author: Carleton Harris, Chief Justice.

text:
    Nall v. Scott.
    5-2295
    342 S. W. 2d 418
    Opinion delivered January 30, 1961.

      J. B. Milham and C. Van Hayes, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Homer Nall, a veteran of World War I, was adjudged incompetent by the Pulaski County Probate Court in 1931. The Commercial National Bank of Little Eock was subsequently named guardian. On February 15, 1957, Nall, while operating his own vehicle, was involved in an automobile collision with a car owned and driven by Mel L. Scott, Jr., appellee. Appellant instituted suit in the Circuit Court of Pulaski County for property damage and personal injuries; following the filing of an answer and counterclaim by appellee, the case was tried by the court, sitting as a jury, on August 5, 1958. On August 7th, the court directed a letter to counsel, finding that Scott was liable, and awarding Nall $72.83 for property damage and $250 for personal injuries. Judgment was accordingly entered on September 2nd for $322.83. On September 4th, Nall, pursuant to a petition filed by his guardian, was found to be of sound mind, fully competent of attending to his business affairs, and “fully restored to all the rights and privileges of a competent person of sound mind and disposing memory * * The order recites that Nall, D. J. E. McDermott, Chief Attorney for the Veteran’s Administration in Little Eock, and E. J. Eisley, Vice-president and Trust-Officer of the Commercial National Bank, were all present in open court. Following the adjudication of competency, Nall went downstairs and met his attorney, who had handled the litigation for him. St. Paul Fire & Marine Insurance Company, insurer of the ear operated by Scott, had issued its draft in the amount of $322.83 on September 2nd, payable to Nall and his attorney. According to the testimony, on meeting downstairs, Nall endorsed the draft, and the attorney then gave his personal cheek to Nall in the amount of $239.42, and retained the insurance check to deposit in his own account. On the reverse side of the company check, immediately above appellant’s signature, appears the language:

“The payee(s) by endorsement below accept(s) and agree(s) that this draft constitutes settlement in full of the claim or account described on the face hereof and that the company is subrogated to all rights and causes of action to which it is entitled under the said policy by reason of this payment.”

On April 30, 1959, 'Nall, through present counsel, filed a motion in the Pulaski County Circuit Court to vacate and set aside the judgment against Scott, alleging that he (Nall) was incompetent during the entire Circuit Court proceedings. Counsel for Scott responded, denying that Nall was entitled to have the judgment set aside, and the Response was subsequently amended with the allegation that “defendant verily believes that it is the intention of plaintiff, if said judgment is set aside, to file another action against defendant, based upon the cause of action referred to above,” and it was asserted that the draft and language thereon constituted a release and “by accepting said payment and assenting to the contractual terms set out above, plaintiff is barred from asserting any cause of action against defendant arising out of the events which occurred on February 15, 1957, referred to above and also referred to on the face of said draft. Defendant is, therefore, entitled to a declaratory judgment pursuant to Arkansas Statutes, Sec. 34-2501 through Sec. 34-2512.” Appellant responded to the plea for declaratory judgment by asserting that he did not accept the sum of $322.83 in settlement for his cause of action; that he had been adjudged incompetent in 1928, and continued incompetent until September 4th, 1958, and was accordingly unable to employ any attorney to represent him prior to that time, and that fraud had been practiced upon the court. The court found that the original action against Scott should have been brought by the Commercial National Bank as guardian of Nall, and that the judgment rendered on September 2nd should be vacated because of the failure to proceed in the name of the bank. The court, however, further found that “defendant is entitled to a judicial declaration that plaintiff’s cause of action is barred by a release executed by plaintiff at a time when he was competent to transact business on his own behalf and by the ratification by plaintiff at a time when he was mentally competent to transact business on his own behalf of a prior settlement of his cause of action against defendant.” In accordance with this finding, the court held that Nall “be and he is hereby barred from asserting the cause of action aforesaid against defendant and defendant be and he is hereby barred from asserting the cause of action contained in his counterclaim herein against plaintiff and that plaintiff’s original Complaint and defendant’s original Counterclaim be and they are hereby dismissed with prejudice: * * From such judgment, comes this appeal.

Appellant first asserts that the draft involved was issued by St. Paul Fire & Marine Insurance Company, but there is no evidence that Scott took any part in payment of the judgment; that there is no law authorizing a declaratory judgment to be sought by a third party, i. e., Scott was the only one that could seek such a judgment. Of course, the question of whether the insurance company could act as agent for Scott in obtaining tbe release, is dependent upon tbeir contractual relationship. This might, under some circumstances, be a proper question for the insured to raise, but Scott has not seen fit to deny that the company had authority to act in his behalf in obtaining the release. As far as the petition lor Declaratory Judgment is concerned, the record reflects that same was filed by Scott, though the attorney filing it was one of the attorneys for St. Paul. Likewise, this attorney, according to the record, represented Scott in his original counterclaim. We find no merit in this contention.

Appellant’s principal contention is based on alleged fraud. In this argument, appellant “blankets in” those who had any connection with the lawsuit, or a connection with the guardianship proceedings, viz., the attorney who obtained the judgment for Nall, the trust officer of the bank, one of the attorneys for the Veteran’s Administration who handled Nall’s file, and the attorney who represented Scott and the insurance company, it being charged the four colluded in obtaining the Probate Court order, and appellant’s signature on the draft. Just why these men were so intensely interested in persuading Nall to acecpt a small amount of money is not shown by appellant, or indicated by the record. There is not one iota of evidence to support any charge of fraud. As far as the Veteran’s attorney is concerned, the record reflects that Nall’s guardianship, along with hundreds of others, was under his supervision. His testimony was simply to the effect that Nall had related to him the facts of the accident in a coherent manner, and that Nall appeared to be entirely aware of wbat he was doing. The attorney testified that Nall was admitted to the hospital on June 6, 1958, and was dismissed on July 8, 1958, and that he became acquainted with Nall shortly after the discharge. The latter would visit his office once or twice a week, and it was during that period of time that he definitely concluded that Nall was competent to transact his own business. E. J. Risley, trust officer of the bank, testified that Nall had discussed the litigation with him, and that he appeared to be entirely familiar with the law suit; that Nall frequently called to check his bank balance, managed his rural home and farm, and had been, for a considerable period of time, in view of the witness, competent to transact business. He stated that Nall went to the VA hospital in June, and as a result of that hospitalization, the Veteran’s Administration advised that Nall was competent. Risley accompanied Nall to the Probate Court on September 4th (which was not only proper, but highly desirable, since the petition to restore competency had been filed by the guardian bank). The witness identified Nall’s signature on the draft, and further testified that Nall had previously informed him that he had won the judgment; that appellant was well satisfied with it, and was very complimentary of the attorney who handled the litigation for him.

The original attorney for appellant testified that Nall came to his office and retained him; that he did not know Nall was incompetent until a short time before payment of the draft, and after obtaining this information, it was agreed that Nall would not be paid until his disability was removed. The attorney stated that he waited on the first floor of the courthouse until after the Probate Court had entered its order declaring appellant competent, and that Nall said, “I have got it, here it is,” and handed him the copy of the court’s order; that he then gave Nall a personal check for the amount of money due appellant, and subsequently deposited tbe draft in Ms own account. The personal check, in the amount of $239.42, was introduced into evidence, and showed Nall’s endorsement. The witness stated that appellant appeared competent at all times. “I think he was perfectly sane, a perfectly sane man, and knew more about the lawsuit than I did.”

Appellant points out that the money was paid to Nall only a few minutes after he had been declared competent, but we fail to ascertain the relevance of this fact. There is no waiting period after an adjudication of competency before one actually becomes competent. The parties met in the court at that time apparently by prearrangement, and in fact, Nall was only adjudged competent on September 4th because he had previously been so found by the proper officials of the Veteran’s Administration.

Appellant argues that the draft could not serve as payment of a void judgment. The trial court did not hold that the draft constituted payment of the judgment, but rather held that the execution of the draft amounted to a release of plaintiff’s cause of action. We think the language on the back of the draft, appearing directly over appellant’s signature, unquestionably constitutes such a release. As stated in 76 C. J. S., § 5, p. 631:

“No particular form or set of words is necessary to constitute a release, provided the contract is complete, the intention of the releasor to release is manifest, and the parties are sufficiently described to identify them. The release need not be in an instrument separate from the obligation released, * *

The evidence herein set out on behalf of appellee was not denied by any person, including appellant, who did not testify. We hold there was substantial evidence to support the judgment rendered by the court.

Affirmed.

       The Court stated: “The proof indicates that there was damage to the plaintiff’s car and that he sustained a measure of personal injury. The only definite proof of damages is the amount of $72.83 which was spent in repairs to the plaintiff’s vehicle. There is no evidence regarding medical expense incurred by the plaintiff or any that might reasonably be expected to be incurred in the future. Absent, also, is proof of pain and suffering.”

       The face of the draft also recites that the $322.83 is “in full settlement of the account or claim set forth below. M. L. Scott, Jr.”

       According to a statement by counsel to the court, a suit was instituted in Grant County subsequent to the filing of the pleadings in this case, and some five or six weeks prior to the hearing on appellant’s motion to vacate the judgment.

       Both the 1931 and 1928 dates are used in appellant’s brief, and the record does not reflect which is correct.

       In his argument, appellant asserts that it amounted to gross fraud for these men “to act together in procuring a Probate Court order with the sole intention of presenting to appellant, Homer Nall, the judgment issued by the Insurance Company which they were representing and in only minutes after the order was granted, present Nall with the insurance check, obtain his signature thereon, and in delivering the check advising him that it was only for his share of the judgment, and in failing to explain to him that he would be cancelling his right to bring a suit for damages sustained by him against Mel L. Scott; in failing to advise Nall such check was in satisfaction of the Mel Scott injuries; ***.” Further, that appellant’s attorney pretended to be acting for appellant “when in fact he was acting against the interest of Nall.”

       Dr. Lewis Cohen, Chief of Neurology and Psychiatry Service, stated by letter, which was filed with the Probate Court, that Nall was examined by .him on several occasions and received psychological testing from the clinical psychologists during this period, and, based on these examinations, tests, and past history of the patient, Dr. Cohen was of the opinion that Nall was competent.


source: Caselaw Access Project

author: J. Seaborn Holt, Associate Justice.

license: Public Domain

text:
    Woodall v. Wilkerson.
    5-2267
    342 S. W. 2d 405
    Opinion delivered January 30, 1961.

      H. M. “Ted” McCastlain and Fred MacDonald, for appellant.

      Howard $ McDaniel, for appellee.
   J. Seaborn Holt, Associate Justice.

This is an action to enjoin certain acts of trespassing on property located in the City of Jonesboro. Harry Woodall [appellant] and his wife were married on January 9, 1916. Several years after marriage, Mrs. Woodall inherited a number of parcels of land from her father and mother, both of whom died intestate. In 1934 title to the land in question was acquired by Mrs. Woodall from the other heirs at law. In 1958, Mrs. Woodall died and surviving her were her husband and three daughters, all of whom are the present appellants. Mrs. Woodall, at the time of her death, was insane and we think the undisputed evidence shows that she had been mentally incompetent since the birth of her youngest child, in 1925, when she suffered a mental breakdown.

Shortly after his wife’s death, Mr. Woodall went to Jonesboro and requested appellee, Wilkerson, to remove a fence upon land which Woodall claimed. When appellee refused to remove the fence, suit was filed by Woodall praying for an injunction to prevent trespassing upon the property by appellees. A trial was had and the trial court found that appellees had acquired the land in question by adverse possession. The appellants have appealed and for reversal contend that adverse possession cannot run against one who is non compos mentis.

We have concluded that appellants are correct in this contention and that the decree must be reversed for this reason. After a careful review of the record presented, we hold it conclusively shows that Mrs. Woodall, Harry Woodall’s wife, was mentally incompetent during the entire time on which appellees are relying for the ripening of their claim of title by adverse possession. It appears undisputed that Mrs. Woodall became mentally incompetent at the time she gave birth to her last child in 1925 and was at all times thereafter insane till her death in April of 1958. She lived in her husband’s home in Brinkley, Arkansas under constant care till her death.

The record reflects that appellees, in 1942, moved into a house adjacent to and just west of the lot, or property, in question here, purchasing it in 1944, and therefore any claim of adverse possession by appellees would have to begin to run after 1942, after appellees moved into the adjoining house. The evidence on Mrs. Woodall’s mental condition from 1925 up to the time of her death in 1958 may be summarized as follows:

Dr. Ed McKnight-Knew Mrs. Woodall thirty years as family physician; without doubt she was incompetent from the time her last baby was born in 1925 until her death in 1958.

James B. Sharp, attorney-Knew Mrs. Woodall more than thirty years; she was non compos mentis all that time; unable to take care of children or herself; never engaged in normal activities; was not capable of handling any business.

Mrs. O. W. White-Knew Mrs. Woodall 15 or 16 years; lived next door; she was incapable of handling any business or everyday affairs; could not carry on conversation.

Dr. M. L. Dalton-Knew Mrs. Woodall and was the family physician from 1935; she was legally non compos mentis; testified in probate court that she was incompetent when guardian was appointed.

We find no testimony that contradicts the above. Arkansas Statutes, § 37-101, provides: “No person or persons, or their heirs shall have, sue or maintain any action or suit, either in law or equity, for any lands, tenements or hereditaments but within seven (7) years next after his, her or their rights to commence, have or maintain such suit shall have come, fallen or accrued: and all suits, either in law or equity, for the recovery of any lands, tenements or hereditaments shall be had and sued within seven (7) years next after title or cause of action accrued, and no time after said seven (7) years shall have passed. Provided, if any person or persons that are or shall be entitled to commence and prosecute such suit or action in law or equity be or shall be at the time said right or title first accrued come or fallen within the age of twenty-one (21) years or non compos mentis, that such person or persons, his, her or their heirs, shall and may, notwithstanding said seven (7) years may have expired, bring his or her suit or action, so as such infant or non compos mentis, his, her or their heirs, shall bring same within three (3) yeárs next after full age, or coming of sound mind. Provided, also, that no cumulative disability shall prevent the bar hereby formed and constituted by the saving of this section. * * *”

As pointed out, since Mrs. Woodall was mentally incompetent when appellees came into possession, and continuously incompetent until her death, therefore, adverse possession could not run against her. “* * * the rule would seem to be that in actions of ejectment brought by the heirs of one alleged to be insane against a defendant who pleads adverse possession, it devolves upon the heirs to show that the insanity of their ancestor prevented him from understanding his rights, and that, owing to the diseased condition of his mind, he permitted others to assert ownership and acquire prescriptive title to his real estate; and that during the running of the statute lie had no lucid interval of sufficient duration to enable him understanding^ to investigate his business affairs and acquire knowledge of the fact of such adverse possession, and that it would ripen into a title in the occupant. In the case of Warlick v. Plonk, 103 N. C. 81, 9 S. E. 190, the supreme court of North Carolina held an instruction without error which charged the jury in a case similar to the one at bar ‘that if the alleged insane person was so mentally diseased that he was unable to understand and assert his rights, that he did not possess sufficient mental capacity to know that he was the owner of the land, and that the defendant was in possession thereof asserting title thereto, and that such possession would destroy his rights, then he labored under such a disability as would prevent the operation of the statute.’ In our view of the case at bar, the material inquiry is, was the mind of John Irwin, between January 1, 1880, and June 18, 1884, in such a diseased condition that he did not understand that he owned the land in question, and that plaintiff in error was in adverse possession, and that such possession would deprive him of his legal title to the premises unless he took steps to prevent such result. This is the question that plaintiff in error was entitled to have answered by the verdict of the jury, and the instructions should have so framed the issue that the verdict of the jury would have been an answer,” Clarke v. Irwin, 63 Neb. 539, 88 N. W. 783. See also Arrington v. McLemore, et al, 33 Ark. 759.

Accordingly, the decree is reversed and the cause remanded.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Bond v. Mo. Pac. R. Co.
    5-2249
    342 S. W. 2d 473
    Opinion delivered January 30, 1961.

      J. B. Milham and C. Van Hayes, for appellant.

      Pat Mehaffy and B. 8. Ciarle, for appellee.
   Ed. F. MoFaddin, Associate Justice.

Joe Bond sued the Missouri Pacific Railroad for damages for personal injuries. Trial to a jury resulted in a verdict and judgment for the Railroad Company, and Bond brings this appeal, urging for reversal the giving and refusing of certain instructions in the course of the trial. Bond was injured when a train of the Missouri Pacific Railroad Company hit an automobile stalled on the tracks and hurled the automobile against Bond.

The events that resulted in Bond’s injury will be detailed for a better understanding of the points discussed. "William Rudder and Joe Bond (age 21) lived in Benton and were good friends. Rudder owned a Chevrolet car; and about 8:15 p.m. on April 17, 1959, Rudder, accompanied by two companions, Abbott and Robinson, went to Bond’s house in Rudder’s car and suggested that Bond join them and all go to a drive-in toward Bauxite, east of Benton. The four remained in the drive-in for some time, playing the jukebox; Rudder went to sleep in the back of the car, leaving Bond to drive Abbott and Robinson to their respective homes. They left the drive-in about 10:15, with Bond driving back west toward Benton. As he was driving on Edison Avenue in Benton he started across the two main line tracks of the Missouri Pacific Railroad, which goes approximately north and south, and the Edison Street crossing is in the center of a one degree curve. As the Rudder car (driven by Bond) was in its own lane of traffic and crossing the railroad tracks, a Ford car being driven by William Gatling, and going from Benton to Bauxite, turned to its left and out of its line of traffic and hit the Rudder car head-on. The Rudder and Gatling cars were thus stalled on the railroad tracks.

Three or four minutes were consumed in trying to get the cars moved off of the railroad tracks, but to no avail; and while the efforts were still being made the railroad crossing lights indicated an approaching train. Bond barely had time to wake up Rudder and get him out of the car, and Rudder and Bond were standing a short distance from the railroad tracks and north of the stalled cars when the northbound passenger train of the Missouri Pacific hit the stalled cars and hurled one into Bond and Rudder. As a result of the impact Rudder sustained fatal injuries, and Bond received the serious and painful injuries for which he filed this action.

The alleged negligence of the Railroad Company was the failure to keep the lookout as required by § 73-1002, Ark. Stats. The Railroad Company denied all allegations of negligence and claimed that Bond was guilty of negligence and contributory negligence. As aforesaid, trial resulted in a judgment and jury verdict in favor of the Railroad Company; and Bond brings this appeal, claiming errors committed by the Trial Court in the giving and refusing of certain instructions and in permitting and refusing certain testimony. Appellant argues nine assignments; but we find it unnecessary to discuss all of them, in view of our conclusion that the judgment must be reversed and the cause remanded because of the giving of certain instructions that we herein mention.

I. The Court’s Instruction No. 2. On its own motion, and over the objection of the plaintiff, the Trial Court gave the jury this instruction:

“You are instructed that as a matter of law that William G-atling was guilty of negligence, and if you find from a preponderance of the evidence in this case that his negligence was the sole proximate cause of the accident and injuries complained of then your verdict would be for the defendant.”

This instruction was so erroneous as to require reversal of the judgment. The plaintiff alleged, and the case was tried on the theory, that the Railroad Company had failed to comply with the Lookout Statute, which is § 73-1002, Ark. Stats. Surveyors and other witnesses testified for the plaintiff as to the distance the train operators could have seen the crossing'; and the railroad witnesses denied such testimony. It was conceded by all sides that the Rudder and the Gatling cars were stalled on the tracks from three to five minutes before the train reached the crossing. It is admitted that many intervening acts occurred in that period of time, such as the efforts of the parties to move the cars off the track, and the effort to get Rudder out of the car. So, for the Court to tell the jury that Gatling was negligent in getting in the wrong lane of traffic and causing a collision three or four minutes before the train came along, was to direct the jury’s attention to a matter entirely too remote; and was also to direct the jury’s attention away from the crucial issue of whether the Railroad Company had complied with the Lookout Statute.

Our cases on the Lookout Statute hold that, regardless of the negligence of the plaintiff in getting in a position of peril, nevertheless the Railroad Company is liable under the Lookout Statute for any injury done to the plaintiff if the operators of the train, by complying with the Lookout Statute, could have seen the perilous position of the plaintiff in time to have avoided injuring him. C. R. I. & P. Ry. v. Bryant, 110 Ark. 444, 162 S. W. 51; Mo. Pac. R. Co. v. Manion, 196 Ark. 981, 120 S. W. 2d 715. Our cases further hold that evidence which justifies a finding that the plaintiff was injured by the defendant’s train raises a presumption of negligence, and the burden is on the railroad company to show that the proper lookout was kept. St. L. S. F. Ry. Co. v. Crick, 182 Ark. 312, 32 S. W. 2d 815; and Mo. Pac. R. Co. v. Thompson, 195 Ark. 665, 113 S. W. 2d 720. Even if Gatling and Bond had both been negligent, still such did not excuse the Railroad Company from complying with the Lookout Statute. In St. L. S. F. Ry. Co. v. Champion, 108 Ark. 326, 157 S. W. 408, a little boy was knocked down on the railroad tracks by an older boy and was run over and killed by a switched car. The Railroad Company offered the defense in the trial that the negligence of the older boy was the cause of the death of the little boy; but, in affirming a judgment against the Railroad Company for violation of the Lookout Statute, Justice Wood, speaking for this Court, said:

“. . . no matter what may have caused the unfortunate predicament of young Champion, if the employees of the appellant in charge of its train, by keeping the lookout, could have discovered his peril in time to have prevented his injury, by the exercise of ordinary care, then appellant is liable. See Acts of Arkansas, 1911, page 275; Railway v. Lindley, 151 S. W. 246; St. Louis, I. M. & S. R. Co. v. Gibson, 107 Ark. 431, 155 S. W. 510 .. .

“Therefore, under the statute, in suits for damages against railways, for the killing of a person on their tracks by the running of trains, where the negligence alleged is a failure to keep the lookout, the issue is as to whether or not the company was negligent as alleged, and not whether such negligence was the proximate cause of the death, for, as we have stated, if the person was killed while on the tracks of the railway, by the running of trains, and such person would not have been killed had the lookout required been kept, then the law makes such failure to keep the lookout the proximate cause of the death, no matter by what cause or under what conditions the party killed may have been upon the railway tracks. The being upon the railway tracks, whether by accident, through negligence, or from whatever cause, would be but a mere condition or incident to the killing and not the proximate cause thereof.”

The Court’s Instruction No. 2 was confusing to, and irrelevant of, the issues for the jury to decide, and should not have been given. Frank v. Dungan, 76 Ark. 599, 90 S. W. 17; Sherrin v. Coffman, 143 Ark. 8, 219 S. W. 348; High v. Sharp, 166 Ark. 424, 265 S. W. 638; Wisc. & Ark. Lbr. Co. v. McCloud, 168 Ark. 352, 270 S. W. 599. See also 53 Am. Jur. p. 440, “Trial” § 555.

II. The Defendant’s Instruction No. 5. Over the general and specific objections of the plaintiff the Court gave the defendant’s Instruction No. 5, as follows:

“You are instructed that the operators of a train have the right to assume that a traveler approaching a railroad track will act in response to the dictates of ordinary prudence and the instinct of self-preservation, and will, in fact, stop before placing himself in peril, and the duty of the railroad employees to take precaution begins only when it becomes apparent that the traveler at the crossing will not do so. Therefore, if you find that the trainmen operating this train were keeping a lookout, they were not required to take emergency measures to attempt to avoid the accident until it became apparent to them as reasonable prudent men that the plaintiff was not going to stop when coming over the crossing.”

Among other specific objections to this instruction the plaintiff made these:

“1. The instruction instructs the Jury on the question of travelers approaching a railroad crossing when the undisputed evidence in this case is that a stalled vehicle was on the crossing and was struck.

“2. The instruction is not applicable to the evidence in this case.

“3. The instruction misleads and confuses the Jury.

“4. The instruction submits to the Jury a question not pertaining to the lawsuit and would permit them to make a determination on an immaterial issue.

“5. The instruction is abstract.”

The plaintiff was correct in these specific objections. There were no facts in this case that justified the giving of defendant’s Instruction No. 5. It is not contended by anyone that the engineer and the fireman saw the automobiles approaching the railroad track. The cars had stalled on the railroad tracks three to five minutes before the train arrived; and much of what we have said about the Court’s Instruction No. 2 applies also to this instruction.

III. Defendant’s Instruction No. 8

In view of the remand, we think we should also discuss this instruction which the Court gave, as follows:

“If you find from a preponderance of the evidence in this case that the plaintiff, the railroad and its employees were all guilty of negligence, and if you further find that the negligence, if any, of the plaintiff was less than the negligence, if any, of the railroad, then the plaintiff cannot recover the full amount of damages, if any, as shown by the evidence, but the amount of such damages, if any, should be diminished in the proportion that the plaintiff’s negligence, if any, contributed to the accident and damages.”

The plaintiff objected to the giving of the instruction claiming contributory negligence was not a defense to a violation of the Lookout Statute. If Act No. 296 of 1957 amended the Lookout Statute (§ 73-1002 Ark. Stats.), then the instruction was correct as given. This presents the most serious question in the case; and, after considerable study, we have concluded that Act No. 296 of 1957 did not amend the Lookout Statute; so defendant’s Instruction No. 8 was erroneous.

Here is our reasoning on the matter:

(1) The original Lookout Statute was Act No. 125 of 1891 and was to overcome such cases as St. L. I. M. & So. Ry. Co. v. Monday, 49 Ark. 257, 4 S. W. 782; and Brown v. St. L. I. M. & So. Ry. Co., 52 Ark. 120, 12 S. W. 203, which held that the railroad company was under no duty to keep a lookout for trespassers. The preamble to Act No. 125 recites why it was adopted.

(2) After Act No. 125 of 1891 became the law, this Court then held in actions brought for recovery under the 1891 Act that contributory negligence of the plaintiff might be pleaded as a defense by the railroad company. See C. R. I. & P. v. Smith, 94 Ark. 524, 127 S. W. 715; St. L. I. M. & So. Ry. Co. v. Tucka, 95 Ark. 190, 129 S. W. 541; and St. L. I. M. & So. Ry. v. Watson, 97 Ark. 560, 134 S. W. 949; and. to overcome the effect of those said holdings the Legislature, by Act No. 284 of 1911, amended Act No. 125 of 1891 (then found in § 6607 Kirby’s Digest) so as to provide that contributory negligence would not be a defense if the railroad employees, by keeping such lookout, could have discovered the peril of the person injured in time to have prevented the injury by the exercise of reasonable care. This Act No. 284 of 1911 is now found in § 73-1002 Ark. Stats, and is what is referred to throughout this opinion as “the Lookout Statute.”- Since this Act of 1911, this Court has consistently held that contributory negligence was no defense to actions under the Lookout Statute. Mo. Pac. R. Co. v. Barham, 198 Ark. 158, 128 S. W. 2d 353; St. L. S. F. Ry. Co. v. Horn, 168 Ark. 191, 269 S. W. 576.

(3) This Court also said in Mo. Pac. R. Co. v. Taylor, 200 Ark. 1, 137 S. W. 2d 747:

“Our statute on lookout, § 11144, Pope’s Digest,, imposes liability on railroads, not only in cases of dis-. covered peril; but in those instances also where, by the exercise of reasonable care, the peril might have been discovered, and this, too, regardless of the contributory negligence of the injured person. Railway Co. v. Horn, 168 Ark. 191, 269 S. W. 576; Gregory v. Mo. Pac. R. Co., 168 Ark. 469, 270 S. W. 621.” (Emphasis supplied.) This Court also said in Mo. Pac. Rd. Co. v. Eubanks, 200 Ark. 483, 139 S. W. 2d 413, that recovery under the Lookout Statute was entirely separate and independent of recovery under the comparative negligence statute:

“Section 11153 of Pope’s Digest, known as the Comparative Negligence Statute, has no application because this case was tried under § 11144, a statute commonly known as the Lookout Statute.”

When we consider the foregoing, we conclude that it was never the intention of the Legislature that Act No. 296 of 1957 should amend or affect actions seeking recovery for violation of the Lookout Statute. Appellee points out that in St. L. S. W. Ry. Co. v. Robinson, 228 Ark. 418, 308 S. W. 2d 282, we held that Act No. 191 of 1955 (sometimes commonly called the “Prosser Act”) amended the Railroad Comparative Negligence Statute, which is § 73-1004, Ark. Stats.; and that Act No. 296 of 1957 merely replaced the Act No. 191 of 1955. Appellee also points out that both the 1955 Act and the 1957 Act contain the words, “. . . in all actions hereafter accruing . . .” From this appellee argues that an action brought for recovery under the Lookout Statute falls within the category of “all actions.” But we call attention to the fact that the Railroad Comparative Negligence Statute, as found in § 73-1004, was originally adopted in 1919 by Act No. 156 of 1919, and it also contained the words, “in all suits.” This Court has consistently held that the Railroad Comparative Negligence Statute (§ 73-1004, Ark. Stats.) did not apply to, nor amend, the Lookout Statute; and this Court has consistently held that contributory negligence was no defense against the person injured and seeking recovery against the railroad company for violation of the Lookout Statute. Also we point out that in Act No. 191 of 1955 it was stated that the Act extended to cases, “. . . in which the defendant has had the last clear chance to avoid the injury . . .”; and yet we recognized in Mo. Pac. R. Co. v. Taylor, 200 Ark. 1, 137 S. W. 2d 747, that the Lookout Statute went beyond the last clear chance. Furthermore, we point out that Act No. 296 of 1957 specifically repealed only Act No. 191 of 1955 and did not attempt to repeal or amend the Lookout Statute, or any other statute. Repeals by implication are not favored. See Vick v. New, 208 Ark. 874, 187 S. W. 2d 948, and cases there cited.

CONCLUSION

Because of the giving of the instructions hereinbefore discussed, the judgment must be reversed and the cause remanded. It would unduly prolong this opinion to discuss each of the other assignments made by the plaintiff, some of which may possess merit and some of which may not; but in view of what has been said it is assumed that any mistakes made in the former trial will be avoided in any new trial.

Reversed and remanded.

       We have several cases of a train hitting a vehicle stalled on the track. See Mo. Pac. R. Co. v. Mitchell, 197 Ark. 400, 122 S. W. 2d 544; Mo. Pac. R. Co. v. Lemons, 198 Ark. 1, 127 S. W. 2d 120; Mo. Pac. R. Co. v. Barham, 198 Ark. 158, 128 S. W. 2d 353; and Mo. Pac. R. Co. v. Taylor, 200 Ark. 1, 137 S. W. 2d 747. See also Annotation in 70 A.L.R. 2d 100 involving motor vehicles stalled or stuck on crossing.

       The plaintiff’s allegations were: “That the defendant Missouri Pacific Railroad Company, its agents, servants and employees failed to keep a lookout for persons and property upon or near the railroad tracks as required by Ark. Stats., 73-1002; that if it had kept said lookout its servants could have discovered the disabled automobiles upon said track as alleged in the complaint, in time to have slowed the train or stopped it in time to prevent striking said automobiles and injuring plaintiff, and defendant was negligent in failing to do so, it was negligent in failing to discover the automobiles upon the track and if it did discover them in time, then it was negligent in slowing its train or stopping it before striking said automobiles and preventing injuring plaintiff as alleged in his complaint.”

       In the last clear chance doctrine the duty is on the defendant to exercise care to avoid the injury after the position of peril of the plaintiff has been discovered (Shearman v. Wooldridge, 218 Ark. 16, 234 S. W. 2d 382) ; but in the Lookout Statute the duty is on the railroad company to exercise reasonable care to make the- discovery of the position of peril of the plaintiff.

       At the Arkansas Legal Institute in 1955, there was a panel discussion on Comparative Negligence. See 10 Ark. Law Review, pp. 54 to 113, inclusive. In 11 Ark. Law Review, p. 391, there is a discussion of Act No. 296 of 1957.


author: George Bose Smith, J.

text:
    Bryant v. Ark. State Highway Comm.
    5-2169
    342 S. W. 2d 415
    Opinion delivered January 30, 1961.

      Maner & Stanley, J. G. Cole, for appellant.
    ' Dowell Anders and E. Clay Robinson, for appellee.
   George Bose Smith, J.

This appeal presents a question of first impression in Arkansas: Can the State Highway Commission be compelled to file a condemnation action in order to afford aggrieved landowners an opportunity to assert a claim for damage to their lands'? The chancellor, answering this question in the negative, sustained a demurrer to the appellants’ complaint and dismissed their suit.

The complaint alleges that the plaintiffs, doing business as the Troutt Motel, own a tract of land lying on the north side of a thoroughfare designated as U. S. Highways 67 and 70. The plaintiffs’ property is separated from the highway by an access road that parallels the highway. In the immediate vicinity of the plaintiffs’ property there were formerly three exits by which prospective customers of the motel could leave the highway, cross the access road, and reach the plaintiffs’ place of business.

The complaint asserts that the Highway Commission, without notice to the plaintiffs, closed the three exits, with the result that the motel is no longer readily accessible to travelers on the main highway. The landowners allege that the market value of their property has been reduced, but their inability to sue the Highway Commission prevents them from enforcing their constitutional right to compensation. They accordingly pray that the Commission be compelled by mandamus to institute an eminent domain proceeding against the plaintiffs, to the end that a fornm may be provided for the recovery of their damages.

The chancellor was right in sustaining the demurrer, for the present proceeding falls within the constitutional prohibition of suits against the State. The controlling language of the constitution is mandatory: “The State of Arkansas shall never be made defendant in any of her courts.” Ark. Const., Art. 5, § 20. Since the decision in Ark. State Highway Comm. v. Nelson Bros., 191 Ark. 629, 87 S. W. 2d 394, it has been settled that the Highway Commission cannot be sued, and this immunity cannot be waived even by the legislature.

The suability of the Highway Commission was considered in a series of decisions closely following the Nelson Brothers case. In Ark. State Highway Comm. v. Partain, 192 Ark. 127, 90 S. W. 2d 968, it was held that where the Commission was threatening to take private property without making any provision for compensation, the landowner was entitled to enjoin the Commission from taking the property until an amount sufficient to cover the damages had first been deposited in court. Such an injunction, restraining the commissioners from acting illegally, was not regarded as a prohibited suit against the State. But where the landowner stood by and permitted the Commission to take, occupy, and damage his lands, he could not maintain an action against the Commission to recover his damages, for such a coercive proceeding would constitute a suit against the State. Federal Land Bank of St. Louis v. Ark. State Highway Comm., 194 Ark. 616, 108 S. W. 2d 1077; Ark. State Highway Comm. v. Bush, 195 Ark. 920, 114 S. W. 2d 1061.

The case at bar falls within the latter principle, for the asserted injury to the landowners had already occurred when their suit was filed. Nevertheless counsel seek to distinguish the prior cases by arguing that these appellants did not stand by and permit their property to be damaged, since it is contended that the Commission closed the exits so quickly that there was no time for ap injunction to be sought. This argument misconceives the basis for the Commission’s immunity to suit after the taking or damage has occurred. The landowner’s inability to recover damages does not rest upon the doctrine of laches, in that he has slept upon his rights. Rather, the underlying reason for the court’s holding is simply a recognition of the fact that an action to compel the State to redress a past injury would unquestionably constitute a suit against the State. Such a proceeding is plainly forbidden by the constitution.

It is also insisted that the appellants have a constitutional right to maintain the present suit. Counsel rely upon § 13 of Article 2 of the constitution, which provides that every person is entitled to a certain remedy for injuries to his property, and upon § 22 of Article 2, which declares that the right of property is higher than any constitutional sanction and that private property shall not be taken or damaged for public use without just compensation. It is contended in substance that the State’s immunity from suit is in conflict with these constitutional clauses and that the latter can be given effect only by permitting the present proceeding to be maintained.

This argument must be rejected. The framers of the constitution certainly knew that instances of hardship would result from the prohibition of suits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effect to it. The appellants’ argument, carried to its logical end, would completely destroy the State’s immunity from suit, for it could be argued in every case that to exempt the State from a coercive proceeding would be to deny the plaintiff a certain remedy for an injury he had supposedly suffered.

Lastly, the landowners rely upon decisions in other jurisdictions to the effect that a writ of mandamus should be granted in a situation like this. That is the majority view; the cases are collected in Nichols’ work on Eminent Domain (3d Ed.), § 28.21. But the controlling distinction lies in the fact that in those jurisdictions the State is subject to suit, either as a matter of right or by legislative permission. Hence there is no insurmountable objection to a proceeding which in reality constitutes a suit against the State. In the comparatively few states having a rigid constitutional provision like ours, by which the sovereign immunity is mandatory, we do not find a single case supporting the appellants’ position.

Here the complaint expressly concedes that the landowners cannot maintain an action for damages against the Highway Commission. Yet it is too plain for argument that precisely the same result would be attained by indirection if the requested writ of mandamus should be issued. Indeed, the present proceeding has no purpose except to force the Highway Commission into court, where a claim for damages can be asserted against it by the appellants. We must conclude that this proceeding falls within the constitutional inhibition against suits against the State. If the appellants have a right to compensation — a point upon which we need not express an opinion — they are limited, as we said in the Partain case, supra, to filing an administrative claim for such relief as the State may see fit to provide.

Affirmed.


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

text:
    Redmon v. Hill.
    5-2293
    342 S. W. 2d 410
    Opinion delivered January 30, 1961.

      William H. Drew, for appellants.

      W. K. Grubbs, Sr., for appellees.
   Paul Ward, Associate Justice.

The pivotal issue involved on this appeal is the construction of a warranty deed purporting to convey real estate to a man and his wife by the entirety.

Under the view which we take of the entire matter, the material facts may be briefly stated. Duncan Hill owned a residence on which he and his wife, Emma, executed a mortgage on March 1, 1935 to Sol Meyer to secure an indebtedness in tbe amount of $260. Not being able to pay the indebtedness, Hill and his wife executed a deed conveying the property to Meyer on February 24, 1936. In February, 1941 Hill and his wife paid all the indebtedness, and on October 27, 1941 Meyer and his wife executed a warranty deed, using a printed form, conveying the property to “Duncan Hill and Emma Hill.”

Hill and his wife resided on the property until Hill died in 1951 and then Emma died in 1958. After Emma’s death one of her heirs who had been living with her continued to live on the property until this litigation was instituted. This action was brought by appellees, the heirs of Duncan, to eject Bessie Shaw and the other heirs of Emma from the property. The theory on which appellees’ action was based was that the deed from Meyer merely amounted to a satisfaction of the Mortgage, thereby reinvesting the title in Duncan as if no mortgage had ever been executed, it being conceded that, since no children were born to Duncan and Emma, the heirs of Emma would have an undivided one-half interest in the property.

After a full hearing at which testimony was taken on two separate occasions, the Chancellor rendered a decree in favor of appellees. It is our conclusion that the decree must be reversed.

In reaching the above conclusion we by-pass a full discussion of some of the issues raised during the trial. One of these is whether or not the deed from Meyer merely amounted to a release of the mortgage. Another is whether appellants properly asked to have said deed reformed.

The deed from Meyer to Duncan Hill and Emma Hill, in the granting clause, contained the words “mato Ms heirs and assigns” instead of “unto their heirs and assigns . . .” (emphasis supplied.) The positive and uncontradicted testimony showed that Duncan Hill asked to have the deed made to him and his wife. Appellees do not deny this, and apparently the Chancellor recognized the fact to be established. However, the Chancellor took the view that our decision in the case Harmon v. Thompson, 223 Ark. 10, 263 S. W. 2d 903 precluded him from holding the deed conveyed an estate by the entirety to Hill and his wife. In this we think the Chancellor was in error. In two important respects the facts in the Harmon case are easily distinguishable from the facts in the case under consideration. One, in the cited case it is clear, because of the erasures and changes, that the word “his” was deliberately and purposely used instead of the word “their.” Such is not the case here. Two, in the cited case the all important fact of intent is not definitely shown, as it is in this case. It may be also added in this connection that there is substantial evidence that Mrs. Hill furnished a large part of the money to pay the debt owing Meyer. This fact substantiates the direct evidence on the matter of intent. The decision and the reasoning in the- Harmon case is sound, but it is based entirely upon the peculiar facts of that case:

In the case of Jackson v. Lady, 140 Ark. 512 (at page 523) 216 S. W. 505, this court said: “In the construction of a deed like any other contract it is the duty of the court to ascertain, if possible, the intention of the parties, especially that of the grantor.” To the same effect is the decision in Carter Oil Company v. Weil, 209 Ark. 653, 192 S. W. 2d 215, where it was stated that: “All deeds are to be construed favorably, and as near the intention of the parties as possible, consistently with the rules of law.”

As before stated, the undisputed evidence in this case shows a clear intent not only of the grantor but of the grantees to create an estate by the entirety in Hill and his wife. This being true, it is immaterial whether the original debt was extinguished or not by the conveyance to Meyer by Hill and his wife. In either event, they had a right to have the property reconveyed to them in accordance with their wishes. Prior to the passage of Act 86 of 1935 (Ark. Stats., § 50-413) it was the customary method of changing the title vested in the husband to an estate by the entirety in him and his wife to first deed to a third party and then have that party deed to the husband and wife. In such a case the nature of the title held by the third party was immaterial, and likewise, in this case, the nature of the title held by Meyer was of no consequence.

For the reasons above set forth the decree of the trial court is reversed.

McFaddin, George Rose Smith, and Robinson, JJ., concur.

Ed. F. McFaddin, Associate Justice,

concurring. I concur in the result reached by the majority in this case, as it is my view that the 1941 deed from Meyer to Duncan Hill and Emma Hill vested in the grantees an estate by the entirety.

Hill executed a warranty deed to Meyer in 1936. So far as the world knew, from an examination of the record, the legal title to the property was thereby placed in Meyer. A heavy burden would have been on Hill to prove that the absolute deed in 1936 was, in fact, a mortgage. Hill had a right to make such effort; or he had the right to affirm the 1936 deed to Meyer as an absolute conveyance and then seek a re-conveyance. Hill and his wife elected to take the latter course and sought a re-conveyance. The proof is abundant — more than sufficient — to show that Hill affirmed the 1936 conveyance to Meyer as an absolute deed and sought and obtained a re-conveyance to himself and his wife as tenants by the entirety.

This case is far different from a mere release deed of a mortgage. In that situation, there was originally only a conveyance with an express defeasance; and the release deed shows the satisfaction of the defeasance and thereby cancels the conveyance. A mere release deed by a mortgagee would not create an estate by the entirety where none had existed before, even if the mortgagor’s wife’s name appeared in the release deed. The situation here is vastly different. There was an absolute conveyance to Meyer in 1936; and Hill, instead of having that absolute conveyance declared a mortgage, sought and obtained a re-conveyance to Hill and wife in 1941, and that re-conveyance, under the facts here, created an estate by the entirety.

George Rose Smith and Robinson, JJ., join in this concurrence.


author: Sam Robinson, Associate Justice.

text:
    Wright v. Rochner.
    5-2265
    342 S. W. 2d 483
    Opinion delivered January 30, 1961.
    [Rehearing denied February 27, 1961]

      J. M. Henderson, Jr., Moncrief & Moncrief, for appellant.

      George O. Green and Wilbur Botts, for appellee.

      George E. Pike, for cross-appellant.
   Sam Robinson, Associate Justice.

This appeal arises out of a jury verdict in favor of the appellee, Julius Rochner, against appellants, Aljah W. and Nina Wright, and cross-appellant, O. Gr. Rollison, in the sum of $3,722, and a similar verdict in favor of Rollison against the Wrights in the same amount.

Appellee Rochner filed his complaint against Aljah W. Wright and Rollison, alleging an agreement he had to farm certain land belonging to Wright during the year .1958; that under this agreement he was to pay as rent one-fourth, of the soy beans and one-fifth of the rice; that 4,029 bushels of soy beans were grown and stored in Rollison’s elevator; that Rollison later bought the beans for $7,937.90; that under the rental agreement Roehner was entitled to $5,827.06 (three-fourths of the gross amount less $126.37 for cleaning), but that Rollison paid the entire amount to Wright. Judgment was prayed for in the amount of $5,827.06.

Rollison answered, denying any knowledge of a dispute between Roehner and Wright and admitted that he did purchase the beans but that Wright and his wife, Nina, had represented to him that they were the true owners of the beans. He further alleged that Nina Wright received part of the proceeds and converted same to her own use; that he had cause to believe Roehner had knowledge of the sale, made no objection thereto and was estopped to attack the transaction. Nina Wright was joined as a defendant and Rollison prayed that if any judgment be rendered against him, he in turn have judgment against the Wrights for a like amount.

Aljah W. Wright filed a separate answer, in which his wife later joined, admitting the sale of the beans and the 1958 rental agreement with Roehner. He alleged, however, that Roehner had failed to perform his farming contract for the year 1957 in not paying certain expenses he had agreed to assume, and that Roehner had in fact agreed to the sale by Wright to Rollison.

The record reflects that Roehner farmed the land belonging to Wright during 1957. Appellants presented evidence that the proceeds of that year’s operation failed to repay all the money borrowed by Roehner for making the crop and that there was not enough to pay rent on the land. As a result a new agreement was made for the year 1958 whereby Wright and Roehner were to share the crop equally. Appellants then attempted to show that in order to receive the proper rent for 1958, including an alleged carry over from 1957, Wright was entitled to all the proceeds from the sale of the beans and that Roehner had in fact so agreed..

On the other hand, Eochner offered proof to the •effect that Wright owed him a small balance from the 1957 crop; that there was no new agreement for 1958; in that the original 1957 agreement was intended to run two years; and that he was justly entitled to the amount sued for.

As to these conflicting contentions, the record is replete with evidence of various loans, advances, repayments, etc., over the two year period. It would be impossible to reconcile all these figures, and such is not our duty. The only issue in this regard is whether there is substantial evidence to support the jury’s verdict. The weight of the evidence and credibility of the witnesses are solely within the province of the jury. We cannot say after a close examination of the record there was not substantial evidence to support the award.

In entering the judgment the court below allowed "the amount of the jury verdict and in addition thereto awarded interest from December 8, 1958, the date on which the last of the soy beans were sold by Wright to Eollison. Appellants question the right of the court to award interest from that date and argue that interest should run only from the date of judgment. The record is silent as to whether the jury in its verdict included interest as a part of the award and there was no instruction ordering them to do so. In the absence of a showing that interest was included in the jury verdict, we cannot .say the court’s addition of interest was error. As we ■said above, there was substantial evidence on which the jury could base the verdict returned. Norton v. Hickingbottom, 212 Ark. 581, 206 S. W. 2d 777. One who has had "the use of another’s money may justly be required to pay interest from the time it lawfully should have been paid. White & Black Rivers Bridge Co. v. Vaughan, 183 Ark. 450, 36 S. W. 2d 672.

Appellants also urge that it was error for the court to give plaintiff’s instruction No. 2 in that it excluded •consideration by the jury of certain evidence offered by appellants for the purpose of showing loans and advances to Roclmer. The court did, however, give defendants’ instruction No. 1, which informed the jury of appellants’ defense, and ordered them to consider any and all adjustments which they deemed proper. In viewing the questioned instruction in the light of defendants’ instruction No. 1, we cannot say the court erred. It is not necessary that law applicable to all questions in the case be stated in each instruction. It is sufficient if all instructions, when considered as a whole, state the law correctly. Roland v. Terryland, Inc., 221 Ark. 837, 256 S. W. 2d 315.

Cross-appellant Rollison contends that there was no evidence upon which the jury could return a verdict against him and argues that in the event the judgment should be reversed as to the Wrights, without a reversal as to him, he would be left with a judgment against him without any testimony to support it. Since the judgment against the Wrights is being affirmed, and they have filed a supersedeas bond herein, it is not necessary to consider this possibility.

Affirmed.


author: Jim Johnson, Associate Justice. Ward, J.,

text:
    Little Rock Road Machinery Co. v. Jackson County.
    5-2261
    342 S. W. 2d 407
    Opinion delivered January 30, 1961.

      Moore, CJiowning, Mitchell, Hamilton <& Burrow, Kaneaster Hodges, for appellant.

      Wayne Boyce, Prosecuting Attorney, Fred M. Pick-ens, Special Counsel for Jackson County, for appellee.
   Jim Johnson, Associate Justice.

This appeal arises out of a “contract” in violation of Amendment No. 10 to the Arkansas Constitution. The amendment, inter alia provides that:

“The fiscal affairs of counties, cities, and incorporated towns shall be conducted on a sound financial basis, and no County Court or levying board or agent of any county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any County Judge, County Clerk, or other county officer sign or issue any script warrant or make any allowance in excess of the revenue from all sources for the current fiscal year. ’ ’

In October 1956, the County Judge of Jackson County purported to enter into an agreement with the Little Rock Road Machinery Company styled “Equipment Lease Contract.” The Little Rock Road Machinery Company delivered to Jackson County a motor grader for use in buildincr and maintaining the county roads. It was retained and nsed by the county from delivery through the year 1958 with occasional repairs and periodic overhauls. The County Judge testified that the grader was in as good condition at the end of 1958 as when delivered, ordinary wear and tear excepted. Rentals were paid in the amount called for by the “lease contract” beginning with the delivery of the machine in October 1956, for five quarterly periods. No additional rentals were paid up to January 1, 1959, at which time the county advised appellant to pick up the machine. It is undisputed that the county had possession of the motor grader for some fourteen months without making the rental payments whereupon Little Rock Road Machinery Company filed its claim with the County Court of Jackson County which disallowed the claim. Little Rock Road Machinery Company appealed from the disallowance to the Circuit Court of Jackson County which affirmed the order of the County Court.

The Little Rock Road Machinery Company has appealed to this Court from the judgment of the Circuit Court of Jackson County asserting that it is entitled to an allowance of its claim on the theory of quantum meruit.

Appellant does not contend or argue that the “contract” in the case at bar is valid. In fact, they concede that the “contract” is void. The following appears on page 34 of appellant’s brief: “It should be borne in mind that the form of appellant’s claim presupposes, and appellant concedes, that the contracts of lease with purchase option were void as violative of Amendment No. 10 to the Constitution.” In view of this concession we are not called upon to decide the validity or invalidity of the “contract” itself but are deciding the case in accordance with appellant’s concession. Certainly, this concession in the case at bar should not be construed to mean that counties are prohibited from entering into valid lease contracts.

Appellant cited and eloquently argues a number of cases seeking to sustain his position that payment should be made on quantum meruit. We have examined each of the cases cited and find that they, without exception,' are distinguishable in fact from the case at bar. The principal case upon which appellant relies as a basis for their theory is Perry County v. J. A. Riggs Tractor Company, 200 Ark. 304, 139 S. W. 2d 46. Although the facts in this Perry County ease are similar to the facts in the case at bar, we find upon review of that case that Amendment No. 10 is not raised and the court does not discuss it; in fact, the court cites the non-amendment 10 cases, cited by appellant: Ft. Smith v. Giant Mfg. Co., 190 Ark. 434, 79 S. W. 2d 440; Yaffe Iron & Metal Co. v. Pulaski County, 188 Ark. 808, 67 S. W. 2d 1017. Since questions not presented by the record cannot be considered on appeal, Hanson v. Anderson, 91 Ark. 443, 121 S. W. 736; and since constitutional questions are never decided unless necessary, Wood v. Henderson, 225 Ark. 180, 280 S. W. 2d 226; the Perry County case, supra, was properly decided on the record then before the court. In the case at bar, Amendment No. 10 is raised and as stated above, appellant concedes that the “contract” is void under its terms.

It is well settled that a contract with a county which is void because of a restriction against exceeding current revenues does not give rise to any right of recovery against the county for the value of the consideration passing under the contract although such consideration is accepted and used by the county. See: 41 A. L. R. 812, and cases cited therein. The decisions of this Court have consistently adhered to this rule. The case of Vick Consolidated School District No. 21 v. New, 208 Ark. 874, 187 S. W. 2d 948, is directly in point and controlling here. That case holds that where a contract is void because expressly forbidden by law there can be no recovery either on the contract or on the basis of quantum meruit for benefits conferred by virtue thereof. To hold to the contrary would render this constitutional provision completely useless. Even though the rule here reiterated appears to be harsh, persons who deal with county authorities in Arkansas are charged with notice that snch officials are limited in their expenditures and must make their contracts accordingly. If this were not so, such officials alone would possess the authority to deal with these individuals in such a way “in the name of progress” as could result in the bankruptcy of every county, in the State.

Affirmed.

Harris, C. J., and McFaddin and Ward, JJ., concur.

Ward, J.,

concurring. Although I reach the same result reached by the majority, yet I feel impelled, because of the important implications involved, to try to clarify one point.

The majority opinion rest on two principal points: (a) The contract involved herein is void, and (b) since it is void there can be no recovery on the basis of quantum meruit.

(a) My prime concern is with the first point. The material portions of the contract entered into by and between appellant as lessor and the county as lessee read as follows:

“The undersigned Lessee . . . leases from the Little Rock Road Machinery Company . . . the following equipment and on the following terms and conditions: (describing the machinery).

******

2. This lease period is for 3 months beginning on the 31st day of October, 1956, at a rental of $1,500.00 per 3 months . . . Leasee is granted the option to renew this lease at the end of the period hereof for further periods of three months . . .

******

6. Lessor hereby agrees to sell to Lessee the above described equipment at the end of this lease period at the price of $20,870.00 cash. In the event the Lessee exercises the option to purchase at said price, all of the rentals paid will be credited on said price. ’ ’

Amendment No. 10. The pertinent parts of Amendment No. 10 read as follows: “The fiscal affairs of counties . . . shall be conducted on a sound financial basis, and no county . . . shall make or authorize any contract ... in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made . . .”

I want to point out that Jackson County is not obligated under the above contract to make any payments, except rentals for the first three months. This the County had a perfect right to do provided only that the rentals did not exceed the revenues for that year. Therefore, in any given year the County had a legal right (as long as the rentals did not exceed the revenues of that year) to renew the lease for a period or periods of three months if it desired to do so, but it was not obligated to do so. I submit that there is nothing in that kind of an arrangement which is forbidden by Amendment No. 10.

The purpose of Amendment No. 10 is explained in Luter v. Pulaski County Hospital Association, 182 Ark. 1099, 34 S. W. 2d 770, where it is stated: “. . . that the governmental agencies named were prohibited from contracting obligations of any character in any fiscal year in excess of the revenues for that year. In other words, they must pay as they go, and can go only so far as they can pay, . . .” The purpose and effect of Amendment No. 10 was explained in different words in Lake v. Tatum, 175 Ark. 90, 1 S. W. 2d 554, where it was stated that it was the intention of Amendment No. 10 “. . . to make the revenue of each year pay the indebtedness incurred during that year and that the revenue of a subsequent year should not be applied to pay the liability of a past fiscal year, . . .”

It is my information that many counties in this state could not possibly build, maintain, and repair an adequate road system if they are denied the right to lease the necessary machinery which is often very expensive.


text:
    Consumers Co-Op. Assn. v. Hill.
    5-2301
    342 S. W. 2d 657
    Opinion delivered February 6, 1961.
    [Rehearing denied March 6, 1961]

      McMillen, Teague £ Coates, for appellants.

      Carpenter £ Finch, for appellee.
   Ed. F. MoFaddin, Associate Justice.

The appellant, Consumers Cooperative Association, is -a corporation organized under the laws of the. State of Kansas, with its home office in Kansas City, Missouri, and is authorized to do business in Arkansas as a foreign corporation (§ 64-1201 et seq., Ark. Stats.). The appellees constitute the Liquefied Petroleum Gas Control Board of the State of Arkansas, as authorized by Act No. 18 of the Acts of the General Assembly of 1957, together with all amendments thereto. The appellees will he referred to as “the Board.”

Appellant filed this suit in the Pulaski Chancery Court as a petition for writ of mandamus, praying for an order requiring the Board to issue to appellant a permit to allow appellant to act as a jobber in the State of Arkansas in selling to retail dealers containers for liquefied petroleum gas products. The complaint alleged that appellant had complied with all requirements of the Board and that the Board had “arbitrarily, capriciously acted in bad faith” in refusing to issue the permit; and the complaint also alleged that the plaintiff had no adequate remedy at law ‘ ‘ to protect itself from the injustice foisted upon it” by the Board’s refusal to grant a permit. After hearing all the evidence the Chancery Court denied the petition of the appellant, saying “The plaintiff has failed to show that it has no adequate remedy at law, and has failed to show that its other remedies have been exhausted; the plaintiff has failed to prove that it is entitled to a writ of mandamus against the defendant board ...” Prom such decree comes this appeal; and appellant urges only one point: “the Chancery Court erred in dismissing appellant’s petition for a writ of mandamus . . .”

There have been a series of legislative enactments concerning the sale and use of liquefied petroleum gas containers and equipment. By Act No. 165 of 1947, the Legislature enacted the “Liquefied Petroleum Gases Control Act.” The enforcement of that act was in the Boiler Inspection Department of the State of Arkansas. Section 2(c), (e), and (f) of the act contain the following definitions:

“(c) CONTAINER means any tank or vessel in which liquefied petroleum gases are stored or transported or in which liquefied petroleum gases are placed for utilization through a liquefied petroleum gas system, except containers used in marine or railroad service which are inspected under federal law or regulation. . . .

‘ ‘ (e) MANUFACTURER means any person manufacturing any container offered for sale in this state.

“(f) JOBBER means any person other than a manufacturer who sells or offers for sale to dealers containers and/or liquefied petroleum gases.”

Act No. 18 of 1957 transferred to the Board all the functions, powers, and duties conferred, by Act 165 of 1947, on the Boiler Inspection Division of the Department of Labor. By said Act 18 of 1957, the Board was also given authority to promulgate rules and regulations within the scope of its statutory authority. Such rules were promulgated on April 1,1958, and are the rules that were governing at the time of the matters contained in this case.

The background facts of this litigation are somewhat confusing. Without any permit from the Board, appellant (hereinafter called “Consumers”) had some tanks shipped into Arkansas for sale to a dealer at Yan Burén. These tanks were shipped to a person who had no permit to sell tanks for use in Arkansas. When the Board learned of this violation, the tanks were tagged with a danger flag and, after several months, were removed from the State. Consumers then applied to the Board for a permit to sell tanks in Arkansas as a jobber. Contemporaneously, “R. & R. Tank Company, Inc.,” of Pratt, Kansas, made application for a permit to manufacture tanks to be sold and used in Arkansas. The relation between “R. & R. Tank Company, Inc.” and Consumers is very close. Consumers owns all of the plant and equipment of “R. & R. Tank Company, Inc.,” and leases said plant and equipment to “R. & R. Tank Company, Inc.” for use in the manufacture of tanks. Consumers actually forwarded to the Board the blueprints and specifications of the tanks that the “R. & R. Tank Company, Inc.” proposed to manufacture for sale in Arkansas.

Several hearings were held by the Board with representatives of Consumers present. As to what transpired at the various hearings, the oral testimony is in dispute, and the minutes of the Board’s meetings were not introduced. At all events, the Board sent its inspector to Pratt, Kansas to inspect the plant and products of the “R. & R. Tank Company, Inc.” and found the tanks which were being manufactured at that time to be deficient in many respects. These tanks might have satisfied the requirements of other states, but they did not satisfy the requirements of Arkansas as to double welding and several other matters. Not only were the inspected tanks below Arkansas’ requirements, but the plans and specifications submitted to the Board were also below Arkansas’ requirements. The tanks that “R. & R. Tank Company, Inc.” was manufacturing bore the name and metal label of the appellant, “Consumers Cooperative Association, Kansas City, Mo.” As a result of the report of the inspector, the Board denied the application of the “ R. & R. Tank Company, Inc. ’ ’ for a manufacturer ’s permit, and also the application of Consumers for a jobber’s permit. After a lapse of five or six months, Consumers filed this mandamus action in the Pulaski Chancery Court.

I. Jurisdiction of Equity. The Chancery Court held that Consumers had not exhausted its remedy at law; and, with that holding, we agree. Equity will not take jurisdiction to grant relief when there is an adequate and complete remedy in law. Cummins v. Bentley, 5 Ark. 9; Crane v. Randolph, 30 Ark. 579; Chapman & Dewey v. Osceola Dist., 127 Ark. 318, 191 S. W. 220; Bassett v. Mutual Benefit, 178 Ark. 906, 12 S. W. 2d 893. In this case, Consumers remedy was for a writ of certiorari in the law court. In Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041, we held that certiorari in the Circuit Court was the available remedy to review the decision of an administrative board where it was claimed that the board had exceeded its jurisdiction or proceeded illegally and when there was no appeal provided by statute. We cannot treat this present suit for mandamus as a substitute for certiorari because the minutes and proceedings of the Board are not in the record before us and there is dispute as to many matters that are claimed to have transpired before the Board. In addition to Hall v. Bledsoe, supra, there are other cases holding that certiorari from the Circuit Court in such instances is the proper remedy. See also Mitchell v. Directors of School Dist., 153 Ark. 50, 239 S. W. 371.

II. The Remedy of Mandamus. The Chancery Court held that Consumers had failed to prove that it was entitled to a writ of mandamus; and with that holding we agree. The rule in this State is, that mandamus is only a limited remedy. (See article in 11 Ark. Law Review, p. 351 et seq., entitled, “Mandamus to Review Administrative Action in Arkansas.”) Certainly a writ of mandamus will not lie to control the discretion of an officer or board in issuing a permit. See Better Way Life Ins. Co. v. Graves, 210 Ark. 13, 194 S. W. 2d 10. By statute, the appellee Board, in the case at bar, was vested with' discretion to investigate and consider applications of manufacturers and jobbers, and also to provide rules and regulations governing the specifications of containers to be sold in this State. As long as the Board had discretion and acted, mandamus is not a remedy available to a dissatisfied applicant seeking to review the action of the Board.

III. Exhausting Administrative Remedies. The rule is well established that a litigant must exhaust his administrative remedies before instituting litigation to challenge the action of the administrative agency. Dixie Downs v. Ark. Racing Comm., 219 Ark. 356, 242 S. W. 2d 132; City of Little Rock v. Hunter, 216 Ark. 916, 228 S. W. 2d 58; City of Little Rock v. Evans, 213 Ark. 522, 212 S. W. 2d 28. This rule finds application in the case at bar; and gives the appellant a further opportunity to seek a permit. In the rules promulgated by the Board under date of April 1, 1958, Section Y relates to applications, and prescribes in detail the essentials and requirements. Sub-section 10 of Section V provides that any person, firm, or corporation who has made an application for a permit and “whose request for permit has been denied, may re-submit application but it shall not be considered for a period of 90 days, after date of denial.”

Appellant claims that its application for a jobber’s permit was entirely separate and distinct from the application of “R. & R. Tank Company, Inc.” for a manufacturer’s permit; but we are convinced that such contention was never made clear to the Board, and that the Board was of the opinion that Consumers intended to sell only the tanks manufacturad by “R. & R. Tank Company, Inc.” which bore the name plate of “Consumers Cooperative Association, Kansas City, Missouri.” As aforesaid, these tanks did not comply with the Arkansas requirements. Consumers now insists that if granted a jobber’s permit it will sell tanks that are manufactured by persons and corporations who hold manufacturers’ permits issued by the Board. If Consumers had made that contention to the Board as strongly as it now makes it in the brief, a different result might have been reached. So the rule for reapplying at the end of 90 days is applicable here. Instead of filing a mandamus action, as it did, Consumers could have clarified the situation with the Board by reapplying for a jobber’s permit, and listing the name of the authorized dealers from whom it would obtain tanks as a jobber. Consumers did not elect to reapply: therefore, it has not exhausted its administrative remedy under the facts in this case.

We therefore affirm the decree of the Chancery Court, but without prejudice to the right of Consumers to reapply for a jobber’s permit, definitely stating that it will sell tanks manufactured only by companies wbo hold manufacturers’ permits issued by the Board.

Affirmed.

       See, inter alia, Act No. 257 of 1957, Act No. 414 of 1957, and Act No. 76 of 1959. This last mentioned Act was adopted after the situation arose in this case.

       As aforesaid, Act No. 76 of 1959 was not governing when Consumers filed this suit in Pulaski Chancery Court on February 24, 1959, so there was no specific statute providing for appeal from a decision of the Board.

       There is a subsequent set of rules promulgated on April 1, 1960, but this case is tested by the rules of April 1, 1958.

       The rule required the name of the manufacturer to be shown.


author: George Rose Smith, J.

text:
    Cotten v. Hamblin.
    5-2327
    342 S. W. 2d 478
    Opinion delivered February 6, 1961.

      J. B. Milham, for appellant.

      John L. Hughes, for appellee.
   George Rose Smith, J.

The appellant filed his complaint in the chancery court of Saline county, seeking to set aside an adoption decree that had been entered by the probate court of that county. When the case came on for trial the chancellor dismissed the complaint upon his own motion, holding that the plaintiff had failed to state a cause of action within the jurisdiction of the chancery court. In reviewing that ruling we test the sufficiency of the complaint as upon demurrer.

The plaintiff alleges that he is the paternal grandfather of two boys, aged 13 and 11, who have been cared for almost all their lives by the plaintiff and his wife. On October 27, 1959, the Saline probate court entered a decree of adoption by which the two children were adopted by the defendants, Lyle Hamblin and his wife.

The complaint asserts that the adoption decree is void for some nine different reasons, the principal ones being that the children were not residents of the county, that the natural parents were not parties to the adoption proceeding and did not consent to it, that the Welfare Department did not recommend the adoption, and that since the entry of the decree the Hamblins have so mistreated the children that they have run away and returned to their grandfather’s home. The prayer of the complaint is “that the adoption decree is void for the reasons herein alleged, that said decree should be vacated, set aside and forever held for naught; and that plaintiff be awarded custody of said minor children, and for all proper relief.”

The chancellor correctly held that the complaint does not state an equitable cause of action. The case does not fall, as the appellant argues, within the general jurisdiction of the chancery court with respect to minors. Instead, all the allegations of fact are directed toward setting aside the adoption decree. Although the prayer asks that the custody of the children be changed, that request is evidently contingent upon the primary relief sought— that the adoption decree be vacated. Upon demurrer a pleading is to be tested by its allegations of fact rather than by its prayer for relief. Hancock v. Simmons, 223 Ark. 285, 265 S. W. 2d 537.

A petition to set aside a judgment should ordinarily be filed in the court where the judgment was rendered. In the case of adoption decrees this rule is embodied in the statute. Ark. Stats. 1947, § 56-110, see also Gillen v. Edge, 214 Ark. 776, 217 S. W. 2d 926. A chancery court has limited power to set aside the judgment of a law court, but it must be shown that there is no adequate remedy at law. Fuller v. Townsly-Myrick Dry Goods Co., 58 Ark. 314, 24 S. W. 635; Tucker v. Leonard, 228 Ark. 641, 311 S. W. 2d 167. Here that fact is not shown.

As in the Tucker case, supra, there has been no request that this case be transferred to the probate court. We accordingly affirm the decree without prejudice to the appellant’s right to apply to the probate court for such relief as he may be entitled to — a point upon which we express no opinion.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Quality Excelsior Coal Co. v. Smith.
    5-2311
    342 S. W. 2d 480
    Opinion delivered February 6, 1961.

      Hardin, Barton é Hardin, for appellants.

      Sam Sexton, Jr., for appellee.
   Paul Ward, Associate Justice.

Jack Smith was an employee of the Quality Excelsior Coal Company for many years until he quit work on February 22, 1957 because he was physically incapacitated. Although he was informed by the doctors in 1950 that he had contracted silicosis Grade 3 he continued to work, and did not file a claim until February 4, 1954.

Hearings on the claim were held before a Referee of the Arkansas Workmen’s Compensation Commission in April and May of 1954; in July and October of 1955; and in February of 1958. After his death on March 28, 1958, other hearings were held in the name of his widow. At these hearings the Coal Company, as respondent, took the position that Smith’s claim was barred by the statute of limitations — Section 81-1318, of the Arkansas Statutes, 1947.

Finally, on November 30, 1959, the full Commission found in favor of Mrs. Jack Smith, the appellee herein, in the amount of $1,995.00 — being $35.00 per week from February 22, 1957 to March 28, 1958. On July 15, 1960, this finding was affirmed by the Circuit Court. The Coal Company and its insurance carrier now prosecute this appeal for a reversal on the sole ground that the claim was barred by the statute of limitations.

Since appellants make no objection to the amount allowed (provided the claim is found to be compensable) and since they obviously concede Smith was incapacitated because of silicosis that arose out of and in the course of his employment, it is necessary to set out only such testimony as bears on the one question heretofore mentioned. In most, if not all, essential parts the evidence is not in dispute.

Smith’s regular job was that of a mechanic’s helper for which he drew union wages in the amount of $17.28 per day. He first noticed that he had some kind of a chest ailment as early as 1942 but continued his regular work. In 1950 he went to the Booneville Sanatorium for an examination where he was informed that he had silicosis Grade 3 (an advanced stage) and he was told to go home and rest. Notwithstanding this Smith continued his regular work until December 17, 1953, when he was laid off by the Company because of a work shortage. He resumed work the latter part of 1954 as a night watchman at reduced wages — $8.00 per day — until May, 1955 when he again began receiving $17.28 per day as a mechanic’s helper. He worked in this capacity, missing only a few days each month, until February 22, 1957 when he was forced to quit work because of his physical condition.

Section 81-1318 above mentioned reads:

"A claim for compensation for disability on account of injury which is either an occupational disease or occupational infection shall be barred unless filed with the Commission within two years from the date of the last injurious exposure to the hazards of the disease or infection, except that in a claim for compensation for disability on account of silicosis or asbestosis, the claim must be filed with the Commission within one (1) year after the time of disablement therefrom, and such disablement must occur within three (3) years from the date of the last injurious exposure to the hazards of silicosis or asbestosis.” (Emphasis supplied.)

Appellants base their contention on that portion of the above section which has been emphasized. Paraphrasing the emphasized portion of the statute and applying it to this case, it appears that Smith’s claim, if filed in due time, had to meet two prerequisites: (a) It had to be filed within one year after the time of disablement, and (b) the time of disablement must have occurred within three years from the date of the last injurious exposure. Appellants do not concern themselves here with the date of the last injurious exposure but only with the date or time of disablement, and take the position that this date is shown to be October 31, 1950. Therefore, they say, Smith’s claim had to be filed no later than October 31, 1951. As already seen, the claim was not filed until February 4, 1954.

The pivotal issue for discussion, therefore, is what constitutes, under the statute, the time of disablement in this case. Is it, as contended by appellants, the time when Smith was informed by the doctors that he had silicosis in the most advanced stage, i.e., a time when Smith knew or should have known he was disabled; or is it, as contended by appellee, the time when Smith actually became unable to perform his regular work?

After carefully reviewing the authorities presented by both sides we have concluded that appellee’s contention is most tenable under the facts in this case, and that, therefore, the findings of the Commission and the judgment of the Circuit Court must be affirmed. In the case of Rannals v. Smokeless Coal Co., et al., 229 Ark. 919, 319 S. W. 2d 218, this court had occasion to construe the statute here involved as it relates to the date of disablement. On a different set of facts the court held that the claim was barred by the statute, but the language used throws some light upon the point hereunder consideration. There the court said:

“It is, therefore, not the disease of silicosis, for however long a period it might have existed, but the actual disablement which determines the period of limitation, or the date of the commencement of the running of the Statute.” (Emphasis added.)

In the cited cases the claimant quit work more than a year before the claim was filed with the Commission. Such, of course, was not true in this ease. Also, we find language of like tenor in the case of Conatser v. D. W. Hoskins Truck Service, 210 Ark. 141, 194 S. W. 2d 680. There the court defined disability as meaning: “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” (Emphasis supplied.) The effect of the holding in that case was that Conatser was not disabled because he actually did work and drew the same wages he had previously drawn. This holding strongly suggests the conclusion in this case that Smith was not disabled in 1950 because he actually worked (at Ms regular job) and received the same wages as before. Appellants apparently try to escape the force of the above decision by putting emphasis on the word “earned” in the above quotation. They assert (in effect) that Smith did not earn the wages he was paid, but that said wages were paid by the Company as a Mnd of pension. We do not think the record sustains this idea of a pension, because appellants admitted that Smith did a good job af all times. At least there is ample evidence in the record to support such a finding by the Commission. We have examined the authorities from other jurisdictions relied on by appellants but find nothing to compel a view contrary to the one we have just expressed.

The Workmen’s Compensation Statute itself supports the conclusion heretofore reached. Section 81-1302(e) (under the heading of ‘ ‘ Definitions ”) says: “ ‘ Disability’ means incapacity because of injury to earn, in the same or any other employment, the wages which the employee was receiving at the time of the injury.” We also find support for our view in the decisions of other jurisdictions. See: Textileather Corporation v. Great American Indemnity Company, 108 N.J.L. 121, 156 A. 840; In re Johnson, 217 Mass. 388, 104 N. E. 735; and Madison v. Wedron Silica Company, 352 Ill. 60, 184 N. E. 901.

Smith’s decision to continue working until February, 1957 would appear to have been beneficial rather than harmful to appellants ’ financial interest. If he had quit work in 1950, as appellants insist he should have done, or could have done, it seems quite likely' that appellants would have had to pay him in excess of $8,000.00 instead of the $1,995.00 awarded by the Commission. There is ample evidence in the record to justify the Commission in finding that Smith’s work at all times was satisfactory, and that the Company would have been compelled to hire someone in his place if he had quit work. We do not favor any interpretation of the statutes which would encourage an employee to quit work for the purpose of drawing compensation when he was actually able to work. We are favorably impressed with the language employed in the case of Bianco v. Industrial Accident Commission (Cal. App.) 142 P. 2d 73, and in Hunt v. F. R. Patterson Const. Co., 253 Mich. 273, 235 N. W. 207. In the former citation the court said :

“It appears from these cases, and the rule seems eminently sound and just, that it is not the fact that the decedent may have been technically entitled to compensation that starts the statute running, even if he knew that he was so entitled, but that to have this result the injury must have culminated in a real and material disability to perform his normal work and must have resulted in a material wage loss.”

In the latter case, the court said:

“Many persons afflicted with a slight ailment causing pain and distress do not regard it seriously. They expect that it will soon pass away. Such action on the part of an employee inures to the benefit of his employer. It is apparent that plaintiff felt that he had no ground for complaint against his employer until his condition necessitated his quitting work, . . .”

It is therefore our conclusion that the judgment of the Circuit Court must be, and it is hereby, affirmed.