text:
    Barnes v. Ark. Public Service Comm.
    5-2817
    362 S. W. 2d 1
    Opinion delivered November 5, 1962.
    [Rehearing denied December 10, 1962.]

      Fulk, Lofton, Wood, Lovett & Parham, by T. S. Lovett, Jr., for appellant.

      Mark E. Woolsey, for appellee.
   Neill Bohlinger, Associate Justice.

This case involves the furnishing of telephone service to an area involving about fifteen (15) square miles in the northeast corner of Conway County which community is known as the Austin Community. The two applicants for authority to provide service were the Southwestern Bell Telephone Company which will herein be referred to as Bell, and the Arkansas Telephone Company which will be referred to as Arkansas.

On July 21, 1960, the Arkansas Public Service Commission, in a proceeding initiated by Bell, allocated this area to Bell. Bell’s proposal for supplying telephone service to the Austin Community is from an exchange or central office to be located in the community of Center Ridge, approximately five (5) miles from the community of Austin, plus what is known in the industry as Extended Area Service (EAS) to the whole of Conway County. Extended Area Service is the type of service which would furnish toll-free telephone service between closely situated telephone exchanges in the area having a common community of interest. Extended Area Service, being toll-free, has a higher- base rate than does local exchange service.

Acting under the allocation of the area to Bell, the Bell Company made surveys and proceeded to project its plans to install exchanges in the towns of Center Ridge and Cleveland in Conway County and to extend area-service from these exchanges to the town of Morrilton, the County Seat of Conway County. A majority of the citizens of the Austin area filed their petition, in which they were joined by the Arkansas Telephone Company, asking the Arkansas Public Service Commission to set aside its allocation of the territory to Bell and award the same to Arkansas.

In an effort to evaluate the interests of the public with the contention of the utilities, there was a public meeting in the community of Austin where representatives of Arkansas and Bell were present to explain the types of service each proposed'to render. Questionnaires were distributed by the Commission staff to the residents in attendance at that meeting and it appears that of thirty-seven (37) questionnaires returned, twenty-two (22) of the residents preferred the Arkansas and fifteen (15) preferred Bell. The Arkansas Public Service Commission thereafter conducted a formal hearing and on July 20, 1961, issued its order denying the petition of Arkansas and residents of the Austin Community, and refused to set aside the order allocating this territory to Bell. An appeal to the Pnlaski Circuit Court followed and that court affirmed the Commission and the cause is presented here as an appeal from that judgment.

It would appear at first blush that the equity in this case would favor Bell which, proceeding under an order of the Commission, had expended time and effort in order to survey and project its service to the territory involved, during which time [a full year] Arkansas made no move in opposition to the Commission’s order or the activities of Bell. However, the matter of equity between competing utilities does not address itself to the Public Service Commission, hut that body is concerned with an effort to determine the best interest of the people in the whole area involved.

The findings of the Commission clearly indicate the efforts of the Commission and the discharge of its responsibilities.

“5. The Commission has previously allocated the area involved herein to the Southwestern Bell Telephone Company, which company has made surveys and is presently in process of perfecting plans to install exchanges in the towns of Center Ridge and Cleveland in Conway County, and to extend area service of these exchanges into the town of Morrilton, which is the County Seat of Conway County. The Company contemplates and is presently drawing plans to include the area involved herein in the Center Ridge exchange area.

6. The Commission’s staff continued investigations which culminated in a public meeting in the community of Austin, at which meeting representatives of the Southwestern Bell Telephone Company and the Arkansas Telephone Company were present and explained the types of service each would render to the community, after which questionnaires were passed out by the Commission’s staff to each of the residents in attendance and the results thereof were contained in the report of the Staff, which is Staff Exhibit No. 1, in this proceeding, indicating that sentiment and desires were fairly divided as to which company was preferred.

The Commission believes and so finds that if the area which has been previously allocated to Southwestern Bell Telephone Company should be reallocated to Arkansas Telephone Company for service, such action might jeopardize the interests of the residents throughout the remainder of Conway County insofar as receiving county wide Extended Area Service — therefore, the petition should be denied.”

It is clear from the record in this case that under Bell’s proposal the base rate per month would be approximately $1.00 higher than would be service under Arkansas. However, under the Bell plan there would be toll-free service throughout Conway County, whereas under the Arkansas plan there would be a toll charge for any call in Conway County other than the Austin Community. Under the Arkansas plan there would be toll-free service through the Clinton exchange and eventually the Shirley exchange, both of these exchanges being situated in an adjoining county.

We think the facts in this case bring it squarely within our pronouncement in the case of Incorporated Town of Emerson v. Arkansas Public Service Commission, 227 Ark. 20, 295 S. W. 2d 778:

“It is well settled by our decisions that the Commission is clothed with broad legislative and administrative powers and that a review of its findings and order by either the circuit court or this court, on appeal, is considerably limited in its extent. Ark. Stats., Sec. 73-233 (d) provides that such review shall not be extended further than to determine whether the Commission has regularly pursued its authority, including a determination of whether the order under review violated any right of the complainant under the U. S. or State Constitutions. However this does not mean that the courts cannot inquire beyond mere formality when other provisions of the statute are considered along with Sec. 73-233, supra. In this connection we have repeatedly held that if the Commission’s order is supported by substantial evidence, free from fraud, and not arbitrary, it is the duty of courts to permit it to stand, even though, the courts might disagree with the wisdom of the order. Department of Public Utilities v. Ark.-La. Gas Co., 200 Ark. 983, 142 S. W. 2d 213; City of Fort Smith v. Southwestern Bell Telephone Co., 220 Ark. 70, 247 S. W. 2d 474; Arkansas Power & Light Co., v. Arkansas Public Service Commission, 226 Ark. 225, 289 S. W. 2d 668.”

In upholding the Commission’s order under the facts in the above case, this court also said:

“* * * It is understandable why the inhabitants of Emerson proper now prefer the services of Union and if their interests alone were at stake we might readily agree that the Commission acted both unwisely and arbitrarily. It is also easy to understand why Union can offer more attractive rates by declining to serve a substantial portion of the less populous rural territory, adjacent to Emerson. The problem of the Commission was to determine the best interests of the people of the whole area in question. Viewed from that standpoint its findings and conclusions are supported by the substantial evidence. ’ ’ [Emphasis added]

There is testimony in the record which indicates that if the Austin Community is excluded from Bell’s plan, some of the residents of the adjacent rural area would also be excluded. Therefore, viewing all the facts, we are unable to state that the Commission acted arbitrarily in considering the interests of the people of the whole area involved and that the Commission’s order and finding are not supported by substantial evidence.

The finding of the Commission and the judgment of the Circuit Court are accordingly affirmed.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Kurck v. State.
    5045
    362 S. W. 2d 713
    Opinion delivered November 12, 1962.
    [Rehearing denied December 17, 1962.]

      Lightle & Tedder and Jack M. Lewis, for appellant.

      Frank Holt, Atty. General, by Milas H. Hale, Asst. Atty. General, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Clinton Kurck, was charged by information with the crime of rape, it being alleged that on November 6, 1961, he assaulted and raped one Phyllis Carlton. Appellant filed a motion, to dismiss the information, asserting that the court had no jurisdiction over the area wherein the alleged crime was committed, due to the fact that such lands were acquired by the United States on August 18, 1959, and jurisdiction over the territory had been ceded to the United States by the State of Arkansas, pursuant to Section 10-1103, Ark. Stats. A uno. The motion was overruled by the court, and on trial, the jury found appellant guilty of the crime of Assault with Intent to Rape, and fixed his punishment at four years confinement in the Arkansas State Penitentiary. From the court’s judgment so entered, appellant brings this appeal. For reversal, appellant relies upon five points, as follows :

I

The court has no jurisdiction for the reason that the scene where the alleged crime was committed had been condemned and taken by the United States Government on August 18, 1959, and under Arkansas Statute 10-1103, which was then in effect, all jurisdiction of the State had been ceded to the United States Government.

II

The defendant was entitled to examine the jury panel on voir dire as to their conscientious belief as to the death penalty.

III

The court erroneously refused defendant’s instruction No. 1 and instructed the jury as to the crime of' assault to commit rape — the intercourse being admitted..

IV

The court erred in permitting leading questions by' the State.

V

The court erred in refusing defendant’s requested' instruction No. 2 relative to prosecutrix’s duty to make-an outcry.

We proceed to discuss each alleged error in the order listed hy the appellant.

I

In 1939, the Legislature enacted Act 327 which appears in Volume 2, Ark. Stats. Anno. (1947) as Section 10-1103. That section reads as follows:

“The consent of the State of Arkansas is given to the acquisition by the United States by purchase or condemnation with just compensation or by grant or otherwise, of such lands in the State of Arkansas as in the opinion of the Federal government may be needed for the construction of dams, reservoirs, floodways, locks, canals, hydro-electric power plants, channel improvements, channel diversions, and for such other works as may be necessary for the control of floods, the development of hydroelectric power, the irrigation of lands, the conservation of the soil, recreation, and other beneficial water uses, and the jurisdiction of this state within and over all grounds thus acquired by the United States within the limits of the State of Arkansas is hereby ceded to the United States. Provided, that this grant of jurisdiction shall not prevent execution of any processes of this State, civil or criminal, on any person who may be on said premises.”

Title 40 U.S.C.A., Section 255, deals with the acquisition by the United States of jurisdiction over lands to which it has acquired title for various purposes. Pertinent portions read as follows:

“Notwithstanding any other provision of law, the obtaining of exclusive jurisdiction in the United States over lands or interests therein which have been or shall hereafter be acquired by it shall not be required; but the head or other authorized officer of any department or independent establishment or agency of the Government may, in such cases and at such times as he may deem desirable, accept or secure from the State in which any lands or interests therein under his immediate jurisdiction, custody, or control are situated, consent to or cession of such jurisdiction, exclusive or partial, not theretofore obtained, over any such lands or interests as he may deem desirable and indicate acceptance of such jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor of such State or in such other manner as may be prescribed by the laws of the State where such lands are situated. Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted. ’ ’

In 1959, the Arkansas General Assembly passed Act 256 [§ 10-1127 through 10-1129, 1961 Supp.], which had the effect of repealing Section 10-1103, since the provisions of 10-1103 and 10-1127 and 10-1128 are in conflict. This, of course, is known as “repeal by implication”. The act, inter alia, provides that the United States, through a duly authorized department, agency, or officer, shall file a notice of intention to acquire legislative jurisdiction, with the Governor. “The notice shall contain a description adequate to permit accurate identification of the boundaries of the land or other area for which the change in jurisdictional status is .sought and a precise statement of the measure of legislative jurisdiction sought to be transferred.”

The Governor then makes his recommendations, together with those of the Attorney General, to the next session of the General Assembly “which shall be constitutionally competent to consider the same”. Further, the Chief Executive shall cause duly authenticated copies of the notice and act to be recorded in the office of the Recorder of the county where the land or other area affected by the transfer of jurisdiction is situated.

Appellant calls attention to the fact that in our first act [10-1103], there was no provision for specific or additional action on the part of the state, or the United States, before jurisdiction passed to the federal government. Appellant says, ‘ ‘ The statute unequivocally and without any attempt at providing a method whereby the United States might acquire jurisdiction for criminal purposes automatically ceded all jurisdiction over the lands.” Appellant then points out that the United States filed its Declaration of Taking in the United States District Court on August 18, 1959, and, under his view, at that time, jurisdiction over these particular lands passed to the United States Government. Appellant emphasizes that this taking occurred before the effective date of Act 256 of 1959 [10-1127 through 10-1129, 1961 Supp.], and, accordingly, argues that jurisdiction over the premises where this alleged offense took place, was in the United States Government on November 6, 1961, the time of the occurrence complained of. It is not really necessary to discuss which state statute was in effect at the time of the alleged offense, for appellant’s argument is fallacious from another standpoint. The portion of Title 40, Section 255, heretofore quoted, provides that the head or other authorized officer of the government agency may accept jurisdiction on behalf of the United States by filing a notice of such acceptance with the Governor or such other manner as prescribed by the laws of the state; further, “unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted. ’ ’ It is, thus, apparent that, even though Section 10-1103 was the effective state act at the time of the taking, still under Title 40, the United States Government had not accepted jurisdiction over these lands, i.e., the record does not reflect that notice of acceptance has been filed with the Governor of Arkansas, or jurisdiction accepted in any other manner. Certainly, the state cannot force jurisdiction upon the federal government, and until such time as an acceptance is filed by the United States, jurisdiction remains in this state. The burden was upon appellant to establish a lack of jurisdiction, and this has not been done. We thus find no merit in this contention.

II

Appellant contends that he was entitled to question each member of the jury panel relative to such juror’s views concerning the death penalty. Upon objection by the Prosecuting Attorney, who had previously stated that he was not seeking the death penalty, the court refused to permit the respective jurors to answer. Even if this ruling by the court constituted error, we are unable to see how appellant was prejudiced. Of course, if the jury had brought in a verdict fixing punishment at death in the electric chair, a far different matter would be presented. Here, however, the sentence was rather light, and we have held that where an error by the court inures to the advantage of a defendant, he cannot be heard to complain. Bruce v. State, 68 Ark. 310, 57 S. W. 1103, Glenn v. State, 71 Ark. 86, 71 S. W. 254.

In addition, it does not appear from the transcript that appellant exhausted his peremptory challenges. This, in itself, would preclude the finding of merit on this point. See Green v. State, 223 Ark. 761, 270 S. W. 2d 895, and Nail v. State, 231 Ark. 70, 328 S. W. 2d 836.

III

Appellant stoutly maintains that the court erred in not giving his requested instruction No. 1, and by instructing the jury on the crime of assault with intent to commit rape, inasmuch as he admitted the act of intercourse with the prosecuting witness, but contended that such act was committed with her consent. Appellant’s requested instruction No. 1 defined the crime of rape, and further stated,

“If these allegations are proved beyond a reasonable doubt, there is but one form of verdict that would be responsive, that is, guilty as charged, the punishment of which is death in the electric chair or life imprisonment at hard labor. Under the evidence in this case, you would have to find the defendant either guilty of rape or not guilty of any offense; there is no evidence here that would authorize this court in submitting any other offense whatever than that laid in the Information, which is rape.”

This instruction was refused. The court, over the objections of appellant, gave the following instruction:

“Under this information it is competent for you if you think the evidence justifies it, to convict the defendant of rape, of assault with intent to commit or to acquit the defendant outright.”

The court then defined the charge of assault with intent to commit rape. Appellant, which admitting that the cases of Harrison v. State, 222 Ark. 773, 262 S. W. 2d 907 and Bradshaw v. State, 211 Ark. 189, 199 S. W. 2d 747, hold that the charge of assault with intent to rape may be included within the charge of rape, under circumstances similar to the case before us, then asserts there is a conflict in our decisions, and cites the cases of Whittaker v. State, 171 Ark. 762, 286 S. W. 937, and Bailey v. State, 227 Ark. 889, 302 S. W. 2d 796. In those two cases, we held that the trial court did not err in refusing a request from the defendant for an instruction on assault with intent to rape. Appellant feels that the latter cases express the proper view, and should govern this appeal. It is not here necessary to reconcile the holdings in these cases, for the facts in the instant appeal fall squarely within the holding in Harrison v. State, supra. There, the evidence on the part of the prosecutrix was to the effect that she was forcibly raped by Harrison, while Harrison admitted intercourse, but insisted that it was with her consent. The jury was instructed that it could find the appellant guilty of the lesser offense of assault with intent to rape, and appellant contended (as is here contended) that he was either guilty of rape, or no crime at all. This court, quoting from Bradshaw v. State, supra, stated.

“ ‘An assault with intent to commit rape is included in the charge of rape, and a conviction may be had of the former offense under an indictment for the latter. * * * If it be conceded that the testimony would logically demand a verdict of guilty of rape or nothing, it does not follow that a conviction of an attempt to rape should he avoided here. The jury had the power to return the verdict and the offense is less than the crime charged.

“It was therefore clearly permissible for the jury to convict appellant of the lesser crime of assault with intent to rape, when charged with rape.’ ”

In Lindsey v. State, 213 Ark. 136, 209 S. W. 2d 462, appellant contended that, because the state’s evidence went only to the charge of rape, the jury should not have been instructed on the crime of assault with intent to rape. We said,

“Appellant is mistaken in thinking that attempt is not included in a charge of rape. He relies upon Whitaker v. State, 171 Ark. 762, 286 S. W. 937, where Mr. Justice Wood said the trial court correctly instructed that, under the testimony there, the appellant, if not guilty of rape, was entitled to an acquittal. He did not say, however, that it would have teen error to instruct that attempted rape was included in the greater charge.”

It follows that this point is without merit.

IV

Appellant complains that the court erred in permitting certain leading questions by the state. All were objected to and exceptions saved. Those questions were as follows :

“Did you resist his efforts to rape you?”
“Now, at this point, may I ask you this, were you wearing what we ordinarily refer to as panties?”
“Young lady, tell the jury whether or not this intercourse was of a painful character. ’ ’
“Was that painful to you ? ”
“Did you say in response to a question propounded to you by Mr. Lightle that you screamed or didn’t scream at the time he inserted his private in your body?”

In the first place, it does not appear that some of the questions come within the category of leading questions, and certainly, we cannot see how any prejudice resulted to accused. Appellant says that these questions “inflamed” the minds of the jurors, and also states that the first question assumes a fact not supported by testimony, i.e., intercourse without the prosecutrix’s consent. As to the last, Miss Carlton certainly testified that the act of intercourse was without her consent, and that she struggled to prevent it. As to the former, there are several facts in evidence, which would likely have been much more persuasive in “inflaming the minds of the jury” — if the jury had been inclined, or subject, to being “inflamed”. For instance, it was definitely established by the testimony of Dr. Nathan Poff, who examined Miss Carlton, that she was a virgin prior to the act complained of. From his testimony:

“I examined this white female, and the physical examination revealed a well developed, well nourished white female apparently as stated 18 years old in near hysterical state, quite nervous, tense — after some discussion I was able to calm her down and at this time was able to from examination find a torn blouse a bruised right thumb, a scratch on her right arm, a linear bruise of her right shoulder, scratched inner thigh, approximately the upper third of the thigh. The woman was having some bleeding from the vaginal vault or vaginal bleeding. * * *
“Q. Did you examine the hymen?
A. Yes sir.
Q. Was it intact?
A. No, it was not intact.
Q. Could you determine how recently it had been broken?
A. In my estimation it had recently been broken due to the fact that there was active bleeding at that time.
Q. In your opinion was this young lady a virgin prior to this breaking?
A. In my honest opinion I believe she was. ” * * *
Q. . . . you say in your honest opinion she was a virgin recently, is it possible she might not have been?
A. Medically speaking or miraculously speaking?
Q. Medically speaking?
A. No.
Q. In your opinion there was no way in which she could not have been a virgin?
A. That’s right.”

Other facts might also be mentioned; vis, that appellant, who was in this state on a visit from the state of Washington, did not tell Miss Carlton that he was married when he made the date with her, and also gave a fictitious name (for the purpose, as he stated, so his wife “wouldn’t find out anything”). Of course, it is quite obvious from the verdict entered, that the jury was in no wise prejudiced by any question, or testimony. The penalty of only four years imprisonment under evidence that would have supported a conviction for rape, is ample answer to appellant’s contention.

V

Finally, appellant asserts the trial court erred in refusing to instruct the jury that it was the duty of Miss Carlton “to give alarm, and make an outcry, when she first learned of defendant’s desire to have sexual intercourse with her”. The trial court properly refused this instruction, for it is not the law. The identical contention was raised in the case of Jackson v. State, 92 Ark. 71, 122 S. W. 101, and this court held that such an instruction was properly refused, commenting, however, that the failure to make an outcry might be considered in connection with other facts and circumstances as tending to show want of resistance. In the instant case the Cleburne Circuit Court told the jury.

“You are instructed that if you find from the evidence in this case that the prosecutrix failed to make an outcry or complaint at the time of and during the alleged rape, or immediately thereafter, you should take such fact into consideration with all the other facts and circumstances in the case in passing upon whether or not the alleged sexual intercourse, if any, was with or without the consent of the prosecutrix.”

This was a correct statement of the law, and was the proper instruction to be given to the jury.

While not argued, some other alleged errors are set out in the motion for new trial. These, too, have been examined, and found to be without merit.

Finding no reversible error, the judgment is affirmed.

       This is also codified as 33 U.S.C.A., § 733, and 50 U.S.C.A., § 175.

       Under the provisions of the act, it- was to become effective on January 1, 1960.

       The act has no repealing clause.

       This date appears in the motion to dismiss for lack of jurisdiction, though the date used in the Declaration of Taking is April 7,1959. It is immaterial in this case as to which date is correct.

         Bouvier’s Law Dictionary, Volume 1, Page 579, defines “Conclusive Presumption” as follows: “A rule of law determining the quantity of evidence requisite for the support of a particular averment which is not permitted to be overcome by any proof that the fact is otherwise.”

       Emphasis supplied.

       This question had reference to appellant’s insertion of his finger into the prosecutrix.


author: Ed F. McFaddin, Associate Justice.

text:
    Wilson Hargett Const. Co. v. Holmes.
    5-2780
    361 S. W. 2d 634
    Opinion delivered November 12, 1962.

      Ma-hony & Yocum, for appellant.

      William H. Donham, for appellee.
   Ed F. McFaddin, Associate Justice.

This is a Workmen’s Compensation case arising from a heart attack which the employee, Lawson it. Holmes, sustained because of his work for appellant employer (Wilson Hargett Construction Company) on June 22, 1960. Both the Referee, and the Full Commission on appeal, found for the claimant; the Circuit Court affirmed the Commission; and the employer and its insurance carrier prosecute this appeal.

At the hearing before the Referee it was shown that the claimant Holmes had suffered a previous heart attack while doing heavy work, either for himself or another, in 1957; that he had remained in bed about six weeks under a doctor’s care; that he had then been allowed to return to work but cautioned against any heavy work or lifting; that from 1958 to 1960 he had worked regularly; that on June 22, 1960 he was working for the appellant at $160.00 per week (forty hours at $4.00 per hour) as a pipe fitter; that on June 22,1960 he was called to do heavy lifting, which he undertook and which brought on his heart attack here involved. The doctors testified that the work of June 22, 1960 caused Holmes’ present heart condition; but they disagreed among themselves as to what percentage of his present disability was due to the 1957 heart attack and what percentage to the 1960 heart attack. After hearing all the evidence offered, the Referee made an award on April 13, 1961 in favor of Holmes for all hospital and medical bills, for an attorney’s fee, and for temporary total disability from June 26, 1960 to December 26, 1960, and for permanent partial disability of 75% for 337% weeks from December 27, 1960.

The employer and its insurance carrier appealed to the Full Commission and offered additional testimony and there claimed (inter alia) that the present disability, if any, resulted from prior heart attack in 1957; and that if additional disability resulted from the 1960 heart attack, then the total disability should be apportioned between the two attacks. When the employer offered evidence on the apportioning of the disability, the attorney for the claimant objected: “ ... on the grounds, that the apportionment, according to the case of McDaniel v. Hilyard Drilling Company, of February 13, 1961, of the Supreme Court, does not apply in a case where no previous compensation has been paid, and where the man has gone back to full time work earning full wages.” The Workmen’s Compensation Commission’s opinion is, in part, as follows:

“Respondents on appeal raise these issues: (1) whether the claimant sustained a compensable injury in the course of his employment; and (2) the amount of permanent partial disability suffered by the claimant by reason of the alleged injury. The question of whether claimant sustained a compensable injury has been covered by the medical and lay testimony in the claim. There is no dispute between the four doctors who have seen and examined claimant as to the causal connection between claimant’s work and his heart attack. The opinions of the medical witnesses can be summarized by saying that the work did contribute to the full infarction syndrome, even though claimant had predisposing coronary artery disease.
“Another question is involved when consideration is given the amount of permanent partial disability suffered by the claimant by reason of the injury of June 22, 1960. Involved in this question is the fact that the claimant had suffered a previous heart attack in 1957. It should be noted that this first attack was not claimed as an industrial injury and the claimant had returned to full employment between the first and second heart attacks. . . .
“The question of apportionment in Arkansas was decided by our Supreme Court in the case of McDaniel v. Hilyard Drilling Co., opinion delivered February 13, 1961, Volume 107, Law Reporter 16, Page 573, and this Commission feels that the disability in the present claim should not be apportioned. The Commission is of the opinion that, taking all of the evidence into consideration, it shows that the claimant is still totally disabled from any type of work at the present time. Under the definition of‘Disability’ (Section 2 (e) of the Act), ‘Disability means incapacity because of injury to earn, in tbe same or any other employment, the wages which the employee was receiving at the time of the injury.’ A study of the medical evidence, as well as giving weight to age, education and experience (Glass v. Edens, decided June 5, 1961, Volume 108, Law Reporter No. 4, Page 160) shows, in the opinion of the Commission, that the claimant is totally disabled at the present time and will be for a period of time yet to be determined.
“Respondents raise one issue that it is felt should be commented upon, same being the contention that claimant was negligent in continuing to work when from his past experience he should have known he was suffering a heart attack. We give no weight to this contention, as negligence is not a bar to recovery under the Act.”

The Commission’s award was as follows:

“In addition to all reasonable medical expenses arising from this injury, the respondents are directed to pay temporary total disability compensation to the claimant at the rate of $35.00 per week from and including June 26, 1960, and continue the payment of same to a date to be determined in the future and the further directions of this Commission. ‘The respondents are further directed to pay to Mr. William H. Donham, attorney for the claimant, the maximum attorney’s fee as provided by the workmen’s compensation law.’ ”

The Commission’s opinion and award are in all things correct. In McDaniel v. Hilyard, 233 Ark. 142, 343 S. W. 2d 416, we considered in detail under what circumstances a disability could be apportioned; and we quoted the following from Larson’s Workmen’s Compensation Law, Volume 2, page 58, § 59: “To be apportionable, then, an impairment must have been independently producing some degree of disability before the accident, and must be continuing to operate as a source of disability after the accident. ’ ’ In the case at bar, Holmes had suffered a heart attack in 1957, but that heart attack was not producing any degree of disability at the time of the heart attack in this case in June, 1960. Holmes had returned to work and was engaged by Wilson Hargett Construction Company as a pipe fitter and was earning $160.00 a week. The attack in 1957 had resulted in no impairment of Holmes’ earning capacity; and the appellant and its insurance carrier are not entitled to claim any theory of apportionment to reduce the amount that Holmes is entitled to receive for the heart attack which he sustained in June 1960 and which has left him incapable of earning any money at the present time. It is well to note that in its opinion in this case, the Pull Commission said of Holmes’ 1957 heart attack: “It should be noted that this first attack was not claimed as an industrial injury and the claimant had returned to full employment between the first and second heart attacks.” The Workmen’s Compensation Commission correctly followed our holdings in McDaniel v. Hilyard, 233 Ark. 142, 343 S. W. 2d 416; and Glass v. Edens, 233 Ark. 786, 346 S. W. 2d 685.

Affirmed.

       This case is reported in 233 Ark. 142, 343 S. W. 2d 416.

       This case is reported in 233 Ark. 786, 346 S. W. 2d 685.


author: George Rose Smith, J.

text:
    Palmer v. Nelson.
    5-2823
    361 S. W. 2d 641
    Opinion delivered November 12, 1962

      Claude F. Cooper, for appellant.

      Rhine & Rhine, for appellee.
   George Rose Smith, J.

This dispute involves the boundary line, three quarters of a mile in length, that separates the appellant’s land on the east from the appellees’ land on the west. In this suit, brought by the appellant, the chancellor fixed the line according to a fence and a turn-row that have marked the boundary for many years and that vary from the government survey by as much as 61 feet. The appellant contends in effect that the decree is against the weight of the evidence.

When adjoining landowners acquiesce for many years in the location of a fence as the visible evidence of the line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence. Carney v. Barnes, 232 Ark. 549, 338 S. W. 2d 928; Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490. Although a boundary by acquiescence is usually represented by a fence, the same reasoning applies when a turnrow, a lane, a ditch, or some other monument is tacitly accepted by the landowners as the visible evidence of the dividing line.

In case at bar the preponderance of the evidence supports the conclusion that the line fixed by the trial court has become the boundary by long acquiescence.

This suit was filed in 1960. Hobert Nelson, one of the appellees, testified that his family had owned the Nelson land ever since his father bought it in 1941. This witness states that when the elder Nelson acquired the property the disputed line was marked by a fence where the land was in woods and by a turnrow where it was in cultivation. Later the Nelsons extended the fence for some distance along the turnrow. Hobert testified positively that he and his father cultivated their fields up to the turnrow, claiming ownership, and that their neighbors cultivated up to the turnrow on the other side. Nelson’s testimony is corroborated by several other witnesses, by aerial photographs, and by surveys that show the location of the fence-turnrow line.

The appellant knew nothing about his tract until he bought it from E. W. Whitlock in 1958. Whitlock testified that his father purchased the land in about 1941. This witness did not deny that the boundary was marked through the years by the fence and turnrow. He said in substance that he and his father did not know just where the true line was, but he admitted that there had never been any controversy between the Nelsons and the Whit-locks about the boundary. On the whole case we are convinced that the chancellor was right in adopting the line that was openly marked and tacitly accepted by the parties and their predecessors in title for nearly twenty years.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Nathan v. State.
    5054
    361 S. W. 2d 637
    Opinion delivered November 12, 1962

      Charles Boscopf, David Solomon, Jr. and A. M. Coates, for appellant.

      Frank Holt, Atty. General, by Jack Holt, Jr., Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

Appellant, Willie B. Nathan, Jr., was charged, by information, with the crime of raping Mrs. Virginia Jo Ringer. He was found guilty of assault with intent to rape and sentenced to twenty-one years in the state penitentiary.

The uncontradicted testimony of Mrs. Ringer was essentially as here set out. She, her husband, and two children (one three years old and one less than a year old) lived in a trailer (in a trailer camp) near Helena; On Saturday morning shortly after three o’clock a man (she thought to be a negro) came into the room where she was sleeping, placed his hand over her mouth, threatened to kill her if she made a noise, and forced her to have intercourse with him. On this night a young girl sixteen years old (named Mickey Yates) was sleeping in another room of the trailer with the two children. According to Mrs. Ringer’s description of the man who attacked her he was young, colored, had a fuzzy face, and wore a dark shirt, resembling a T-shirt, but she could not later identify appellant as the man who assaulted her. After the man left she promptly told Mickey Yates about what had happened and notified the police. Her husband, as was his usual custom, had left the trailer about three o ’clock a. m. to go to work.

Appellant took the stand and denied he was ever in that particular trailer or that he knew anything about the alleged assault. The State introduced in evidence a written statement, signed by appellant, in which he admitted he tried to have intercourse with Mrs. Ringer at the time and place before mentioned. A police officer testified that appellant made substantially the same admission to him the day before the written statement was signed.

Appellant ably urges five separate grounds or points for a reversal. Since we have reached the conclusion that the case must be reversed on one point we deem it unnecessary to discuss fully the other points in which we find no reversible error.

1. If appellant’s statement had been properly admitted in evidence under correct instructions, then there would have been sufficient evidence to support the verdict of the jury.

2. The record shows that appellant’s attorney objected to a certain statement alleged to have been made to the jury by the prosecuting attorney in his opening statement. The alleged statement was a reference to the fact that appellant had been subjected to a lie-detector test. Over appellant’s objection the trial court refused to declare a mistrial. If any possible error is indicated above we think it was later waived by appellant when he testified concerning the same incident.

3. A confession signed by appellant was introduced in evidence. After the jury had retired for deliberation they asked to see the confession, and the request was granted by the court. Appellant contends it was reversible error for the court to give the jury the confession without, at the same time, giving them all exhibits which had been introduced in evidence. Supporting this contention appellant relies on Ark. Stats. § 43-2138 which reads:

“Upon retiring for deliberation, the jury may take with them all papers which have been received as evidence in the cause.” (Emphasis added.)

This section of the statutes has never been construed in connection with the precise point here raised. It is our opinion, however, that the word “may” (in the statute) indicates the statute was intended to be permissive and not mandatory. In the absence of any request by appellant for the jury to receive the other exhibits, we hold the trial court had a right to give them the one they requested to see.

4. Appellant ably contends the trial court erred in admitting in evidence the oral and written statements referred to previously. This contention is based on appellant’s testimony that the statements were made under coercion and threats, and in the presence of officers who did not warn him the statement could be used against him. The officers emphatically denied that any force was used or threats made, but it does appear from a careful examination of the record that the oral admissions were made to the officers before appellant was advised of his legal rights. It further appears that these oral admissions were substantially the same as those in the written statement made later when appellant was properly advised of his legal rights. However, we are not basing a reversal on this point, and therefore refrain from any exhaustive discussion of it. By disposing of the point in this summary manner it is not to be inferred that we are necessarily giving our unqualified approval to the procedure followed by the officers in this instance.

5. After careful consideration we have reached the conclusion that it was reversible error for the trial court to refuse an instruction, requested by appellant, to the effect that a confession made by an accused in the presence of officers is presumed to be involuntary. The pertinent part of the requested instruction reads as follows:

‘ ‘ The presumption of the law is that any confession made by a defendant, when he is in custody of officers, whether these officers be the sheriff, detectives, policemen, the prosecuting attorney, or any other officer, is involuntary and incompetent and cannot be considered by you.
‘ ‘ The effect of that presumption is to cast the burden of proof upon the state to prove by a preponderance of the testimony that the confession was voluntary. They must overcome this presumption of law to your satisfaction and show that the confession was voluntary.
“If you find that the defendant, during the time of his custody, was under the influence of officers at any time such would make any statement or confession involuntary, the law presumes that this influence continues and makes all other statements or confessions made by him thereafter incompetent until the state shows by a preponderance of the testimony, that this influence has been removed.”

We find it necessary to consider the issue here raised from two viewpoints: (a) Is appellant’s statement to be treated as a confession; and, if so, (b) should the instruction have been given?

(a). The reason given by the trial court for refusing to give the instruction was: “... in this case that this is not a confession, but is simply a statement containing an admission against interest ...” The court’s statement is based of course on the fact that appellant did not admit he committed rape (or an attempt to rape) on Mrs. Ringer, but that what he did was with her consent. It must be admitted however that, from a practical standpoint and under the facts and circumstances of this particular case, such an admission almost amounted to a confession of guilt. In any event we hold that the same rules governing admissibility apply in both instances here. In the case of Bram v. United, States, 168 U. S. 532, 18 S. Ct. 183, 42 L. Ed. 568, a similar issue was under consideration. The essence of the court’s holding in that case is revealed by its statement found at page 541 of the U. S. Reports:

“Having been offered as a confession and being admissible only because of that fact, a consideration of the measure of proof which resulted from it does not arise in determining its admissibility. If found to have been illegally admitted, reversible error will result, since the prosecution cannot on. the one hand offer evidence to prove guilt, and which by the very offer is vouched for as tending to that end, and on the other hand for the purpose of avoiding the consequences of the error, caused by its wrongful admission, be heard to assert that the matter offered as a confession was not prejudicial because it did not tend to prove guilt. The principle on the subject is thus stated in a note to section 219 of Gfreenleaf on Evidence: ‘The rule excludes not only direct confessions, but any other declaration tending to implicate the prisoner in the crime charged, even though, in terms, it is an accusation of another, or a refusal to confess. ’ ’ ’

To the same effect is the decision in Calvin Gofield v. State (Ala. 1962), 136 So. 2d 897. On page 901 there appears this statement:

“[3] In Alabama, inculpatory admissions in the nature of a confession — that is, directly relating to the fact or circumstances of the crime, and connecting the defendant therewith — are subject to the same rules of admissibility as direct confessions and are admissible only after a predicate of voluntariness is established. Baker v. State, 35 Ala. App. 596, 51 So. 2d 376.”

See also Davis v. State, 182 Ark. 123, 30 S. W. 2d 830.

(b). Treating the introduction of the admission in the same way we would treat the introduction of a confession, we are driven to the conclusion that appellant’s rights were not fully protected in the absence of the requested instruction, and it is clear from the record that such rights were not protected by any other instructions.

This Court has repeatedly approved an instruction to the effect that a confession in the presence of officers is presumed to be involuntary. See: Monts v. State, (September 18, 1961) 233 Ark. 816, 349 S. W. 2d 350. In that case we approved an instruction almost identical to the one here requested. See also Charles v. State, 198 Ark. 1154, 133 S. W. 2d 26. Not only was it proper for the court to tell the jury the confession was presumed to be involuntary, but also it was proper to tell the jury the burden was on the State to overcome that presumption by a preponderance of the evidence. We so held in the Monts case, supra. Not only was it proper for the trial court to so instruct the jury but we think he was required to do so. In Forester v. State, 224 Ark. 194, 272 S. W. 2d 320, there is this statement:

“Each of said requested instructions was in conflict with Instruction No. 12 given by the court which correctly required the state to prove the voluntary character of the confession by a preponderance of the evidence.”

The State concedes that any confession made in the presence of officers is presumed by law to be involuntary.

In view of the above, and under the peculiar facts of this case, we must conclude that the court should have given the requested instruction.

It is noted that if the instruction requested by appellant had been combined with other conflicting or improper instructions the trial court could have properly refused to give it under the holding in the Forester case, supra. However, we find this was not the situation here. As a matter of fact, after the court’s refusal to give the aforementioned instruction the court refused appellant’s request for a specific instruction “to the effect that these statements are presumed to be involuntary”.

Again, we recognize that it is not error in every instance for the court to refuse to inform the jury of a legal presumption where evidence is introduced to overcome it. However, if that rule is applicable here it does not afford a justification of the court’s refusal to give the instruction requested by appellant which also dealt with the burden and quantum of proof imposed on the State.

Reversed.


author: Sam Robinson, Associate Justice.

text:
    Donham, Commissioner v. Neely Co.
    5-2825
    361 S. W. 2d 650
    Opinion delivered November 12, 1962.

      Lyle Williams, for appellant.

      Warner, Warner & Ragon for appellee.
   Sam Robinson, Associate Justice.

The appellee, F. S. Neely Company, is engaged in the mining business in western Arkansas. Arko Briquettes, Inc. is a wholly owned subsidiary. In the state income tax returns filed by the Neely Company for the years 1957, 1958, and 1959, it deducted losses alleged to have been sustained by Arko Briquettes, Inc. for each of those years, and also deducted a sum each year because of depletion of gypsum deposits which the Neely Company was mining.

On December 14, 1960, the Revenue Commissioner for the State of Arkansas notified Neely that the heretofore mentioned deductions had been disallowed and that there was a deficiency in the sum of $3,970.98 in the amount of income tax paid. Pursuant to Ark. Stats. 84-2037, Neely requested a hearing before the Revenue Commissioner for the purpose of protesting the proposed deficiency. Following a hearing on the matter, the Commissioner notified appellant that the additional assessment of $3,970.98 was correct and proper. Acting pursuant to Ark. Stats. 84-2038, the Neely Company then filed this action in the Sebastian Chancery Court, and the amount in controversy was deposited in the registry of the court.

In the complaint it is alleged that all of the outstanding capital stock of Arko Briquettes, Inc. is owned by the plaintiff, and that the Commissioner was in error in not allowing Neely to deduct from its income, the losses sustained by Arko Briquettes, Inc.

The Complaint further alleges “that the disallowance of the percentage depletion ... is invalid and not in accord with the statutes applicable thereto; that the statutes provide for the depletion of oil or mineral deposits at the rate of fifteen percent of gross income from the property during the income year where the mineral deposit has been discovered through exploitation by the owners or lessees; plaintiff alleges that it is entitled to said depletion allowance on the coal and gypsum mined by it or from its leases, and that the Commissioner’s action in disallowing same is arbitrary, capricious and invalid.”

The Revenue Commissioner filed a Demurrer to the Complaint alleging: “The Complaint of the plaintiff does not state facts sufficient to constitute a cause of action.”

The trial court overruled the Demurrer; the Commissioner refused to plead further, but stood on the Demurrer. Thereupon, the Chancellor entered a decree for the plaintiff, Neely. The Commissioner has appealed.

The only issue properly before this Court is whether the Complaint states a cause of action that is good against a general Demurrer.

Assuming that the Complaint shows on its face that the appellee, Neely Company, improperly deducted from its income, losses sustained by its subsidiary, Arko Briquettes, Inc., there is the further allegation that the Revenue Commissioner was in error in failing to allow the appellee specified credits for depletion as provided by statute. This allegation states a cause of action. The rule is firmly established that where a general demurrer is filed to a complaint as a whole, if any count of the pleading is good and states a cause of action, the demurrer should be overruled. Spicer v. Spicer, 227 Ark. 258, 297 S. W. 2d 931, Mortensen v. Ballard, 209 Ark. 1, 188 S. W. 2d 749. It has been said “that a bad part in a pleading does not make the whole bad, but a good part makes the whole good enough to withstand a general demurrer”. 41 Am. Jur. 452.

But appellant contends that the demurrer should have been sustained because the complaint fails to show that in claiming credit for depletions, appellee complied with the rules and regulations promulgated by the Commissioner under authority of Ark. Stats. 84-2041. Appellant argues that Art. 170 of Regulation No. 10, adopted by the Commissioner, provides that in order for a taxpayer to be entitled to depletion he must file with the Commissioner an affidavit setting forth the method by which the mine was acquired, the date it was acquired, and. a chart of the number of mines located in the immediate vicinity of the mine upon which he makes, or is making, a claim of discovery depletion, at the time this mine was opened, with approximate distances shown therein.

Although the Commissioner may have adopted a valid rule requiring a taxpayer to furnish certain information in claiming specified deductions and may successfully defend an action because of the failure to supply such information, the complaint is not fatally defective — because of the failure to specifically state that the taxpayer has complied with such rules. The complaint is perfectly clear as to what deductions the taxpayer is claiming. If one of the defenses to the action is that the plaintiff has not complied with the rules made by the Commissioner for claiming such deductions, the question of whether the rules have been complied with is a question of fact; such defense should have been raised by an answer to that effect. “A demurrer raises questions of law as to the sufficiency of a pleading, apparent on the face of the pleadings. It does not present issues of fact, which must be raised by proper plea or answer. ’ ’ 41 Am. Jur. 452.

In testing the sufficiency of a pleading by a general demurrer, every reasonable intendment should be indulged to support the pleading, and if the facts stated in the pleading, together with every reasonable inference therefrom constitutes a cause of action, the demurrer should be overruled. Dodson v. Abercrombie, 212 Ark. 918, 208 S. W. 2d 433; U. S. Fidelity & Guaranty Co. v. Moore, 233 Ark. 703, 346 S. W. 2d 524; Sharp v. Drainage Dist. No. 7 of Poinsett Co., 164 Ark. 306, 261 S. W. 923.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Lambert v. Childs.
    5-2796
    362 S. W. 2d 10
    Opinion delivered November 12, 1962.
    [Rehearing denied December 10, 1962.]

      John L. Anderson, for appellant.

      Norton & Norton, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a judgment on the mandate issued by this court in Childs v. Lambert, 230 Ark. 366, 323 S. W. 2d 564. In the original case the facts disclosed that Gr. C. Childs entered into a contract to purchase 40 acres of land in Phillips County. Immediately after entering into the contract, Childs and his wife, Elnora, with their children moved onto the land. Thereafter GL C. Childs transferred the contract. It was undisputed that his wife Elnora was not a party to the transaction. On December 5, 1955, Mr. J. B. Lambert, the original vendor as well as the ultimate recipient of all of Childs ’ transferred interest, caused the Childs family to be evicted from the property. On December 6th, the day after her eviction, Elnora Childs filed suit, seeking, as wife of Gr. C. Childs, to establish her right which attached to his equitable interest under the homestead law, sought an accounting from Lambert under the contract of sale and prayed that ‘ ‘... he be charged with the rental value for the dwelling thereon situated, with interest, etc., until possession should be restored to her and that she be allowed a reasonable time to redeem the property by payment of any balance due Lambert thereon”. The trial court dismissed her complaint and quieted title in Lambert. On appeal this court reversed and in so doing held that Elnora Childs “. . . is not estopped to assert her claim to homestead rights in the property” and that she is “. . . entitled to perform for her husband the purchase contract made by him in order to save her interest in the homestead”. The mandate stated “ . . . that this cause be remanded to said Chancery Court with directions to grant Mrs. Childs a reasonable time within which to redeem and for further proceedings to be therein had according to the principles of equity, and not inconsistent with the opinion herein delivered.”

After a motion for judgment on the mandate, the trial court, from the original record, made certain findings and then proceeded to further trial on the mandate. The court heard extensive testimony and rendered a detailed accounting between the parties. From judgment on the mandate comes this appeal and a cross-appeal.

On direct appeal appellant relies upon six points for reversal, while appellees rely upon five points for reversal on cross-appeal. All of the appellees’ points question the correctness of the accounting and only one of appellant’s six points reaches the issue we, on trial de novo, find to be decisive of this case.

During the trial on the mandate, the fact was established that Elnora Childs had joined with her husband in at least three conveyances of the property to various third parties. The last conveyance was to a Mr. Sizemore. All of the parties who claimed an interest in the property joined in this conveyance which resulted in the placing of $9,500 in the registry of the court pending a final adjudication of the case. All of these conveyances were made subsequent to the original trial and prior to the adjudication on the mandate. The germane point urged by appellant for reversal is as follows: “The court erred in refusing the motion of appellant that there be no further proceedings based on the mandate of the Supreme Court and that the Chancery Court enter an order decreeing all funds in the hands of the clerk be paid to appellant for the reason that Elnora Childs had only the right to redeem her homestead and now having abandoned that right by joining in the sale to Sizemore and participating in that sale and selling a speculative interest in this lawsuit, she has completely abandoned any right she has in the homestead as defined by the Supreme Court.”

The Sizemore conveyance was made upon a contract which recites that the parties . . agree that this contract shall be without prejudice to any of them as to any of the issues made or to be made in said suit”. We find it unnecessary to decide the legal effect of the sale to Sizemore since it is clear from the record that previous to the sale to Sizemore, G. C. Childs and Elnora Childs, his wife, on April 4, 1958, executed and delivered a warranty deed with ‘ ‘full release and relinquishment of right or possibility of right of dower and homestead” in the property here in question to one George K. Cracraft, Jr., trustee; that thereafter on September 4, 1958, G. C. Childs and his wife Elnora Childs “bargained, sold and conveyed” unto one S. M. Capps “their entire right, title and interest, including dower and homestead” in the property held by Cracraft, trustee, for and in consideration of the sum of $200 ($25 of which went to pay Trustee Cracraft’s fee) and the further consideration of ten percent of any clear profit Capps might make on a resale of the property. This contingent or speculative ten percent interest in the profits, if any, at the time of the trial on the mandate was the only remaining interest the Childs had in the outcome of this lawsuit and that interest, in our view, was not an interest in the land here in question but was in fact a balance of the consideration owing by Capps in the event Capps made a clear profit on the sale to Sizemore.

Notwithstanding the following observation by the ' trial court in its findings * * *

“It has come to the Chancellor’s attention that since the reversal of this case, the lands have been conveyed by both Mr. Childs and Mrs. Childs, and that the wife has conveyed her homestead rights in the lands involved.”

* * * the learned Chancellor dutifully proceeded to trial on the mandate and made his findings based upon the facts as they existed at the time of the original trial. In a usual case arising out of a reversal of a Chancery decree, this would have been the correct procedure but in the present case our mandate granted Elnora Childs a reasonable time in the future within which to perform a specified act, i.e., redeem. We did not direct her to redeem. She had the choice of electing to redeem. Certainly if the cost to redeem had exceeded the value of the property, she no doubt would have refused to redeem. Elnora Childs’ rights from the inception of this litigation were based solely on the homestead law. The homestead interest is a creature of statute. It is more than a mere privilege, it is a right. On the part of a wife it is a right of veto against alienation and encumbrances, as well as the right of occupancy jointly with the owner of the homestead. 40 C.J.S., Homesteads, § 4. The early and oft cited case of Killeam v. Carter, 65 Ark. 68, 44 S. W. 1032, graphically describes the nature of a woman’s homestead as follows:

“The law wisely grants to the widow the privilege of occupying the homestead so long as she desires. But it is a privilege purely personal to her, which she can neither convey to nor share with another. She may enjoy the rents and profits only so long as she intends it as a home. Strictly speaking, she has no estate in the land itself, but only the privilege of occupancy. Alienation by her confers no rights, but it means abandonment, and the termination of her right of homestead.” [Emphasis ours.]

As set out above, this court, in the earlier appeal, held that Elnora Childs was entitled to perform for her husband the purchase contract made by him in order to save her interest in the homestead, and directed that she be given a reasonable time within which to redeem. She did not redeem, but instead chose to join with her husband in a conveyance of the property to third persons prior to redemption. Therefore, since alienation by Elnora Childs meant abandonment and the termination of her right of homestead and that snch conveyance by her conferred no rights, her vendees took nothing and her rights of homestead ceased to exist. Accordingly, the decree is reversed and the canse is remanded for entry of orders consistent with this opinion.

George Rose Smith, J., dissents.


author: Neill Bohlinger, Associate Justice.

text:
    Maryland Casualty Co. v. Turner.
    5-2811
    361 S. W. 2d 646
    Opinion delivered November 12, 1962.

      S. Hubert Mayes and S. Hubert Mayes, Jr., for appellant.

      Griffin Smith, for appellee.
   Neill Bohlinger, Associate Justice.

The appellee, Yancy B. Turner, was the holder of a contract from United States Corps of Engineers for certain revetment work on the Arkansas Biver at a place known as Brown’s Bend.

In order to comply with his contract, the appellee entered into a contract with the Mississippi Valley Engineering and Construction Company to furnish the rock requirements for the job, delivered in place on the job site. It appears that the Mississippi Valley Engineering and Construction Company produced the stone at a quarry near Sweet Home and, having no trucks, the Company entered into a contract, or hired trucks, to accomplish that part of its contract with the appellee whereby it was to deliver the rock to the appellee’s barges or on the banks at the site of the work.

One of the trucks, the one involved in this case, was owned by a man named Koch and driven by a man named Freeman. It does not appear that the appellee was a party to the contract between the Mississippi Valley Engineering and Construction Company and its haulers and therefore we treat the hauling merely as a part of the work to be performed and the activity of Mississippi Valley.

The activities of the appellee were covered by a general liability policy issued by the Maryland Casualty Company, the appellant here. On August 8,1960, the truck owned by Koch and driven by Freeman was being lowered over the slope of the river bank to enable the dropping-of its load of rock at a point designated by the appellee. While the truck was thus being lowered over the bank and while an employee of the appellee was assisting in scraping the rock out of the truck, the bulldozer owned by the appellee, to which the truck in question was connected by means of a cable, slipped back over the river bank and the truck fell into the river and was damaged thereby.

Koch brought suit against the appellee in the Pulaski Circuit Court to recover damages to his truck. The appellee called upon his insurance carrier, appellant here, to defend him under the terms of the general comprehensive liability policy which he alleged was in force at the time of the accident. Appellant refused to defend on the grounds of a policy exemption which exempted from coverage damage to “tools or equipment while being used by the insured in performing his operations.” The appellee then filed the present suit for a declaratory judgment in the Pulaski Circuit Court and that court found in favor of the appellee and held that the Maryland Casualty Company was obligated to defend Turner in this case but denied Turner’s request for penalty and attorney’s fee. From that judgment the appellant prosecutes this appeal. Appellee cross-appeals from the trial court’s denial of attorney’s fees.

This brings squarely before us the question as to whether or not the truck which was damaged was being-used by the appellee in his operation at the time of the accident. The exemption relied on is that the policy does not apply to damage to “tools or equipment being used by the insured in performing his operations.” The word “ Used” is, to some extent, employed by insurance companies as a substitute for the phrase ‘ ‘ care, custody, and control,” in exemption clauses in liability policies. In the case of Hardware Mutual Casualty Co. v. Crafton, 233 Ark. 1020, 350 S. W. 2d 506, we said :

“The care, custody and control clause in liability policies, so far as our research has extended, appears to be almost universally used but its construction is, to a large extent, dependent upon circumstances of each case and we conclude that the phrase should be applied with common sense and practicality.”

Therefore, approaching the construction of the phrase with common sense and practicality, we make use of the following quotation from Great American Indemnity Co. of N. Y. v. Saltzman, 213 F. 2d 743, which was a federal case applying Arkansas law and which case is cited in the Crafton case, supra:

“Of course if the term ‘use’ is construed to embrace all its possible meanings and ramifications, practically every activity of mankind would amount to a ‘use’ of something. However, the term must be considered with regard to the setting in which it is employed. ’ ’

So in order to arrive at the setting in which the term is used, we revert to the contract between the appellee and the Mississippi Valley Engineering and Construction Company which contains these two applicable provisions:

“(1) Miss. Valley Engineering & Construction Co. agrees to furnish all labor, equipment, materials, supplies and other necessary items to produce and furnish approximately 42,500 tons of quarry-run stone with fines. Said quarry-run stone to be delivered to Taney B. Turner’s barges by trucks or dumped on the bank from trucks as designated by Taney B. Turner.
(2) Taney B. Turner, Contractor shall furnish the scales and the necessary men and equipment to dump the rock from the trucks to the barges, and/or on the bank as designated.”

From these provisions in that contract it is evident that Mississippi Valley was bound by its solemn commitment to deliver the stone by truck to the appellee’s barges or to dump the stone on the bank from trucks as designated by the appellee. It was Mississippi Valley’s stone from the time it was quarried until it was placed at the point designated by appellee, Turner. To hold that paragraph two (2) would be controlling we would have to hold that the appellee’s commitment to furnish the necessary men and equipment to dump the rock from the trucks to the barges or onto the river bank would completely nullify the Mississippi Valley’s commitment to dump the rock whore Turner designated. This dumping the rock where Turner designated was a service for which Mississippi Valley was to be paid and it therefore appears that the appellee’s commitment to furnish men and equipment was merely to facilitate the Mississippi Valley Company in making its delivery of the rock and was not intended to and did not give the appellee the use, care, custody and control of the truck involved. The idea that appellee’s commitment was to furnish men and equipment is, under the circumstances, incompatible with the obligation of the Mississippi Valley which was to put the stone in place.

It appears that some defect in the unloading apparatus of the truck here involved became apparent before the truck was lowered over the slope and the appellee’s men, acting under provision two (2) of the contract, lent their assistance in correcting that defect but that is not taking control of the truck. An analogous situation would be if the truck had mired down at the site and the appellee’s men and equipment pulled it out, or changed a tire. These things would not give to the appellee the use of or the care, custody or control of the truck. This concept is strengthened by the case of Boswell v. Travelers Indemnity Company, 120 A. 2d 250, 38 N. J., Super. 599, where the court said:

“* * * that an insured ‘uses’ property within the meaning of the exclusion clause only where he puts it to his own service or to the purpose for which it was ordinarily intended. ’ ’

The purpose for which Mississippi Valley and its subcontractor were using the property was to comply with provisions one (1) of the contract between appellee and Mississippi Valley. That was the purpose for which it was intended and for which it was being used and the trial court properly found that the truck in question was not being used by the appellee.

The appellee, among other things, asked that he be allowed an attorney’s fee. The trial court denied this prayer and in that the court was in error. Section 66-3239, Ark. Stats, provides as follows:

“In all suits in which the judgment or decree of a court is against a life, fire, health, accident and liability insurance company, either in a suit by it to cancel or lapse a policy or to change or alter the terms or conditions thereof in any way that may have the effect of depriving the holder of such policy of any of his rights hereunder, or in a suit for a declaratory judgment under such policy, or in a suit by the holder of such policy to require such company to reinstate such policy, such company shall also be liable to pay the holder of such policy all reasonable attorneys’ fees for the defense or prosecution of said suit, as the case may be, which fees shall be based on the face amount of the policy involved; said attorneys ’ fees to be taxed by the court where the same is heard,on original action, by appeal or otherwise, and to be taxed np as a part of the costs therein and collected as other costs are, or may be by law collected. ’ ’ [Emphasis added]

Attorneys ’ fees in these types of cases are specifically provided for in the statute and should have been allowed by the trial court. In the case of David H. Curran v. Security Insurance Company, 195 F. Supp. 562, which was an application for a declaratory judgment under Arkansas law, United States District Court for the Western District of Arkansas said:

“In view of the conclusion that the court has reached, the plaintiff is entitled to recover a reasonable attorney’s fee, and the court, even in the absence of testimony as to the amount of such fee, may fix the same based upon the record before it. ’ ’

In 5 Am. Jur., Attorneys, § 190, p. 376, it is stated:

“ * * * The services of an attorney, when rendered in litigation before the same court which is passing upon the value of such services, may, of themselves, constitute evidence from which the court alone, unaided by opinion of others as to value, or even in defiance of opinion evidence, may reach a conclusion. ’ ’

The right to fix the fee of appellee’s attorney is in either the trial court or this court. We have reviewed the record in this case, which involves $2,525.00, and we find that a fee of $500.00 should have been allowed appellee’s attorney for services in the trial court and here on appeal. There can, of course, be no penalty or interest.

This judgment is therefore modified to the extent of allowing a $500.00 fee to appellee’s attorney and is in all other respects affirmed.


author: PER CURIAM

text:
    Coleman v. State.
    5046
    361 S. W. 2d 646
    Opinion delivered November 12, 1962.
   PER CURIAM

On February 7,1962 appellant was convicted of grand larceny and sentenced to the penitentiary for six years, which sentence he is now serving.

On April 9,1962 there was filed in this Court a certified copy of the Circuit Court judgment. No other matters of any kind have been filed, except the brief of the Attorney General. There is no motion for new trial, and no bill of exceptions. We have nothing before us except the Circuit Court judgment, which is valid and regular on its face. See Whelehon v. State, 233 Ark. 229, 343 S. W. 2d 563.

Therefore, the Circuit Court judgment is affirmed.


author: Carleton Harris, Chief Justice. George Rose Smith, Associate Justice,

text:
    Black v. Thompson.
    5-2802
    361 S. W. 2d 753
    Opinion delivered November 19, 1962.

      L. A. Harclin, Carl Langston, W. J. Walker, for appellant.

      Alston Jennings, Sol J. Russell, C. Byron Smith, Jr. and Reed W. Thompson, for appellee.
   Carleton Harris, Chief Justice.

This is the third appeal involving some phase of the Ward Millard Black estate. The first two cases involved the validity of a purported will of the decedent. In the first case, we reversed and remanded for additional proof, and in the second case, we held that the purported will was a forgery, and reversed the findings of the trial court.

The present appeal stems from an order of the Pulaski County Probate Court, allowing attorney fees of $2,500 to appellees for services rendered in representing Clio Thompson, administratrix of the estate of Black. It might he here pointed ont that appellees only asked for fees for representing the estate, and not for defending the will. Appellant, Walter L. Black, Jr., a nephew of the decedent, and sole heir of the estate, contends that appellees are entitled to no fee whatsoever. Appellees have cross-appealed, contending that the fee allowed by the court was inadequate. Appellant asserts that appellee attorneys entered into a contingent fee contract with the beneficiaries of the purported will, whereby the former were to receive one-third of the estate if the will was finally (following trial court hearings and appeals) admitted to probate, and since such will was declared of no effect, appellees are not entitled to compensation. He calls attention to the provision of Section 62-2209, Ark. Stats. Anno. (1957), which provides,

“When any person nominated in a will as executor or the administrator with the will annexed, in good faith defends it or prosecutes any proceedings for the purpose of having it admitted to probate, whether successful or not, he shall be allowed out of the estate his necessary expenses and disbursements including reasonable attorney’s fees in such proceedings.”

Appellant maintains the key language of the statute is “in good faith,” and asserts that the record shows that Clio Thompson, as a proponent of the forged will, did not act in good faith.

In the first place, we do not agree that the allowance of the attorney’s fee is dependent upon the good faith of the administratrix, but since appellant urges that this is controlling, we will briefly discuss the contention. In our view, the record does not support the allegation that Miss Thompson was not acting “in good faith”. Miss Thompson and Mrs. Olive Perzigian were cousins of the deceased, and were both beneficiaries under the forged will; however, the purported bequest to these two, along with purported bequests to two other members of the family amounted to only an approximate 25 % of the total estate. The principal beneficiary of the instrument was Cecil C. Morton, ex-convict, and employee of the drug store operated by Ward Millard Black; according to the terms of the “will”, Morton was beneficiary of approximately 75% of the estate. A reading of the two opinions in the Black cases will, we think, leave the reader with the unqualified view that the forgery was instigated, and carried out, by Morton, and others acting under his influence or direction. Certainly, the last opinion makes clear that this was the feeling of our court. Be that as it may, the testimony fell far short of establishing that Miss Thompson had any part in a conspiracy to forge the will, and it might be mentioned that her general background is not at all compatible with the role of a forger. She is principal of the Lamar High School, and the evidence leaves the impression that she is a responsible citizen. We cannot assume that people act “in bad faith”, nor does the record in the original case so indicate. According to the testimony in that case, Miss Thompson was advised some 10 months after the death of Black that her cousin had left a will, and the will was delivered to her. This information was voluntarily given by one of the witnesses, who, according to the evidence, was unknown to Miss Thompson prior to the delivery of the instrument. Actually, she would have been remiss in her duty had she failed to offer the will for probate (since it was not established that she helped procure it). Surely, no one could logically contend that Miss Thompson should have destroyed or thrown away the “will”; after all, there were other beneficiaries named in the instrument, members of the family, who, unquestionably, had no part in any forgery, and were entitled to have same offered for probate. These beneficiaries, most likely, would have “raised the roof” if Miss Thompson had refused to proceed. The very fact that the probate court admitted the will to probate is a strong circumstance within itself that she was entirely justified in offering it for admission.

However, as stated at the outset of the preceding paragraph, we do not consider that the “good” or “bad” faith of Miss Thompson in offering the will for probate, is controlling as to the allowance of the attorneys’ fee. Bather, we think the fact that these attorneys were appointed by the court to represent the administratrix of the estate, and thereafter rendered service in behalf of the estate, entitles them to remuneration. After all, once they were appointed, the duty of advising the administratrix, and performing necessary functions in behalf of the estate, was incumbent upon them, and they were accountable to the court for the manner in which they discharged those duties. If the probate court has the authority to appoint attorneys (and it has such authority), then, certainly, it has the power to recompense them for their services. The probate court would be indeed impotent if it were powerless to compensate those that it has appointed, to perform certain functions. We are not here concerned with any contract that might have been entered into between appellees and beneficiaries under the purported will; we are only concerned with the acts of the attorneys in representing the administratrix, and the estate, as directed by the probate court. The amount of the fee allowed by the court is not questioned by appellant; he simply insists that no fee at all should be granted. The record reflects that appellees were appointed attorneys for the estate on June 21, 1960, and they have served as attorneys for the estate since that time. When Miss Thompson was authorized to take charge of the drug store on that date, she found that appellant, former administrator, had surrendered the drug and narcotic permit, and it was, of course, necessary that another be obtained. According to her testimony, the lawyers worked two to three weeks assisting in negotiating with the proper authorities for restoration of the permit. She stated that she sought the advice of the attorneys once a week in administering the estate, but the record does not make clear the period of time covered by these conferences; nor did the witness specify the problems encountered, or the nature of the advice given. Of course, advice rendered, relative to the will contest, cannot properly be considered in the matter before us. The testimony reflected that the total cash receipts from June 21, 1960, through January 31, 1962, were $159,006.80. Other than assisting in obtaining the permit, and rendering the legal advice mentioned, no specific acts of service to the estate are shown by appellees (who did not testify), but we think the amount allowed by the court was justified, and, according to the transcript, prior attorneys, representing the estate at the time appellant was serving as administrator, were allowed a fee of $3,000.

Appellees have cross-appealed, contending that they are entitled to a fee of $7,000 under the provisions of Sub-section (d) of Section 62-2208, 1961 Supp. That section sets out the fee that shall be allowed to attorneys, basing same on the market value of real and personal property reportable in the probate court. Appellees (cross-appellants) assert that provisions of this statute are mandatory. We are not here required to decide whether the legislature can establish mandatory fees — thus taking away all judicial discretion, because the section relied upon also provides, “the attorney so employed shall prepare and present to the Probate Court all necessary notices, petitions, orders, appraisals, bills of sale, deeds, leases, contracts, agreements, inventories, financial accounts, reports and all other proper and necessary legal instruments * # * and for said legal services such attorney * * * shall be allowed a fee based on the total market value of the real and personal property reportable in the Probate Court.” There is no showing in the present record that counsel have performed these services. We find it difficult to believe that the General Assembly intended for an attorney to receive a fee based on a percentage of the property reportable in a probate court, irrespective of the amount of work done by the attorney. Such an interpretation would manifestly be unfair, for numerous estates require dozens of prepared orders, while others, of the same monetary value, require but few. The trial court seems to have been entirely familiar with the amount of work performed by appellees, and the services rendered to the estate. It placed a value upon those services, and we are unable to say that the court’s finding was erroneous.

Affirmed on both direct and cross-appeal.

Justices Smith and Robinson dissent.

George Rose Smith, Associate Justice,

dissenting. The attorneys who are now demanding a fee from the estate represented the proponents under a contingent fee contract which would have entitled them to a fee of about $35,000 if the will had been upheld. If, however, the will was declared to be a forgery, as proved to be the case, they would receive nothing.

I think the contracting parties evidently intended that the attorneys’ compensation be governed solely by the contingent fee contract. If the validity of the will had been sustained the attorneys would have been entitled to one-third of the estate for their services. 1 am unable to believe that they would have demanded, much less have been entitled to, an additional fee for representing one of their clients in her capacity as administratrix.

But the will was found to be a forgery. Since the lawyers were to receive no extra compensation for representing the administratrix if the will had been upheld, it should follow that they receive no such extra compensation if the will be rejected. Otherwise they are in the position of collecting a contractual fee from their clients if they are successful in defending the will and of collecting a non-contractual fee from the appellant, as the sole beneficiary of the estate, if they are unsuccessful. The plain result of this view of the law is to encourage the tender of a forged will in every instance, for its proponents have everything to gain and nothing to lose.

Robinson, J., joins in this dissent.

       For a detailed discussion of the facts, see Black v. Morton, Law Reporter of February 27, 1961, 343 S. W. 2d 437, and Black v. Morton, Law Reporter of December 18, 1961, 352 S. W. 2d 177.

       Walter L. Black, Sr., a brother of Ward Millard Black, died during the pendency of the will contest. The estate is valued at over $100,000.

       Of course, no fee would be allowable to the administratrix unless the will was offered for probate in good faith.

       The record in the first case (made a part of the record herein) discloses that Miss Thompson holds a Bachelor of Arts degree from College of the Ozarks, a Master’s degree from the University of Arkansas, and 30 hours graduating credit from the University of Oklahoma and Northeastern State Teachers College. During the war, she was with the War Department as an instructor in the Armed Service Forces Technical Command. She has also worked for the United States Treasury Department and in the Comptroller’s Division of Douglas Aircraft Corporation.

       This would roughly total about seventy-five conferences.

       Emphasis supplied.


text:
    Wagnon v. Porchia.
    5-2806
    361 S. W. 2d 749
    Opinion delivered November 19, 1962.

      Bernard Whetstone, for appellant.

      Lamar Smead, James M. Rowan, Jr., and Shackleford & Shackleford, for appellee.
   Ed F. McFaddin, Associate Justice.

This case results from a traffic mishap which occurred on July 30, 1960, when a pickup truck driven by J. W. Wagnon was struck by a car driven by the appellee, Raymond Porchia. Wagnon was killed and Porchia was injured. Porchia filed action against the estate of Wagnon, claiming that the collision was entirely the fault of Wagnon. Mrs. J. W- Wagnon, as Special Administratrix, filed answer, denying that Wagnon was negligent; and she also cross-complained against Porchia for damages, alleging that his negligence caused the collision and the death of Wagnon. Wagnon carried liability insurance, and his insurance carrier effected a settlement with Porchia and the claim of Porchia against the Wagnon estate was settled and dismissed; but the settlement by the Insurance Company did not affect the claim of Mrs. Wagnon, as special administratrix, against Porchia. That claim was tried before a jury and resulted in a verdict and judgment for Porchia. It is from that trial that the present appeal is prosecuted.

I. Motion To Strike Answer To Cross Complaint. Porchia’s original complaint was filed on October 14, 1960. On November 2, 1960, Mrs. Wagnon filed her answer and cross-complaint; and the answer to the cross-complaint was not filed by Porchia until April 5, 1961. Because of such delay, the appellant, on September 28, 1961, moved that the answer to the cross-complaint be stricken and Porchia found to be in default, citing in support of such motion § 27-1137 Aide. Stats.; Pyle v. Amsler, 227 Ark. 785, 301 S. W. 2d 441; and Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439. The Trial Court denied the motion to strike; and, under the facts shown by the evidence, we hold such ruling to be correct.

Mrs. Wagnon was represented by another attorney when her answer and cross-complaint were filed; and that attorney continued in the case until after April 14, 1961, when the insurance company settled the claim of Porchia against the Wagnon estate. Mrs. Wagnon’s original attorney then withdrew from the case and she retained her present counsel. The answer to the cross-complaint was filed while Mrs. Wagnon’s original attorney represented her, and he never claimed a default and testified that he had no idea of claiming one. He remained in the case nntil after April 14, 1961. It is easy to see that from the time of the filing of Mrs. Wagnon’s cross-complaint until the insurance company effectuated its settlement, there were negotiations in progress and such negotiations accounted for the failure of Porchia’s attorneys to file the answer to the cross-complaint. It was not until the original complaint was settled and it was seen that the negotiations were ended that it became necessary to file the answer to the cross-complaint. So the Trial Court was correct in refusing appellant’s motion to strike the answer to the cross-complaint. See Easley v. Inglis, 233 Ark. 589, 346 S. W. 2d 206.

II. Excliosion Of Evidence. The traffic collision between the Porchia car and the Wagnon pickup truck occurred on U. S. Highway No. 79; and both vehicles were going in the same general direction. Porchia was traveling northerly from Stephens to Camden, and he overtook and passed a truck driven by the witness, Gene Kesner. This passing of the Kesner truck was less than a half mile from the place where the collision subsequently occurred. Kesner testified that he continued to travel 55 miles per hour; that Porchia was traveling 75 miles an hour when he passed the Kesner truck; that after passing the Kesner truck Porchia increased his speed to 85 miles an hour; that when Kesner last saw the Porchia car it was traveling 85 miles an hour and “fishtailing”, that the Porchia car rounded a curve so Kesner did not continuously see the Porchia car, but the mishap occurred 175 yards from the curve. Kesner was traveling 55 miles an hour and when he reached the curve the collision had already occurred 175 yards away. In short, when Kesner last saw the Porchia car, it was traveling 85 miles per hour and the collision occurred only 175 yards farther down the road.

The Court refused the above mentioned testimony of the witness Kesner; and this occurred:

“The Court: I think his testimony about where he passed him, and how he passed him almost a half mile back wouldn’t be competent testimony, because it is too remote from the scene of the accident. What was he doing at the time of the accident, that is the thing that is proper here. And the other time the closest was 175 yards.
‘ ‘ Mr. Whetstone: He said he was going faster than 85 miles an hour at that time.
“The Court: I think that testimony is too remote, as to the scene of the accident.
“Mr. Whetstone: How fast he was going 175 yards before the collision?
“The Court: He said he observed him as he went down the hill, and then as he went out of sight he was fish-tailing. ’ ’

The ruling of the Trial Court is challenged by the appellant; and we hold that the Kesner testimony was admissible and the Trial Court was in error in excluding it. Appellant cites and relies on two Arkansas cases. The first is Mo. Pac. Trans. Co. v. Mitchell, 199 Ark. 1045, 137 S. W. 2d 242, in which a witness was permitted to testify that when the Missouri Pacific bus passed the witness four or five miles from the scene of the accident, the bus was going 75 miles an hour and that the bus continued to drive rapidly until it passed out of view. It is true that in the cited case other witnesses testified that the bus continued at a high and dangerous rate of speed; but, in holding that the questioned testimony was admissible, we cited from Blashfield’s Cyclopedia of Automobile Law and Practice, Yol. 9, § 6171, as follows:

“Generally speaking, any evidence of conditions leading up to or surrounding an automobile accident, which will throw light on the question of whether a traveler was in exercise of due care at the time of the accident, is admissible, in an action for injuries growing out of such accident.”

The second Arkansas case relied on by appellant is Jelks v. Rogers, 204 Ark. 877, 165 S. W. 2d 258, wherein a witness testified as to the speed of a truck which passed him three blocks away from the intersection. Of that testimony, we said:

“We are unable to agree with the contention that the testimony of Berry Provence as to the speed of the truck when it passed him, about three blocks south of the intersection, was inadmissible. It was competent as a circumstance tending to show the speed of the truck at the time of the collision.”

To sustain the ruling of the Trial Court excluding the proffered testimony, appellee relies on Schwam v. Reece, 213 Ark. 431, 210 S. W. 2d 903. In that case the Court refused to allow a witness to testify as to the speed and manner in which the defendant was driving the bus on another trip about thirty minutes prior to the accident, and two or three miles from the scene of the collision. In holding that the ruling of the Trial Court was correct, Justice Millwee, in referring to the case of Pugsley v. Tyler, 130 Ark. 491, 197 S. W. 1177, distinguished it from the two cases here relied on by appellant, by using this language:

‘ ‘ That case, like the one at bar, is to be distinguished from those cases involving the admissibility of evidence where it is shown that the speed at which the driver was traveling was one continuous act of negligence and not a separate and different act from the one involved in the collision. See Mo. Pac. Trans. Co. v. Mitchell, 199 Ark. 1045, 137 S. W. 2d 242; Jelks v. Rogers, 204 Ark. 877, 165 S. W. 2d 258.”

In the case at bar, the excluded testimony of Kesner was that the Porchia car was going 85 miles an hour when he last saw the car a distance of only 175 yards before the collision. A car traveling 85 miles an honr is going in excess of 41 yards a second, so the collision occurred less than five seconds after the Porchia car was last observed by Kesner as traveling at a speed of 85 miles an hour. Certainly neither the distance of 175 yards nor the time lapse of five seconds could render the testimony of Kesner too remote. We hold that Kesner’s proffered evidence was not too remote, and should have been admitted.

III. Permitting Appellees To Argue The Settlement Of The Original Complaint. Since the case is being reversed and it is possible that there will be a new trial, we think it proper to mention this point raised by the appellant. In the closing argument appellee’s attorney told the jury, over appellant’s objection, that Porchia’s claim had been settled; and said:

He got paid for his damages and there is no complaint about that ... if he had not been in the right the people that found out all about it . . . would not have settled and paid Porchia off. Now I want you to think about that when you go out there to deliberate on this case. According to the evidence in this case they settled with Porchia a short time after this happened, and paid him for whatever his damages were. ’ ’

We think this argument was improper. Our search has not revealed a case like this one, in which an insurance carrier has settled with the plaintiff and the defendant has continued to prosecute the cross-complaint against the original plaintiff. Either the jury should have been fully informed about, the whole matter, or all argument on the point should have been silenced by the Court. We reach the conclusion that the better practice is for the Court to merely tell the jury that the original complaint is out of the case, that it has been disposed of, that it is not a matter before the jury, and that the jury will not speculate about it. Thus, neither side can use the settlement of the original complaint in any way. The Trial Court attempted in the case at bar to make such a ruling because in the instructions he told the jury:

“You are instructed that you are not to speculate or consider with reference to any other possible claims or litigation growing out of this collision but you are to confine your deliberations and considerations solely to the merits of this single cause of action of the Wagnons against Raymond Porchia. You are instructed that in making your findings in this case that the jury is not required to speculate as to what happened or as to any phase of the case but a verdict should be, and must be, based upon a preponderance of the evidence or testimony. ’ ’

The instructions were proper: the vice was in allowing the appellee’s attorney to make the argument which we have quoted.

For the error in refusing the proffered testimony of the witness Kesner, and for the error in the improper argument, the judgment is reversed and the cause is remanded.

       The Order of Dismissal recites:
      “IT IS THEREFORE, BY THE COURT, CONSIDERED, ORDERED AND ADJUDGED That plaintiff’s complaint is dismissed with prejudice and that this dismissal fully releases and forever discharges J. W. Wagnon and Mrs. J. W. Wagnon, special administrator of the estate of J. W. Wagnon, Central Surety and Insurance Corporation and all agents, successors and assigns and all other persons, firms, and corporations, of and from any and every claim, demand and cause of action whatsoever which the plaintiff now has or may hereafter have against the said defendants.”

       This word “fish-tailing” is very descriptive, as used by the witness, and as a verb found in Webster’s Third New International Dictionary as: “to move with a side to side or whipping motion of the stern ...”

       It will be observed that in Jelks v. Rogers the testimony related to a speed three blocks, or more than 900 feet, from the scene of the collision, whereas, in the case at bar, the testimony of Kesner as to the speed of the Porchia ear was when the car was 175 yards, or 525 feet, from the scene of the collision.

       In 46 A. L. R. 2d page 9 there is a splendid annotation entitled, “Admissibility, in action involving motor vehicle accident, of evidence as to manner in which participant was driving before reaching scene of accident.” Also in Comins v. Scrivener (10th Circuit), 214 F. 2d 810, our case of Mo. Pac. v. Mitchell, 199 Ark. 1045, 137 S. W. 2d 242, is cited as being in accord with the general rule.