*1 by engaging “that insurance in that held state, furnishing contract, under its members its business plaintiff club recited, hereinbefore benefits engaging is in fact the business insurance.” actually, our own could statu- cited, Other cases be tory definition “insurance” to determine is sufficient the matter. expressed, the
In accordance with the herein views judgment is reversed and the cause remanded to the Cir- cuit will Court with order which directions enter setting result in the his Commissioner Labor aside Coverage, entering, thereof, Determination lieu opinion. an order not inconsistent v. Rose Courts. 5-3074 373 S. W. 2d
Opinion delivered December
[Rehearing 20, 1964.] denied Jan. Philip Dixon, E. House, Holmes, Jeioell, & Butler appellant. *2 McDermott, S Moses, McClellan, Arnold, Oiven appellee. Wayne Hays, for Bonner, and Mitchell & Otuen boun is a Associate Justice. This McFaddin, Ed. F. dispute dary involving property 1 of and 2 line Lots County. Eapley an Inc., Estate Pulaski Rose portion corporation, 2; of the east Lot Arkansas owns Harry portion Hastings and L. and wife1 own the west Eunning Lot 2 of north and between Lots 1 and south unopened an there ivas and is avenue 40 feet east wide, litigants to and west, the of the herein on against lots abut said unopened brought avenue. Eose Courts this suit Hastings Chancery to have the Court the true establish unopened of location the en avenue, 40-foot and also to trespass join Hastings alleged from on Eose Court’s unopened property of west the avenue. Rose Courts unopened claimed that the of where avenue 84 was about feet east Hastings Hastings claimed it to claimed: be. (a) previous litigation judicata against was res Rose (b) and if Courts; the res were sustained, unopened avenue was 84 feet west of where Eose Courts any way claimed it to be. Neither side claimed title in unopened to the avenue. litigation
The considerable historic back ground. In 1872 the Pulaski the Probate Court directed Eapley administrator of the Estate of Charles to file plat portions plat of of 10, 11, Sections and 14. This Eapley filed and showed said Lots numbered to 8 containing approximately Estate, each lot2 acres; and plat unopened (and unnamed) the showed avenue running feet wide to east west, north and south, separating Lots 4, 5, 8 on the east side the ave nue from 2, 3, 6, Lots and 7 on the west side of the avenue. plat definitely property The did not show the whether original Harry Hastings wife, The defendants were L. and in litigation they course transferred their title to the Realty Company, corporation. an Arkansas We to continue refer to all “Hastings.” of the defendants as instances, they In some are referred to as “lots” as others “blocks”; interchange but the of these words is not a material matter litigation. Rapley immediately was- Estate
line west of Quapaw Quapaw Addition, of Cox’s Line the line hun- and several addition feet to west which is 170 east plat to feet and south. This failure dred north prob- Rapley Estate was west establish said line origin ably litigation be mentioned. herein to subsequently Except judicata, the matter simply be could be stated: detail, discussed in issue Rapley Qua- if the west line of the Estate bordered paw should then avenue here involved Line, the 40-foot by Hastings; if west line of be Rapley contended Quapaw then Addition, bordered Cox’s Estate Rose. the 40-foot avenue should be as contended strip involved words, other of about 84 feet is *3 present litigation, right depending lo- about the on who is unopened cation of the avenue.
A record made in the Trial Court voluminous plats, surveys, consisting of court scores exhibits engi orders, deeds, other A number of and instruments. repudiated surveyors and and some even testified, neers plats previously location of the their own as to made place repudiation 40-foot tended to avenue. Such grave 40- issue in doubt as actual location of the to the strip.3 Hastings’ plea Trial denied foot The Court place fixed avenue at res the 40-foot Hastings by urged Courts; from that decree Rose appealed, points: urging two present holding “1. The in not Trial Court erred Chancery barred No. action reason of Pulasld Cases the law 82474, 90142, 101718, No. based on judicata. forty locating foot “2. The erred Court Survey of Decem- avenue as shown on C. T. Brandt 11, ber 1947.” appellants’ point because
We do not reach second plea Hastings’ are we convinced give have and we now situa- sustained; should been Raper Morrow, W. 2d sub On this see 259 S. sequently discussed. plea. applicability First, which such tions show litigant give from the various we the line of title each duly all recorded: deeds, present appellee,
(a) its received Courts, the Rose Ar- 1950; deed from dated June Arkansas from Arkansas Real kansas Courts received its deed Company, Ar- 1949; and Inc., Estate dated December Company, Real deed from kansas Estate Inc. received its April Company Little Rock Investment 1947. dated (b) Harry their L. and wife received deed May McCord, 1955; from C. C. Mc- C. dated C. Cord received his deed from the Arkansas, State of dated December Chancery
Certain cases in the Pulaski need Court to be identified:
(a) plain- Case No. 82474 was C. McCord, C. as against Company, tiff, Real Arkansas Estate Inc., February defendant. The decree rendered 1949 re- cited that Rapley title McCord’s to the west 156.3 feet of 1Lot (that along unopened
Estate would be ave- nue) quieted, boundary and that the line between (to 1) Rapley Lot 1 and 4Lot the south of Lot Estate plat being “is shown Exhibit 8 same herein, *4 survey made C. T. Brandt It December 1947.” portion will be observed that McCord owned his 1Lot May Company, until and that Real Arkansas Estate portion Inc. owned that of Lot 2 its until December and parties present litigation through to claim respective parties in said Case No. 82474. (b) Chancery Case No. 90142 the Pulaski in Court by voluntary unimportant. was dismissed non-suit and is (c) Chancery Case No. 101718 in the Pulaski Court styled, Company, was Arkansas Real Estate Inc., as plaintiff, v. C.C. McCord and wife, and filed defendants, January 18, 1955. In that case the Real Arkansas Estate Company, ownership Inc. claimed of the west feet Rapley (same portion being Block Estate Hastings property). It will be observed that Arkansas conveyed Lot title to Company, its Inc.
Real Estate Real yet Arkansas in 1955 Courts, in to Arkansas claiming against McCord Company, Inc. was Estate Against in Rapley claim such Lot Estate. from feet pleaded in Case decree that the McCord Case against Estate Real Arkansas No. 82474was res July Company, 1955, McCord’s decree of Inc.; plea was sustained. Chancery
(d) Court in the Pulaski No. 107579 Case pleaded Hastings present earlier case; is the jiodicata. as res cases Traylor, Courts, of Rose
Mr. R. M. President corporations, predecessor of both of the also President Company, Real Estate Arkansas Arkansas case; Rose this was called as witness Courts Inc., Traylor' that Mr. on cross examination and 84 admitted present feet the same 84 feet involved suit was that on No. 101718. It is true that was Case involved4 Traylor he did re-direct examination Mr. claimed attorneys previous alleged what know his had Traylor’s testimony: Here is Mr. you Traylor, regard Mr. have testified conversation “Q. shortly you subsequent Hastings west Mr. had between and Mr. or after Hastings’ Rapley purchase part i of Lot 1 Block Estate? did, I “A. sir. you shortly you lawsuit And testified that thereafter filed a “Q. against Hastings? Mr. Well, along I It that same “A. think it was after that. about many days was, I but it time. don’t how or weeks or months remember up bought leading property to a and it came to it after sup- claiming. (Emphasis head about this ours that he 8U feet plied.) exactly you talking are about Was not that 84 feet that “Q. lawsuit now? same 84 feet that is involved here “A. That 84 that in this feet involved lawsuit? Yes. “Q. you present “A. number lawsuit? mean the What of this Do lawsuit? Yes, sir. “Q. you lawsuit, that “A. number not that 82474 What is the is it? *5 ago, had awhile No, No. 107579. “Q. course, (Emphasis supplied.) woidd be. “A. it Of Wait minute. “MR. MITCHELL: a goes you prevail if “A. There about where street suit property, you is.” whatever over into our would come 84 feet against Traylor’s but Mr. admission must stand cases; admission Rose which he is President. Such identify Traylor extrinsic evidence to Mr. is sufficient previous litigation in the with land land Hastings’ plea present litigation and to establish res judicata. Company, true Real Estate It is that Arkansas conveyed by Inc. had deed before to Arkansas Courts plea in but decree Case No. nevertheless judicata successfully res used in No. Case support plea; such Case No. 82474 as the for Traylor’s admission that in the land Case present the same as that claimed Rose Courts present ease land in establishes that the suit is the same as the land involved in Case No. 82474. ex- Such plea supports judicata. trinsic evidence of res judicata,” literally words, The Latin “res trans English thing freely lated adjudged”; into mean “a English translated into cided.” In Mo. mean “the matter been de McGuire,
Pac. RR. Co. v.
TVehave privity McCord, in that to Court show privity Beal Estate with Arkansas in and Bose Court is Company. supra, we said: McGuire, In Mo. Pac. v. discussing are in who 957, Am. Jur. “And 30 ‘In judicata, privies stated: it is rule of res within the per- privity may involves a general, be said that such it repre- that he with another interest identified son so legal right. that been declared It has sents same privity meaning doctrine of res of the within the subject-matter of privity to the it relation exists strictly litigation, to be construed and that the rule is parties claiming See the same title.’ under mean to Meyers 958, 2d Eichenbaum, Ark. 150 S. W. 438, 202 v. cited.” and authorities there eases Cyanamid 227 Ark. Co.,
In Cook v. American 2d we S. W. said.: parties identical that the are not “The contention judicata without merit. See under the doctrine of res Hervey, Ark. 3 W. 2d to v. S. Collum judicata, grantee, doctrine effect that a under the grantor.” privy to the stands in relation Carrigan Carrigan, Ark. 2d v. 236 S. W. quoted language 579, we United Su- States 606, preme Place, which v. U. S. Court Russell approved by language Mr. Battle in had been Justice Wall, which lan- S. W. McCombs guage is:
“ undoubtedly judgment that a ‘It is settled law competent upon question jurisdiction di- a court of ques- rectly that in one suit as to involved is conclusive parties. to But tion in another between the same suit appear operation judgment give to must either upon by extrinsic evi- record, the face of the or be shown precise question deter- dence, that the was raised and any uncertainty on If there be mined the former suit. example, appear if it record—as, this head in the upon may litigated, have been matters several distinct passed, judgment may have or more of which the one indicating litigated, which of without upon them thus judgment which the rendered,—the whole sub- ject-matter open large, of the action will be at *7 uncertainty by a new unless contention, be removed showing precise point extrinsic evidence the involved and apply judgment, give determined. To the and effect adjudication actually the made, when the record leaves ” the matter doubt, in such evidence is admissible.’ previously Traylor’s
Here, as we have Mr. shown, testimony clearly was the extrinsic evidence which strip that showed the 84-foot here in issue was the same strip in issue in Case No. in 82474, that Case plea judicata 101718 the urged successfully of res (predecessor in favor of McCord Hastings) in title to strip. to the said Raper, 84-foot In Morrow v. 259
414, S. W. 2d 499, Mr. Justice Millwee said: plaintiff contention “There is no that the 1946 judgment only obtained fraud or collusion. The surveyors contention that the made a mistake in estab lishing boundary in line if suit. The fact, true, question boundary may that the line have been erroneously determined in the former suit not im does pair judgment conclusiveness of valid rendered competent jurisdiction, a court of which has not been set appeal. Tri-County aside Highway corrected on Im provement Bridge Dist. v. Co., Vincennes 170 Ark. 627; 278 S. W. 188 Ark. v. Strauss Missouri Co., Ins. State Life 66 Judgments, 299; S. W. 2d Am. Jur., Judgments, § 156; C.J.S. 704.” § In v. Timmons Brannan, 225 Ark. 2d S. W. previous had there been a case to establish boundary parties; line between the then Timmons later attempted to show (called Ridge that there awas street Street) properties between the of Brannan Timmons, we judicata, held the first saying: case to be res
“ plea determining ‘The test in presented is not alone whether the matters in subse- quent litigated in suit were a former suit between necessarily parties, same but whether such matters were litigated might in the have been within issue ’ in whether the matters former The is not suit. test actually litigated be- former suit were second suit parties, whether such matters were neces- tween the hut might litigated sarily been within the issues and have suit.” the former v. strongly on Fawcett Appellee relies cites v. and McCombs 2d Rhyne, 63 W. Ark. S. cases neither these hut 876; 50 W. Wall, Ark. S. Rhyne we held ruling In Fawcett at bar. case parcel larger concerning in a adjudication one that the parcel, regard to another tract was not res previous case. larger included tract, nothing, either held that there was we McCombs v. Wall *8 identify land to the evidence, extrinsic or in the record original having the been in case as the second involved judicata The two established. was not and thus res case, appellee correct, hut the law the are relied on cases applicable at case to the cases is not enunciated bar those there evidence here, is extrinsic because, previous now was also involved tract involved litigation.
Finally,5 Ark. Jacobs, 286, 231 we mention Rose v. approval quoted from 2d wherein we 170, 329 S. W. 50 “Judgments” § 763: 293, C:J.S.
‘‘ ‘ identity parties a not mere matter Since of is judicata form, of hut of rule of res should substance, parties. Thus, be defeated minor separate not where the differences of the fact same, issues suits are the parties precisely that the are not identical not neces- is sarily prior judgment, fatal to the conclusive effect of the * * * identity a rule, and that there must he a substantial substantial is sufficient. This
identity parties of 5 cited, we have of heretofore number to the cases addition judicata germane points to the dis which are here cases on other Suddoth, 960, 218 Ark. 239 cases are: cussed. such Watson Some v. Court, 602, Supreme 885, S. 342 U. S. 96 2d 2d certiorari denied U. S. W. Langford Griffin, 174; 179 Ark. 17 S. 72 Ct. W. L. Ed. S. v. Co., 296; Lmbr. Lmbr. Co. v. 125 Ark. S. W. Jones Wisarkana McLeod, 405, 131 405; 1068; Sherrick, Ark. S. W. Sauls Cleveland-McLeod v. v. 269; Clark, Gordon 182 S. W. v. Ark. Nunnally, 751; 19; Lillie v. Ark. 199 S. 2d 232 S. W. W. Meeks, Barton 193 S. Ark. W. 2d subject on the fundamental matter, based deprived well as property principle man that no can be his except by process principle due which law, States has been embodied in the Federal Consti- United and in the It tution, constitutions several states. holding held that the true reason also been judicata necessarily identity privity issue res parties, policy litigation law to end of by party preventing a who has had one trial fair question again drawing controversy, it into from fact plaintiff deliberately that a ivho selects his onion is f judgment cm bound adverse therein ioi a secooiclsuit involvioig though issues, the same eveoi ioi the defendant party, privity party, secooidsuit ivas aoiot ioi oior with a ” ioi the suit.’ first Hastings’ plea we
So conclude that of res be Chancery sustained; should and it follows that decree is reversed and the cause remanded, with direc- ’ plea Hastings tions to sustain complaint
dismiss the of Rose Courts. George Rose Smith, & Johnson, Ward JJ., dissent. (dissenting). Today’s J., George decision Rose Smith, unjust. demonstrably Realty In that *9 Company acquiring strip a of to which is land it no has only the title whatever. On merits five witnesses experience engineering surveying testified. All five disputed boundary of them fixed the line in accordance appellee findings of with the contentions the and the of syllable testimony the chancellor. Not one the to con- by trary Hastings. strip actually was offered That the appellee’s lies within the tract described in the is, deed undisputed the an us, on record before fact. Hastings emerges
Yet as the owner of the land. This through application result comes about of the doctrine Despite judicata. majority’s protracted res the dis- elementary principles cussion of law, far I as as can judicata actually the rule of res nothing see has at all to do with this case. chancery first, The earlier’ are involved.
Two cases present possibly the cannot be conclusive of No. litigation majority. That not found to the and is be so point controversy. There concern case did not the now only boun- the issue the true location of the southern dary nothing the Lot 1. That issue to do with had boundary of the western Lot 1, true location now happened dispute. It that No. 82474 there Case plat, prepared surveyor’s a the filed with reference to boundary, erroneously southern boundary that the located ivestern Hastings’ present
in accordance with conten- wholly tion. But that error was extraneous to the con- troversy chancery then before the not to did lead court, binding fixing boundary decision the western line, interpreted by majority not so is bar. in the case at chancery Arkan- first case decision After the Company conveyed interest in Lot its sas Eeal Estate appellee, Eose Courts. Thereafter second to this litigation chancery That was decided. case, boundary dispute; point now in involve the did party appellee, was not a to Courts, Eose that represented plaintiff party. The nor was case Company, already Eeal Estate which had Arkansas was conveyed 2 to Lot Eose Courts. Yet that is the decision majority judicata. hold to be that opinion majority I do having studied after Even litiga- grantee bound how it is understand property brought by grantor been its tion after bewildering grantee. conveyed result seems This to president.of solely Traylor, reached because be to (inadvertently, happened testify Eose majority realize) that the land now contro- seem to versy in the second tract as that involved is the same chancery case. single
Although in a record several statement support upon pages main seized as the hundred *10 today’s I can even state- as far as see not decision, being justifies If this declared. ment result testimony scrap Traylor’s a statement treated as location of western of fact—an assertion of true clearly boundary—then only inadvertent also flatly by, engi- contrary to, and overcome wealth of neering testimony that the location of the establishes question. boundary beyond Tray- if On hand, the other upon creating lor’s statement is somehow looked estoppel against corporation merely of which ishe estop- an officer, the short answer is that there can be no pel change because there has been no no reliance, position, part consequence on the of this testimony. isolated bit of
I majority think the decision to be a serious mis- carriage justice. join and Johnson, JJ., in this dissent.
Ward
Rogers
v. State.
Opinion December 23, delivered
[Rehearing 27, 1964.] denied Jan. appellant.
Eugene Moore, for W. Attorney by Jerry Bennett, L. Pat- General, Bruce Anthony, Attorneys Beryl Jr., F. Assistant terson and appellee. General,