author: John A. Fogleman, Justice.

text:
    MIDWEST BUS LINES, INC., T. O. Tyler and Larry Cooper v. Jeff WILLIAMS and Lola Williams
    5-4363
    422 S. W. 2d 869
    Opinion delivered January 15, 1968

      S. Hubert Mayes and Barber, Henry, Thurman, McCaskill & Amsler, for appellants.

      George J. Cambimo, for appellees.
   John A. Fogleman, Justice.

These appeals by three codefendants are from adverse judgments in favor of appellees for alleged personal injuries sustained in a motor vehicle collision. At the time of the incident out of which the action arose, appellees, husband and wife, were passengers on a bus of appellant Midwest Bus Lines, Inc., driven by appellant T. 0. Tyler. A collision, on the night of December 17, 1966, between the bus and an automobile owned and operated by appellant Larry Cooper gave rise to the litigation. -

Appellees’ cause of action against Midwest was based on allegations that Tyler was driving at such a high rate of speed that he was unable to swerve the bus in order to avoid the collision; that he was not keeping a proper lookout; and that he failed to slow down, stop or swerve to avoid the impact. Their allegations as to Cooper were that he drove his vehicle into the proper lane for the bus which was proceeding in the opposite direction from that Cooper was traveling and that he failed to regain control of his vehicle and bring it back into its proper lane. Each of appellees sought recovery for physical pain and suffering and mental anguish, permanent partial disability, and past and future medical expenses.

•Cooper denied the allegations of negligence as to him and alleged .that any injuries suffered by appellees were caused by negligence of Tyler. Tyler and Midwest denied all allegations of appellees, but alleged that any injuries suffered by appellees were caused by the negligence of Cooper. They asserted that this consisted of his driving at an excessive rate of speed across the center line of the highway into the lane where the bus was properly proceeding and his failure to keep his vehicle under control, to keep a proper lookout, and to yield the right-of-way to the bus. They asked judgment against Cooper in the amount of any recovery against them, and Midwest cross complained, seeking recovery for damages to the bus. Cooper denied liability to the bus company and asked judgment over against the company for indemnity or contribution.

The case was submitted to a jury upon interrogatories. Responses of the jury showed that it found Cooper guilty, and Tyler not guilty, of negligence which was a proximate cause of the occurrence. It found Tyler guilty of failure to use the highest degree of care for the safety of appellees. It allocated responsibility for appellees’ injuries — 60% to Cooper and 40% to Tyler. It found the damages of appellee Jeff Williams to be $20,-000, those of appellee Lola Williams to be $30,000, and those of the bus company to be $534.67.

Appellants Tyler and Midwest moved for an order directing that judgment be entered upon the verdict or that the special verdicts be set aside. Their motion was based upon contentions that responsibility for the occurrence should not have been apportioned by the jury and that appellees’ complaint should be dismissed as to them upon the jury’s findings, or, in the alternative, that they should have judgment against Cooper for any sums assessed against them in favor of the appellees. They also asked, alternatively, that the verdicts be set aside for inconsistency.

Cooper likewise moved for entry of judgment or the setting aside of the jury verdicts for inconsistency. He contended that judgment aganst him should be limited to 60% of the damages to the other parties.

The judgment entered allowed recovery of $12,000 from Cooper and $18,000 from Tyler and Midwest by Lola Williams. It awarded Jeff Williams $8,000 from Tyler and Midwest and $12,000 from Cooper. It provided that Midwest have full recovery from Cooper for the damages to its bus.

Midwest and Tyler appealed from the judgments against them. Cooper appealed only from the adverse judgments in favor of the Williamses. Tyler and Midwest rely upon five points for reversal. Cooper asserts four. We will discuss those necessary to our decision on these appeals, together with any which may be pertinent on the retrial ordered.

The first ground for reversal urged by Tyler and Midwest is the failure of the trial judge to direct a verdict in their favor. The evidence showed that Cooper was driving a Chevrolet automobile east on Highway No. 64 and that the bus was going west when they collided on a sharp “S” curve on a steep hill about six miles west of Ozark. There is actually a series of three sharp curves in close succession. After the collision, skid marks, debris and dirt were found over an area covering five or six feet on the pavement, centered about two feet north of the center line, with pieces scattered over the line.. The Chevrolet, a total loss, was found 192 feet east of the debris in the highway, severely damaged on the left side from front to rear. The bus sustained damage to the left front and left side. The damage to the left front extended from a point about six inches to one foot left of the front headlight to the left corner and that to the left side extended from this corner three or four feet toward the rear of the bus. There were a white center line and double yellow lines extending the entire distance of the curve and hill. Skid or “scuff” marks on the pavement extended a distance of 12 feet from the south lane across the center line into the westbound lane where the debris was lying. There were no other skid marks. The curve in the direction in which the bus was traveling was to its left. For eastbound traffic there is a fairly “steep” curve, to the right just before the point where this collision occurred. The investigating officer testified that scuff marks are generally caused by rear wheels of a vehicle and result from a cutting of its wheels while it is proceeding around a curve at a high fate of speed so as to cause the vehicle to slide. The bus was found by the officer 50 feet from the debris but the driver had pulled the bus up and backed it off the highway before his arrival.

Jéff Williams testified that he was watching traffic as he sat in the second seat back of the driver. His wife was asleep in the seat beside him. While he estimated the speed of the bus to be between 70 and 75 miles per hour at the time of the collision, his estimate was based entirely on the fact that the driver “had his motor revved up.” He did not know what gear the bus was in or whether it was going uphill or downhill or traveling on a level or straight stretch. After he saw the lights of the approaching car through the bus windshield, the collision happened so quickly he did not have time to do anything or say anything to his wife or even to brace himself. He knew that either the bus or the car was over too far, but he couldn’t tell which. He further testified that for a time before the collision, he could not see the terrain or telephone poles out the window. Earlier he had been able to see “passing lights” along the way and the bus was passing them pretty fast. He had no way-of knowing how fast the car was coming, but he said that it was at a high rate of speed and its headlights “came up there pretty quick.” After he felt a bump and heard a noise, he saw Tyler wrestling with the wheel trying to get the bus stopped. There is some uncertainty whether his estimate of the distance required to stop the bus after the collision was 30, 40 or 50 feet, or 30', 40 or 50 steps. He could only see the back of the head and shoulders" of the driver before the impact, but Tyler was looking out the front of the bus and his head was straight ahead. He could only guess that' a lookout was being kept ahead because the driver followed the road from Morrilton to this point past Ozark.

Since these appellants offered evidence after their original motion for a directed verdict was overruled, we must give consideration to any such evidence as may be favorable to appellees in determining whether a verdict should have been directed at the conclusion of all the evidence. Ft. Smith Cotton Oil Co. v. Swift, 197 Ark. 594, 124 S. W. 2d 1. In addition to the testimony of Tyler, these appellants offered that of two passengers on the bus as to the cause of the collision. These witnesses located the bus in its proper lane at all times. One of them was sitting on the front seat with a clear view of the road ahead. He testified that the speed of the bus could not have been over 50 miles per hour and that the Cooper vehicle was only 50 or 60 feet ahead and two or three feet over the center line when he observed it. It appeared to him at first that the Cooper car would get back. He further stated that the lapse of time from the time he saw the car until the impact was “very, very fast, a couple of seconds.” He said-there wasn’t really enough time for the driver to do anything but the driver did try to get out of the way the last second. The other passenger said that the bus was going uphill at a speed which could not have been over 50 miles per hour.

Tyler estimated his speed -at 40 to 45 miles per hour and that of the Cooper car at 80. Cooper estimated his own speed at 45 miles per hour coming downhill and that of the bus at 60. Cooper first saw the bus when it was 8 or 10 car lengths from him just prior to going into a curve. He said that when he first saw the bus, it looked as if the driver was setting himself up for the curve, cutting over to his left some. Cooper thought that his own car was pretty close to the center line, but did not feel that it was across it. He stated that “apparently the bus was over the center line.”

Appellees’ contention that the evidence presented a jury question is founded entirely upon the basis that the evidence as to speed of the bus was controverted. The necessity for so confining their argument is obvious, because reasonable minds could not have come to any conclusion except that the Cooper car was at least across the center line when it came into the vision of the bus driver so suddenly and at such a short distance away that Tyler was helpless to do anything to avoid the collision. A directed verdict in favor of Midwest should have been granted, since whether the bns was going 45 miles per hour or 70 miles per hour, its speed could not have been a proximate cause of appellees’ injuries. According to the testimony most favorable to appellees, the vehicles became visible to each other at a distance of approximately 100 feet. Assuming that Tyler saw the dangerous situation at the first possible moment, he would still not have had sufficient time,to avoid the collision, or even to react, as the vehicles were approaching each other at a speed of at least 132 feet per second. Thus the testimony of Jeff Williams as to speed would not afford a sufficient basis to support a jury verdict against these appellants for failure to exercise that degree of care with which' they are charged. It is clear that a verdict should have been directed in favor of Midwest for the reason that reasonable minds could only conclude that there was no breach of the duty to exercise the highest degree of care. Where, as here, reasonable minds can only come to one conclusion, we have no alternative to a reversal of the lower court on this point. Kansas City Southern Ry. Co. v. Bull, 120 Ark. 43, 179 S. W. 172; Huffman Wholesale Supply Co. v. Terry, 240 Ark. 399, 399, S. W. 2d 658. Since the ease has been fully developed in this respect, it will be dismissed as to Tyler and Midwest, so we need not consider other points raised by them.'

We also find it necessary to reverse the trial court on appellant Cooper’s contention that the court erred in instructing the jury to consider future medical expenses, future loss of earnings, and permanent disability as elements of damages to appellees. The' only evidence relating to any of these elements was. the testimony of Dr. Thomas H. Hickey, who examined and treated appellees and testified in their behalf. While Dr. Hickey stated that he thought Mr. Williams had a permanent disability resulting from this accident, he repeatedly and persistently stated that he would prefer that a greater period of time elapse before he was called upon to state an opinion as to the extent of this disability. After stating his estimate, based upon the time that had elapsed, he stated that this percentage might change as time passed. He was unable to tell how long Mr. Williams would require treatment. On cross-examination he agreed that it was really too early to base an accurate medical opinion as to any permanent partial disability and that whatever opinion he stated would be a sort of qualified medical guess.

With reference to Mrs. Williams, the doctor stated that in his experience a cervical sprain injury, suffered by Mrs. Williams, would he fairly permanent if healing did not occur by 9 to 12 months. (The trial was approximately three months after the collision.) He also stated that a greater period of time should elapse before an evaluation of her disability was made. He said that he would prefer for the healing period to end in order to give an accurate medical opinion as to the possibility of her permanent disability and that there w;as a possibility that she would not have any. On cross-examination he stated that his evaluation was a medical guess on his part.

Finally, on cross-examination, these questions and answers were propounded and given:

“Q. Now, in order to properly evaluate their condition, particularly with reference to a medical certainty, don’t you feel professionally that you need additional time?
A. I do.
Q. And is it not true, Doctor, that any evaluation which you now make in the absence of the opportunity for additional treatment and examination is pure speculation?
A. It is speculative.”

In Missouri Pacific Transp. Co. v. Kinney, 199 Ark. 512, 135 S. W. 2d 56, this court said of these elements of damage:

“Before such a recovery can be allowed, the permanency of the injury must be made to appear from the evidence with reasonable certainty and that future pain and suffering are inevitable and if they appear to be only probable or uncertain they cannot be taken into the estimate.”

The court also quoted from the opinion in St. Louis, I. M. & S. Ry. Co. v. Bird, 106 Ark. 177, 153 S. W. 104, as to the propriety of the jury’s considering such elements upon evidence of this nature. A part of this quotation is:

“The experts on behalf of appellee did not testify that, in their opinion, the injury to Wharton Bird was permanent. It was a matter of speculation with them as to whether it was permanent or not. This being true, it must also have been only a matter of conjecture with the jury. But to fulfill the requirements of the law there must be affirmative testimony to the effect that the injury was permanent before the jury would be authorized to find that such was the fact; and the court should not allow the permanency of the injury to be considered as an element of damage, where the witnesses themselves are uncertain as to whether there would be any permanent injury, and where the nature of the injury, per se, does not show that the injury was permanent. ’ ’

If there is any difference in the medical testimony here and that in the Kinney case, the testimony there may have been less speculative. The testimony here falls far short of establishing these elements of damage to the extent required, particularly in view of the fact that both appellees were said by the physician to have had virtually identical symptoms prior to the collision.

We are unable to even estimate to what extent the jury considered these elements in their liberal assessment of damages, so the case will have to be remanded for retrial as to Cooper’s liability.

In view of this disposition, we need only mention one other point relied upon by appellant Cooper, since there is a possibility that the identical situation might arise. Cooper contends that the trial court erred in admitting testimony by him that he forfeited bond on a traffic violation charge arising out of this occurrence in violation of Ark. Stat. Ann. § 75-1011 (Supp. 1965). The testimony given, however, was not strictly responsive to a question asked Cooper on cross-examination. In answering a proper question as to whether he pleaded guilty to driving his car over the center line, Cooper responded: “Yes. I forfeited bond.” A plea of guilty to the charge would have been a declaration against interest, and interrogation of Cooper about it was permissible. Harbor v. Campbell, 235 Ark. 492, 360 S. W. 2d 758. Objection made, on behalf of Cooper, to the question was properly overruled. The court was not called upon by this appellant to make any ruling upon the voluntary answer given by appellant, to give any admonition to the jury, or to dó anything at all, so no error was committed by the trial court. Furthermore, appellant cannot complain of errors which he himself committed. Wallace v. Collins, 5 Ark. 41, 39 Am. Dec. 359; Sithen v. Murphy, 12 S. W. 497 (Ark. 1889); Scott v. McCraw, Perkins & Webber Co., 119 Ark. 133, 177 S. W. 901; Rinehart & Gore v. Rowland, 139 Ark. 90, 213 S. W. 17; Withem v. State, 175 Ark. 453, 299 S. W. 739; Jones v. State, 204 Ark. 61, 161 S. W. 2d 173; Burton v. State, 204 Ark. 548, 163 S. W. 2d 160.

Reversed and dismissed as to Tyler and Midwest Bus Company. Reversed and remanded as to Larry Cooper.


source: Caselaw Access Project

author: John A. FoglemaN, Justice. George Rose Smith, Justice,

license: Public Domain

text:
    Senator Virgil T. FLETCHER v. Felly BRYANT, Secretary of State Lytle Claremont BABER et al, intervenors
    5-4367
    422 S. W. 2d 698
    Opinion delivered January 15, 1968

      Warren & Bullion, for petitioner.

      Joe Purcell, Attorney General; William R. Hass and Henry Ginger, Asst. Atty. Gens., for respondent.

      Owens, McHaney & McHa/ney, for intervenors.
   John A. FoglemaN, Justice.

This is an original proceeding under Amendment No. 7 of the Constitution of Arkansas in -which the petitioner, Virgil T. Fletcher, questions the sufficiency of a petition to refer Act 306 of 1967, entitled “ The Arkansas Dairy Industry Stabilization Act.” Petitioner asserts four separate points upon which he relies. "We will discuss these in the order in which he raises them. Since three of the four points relate to the sufficiency of the ballot title contained on the petition and approved by the Attorney General, we deem it advisable that the title be set out here. It is as follows:

BALLOT TITLE
An Act creating the Arkansas Dairy Commission consisting of five members appointed by the Governor, prescribing their qualifications, compensation, and terms of office; authorizing the employment of an Executive Director, attorney, and other employees; authorizing the Commission generally to supervise, investigate, and regulate the entire dairy industry engaged in processing, manufacturing, storing, distributing, and selling milk products (including fluid milk) and frozen dairy products, except health regulations, and to require certain processors to pay to the Commission equalizing charges as therein determined; requiring each dairy-farmer processor, processor, wholesale and retail distributor, retailer, and institution to obtain a license from the Commission for each place of business and pay a license fee; requiring licensees to maintain records and make reports; authorizing and, in certain classes of sales (including sales to consumers), requiring the Commission to establish minimum prices for sales of milk products (including fluid milk) and frozen dairy products in distribution marketing areas, after prescribed investigations, hearings, considerations, and requirements; requiring processors and distributors to file the uniform wholesale price at which certain products, the minimum price for which is not established by the Commission, will be sold by each such licensee; prohibiting ■ the sale of milk products (including fluid milk), frozen dairy products, and other frozen products below established minimum prices or at variance from filed prices; providing for rules of practice, public hearings and procedures, public notice, and judicial review relating to quasi-legislative and adjudicatory functions of the Commission, including issuance, denial, or suspension of licenses; authorizing action to enjoin violations; providing for assessments against processors and certain other licensees based on sales and in an amount not to exceed five cents per hundredweight on all milk or milk equivalent; providing that all license fees, assessments penalties and other monies received by the Commission be paid into a revolving fund to be used for the administration and enforcement of the Act, no expense to be a charge against State funds; the same being Act 306 of 1967.

In determining the sufficiency of this ballot title, we will keep in mind that we give a liberal construction and interpretation of the requirements of Amendment 7 in order to secure its purposes to reserve to the people the right to adopt, reject, approve or disapprove legislation. Coleman v. Sherrill, 189 Ark. 843, 75 S. W. 2d 248; Armstrong v. Sturch, 235 Ark. 571, 361 S. W. 2d 77. Actions of electors in seeking to exercise this right must not be thwarted by strict or technical construction. Reeves v. Smith, 190 Ark. 213, 78 S. W. 2d 72; Cochran v. Black, 240 Ark. 393, 400 S. W. 2d 280. For this reason, substantial compliance with the requirements of the amendment is sufficient. Blocker v. Sewell, 189 Ark. 924, 75 S. W. 2d 658.

We must also remember that a ballot title is sufficient if it identifies the proposed act and fairly alleges the general purpose thereof, and it need not be so elaborate as to set forth details of the act. Coleman v. Sherrill, 189 Ark. 843, 75 S. W. 2d 248; Walton v. McDonald, 192 Ark. 1155, 97 S. W. 2d 81; House v. Brazil, 196 Ark. 602, 119 S. W. 2d 397. The rule of liberal construction applies to determination of sufficiency of the ballot title. Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884.

Some significance must be given to the fact that the Attorney General has approved it, pursuant to Ark. Stat. Ann. § 2-208 (Repl. 1956). In considering the weight to be given to the approval of the Attorney General on the ballot title, it is to be noted that neither Amendment No. 7 nor enabling legislation thereunder [Act No. 2 of the Extraordinary Session of 1911 and Act No. 195 of 1943] makes any specific mention of the ballot title as a part of a referendum petition. On the other hand, a ballot title is specifically required to be a part of an initiative petition. Considerable distinction can be made in the emphasis on the ballot title on a newly proposed legislative measure and that on one which has been adopted by the -General Assembly. Ón a referendum petition the voters are asked to reject a measure officially adopted and published as an act of the legislative branch. The petition, to be sufficient, must adequately identify the act in question. On an initiative petition the voters have no way to be informed except by the publication of the proposed measure which usually would take place sometime later than the publication of acts of the General Assembly. The courts of other states have spoken of the presumptions arising from the approval of ballot titles by those charged with that responsibility. We quote from the opinion in Say v. Baker, 137 Colo. 155, 322 P. 2d 317, as follows:

“The action of the statutory board empowered to fix the ballot title and submission clause is presumptively valid, and those who contend to the contrary must show wherein the assigned title does not meet the statutory requirement. No such showing is made in the instant case.
In a carefully considered opinion written for a unanimous court, the Supreme Court of California had occasion to consider a title fixed by the attorney general pursuant to a statute, and expressed this principle in clear language as follows:
‘In approaching the question as to whether the title so prepared is a proper one all legitimate presumptions should be indulged in favor of the propriety of the attorney-general’s actions. Only in a clear case should a title so prepared be held insufficient. Stated another way, if reasonable minds may differ as to the sufficiency of the title, the title should be held to be sufficient. These rules of construction are in accord with the fundamental concept that provisions relating to the initiative should be liberally construed to permit, if possible, the exercise by the electors of this most important privilege.’ Epperson v. Jordan, 12 Cal. 2d 61, 82 P. 2d 445, 448.
From this principle it further follows, as the Oregon court remarked in Wieder v. Hoss, 143 Or. 122, 21 P. 2d 780, 781, that:
‘The mere fact that after an appeal has been taken and we have had the benefit of the additional labor bestowed upon the ballot title by counsel we may be able to write a better ballot title than the one prepared by the Attorney General constitutes no reason for discarding his title. The purpose of the appeal is not to secure for the bill the best possible ballot title, but to eliminate one that is “insufficient or unfair,” if it should develop that the one submitted by the Attorney General is of that kind.’ ”

There is a clear implication that the General Assembly intended that presumptions as to sufficiency of a ballot title approved by the Attorney General favor the sponsors of a referendum petition inasmuch as the act (Ark. Stat. Ann. § 2-208, adopted in 1943) specifically provides for relief to them, but not to opponents, by petition to this court.

With these principles in mind, we now proceed to separate statement and discussion of points urged by petitioner.

POINT I.

The petition was fallacious and void in that it falsely advised the prospective signer that Act 306 became a law on March 13, 1967.

■Section 17 of the Act provides that it shall become effective July 1, 1967, and expire June 30, 1969. The referendum petition, in describing the act, contained the following language:

“We, the undersigned, legal voters of the State of Arkansas, respectively order, by this, our petition, that Act 306 of the General Assembly of the State of Arkansas, which became a law on March 13, 1967, * # # ? y

Petitioner contends that there is no legal justification for the statement that the act became a law on March 13, 1967, so that the inclusion of this language* must necessarily have been for the purpose of confusing and deceiving prospective signers. In support of his argument, petitioner relies on language in decisions of this court wherein the effective date of acts not containing an emergency clause was in question. In the opinions in some of these cases there is language stating that the particular act did not become a law until ninety days after adjournment of the session of the General Assembly during which it was enacted. Perhaps a more accurate statement would have been that the particular act did not go into effect or become operative as a law until ninety days after the adjournment of the legislature, as was said in most of these decisions. See, e. g., Arkansas Tax Commission, State ex rel. v. Moore, 103 Ark. 48, 145 S. W. 199; Gaster v. Dermott-Collins Road Improvement District, 156 Ark. 507, 248 S. W. 2; School District No. 41 v. Pope County Board of Education, 177 Ark. 982, 8 S. W. 2d 501; State v. Davis, 178 Ark. 692, 11 S. W. 2d 479; Dulaney v. Continental Life Ins. Co., 185 Ark. 517, 47 S. W. 2d 1082; Gentry v. Harrison, 194 Ark. 916, 110 S. W. 2d 497; Steele v. Gann, 197 Ark. 480, 123 S. W. 2d 520, 120, A. L. R. 754; Fulkerson v. Refunding Board, 201 Ark. 957, 147 S. W. 2d 980; Schumam v. Walthour, 204 Ark. 634, 163 S. W. 2d 517; Barber v. State, 206 Ark. 187, 174 S. W. 2d 545; Knowles v. Vick Chemical Co., 240 Ark. 125, 398 S. W. 2d 204.

This language is justified in view of the fact that Amendment No. 7 provides that where a separate “emergency” section of a measure receives the required vote “in favor of the measure going into immediate operation, such emergency measure shall become effective without delay.” Other language in this section provides that the filing of a referendum petition against one or more parts of an act “shall not delay the remainder from becoming operative.” It is also provided that: “Any measure referred to the people by referendum petition shall remain in abeyance until such vote is taken.” [Emphasis ours] Thus, it will be seen that the question is not whether the act is a law, but whether it is operative or effective as such.

The form of a petition for referendum is prescribed by Ark. Stat. Ann. § 2-204 (Repl. 1956) (Section 2 of Act 2 of the Extraordinary Session of 1911). This section sets out a form, which is not mandatory but which must be substantially followed. See, also, § 2-207. The portion of the form for describing the measure to be referred reads: * * ..Act No.of the General Assembly of the State of Arkansas, approved on the.day of.-., 19., entitled ‘An Act .* * *’ ” Thus, it is obvious that the general form was prepared so as to be appropriate under the usual circumstances when the measure has been approved by the Governor. This measure was not approved by the Governor, however, and became law without his signature. The purpose of specifying the act number and date is to aid in identification of the measure of which referral is sought. Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356. In order to properly identify the measure, it then became necessary that there be substituted for the date of approval whatever date most nearly corresponded with the date of approval under the usual circumstances when the measure has been that on which the measure became a law without the Governor’s signature. Under our Constitution it could be said that it became a law, in this sense, on March 13, 1967. Article 6, § 15, provides, in pertinent part:

“If any bill shall not be returned by the Governor within five days, Sunday excepted, after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the General Assembly, by their adjournment, prevent its return, in which case it shall become a law, unless he shall file the same, with his objections, in the office of the Secretary of State and give notice thereof by public proclamation within twenty days after such adjournment.”

The challenged statement on the petition is not clearly erroneous, but, even if it were, this court has held that errors in giving the act number and date of approval cannot be misleading when an exact copy of the act appeared upon the petition, as is the case here. Westbrook v. McDonald, 184 Ark. 740, 43 S. W. 2d 356.

POINT II.

The ballot title is defective and insufficient in that it omits any reference to that portion of the act which requires the Commission to prohibit discounts, rebates, and allowances.

The ballot title is quite lengthy, as is the act. Petitioner argues that the title omits the “very heart” of the act and alleg-es that the fundamental and basic reason underlying the passage of the act was the prevention of rebates, secret discounts and allowances and cloaks and devises to shield and hide rebates. This court has indicated that a ballot title of unusual length might be objectionable. Leigh v. Hall, 232 Ark. 558, 339 S. W. 2d 104. The title should state the purposes of the act as concisely as possible. Reynolds v. Hall, 222 Ark. 478, 261 S. W. 2d 405. A complete abstract of the act to be referred would be impracticable. Coleman v. Sherrill, 189 Ark. 843, 75 S. W. 2d 248; Leigh v. Hall, supra. Neither an abstract nor a synopsis is required. Sturdy v. Hall, 204 Ark. 785, 164 S. W. 2d 884. In addition to identification of the measure, the only requirements are that the title be intelligible, honest and without misleading amplification, omission or fallacy and without partisan coloring. Newton v. Hall, 196 Ark. 929, 120 S. W. 2d 364; Bailey v. Hall, 198 Ark. 815, 131 S. W. 2d 635; Sturdy v. Hall, supra; Washburn v. Hall, 225 Ark. 868, 286 S. W. 2d 494.

Petitioner claims that Section 10 of Act 306 is not covered by the title and calls attention to the.fact that 13 practices are prohibited as cloaks or devices to shield and hide rebates, discounts and allowances. If this is the “very heart” of the act, it seems strange that the prohibition of rebates, discounts and allowances is nowhere mentioned in either the title of the act or the title of the section. The title of the act is:

ACT 306
AN ACT to Create an Arkansas Dairy Commission for the Purpose of Stabilizing the Arkansas Dairy Industry; to Provide for Staffing the Commission and to Relate its General Powers and Authority to Make Investigations, Inspections, and' to Require Licenses; to Establish Minimum Prices for Sales of Milk Products and Frozen Dairy Products; to Authorize the Commission to Prohibit the Sale of Milk Products and Frozen Dairy Products Below Minimum Prices or at Variance with Filed Prices and to Relate the Quasi-Legislative and Adjudicatory Functions of the Commission; and for Other Purposes.

The title of Section 10 is:

PROHIBITION. AGAINST ¡SALES' OF MILK PRODUCTS, FROZEN DAIRY PRODUCTS, AND OTHER FROZEN PRODUCTS' BELOW MINIMUM PRICES OR AT VARIANCE FROM FILED PRICES

The 13 practices which petitioner says are prohibited are listed under Subsection B of Section 10, the opening paragraphs of which are:

B. .PROHIBITION OR REGULATION OF OTHER ACTIVITIES IN CONTRAVENTION OF PRICING REQUIREMENTS
The use or attempted use of any method, device or transaction intended to accomplish, or having the effect of accomplishing, the sale or attempted sale or the purchase or attempted purchase of milk products and frozen dairy products at less than the minimum prices established by the Commission pursuant to this Act for sales of such milk products and frozen dairy products, or which is designed to circumvent the price requirements of the Commission (including those provided for in Section 9 of this Act), or which has the effect of substantially undermining the effectiveness of such pricing requirements, shall be prohibited or regulated by the Commission, whether such method, device or transaction applies directly to the milk product or frozen dairy product sold or purchased, or is used in connection with the sale or handling of any other product, commodity, article, or service.
The Commission shall, subject to the requirements of the preceding paragraphs, prohibit or regulate each of the following practices, which said practices are listed herein solely for the purpose of illustrating the broad scope of the Commission’s authority under this Section. Such listing is not intended to be an exclusive enumeration of those practices, methods, devices, schemes, arrangements and activities which the Commission is authorized to prohibit or regulate: [Here follows a list of 16 sepae-rate topics.]

Subparagraphs (14) (15) and (16) do not prohibit any practice but rather provide for various situations in the absence of established minimum prices. Among these are provisions for granting of certain limited discounts or allowances. Other sections of the act permit or require certain discounts. 'Sections 8 G. and 8 H. (9) (b). Even in those subparagraphs of Section 10 B., lifting prohibited practices, the Commission to bé established under the act could authorize discounts and allowances. See Section 10 B. (1).

It seems clear from a reading of the act that any prohibition against rebates, discounts and allowances is intended to prevent evasion of minimum prices established by the Arkansas Dairy Commission. The statement in the ballot title with reference to the general subject of minimum prices seems to be sufficient.

POINT III.

The ballot title is defective and insufficient and is drafted in a partisan manner in that it informs the voter of a license fee requirement without stating the insignificant amount thereof.

Petitioner contends that the .title/is insufficient in that it advises that each dairy farmer, processor, wholesale distributor, retailer or institution must apply to the Commission for a license, but fails to state that the fee is only $1.00. Again we note that the legislative title likewise makes no reference to the amount- of. the license fee. It is not required that the ballot title set forth every detail of the act. If it were so, the requirement of publication of the measure might well be omitted. Coleman v. Sherrill, 189 Ark. 843, 75 S. W. 2d 248. Actually, the license fee is limited to $1.00 only for licensees who perform only one licensed function or have only one place of business. A license is required for each function and each place of business. Furthermore, the license fee would be paid -annually. The act would also permit the payment of not to exceed $500.00 per day by the licensee for each day his license would otherwise be suspended by action of the Commission. The $1.00 fee would only open the door for the processor who was licensed and the licensee who. sold products not processed within the State because they would then become subject to an assessment by the Commission for whatever amount was necessary to obtain funds and reserves for administration and enforcement, not to exceed five cents per hundredweight on all milk and milk equivalent. The already lengthy ballot title would be considerably extended if these explanations were made.

In Coleman v. Sherrill, 189 Ark. 843, 75 S. W. 2d 248, it was held that a ballot title describing a proposed initiated act as one to fix the salaries and expenses of county officers, to fix the manner in which such compensation and salaries should be paid, to reduce the cost of county government, and for other purposes, was sufficient. Among the matters dealt with in that proposal which could not be ascertained from the title were:

1. Provision for creation of the new office of custodian of county buildings at a salary of $50.00 per month.

2. Separation of the offices of sheriff and collector so that they would be held by two persons rather than one.

3. The sheriff would be on a fee and not a salary basis, and the county, in addition, would be required to furnish him with bedding, clothing, medicine and medical treatment for prisoners.

4. The collector would be allowed penalties and fees on delinquent taxes, in addition to his salary.

These matters were treated as details not necessary to be stated.

We find the ballot title sufficient without specification of the amount of license fees provided therein.

POINT IV.

The ballot title is defective and insufficient in that it omits to inform the voter that the act expired by its own terms in two years from the effective date.

Here again, it is significant that the fact 'that the act would expire by its own terms on June 30, 1969, unless re-enacted by the General Assembly, is not remotely referred to in either the title of the act or the title of the section so providing. The section title is only “EFFECTIVE DATE.” While it is not necessary that the title of a legislative act be as full as that of an initiated act or the ballot title for a referendum, it seems that the careful draftsmen of the bill which became Act No. 306 emphasized the items which were important. This omission seems particularly relevant in view of the fact that the act is prefaced by a complete “Table of Contents” with page references to all sections and subsections listed by their respective titles. Similar omissions from titles of legislative acts have been considered in states whose constitutions require that the subject of a legislative enactment- be stated in its title. These decisions are persuasive because the purpose of the adoption of the constitutional provisions was to prevent enactment of laws under false and misleading titles which would conceal from legislators or the people the true nature of a proposed law or of particular provisions therein. 50 Am. Jur. 145, Statutes, § 166; 82 C. J. S. 350, Statutes, § 212. The omission of any reference to an emergency clause mating an act effective immediately has been held not to make the title insufficient. Hill v. Taylor, 264 Ky. 708, 95 S. W. 2d 566. The language of the Kentucky court seems appropriate here in view of the fact that the emphasis of our decisions is on the treatment of the general subject matter in a ballot title. That court said:

“(a) Section 51 of the Constitution restricts legislative enactments to one subject which ‘shall be expressed in the title.’ Appellants rely upon the construction, often declared, that the title of an act must fairly and reasonably indicate its substance so as to impart notice of what it proposes to deal with. The time an enactment becomes operative as a law is not a part óf the subject-matter. It is not neces-sarjr, therefore, under the Constitution that the title of an act should contain a statement to the effect that it is an emergency measure, or that the enactment is emergent. While the specific question is res integra with us, the validity could well he sustained upon numerous cases to the effect that details of an act need not be recited in the title. Talbott v. Laffoon, 257 Ky. 773, 79 S. W. (2) 244. Where the question has been specifically passed upon, the uniform holding, so far as we are aware, has been that there need be no reference in the title of an act. 59 C. J. 808; Dinneen v. Rider, 152 Med. 343, 136 A. 754; State v. Smith, 49 S. D. 106, 206 N. W. 233; Wheelon v. South Dakota Land Settlement Board, 43 S. D. 551, 181 N. W. 359, 14 A. L. R. 1145; State v. Howell, 106 Wash. 542, 181 P. 37; People v. Sterling Refining Co., 86 Cal. App. 558, 261 P. 1080.”

In Dinneen v. Rider, cited in the Hill case, the Maryland court said that the time an act became effective was not its subject matter. In the Wheelon and Smith cases, the South Dakota court said that the time at which an act is to go into effect is no part of its subject. In the Howell case it was held by the Washington court that a statement of the time when an act takes effect does not change, or have any reference to, either the scope or object of an act.

The time when an act might go out of effect seems no more essential to a statement of the general subject of the act or its scope than the time it goes into effect. The actual provision which petitioner contends should be referred to in the title is that the act shall expire June 30, 1969, unless re-enacted by the next regular session of the General Assembly. Thus, the act may be temporary or permanent, depending- upon the action of the next regular session of the General Assembly. Of course, any act of the legislative branch might be rendered ineffective by amendment or repeal at any subsequent session, general or special. The only difference is that positive action would then be required, while this act could become ineffective by mere inaction. It is interesting to recall that the original, temporary Arkansas Retail Sales Act was made “permanent,” insofar as a legislative act can be permanent, by repealing the section which provided: “This act will expire by limitation July 1, 1939.” Act 306 of 1967 could be made “permanent” by this same expedient in a legislative session in 1968 or the first half of 1969 without re-enactment of the entire act. While this possibility is not determinative here, it does demonstrate that “effective dates ’ ’ are not essential to sufficient ballot titles.

CONCLUSION

We find that Act 306 is adequately identified and its general purposes are fairly stated. A liberal construction requires that we not thwart the right of the voters to approve or disapprove a measure because of deficiencies of the nature of -those asserted by petitioner where the ballot title has been approved by the Attorney General.

The petition is denied.

George Rose Smith and Brown, JJ., dissent.

George Rose Smith, Justice,

dissenting. The majority, in following out-of-state decisions with respect to the weight to be given to the Attorney General’s approval of the ballot title, have attached more importance to that officer’s approval than we have, given to it in the past or, in my judgment, we should now give to it. The requirement that state-wide petitions be submitted to the Attorney General for approval is merely a statutory device intended to be of assistance to the sponsors of the petition. The Constitution contains no such provision. Instead, Amendment 7 declares that the sufficiency of state-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by this court. I do not think we ought to diminish our own constitutional responsibility by giving some sort of prima facie verity to tire Attorney General’s approval of tlie ballot title. Our decision should rest on the merits alone, without regard to the Attorney General’s conclusion.

In my opinion the ballot title now in controversy is fatally defective in failing to inform the voter that the act is a temporary measure that will expire ip. two years unless re-enacted by the legislature. Beyond question that is the strongest single point in favor of the act. We all know from experience that both the legislature and the electorate are moré inclined to favor temporary measures, as tentative experiments in governmental regulation, than they are to favor similar statutes of a permanent nature. It cannot be doubted that many voters might be willing to try this venture in the touchy area of price control merely as a laboratory test, while those same voters would be wholly opposed to the measure as a permanent innovation. I cannot agree with the majority’s view that the opponents of the act have discharged their obligation to draft an impartial ballot title when it is plainly apparent that they have suppressed any reference to the most important single fact in favor of the statute.

It seems hardly necessary to comment upon the court’s reliance upon cases having to do with the effective date of initiated or referred measures. Such cases have no real bearing upon the present question. Whether an act goes into effect upon its approval by the governor or ninety days after the legislative adjournment is not apt to affect any voter’s approval or disapproval of the measure. No comparable statement can be made about the inherently vital distinction between temporary and permanent legislation.

BrowN, J., joins in this dissent.

      We do not overlook the announcement of the court in Shepard v. McDonald, 188 Ark. 124, 64 S.W. 2d 559, that the ballot title submitted on a referendum petition must be considered as part and parcel thereof. Dictum in Washburn v. Hall, 226 Ark. 868, 286 S.W. 2d 494, also gives rise to an inference that this is so.


author: J. Feed JoNes, Justice.

text:
    Billy Ray HOBBS and Harold ANDERSON v. STATE of Arkansas
    5307
    422 S. W. 2d 849
    Opinion delivered January 15, 1968
    [Rehearing denied February 12, 1968]

      Larry R. McCord, for appellants.

      Joe Purcell, Attorney General; Bon Langston, Asst. Atty. Gen., for appellee.
   J. Feed JoNes, Justice.

Billy Ray Hobbs and Harold Anderson were charged on information filed by the prosecuting attorney and were found guilty by a jury in the Sebastian County Circuit Court of the- crimes of kidnapping and assault with intent to rob one Claud Knight. They were sentenced to five years in the penitentiary on the assault charges and to fifteen years on the kidnapping charges and they have appealed relying on thé following points for reversal:

“The trial court erred in refusing to grant the appellants’ Petition for a severance.
“The trial court erred in denying the appellants’ Motion for a new trial on the ground that the verdict and judgment were contrary to the law and evidence in this case.
‘ ‘The trial court erred in overruling appellants ’ objections to cross-examination of appellant Billy Ray Hobbs as to alleged particular wrongful acts.
“The trial court abused its discretion in refusing to reopen the case on behalf of appellants after the jury had been instructed but before they had retired to commence their deliberations.”

The facts, under the testimony produced by the state, are briefly these: About 8:00 p.m. on March 15,-1967, Claud Knight left the 400 Bar in Fort Smith where he had been drinking some beer. When he left the bar, he encountered the appellants just outside the bar and they followed him down the street. Knight became suspicious of the appellants and went into McCartney’s Cafe to avoid them. The appellants also went into the cafe and when Knight left the cafe, appellants followed him and forced him into an automobile by brandishing a pistol and by pushing and shoving him into the automobile. Anderson drove the automobile across the Arkansas River bridge toward Oklahoma, while Hobbs sat in the back -seat with Knight. While the automobile was on the bridge, Knight was trying to get out of the automobile and Hobbs severely beat Knight knocking out one or two of his teeth. Appellants took Knight into a wooded area on the Oklahoma side of the Arkansas River, robbed him of his money, glasses, pocket knife and watch, and then drove off and left him. Knight made his way to a beer tavern on the highway where the constable of Sequoyah County was called and the constable drove Knight to the police station in Fort Smith. While Knight was being questioned at the police station, the appellants were brought to the station as suspects in connection with a filling station hold up and Knight readily recognized and identified them as the ones who had kidnapped, assaulted and robbed him.

The officers found Knight’s glasses and driver’s license in a station wagon described by Knight, and claimed by the father of appellant Anderson. They also found a pistol under the porch at Hobbs’ home, and also found one of Hobbs’ shirts bearing human blood stains in Hobbs’ house where he lived with his mother.

Hobbs testified at the trial in his own defense. He admitted that he and Anderson took Knight into Oklahoma, but contended that it was at Knight’s request. He testified that Knight and one Frank Gibson were in company with a woman by the name of Romana Gilliam; that Knight offered to purchase some beer for the appellants if they would drive Knight, Gibson and the Gilliam woman -over into Oklahoma; that the beer tavern in Oklahoma was closed and that by prearrangement, the appellants drove onto a side road and walked away from the automobile leaving Knight and Gibson in the automobile with the Gilliam woman; that somehow Gibson obtained possession of Knight’s billfold and that when Knight attempted to retrieve his billfold from Gibson, a fight ensued between Knight and Gibson; that Gibson knocked Knight down into the ditch, and that he and Anderson helped Knight to his feet but that when Knight started to get back into the automobile, lie was shoved back into the ditch and they drove back to Fort Smith leaving Knight in the ditch. Hobbs explained that the pistol found under his front porch belonged to Gibson and that he had been unable to locate Gibson or the Gilliam woman as witnesses.

As to the first point urged by the appellants, Ark. Stat. Ann. § 43-1802 (Repl. 1964) provides that when two or more defendants are jointly indicted “* * * for a felony less than capital, defendants may be tried jointly or separately, in the discretion of the trial court.” The appellants have shown no abuse of discretion in the trial court’s refusal to grant appellants’ petition for severance in this case.

We find appellants’ second point without merit. The jury evidently believed Knight’s version of what took place on the night of March 15, and we hold that the evidence was amply sufficient to sustain the convictions.

As to the third point, the appellant, Hobbs, was asked on cross-examination if he and Anderson had not robbed Roy Williams at a filling station after they had robbed Knight. The defense counsel objected to the question and the court admonished the jury as follows:

With this admonition, the trial court did not err in overruling appellants’ objections to this line of questioning on cross-examination. This same point was very recently before us on another appeal from the Sebastian County Circuit Court in the case of Wright v. State, 243 Ark. 221, 419 S. W. 2d 320, and in that case we said:

“This witness is on cross-examination and while he is not on trial for any other robbery the prosecution has the right to ask him questions going to his credibility as a witness so you may better pass upon his credibility simply as a witness. Whether you believe him or disbelieve him on the story that he’s told and the merits of the case for which he’s being tried. Objections overruled.
# # #
“The jury will understand now that this witness is not on trial for robbery of these other acts that he is being questioned on. The court permitting these questions to be asked simply to go to his credibility as a witness.”
“There are numerous decisions by this Court holding, in effect, that when a defendant takes the witness stand (as he did here) he is subject to the same rules of evidence and impeachment as other witnesses on cross-examination to test his credibility. Jordan v. State, 141 Ark. 504, 217 S. W. 788; Kyles v. State, 143 Ark. 419, 222 S. W. 458; Hays v. State, 219 Ark. 301, 241 S. W. 2d 266, and Edens v. State, 235 Ark. 178, 359 S. W. 2d 432.”

We hold that the trial court did not err in overruling appellants’ objections under point number three.

We find' no merit in the fourth point relied on by appellants. After the case was fully tried and the State and appellants had rested, and after the jury had received its instructions, the court directed the jury to retire and consider its verdict. At this point appellants ’ counsel requested the court to reopen the case for the introduction of 'testimony of a witness, who apparently had just been procured' by appellant Anderson’s father and brought into the court room for the purpose of offering testimony to corroborate appellant Hobbs’ testimony, that Knight, Gibson and the Gilliam woman got into the automobile with the appellants. The court refused to reopen the case for the introduction of this additional testimony. Appellants’ counsel objected to the court’s refusal and the objection was carried forward into appellants ’ motion for a new trial where it is asserted that the testimony the witness would have given constituted newly discovered evidence.

The reopening of a case for the taking of further testimony after the testimony on both sides has been concluded'and the cause has been submitted to the jury, is a matter within the sound discretion of the trial court, and this court will not reverse the ruling of the trial court unless it appears that the trial court, in making such ruling, has abused its discretion. Whittaker v. State, 173 Ark. 1172, 294 S. W. 397. We find no such abuse of discretion in the case at bar. Furthermore, the appellants did not exercise any degree of diligence at all in the production of the proffered evidence at the trial. No subpoena had been issued for the witness or served on him, and the record' is silent as to how long the proposed witness had been in the court room. Appellants’ own counsel had not even been advised of the name of the witness and had only been advised that ap-' pellant Anderson’s father had walked ten miles to get the witness. Certainly a subpoena could have beep. obT tained for this witness and the sheriff sent on his way to serve it in less time than it took appellant’s father to walk ten miles, had appellants advised their counsel that the presence of the witness was desired. Before the defense rested, the witness could have been called to testify if in the court room, or a motion for recess or continuance made if he was not, had appellants and their counsel deemed the testimony of the witness important to their case.

Finding no error in the trial of these cases, the judgments of the trial court are affirmed.

Affirmed.


author: J. Fred Jones, Justice.

text:
    Mrs. Robert L. ROGERS II et al v. STATE FARM INSURANCE COMPANY
    5-4397
    422 S. W. 2d 677
    Opinion delivered January 15, 1968

      Howell, Price & Worsham, for appellants.

      Bose, Meek, House, Nash & Williamson, for appel-lee.
   J. Fred Jones, Justice.

This appeal presents a rather unique question and tests the elasticity of coverage under an omnibus clause in an insurance policy.

Thq facts are these: After dark on January 4, 1963, a Mr. Brown’s automobile stalled while he was driving east on Highway 270, east of Hot Springs. A Mr. Blocker was driving his pickup truck in the same direction and came upon Brown and his stalled automobile. Brown flagged the Blocker pickup to a halt, and at Brown’s request, Blocker agreed to assist Brown in removing the stalled automobile from the blacktop pavement to the shoulder of the highway. Brown steered his own automobile and Blocker drove his pickup in pushing the ■Brown vehicle from the rear. Blocker had pushed the Brown vehicle about fifteen feet and both vehicles had stopped about three feet off the. pavement. Within a few moments after Blocker had stopped pushing the Brown vehicle^ a Mr. Moppin, driving his own automobile in the same direction as Blocker and Brown, veered to his left away from the Blocker and Brown vehicles and collided head-on with a station wagon occupied by Mr. and Mrs. Rogers and being driven west on the north side of the highway by Mrs. Rogers. Neither the Brown automobile nor the Blocker pickup were actually involved in the collision.

Mr. and Mrs. Rogers filed suits tor personal injuries against Blocker, Brown and Moppin. Blocker and Moppin filed answers but Brown did not. Mr. and Mrs. Rogers dismissed their complaints against Moppin and Blocker without prejudice, and took default judgments against Brown for $10,000.00 in favor of Mr. Rogers, and for $2,000.00 in favor of Mrs. Rogers.

Mr. and Mrs. Rogers were unable to collect the amounts of the judgments against Brown, so on February 14, 1966, they filed separ'ate complaints against the appellee, State Farm Insurance Company, alleging that State Farm had issued a liability insurance policy to Blocker; that Brown was an insured under the policy issued to Blocker, and that State Farm owed the amount of the judgments obtained against Brown. State Farm answered defying coverage for Brown under its policy to Blocker and denied that Brown had given notice of any claim made, or complaint filed, against him as was required of an insured under the provision of the insurance contract with Blocker.

The trial court, sitting as a jury, found that Brown was not an insured under the provisions of the policy issued to Blocker; that Brown did not comply with the notice provision in Blocker’s policy, and that State Farm did not waive the provision in the policy requiring notice. Judgment was rendered for State Farm and on appeal to this court, Mr. and Mrs. Rogers rely on the following point for reversal:

“Frank Brown being covered under the omnibus clause of a policy issued by appellee to Chester Blocker, and appellee having received sufficient notice and waiving the policy conditions as to formal notice, this cause should be reversed and judgment entered for appellants against appellee.”

State Farm had issued an insurance policy to Blocker on his pickup truck agreeing “to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages * * * caused by accident arising out of the ownership, maintenance or use, including loading or unloading, of the owned automobile. ’ ’

Appellants contend that Brown was an insured under the provision of Blocker’s policy which provides:

“ ‘Insured’ includes
(1). The named insured and,
# # #
(4). Any other person while using the owned automobile, provided the operation and the actual use of such automobile are with the permission of the named insured or such spouse and are within the scope of such permission. ...” (Emphasis supplied).

So the question presented to the trial court was whether Brown was using the Blocker pickup and was included as' an insured under this provision of Blocker’s policy, and was thus obligated to pay, on behalf of Brown, such sums as Brown was legally obligated to pay as damages caused by an accident arising out of the “ownership, maintenance or use . . .” of Blocker’s pickup. The question before us on appeal is whether there is any substantial evidence to sustain the trial court in holding that Brown was not such insured.

Brown’s legal obligation to pay is only evidenced by default judgments against him and the basis for his liability is obscured by the judgments, but having concluded that the trial court was correct in holding, that Brown was not an insured under the policy issued, to Blocker, we do not reach the lack of notice and waiver found by the trial court and we do not consider the argument of appellee on the question of liability on judgment without actual trial.

It is obvious to us that. Blocker was using his own pickup truck in pushing Brown’s automobile when the collision occurred, and that Brown was not using the Blocker vehicle within the meaning of the insurance •policy issued to Blocker on the pickup.

American Fire & Casualty Co. v. All-State Insurance Co., 214 F. 2d 523, cited by appellant, is readily distinguishable from the case before us. In the American Fire case, the insured had separate liability policies on his Chrysler automobile and his Jeep. He was driving the Chrysler and towing his Jeep behind his 'Chrysler when he crossed the center line of the highway with both vehicles and collided with another automobile. The liability carrier on the Chrysler settled all claims and sued for contribution from the liability carrier on the Jeep. The effect of the court’s holding was that under the terms of the policy on the Jeep, it was not necessary that the Jeep be operated on its own motor power in order for the insurance carrier to be liable under the policy.

Appellants candidly admit that “research has found only one case involving the pushing of one ear hy another, and it fails to cover the present case. ...” "We have reached the same results in our own research.

We recognize the distinction between the construction to be placed on an omnibus clause extending the coverage of an insurance policy and an exclusionary clause limiting or excluding coverage under a policy. We also recognize the modern trend to broaden coverage under omnibus clauses of insurance contracts, (Industrial Indemnity Co. v. Continental Casualty Co., 375 F. 2d 183) but liberal construction should not extend coverage under an omnibus clause, or restrict it under an exclusionary clause, beyond the plain words and obvious intent and meaning of the words used in the contract.

We apply the same reasoning in the case at bar as the court applied in the case of Great American Indem. Co. of New York v. Saltzman, 213 F. 2d 743, where the word “use” in connection with the use of an aircraft was being considered in interpreting ian exclusionary clause in a liability insurance policy, and the court said,:

“Of course if the term ‘use’ is construed to embrace all its possible meanings and ramifications, practically every activity of mankind would amount to the ‘use’ of something. However, the term-must be considered with regard to the setting in which it is employed. * * *
The court is convinced that the term ‘use’ as employed in the exclusionary clauses was intended to mean and does mean the ordinary use or employment of the property or aircraft.”

This same reasoning was again employed in Maryland Casualty Co. v. Turner, 235 Ark. 718, 361 S. W. 2d 646, where another exclusionary clause was involved, and in addition to employing the quote from the Saltz-man case, supra, this court said:

“The iword ‘Use’ is, to some extent, employed by insurance companies as a substitute for the phrase ‘care, custody, and control,’ in exemption clauses in liability policies.
“Therefore, approaching the construction of the phrase with common sense and practicality, we make use of the following quotations from Great American Indemnity Co. of N. Y. v. Saltzman, 213 F. 2d 743, which was a federal case applying Arkansas law.”

The phrase “while using” must be read in context with the remainder of the omnibus clause in determining whether or not Brown was an insured under the policy issued on Blocker’s truck in the case at bar. If Brown was using the Blocker vehicle, he was included as an. insured while so usmg the Blocker vehicle provided that the operation and actual use was with Blocker’s permission and (such operation and actual use) was within the scope of such permission.

In the case of Wiebel v. American Farmers Mutual Ins. Co., 140 A. 2d 712, Wiebel had used his automobile to push his neighbor’s automobile backwards from a driveway to the highway. The bumpers became engaged just before the car was pushed onto the highway pavement and Wiebel and the neighbor pushed the automobile onto the pavement by hand. An automobile traveling on the highway collided with the neighbor’s car. The question was whether Wiebel’s insurance carrier was obligated to defend under a policy clause requiring a defense where the suit arises out of ‘ ‘ the ownership, maintenance or use of the automobile.” In holding that defense was not required, the court said:

“Automobile insurance contracts protect against liability for accidents arising out of the ‘use’ of vehicles but they cannot be held to protect against liability for accidents where the use of the automobile was not' connected with the accident or the creation of a condition that caused the accident but merely with an unfinished project.”

In the case of Southern California Petroleum Corp. v. Royal Indemnity Co., 369 P. 2d 407, coverage under an omnibus clause of an independent contractor’s liability policy was being considered, and in that case the court said:

“It has been held that one employing an independent contractor may be using the vehicle of such independent contractor when such employer exercises supervisory control, at some time, over the vehicles or the movement thereof. The decisions recognize use as going beyond actual mechanical operation , of the vehicle and ‘as encompassing the broader concept of employing or putting the vehicle to one’s service by an act which assumes at any time — with the consent of the owner or his agent — the supervisory control or guidance of its movements.’ Woodrich Construction Co. v. Indemnity Ins. Co. of North America, 252 Minn. 86, 89 N. W. 2d 412. See, also, Persellin v. State Automobile Ins. Ass’n., 75 N. D. 716, 722, 32 N. W. 2d 644, 647; Hardware Mut. Cas. Co. v. Mitnick, 180 Md. 604, 26 A. 2d 393; Liberty Mut. Ins. Co. v. Steenberg Const. Co., 8 Cir., 225 F. 2d 294. But, absent the exercise of any supervisory control over the vehicle of an independeht contractor, the one employing such independent contractor is not a person ‘using’ such vehicle within the meaning of the omnibus clause, when the actual use thereof is by the named insured or its employees.”

The record is not clear whether the Blocker truck was actually engaged in pushing the Brown automobile at the time of the collision or not, but be that as it may, there is no evidence at all that Brown was directing or supervising the operation. We can reach no other conclusion from the language used in the omnibus clause of Blocker’s policy, than that operation and actual use of the Blocker vehicle by Brown was intended before coverage would extend to Brown and that Brown was not using Blocker’s vehicle within the scope of Blocker’s permission for the operation or actual use of the vehicle by Brown, or within the scope and intentions of the omnibus clause in Blocker’s policy.

Applying the common sense approach in the case at bar, if Brown was using Blocker’s pickup truck to the extent of' liability coverage as an insured within the meaning of the omnibus clause in Blocker’s insurance contract, we can see no end to coverage or limits to which it could be extended by the liberal interpretation of the phrase “while using.” Under.such construction, Brown might well have been an insured under Blocker’s policy had Blocker been hauling a sack of feed for Brown at Brown’s request. In such event, Blocker’s insurance carrier would be obligated to pay a default judgment against Brown, who might somehow be made á party defendant in a suit for damages growing out of the negligent operation of Blocker’s truck by Blocker alone, but while hauling the sack of feed as an accommodation to Brown.

We do not perceive this to be the intent or effect of the omnibus clause in Blocker’s insurance policy. The findings of the trial court are supported by substantial evidence in this case, and the judgment of the trial court is affirmed.

Affirmed.

FoglbmaN, J., not participating.

      It jvus stipulated that Mike Thomas and Allen Lee would testify that both vehicles were off the pavement and that Blocker would testify that he had ceased pushing the Brown automobile, and that both vehicles were off the pavement; Mr. Rogers testified that the two vehicles were partially on and partially off the highway and “barely moving.”


author: Conley Bybd, Justice. CarletoN Harris, Chief Justice,

text:
    Alvin BELL, Director et al v. Martha L. ADAMS
    5-4435
    422 S. W. 2d 691
    Opinion delivered January 15, 1968

      Ted R. Christy; Joe Purcell, Attorney General; William R. Hass, Asst. Atty. General, for appellants.

      Fletcher Long, for appellee.
   Conley Bybd, Justice.

Appellants Alvin Bell, Theo Money, John Cage and Walter L. Hinton, Jr., director and board members of the Arkansas Alcohol Beverage Control, appeal from a chancery court decision holding invalid Act 352 of 1939 because a majority of the Senate did not vote in its favor as required by Ark. Const, art. 5 § 22. The only point on appeal is that the chancery court did not have jurisdiction of the subject matter.

In her petition for declaratory judgment appellee, Martha L. Adams, stated that her request to move the location of her liquor permit from the city of Forrest City to a place outside thereof had been denied solely because of the prohibition against the location of liquor stores outside city limits contained in Act 352 of 1939. She alleged the act was invalid because the Senate Journal showed that a majority of the Senate did not vote for its passage as required by art. 5 § 22 of the Constitution when the vote of Hon. Paul Gutensohn—whom we held to be neither a de jure nor a de facto senator in Matthews v. Bailey, 198 Ark. 830, 131 S. W. 2d 425 (1939)—was not counted. Appellants’ response, in addition to the admission and denial of certain facts, affirmatively prayed for a determination of the constitutional validity of the act. This matter was presented to the chancellor upon stipulated facts and the authenticated copies of the Senate Journal. Thus the jurisdictional issue here raised was not presented to the trial court.

We have consistently held that where a defendant has answered and not reserved any objection to the court’s jurisdiction on the ground that there is an adequate remedy at law, he can not raise the issue for the first time on appeal. See Reid v. Karoley, 232 Ark. 261, 337 S. W. 2d 648 (1960), and Taylor v. Bank of Mulberry, 177 Ark. 1091, 9 S. W. 2d 578 (1928).

While the sale of intoxicating liquor has been held a mere privilege subject to the exercise of the police power, Gipson v. Morley, Comm’r of Revenues, 217 Ark. 560, 233 S. W. 2d 79 (1950), it does not follow that a permit validly issued or subject to issue is not entitled to the protection of a court of equity. To hold that the location at which one can exercise such a privilege is not an economic right, as distinguished from a mere political right (see Catlett v. Republican Party 242 Ark. 283, 413 S. W 2d 651 [1967]), for purposes of equity jurisdiction would require us to ignore the practical fact that the sale of liquor is a remunerative business.

Furthermore, it appears that exhaustion of administrative remedies through the Board under Ark. Stat. Ann. §§ 48-1313 to -1316 (Repl. 1964) would have been futile because of the prohibition in Act 352 against such location. Under such circumstances it is often recognized that the failure to exhaust such remedies is not a prerequisite to judicial relief. See 2 Am. Jur. 2d Administrative Law § 605. However, we do not reach the issue here since it was not raised in the trial court.

Affirmed.

Harris, C. J., dissents.

CarletoN Harris, Chief Justice,

dissenting. Ark. Stat. Ann. § 48-1314 (Repl. 1964) provides that any applicant or licensee, who feels aggrieved by an order of refusal issued by the Director, “may appeal from such order or decision to the Alcoholic Beverage Control Board by filing a notice of appeal with the said board.” Section 48-1316 sets out that the licensee, “if dissatisfied with the decision of the board, may appeal to the Circuit Court of Pulaski County.”

There is nothing in the record to reflect that Mrs. Adams has filed any notice of appeal with the Alcoholic Beverage Control Board, and this litigation has wound up in the Chancery Court, instead of the court provided by statute (Circuit Court of Pulaski County). In other words, appellee had an adequate remedy at law.

As early as November 9, 1914, this court pointed out in the case of Wade v. Horner, 115 Ark. 250, 170 S. W. 1005, that the sale of intoxicating liquors is not a matter of right, protected by constitutional guarantees, but is only a privilege, and the General Assembly, in legalizing same, “may impose such restrictions as it deems appropriate. ’ This case was quoted, and the holding reiterated, in Gipson v. Morley, Commissioner of Revenues (1950), 217 Ark. 560, 233 S. W. 2d 79.

The General Assembly saw fit to enact the statutes heretofore mentioned, and I think statutory procedure should be followed.

I therefore respectfully dissent.


author: CarletoN Harris, Chief Justice.

text:
    Joe MALLETT et al v. Sara BRANNON et al
    5-4439
    423 S. W. 2d 880
    Opinion delivered January 22, 1968
    [Rehearing denied March 4, 1968]

      Douglas Bradley, for appellants.

      Gordon & Gordon, for appellees.
   CarletoN Harris, Chief Justice.

On March 22,1966, Mrs. Sara Brannon, age 30, appellee herein, was operating a 1956 Chevrolet automobile, which was owned by her husband, Earnest Dean Brannon, within the city limits of Morrilton. Occupying the vehicle with appellee were her three small children. Mrs. Brannon was traveling west on Highway 64, and she stopped her automobile at the intersection of Cherokee Street. According to her subsequent testimony, it was her intention to turn left, and she signaled such a turn with her blinker light. Joe Mallett, driver of a Save-A-Stop, Inc., tractor and trailer unit, was likewise traveling west behind Mrs. Bran-non, and struck the rear of the Brannon vehicle. Appel-lee received personal injuries, and thereafter, she instituted suit for damages purportedly suffered. Her husband, individually, and'as father and next friend of the minor children, likewise joined in the complaint, seeking recovery for the damage to his automobile, the loss of companionship and consortium of his wife, recovery for the injuries to the children, and judgment for the medical, hospital, and other bills allegedly occasioned by the collision. On trial, the jury returned a verdict for Mrs. Brannon in the amount of $30,000.00, and found for Mr. Brannon in the amount of $2,000.00. The $2,000.00 judgment was paid, but Mallett and Save-A-Stop have appealed from the judgment entered against them for the benefit of Mrs. Brannon. For reversal, six points are relied upon, but under the view that we take, there is no necessity to discuss all of these contentions.

The proof on the part of appellee reflected that she was on her way to her mother’s home somewhere in the neighborhood of 5:00 o’clock P.M. She stated that she traveled west on Highway 64 with the intention of turning left into Cherokee Street, and that she turned on the blinker at the intersection for the purpose of allowing eastbound traffic to clear before making her turn. While waiting, she was struck by the vehicle driven by Mr. Mallett. Appellants readily admit the negligence of Joe Mallett, which is imputed to appellant, Save-A-Stop; however, appellants point out that such an admission is not intended to absolve the appellee of negligence, and it is contended that she was likewise guilty of negligence.

It is urged that the court erred in permitting the testimony of A. A. Davis, who operates a grocery and furniture business on Highway 64. Mr. Davis, whose store is about a half block from the intersection, testified that he heard the crash, and he immediately went outside, and noticed that the left blinker light on the Brannon automobile was blinking. Appellant argues that since Mr. Davis did not see the collision, this testimony should not have been allowed. Appellant argues that the fact that the light was on after the collision was not proof that it was on before the collision, and that this testimony permitted the jury to speculate that the light was on. We are not impressed by this argument. The testimony by Davis was to the effect that he immediately ran out of his store upon hearing the crash, and noticed the blinking light. We think this was a circumstance that the jury was entitled to consider in reaching its conclusions.

It is asserted that the court erred in permitting Dr. T. H. Hickey iof Morrilton to express an opinion based on, according to appellant, a deficient hypothetical question. The question was rather lengthy, and was based on the testimony presented by appellee and her witnesses. In propounding same, counsel for appellee asked the doctor to assume that the weight of the tractor-trailer which struck appellee’s car was approximately 12,000 pounds; that the empty weight of the trailer was approximately 10,000 pounds, but carrying a load of approximately 2,000 to 2,500 pounds, and that the blow pushed the vehicle of Mrs. Brannon (who had her foot on the brake) approximately 73 feet. Her immediate symptoms of injuries were then described and Dr. Hickey was asked if he could state whether or not, with a reasonable degree of certainty, that this collision was a competent producing cause of Mrs. Brannon’s pain and disability. Counsel for appellants objected on the basis of the fact that there was no evidence as to the speed of the tractor, the doctor having stated that weight and speed produce force. Of course, there would .be a difference in the result where a vehicle traveling 20 miles an hour struck an object, and where one traveling 60 miles an hour struck the same object, though it was undoubtedly appellee’s idea that the distance an object travels after being hit (the distance being disputed) is itself an indication of the force (and therefore, indirectly, the speed) of the blow. There being no testimony as to speed, that factor could not properly be used in propounding the hypothetical question, but this does not mean that such a question could not be asked. In Missouri-Pacific Railroad Company v. Hampton, 195 Ark. 335, 112 S. W. 2d 428, this court, quoting earlier Arkansas cases, said:

‘ ‘ In taking the opinion of experts, either party may assume as proved all facts which the evidence tends to prove. The party desiring opinion evidence from experts may elicit such opinion upon the whole evidence or any part thereof, and it is not necessary that the facts stated, as established by the evidence, should be uncontroverted. Either party may state the facts which he claims the evidence shows, and the question will not be defective if there be any evidence tending to prove such facts.”

Further, quoting yet another case, the court added:

“In propounding a hypothetical question to an expert witness, the data upon which it is based need not cover all of the facts which have been proved in the case. The party offering the testimony may select such facts as he conceives to have been proved, and predicate his hypothetical question thereon.”

It was also stated:

“ * * * Besides, if appellants’ counsel thought there were any facts omitted from the question which were essential to forming a conclusion, his remedy is to put those additional facts before the witness on cross-examination. ’ ’

Here, no cross-examination relative to the basis of the answer given by the doctor was conducted; in fact, there was' no cross-examination concerning- the hypothetical question at all. We find no merit in this contention.

Appellants’ primary point for reversal is the assertion that the court erred in denying appellants’ motion to require a further medical examination of Mrs. Bran-non. The factual background giving rise to this point is as follows:

Appellee’s medical witness was Dr. Hickey, who, on February 20, directed a letter to counsel for appellee which states:

“To Whom It May Concern:
Re: Mrs. Sarah Brannon
This patient was seen at St. Anthony’s Hospital on March 22, 1966. She complained of some pain and soreness in the region of her neck and head, with some pain and discomfort in the region of the anterior chest wall. According to the history from the patient, she had just been in an automobile accident in which the car she was driving was struck from behind and knocked some distance. She remained at St. Anthony’s Hospital and was dismissed on April 3, 1966. The pain and soreness in the region of the cervical spine, dorsal spine and anterior chest wall, and the headaches became more severe. She has had almost continual pain in this region since this accident. X-rays were negative for fracture or dislocation. She has been treated with analgesics, sedatives, muscular relaxing drugs, and ACTH, and with a cervical collar. It is my opinion that this patient will have approximately 10% to 15% permanent partial disability in the region of the cervical spine as a result of this accident. ’ ’

Copy of this letter was turned over to counsel for appellants. Appellants had previously requested an ex-animation of Mrs. Brannon by Dr. J. J. Mag;ie, a Mor-rilton physician, and she voluntarily 'submitted to an examination by this doctor on February 27. Magie’s report was submitted to counsel on March 1, and the portion pertinent to this point reads as follows:

“Upon examination of the sensory system there was noted to be complete anesthesia to sharp pin point sticks of the skin involving in an area involving the left upper extremity, left liaemothorax, left neck and left face. The patient is unable to distinguish between dull and sharp pin points in these areas. There appears to be loss of position sense of the sensory system involving the left upper extremity. There seems to be some weakness of trapezius power on the left. The bulk of the muscle appears to be intact as there is no atrophy. The power hand grip is negative. Abduction and adduction of the fingers were normal. Extension and reflexion of the forearm were normal but seem to be weak. The muscle bulk and tone appear to be normal. The reflexes of the upper extremity tricepts, bicepts and braehoradialis were normal. The occumen were positive on the right side. The lower extremities appear to be intact.

“It is thought that this patient contains quite bizarre neurological findings that are difficult to evaluate. It is suggested that this patient be examined by a neurologist for completion of diagnosis. It does appear that this patient has suffered some cervical neck injury. This is demonstrated by weakness of the left upper extremity, weakness of trapezius function and loss of ability to completely flex the neck.”

Tbis 'was ■ appellants ’ first information concerning any nerve damage, and a motion was filed asking that Mrs. Brannon submit to further medical examination under the rules of discovery. A copy of Dr. Magie’s findings was attached to the motion. The court, on March 6, denied this motion.

Mrs. Brannon, inter alia, testified as to a loss of feeling in.her left shoulder and left arm, and Dr. Hickey also testified to these facts on his direct examination. The doctor admitted on cross-examination that he had not mentioned in his letter of February 20 (heretofore set out) any loss of feeling, but stated that, in the letter, he was just giving a “summary” of his findings. Dr. Hickey agreed that a neurologist would be more likely to find nerve damage than the normal practitioner. The doctor had stated on direct examination that he had sent Mrs. Brannon to see Dr. John Adametz, a neurosurgeon of Little Rock, testifying that he made this appointment for appellee as a matter of determining that she had no brain damage. There is no report from Dr. Adametz in the record, nor did he testify at the trial, and appellants obtained the first knowledge of appel-lee’s visit to this neurosurgeon during Dr. Hickey’s testimony.

Appellants argue that they had no way of knowing, when selecting Dr. Magie, that an examination by a neurologist was desirable, since the doctor had been selected before they received the report from Dr. Hickey, and —what is more important — nothing is mentioned in the Hickey report that they received concerning nerve damage.

We think there is merit in appellants’ contention; of course, as stated in Reed v. Marley, 230 Ark. 135, 321 S. W. 2d 193, the statute, Ark. Stat. Ann. § 28-357 (a) (Repl. 1962), does not give an absolute right to a defendant to have the complaining party examined by a physician of its choice, but does authorize such an examination “for g’ood cause shown.”

We think good cause was shown. These alleged injuries certainly were important, and could have influenced the jury in determining the amount of damages to be awarded. There was no reason for appellants to suspect that an evaluation by a neurologist was necessary until after they received the report from Dr. Magie. There was no request for a continuance of the case and there was no reason why the granting of the motion would necessarily delay the disposition of the litigation, but the most important fact is that the suggestion for the further examination came, not from appellants, but from Dr. Magie, who stated that “this patient contains quite bizarre neurological findings that are difficult to evaluate, and suggest that Mrs. Brannon should be examined by a neurologist for a completion of diagnosis.” Of course, there was no opportunity to take the deposition of Dr. Adametz, since appellants were not aware of the fact that he had made an examination.

We think there was an abuse of discretion in not granting this motion.

It is contended that there was no substantial evidence to justify the question of permanent injury being submitted to the jury.'We disagree, but inasmuch as this judgment is being reversed, and the cause remanded for another trial, we see no need to discuss the point.

It is asserted that the judgment was excessive, and this point, of course, is no longer involved, and one other alleged error is presented, but it is not likely to again occur on a second trial.

For the error herein set out, the judgment is reversed, and the cause remanded.

      With reference to neurological findings, Dr. Magie, at the trial, testified:
      “Well, this was what was quite interesting with this woman, and this woman presents a picture of having, and she states that she has in her history, some loss of anasethia of the left hand; and when I checked her for sensory sensation, this woman has loss • — it’s subjectively shown — that she has loss of sensation of the left upper arm, the upper half of the left thorax and of the face. She has a positive Hoffman sign of the right hand, which probably means nothing really. This is — Can I give my interpretation of this?

        “This is quite a bizarre finding — I’m sorry — One other thing is that this woman has loss of positional sense of the left upper arm, and what I mean by that is that I can bend her fingers like this and have her close her eyes and ask her which position her finger is in, and she can’t tell me whether it’s straight or whether it’s flexed. And these findings — loss of sensation of the chest— the skin covering the chest — the arm and the face and the positive Hoffman and loss of positional sense is quite a bizarre array of symptoms, and it’s hard to explain these symptoms, or these signs on the basis of her injury.”
      Q. “Doctor, you might tell me what you mean by bizarre?”
      A. “Well, it doesn’t fit completely.”
      Q. “All right. In lay language then I assume then — or can I assume that you are saying you cannot relate these complaints to a history of whip lash?”
      A. “That’s right. ■* * *
      “The left side of the neck, the left arm, and the left thoracic cage is supplied by the sensory nerves from the cervical spine— here. The left face is supplied by a cranial nerve, which has nothing to do with the cervical nerve's in the neck. This is why this thing seems quiet bizarre, how this woman with a neck injury could have involvement of the left face, loss of sensation to touch and pain over the left side of her face. This is why, to me, it just doesn’t fit. 1 couldn’t explain it.”


author: George Rose Smith, Justice.

text:
    AMERICAN INSURERS LIFE INSURANCE COMPANY et al v. J. E. REGENOLD
    5-4297
    423 S. W. 2d 551
    Opinion delivered January 22, 1968
    [Rehearing denied February 26, 1968]

      Patten & Brown & E. J. Butler, for appellants.

      E. J. Bell and Oscar Fendler, for appellee.
   George Rose Smith, Justice.

In I960, the appellee’s father, E. M. Regenold, lent $17,892.23 to the principal appellant, American Insurers Life Insurance Company, to enable that company to avert the foreclosure of a mortgage upon 4,495 acres of farm land owned by American Insurers in Mississippi. The elder Regenold gratuitously assigned the contract to his son, who brought this suit to enforce a provision in the contract by which the lender was to receive, in addition to interest at the rate of 6% per annum, one-half of the net proceeds accruing from the ultimate sale of the Mississippi lands. The defendants, American Insurers and several of its officers, attacked the validity of the provision in question on the ground that it made the loan agreement usurious. The chancellor rejected that defense and awarded the plaintiff a judgment for $110,538.96, with interest bringing the total to $127,-702.47. The pivotal issue here is that of usury.

Except for a dispute about the value of the Mississippi lands when the contract was made, there is hardly any real conflict in the testimony. From a record of almost 2,000 pages we winnow the pertinent facts.

Noble Grill organized American Insurers Life Insurance Company in 1958 and was-Q.riginally the sole contributor of its capital assets. At Grill’s death in 1960 the company was insolvent, at least in the sense of being unable to meet its current obligations. A foreclosure proceeding was pending against the Mississippi land — the corporation’s principal asset. The comparatively small sum of $17,892.23 was needed to pay delinquent items then due upon mortgage indebtednesses totaling $262,519.89.

It is fairly inferable that Grill, as president of the company, had not kept his fellow officers and directors fully informed about the Mississippi foreclosure suit. We may suppose that Gill had some plan for averting the foreclosure, but his death leaves that matter in a state of uncertainty.

Gill died on June 12, 1960. One of the appellants, Walter H. Patton, was elected to succeed him as president of the company. A few days later Patton and another director, J. E. Stevenson, Jr., were both in, Mississippi. Stevenson, Gill’s brother-in-law, was an Arkansas real estate dealer with whom the lands had been listed for sale at an asking price of $350,000. He testified that it was not until June 23 that he learned that a public foreclosure sale was scheduled to take place on June 25. He and Patton began desperate efforts to find some last-minute means of averting the sale.

The two men telephoned E. M. Regenold, a close friend who was president of a bank in Blytheville, Arkansas. After much discussion Regenold agreed to lend American Insurers the needed $17,892.23, with the debt to be evidenced by a promissory note bearing interest at 6% per annum. As security for the note American Insurers agreed (a) to assign to Regenold the net proceeds of an insurance policy on Gill’s life, (b) to assign to Regenold the rents from part of the Mississippi lands, (c) to give Regenold a note for $10,000, to be executed by Stevenson, and (d) to give Regenold a “commission” of half the net proceeds of the sale of the Mississippi land, after the payment of the mortgage indebtedness and expenses of sale. On the basis of the telephone conversations Regenold sent a cashier’s check to Patton and Stevenson, which reached them only minutes before the foreclosure sale would have been held. Regenold’s attorney promptly drafted a resolution embodying the terms of the loan contract, which the directors of American Insurers adopted on June 30. The corporation also executed its note for $17,-892.23, which was actually paid within a few months from the Mississippi rents. In 1963 American Insurers, which was then in liquidation, sold the Mississippi lands for $567,131.25. After the payment of the debts against the land and of the sum of $133,804.38 as a compromise settlement with tenants who had an option to purchase the land themselves, there remained the net proceeds of sale upon which the chancellor based his decree in favor of the appellee.

At the outset we disallow the appellee’s contention that the transaction was a “joint venture” rather than a simple loan of money. We find no resemblance between the contract, as described by Regenold’s own attorney, and a joint venture or partnership agreement. Regenold took no risk in the sense of advancing money that might be lost if the supposed venture proved a failure. Regenold simply lent the sum of $17,892.23 upon security so sound that the principal debt was actually repaid before December 1, 1960. Both Patton’s contemporaneous letter to Regenold, outlining the terms of the contract, and the corporate resolution prepared by Regenold’s lawyer, referred to the advance of funds as a loan. It is true that Patton’s letter described Rege-nold’s share of the net proceeds of sale as a “commission,” and that the corporate resolution recited that the payment was to be made “in consideration of services rendered and assistance given to this corporation by the said P. M. Regenold in connection with the sale of certain lands owned by this corporation” in Mississippi. There is no contention whatever by the ap-pellee that his father was entitled’ to a commission for helping to sell the Mississippi property, because E. M. Regenold was not a licensed real estate broker either in Arkansas or in Mississippi and hence could not legally have contracted for a broker’s commission in either state. The undisputed truth is that Regenold’s sole contribution to the transaction was a loan of money, leaving no sound basis for the argument that some sort of joint venture existed.

We come, then, to the pivotal issue of usury. Contracts by which the lender acquires a right to a speculative profit in place of or in addition to a fixed rate of interest ordinarily present an issue of fact on the question of usury. Needless to say, if the lender bargains for the possibility of a profit in addition to the highest permissible rate of interest, the transaction is usurious. Sosebee v. Boswell, 242 Ark. 396, 414 S. W. 2d 380 (1967). At the other extreme, there is ordinarily no basis for a finding of usury when the one who advances the money takes the risk of losing both principal and interest if the venture fails. See Williston, Contracts, § 1692 (Rev. Ed. 1938); Andrews v. Andrews, 170 Minn. 175, 212 N. W. 408, 51 A. L. R. 542 (1927).

With respect to the particular fact situation now before us, which falls between the two extremes just mentioned, we approve — with special emphasis on the final sentence — the following paragraph from the Restatement of Contracts, § 527 (1932):

“Usury laws do not forbid the taking of business chances in the employment of money. A creditor who takes the chance of losing all or part of the sum to which he would be entitled if he bargained for the return of his money with the highest permissible rate of interest is allowed to contract for greater profit. On the other hand it is not permissible to use this form of contract as a device for obtaining usurious profit. If the probability of the occurrence of the contingency on which diminished payment is promised is remote, or if the diminution should the contingency occur is slight as compared with the possible profit to be obtained if the contingency does not occur, the transaction is presumably usurious.”

Regenold exacted from the debtor a contract by which both the principal and interest of the loan were amply secured. At most Regenold gave up the difference between interest at 6% upon a note due in six months and interest at 10% upon the same note — a sum amounting to about $350. (Under Mississippi law the maximum interest rate would have been 8%, but the appellee does not argue that the result under the Mississippi decisions would be more favorable to him than that under Arkansas law.) By contrast, Regenold’s probable profit would be so decidedly disproportionate to the pittance he gave up as to bring the case within the Restatement’s declaration that the contract is “presumably usurious.”

We do not agree with the appellee’s insistence that there is “no evidence of any kind” as to the market value of the Mississippi lands on June 25,1960 — the date of the oral agreement. To the contrary there is an abundance of proof indicating that Regenold’s expected profit would far exceed the trivial additional interest he might lawfully have demanded. The total mortgage debt against the lands was $262,519.89. Stevenson, who had the lands listed for sale at $350,000, unquestionably assured Regenold that the profit clause in the agreement would result in a substantial return. Before the loan was paid in November, Patton sent Regenold a statement (appearing as Exhibit 32) in which he estimated the debtor’s equity to be $100,000. Within less than 65 days after the loan was made American Insurers rejected an offer of $325,000 for the property. Regenold was apparently anxious for the company to accept that offer and expressed his willingness to advance an additional $53,-.000 to consummate the transaction. In December of 1960 the tenants on the land were given an option to purchase it for $350,000. Finally, less than three years after Regenold made the loan the land was actually sold for $567,131.25. On the proof as a whole we are forced to conclude that Regenold, while taking no substantial risk of losing either the principal or the interest of the loan, demanded in addition a reasonably certain profit so completely in excess of legal interest as to constitute usury. The chancellor was in error in not so holding.

Reversed.

FoglemaN, J., disqualified.