker, (N. Y.) 144 NYS (2) 458; Youngstown Building Material and Fuel Co. v. Bowers, (Ohio) 149 N. E. 2d 1. In the Allis-Chalmers case it was said:

“This turbine generator not only makes the electricity but furnishes steam which passes through it for * * * processing.”

Under any fair construction of our statute, giving the word “direct” a reasonable meaning in the cases at bar, we think the turbine generators are being directly used as primary facilities in the manufacture of paper products. To hold otherwise would be too narrow a construction and an unreasonable refinement.

In construing the legislative intent we not only look to the language of the statute but to the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, the contemporaneous legislative history or other appropriate matters that throw light on the intent of the legislature. Arkansas State Highway Comm. v. Mabry, 229 Ark. 261, 315 S. W. 2d 900. In Morley v. Brown & Root, Inc., 219 Ark. 82, 239 S. W. 2d 1012, we said:

“There can be little doubt that the desire of the Legislature to encourage new industries to locate in the State prompted the passage of this exemption section, and it is proper to view and interpret the section in that light. ’ ’

We think it is manifest that our legislature clearly intended to exempt such machinery as these turbine generators when they are an integral part of the plant, employed and used in a manufacturing process such as in the cases at bar.

We have carefully reviewed the statutory rules of construction and the cases cited by appellant. Although ably presented, we do not consider them to be controlling in the cases at bar.

Appellee, Georgia-Pacific Paper Corporation, contends that certain miscellaneous items are also exempt from the use tax. Among these items are two small turbines. They are usable in driving fans that create the draft for the boiler and in pumping “feed water” to it. These turbines are used to drive some of the auxiliary equipment in the boilers and cause them to function. It appears that these small turbines are not readily adaptable to interchange or relocation between mills. We consider these turbines to be such an integral part of the functional system of the paper manufacturing process that they are also exempt for the reason we have heretofore given.

Appellant contends that the remaining items are excluded, or not clearly exempted by the terms in the last paragraph of § 84-3106 (D) [Ark. Stat. Ann. (Supp. 1961)] which reads as follows:

‘ ‘ * * # Hand tools, buildings, transportation equipment, expendable items, office machines and supplies, and all other materials which are incidental or useful in connection with the manufacturing or processing operations and not directly used in the primary production processing or manufacturing are not included or classified as exempt.”

Anion resin is a material to soften water and remove impurities from it before it goes into the boiler. This tends to prevent “scaling up” of the boilers. The sewer cleaning ball is a rubber ball with fins which is placed in the water lines at the water wells and washed through the lines for a distance of approximately five or six miles to the plant. These balls are used to clear any accumulated debris from the lines. The miscellaneous conveyors are used in moving waste material from a storage bin at the lumber mill into a mechanism that feeds a pneumatic conveyor which blows the waste material over to the paper mill. The waste material is then used as fuel for the boilers. The towmotor and carrier item is used to transport material between processes in the plants. The recorder chart rolls are information devices which are used to record the functioning of plug making equipment. They are information devices only.

As stated, this court has consistently held that the burden is on the taxpayer to establish clearly that the legislature intended the claimed exemption since taxation is the rule and exemption the exception. An exemption cannot be implied. Biscoe v. Cotdter, supra; Scurlock v. Henderson, supra; McCarroll v. Mitchell, 198 Ark. 435, 129 S. W. 2d 611; Wiseman v. Ark. Wholesale Grocers’ Assn., 192 Ark. 313, 90 S. W. 2d 987, and Hilger v. Harding College, Inc., 231 Ark. 686, 331 S. W. 2d 851. "VYe do not think the appellee, Georgia-Pacific Paper Corporation, has sufficiently met the burden of proof required of it as to these miscellaneous items being exempt. However, we do not mean to say that under all circumstances such items could never be exempt.

In the case of the Georgia-Pacific Paper Corporation, the decree is affirmed as to the turbine generator and the two small turbines; the decree is reversed as to the remaining items [anion resin, sewer cleaning ball, miscellaneous conveyors, towmotor and carrier, and recorder chart rolls] and the cause remanded with directions to enter a decree not inconsistent with this opinion.

The decree is affirmed as to International Paper Company.

This being an equity case, we adjudge all costs against the appellant.

In the opinion of Justice Robinson the balance of these miscellaneous items comes within the purview of the statute and are, therefore, exempt from the use tax.

Harris, C. J., not participating.


author: George Rose Smith, J.,

text:
    Osborne v. State.
    5068
    371 S. W. 2d 518
    Supplemental opinion on rehearing delivered November 4, 1963.
   George Rose Smith, J.,

on rehearing. One assignment in the appellant’s motion for a new trial was that “the jury was misinstructed by the court over defendant’s objections.” In our original opinion we held this assignment to he too general in its language to support a contention that a particular instruction was erroneous.

In a petition for rehearing counsel point out that there was only one objection to the instructions, that being a specific objection to Instruction No. 8. Hence, it is argued, the assignment of error—-that the jury was misinstructed over the defendant’s objection—could only have referred to Instruction No. 8, for no other part of the charge was given over the defendant’s objections. We think this reasoning to be sound, and we accordingly consider the point upon its merits.

Instruction No. 8 was directed to the State’s proof that the accused had passed other forged checks. The instruction told the jury that this proof would not justify a finding of guilty upon the two offenses that were being tried, but the proof might nevertheless be considered with .respect to the matter of guilty knowledge or the existence of a common plan. In objecting to the instruction counsel specifically asked the court to tell the jury not to consider the other offenses in fixing any punishment that might be imposed. This request Avas denied.

We think the request should have been granted. Under our habitual criminal statute prior convictions may be a basis for increasing the punishment for the offense on trial, Ark. Stat. Ann. § 43-2328 (Supp. 1961), but in the absence of a conviction the jury ought not to consider some other offense as a reason for increased punishment. As we said in Alford v. State, 223 Ark. 330, 266 S. W. 2d 804: “If the accused has committed other crimes, each may be examined separately in a court of law, and punishment may be imposed for those established Avith the required certainty.” See also Ingram v. State, 39 Ala. 247.

There should be no doubt in the minds of the jurors about the purposes for Avhich they may properly consider the proof of other offenses. “When proof of other crimes is admitted, the court must instruct the jury as to the limited purpose of its admission, and that they must confine its lose to that purpose. The failure to so instruct the jury is reversible error if prejudicial.” Wharton’s Criminal Evidence (12th Ed.), § 248 (italics added). This is essentially the position we took in Norris v. State, 170 Ark. 484, 280 S. W. 398, for there the instruction that Avas approved not only explained the purpose of the proof of other offenses but Avent on to tell the jury that “yom should consider such evidence for this purpose and for this purpose alone.”

Original opinion delivered October 7, 1963, p. 5.

In the present case the court stopped short after telling the jury that the proof of other offenses would not justify a verdict of guilty but might be considered upon the issue of guilty knowledge and common plan. Thus the instruction told the jury not to consider the evidence for one purpose, allowed the jury to consider it for another purpose, and said nothing' one way or the other with respect to a third purpose—the assessment of punishment. .In this situation the jurors might very well have supposed that it was proper for them to take the other offenses into account in fixing the sentence; certainly there was nothing to prevent them from taking that view.

An error is presumed to be prejudicial unless the contrary affirmatively appears. Crosby v. State, 154 Ark. 20, 241 S. W. 380. In view of the fact that here the jury imposed the maximum sentence of twenty years imprisonment for the forgery and uttering of a check for $87.63, for which restitution appears to have been made, we certainly cannot say that it affirmatively appears that the prior offenses were not taken into account in the assessment of the punishment.

When an erroneous ruling has nothing to do with the issue of guilt or innocence and relates only to the punishment, it may be corrected by reducing the sentence to the minimum provided by law. Webb v. State, 154 Ark. 67, 242 S. W. 380. Hence, unless the Attorney General files a request within seventeen days for the cause to be remanded for a new trial, the sentence upon each count will be reduced to the minimum of two years, Ark. Stat. Ann. § 41-1805 (1947), to be served consecutively, and as so modified the judgment will be affirmed.

The petition for rehearing is granted.

Harris, C. J., would deny the petition.


author: Carleton Harris, Chief Justice.

text:
    McLeod v. Meyer.
    5-3101
    372 S. W. 2d 220
    Opinion delivered November 11, 1963.

      Bethel é Pearce, for appellant.

      Hardin, Barton & Hardin, for appellee.
   Carleton Harris, Chief Justice.

Appellant, J. W. McLeod, is an individual d/b/a Line Service Company in Lamar, Missouri. Since 1951, he has'been engaged in the business of clearing rights of way and keeping them clear of brush thereafter for companies which build and use transmission lines, such as electric power and telephone companies. Darrell E. Meyer, appellee herein, was employed by appellant as an area manager in 1960, and the parties entered into a written contract of employment. This contract, inter alia, contained the following provision:

“Employee agrees that he will not for a period of five years after the termination of his employment with the company for any reason, either on his part or on the part of the company, engage in any way directly or indirectly as an owner, agent, or employee in any business competitive with the company’s business nor solicit or in any manner work for or assist any competitive business in the states of Missouri, Kansas, Oklahoma and Arkansas. ’ ’

Meyer’s employment was terminated by appellant as of November 25, 1962. Subsequently, appellee instituted suit in the Chancery Court of Sebastian County (Fort Smith District) against appellant wherein he sought to recover salary and expenses alleged to be due under the contract, and also sought a declaratory judgment invalidating the contractual provision which denied Meyer, after termination of employment, the right to participate or engage in a similar trade or business for a period of five years in the four states heretofore mentioned.

Appellant filed an answer, admitting that appellee was due the sum of $825.06 for salary and expenses, and also a counter claim, seeking an order directing Meyer to deliver to appellant a certain automobile and other property which McLeod contended belonged to him. Appellant contended that the aforementioned restraint agreement was fair and reasonable, and the court was asked to enjoin and restrain appellee from violating this provision of the contract. After the filing of certain other pleadings, the cause proceeded to trial. On March 6, 1963, the court entered its decree, finding, inter alia, that Meyer should recover from McLeod the sum of $1,224.81 as salary and expenses due; that the contract provided that upon termination of employment the automobile should be immediately returned to appellant; that the provision wherein Meyer agreed not to engage in a competitive business (set out in Paragraph One) for a period of five years in the four states mentioned, “is unreasonable in that it encompasses too large an area and an unreasonable length of time, and is therefore void. ’ ’ From the decree so entered, appellant brings this appeal. While the notice of appeal recites that the entire decree is being appealed from, the appeal actually relates only to the Chancellor’s action in declaring the aforementioned provision in the employment contract unreasonable and void. Appellant asserts that the employment contract was reasonable, and insists that the court should have ordered specific performance of the agreement by appellee.

There are no statutes in Arkansas governing contractual restraint provisions as to area or length of time, though the question has been raised in several cases before this court. These provisions are sometimes found in two types of contracts. One type is where an established business is sold, and the seller agrees not to enter into the same business for a certain period of time, or in a particular area. The other type relates to contracts between employers and employees, as in the present instance. An analysis of Arkansas cases reveal that our court has been more prone to uphold restrictive clauses under the former type of agreement than under the latter. In American Excelsior Laundry Co. v. Derrisseaux, 204 Ark. 843, 165 S. W. 2d 598, we pointed out the distinction between the two types of agreement. However, our cases hold (in each category) that Avhether a restraint provision is reasonable or unreasonable (and thus valid or invalid), is a matter to be determined under the particular circumstances involved.

Appellant, in his brief, relies mainly on our holding-in Orkin Exterminating Co. of Arkansas v. Murrell, 212 Ark. 449, 206 S. W. 2d 185. There, Murrell agreed that he would not directly or indirectly, “for himself or in behalf of any other person or corporation” engage in the exterminating, fumigating, or termite control service during the term of his employment or for one year following the termination of the agreement in an area embracing part of the state of Arkansas. Murrell, under his assigned duties, had access to all records, customers’ listings, and credit ratings. Trade secrets, were involved, as Orkin maintained a research department wherein the nature and habits of insects and rodents were ascertained, and chemicals and compounds were prepared to be used in their destruction without danger to human beings or damage to furniture, woodwork, etc. Chemicals were mixed and formulae reported. The contract bound the parties to continue the employer-employee relationship for a specified period of time. Murrell subsequently resigned and entered the pest control business for himself in violation of his agreement. This court held that the contract between the parties was reasonable and enforceable.

The circumstances in the instant case are quite dissimilar to the above recited facts. For instance, Murrell voluntarily resigned to enter competitive business. Here, Meyer was fired. Further, under the Orkin contract, Murrell received the protection of a definite period of employment, while employment in the case before us could be terminated at any time upon 30 days notice. Moreover, Murrell did, by virtue of his position and the nature of his employment, receive valuable trade secrets, as well as customer listings and individual credit ratings, but these circumstances do not exist in the instant litigation. In the first place, as heretofore set out, only a limited number of concerns could use the service offered by appellant. Certainly, any individual by simply looking in the telephone directory, could locate the names of electric companies, telephone companies, or telegraph companies, and then easily ascertain the person in charge of the clearing of foliage between power lines, and in rights of way. Of course, in his work, Meyer learned the difference between light, medium, and heavy foliage, and it was necessary that he learn about spans of brush and how to measure density, but there was no special or secret process used in making this determination. The knowledge of how to bid for á job was gained by Meyer, but the information acquired here would hardly seem to come under the classification of “secret formulas;” rather, it was simply the knowledge which one acquires by experience. Actually, it does not appear that any secret formula was used at all.by appellant. Chemicals used were sold on the open market, and in some instances the customers furnished their own chemicals. The substance would be mixed with water or diesel oil, and these mixtures were prepared by the foreman of the particular crew doing the work, rather than by appellee.

It is permissible for one to use the experience and knowledge gained during a period of employment. The experience and knowledge thus acquired as an employee does not become the property of the employer. Witmer v. Arkansas Dailies, Inc., 202 Ark. 470, 151 S. W. 2d 971.

Be that as it may, the main difference between the facts in Orhin and the case before us, and the circumstances that are most persuasive to the conclusion reached, relate to the period of time and the area covered in the restraint clause. In Orhin the contract provided that Murrell would not engage in the pest control business for one year following termination of his employment, and the area covered was a part of one state. Here, the contract provided that Meyer would not engage in a competitive business for five years, and the area covered is four states. This case bears some similarity to American Excelsior Laundry Co. v. Derrisseaux, supra. In that case, Derrisseaux entered into a contract with the laundry company to solicit laundry and dry-cleaning for appellant’s plant, and agreed that he would not at any time within five years after the termination of the agreement, engage in the laundry and dry-cleaning business in the territory assigned to him under his contract. The term of employment was at will. Derrisseaux worked under the contract for a little over three months and then quit, engaging in business for himself, soliciting and delivering laundry and dry-cleaning over the same route. The laundry company instituted suit, and on trial, the court held the restraint provision of the contract void. On appeal, we affirmed the trial court. It might be mentioned, as far as area is concerned, that case involved only a rural route territory out of Pine Bluff. In McCumber v. Federated Mutual Implement & Hdw. Ins. Co., 230 Ark. 13, 320 S. W. 2d 637, we held that a contract restraining competition for two years in a nine-county area was void as an unreasonable restraint of trade.

It is suggested by appellant, that if the court feels that the restriction of 5 years is too long a period, ‘ ‘ there would be no reason why the protection of the decree could not be for a shorter period of time.” We do not agree, for courts will not vary the terms of a written agreement. To do so, would simply be to make a new contract between the parties, and we have consistently held that this will not be done. Refrigeration Discount Corp. v. Haskew, 194 Ark. 549, 108 S. W. 2d 908; Roth v. Prewitt, 225 Ark. 467, 283 S. W. 2d 155.

It is apparent, under the facts in this case, that the restraint clause is much broader than that in Derrisseaux or McGumber, and we agree with the chancellor that the provision in question is “unreasonable in that it encompasses too large an area and an unreasonable length of time, and is therefore void.”

Affirmed.

       This automobile had been attached, and was being held by the Sheriff of Sebastian County. The court ordered appellee to bear the costs of storage to date of judgment, and ordered appellant to bear the cost from the date of judgment until same was satisfied.

       See Bloom v. Home Insurance Agency, 91 Ark. 367, 121 S. W. 293 (1909); Hampton v. Caldwell, 95 Ark. 387, 129 S. W. 816; Wakenight v. Spear & Rogers, 147 Ark. 342, 227 S. W. 419; McClure v. Young, 193 Ark. 188, 98 S. W. 2d 877.


author: Ed. F. McFaddin, Associate Justice.

text:
    Sample v. Sample.
    5-2998
    372 S. W. 2d 609
    Opinion delivered November 11, 1963.
    [Amended on Denial of Rehearing Dec. 23, 1963.]

      J. R. Wilson and R. PL. Peace, for appellant.

      Mahony & Yocum and Grumpier & O’Connor, for appellee.
   Ed. F. McFaddin, Associate Justice.

On March 15, 1962 the plaintiffs filed suit in th.e Union Chancery Court against the defendants, who number more than a score of persons. The plaintiffs (appellants here) are Mrs. Betty Joe Sample Anderson, Mrs. Josephine Sample, and Mrs. Pattie Jane Purifoy Peek. Some of the defendants filed motions to quash service, and others of the defendants filed demurrers. The Trial Court sustained all of the motions and demurrers and dismissed the plaintiffs’ complaint when they refused to plead further. From such final decree dismissing the complaint there is this appeal. The demurrer issue is determinative, because if no cause of action was stated, then the complaint was properly dismissed, even if service had been valid (a matter we need not consider in view of the conclusions that we reach.)

The complaint alleged that J. F. Sample died intestate in Union County, Arkansas, on September 1, 1904, survived by a widow and ten children as his heirs at law; that one of the heirs at law was a son, Claude Sample, who inherited an undivided one tenth interest in the estate of J. F. Sample; that Claude Sample died intestate on September 24, 1923, survived by the plaintiff, Mrs. Josephine Sample, as his widow, and by the plaintiff, Mrs. Betty Joe Sample Anderson, as an heir at law; that another child and heir at law of J. F. Sample was Mrs. Grace Sample Purifoy, who also inherited one tenth of the estate of J. F. Sample; that Mrs. Purifoy also died intestate; that the plaintiff, Mrs. Pattie Jane Purifoy Peek is a daughter and one of the heirs at law of her mother, Mrs. Grace Sample Purifoy and, as such, is entitled to a portion of the J. F. Sample estate. The plaintiffs sought to recover their claimed interests in the J. F. Sample estate and to hold certain defendants liable. Since there are three plaintiffs, we consider separately the ¿negations of each as contained in- all of the pleadings of the plaintiffs.

I. The Allegations Of Mrs. Betty Joe Sample Anderson. This plaintiff claimed that upon the death of J. F. Sample in 1904, his widow, Mrs. Fannie E. Sample became administratrix of his estate; that Claude Sample (being one of the ten heirs of J. F. Sample and being the father of the plaintiff) died intestate in 1923; that a guardian was duly appointed for this plaintiff; that on one of the bonds executed by the said guardian, Clark Sample and C. H. Murphy were sureties; that this plaintiff is entitled to an accounting in this chancery action and is entitled to a judgment against Claude Sample and the heirs of C. H. Murphy, the said sureties on the said guardianship bond. In the complaint there is this positive allegation: "One of the plaintiffs, Betty Joe Sample, now Anderson, would show the court that there has been no final settlement filed in the matter of guardianship of Betty Joe Sample, minor.”

Because of the above quoted allegation the complaint fails to state a cause of action in equity against the sureties on the guardianship bond. In Waldrop v. Cooper, 192 Ark. 1017, 96 S. W. 2d 19, we held that until the guardian’s liability has been established by an order of the probate court, an action could not be maintained against the sureties on the bond. Here is the language:

"We agree with the trial court that the complaint failed to state a cause of action cognizable in equity. The guardianship is still pending in the probate court,' with no final settlement and no discharge of the guardian. No liability of the guardian has ever been established by an order of the probate court, and no order to pay over money found to be due on any final settlement has been alleged to be in default. Until this is done there is no liability against the bond. It was so held in Vance, Guardian v. Beattie, 35 Ark. 93, where it was said: ‘Before final settlement of the accounts of Malone as guardian, and an order of the probate court for him, or his administrator, to pay over to appellant as his successor in the guardianship, some balance found due his Avards on such settlement, appellant has.no legal cause of action on the bond of Malone. ’ Citing Sebastian v. Bryan, 21 Ark. 447; Norton v. Miller, 25 Ark. 108. See also Smith v. Smithson, 48 Ark. 261, 3 S. W. 49. As said in State v. Buck, 63 Ark. 218, 37 S. W. 881: ‘Until this settlement was made, and the balance due from the guardian ascertained by the court, the appellant had no cause of action that she could enforce, either at laAv or in equity against the sureties on her guardian’s bond.’ See, also, Wallace v. Swepston, 74 Ark. 520, 86 S. W. 398, 109 Am. St. Rep. 94.”

Mrs. Betty Joe Sample Anderson also alleged that in 1961 she executed a deed to certain property which is now owned by the First Baptist Church of El Dorado; and that the Church took the deed Avith full knowledge of the claim of these plaintiffs as to their legal interest in the property. There is no allegation that the Church, or anyone connected with it, defrauded the plaintiff in any Avay, or Avas guilty of any unfair practice. There are no specific allegations of any facts showing fraud by anyone in connection with the deed that the plaintiff executed. In McIlroy v. Buckner, 35 Ark. 555, Mr. Justice Eakin, speaking for this Court, said:

“It is not sufficient to plead fraud generally, or merely to characterize actions as fraudulent. The facts and circumstances constituting the fraud should be set forth. There should be some concealment, misrepresentation, craft, finesse, or abuse of confidence, by Avhich another is misled, to his detriment; and these or some of them, must be alleged and proved. Mere epithets, or adverbs characterizing conduct, which, in itself, may be innocent, amount to nothing. This has been repeatedly ruled by this court. ’ ’

To the same effect, see also: Burns v. Burns, 199 Ark. 673, 135 S. W. 2d 670; Ledwidge v. Taylor, 200 Ark. 447, 139 S. W. 2d 238; and Jansen v. Blissenbach, 210 Ark. 22, 193 S. W. 2d 814.

The complaint failed to state a cause of action as regards the conveyance of the property now held by the Church: so as to Mrs. Betty Joe Sample Anderson, the Trial Court was correct in sustaining the demurrers to her complaint.

II. The Allegations Of Mrs. Josephine Sample. This plaintiff claimed that Claude Sample inherited an undivided one tenth interest in the estate of J. F. Sample; that Claude Sample died intestate on September 24, 1923; that this plaintiff is entitled to her dower interest in the estate of Claude Sample and is entitled to an accounting against various defendants who might have received some part of the estate of J. F. Sample. But the complaint further alleged that there appears of record in Book 61 at page 486 in the Deed Records of Union County, Arkansas, a warranty deed with relinquishment of dower, dated April 9,1918, whereby Claude R. Sample and Josephine Sample, his wife, for the consideration of $1,000.00, conveyed to Mrs. F. E. Sample all the grantors’ interest in the estate of J. F. Sample in Union County, Arkansas. The only allegations seeking to void this deed are these: that the acknowledgment appears to be defective in that it fails to comply with statutory requirements; that “The plaintiffs would show the court that this purported deed is void; . . .”; and “The plaintiffs would show the court that there is no evidence of any money having been paid to Claud R. Sample or Josephine Sample for this alleged deed.”

As to the defective acknowledgment: we have had many curative acts since 1918 curing defective acknowledgments. In Ark. Stat. Ann. §49-213 (1947), there is the Act No. 422 of 1941; and prior curative acts are listed in the annotation to such statute. So the vague allegation of “defective acknowledgment” was subject to demurrer. As to the allegation, “. . . that this purported deed is void . . . ”: this allegation was a mere conclusion; and was subject to demurrer. See Wood v. Drainage Dist., 110 Ark. 416, 161 S. W. 1057. As to the allegation that the deed was without consideration: in the absence of any sufficient allegation of facts as to mental incapacity, fraud, duress, etc. (and no sufficient allegations of such a nature were contained in the pleadings), then evidence could not have been introduced to show a total absence of consideration. See Davis v. Jernigan, 71 Ark. 494, 76 S. W. 554; Mewes v. Mewes, 116 Ark. 155, 172 S. W. 853; and Mo. Pac. Rd. Co. v. Swafford, 186 Ark. 631, 55 S. W. 2d 85.

The Chancery Court was correct in ruling that the complaint of Mrs. Josephine Sample failed to state a cause of action.

III. The Allegations Of Mrs. Pattie Jane Purifoy Peek. This plaintiff claimed that her mother, Mrs. Grace Sample Purifoy, inherited a one-tenth interest in the estate of J. F. Sample; that Mrs. Purifoy also died intestate, and that this plaintiff as one of the heirs at law of her mother was entitled to an interest in the estate of J. P. Sample. This plaintiff further alleged that her father, L. L. Purifoy, was in 1924 duly appointed her guardian by the Probate Court of Union County, Arkansas, and on January 5, 1924, made the regular statutory guardian’s bond with C. H. Murphy as surety thereon; that the said guardian executed various oil and gas leases, and various other conveyances, with special bonds in each instance, as required by statute, and with various sureties; and that this plaintiff was entitled to an accounting in this chancery action against the estate of her said guardian and the estate of each and all of the sureties on the various bonds, as well as against the heirs of any of the sureties that may be dead.

The complaint had this specific allegation: “The record shows that there was no settlement made of the Purifoy guardianship ...” This allegation in the complaint is fatal to the alleged cause of action of Mrs. Pat-tie Jane Purifoy Peek because, as we have already shown in considering the allegations made by Mrs. Betty Joe Sample Anderson, until there has been a settlement of the guardianship proceedings in the Probate Court, there can be no suit in law or in equity to charge the guardian or the sureties on his bond. It is therefore clear that the allegations made by Mrs. Pattie Jane Purifoy Peek fail to state a cause of action; and the Chancery Court was correct in sustaining the demurrer to her pleadings.

CONCLUSION. After considering every angle of the case we reach the conclusion that the Chancellor was correct in sustaining the demurrers and dismissing the complaint; and it therefore becomes unnecessary for us to consider the matter of the quashing of service. The decree is in all things affirmed.

       Later an amended and substituted complaint was filed and an amendment thereto. We consider all of the plaintiffs’ pleading under the generic word, “complaint.” The amended and substituted complaint consists of 136 pages in the transcript.


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    Watkins v. Johnson.
    5-3102
    372 S. W. 2d 243
    Opinion delivered November 11, 1963.

      Parker Parker, for appellant.

      Smith, Williams, Friday £ Bowen and Ben Allen. Williams £ Gardner, Elmer Conklin, Jr., Martin, Logan, Moyers, Martin and Conway, J. K. Schooler, White £ Young, Ray Thornton, C. E. Blackburn, John F. Curran £ M. Darwin Kirk, for appellee.
   Ed. F. McFaddin, Associate Justice.

When our mandate was filed in the Trial Court as a result of the first appeal, the Watkins heirs- filed an amendment to their complaint, which amendment prayed, inter alia: . . ■ "

“. . . that if the Court finds that the deeds from Plaintiffs to W. H. Johnson are valid, that this Court find and decree that they are co-tenants with W. H. Johnson, his heirs and assigns and that all of said Defendants he ordered to account to Plaintiffs for one-sixth (l/6th) interest of rents and profits from said lands; that this Court decree that Plaintiffs are owners in fee simple in one-sixth (l/6th) of the lands herein described. Plaintiffs pray for all their cost and for all other proper relief in Law and Equity to which these Plaintiffs áre entitled. ”

A voluminous record is before us. The Trial Court made definite findings of fact and conclusions of law, a summation of which is: (a) that the deeds from the Watkins heirs to W. H. Johnson were valid; and (h) that even if W. H. Johnson might have been a co-tenant with the Watkins heirs for the one-sixth interest in the dispute, nevertheless the Watkins heirs are barred loy limitations from a recovery against the present owner, A. W. Johnson.

I. Forgery. The evidence shows that in the period from 1910 to 1924, W. H. Johnson, the maternal uncle of the children of Lewis L. Watkins, received a deed from all of the Watkins heirs and went into possession of the lands. The Trial Court found these deeds to be valid; and that finding is correct. The original deeds are before us: we have examined them, and we conclude that the Trial Court was correct in sustaining the deeds as valid.

II. Statute Of Limitation. Even conceding that W. H. Johnson became a co-tenant with the said Watkins heirs for the 1/6 interest in dispute, nevertheless the Watkins heirs are barred by limitation against the present owner, A. W. Johnson. On August 5, 1943, W. H. Johnson sold the lands here involved, and other lands, to his son, A. W. Johnson, for a valid consideration recited to be $5,000.00. A general warranty deed from W. II. Johnson to A. W. Johnson was .recorded on August 5, 1943, describing the entire 120 acres here involved. The evidence further establishes: that A. W. Johnson took possession of all of said lands in 1943 and has been in possession thereof ever since; that the lands were and at all times have continued to be fenced, with part in crops and part in pasture; that A. W. Johnson has paid taxes each year on the lands, and has had tenants on the lands at all times since 1943; and that A. W. Johnson has been in open, notorious, hostile, adverse, exclusive, and continuous possession of the entire 120 acres at all times since August 5, 1943, and has pleaded the 7-year statute of limitation (Ark. Stat. Ann. §37-101 [Eepl. 1962]) against the Watkins heirs in this case.

The plea of limitation is supported by abundant evidence and is determinative of the present appeal. In a long line of cases we have held when a co-tenant executes a deed to a stranger to the title, describing the entire land, and such grantee enters into exclusive possession under such deed, then such deed constitutes color of title, and such entry commences the running of limitation in favor of the grantee and against all the other co-tenants of the grantor. Parsons v. Sharpe, 102 Ark. 611, 145 S. W. 537; Jackson v. Cole, 146 Ark. 565, 226 S. W. 513; Landman v. Fincher, 196 Ark. 609, 119 S. W. 2d 521; Ulrich v. Coleman, 218 Ark. 236, 235 S. W. 2d 868. Even though A. W. Johnson was a first cousin of the Watkins children, nevertheless A. W. Johnson was a “stranger to the title” when he received the deed from W. H. Johnson in 1943, because he was not a privy of the Watkins heirs. Rye v. Bauman, 231 Ark. 278, 329 S. W. 2d 161; 83 C.J.S. page 109; Succession of Baker (La.), 55 So. 714. The appellants did not file the present action until 1960; so from 1943 to 1960 A. W. Johnson had far more than seven years of unquestioned adverse possession of the land.

The decree of the Chancery Court in favor of A. W. Johnson is in all things affirmed.

       This result was true because appellants, claiming to be the five heirs of L. L. Watkins, had each signed a deed to W. H. Johnson stating that such deed conveyed the grantor’s “undivided one-sixth interest” in the property; and the total of the five deeds, under the appellant’s theory, would be five-sixths of the entire fee. Since those deeds were beyond attack (as held in the first appeal), there remained only an undivided one-sixth interest for further litigation, ás here involved. It is conceded in the briefs that each deed conveyed only an undivided one-sixth interest in the lands, and we so treat the case; but our investigation of the original deeds in the record now before us shows other language in some of the deeds which other language might convey all of the grantors’ interest, regardless of the fraction stated. Furthermore, in the deed of E. G. Watkins to W. H. Johnson, the description is: “All of our undivided interest in and to the following lands” (describing them); no fractional interest being stated in that deed. But throughout this opinion we treat the case as though each deed to W. H. Johnson conveyed only a one-sixth interest in the land.

       It will be recalled from the opinion on the first appeal that Lewis L. Watkins had five children; that his widow, Jennie, married Mr. Woods; and that Oliver Woods was a child of that marriage. No explanation is offered as to why it was thought by W. H. Johnson that Oliver Woods had a l/6th interest in the 120 acres of land here involved, since such lands were owned by Lewis L. Watkins; but the explanation may be found in the fact that this 120 acres of land was listed as an asset of Oliver Woods’ mother, Mrs. Jennie Woods, as disclosed by the inventory of her estate, which is in the record.


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    Fitzgerald v. Allyn.
    5-3110
    372 S. W. 2d 228
    Opinion delivered November 11, 1963.

      Trantham & Knauts, for appellant.

      Frierson, Walker é Snellgrove, for appellee.
   Ed. F. McFaddin, Associate Justice.

Don R. Fitzgerald died as the result of injuries he sustained in an automobile mishap on the night of December 16, 1962. He was a guest in the car being driven by Bobby Joe Allyn, appellee. The appellants, being the parents of Don R. Fitzgerald, brought this action for damages against Bobby Joe Allyn, alleging that he was guilty of willful and wanton negligence in the driving of the automobile and that such willful and wanton negligence caused the death of Don R. Fitzgerald. Trial to a jury resulted in a verdict and judgment for the appellee; and on this appeal appellants urge these points:

1. The jury’s finding is against the uncontradicted evidence and every legitimate inference deducible therefrom.

2. There is no substantial evidence to support the jury’s verdict.

3. The verdict is against incontrovertible physical facts and is radically wrong.

We consider all three of these points together, as they all go to the appellants’ contention that the undisputed evidence shows that Bobby Joe Allyn was guilty of willful and wanton negligence.

The evidence established: that Don R. Fitzgerald was 29 years of age and lived alone in Clay County, Arkansas; that on the night of December 16, 1962 he went to a tavern in Missouri several miles from his home and consumed some beer; that when midnight closing hour arrived Fitzgerald asked the defendant, Bobby Joe Allyn (aged 25), who had also been drinking beer, to drive Fitzgerald to his home in Allyn’s car; that with a 6-pack of beer the two left the tavern in Allyn’s car and drove to Fitzgerald’s home several miles aivay; that when they arrived at Fitzgerald’s home he decided he wanted to go to a tourist court a few miles away, and Allyn drove him there; that Fitzgerald then decided he would return to his home, and Allyn started with him on the return drive; that enroute the car had a flat tire and the two men changed the tire; that they then reentered the car and while proceeding to Fitzgerald’s home, Allyn drove the car into a bridge abutment with such force and speed as to turn the car around; and that Fitzgerald was killed in the collision with the bridge. Shortly after the collision Allyn voluntarily submitted to an alcoholic blood level test, which disclosed that Allyn was intoxicated.

The plaintiffs insisted, inter alia, that Allyn was guilty of willful and wanton negligence in that he was driving while intoxicated and was driving in a reckless manner and at an excessive speed. The defendant insisted, inter alia: (a) that he was not guilty of willful and wanton negligence; (b) that Fitzgerald assumed the risk of defendant’s driving; (c) that Fitzgerald ivas guilty of contributory negligence; and (d) that the parties were on a joint mission. The status of Fitzgerald as a guest in the Allyn car appears to have been conceded, so that the burden was on the plaintiffs to establish that the defendant was guilty of willful and wanton negligence in the operation of the vehicle. Ark. Stat. Ann. §75-913 and §75-915 (Repl. 1957).

The case was tried to a jury and the Court instructed on all applicable phases of the law, and submitted the case to the jury on a series of interrogatories designee to obtain answers on the various issues developed. The plaintiffs offered no objection to any of the instructions or interrogatories submitted. The first interrogatory was: “Do you find from a preponderance of the evidence that Bobby Allyn was guilty of willful and wanton misconduct in the operation of his vehicle which proximately caused the death of Don Fitzgerald.” The jury answered this interrogatory in the negative; and based on such answer the Trial Court rendered judgment for the defendant. From such judgment there is this appeal in which appellants claim the jury’s negative answer is against the undisputed evidence.

"We hold that a jury question was made as to whether the defendant, Allyn, was guilty of willful and wanton negligence in the operation of the automobile. Even though it was conceded that Allyn had been drinking beer to an excess and was driving the car, we cannot hold that such facts establish willful and wanton negligence as a matter of law. Allyn was in sufficient possession of his faculties to drive his car a number of miles from the tavern to the Fitzgerald home, then to the tourist court, then to work with Fitzgerald in changing a tire—all • of which occurred before the fatal collision. Furthermore, the evidence showed that immediately prior to the collision Fitzgerald told Allyn he believed there was another flat tire; and that Allyn was in the process of pulling his car to the shoulder when he hit the bridge abutment. The highway was 21 feet wide, whereas the bridge was only 18 feet wide; there were no reflectors to indicate that the abutment narrowed the traffic area; and Allyn testified that he was never travelling in excess of 55 miles per hour at any time.

To prevail on this appeal the appellants must establish that the Trial Court should have instructed the jury that Allyn was guilty of willful and wanton negligence as a matter of law even under the facts as here developed ; and we are convinced that the question of willful and wanton negligence was a jury question in this case. See Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226; Poole v. James, 231 Ark. 810, 332 S. W. 2d 833; Cooper v. Calico, 214 Ark. 853, 218 S. W. 2d 723; Froman v. Kelley, 196 Ark. 808, 120 S. W. 2d 164; and Stobaugh v. Hubbard, 234 Ark. 917, 355 S. W. 2d 283.

There is another and additional reason, sufficient in itself, why there -must be an affirmance of this case. Such reason is because the appellants did not request an instructed verdict on the issue of willful and wanton negligence, nor did they otherwise register in the Trial Court their dissatisfaction with the submission of the issue to the jury: there was neither a motion for new trial nor a motion non obstante veredicto. Rock-Ola Mfg. Corp. v. Farr, 226 Ark. 279, 290 S. W. 2d 2; and Granite Mt. Rest Home v. Schwarz, 236 Ark. 46, 364 S. W. 2d 306.

Affirmed.

       Originally the brothers and sisters of Don R. Fitzgerald were joined as plaintiffs; but, without objection, the Court dismissed as to them, so that only Mr. and Mrs. C. C. Fitzgerald (father and mother of Don R. Fitzgerald) remained as plaintiffs.

       This answer in the negative made it unnecessary. for the jury to answer any of the other interrogatories.