author: Sam Robinson, Associate Justice.

text:
    Hale v. Mansfield Lbr. Co.
    5-3191
    376 S. W. 2d 670
    Opinion delivered March 23, 1964.

      Donald Poe, for appellant.

      8ha%o, Jones & 8haiv, for appellee.
   Sam Robinson, Associate Justice.

Lawrence Victor Hale was getting out timber for appellee, Mansfield Lumber Company. He died from a heart attack while working on the job. The Workmen’s Compensation Commission denied compensation on the ground that he was an independent contractor. Hale’s dependents have appealed.

There was no written contract between Hale and Mansfield, but according to the evidence, the oral contract was that Hale was to receive $7.50 per 1,000 board feet, plus payment of the insurance premium, for skidding the logs out of the woods and loading them on trucks. Hale owned the mules and a loader used in the operation, and he hired other men to help him. There is no indication that any kind of insurance premium was in the minds of the parties except the premium for workmen’s compensation insurance; no other kind of insurance was involved.

Mansfield was removing timber from government land under a contract with the government. Even if it can be said that Hale was an independent contractor, he was an independent subcontractor, and Mansfield would be liable to his employees under the workmen’s compensation law. Huffstettler v. Lion Oil Company, 208 F. 2d 549; Hobbs Western Co. v. Craig, 209 Ark. 630, 192 S. W. 2d 116; Brothers v. Dierks, 217 Ark. 632, 232 S. W. 2d 646.

Hale was one of the workmen getting out the timber; he worked in the woods the same as the other men. Mansfield paid a premium for workmen’s compensation insurance of $11.36 on every $100.00 of remuneration paid to Hale. It can be fairly inferred that the insurance was to cover Hale as well as the other workers. The Commission held inadmissible evidence of payment of workmen’s compensation to other workers in a similar position as Hale; but we think the evidence was admissible to show it was the intention of the parties that Mansfield arrange for the workmen’s compensation insurance. Furthermore, Mansfield did procure such a policy.

It is provided in the workmen’s compensation policy of insurance procured that it specifically covers logging; that is exactly the thing Hale was doing. In fact, $11.36 was paid as a premium on every $100.00 paid to Hale. It is reasonably inferrable that if Mansfield had not agreed to pay the premium on the workmen’s compensation insurance policy, the premium money would have been paid to Hale as additional compensation for getting out the timber. From a practical standpoint, Hale was paying the premium himself.

The case of Stillman v. Jim Walter Corporation, 236 Ark. 808, 368 S. W. 2d 270, is analogous. There, the contract between the parties was that the employer would deduct 3% of the remuneration paid for the work done, and provide the workmen’s compensation insurance. It was held that the employer was bound by the contract.

In the Stillman case we did not reach the question of whether the mere payment of premiums for a workmen’s compensation insurance policy estopped the employer and insurance carrier from contending that the worker was not an employee. The Stillman case turned on the point that under the arrangement between the parties, Jim Walters was obligated to furnish workmen’s compensation insurance.

It is mentioned, however, in the Stillman ease that the weight of authority is to the effect that the principle of estoppel is applicable in a situation of that kind. We still do not reach that exact point in the case at bar because of the contract that Mansfield was to pay the insurance premium. It was further pointed out in the Stillman case that estoppel might apply where workmen’s compensation insurance had been procured on the worker, regardless of whether he was an independent contractor, because the procurement of such insurance puts the employer in a strong position to contend that the workmen’s compensation law was applicable where the employer had been sued for a common law tort. In other words, if there was a good case against the employer on a common law tort arising out of a serious injury to the worker, the employer would be in a good position to say: I am not liable for the common law tort; the workmen’s compensation law applies here. I procured a policy of workmen’s compensation insurance protecting the injured workman. The employer might not prevail in his contention, but the injured party’s action in tort would be weakened.

Under the contract between Hale and Mansfield, Mansfield was to pay the premium on the policy for workmen’s compensation insurance. The premium was paid—$11.36 for every $100.00 that was paid to Hale as remuneration for getting out the timber. In these circumstances it cannot be said that the workmen’s compensation law does not apply in this case .

The Workmen’s Compensation Commission did not reach the point of whether Hale was injured in the course of his employment. Reversed and remanded for the determination of that question.


source: Caselaw Access Project

author: Jim Johnston, Associate Justice.

license: Public Domain

text:
    Ark. State Highway Comm. v. Montgomery.
    5-3171
    376 S. W. 2d 662
    Opinion delivered March 23, 1964.

      Doivell Anders, E. Clay Robinson, for appellant.

      Terral, Raiulings & Matthews and John I. Turtle, for appellee.
   Jim Johnston, Associate Justice.

This suit involves the ownership of a 5% foot strip of land across two lots along Highway 10 in Little Bock. During 1961 appellant Arkansas State Highway Commission reconstructed Highway 10, including the part of Highway 10 that is adjacent to the property of appellees, O. T. and Maudie Montgomery. On January 3,1963, appellees filed suit in Pulaski Chancery Court against appellant, alleging that appellant claimed a sixty foot right of way adjacent to their property, but in fact had only a forty foot right of way, that appellees had never been compensated for the portion of their property claimed by appellant and sought to enjoin appellant from taking their property until condemnation proceedings were commenced.

Appellant answered denying that appellees had any right or title to any of the sixty foot highway right of way established by Pulaski County Court order of October 24, 1935, contending, inter alia, that title to the land here in question had passed by reason of such order. At trial before the Chancellor on April 22, 1963, the parties stipulated that the area in dispute is a strip 5% feet wide immediately south of the curb, along the front of appellees ’ property. It is undisputed that the County Court records show that in 1935 the Pulaski County Court entered an order condemning a right of way sixty feet Avide for Highway 10, to be constructed over an existing gravel road commonly called Little Bock West, and that in 1935 or 1936, -the Highway Commission constructed a highway consisting of approximately eighteen feet of pavement with about five feet of shoulder and five feet of ditch on each side for a total use of right of Avay of approximately forty feet. Appellant conceded that it could not find evidence of direct notice to appellees or their predecessors in title of the County Court proceedings or that any compensation Avas paid to appellees or their predecessors in title. In addition a detailed exhibit Avas introduced by stipulation shoAving the location and exact measurements of appellees ’ property, the location of the business thereon and the location of the strip of land here in dispute. After trial the chancellor found that appellant “should be restrained and enjoined from claiming, taking or using in any Avay any portion of plaintiffs [appellees’] land Avhich lies immediately south of and adjoining the present curb and pavement of Highway 10.” From the decree, appellant has prosecuted this appeal, urging as its major point that the chancellor erred in not finding that the Highway Commission had title to the disputed area of land through the county court condemnation order.

The question involved in this point is notice. In Arkansas State Highway Commission v. Dobbs, 232 Ark. 541, 340 S. W. 2d 283, Ave said that, “It is axiomatic that insufficient notice is no notice at all” and went on to say:

“In State Highway Commission v. Holden, 217 Ark. 466, 321 S. W. 2d 113, wliere there was a County Court Order without notice to the landowners the court approved this language:

“ ‘It is our view that the act of taking is not complete when the judgment of condemnation is rendered. Since such judgment may be without notice, the lawmaking body must have had in mind an order of condemnation followed by entry upon the land. Such entry, being physical and visible, affords the proprietor an opportunity to exact payment or to reqtoire a guaranteeing deposit.’ (Emphasis supplied.)

“In that case the Court said ‘... that the landowner is entitled to damages as of the date when the act of taking is complete—that is, when his lands are actually entered and taken under the order.’ ”

The issue here, then, is whether there was such notice of the county court order when Highway 10 was constructed in 1935 or 1936 as would afford the landowner an opportunity to seek just compensation for his property from the county court within the one-year statutory limitation. That burden of proof is on appellant. We stated in Arkansas State Highway Commission v. Dean, 236 Ark. 484, 367 S. W. 2d 107, that:

“Where, as here, there was no payment of compensation for the taking of land and no publication of notice proved, the burden is on appellant to prove that the land owner had actual notice of the taking of his land. Arkansas State Highway Commission v. Anderson, 234 Ark. 774, 354, S. W. 2d 554.”

Appellant in the instant case was unable to prove payment of compensation or publication of notice, and failed to show that construction of Highway 10 in 1935 or 1936 was anything more than the paving of an existing road. This being true, we have held this situation to be insufficient to put adjoining property owners on notice that additional lands were being taken. See Arkansas State Highway Commission v. Dobbs, sttpra, and Arkansas State Highway Commission v. Dean, supra.

Appellant next urges that the deed to appellees, as well as prior deeds in the chain of title, except from the conveyance “that part in the present right of way of Highway 10” and are therefore clear proof of notice of the taking of the property. There is, however, nothing within these instruments to indicate whether the grantors considered the “present” right of way to be a forty-foot or a sixty-foot right of way. It is undisputed, however, that no more than forty feet was used for highway purposes prior to 1961 and that appellees’ deed, which was introduced into evidence, under which they claim ownership was executed in June 1959. It is our view that the word “present” undoubtedly indicates the right of way to be the forty feet that was in use at the time of the conveyance. Appellees also testified as to actual use and occupancy of the property here in dispute. The detailed exhibit introduced by stipulation of the parties showing appellees ’ property and its location on Highway 10 along with the graphic depiction of the land here in dispute clearly refutes appellant’s contention that the case at bar falls within the rule of Arkansas State Highway Commission v. James, 236 Ark. 556, 367 S. W. 2d 236. We find no merit in appellant’s insistence that ap.pellees failed to prove their ownership of the property in dispute.

When Highway 10 was reconstructed in 1961, appellant ditched beside the highway within the disputed 5% foot strip and put down drain tile (culverts) as appellees had done in 1959. Appellant argues persuasively that this ditching and laying tile was such an entry as would constitute notice to appellees, and that since this action was filed more than a year after the ditching, appellees’ action, which should have been a claim for compensation in the county court, was barred by the one-year period of limitation for filing such claims. Appellees contend on the other hand that the one-year statutory limitation is not applicable to them because appellant has not taken the property; that at the most there was a temporary interruption of their proprietary úse which did not amount to a taking; that since 1959 appellees have used the 5% foot strip as part of the driveway and parking area of their cafeteria, and still do so. Appellees urge that appellant’s entry on their land Avas a temporary, occasional or incidental injury such as is discussed by the Federal District Court in Sponenbarger v. United States, 21 F. Supp. 28, rev’d 101 F. 2d 506, rev’d 308 U. S. 256. Review of the record reveals, first, that one of the appellees testified that appellant removed the drain tile appellees had installed in 1959. On questioning by the court, the witness testified that the location of their culvert Avas ‘Havo feet under the pavement.” “In other Avords, the tile you had placed there, if it had been left there, it AAmuld have been paved over today.” Second, in addition to paving over the area Avhere appellees had placed their tile, appellant ditched the disputed strip, placed 18-inch tile all the AAray across and moved a utility pole onto the strip. Third, while the highway prior to the 1961 reconstruction AAfas forty feet Avide including paving, shoulders and ditches as stipulated by the parties, it is undisputed that after reconstruction the paved portion alone of Highway 10 is forty-nine feet Avide. Finally, in appellees’ complaint appellees allege that “certain parts of plaintiffs [appellees’] property has been taken and a paved highway constructed thereon AAdthout compensation to plaintiffs. ’ ’ On trial de novo on the record before us, Ave deem these itemized facts to be more than sufficient to demonstrate an actual taking that Avould put appellee-landoAvners on notice that their land Avas being taken or had been taken, and thus start the running of the one-year limitation for claims provided for by Ark. Stat. Ann. § 76-917 (Repl. 1957). This notice afforded appellees an opportunity to seek just compensation from the county court Avithin one year after their actual notice of the taking. Appellees failed to present their claim for damages within the statutory period and are foreclosed from so doing now. Greene County v. Hayden, 175 Ark. 1067, 1 S. W. 2d 803.

Reversed and dismissed.


author: Frank Holt, Associate Justice.

text:
    Baker v. State.
    5106.
    376 S. W. 2d 673
    Opinion delivered March 23, 1964.

      Claude B. Brinton, Bon McCourtney and Lawrence Gouldman, for appellant.

      Bruce Bennett, Attorney General, By Jerry L. Patterson, Asst. Atty. General, for appellee.
   Frank Holt, Associate Justice.

The appellant, Joe T. Baker, was charged by information with the crime of involuntary manslaughter. Upon a jury trial he was found guilty of the lesser offense of negligent homicide and his punishment assessed at one year imprisonment in the county jail. From the judgment upon that verdict the appellant brings this appeal.

For reversal the appellant first questions the sufficiency of the evidence. It is a most familiar rule that upon appeal the evidence must be viewed in the light most favorable to the appellee and if there is any substantial evidence to support the jury’s verdict it must be sustained. Coffer v. State, 211 Ark. 1010, 204 S. W. 2d 376; Grays v. State, 219 Ark. 367, 242 S. W. 2d 701; Carnal v. State, 234 Ark. 1050, 356 S. W. 2d 651, certiorari denied, 83 S. Ct. 146, 371 U. S. 876. With this rule in mind we proceed to review the evidence in this case.

On March 21, 1962 appellant and his half brother, Tom Baker, were riding in appellant’s pick-up truck which was entirely on the wrong side of the road when the truck collided head-on with a vehicle driven by Kay Helton who was accompanied by his wife and child. The appellant and his half brother each contend the other was driving. As a result of the collision Mark Helton, infant child of the Heltons, was killed. The accident occurred on a straight portion of the road about three o’clock in the afternoon and visibility was clear. There was no evidence of skid marks by the Baker vehicle. It came to rest in Helton’s lane of traffic. Helton’s vehicle was found in the ditch on his side of the road some distance from the point of impact. The appellant and his half brother were thrown from the pick-up truck and appellant was found unconscious on the pavement critically injured. Tom was found in a dazed condition near the scene of-the accident.

Through the window of his store a witness observed the appellant’s pick-up truck a few seconds before the collision and estimated its speed at 70 to 75 miles per hour as it passed another vehicle. He testified that “you could count to three” after it went out of sight before he heard the impact. A broken vodka bottle was found about three feet from the right side of the truck and beer cans were also found on the floor board of the truck and at the scene of the accident. The investigating officer testified that the appellant had a strong odor of alcohol on his breath. The appellant admitted that he had had three drinks of whiskey from about 12:30 P. M. until 3 P. M. when the accident occurred. Further, that during this time he had purchased a bottle of whiskey, however, he denied opening it. There was no evidence the half brother was drinking. The half brother testified that the appellant was drunk and driving the vehicle on the wrong side of the road at approximately sixty miles per hour when the truck collided head-on with the Helton vehicle. We think the evidence in this case was amply sufficient to sustain the verdict and judgment. Craig v. State, 196 Ark. 761, 120 S. W. 2d 23; Comer v. State, 212 Ark. 66, 204 S. W. 2d 875; Campbell v. State, 215 Ark. 785, 223 S. W. 2d 505, and Walker v. State, 237 Ark. 36, 371 S. W. 2d 135.

The appellant specifically questions the sufficiency of the evidence that he was the driver of the pick-up truck. No witness could testify who was driving other than appellant and Tom, his half brother. Appellant testified that Tom had been driving him around from 12:30 P. M. until' the accident at 3:00 P. M. Tom admitted that he had made a statement under oath that he and not the appellant was the driver. In repudiating this statement he maintained that the appellant had promised him money to make the statement. He testified that he asked to drive the car since appellant was drunk and that appellant refused. Furthermore, the appellant contends that the physical facts, with reference to the position of the vehicle and where he was found unconscious and where Tom was observed in a dazed condition following the -accident, are contrary to his half brother’s testimony as to which one was driving the truck. The conflicting evidence as to which one was the driver of the vehicle was a proper question for the jury’s determination and it chose to disbelieve appellant’s version as it had a right to do. Lewis and Wren v. State, 220 Ark. 914, 251 S. W. 2d 490.

The appellant also urges “there is no proof of willful or wanton negligence ’ ’. The answer to this contention is that the appellant was convicted of negligent homicide which, according to Ark. Stat. Ann. ■§ 75-1001 (Repl. 1957), only requires sufficient proof that the appellant operated his vehicle in a reckless or wanton disregard for the safety of others. The jury was so instructed by Instruction No. 10 without any objection to it. The word “willful” is not contained in this statute. It was deleted by Act 174 of 1955 as an amendment to this statute.

Finding no error in any of appellant’s contentions, the judgment is affirmed.


author: Boyd Tackett, Special Justice.

text:
    Berry v. Gordon.
    5-3045
    Supplemental Opinion on Rehearing Delivered March 23, 1964.

      Macon & Moorhead, Garner, Shaw é Kimbrough, for appellant.

      Catlett & Henderson, Bruce Bennett, Attorney General, Mehaffy, Smith, Williams, Friday & Bowen, By Wm. J. Smith and George E. Pihe, Jr., for appellee.
   Boyd Tackett, Special Justice.

In a petition for rehearing the appellant insists that we were in error in holding that the provisions of Act 399 are severable to such an extent that Sections 1 and 2 can stand even though Section 3 is held to be unconstitutional. In the brief submitted in support of the petition .for rehearing much stress is laid upon the fact that Act 399 does not have a separability clause. Hence, it is suggested, the entire act must fall.

We adhere to our original opinion. It goes almost without saying that there has never been any requirement that an act must have a severability clause before an invalid section can be found to be separable from the rest of the act. In fact, the law has always been just the other way. “The separability clause is a comparatively modern legislative device, the courts having separated statutes long before its innovation.” Sutherland, Statutory Construction (3d Ed.), § 2408. “If the part which remains after the defective portion is severed is capable of carrying out the purpose of the legislature, the courts will have little difficulty in finding the legislative intent to make separable, even if no separability clause has been included. ’ ’ Anderson, Drafting a Legislative Act in Arkansas, 2 Ark. L. Rev. 382, 399. Both before and since the use of the severability clause became commonplace we have frequently held statutes to be separable even though no such provision was embodied in the act. Among our many cases to this effect are State v. Marsh, 37 Ark. 356; Cotham v. Coffman, 111 Ark. 108, 163 S. W. 1183; State ex rel. Norwood, v. N. Y. Life Ins. Co., 119 Ark. 314, 171 S. W. 871, 173 S. W. 1099; Greer v. City of Texarkana, 201 Ark. 1041, 147 S. W. 2d 1004. We are aware of no decision to the contrary.

Section 1 of Act 399 declared the legislative purpose to reimburse designated state officers for their public relations expense. Section 2 of the act made the necessary appropriation to carry the law into effect. These two sections, standing together, constitute a complete and workable law. The vice in Section 3 was that it would have permitted the funds to be paid out even though the expense had not actually been incurred; so it was in substance a salary increase going beyond the limits set by the constitution. Section 3 is clearly severable, for there is no sound reason to think that the General Assembly would not have wanted to reimburse these officers for expenses actually incurred even if it had realized that an appropriation in the nature of a salary increase could not be sustained.

A second contention is that we were mistaken in holding that the opinion of the Attorney General relieved the officers in question from the duty to account for the funds they had received. Counsel point out that in the cases that were cited in our first opinion the fact that the Attorney General had approved an unauthorized expenditure of public money was held to protect the disbursing officer from having to repay the funds. In none of the cases did the court hold that the Attorney General’s opinion was also a protection to the person who received the irregular outlay.

Even if counsel are correct in their position there is still an unassailable reason why the appellant cannot prevail upon this point. In a suit to compel a public officer to account for funds alleged to have been wrongfully received the plaintiff has the burden of proof. White v. Williams, 192 Ark. 41, 89 S. W. 2d 927. Here the plaintiff offered no proof upon this issue, electing instead to move for a summary judgment. The chancellor took occasion to observe in his written opinion that the plaintiff “declines to present any evidence whatever that the amounts paid to the defendants are not actual official expenses incurred by them.”

In our original opinion we stated unequivocally that “the officials are not entitled to reimbursement of expenditures not expended.” The clear implication of that statement is that upon a proper showing by the plaintiff there might be a recovery of funds to which the recipient was not entitled. At the trial the appellant had the opportunity to prove that the appellees had received public money in excess of their actual public relations expense. The appellant chose not to take advantage of the opportunity that was presented. He is therefore not in a position to insist that he be given a second chance to prove his case.

The appellant also suggests that Act 399 is a special act of the type forbidden by Amendment 14 to the state constitution. We could answer this contention by pointing out that it is raised for the first time on rehearing and is thus not properly before us. Midland Valley R. Co. v. Lemoyne, 104 Ark. 327, 148 S. W. 654; Bost v. Masters, 235 Ark. 393, 361 S. W. 2d 272. Nevertheless, inasmuch as the matter is one of public interest, we have thought it best to consider this contention upon its merits.

(Original opinion delivered January 20, 1964, p. 548.)

An act is special when it arbitrarily separates some person, place, or thing from those others upon which, but for the separation, it would operate. Webb v. Adams, 180 Ark. 713, 23 S. W. 2d 617. In other words, classification is permissible if it bears a reasonable relation to the purpose of the statute. Jacks v. State, 219 Ark. 392, 242 S. W. 2d 704. Needless to say, it is not our place to pass upon the wisdom of legislation.

We are not prepared to say that the classification in Act 399 is demonstrably arbitrary. The General Assembly expressly found that inadequate salaries were being paid to the Speaker of the House, the President of the Senate (the Lieutenant Governor), and to the constitutional officers in the executive branch, omitting only the Governor. Had these officers been state employees the legislature could have met the difficulty by increasing their salaries. But that course was not open with respect to these elected officers, for the constitution places a ceiling upon their salaries. In this situation it cannot fairly be said that the legislature was unreasonable and arbitrary in its decision to provide reimbursement for expenses actually incurred.

The appellant insists that the omission of the Governor from the benefits of the act makes the classification discriminatory. A complete answer to this contention is that the General Assembly also adopted Act 369 of 1961, which appropriated funds for the maintenance and operation of the Governor’s mansion. Inasmuch as this appropriation may be regarded as an adequate provision for the chief executive’s public relations expense, there was a sound reason for his being omitted from Act 399.

The petition for rehearing is denied.


author: Carleton Harris, Chief Justice.

text:
    Warmack v. Henry H. Cross Company.
    5-3224
    377 S. W. 2d 47
    Opinion delivered March 30, 1964.

      Keith, Clegg & Echert, for appellant.

      Mahony $ Yocum, Homer T. Rogers, Gaughan <& Laney, Lester E. Dole, Jr., for appellee.
   Carleton Harris, Chief Justice.

The issue on this appeal is whether appellant, J. B. Warmack, is the owner of, and entitled to be paid for, Ys of the Ys royalty oil or for 1/16 of the Ys royalty oil, run from the southeast quarter of the northwest quarter of Section 25, Township 15 South, Range 16 West, in Ouachita County. The record reflects that from 1935 to 1959, appellee, Henry H. Cross Company, which had purchased the oil runs from this tract, paid Warmack on the basis of the belief that he owned Ys of the % royalty, apparently relying upon a title examination by the company’s attorney. In 1959, another examination of the title was made, and this examination revealed that Warmack owned only 1/128 of the oil. The Cross Company thereupon discontinued paying Warmack, and he instituted suit. The company answered by Bill of Interpleader, making parties of all the record owners of minerals, and royalty in the lands. All answered alleging their record ownership, and asking that their title be quieted against Warmack. On hearing, Warmack’s complaint was dismissed for want of equity, and the court gave the Cross Company judgment for the overpayment ($63.29) made to appellant for the last three years. From the decree so entered comes this appeal.

Appellant’s claim is based on alleged adverse possession, and laches and estoppel. Admittedly, the only record title held by Warmack is a 1/16 of a % royalty acquired from L. L. McDonald on January 18, 1935. The conveyance was a quitclaim deed, wherein McDonald quitclaimed to appellant all of his interest to oil, gas, and minerals in the tract. Warmack testified that McDonald told him that he owned 1/64 of the oil. The deed denotes the fact that a prior conveyance had been made to a Mrs. Carrie Schavey, one of the appellees and whose royalty rights are presently unquestioned on this appeal.

We think, in disposing of appellant’s contention of adverse possession, that the chancellor’s reasoning and findings were sound. After stating that Warmack’s claim of adverse possession was based on the fact that the Cross Company paid appellant for almost 25 years on the premise that Warmack owned 1/64 rather than 1/128, the court stated:

“There are several intervening defendants in this law suit and Warmack testified that he was not claiming adversely against any of the defendants with royalty interest. In fact, he never explained whose royalty he claims to have held in adverse possession and testified that his controversy was with Cross. The other royalty owners have had actual possession of their royalty interest to which they have good record title. They have been paid for their oil runs and have never claimed anything adversely against Warmack. The proof further showed they had no knowledge of what interest Warmack was claiming and nothing Avas eATer done by Warmack to indicate he was claiming adversely against any of them. The Court, after giving this matter much consideration, is of the opinion that plaintiff Warmack could not be in adverse possession of any royalty belonging to Cross, because Cross does not have any royalty, and never has had, in this land; and it is further determined and found by the Court that Warmack has acquired nothing by adverse possession against any of the defendants and that the overpayment by defendant Cross to the plaintiff Avas a mistake by the defendant Cross AArhen making those payments to plaintiff from month to month and that he did not acquire title by adverse possession by reason of such error or mistake.

“The Court has done extensive research and finds no decision in Arkansas covering this matter. The only case I AAras able to find is Saunders v. Hornsby (Texas CA) 173 S. W. (2) 795, which Avas cited by Counsel for the defendant Cross, and the Court is of the opinion the authority of and the reasoning in that case should be accepted here and that Warmack must fail in the instant case for the same reason Saunders failed.”

Evidently, appellant emphasized the adverse possession in the lower court since that court did not comment on Warmack’s other contention, vis, laches and estoppel. Here, this last assertion is rather vigorously argued, but AAre are of the vieAA^ that the contention is AA'ithout merit. Though, during his testimony, Warmack never did state whose royalty he claimed, it finally develops that his asserted interest is in conflict with a group of appellees termed the “Hobson defendants.” Hobson made final disposition of his remaining interest in 1947 to Homer T. Rogers.

It being admitted that these appellees were the holders of the record title, the burden was on appellant to establish his claim. Appellant says that not only was there a delay by appellees of some 25 years in asserting their rights, but that, in addition, two material witnesses have died which has prevented appellant from offering evidence that would support his claim to the royalty. Warmack, in this assertion, is referring to the death of L. L. McDonald, from whom he acquired his interest, and Mrs. Maud Crawford, who handled the title work for Cross in 1935, and upon whose opinion the division order was based. The title opinion to Cross from Mrs. Crawford has been lost, nor could a copy be located in the attorney’s files. Appellant says, “Why did not Hobson, Orgain, and Hutchinson make some demand for payment for their royalty for 25 years? Appellees had a full opportunity to answer, but they chose to remain silent.” As stated, the burden was upon appellant to overcome the record title held by appellees, and there was nothing to prevent the taking of the depositions of Hobson or other “Hobson defendants,” who are still living; nor was there anything to prevent appellant from calling certain of these parties as witnesses for the purpose of ascertaining the cause of their delay in asserting their interest. In fact, one of these defendants, Homer Rogers, was in the courtroom engaging in the trial of the case. There does not appear to be any evidence that these appellees even knew that Warmack had any interest at all; certainly there is no evidence that any of these appellees knew that there was a conflict between the interest of appellant and their own interests, nor that Warmack was actually receiving royalties to which they were entitled. In fact, the court found, “The proof further showed that they [other royalty holders] had no knowledge of what interest 'Warmack was claiming * * V’ Of course, the “Hobson defendants” could not acquiesce in Warmack’s being overpaid, unless they first knew that he was being overpaid. Solely from the standpoint of logic, it would definitely appear that they were without knoweldge of this fact, for it is not human nature that persons, knowing of a right to receive money, will forego that right, and permit a complete stranger to receive it in their stead.

Of course, appellees are not bound because the Cross Company had erroneously made the payments to War-mack. Almost, appellant’s argument would seem to boil down to the fact that because appellant has been overpaid for the last 25 years, he should continue to be overpaid.

We find no error in the decree.

Affirmed.

       In Saunders, the court said: “Appellant further contends under these assignments of error that by executing the division order by which the pipe line company was authorized and instructed to pay to him the 7/64 of the % royalty interest, of which appellee was the record owner, and the receipt and collection by him of that interest constituted an appropriation pf a like portion of the oil and gas in place and was sufficient to constitute adverse possession of it. We do not think it can be said that such acts of appellant were, in any sense, an appropriation of that portion of the estate owned by appellee. By executing the division order and collecting the 7/64 of the royalty belonging to appellee, appellant merely converted to his own use the oil and gas that had already been produced by the Gulf Production Company and did not affect that which remained in the ground, which is the subject matter of this case.”

       Homer T. Rogers, Will E. Orgain, D. P. Perkins, Margaret Josephine Hutchinson, Margaret Jean Kuenstler, Bank of the Southwest National Association and D. P. Perkins, Trustees U/W of F. M. Hutchinson, Deceased: Mildred McNellie Castle, Viola McNellie Althause, Lucille McNellie Rowan, and William Benton III.


author: Ed. F. McFaddin, Associate Justice.

text:
    Pigage v. Chism.
    5-3195
    377 S. W. 2d 32
    Opinion delivered March 30, 1964.

      Brown, Compton é Prewett, for appellant.

      Mahony & Yocum, for appellee.
   Ed. F. McFaddin, Associate Justice.

The only appellant, E. J. Pigage Jr., is an 11-year-old boy and is called “Tad.” One afternoon in January 1962, while playing with a companion, Tad ran across the road in front of a car being driven by the appellee, Mrs. Chism, and Tad was struck and seriously and painfully injured. By his father, as next friend, Tad sued Mrs. Chism for damages; and Tad’s parents each also sought damages because of the injury to the minor and expenses incurred therefrom. The case was tried to a jury; and, among other instructions, the Court, without objection, told the jury:

“If you find from a preponderance of the evidence that Tad Pigage, Junior, was negligent, and that his negligence was the sole and proximate cause of his injuries, or that his negligence contributed to the cause of his injuries, then you are told that the negligence of said plaintiff is attributable to his father and mother, E. J. Pigage, Senior, and Mary E. Pigage, who are also plaintiffs in the case, and that means that negligence on the part of Tad Pigage would be the same as negligence on the part of the father and on the part of the mother, and should be treated as such by you in arriving at your verdict.”

The jury returned these three verdicts:

“We the Jury find in favor of the claim of E. J. Pigage, Senior, individually, and assess his recovery in the sum of $2,500.00.

“We, the Jury find in favor of the plaintiff, Mary E. Pigage, individually, and assess her recovery in the sum of $500.00.

“We, the Jury, find in favor of the defendant as to the claim of E. J. (Tad) Pigage, Jr., by and through his next friend, E. J. Pigage, Sr. ’ ’

Thus the jury refused to allow Tad Pigage Jr. any recovery, but awarded recovery to his mother and father in the amounts stated. The attorneys for Tad Pigage Jr. moved for a mistrial because the verdicts were inconsistent, in that a recovery had been awarded each of the parents and none awarded the boy. The attorneys for Mrs. Chism accepted the verdicts, saying:

“We will accept the verdicts as they are, your Honor. . . . . The Jury has found in favor of the defendant as to the boy . . . Now, standing alone, there is no question about the verdict. Now, if they have found a verdict in favor of the father and the mother in any amount, and the defendant accepts that verdict, then I don’t see where the court has any right to declare a mistrial. We are the only ones that could except to that. It is the defendant that could say that the father couldn’t recover, or that the moher couldn’t recover because the child did not recover, but we are not saying that. We are accepting the verdict, and I don’t believe the court has the right, or authority, to set aside the verdict of the jury in favor of the defendant as to the child. If the other two verdicts are erroneous then the people harmed by them are the ones to raise the objection, and we are not raising any. That is our position.”

Thereupon, over objections of Tad Pigage Jr., the Court accepted the three verdicts and rendered judgment in accordance with each verdict. Neither of the parents has appealed and each has accepted payment of the judgment awarded; so Tad Pigage Jr. is the sole appellant here and relies on one point, to-wit:

“The Lower Court Erred in Overruling the Plaintiff’s Motion For a Mistrial on the Grounds That the Verdicts Were Inconsistent.”

It is true that the verdicts are inconsistent in that recovery was refused the principal party (i.e., appellant) but was awarded the secondary parties (i.e., the parents of the appellant); but the appellant can claim no advantage from such inconsistency since there was a definite verdict against him as the principal party. The appellee, Mrs. Chism, if she had so desired, might have urged the matter of the inconsistent verdicts, but the appellant cannot benefit from the inconsistent verdicts under the state of the record before us since he was the primary or principal party and the verdict in his case is the controlling verdict. In 39 Am. Jur. p. 727, in discussing the right of a parent to recover from a third party for an injury caused by such party to the child, the holdings are summarized:

“Since . . . the parents’ cause of action arises out of the injury to the child, an act or omission which would not support an action by the child will not furnish a ground of action by the parent . . . The parent takes his right of action subject to any defense that could be urged against the child in whom the whole cause of action, but for the law, would vest. ”

The case of Shiels v. Audette, 119 Conn. 75, 175 A. 323, 94 A.L.R. 1206, was an action by a parent to recover for loss of services and money expended in the care of a minor son who was injured by falling off a truck owned and operated by the defendant; and the Court stated the applicable law in this language:

“. . . an essential element of the cause of action vested by law in the parent is that the compensation recoverable by him, for expenses flows from a personal injury for which, under the law, the child would be entitled to recover compensation. Proof of that fact is an essential prerequisite to recovery. If the child was not entitled to recover compensation for his injury, there can be no recovery by the parent. ‘If the injury occurs under such circumstances as do not give the child a right of action for the personal injury, the father cannot recover.’ Thibeault v. Poole (Mass.), 186 N. E. 632, 635. This principle prevails generally. Callies v. Reliance Laundry Co., 188 Wis. 376, 206 N. W. 198, 200, 42 A.L.R. 712; Tidd v. Skinner, 225 N. Y. 422, 432, 122 N. E. 247, 3 A.L.R. 1145; Vorrath v. Burke, 63 N. J. Law, 188, 42 A. 838; Winner v. Oakland Tp., 158 Pa. 405, 410, 27 A. 1110, 1111; Wueppesahl v. Connecticut Co., 87 Conn. 710, 89 A. 166; 46 C.J. p. 1303.”

The status of the appellant and the parents, as regards recovery against the appellee, is analogous to the situation of agent and principal, where the agent alone is charged with having committed a tort. When the verdict is in favor of the agent, then the principal is thereby exonerated because the agent is the primary party and the principal is the secondary party. In Patterson v. Risher, 143 Ark. 376, 221 S. W. 468, such situation was before us; and here is our holding:

“Now, under the allegations and proof in this record, if there was no negligence on the part of the servants of the appellee Coal Company, which was the proximate cause of the injury to and death of appellant’s decedent, and for which none of them were liable, then neither could the appellee Coal Company be held liable. Because, as already stated, there could be no liability of the appellee Coal Company, independent of the acts of its servants which the appellants alleges were the proximate cause of the injury.”

In the case at bar, when the jury returned a verdict against the appellant, Tad Pigage Jr., that ended his cause of action. The fact that there was an inconsistency in the secondary verdicts did not give Tad Pigage Jr. any further rights. The defendant accepted the verdicts, and Tad’s mother and father have been paid the verdicts awarded them. In asking that the secondary verdicts— in favor of the parents—control over the primary verdict against him, the appellant is, in effect, asking that the “tail wag the dog.” Appellant, alone, cannot claim any advantage because of the inconsistency between the primary and the secondary verdicts.

Affirmed.

       Attention is here called to Porter-DeWitt Constr. Co. v. Danley, 221 Ark. 813, 256 S. W. 2d 540; Citizens Coach Co. v. Wright, 228 Ark. 1143, 313 S. W. 2d 94; and Davis v. Perryman, 225 Ark. 963, 286 S. W. 2d 844.


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

text:
    Little Rock Towel and Linen Supply Co. v. Independent Linen Service Co. of Ark.
    5-3202
    377 S. W. 2d 34
    Opinion delivered March 30, 1964.

      Wright, Lmdsey, Jennings, Lester & Shults, for appellant.

      J. Allen Hanover and Wayne W. Oioen, for appellee.
   George Rose Smith, J.

The principal appellant, Jack S. Bew, was formerly the president and general manager of the appellee, a corporation engaged in the linen service business. Bew’s contract with Independent Linen provided that during his employment with the company and for a period of five years thereafter he would not be connected directly or indirectly with any other linen service company or with any laundry anywhere within Independent Linen’s territory in Arkansas, which included all the state except two small areas in the northwest and southwest corners.

In April of 1963 Bew decided to go in business for himself. To this end he created the other appellants, two corporations, and in tlieir names bought from Myron Lasker a family laundry business in Little Rock and a companion linen service business that Lasker had operated in conjunction with the laundry. A few weeks later Independent Linen brought this suit, not only to enjoin Bew from engaging in either the laundry business or the linen service business but also to compel him to transfer both his purchases to Independent Linen, on the theory that his conduct had been a violation of his fiduciary duty as an officer of the company. The chancellor entered a decree granting relief to the plaintiff on both grounds and denying Bew’s counterclaim for back salary in the sum of $17,000. All three matters are in issue upon this appeal.

First, we are of the opinion that Bew is correct in his insistence that his agreement not to engage in either the laundry business or the linen service business for five years was contrary to public policy and void. A naked contract not to compete with another is against public policy. Shapard v. Lesser, 127 Ark. 590, 193 S. W. 262, 3 A.L.R. 247. Such an agreement is permissible, however, either in connection with the sale of a going business or, as here, in connection with a contract of employment. Yet even in those instances the restraint is unreasonable and void if it is greater than is required for the protection of the promisee or if it imposes an undue hardship upon the person who is restricted. Rest., Contracts, § 515, which we quoted with approval in Marshall v. Irby, 203 Ark. 795, 158 S. W. 2d 693. Owing to the possibility that a person may be deprived of his livelihood the courts are less disposed to uphold restraints in contracts of employment than to uphold them in contracts of sale. Williston, Contracts (Rev. Ed.), § 1643; Banks, Covenants Not to Compete, 7 Ark. L. Rev. 35.

The contract before us not only provided Independent Linen with greater protection than it required; it also imposed an undue hardship upon Bew. According to the proof there is a clear-cut distinction between a family laundry and a linen supply service. A family laundry is engaged principally in laundering clothing and household linen for residential customers. A linen service company deals principally with commercial customers. Such a company owns commercial uniforms, restaurant linen, barber supplies, and the like, which the company rents to its patrons. Its routemen make calls at frequent intervals for the purpose of collecting soiled linen and replacing it with an equal supply of clean linen.

When Independent Linen and Bew executed their agreement the company was engaged in the linen service business, but never in its history had it been engaged in the laundry business. Hence its attempt to restrain Bew from entering the latter field went decidedly farther than the company’s protection required. On this point the Restatement of Contracts, § 515, gives this pertinent illustration: “A employs B for five years as manager of a cotton mill. As part of the bargain B promises not to become a manager of a mill of any kind in the city where he is employed by A for three years after the termination of the employment. The restraint is more extensive than is necessary to protect A, and the promise is illegal.”

Moreover, the attempted restraint for a period of five years was unnecessarily long and imposed an undue hardship upon Bew. The appellee relies upon Orkin Exterminating Co. v. Murrell, 212 Ark. 449, 206 S. W. 2d 185, where we upheld an employment contract containing a restraint. There, however, the business involved trade secrets, and the restriction was for only a year. We do not perceive that the linen service business really involves trade secrets. Hence the case at bar is controlled by McLeod v. Meyer, 237 Ark. 174, 372 S. W. 2d 220, where we held void an employment contract calling for a five-year restraint.

Secondly, the chancellor found that Bew had violated his fiduciary duty toward Independent Linen in purchasing the two businesses from Lasker. The decree in effect substituted Independent Linen for Bew as the purchaser of the Lasker enterprises. Bew was directed to transfer the assets of those businesses to Independent Linen, and the latter ivas directed to reimburse Bew for the amount of his payments to Lasker.

In charging a breach of trust the appellee contends that Bew purchased the Lasker properties for himself at a time when he knew that his own employers were negotiating with Lasker for the same purpose. Bew insists that his employers had already lost interest in the Lasker properties before he took any step to acquire them. This issue involves a question of fact upon which ive think the chancellor's decision to be contrary to the weight of the evidence.

We narrate only the salient points disclosed by a large record. BeAV came to Little Rock in 1955 as executive vice-president and general manager of Independent Linen. That company was then a subsidiary of Memphis Steam Laundry, Inc. In November of 1962 Moe Pear and his associates organized All State Linen Service, Inc., and purchased- all the stock of Memphis Steam. Thus Independent Linen became a subsidiary of All State.

Early in 1963 Lasker decided to sell his enterprises. He requested a Memphis attorney, Herbert Blazer, to see if Memphis Steam might be interested in the purchase. Blazer took the matter up with J. Allen Hanover, AAdio Avas the attorney for Pear and his company, All State. Pear and his associates Avere interested and had tAvo conferences Avith Blazer. They learned that Lasker owned a building in which he operated a family laundry as his main business and a comparatively small linen supply service. We think it a fair inference from the record that the Pear group Avere interested only in the latter.

Pear or some other officer of All State instructed BeAV to inspect the Lasker plant. Bew did so and made a report Avhich, as far as the record discloses, AAras entirely accurate. The appellee argues that the report may have been inaccurate and professes to have no kmrwledge about the true condition of the Lasker property. We find it impossible to believe that the appellee filed a complaint seeking to take over Bew’s contract without having first satisfied itself that the purchase was advantageous.

Bew was next instructed to see if Lasker would sell the linen supply business to Independent Linen and the rest of his holdings to others. This proposal was completely unacceptable to Lasker, who was determined to protect his employees by selling his holdings as a unit. Bew reported this fact to his employers, and in our opinion they had no further interest in the Lasker property. Charles Pear, one of the owners of All State, admitted on the witness stand that he had told Bew that if his report was correct he and his associates did not want to buy the laundry. There is no indication that Bew’s report was not correct. Lasker and his local attorney both testified that they talked to G-lazer by telephone and were informed that “the deal was dead.” Lasker also stated positively that Bew did not approach him about buying the property for himself until “the Memphis deal . . . was dead. ” Furthermore, when Bew went to Memphis to inform Pear and another officer of All State of his purchase their only protest was that he was under contract not to enter a competing business. If they were really still actively negotiating for the Lasker property that fact would surely have been mentioned at once.

In insisting that there was a breach of a fiduciary duty the appellee relies strongly upon Raines v. Toney, 228 Ark. 1170, 313 S. W. 2d 802. That case bears little resemblance to this one, for there the corporate officer undermined his own company by acquiring one of its general agency contracts for himself. This language in that opinion is really applicable here: “This doctrine of ‘corporate opportunity’ is but one phase of the rule of undivided duty and loyalty on the part of corporate fiduciaries. It does not preclude a corporate fiduciary from engaging in a distinct enterprise of the same general class of business as that which his corporation is engaged [in], so long as he acts in good faith.” We are not persuaded by the weight of the testimony that Bew acted in bad faith.

Furthermore, we are not at all convinced that the proper parties are before us. Lasker, who sold his business largely on credit, may well have an objection to the substitution of a new purchaser, especially as the contract provided for Lasker’s employment as a consultant for seven years. Yet Lasker is not a party to the case. Indeed, there is reason to doubt if Independent Linen is the right plaintiff. There is almost no indication in the proof that it was ever intended that this particular subsidiary would purchase the Lasker properties. Bew mentioned only the proposal that Independent Linen buy the linen supply business. Charles Pear testified that he asked Bew whether he thought the Lasker property should be purchased “by All State,” and whether Bew thought it would be a good purchase “for All State.” Moe Pear and his associates were officers of the parent company. Their testimony relates only in general terms to their efforts to acquire the Lasker holdings. Yet Independent Linen is the sole plaintiff. Whether Bew may have violated a duty toward All State or toward the Pear group is not an issue in the case at bar. There is almost a complete absence of proof that he disregarded any obligation owed to Independent Linen, for that company is not shown to have been interested in the Lasker properties.

Thirdly, Bew filed a counterclaim for the recovery of back salary in the sum of $17,000. Prior to the fiscal year ending May 1, 1962, Bew’s income as manager of of Independent Linen had averaged about $35,000 a year, reaching a peak of $48,400 in the last of the years mentioned. His contract of employment recited that his compensation would be fixed by mutual agreement. At the beginning of the 1962-1963 fiscal year the directors of Memphis Steam adopted a resolution setting his salary at $12,000 a year, plus five per cent of the profits. It was expected that under this resolution Bew’s income would be about $35,000.

All State bought Memphis Steam in November of that year. On or about January 1, 1963, the directors of All State notified Bew that thenceforth he would be paid a fixed salary of $20,000 a year, with no share in the profits. Bew insists that he did not agree to this arrangement, but the record simply does not support his contention. He continued to work for the company for three more months, accepting compensation at the new rate. There is no proof whatever of the amount of profits he might have received had the first resolution not been rescinded. In the circumstances he must be regarded as having acquiesced in the directors’ decision to reduce his compensation to $20,000 annually.

The decree is reversed, and both the complaint and the counterclaim are dismissed for want of equity.

McFaddin, J., concurs; Ward, J., dissents.

Paul Ward, Associate Justice

(dissenting). My dissent goes only to the second part of the majority opinion which deals with Bew’s fiduciary relation as an agent of his employers.

The majority correctly state the issue “involves a question of fact.” I cannot agree, however, with the majority that the chancellor’s decision is contrary to the weight of the evidence. In this connection it is not necessary to cite cases sustaining the well established rule that in close questions of fact we do not disturb the findings of the chancellor. The rule is based on common sense and the obvious fact that the chancellor, who sees the witness, can judge his sincerity better than we who only see the printed words.

Apparently the majority rely heavily on the fact that Pear admitted he told Bew that if his report was correct Pear and his associates did not want to buy the laundry. The record reveals, however, that Bew gave Pear no time to see “if his report was correct” before he started negotiations in his own behalf. Bew is bound to have known he was obligated to people other than Pear, but he did not even take the pains to report to them. Consider also the following:

(a) Pear (at page 211 of the record) testified:

“He [Bew] also stated to me with the exception of a new boiler he did not have a piece of equipment in his plant I would have.. I did say ‘Jack, if we look into it and find everything you say is right and not worth looking into, we would not want it ’. ”

(b) Guy Raby, President of the Memphis Steam Laundry, who, with Pear, instructed Bew to look over the Lasker businesses, testified (page 160-161 of the record) that Bew reported Lasker wanted a package deal.

“Q. Was that report that he gave you and Mr. Pear, was it favorable or unfavorable?

“A. Well at that time it did not sound too favorable.

‘ ‘ Q. What did you tell Mr. Bew at that time, to quit, cut off the negotiations?

“A. No we did not tell Mr. Bew that we were not interested because neither Mr. Pear or I were in position to give him such instructions. We had not had an opportunity to take it up with the Executive Committee or other officers of the corporations. So far as we knew negotiations were still in effect.”

(c) Mr. Pear (page 210 of the record) stated he did not tell Bew the deal was off, and (on page 212 of the record) he said, “No, I did not break off negotiations. ”

It appears to me that the majority, in concluding the chancellor found against the weight of the evidence, failed to recognize the source of the testimony relied on to show “the deal was dead” when Bew started negotiations to buy from Lasker. It should be kept in mind that Lasker and his attorney only knew what Bew chose to tell them, and also that Glazer, who was Lasker’s oivn agent, did not see fit to take the stand. Thus, we have Bew extricating himself from a tricky situation by his own “bootstraps.”

As I read the record Bew fabricated a series of incidents and relied on them in an effort to escape the fiduciary duty imposed on him by law which is clearly and uniformly announced in many of our own decisions.

In Raines v. Toney, 228 Ark. 1170, 313 S. W. 2d 802, it was said:

“The law imposes a high standard of conduct upon an officer or director of a corporation, predicated upon the fact that he has voluntarily accepted a position of trust and has assumed the control of property of others. ’ ’

In Yahraus v. Continental Oil Co., 218 Ark. 872, 239 S. W. 2d 594, the Court had this to say (quoting from 2 Am. Jur. Agency § 252, pp. 203-204):

“ ‘It is well settled that an agent is a fiduciary with respect to the matters within the scope of his agency. The very relation implies that the principal has reposed some trust or confidence in the agent. Therefore, the agent or employee is bound to the exercise of the utmost good faith and loyalty toward his principal or employer. He is duty bound not to act adversely to the interest of his employer by serving or acquiring any private interest of his own in antagonism or opposition thereto. His duty is to act solely for the benefit of the principal in all matters connected with his agency. This is a rule of common sense and honesty as well as of law.’ ”

In Collins v. Heitman, 225 Ark. 666, 284 S. W. 2d 628, we find:

“We have often stated that an agent, regardless of how innocent his intentions may be, cannot place himself in a situation where personal interests conflict with the duties owed his principal. ’ ’

In McHaney v. McHaney, 209 Ark. 337, 190 S. W. 2d 450, there appears this statement (from Walthour v. Pratt, 173 Ark. 617, 292 S. W. 1017) :

“ ‘Everyone, whether designated agent, trustee, servant or what not, who is under contract or other legal obligation to represent or act for another in any particular business or line of business, or for any valuable purpose, must be loyal and faithful to the interest of such other in respect to such business or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to it.’ ”

See also to the same effect Dudney v. Wilson, 180 Ark. 416, 21 S. W. 2d 615, and Walthour v. Pratt, supra.

I would, therefore, affirm the trial judge on the point discussed.

Ed. F. McFaddin, Associate Justice

(concurring). I concur in the result reached by the Majority, but through a process of reasoning slightly different from that shown in the Majority Opinion.

I agree with the Majority on the first point of the Opinion: Mr. Bew’s agreement not to engage in the laundry business or linen service for five years was too broad and was therefore void as contrary to public policy.

I disagree with the Majority’s reasoning on the second point. I cannot say that the finding of the Chancellor is contrary to the preponderance of the evidence. As I see it, Mr. Bew had no right to purchase the Lasker business for himself at the time he was in the employ of the appellee. I agree with most of the Dissenting Opinion of Judge Ward on this point.

But even while disagreeing from the Majority’s reasoning on the second point, I nevertheless reach the same conclusion the Majority has reached; because, as I see it, the appellee is not entitled to take over Bew’s contract of purchase from Lasker. Several points are involved here. When Mr. Bew’s corporations acquired the Lasker interests one of the integral and governing provisions of that contract was that Bew’s corporations would employ Myron B. Lasker for a period of seven years at $6,500.00 a year. Lasker agreed to work for Bew’s corporations, not for the appellee; and Lasker could not be forced to work for the appellee. Specific performance will not be granted on an executory contract to do work. Leonard v. Board of Directors, 79 Ark. 42, 94 S. W. 922. See also 49 Am. Jur. p. 157. Furthermore, Myron B. Lasker was not even a party to the record in this case Appellee might have been entitled to damages against Bew, but appellee is not entitled to an assignment of the contract of sale. Appellee proved no damages, so wins a mere pyrrhic victory on this point.

As to the third point, I agree with the Majority that no damages were proved by Bew.

So I concur in the result reached by the Majority, but still maintain that Mr. Bew should not have dealt with Lasker while Bew was in the employ of the appellee.


author: Sam Robinson, Associate Justice. Paul Ward, Associate Justice

text:
    Richards v. Nesbitt.
    5-3217
    377 S. W. 2d 40
    Opinion delivered March 30, 1964.

      John F. Parle, for appellant.

      J. Roy Howard and James R. Howard, for appellee.
   Sam Robinson, Associate Justice.

This litigation involves the adoption of two children. The appellant, Jo Aim Richards, formerly Jo Ann Nesbitt, is the mother; Donald E. Nesbitt, one of the appellees, is the father. On August 8, 1962, the Probate Court of Pulaski County, First Division, acting on authority of Ark. Stat. Ann. § 56-106 (1947), appointed Ruth Johnston, Director of Child Welfare for the State of Arkansas, as guardian of the children, with full authority to consent to adoption without notice to or consent of the natural parents.

On October 9,1962, Mr. and Mrs. 0. R. Nesbitt, parents of Donald E. Nesbitt, father of the children, filed a petition in the Pulaski Probate Court asking that -the order authorizing the adoption be set aside and that they be granted custody of the children. The natural mother, Jo Ann, filed a response resisting the petition. Miss Johnston, guardian of the children, did likewise. Seven months later, on May 23, 1963, Donald Nesbitt filed a petition concurring in the petition previously filed by his parents.

On August 8, 1963, one year after the date of the original order appointing the guardian and giving her authority to consent to adoption, the probate court granted the petition to set aside the order authorizing the adoption. The natural mother, Jo Ann Richards, and Miss Johnston, the guardian, have appealed.

In cases, involving custody of children, we have held repeatedly that the interest of the child is the first thing to be considered. Carr v. Hall, 235 Ark. 874, 363 S. W. 2d 223; Benson v. Benson, 237 Ark. 234, 372 S. W. 2d 263. Here, the custody of the children is involved; they have been placed with people who are seeking to adopt them. Appellees are endeavoring to prevent the adoption.

To avoid confusion with regard to appellee, Donald Nesbitt, father of the children, and his parents, appellees, Mr. and Mrs. C. R. Nesbitt, we will refer to the father of the children as Donald, and refer to appellant, Jo Ann Richards, the natural mother, as Jo Ann.

Donald and Jo Ann were divorced in 1960. Jo Ann was awarded custody of the children, and Donald was ordered to pay $100.00 per month as child support. It appears that for about four months following the divorce he paid nothing. Finally, Jo Ann was permitted to move with the two children into an apartment owned by Donald’s mother, Mrs. C. R. Nesbitt. Jo Ann was not charged any rent, but neither did Donald pay the $100.00 per month support for the children. The arrangement really amounted to Jo Ann paying Mrs. Nesbitt $100.00 per month rent for the apartment, which appears to be mighty high rent considering that Jo Ann worked five days a week to support herself and the children.

In the' meantime, Donald married again, his new wife having three children, and after her two children were placed for adoption, Jo Ann married again.

Along about April, 1962, Jo Ann’s situation became desperate; she was in poor health and had to undergo surgery. Her doctor advised her to rest as much as possible.

The United Fund of Little Rock, a charitable organization, maintains what is known as a Family Service Agency. One of the functions of the Agency is to counsel with and assist people, in Jo Ann’s, predicament. In April, 1962, Jo Ann went to the Family Service Agency for help. As a result, Mrs. Dick, an employee of the Agency, got in touch with Donald. He came in and discussed the matter, promising to return; however, he did not return, and the Agency could not find him until the following July.

In an effort to relieve Jo Ann’s condition as much as possible and give her a little rest, the Agency placed the children in a foster home for one week. During this time Jo Ann and Miss Nellie Reed of the Agency were discussing and considering some kind of permanent arrangement that would be for the best interest of the children. As heretofore mentioned, Donald could not be located.

About the first of June the children were again temporarily placed in a foster home. Finally it was decided that the children should be adopted by a good family who would love and care for them, and rear them in a proper manner. With this end in view, the matter was taken up with Ruth Johnston, Director of the Child Welfare Division of the State Department of Public Welfare. Miss Johnston agreed that the children should be adopted and knew people who would love to have them and who met all the requirements of the State Welfare Department to qualify as adopting parents.

Miss Reed finally got in touch with Donald and presented the plan to him. He agreed that Miss Johnston be appointed guardian and agreed to the adoption. The agreement was in writing, subscribed and sworn to before a notary public. Donald’s consent, however, was not necessary because the adoption was under paragraph 4 of Ark. Stat. Ann. § 56-106 (1947).

Miss Johnston filed a petition in probate court asking that she be appointed guardian with authority to consent to the adoption. Among other things, the petition alleges: “Appointment of a guardian is sought because the parents of said children are unfit to properly care for the children and will not be able to care for said children. That said children are entitled to the love and affection of a normal Arkansas home. The Child Welfare Division has a home to place the children where the children will receive the finest care, love and affection.” The petition was granted. The children were placed for adoption with a family living in some county other than Pulaski, and adoption proceedings were instituted in that county.

A year later, the Probate Court of Pulaski County set aside the order authorizing Miss Johnston, the guardian, to consent to the adoption. As heretofore mentioned, the natural mother, Jo Ann, and the guardian have appealed.

The probate court set aside the order authorizing the adoption principally on Donald’s testimony that he gave his consent to the adoption in the first place because he thought he would go to jail for contempt of court because of his failure to abide by the court’s order to pay monthly support for the children. The answer to that contention, however, is that his consent was not necessary in the first instance, and the order of the probate court so provides. The order states: “IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED THAT said Ruth Johnston, Director of Child Welfare, be and hereby [of the two minor children, Kimberly Dawn and Donald Mark Nesbitt] is appointed guardian of the person and estate with full right and authority to consent to adoption, without notice to or consent of the Natural Parent, or Parents; ...”

Moreover, Donald does not now say that he can or will support the-children if the adoption is blocked. In fact, he does not want the children. He testified that they would be a burden to him; he would depend on his parents to support and rear the children. There is no showing that his parents are suitable for that purpose. Furthermore, it does not appear that Jo Ann, who knows Donald’s parents, would consent to them having custody of the children, and there is nothing to indicate that the court would take the children away from Jo Ann without her consent. Donald and his parents gave Jo Ann insufficient help, if any at all, when she was in dire need of it. She consented to the adoption because in her opinion, and in the opinion of Miss Reed and Miss Johnston, it was the best thing for the children.

Appellees rely to a large extent on the case of Combs v. Edminston, 216 Ark. 270, 225 S. W. 2d 26. There, a young unwed mother had given consent to the adoption of the baby on the night the baby was born and was allowed to withdraw such consent before the entry of an interlocutory order. And in Martin v. Ford, 224 Ark. 993, 277 S. W. 2d 842, it is pointed out that consent may be withdrawn before the making of an interlocutory order. But those cases are not in point with the case at bar even though no interlocutory order of adoption had been entered in the county where that proceeding was pending until after the commencement of this action.

In the two above mentioned cases, no condition existed whereby, under the provisions of the statute, the consent of the parents could be dispensed with. Not so in the case at bar. Here, the adoption is controlled by paragraph 4 of Ark. Stat. Ann. § 56-106 (1947), which provides that the consent of the parents is not necessary where: ‘ ‘ a guardian of the child has been appointed by an order of the Probate or Juvenile Court giving the guardian authority to consent to adoption without notice to or consent of the child’s natural parents. In this case, the written, verified consent of the guardian shall be sufficient.” In the case at bar, a guardian of the children had been appointed by order of the probate court and the guardian had been given authority to consent to the adoption without notice to or consent of the children’s natural parents; therefore, under the provisions of the statute, Donald’s consent was wholly unnecessary.

In the original order it is stated that it is to the best interest of the children that the Director of Child Welfare be appointed guardian with power to consent to adoption. The evidence fully bears out that finding, and the court was in error in setting aside the order giving the guardian authority to consent to the adoption.

Reversed with directions to enter a judgment not inconsistent herewith.

Ward, J., dissents.

Holt, J., not participating.

Paul Ward, Associate Justice

(dissenting). My dissent is based on the points or issues hereafter set out.

One. The second paragraph on page 2 of the typewritten opinion indicates to me the majority consider this to be a child custody case. The two cases cited, as showing that “the interest of the child is the first thing to be considered,” are chancery cases, while the case here is appealed from the probate court. This is not a custody case, and the trial court so held, stating: The probate court “has no jurisdiction to act upon the custody of the children involved herein.” Yet, on page 4 of the opinion, the majority again state: “But, as we heretofore pointed out, the first consideration is the welfare of the children.” It goes without argument that the welfare of the children will be the prime issue when the matter of adoption is considered in the chancery court. Hence, it appears to me the majority are relyina' heavilv (if not exclusively) on something that is not even an issue in this case.

Tioo. In my opinion, only one issue is presented by this appeal, and that issue involves purely a legal question-can a parent, who has consented (in writing)-to the adoption of his child, arbitrarily revoke such consent before a preliminary or interlocutory order of adoption has been entered in a chancery court?

First, it should be pointed out that there are two ways in which a parent may give his consent for adoption. (a) One, the parent gives his written verified consent for a person (known to him) to adopt his child— as set out in Ark. Stat. Ann. § 56-106 (1947). (b) The other (as here), the parent consents for the probate court to appoint a guardian for his child with “authority to consent to adoption . . .” to some person unknown to him. See § 56-106 (IV).

In the case under consideration we are dealing with situation (b) only. Naturally, if the probate order appealed from is affirmed (that is, if the father is allowed to withdraw his consent) then the adoption proceeding (in an unnamed county, in chancery court) must fail. The majority appear to fail to understand that the father has not consented to the adoption of his children but has only consented to have Miss Johnston appomted guardian (with power to consent).

My first position is that the father is no more firmly bound in one instance than the other. Certainly the majority has not proven (or even contended) otherwise. My second position is we have already clearly indicated that (before an interlocutory order of adoption has been entered in chancery court) the parent can arbitrarily withdraw his consent. It was so held in Combs v. Edmiston, 216 Ark. 270, 225 S. W. 2d 26, and in Martin v. Ford, 224 Ark. 993, 277 S. W. 2d 842.

It is true that the Probate Court had authority to take Donald’s children away from him and appoint Miss Johnston guardian (with power to consent to adoption) without his consent. In such case, however, it was necessary to have a trial at which Donald was present or of which he had notice. In the case under consideration no such trial was held. Miss Johnston filed her petition on August 8, 1962 and the order (appointing her) was signed the same day. If a trial was held (which is not shown) Donald had no notice. The same judge who made the order later set it aside and I believe he knew more about the facts and merits of the case than this Court could possibly know.


author: Jim Johnson, Associate Justice.

text:
    Nix v. Ormond.
    5-3215
    377 S. W. 2d 11
    Opinion delivered March 30, 1964.

      John B. Driver, for appellant.

      Opie Rogers, N. J. Henley, for appellee.
   Jim Johnson, Associate Justice.

This appeal arises from a suit in ejectment filed by appellees, Hallie C. Ormond and Jeanne C. Ormond, his wife, against appellants Leatrice R. Nix and Virgil Lane in Van Burén Circuit Court on January 3, 1963. Appellees alleged that they are owners of certain property in Van Burén County, which was described and their title deraigned from the State, and alleged that appellants were in unlawful possession of the lands, using them for pasture and other purposes and prayed judgment for the recovery of their property and damages for the unlawful possession and detention of the land in the sum of $1,000.00. Appellant Lane demurred, alleging that he was merely the agent, servant and employee of appellant Nix and prayed for dismissal of the complaint as to him. Appellant Nix answered, alleging that she had first and paramount right of possession and ownership of the property under a purchase contract of November 1957 with W. C. and Mary Jenkins (appellees’ predecessors in title). She cross-complained against appellees and named the Jenkins and C. W. Scarsdale as defendants in the cross-complaint, prayed that the purchase contract with the Jenkins be specifically enforced, that the subsequent deeds from Jenkins to Ormond to Scarsdale and back to Ormond be cancelled and set aside as a cloud on appellant Nix’s title, and finally prayed damages against appellees for use of the land and hay and timber cut in the sum of $3,500.00.

Appellees and the cross-defendants demurred to the cross-complaint on the grounds, inter alia, that (1) the cross-complaint shows on its face that the alleged purchase contract was dated October 23, 1957, and the last correspondence relating to it was dated November 7, 1957, that the cross-complaint was filed on February 8, 1963, which'was more than five years after the contract was made and more than five years after the last correspondence relating to it was had; (2) that the cross-complaint shows on its face that the Jenkins had an option to return a $300.00 earnest money payment or to do such curative work as might be recommended by the title examiner and that the Jenkins exercised their option to refund the $300.00, and appellant Nix accepted the return of the $300.00, which constituted a waiver of any rights under the contract; and (3) that never having asked or insisted on performance of the purchase contract, appellant is now estopped from claiming any right under the contract. The trial court sustained this demurrer, dismissed the cross-complaint against the Jenkins and Scarsdale and found that the issues in the case were then based on appellees’ complaint and appellant Nix’s general denial. The trial court sitting as a jury-heard the testimony of the parties and their witnesses and found appellees to be the owners of the lands described in their complaint, that appellants admitted that appellees own all of this land except a small portion lying between an old slough and the present channel of the Red River consisting of approximately five acres, that appellees are the owners of the five acres and that the present channel of the Red River was the boundary of appellees’ land, that appellants failed to show by evidence any title or right of possession of any of the lands and should be ejected, and that appellees’ prayer for damages should be denied. Prom such judgment appellants have appealed, urging, first, that the trial court erred in sustaining the demurrers to the cross-complaint and in finding that appellant Nix failed to allege sufficient fraud to toll the statute of limitations.

Appellant Nix’s cross-complaint alleges that:

“1. ... [Appellant] Nix and defendants W. C. Jenkins and Mary Jenkins on October 23, 1957, made and entered into a written contract whereby [the] Jenkins agreed to sell lands described in complaint . . . for $2,500.00. Copy of said contract is attached hereto marked Exhibit “A” . . .

“2. Cross plaintiff executed and delivered to W. C. and Mary Jenkins her check to said lands in the sum of $300.00 under the terms of said contract. That cross defendants "W. C. and Mary Jenkins caused to be prepared and delivered to cross plaintiffs attorney for examination an abstract of title under the terms of said contract. October 30, 1957, the attorney’s written opinion on title was handed down delivered to cross plaintiff with a copy to cross defendants, Jenkins. Certain curative measures, of minor character, were requested in said opinion on said date and the cross defendants, in an effort to evade performance of the contract and to defraud the cross plaintiff and in deliberate breach of .said contract, by quitclaim deed conveyed said lands to cross defendants, Hallie C. Ormond on November 4, 1957.

“On November 5, 1957, cross defendants W. G. Jenkins and Mary Jenkins employed services of counsel who notified cross plaintiff that they did not desire to execute a deed required in the contract and said counsel returned in his letter to the cross plaintiff the aforesaid $300.00 check.

“Letter containing cross defendants refusal to take curative measures and check was not received by cross plaintiff until November 7, 1957, on which date cross defendants, Hallie C. and Jeanne M. Ormond conveyed said land by quitclaim deed to C. W. Scarsdale.

“O. W. Scarsdale on June 6, 1960 conveyed by quitclaim deed said lands to Hallie C. Ormond.

“3. Cross plaintiff has only recently discovered that cross defendants Hallie C. Ormond and Jeanne M. Ormond are related to cross defendant O. W. Scarsdale and wife and they are and were at all times herein referred to joint venturers in various business activities in various phases of timber and lumbering business. After conveying said lands by quitclaim deed to cross defendants Scarsdale, Hallie C. Ormond, his agent, servants, and/or employees cut the timber from said lands and sold a portion of it to Scarsdale, and in fact cross plaintiff now discovers that defendants in cross complaint H. C. Ormond and his wife have never relinquished possession, dominion and control over said lands to any persons during the period of time from November 4, 1957 to the date of the filing of this complaint.

“4. The aforesaid course of conduct by all of the cross defendants was had and done with a deliberate intent and design to cheat, hinder, and defraud cross plaintiff and to prevent her acquiring title to said property by proper conveyance from cross defendants, Jenkins, and in the enforcement of the terms of her written contract with cross defendants, Jenkins ...”

The purchase contract attached to the cross-complaint and marked “Exhibit A” contains the following-paragraph :

“First party [Jenkins] covenants and agrees to and with Second Party [appellant Nix] that they will, at their own expense, furnish to attorney for second party an abstract of title to the above described lands for the examination of said attorney; and in the event title is not approved by said attorney, they will pay back the $300.00 paid herewith, and/or will take such curative measures as are recommended by said attorney to be in a position of conveying to second party a good and merchantable and marketable title to said lands.”

The Jenkins clearly had an option to refund the $300.00 deposit or do the curative title work requested. If appellant Nix considered their election to refund the deposit and thus cancel the contract was improper or premature, the burden was on her to demand performance of the contract. More than five years has passed, so that appellant’s cross-complaint is clearly barred by the statute of limitations unless tolled by fraudulent concealment. Reviewing the pleadings quoted above, there are simply not enough facts set out to sustain, or even to really raise, the assertion of fraudulent concealment of a cause of action from appellant. As stated in Williams v. Purdy, 223 Ark. 275, 265 S. W. 2d 531, which see: ‘ ‘ There are no allegations of such affirmative and positive acts of fraudulent concealment on their part as to toll the running of the statute of limitations nor is the fraud alleged of such character as necessarily implies concealment. ’ ’

Appellants’ second point urged for reversal is that the trial court erred in rendering judgment in ejectment in behalf of appellees.

The boundary line of the five acres in dispute is described as “all that part of the N1/^ of the NE1/], of Section 16 . . . that lies North of Red River, said River being the line, . . .” [Emphasis ours.] Appellant Nix (whose property joins appellees’ property on the south) tried to prove that when the original government survey of the property was made prior to 1830, the old slough was then the channel of the Red River, that in 1956 when she had the property surveyed she had instructed the surveyor to use the old government field notes for the survey, that the then owner (Jenldns) was present during the survey, accepted the old slough as his boundary line instead of the present channel of the' Red River (all of which Jenkins denied), and thus the five acres was a part of appellant Nix’s property. The government field notes were not in evidence, apparently the testimony of the surveyor was not available and no evidence was introduced indicating that this section of the Red River ever flowed anywhere but in its present.channel. The trial court sitting as a jury heard all the evidence and testimony and found as a fact that the present channel of the Red River is the boundary of appellees’ land. Upon review of the whole case we cannot say that there is no substantial evidence to support the judgment.

Affirmed.


text:
    Johnson v. James.
    5-3218
    377 S. W. 2d 44
    Opinion delivered March 30, 1964.

      Wayne Foster, Bussell é Hurley, for appellant.

      J. Boy Howard and James B. Howard, for appellee.
   Frank Holt, Associate Justice.

This case involves a dispute among relatives as co-tenants. It was precipitated when eminent domain proceedings were instituted against the appellants and appellee as the sole heirs at law of Cato Johnson in order to acquire the title to Lots 4, 5, 6 and 7, Block 1, Military Heights Addition, North Little Hock, Arkansas. The appellee, Cato James, by cross complaint against his relatives, the appellants, sought to establish in himself the sole and absolute title to the lots. The appellants, Horace Johnson, Jr., Effie Johnson, Julius James and Dink James, his wife, responded by appropriate pleadings. The cross complaint also named other relatives, Charles Johnson and Essie, his wife, and Geneva James each of whom defaulted. The Chancellor found the issues in favor of appellee upon his cross complaint and decreed that the title to the lots in question be vested in him by adverse possession and, further, that as the sole and absolute owner he was entitled to the funds representing the value of the property acquired by the eminent domain proceedings. From such decree the appellants bring this appeal and for reversal contend that appellee’s “claim was not unequivocally hostile” to the extent “notice of an adverse claim would be presumed” to exist for “more than ■seven years prior to the commencement of this action.” In other words, appellants question the sufficiency of the evidence to vest the title in appellee by adverse possession.

When appellees’ and appellants’ common ancestor, Cato Johnson, died in 1925 the appellee was living with him on the property in question. He has continued to live on this property from that time until it was acquired by the eminent domain proceedings in 1961. During this time appellee has had the sole and exclusive possession of the four-room dwelling situated in the middle of the four lots which were fenced. Appellee testified that he expended approximately $1,500.00 improving the property by adding a bedroom and installing plumbing facilities, mortgaging the property in order to do so. The appellee has paid all taxes on the property, rented part of the property and retained the rent, and paid for the insurance. It is undisputed that when Cato Johnson died in 1925 he left a will which is in evidence without objection. By the terms of this unprobated will the property in question was devised absolutely to the appellee. It reads, in pertinent part, as follows:

“First: I devise to my grandson, Cato James, my home place in Military Heights, North Little Bock, Arkansas, consisting of four twenty-five foot lots and buildings thereon, at No. 306 West 27th Street.”

The will also provided that “I am not forgetting my grandchildren, Horace Johnson, Cato Johnson, Jr., * * 4 and Julius James.”

Appellee testified that his grandfather, the testator, had shown him the will stating “now nobody can do you no harm.” Appellee kept the will in his possession. He testified: “I told all the family about the will” and “the whole family lmowed it,” including the appellants. His aunt, Essie Johnson, corroborated appellee’s testimony that the existence of the will was known. However, she considered that appellee’s interest was limited to a life estate. Appellant Horace Johnson, Jr., contended he never knew a will existed. He admitted that he lived in the vicinity and knew of appellee’s exclusive occupancy for the thirty-six years. Appellant Effie Johnson, widow of the grandson, Cato Johnson, Jr., did not testify although it appears she is a resident of the community. Appellant Julius James, who has for many years resided in Tennessee, testified that he knew about the will and understood that it provided for appellee to have a “lifetime will oil the place.” He knew of appellee’s exclusive occupancy for the thirty-six years and was an annual visitor, often spending the night with his brother, the appellee. Appellee also testified that he understood that by the will his grandfather ‘ ‘ gave it [the property] to me, just gave it to me.”

It is well settled that possession by a tenant in common is presumed to he possession by all cotenants and where a family relationship exists, then stronger and more cogent evidence of adverse possession or hostile acts of ownership are required than where no such relationship exists. Staggs v. Story, 220 Ark. 823, 250 S. W. 2d 125; McGuire v. Wallis, 231 Ark. 506, 330 S. W. 2d 714. We have also held that knowledge of adverse possession must be made known to other cotenants directly or by notorious acts of such an unequivocal character that notice may be presumed and, further, that acts of possession, payment of taxes, enjoyment of rents and profits, and the making of improvements are consistent with a cotenancy and do not necessarily amount to disseizin. McGuire v. Wallis, supra; Griffin v. Solomon, 235 Ark. 909, 362 S. W. 2d 707; Hardin v. Tucker, 176 Ark. 225, 3 S. W. 2d 11. However, we have held that when the acts of ownership of a cotenant are of such a notorious nature as to amount to a declaration of hostility to other cotenants for more than seven years, that title by adverse possession is vested in the occupant. Jones v. Morgan, 196 Ark. 1153, 121 S. W. 2d 96; Hildreth v. Hildreth, 210 Ark. 342, 196 S. W. 2d 353; Singer v. Naran, 99 Ark. 446, 138 S. W. 958.

In the case at bar the appellee has lived on and had sole and exclusive possession of the property in question for thirty-six years exercising such acts of ownership as payment of taxes, enjoyment of rents and profits, payment of insurance made payable to him, together with possession of an unprobated will giving him the property. According to appellee the appellants had direct knowledge of the will. Until this property was acquired by eminent domain proceedings the appellants never asserted any claim to the property. When we consider these factors in the aggregate we are convinced that title to the property in question was vested in the appellee by adverse possession for more than the required statutory period of seven years. Individuals ordinarily do not slumber so undisturbed upon their property rights for thirty-six years under these circumstances.

We find no merit in any of appellants’ contentions.

Affirmed.

Johnson, J., dissents.


text:
    Ark. State Hwy. Comm.v. Byrd.
    5-3249
    377 S. W. 2d 165
    Opinion delivered April 6, 1964.

      Mark E. Woolsey and Bill B. Demmer, for appellant.

      Hall, Purcell & Bosioell, for appellee.
   Carleton Harris, Chief Justice.

This is a condemnation case. Pursuant to filing its Declaration of Taking, the Arkansas Highway Commission condemned and took possession of 0.09 acres of land belonging to C. D. Byrd and wife. On September 10, 1963, a jury was impanelled for the purpose of hearing evidence and determining the amount of compensation to which Mr. Byrd and his wife were entitled because of the taking and damage to their land. The jury returned a verdict in the amount of $7,000, and from such judgment comes, this appeal.

For reversal, the Highway Commission relies upon two points, but it is only .necessary that we discuss the first point, since we are of the view that the court committed error in permitting certain testimony. The evidence offered by appellees consisted of the testimony of Mr. and Mrs. Byrd. The Byrds had operated a restaurant for several years before the condemnation proceedings. Tliey operated in one building for about four years, and then built a new building back of the old one, tearing down the older structure in order to have space for a parking lot. In testifying, Mr. Byrd stated that a little better than half of his parking area was condemned. In mentioning various factors which were taken into consideration in reaching his determination of the before (condemnation) and after (condemnation) value, Mr. Byrd’s testimony reveals the following:

“Q. Ted, how many years did you operate out there in this old building?

A. Oh, I would say approximately four years or better.

Q. Did you include that forty-two hundred dollars in expenses that you were out when you tore down the old building in your estimate of before and after value?

A. Well, I estimated the building of the building and the tearing down and disposing of it—of what it cost to build it and dispose of it.

Mr. Stanley: At this time we move to strike the testimony of this witness with reference to the before and afer value for the reason he stated he included forty-two hundred dollars it cost him to destroy an old building prior to the time he constructed the building now in question.

The Court: Will you read back the question and answer ?

Mr. Stanley: I’ll restate the question.

The Court: If you would.

Q. Ted, in arriving at the before and after value —there’s been some testimony that it cost forty-two hundred dollars to tear down the old building and build your new building—I believe -it was forty-two hundred dollars—■

A. Yes, sir.

Q. Now, my question was did you include that in arriving at your before and after value in your claim for just compensation here today?

A. I don’t know if I get that exactly or not.

Q. Did you consider that forty-two hundred dollars when you were arriving at what you felt was the difference in the fair market value of your property before and after the taking?

A. No, sir, that was valued in on the value of the property before the taking. In other words, that’s what it cost me to dispose of the building in order to have that parking area.

Mr. Stanley: We move to strike.

The Court: Motion denied.”

Mrs. Byrd also testified that it cost around $4,200.00 to construct, and tear down, the old building. The Highway Department attorney objected to this testimony.

Highway attorney: “Your honor, we’re going to have to object to this line of questioning because it has nothing to do with the value of the premises as of 16 March 1962.”

Appellee’s attorney: “I don’t know whether it does or not, it’s a fact.”

Highway attorney: “He’s questioning now if there is evidence as to—”

Appellee’s attorney: “That they tore down a building that cost them about forty-two hundred dollars, including the cost of tearing it down, in building a new one. I mean that’s all I’m doing,”

The objection was overruled.

Of course, in arriving at a before and after value, appellees were entitled to show the value of the land, together with the improvements thereon at the time of the taking, and the value of the propei’ty after the taking—but not the cost of an improvement- that had formerly been placed on the land but which had been removed prior to the condemnation, for after the building had been removed, that portion of the land was in its original condition, and its value was neither greater nor .less because- of the fact that' a building had been located thereon for about four years.

. Appellees state that the motion of appellant was not proper because it moved to strike all of Mr. Byrd’s'testimony. We have held on several occasions that this is not a proper motion if any of the witnesses’ testimony is admissible. Arkansas State Highway Commission v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802. Arkansas State Highway Commission v. Carpenter, 237 Ark. 46, 371 S. W. 2d 535. Appellees are mistaken as to the motion made in the instant case. It will be noted .that the motion, set out above, only seeks to strike the testimony of Byrd with reference to the before and after value. This motion was proper and should have been granted. It is clear that in reaching his evaluation of the- fair market value of the entire premises before the taking, Byrd was permitted to include the cost .of constructing, and tearing down, the ,old building in’order to enlarge his parking lot, and this occurred quite a period of time before the taking by the Highway Department. Under the facts in this case, either of these costs was inadmissible.

From what has been said, it is apparent that the court erred in overruling the objection made to the portion of Mrs. Byrd’s testimony dealing with the expense of constructing and tearing down the old building, and likewise erred in refusing- to strike the testimony of Mr. Byrd in regard to the before and after value because of the fact that Byrd, in reaching his before value figure, considered the $4,200.00 which he stated was the cost of erecting and tearing down the old building.

Reversed.

       The Byrds also had their home located on the premises, a little back and north of the new building.

         A strip, approximately 38 feet wide across the front was taken.