author: Lyle Brown, Justice. Carleton Harris, Chief Justice,

text:
    ARKANSAS STATE BOARD OF PHARMACY v. Anthony TROILETT et al
    5-5454
    463 S. W. 2d 383
    Opinion delivered February 22, 1971

      Warren é Bullion, for appellant.

      Guy H. Jones, Phil Stratton and Guy H. Jones, Jr., for appellees.
   Lyle Brown, Justice.

The Arkansas State Board of Pharmacy, by petition in chancery, sought to enjoin the dispensing of rubber prophylactics (condoms) from vending machines located in four filling stations in Conway, operated by Anthony Troilett and his co-defendants, appellees here. The merchants defended on the ground that Act 189 of 1943, the prophylactic law, is unconstitutional. The chancellor held Act 189 constitutional but denied the injunction “because of the criminal section of the Act and further because of the difficulty in the enforcement of the injunction.” We are asked to pass on the constitutionality of the Act and also to reverse the chancellor’s refusal to grant the injunction.

The constitutional question can be disposed of in short order. A determination of the constitutionality of the Act is not necessary to a disposition of this case. It is therefore our duty to avoid the question. Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S. W. 2d 487 (1968).

Act 189 is codified in Ark. Stat. Ann. § 82-944-954 (Repl. 1960). It is there provided that rubber prophylactics shall not be sold except by those possessing a license from the State Board of Pharmacy (excluding, those licensed to practice medicine or osteopathy); that retail licenses shall be issued only to retail drug stores; and that it is a misdemeanor punishable by fine and/or imprisonment for violation of the Act. In addition to the criminal penalties it is provided in Ark. Stat. Ann. §_ 72-1039 (Repl. 1957) that “The State Board of Pharmacy, may in its discretion, in addition to the various remedies now provided by law, apply to a court having competent jurisdiction over the parties and subject matter for a writ of injunction to restrain repetitious violations of the pharmacy laws of this State.”

First, it should be pointed up that the recited injunction section does not grant a right of injunction. It simply says the State Board may apply for an injunction to restrain repetitious violations. In a number of instances there are statutes which give state agencies the right to a writ of injunction in equity. For example, the State Board of Dental Examiners is entitled to the writ against one who practices dentistry or dental hygiene without a license. Ark. Stat. Ann. § 72-542 (Repl. 1957).

As we read the penalty section of Act 189 and the injunction provision in § 72-1039 together, we perceive a very logical legislative intent. The basic enforcement provision is the severe penalties recited in Act 189. Then if a violator who, once having been punished, persists in repetitive violations, the Board may apply for an injunction. There is no evidence in this record that any of these appellees have ever been prosecuted for any violation of Act 189.

Additionally, the chancellor gave some very logical reasons for his conclusions:

The court finds that although defendants have admittedly violated the Act an injunction should be denied because of the criminal section of the act and further because of the difficulty in enforcing the injunction. The court finds that the plaintiff has an adequate remedy at law through the crimi-anl processes and that widespread violation of the Act should be suppressed through the processes of the criminal courts rather than through the granting of an injunction which would bind only the defendants presently before the court in this case.

The undisputed evidence in the case showed that rubber prophylactics are commonly sold throughout the State by vending machines. If we here say that the chancellor should have granted the injunction then we are saying to the twenty-three chancellors in this State that they must burden their dockets to enforce the criminal law against this type of contraceptive. We cannot believe that such was the legislative intent when § 72-1039 was enacted, especially in view of the fact that the in-junctive section refers only to “repetitious violations.” Criminal courts are available to every city and hamlet in the State, whereas some chancellors have as many as nine counties; hence the local courts, such as municipal courts, are in much better position to process the litigation. The most that can be said of the jurisdiction of the chancellor is that the granting of the injunction was discretionary and for the reasons stated we cannot say he abused his discretion.

We are not unaware of a multitude of cases wherein our chancellors have appropriately granted injunctions to prohibit an unlawful act. They generally fall into three catagories, (1) cases wherein by statute the granting of the injunction is mandatory, (2) cases in which there is no adequate remedy at law, and (3) cases wherein the granting of the injunction is discretionary.

Before we will disturb the discretion exercised in the last category we must be convinced that the court has manifestly abused its discretion. Price v. Edmonds, 231 Ark. 332, 330 S. W. 2d 82 (1959).

Finally, the appellant carried a heavy burden of proof. In order to obtain relief by injunction against the commission of acts of a criminal character “the court will require that the complainant clearly show such facts and circumstances in the particülar case as will justify the court in granting the relief desired.” Arkansas State Board of Architects v. Clark, 226 Ark. 548, 291 S. W. 2d 262 (1956). In the case at bar the complainant did not meet that test.

Affirmed.

Harris, C. J., dissents.

Carleton Harris, Chief Justice,

dissenting. With the certain knowledge that I shall be deemed an “old fogy” in some quarters, I still desire to express my dissent in this case. Let it be borne in mind that there is no dispute but that appellees are violating the law; they admitted it. There was no pertinent fact remaining to be proved. Despite this circumstance, the Chancery Court refused to grant an injunction because a criminal penalty is provided in the act violated, Ark. Stat. Ann. § 82-944-953 (Repl. 1960), and “because of the difficulty in the enforcement of the injunction”. I do not agree that the criminal penalty provides adequate means for enforcement of the law. Let us say that an individual is tried and fined in a Municipal, or Justice of the Peace, Court; he is entitled to appeal to the Circuit Court, and to an entirely new trial before that tribunal. Let us say that he is again convicted. He is then entitled to appeal to the Supreme Court. Thus, when the conviction is finally affirmed, a year or year and a half has elapsed since his arrest for the offense. Not only that, but these trials and appeals relate to only one offense. In the meantime he may continue to violate the law, and unless he is arrested and tried every day (which would really burden the dockets of the Municipal and Circuit Courts if we multiply this one offender by the dozens of others who are likewise ignoring the statute) the violations have not been stopped. One of the main purposes of an injunction is to stop “repetitious violations”, for the Chancery Court, unlike the criminal court, has the power to “stop the violation before it is ever committed”. If an injunction is violated, the court can then immediately punish by contempt proceedings. Furthermore, if an appeal is taken, the injunction, if so ordered by the trial court, remains in effect until after the appeal is disposed of. See Gallup v. St. Louis, I. M. & So. Ry. Co., 158 Ark. 624, 251 S. W. 30, where we said, “The judgment of the chancery court was right. It is well settled that an injunction is not such a judgment as can be stayed by filing a supersedeas bond”. But even if a supersedeas bond were permitted, I cannot visualize any defendant, or bondsman, entering into a bond where the defendant has admitted committing the acts for which he is enjoined.

The majority say that the statute here in question does not grant the right of injunction but simply provides that the State Board may apply for an injunction to restrain repetitious violations. This, to me, is nothing more than a play on words. In the Florida case of Florida Industrial Commission v. Hurlbert, 114 So. 2d 209, the statute in question also used the term “may” rather than “shall”, but the Florida Court (District Court of Appeal of Florida, First District) took an entirely different view from that taken by the majority in this case. From the opinion:

“The question here is: Does the statute give the Circuit Judge, as a matter of discretion, the right to deny the injunction, on the ground that the plaintiff could also proceed criminally, where the complaint adequately charges the violation of the statute and the defendant interposes no defense to the complaint, but allows a decree pro confesso to be entered against her?

The general rule is that equity has no jurisdiction to enjoin the commission of a crime, but the exception is that equity may grant an injunction when the legislature has specifically, or by clear implication, authorized the injunctive process as a means of restraining violation of a statute, (citing cases)

It is therefore apparent, and the attorneys for both parties agree, that the Circuit Judge could have granted the injunction in the instant case.

It is our opinion that this discretion of the Circuit Judge can be exercised only when the defendant interposes a defense and presents evidence to the court which enables the court, in the exercise of a reasonable discretion, to conclude that the facts of the particular case are such that it would be inequitable, unjust or unduly harsh for the injunctive remedy to be granted at this time. When no defense is interposed and no facts as to thi§ particular case are presented by the defendant to the court, there is then no basis for the exercise of a reasonable discretion.

If the court can refuse the injunction without such evidence, it would mean that the court, depending on the legislative views of the judge concerned, could decide that the legislature was ill-advised in enacting this statute and that injunction should not be granted in cases where the petitioner has a remedy to proceed criminally against the violators. * * * *

Reversed and remanded with directions to enter a decree granting injunctive relief in accordance with the prayer of plaintiff’s complaint.”

Here, there is no contention that the acts were not committed, and, under the same reasoning employed by the Florida Court, I see no basis for the exercise of the trial court’s discretion. Applying the fourth paragraph of the quoted opinion, and employing the language used to the case presently before us, let us ask, “Would an injunction against the sale of these condoms by vending machine be inequitable? Would an injunction be unjust? Would it be unduly harsh?” To me, the question is but to answer it, for I can see no inequity, injustice, or undue harshness, in ordering a person to refrain and desist from violating the law.

We likewise said in Meyer v. Seifert, 216 Ark. 293, 225 S. W. 2d 4:

“The most frequently quoted statement of the rule in Arkansas appears in State v. Vaughan, 81 Ark. 117, 126, 98 S. W. 685, 690, 118 Am. St. Rep. 29, 11 Ann. Cas. 277, 7 L. R. A., N. S. 899, where after denying the injunction in the particular case, Chief Justice Hill added: ‘On the other hand, if the public nuisance is one touching civil property rights or privileges of the public, or the public health is affected [my emphasis] by a physical nuisance, or if any other ground of equity jurisdiction exists calling for an injunction, a chancery court will [my emphasis] enjoin, notwithstanding the act enjoined may also be a crime. The criminality of the act will neither give nor oust jurisdiction in chancery!’

Entirely aside from the matters already discussed, I feel that permitting young boys or young men to regularly and consistently see this merchandise displayed in rest rooms, encourages immorality. Rest rooms are frequented by persons of all ages. All view these vending machines. My sentiments are expressed in the Virginia case of Cavalier Vending Corp. et al v. State Board of Pharmacy et al, 79 S. E. 2d 636. There the Supreme Court of Appeals of Virginia stated:

“Where these devices are sold only by licensed retail outlets, as permitted by the Act, improper use will be discouraged. It may be reasonably assumed that the sale of such devices through vending machines placed in public rest rooms frequented by people of all ages might prove detrimental to morals, particularly of young people. It unnecessarily places before them a temptation fraught with great danger. Young people may be tempted to buy from this ‘silent salesman’ for immoral purposes, whereas they would not make such purchase from a clerk in a licensed retail outlet. * * * *
One does not have to inquire as to the motives for this legislation. The reasons for its passage are obscure only to those who do not care to see.”

The majority say:

“The undisputed evidence in the case showed that rubber prophylactics are commonly sold throughout the State by vending machines. If we here say that the chancellor should have granted the injunction then we are saying to the twenty-three chancellors in this State that they must burden their dockets to enforce the criminal law against this type of contraceptive.”

I shall have to admit that this reason does not appeal to me. Yes, Chancery Court dockets are crowded; Circuit Court dockets are crowded; the Supreme Court docket is crowded. A great many judges are overworked — but we cannot permit the processes of law to stand still because of this fact. I personally can never place my stamp of approval upon a refusal to enforce the law because the dockets will be burdened! Under the court decisión today, a person who is inclined to violate this particular statute can say, “Oh yes, I’m violating the law, but there is nothing you can do about it because you don’t have the facilities for enforcement.” The result is that an offender not only goes unpunished, but what is probably more important, respect for law and authority will soon evanesce.

I dissent!


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    JOHNSON COUNTY et al v. Charlie TIMMONS
    5-5469.
    463 S. W. 2d 365
    Opinion delivered February 22, 1971

      Jones, Gilbreath ir Jones, for appellants.

      J. Marvin Holman, for appellee.
   Lyle Brown, Justice.

This is a workman’s compensation case. Our Workmen’s Compensation Commission found appellee claimant to have permanent partial disability to the body as a whole to the extent of seventy per cent. The trial court affirmed and the employer and the carrier appeal, contending that there is no substantial evidence to justify a disability greater than ten per cent.

Appellee was employed by appellant Johnson County, working as a laborer with the road crew in maintenance, repair, and construction. At the time of his injury appellee had removed a large rock that was blocking a culvert. He said he was carrying the rock up a slippery embankment and became overbalanced; that he “made a quick turn to get rid of the rock and when I did is what hurt my back; I crawled up the embankment.”

Appellee had worked in the coal mines for some forty years as a laborer, loading coal and operating a coal cutting machine. He went to work for Johnson County in 1955. At the time of the mishap he was sixty-four years old and had a second grade education. He has never had any special training for a particular skill.

According to appellee the county judge advised him that his trouble was a muscular strain and would work itself out; that he continued to work for a week or ten days and the pain did not subside; and that he went to see his family doctor, Dr. Shrigley in Clarksville, who prescribed medication. The back condition did not improve and appellee went back to his doctor, who hospitalized him and put him in traction for some ten days. Upon being discharged appellee returned to work but after a few days he said the pain became so severe that he returned to Dr. Shrigley. The latter obtained through Travelers Insurance Company (the carrier) an appointment for appellee with Dr. Lohstoeter, an or-thopaedic surgeon in Little Rock. Appellee was hospitalized for about two weeks and received therapy. Dr. Lohstoeter fitted appellee with a leather support belt. Appellee returned home and worked one day “but I couldn’t make it.” He returned to Dr. Lohstoeter and was again hospitalized for some two weeks.

From the time of his discharge until the day of the compensation hearing appellee insists that he was unable to return to work. He says he has worked a little in the garden “an hour or so and then I rest on account of my back gets to hurting.” He testified that prior to the injury complained of, he had worked regularly all his life and had experienced no serious injury or hospitalization of any significance. Appellee’s wife and daughter corroborated his testimony regarding the difference in appellee’s ability to work before and after the accident.

Dr. Shirgley testified for appellee. He has been ap-pellee’s physician for some ten years. He diagnosed ap-pellee’s condition as acute lumbro-sacral sprain with sciatic radiation. He concluded that claimant suffered from a ruptured intervertebral disc, tenderness in the low back, right lower leg muscle disturbance with loss of sensation, and degenerative disc disease. He described degenerative disc disease “as where the intervertebral disc becomes injured or mashed together, in which there is a protrusion of this disc which presses on the nerve.” He advised against an operation because of appellee’s age. He concluded that claimant “is permanently disabled from ever performing anything that he is capable of doing,” namely, manual labor. Only the lightest kind of labor, he said, is now within claimant’s abilities.

Appellee was referred by the carrier to Dr. John Wideman, an orthopedic surgeon. The doctor saw ap-pellee one time, not for the purpose of treatment but for evaluation. He concluded that appellee had a ten per cent permanent partial disability prior to the injury due to degenerative arthritis; and that as a result of this injury appellee’s disability was increased to twenty-five per cent. He said the arthritis was accelerated by the injury. He found appellee’s right leg to be three-eights inch shorter than the left leg, some limitation of motion in the lower spine, difficulty in leaning to the left, and some limitation of forward motion. He concluded that claimant had a loss of sensation in the entire right leg “due to an emotional overlay.” Tie concluded that claimant could not perform strenuous physical labor.

Dr. John Lohstoeter testified for appellants. He saw appellee for a period of thirteen months. Appellee’s complaints were low back pain, right leg debilitation numbness, and radiational pain in the right leg complex. He did not consider appellee a malingerer. To him the claimant showed signs of a ruptured disc at the L-4 interspace. Radiation of pain was referable to the ruptured disc and claimant’s acute pathological weakness was, in the doctor’s opinion, likewise attributable to the disc problem. Over the thirteen months period claimant showed considerable improvement which Dr. Lohstoeter attributed to therapy and medications, together with the use of a prescribed back brace. The doctor’s rating of disability was ten per cent to the body as a whole with reference to physical impairment. He concluded that the patient could do lighter forms of manual work but that he should not attempt heavy manual labor. For example, he said claimant could do lighter forms of janitorial work, absent heavier forms of reaching, pulling, and lifting. “The crux of the situa-ation is that this man is not trained for duties other than those in manual labor field, he is disabled from performing his usual tasks, is therefore disabled from gainful employment status. Because of his age group, it seems dubious that rehabilitative training programs could be established to grant this man large scale goal in the future.”

The sole issue on appeal is whether there is substantial evidence to sustain the finding of a disability of seventy per cent to the body as a whole. Appellants contend that the highest percentage of disability justified by the evidence is ten per cent. We must give the evidence its strongest probative force in favor of the action of the commission. We do not disturb the commission’s findings if they are supported by substantial evidence.

We have examined the evidence in light of our holdings in Glass v. Edens, 233 Ark. 786, 346 S. W. 2d 685 (1961), and Ray v. Shelnutt Nursing Home, 246 Ark. 575, 439 S. W. 2d 41. Those are the only cases1 cited by appellants. Glass v. Edens requires that, in addition to medical evidence, the commission consider evidence of appellant’s age, education, experience, and other matters affecting wage loss. In Shelnutt we held that it was incumbent on the claimant to produce evidence of a substantial nature pertaining to claimant’s ability or inability after the injury to earn “in the same or other employment, the wages she was receiving at the time of her injury.”

Giving the evidence its strongest probative force in favor of the commission’s findings, and weighed by the standards set in the two cited cases, we hold that the commission’s-decision should be sustained as being supported by substantial evidence. It is undisputed that appellant had a second grade education; that he is untrained for any work requiring skill; that his life had been devoted exclusively to hard manual labor; that he was sixty-four years of age; and that he had drawn full-time wages for several years and uninterrupted by illness. After the injury his doctor tried without success to persuade the county to reinstate appellee in a job restricted to light labor. All of the doctors agreed that in the future appellee would be able to perform only light physical labor. There was evidence to the effect that appellee could no longer do any substantial reaching, pulling, and lifting. It was shown that appellee tried to again work at the job he held prior to the injury but that he could not hold up to it. Appellee asserted that the maximum work he had been able to perform after the injury was home gardening but that he would have to rest after approximately one hour, He insisted that “if I stand on concrete it kills my back.” Apparently the commission was convinced that because of age, limited education, lack of training, and physical disability, job opportunities for the claimant will now be scarce; and that he will never be in a position to earn a wage approaching more than thirty per cent of his prior average wage rate. There was substantial evidence to support those conclusions.

Affirmed.


author: John A. Fogleman, Justice. J. Fred Jones, Justice,

text:
    Juan Ernest PEREZ v. STATE of Arkansas
    5551
    463 S. W. 2d 394
    Opinion delivered February 22, 1971

      Sam L. Anderson, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

The primary question on this appeal involves the validity of a search which resulted in the seizure of certain evidence in the trial of appellant on the charge of unlawful possession of cannabis in violation of Ark. Stat. Ann. §§ 82-1002 and 82-1020 (Supp. 1969). The search was based on a search warrant issued by the circuit judge on December 16, 1969. The warrant was supported by an affidavit made by Sergeant Charles E. Evans of the Hot Springs Police Department. Appellant contends that the description of the place and person to be searched was unconstitutionally vague and that the warrant was invalid as a blanket search warrant. Under authority of the search warrant Evans and other officers accompanying him searched certain automobiles and an apartment occupied by appellant. Incriminating evidence was found in the apartment and in the automobiles. We find that the search warrant was invalid as to the search of the apartment but valid as to the search of the automobiles.

We have recently had occasion to consider the particularity with which the place to be searched must be described in order to meet constitutional standards. See Easley v. State, 249 Ark. 405, 459 S. W. 2d 410. There we said that common sense dictates that the constitutional requirement is designed to aid the officers in locating the right property as well as to protect innocent property owners from unreasonable searches and seizures and to prevent officers from searching the wrong property. We found valid a search warrant describing the property as the house occupied by Bud Eagley in or near Hiwassee. The house searched was located on a farm near the community of Hiwassee. Since the description was sufficient for any person familiar with the locality to identify the premises described under the circumstances, we held the search warrant valid.

Quite a different factual situation exists in the case now before us. The officer’s affidavit recited that he had been told by a confidential and reliable informer “that Jack Eaton has in his possession the following illegal substances in his possession; to-wit: marihuana, amphetamines, pills, cocaine, dextroamphetamine, meth-amphetamines, concealed in his apartment located at the corner of Curl Street and Washington Street in Hot Springs, Arkansas, and in two automobiles; a black Ford Thunderbird bearing 1969 Kentucky License B67-413, and a red Volkswagen bearing 1969 Kentucky License M6-801.”

The warrant recited that Evans had made affidavit “that he had reason to believe that on the person of Jack Eaton and on the premises known as Curl Street Apartments at Curl and Washington Streets and in a black Ford Thunderbird, Kentucky License Number B67-413, and a red Volkswagen, Kentucky License Number M6-801, at said address in the City of Hot Springs, County of Garland, State of Arkansas, there is now being concealed certain property, namely marihuana, amphetamines, pills, cocaine, dextroamphetamine, meth-amphetamines at a certain apartment located at the corner of Curl and Washington Streets in Hot Springs, Arkansas, and in two automobiles; a black Thunderbird (Ford) Kentucky License B67-413, and a red Volkswagen Kentucky License M6-801, which are illegal drugs. The same being in the possession of Jack Eaton, the occupant of said apartment and the possessor of both of said automobiles. Approx. 3 lbs of marihuana and several bottles of said pills — valued at about $3,-000.00 which drugs were cartoned when brought to this address.”

The circuit judge found that there was probable cause to believe that the property described was concealed on the premises and automobiles and that grounds for issuance of the search warrant existed. The search warrant commanded a search of the places and automobiles named forthwith.

There was no evidence that appellant had ever been known as Jack Eaton. The Curl Street Apartments consisted of seven apartments in the same one-floor structure and an additional apartment in an adjoining structure. The apartments in the same unit were numbered one^ through seven. Apartment 6 was rented to appellant under the name Jack Perez. No unit in these apartments had ever been rented to a person named Jack Eaton, and the manager of the apartments had never heard of anyone by that name.

There was testimony by the officers that, before obtaining the search warrant, they had watched appellant drive up to the apartments in the Thunderbird and go into the apartment they later searched. In spite of this, when the officers went to the premises around midnight to conduct the search, Lieutenant Norman Hall of the Hot Springs Police Department and Sergeant Doug Harp of the Arkansas State Police went to the manager’s quarters (apartment 3), aroused the manager and her husband and inquired as to the whereabouts of Jack Eaton. When the manager denied knowledge of any such person, they told her that he owned the Thunderbird in the back drive. Her husband then told them that the owner occupied apartment 6, and she added that this man’s name was Perez. Lieutenant Hall and Sergeant Harp did not go to any door except that of the manager’s quarters before going to apartment number 6. The officers explained that they could not actually see the door of the apartment they had reason to know Perez had entered while they were observing him before obtaining the warrant, and did not go onto the premises to obtain the number of the apartment for fear of making their suspect aware of their presence. The manager testified that apartment 6 was so located that an officer who knew its location would not have had to go to any other part of the building to reach it or to awaken anyone or to come to the office. Evans also testified that when he and Fletcher went to the back of the building where they thought the apartment was, the others went to the front because they were not completely certain they would find the person they were looking for.

Five officers assisted in the search. They found both of the vehicles described in the search warrant in the driveway to the apartments. Sergeant Evans recognized Perez as being the person called Jack Eaton by his informer from the informer’s description. Lieutenant Hall and Trooper Fletcher searched the black 1964 Thunderbird bearing the license number stated on the search warrant. They found one package of a substance that they believed to be marijuana, which Hall identified at the trial. Fletcher described it as green vegetable matter which was in a clear plastic bag in the trunk of the Thunderbird. Hall gave a sample to Sergeant Doug Harp to take to the State Police laboratory. The keys to the Thunderbird had been obtained from Perez. Sergeant Evans, Sergeant Harp and Sergeant Brown searched the apartment. Fletcher placed Perez and a man by the name of Martin, who was present in the apartment, under arrest.

Both the state and federal constitutions prohibit the issuance of search warrants “except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.” As earlier indicated we do not feel that search warrants and supporting affidavits should be subjected to a hypercritical view in determining whether or not they meet constitutional requirements. Yet the constitutional language specifically requires that the place to be searched be particularly described. It is not material here that the officers searched the “right” apartment, since the question is whether the apartment could be identified with particularity from the language used in describing it.

To say that appellant was not prejudiced because the search did not extend beyond his apartment, would overlook the fundamental basis of the constitutional requirements. We would thereby return to the thesis that illegally seized evidence is admissible, existing prior to Clubb v. State. 230 Ark. 688, 326 S. W. 2d 816, making admissibility dependent on success of the search and frustrating the primary purpose of the state and federal constitutional provisions. See State v. Ratushny, 82 N. J. Super. 499, 198 A. 2d 131 (1964); United States v. Hinton, 219 F. 2d 324 (7th Cir. 1955). It is too late to revert to pre-Clubb standards. The many subsequent developments reflected by many state and federal decisions so clearly bar this reversion that no citation, enumeration or discussion of them is appropriate.

The warrant for search of the apartment would undoubtedly have been valid if it had correctly named the person to be searched and the occupant of the apartment or otherwise contained a description from which he could be identified or if it had otherwise specifically designated the particular apartment to be searched. Manley v. Commonwealth, 211 Va. 146, 176 S. E. 2d 309 (1970); United States v. Hinton, supra; Webb v. State, 173 Tenn. 518, 121 S. W. 2d 550 (1938). Otherwise, the requisite particularity is wanting. See 4 Wharton’s, Criminal Law and Procedure (Anderson) pages 177, 181, §§ 1553, 1556. A warrant with no more particular description than this one affords is void because it vests the officer with selective discretion in determining where he could search and thereby invade the property of strangers to the process. Fance v. State, 207 So. 2d 331 (Fla. 1968); State v. District Court, 70 Mont. 191, 224 P. 862 (1924); Purkey v. Mabey, 33 Ida. 281, 193 P. 79 (1920); Brewer v. State, 95 Okla. Grim. 256, 244 P. 2d 1154 (1952).

As pointed out by the state, the courts are generally agreed that a warrant for search of a subunit is not valid if it does not describe the subunit to be searched but merely refers to the larger multiple occupancy structure. The state also correctly states the following exceptions to the general rule recognized in some jurisdictions:

(1) Where the warrant adequately identifies the subunit by naming the occupant;
(2) Where the description of the subunit is sufficient to enable the executing officer to locate the premises with reasonable certainty, in spite of a slight omission or inaccuracy;
(3) Where the deficiency in the warrant may be cured by a proper description in the supporting affidavit (although it is usually required that the affidavit be annexed or attached to the warrant).

See Annot. 11 A. L. R. 3d 1330 (1967).

Even if we recognized all these exceptions, we could not apply any of them in this case. Here the warrant gave no identification of the specific apartment except by the incorrect name of its occupant, who was not otherwise identified. For this reason it was fatally defective. See People v. Young, 100 Ill. App. 2d 20, 241 N. E. 2d 587 (1968); Commonwealth v. Smyser, 205 Pa. Super. 599, 211 A. 2d 59 (1965); State v. Bass, 153 Tenn. 162, 281 S. W. 936 (1926). We agree with the Oklahoma Court of Criminal Appeals that the insertion of a name in a search warrant incorrectly is not a fatal defect if the legal description of the premises to be searched is otherwise correct so that no discretion is left to the officer making the search as to the place to be searched. Williams v. State, 95 Okla. Crim. 131, 240 P. 2d 1132, 31 A. L. R. 2d 851 (1952). The defect in the name made this warrant, in effect, a Joe Doe warrant carrying no other identification of any particular person. Such a warrant is void when the premises described is a multi-unit apartment house in which separate units are occupied by several different persons or families. Linthicum v. State, 66 Okla. Crim. 327, 92 P. 2d 381 (1939). We do not agree with the state’s contention that the fact that an officer had seen the person answering the informant’s description enter this apartment supplies the deficiency. Neither this fact nor the informant’s description is mentioned in either the warrant or its supporting affidavit.

We do not mean to say that an officer unfamiliar with the premises or their location is strictly limited to information given on the face of the. warrant to locate the place to be searched. If by reasonable effort or inquiry on the part of the searching officer the property described, in the warrant can be located with certainty, the warrant meets constitutional requirements. State v. Ratushny, 82 N. J. Super. 499, 198 A. 2d 131 (1964); Steele v. United States, 267 U. S. 498, 45 S. Ct. 414, 69 L. Ed. 757 (1925). But the officer cannot rely on his knowledge not stated in either the search warrant or its supporting affidavit to cure a vitally deficient description of the property to be searched, even though he might do so where the error is only technical and there is additional descriptive language to identify the property. State v. Daniels, 46 N. J. 428, 217 A. 2d 610 (1966). The sufficiency of the description to permit identification of the premises with certainty by appropriate effort and inquiry must be decided upon the facts and circumstances prevailing in the particular case. State v. Daniels, supra; Harris v. United States, 331 U. S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947). We do not find the description of the apartment sufficient in this case.

We find the search of the automobiles to have been valid, as they were sufficiently identified. Miller v. State, 89 Okla. Crim. 200, 206 P. 2d 245 (1949), reversed on other grounds, 90 Okla. Crim. 14, 209 P. 2d 890 (1949); Prater v. Commonwealth, 216 Ky. 451, 287 S. W. 951 (1926); Hines v. State, 275 P. 2d 355, 47 A. L. R. 2d 1440 (Okla. Crim. App. 1954).

Appellant also asserts that a mistrial should have been declared because the deputy prosecuting attorney conducting the trial had discussed testimony to be given by Lieutenant Hall and Sergeant Harp with them during the noon recess in the presence of Sergeant Evans who had already testified. When Sergeant Evans left the witness stand, the court reminded him that he was “subject to the rule and not to discuss the case with anyone.” No showing was made as to what actually took place except for the statement of the deputy prosecuting attorney, who said that he had made statements and directed questions to Hall and Harp, neither of whom had testified. His recollections was that he, Sergeant Harp and Lieutenant Hall had done all the talking and that Evans had not said a word.

We have uniformly held that, because of the wide latitude of discretion vested in the trial judge in granting or denying a motion for a mistrial, we will not reverse a judgment because of his action on such a motion in the absence of an abuse of that discretion or manifest prejudice to the complaining party. Shroeder v. Johnson, 234 Ark. 443, 352 S. W. 2d 570. We have applied these standards to questions involving violations of the rule sequestering witnesses. Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816; Harris v. State, 171 Ark. 658, 285 S. W. 367. In the absence of any showing of prejudice to the defendant, we cannot say that the circuit judge abused his discretion in this instance.

Appellant contends that the verdict was not supported by substantial evidence. In view of our holding on the search of the apartment, substantial evidence must be found to support a verdict of guilt based only on the material found in the automobile. There seems to be no doubt that the Thunderbird belonged to Perez, or that marijuana was found in this vehicle. Perez was seen driving the vehicle onto the premises shortly before it was searched. Even though defendant testified that one Jimmy Martin had used this vehicle on previous occasions, the jury was presented with a fact question as to possession of this marijuana by appellant.

The judgment is reversed and the cause remanded for a new trial.

Harris, C. J., and Jones, J., dissent.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case. I reach my conclusions from a re-examination of Article 2, § 15 of the Constitution, in the light of the facts in the case before us, rather than in the light of our previous decisions on different facts. Section 15 of Article 2 is as follows:

"Unreasonable searches and seizures. The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.”

It appears to me that the word "unreasonable” and the phrase “probable cause” have almost been interpreted out of § 15 of Article 2, while strict construction of the phrase "particularly describing” has been overemphasized. I feel that the trend in judicial decisions on searches and seizures is bearing us far from constitutional boundaries; so far in fact, that we are losing sight of the intents and purposes of § 15 of Article 2, and I feel that the majority opinion in this case is a good example.

There is no question that Perez had a right to be secure in his person, house (apartment), papers and effects (even including the illicit drugs) against unreasonable search and seizure. I am of the opinion that the search was not unreasonable in this case and the majority does not say that it was. I am of the opinion that the warrant was issued upon probable cause and the majority does not say it was not. I am also of the opinion that the warrant particularly described the place to be searched and the person or things to be seized with sufficient clarity, but the majority say that it did not. So, for that reason, the majority hold that the contraband drugs (already packaged and marked for quick sale) could not be used in evidence because they were seized under a warrant that only directed the officers to an apartment building and the apartment occupied by Jack Eaton.

The majority say that the warrant vested the officers with selective discretion. I do not agree. The officers had no discretion to search any apartment other than the one occupied by Jack Eaton, and they searched no apartment other than the one occupied by the man they recognized, by previous description, as Jack Eaton. Under the majority opinion, if the warrant had named Perez, the appellant could have sent the officers back for another warrant, while he disposed of the contraband, by simply saying “my name is not Perez.”

It is at this point in the procedure where the facts in the case at bar become important, and it is at this point where I still adhere to the common sense doctrine we announced in Easley v. State, 249 Ark. 405, 459 S. W. 2d 410. The majority recognize the doctrine we applied in Easley but, in my opinion, they fail to follow it in the case at bar.

There is no question that the drugs were found and seized in the apartment occupied by the appellant who had registered and occupied apartment No. 6 as Juan Ernest Perez. It is also obvious that Eaton, or Perez, was using two names for different purposes. The police officers had a description of the appellant under the name of Eaton, along with the name and location of the small apartment building where he was staying, as well as a detailed description of the automobile he was driving and the illicit drugs he possessed. They observed Eaton, or Perez, as the man described to them, drive up to the building and enter an apartment. The officers went to the apartment building and while some of the officers inquired of the manager as to which apartment was occupied by Eaton, two other officers who had the search warrant in their possession, went directly to the door of the apartment previously entered by the appellant and although the occupant then said his name was Perez, they searched the apartment, found the drugs and arrested the appellant. The trial court accepted the drugs in evidence but this evidence is rejected by the majority of this court because the search warrant did not describe the premises to be searched.

The majority indicate that the search would have been valid and the evidence admissible if Perez had been named in the warrant instead of Eaton, or if apartment “No. 6” had been specifically designated in the warrant, or if the apartment had been rented in the name of Eaton rather than Perez.

As I view the majority opinion, the object of the law is defeated by interpreting Article 2, § 15, as protecting the appellant’s apartment and the drugs against reasonable search and seizure, rather than protecting his •apartment, papers and effects against unreasonable searches and seizures. Certainly, if the police officers had barged into the wrong apartment not designated in the warrant, and had found contraband and arrested whomever they might have found in possession, the evidence thus obtained could not, and should not, be used in evidence against such person. It is that kind of search and seizure § 15 of Article 2 is security against. That is not what happened in this case. In this case the officers searched, and they only searched, the apartment occupied by the man they knew as Eaton, but who also goes by the name “Perez.”

Regardless of past decisions, I am unable to concede that § 15 of Article 2 of the Constitution of this State permits a dope peddler to safely pursue his trade with impunity by simply renting an apartment for his base of operation under one name, removing the number from his apartment door as protection against a valid search warrant; then go into the street under another name and sell his packaged misery to all who are too young to know or too “hooked” to care.

I prefer to follow the constitution as I interpret it through the common sense approach announced in Easley v. State, supra.

I would affirm.

Harris, C. J., joins this dissent.


author: John A. Fogleman, Justice. Carleton Harris, Chief Justice,

text:
    Van Sant KALB et al v. CITY OF WEST HELENA, Arkansas
    5-5455
    463 S. W. 2d 368
    Opinion delivered February 22, 1971

      W. H. Daggett and W. G. Dinning, Jr., for appellants.

      Garland Q. Ridenour, for appellee.
   John A. Fogleman, Justice.

Certain property owners who objected to annexation of their property to the City of West Helena have appealed from a judgment of the circuit court annexing the territory.

Mildred Scott asserts that the court erred in holding that her land was suitable to, or of such character as to be subject to, annexation. She contends that it was vacant and did not derive special value from its adaptability for city uses. Van Sant Kalb and others assert that their property was not suitable for city use because it was used for agricultural and horticultural purposes and because it was not contiguous to the city.

The last point may be disposed of quickly. It is based upon the fact that annexation of the area, in which the lands of Kalb and appellants similarly situated are located, would leave two areas outside the city limits but entirely surrounded by property within the city limits. As they point out, our statutes require that annexed territory be contiguous to the municipality. Ark. Stat. Ann. § 19-307 (Supp. 1969). Obviously, there are good reasons why an area which does not touch the limits of a city should not be annexed to it. Still, contiguity does not require that every point of some boundary of annexed territory be common to it and a municipal boundary. We have resorted to a definition of the word contiguous, when descriptive of two tracts of land, to mean “in close proximity, touching * * * in actual close contact * * * as, contiguous proprietors are those whose lands actually touch.” Seligson v. Seegar, 211 Ark. 871, 202 S. W. 2d 970. We have held that two tracts which corner are contiguous, because they touch. Clements v. Crawford County Bank, 64 Ark. 7, 40 S. W. 132, 62 Am. St. Rep. 149. In considering the question of contiguity in an annexation case, this court said long ago that we understand contiguous lands to be those not separated from the municipal corporation by outside lands. Vestal v. Little Rock, 54 Ark. 321, 15 S. W. 891, 16 S. W. 291, 11 L. R. A.

These appellants’ lands lie in a tract designated in the record alternately as 5A or A5. It is a sort of L-shaped tract with the vertical line at more than a right angle to the base or horizontal portion. Immediately above the base of the L, the vertical portion is rendered irregular in shape by protrusions of tracts now in the city limits as shown by maps introduced in evidence. The south line of the base tract runs east and west and coincides with the city limits for its entire length. Almost the entire length of the north line also runs along the city limits. The upper or vertical portion, about three-quarters of a mile long, is virtually bisected by Highway 242, also called Fourth Street road. It extends generally 450 feet east of Highway 242 and 300 feet west of the highway. Irregular westward protrusions from the tract border the city limits, one on three sides and another for a distance of some 150 or 200 feet on one side. The fact that there would be “islands” of unannexed territory entirely surrounded by the municipal corporation does not destroy the contiguity of the territory annexed. In order for us to say that the territory proposed for annexation was separated from the municipal corporation, it would have to be completely disconnected or detached therefrom by reason of the intervening territory.

Clark v. Holt, 218 Ark. 504, 237 S. W. 2d 483, is not contra. There, Lead Hill sought to annex a 183-acre tract one-half mile from the corporate limits connected only by a strip 50 feet wide and 3,060 feet long not dedicated for public use and traversing terrain rendering its utilization for platting into lots and blocks or for road construction highly impractical, to say the least. We found no evidence of any intent, immediate or prospective, to utilize the strip for development. The only purpose of inclusion of this strip was as a connecting link with the lands actually sought to be annexed. Under these circumstances we could not consider the 183-acre tract contiguous to the town. Obviously, the connecting strip met none of the tests prescribed in Vestal v. Little Rock, 54 Ark. 321, 15 S. W. 891, 16 S. W. 291, 11 L. R. A. 778. Thus, we said the 183-acre tract was separated from the town by a half-mile gap.

The contention of appellant Mildred Scott can be disposed of almost as readily. First, we should say that her contention and the remaining contention of Kalb can only be sustained if we find substantial evi-dentiary support lacking. Brown v. Peach Orchard, 162 Ark. 175, 257 S. W. 732; Planque v. City of Eureka Springs, 243 Ark. 361, 419 S. W. 2d 788. Furthermore, the favorable results of an election on the question of annexation bound the court to grant the petition unless cause for denying it was shown, so the burden lay upon protestants (appellants) to show why the territory should not be annexed. Planque v. City of Eureka Springs, supra.

The gist of appellant Scott’s argument is that. her property is vacant and unimproved and is not adaptable for city uses because of its topography. There seems to be no argument about the property’s being vacant and unimproved (except for 6 houses), and the lack of plans for development by the owner. Likewise, all parties seem to concede that the terrain is rather rugged because of one knoll and two valleys. It was shown that this heavily wooded tract of approximately 50 acres lies between a junior high school established in 1928 on the west and a junior and senior high school later constructed on the east. Four families live in houses on the property and three families and one widow in trailers parked on the western edge of the tract. The property is served by the Arkansas Power & Light Company and by a water line paid for by appellant Scott’s mother but served by the city water system of West Helena. Four homes in Richmond Hill Subdivision adjoin the tract on the west. West Helena’s Garland Street comes up to the property line. A bowling alley and a church lie immediately south of the property. The Arkansas Power Sc Light Company building, a Taystee Freeze, a dwelling house and a Liberty Cash grocery lay in proximity to the Scott land.

The manager of appellee’s water and sewer departments testified that the property could be provided with city sewer through the property without any problem. City water lines are near it on two sides. He stated that there was no reason why the tract could not be susceptible to residential development. While this witness said that he had never been on the interior of the tract, he had been along the outskirts and showed general familiarity with it. He had sought an easement from Mrs. Scott for a sewer line to serve another potential development.

Tommy Dial, a real estate broker, testified that the Scott tract was valuable because of its proximity to a church, Highway 49, the schools, Springdale Road (a rapidly developing area), and a junior college. It was his opinion that the consideiable expense required to develop the property would be justified because of its favorable location. Mrs. Scott conceded that the property could be developed if enough money was expended on it. Her objection to annexation was based upon her desire to preserve the property for a home for her and her 7 siblings, if they ever needed it for that purpose, in keeping with the wishes of her mother from whom she inherited the property.

We cannot say that this evidence does not tend to show that the Scott land is adaptable for city uses or constitute substantial evidentiary support for the judgment.

Only 5 of the protestants whose property lay in tract 5A testified. Appellant Kalb lives along Highway 242 about one-half mile north of the existing city limits. He and his father owned 17 acres, on which Kalb grazed 10 cows and 60 head of hogs. The hog business was commenced by Kalb after the petition for annexation was filed. Their lands were the site of 2 houses, in one of which both resided and in the other renters were occupants. The property has a 600-foot frontage on Highway 242. Only 5 acres would be included in the annexed territory. There is a wooded parcel of 34 acres in tract 5A north of the Kalb property without any houses. Kalb exhibited a map showing that the upper arm of the L was spotted with areas devoted to pasture, to cropping in beans, cotton and corn, a pecan orchard and woodlands. He estimated that 30 acres were in pasture, 30 in crops and 30 in livestock. A water line was originally extended through the area to the Kalb property by a private utility in 1945. Kalb’s house is presently on a four inch line. A sewer line had been extended north along Highway 242 to the Porter property noth of Kalb’s land, and the city had offered to let residents along the line avail themselves of it. Kalb testified that a number of the residents of the area moved there to avoid municipal regulation and obligations. He admitted that there had been a considerable increase in West Helena’s population since 1945 and that residential development in the area of his lands was progressing.

Joe Schmitz owned 20 acres abutting Highway 242. His property would be annexed to a depth of BOO to B50 feet, leaving about two-thirds of the tract devoted to crops surrounded by property within the corporate limits. He had planned to raise cattle on the property in the future. His property was furnished city water and lights. He and his daughter occupied a house on the tract, and his son lived in a trailer thereon. He objected to being prevented by city ordinances from discharging firearms to eliminate predators from his pecan trees.

Charlie Wheeler lived on a lot 80' x 100' which he bought in order to get outside the city limits. He considered Fourth Street road property to be substantially residential.

Carl Stevens was born and raised on a tract of 2Vz acres which he described as located 4 or 5 blocks north of the Schmitz land, but he was living in a house built in 1965. He paid for sewer service at a higher rate than West Helena residents paid. He kept two head of cattle for beef for home consumption and a horse for riding purposes on his property.

Elizabeth Mahan owned 28.9 acres on which she was born and still lived. It fronted on the highway. Hogs, cows and horses were kept on the premises but not for commercial purposes. She raised farm products. Her father had obtained water service from a private concern 45 years earlier. She had access to the city sewer line.

Mayor Porter, who had owned approximately 15 acres at the northern extremity of tract 5A for 10 or 12 years, testified that since 1960 West Helena had experienced a growth in population from between 5,000 and 6,000 to nearly 9,000. He stated that most of the growth had been to the west and north of the city. The city had utilized a planning commission and a council of engineers, the Harlan Bartholomew Agency, Mr. Bonner of the University of Arkansas and a citizens’ advisory committee to project and aid in orderly growth. The proposed annexation was in keeping with their advice. The mayor stated that people were building in the area whenever they could find tracts for development. No police or fire protection was afforded this area. The manager of the water and sewer department testified that there were 131 customers in the area and estimated this to be approximately the number of families living in the area and that sewer service was available to nearly all of them.

Tommy Dial said that there had been considerable development out Fourth Street and found 95 to 100 families in the area. He valued one home at $75,000 to $80,000. He opined that all of tract 5A was subject to residential development. He found a small amount of the land used for grazing cattle on the east side of Fourth Street and cotton and bean fields on a few vacant places along the west side.

There was testimony that: there are residential locations in the area all along Highway 242; approximately 75 houses and 3 trailer courts, upon which there is a total of 15 to 20 trailers, 2 grocery stores, a small drive-in restaurant, a radio repair shop, a generator shop, a uadiator shop, a church, a greenhouse, a nursery, a tract used intermittently for used car sales and 2 subdivisions are located in tract 5A.

There is substantial evidence that significant portions of tract 5A were used for agricultural and horticultural purposes. There is also substantial evidence to show that the tract represents the city’s growth beyond the city limits and that the value of the lands is derived from actual and prospective use for city purposes rather than enhanced by proximity to the city. If this evidence is accepted, the tract is a proper subject of annexation. Vogel v. City of Little Rock, 55 Ark. 609, 19 S. W. 13. City of Newport v. Owens, 213 Ark. 513, 211 S. W. 2d 438, relied upon by appellants does not indicate a different result. There we affirmed a judgment denying annexation because we found substantial evidence to support it, but took care to point out that there was also substantial evidence to support a holding based upon the Vogel rule. We might well have sustained a result here opposite to the circuit court’s judgment, had that court come to such a conclusion.

The judgment is affirmed.

Harris, C. J., and Byrd, J., dissent.

Carleton Harris, Chief Justice,

dissenting. I cannot agree with the majority in affirming this case for the reason that there are eighty or ninety acres of land encompassed by the city limits which are specifically omitted from the order of annexation. The result is that we have two "islands” within city territory, but not a part of the city. This means that these particular areas will not be furnished fire or police protection and persons needing police protection will have to call the county sheriff’s office.

I have been unable to determine from the record why these two tracts were omitted. Mr. E. L. Cowsert, manager of the Water and Sewer Department of the City of West Helena testified that it appeared that these lands were fit for development and he did not know the reason that they were left out. Mr. Tommy Dial, a licensed real estate broker, who testified on behalf of the city, stated very definitely on cross-examination that he could not see any difference in this land and the land included, and he knew of no reason why the two islands were not embraced in the annexation. In fact, he said, "I asked this question myself; its highest and best use, in my opinion, would also be for residential development.”

In Clark v. Holt, 218 Ark. 504, 237 S. W. 2d 483, this court approved, and quoted language, found in 37 Am. Jur., Municpal Corporations, § 27,. as follows:

“The legal as well as the popular idea of a municipal corporation in this country, both by name and use, is that of oneness, community, locality, vicinity; a collective body, not several bodies; a collective body of inhabitants — that is, a body of people collected or gathered together in one mass, not separated into distinct masses, and having a community of interest because residents of the same place, not different places. So, as to territorial extent, the idea of a city is one of unity, not of plurality; of compactness or contiguity, not separation or segregation.”

Certainly, the inclusion of the two islands would have contributed to “oneness” since these tracts are in the same “locality, vicinity”, and through an orderly extension of the city limits, should be “a body of people collected or gathered together in one mass, not separated into distinct masses, and having a community of interest because residents of the same place, not different places [actually three different places].”

I respectfully dissent.

I am authorized to state that Byrd, J., joins in this dissent.


author: J. Fred Jones, Justice. John A. Fogleman, Justice,

text:
    VACCARO-GROBMEYER CO. et al v. William A. McGARITY
    5-5460
    463 S. W. 2d 372
    Opinion delivered February 22, 1971

      Catlett br Henderson, for appellants.

      Sharpe ir Wilkinson, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case in which the claimant-appellee, William A. McGarity, hereinafter called the claimant, was awarded 50% permanent partial disability to the body as a whole by the referee, and on review by the full Commission he was awarded 100% permanent disability. On appeal to the St. Francis County Circuit Court the award of the Commission was affirmed. On appeal to this court the employer, Vaccaro-Grobmeyer Co. and its workmen’s compensation insurance carrier, Casualty Reciprocal Exchange, contend that there is no substantial evidence to sustain the award and they state the point they rely on as follows:

“The award of One Hundred (100%) Per Cent permanent disability is not supported by any substantial medical evidence.”

On appeals from the decisions of the Workmen’s Compensation Commission, the trial court, as well as this court, only looks to the record for a determination of whether there is any substantial evidence to sustain the findings and award of the Commission and if there is, the Commission’s order is affirmed. This rule has been announced so often citation would only add volume without weight to this opinion. In examining the record for substantial evidence to support an award or denial of compensation for permanent partial disability in a workmen’s compensation case, the examination is directed to all the competent evidence and is not confined to the medical evidence alone. See Wilson & Co., Inc. v. Christman, 244 Ark. 132, 424 S. W. 2d 863. In the case at bar, however, we conclude that the award of the Commission was supported by substantial medical evidence.

The facts, as gathered from the record, are as follows: The claimant’s right arm was amputated near the shoulder in 1918 when he was 13 years of age. Following the amputation of his arm, the claimant had farmed until 1933 when he became engaged in house painting. He had lost no appreciable time from work as a house painter until his injury on July 23, 1965, when he attempted to move a refrigerator from against the wall of a room he was painting; his foot slipped on a drop cloth and he twisted and injured his back.

Following his injury, the claimant was seen by his family physician, Dr. George McPhail, in Forrest City. Dr. McPhail testified that he had known the claimant for about 20 years and had been his family physician during that time. He testified that following the injury he examined and x-rayed the claimant and diagnosed his condition as degenerative arthritis of the lumbar spine, along with disc disease. He hospitalized the claimant frorii July 24, 1965, to August 6, 1965, and again from September 14, 1965, to September 23, 1965, at which time claimant was discharged from the hospital free of muscle spasm and pain. He re-entered the hospital in Forrest City on two subsequent occasions and was last discharged from that hospital on January 20, 1966. On February 21, 1966, Dr. McPhail reported as follows:

“He was kept in the hospital from July 25 to August 6, 1965. The muscle spasm and pain gradually subsided and he was discharged home on August 6, 1965.
He was in the office for twenty-two (22) visits and was given out-patient treatments each time, between August 6 and September 14, 1965. He was re-admitted to Forrest Memorial Hospital on September 14, 1965, for more intensive treatment and was again discharged free of spasm and pain on September 23, 1965. Since that time he has been back in the hospital on two (2) occasions and I understand in the interim he has been hospitalized on two or more occasions in Little Rock.
In all sincerity and fairness to both the insured and the insuror, I feel that this man’s sprain would have healed permanently much sooner had he not had a previous existing back injury or disease. I do feel that he has been truthful in stating that he has severe back pain, as evidenced in every examination by a severe left lower dorsal and lumbar muscle spasm.”

On February 21, 1968, Dr. McPhail reported as follows:

“* * * I understand he has been in a Little Rock hospital on several occasions, because of this injury, having received surgical treatment on at least two occasions, by a Little Rock physician. I have treated him in my office on numerous occasions between each hospital stay, here and at Little Rock.
He is now wearing a back brace and a brace on his left foot. I feel he has now reached maximum benefits from any treatment, except from muscle re-laxan ts and analgesics, which he can secure on prescription and administer to himself at home. He is 75% totally and permanently disabled to do any form of manual labor.”

Dr. McPhail re-examined the claimant on November 21, 1968, and testified that the claimant’s condition was worse than when he last saw him and that it was his then opinion that the claimant was totally disabled. As to his final opinion, Dr. McPhail testified as follows:

“Q. you say that because of this back condition that he now has resulted from the injury and in your opinion he is a 100% disabled?
A. Absolutely — he will never work another day and the reason that I asked him to be excused from this Courtroom because I am the man’s doctor and I suppose that I will continue to treat him after this hearing. I think I know if he was here and heard it where this testimony was revealed to him he will become a bedridden invalid because our minds do play a big part in our ability or will to sort of get up and do for ourselves.-
Q. Doctor, with the type of back this man has as you said resulted from the injury, how does that affect him and prohibit him and keep him from painting — what keeps him from painting like he use to — he has still got his back back there? He has still got some bones and discs and nerves back there?
A. Mr. Sharpe, he is numb from his knee down and if he got on a ladder or any place to work he might just tumble off there and kill himself besides he must experience excruciating pain on any type walking even and bending would be out of the question. Gentleman, I don’t want to make my testimony too strong but I have seen a lot of backs but that is as bad one as I ever looked at and a man still be ambulatory.”

Dr. Richard M. Logue, an orthopedic specialist in Little Rock, examined the claimant on May 17, 1967, and reported, in part, as follows:

"From the history, physical examination, and review of the x-rays, it is apparent that this man has a severe involvement of his back by a traumatic arthritic process which, to some extent, is undoubtedly due to the alleged injury and the subsequent long involved treatment course to which he has failed to respond either to his or his treating doctor’s complete satisfaction. He has some residual findings in his left lower extremity and marked limitation of motion of his low back which indicates some persistent irritation of the nerve roots existing from the levels which are noted to be markedly narrowed in the x-rays. Over and above his back complaints, he has general arthritic complaints and has been continued on anti-rheumatoid medication which although not completely eradicating his symptoms, does, according to the patient, minimize to some extent his complaints. This man, at the time of the examination, was 62 years old and I feel, from the extensiveness of the spurring which is seen in the films made at this time, that some of the marked arthritic changes certainly preceded the injury as he described it to me which occurred i" July of 1965. I believe that his back condition, along with his general arthritic habitus and further with the loss of his right upper extremity, all preclude him from a gainful occupation, at this age. Inasmuch as two discs were removed, I am satisfied that this reflects an exaggeration of the undoubtedly pre-existing arthritis and that his present condition now represents basically an aggravation of the pre-existing arthritis which apparently was quite extensive. * * * I believe, therefore, that the disability appertaining to the injury allegedly sustained in 1965 is basically an aggravation of the severe and marked arthritis of his lumbar spine and that aggravation, in itself, represents a disability to the body as a whole in the magnitude of 30 to 35 per cent as a whole. I would specifically rate his disability, from the injúry in question, at a percentile figure of 33 1/3 per cent.” (Emphasis supplied).

The claimant was hospitalized in Little Rock under the care of Dr. Samuel B. Thompson, an orthopedic specialist, and after failing to respond to conservative treatment, a ruptured intervertebral disc was surgically removed on February 4, 1966, and on March 2, 1966, Dr. Thompson reported, in part, as follows:

"On February 4, 1966, I operated on him and removed a herniated disc from the disc space between the 4th and 5th lumbar vertebra on the left. There was adhesions between the undersurface of the nerve root and the underlying fibrocartilaginous mass that bulged out of the disc space. There was a large quantity of sequestrated disc material in the disc space. The surgical procedure was unusually difficult because of the scoliosis of his spine making it very difficult to get into space.
Post-operatively he had relief of the pain in his leg but had persistent numbness and loss of power of the anterior tibial muscle. This has continued to improve in the intervening period but he has not regained the full power. We did not do a fusion on his spine because of the marked degenerative changes in the spine above. Radiographically, the best looking joint he had in his low back was the one in which the ruptured disc was located and I was very fearful if we fused this joint it would put additional stress on the other degenerative joints in his back and we would get him into even more trouble than he is in now.” (Emphasis supplied).

On November 22, 1966, Dr. Thompson again saw the claimant and reported, in part, as follows:

“X-ray Examination: Anteroposterior, anteropos-terior tilt, lateral, and oblique views of the lum-bosacral spine were repeated. These films were compared with previous ones made at this office. They show the surgical defect of the lamina of the 5th lumbar vertebra. There continues to be extensive degenerative changes between the 2nd and Srd and 4th lumbar vertebra. The changes between the 4th and 5 th lumbar vertebra have become more pronounced at this time in that there is some spurring bridging from one to the other on the oblique view, which was not evident in December of 1965.
I think we have attained maximum benefit in this man. He has extensive degenerative changes in his lumbar spine. These were so extensive that I did not feel we dared carry out a fusion after removing the disc at his lumbosacral joint since actually, even with the disc removed, this was the best joint that he had in his back. He had extensive motor weakness of his left lower extremity. This has improved progressively and all of the muscles have now recovered except the anterior tibial muscle, but this makes it necessary for him to wear a dropfoot brace on unlevel surfaces. It is possible he will have to do this indefinitely.
Considering the motor impairment of his left lower extremity, the fact that he had a disc injury at the lumbosacral joint and it was necessary to remove this disc, and the fact that he had such extensive degenerative changes above this that it was not considered surgically good judgment to fuse this, he is left with quite a bad state of disability in his back. Considering all these factors, I would estimaté a physical impairment of 30% of the value of the body as a whole, based on the degenerative changes in his back and the disc for which we treated him. I do not think this can be improved by further treatment. I think he should continue to wear his low back brace when on his feet and will probably need to continue wearing the dropfoot brace.” (Emphasis supplied).

Dr. Thompson again saw the claimant on November 19, 1968, and reported, in part, as follows:

“* * * There has been relatively little change in the x-ray appearance in the intervening two year period.
I feel that this is a relatively static condition and that he has a physical impairment of 30% of the value of the body as a whole as a result of degenerative disc disease in his lumbosacral spine and the herniated nucleus pulposus, for which we operated on him, and that the herniated nucleus pulposus was the result of the injury in question and the degenerative disc disease of his low back was aggravated by the injury in question.” (Emphasis supplied).

The claimant testified, in part, as follows:

“Q. Are you able to do anything now — are you able to walk as much as two or three blocks?
A. I couldn’t walk three blocks if my life depended on it not without going down.
Q. Have you tried to go fishing and relax?
A. I have tried it but I can’t take it.
Q. What do you mean you can’t take it — I didn’t think there was anything to fishing other than sitting there waiting for the fish to bite?
A. There is — getting in the boat — you know I just can’t sit there — it is painful.
Q. Where is the pain?
A. In my back — my lower part — the upper part of my back doesn’t hurt so bad — I don’t notice that.
Q. Do you have any pain in your left leg?
A. Yes, sir.
Q. I thought you said it was numb -you didn’t feel any pain in that?
A. It is numb and it is painful.
41, ■7F
Q. Can you go to the grocery store?
A. Yes, sir but I can’t carry nothing.
Q. You don’t carry any groceries home?
A. No, sir.
Q. Do you help your wife clean up the house any?
A. No, sir very little — I drive my truck to the grocery store — my wife goes in and get the groceries and brings them out — I set in the truck.”

It is obvious in this case that the claimant had considerable osteoarthritis in his entire spine prior to his injury. It is also clear from the evidence that he sustained a ruptured intervertebral disc at the soundest disc space in his entire spine. There is no evidence that the claimant suffered any disability because of his arthritic condition prior to his injury. As a matter of fact, there is no evidence that he ever knew he had arthritis prior to his injury. It is apparent that Dr. Thompson very earnestly attempted to segregate the disability caused by the ruptured disc and the arthritis which was aggravated by, and at the location of, the ruptured disc, from the arthritis in the rest of the claimant’s spine in estimating that the claimant has a 50% “impairment to his body as a whole.”

Dr. Logue also attempted to segregate the aggravation by the ruptured disc from the claimant’s overall disability as a result of his ruptured disc, but Dr. Logue went further in stating, “I believe that his back condition, along with his general arthritic habitus and further with the loss of his right upper extremity, all preclude him from a gainful occupation, at this age.” None of the doctors, with the exception of Dr. McPhail, knew what effect, if any, the arthritis had on the claimant prior to his injury. There is no question that Dr. Mc-Phail was of the opinion that the claimant is totally disabled because of the ruptured disc and the resulting aggravation of arthritis of the spine.

It is apparent from the record before us, that the claimant suffered no disability from his arthritis prior to his injury, notwithstanding Dr. Thompson’s opinion that the rupture was to the best disc he had in his entire spine. As a result of the rupture of the best disc he had, he has constant pain, numbness and pain in his left leg with attending ankle drop; is unable to walk any distance and is unable to carry anything.

The compensation law allows no credit for non-disabling pre-existing conditions in determining the extent of permanent partial disability caused by accidental injury which aggravates the pre-existing condition into disability. Hamilton v. Kelley-Nelson Const. Co., 228 Ark. 612, 309 S. W. 2d 323; J. H. Williams & Sons, Inc. v. Moore, 206 Ark. 766, 177 S. W. 2d 761. (But, see Davis v. Stearns-Rogers Const. Co.. 248 Ark. 344, 451 S. W. 2d 469).

The referee found that the claimant had a 50% permanent partial disability to his body as a whole as a result of his injury, and certainly there was substantial evidence to support that finding if that had been the question presented on this appeal. From the same evidence, however, the full Commission found that the claimant’s disability amounted to 100%, so the question before us is whether there is any substantial evidence to support the finding and award of the full Commission, and we find that there was. We are not unmindful of our decision in Ray v. Shelnutt Nursing Home, 246 Ark. 575, 439 S. W. 2d 41, but in that case the medical evidence was limited to functional disability and there was no evidence of disability beyond the functional disability found and testified to by the doctors. In the case at bar there is substantial evidence from the doctors’ testimony and reports, as well as the claimant’s own testimony that he is totally disabled. In Shelnutt, the claimant was found by the doctors, as well as by the referee, to be an excellent candidate for rehabilitation. In the case at bar, no such optimism was expressed by anyone and the substance of the medical views was to the contrary.

The judgment is affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur because I feel that there is substantial evidence, other than medical evidence, to support the award. I agree with appellants that it is not supported by substantial medical evidence, but this is not fatal under the rule announced in Glass v. Edens, 233 Ark. 786, 346 S. W. 2d 685, if there is, in addition to medical evidence, sufficient evidence of such matters as age, education, experience and other matters affecting wage loss to support the award.


author: Conley Byrd, Justice.

text:
    Fred REVELLE et al v. Hobart ALEXANDER et al
    5-5464
    463 S. W. 2d 360
    Opinion delivered February 22, 1971

      Tiner & Henry, for appellants.

      Reid, Burge ir Prevallet, for appellees.
   Conley Byrd, Justice.

Appellant Fred Revelle, in his own behalf and as father and next friend of his son Terry Revelle, brought this action against appellees Hobart Alexander and Chalmers Young to recover personal injuries and medical expenses incurred as a result of an eye injury received by Terry. The record shows that Fred Revelle and Chalmers Young worked on Alexander’s farm. Terry Revelle, age 16, also worked as needed. On the day in question Chalmers Young had Terry holding the hub of a Birch hipping ridger while Young was using a chisel and a hammer to remove the bearing race. The race shattered, or broke, and a piece struck Terry in the eye causing permanent injury to his eye.

The trial court submitted the issues to the jury on interrogatories, telling them that they should consider each interrogatory as a separate verdict. The jury answered the interrogatories, finding that Young was not negligent and that Terry was not negligent and did not assume the risk. Interrogatories No. 6 and No. 7 asked the jury to “state the amount of any damages which you find from a preponderance of the evidence were sustained by Fred Revelle and Terry Revelle as a result of the occurrence.” The answer to interrogatory No. 6 was $2,961.80 and to No. 7 was $7,038.20. The trial court entered judgment in favor of appellees Alexander and Young. For reversal appellant contends: (1) that the verdict was contrary to a preponderance of the evidence and that the trial court abused its discretion in overruling the motion for new trial, and (2) the trial court erred in failing to exercise its discretion to set aside the verdict because the jury’s verdict was inconsistent.

We find no merit in either contention. There was evidence given by Young, Alexander and their witness Reese Louis, Jr., from which the jury could have found that the standard of care used was the same standard of care that a reasonable and prudent farmer would have used under the same or similar circumstances. The duty of this Court, on appeal, is set out in Bowman v. Gabel, 243 Ark. 728, 421 S. W. 2d 898 (1967), as follows:

“The rule setting forth the respective functions of the jury and the trial court and this court is well expressed in Richardson v. State, 47 Ark. 562, 567, where we said: ‘But the weight of evidence and the credibility of witnesses are to be determined by the jury. It is the duty of the trial court to set aside a verdict which is clearly against the weight of the evidence. But when the case reaches us, the question is no longer whether the evidence preponderates on one side or the other, or whether due credit has been given to the statements of a witness who has testified fully and fairly. But the question is, whether there is a failure of proof on a material point. To order a new trial because we differ in opinion from the circuit judge as to the weight of the testimony, or the truth or falsity of a witness, is to substitute our discretion for his discretion. And in this matter he is supposed to enjoy some advantages over us.’

We can find nothing inconsistent between the interrogatories finding no negligence on the part of appellees and finding the amount of damages sustained by Fred Revelle and Terry Revelle as a result of the occurrence. Nothing in the latter interrogatories nor the answers thereto indicate that the damages sustained were attributable to the appellees.

Affirmed.


author: Frank Holt, Justice. John A. Fogleman, Justice,

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Dan R. DIPERT et ux
    5-5424
    463 S. W. 2d 388
    Opinion delivered February 22, 1971

      Thomas B. Keys and Philip N. Gowen, for appellant.

      Clark, Clark <b Clark and Jones, Stratton & Jones, for appellees.
   Frank Holt, Justice.

In this condemnation proceeding a jury awarded appellees $15,000 for a strip of their land, used for commercial purposes, which was taken by appellant as additional right-of-way for U. S. Highway No. 65 in Damascus. From a judgment on that verdict comes this appeal in which appellant asserts several points for reversal. We first consider the contention that the trial court erred in permitting improper voir dire examination of appellant’s expert witnesses.

In the presentation of their case, appellees adduced expert testimony to verify their claim for damages. In an attempt to prove what it considered to be just compensation, appellant called to the stand Bryan Mc-Arthur, an expert witness as to property valuation. After the usual preliminary questions establishing his qualifications, McArthur was asked by appellant’s counsel if he had an opinion as to the fair market value of appellees’ property. Before this question could be answered, counsel for appellees secured the court’s permission “to ask this witness some questions on voir dire as to his basis of appraisement.” Counsel for appellees then proceeded with a lengthy interrogation of the witness obviously calculated to imply to the jury that his opinion or value testimony (which McArthur had not yet given) was not a product of his independent computation, but one which he had been instructed to arrive at by appellant.

Appellant strenuously objected to this manner of voir dire and eventually moved for a mistrial, but each of its complaints was overruled by the court. Appellant’s second expert witness was subjected, also over vigorous objection, to a similar line of interrogation under the pretext of a voir dire inquiry. We think this irregular procedure constituted prejudicial error. Of course, it is proper for counsel to conduct a voir dire investigation into the competency and qualifications of an expert witness for the opposition; but this prerogative neither comprehends nor sanctions a disruption of the orderly, efficient and long-established method of examining witnesses. See VI Wigmore on Evidence § 1882 (3d ed. 1940); 31 Am. Jur. 2d Expert and Opinion Evidence § 32. Not a >single question propounded by counsel for appellees to witness McArthur and the other expert witness was addressed to a determination of their qualifications as experts. In substance, these interrogations took on the complexion of cross-examinations attacking the credibility of the witnesses before they had even begun to testify as to property value or damages.

We are cognizant of the fact that Ark. Stat. Ann. § 28-704 (Repl. 1962) permits the trial court wide latitude in directing and controlling the examination of a witness. We are equally aware that in certain situations, particularly where multiple, complex issues are involved, confusion can be minimized and justice better served by permitting cross-examination relating exclusively to one fact issue as soon as the direct examination on that particular subject has been concluded. But this was not the case here. The interrogations propounded by counsel for appellees, as noted above, were directed primarily at discrediting testimony which had not as of then been given. This tache was clearly impermissible, and the trial court’s allowance of such unwarranted interruptions of appellant’s orderly examination of its witnesses was an abuse of discretion constituting reversible error.

Appellant also contends that the trial court erred in failing to strike the value testimony of appellees’ expert witness because “in arriving at his value of the property, he considered residential lands in Conway [population 15,510]1 and Russellville [population 11,-750]1 as indicative of the value of the land in question;’’ whereas appellees’ property was admittedly of a commercial nature and located in Damascus [population 255]. We must agree with appellant. As we understand it, appellees assert this was permissible because no commercial sales had occurred in this small rural town during the preceding ten years and, therefore, they should be permitted to resort to utilization of residential sales in. minimally developed subdivisions in Conway and Russellville and relate them to sales of residential property located on the highway in the Damascus area in order to establish the commercial value of appellees’ property. When it is necessary to go outside an area for evidence about comparable commercial sales, we observe that the better rule is to restrict the evidence to comparable sales of commercial property in an area or town which has more similarity in nature and size. See, e. g., Arkansas State Highway Comm. v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309 (1963).

We have examined appellant’s two remaining points for reversal and find them to be without merit. However, because of the errors noted above, this judgment is reversed and the cause remanded.

Fogleman, J., concurs in part and dissents in part.

John A. Fogleman, Justice,

concurring in part; dissenting in part. I agree with the court’s holding on the cross-examination of appellant’s expert witnesses preceding any testimony except the statement of qualifications and that each such witness had an opinion on the matter of value.

I cannot agree, however, on the treatment of the testimony of the value witnesses. In part, that disagreement is based upon a different concept as to evidence of market value. The difference in my concept and that of the majority is best illustrated by the inapplicability of the authority upon which its reliance is placed to the situation at hand. We do not have a case in which there is an effort to establish market value by evidence of comparable sales, as was the case in Arkansas State Highway Commission v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309. No one sought to bring either buyer, seller, or anyone else before the jury to state the terms of sale of lands which were comparable as evidence of the value of appellees’ property. Both parties sought to prove market value by qualified experts who had familiarized themselves with existing conditions and were properly permitted to state opinions. Their opinions are remotely, not directly, based upon their knowledge of other sales. Their testimony about these sales cannot be said to be more than an attempt to give a means of measuring their knowledge and competency. The difference in the two approaches is pointed up by a statement in an annotation entitled “Admissibility on issue of value of real property of evidence of sale price of other real property.’’ In the very beginning of the annotation (85 A. L. R. 2d 112), I find this statement:

To fall within the scope of this annotation, a case must involve an offer of evidence of the sale price of other real property on the issue of the value of the real property in question, and cases which involve an offer of such evidence only for other purposes, such as to test the knowledge and competency of expert witnesses, are not included.

We have heretofore clearly pointed out that direct evidence of comparable sales is one approach to proof of market value and expert opinion another. We called the direct evidence more trustworthy. Arkansas State Hwy. Commission v. Ark. Real Estate Co., 243 Ark. 738, 421 S. W. 2d 883. See also Arkansas State Hwy. Comm. v. Sargent, 241 Ark. 783, 410 S. W. 2d 381. Nichols’ Eminent Domain (Vol. 5, pp. 18-188, 189, 18.42H1) also treats the question: coo

A distinction must also be drawn relative to the foundation which must be laid for such evidence based upon whether the comparable sales data is used as support for an expert’s opinion or as independent substantive evidence of value. Quite obviously, when evidence of the price for which similar property has been sold is offered as substantive proof of the value of the property under consideration, a foundation should be laid showing that the other property is sufficiently near that in question as to character, situation, usability and improvements to make it clear that the tracts are comparable in value. However, where evidence of sales of similar property is offered not as substantive proof of value, but merely in support of, and as background for, the opinion of an expert, the requirement of such foundation is not so strict.

In order to appreciate the real significance of the court’s action, it is necessary to know the exact background of the factors involved.

Lloyd Pearce, an appraisal witness, who testified for appellees, found land closely held in Damascus. When asked if he used the “comparable sale” approach to valuation, he replied in the negative. He said he found no property in Damascus of a similar nature that had sold within 10 years. He used the “cost” approach, which he explained as cost of reproduction of structures, less depreciation plus cost of replacing the land. He valued the 12,000 square feet of land at 20Í per square foot. He assigned the same unit value to the remaining 10,272 square feet in arriving at his “after” value, which is not greatly different from that arrived at by one of appellant’s appraisers. He gave very good reasons for his devaluation of improvements. On cross-examination, it was brought out that Pearce found only one sale of property in the Damascus area, which he did not consider comparable because it was for residential purposes. He said that his figure of 20‡ per square foot was a minimum nominal figure and the usual residential value in such cities as Conway, but lower than that in Russellville. He testified that 20<t per square foot would be comparable to the value of property in a residential subdivision without paved streets, curbs or gutters. He found residential lands outside Damascus on the highway selling for 6 or 7Í per square foot and arrived at his 20Í value by applying the ratio of the comparative value of residential land to commercial land in other areas. He definitely stated that he did not base his opinion on any sales. He found no sales of properties with similar characteristics.

Appellant failed to abstract the testimony of its own value witnesses. The record, however, as pointed out to us by appellees, reveals that these witnesses, of necessity, used virtually the same approach as that taken by Pearce. Bryan McArthur, appellant’s staff appraiser, who, like Pearce, lives in Little Rock, used the “cost of replacement” method as to the buildings. He established his raw land values at 15<£ per square foot by comparison to highway frontage land selling at from 2 to 5<£ per square foot. He said he considered residential values “to a point.” He considered a sale of commercial property in Bee Branch, 5 miles north, but said that it was really not comparable. He arrived at a valuation of $2,650 for the land, on the basis of 15Í per square foot with an addition of $1,000 for land improvement.

Walker Watson, an appraiser for the highway department, called the Bee Branch sale “in a way comparable,” saying that there were no comparable sales, insofar as land and improvements were concerned, and, while the Bee Branch sale could be considered, it wasn’t exactly comparable. Consequently, he used virtually the same method as Pearce. After revealing on cross-examination that the Bee Branch property was of a triangular shape rather than rectangular, was in a different school district, in a different county and possibly in a municipality with a different form of government, Watson opined that when such differences exist, the appraiser uses his judgment and experience in making necessary comparison and adjustments. He found no sales of lands with improvements in the Damascus area. Watson did not give any breakdown on his values on land and buildings.

The opinions of the experts are tabulated as follows:

It is obvious that the major difference in values lies in the appraisal of the buildings. Thus, we have the problem of determining the value of raw land in a small town where there are no comparable sales. Here, in 'the words of appellant’s senior, or reviewing, appraiser, the appraiser’s judgment and experience must, of necessity, come into play. See also, 4 Nichols on Eminent Domain, 3rd Ed., 84, § 12.31 [2]. It is remarkable that when the witness did this, there was a difference of only 5<£ per square foot. This seems clearly indicative to me of the reliability of such an approach, where the major property value is attributable to buildings.

The raw land could only be valued on a “replacement” or “reproduction” basis in the absence of comparable sales. The income approach definitely could not be used. Not only is appellant’s reviewing appraiser correct as to the judgment of the appraiser, but, in such cases, a very wide latitude of discretion must be allowed the trial judge.

Appellant’s motion did not really reach the question. It first asked that Pearce’s value testimony be stricken when he said that he found no sales of property of a similar nature in Damascus during the preceding 10 years. The reason assigned was the ambiguous and erroneous assumption that the only method for appraising property in condemnation actions is market value. See 4 Nichols on Eminent Domain, 3rd Ed., 48, § 12.2. Later appellant moved to strike all of Pearce’s value testimony because he used property in a different city with a different highest and best use. Obviously, most of Pearce’s value testimony was admissible under any view. Since we have held so many times that, in these circumstances, a motion to strike all the testimony should not be granted, no citation of authority should be necessary.

We should not say that the trial court abused its discretion in the circumstances prevailing here. Our constitution recognizes that the right of private property is before and higher than constitutional sanction, that no person shall be deprived of his property except by due process of law and that private property shall not be taken or damaged for public use without just compensation therefor. Constitution of Arkansas, Art. 2, §§ 8, 21, 22. I humbly submit that when such a strict adherence to technical rules, the applicability of which is at least questionable, is required by the courts, the constitutional requirements are disregarded. When there are no comparable sales, I can think of nothing to substitute for the judgment of people who are better qualified than judges to know what figure a purchaser and seller, both willing and informed, would likely arrive at as market value of the land on which there were buildings, the value of which had been fixed by other means. They came within 5<t a square foot of agreeing here. Here reference to a quotation from Woburn v. Adams, 187 F. 781 (1st Cir. 1911) at 5 Nichols, Eminent Domain 18-92, § 18.4 is apt:

It is because of the absolute right to take and the bounden duty to surrender under peculiar situations and possible conditions of no present market value that the rules of evidence are somewhat relaxed, and ascertainments of reasonable value must be made on the best evidence of which the case is susceptible * * *. If no sufficiently fair rules of evidence could be devised for ascertaining the reasonable compensation required by the Constitution, the public would either do without the land or the landowner without compensation.

I find no error in this respect. The parties should not be restricted to comparable sales in these circumstances, as the majority seems to say. There weren’t any on the date of the previous trial, and there won’t be any on a retrial. The most important question is, “What do they do now?”

       1970 Census Report.