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

text:
    Southern Cotton Oil Division v. Childress.
    5-3162
    377 S. W. 2d 167
    Opinion delivered April 6, 1964.

      llout, Thaxton & PI out and Bose, Meek, Mouse, Barren, Nash S Williamson, for appellant.

      Pickens, Pickens & Boyce, Smith, Williams, Friday cG Bowen, Bobert V. Light, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a workmen’s compensation case, and necessitates a review of the holdings on the matter of “horse-play” or “skylarking. ’ ’

Mrs. Minnie Lee Childress seeks recovery for herself and children because of the death of her husband, George Childress, while in the employ of the appellant, Southern Cotton Oil. The facts are without substantial dispute. For many years the appellant, Southern Cotton Oil has had a cottonseed oil mill at Newport. George Childress worked for the appellant for about seven years. On August 15, 1957, he reported for work about 7:00 A.M. and was assigned the job of using a compressed air hose for blowing out the vent pipes in the soybean storage shed.

Alfred Ballentine, a fellow-employee, was working that day in another room of the plant. About 2:00 o’clock in the afternoon Ballentine needed an 18" pipe wrench and went to the soybean shed to see about getting the wrench. George Childress was then using a high-pressure air hose with a nozzle on the end of it, blowing out the vents in the storage room. As Ballentine went by Childress, one or the other made a friendly and challenging gesture. After Ballentine investigated the matter of the pipe wrench, he started out of the bean shed and passed by Childress; and they engaged in friendly scuffling and in the process of the scuffle Ballentine got hold of the nozzle of the air hose that was blowing in a continuous stream and in some way the end of the air hose was forced against the. anus of the deceased and air forced into his body and as a result George Childress died. A portion of this scuffle was witnessed by Mr. Jerry Jeffrey, manager of the Company, who immediately went to the men and, finding that Childress had been injured, he made arrangements for Childress to be taken to the hospital. The company paid the medical and hospital bills that resulted from the injury. Childress died on August 18, 1957, of internal injuries, the result of the air being forced into his body.

Alfred Ballentine testified that he and George Childress had been friends for seven years; that they had scuffled there at the Southern Cotton Oil plant five or six times before that day; that there was no anger or ill feelings between them; and that it was just friendly playing. Ballentine said that when he passed by Childress enroute to see about the pipe wrench, Childress was seated in the door at work and Childress reached for him; that as Ballentine came back, Childress jumped up and went running around Ballentine with the air hose, as though to wrap it around him; that they started scuffling and Ballentine tried to get loose and Childress was trying to tie the hose around him; that they were not mad, they were just playing, and that they scuffled for a few minutes and some way in the process the air was forced into Childress’ body through his anus.

Ballentine also testified that during the entire time he worked at the plant no one gave him any instructions or warning regarding the use of the air hose; that he did not know that an air hose could injure a man seriously or kill him; that he did not know that placing the air hose near a man’s rectum might kill him. Ballentine said some other employees had used the air hose to clean the lint off their clothes; and that he had never played with an air hose before. A number of other witnesses testified, but all the evidence was about to the same general effect as that heretofore mentioned. The fact remains that Childress and Ballentine, while on the job, engaged -in a friendly scuffle, and as a result Childress was killed.

The Workmen’s Compensation Commission refused to allow compensation. On appeal the Circuit Court reversed the Commission and held that Mrs. Childress and her children were entitled to recover compensation. The Circuit Court was of the view that our case of Johnson v. Safreed, 224 Ark. 397, 273 S. W. 2d 545, changed the holding in Hughes v. Tapley, relied on by the Commission. From the Circuit Court judgment, Southern Cotton Oil prosecutes this appeal; and we are thus presented with the problem of whether there may be a recovery in a case like this one wherein a worker is injured in what is called “horse-play” or “sky-larking.”

I. The Holdings Generally. Before considering our own cases, it is proper that we consider as background information the trend generally in “horse-play” cases. The earlier workmen’s compensation cases usually held that there could be no recovery in “horse-play” cases; but Justice Cardozo’s opinion in Leonbruno v. Champlain, 229 N. Y. 470, 128 N. E. 711, 13 A.L.R. 522 (1920), is generally credited with having ushered in the modern ruling. Justice Carduzo there said:

“Whatever men and boys will do, when gathered together in such surroundings, at all events if it is something reasonably to be expected, was one of the perils of his service . . . The claimant was injured, not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life. The risk of such associations and conditions were risks of the employment.”

The courts then began to allow recovery to the innocent victim of the horseplay, but a majority continued to refuse recovery to the instigator of the horseplay if he were injured. Larson4 states this rule:

“Injury to a non-participating victim of horseplay is compensable, but to the instigator is usually not. A few states permit recovery even by active participants in horseplay if such activity has become customary. A suggested rationalization of the rule on participants in horseplay is to treat the question, when an instigator is involved, as a primarily course of employment rather than ‘arising-orit-of-employment’ problem; thus, minor acts of horseplay would not automatically constitute departures from employment but might here, as in other fields, be found insubstantial. So, whether initiation of horseplay is a deviation from course of employment would depend on (1) the extent and seriousness of the deviation, (2) the completeness of the deviation {i.e., whether it was commingled with the performance of duty or involved an abandonment of duty), (3) the extent to which the practice of horseplay had become an accepted part of the employment, and (4) the extent to which the nature of the employment may be expected to include some such horseplay.”

The trend of the recent cases has been to eliminate the distinction between instigator and victim, and to examine the real facts as to: (a) whether there was a substantial deviation from employment; (b) the extent of the horseplay; (c) whether it should have been known to the employer so as to be stopped; and (d) other factors which might tend to allow recovery to the injured party. Larson4 has several pages devoted to these various matters. In 99 C.J.S. p. 753, “Workmen’s Compensation” § 225,. after stating the general rule, the text states:

“An injury to an employee as a result of horseplay, skylarking, or practical joking is ordinarily compensable where the injured employee did not participate in the fun or where such activities were customary in the particular employment. ’ ’ The text then adds this:

‘ ‘ Other authorities go further and hold that the test of coverage by the compensation statute is whether or not the horseplay, skylarking, and practical joking that caused the injury may reasonably be regarded as an incident of the particular employment, and where it may be so regarded, an injured employee is entitled to compensation even though he was a participant.” Schneider says:

“Since a majority of the jurisdictions now award compensation to innocent or non-participating employees, and to employees whose participation is but momentary and not ‘aggressive’, a rule, under the broader conception of the law, may be said to be that injuries sustained by an employee while in the course of his employment as a result of another’s horseplay, are compensable as arising out of and in the course of his employment.

“The question of whether the aggressor should be entitled to compensation for injuries resulting from his own aggressiveness is one which must be left for future determination. The general trend, however, appears to be in that direction.”

Hon. Samuel B. Horovitz, writing in 3 NACCA Law Journal 57, in 1949, said:

“Clearly, fooling at work is incidental to it, and a hazard of men working together. The more recent and better rule is to allow an award for an injury resulting from horseplay, even to aggressors, where the injury is a by-product of associating men in close contacts, thus realistically recognizing the ‘strains and fatigue from human and mechanical impacts.’ ”

To list all the cases and Law Review articles on this matter would be a work of supererogation. To sum up: the recent cases are in accord with the words of the Supreme Court of Michigan in Crilly v. Ballou (1958), 91 N. W. 2d 403, in which the Michigan Court reviewed its own earlier case denying recovery, overruled it, and said:

“We need not undertake to define the outer limits of compensability. We rule on the case before us . . . So much for the present and the future. As for the past, we specifically overrule the Tarpper case, supra, and subsequent cases of like character, and hold that injuries received in assaults, either sportive or malicious, are not, by reason of such fact alone, beyond the realm of compensability. If arising out of the employment and received in the course thereof they are compensable.”

II. Our Own Cases. Turning from the holdings elsewhere, we come to our own cases. There are four of these:

(1) Birchett v. Tuf-Nut Garment Mfg. Co. (1943), 205 Ark. 483, 169 S. W. 2d 574. We denied compensation to an employee, saying:

“The question here presented is a new one in this state. Decisions from other jurisdictions, while persuasive, are not conclusive. Claimant’s injuries arose out of a personal difficulty which she provoked herself. The cause of the ill-feeling is immateiral. During a rest period, she entered the work room and saw a group of employees reading a document. They were not near her place of work, were not talking to her and were not molesting her in any way whatever. She went up to this group and snatched the paper, which was not hers and which she had never seen before, from her fellow employees, stuffed it in the bosom of her dress and ran away with it. She does not claim she was acting in a playful spirit. In the ensuing struggle for its recovery by the employees from whom she snatched the paper, she claims she got hurt. ’ ’

(2) Hughes v. Tapley, (1944), 206 Ark. 739, 177 S. W. 2d 429. Work had temporarily stopped and Hughes intended to throw a lighted fuse near a deaf and dumb fellow employee named Turley, which would have caused the man to be frightened and jump. Hughes got a carbide light, apparently to be used in lighting the fuse; and when he placed the carbide lamp on a box of powder the lamp toppled over and Hughes was injured. He claimed compensation from Tapley, his employer. The Commission denied recovery to Hughes, and we affirmed, saying:

“This case simply and clearly presents a situation where appellant, Hughes, voluntarily stepped aside from his employment to engage in a sportive act, horseplay or prank, or in order to frighten the unfortunate deaf and dumb Negro, Turley, and in his preparation to carry his plans into effect, he was injured, solely by his own acts. The injuries thus received did not arise out of appellant’s employment.”

We then quoted from an annotation as follows:

“ ‘It is generally held that no compensation is recoverable under the Workmen’s Compensation Acts for injuries sustained through horseplay or fooling which was done independently of and disconnected from the performance of any duty of the employment, since such injuries do not arise out of the employment within the meaning of the acts.’ ”

(3) Barrentine v. Dierks (1944), 207 Ark. 527, 181 S. W. 2d 485. Barrentine and a fellow employee (Parker) had a fight before lunch regarding something Barrentine might have said about Parker. After lunch, while Barrentine was getting a drink of water, Parker slipped up behind him and hit Barrentine on the head. The Commission denied recovery to Barrentine, finding that the “assault was caused by feeling engendered from purely personal causes and had no connection with the work of the master and did not arise out of employment.” We affirmed the Commission’s findings and refusal of an award of compensation to Barrentine.

(4) The foregoing three cases all indicate denial of compensation; but then ten years later came the fourth case, Johnson v. Safreed (1954), 224 Ark. 397, 273 S. W. 2d 545. Johnson and his fellow employee, Deloney, engaged in an affray and bitter words in the course of the work; and since Deloney was senior in point of service, the master, Safreed, discharged Johnson, who left the place of work and started to a truck to be transported to town. Deloney pursued Johnson and struck him on the head with a pick, inflicting injuries for which Johnson sought compensation from Safreed, the master. The Workmen’s Compensation Commission denied recovery to Johnson, finding: (1) that Johnson was the original aggressor in the affray; ancl (2) Johnson’s injury did not arise out of and in the course of his employment.

This Court, in an opinion by Justice Millwee, reversed the Commission and held that Johnson was entitled to compensation. Justice Millwee reviewed the earlier cases and the present ones, saying:

"Until recently a majority of jurisdictions that had passed on the question refused compensation to an aggressor even though the dispute was work-connected . . . However, commencing with the opinion by Judge Rutledge in Hartford Accident & Indemnity Co. v. Cardillo, 112 Fed. 2d 11, cert. denied, 310 U. S. 649, 84 L. Ed. 1415, 60 Sup. Ct. 1,100, various courts began to re-examine their position and adopt the view that aggression of the claimant, without more, would not bar recovery for an injury sustained in a work-connected dispute. During the past few years the trend of the cases in line with this holding is such that it may now be said that a majority of the jurisdictions which have examined the issue favor the proposition that aggression does not bar recovery . . .

"When the foregoing principles are considered in the case at bar, we are convinced that the framers of our statute did not intend to preclude recovery where the aggressive act amounted to nothing more than a light blow on the shoulder with the fist administered impulsively in a sudden altercation by one who was attempting to protect himself from serious bodily injury. We accordingly conclude that the acts of appellant under the undisputed facts were not of that serious or deliberate character necessary or essential to evince a wilful intention on his part to injure Deloney.”

Johnson v. Safreed was an assault case; and if a recovery can be allowed the original aggressor in an assault case, then likewise, recovery can be allowed the original instigator in a horseplay case. One cannot read the Opinion in Johnson v. Safreed without being convinced that in 1954 this Court departed from the older holdings (like Hughes v. Tapley) and took a positive step toward the award of compensation in a case like the one at bar. The holding in Johnson v. Safreed was so understood by the Bench and Bar contemporaneously with the Opinion. In an article in 1957 in 11 Ark. Review, p. 429, after reviewing the three earlier cases heretofore mentioned, the writer of the article said of Johnson v. Safred:

“In the Johnson case, compensation was awarded to a worker who had struck the first blow in a fight which culminated in his injury. The court quoted extensively from modern authority, relying particularly on the opinion of Justice Rutledge in the Hartford case, and pointed out that jurisdictions recently began following the view that the aggression of the claimant, without more, would not bar recovery. The instant fact situation was distinguished from those in the Birchett and Bárrenteme cases, but whatever the relation of the Johnson rule to its predecessors, the conclusion of the Arkansas court in the most recent altercation situation was: ‘ When the accumulated pressures of work-induced or work-aggravated strains and frictions finally erupt into an affray which results in injury to one of the participants, it is artificial to say that an injury to the one who struck the first blow did not arise out of the employment, but an injury to the recipient of that blow did arise out of the employment.’ . . . Similarly, the horseplay situation has been examined by the court only once, in a 1944 case, and in view of the apparent change made on controlling doctrines on altercations and assaults, a prediction of an allowance of an award under some horseplay circumstances does not seem unreasonable.

“The growing industrialization of the State of Arkansas is likely to focus increasing attention on the purposes and effects of the Workmen’s Compensation statute. The modern and liberal interpretation which the Arkansas court has given to the act underlines its duel purpose: protection of the employer from harrassing and unreasonable verdicts, and guaranty for the employee and his dependents of security of recovery for industrial accidents. ’ ’

The learned Circuit Judge in the case at bar rendered an Opinion which, after reviewing our earlier cases, concluded with these words:

“The important question which poses itself to this court appears to be whether or not the injury which caused the death of Childress arose out of the employment. In reading Johnson v. Safreed, 224 Ark. 397, 273 S. W. 2d 545 (1954), it is crystal clear that the Arkansas Supreme Court is no longer using as the test in Workmen’s Compensation cases, ‘whether the parties here ivere acting in the furtherance of the employer’s business,’ as stated in the Opinion of the Commission in the instant case. In the Johnson v. Safreed case the Arkansas Supreme Court declared that the more modern rule and the more humanitarian doctrine of ‘arising out of the employment’ would be the applicable yardstick . . .

“Therefore, it is the opinion of this court that Hughes v. Tapley, supra, is not now the law in this State; that in the instant case the question whether or not the decedent Avas the instigator is insignificant; that the conditions of employment did induce the horseplay; that the employer had knowledge of the fact that horseplay Avas engaged in by employees; and that the injury which caused the claiman’s death arose out of the employment. Therefore, this case is held to be compensable.”

We agree with the Circuit Court; conclude that the clamaints are entitled to compensation in the case at bar; and the judgment of the Circuit Court is affirmed.

Harris, C.J. dissents.

Carleton Harris, Chief Justice

(dissenting). While I have every sympathy Avith an injured employee, and AAith his family Avhere the injury is fatal, and likewise fully agree that a liberal construction should be given the Compensation Act, nonetheless, it does not appear to me that recovery should be allowed in this type of case. I cannot bring myself to feel that it is right or proper, or that the ends of justice are best served by permitting the recovery of compensation by a Avorker, or his dependents, AAdiere the employee sustained his injury at a time when he was not performing his duties, hut rather, to the contrary, had deliberately stepped aside to commit an act to satisfy his own sense of humor, such act being totally unrelated to the task for which he was employed.

There are numerous cases from various jurisdictions relative to injuries sustained while engaging in horseplay; some allow recovery, and some deny it, but according to C.J.S., Volume 99, Section 225, Page 753, the majority view is as follows:

“The courts are sharply divided as to whether injuries resulting from horseplay, skylarking, and practical joking are compensable. Under what is apparently the majority view, an injury to an employee as a result of sportive acts of coemployees, horseplay, or skylarking is not compensable as not arising out of the employment where the injured employee was a participant, initiator, or instigator.”

The court majority in the case before us appear to take the view that Hughes v. Tapley, 206 Ark. 739, 177 S. W. 2d 429, was overruled by Johnson v. Safreed, 224 Ark. 397, 273 S. W. 2d 545. Quoting from the majority opinion:

“Johnson v. Safreed was an assault case; and if a recovery can be allowed the original aggressor in an assault case, then likewise, recovery can be allowed the original instigator in a horseplay case.”

I do not agree with that analysis. As stated by Larson’s 'Workmen’s Compensation Law, Volume 1, Section 23.50, Page 354:

“While assaults and horseplay have some features in common, they also have some differences which make it doubtful whether the reasoning of assault cases can be taken over bodily and applied to horseplay. This reasoning pictures the day-to-day enforced contact of divergent personalities under the strains of industrial life, with the not improbable culmination in flareups of tern-per as the direct result of this environment. There is something relentless and inescapable about the emotional explosion that is thus ultimately thrust .upon the claimant “aggressor” virtually against his will. But in a horseplay case, the most you can say is that the employment environment provides temptation and opportunity, rather than implacable emotional pressure. Hence, when a prankster sets out to play a practical joke, there is a higher probability that the action may amount to a deliberate and conscious deviation from employment than in the assault cases, in which almost every instance of violence is a spontaneous and unpremeditated reaction to the play of the surroundings on the claimant’s temperatment.”

Also, Justice Millwee, who wrote the opinion in Johnson v. Safreed, supra, makes it a point to particularly call attention to the fact that the injury sustained by the claimant in that case was “work-connected.” In fact, this is emphasized three times in the opinion.

The majority quote a portion of the opinion of the Circuit Court in the present case, stating that they agree with the findings therein. One of these findings was that “the conditions of employment did induce the horseplay;” also, “the injury which caused the claimant’s death arose out of his employment.” I cannot agree with these conclusions, nor definitely determine the basis upon which they were made. It is to be supposed that these finding’s relate to the fact that the employer had the air hose on the premises, and that fact “induced the horseplay;” also, because Childress was injured by the perversive use of one of the pieces of equipment necessary to his work, the injury “arose out of the employment. ”

I, of course, agree that an innocent victim of horseplay should be granted compensation, but where the injury is the result of the inured person’s willful, deliberate, and total departure from the duties for which he was employed, I cannot see that compensation is in order. To my way of thinking, Childress was as far from performing his duties at the time of inury, as if, instead of wrestling and playing with an air hose, he had spent that time asleep or entirely away from the premises.

I, therefore, respectfully dissent.

       Most of the American cases use the word, “horse-play;” and most of the English cases use the word, “sky-larking.” We make no distinction in terminology.

       At the time of the death of George Childress, Southern Cotton Oil appears to have been a division of Wesson Oil and Snowdrift Company. Later Southern Cotton Oil appears to have become a division of Hunt Food & Industries, Inc., and is so styled in the briefs in this Court. For brevity, we merely call the appellant “Southern Cotton Oil.”

       The opinion of the Commission reads in part: “Briefly, the facts are these. On August 15, 1957, the deceased, George Childress, and a fellow employee, Alfred Ballentine, during work hours became engaged in friendly ‘horseplay’ which resulted in a high pressure air hose causing serious injury to George Childress, resulting in his death on August 18, 1957. The positions of the claimants and respondent are clear, the question being whether said accidental injury comes within the purview of the Act. The case of Hughes v. Tapley, 206 Ark. 739, 177 S. W. 2d 429 (1944), involved horseplay and the court said: ‘While it is true that appellant, in the instant case, has received most serious and painful injuries, he was, on the evidence presented, the unfortunate victim of his own acts, and his injuries resulting therefrom did not arise out of his employment and therefore he is not entitled to compensation.’ The Commission holds that this is still the law in this State; and in the instant case, we find that the deceased was' the instigator of the horseplay; that the parties here were not acting in the furtherance of the employer’s business; and that the conditions of employment did not induce the horseplay.”

       Larson comments on page 343: “The modern observer may find it hard to believe that such claims were uniformly denied in early compensation law; . . .” The Law of Workmen’s Compensation by Prof. Arthur Larson, Vol. I, page 343, § 23.10.

       In Vol. 13 of A.L.R. there are reported several of the leading cases on horseplay, being: Socha v. Cudahy Packing Co. (Nebr. 1921), 13 A.L.R. p. 513 (an air hose fatality, like the case at bar); Payne v. Industrial Comm. (Ill. 1920), 13 A.L.R. p. 518 (also an air hose case); Leonbruno v. Champlin Silk Mills (N. Y. 1920), 13 A.L.R. p. 522; and Hollenbach v. Hollenbach (Ky. 1918), 13 A.L.R. p. 524; and the annotation in 13 A.L.R. p. 540 et seq., “Workmen’s Compensation: right to compensation in case of injuries sustained through horseplay, or fooling.” This annotation is supplemented in 20 A.L.R. 882, 36 A.L.R. 1469, 43 A.L.R. 492, 46 A.L.R. 1150, and 159 A.L.R. 319.

       Schneider’s Workmen’s Compensation, 3rd or Permanent Edition, Text Vol. 6, page 560, § 1609.

       We do mention these few in each of which recovery was allowed the injured claimant, although he might have been the instigator of the horseplay: Diaz v. Newark Industrial Co. (N. J. 1960), 159 A. 2d 462, affirmed 167 A. 2d 662; Petro v. Martin Baking Co. (Minn. 1953), 58 N. W. 2d 731; Cunning v. City of Hopkins, (Minn. 1960), 103 N. W. 2d 876; and Ransom v. Hill Co. (Tenn. 1959), 326 S. W. 2d 659. See also 65 Harvard Law Review p. 360; 37 Virginia Law Review p. 766; 34 Cornell Law Quar. p. 460; 54 Harvard Law Review p. 154; 41 Illinois Law Review p. 311; 26-27 NACCA Law Journal p. 248; and 29 NACCA Law Journal p. 239.

       The Commission found that Childress instigated the horseplay which resulted in his fatal injury, and this is not disputed.


source: Caselaw Access Project

author: Gteorge Rose Smith, J.

license: Public Domain

text:
    Weir v. Hill.
    5-3253
    377 S. W. 2d 178
    Opinion delivered April 6, 1964.

      Davis S Mills, for appellant.

      Scott $ Davidson, Kirsch, Cathey S Broivn, for appellee.
   Gteorge Rose Smith, J.

This appears to he an action brought by the appellee to recover judgment upon six promissory notes executed by the appellant. We do not reach the merits, for under Rule 9 we are compelled to affirm the the judgment. The appellant has submitted only a statement of the case, a list of the points relied upon for reversal, and a brief. There is no abstract of the pleadings, the judgment, or the testimony that was heard below. To determine the facts in the case we should have to explore the record, which is contrary to our practice. Vire v. Vire, 236 Ark. 740, 368 S. W. 2d 265.

Affirmed.


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

text:
    Woodsmall v. George.
    5-3254
    377 S. W. 2d 175
    Opinion delivered April 6, 1964.

      Douglas Bradley, for appellant.

      Mitchell D. Moore, for appellee.
   Paul Ward, Associate Justice.

The issue for decision grows out of the sale of a combine and a title retention note. The material facts are not in dispute.

Appellee, Louis George, d/b/a Louis George Motor Company (hereafter referred to as George), sold an Allis Chalmers 66 combine to J. C. Henry for the price of $1,575 on October 11, 1956. Henry paid $325 cash as a down payment and executed a title retaining note for the balance of the purchase price (plus $37.50 for life insurance). One payment of $300 was due January 1, 1957, and the other payment of $987.50 was due November 15, 1957. Pour days after the note was executed Henry assigned it to the Mississippi County Bank.

Henry was unable to make the $300 payment due January 1, 1957, and George agreed not to repossess the combine if Henry would give him satisfactory security. So, on January 18, 1957 Henry executed another note for $300 payable to George due October 15, 1957. Appellant was an accommodation signer on this note and George agreed to accept it.

When the $987.50 became due on October 15, 1957 it was also not paid by Henry, and George repossessed the combine. Shortly thereafter George paid the bank $1,407.10 and the title retention note was turned over to him.

Some four years later — on June 2, 1962 — George filed this suit against Henry and appellant to recover on the $300 note executed by them on January 18, 1957, but no service was had on Henry. Appellant filed an answer contending he was only an accommodation endorser and that Henry’s indebtedness to George was extinguished (or satisfied) when he repossessed the combine. The cause was tried before a jury, and after both sides rested, the court directed a verdict in favor of George in the sum of $300.. Thereupon appellant filed' a motion for judgment non obstante veredicto, and this motion was overruled. This appeal follows.

In addition to the facts above set out George (the only witness), in material parts, testified in regard to the $300 note signed by appellant as follows:

‘ ‘ Q. Did the note have anything to do with the sale price of the combine?

‘‘A. None at all. All it did was secure the payment.

“Q. Why did you have Mr. Woodsmall to endorse the note?

“A. I told Mr. Henry to get somebody that was good enough that would secure me for the amount of that note for the payment he couldn’t pay at that time, that I would go ahead and accept it. ’ ’

“Q. Now, you did, after receipt of this note, Plaintiff’s Exhibit 1, you did thereafter repossess this combine, didn’t you?

A. Yes, sir.

“Q. You didn’t turn that note over tó the hank?

“A. No.

“ Q. At the time you took this note, the bank owned that title retaining note?

“A. Yes.”

In our opinion the only reasonable deduction that can be drawn from the above is that George took the accommodation note to secure the payment of the $300 due on the title retention note—in fact he so states. If George, had, in truth and in fact, taken the note as a payment on the prime note, then credit should have been so indicated. Moreover, at the time the accommodation note was executed, the bank was the owner of the prime note and so George had no power to force the bank to accept a note in lieu of cash.

Under the above factual situation, when applied to the' numerous uniform decisions of this • court, the trial court should have directed a verdict in favor • of appellant.

In Hollenberg Music Company v. Bankston, 107 Ark. 337, 154 S. W. 1139, the Court said:

“When a debt, secured by a reservation of title, matures, the vendor has the right to retake the property and thus cancel the debt, or he may bring his action to recover the debt, and thus affirm the sale and waive the reseiwation of title; and as a.general rule, the choice of inconsistent remedies abandons and debars the pursuit of any except the one chosen. Dudley E. Jones v. Daniel, 67 Ark. 208. But this choice of remedies is to be exercised in the event only that the vendor decides to take some affirmative action. He is not required to act simply because the debt has matured.” (Emphasis added) '

Beene Motor Company v. Dison, 180 Ark. 1064, 23 S. W. 2d 971, held:

“. . . when appellant retook possession of the car, it elected to take the property to which title- had been retained, and thereby caucel the indebtedness. It had only one of two remedies; either it could have treated the sale as canceled and repossessed the property, as it did, or treat the sale as absolute, and sue for the purchase price.

“. . . when appellant elected to retake the truck, it also elected to cancel the balance of the indebtedness due against the car, which had the effect of relieving the appellee Shepherd either as surety or joint maker on the note.”

■ This Court said.in Oliver, Wheeler, Thomas Company, Inc. v. Boon, Administrator, 224 Ark. 830, 276 S. W. 2d 417:

“When title is retained as security for the unpaid debt, the seller cannot be permitted to recapture the property and also to exact its price from the buyer.”

Quoting from Gale & Company v. Wallace, 210 Ark. 161, 194 S. W. 2d 881, in Noble Gill Pontiac, Inc. v. Bassett, 227 Ark. 211, 297 S. W. 2d 658, we stated:

“ ‘When the debt becomes due the vendor, in sales of this character, may bring an action to recover the debt, and by this he affirms the sale and waives the reservation of title; or he may elect to take the property, and by doing so, cancels the debt. He may not, however, have both remedies, and, where he elects to retake the property an action to recover on the debt is barred.’ ”

In view of what we have heretofore said, it is our opinion that when George repossessed the combine he elected to disclaim the sale and thereby also released Henry of all indebtedness. It is undisputed that appellant would not be liable unless Henry was also liable.

• Reversed and Dismissed.

MoFaddin and Robinson, JJ., dissent.

Ed. F. MoFaddin, Associate Justice

(concurring and dissenting). I reach the conclusion that the judgment of the Circuit Court should be reversed and the cause remanded for a new trial; so I concur with the Majority in reversing the judgment, but dissent from the Majority as regards dismissing the case.

George filed suit against Woodsmall on the $300.00 note, and Woodsmall admitted the execution of the note. The record shows that at.,the close of the case by George, Woodsmall also rested without offering any evidence; and then the Court, on its own motion, directed a verdict for the plaintiff. I think the case should have been submitted to the jury on the record made.

If George accepted the $300.00 note signed by Wood-small as a payment on the larger note, then the repossession of the combine, for the remaining balance due on the larger note, would not have released Woodsmall from the note which he signed and which was accepted as a payment on the larger note. On the other hand, if George took the $300.00 note signed by Woodsmall as additional security for the larger note, then repossessing the combine under the larger note would have released Woodsmall on the $300.00 note. So the question should have been submitted to the jury on the evidence offered as to whether George took the note signed by Woodsmall as payment or as additional security. I think a fact question was made for the jury, and the case should be remanded for a new trial.

Justice Robinson, joins with me in the views herein.


author: Sam Robinson, Associate Justice. Jim Johnson, Associate Justice

text:
    Cude v. State.
    5-3239—5-3240
    377 S. W. 2d 816
    Opinion delivered April 6, 1964.
    [Rehearing denied May 11, 1964.]

      Shaw 3 Shaw, for appellant.

      Ivan H.. Smith, for appellee.
   Sam Robinson, Associate Justice.

The issue' is the authority of the courts to appoint a guardian for children between the ages of 7 and 15, inclusive, who are not attending school, and to give the guardian custody of the children with directions to have them vaccinated to facilitate school attendance.

Appellants, Archie Cude and his wife, Mary Frances, are the parents of eight children, three of whom are between the ages of 7 and 15, inclusive. The children are Wayne Monroe, age 12, Delia Marie, 10, and Linda May, 8. Wayne went only to the second grade; the other two have not attended school at all. The children are not in school for the reason that the school authorities will not permit them to attend school because they have not been vaccinated against smallpox. The Cudes will not permit such vaccinations; they contend that it is contrary to their religion.

This litigation was commenced by Ben Core, Prosecuting Attorney for the Ninth Judicial District of the State of Arkansas, filing in the Probate Court of Polk County, on behalf of the State, a petition alleging that the three Cude children were not attending school; that the father, Archie Cude, had been fined on three occasions for violating the law requiring that parents send their children to school, and he has persisted in his refusal to have the children vaccinated so that they can attend school, and that the father has avowed that he will never permit the children to be vaccinated; that unless the children are removed from the custody of the natural parents they will not have all the benefits and advantages of a school education. The petition asks that the children be placed in the custody of the Child Welfare Division of the State Welfare Department.

The appellants responded, contending first, that the probate court did not have jurisdiction, and further, that vaccination of the children was against respondents’ religious beliefs. There was a full scale hearing; it was shown that the children were not attending school because they had not been vaccinated; that the appellants would not permit them to be vaccinated because of their religious beliefs, and appellant, Archie Cude, testified that if the children were taken from him and vaccinated he would not accept them back.

The court appointed Miss Ruth Johnston, Director of the Child Welfare Division of the State Welfare Department, as guardian of the children. The order further provides: “Said guardian is authorized and directed to file a petition in the Chancery Court of Polk County, Arkansas, for the purpose of obtaining the physical control and custody of the children for the purpose of having such children properly vaccinated and immunized against the disease of smallpox, and thereafter enrolled in the public schools of this State, all in accordance with the laws of this State, and all to be done by qualified and licensed and practicing physicians of this State as soon as is reasonably possible after the said children are in the custody of said guardian. After the immunization of the said children, the guardian shall offer, through the office of the Prosecuting Attorney for the 9th Judicial Circuit, to deliver the said children back into the custody of the Defendants, and the guardian is authorized and directed to do so, and if the Defendants shall not accept the said children back into the home of the Defendants, then the said guardian is hereby authorized and empowered to consent to the subsequent adoption of the said children by a party or parties acceptable to the Guardian and to the Probate Court which may consent.”

Pursuant to the foregoing order, the guardian, Ruth Johnston, filed a petition in the chancery court asking for custody of the children. Over appellants’ protest the petition was granted. The Cudes have appealed.

Actually, there are two appeals; one from the order of the probate court appointing the guardian; the other from the order of the chancery court giving Miss Johnston custody of the children. The cases have been consolidated on appeal.

For the purposes of the appeal, we will assume that the Cudes, in good faith because of their religious beliefs, will not permit the children to be vaccinated. Then the question is whether they have the legal right to prevent vaccination. The answer is that they do not have such right.

There is no question that the laws of this State require parents to send to school their children between the ages of 7 and 15, inclusive. Ark. Stat. Ann. § 80-1502 (Eepl. 1960) provides: “Every parent, guardian, or other person residing within the State of Arkansas and having in custody or charge any child or children between the ages of seven [7] and fifteen [15], (both inclusive) shall send such child or children to a public, private, or parochial school under such penalty for non-compliance with this section as hereinafter provided.”

The school administrative authorities of the State of Arkansas have adopted a regulation requiring vaccination as follows: “No person shall be entered as a teacher, employee or pupil in a public or private school in this state without having first presented to the principal in charge or the proper authorities, a certificate from a licensed and competent physician of this State certifying that the said teacher, employee or pupil has been successfully vaccinated; or in lieu of a certificate of successful vaccination, a certificate certifying a recent vaccination done in a proper manner by a competent physician; or a certificate showing immunity from having had smallpox. . .” There is no question about the validity of this regulation. State v. Martin, 134 Ark. 420, 204 S. W. 622; Seubold v. Ft. Smith Special School Dist., 218 Ark. 560, 237 S. W. 2d 884.

It is clear that the law requires that the children attend school, and a valid regulation requires that they be vaccinated. The next question is: Are appellants, because of their religion, exempt from the law and the regulation requiring that the children be vaccinated so that they can go to school? It will be remembered that appellants do not object to the children going to school; it is the vaccination that is objectionable to them. But, according to a valid regulation, the children are not permitted to go to school without having been vaccinated.

■Article'2, Sec. 24 of■ the ■ Constitution of Arkansas provides“All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can, of right, be compelled to attend, erect or support any place of worship; or to maintain any ministry against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given, by law, to any religious establishment, . denomination or mode of worship above any other.” The foregping provision of the Constitution means that anyone has the right to worship God in the manner of his own choice, but it does not mean that he can engage in religious practices inconsistent with the peace, safety and health of the inhabitants of the State, and it does not mean that parents, on religious grounds, have the right to deny their children an education.

The U. S. Supreme Court said in Prince v. Commonwealth of Massachusetts, 321 U. S. 158, S. Ct. 438, 88 L. Ed. 645: ‘ ‘The right to practice religion freely does not include liberty to expose the community or the child to communicable diseases or the latter to ill health or death . ... Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached'the, age of full and legal, discretion when they can make that choice for themselves. ’ ’

It is a matter of common knowledge' that prior to the development of protection against smallpox by vaccination, the disease, on occasion, ran rampant and caused great suffering and sickness throughout the world. According to the great weight of authority, it is within the police power of the State to require that school children be vaccinated against smallpox, and that such requirement does not violate the constitutional rights of anyone, on religious grounds or otherwise. In fact, this principle is so firmly settled that no extensive discussion is required. ■ " •

In the early case of Reynolds v. U. S., 98 U. S. 145, the issue was whether a Mormon who believed in polygamy was immune from the operation of the statute forbidding- the practice of multiple marriage. There, the court said: ‘ ‘. ... the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere and prevent a sacrifice? Or if a wife religiously believed it was her duty to- burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?”

In cases too numerous to mention, it has been held, in effect, that a person’s right to exhibit religious freedom ceases where it overlaps and transgresses the rights of others. We cite a few cases upholding the validity of statutes requiring vaccination, and affirming orders of courts authorizing blood transfusions, etc. In Re Whitmore, 47 N. Y. Supp. 2d 143; vaccination of school child. Sadlock v. Board of Education, 58 A. 2d 218; vaccination of school child. State v. Perricone, 181 A. 2d 751; giving blood transfusion to infant. New Braunfels v. Waldschmidt, 207 S. W. 303; vaccination of school child. Hosier v. Barren County Board of Health, 215 S. W. 2d 967; vaccination of school child, Board of Education of Mountain Lakes v. Maas, 152 A. 2d 394; vaccination of school child. In Re Clark, 185 N. E. 2d 128; blood transfusion for three year old child.

This court said in Seubold v. Ft. Smith Special School District, 218 Ark. 560, 237 S. W. 2d 884: “In Jacobson v. Massachusetts, 197 U. S. 11, 49 L. Ed. 643, 25 Sup. Ct. 358, the Supreme Court of the United States considered the matter of compulsory vaccination as infringing on rights claimed under the United States Constitution, and held that a State law requiring compulsory vaccination did not deprive a citizen of liberty granted by the United States Constitution. More recently, in the case of Zucht v. King, 260 U. S. 174, 67 L. Ed. 194, 43 Sup. Ct. 24, the United States Supreme Court again considered the matter of compulsory vaccination; and Mr. Justice BRANDEIS, speaking for the Court said: ‘. . . Long before this suit was instituted, Jacobson v. Massachusetts, 197 U. S. 11, 49 L. Ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765, had settled that it is within the police power of a state to provide for compulsory vaccination.’ ”

Appellant contends that in the circumstances of this case the probate court does not have jurisdiction to appoint a guardian. The Constitution of Arkansas, Article 7, Sec. 34 provides: “In each county the Judge of the court having jurisdiction in matters of equity shall be judge of the court of probate, and have such exclusive original jurisdiction in matters relative to . . . guardians . . . The judge of the probate court shall try all issues of law and of facts arising in causes or proceedings within the jurisdiction of said court, and therein pending” (our italics).

It will be noticed that the above provision of the Constitution gives probate courts jurisdiction in matters relative to guardians, and provides that the probate court shall try all issues of law and facts in causes within the jurisdiction of the court and pending therein.

In 1911, b3^ Act 215, the G-eneral Assembly created what is known as the Juvenile Court. For the purposes of the Act, all persons under 21 years of age are considered wards of the state, Ark. Stat. Ann. § 45-201 (1947), and a dependent or neglected child means any person under the age of 21 who “. . . has not proper parental care or guardianship . . .” Ark. Stat. Ann. § 45-203 (1947). The county judge was made the judge of the Juvenile Court.

Ark. Stat. Ann. § 45-210, which is a part of Act 215 of 1911, provides: “Any reputable person, being a resident of the county, may file with the clerk of the court, having jurisdiction of the matter, a petition in writing-setting forth that a certain child, naming it, within his county, is either dependent, neglected or delinquent, as defined in section 1 [§§ 45-203, 45-204]; and that it is for the best interest of the child and this State that the child be taken from its parent, parents, custodian or guardian and placed under the guardianship of some suitable person to be appointed by the court; and that the parent, parents, custodian or guardian of such child, are unfit or improper guardians, or are unable or unwilling to care for, protect, train, educate, correct, control or discipline such child, or that the parent, parents, custodian consent that such child be taken from them. ’ ’

Ark. Stat. Ann. § 45-221 (1947) provides that the juvenile court may appoint a guardian for a dependent or neglected child. In the case of Ex Parte King, 141 Ark. 213, 217 S. W. 465, (1919); this court held that in some instances the juvenile court could appoint guardians. However, both Judge McCulloch and Judge Frank Smith wrote strong dissents to the effect that under the Constitution, only the probate court had jurisdiction in matters of guardianship. (At the time of that decision the county judge was also the probate judge.) But, regardless of the soundness of the King case, all doubt as to what court has jurisdiction to appoint a guardian was put to rest by the Probate Code of 1949. Section 191 of Act 140 of the Acts of 1949 (Probate Code) provides: “The jurisdiction of the Probate Court over all matters of guardianship, other than guardianships ad litem in other courts, shall be exclusive, subject to the right of appeal, (c) Not to conflict with Juvenile Courts. The provisions of this code shall not be construed to affect the jurisdiction of authority now vested in Juvenile Courts except in the matter of appointment of guardians.”

Without doubt, the foregoing act gives the probate court exclusive jurisdiction in all matters of guardianship, including the appointment of guardians; hence, whatever jurisdiction the juvenile court had to appoint guardians under the act creating such courts, as construed in the King case, is now vested in the probate court. Under the provisions of Article 7, Sec. 34 of the Constitution, “The judge of the probate court shall try all issues of law and of facts arising in causes or proceedings within the jurisdiction of said court and therein pending. ’ ’

The issue of whether the three children of appellants were neglected was before the probate court in the proceeding for the appointment of a guardian, and the court had jurisdiction to determine that fact. The evidence that the parents would not permit vaccination and thereby enable the children to attend school is sufficient to base a finding of neglect. In Re Marsh, 14 A. 2d 368; Morrison v. State, 252 S. W. 2d 97; Santos v. Goldstein, 227 N. Y. Supp. 2d 451.

Appellants argue that Archie Cude has been fined on three occasions for not sending the children to school, and that the State has no other remedy. This action was not instituted for the purpose of punishing Cude, but to enable the children to obtain a reasonable education. The fact that Cude has been fined for violation of the law in not sending his children to school in no way benefited the children. It did uot bring about the desired result of the children being sent to school.

Appellants argue other points, all of which have been considered and found to be without merit.

Affirmed.

Johnson, J., dissents.

Jim Johnson, Associate Justice

(dissenting). The only penalty which the legislature saw fit to provide for the failure to compel certain children to attend school is contained in Ark. Stat. Ann. § 80-1508 (Kepi. 1960) as follows:

... “Each clay such persons violate the provisions of this act shall constitute a separate offense, and the penalty for the violation of such provisions shall be a fine not to exceed ten dollars [$10.00] for each offense.”

This penalty has been administered against appellants not because they have refused to comply with the compulsory attendance law but because they have refused to comply with an administrative regulation which resulted in the school authorities prohibiting their children’s attendance.

It is well settled that penal statutes are to be strictly construed in favor of the accused and courts are not permitted to enlarge the punishment provided by the legislature either directly or by implication. State v. Simmons, 117 Ark. 159, 174 S. W. 238.

"While much of the logic contained in the majority opinion from a sociological standpoint appears to be unanswerable, nevertheless from a legal standpoint I have found no way to escape the conclusion that the trial court and this court on trial de novo on appeal are enlarging the penalty for failure to comply with the compulsory attendance law to an extent never dreamed of by the proper lawmaking body. In the absence of legislation to the contrary, I as a judge am not willing now or ever to say as a matter of law that the failure to comply with this one simple regulation of school administrative authorities constitutes such neglect of children so as to warrant the state administering the cruel and unusal punishment of depriving such children of their natural parents and depriving the natural parents of their children.

Some consolation may be derived from the fact that the children in the case at bar will be offered back to their parents when the State Welfare Department carries out the orders of the court.' Even so, the precedent set here that permits the taking of the children at all is the vice that opens a Pandora’s box which may haunt this court for years to come. In my view, one of the forseeable spectres is the unfettered interference by the State Welfare Department in areas where it has no legal standing whatsoever. In its apparent zeal to protect the immuned from the unimmuned I believe the majority has given meaning to the word neglect which no amount of rationalization can justify. This is the door that has been left open. History reveals that once a door is open to an administrative agency that door is not easily closed. Whose children under what pretext will be taken next? Will they be kept forever? For the reasons stated, I respectfully dissent.


author: Jim Johnson, Associate Justice. George Rose Smith, J.,

text:
    International Paper Co. v. Warnix.
    5-3247
    377 S. W. 2d 162
    Opinion delivered April 6, 1964.

      Gavghan & Laney, for appellant.

      Ed F. McDonald, for appellee.
   Jim Johnson, Associate Justice.

This suit arises from a boundary line dispute. A similar controversy between appellee and appellant’s predecessor in title was involved in a prior suit, Brown Paper Mill Co., v. Warnix, 222 Ark. 417, 259 S. W. 2d 495. In that suit Brown Paper Mill Company sought to enjoin appellee Warnix from cutting timber on land claimed by Brown Company and to recover damages for timber already cut. At that trial appellee presented the testimony of the county surveyor relative to his survey of the boundary line. Brown Company disputed the accuracy of the county surveyor’s measurements, but offered “no persuasive substitute” in that Brown Company employed two surveyors who disagreed with each other and with the county surveyor. This court ruled, ‘ ‘ To accept any of the three suggested lines is to reject the other two. After studying the record we are not convinced that any one of the three is demonstrably more reliable than the other two. In these circumstances the chancellor rightly held that the plaintiff had not met its burden of proof. ’ ’

In the case at bar appellant, International Paper Company, successor to Brown Paper Mill Company, Inc., filed a complaint on August 13,1962, in Grant Chancery Court to enjoin appellee W. P. Warnix from cutting or removing any timber ‘ east of a marked and visible line established and maintained by plaintiff . .. between Section 33 and 32,” praying that plaintiff’s title be quieted and confirmed against defendant (appellee) and that the boundary line between the lands be established as marked by plaintiff. A temporary injunction was then issued. Appellee filed a general denial and thereafter an amended answer and cross-complaint in which he denied that he claimed any land east of the original line, and further denied that he had any notice or warning of the repainting of any lines contrary to that which he had blazed out, and cross-complained for damages in the sum of $500.00.

At trial of the cause on July 5, 1963, the chancellor found that the parties stipulated that the issue is the true location of the line, and found that the preponderance of the evidence proves that the true line is the one claimed by appellee, that the temporary injunction should be dissolved and appellee on his cross-complaint should be awarded $100.00 as damages. Prom this decree appellant has appealed, urging three points for reversal.

Appellant’s first point is, “The location of the line between appellant’s and appellee’s land is res ad judicata having been adjudged to be located as contended here by appellant. The trial court erred in refusing to recognize the line as determined in Brown Paper Mill Co. Inc. v. Warnix, supra.Both parties seem to be under the misapprehension that this court adopted a line in the Brown case. On the contrary—this court specifically refused to select a line and stated that, “After studying the record we are not convinced that any one of the three [lilies] is demonstrably more reliable than the other two.” This court simply upheld the ruling that Brown Company had not met its burden of proof.

Appellant’s second point urged for reversal is that the clear preponderance of the evidence shows that the parties have accepted the line contended for by appellant. Three of appellant’s employees testified to marking a line with aluminum paint in 1958, following old red markings two-thirds of the way, which they understood and believed to be the true boundary line, and that they did so with appellee’s knowledge, consent and acquiescence. These three witnesses are apparently well qualified as foresters.; however none of them claimed to be surveyors or to have worked with a surveyor in locating this line; none of them testified to starting from a recognized corner, but testified that they had measured a certain number of feet from an existing fence which was some distance from the section corner. Appellee, on the other hand, denied that he had consented or acquiesced in that line and testified that the old red markings were those of a timber estimator who had cruised the timber and that the boundary line was in a different location, well-blazed by earlier surveys. Appellee and several of appellee’s witnesses testified to being present and working in a survey xcarty some years earlier and testified to where they understood the true line to be, describing the particular surveyor’s individual blaze as well as the section corner blaze with which this line corresponded. Reviewing the record on trial de novo, considering the disputed testimony on this point as well as the uncontradicted testimony of appellee relative to his damages (appellant’s third point), we cannot say that the chancellor’s findings are against the preponderance of the evidence and must therefore affirm the trial court.

Harris, C. J., and George Rose Smith and Prank Holt, JJ., dissent.

George Rose Smith, J.,

(dissenting). I think our decision in Brown Paper Mill Company v. Warnix is res judicata.

In the first case the plaintiff Brown alleged in its complaint that it was the owner of a strip of land about’ 50 feet wide bounded on the west by an old wire fence and on the east by a blazed line marked with red paint. Warnix filed a general denial. Lamb, the county surveyor, testified that the true line between the two forty-acre tracts was in fact about 80 feet east of the fence. That 30 feet, lying at a distance of from 50 to 80 feet east of the fence, is the property now in dispute.

In the Brown ease the chancellor’s decree found that £ £ the allegations contained in the complaint of the plaintiff have not been proved to the satisfaction of this court; That the defendant is the owner of the lands described in the complaint of the plaintiff; that plaintiff’s complaint should be dismissed.” In affirming that decree we said that ££[t]he only disputed issue is the correct location of the boundary line between two forty-acre tracts.”

A judgment is res jtulicata not only with respect to matters that were actually litigated but also with respect to matters that were within the issues and might have' been litigated. Thomas v. McCullum, 201 Ark. 320, 144 S. W. 2d 467. Thus the question now before us is whether the true location of the common boundary line was in issue in the earlier case.

It seems to me that it was. That ease was in essence a boundary line dispute. Brown asserted that it owned the 50-foot strip lying immediately east of the fence. Warnix denied that assertion. By implication the issue was simply which of the two lines constituted the boundary. If Warnix intended to claim still another 30 feet, as lie does now, lie should have pleaded his ownership and insisted that it be recognized in the decree. Instead the decree, which presumably was prepared by Warnix’s lawyer, merely declared that he owned the 50-foot strip described in the complaint.

Lawsuits ought not to be tried piecemeal. Warnix had his opportunity to claim the additional 30 feet in the first case, but, despite the favorable testimony of the county surveyor, he failed to do so. That should conclude the matter. In fact, the decree now before us again dismisses the complaint for want of equity. If the majority are correct then it seems that Warnix is free to claim still more land in a third case. I would hold that the first decision fixed the line as being 50 feet east of the fence.

Harris, C. J., and Holt, J., join in this dissent.


author: Prank Holt, Associate Justice.

text:
    Parker v. Parker.
    5-3219
    377 S. W. 2d 160
    Opinion delivered April 6, 1964.

      Aurelle Burnside, for appellant.

      T. 0. Abbott, for appellee.
   Prank Holt, Associate Justice.

This is an appeal from a probate court order admitting the will of Alabama Parker to probate and dismissing the appellants’ petition contesting the will. For reversal the appellants first urge that the testatrix lacked testamentary capacity and was subjected to duress and undue influence in making her will. Since these two points are so intertwined we consider them together. On appeal this cause is considered de novo and it is well settled that we affirm a probate court order in a will contest unless against the preponderance of the evidence. Parette v. Ivey, 209 Ark. 364, 190 S. W. 2d 441.

On June 4, 1959 the testatrix, Alabama Parker who was seventy-eight years of age, went to her lawyer’s office and executed her will which is now in question. She died on September 21, 1962, survived by twelve children and a grandson as her only heirs at law. In her will she bequeathed $1.00 each to seven of her children and the grandson, the appellants, and named her remaining five children, including the appellee, K. F. Parker, Executor, as residuary devisees to share equally.

In behalf of validity of the will, Emma Jean Burton, a retired school teacher and decedent’s friend of longstanding, testified that at the request of the testatrix she was present when the will was read, witnessed the signing- together with Geneva Paschal [now deceased] and both of them attested to it. She testified that she considered Alabama competent to execute the will. The testatrix’ personal physician from 1947 until her death in 1962 testified that in his opinion the testatrix was mentally competent to make the questioned will and to understand such a transaction. The attorney who drafted the will had handled legal matters for the testatrix and had known her for approximately forty years. He testified that he considered her mentally competent. Further, that when he read it to her in the presence of the attesting witnesses the testatrix replied, “That is it, that is the way I want it,” and proceeded to sign her will. He testified that he did not discuss the provisions of the will with anyone other than the testatrix and it was drafted strictly in accordance with her request. There was testimony by a granddaughter of the testatrix, Sandra Kay Parker, fifteen years of age, that she had lived with her grandmother most of her life and that she considered her to be competent and capable to conduct her affairs. There was evidence by other witnesses that the testatrix was physically and mentally capable of transacting her personal and business affairs.

The appellants offered evidence that their mother was feeble from age, had difficulty recognizing people, was very forgetful, and appeared mentally confused. Old age, physical incapacity, and partial eclipse of the mind will not invalidate a will if the testator had the capacity to understand the making of the will on the date it was made. Yarbrough v. Moses, 223 Ark. 489, 267 S. W. 2d 289. In the case at bar Sandra Kay Parker testified that her grandmother was unable to easily recognize people because she. had cataracts on her eyes. Within a month after the execution of the will the testatrix, accompanied by a friend, made a train trip to Chicago where one of her children lived and thence to California where another one of her children resided. She had included both of these children among the residuary or principal beneficiaries in her will. From Chicago she Avas also accompanied by the fifteen-year-old granddaughter who testified that her grandmother required no medical attention of any kind on the trip.

The appellants further urge that their mother was dominated and subjected to undue influence by Ernestine Parker, the daughter and youngest child who resided Avith her mother from 1953 until her mother’s death in 1962. This Avas denied by Ernestine Avho testified that she in no manner influenced her mother and that she had no knowledge of the circumstances surrounding the making of the will.

We have long adhered to the rule that the burden of showing the lack of testamentary capacity and undue influence in the making of a will is upon the contestants. Werbe v. Holt, 218 Ark. 476, 237 S. W. 2d 478; Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665. Also, we have frequently defined the requisite mental capacity to make a valid will. It is that the testator must have (1) the ability to retain in memory without prompting the extent and condition of his property, (2) the mental ability to comprehend to whom he is giving his property, and (3) realization of the deserts and relationship to him of those he excludes from his will. Shippen v. Shippen, 213 Ark. 517, 211 S. W. 2d 433.

With respect to undue influence, we have long adhered to the rule that:

“ * * * The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property.”

McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590. The argument of undue influence is directed solely at Ernestine Parker who lived with her mother. It is significant that the mother saw fit to include four of her other children along with Ernestine as the principal beneficiaries, each sharing equally. In Bruere v. Mullins, 229 Ark. 320 S. W. 2d 274, we said:

“* * ® one having the testamentary capacity to make a will, is not required to mete out equal and exact justice to relations, and the motives Or partiality, affection or resentment by which they are influenced are not reviewable; and if one has the capacity to make a will, he may make it as eccentric, injudicious and unjust as caprice, frivolity or revenge can dictate.”

Appellants also contend that the will was not properly executed. It is undisputed that the will was signed by the testatrix and in the presence of two attesting witnesses. Both witnesses were disinterested since neither was given any “beneficial interest by way of devise.” Ark. Stat. Ann. § 60-402 (Supp. 1963). Further, we think that proof of the execution of the will was properly made.

In the case at bar we agree with the Probate Judge that the appellants have not sustained the burden of proof required of them in establishing the lack of testamentary capacity of their mother or that undue influence was exerted upon her or that her will was not properly executed.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Lewis v. Bowlin.
    5-3234
    377 S. W. 2d 608
    Opinion delivered April 13, 1964.

      Mark E. Woolsey, for appellant.

      Ralph W. Robinson and Theron Agee, for appellee.
   Carleton Harris, Chief Justice.

This litigation involves a further interpretation of certain provisions of the will of William Bowlin. Item Six of that will was construed in the case of Rowlin v. Vinsant, 186 Ark. 740, 55 S. W. 2d 927. Bowlin died testate in 1916. He was survived by his widow, Julia Bowlin, and five living children, vis, Noble Bowlin, Lizzie Lowery, Lillie Brownfield, Gertrude Vinsant, and John Bowlin; also, there were five grandchildren, the children of a daughter, Rebecca Clark, who predeceased her father. Appellees are the children of Paul Bowlin, deceased, Paul having been a son of John Bowlin, and accordingly a grandson of William Bowlin. In addition to Paul Bowlin, father of appellees, John Bowlin was survived by five other children, Marcus Bowlin, Othel Bowlin, Lillie Lewis, Maude Campbell and Virgie May Ray. Under Item Three of the will, Virgie May Ray and Lillie Bowlin Lewis were bequeathed the sum of $10.00 each, and their names do not otherwise appear in the will.

In 1916, Marcus Bowlin, Othel Bowlin, Maude Campbell, and Paul Bowlin (father of appellees) conveyed, by quitclaim deed, to their sister, Lillie Lewis, the lands involved in this appeal. In January, 1960, Lillie Lewi§ died intestate, leaving as her sole and only heir at law, Carl Lewis, appellant herein. Lillie and appellant had been in possession of the lands from the time of the conveyance (1916) to Lillie from her brothers and sister.

In May, 1962, appellees filed a complaint, alleging that they were part owners of the lands in question, and they sought their proportionate share of the rents for 1959, 1960 and 1961. After the overruling of a demurrer, an answer was filed wherein it was asserted that Carl Lewis was the owner of the lands by virtue of being the sole heir of Lillie Lewis, Lillie having obtained her title to the property by virtue of the quitclaim deed heretofore mentioned, and one of the grantors of that deed having been Paul Bowlin, father of appellees. The cause was tried by the court, sitting as a jury. After certain stipulations in open court, and the taking of oral testimony, the court held that under the provisions of the will of William Bowlin, appellees are the owners of 7/32 interest, or a 1/32 interest each, and judgment was entered for appellees in the sum of $122.40 each, or a total judgment of $856.80, together with interest from date, at the rate of 6% per annum. Prom the judgment so entered, appellant brings this appeal.

Bowlin v. Vinsant, supra, involved the construction of Item Six of the will of William Bowlin. The language at issue was as follows:

“I also further give and devise unto my said wife, Julia, for and during her natural life, the use, occupancy of my dwelling house and premises now occupied by us as a dwelling and home in Van Burén, Arkansas, with the lots and land enclosed and adjoining thereto, and at her death or should my wife not survive me, I give and bequeath the said personal property herein set forth or so much as may be undisposed of by my said wife, not in any manner intending to limit my wife in the disposition of said personal property, unto my daughter Gertrude Vinsant, and I give and devise the said dwelling house and premises devised unto my wife during her life, at her death or should my said wife not survive me, unto my daughter, Gertrude Vinsant and unto the heirs of her body.”

This court held that this language created a life estate in the wife, Julia, but that the daughter, Gertrude Vinsant, took the fee. Cited as authority for the holding was the case of Pletner v. Southern Lumber Company, 173 Ark. 277, 292 S. W. 370. To the same effect was the holding in Bell v. Gentry, 141 Ark. 484, 218 S. W. 194.

In the instant litigation, a certain provision of Item Nine of the will is at issue. This provision reads as follows: “I give and devise unto my grandchildren, children of John Bowlin, viz: Marcus L. Bowlin, Paul C. Bowlin, Othel Bowlin and Maude E. Campbell and unto the heirs of their bodies, the one seventh part or share of said real estate or the one twenty-eighth part or share each. ’ ’

The trial court, in effect, held that this language devised only a life estate to the named grandchildren of William Bowlin with the fee in “the heirs of their bodies,” some of these heirs being appellees herein. In other words, the dispute in this case relates to the interest acquired by Marcus L. Bowlin, Paul C. Bowlin, Othel Bowlin and Maude E. Campbell, grandchildren of William Bowlin. If the quoted language in Item Nine devised the fee to these grandchildren, then appellant should prevail, for his mother received a quitclaim deed' from these parties in 1916. If, on the other hand, the language only created a life estate in these grandchildren, then appellees, children of Paul Bowlin, are entitled to the interest contended for. The trial court held with appellees, and we think, unquestionably, held correctly. This holding was in accord with a line of cases following Horsley v. Hilburn, 44 Ark. 458, and is also in accord with our statute, Ark. Stat. Ann. § 50-405 (1947), which reads as follows:

“In cases when by common law any person may hereafter become seized in fee tail of any lands or tenements, by virtue of any devise, gift, grant or other conveyance, such person, instead of being or becoming seized thereof in fee tail, shall be adjudged to be and become seized thereof for his natural life only, and the remainder shall pass in fee simple absolute to the person to whom the estate tail would first pass according to the course of the common law by virtue of such devise, gift, grant or conveyance.”

An interesting article, Branch, ‘ ‘ The Effect of Stare Decisis Upon Fee Tail in Arkansas,” is found in Volume 10, Arkansas Law Review (1955-56), Page 181. The article quotes Richard R. Powell, at that time Professor of Law at Columbia University, and Reporter on Property for the American Law Institute as follows:

“ ‘Arkansas, by decision, has injected a peculiar distinction between limitations “to B and the heirs of his body” (which are construed to be governed by the statute) and limitations to B for life, remainder to C and the heirs of his body.” In the latter situation the statute is not applied, and if C is alive at B’s death, C gets an estate in fee simple absolute, but if C is then dead, C’s descendants get the estate in fee simple absolute.’ ”

Professor Powell then criticizes the distinction made by the court between the two types of devises, and, in fact, several learned writers have questioned the soundness of the rule established in the Bell, Pletner and Bowlin cases. In Eubanks v. McDonald, 225 Ark. 470, 283 S. W. 2d 166, this court pointed out that to repudiate the rule by judicial decision would result in the invalidation of titles that had been acquired in reliance upon the rule in question.

Appellant recognizes the distinction between the two lines of cases, but argues that the will should be construed from its “four corners” in determining the intention of the testator, and that under such construction, he is due to prevail. In Eagle v. Oldham, 116 Ark. 565, 174 S. W. 1176, we said, “The first and great rule in the exposition of wills (to which all other rules must bend) is that the intention of the testator expressed in his will shall prevail, provided it be consistent with the rules of la/io.” The italicized phrase precludes any speculation as to the intentions of William Bowlin, for we have several times stated the legal effect of the language employed.

In Crittenden v. Lytle, 221 Ark. 302, 253 S. W. 2d 361, this court said:

‘ ‘ Certainly there is nothing in the will which' indicates Mrs. Wilson did not understand the meaning of the words she used, and we must therefore presume that she did. In the early case of Moody v. Walker, 3 Ark. 147, this court said:

“ ‘When technical phrases or terms of art are used, it is fair to presume that the testator understood their meaning, and that they expressed the intention of his will, according to their import and signification. When certain terms or words have by repeated adjudication received a precise, definite and legal construction, if the testator in making his will use such terms or similar expressions, they shall be construed according to their legal effect . . .’ ”

Likewise, in Park v. Holloman, 210 Ark. 288, 195 S. W. 2d 546, we said:

“The function of a court in dealing with a will is purely judicial; and its sole duty and its only power in the premises is to construe and enforce the will, not to make for the testator another will which might appear to the court more equitable dr more in accordance with what the court might believe to have been the testator’s unexpressed intentions. ‘The appellants are correct in the statement that the purpose of construction is .to arrive at the intention of the testator; but that intention is not that which existed in the mind of the testator, but that which is expressed by the language of the will.’ ”

See also Howell v. Henry, 235 Ark. 1, 356 S. W. 2d 747.

Under our statute, heretofore quoted, and the numerous decisions of this court, a devise “unto A and unto the heirs of his body” would create a life estate in A and an estate in fee simple absolute in A’s bodily heirs. Here, the pertinent clause in Item Nine of the will created only a life estate in Marcus L. Bowlin, Paul C. Bowlin, Othel Bowlin and Maude E. Campbell, and their heirs, including appellees, took the fee.

Affirmed.

       It was subsequently stipulated that Marcus Bowlin, Othel Bowlin, and Paul Bowlin are deceased.

       See Bradley Lumber Co. of Ark. v. Burbridge, 213 Ark. 165, 210 S. W. 2d 284, and cases cited therein.

       From the article: “In order to reduce these situations to a simple form, consider the following: ‘To A for life with remainder to B and the heirs of her body.’ This would certainly create a life estate in A, but there must be another estate in someone else in order to add up to fee simple absolute. There is, hy the will, a devise of the remainder to B and the heirs of her body. At common law a devise or conveyance to a person and the heirs of that person’s body created an estate in fee tail. This is a devise to a person and the heirs of that person’s body. By statute in Arkansas this would create a life estate in B and an estate in fee simple absolute in the bodily heirs of B.
      “The above situation is the one with which the court was faced in the Pletner case. The court said that it is a well-established rule that a conveyance or devise to a person and the heirs of the body of such person creates an estate tail in the grantee or devisee, which, by statute, becomes an estate for life in the grantee or devisee and a fee simple absolute in the person to whom the estate tail would first pass by common law, citing Horsly v. Hilburn. But the court said this doctrine could not be applied since the estate is not devised to B and her bodily heirs, creating a life estate in B and fee simple absolute in her bodily heirs, but the life estate is given to A and the remainder to B and her bodily heirs.”

       Emphasis supplied.


author: Ed. F. McFaddin, Associate Justice.

text:
    Foit v. Foit.
    5-3233
    377 S. W. 2d 611
    Opinion delivered April 13, 1964.

      Thompson & Thompson and Phil Stratton, for appellant.

      Spitzberg, Bonner, Mitchell & Hays, By: Allan W. Horne, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal involves the property settlement of a divorced couple. Mr. and Mrs. Foit married in 1939 and separated in 1957. After the separation they agreed on a property settlement, and Mrs. Foit obtained an uncontested divorce on August 8, 1862. The property settlement of the parties, as contained in the divorce decree, recited:

"It is further ordered, adjudged and decreed, that defendant pay to Plaintiff, Evelyn Buth Foit, Twenty Five Hundred Dollars for her interest in the real estate owned by the parties hereto, when said real estate is sold. It is further ordered, adjudged and decreed that plaintiff have all the furniture which is in the house now occupied by plaintiff.”

Mrs. Foit received the furniture, but refused to execute a deed to the real estate. Thereupon, in 1963, Mr. Foit deposited $2,500.00 in the Begistry of the Court and petitioned that Mrs. Foit be required to execute the deed covering the real estate. After hearing the evidence, the Court, on August 5, 1963, ordered Mrs. Foit to execute the said deed; and from that order Mrs. Foit prosecutes the present appeal, claiming that she was entitled to more than the $2,500.00 and the furniture.

She admitted that she made the property settlement agreement as contained in the decree; and she did not offer any evidence to show that she was misled, defrauded, or under duress; she simply asserted that she Avas entitled to more than $2,500.00. In other words, she has changed her mind, just as she has changed her attorneys. One attorney represented her in the divorce case in 1962; another represented her in the 1963 proceedings ; and now she has the present counsel.

We find no merit to Mrs. Foit’s appeal. She was the one who wanted the divorce. Her 1962 attorney told her that she could get more than $2,500.00 and the furniture ; but that Avas what she Avanted in the way of a property settlement. Noav she wants to retain the divorce, but to reopen the property settlement in the absence of any proof of fraud, duress, or- overreaching of any kind. This case has many aspects similar to that of Faulkner v. Mowry, 228 Ark. 285, 307 S. W. 2d 860; and the holding in that case is ruling here.

Affirmed.

Johnson, J., not participating.


author: George Rose Smith, J.

text:
    Washington Fire & Marine Insurance Co. v. Hammett.
    5-3226
    377 S. W. 2d 811
    Opinion delivered April 13, 1964.
    [Rehearing denied May 11, 1964.]

      Frank Lady, for appellant.

      W. B. Howard, Jack Segars, for appellee.
   George Rose Smith, J.

The appellee brought this suit for a declaratory judgment. She seeks to determine whether her attorney, W. B. Howard, is entitled to charge the appellant, her automobile collision insurer, an attorney’s fee for having recovered the full amount of a subrogation claim held by the insurance company. This appeal is from a decree permitting Howard to retain 40% of the recovery as his fee.

In May of 1962 the appellant issued a $50 deductible policy of collision insurance to the appellee. On October 1 the appellee suffered personal injuries and property damage in a collision with Ray Purcell’s car. The appellant promptly paid all but $50 of the property damage (which amounted in all to $289.94) and took a subrogation agreement from the appellee. On October 29 the appellant sent a form letter to Purcell, warning him not to settle his liability without reimbursing the insurer for its claim. On November 11 the company again wrote to Purcell, stating that if it did not hear from him with ten days it would have no alternative except to file suit. The company did not in fact bring an action or take any further steps to enforce its claim against Purcell.

On November 21 the appellee employed Howard under a contract fixing a contingent fee of 40% of any sum obtained by compromise settlement. Howard filed suit against Purcell on February 27, 1963, seeking to recover both for his client’s personal injuries and for her property damage. In March a compromise settlement was reached with Purcell’s insurer. That company issued two checks, one for the personal injury claim and the other, in the amount of $289.94, for the property damage. The latter included both the appellant and the appellee as payees. This suit was filed when the parties were unable to agree upon Howard’s right to a fee.

The subrogation agreement provided that the insured should do nothing after the loss to prejudice the rights of the insurer. It is now insisted that the appellee breached the contract by filing suit for the property damage and by entering into the compromise settlement.

This argument is without merit. The appellee was entitled to file the action in her own name, the insurer not being a necessary party. McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566. Moreover, since the appellee’s cause of action against Purcell could not be split, the insurer’s claim for property damage would have been destroyed if Mrs. Hammett had failed to include that count in her complaint. Motors Ins. Corp. v. Coker, 218 Ark. 653, 238 S. W. 2d 491. The appellant is charged with knowledge of the rule of law permitting the insured to bring an action for all the property loss. If the appellant wished to be informed of the filing of any such suit, so that it might intervene, it could have inserted such a requirement in the subrogation agreement. That was not done.

We do not perceive that the appellee’s action in compromising the property damage claim for its full amount was prejudicial to the rights of the insurer. In fact, if the appellee had paid over the entire proceeds of settlement to the insurer there would have been no dispute between the parties. Hence if the appellant’s rights have been prejudiced it is not because of any conduct on the part of the insured but because in the circumstances the law allows her attorney to collect a fee.

The appellant’s real grievance lies in having to pay a fee to an attorney not of its own choice. Subrogation, however, is governed by equitable principles. Webster v. Horton, 188 Ark. 610, 67 S. W. 2d 200. If the appellant had employed its own attorney and had actively participated in the action against Purcell it could not fairly have been compelled to contribute to Howard’s fee. Pontiac Mutual County, etc. Co. v. Sheibley, 279 Ill. 118, 116 N. E. 644. But when the insurance company has benefited from the work done by the insured’s attorney there is no inequity in requiring it to bear its fair share of the collection expense. An almost identical case so holding is United Services Automobile Assn. v. Hills, 172 Neb. 128, 109 N. W. 2d 174. Other cases recognizing the insurer’s duty to contribute to the expense of collection include Brown v. T. W. Phillips Gas & Oil Co., D.C. Pa., 105 F. Supp. 479; Shawnee Fire Ins. Co. v. Cosgrove, 85 Kan. 296, 116 Pac. 819, 41 L.R.A. (n.s.) 719; Newcomb v. Cincinnati Ins. Co., 22 Ohio St. 382, 10 Am. Rep. 746; Powers v. Calvert Fire Ins. Co., 216 S. C. 309, 57 S. E. 2d 638, 16 A.L.R. 2d 1261. There is no contention that a 40% fee for collecting this small claim is unreasonably high.

The appellant also relies upon a second instrument executed by Mrs. Hammett, called a Loan Receipt. This document recites that she will not make a settlement or give a release without the written consent of the insurer. Howard actually gave the 'appellant notice of the proposed settlement a week before it was consummated. Inasmuch as Purcell’s insurer paid the .full amount of the property loss the appellant had no valid reason for withholding its consent. Hence it is not in a position to complain of the fact that its consent was not obtained.

Affirmed.