author: George Rose Smith, Justice. Conley Byrd, Justice,

text:
    Nadine Miller HAWKINS v. STATE of Arkansas
    5672
    475 S.W. 2d 887
    Opinion delivered February 14, 1972

      Alfred J. Holland, for appellant.

      Ray Thornton, Attorney General; Jimmy Patton, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In May of 1970 the appellant pleaded guilty to a charge of overdrafting and received a five-year sentence, which was suspended during good behavior and upon the payment of costs and the making of restitution. A year later the prosecuting attorney filed the present petition for a revocation of the suspension, upon the single ground that the defendant had been guilty of grand larceny. This appeal is from an order revoking the suspension, not upon a finding that the appellant had committed grand larceny but rather upon a finding that she had been drinking whisky in a beer tavern, had had whisky in her purse, had engaged in an act of prostitution or adultery, and had been living with another woman whom the court found to be dishonest.

We must sustain the appellant’s contention that she was not given proper notice of the reasons to be adduced by the State for a revocation of the suspension. The revocation of a suspended sentence is a serious matter, for which notice and a hearing are required. In Bodner v. State, 221 Ark. 545, 254 S. W. 2d 463 (1953), we recognized, at least by implication, the requirement that proper notice be given. The matter is treated more fully in the American Bar Association’s “Standards Relating to Probation,” § 5.4 (1970), in this language:

The court should not revoke probation without an open court proceeding attended by the following incidents:
(i) a prior written notice of the alleged violation;
(ii) a representation by retained or appointed counsel; and
(iii) where the violation is contested, establishment of the violation by the government by a preponderance of the evidence.

In § 5.3 of the same Standards it is stated that a revocation proceeding based solely upon the commission of another crime ordinarily should not be initiated prior to the disposition of that charge.

In the case at bar the petition for revocation was based solely upon the assertion that the defendant had committed grand larceny. At the hearing, however, the court permitted the prosecution to go far beyond its own pleading and to offer proof of the various forms of misconduct that were ultimately found by the court to have existed. That procedure is fundamentally unfair, for a defendant cannot properly prepare for the hearing without knowing in advance what charges of misconduct are to be investigated as a basis for the proposed revocation of the probation. We must accordingly set aside the trial court’s order and remand the cause for further proceedings.

We find no merit in the appellant’s contention that the five-year sentence was excessive and should be reduced. The record indicates that the appellant pleaded guilty to several other similar charges at the time the original sentence was imposed. Without having the entire record before us we are not in a position to say that the sentence was in excess of that permitted by the statutes. Ark. Stat. Ann. § 67-723 (Repl. 1966); Atwell v. State, 244 Ark. 739, 427 S. W. 2d 1 (1968).

Reversed.

Fogleman, J., not participating.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. While I agree that an individual is entitled to notice of the grounds upon which a suspended sentence is sought to be revoked, I can find no prejudice in the case at hand where appellant’s own testimony shows grounds for the revocation. Her own testimony shows that she was drinking on a Sunday and that she invited the complaining witness to her room for an act of adultery where the complaining witness lost $300 after he went to sleep. In Dillard v. State, 226 Ark. 720, 293 S. W. 2d (1956), we upheld a criminal conviction upon the proof of staying in a motel only one night.

I submit that the trial court should be affirmed.


source: Caselaw Access Project

author: Lyle Brown, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    John B. WILSON v. James E. BENTON
    5-5745
    476 S.W. 2d 214
    Opinion delivered February 14, 1972

      Pearce, Robinson & McCord, for appellant.

      Jones, Gilbreath ir Jones, for appellee.
   Lyle Brown, Justice.

As a result of a two car collision appellant John B. Wilson sued appellee James E. Benton. Appellee counterclaimed against appellant. Appellee brought in Calvert-McBride Printing Company as a third party defendant, alleging appellant was at the time of the collision acting in the scope of employment with Calvert-McBride. The jury found appellant and appellee drivers equally negligent. Here is the single point relied upon for reversal:

The court erred in providing the jury in addition to two general verdicts a special verdict form finding each party equally negligent and further erred in instructing the jury upon the effect that would be had by the jury returning the special verdict.

Before giving the jury the forms of verdicts the court gave this instruction which follows almost verbatim AMI 2104 (Civil) (1965):

If you should find that Mr. Wilson was not guilty of negligence which was a proximate cause of the occurrence, then he is entitled to recover the full amount of any damages you may find he sustained which were proximately caused by the negligence of Mr. Benton.
If you should find that Mr. Benton was not guilty of negligence which was a proximate cause of the occurrence, then he is entitled to recover the full amount of any damages you may find he has sustained which were proximately caused by Mr. Wilson.
If you should find that the occurrence was proximately caused by the negligence of both Mr. Wilson and Mr. Benton then you must compare the percentages of their negligence.
If the negligence of Mr. Wilson was of less degree than the negligence of Mr. Benton, then you should find for him on his complaint, and also for him on the cross-complaint of Mr. Benton. However, you must reduce the damages of Mr. Wilson in proportion to the degree of his own negligence.
If the negligence of Mr. Benton was of less degree than the negligence of Mr. Wilson, then you should find for Mr. Benton on his counterclaim and also for him on the complaint of Mr. Wilson. However, in that event, you must reduce the damages of Mr. Benton in proportion to the degree of his own negligence.
If you should find that Mr. Wilson and Mr. Benton were equally negligent or that neither was negligent, then neither can recover from the other and you should find against Mr. Wilson on his complaint and against Mr. Benton on his counterclaim.

As three forms of verdicts were submitted to the jury the court advised them:

And you are being given here for your deliberation without any suggestion on my part three forms of verdicts. You’re familiar with these, one here is— you would choose if you found for Mr. Wilson against Mr. Benton, written in here, “We, the jury find for Mr. Wilson on his complaint and assess his damages at $__”
On the other hand if you find for Mr. Benton against Mr. Wilson and his employer, Calvert-McBride, then, “We, the jury find for Mr. Benton on his cross-complaint and assess his damages at $__”
You’ve been instructed that if you find that both parties are equally negligent then neither of them can recover and so I have filled out another one here, “We, the jury find that both parties were .equally negligent.” That represents the three forms of verdicts that the jury could arrive at. . . .

Appellant made the following objection to the last form of verdict:

I also object to the third form of verdict which tells the jury — singles out to the jury that one type of verdict where they find that each side is fifty per cent negligent, that is effectively a comment on the evidence by the court, it is singling out one aspect of the case for extraordinary treatment and I particularly object to it in light of the court’s having read it to the jury and explained to the jury that that’s exactly what he had done and I object to that.

We find no error in the submission of the third form of verdict. In the first place that form is nothing more than a short form (and clearer) of this verdict:

We the jury find for the defendant on the complaint of the plaintiff; and we find for plaintiff on the counterclaim and cross-complaint of the defendant.

In the second place the third form of verdict and comment revealed no more information to the jury than it was told in the last paragraph of AMI 2104. There the court told them that neither party could recover if the parties were equally negligent.

Appellant relies on Argo v. Blackshear, 242 Ark. 817, 416 S. W. 2d 314 (1967). That case is not in point because it was submitted entirely on special interrogatories. There we held it was inappropriate for the court to tell the jury the ultimate effect of its answers to the submitted questions.

Appellant contends that the first two forms of verdicts were general verdicts and that the third form was a special verdict. The latter is special in that it deals with only one facet of the case; it also might be called a general verdict in that an affirmative answer disposes of the entire case. Be that as it may, if it were to be classified as a special interrogatory, as appellant would have us do, the submission of interrogatories along with general verdict forms is permissible. Ark. Stat. .Ann. § 27-1741.3 (Repl. 1962).

Affirmed.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I do not agree that the verdict returned by the jury was general and not special. A written form for a special finding on an issue which properly may be made under the pleadings and evidence is a form of special verdict. Ark. Stat. Ann. § 27-1741.2 This form differs from a special verdict on interrogatories and is an alternative thereto. While there is statutory authority for submission by the court of both general verdict forms and written interrogatories, I find no such authority for mingling a general verdict form and forms for a special finding on a particular issue or issues. Ark. Stat. Ann. § 27-1741.3.

Furthermore, I cannot agree that the form of verdict submitted was a short hand version of possible verdicts adverse to both the plaintiff on his complaint and the defendant on his counterclaim. The form submitted related to the only eventuality which would result in such a finding, i. e., if negligence on the part of the parties was equal. It did not permit the jury to find that the' plaintiff could not recover on his complaint because he failed to meet the burden of proving negligence on the part of the defendant, or that the negligence of defendant proved by plaintiff, however great, was a proximate cause of plaintiff’s damages, or that there was a similar failure on the part of the defendant to meet his burden of proof on his counterclaim. It only provides for a finding that the parties were equally negligent, and since it ignores the element of proximate cause, virtually invited the jury to compare negligence which was not a proximate cause with negligence which was, and gave the jury no chance to apply the court’s instructions on proximate cause. The treatment given this situation by the majority indicates that there was no question of fact as to burden of proof and proximate cause, for the instructions given permitted the jury to do nothing more than compare negligence. By thus submitting the case, the court, in effect, found that one or both parties were negligent as a matter of law and that someone’s negligence was a proximate cause of the damages incurred as a matter of law. The possibility of having such a situation is so remote that it does not deserve consideration.

I cannot see how it can be said that any verdict form submitted in this case could have been the basis of a general verdict. According to Ark. Stat. Ann. § 27-1741.1 “a general verdict is that by which the jury pronounces generally upon all or any of the issues, either in favor of the plaintiff or plaintiffs or the defendant or defendants.” For the omission of possible findings in favor of the defendant on the complaint and in favor of the plaintiff on the cross-complaint on issues of negligence and proximate cause, I submit that the jury could not have returned a general verdict.

A special verdict, in order to be good, must contain findings on all material facts or issues, or, in other words, all the material issues must be passed upon, and a judgment rendered over objection on a special verdict which does not contain a finding either for or against all the material facts in issue should be reversed. In negligence actions where the question whether negligence was the proximate cause is at issue, a special verdict failing to find such issue is fatally defective unless that fact appears by necessary inference from the facts found or undisputed evidence. 53 Am. Jur. 745, Trial § 1076. While Ark. Stat. Ann. § 27-1741.2 permits the determination by the court of issues not submitted when a party does not make a specific demand for such submission, these common law rules are no less applicable in determining whether the verdict forms were for general or special verdicts.

The only difference I can see in this case and Argo v. Blackshear, 242 Ark. 817, 416 S. W. 2d 314, lies in the fact that the case was there submitted on “written questions susceptible of categorical or other brief answer.” Here, it was submitted in part upon an alternative form of special verdict, “written forms of the several special findings which might properly be made under the pleadings and evidence” or “such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate.” Because of the limitation of issues, as above pointed out, I can see no way in which this forpn of verdict could possibly be considered as anything other than a special verdict. In Argo, we recognized that the judge’s informing the jurors as to the effect of answers by a special verdict on the ultimate judgment was reversible error. We have also held that a mistrial should be granted if an attorney for one of the parties advised the jury of the effect of its finding on a particular issue. International Harvester Co. v. Pike, 249 Ark. 1026 (1971), 466 S. W. 2d 901. Because of the prestige of the judge and his function as law-giver, his advice to the jury carries much more weight than that of one all jurors recognize as merely an advocate.

For the reasons recited, I would reverse the judgment.


author: Lyle Brown, Justice.

text:
    MISSOURI PACIFIC RAILROAD CO. v. Eddie BOLEY
    5-5756
    477 S.W. 2d 468
    Opinion delivered February 14, 1972
    [As amended on denial of rehearing April 10, 1972.]

      Smith, Williams, Friday, Eldredge & Clark; By: William J. Smith and Max C. Mehlburger, for appellant.

      Huey ir Vittitow, for appellee.
   Lyle Brown, Justice.

Appellant’s train struck and killed two cows on its tracks near Warren, the cows belonging to appellee Eddie Boley. The jury returned a verdict for $300. Missouri Pacific Railroad contends (1) that it was entitled to a directed verdict at the close of all the testimony, and (2) that the trial court erred in giving instruction numbered seventeen.

The only eyewitnesses to the incident were the fireman and engineer. They testified that they had just left Warren that night with a ten-car train; that their speed was about twenty miles per hour in a twenty-five mile an hour zone; and that they were keeping a lookout. They said they had been seeing cattle in this location. “Every day for a week to ten days these cattle had been on the right of way. We had had to stop both ways, coming and going, to chase the cows off.” The fireman said that the two headlights were directed straight down the track and that they did not shine the headlights off to the side. The cows, so they said, came upon the track from the fireman’s side and he said he first saw them when they entered upon the track twenty-five or thirty feet before they were struck. Both eyewitnesses said they immediately set the brake, blew the whistle, and rang the bell.

We are unable to say as a matter of law that the railroad company overcame the presumption of negligence which attaches to the killing of the livestock. For several days the herd of livestock had been upon the tracks at the same place. With that knowledge possessed by the train crew the jury could have concluded that the speed of the train could have been slackened and the accident avoided. The fact that the cattle were riot seen until the train was almost upon them is some evidence of a failure to maintain a proper lookout. With further respect to lookout and speed it may have been significant to the jury that the cows were found 100 yards apart and on opposite sides of the track.

The instruction to which the appellant timely objected is as follows: “You are instructed that all railroads which are now operated in whole or in part in this State are responsible for all the damages to persons or property done or caused by the running of trains in this State.”

We agree that the instruction is erroneous and calls for reversal of the judgment. The instruction is taken from Ark. Stat. Ann. § 78-1001 (Supp. 1971). The statute has been the law since 1875. The effect of our consistent holdings in scores of cases is that the statute is not to be taken literally; it creates a presumption that the damage is done from want of care but that presumption may be repelled by proof to the contrary. In a very real sense the instruction told the jury that if the train killed the cows the jury should find for the owner, and in that vein it smacks of a binding instruction. Such an instruction cannot be cured by other instructions.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    CHANDLER TRAILER CONVOY, INC. et al v. R. E. WOOD d/b/a Bob Wood Trucking Co. et al
    5-5746
    479 S.W. 2d 515
    Opinion delivered February 14, 1972
    [Rehearing denied March 20, 1972.]

      Carpenter, Finch, & McArthur, for appellants.

      C. E. Blackburn, for appellees.
   John A. Fogleman, Justice.

Chandler Trailer Convoy, Inc. and Arkansas Transit Homes, protestants against the application of appellee Robert E. Wood, d/b/a Bob Wood Trucking Co., for authority to operate as an intrastate common carrier in the movement of large boats and watercraft over irregular routes between all points and places in Arkansas, bring this appeal from the judgment of the circuit court affirming the action of the Arkansas Commerce (now Transportation) Commission granting the certificate. On this appeal, our review de novo is a determination whether the findings of the commission are without support by a preponderance of the evidence. Since we cannot say that they were clearly against the preponderance of the evidence, we affirm. Fisher v. Branscum, 243 Ark. 516, 420 S. W. 2d 882.

The appellants and protestants were holders of authority to act as carriers in the same field. They argue that the commission erred in finding that public convenience and necessity required operation in this field by Wood, in ignoring appellants’ existing authority and in not allowing appellants to augment their existing services and facilities. The commission specifically found that the entry of an additional carrier into the particular field would not materially affect the operation of any other carrier.

Glen Morehart, the owner and operator of a facility in which boat repair was a specialty, and David Collins, the owner of a 52-foot houseboat, weighing about 25,000 pounds, testified about efforts to transport this boat to the Morehart shop four to six weeks prior to the hearing. According to them, Wendell Chandler of Arkansas Transit Company made an abortive attempt to haul the boat on a borrowed trailer, ending in the partial collapse of the trailer because the weight of the boat was too great. They told of the subsequent lapse of two days or more while Chandler attempted to locate and acquire an adequate trailer for the move, after which the services of Wood were engaged, and the movement to and from the shop was made successfully, economically and expertly. Morehart said that he had first called Winston Chandler of Chandler Convoy for this move, and that Winston Chandler referred him to Wendell Chandler of Arkansas Transit. Both Morehart and Collins testified about unsuccessful efforts to engage the services of other carriers before Wood was sought.

Morehart testified that the business of moving large boats was increasing. It was his opinion that existing services were not adequate to meet existing needs. He recalled an occasion when one of the appellants had brought a pontoon houseboat to his shop, saying that he had experienced some difficulty in removing the boat because of inadequacy of the trailer on which it was transported.

Robert Wood said that he had been hauling boats for 11 years and that he owned equipment adequate to haul boats of any size that he had been called upon to transport. He said that he did not know of any boat in Arkansas that he would be unable to transport, but that he was prepared to purchase a larger trailer if he should be granted the authority he sought. He stated that he did most of the hauling of boats himself and that he had attended a school consisting of classes in boat handling, moving and transportation. He named seven persons from whom he had pending requests for movement of boats and said that he had moved 30 in the preceding three months. He stated that, in one instance, he had to retrieve a boat Arkansas Transit Homes had left sitting in the middle of the road, and in another to pull one out which it had left stuck in the mud.

Robert Apel testified that he had obtained the services of Wood to move his 30-foot cruiser from Heber Springs to Lake Ouachita after having called both of the appellants. He said that he was advised by Chandler Convoy that it did not move boats, but would move his on a borrowed trailer. Whoever answered his telephone call at Chandler Convoy referred him to Arkansas Transit. Apel then searched for an adequate trailer for moving his boat and obtained the services of Wood.

W. J. Walker, a Little Rock attorney and the owner of Lake Marine, Inc., a boat retailer for eight or nine years, testified that the sales and servicing of boats were increasing annually and that there was a definite need for the service Wood would render. He related the increased demand for large boats to the Arkansas River development. He had observed Wood’s equipment and method of operation and found them to be first class. He had utilized the services of Chandler Trailer Convoy, and had never been refused intrastate service by them and did not know of anyone who had. He had never used this firm to haul a boat more than 23 feet long and did not know that it transported large boats. He had never heard of Arkansas Transit Homes. He recalled one movement by Chandler Trailer Convoy that he felt was satisfactory, but handicapped by reason of the fact that the driver furnished had never hauled a boat before. He said that the result was satisfactory because his employees, rather than the driver, loaded the boats.

Bernard Hargrove, a Heber Springs boat salesman, who also had a boat repair business, said that he sold 300 to 400 boats per year of which about 12 were over 34 feet long, and repaired 60 to 70 per year, 25 to 30 of which would measure over 34 feet in length. He had used both appellants in transporting boats, but said that neither furnished its own trailer. This, he said, resulted in inconvenience to him because he had to loan a trailer to the carrier in each instance, and, in order to do so, had to remove a large boat from the trailer and then replace the boat on the trailer when it was returned. He recalled that there had been damage to his trailer on more than one occasion while it was on loan. He added that, in the recent past, he found the services of Chandler Trailer in moving a boat from Conway to Heber Springs unsatisfactory because of the attempted use of an inadequate trailer. He said that after the trailer was damaged in the attempt, the carrier advised him that it could not move the boat. Thereafter, he said, he obtained the services of Wood who moved the boat in a satisfactory manner. Hargrove stated that the business was not seasonal, partially because boat owners had repair work done in the winter. He testified that the moving of boats had increased over the years and foresaw a continued rise because of the opening of the Arkansas River to navigation. He said he had requested service by a truck and driver from Arkansas Transit, but they failed to send them at the time requested.

On the other hand, Winston G. Chandler of Chandler Trailer Convoy listed his company’s equipment, which included 21 boat trailers, reported that the company had 9 terminals located over the state with telephones and equipment necessary to handle the business on which it was called, recited extensive advertising of its services available for mobile home, trailer and boat transportation, both interstate and intrastate, and told of this carrier’s ability to have larger trailers made available to it when its own equipment was not adequate for moving a large boat. He testified that he had no knowledge of any damage to any boat transported by his company, and that the company had the financial ability to acquire any additional equipment needed. He stated that on only two occasions had Chandler Trailer Convoy been unable to transport a boat because' of its size and that each time someone else moved the boat while the company was in the process of securing a larger trailer. He said that his company’s boat equipment sat idle 90% of the time and that the company needed more of this type of business.

Wendell Chandler, owner and operator of Arkansas Transit Homes, testified that his company had a boat trailer which would accommodate as many as 25 boats, and a lowboy trailer for use with craft up to 46 feet long. He said that when called, upon to haul a larger boat, he borrowed a trailer from his brother or rented one from his brother or another source. He felt that it was impossible to have one, two or three trailers suitable for hauling all .types of large boats on the market. He had moved a 90-foot boat on a trailer he obtained from someone else. He used one of two experienced employees in boat transportation, and said that his company had damaged only one boat in 12 years of operation and had been unable to move boats because of insufficient equipment or insufficient time to obtain adequate equipment on only two occasions. He agreed that there were growing demands for boat transportation. He attributed his lack of trailers needed to haul all boats to his inability to accurately determine the various sizes and types necessary.

We cannot say that this evidence clearly preponderates against a finding of present and future public convenience and necessity or that the applicant failed to meet his burden of proof. While the witnesses were individuals who needed the type of service the appellants proposed to furnish, they told of public needs in addition to their own needs. Furthermore, we cannot say that the commission ignored the service being furnished by appellants or the effect of the issuance of the certificate sought upon appellants’ business. The testimony of Morehart, Collins, Wood, Apel and Hargrove clearly indicated that there were various occasions when the appellants were unable to furnish needed service, largely because of inadequate equipment, and that the situation had not been remedied at the time of the hearing. It seems that the ability of Wood to furnish adequate equipment and the inability of Wendell Chandler to even ascertain the type of equipment needed must be accorded some weight in determining this question. Certainly 12 years of operation by Chandler Convoy and the experiences related by the witnesses should have shown that company the need for additional equipment and afforded adequate opportunity to acquire it.

We do not agree with appellants’ argument that before a certificate may be granted, it must be shown that the present service is inadequate, that the additional service would benefit the general public and that the existing carriers have been' given an opportunity to furnish the additional service needed. We have held that the existence of any of the three factors is sufficient basis to support a finding of public convenience and necessity. Southwestern Transportation Co. v. King, 240 Ark. 309, 399 S. W. 2d 276; Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907; Missouri P. R. Co. v. Williams, 201 Ark. 895, 148 S. W. 2d 644.

The judgment must be affirmed.


author: J. Fred Jones, Justice.

text:
    Ethel McCracken MATLOCK et al v. Troy McCRACKEN et al
    5-5713
    479 S.W. 2d 508
    Opinion delivered February 14, 1972
    [Rehearing denied March 20, 1972.]

      W. S. Walker and Robert W. McCorkindale II, for appellants.

      Jerry D. Patterson, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Ethel Matlock, formerly Ethel McCracken, from a decree of the Boone County Chancery Court in favor of Troy Mc-Cracken in connection with the title to farm lands in Boone County.

When Tom McCracken died intestate in 1940, he left surviving him ten children by a former marriage and a widow and three children by his second marriage. The appellee, Troy McCracken, is the oldest of the ten children by the first marriage, and the appellant, Ethel Matlock, is the former wife and surviving widow of Troy’s brother, Ray McCracken, who died intestate in 1966.

The land involved in this litigation consists of approximately the north half of a 200 acre tract acquired at a commissioner’s sale in 1920 by deed of conveyance to Troy. The title was confirmed in Troy by chancery court degree in 1922 and in 1923 the lands were mortgaged to the Federal Land Bank by Troy. By warranty deed dated March 16, 1928, Troy conveyed title in the land to his brother, Ray, and this deed was filed for record on March 6, 1933. Under date of October 14, 1933, Troy executed another warranty deed conveying title in the same land to Ray and this deed was filed for record on December 8, 1936. The legal record title to the property has remained in Ray McCracken, his heirs and assigns, since the aforesaid conveyances. The appellant, Ethel Matlock, married Ray McCracken in 1934. She lived with him until the time of his death in 1966 and they had two children. She subsequently married her present husband, Ray Matlock.

The present litigation was commenced when the appellant, Mrs. Matlock, filed suit in the Boone County Chancery Court alleging that she is the widow of Ray McCracken, deceased; that she has obtained quitclaim deeds from her children to a life estate in the land involved; that for a number of years she has permitted Troy McCracken to occupy and use portions of the lands rent free, and that Troy McCracken is now attempting to lease or rent portions of the land. She prayed a restraining order and injunction against Troy preventing him from entering into any portion of the land and from renting or making any use of it.

Troy McCracken filed an answer and cross complaint in which he admitted the alleged relationship of the parties and admitted his possession of, and attempts to rent, a portion of the land. By way of cross complaint Troy alleged that the lands were acquired by him in 1920 to be held in trust by him for his father, Tom McCracken, who also was the father of Ray McCracken; that Tom McCracken died intestate in 1940 leaving surviving his widow, Letha McCracken, and ten children by a previous marriage, including Troy and Ray McCracken. He alleged that his father, Tom McCracken, took possession of the land in 1920 and lived upon and controlled it until his death in 1940. He alleged that in 1928 at the request of his father he deeded the lands to his brother, Ray, with the understanding that he would be joint owner with Ray in said lands. He alleged that immediately following the death of their father, Tom McCracken; under a specific agreement and understanding with his brother, Ray, he took pedal possession of the north half of the land as set out in a metes and bounds description containing 95.4 acres more or less, and he alleged adverse possession since 1940. He further alleged that at the time of the death of his father a family settlement agreement was entered into between his father’s widow and all of his father’s heirs, including Ray McCracken, whereby it was agreed that he and his brother, Ray, would share the farm; that they agreed upon the division of the property, and that he took immediate possession of the lands he acquired under said family settlement and agreement. Troy prayed for a dismissal of the complaint and that the title to the lands described in his counterclaim be quieted and confirmed in him.

The chancellor found that Tom McCracken, the father of Troy and Ray, acquired the land in controversy in 1920; that he was the real beneficial owner thereof, and that the naked legal title was held by Troy Mc-Cracken, and subsequently by Ray McCracken, in trust for their father, Tom McCracken; that immediately after he caused the legal title to be conveyed to Troy in 1920, Tom McCracken moved onto the lands, lived thereon and exercised dominion and control over same from the date of its acquisition until his death in 1940. The chancellor further found that immediately following the death of Tom McCracken, his surviving widow and heirs entered into a voluntary and valid family settlement agreement as to property rights under which Ray McCracken was to have the south half of the farm and the widow and remaining heirs were to have the north half. The chancellor found that Troy McCracken acquired from the widow and heirs the right to take and hold in his own right, free of all right and claim of the widow and heirs of Tom McCracken, the north portion of the McCracken land as described in the counterclaim. The court further found that Ethel Matlock is the owner of a life estate in the remainder of the lands described in her original complaint and the decree was entered accordingly.

On appeal to this court Mrs. Matlock relies on the following points for reversal:

“The court’s findings were contrary to the law and the evidence, and the court erred in denying appellants’ motion for a new trial.
The court erred in permitting testimony by defendant, McCracken, and several witnesses, in defendant’s behalf over the objections and exceptions of appellants, as to statements made by a dead man in violation of Ark. Constitution schedule, § 2.
The court erred in permitting testimony by defendant, McCracken, and several witnesses in his behalf over the objections and exceptions of appellants, as to a parol agreement involving lands, in violation of the statute of frauds.
The court erred in finding that a resulting trust existed, as defendant did not present ‘clear and convincing’ evidence of the existence of a resulting trust.
The court erred in failing to apply the doctrine of laches.”

On appeals to this court in chancery cases, we do not reverse the chancellor’s decree on questions of fact, unless the finding of the chancellor is against the preponderance of the evidence. Wiles v. Wiles, 246 Ark. 289, 437 S. W. 2d 792. Under her first point Mrs. Matlock questions the sufficiency of the evidence to sustain the chancellor’s finding that Troy went into possession of the premises immediately following the death of Tom McCracken and the family settlement agreement, and that the division line is established by a fence which divides the land claimed by Troy and the land belonging to the heirs at law of Ray McCracken. We are of the opinion that the chancellor’s findings on these points are not against the preponderance of the evidence.

The evidence is overwhelming that soon after the death of Tom McCracken in 1940, his widow and heirs, including Ray McCracken, entered into an agreement whereby it was agreed that Ray should have the south half of the farm and that the widow and remaining heirs should have the north half of the farm. There is ample uncontradicted evidence that Troy purchased the interest of the widow and remaining heirs and paid them the agreed consideration for their interest. There is also ample evidence that Ray recognized Troy’s acquired interest under the agreement; that he recognized his own interest as limited to the south half of the farm, and further recognized a fence line as the division between the north and south halves.

Troy McCracken testified that he was working in Idaho when he received word that his father had died; that his father’s widow and all the heirs attended the funeral and thereafter all attended a meeting wherein they agreed to divide the property with the south half going to Ray and the north half going to all the other heirs. He says that following the funeral and family agreement, he returned to Idaho for a short period of time; that he sent to his brothers and sisters $285 each in payment of their interest in the north half of the property, and that he deeded to the widow a 27 acre tract of land for her own and her childrens’ interest in the farm. He testified that he moved onto the land in 1943 or ’44; that he was away part of the time working in defense work but that he has lived on the property almost continuously since 1959. He testified that in 1950 or ’55 he built a barn on his part of the property and that he converted a- garage on the property into living quarters and has been living in it ever since 1962 or ’63.

Troy’s testimony was substantiated by the testimony of a brother, Rex McCracken, and by the testimony of several other brothers and sisters as well as unrelated witnesses.

Mrs. Ruth McCracken Boyd, a sister at whose home the family meeting was held testified that Ray and his wife attended the meeting and that Ray stated his dad had told him he was to have one-half of the place and that their step-mother and the other children were to have the other half where the old home place was. She testified that this arrangement was agreeable to all concerned, and that Troy later purchased all of the other children’s interest in the north half of the property. She says that Ray later built a home on the south part of the property.

Walsie Dempsey, a sister of Troy and Ray Mc-Cracken, also testified in support of Troy’s testimony.

Mary McCracken Harrol, a half sister to Ray and Troy, testified as to the family settlement and purchase by Troy. This witness testified that Troy has been living on the property “a portion of each year since our dad passed away.” This witness testified that when her mother sold the place Troy had deeded to her in exchange for their interest in the home place, her mother gave to her and her brothers and sisters $400 each as their interest in the Tom McCracken land.

Olive McCracken Whittier, another sister, corroborated the other testimony as to the family meeting and property settlement agreement.

Jo Hilligass, a sister of Ray and Troy, testified that she was 18 years of age and living at home when her father, Tom McCracken, died. She corroborated the other testimony as to the family agreement following her father’s death. She also testified that Ray and the appellant attended the meeting. She also corroborated the other testimony as to Troy’s purchase of the remaining interest of the widow and heirs in the property.

Gladys McCracken Crambrink, another sister, corroborated the testimony as to the family agreement and Troy’s subsequent purchase.

James McCracken, a half brother, testified that he was 16 years of age when his father died. He corroborated the other testimony as to the family agreement and the fact that Ray was present. He testified that Ray attended the family meeting and announced how the property was to be divided, with one-half to Rav and the other half to be divided between the remaining children, according to his father’s wishes. This witness also testified that when his mother traded her, and her children’s, interest in the farm to Troy, Ray advised them in the matter and told them what their interest amounted to.

On recall Troy McCracken testified that he and Ray discussed the division line between their property soon after their father’s death; that at that time there was a fence across the property; that a part of the fence had fallen down and had not been rebuilt because Ray’s cattle used water from Troy’s pond. He says that he had a survey run shortly after his brother’s death and that the survey was run along the old fence line agreed upon by him and Ray. He says that the surveyor was directed to follow the old fence line.

Ernest Roe, an uncle of Troy and Ray, testified that Ray told him Troy was to have the north part of the farm and that he, Ray, owned the south part. He says that Ray showed him the division line.

“Q. What did he say?
A. Well he said they had settled and showed me where the lines was, and divided it, and said he was going to make Troy title to it when he sold his cattle.”

Bill Hampton testified that he is unrelated to the McCrackens but is familiar with the McCracken land. He says that after Tom McCracken’s death, Troy lived on a portion of the property and Ray lived on another portion of it. He says that about two years before Ray’s death he discussed with Ray a proposed change in a road through the property, and that Ray told him he, Ray, owned the south half of the property, and that Troy owned the north half. He says that in connection with the proposed road change, Ray pointed out to him where the division line of the property was. Under questioning by the court this witness testified that Ray pointed out a fence running east and west as the property division line. This witness also testified that Ray told him about the family agreement as testified to by the other witnesses.

Jo and Granville Hulsey testified that they are not related to the McCrackens. They both testified that about seven or eight years prior to the date of their testimony, they were doing some work on a house for Ray when Troy came in from Oklahoma where he had been working. They testified that they heard Ray tell Troy that it was necessary for him, Ray, to mortgage Troy’s part of the property in order to obtain money to build the house. They testified that Troy told Ray that he should not have mortgaged his (Troy’s) part of the property, and that Ray said he would have the mortgage paid off in about four years.

Cecil Gass testified that the involved property originally belonged to his grandfather and that upon inquiry of Ray as to who owned his grandfather’s old place, Ray told him that he and Troy owned it but that he would have to make Troy a deed to his part of it.

Ray Hulsey testified that he built the barn for Troy about 1953, and that he was paid by Troy. He says that Troy paid him in part with lumber which Troy had cut from the farm. He testified that there was a saw mill on the north part of the property for about eight months during the period Troy exchanged lumber for the labor in building the barn. He says the saw mill was on Troy’s side of the property.

The testimony of Mrs. Matlock was the only evidence offered by her in contradiction of the evidence offered by Troy. She testified that she did not remember a meeting at Mrs. Boyd’s house sometime after Tom McCracken’s death. She then testified:

“Q. You don’t remember that meeting?
A. There might have been a meeting, but I don’t know, other than the family gatherings is all I know about it.”

Mrs. Matlock testified that after her father-in-law’s death, Troy would be on the land where they lived two or three months out of the year. She testified that Troy would come home during the winter months and would then go somewhere else to work. She says she doesn’t remember any farming he did on the property and she testified that her husband Ray, farmed all the property. She testified that the first time Troy started using the property was in 1966 when he started cutting the hay, etc. She testified that she had heard the testimony pertaining to the building of the barn on the north half of the property. She says the barn was built in about 1951, and that her husband Ray furnished the material for the barn. She says she does not know whether Troy did any work on the barn but does remember that he was around there. Mrs. Matlock testified that her husband Ray did everything he could to see that Troy was properly taken care of and provided for; that she never did see Ray give Troy any money but that in about 1960 Ray gave Troy 10 heifers. She then testified as follows:

“Q. Why was it he gave him these heifers?
A. So that he would have an income.
Q. Where did he pasture these heifers?
A. There on the farm.
Q. What part of the farm?
A. On the north part.
Q. Which side of the — was it on one or the other side of the highway?
A. On the east side.
Q. On the east side of the highway?
A. That is right.”

Mrs. Matlock testified on cross-examination that Troy lived in the Tom McCracken home after Tom McCracken died and that she does not know how many years he lived there. She testified she knew of no money her husband owed Troy but that he gave Troy the heifers so that Troy could have an income. She testified that Troy pastured the heifers on the north part of the farm and that he kept them until about 1967. She says that Ray helped Troy cut hay on the farm; that she isn’t sure when Troy sold the heifers but it was sometime after her husband’s death in 1966. Mrs. Matlock testified that there is a fence dividing the property; that her home is located south of the fence and that Troy lives north of the fence. She says that she thinks more of the farm is south of the fence than is north of it. In rebuttal Troy testified that when he was working in Idaho and Oregon in 1942, he sent Ray $1,200 at one time and $750 at another time. He says that he intended for Ray to safely keep the money for him but that Ray had authority to use or invest it. He says that Ray used the money and never did repay him except by giving him the ten heifers.

We find no merit in the appellant’s second assignment. We have consistently held that the so-called “Dead Man’s Statute,” Arkansas Constitution, Schedule, § 2, applies only to suits by or against executors, administrators or guardians. Baker v. Eibler, 216 Ark. 213, 224 S. W. 2d 820. We have also held that the prohibition does not apply to witnesses who are not parties to the suit. Meers v. Potter, 208 Ark. 965, 188 S. W. 2d 500; McRae v. Holcomb, 46 Ark. 306.

As to appellant’s third point, when testimony pertaining to the family property settlement agreement was first objected to, the chancellor reserved his ruling until all the evidence was before him and we are of the opinion the chancellor’s finding that there had been sufficient compliance with the terms of the agreement as to remove it from the statute of frauds is not against the preponderance of the evidence. There was considerable testimony that Troy went into possession of the north half of the property soon after his father’s death and that Ray thoroughly and continuously recognized his rights therein. Furthermore, if Troy and Ray held the property in trust for their father under their respective deeds, as the chancellor found that they did, then Mrs. Matlock was awarded far more interest in the property as a result of the property settlement agreement, than she would have been entitled to under the law of descent and distribution.

As to the appellant’s fourth point, we are of the opinion that there was clear and convincing evidence that both Troy and Ray held the property title in trust for their father, Tom McCracken. Troy McCracken was 71 years of age when he testified in 1970, consequently, he would have been about 21 years of age when the deeds were made to him in 1920. He testified that he was working away from home at that time and that he paid nothing for the land. He says that his father, Tom McCracken, paid the purchase price for the land (recited in the deed as $3,475.00) and had the deed made to him without his knowledge at the time. He says his father and step-mother were having some difficulty, as he remembers it, and his father simply had the legal title placed in him. He says that his father later had the title confirmed in him as prerequisite for a loan his father obtained on the property. He says that he signed a mortgage at his father’s request but received none of the proceeds from the loan. He testified that in 1933 he deeded the land to Ray at his father’s request and without consideration. He says his father continued to live on the farm until his death in 1940; that it was his father’s wish and intention that Ray should have the south half of the farm and at the family meeting following his father’s death, the widow and all the heirs, including Ray, simply attempted to carry out their father’s wishes.

Mrs. Matlock testified that she and Ray were married in 1934 when Ray was about 22 years of age. Consequently, Ray was apparently about eight years of age when the property was first acquired and legal title vested in Troy in 1920. He was apparently about 21 years of age when Troy made the deed to him at their father’s request in 1933. Under close questioning by the chancellor as to the reason for the two deeds to Ray, Troy testified that in 1933 his own wife of three months sued him for divorce which was subsequently granted. He says that when his father had him deed the land to Ray in 1933, and had the deed backdated to 1928 to avoid the possibility of it becoming involved in the divorce litigation; such procedure was not necessary because his wife knew that the land did not belong to him. He says that after the conveyance to Ray at his father’s request, and after his divorce had become final, Ray questioned the validity of the deed because it was backdated and at Ray’s request he executed the second deed dated correctly on the day it was executed. Troy testified without contradiction that he never did pay to his father, or receive from his father or from Ray, anything in consideration for the deed he received in 1920 or executed in 1933. There is no evidence, circumstantial or otherwise, that Ray ever paid anything to anyone in consideration for the deeds from Troy. We conclude, therefore, that the chancellor did not err in finding that a resulting trust was created in favor of Tom McCracken.

We find no merit in the appellant’s last assignment that the chancellor erred in not applying the doctrine of laches. There is no evidence that anyone ever questioned Troy’s ownership of the property he claims until this suit was commenced by Mrs. Matlock in questioning Troy’s right to possession. On the contrary, there was an abundance of evidence that Ray had at all times recognized that he only held the title in trust. It is only delay which works a disadvantage to another that operates as an estoppel against the assertion of a right. Norfleet v. Hampson, 137 Ark. 600, 209 S. W. 651; Baker v. Applen, 181 Ark. 454, 26 S. W. 2d 109. We are of the opinion that no such delay was shown in this case. According to the evidence, as we read the record, Troy was in peaceable possession of the property he claimed and no one questioned his right to possession until this action was commenced by Mrs. Matlock questioning his right to the possession. She admits he had been exercising his right of possession since 1962 or 1963 and had been in complete possession since 1966. Troy and several other witnesses say he had been in possession since soon after his father’s death in 1940.

The decree is affirmed.


text:
    Paul FRAZIER v. FIRESTONE STORES OF HOT SPRINGS, INC. et al
    5-5750
    476 S.W. 2d 4
    Opinion delivered February 14, 1972

      Dan McCraw, for appellant.

      Hobbs ér Longinotti, for appellees.
   J. Fred Jones, Justice.

Firestone Stores of Hot Springs, Inc. claiming to be the owner and entitled to the possession of certain merchandise in the possession of Paul Frazier, filed a replevin suit against Frazier in the Garland County Circuit Court and obtained possession of the merchandise. Frazier has appealed from an order of the Garland County Circuit Court confirming Firestone’s right to the possession of the merchandise and he relies on the following points for reversal:

“The court erred in finding that the appellant failed to answer or otherwise plead within the time allowed by law.
The court erred in granting relief at this time.
There is insufficient evidence upon which to grant relief to the appellee.
The court erred in not granting relief to the appellant.”

The transcript reveals the following facts: On March 24, 1969, Firestone filed its verified complaint in the Garland County Circuit Court alleging its ownership and right to possession of specific items of merchandise in the wrongful possession of Paul Frazier and Firestone prayed judgment for the recovery of the property. Simultaneously with the filing of the complaint, the circuit clerk of Garland County issued an order for delivery, directing the sheriff of Garland County to take from the possession of Frazier the listed property, and to deliver same to Firestone upon its giving bond as required by law (Ark. Stat. Ann. § 34-2105 [Repl. 1962]). The sheriff also was commanded to summon Frazier to appear in the circuit court of Garland County within 20 days and answer in said cause. Firestone gave bond as required by law and on the same date, March 24, 1969, the sheriff made his return on the order of delivery, reciting that he had picked up all the designated items except one item that had been sold and another which at the time was in a pawnshop.

No retention or redelivery bond was filed by Frazier and he filed no answer to Firestone’s complaint. He did on April 7, 1969, file an order of a referee in bankruptcy dated March 31, 1969, reciting that on March 28, 1969, Frazier and his wife,had filed a proceeding in the United States District Court under Chapter XIII of the Bankruptcy Act, and that simultaneously the debtors and their property came within the exclusive jurisdiction of the bankruptcy court. The order further recited that upon petition of Frazier, by his attorney, for an order temporarily restraining Firestone from proceeding further in a suit in the circuit court of Garland County in case No. 11,505, the state proceedings should be temporarily restrained pending a hearing and the order then recited:

“ORDERED, that Firestone Stores of Hot Springs, its employees, agents and attorneys, be, and they hereby are, temporarily stayed from any further proceedings in the Circuit Court of Garland County, Arkansas, against Paul Frazier and Nancy Dianne Frazier.
IT IS FURTHER ORDERED, that Firestone Stores of Hot Springs, Inc., shall appear before this Court at a time and place later to be determined, of which timely notice shall be given, and show cause why this temporary Order should not be made permanent.
Entered at Little Rock, this 31'st day of March, 1969.”

After filing the above order on April 7, 1969, nothing further appears in the record, and apparently no further action was taken in the matter, until on March 25, 1970, when Frazier filed his petition reciting that he had filed a petition in bankruptcy and that a temporary order had issued from the referee in bankruptcy as above set out. Frazier then alleged that Firestone was duly notified of the bankruptcy action; that more than six months had expired since Firestone received such notice and that it had failed to file a claim in the bankruptcy proceedings. He then alleged that the claim of Firestone for alleged debt was forever barred under provisions of the Bankruptcy Act and that by failure to file proper claims in the bankruptcy proceeding, Firestone had waived its lien on the property taken by the sheriff in the replevin proceedings. Frazier then prayed that the complaint of Firestone be dismissed with prejudice; that the possession of the property be redelivered to Frazier and that Firestone’s bondsmen be required to respond in damages to Frazier for any property disposed of or damaged while in the possession of Firestone.

Apparently in response to the above petition filed by Frazier, the circuit court on May 6, 1971, entered the order appealed from, reciting that on March 24, 1969, the writ of replevin was issued and served and possession of the property was taken thereunder; that the defendant failed to answer or otherwise plead and failed to file a retention or redelivery bond for the retention or redelivery of the property; that Firestone in its complaint sought only possession of the property and not judgment for any sum of money; that Frazier’s petition for damages was filed on March 25, 1970, and not within the time permitted by law; that the referee in bankruptcy in the proceedings under Chapter XIII of the Bankruptcy Act, did not reclaim the property described in plaintiff’s complaint nor adjudicate plaintiff’s title thereto. The trial court then entered its order as follows:

“IT IS, THEREFORE, ordered and adjudged that plaintiff’s possession of the Philco color TV, the Philco radio, the Philco phonograph, and the Firestone air conditioner under said Writ of Replevin be confirmed, that plaintiff’s bond be discharged, and the defendant’s petition be dismissed.”

We are unable to agree with the appellant’s argument in this case. The filing of a temporary order of a referee in bankruptcy staying a plaintiff in a replevin suit previously filed in state court from proceeding further in the state court; and further directing such plaintiff to appear before the referee at a time and place to be later determined, simply does not amount to the filing of an answer to a complaint in replevin. The property involved in this case had apparently already been delivered to Firestone under its claim of ownership before Frazier even filed his petition in bankruptcy under Chapter XIII of the Bankruptcy Act. In the replevin action Firestone filed replevin bond in the amount of $1,116.18 and apparently obtained possession of the property. Firestone did nothing else at all in the matter because it had obtained all it requested prior to the date Frazier filed his petition in bankruptcy. The record before us does not show whether Firestone was ever notified of the time and place it was directed to appear before the referee in bankruptcy, or whether a hearing was ever had at such time or place. Furthermore the order of the referee in bankfuptcy only purported on its face to apply to the Fraziers and their property and certainly there is no evidence that the bankruptcy court ever found that the property involved in this case was the property of the Fraziers. If it had so found, no one questions its authority to take possession of the property. There is no evidence as to what finally happened in the bankruptcy proceedings, but we can only surmise, from the allegation in his petition that "the alleged debt is forever barred under the provisions of the Bankruptcy Act,” that Frazier was finally discharged under the Bankruptcy Act.

There is no evidence that Firestone proceeded any further in the matter after the referee’s order of March 31, 1969; it was Frazier who proceeded further when he filed his petition in the circuit court on the 24th day of March, 1970. Frazier has never claimed that he is the owner of the property involved in this case and has never denied Firestone’s claim as to its right to possession. Frazier simply says now, exactly one year after Firestone recovered the possession of the property under replevin, Firestone’s failure to appear before the bankruptcy court at a time and place later to be determined of which timely notice would be given, somehow entitled Frazier to regain possession of the property and be awarded damages for its detention.

There is ample authority to the effect that a suit by way of replevin or otherwise to determine title to property, is not abated for want of jurisdiction to proceed, by the bankruptcy of the defendant, where the property involved was seized in pursuance of the suit before the filing of the bankruptcy petition. 9 Am. Jur. 2d § 58, Bankruptcy; Linstroth Wagon Co. v. Ballew, 149 F. 960; In re: L. Rudnick & Co., 160 F. 903; see also 8 C. J. S. § 29 (1), Bankruptcy, p. 677.

Ark. Stat. Ann. § 27-308 (Repl. 1962) as well as the summons served on Frazier, limited his time for filing answer to 20 days after service of the summons upon him. Ark. Stat. Ann. § 27-1121 (Repl. 1962) provides for the form and content of answers in civil cases in four different paragraphs and the appellant in this case complied with none of them. Ark. Stat. Ann. § 29-401 (Repl. 1962) provides as follows:

“Judgment by default shall be rendered by the Court in any case where an appearance or pleading, either general or special, has not been filed within the time allowed by this Act; provided, that the Court may for good cause allow further time for filing an appearance or pleading, if application for granting further time is made before expiration of the period within which the appearance or pleading should have been filed; and that nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause.”

The judgment of the trial court is affirmed.


author: Conley Byrd, Justice.

text:
    John SMITH v. Mrs. Mary RODGERS, Admx
    5-5757
    477 S.W. 2d 831
    Opinion delivered February 14, 1972
    [Rehearing denied March 20, 1972.]
    C. E. Yingling, Jr. and Wright, Lindsey ¿r Jennings; By: William R. Overton, for appellant.

      Lightle, Tedder ir Hannah, for appellee.
   Conley Byrd, Justice.

John A. R. Rodgers was killed May 3, 1968, at the Reynolds & Williams Hog Thief cutoff bridge construction site on Highway No. 305 when the boom cable on a ten ton Bucyrus Erie crane broke while lifting 2,400 pounds of concrete. His widow, appéllee Mrs. Mary Rodgers as administratrix, brought this action for damages against appellant John Smith as owner of the crane and as Reynolds & Williams’ superintendent of structure work. The matter was submitted to the jury upon an instruction that if they found that Smith owned the crane and had general supervision over it, he then owed a duty to see that the crane was maintained in safe operating condition. The jury returned verdicts totalling $63,891.41 upon which judgment was entered. For reversal Smith contends, among other things, that as an employee of Reynolds & Williams and as owner of the crane he owed no individual duty to John A. R. Rodgers to maintain the machine in a safe condition and that at the time of the injury he was not a third-party tortfeasor within the meaning of the Arkansas Workmen’s Compensation Law.

Workmen’s compensation is being paid to the widow through Firemen’s Fund Ins. Co., Reynold & Williams’ compensation carrier.

The record shows that John Smith is in the bridge contracting business. His office is located at Reynolds 8c Williams’ place of business. He owns eight cranes which he stores in Reynolds 8c Williams’ equipment yard. He does some bridge construction on his own. In those instances he uses his own payroll and equipment. He also enters into arrangements on a job to job basis with Reynolds 8c Williams to bid on highway contracts. All such arrangements are oral and have been for the last 20 years.

On the job involved, the proof was that Smith and James H. Reynolds of Reynolds 8c Williams went over the highway specifications to see if they were interested in the job. The structural bridge specifications were segregated from the dirt work. Smith then estimated the labor, material, equipment, workmen’s compensation and hospitalization insurance, etc., that made up the total cost of the structure work. Reynolds and Smith then agreed on the profit that Smith added for himself. Reynolds then added Smith’s total estimate to the other items involved in the highway specifications and their agreed profit and submitted a total bid to the State Highway Department. In such arrangements it was orally understood that Smith would supervise the construction of the structure work but that the job would be considered a Reynolds 8c Williams job. Under this arrangement Smith was. paid a salary or draw of $100 per week and all employees were carried on Reynolds’ payroll. All costs of materials and equipment rentals, maintenance and repair were also paid by Reynolds 8c Williams. Smith was expected to use his equipment and also Reynolds’ equipment whenever necessary. Such equipment cost had been estimated on the basis of replacement costs and was charged to the books on that basis.

After a job was completed and payment received, Reynolds & Williams, from the portion allocable to the structure work, deducted all costs paid by them plus their prearranged profit percentage and anything left was paid over to Smith.

Smith in his supervisory capacity had the authority to hire and fire employees and to sign payroll checks on Reynolds’ bank account. On the job in question, Smith hired the job foreman, Horace Mathis. Mathis hired everybody else who worked on the job. Smith’s supervision consisted of conferring with Mathis on the work to be done between Smith’s visits to the job. Such work was ordinarily laid out for a week to ten days ahead. Smith’s directions to Mathis were that the crane was to be inspected and greased after every 50 hours of operation. The day to day inspection was to be done by the crane operator and any repair or maintenance which the operator could not perform was to be done by mechanics supplied by Mathis. Reynolds did not expect Smith to personally make day to day inspections of equipment. The crane was moved to the job in August of 1967.

Ralph Whittaker, the operator of the Bucyrus Erie Model 11B crane, had had the boom down before the accident to place a 20 ft. jib extension on the boom. At that time he completely unwound the cable. As an operator with 12 or IB years experience, he testified that in his opinion the cable did not need replacing at that time. However, the cable broke within a short time thereafter while lifting a load of only 2,400 pounds. When first contacted by appellee’s counsel, he told them that he was working for John Smith. At the trial it developed that he was hired by Mathis and paid by Reynolds payroll checks.

Allan Siegel with Industrial Testing Laboratories of St. Louis, Missouri, had made tests on the broken cable and concluded that it broke from excessive corrosion and erosion.

On examination of Smith by his counsel the following occurred:

“Q. Are you a partner, in Reynolds and Williams Company, a formal partner?
A. No, Sir.”

On examination of Smith by Appellee’s counsel the following occurred:

“Q. Mr. Smith, if I have undestood your testimony given in reply to Mr. Overton’s questions, it is your contention that although you were at the time of this accident an employee of Williams and Reynolds—
A. Reynolds and Williams.
Q. —you were not a subcontractor, were you?
A. No, sir.
Q. Now then, in fact had you been a subcontractor you would have had to show that in the contract with the Highway Department, wouldn’t you?
A. Yes, sir.”

James H. Reynolds testified that the arrangement with Smith was not for the furnishing of equipment. That they used Smith for his skill and for his bidding ability to get projects. If Smith could come up with a good figure on the concrete work to help them get a job, they wanted.him there. According to Reynolds the initial responsibility for the crane’s maintenance was that of the operator. If the operator did not fulfill his responsibility, then it was the foreman’s duty. If the foreman didn’t fulfill his duty, then it would fall upon the next supervisor in line until it finally fell on him. In other words they used a chain of command in trying to keep down accidents.

A Travelers Insurance Company policy showing workmen’s compensation insurance coverage to Smith in his individual capacity was tendered in evidence but excluded by the trial court as irrelevant.

We agree with appellant that the trial court should have directed a verdict in his favor. He and Reynolds had an agreement with reference to their joint undertaking including a division of profits and the carrying of workmen’s compensation and hospitalization insurance. Smith exercised control through his supervision and Reynolds through control of the purse and the employees. The fact that Smith did not sign the Highway Department contract would not relieve him of liability, Wenzel Machinery Rental & Sales Co. v. Adkins, 189 Kan. 435, 370 P. 2d 141 (1962). Thus under the uncontradicted evidence, Smith was nothing more nor less than a joint venturer and as such is exonerated from tort liability as an employer by the Workmen’s Compensation Law, Neal v. Oliver, 246 Ark. 377, 438 S. W. 2d 313 (1969).

Even if Smith be considered as something other than an employer, it does not follow that appellee is entitled to recover. As an intermediate supervisor he would be liable only for his personal negligence and not for the negligence of those whom he supervised. As the bailor of the crane, he cannot be held liable under the theories set forth in Restatement of Torts § 392 for there is no evidence to show that at the time of the bailment, nine months prior to the accident, the crane was not safe for the use for which it was supplied or that Smith failed to exercise reasonable care to discover its dangerous condition or character.

Appellee in seeking to charge Smith with the condition of the crane at a date subsequent to the bailment, seeks to do so on the theory that knowledge of the crane operator and the foreman as to the condition of the cable caused by excessive corrosion and erosion should be imputed to Smith. In this approach appellee is met with the fact that Smith’s relationship to the decedent is no different from his relationship to the crane operator. Since imputed knowledge is applicable only to an employer, appellee in attempting to charge Smith with such vicarious responsibility is again met with the employer’s exoneration in the Workmen’s Compensation Law.

Reversed and dismissed.


author: Frank Holt, Justice.

text:
    STATE of Arkansas v. Eugene LAMB and Frankie J. TAYLOR
    5642
    476 S.W. 2d 7
    Opinion delivered February 14, 1972

      Ray Thornton, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellant.
    No brief filed for appellees.
   Frank Holt, Justice.

The appellees were charged by information with the crime of first degree rape and upon trial were acquitted by a jury. The attorney general, at the request of the prosecuting attorney, brings this appeal pursuant to Ark. Stat. Ann. § 43-2720 (Repl. 1964) contending that the circuit court erred in refusing to give the state’s requested instruction on third degree rape. Section 41-3401 (Supp. 1969) defines third degree rape as being sexual intercourse with a female or carnally abusing a female who is less than 16 years old. It appears undisputed that the two victims were 14 and 15 years of age respectively. Each of them testified that both appellees engaged in sexual relations with them without their consent and by forcible compulsion. The appellees denied the accusations.

It is well settled by our decisions that it is not the court’s duty to give instructions on the appellant’s theory of a case unless a correct instruction is presented to the court. Cooley v. State, 213 Ark. 503, 211 S. W. 2d 114 (1948); Pate v. State, 206 Ark. 693, 177 S. W. 2d 933 (1944); Duncan v. State, 196 Ark. 171, 117 S. W. 2d 36 (1938); Carlton v. State, 109 Ark. 516, 161 S. W. 145 (1913). In the case at bar our search of the record does not reveal that the appellant ever submitted an instruction on third degree rape or offered the pertinent contents of § 41-3401, supra, which defines the three degrees of rape.

However, since we deem “it is important to the correct and uniform administration of the criminal law,” (§ 43-2720, supra) as the attorney general asserts, we observe that an instruction on third degree rape was proper in the case at bar upon the presentation of a correct instruction. We have long recognized that in the prosecution for rape the lesser offenses ,of carnal abuse or assault with intent to rape are included in a rape charge where the evidence tends to show the lesser offenses. Bradshaw v. State, 211 Ark. 189, 199 S. W. 2d 747 (1947); Sutton v. State, 197 Ark. 686, 122 S. W. 2d 617 (1938); Henson v. State, 76 Ark. 267, 88 S. W. 965 (1905).

In the very recent case of Clark v. State, 244 Ark. 772, 427 S. W. 2d 172 (1968) we reversed a conviction for raping a 9-year-old girl because of the trial court’s refusal to instruct the jury on the lesser offense of carnal abuse. We said that: “The offense of carnal abuse is included in a charge of rape where the female is under sixteen years of age.” Section 41-3401, supra, defines first, second and third degrees of rape. As to third degree rape it reads: “A male is guilty of rape in the third degree when: (a) he engages in sexual intercourse with a female or carnally abuses a female who is less than sixteen (16) years old.”

Sexual intercourse of a female is a necessary element in first degree rape. It follows that when the female is less than 16 years of age, then third degree rape is included in that offense. The court should so instruct upon request and presentation of a proper instruction when the evidence tends to establish the lesser included offense.

Of course, the acquittal of first degree rape bars subsequent prosecution for that and any lesser included offenses; also, the conviction of any degree of rape would bar successive prosecution for any other degree of rape. See § 43-2149 (Repl. 1964).

Affirmed.


text:
    Eugene WILLIAMS et al v. J. H. ROBINSON
    5-5668
    476 S.W. 2d 1
    Opinion delivered February 14, 1972

      Christopher C. Mercer, Jr. and David R. Munroe, for appellants.

      Bruce Ivy and James E. Hyatt, Jr., for appellee.
   Frank Holt, Justice.

This is an action by appellee for specific performance of an oral contract to make a will devising land to him and for confirmation of title. Emma French, the owner of 39.93 acres of farmland in Mississippi County, died intestate at age 81 on September 8, 1967, survived only by her grandson, appellant Eugene Williams. Appellee Robinson filed suit on August 30, 1968 claiming title to the land based upon an oral contract whereby decedent had agreed in 1962 to give him her farm at her death if he would leave his home in Memphis to live with her and provide care and assistance for her personal needs during her lifetime. From a decree declaring appellee the owner of the land, together with the rents from the date of Mrs. French’s death, appellants, Williams and his mother, decedent’s daughter-in-law, bring this appeal.

For reversal appellants assert there was not sufficient clear, cogent, satisfactory and convincing evidence to establish a contract to make a will or execute a deed. They also contend there was not sufficient evidence of part performance in reliance upon an oral agreement to take the purported oral contract out of the statute of frauds. Appellants assert that appellee’s move from Memphis to decedent’s home, where he admittedly lived for five years, was for his own personal benefit inasmuch as he no longer had to pay rent, had the constant use of a car, was gainfully employed during the week, pastored two churches in the general area on Sunday, and had the advantages of Mrs. French’s society.

The appellee testified that: Mrs. French, his second cousin, came to his home in Memphis two or three weeks after the death of her husband in 1962 and told him that if he would come to Arkansas and care for her during the remainder of her life, she would leave him her farm; he accepted her proposal and gave up his position as pastor of the First Baptist Church in Memphis; he moved into Mrs. French’s home and assumed the duties normally performed by the man in the household. Appellee further testified that after the second year his duties increased because she became unable to care for herself; that he had done the cooking, washing, ironing, mopping, and everything else relating to household duties; that he had also cared for Mrs. French’s stepdaughter, Bitsy (an incompetent girl between 20 and 30 years of age); that his duties and responsibilities further increased as Mrs. French’s illness became worse; that eventually he ha’d to bathe and feed her because she was unable to handle a spoon for about three months prior to her death; that Mrs. French’s attempt to make a will was thwarted because of the absence of a lawyer’s secretary; that illness had prevented her from returning to the office to complete the will; and that he had contributed his personal earnings toward the household expenses during the five years he had lived with Mrs. French.

A neighbor testified that Emma French had said to him: “I have made up my mind I am going over and ask Brother Robinson to come stay with me and see after me and if he will do that and come and stay with me at my death I will will him this farm”; that Emma French gave a testimonial at church about a year later during which she said that she intended to leave appellee the land; that he had observed appellee taking care of Mrs. French and that he did everything a “good husband” would do. A Department of Public Welfare employee stated that she had had occasion to visit the home of Emma French in 1964 and had kept notes of her conversation in her file. This witness had these notes when testifying that:

“We continued the conversation. I asked her what her plans were for the property since she had no children and she told me she was willing her property to her cousin, Rev. W. [J.] H. Robinson and pointed to him. She was sitting at my right and he was sitting to my left.
# # #
She stated her health was bad and she had to send for him and he had been in the house two or three years and he had been doing her washing, cooking, doing her errands, ***.
She said she sent for him. I don’t remember where he was but he was not in this locale.”

Other witnesses also corroborated appellee’s evidence.

Appellant introduced evidence from Mrs. French’s stepdaughter, Rose Ann, a stepson, pastor, and close friends to the effect that Mrs. French had never indicated to them that she intended to give the land to appellee. Her stepson, who was living with her at the time appellee moved into the house, testified that he had no knowledge of how he [appellee] came to the house but that he had heard appellee ask his stepmother if he could come and live with her. Decedent’s close friend testified that Mrs. French had told her that appellee had asked her permission to live in her house, explaining that he had separated from his wife. According to appellants’ witnesses, appellee’s presence in the home was solely for his own personal comfort and benefit.

An oral contract to make a will or deed to real estate is valid when the testimony to establish such a contract is clear, cogent, satisfactory, and convincing. Crowell v. Parks, 209 Ark. 803, 193 S. W. 2d 483 (F946); Walk v. Barrett, 177 Ark. 265, 6 S. W. 2d 310 (1928). Furthermore, we have said that one who changes his residence and employment, then supports and cares for a promissor during the remainder of his life, pursuant to a valid oral agreement, evidences conduct sufficient to take the contract out of the statute of frauds. Fred v. Asbury, 105 Ark. 494, 152 S. W. 155 (1912). In Watts v. Mahon, 223 Ark. 136, 264 S. W. 2d 623 (1954) we quoted with approval from Williams v. Williams, 128 Ark. 1, 193 S. W. 82 (1917):

“* * * the evidence ‘clearly establishes the fact that plaintiff went to live with his uncle under an agreement that the latter was to convey the property to him in consideration of the care and attention to be bestowed during the latter’s lifetime, and that plaintiff occupied the premises pursuant to that agreement and made substantial improvements,’ and further said, ‘In order to assume the obligations imposed upon him by the contract, he made an entire change in his surroundings and changed his occupation and place of residence.’ ”

In the case at bar, we agree with the chancellor’s finding that it was established by clear, cogent, satisfactory, and convincing evidence that Emma French and the appellee entered into a valid oral agreement and that pursuant to that agreement appellee changed his residence, employment, and mode of life and fully performed the agreed personal services.

It follows that we find no merit in appellants’ two subordinate assertions since they relate to the sufficiency of the evidence.

Appellants also assert that rents from the lands during the administration of the estate were necessary for payment of debts and cost of administration and, therefore, should not have been awarded to the appellee.

The probate order closing the estate was not made a part of the record. At the time the chancellor rendered his oral opinion he inquired as to the disposition of the land rentals. Appellee’s attorney responded: “One year’s rent went into the estate and was finally administered out to the successive administrator and Preacher Robinson and the other rents were turned over to the defendants with the understanding those rents would follow the ownership of this land.” Apparently this was an accurate statement in which the appellants acquiesced since it was not then contradicted or any evidence proffered to the contrary. Therefore, we cannot say that the appellants have demonstrated that the chancellor’s finding is unsupported that the rents for 1968, 1969, and 1970 belong to the appellee.

Affirmed.