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

text:
    Nabholz Construction Corp. v. Patterson, Chancellor.
    5-1773
    317 S. W. 2d 9
    Opinion delivered October 27, 1958.

      Guy H. Jones, for petitioner.

      Martin, Dodds, Kidd, for respondent.
   George Rose Smith, J.

On July 29, 1958, the petitioner, by its attorney, State Senator Guy H. Jones, filed suit in the Faulkner chancery court to enjoin tbe members of a labor union from picketing a construction job at Conway. On the same day a temporary injunction against the picketing was issued by the county judge, both the circuit judge and the chancellor being absent from the county. After the issues were joined the chancellor set the case for a final hearing on September 8.

On August 23 the Governor called the General Assembly into a special session that was to begin on August 26. Senator Jones, as a member of the legislature, then asked for a continuance under the provisions of Ark. Stats. 1947, § 27-1401. The chancellor granted the request only to the extent of resetting the case for trial on October 6. The petitioner later filed this application for a writ of prohibition, contending that the legislature will be in continuous session until January 10, 1959, and that the statute therefore requires that the case be stayed until at least thirty days after that date. The chancellor postponed the trial until the petitioner’s application could be passed upon by this court.

The respondent insists that the trial court acted within its jurisdiction in setting the case for trial and that prohibition is accordingly not the petitioner’s proper remedy. It has been held, however, that a court acts in excess of its jurisdiction in proceeding to a trial when the statute in question requires that the case be continued. Barton-Mansfield Co. v. Higgason, 192 Ark. 535, 92 S. W. 2d 841. We do not now re-examine the soundness of the majority’s ruling in that case; for the principal question in the case at bar affects the administration of justice and should, in the public interest, be decided on its merits.

The statute provides that when any attorney in a pending case is a member of the legislature all proceedings shall be stayed “for not less than 15 days preceding the convening of the General Assembly and for thirty days after its adjournment, unless otherwise requested by any interested member of said General Assembly.” Ark. Stats., § 27-1401. The issue here is whether the adjourning order of the August special session of the General Assembly entitles the petitioner’s attorney to invoke the protection of the statute.

The legislature convened on August 26 and remained in session at the state capitol in Little Eock until August 29. On that day the members adopted a resolution of adjournment and returned to their homes throughout the state. The adjourning resolution, after a preamble declaring the need for a continuation of the session, reads as follows:

“1. That on Friday, August 29, 1958, we do adjourn at 12:00 M. (high noon) until January 10, 1959;

“2. That the items within the purview of the proclamation for the convening of the present session have not been completed; and that there are yet numerous bills in committee and various items that we can consider ;

“3. That additional time is needed to study and draft legislation which may vitally affect our school problems;

“4. That we adjourn subject to the call of the President of the Senate and the Speaker of the House; and that we duly forego any compensation for days in which we are not actually in session;

“5. That said adjournment will be at no expense to the State of Arkansas except for days actually served between August 29, 1958, and January 10, 1959;

“6. That on January 10, 1959, we duly adjourn sine die at 12:00 M. (high noon).”

The petitioner argues that the effect of this resolution was to create merely a recess until January 10, 1959, when the true adjournment will take place. On this basis it is contended that, since the statute in question refers only to an adjournment, the petitioner is entitled to a continuance until thirty days after January 10, 1959.

We do not find this argument persuasive. An adjournment may he either to a day certain or without day, while a recess is defined as a suspension of business for a comparatively short time. Webster’s New International Dictionary (2d Ed.). See also Tipton v. Parker, 71 Ark. 193, 74 S. W. 298. Here the intermission appears to have been an adjournment to a day certain, and indeed that seems to have been the understanding of the General Assembly itself, for the resolution uses the words “adjourn” and “adjournment,” with no mention of a recess.

We do not, however, rest our decision upon the technical distinction between a recess and an adjournment. The consideration of primary importance is whether the legislature, in enacting the statute now invoked by the petitioner, intended for it to be controlling in a situation such as this one, when the General Assembly is not actually in session in Little Rock and when its members are free to attend to private business. ■

We are convinced that the statute was not meant to apply to this situation. It requires that proceedings be stayed for a period beginning at least fifteen days before the session and ending thirty days after adjournment. The policy underlying the law was aptly stated in the emergency section of Act 4 of 1931, where it was declared that “it is more important that members of the legislature shall attend to their public duties rather than to their private affairs.” The essential need for the statute lies in the attorney’s duty to be in attendance at the legislative session. See Cox v. State, 183 Ark. 1077, 40 S. W. 2d 427. The periods of grace before and after the session are manifestly intended to enable a lawyer to make advance arrangements for the temporary suspension of his practice and, after adjournment, to interview witnesses and make other preparations for trial.

None of these considerations are involved in the contention now urged by the petitioner. Senator Jones was required to be at the capitol for a special session lasting four days, after which he was free to resume his private practice of law. He was duly granted a continuance of more than thirty days after his return to his home at Conway. Neither the letter nor the spirit of the law contemplates a further postponement.

Our ruling in McConnell v. State, 227 Ark. 988, 302 S. W. 2d 805, goes far toward deciding the present case. There we pointed out that a statute affording reasonable protection to attorneys serving in the legislature is valid. But if the act clearly goes beyond the needs of the situation and in effect transfers the control of judicial dockets from the courts to the attorney members of the legislature, it becomes an unconstitutional invasion of the powers granted to the judiciary.

To construe § 27-1401 as the petitioner would have us do would present a serious question as to its validity. Under this interpretation there would be no limit to the unjust delays that might be demanded. The present General Assembly, the Sixty-First, was convoked in extraordinary session within eleven days after the close of its regular session in March of 1957. Had that special session ended with an adjourning resolution like the one now before us, the petitioner’s argument would have led to mandatory continuances extending to almost two years. Public policy strongly demands the prompt trial of criminal and civil cases. On the criminal side, unnecessary postponements destroy much of the deterrent effect that a conviction should have. On the civil side, it is a truism that justice delayed is apt to be justice denied. Indeed, this case illustrates the principle, for if the temporary injunction cannot be reviewed until thirty days after January 10, 1959, and even then not until thirty days after the adjournment of the regular legislative session that will convene on January 13, the construction job may well be finished before the case is heard. The case would then be moot, so that the defendants would be deprived of their day in court. Although these considerations of public policy must give way to the pressing need for brief continuances in connection with actual sittings of the General Assembly, they cannot he disregarded when the legislators have resumed their private business and can assert no well-grounded plea for a postponement.

It is earnestly urged that, since the adjourning resolution authorizes the President of the Senate and the Speaker of the House to recall the legislators, Senator Jones and others in his situation cannot make preparations for trial, such as the summoning of witnesses, with any assurance that they will not be called away on the eve of trial. This risk, however, is part of the sacrifice involved in this particular type of public service. The Governor has the power under the constitution to convoke the General Assembly at any time. Ark. Const., Art. 6, § 19. The hazard of being recalled by the President of the Senate and the Speaker of the House under the terms of this resolution is precisely similar to the constant hazard of being recalled by the chief executive.

Writ denied.

Harris, C. J., dissents.

Carleton Harris, Chief Justice

(dissenting). In dissenting, I take cognizance of the fact that we are living in tumultuous and abnormal days; otherwise, I should only take the view herein expressed with great reluctance, and for that matter, otherwise, the legislature would not have passed the resolution under discussion. Certainly, it is entirely possible that the General Assembly could he called hack at any day, and this call could well come during the preparation for trial, or during the trial itself. The majority says that ‘ ‘ This risk, however, is part of the sacrifice involved in this particular type of public service.” While the emergency clause to Act 4 of 1931 (Sec. 27-1401) states the purpose of the legislation to he,

' “ * * * that members of tbe législature shall attend to their public duties rather than to their private affairs * *

I am also persuaded that a secondary purpose was to prevent the sacrifice of a legislator’s private practice.

Under normal circumstances, the lawyer legislator knows when the General Assembly will meet, and can make his plans accordingly, but under the present existing circumstances, the time of a possible reconvening cannot be ascertained, and under this ruling of the majority, preparation for litigation, dates for trial, etc., cannot be made with certainty.

. Irrespective of the fact that the word “adjourn” is used in the resolution, a reading of same clearly shows that the legislature intended to recess rather than to adjourn. Black’s Law Dictionary, 4th Edition, page 1434, defines the difference between a recess and an adjournment. A recess is:

“In legislative practice, the interval, occurring in consequence of an adjournment, between the sessions of the same continuous legislative body; not the interval between the final adjournment of one body and the convening of another at the next regular session.”

In other words, it is a temporary dismissal, and not an adjournment sine die. We find this view expressed in one of our own cases Tipton v. Parker, 71 Ark. 193, 74 S. W. 298. There, Justice Wood quotes Judge Cooley, relative to the authority of a legislative committee to sit during a recess of the house which had appointed it. Following which, Judge Wood states:

“The ‘recess’ here referred to by Judge Cooley means the intermission between sittings of the same body at its regular or adjourned session, and not to the interval between the final adjournment of one body and the convening of another at the next regular session. When. applied to a legislative body, it means a temporary dismissal, and not an adjournment sine die.”

Here, according to the resolution under discussion “ * * * the items within the purview of the proclamation for the convening of the present session have not been completed; and that there are yet numerous bills in committee and various items that we can consider; 3. That additional time is needed to study and draft legislation which may vitally affect our school problems;

Accordingly, in my opinion, the • legislature is only in recess, and its lawyer members are entitled to-the protection afforded by Section 27-1401. I would therefore grant the petition.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Dailey v. Adams.
    5-1640
    319 S. W. 2d 34
    Opinion delivered October 27, 1958.
    [Rehearing denied January 19, 1959]

      Botts é Botts, for appellant.

      George E. Pike, for appellee.
   Paul Ward, Associate Justice.

Appellant, Charlie Dailey, filed a claim in the amount of $7,000 against the estate of Maggie M. Goodwin which was disallowed by the Executor and also by the Probate Court. For a reversal, he prosecutes this appeal. The controversy between the parties is based not upon disputed facts but upon the legal significance of those facts.

Maggie M. Goodwin died testate on March 7, 1957. Her will was executed June 2, 1956 and probated March 25, 1957. This will is not involved or significant in this litigation except in a single instance to be noted later. The executor of the will is H. C. Adams.

On September 5,1957 appellant filed his claim which consisted only of the usual affidavit with two exhibits attached. One exhibit was a check, as follows:

“DeWitt Ark. October 19, 1956 No............. FIRST NATIONAL BANK PAY TO THE ORDER OF .................. Charlie Dailey ..................... $7,000.00 Seven thousand no/100 ...................................................... DOLLARS FOR from my estate as mentioned in letter ............Maggie M. Goodwin”

The other exhibit was a written document, to-wit:

“I Maggie M. Goodwin of sound mind do hereby artharize Charlie Dailey to rite this check on me for $7,000.00 to bee paid out of my estate to Charlie Dailey and he is to care for my dog Madam Shan for her lifetime and beried in a pine box at the foot of my grave and to place on my cemetary a arch that I have told Mr. Lawson Fly about tbe size and shape to be placed in the South West corner of the Merritt Cemetary bearing the name the Merritt Cemetary by Maggie Merritt Goodwin and to remodel my house for his convenience leaving the too original rooms that was moved on the property.

R by Charlie Dailey for Maggie M. Goodwin

S/s Maggie M. Goodwin”

The check and document were placed in an envelope and delivered to appellant at the time of their execution and were held by him until filed as a claim in the Probate Court.

Appellant’s contentions here are based on two grounds. One. The trial court erred in holding (a) the check and document were without consideration, (b) claimant had burden of showing consideration, and (c) testimony could not be introduced to show consideration. Two. The trial court erred in holding that the check and document did not constitute a gift inter vivos or a gift causa mortis.

One. At the beginning it is noted that although the document has certain testamentary aspects, appellant makes no claim on that basis. In this appellant is correct because the testimony and the document show it was not properly executed as a will or as a codicil to a will. Nor does appellant base his claim on compensation for services rendered during the deceased’s lifetime. If he had done so certain oral testimony would have been admissible.

We gather from statements in appellant’s brief that his claim is based upon a written contract. In response to an inquiry by the court it was stated that appellant was not relying on an implied contract, but that he was relying on a “specific contract.” At another place we find this statement: “It is insisted by the claimant that the instruments dated October 19, 1956 represented a written contract and are obligations against the estate; said instruments are heretofore set out fully in this brief.” (emphasis supplied). Viewed in this light, the Chancellor’s finding that no valid contract existed must be sustained, as indicated below.

The document was not signed by appellant. He was not obligated to do anything. There.was no consideration shown in the document. It mentioned nothing appellant had done in the past, but only things he was to do in the future. It is not stated nor was it shown that he had performed any part of the socalled contract. Appellant does not rely on any mistake or fraud, in the absence of which parol testimony was inadmissible. In American Southern Trust Co. v. McKee, 173 Ark. 147, (at page 160), 293 S. "W. 50 this court said: “. . . it is universally held that a written contract, free from doubt and ambiguity, cannot be altered or contradicted by parol evidence except for fraud or mistake.” The trial court was therefore correct in refusing to allow appellant to show by parol testimony what services he had rendered to Mrs. Goodwin during her lifetime. Moreover, even had such testimony been admissible it would have not necessarily shown consideration for the purported contract under consideration. Item 5 of Mrs. Goodwin’s will heretofore mentioned shows that she gave appellant 4 lots in Block 42 in the City of DeWitt. This could have been for services already rendered since all services mentioned in the document were to be performed in the future.

Two. In the alternative to the first contention discussed above, appellant says the trial court erred in not allowing his claim on the basis of a gift. We do not agree.

There was no gift inter vivos because there was no irrevocable transfer of the $7,000 to appellant which is necessary under the decisions of this court dating back to Ammon v. Martin, 59 Ark. 191, 26 S. W. 826 where, in this connection, the court said: ‘ ‘ The gift being made by Mrs. Lynch while on her death bed, and but a few hours before her death, the presumption is it was a gift causa mortis. But death, supervening in so short a time after the delivery, practically eliminated the element of revocability which distinguishes a gift causa mortis from one inter vivos. Delivery before death is just as essential to a gift causa mortis as it is to a gift inter vivos, and the same rules as to delivery are applicable to both; but in the former, although absolute in form, the title to the thing given remains in the donor, and the gift is subject to revocation at any time prior to his death. In the latter — inter vivos — the gift becomes absolute upon delivery.” In the case under consideration there was a delivery of the check to appellant, but appellant had no right to cash it at that time, and there was no circumstance which eliminated “the element of revocability.” There was a period of approximately 140 days (from Oct. 19, 1956 to March 7, 1957) in which Mrs. Goodwin could have stopped payment on the check or changed her will or could have revoked the document. We have carefully considered the cases relied on by appellant, but find they can be distinguished on the facts or have no bearing on the issue here considered. There is nothing in Burks v. Burks, 222 Ark. 97, 257 S. W. 2d 369 contrary to the views above expressed.

Nor do we think appellant’s claim can be sustained on the basis of a gift causa mortis. The question of irrevocability does not arise in such a gift, but it is essential that the gift be made in contemplation of death. See: Hatcher v. Buford, 60 Ark. 169 (pp. 173, 4), 29 S. W. 641, and Ellsworth, Administrator v. Cornes, 204 Ark. 756, 165 S. W. 2d 57. No such required showing is disclosed by the record, but just the contrary. As stated before, approximately 140 days elapsed after the check was written before Mrs. Goodwin died. While it is shown that she was ill a greater portion of this time there was no proof that the check was written in contemplation of death.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Wheeler v. Wallingsford.
    5-1654
    317 S. W. 2d 153
    Opinion delivered October 27, 1958.
    [Rehearing- denied November 24, 1958]

      Shackleford & Shackleford, for appellant.

      Brown & Compton, Gilliam & Mayfield and McKay, Anderson, Crumpler, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Wheeler, filed suit in the Pulaski Circuit Court on February 2, 1954, against appellee, Wallingsford, a resident of Union County, and others, for a debt accruing February 16, 1949. The summons issued for Wallingsford was directed to the Sheriff of Union County. The trial court overruled a motion to quash service. On a petition to this court for a writ of prohibition, it was held, in the decision handed down on February 7, 1955, that the action was transitory and that the service of summons in Union County was invalid. Barr v. Cockrill, 224 Ark. 570, 275 S. W. 2d 6.

About six months later, on August 18, 1955, Wheeler took a nonsuit in the Pulaski Circuit Court, and on August 9, 1956, a little less than a year thereafter, he filed a new suit against appellee in Union County. Appellee pleaded the statute of limitations as a defense to that action. It is conceded that the alleged debt on which Wheeler based his cause of action accrued on February 16, 1949. It was barred by the statute of limitations when the present suit was filed on August 9, 1956, unless the time in which a new suit could be filed was extended by Ark. Stat. § 37-222, which gives the plaintiff a year in which to commence a new action after suffering a nonsuit. In the present action the trial court held that the one year period in which a new suit could be filed began to run on February 7, 1955, when the decision of the Supreme Court became final, wherein it was held that the summons served in Union County was invalid in the action that had been filed in Pulaski County.

Appellant contends that the one year period in which he could file a new suit after a nonsuit had been suffered, should date from August, 1955, when he was actually granted a nonsuit by the Pulaski Circuit Court. The question is: Just when did appellant suffer a non-suit in the action filed in the Pulaski Circuit Court? We think the one year period began to run when this court held invalid the summons issued by the Pulaski Circuit Court and directed to the Union County Sheriff. When the Supreme Court reached the decision that the summons was invalid, the plaintiff’s action in Pulaski County came to an end. There was no possible way the summons issued theretofore could be served that would bring the defendant into court. The summons issued by the Pulaski Circuit Court was directed to the Sheriff of Union County; the action was transitory; there were no codefendants that would hold the case in the Pulaski court. Before the defendant could be brought into court he would have to be served in Pulaski County; the Sheriff of Union County had no authority to serve him in Pulaski County. Of course, a new summons could have been issued directed to the Pulaski County Sheriff, but appellant concedes that if such procedure had been adopted, even if the defendant could have been served in Pulaski County, the action would have been barred by the five year statute of limitations because the summons would have been placed in the hands of the sheriff more than five years after the cause of action accrued, and the time would not have been extended by a non-suit. An action is commenced when the complaint is filed and the summons is placed in the hands of the sheriff. Goodyear Tire & Rubber Co. v. Meyer, 209 Ark. 383, 191 S. W. 2d 826. No other conclusion can be reached than that the plaintiff’s case came to a complete and final end in Pulaski County when this court granted prohibition, and it was more than a year later that the suit was, filed in Union County. , To suffer a nonsuit it is not necessary that a suitor actually ask for and be granted a nonsuit in the trial court. State Bank v. Magness, 11 Ark. 343; Jernigan v. Pfeifer Brothers, 177 Ark. 145, 5 S. W. 2d 941.

Young v. Garrett, 212 Ark. 693, 208 S. W. 2d 189, was very similar to the case at bar on the point involved here. There, in speaking of the nonsuit statute, Ark. Stat. § 37-222, the court said: “But wording of the Act does not justify belief that it was the legislative purpose to so liberalize this gratuity (permitting a new suit to be filed within a year of suffering a nonsuit) that irrespective of adverse judicial decisions in a given case that the controversy in that jurisdiction had been terminated, a period of one year would yet remain while courts were reaffirming what had already been explicitly held.”

As heretofore pointed out, when this court granted prohibition, the action in the Pulaski Circuit Court came to an end. The plaintiff had suffered a nonsuit, and the present action was not filed within one year thereafter. Appellant relies heavily upon the case of Myers v. Union Elec. L. & P. Co., 233 Mo. App. 730, 125 S. W. 2d 950. In the peculiar circumstances of that case it was held that a nonsuit did not date from the granting of prohibition, but there the court said: ‘ ‘ The test of whether or not a nonsuit has been 'suffered’ is whether or not the order or judgment of nonsuit has finally terminated the suit.” Here the order granting prohibition terminated the action in the Pulaski Circuit Court just as effectively as it could be done. Therefore, appellant in the case at bar suffered a nonsuit at that time and it was more than one year before a new suit was commenced. Hence, the new suit could not be saved from a successful plea of the statute of limitations by the one year nonsuit statute.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Smith v. Smith.
    5-1621
    317 S. W. 2d 275
    Opinion delivered November 3, 1958.
    [Rehearing denied December 1, 1958]

      Lee Seamster S Bussell Elrod; Barney Hamilton, Kansas, Olda., for appellant.

      A. L. Smith, for appellee.
   Carleton Harris, Chief Justice.

Hugh Smith and Lucy Coleman Smith, his wife, lived at Siloam Springs, Arkansas. They had no children. On April 22, 1947, Mrs. Smith executed a will leaving all property to her husband. On November 8, 1952, Mr. Smith executed a will leaving all property to his wife. On April 19, 1957, while riding together in an automobile, the Smiths had an accident. Hugh Smith was dead when assistance arrived at the scene, and Lucy Coleman Smith was unconscious, and remained so until her death seventeen days later on May 6th. Clint Smith, appellant herein, and brother of the deceased, was named administrator, with the will annexed, of the estate of Hugh Smith. A. L. Smith, appellee herein, was named administrator, with the will annexed, of the estate of Lucy Coleman Smith. Both estates are now pending in the Benton County Probate Court. The administrator of the Hugh Smith estate filed a petition asking for a construction of the two wills. A. L. Smith, administrator of the estate of Lucy Coleman Smith, demurred to the petition, setting out that the petition with exhibits thereto, showed on its face that the two wills were not ambiguous, that appellant had no right or interest in the estate of Lucy Coleman Smith that would entitle him to a construction of her will; that the petition showed that the estate of Hugh Smith, under the terms of his will, became the property of Lucy Coleman Smith at his death, and since her decease, had become the property of her heirs, named in the petition; that the petition set forth no facts which would authorize the consolidation of the cases for the purpose of construing the wills of Hugh Smith and Lucy Coleman Smith, and asked that the demurrer be sustained and the petition dismissed. The heirs of Mrs. Smith also filed a demurrer, adopting as their own the demurrer filed by appellee administrator. On hearing, the court sustained the demurrers, and dismissed the petition of appellant for construction of the wills. From such order, comes this appeal.

We deem it first proper to relate the provisions of the two wills. Lucy Coleman Smith’s will was properly executed on April 22, 1947, and after formalities, consists of three items. Item one directs the payment of debts at the time of death, and expenses of last illness and funeral. Item two provides: “All the rest and residue of my property, real, personal or mixed, and wheresoever it may be situate, and of whatsoever it may consist, I give, devise and bequeath to my husband, Hugh Smith, absolutely and without any limitation whatever. ’ ’ Item three appoints the husband, Hugh Smith as executor of the will, to serve without bond. Hugh Smith’s will was executed on November 3, 1952, and after formalities, consists of two items. Item one directs the payment of debts at the time of death, and expenses of last illness and funeral. Item two reads as follows: “All of the rest and residue of my property, of whatsoever it may consist, and wheresoever it may be situated, I give, devise and bequeath to my wife, Lucy Coleman Smith, absolutely and without any limitations whatever, and I hereby nominate and appoint said Lucy Coleman Smith to be Executrix of my will, and request that she be permitted to serve as such without giving ■bond.” These instruments would seem to be entirely clear, but appellant bases his argument for reversal upon the allegation that a latent ambiguity was created, and that in such a situation, the court will aid itself by resorting to extrinsic facts and circumstances to determine the actual intent of the testators. The latent ambiguity, says appellant, is created by the following circumstances : first, the wills provide for the survivor to be executor, or executrix, as the case might be, without any alternate or substitute mentioned; second, as a result of the accident, both testators lost their power to will at the same instant; third, the Arkansas Uniform Simultaneous Death Act placed a common disaster clause in both wills, and finally, “facts and circumstances surrounding the accident.” These “facts and circumstances” are not set out in any pleading.

The petition for construction contains a quite unusual and unique allegation. We quote:

‘ ‘ That the said Hugh Smith and his wife, Lucy Coleman Smith, were in an automobile accident on the 19th day of April, 1957, said accident being instantly fatal to each of them at the same time, although the doctors maintained a vain hope of survival and made every effort to revive and resuscitate said Lucy Coleman Smith . until May 6th, 1957, when it was finally determined by the attending physicians that their hope of resuscitation and possible restoration of human life to the said Lucy Coleman Smith was entirely vain, ánd

That as a matter of modern medical science, your petitioner alleges and states, and will offer the Court competent proof that the said Hugh Smith, deceased, and said Lucy Coleman Smith, deceased, lost their power to will at the same instant, and that their demise as earthly human beings occurred at the same time in said automobile accident, neither of them ever regaining any consciousness whatsoever.”

It is interesting to note that these allegations are entirely contrary to an earlier petition filed on the approved Probate form by appellant, when seeking to admit Hugh Smith’s will to Probate. There, it was averred:

“Nominee is brother of decedent. Lucy Coleman Smith is in a critical condition as a patient in the Siloam Springs Memorial Hospital and is unconscious and, therefore, is physically and mentally unable to serve as executrix. Administration is necessary to preserve the estate. ’ ’

On the same date, a prepared petition was filed by Clint Smith, together with Dr. John L. Stockton, a nephew of Hugh Smith, containing the following allegation:

“That said Hugh Smith died, testate, and left surviving his widow, Lucy Coleman Smith, who sustained severe injuries as result of the same accident and is now a patient in the Siloam Springs Memorial Hospital in Si-loam Springs, Arkansas, and is in a critical condition and unconscious, and it is the information and belief of the Petitioners and according to information from the doctors and attendants of Lucy Coleman Smith, that she will be incapacitated for several months; * * * .” These petitions sought to name appellant as executor of Hugh Smith’s estate (which order was subsequently entered), and apparently as evidence of Lucy Coleman Smith’s inability to act, a letter from C. D. Gunter, M. D., was attached to the petition. The letter is as follows:

“Mrs. Lucy Smith, widow of the late Hugh Smith, was severely injured in the same accident that caused her husband’s death. Since the accident on 19th April, she has remained in coma due to brain injury. Her mental status after recovery is impossible to evaluate at the present, but it will probably be several months before she would be considered competent. Her other damage consists of fractures of both femurs, fracture of knee joint and fractures of the left arm in several places. These will require several operations and a year would be a conservative estimate of the time before she will be able to be about and manage her affairs.”

However, we shall not include in this discussion the question of whether appellant is bound by the statements made in the earlier petitions, but we mention them only to show that after Hugh Smith’s death, Mrs. Smith continued to live, in the ordinary and accepted meaning of the word, and that appellant recognized that fact.

We proceed to a perusal of appellant’s contention that a latent ambiguity was created. An “ambiguity” is defined by Bouvier’s Law Dictionary, Vol. 1, 3rd Revision, as “indistinctness, or uncertainty of meaning of an expression used in a written instrument.” There are two kinds of ambiguity — patent and latent. According to Bouvier: “Patent is that which appears on the face of the instrument; that which occurs when the expression of an instrument is so defective that a court which is obliged to place a construction upon it, cannot, placing itself in the situation of the parties, ascertain therefrom the parties’ intention.” On the other hand, according to Volume 2, Bouvier’s Law Dictionary, a latent ambiguity is “one which does not appear on the face of the instrument. A latent ambiguity is where words apply equally to different things or subject matter. # * * ” Further discussing the subject, the writer says:

“Where a determinate intention appears to be expressed by the written instrument, extrinsic evidence is admissible to show that the description of an object contained in the instrument is applicable with legal certainty to either of two objects; and, a latent ambiguity having thus been disclosed, evidence of the surrounding circumstances is admissible to show which of the objects was meant by the description. * * * ”

Interesting examples are then mentioned. For instance:

“* # # where a testatrix gave a share of her residue to her ‘cousin, Harriet Cloak,’ and the testatrix had no cousin of that name, but had a married cousin, Harriet Crane, whose maiden name was Cloak, and a consin, T. Cloak, whose wife’s name was Harriet; evidence was admitted to show the testatrix’s knowledge of an intimacy with the members of the Cloak family.” Further,

* * a good type of the ‘American doctrine’ v?as a devise to ‘the four boys,’ where the testator had seven sons, of whom three were shown to be minors living at home.”

Possibly a more simple example of latent ambiguity Avould occur if a testator should leave a bequest to John Smith, and there were two John Smiths who could be intended as legatee. In such event, evidence would be admissible to show which John Smith the testator intended.

We will discuss each fact that appellant contends, taken together, creates a latent ambiguity, except the “facts and circumstances surrounding the accident.” This cannot be discussed nor considered, because the allegation is only general, and no specific facts or circumstances are set out in the petition. First, appellant says the fact that neither testator named an alternate executor showed that each expected the other to live and enjoy the property bequeathed and devised. Frankly, we see no significance to this circumstance. Naturally, when one executes a will, he more or less assumes that the executor named Avill be able to serve; other-AA'ise, he would name someone else. But, though unable to check the point, we venture to say that a majority of Avills do not provide for an alternate executor, Avhile some others name no executor at all. The wills before us seem to have been made in a completely normal manner. A husband, or wife, more often than not, names the other as executor (or executrix), and in a great many instances, leaves all property to the surviving spouse. This, of course, is particularly true where there are no children.

Nor are we impressed by appellant’s argument as to the second circumstance relied upon by him. In the brief, appellant states:

“Under the allegations of the petition, both Lucy Coleman Smith and Hugh Smith at the same time lost the power to will, power to administer the estate of the other, and power to enjoy the estate of the other. Since both lost all of these powers at the same time, both lost the power to accept the bounty of the other under the reciprocal wills. Hence, both the will of Lucy Coleman Smith and the will of Hugh Smith lapsed and neither is effective to transmit the estate of either.”

It is pointed out that the petition for construction of the wills (heretofore quoted) was disposed of by demurrer, which means that the facts alleged in the petition are admitted to be true ; that if such facts are true, a cause of action is stated, and appellant accordingly should be permitted to proceed with his proof. Let it first be observed that in reading appellant’s petition, as a whole, the assertion of the death of Lucy Coleman Smith appears to be predicated on the theory that such demise occurred “as a matter of medical science,” and of course, appellant could not have meant otherwise, for he had already filed the petitions, heretofore mentioned, in the probate court, together with the physician’s letter, stating that Mrs. Smith was a patient in the hospital, and would be incapacitated for several months. Black’s Law Dictionary, 4th Edition, page 488, defines death as follows :

“The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc., * * * .”

Admittedly, this condition did not exist, and as a matter of fact, it would be too much of a strain on credulity for us to believe any evidence offered to the effect that Mrs. Smith was dead, scientifically or otherwise, unless the conditions set out in the definition existed. The trial court was entirely justified in sustaining the demurrers. In Yol. 41, American Jurisprudence, Sec. 244, page 463, we find:

“Those allegations of a pleading * * * which are contrary to the facts of which judicial notice is taken are not admitted hy a demurrer, but are treated as a nullity. The court cannot thus be prevented from passing upon allegations which in their nature are contrary to common experience and common knowledge as a matter of law, or allegations which the law does not allow to be proved.”

For instance, in Southern Railway Company v. Covenia, 100 Ga. 46, 29 S. E. 219, the court took judicial notice of the fact that an infant twenty months of age, is incapable of rendering valuable services, such as running errands, bringing in wood etc., despite allegations to the contrary. There, a child 18 months and 10 days of age was killed by one of appellant’s trains, and suit was instituted, alleging inter alia that the child

“* * * was capable of rendering, and did render to the plaintiff valuable services, by going upon errands to neighbors residing near to plaintiff’s residence, picking up and bringing in coal and chips to make and keep burning fires in the house, bringing the broom and other articles used in house cleaning to his mother, picking up and carrying out of the house trash and litter which tended to render untidy in appearance plaintiff’s home, watching and amusing plaintiff’s younger child while his wife was engaged in cooking and attending to her household duties; and that these services were worth to the plaintiff the sum of two dollars per month, * * * .”

The railroad demurred to these allegations, and the trial court overruled such demurrer. In reversing the trial court, the Supreme Court of Georgia, in an opinion written by the Chief Justice, said:

“The question is, therefore, squarely made whether the court, on demurrer, can take judicial cognizance of the fact that a child of this tender age is incapable of rendering such service as would authorize the parent to recover, or whether, in such a case, the court is bound to submit the matter to the jury. In the case of Minnesota v. Barber, 136 U. S. 321, 10 Sup. Ct. 862, Mr. Justice Hablan said: ‘If a fact alleged to exist, upon which the rights of parties depend, is within common experience and knowledge, it is one of which the courts will take judicial notice.’ In Ho Ah Kow v. Hunan, 5 Sawy. 560, Fed. case No. 6546, Mr. Justice Field said: ‘We cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the bench, we are not struck with blindness, and forbidden to know as judges what we see as men.’ In the case of King v. Gallun, 109 U. S. 99, 3 Sup. Ct. 85, it was held that ‘the court will take judicial notice of matters of common knowledge, and of things in common use. Courts will take judicial notice of facts generally known as of uniform occurrence, * * * .’

# * *

In our opinion, there can be no issue of fact as to the ability of a child two years old to perform valuable services. Even if the parent should testify that a child of that age could render services of the value of two dollars per month, it would be so inconsistent with every person’s knowledge of the incapacity of children pf that age to render service that such testimony would be unworthy of credit.

* # #

But it is contended that by the demurrer in the court below it was admitted that the child was capable of rendering service, and that therefore the court was right in overruling the demurrer. * * * In passing upon a demurrer to a declaration, the court considers all the allegations therein. The demurrer admits all the facts well pleaded. If all the facts, taken together show that the plaintiff is not entitled to recover, the court should sustain the demurrer, * * * . If the major premise in the declaration shows no cause of action, the minor premise will not aid in sustaining it. * * * ”

Likewise, we take judicial notice that one breathing, though unconscious, is not dead.

Appellant contends that the provisions of the simultaneous death act, found in Section 61-124, Volume 5, Arkansas Statutes, Annotated, apply. This section reads as follows:

“Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this act.”

Appellant argues that this is a “common disaster” statute, and that under such an interpretation, Smith and his wife died at the same time, because they died as a result of a common disaster. Three cases are cited, but none of these deal with an interpretation of the Uniform Simultaneous Death Act. The main case relied upon by appellant is Hackensack Trust Co. v. Hackensack Hospital Ass’n. 120 N. J. Eq. 14, 183A. 723. The facts were as follows: Mrs. Flora Curry Adams and daughter were in an automobile accident in which they were fatally injured. They were taken to a hospital, where Mrs. Adams died in about one hour and the daughter about thirteen hours' later. Mrs. Adams had made a will which left all of her property to her daughter, except

“* * * but should my said daughter predecease or not survive me, or should she and I perish in a common disaster, she leaving no issue her surviving, I give, devise and bequeath all of my residuary estate as follows: * * • .”

Here, contingent beneficiaries were named. The Court said:

“The contentions in the instant suit are based upon construction of the language of the will, which in the one case would interpret the will as though it read ‘perish as a result of a common disaster,’ while the adverse group of interests would limit the expression so as to make it read substantially ‘perish exactly or almost exactly at the time and place of the accident.’

The contentions of the executor of the daughter’s estate and those claiming under the daughter’s will are that the word ‘in’ is to be strictly construed as to time and place, and that since neither the mother nor the daughter died immediately or at the scene of the accident, and that since the daughter survived the mother by more than twelve hours, that their deaths were not ‘in’ a common disaster.

On the other hand, those claiming under the alternative provisions of the residuary clause contend that the expression ‘in a common disaster,’ as used in ordinary language, is broad enough to include deaths resulting from an accident although not simultaneous. They further contend that from the provisions of the will it was not the intent of testatrix that the daughter should take the residuary estate unless she could have the beneficial enjoyment of it, and that it was also the intent of the testatrix that the residuary estate should be disposed of according to her own wishes unless the daughter should survive her so as to substantially benefit. * * * .” Bef erring to the will:

“It sets up three contingencies under any one of which the daughter was not to take. It says, ‘* * * should my said daughter predecease,’ second, ‘or not survive me.’ This second phrase cannot mean anything else except the simultaneous deaths of both of them. The three contingencies would accordingly seem to provide for a possible third other than the prior or simultaneous death of the daughter, namely, in a common disaster with the mother. This would therefore include survival by the daughter of the mother provided they both met their deaths because of a common accident, since prior or simultaneous deaths had already been provided for.”

It will be noted that there is no reference in Hugh Smith’s will to death from common disaster; for that matter, there is nothing in the Statute which refers to death by common disaster, though, of course, the situation of simultaneous death would, in a great majority of instances, arise from such an event. But it is possible for people to die simultaneously from natural causes under circumstances that would prevent a determination of who died first. See In re Dunham’s Will, N. Y. S. 2d 571. At any rate, according to Webster’s dictionary, simultaneous means, “the same time,” and the Statute refers only to such deaths. Volume 9-C, Uniform Laws, Annotated, reflects that this section is an exact copy of Section 1 of the Uniform Simultaneous Death Act, which has been adopted in at least thirty-seven of our states. A study of the cases quoted reflects that the provisions of the statute never apply unless there is no sufficient evidence to determine which party died first. In the case, Sauers, Administratrix v. Stolz, 121 Colo. 456, 218 P. 2d 741, a husband and wife were in an automobile accident, and the evidence showed that the husband outlived the wife for a few moments. The trial court found that the husband and wife died simultaneously, and the Colorado Supreme Court, in reversing the lower court, said:

“The court, in making the above findings, apparently relied upon chapter 197, S. L. ’43, known as the uniform simultaneous death act, which provides in part as follows: ‘Section 1. Where the title to property or the devolution thereof depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived, except as provided otherwise in this act.’ Where two or more persons perish in a common disaster, such as here, and there is no proof as to which died first, the statute furnisb.es a guide, in tbe absence of evidence, by which descent of property may be judicially determined, and creates a presumption that death of the parties was simultaneous. The statute is inapplicable if there is evidence as to which one of the parties survived the other or if there are particular circumstances from which the fact of survivorship may be inferred. The presumption of simultaneous death of the parties was not intended to take the place of competent, positive and direct evidence, and the fact of survivorship requires no higher degree of proof than any other fact in the case. ’ ’

See also In re DiBella’s Estate, 100 N. Y. S. 2d 763, where the court, in construing Section 1, stated:

‘ ‘ Of course, in sustaining her burden of proof, it is entirely unnecessary for the petitioner to show by a fair preponderance of the evidence that the husband survived the wife by any matter of hours. If the proof is sufficient, one second would be enough. ’ ’

To summarize and conclude, this litigation is determined by two facts. First, Hugh Smith and Lucy Coleman Smith did not die simultaneously, and second, there is no ambiguity.

It is well settled law in this state, so well settled as to require no citation of authority, that where there is no ambiguity, or no conflict or repugnance between provisions of a will, judicial interpretation or construction is not required.

Accordingly, the order sustaining the demurrers, and dismissing the petition for the construction of the wills is affirmed.

       On February 10,1954, Mrs. Smith signed a typewritten statement in the form of a will, attempting to dispose of certain property which she had received in 1948 from a deceased sister, Mrs. Mary Grant Sills of Denver, Colorado. These addenda attempted to make certain bequests for the benefit of a brother, certain nephews and nieces, and the_ establishment of a memorial. This statement was signed by Mrs. Smith but not witnessed. We do not consider that this statement has any bearing on the issues in this case.

       The will of Hugh Smith, the will of Lucy Coleman Smith, and the typewritten statement signed by the latter.

       For the purpose only of determining the sufficiency of the pleadings.

       The court then mentions several imaginary situations that would not be admitted by demurrer; for instance, if the child had been 6 months of age; allegations charging a five year old boy with rape, etc.

       Referring to the trial court,

       Emphasis supplied.


author: J. Seaborn Holt, Associate Justice.

text:
    George, Guardian v. Alexander, Admr.
    5-1646
    317 S. W. 2d 124
    Opinion, delivered November 3, 1958.

      Wayne Foster, for appellant.

      Wilton E. Steed, Chas. S. Goldberger, Jay W. Dickey, for appellee.
   J. Seaborn Holt, Associate Justice.

Mrs. Elnora Brown died intestate, without descendants, on April 2, 1956. Her husband, Edwin Brown, and three other parties, claiming to be her heirs at law, survived her. Certain realty owned by the decedent was sold for a cash consideration of $2,900 and is now held by the duly appointed administrator, Kenneth Alexander, appellee. Mrs. Brown’s husband was declared incompetent and appellant, Corinne George, was appointed his guardian on April 9, 1956. The facts in this case appear not to be in dispute. Mrs. Elnora Brown had acquired the property in question as a devisee under the will of her (full) sister, Lucinda Adams, on March 22, 1955. The sole question for our determination is whether the estate of Mrs. Brown, deceased, in her real property here involved, was an ancestral estate, or a new acquisition.

Under the provisions of Sec. 61-228 Ark. Stats. 1947, Curtesy — Descent and Distribution — the surviving husband is entitled to one-third of the wife’s realty for life if the estate is ancestral. If the estate is a new acquisition, then the husband would be entitled to one-half of her realty in fee. A trial resulted in a judgment finding and declaring the estate of Elnora Brown to be an ancestral estate and we hold that the court was correct in so finding.

The distinction generally held between an ancestral estate and a new acquisition, is that a new acquisition is one that the intestate acquired by his exertions and industry or by will or deed from a stranger to the blood. See Kelly’s Heirs et al. v. McGuire and wife et al., 15 Ark. 555. Here the property came to the wife solely by the will of her sister. The blood relationship of the decedent, Mrs. Brown, and her sister brought this estate into being. “. . . ancestral estates come from no other consideration but that of blood; all others are new acquisitions,” Dowell v. Dowell, 207 Ark. 578, 182 S. W. 2d 344. This court in Carter v. Carter, 129 Ark. 7, 195 S. W. 10, used this language: “Under our statute of descents as interpreted by this court it is held that ancestral estates embrace not only descended estates, but also all other, which may have come to the intestate by gift, or devise, from either parent, or from any relation of the blood of either parent, and that, as to all such, it is the manifest intention of the legislature, upon the death of the intestate, without issue, to preserve them in the line of the blood from whence they came to the same extent that descended estates were so preserved at common law.”

We conclude, therefore, that this property became vested in the decedent because of the blood relationship to her sister, Lucinda Adams, who willed it to her, and is, therefore, ancestral property. Affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Travelers Ins. Co. v. Cargile Motor Co.
    5-1630
    317 S. W. 2d 126
    Opinion delivered November 3, 1958.

      Van Johnson and Atchley £ Bussell, by Howard Waldrop, Texarkana, Tex., for appellant.

      Arnold £ Arnold, John O. Moore, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal challenges a judgment which appellee, Cargile Motor Company (hereinafter called “Cargile”), recovered against Travelers Insurance Company (hereinafter called “Travelers”) on an insurance policy issued by Travelers in which Cargile was named as the lien holder.

In February 1957 Cargile sold a new automobile to Dr. Frankenstein, and the unpaid balance was in excess of $2,400.00. Travelers issued a comprehensive insurance policy to Dr. Frankenstein which, inter alia, protected him and Cargile against theft or larceny. In the endorsement on the policy Cargile was named as lien holder, and the germane portion of the endorsement reads:

“Loss or damage, if any, under the policy shall he payable as interest may appear to Cargile Motor Company, lien holder, and this insurance as to the interest of the . . . Conditional Vendor or Mortgagee (herein called the Lienholder) shall not be invalidated by any act or neglect of the . . . Owner of the within described automobile nor by any change in the title or ownership of the property; ... ”

Dr. Frankenstein, aged 80, was an optometrist in Texarkana, Texas, and a young lady working for him, named Pat Blood, was approximately 20 years of age. Dr. Frankenstein allowed her to have possession of the car and to drive it, as part of her duties were to keep the books and collect accounts. In April, 1957 there was a “falling out” between Dr. Frankenstein and Pat Blood. He demanded and received the return from her of his fur stole and a diamond ring. He also demanded the automobile; and she refused because she claimed that he had given the car to her. However, she did give him one set of car keys but kept another set and continued to drive the car. Some time thereafter she left Texarkana with the car and Dr. Frankenstein advised the police that she had gone off with the car after he had demanded its return. It was about May 1st when Pat Blood left Texarkana with the car. She has never returned. Cargile and Dr. Frankenstein filed claim against Travelers for recovery on the policy, claiming that Pat Blood had stolen the car. Travelers denied liability; and trial to a jury resulted in special verdicts (as hereinafter discussed) on which the Court rendered judgment for Cargile against Travelers for $2,501.48, with interest, as the balance due Cargile on its lien claim. Travelers has appealed, presenting among other things, the matters herein discussed:

I. Refusal to Mahe Pat Blood A Party Defendant. Belying on § 27-814 Ark. Stats., Travelers moved the Trial Court to make Pat Blood a party defendant, but the motion 'was refused; and Travelers claims the following cases as requiring such joinder: Smith v. Moore, 49 Ark. 100, 4 S. W. 282; Choctaw O. & G. RR. v. Mc Connell, 74 Ark. 54, 84 S. W. 1043; and Westmoreland v. Plant, 89 Ark. 147, 116 S. W. 188. In Smith v. Moore (supra), the effort was to recover a mortgaged chattel and an adverse claimant was held to be a necessary party. In C. O. & G. RR. v. McConnell (supra), it was shown that other persons were claiming the fund in controversy and we held that such other claimants should be made parties. The case of Westmoreland v. Plant {supra) was an ejectment action and claimants claimed only a half interest in the land. We held that the persons claiming the other interest should be made parties.

In the case at bar, Cargile was not seeking to recover the automobile but was seeking to recover from Travelers on an insurance policy on the claim that Pat Blood had stolen the car. The cited eases do not justify a holding that the alleged thief is a necessary party defendant in a suit on an insurance policy. The Trial Court refused Travelers motion, stating, inter alia, . . that the primary subject matter of this lawsuit is the determination of alleged liability of the defendant under an insurance policy; that Pat Blood is not in any manner a party to, or interested in, said contract of insurance.” The Trial Court was correct, because it was not claimed that Pat Blood had any interest whatsoever in the insurance policy sued on.

II. No Theft Of The Car. Travelers maintained below, and stoutly insists here, that there was no theft of the car within the coverage of the policy. The parties stipulated in open Court that the policy was written under the laws of Texas and that the effect of whatever “taking” there had been by Pat Blood was to be determined under the laws of Texas; so we examine the statutes and cases of that State. Section 1429 of the Texas Penal Code involves conversion by a bailee and says:

“Any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall without the consent of the owner, fraudulently convert such property to his own use with intent to deprive the owner of the value of the same, shall be guilty of theft, and shall be punished as for theft of like property.”

Article 1534 of Vernon’s Penal Code on Embezzlement says, “If any . . . employee of any private person, . . . or any . . . bailee of . . . property, shall embezzle, fraudulently misapply or convert to his own use, without the consent of his . . . employer, any . . . property of such . . . employer which may have come into his possession or be under his care by virtue of such . . . employment, he shall be punished in the same manner as if he had committed a theft of such . . . property.” A fraudulent conversion of property bailed constitutes theft under § 1429 of the Penal Code. See Malz v. State, 36 Tex. Cr. R. 447, 37 S. W. 748; and Creale v. State, 71 Tex. Cr. R. 9, 158 S. W. 268. The opinion of Justice Meade F. Grieein of the Supreme Court of Texas in Hall v. Great Nat. Lloyd’s, 154 Tex. 200, 275 S. W. 2d 88, is apropos.

From the Texas statutes and cases we reach the conclusion that if Pat Blood fraudulently converted the car to her own use there was a theft within the meaning of the policy; and it became a question of fact as to whether Pat Blood had fraudulently converted the car to her own use.

III. Sufficiency Of The Evidence. Travelers earnestly insists that there was no evidence to show that Pat Blood had fraudulently converted the car to her own use; and points out that Dr. Frankenstein never sued out a warrant of arrest for Pat Blood when she refused to return the car to him or when she left with the car. It is the strong contention of Travelers that Dr. Frankenstein gave the car to Pat Blood.

These matters were questions of fact for the jury. Dr. Frankenstein testified that he did not give her the car; that she did give him one set of keys to the car but continued to drive the car; that he advised the police that she had gone off with the car after he had demanded its return; and that he notified Travelers and Cargile that she had gone off with the car. Dr. Frankenstein testified that he made a statement to the theft bureau and called the Texas police; and “I reported it to the police but they said they didn’t want to fool with me . . . ” It was shown that a letter written by Cargile to Pat Blood in care of her parents in Troy, New York, was never returned as undelivered. Dr. Frankenstein firmly insisted that he never gave her the car and that she ran away with it.

This testimony, and other in the record, made a question of fact for the jury as to whether Pat Blood was guilty of the theft of the car. If she was, then Cargile is entitled to recover under the wording of the endorsement on the policy because if Pat Blood stole the car, then any failure of Dr. Frankenstein — whether to sue out a warrant of arrest or take other steps — did not prejudice the rights of Cargile. By answering the interrogatories as it did, the jury clearly showed that it believed that Pat Blood had stolen the car.

IV. Special Issues. At the close of the case and after giving instructions (which we do not find to be in error) the Court submitted the case to the jury on special interrogatories :

“1. Do you find from a preponderance of the evidence that theft or larceny of the automobile, as those terms have been defined to you, has been committed? You will answer yes or no . . .

‘ ‘ 3. What do you find from a preponderance of the evidence to be the fair market value of the automobile on or about May 1, 1957?”

The jury answered Interrogatory No. 1 in the affirmative (thereby finding that there had been a theft of the car); and answered Interrogatory No. 3 by fixing the value of the car at $2,501.48; and the Court rendered judgment for Cargile against Travelers for said amount with interest and costs. Travelers makes two claims against these special issues. The first is, that if Dr. Frankenstein could not recover, then neither could Cargile recover. But this contention is disposed of by the wording of the endorsement on the policy which we have heretofore copied and which says that the rights of Cargile “. . . shall not be invalidated by any act or neglect of the owner.” The other objection to the special interrogatories is the refusal of the Court to give Travelers’ requested interrogatory, which reads as follows :

“Do you find from a preponderance of the evidence that Pat Blood had the automobile, the subject of this litigation, in her possession on or about May 1, 1957, under the honest belief that Dr. E. W. Frankenstein had given her the said automobile as a gift? Answer yes or no.”

This interrogatory should not have been given. Under the law it is not a question of whether Pat Blood believed that Dr. Frankenstein had given her the car; it was a question whether in fact Dr. Frankenstein had given Pat Blood the car. The Court instructed the jury on all of the essentials of a gift and the issue was sharply drawn, as shown in Topic III supra, on the question of the gift. The verdict of the jury settled that question.

Finding no error, the judgment is affirmed.

       All citations to the Texas Penal Code are to the sections as numbered in Vernon’s Penal Code of the State of Texas, Annotated, published in 1953.

       There was an Interrogatory No. 2 which related to whether Dr. Frankenstein had cooperated with the Travelers Insurance Company. The answer to this interrogatory related only to matters between Travr elers and Dr. Frankenstein; and this is not before us on this appeal.


author: George Rose Smith, J.

text:
    Thiel v. Dove.
    5-1635
    317 S. W. 2d 121
    Opinion delivered November 3, 1958.

      W. B. Hotvard, Claude Cooper, John H. Bradley, Kennett, Mo., for appellant.

      Howard A. Mayes, for appellee.
   George Rose Smith, J.

TMs action for slander was brought by the appellee, Virginia Dove, who asserts that the appellant, George Edward Thiel, falsely accused her of adultery. The jury awarded the plaintiff $14.00 as compensatory damages and $1,400.00 as punitive damages. The appellant questions the sufficiency of the evidence and the correctness of the count’s instructions to the jury.

Thiel, who was the municipal judge at Paragould, was standing on the sidewalk across the street from the Reynolds Apartments at about 9:30 on the evening of July 24, 1957. He says that in' one of the apartments he saw a city policeman, Jimmy Rogers, clad only in an undershirt, and a nude woman whom he did not recognize and, in fact, has never attempted to identify. The two disappeared from view, but Thiel observed enough of their conduct to indicate that an act of sexual intercourse took place.

On the same evening, according to the evidence, Thiel met two policemen and told them what he had seen. He also went to the home of an alderman and, in describing the incident, identified the window of the apartment as having been the first one to the left of the stairway in the building. The next day the mayor heard about the matter and discussed it with Thiel.

No formal charge appears to have been made against Rogers, the officer involved, but the city’s Police Committee met on July 26 and investigated the matter to some extent. Five days later the city council held a public hearing, which was well attended, to determine if Rogers should be suspended or discharged. Thiel appeared at both these meetings, by request but without subpoena, and again described what he had seen in the apartment to the left of the stairway.

The apartment in question was occupied by the plaintiff, Mrs. Dove, and her husband. Their testimony, which is amply corroborated, is that on the evening of July 24 two other tenants in the building, Miss Potter and Miss Berry, dropped in to watch television. Nothing of an unusual or indecent nature took place. Rogers testified that he had never been in the Reynolds Apartments at night and had never been in the plaintiff’s apartment at all. The jury evidently accepted the testimony offered by the plaintiff and concluded that the defendant’s narrative was false.

The appellant first contends that his words did not amount to a defamation of Mrs. Dove, since he did not name her as the woman he saw and did not even know that she lived in the particular apartment. This argument is not sound. It is enough that the slanderous words be reasonably understood to refer to an ascertained or ascertainable person, who, of course, must be the plaintiff. Nowell, Slander and Libel (4th Ed.), § 214. Inasmuch as Thiel identified the man as Jimmy Eogers and fixed the place as the apartment occupied only by Mrs. Dove and her husband, the statements strongly imply, and would reasonably be taken to mean, that Mrs. Dove was in fact the unidentified woman supposedly seen by the appellant.

Upon the theory that Thiel’s statements before the Police Committee and at the city council’s public hearing were absolutely privileged, counsel for the defense asked the trial court to instruct the jury that there could be no liability for those statements. That request was properly refused. The committee and the council were discharging a public duty in inquiring into Rogers’ fitness to act as a policeman, and in the public interest it was desirable that they have as much information as possible about the incident. Consequently it is true that statements taken at the hearings were privileged, but the privilege was conditional rather than absolute. Rest., Torts, § 598.

The rule governing the limited immunity that attends a conditional privilege has been stated as follows: “One who publishes false and defamatory matter of another upon a conditionally privileged occasion is liable to the other if he abuses the occasion.” Rest., Torts, § 599; Bohlinger v. Germania Life Ins. Co., 100 Ark. 477, 140 S. W. 257, 36 LRANS 449, Ann. Cas. 1913C, 613. It is an abuse of the occasion for one to make a .defamatory statement that he knows to be untrue. Rest., § 600. Here, as we have seen, the jury were warranted in finding that the statements at the hearings were made with knowledge of their falsity.

A conditionally privileged occasion is also abused if the speaker is motivated by malice rather than by the public interest that calls the privilege into being. Rest., § 603; Miller v. Nuckolls, 77 Ark. 64, 91 S. W. 759, 113 A. S. R. 122, 4 LRANS 149. We think the proof made the existence of malice a question for the jury. “Malice may be shown by the defamatory words themselves and the manner of their publication, and need not be proved by extrinsic evidence. The absence of legal excuse for publishing the slander is evidence of malice.” Gaines v. Belding, 56 Ark. 100, 19 S. W. 236. It may be conceded that if Thiel did not know who lived in the apartment next to the stairway his statements were not consciously motivated by ill will toward Mrs. Dove in particular. But the proof supports a finding that Thiel acted at his peril in designating the apartment and displayed such a conscious indifference to results that his conduct could be regarded as willfully wrong. Greer v. White, 90 Ark. 117, 118 S. W. 258. What we have already said on the issue of malice makes it unnecessary to discuss the contention that the evidence of malice is insufficient to support an award of punitive damages.

Finally, it is insisted that the court erred in giving an instruction which reads in part: “You are instructed that malice may be inferred from the falsity and the absence of probable cause or other relevant circumstances, or it may be deduced from the libel or slander itself of which it forms a part.” It is argued that under our previous decisions this instruction constituted a comment upon the weight of the evidence.

This contention must be sustained. The manner in which the trial court may call certain facts to the jury’s attention has been pretty clearly outlined by a number of decisions, many of which deal with the fact of possession of recently stolen property as constituting sufficient proof of guilt. On the one hand, it is permissible for the court to instruct the jury that a certain fact, such, as the possession of recently stolen goods, goes to the jury for its consideration in connection with the other evidence as tending to show the guilt of the accused. See Blankenship v. State, 55 Ark. 244, 18 S. W. 54; Sons v. State, 116 Ark. 357, 172 S. W. 1029; Barron v. State, 155 Ark. 80, 244 S. W. 331.

On the other hand, it is clearly improper for the court to tell the jury that a specific fact in evidence is sufficient to support an inference of guilt, negligence, or the like. Blankenship v. State, supra; Smith v. Jackson, 133 Ark. 334, 202 S. W. 227; Coca-Cola Bottling Co. of Southeast Arkansas v. Bell, 194 Ark. 671, 109 S. W. 2d 115. It is for the jury to say whether the particular inference should be drawn from all the proof in the case, and consequently the court comments on the weight of the evidence when it declares that a certain inference may be drawn from a specific fact.

In the case at bar the court instructed the jury, at least in general language if not by reference to a specific fact, that malice may be inferred from the falsity of the statements and the absence of probable cause. In applying this charge to the proof before them the jury would necessarily understand that a finding of falsity and of the want of probable cause was, in the court’s judgment, a permissible basis for inferring the existence of malice. Hence, even though the charge was couched in general language it conveyed the same message that would have been carried by a specific narration of the facts.

The case of L. B. Price Merc. Co. v. Cuilla, 100 Ark. 316, 141 S. W. 194, is directly in point. That was a suit for malicious prosecution, and the court instructed the jury that malice might be inferred from the want of probable cause. In holding the charge erroneous we said: “This amounted to an instruction on the weight of the evidence, for it was equivalent to saying to the jury that a finding of want of probable cause was sufficient to justify a finding of malice. Now, a trial jury in a case of this sort may or may not, according to the circumstances of the case, draw an inference of malice from a want of probable cause. It is a mere inference of fact and not presumption of law; and as tbe jury are not bound to draw such an inference as a matter of law, it amounts to an instruction on tbe weight of the evidence to tell them what facts are of sufficient weight to warrant the inference.” To the same effect is Kable v. Carey, 135 Ark. 137, 204 S. W. 748, 12 A. L. R. 1227.

Reversed.


author: George Rose Smith, J. Paul Ward, Associate Justice,

text:
    Collie v. Tucker.
    5-1650
    317 S. W. 2d 137
    Opinion delivered November 3, 1958.

      Lawson E. Glover, for appellant.

      William C. Gilliam, for appellee.
   George Rose Smith, J.

Robert Lee Collie died testate on July 22, 1952, and his widow, Sarah F. Collie, died intestate on December 19, 1957. This case requires a construction of the husband’s will in order to determine the ultimate disposition of certain real and personal property that Mrs. Collie received from her husband’s estate and still held at the time of her, own death. The appellants, who are the husband’s collateral heirs, contend that Mrs. Collie was given only a life estate with a power of disposition and that at her death the devolution of the property now in dispute was controlled by her husband’s will. The appellees, Mrs. Collie’s collateral heirs, contend that she was given an estate in fee simple, so that the property should pass to them under the laws of descent and distribution. The trial court, construing Collie’s will in connection with petitions filed by the appellants, held that Mrs. Collie had owned the property in fee.

The case turns upon the construction of these two paragraphs in the will of Robert Lee Collie:

“Third. After the payment of my debts, if any, and my funeral expenses I hereby give, devise and bequeath to my said wife, Sarah F. Collie, all of my property, real, personal and mixed of whatsoever kind of which I may die seized and possessed, including our home place in Malvern, Ark., bank stock, notes and mortgages and all other property of any and all kinds, although not herein specifically mentioned. In as much as I have no children and my said wife has aided me to accumulate what we have I feel that it is only just and right, that should she outlive me, all I have should be absolutely hers, and that is my will.

“Fourth. It is my will in case my wife should not use and dispose of all my property during her lifetime, that whatever she may leave undisposed of, shall be equally divided between her heirs and my heirs.”

The probate court rightly concluded that this case is controlled by our decision, upon very similar facts, in Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, 8 LRANS 1028. There the testator devised his residuary estate to his widow “in fee simple forever,” and, in the next sentence of his will, attempted to provide for the distribution of any of the property that the widow had not disposed of during her lifetime or by her will. It was held that the limitation over was void, being inconsistent with the fee simple devise to the widow. In discussing a number of authorities we pointed out the governing distinction: If the will, construed in its entirety, shows that the testator intended for the first taker to have an estate in fee simple, then any subsequent language attempting to direct the disposition of property remaining undisposed of at the death of the first taker is void. If, however, the will shows that the testator intended for the first taker to have only a life estate with a power of disposition, then the testator may direct the disposition of property remaining undisposed of at the death of the life tenant.

In the present case Collie left all his property to his wife and added the unmistakable direction that it should be “absolutely hers.” In view of this clear expression of Collie’s intention that his widow would own the property outright instead of merely for life, the attempted limitation over must be declared void. We are not willing to set aside the rule of property that was announced in the Bernstein case and that has been adhered to ever since.

The four cases principally relied upon by the appellants are not out of harmony with the Bernstein decision. In two of them, Little Rock v. Lenon, 186 Ark. 460, 54 S. W. 2d 287, and United States of America v. Moore, 197 Ark. 664, 124 S. W. 2d 807, the original devise was modified by a codicil to the will, and we stressed the fact that the mere making of a codicil gives rise to the inference of a change in the testator’s intention. In the other two, Jackson v. Robinson, 195 Ark. 431, 112 S. W. 2d 417, and Piles v. Cline, 197 Ark. 857, 125 S. W. 2d 129, the testamentary language was insufficient to create a fee simple estate in the first taker; so the subsequent limitation over was not inconsistent with the first gift.

It is also contended by the appellants that the issue in this case was conclusively adjudicated during the administration of Robert Lee Collie’s estate. Sarah F. Collie was the executrix of her husband’s will, and in filing her final account she inserted a statement that ‘ I am the sole legatee of said will and am entitled to all of the assets of said estate for and during my lifetime.” The probate court order approving the account recites that Mrs. Collie is entitled to all the property in her husband’s estate, to use and dispose of as she chooses, and that the remainder not disposed of at her death shall descend according to the terms of Collie’s will “to their lawful heirs. ’ ’

It is evident that Mrs. Collie misunderstood the legal effect of her husband’s will, and that misconception was embodied in the order approving her final account. Since this order was also an order of final distribution, containing all the recitals enumerated in subsection (b) of Ark. Stats. 1947, § 62-2902, the appellants insist that subsection (d) of the statute requires that the order be given conclusive effect.

We do not agree with this view. The court was not called upon to determine the validity of the fourth paragraph in Collie’s will, for a decision of that issue was not essential to a distribution of the estate. Ark. Stats., § 60-416. Subsection (a) of § 62-2902, governing the distribution order, contemplates that the distributees of the estate be given such notice of the hearing as the court may direct, to the end that questions pertaining to the distribution may be conclusively settled in an adversary proceeding. In the case of Collie’s estate the only issue that could be determined when the final account was filed in 1953 was that of making a proper physical distribution of the assets of the estate. Even if the fourth paragraph of Collie’s will had been valid, it could not be known in 1953 what property would be undisposed of at the date of Mrs. Collie’s death or what persons would then prove to be the heirs of Mr. and Mrs. Collie. The statute certainly does not authorize the court to make a conclusive determination at a time when the essential facts cannot be known and when even the identity of the distributees cannot be ascertained. We think Mrs. Collie correctly interpreted the statute when she stated in her final account that she was the sole beneficiary of the estate, there being no other distributees under the terms of the will. As far as the issues presented by the 1953 distribution order were concerned, that statement was accurate.

It is plain that Mrs. Collie’s heirs, the present appellees, are not bound by the distribution order under the doctrine of res judicata, for they were not parties to that proceeding. Nor are they concluded by the principle of virtual representation, as it cannot be said that Mrs. Collie fairly represented the same interest as theirs in that uncontested proceeding. Since the probate court order recited that Mrs. Collie was entitled to use and dispose of the property as she chose, she herself was not adversely affected by the unnecessary recital of how the unused remainder would descend at her death. Her misconstruction of the will was in fact antagonistic to the interest of the appellees. It would be manifestly unjust, as we observed in Mixon v. Barton Lbr. & Brick Co., 226 Ark. 809, 295 S. W. 2d 325, to apply the doctrine of virtual representation as a basis for holding that these appellees have had their day in court.

Affirmed.

Ward, J., dissents.

Paul Ward, Associate Justice,

(dissenting). I have read many decisions of our court dealing with testamentary language similar to that contained in the third and fourth paragraphs in the will under consideration and I am driven to the conclusion that the law is now in a state of uncertainty. The majority opinion certainly does nothing to clarify that uncertainty. In my opinion it is desirable to put an end to this confusion. I submit this can be done simply and only by adhering strictly to a rule of law relative to the construction of wills that has been clearly and repeatedly announced by this court. That simple rule, briefly, stated is that the courts should determine the intent of the testator from the four corners of the will. See: Jackson v. Robinson, 195 Ark. 431, 112 S. W. 2d 417; Piles v. Cline, 197 Ark. 857, 125 S. W. 2d 129; Ellsworth v. Arkansas Nat’l Bk., Trustee, 194 Ark. 1032, 109 S. W. 2d 1258; Dyer v. Lane, 202 Ark. 571, 151 S. W. 2d 678; Dickens v. Tisdale, 204 Ark. 838, 164 S. W. 2d 990; McLane v. Chancey, Adm., 211 Ark. 280, 200 S. W. 2d 782, and; Thompson v. Ark. Nat’l Bank, 220 Ark. 802, 249 S. W. 2d 958.

Applying the above rule only one conclusion can be reached in this case, and that is that Robert Lee Collie meant for his heirs and his wife’s heirs to have any property not disposed of by his wife at her death. The same rule would likewise determine the effect to be given to similar wills in the future.

Any attempt to make a distinction, under the above rule between the case under consideration and the Piles case, supra, as the majority has done, is tenuous and strained and lends itself to uncertainty and confusion. In the first case the devise of a fee was in one paragraph and the qualification was in another, while in the second case the devise of a fee is in one sentence and the qualification is in another sentence. This difference, I submit is one of rhetoric and literary composition which with many of us is not an exact science. The difference is not one of substance which should control the disposition of property.

In advocating the simple rule of intent I am not unmindful that it has some limitations. For instance we have said the intent must be determined from the words of the will and not from what the testator might have had in mind. Also, as was said in the Jackson case, the intent must not be contrary to some rule of law (not to some rule of construction). These limitations, however, have no bearing on the case under consideration.