text:
    Gingrich v. Bradley.
    5-2222
    341 S. W. 2d 33
    Opinion delivered December 12, 1960.

      J. Wesley Sampler and Duty é Duty, for appellants.

      Eugene Goffelt, for appellee.
   George Rose Smith, J.

This is a will contest in which the appellants seek to set aside the will of Mattie Syme, who died October 18, 1959, at the age of 78. The appellants challenge the will on the ground of undue influence and testamentary incapacity. The proponent of the will is its principal beneficiary, the appellee Bob Bradley, a minister who was 31 years old when Mrs. Syme executed the will on November 7, 1958. The probate court upheld the will.

A narrative of the facts may conveniently begin in November of 1955, when young Bradley left Joplin, Missouri, to assume the pastorate of Christ’s Church, a nondenominational church at Rogers, Arkansas. In the following year the young people in the congregation advertised a lawn-mowing service as a means of raising money for the church. Mrs. Syme, who belonged to a different church, met the young minister in the course of making arrangements to have her grass cut.

A widow of moderate means, Mrs. Syme was then living in a home which she owned in Rogers. Three of her four children, all by her first husband, were still living, but none of them resided with their mother at Rogers. One daughter, the appellant Mary Gingrich, lived within the county, at Bentonville. The second daughter, Ruth Earp, who has since died, was then living in Ohio. The appellant Glenn Daniels, a son, lived in Texas, and Mrs. Syme’s grandson, the appellant William V. Daniels, lived in Ohio. There is an abundance of testimony, given by witnesses on both sides of the case, to show that the testatrix considered her children and her grandson to be culpably inattentive to her in her old age. She often complained about the infrequency of their visits; it cannot be doubted that she was lonely.

In 1957 Bradley and Mrs. Syme again met one another as in the preceding year. Bradley says that upon this or a later occasion he inquired about Mrs. Syme’s church affiliation. She expressed a desire to attend church if transportation could be arranged, and Bradley offered to come for her whenever she wished. Mrs. Syme eventually accepted this offer, and by the spring of 1958 she was attending Bradley’s church with some regularity, usually riding with Bradley or with his wife.

In about March of 1958 Mrs. Syme’s doctor suggested that she give up living by herself. She accordingly sold her house at Rogers and moved into the home of her daughter, Mrs. Gingrich, at Bentonville. At that time Mrs. Syme gave her daughter a check for $6,000, dated April 2, 1958. Why this money was paid is a disputed issue of fact, but the evidence preponderates in favor of the view that in return for the money Mrs. Gingrich was to take care of Mrs. Syme for the rest of her life.

At about this time Mrs. Syme executed what proved to be the next to the last of several wills made by her. This will, dated March 28, 1958, was prepared by her regular attorney, Wesley Sampier; its validity is not questioned. By this will the testatrix left Mrs. Gingrich five dollars, thereby disinheriting this daughter without explanation. After a bequest of $500 to the testatrix’s grandson the rest of the estate was left equally to her son Glenn and her other daughter, Ruth.

After staying with Mrs. Gingrich for less than three months Mrs. Syme became dissatisfied and moved into a hotel at Bentonville, where she remained until the last few weeks of her life. During the months between Mrs. Syme’s departure from Rogers in March and the execution of the contested will in November Bradley continued to visit her and to take her to church on Sunday at least part of the time. In August Mrs. Syme joined Bradley’s church.

The only description of the events immediately preceding the execution of the disputed will comes from Bradley himself. He says that in October or November Mrs. Syme brought up the subject and expressed her intention of leaving all her property to him, saying, among other things, that he had made it possible for her to go to church and to other places after she had been pretty well confined. Bradley discouraged tbe suggestion, telling Mrs. Syme that it would not be right for her to leave everything to him. In a few days, however, Mrs. Syme renewed her suggestion and seemed determined to carry it out. Bradley jotted down notes about her wishes and later took them to an attorney, Eugene Coffelt. Bradley says, and we find it natural to believe, that Coffelt thought it necessary to consult Mrs. Syme before actually preparing the will.

The will was executed under Coffelt’s supervision in the office of Coffelt’s uncle, which was on the ground floor of the hotel where the testatrix lived. One of the attesting witnesses thought, without being sure, that Bradley was present; but we think the weight of the evidence supports the trial judge’s belief that Bradley was not present at the execution of the will.

The will is rather long, but its provisions may be summarized as follows: (a) There is a bequest of $100 to the testatrix’s grandson, (b) The testatrix declares that she has advanced or loaned at least $7,300.00 to Mary Gingrich. She gives $3,325.00 of this money to Mrs. Gingrich and directs that her administrator collect the remaining $3,975.00 and divide it equally among Ruth Earp, Glenn Daniels, and Bob Bradley, (c) The three beneficiaries just named are to receive the proceeds from the sale of the real estate in Bentonville, after the payment of medical and funeral expenses and the costs of administration. (d) All the rest of the estate is given to Bob Bradley, who is named as executor, (e) There is a forfeiture clause by which anyone who contests the will is precluded from receiving any benefits under it.

About a month after the execution of the will Mrs. Syme apparently learned (and, if so, the information was correct) that her daughter Ruth was afflicted with cancer. A codicil, prepared by Coffelt and duly executed on December 5, provided that Bob Bradley should receive Ruth’s share if Ruth predeceased her mother, the testatrix.

During the remaining eleven months of Mrs. Syme’s life Bradley and his wife continued their kindnesses toward the elderly woman. On two occasions Bradley drove Mrs. Syme to Ohio for overnight visits with her daughter Ruth, who died in April of 1959. The present contest was instituted by the appellants after the death of Mrs. Syme on October 18, 1959.

We have no hesitancy in saying that the contestants’ proof falls short of establishing the charge of testamentary incapacity. Although Mrs. Syme suffered from arteriosclerosis it is not contended that she was mentally incompetent in the latter part of March, 1958, when she executed the will drafted by Mr. Sampier, entered into a contract for the sale of her house, and a few days later gave her daughter a check for $6,000. There is proof that the testatrix’s condition became progressively worse, but the weight of the evidence supports the trial court’s finding that she did not lack testamentary capacity on November 7, 1958.

The issue of undue influence presents a more difficult question. There is no direct proof of improper conduct on the part of the appellee, but the appellants insist that two circumstances strongly indicate the existence of undue influence: First, the testamentary scheme is unnatural in that the testatrix’s own descendants do not receive a fair share of the estate. Secondly, the appellee, as the testatrix’s spiritual adviser, occupied a confidential relationship toward her, had both the motive and the opportunity to exert a sinister influence, and in fact acted at least as the intermediary in communicating her wishes to the attorney who prepared the will. These arguments are forcefully presented, but they do not persuade us that the probate judge was wrong in his decision.

As to the first point, the testatrix had the privilege of dividing her estate any way she chose, and it is shown by the will' executed in March that she had no hesitancy about completely disinheriting at least one of her children. There is, as we have indicated, ample evidence to support the view that Mrs. Syme resented what she regarded as a want of affection on the part of her children.

Furthermore, we are not convinced that the testamentary scheme, if viewed through Mrs. Syme’s eyes, is quite as unnatural as the appellants consider it to he. The estate consists of three principal assets: (a) The Bentonville real estate, inventoried at a value of $6,500; (b) the balance due on the contract for the sale of the Bogers house, inventoried at a value of $8,916.77; and (e) the indebtedness of $7,300.00 that is mentioned in the will as being owed to the testatrix by Mary Gingrich. (The appellants insist that this debt was not really owed, but we are firmly of the view that the probate judge was right in rejecting Mrs. Gingrich’s testimony on this disputed point.)

When the will was executed Mrs. Syme was living in a hotel at a monthly expense of $100, plus her other living costs. Presumably she expected to pay those expenses from the income accruing from the sale of the house in Bogers, as it does not appear that she had any other liquid asset. If the testatrix believed, as nearly every human being does, that she would continue to live for the indefinite future, she might well have concluded that by the time of her death the balance payable upon the sale of the Bogers house would have been entirely consumed. In that event her division of the estate is not especially unnatural. If the sale of the Bentonville real estate should produce $6,000 after the payment of the expenses charged against it by the will (and the inventory indicates that this figure is not unreasonable), then it will be found that the testatrix’s method of dividing this money and the sum owed by Mrs. Gingrich will result in exactly equal payments of $3,325.00, to the penny, to each of the four principal beneficiaries of the will. We do not know, of course, if this distribution is what Mrs. Syme had in mind, but there is no other ready explanation for her method of dividing the amount assertedly owed to her by her daughter.

Upon the second point urged by the appellants we recognize the fact that the circumstances surrounding the execution of this will call for the closest scrutiny and may even give rise to a rebuttable presumption that undue influence was exercised. McDaniel v. Crosby, 19 Ark. 533; McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590; Orr v. Love, 225 Ark. 505, 283 S. W. 2d 667. But, after considering the record as a whole, we do not find that the weight of the evidence requires the will to be set aside.

There is no proof whatever tending to reflect upon the character of Bradley or his wife. There is no real reason to read a mercenary or sordid motive into conduct that is certainly not unusual or extraordinary in the circumstances of this case. Indeed, the testimony indicates clearly enough that the Bradleys’ thoughtfulness was not confined to this testatrix; similar kindnesses were extended to other members of the congregation. The actions that might be considered really unusual, such as Bradley’s two trips to Ohio, took place after the will had already been signed. Evidence of such conduct is admissible for its bearing upon the proponent’s actions as a whole, but influence exercised after the execution of the will does not affect the validity of the instrument. Page on Wills (1960 Ed.), § 15.10; Thompson on Wills (3d Ed.), § 146. We are inclined to conclude our opinion with the same thought that we expressed in Shipley v. Campbell, 226 Ark. 786, 294 S. W. 2d 59: “There is proof that Mrs. Mann, [the testatrix] preferred living with the Thomases to living with her cousin. There is proof that she was happy while in their care. Theirs was perhaps the only real kindness that Mrs. Mann received from anyone after the death of her husband. The fact that her recognition of that kindness may seem to have been unduly liberal is not a sufficient reason for declaring her will to be invalid.”

Affirmed.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Mason v. Lauck.
    5-2263
    340 S. W. 2d 575
    Opinion delivered December 12, 1960.

      Langston & Walker and L. A. Hardin, for appellant.

      Wright, Lindsey, Jennings, Lester and Shults, for appellee.
   Paul Ward, Associate Justice.

This is a Workmen’s Compensation case. Eomie L. Mason was killed in a car accident on Tuesday, January 20, 1959, at about 10:30 p.m. A claim for benefits for his widow, Dorothy V. Mason, and their infant daughter was disallowed by the referee and the full Commission. An appeal was taken to the Circuit Court. After said appeal had been taken claimants filed a Motion before the Commission asking it to reopen the case for the purpose of introducing newly discovered evidence. This Motion was denied by the Commission on the ground that it had lost jurisdiction. Then the claimants filed a petition for Certiorari in the Circuit Court to have the proceedings on the Motion (before the Commission) brought up. This was granted by the Circuit Court. Also, claimants filed a Motion in the Circuit Court asking it to remand the case to the Commission for the purpose of considering the newly discovered evidence. This Motion was denied by the Circuit Court on the ground that it had no authority to remand the case to the Commission for said purpose.

Under the above state of the record the trial court then proceeded to review the findings of the Commission (disregarding the proceedings relative to the newly discovered evidence) and affirmed the same. Claimants now prosecute this appeal.

For the purpose of clarity we will hereafter treat the proceedings as if two appeals were involved. The first appeal refers to the original proceedings before the Commission, its original finding, the appeal to the Circuit Court, and its finding thereon. The second appeal refers to all proceedings relative to the newly discovered evidence.

FIRST APPEAL. Romie L. Mason was an employee of the Lanck Provision Company, located at 717 East Washington Street in North Little Rock. James L. Lauck is the owner and manager of said Company. The Company is engaged in the business of selling and servicing freezers to patrons in the State of Arkansas. It was the duty of Romie L. Mason to service these freezers when occasion arose. Some 75 such freezers were located in the Conway territory, which extended along Highway 65 leading from North Little Rock to Conway. The Company furnished Mason a panel truck which he used in connection with his duties. Mason was paid by the week and was subject to call at any time his services were needed whether day or night. Mason kept the truck at his residence when he was not using it.

On the morning of the day Mason was killed he left his home at the usual time and reported for duty at the office of the Company. Shortly thereafter Mr. Lauck asked him to go to his home and service his personal freezer. After completing this task Mason left Lauck’s home at approximately 1:30 p.m. He next appeared at about 3 p.m. at the Levy Cafe, which is located a mile or so west of North Little Rock on Highway 65. This cafe at that time was owned by “Dick” Page and his wife Mildred Page (after that and previous to the hearings Mrs. Page married a Mr. Humphreys.) While at the Levy Cafe Mason drank some beer and played shuffleboard with Mr. Page. Later at about 4:30 p.m. Mr. Page left for the purpose of going to “Dick’s Place”, which is a cafe owned by him and located approximately 5 miles further west on said Highway 65. Approximately 30 minutes after Dick Page left the Levy Cafe Mason also left, and he arrived at Dick’s Place at approximately 5:30 o’clock. Mason drank two or three beers with friends at Dick’s Place and remained there (with one exception noted later) until about 9:45 or 10 o’clock. It appears from the evidence that while at Dick’s Place Mason left somewhere around 7 o’clock and stayed for about 30 minutes then came back. After leaving Dick’s Place Mason apparently started to return home on Highway 65 when he had a collision with another car and was killed at about 10:30 p.m.

It appears from the record that the Company keeps a call-book in which are placed the names of people who call in for repair service on their freezers. This book contained a call from two people in the Conway territory. It was not shown however that Mason was cognizant of these two calls. The record further discloses that these two persons were not contacted by Mason on the afternoon or night of the day he was killed, although they were at home during that time. It further appears that Mason had told a friend earlier in the afternoon that he was to make a service call in the Conway territory that day.

The pivotal question presented to the Commission was whether Mason’s death arose “out of and in the course of his employment”. It is appellants’ strong contention that the facts and circumstances of this case bring it squarely within a well recognized exception to the going and coming rule often referred to in decisions by this court and particularly in the case of Blankenship Logging Company v. Brown, 212 Ark. 871, 208 S. W. 2d 778. In that case the court recognized “the general rule to the effect that injuries sustained by employees going to and returning from the regular place of employment are not deemed to arise out of and in the course of employment.” In that case the court further stated: “The authorities generally recognize several exceptions to the general rule. One of these exceptions, which is as well established as the rule itself, is stated by the Washington Court in the case of Venho v. Ostrander Railway and Timber Company, 185 Wash. 138, 52 P. 2d 1267, 1268, as follows: ‘When a workman is so injured, while being transported in a vehicle furnished by his employer as an incident of the employment, he is within the course of his employment, as contemplated by the act.’ ” In the case under consideration it is not denied that the Company furnished Mason the truck which he used in servicing the freezers in the Conway territory.

In support of the above contention appellants also rely upon the decisions of this court in American Casualty Company v. Jones, 224 Ark. 731, 276 S. W. 2d 41; Frank Lyon Company v. Oats, 225 Ark. 682, 284 S. W. 2d 637, and; Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579.

It would appear therefore that Mason’s death arose out of and in the course of his employment if, on the afternoon or night of January 20, 1959, he was engaged in business for his employer. On the other hand, if Mason was engaged in activities for his own personal pleasure or profit appellants’ claim is not compensable. See: Fox Brothers Hardware Company v. Ryland, 206 Ark. 680, 177 S. W. 2d 44, and Cagle v. Gladden-Driggers Company, 222 Ark. 517, 261 S. W. 2d 536. In the latter case this court in affirming the lower court stated: ‘ ‘ The commission, however, chose to base its findings upon the purely personal nature of Cagle’s activities when the misfortune occurred.”

Thus in this kind of eases, as in the case under consideration, a question of fact is presented for the Commission’s determination. In testing the Commission’s finding on this question of fact, we must give it the force and effect of a jury verdict. See: Johnson Auto Co. v. Kelly, 228 Ark. 364, 307 S. W. 2d 867, and Hobbs-Western Co. v. Craig, 209 Ark. 630, 192 S. W. 2d 116. Therefore the finding of the Commission in this instance must be sustained by us if we find it is supported by substantial evidence. If the “first appeal” were all that was involved on this appeal we would be compelled to uphold the findings of the Commission and the Circuit Court because we are convinced they are supported by substantial evidence. However, because of the conclusions reached hereafter on what we have chosen to call the “second appeal,” we make no final disposition of the cause at this time.

SECOND APPEAL. When appellants presented the Motion to the Commission to reopen the case for the introduction of newly discovered evidence, they attached to the Motion an affidavit of one Loyce W. Talley, wherein it was indicated he would testify to certain facts. We do not set out the contents of the affidavit because we do not try a case of this kind de novo.

It is appellants’ belief and contention however that this purported new evidence would result in the Commission reversing its original finding.

We hold that the Commission was correct in refusing to reopen the case on the ground that it lost jurisdiction when the case was appealed to the Circuit Court. We have concluded however that the Circuit Court erred in holding that it had no jurisdiction or authority to grant appellants’ Motion to remand the case to the Commission. We have reached this conclusion against the strong protest of appellees.

It is appellees’ contention that if the Circuit Court had any authority to remand to the Commission it must be found in Arkansas Statutes, Section 81-1325, and that no such authority is found in this section. The statute referred to, in all pertinent parts, reads as follows:

“. . . The Court shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the order or award, upon any of the following grounds, and no other:

1. That the Commission acted without or in excess of its powers.

2. That the order or award was procured by fraud.

3. That the facts found by the Commission do not support the order or award.

4. That there was not sufficient competent evidence in the record to warrant the making of the order or award.”

In support of appellees’ contention they cite the decisions in Continental Casualty Co., et al v. Caldwell, et al, 55 Ga. App. 17, 189 S. E. 408, Gonzales v. Johnston Foil Manufacturing Co., Mo. Court of Appeals, 305 S. W. 2d 45. We find that the former citation is not entirely in point and therefore not controlling and we are unwilling to follow the decision in the latter case.

In the Caldwell case the Motion to remand for the introduction of newly discovered evidence was first made in the appeals court, and no question of due diligence was involved. Also in that case it is not shown that the statutes involved were the same as our own statutes. Neither do we agree with that court in its overall understanding of the Workmen’s Compensation Act as revealed by this statement: ‘ ‘ The design of the Workmen’s Compensation Act is to furnish a speedy, inexpensive, and final settlement of the claim of injured employees. The act abhors and shuns protracted and complicated litigation over the facts of any case. * * * For this reason the act makes the finding of the Industrial Commission upon the facts final and conclusive.” Our own conception of the Workmen’s Compensation Act is that it does not consider speed more important than justice.

The Missouri Court of Appeals in Gomales case did construe a Workmen’s Compensation Statute exactly like our own statute above quoted, and the opinion does clearly hold that the Circuit Court had no authority under the statute to grant a Motion to remand to the Commission to consider newly discovered evidence. We are unable however to agree with the reasoning upon which the court reached its conclusion. What appears to be the essence of the court’s reasoning is stated as follows:

“There is nothing before us to indicate arbitrary action or abuse of discretion on the part of the Commission unless it can be said employee’s so called Motion for Reconsideration and the exhibits attached thereto constitute a part of the record in the case. There is no provision in the Workmen’s Compensation Act Authorizing the Commission to entertain such motion after final award. There is but one course to pursue after final award by the full Commission and that is to appeal to the Circuit Court. The Motion for Reconsideration and the exhibits attached thereto were filed seven days after the Commission made its final award. Consequently it is our conclusion that such motion and exhibits were not properly a part of the record in the case and should not be so considered. The transcript as certified by the Commission to the Circuit Court did not include these documents, obviously, on the theory, and rightly so, that they constituted no part of the record. The Circuit Court should be confined to the transcript of the proceedings and the evidence as certified by the Commission when reviewing an award, absent the charge raised for the first time ‘that the award was procured by fraud.’ * * * And the court’s action in permitting the introduction of employee’s Motion for Reconsideration and the exhibits attached thereto as evidence on appeal was irregular and unwarranted.” (Lewis v. Kansas Explorations, 238 Mo. App. 697, 187 S. W. 2d 524, loc. cit., 527)

“To permit the employee, or, for that matter, the employer and insurer, to bring in new evidence after a final award has been made by the Commission, would seriously interfere with the finality of the Workmen’s Compensation proceedings. If such a course was permitted, claimant could await the Commission’s decision and if it was adverse, then search for new evidence in an effort to set aside the Commission’s Award.”

It seems to us that the same process of reasoning would apply with equal force to a Motion in the Circuit Court in an ordinary civil or criminal action, yet nothing is more generally and uniformly recognized in our jurisprudence than the power and duty of a trial court to grant a new trial on newly discovered evidence (under proper conditions) in order to prevent a miscarriage of justice. The “proper conditions” referred to are, for example, that the movant has exercised due diligence, that the evidence is not cumulative, and that the new evidence would justify a different result. These “conditions” are, we think, sufficient safeguards against undue delays and connivance on the part of the claimant, the possibility of which apparently disturbed the Missouri Court of Appeals. It is difficult to see why every reason which justifies new trial procedure in a Circuit Court does not apply with equal force and relevancy to the Workmen’s Compensation Commission. It is noted from that portion of the Gonzales opinion copied above that even the Commission has no authority to reopen a case once it has reached a final decision. We can see no just and valid reason for us to reach such a conclusion, especially since our statute (Ark. Stats., § 81-1327) specifically provides that the Commission “shall not be bound by technical . . . rules of procedure.”

There is another fundamental respect in which we disagree with the Missouri opinion mentioned above. It holds, and appellees here contend, that the Circuit Court has no authority to remand (in this kind of a situation) to the Commission because none of the 4 grounds set forth in the statutes are applicable — that is, there is no contention here that (1) the Commission acted in excess of its power, (2) any fraud was involved, (3) the facts do not support the order of the Commission, and (4) there is no lack of evidence to support the Commission’s order. On the face of the statute that analysis appears to be sound but we think the significance of the key word in the statute has been overlooked. That word, “review”, is found in the first line of the above quoted statute. If this was a situation where the Circuit Court was called upon to “review” the record of the proceedings of the Commission, then the 4 grounds mentioned above would be applicable. However, that is not the situation presented in this case. The Circuit Court was not called upon to “review” any proceedings of the Commission. It was called upon only to consider a Motion which constitutes no part of the proceedings before the Commission. It is our opinion therefore that in this situation the Circuit Court had the same authority to consider and act upon appellants’ Motion that it always has to pass upon a like Motion in the usual civil or criminal case originating therein. Not only so, but in both instances the trial court’s sound discretion should be based upon the same considerations, to-wit: Is the newly discovered evidence relevant, is it cumulative, would it change the results, and was the movant diligent?

In view of the conclusions heretofore set forth, it follows that the entire cause should be, and it is hereby, remanded to the Circuit Court and the Circuit Court is reinvested with authority to consider appellants’ Motion to remand to the Commission for the purpose of introducing newly discovered evidence. In considering the said Motion upon remand the Circuit Court will, of course, use its sound discretion in accordance with our pertinent statements in the previous paragraph.

Reversed and remanded with directions.


author: Sam Robinson, Associate Justice. George Rose Smith, J.,

text:
    Rinke v. Weedman.
    5-2231
    341 S. W. 2d 44
    Opinion delivered December 12, 1960.

      Lasley <& Lovett, Gentry, Gentry $ Mott, Rose, Meek, House, Barron & Nash, for appellant.

      Owens, McHaney & McHaney, Frank J. Wills, for appellee.
   Sam Robinson, Associate Justice.

The issue in this case is the ownership of a tract of wild and unimproved land west of Little Bock in Pulaski County, consisting of 37.13 acres. Appellants own the land or a substantial part thereof if appellee has not acquired it by adverse possession. So there may be a clear understanding of the issues, it is necessary to mention several transactions in connection with the land which have occurred over a period of about fifty years. Prior to 1914 the land was owned by Alexander Bobertson and had been platted into lots and blocks as Arkansas Heights Addition. The plat was duly recorded. Bobertson let the property forfeit for general taxes for the years 1914, 1916 and 1917. Later B. M. Bimbach obtained a deed from the State to the lands and in 1921 deeded the property to B. A. Binke and F. A. Binke. In 1923 the land was again allowed to forfeit for taxes. F. A. Binke was adjudged insane in 1935. B. A. Binke died in 1939 and his widow died in 1941. In 1939 the State Land Commissioner deeded the land to appellee, Mark Weedman, and Weed-man had paid taxes on it for more than seven consecutive years at the time appellants commenced this action.

Alexander Bobertson died testate in 1921. His entire net estate was placed in trust, with the income therefrom to his widow, Abigail Bobertson, for life, upon her death the income to be used for educational purposes known as Abigail Bobertson Scholarship Trust. No children were born to Alexander and Abigail Bobertson. The lands were a new acquisition and Abigail Bobertson renounced the will of Alexander Robertson, thereby acquiring a one-half interest in the Alexander Robertson estate. The Abigail Robertson Scholarship Trust is still active, and it conveyed its interest in the property to appellant, Fred Rinke, on November 21, 1958.

The parties have agreed that all the tax sales are void. Therefore, title to one-half interest in the land would be in Fred Rinke under the 1958 deed from the Abigail Robertson Scholarship Trust and title to one-half interest would be owned by the beneficiaries under the will of Abigail Robertson if Weedman has not acquired the property by adverse possession.

There are two points that need to be discussed:

First, does the deed from the State give appellee Weedman the color of title which he must have in order to successfully claim ownership by adverse possession under the provisions of Ark. Stats. § 37-102?

Ordinarily a tax deed from the State, void because a tax sale is void, nevertheless constitutes color of title. Cayce v. Nordin, Trustee, 221 Ark. 383, 253 S. W. 2d 338, and cases cited therein. A redemption of tax forfeited land, however, does not in itself constitute color of title. Galloway v. Battaglia, 133 Ark. 441, 202 S. W. 836; Rouse v. Teeter, 214 Ark. 488, 216 S. W. 2d 869. Appellants contend that Weedman is estopped to deny that he was the owner of the property at the time of obtaining the deed from the State and therefore his acquisition of the property must be considered a redemption and not a purchase.

Before Weedman obtained a deed from the State he knew the land had been platted in lots and blocks and forfeited as such because of the nonpayment of general taxes. In connection with acquiring the land from the State he engaged the services of an attorney. The attorney advised getting a deed from Mrs. Fred A. Rinke, whose husband had been declared insane in 1935. It will be recalled that in 1921 Rinke obtained title based on a tax sale and in turn had allowed the property to again forfeit for taxes in 1923. (It will- also be recalled that the parties agree that all the tax sales are void.)

Weedman did get a deed to the property from Mrs. Binke, and acting on the theory that this deed gave him title to the property, he petitioned the county court to convert the platted property to acreage under the provisions of Act 91 of 1929 [Ark. Stats. § 19-407 et seq.J, which would thereby enable him to redeem the property from the State for $1.00 per acre under, the provisions of Act 284 of 1937 [Ark. Stats. § 10-903]. Acting on Weedman’s petition, the county court did convert the platted property back to acreage and Weedman obtained a deed from the State to the property for the consideration of $1.00 per acre and other fees that are mentioned in the deed.

We need not go into the question of whether the deed from Mrs. Binke gave Weedman color' of title, because we have reached the conclusion that the deed from the State did give him color of title; hence it is immaterial whether Mrs. Binke’s deed gave him color of title. Appellants base their contention that the State’s deed did not give Weedman color of title because, they say, Weedman is estopped to deny he was the owner of - the property by reason of his assertion of ownership made in getting the property reduced to acreage and purchasing from the State on the theory of ownership.

The doctrine of equitable estoppel has no application because nothing that Weedman did caused appellants to act in any manner to their detriment. It is agreed that all the tax sales, including the one under which Binke originally claimed ownership through his purchase from Birnbach, are void. And Binke does not claim by adverse possession. It follows, therefore, that Binke acquired no interest whatever in the property until he obtained a deed from the Abigail Bobertson Scholarship Trust in 1958, and of course he obtained no interest at that time if the Trust had none to convey. And Weedman’s representation that he was the owner of the property under the deed from Mrs. Binke in no way caused the Scholarship Trust to act to its detriment. Although the Trust has been in existence for more than 35 years, it paid no taxes on the property and did not carry it as an asset and showed no interest in the property until it gave the deed to Rinke in 1958. At one time Weedman inquired of the trust officer of the bank acting as trustee, regarding the property, and was told that the Trust owned no interest in the property.

But appellants argue that the doctrine of judicial estoppel is applicable; that once Weedman claimed in a judicial proceeding that he was the owner, he is estopped to later assert in another proceeding, where the parties are not the same, that he was not the owner at the time of his purchase from the State in 1939.

True, in petitioning the county court to reduce the lots and blocks to acreage and purchasing from the State, Weedman represented himself as owner, but we do not think these representations estop him from now showing just what the facts were in his acquisition of the property. To support their contention of judicial estoppel, appellants cite the cases of Womack v. Womack, 73 Ark. 281, 83 S. W. 937, mod. 83 S. W. 1136; Robinson v. Cross, 98 Ark. 110, 134 S. W. 954; Hudson v. Union & Mercantile Trust Co., 155 Ark. 605, 245 S. W. 9. Womack v. Womack was a divorce case. Property was purchased in the wife’s name, paid for by both the husband and wife. The husband asked that the deed be set aside. The Court said: “Conceding that Womack purchased the land and paid for it, and had the title taken in name of his wife, it was absolutely her property. ‘If a husband purchases property, and has it conveyed to his wife, or expends money in improving her property, the advances will be presumed to be gifts. The law will not imply a promise on her part to repay him.’ Ward v. Ward, 36 Ark. 586. But the facts do not justify this conclusion, for the evidence shows her work contributed at least equally to the acquisition of this property, and he has in bankruptcy proceeding treated it as hers, not his, and he cannot now be heard to say it was his. Rodgers, Domestic Rel. § 259. There can be no question that she owned this property free of any legal, equitable, or moral obligation to convey to him.” Thus it will be seen that the Court held in favor of the wife because she was the absolute owner of the property and not because Womack was estopped to claim ownership after asserting in a bankruptcy proceeding that the property belonged to his wife.

In the Robinson case the doctrine of judicial estoppel is not involved at all. In the Hudson case a widow alleged that certain money belonged to her husband’s estate and prayed that she be allowed an interest therein. The court allowed her one-third, which she accepted. The administrator in good faith paid the balance on decedent’s debts. In the circumstances it was held that the widow was estopped to claim all the money as her own property. This is clearly a case of equitable estoppel. The Court said: “Appellant’s contention is that, under the agreed statement of facts, appellee’s testatrix was estopped from claiming the fund on deposit as her individual estate, and that the court erred in not dismissing the bill. We think they are correct in this contention. The doctrine of equitable estoppel has been defined by this Court as follows: . . .” Thus it will be seen that this case went off on the proposition of equitable estoppel and not judicial estoppel. None of the above cases is authority for appellants’ contention that judicial estoppel is applicable.

Appellants also cite 31 C.J.S., § 121, p. 390, to the effect that a party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary of the assertion sought to be made. All of the cases cited in C. J. S. sustaining this note are from the State of Tennessee, except one case from Wyoming, Hatten Realty Co. v. Baylies, 42 Wyo. 69, 350 P. 561, 72 A. L. R. 587. There the court criticizes the holding in the Tennessee cases and cites the general rule that a position taken by a party in one suit cannot be claimed as working an estoppel in another suit in favor of a party who was a stranger to the first, but that whatever statements or admissions were made in the first can be used as evidence only. Citing 18 Ann. Cas. 78; Ann. Cas. 1915C, 735; 28 L. R. A., N. S., 327; L. R. A. 1915A, 200; 5 A. L. R. 1505; and Wigmore on Evidence, 2d Ed., § 1064.

It is also said in 31 C. J. S., § 117, p. 373: ‘ ‘ The doctrine of estoppel to assume inconsistent positions in judicial proceedings has been said to be one of vague application, and in many cases has been held inoperative, or has not been applied, under the particular facts and circumstances involved.” Dozens of cases from numerous states are cited to support the text, and it is further stated, at page 381: “For this doctrine [doctrine of judicial estoppel] to be applied, it is commonly required that the parties be the same, and that the same questions be involved.”

In the case at bar appellants were not parties to Weedman’s petition to reduce the lots and blocks to acreage, nor parties in his purchase from the State. No theory of equitable estoppel is involved, and the doctrine of judicial estoppel is not applicable.

The next point for consideration is appellants’ contention that Weedman did not pay the taxes on a description that would constitute notice to the owners. The land was described in the deed from the State to Weed-man as follows: “All that part of the Southeast Quarter of the Northwest Quarter containing Twenty-three and 31/100 (23.31) acres, and All that part of the North Half of the Northeast Quarter of the Southwest Quarter, containing thirteen and 82/100 (13.82) acres, and containing, in the aggregate, Thirty-seven and 13/100 (37.13) acres, all in Section Three (3), in Township One (1) North, of the Base Line, in Bange Thirteen (13) West of the Fifth Principal Meridian in Arkansas, which were forfeited and sold to the State of Arkansas, at a County Tax Collector’s Sale for non-payment of the taxes due thereon for the year or years set forth below, as lots and blocks in Arkansas Heights Addition to the City of Little Bock, Arkansas, . . .” Then follow the lot and block numbers in Arkansas Heights Addition, and the dates of forfeiture.

Weedman filed his deed for record, and the property was extended on the records of the County and Weedman paid taxes under the following descriptions:

From 1939 through 1954 the property was described as:

“That pt. SENW cont. 23.31 A and pt. n 1/2 NESW cont. 13.82 A formerly platted as pt. Ark. Heights, Sec. 3-1N-13W”

and from 1955 to the present time it was described as:

“Pt. SENW Cont. 23.31 ac. & Pt. N 1/2 NESW cont. 13.82 ac. formerly platted as Pt. Ark. Hgts. 3-1N-13W”.

It is conceded that the deed from the State to Weedman, which he recorded, contains a valid description of the lands involved in this litigation. The question is whether the taxes were paid on a description which would constitute notice to those who owned the property at the time of the forfeiture that someone was paying taxes on the property. Of course, such former owners knew that they had paid no taxes on the property for more than 35 years. If appellants had been interested in the land in the least bit and had made any investigation to determine what was the tax situation, they would have seen at once that Mark Weedman was paying taxes on 37.13 acres located in the SE 1/4 of the NW 1/4 and Pt. of the N1/2 of the NE 1/4 of the SW 1/4, in Section 3, Township 1 N., Range 13 W., formerly platted as part of Arkansas Heights Addition; and the recorded deed from the State to Weedman would have given them the lot and block numbers of the lots described on the plat which the State conveyed to Weedman.

In Junction City Special School District No. 75 v. Whiddon, 220 Ark. 530, 249 S. W. 2d 990, the State had deeded tax forfeited land to McWilliams and Whiddon, such land being described in the deed as Frl. NW 1/4 of the NW 1/4, Sec. 28, T. 19 S., R. 16 W., containing 35 acres more or less. Previously five acres in the quarter section had been conveyed to the school district under a definite and proper description. The Court said: “While the description under which appellees claimed was faulty, it was evident that they were claiming all that remained of the NW 1/4 of the NW 1/4 of section 28, township 19, range 16 west, 35 acres, after appellant’s 5-acre tract had been carved out of that 40 acres under a definite correct metes and bounds description, which located the 5 acres in the NW corner of the NW 1/4 of section 28, township 19, range 16 west, etc. We think this was sufficient to identify this 35 acres claimed by appellees and entitled them to the benefits of § 37-103.”

In the Whiddon case, one would have to examine the recorded deed to the five acres to determine the exact 35 acres on which McWilliams and Whiddon were paying taxes. Such determination could not be made from the deed from the State to McWilliams and Whiddon, but in the case at bar one would have to look no further than Weedman’s recorded deed from the State to determine the exact location of the land on which he was paying taxes. In the Whiddon case this Court quotes from 132 A. L. R. 227, as follows: “ ‘If the taxes as to the particular land claimed adversely are in fact paid, the fact that such land has not been accurately described in the assessment or the tax receipts will not affect the efficacy of the payment as a compliance with the statute,’ ” and further quoted from 2 C. J. 209, as follows: “ ‘ One who, under color of title acquired in good faith, has paid the taxes actually assessed against land is entitled to the benefit of the statute, notwithstanding the land may have been misdescribed in the tax receipts, and provided he is able to remove the uncertainty by extrinsic evidence. ’ ’ ’ And the Court quoted from 2 C. J. S. 749: “ ‘. . . if claimant pays the taxes on the land actually claimed, the fact that the land was misdescribed in the assessment or in the tax receipts is immaterial.’ ”

In support of the contention that the description on which Weedman paid taxes for so many years is insufficient to base a claim of seven years adverse possession under color of title, appellants cite Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566, 88 S. W. 1011, 91 S. W. 20; Phillips v. Michel, 217 Ark. 865, 233 S. W. 2d 551; and Darr v. Lambert, 228 Ark. 16, 305 S. W. 2d 333; but in all of these cases the description under wbicb the taxes were paid furnishes no clue leading to a correct description that might be determined from the records.

Finding no error, the decree is affirmed.

George Rose Smith, J.,

concurring. Inasmuch as my joinder in the court’s opinion appears to be at variance with my practice of not participating in cases wherein my former law partners appear as counsel, it is appropriate for me to explain that the attorneys on both sides requested that I take part in this case. In such circumstances I of course have no hesitancy in participating in the court’s consideration of the case.


author: Jim Johnson, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    Rand v. State.
    4977
    341 S. W. 2d 9
    Opinion delivered December 12, 1960.

      Claude Duty S Jeff Duty, for appellant.

      Bruce Bennett, Attorney General, by Thorp Thomas, Asst. Attorney General, for appellee.
   Jim Johnson, Associate Justice.

Tbe appellant, Virginia Rand, was charged with the crime of second degree murder for the killing o f Harry V. (Buddy) Clark. Following trial in the Benton Circuit Court, the jury found appellant guilty and fixed her punishment at 8 years in the state penitentiary. From such verdict comes this appeal.

It appears from the record that on the evening of August 8, 1959, the deceased, Clark, and his wife entertained Mr. and Mrs. Sam Davis in their home. At about 1:15 a.m. on August 9, Mr. and Mrs. Davis left the Clark home and at the same time Clark left in his car to check the receipts at the Horseshoe Grill, a cafe which he owned located some 8 blocks from the Clark home in Rogers. Although the evidence is somewhat uncertain, it is clear that Clark finished his work at the cafe and at 1:30 a.m. the night police radio operator received a call from a woman identifying herself as appellant who said: “Send someone out here, I have had some trouble.” After the radio operator sent a patrolman to the Rand home, the appellant called again and said: “I have shot a man. I shot Buddy Clark. ” Upon arrival at the Rand home, the patrolman was told by appellant that she shot Clark in her bedroom. The patrolman immediately went to the hospital where he found Clark on the floor in the hall. Nurses at the hospital testified that Clark came in the front door and fell to the floor. The records show he was admitted at 1:45 a.m. He expired at 4:17 a.m. that same morning.

The patrolman testified he found tracks in the heavy dew going in and out of the Rand house and found a gun about 4 to 6 feet from these tracks. There were two bullet holes in the bedroom walls and 5 empty cartridges were found in the bedroom. The deceased was shot 4 times — 3 times in the chest and one time in the right arm. No trace of blood was found in or around the Rand house but there was blood on the steering wheel and door of Clark’s automobile.

The motion for a new trial contained 66 assignments of error which we have examined in detail. The evidence related above, standing uncontradicted and unexplained, was sufficient to justify a conviction. Ark. Stats. § 41-2246. The killing was admitted by defendant, and the use of a deadly weapon, capable of producing death was admitted. We have repeatedly held that malice, and intent to kill, may be implied from the use of weapons capable of producing death. Specific intent to take a life is not an essential element of the crime of murder in the second degree. See: Wooten v. State, 220 Ark. 750, 249 S. W. 2d 964, and cases cited therein.

A great deal of testimony was introduced by the State tending to show that there had existed for several years an extramarital relationship between appellant and deceased. The admissibility of this testimony is drawn in question. Without detailing the testimony of each particular witness, let it suffice to say that the evidence wherein witnesses testified about seeing appellant and Clark together, including testimony of one following the other in automobiles, and the testimony establishing that Mrs. Band called or contacted Clark, was entirely admissible.

On the other hand, the testimony of anonymous telephone calls was entirely inadmissible, as was certain evidence that strongly implied, though entirely speculative, that the two were having rendezvous. For instance, Eldon Maxey, a resident of Springdale, testified that he did not know Mrs. Band or Clark, but that he had seen a man driving an old car and a woman driving an Oldsmobile, park in the parking lot in Springdale. Maxey stated that he rather thought the old car was a Ford, though he was unacquainted with the model. From his testimony:

“Q. It just come down like Fords do?
A. Yes. . . .
Q. Do you know whether or not that’s the type, the model from 1941 to ’48?
A. Yeah, it was a later car than a ’48, a ’38.
Q. I said a ’48?
A. You said a ’48?
Q. Was it between a ’41 and a ’48, or do you know?
A. No, I don’t ... I don’t remember. . . .”
# * #
“Q. A black car? How many such occasions did you observe that?
A. Just one time I reported.”

The witness testified that he saw this couple get in the old car and drive west to the Legion Hut. “They was putting something up over the glasses so I reported to the police, to Herman McCullough.” Herman McCullough testified that he was acquainted with Mrs. Band, and following Maxey’s report, investigated, and saw Mrs. Rand in the Ford with some man. Neither of the witnesses identified Clark as being present at any time.

The court admitted into evidence two unsigned letters directed to Mrs. Clark, and three unsigned cards directed to acquaintances of Mrs. Clark. No proof was offered that these communications were sent by the defendant, though the contents of each clearly implied that they had been written by one having an affair with Mr. Clark. Mrs. Clark testified that after receiving these letters she almost had a nervous breakdown and went to Barnes Hospital to “find out what was wrong with me.” This evidence relating to the letters was entirely inadmissible but further discussion of the contents is not required because the court subsequently withdrew these letters and cards from the consideration of the jury. One of the letters was very critical of personal items in the house, including the bedroom, and advised Mrs. Clark that “. . . I left a lipstick for you under the west end of the settee cushion.” Mrs. Clark subsequently testified that she found a lipstick in that location, and this lipstick was offered in evidence at the trial. Yelda Hudspeth, a close friend of Mrs. Clark, testified that the latter showed her the lipstick, and that on an occasion when appellant had visited in the witness ’ home, she observed Mrs. Rand’s lipstick, and there was some similarity. From the evidence:

“Q. What was the similarity?
A. The lipstick was worn in the center.
Q. The one that she had?”
# # #
“Q. Now, you’re testifying to this jury that Mrs. Rand had a lipstick and it was worn somewhat like that; is that correct?
A. Yes.
Q. Did you ever see any other lipsticks worn like that?
A. I never, noticed another woman wearing it like that.
Q. You never noticed another woman wearing it like that? And that’s what you go on in your testimony here; what you base your testimony on here is that you saw lipstick similarly worn like that?
A. Yes.”
# * *
“Q. Do women have a particular manner in which they apply lipstick which leaves a particular impression on — wears it a certain way on the stick?
A. I think so.
Q. How many lipsticks have you examined, Mrs. Hudspeth?
A. At the time, since I was interested, I watched other people’s lipsticks to see if they were worn differently.
Q. I’m asking you at that time how many lipsticks had you examined?
A. I didn’t examine any.
Q. You hadn’t examined any at that time, had you?
A. I’d looked at them. I looked at them when I saw other women take them out. I was interested.”

This is a remarkable hit of evidence. With the thousands of women in this state who use lipsticks, it would certainly appear that more than one would have a lipstick “worn in the center.” Be that as it may, the witness was not testifying about an examination of a lipstick in the possession of Mrs. Rand; rather she was testifying about a lipstick which Mrs. Clark said she found in a location suggested to her by an anonymous letter (which, in itself, was inadmissible). All of this evidence relating to the lipstick was incompetent for the reasons herein mentioned.

In addition to this testimony, a large volume of evidence was introduced by the State tending to show animosity between appellant and the wife of deceased. Mrs. Clark testified that she kept her golf equipment in a locker at the Twin City Golf Club house, and that, about a year before, she had found two pairs of golf shoes, golf bag, and a golf club slit, apparently by a razor blade or knife. She stated that she left her key to the locker hanging on a board where anyone could have picked it up. Paul Watkins stated that he saw Mrs. Rand in the club house on the occasion when the equipment was damaged, though he could not say what time of day the incident occurred, nor could he say that no one was there except Mrs. Rand. This evidence was inadmissible since it did not relate to animosity or ill feeling toward the deceased, nor was the defendant connected with the act of damaging the property. In this respect, such evidence is distinguished from that deemed admissible under the ruling set forth in Avey v. State, 149 Ark. 642, 233 S. W. 765; and Stokes v. State, 71 Ark. 112, 71 S. W. 248, relied on by appellee.

Probably the most damaging inadmissible testimony which was permitted to go to the jury related to evidence concerning the kicking of Mrs. Clark by Mrs. Rand when the former was seven months pregnant. Mrs. Pete Elders testified that she attended a party in 1959 which was also attended by Mrs. Clark and the defendant. She stated that she was talking with the former, who was standing in front of her, and Mrs. Rand was seated on a high stool just to the right of the witness. From her testimony:

“Well, I was talking to Mrs. Clark when I felt something hit me on my right side, and I glanced down, because it was a blow and I seen this foot hit Mrs. Clark.
“Q. Do you know . . .?
Mr. Duty: Object to the testimony and ask it be stricken. Irrelevant, incompetent and immaterial.
“The Court: It will be overruled.
“Mr. Duty: Save our exceptions to the ruling.
“Mr. Coxey:
Q. Do you know whether that blow struck Mrs. Clark?
A. She had on a smock.
“Q. I say, do you know whether or not it struck her?
A. Well, I couldn’t feel for her, but the foot disappeared under the smock.
“Q. Under her smock?
A. Yes.”
Further:
“Now, you didn’t see Mrs. Band kick Mrs. Clark, did you?
A. I saw her foot.
“Q. I say, you didn’t see Mrs. Band actually in the act of kicking Mrs. Clark, did you?

A. Well, she had to be on the other end of the foot. ’ ’ The kicking was also testified to by Laney Clark. We can think of nothing that would tend to more inflame the mind of a juror than to hear evidence that a woman that far along in pregnancy was kicked in the stomach. Such an act by the defendant would be considered inexcusable, and we deem this testimony not only inadmissible, but also highly prejudicial; so much so that a reversal would be required though the other testimony herein cited was not included in the record. This evidence all tended to show that Mrs. Band was a woman of “bad character”, and Mrs. Band’s character had not been placed in issue. As stated in Wharton Criminal Evidence, Vol. 1, 11th Edition, p. 487, § 345:

“Evidence of other crimes, when offered in chief, violates both the rule of policy which forbids the state to initially attack the character of the accused and the rule of policy that bad character may not be proved by particular acts.”

There can be no donbt that all this evidence was prejudicial to appellant. By its very nature, it creates in the eyes of the jury a damaging image. As we said in Lentz v. State, 169 Ark. 31, 272 S. W. 847.

“It is the well settled doctrine of this Court that the prosecution cannot resort to the accused’s bad character as a circumstance from which to infer guilt, the reason being that ‘if such testimony be admitted the defendant might be overwhelmed by prejudice, instead of being tried upon evidence affirmatively showing his guilt of the specific offense with which he is charged.’ ”

Beversed.

McFaddin, J., concurs.

Ed. F. McFaddin, Associate Justice,

concurring. It is with great reluctance that I agree to a reversal of this conviction; but a careful study of the record convinces me that I cannot place the stamp of judicial approval on the admission of some of the testimony that was used by the State over the objections of the defense. In Byler v. State, 210 Ark. 790, 197 S. W. 2d 748, we reversed a case because of error; and Judge Frank Smith in making the reversal quoted: “ ’Twill be recorded for a precedent and many an error by the same example will rush into the state. It cannot be.” That is the way I feel in this case. While the testimony may not have influenced the jury in view of other evidence, still I cannot, by affirming this conviction, place the stamp of approval on such evidence so as to be used in another case.

I do not agree with the majority opinion. The testimony showing Mrs. Band’s conduct toward Mrs. Clark could have been admissible — if properly limited — to show Mrs. Band’s dislike of Mrs. Clark because Mrs. Band was jealous of Mr. Clark. This would support the State’s theory of motive. It was part of the State’s claim that Mrs. Rand killed Mr. Clark when he tried to end their relationship: “Hell hath no fnry like a woman scorned.” The burden was on the defense to ask that the Court limit the purpose of the testimony to the one purpose for which it was admissible. See Amos v. State, 209 Ark. 55, 189 S. W. 2d 611. No such request was made, so I see no error duly preserved in regard to such evidence.

But, even so, there was other evidence admitted into this trial which was clearly inadmissible, as I will now detail:

A.

On Transcript Page 406, when the witness Wanda Sly, a waitress in Buddy Clark’s cafe, was testifying, the following occurred:

“Q. Now, you answered the phone, you say, on occasions. Did you ever answer the phone after it had rung and no one would answer and you’d hear them hang up?
Mr. Duty: That’s objected to.
A. Yes.
Mr. Duty: That is objected to.
The Court: Overruled.
Mr. Duty: Note our exceptions. ’ ’

The witness had been testifying as to telephone calls that Mrs. Rand made to Mr. Clark and in the quoted portion above, the Court allowed the witness to testify as to the phone ringing and somebody hanging up without answering. The quoted testimony was not admissible in evidence against Mrs. Rand and should not have been allowed because it was not shown that she had made such anonymous calls.

B.

Mrs. Laney Clark, the widow of Buddy Clark, was called as a witness and she testified as to telephone calls that she received from Mrs. Rand; and then on Transcript Page 670 the following occurred while Mrs. Clark was being examined:

“Q. Now, I ask you at this time, since you’ve had time to reflect, if you on any of those occasions when the phone rang and you heard noises, that you think of one now that you couldn’t recall when I examined you previously?
A. Deep breathing.
Mr. Duty: Just a moment. Object to those. Those were the anonymous telephone calls without anyone identifying themselves. Object to the testimony of those telephone calls and ask the jury not to consider them.
The Court: It will be overruled.
Mr. Duty: Save our exceptions.
Mr. Coxsey: Q. All right, do you remember any more?
A. Deep breathing. Just sit there and hold the phone and just breathe real hard in the telephone.
Q. When did that occur?
A. Over a period of several months within the last year. ’ ’

There was nothing to show that this “deep breathing” was done by Mrs. Rand. So far as the record shows in this case these calls could have been the prank of a child; and yet such evidence was permitted to go to the jury against Mrs. Rand.

C.

Again, Mrs. Laney Clark, widow of Buddy Clark, was recalled to the witness stand and permitted to testify that she had a locker at the Twin City Golf Clubhouse in which she kept her golf equipment; and on Transcript Page 695 et seq. this occurred:

“Q. I will ask you to tell the jury whether or not you sustained some damage to any of that equipment? If so, when?
Mr. Duty: Just a minute, Mrs. Clark. Object to that testimony, if tbe Court please. I could dream a thousand years and never dream up any connection between an injury to Mrs. Clark’s golf bag and this case we’re trying before this jury. This girl is not being tried for anything but this indictment here. There has been no connection shown between Mrs. Clark and Mrs. Rand and injury to a golf bag some time ago on a golf course at Rogers.
Mr. Coxsey: That’s what we’re endeavoring to do.
Mr. Duty: It has no connection with this case we ’re trying; only for prejudice. I object to that line of testimony.
The Court: Overruled.
Mr. Duty: Save our exceptions.
The Court: Order in the court room.
Mr. Coxsey: Q. What damage did you sustain to what articles?
A. Two pair of golf shoes, and my golf bag, and a golf club were slit with what looked like to be a razor blade or knife, and the golf cart was broken.
Q. And that was when?
A. Last year, last fall, a year ago this fall.
Mr. Coxsey: That’s all.
Mr. Duty: If the Court please, I renew my objection to that testimony. ’ ’

There was not the slightest bit of evidence to connect Mrs. Rand with the damage that had been done to Mrs. Clark’s golf equipment; and on cross-examination Mrs. Clark admitted that the key to her locker was, “. . . available to any Tom, Dick, and Harry that wanted to walk in there. . . . Anybody could get that key and unlock it. . . .” Nevertheless, the jury was left to surmise that Mrs. Rand might have been the person who had damaged Mrs. Clark’s golf equipment. Such unconnected evidence should never have been admitted.

D.

Again, there was the evidence about the lipstick. The witness, Velma Hudspeth, was permitted to testify that Mrs. Laney Clark had shown her some lipstick and that the witness had seen some lipstick carried by Mrs. Band which “seemed similar.” There was never any identity of the lipstick. Such testimony was highly prejudicial.

I have listed these instances of incompetent evidence permitted over objection, so that when the case is tried again — as it will be, since it is reversed and remanded— the same mistakes will not reoccur. Of course, a whole group of unsigned and anonymous letters were originally admitted without any proof as to the handwriting to connect Mrs. Band with the letters; and then later the Court excluded those letters. I cannot say that prejudicial error resulted since each member of the jury stated that he would disregard all such letters. Of course, on a retrial the letters will not be admitted without proper foundation proof.

As aforesaid, it is with great reluctance that I vote to reverse the conviction; but I am convinced that material and prejudicial error occurred in the admission of evidence.

       The quotation is from Shakespeare’s “Merchant of Venice,” Act IV, Scene 1, Line 220. It is in answer to the equally famous quotation: “To do a great right, do a little wrong.”

       The full quotation from William Congreve’s play, “The Mourning Bride,” Act III, Scene 8, is: “Heaven hath no rage like love to hatred turned, nor hell a fury like a woman scorned.”


author: Carleton Harris, Chief Justice.

text:
    Mulligan v. Payne.
    5-2246
    341 S. W. 2d 53
    Opinion delivered December 19, 1960.

      Johnston & Rowell, for appellant.

      Brasil <& Brasil, for appellee.
   Carleton Harris, Chief Justice.

This appeal results from a decree of the Conway Chancery Court wherein the complaint of appellants was dismissed for want of equity, and title to certain lands was confirmed in appellee, Darby Payne. Mr. and Mrs. T. B. Bobbins of Center Bidge were the owners of approximately 195 1/2 acres of land in Conway County for a number of years prior to November 17, 1954. An additional 80 acres was also owned by Mrs. Bobbins, but this latter acreage is not involved in this appeal. On November 17, Mr. and Mrs. Bobbins conveyed, by warranty deed, the 195 1/2 acres to their daughter, Darby Payne, who was living with her parents at the time they moved to the property in 1930. Mrs. Payne married in October, 1931, and she and her husband continued to live on the premises. In 1938, Mrs. Payne married a second time, moved away for a short while, but subsequently returned, and lived with her parents until their deaths. The deed from the parents to the daughter recites:

“This land is being conveyed to the said Darby Payne, our daughter, for and in consideration of her living with us and taking care of us the rest of our lives since we both are above the age of 84 years of age and need someone to care for our physical needs. The said Darby Payne is not able to care for us financially but can care for us otherwise. It is further agreed and understood that we can live on the said land the remainder of our lives.”

In 1956, Mr. Bobbins, 92 years of age, died, and in 1957, Mrs. Bobbins died at 87 years of age. Appellants, Mrs. L. A. Mulligan, Mrs. W. E. (Della) Maxey, Sr., Hervey Bobbins, and Berneice Bichey, are also children of Mr. and Mrs. Bobbins. Suit was instituted by these children against their sister, Darby Payne, in which they alleged that in 1954, their father and mother desired to become welfare recipients, and to receive monthly checks from the Welfare Department as grants to aged people, but that their parents owned too much land and cattle to qualify as needy persons under the regulations of the State Welfare Department; that persons owning more than 80 acres of land at that time were ineligible for welfare payments. It is then alleged that Mr. and Mrs. Bobbins “conceived a sham deed to divest themselves of the ownership of all lands in excess of 80 acres * * *,” and that solely for the purpose of coming within the eligibility requirements for welfare payments, the parents conveyed the 195 1/2 acres to appellee; that it was necessary that title be divested without the Bobbinses receiving any substantial consideration (since that would likewise make them ineligible for benefits), and the clause in the deed, heretofore set out, was inserted for that purpose. The- complaint alleges that all the parties knew the purpose of the deed, and that it was understood by all that the property was to be divided equally among the children upon the death of the parents. It is further alleged that, still for the purpose of meeting welfare requirements, the Robbinses conveyed to their daughter, Berneice Richey, all of their cattle; but that Mrs. Richey did not actually own the cattle, and though checks for the milk were directed to her, the money was actually turned over to the parents. The complaint further asserted that Mrs. Payne “now contends that she is the sole and exclusive owner of the 1951/2 acres” but “in truth and fact, the said Darby Payne holds naked legal title to the said 195 1/2 acres as the trustee for all the plaintiffs herein”, and the prayer was that the court “impress an implied or constructive trust” upon the lands, and “find that the said Darby Payne holds said legal title as trustee for the use and benefit of all the children and heirs at law of the said T. B. Robbins and Ida Ann Robbins * * Prom the court’s decree dismissing the complaint and quieting title in appellee, appellants bring this appeal.

The issue in this case is purely one of fact; there is no dispute as to the legal principle involved. It is simply a matter of whether appellants met the quantum of proof necessary and essential to the establishment of their contention. Nine witnesses, including three of the parties, were called to the stand on behalf of appellants ; two others were grandchildren, one a husband of the granddaughter, and one a niece of the deceased Robbinses. The testimony of another, Arlie Bryant,, strongly favored appellee. Seven witnesses, including the appellee, and Juanita Bailey, a daughter of appellant Berneice Richey, testified in her behalf.

Appellants, through their testimony, endeavored to show that the deceased parents desired to obtain welfare payments, and executed the conveyance to appellee simply as a means of getting the title out of themselves. Mrs. Jewell Gordon, daughter of Mrs. Mulligan, her husband, Olen Gordon, and Ruth Morrow, the niece, all testified that Mr. Robbins told them that the land had been deeded to Darby in order that they (the parents) could qualify for welfare benefits, and that appellee was to divide the land among all the children following the death of Mr. and Mrs. Robbins. Mrs. Mulligan testified that Darby told her, following the death of her father, and in the presence of her mother, that she would “turn the deed back — set the deed aside, and give each child his part.” Hervey Robbins, a son, testified that “my Mother said she made most of the land over to Darby, and she knew Darby would divide the land up after their death”, though he said Darby had never made any such promise to him. Mrs. Maxey, a daughter, testified that appellee stated the deed was “just for a sham to get relief for them.”

Arlie Bryant, though called by appellants, testified that he took the Robbinses to Edwin Bird, a Notary Public, for the purpose of executing a deed to Darby, and that this service was rendered at the request of the grantors. He stated that Mr. and Mrs. Robbins told him that they wanted Darby to have the land, and that Mrs. Robbins made this statement in the presence of his wife and Berneice Richey. According to the witness, at the time Mr. and Mrs. Robbins signed the deed, the father stated, in response to a query from the Notary Public as to whether the old people knew what they were doing:

“Yes, sir, that’s why we come up here for is to deed it to her, that we feel that she ought to have it, and she is entitled to it by being there and never has been away from home, and stayed with us, and I don’t know what we would have done if it hadn’t been for her staying there.”

Bryant also assisted the Robbinses in getting on the welfare rolls. Counsel endeavored to show that Bryant had made prior statements inconsistent with his testimony. According to Joe Brinkley, a grandson, he had heard Bryant state that the welfare turned the Bobbinses down because they owned too much land, and he (Bryant) had gone back to the old people, and talked to them about deeding all the property to Darby except 80 acres. Juis Carr, a merchant of Center Bidge, testified that Bryant had talked with him about getting Mr. and Mrs. Bobbins on welfare, and that they owned too much land.

Several apparently disinterested witnesses testified on behalf of appellee. Audrey Atkinson and Mrs. Bryant both testified that Mr. and Mrs. Bobbins stated that they wanted Darby to have the land. Atkinson testified that Mrs. Bobbins had related to him in 1946 that she and her husband had been able to pay off an indebtedness to the Federal Land Bank with the help of Darby. Mrs. Audrey Atkinson testified that Mrs. Bobbins had told her that the place was going to be deeded to Darby, so the latter would have a home. Edwin Bird, who prepared the deed and acknowledged same, stated that he asked Bobbins if he knew what he was doing, and the latter stated that he did, and was deeding the property to Darby because she had been good to her parents, and stayed with and taken care of them. Ollie Moses testified that Mrs. Bobbins had stated to the witness that she had the “place fixed just like she wanted it. Said Darby had a home now and wouldn’t be rooted out.” In addition, Juanita Bailey, daughter of Mrs. Bichey, testified that her grandfather and grandmother had told her that they felt Darby should have the place. Appellee testified that her father had advised her, at the time a mortgage was given to the Federal Land Bank, that if she would work on the place and help her parents pay off the indebtedness, a deed or will would be executed, giving her the property. Some time later, she stated that her father said, “You know, I’m ninety-one years old, and nature teaches me that your Mother and I can’t be here much longer. We’ve got to do something about this property”; that they went to the house for dinner, and the mother agreed with the father that the property should be deeded to Darby. She testified that her mother or father never mentioned anything about appellee making a deed to the brother and sisters; she denied making any statements to anyone to the effect that the deed was executed only as a matter of getting the parents on welfare, and likewise denied that she had indicated to any of the heirs that the property would be divided among the children after the death of the parents.

We think it apparent that the proof on the part of appellants falls far short of meeting the burden required in this type of case. As stated in Nelson v. Wood, 199 Ark. 1019, 137 S. W. 2d 929:

“The general rule, as well as the established rule in this state, seems to be well settled that in order for one to establish by parole either a resulting trust or constructive trust, the evidence must be ‘full, clear and convincing’, ‘full, clear and conclusive’, ‘of so positive a character as to leave no doubt of the fact’, and ‘of such clearness and certainty of purpose as to leave no well founded doubt upon the subject.’ These requirements run through a long line of cases from this Court. ’ ’

Appellants insist that circumstances, such as the fact that the Robbinses began to draw welfare payments soon after executing the deed, establish the truth of their assertion. But, of course, there are also other circumstances in the case; for instance, the fact that appellee lived and worked with her parents for many years, while the other children were away, and only returned for occasional visits. For that matter, it could well be that the desire for welfare payments contributed to the Robbinses ’ decision to make the conveyance at that particular time, rather than by later deed or by will. At any rate, irrespective of other considerations or contributing factors, the testimony is rather potent that the father and mother desired that Darby have the property. Appellants complain that the Chancellor paid too much attention to the testimony of the Notary Public; there is nothing in the record which indicates that he paid particular attention to this evidence because Bird was a Notary Public, but it may well be that the testimony of the disinterested witnesses (of which Bird was one) carried considerable weight with the Court in reaching its decision. While, of course, parties are perfectly competent witnesses, and decisions may well be based upon the evidence of those interested in the litigation, still, the testimony of those without pecuniary interest, or apparent bias toward any party, would normally be noted and considered in the deliberations of a Chancellor.

Be that as it may, we are of the opinion, and hold, that appellants have not shown by clear and convincing evidence, that there was an intention on the part of the parents, in deeding the property to appellee, to create a trust for the benefit of all the children, i. e., no resulting trust was established; nor is it shown by the required quantum of proof that the circumstances surrounding the execution of the deed, gave rise to a constructive trust.

Decree affirmed.

       Mrs. Richey did not testify in the case.

       Black’s Law Dictionary, 4th Edition, defines Resulting trust as follows: “One that arises by implication of law, or by the operation and construction of equity, and which is established as consonant to the presumed intention of the parties as gathered from the nature of the transaction. It arises where the legal estate in property is disposed of, conveyed, or transferred, but the intent appears or is inferred from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go or be enjoyed with the legal title.” Constructive trust is defined as: “A trust raised by construction of law, or arising by operation of law, as distinguished from an express trust. Wherever the circumstances of a transaction are such that the person who takes the legal estate in property cannot also enjoy the beneficial interest without necessarily violating some established principle of equity, the court will immediately raise a constructive trust, and fasten it upon the conscience of the legal owner, so as to convert him into a trustee for the parties who in equity are entitled to the beneficial enjoyment.”


author: J. Seaborn Holt, Associate Justice. Carleton Harris, Chief Justice,

text:
    Southwestern Bell Telephone Co. v. Thornbrough, Commr.
    5-2214
    341 S. W. 2d 1
    Opinion delivered December 19, 1960.

      J. Gayle Windsor, Jr. and Edgar Mayfield, for appellant.

      Lowell D. Gibbons and Luke Arnett, for appellee.
   J. Seaborn Holt, Associate Justice.

This is an unemployment compensation case. The appellant, Southwestern Bell Telephone Company, employed Mrs. Ouida It. Mills during August of 1953 as a telephone operator in West Memphis exchange of the company. In 1956 Mrs. Mills requested a pregnancy leave which was made effective on July 29, 1956 and under standard company policy, its termination date was fixed at July 28, 1957, one year later. At the time Mrs. Mills applied for a pregnancy leave, she expressed her desire to return to work about two months after the anticipated date of birth of her child; however, she was advised in writing on her leave application that there probably would not be a place for her, due to dial conversion.

The evidence in the record disclosed that the terms and conditions of the type of pregnancy leave granted by the appellant are a matter of company policy, and not union contract. Under this policy, pregnancy leaves are always for a period of one year. There is no assurance of re-employment at the end of the leave. However, if the employee, after the birth of her child, is able and willing to work before the expiration of the one-year term of leave, and if a suitable vacancy exists, Southwestern Bell does, on some occasions, reinstate employees before the expiration of the full year’s period.

Mrs. Mills’ child was born on September 26, 1956. On or about October 31, 1956, Mrs. Mills contacted the chief operator at the West Memphis exchange about the possibility of resuming work, but was informed that no vacancy existed at that time. She contacted the chief operator again within two weeks and was told there would be no work for three or four more months.

On December 5, 1956, Mrs. Mills applied for unemployment benefits at the West Memphis office of the Employment Security Division, stating that she had been on a leave of absence from Southwestern Bell and that she had not been rehired. Upon being notified about the filing of the claim, the company challenged Mrs. Mills’ eligibility on the grounds that she was on a pregnancy leave of absence which was not to terminate until July 28, 1957, and taking the position that she was therefore covered by the provisions of Ark. Stats., § 81-1106 (e) (2) [hereinafter set out].

The local office of the Employment Security Division, at West Memphis, made a determination in favor of the claimant stating:

“While it may be company policy to grant a year’s leave of absence in such cases, it is believed that this is a maximum duration rather than a blanket rule for all cases. It does not seem that the claimant should be penalized by being without work, or unemployment benefits for a full year period, merely because the company set duration of her leave at one year. . . . the Arkansas law provides that a female, separated for pregnancy shall not be disqualified, if she re-applies for work at the end of her leave of absence. It is our interpretation that this is to mean that a female who is separated because of pregnancy, after securing a leave of absence, shall not be disqualified if she re-applies for work as soon as she is again physically able to work, and her leave has not already expired. In this ease, her leave has not expired, and we believe she meets eligibility requirements. ’ ’

The decision of the local employment office was appealed by the employer and hearings were held in West Memphis and in Little Rock by a Referee of the Appeals Tribunal. The Referee reached the same conclusion as the local employment offiee, holding that Mrs. Mills had separated from her employment under “non-disqualifying circumstances,” and concluding that her unemployment subsequent to December 5, 1956 was the result of a lack of work in the West Memphis exchange, and that such lack of work was created primarily by the conversion of the exchange to a dial system.

The decision of the Appeals Tribunal was then appealed by Southwestern Bell to the Arkansas Board of Review. No new evidence of any material consequence was taken by the Board although it was brought out that the claimant ultimately was reinstated by Southwestern Bell in her old job when a vacancy occurred in April of 1957. The Board of Review, after reviewing the record made before the Appeals Tribunal, affirmed the decision of the Appeals Referee and adopted it as its own, both as to findings of fact and conclusions of law. Southwestern Bell then filed for a Petition for Review by the Pulaski Circuit Court, as provided by law. After oral argument from counsel, and briefs, the Circuit Court affirmed the Board of Review and from that judgment comes this appeal. In issue are the unemployment benefits of the claimant from December 5, 1956, when she applied for them, till her reinstatement on April 21, 1957.

For reversal, Southwestern Bell, appellant, relies on the following points: (1) There was no leave of absence within the meaning of the statute and (2) if there were a leave of absence it had not terminated as of December 5, 1956, when Mrs. Mills was declared eligible for unemployment benefits.

As to the first point we have reached the conclusion that there was a leave of absence. Our Employment Security Act contains no definition of “leave of absence” so we are left to the language of the contract between the parties, prior conduct and dealing by the company with employees, and any other relevant facts at hand to determine if a leave of absence existed.

There are several factors which go to show that a leave of absence existed. One is the contract of employment which provides:

" Leave of Absence. Insofar as the requirements of the service will permit, leaves of absence for good cause, and of reasonable length, will be granted upon request. The intention of the employee with respect to return to work shall be established in writing between the employee and the company at the time the leave is granted, and a copy shall be furnished the employee at the time the leave is granted.”

A second document is exhibited in the record entitled “Southwestern Bell Telephone Company Leave of Absence.” This document states that Mrs. Mills was granted a leave of absence because of pregnancy and that the employee, Mrs. Mills, understands that due to dial conversion there probably will not be a place for her at the time this leave of absence expires. A further note on the document states that leaves of absence do not carry any guarantee of employment. However, the record reflects that employees on leave of absence for pregnancy were nearly always hired back and often before the termination of the company set policy of one year. An additional factor is that the testimony shows that valuable seniority benefits of the employee were not lost if she was granted a leave of absence rather than quitting because of pregnancy. Under the peculiar facts of this case we feel compelled to find that there was a leave of absence granted the employee. It is argued by the appellant that a leave of absence connotes a continuity of the employment status, Bowers v. American Bridge Company, 43 N. J. Super. 48, 127 A. 2d 580 and cases there cited, and since the alleged leave of absence agreement contained no guarantee of re-employment, it was not in fact a leave of absence. We agree that in ordinary cases a leave of absence connotes a continuity of the employment status. We think the facts and surrounding circumstances in the present case indicate that Southwestern Bell and Mrs. Mills planned to continue the employment status at the time of her separation despite a printed provision of the contract that there was no guarantee of re-employment. Otherwise we can conceive of no other reasonable explanation of the acts of the company in writing a provision on leave of absence in the contract of employment, in giving a formal document entitled “Leave of Absence” when it was requested, in preserving the seniority rights of the employee, and in frequently reinstating the employees before the termination of the leave of absence, and in the present case, of reinstating Mrs. Mills three months before her leave of absence was to expire.

As to the second point, we agree with the appellant that the leave of absence had not terminated as of December 5, 1956 when Mrs. Mills was declared eligible for unemployment benefits. Upon this point some legislative history is helpful. The availability of women for work after pregnancy has been particularly troublesome in the administration of Employment Security Acts. As a result, states began to devise and enact special statutory tests applicable to women who leave their jobs due to pregnancy. At least 33 states have such provisions in their unemployment compensation laws. U. S. Dept. of Labor, Comparison of State Unemployment Insurance Laws, January 1, 1958, page 103: There are two general types of tests. (1) The woman is disqualified for an arbitrary number of weeks before and after the birth; or (2) she is presumed to be unavailable and hence ineligible for unemployment benefits after the birth until she has secured new work and has earned either a stipulated amount of wages, or has worked for a specified minimum period of days or weeks. Arkansas has this latter type. See Ark. Stats., § 81-1106 (e)(2) requiring thirty days of new work. In 1955, the Arkansas General Assembly amended § 81-1106 (e)(2) by providing that the thirty days new work test should not apply to an individual who had obtained a leave of absence from her employer for pregnancy and applies for reinstatement with her employer at the termination of such leave but is not reinstated by such employer. Or stated another way, a person who has a leave of absence for pregnancy does not have to secure thirty days of new work if she is not rehired, in order to receive benefits.

With this in mind, we need only look at the terms of the statute to come to a decision on the second point. Ark. Stats., § 81-1106 (e)(2) provides:

“If a female claimant is separated from her customary occupation because of pregnancy: Such disqualification shall continue until she has not less than 30 days of paid work subsequent to date of confinement. Provided this provision shall not apply to an individual who has obtained a leave of absence from her. employer for the above reason and applies for reinstatement with her employer at the termination of such leave but is not reinstated by such employer.”

The statute says termination of such leave. In the present case, Mrs. Mills secured a leave of absence on July 29, 1956, at which time she was approximately seven months pregnant. The termination date of her leave was set at July 28, 1957, one year later. Mrs. Mills’ child was born on September 26, 1956. About October 31, 1956, she applied for reinstatement which was denied and on December 5, 1956, she was declared eligible for unemployment compensation. At the time she was declared eligible, her leave of absence still had over seven months to run. Since her leave of absence had not terminated, it was error for the Commissioner to declare her eligible for benefits. The Commissioner argues that the year’s leave of absence is an unreasonable length of time. Under the present circumstances, we do not think so. The present policy of the company of one year leave of absence for pregnancy was set up long before enactment of the Employment Security Act as a practical solution to a recurring employee problem and not as a guise to avoid unemployment payments. We cannot say that a year’s time is unreasonable when all the attendant circumstances of giving birth to a child and caring for it the first few months after birth are taken into consideration.

Accordingly, the judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

Harris, C. J., and Robinson, J., dissent.

Carleton Harris, Chief Justice,

dissenting. The Employment Security Act covers Chapter 11 of the 1960 Replacement, Arkansas Statutes, Annotated, Volume 7-A. The Declaration of State public policy is found in the opening section, 81-1101, and reads as follows:

“Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this State. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the Legislature to prevent its spread and to lighten its burden which may fall with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this great hazard of our economic life. This can be accomplished by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment from which benefits may be paid for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. The Legislature, therefore, declares that in its considered judgment, the public good, and the general welfare of the citizens of this State require the enactment of this measure, under the police power of the State, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.”

Appellee, Ouida R. Mills, was granted leave of absence, due to pregnancy, on July 29,1956. On October 31, 1956, about five weeks after the birth of her child, Mrs. Mills endeavored to resume work with the company, but was refused employment because no vacancy existed at that time. I emphasize the statement, for this was the reason for employment not being granted, rather than the fact that a year’s leave had not terminated. This is very clear from the record. Mr. J. W. Harrington, secretary, Employees Benefit Committee, Southwestern Bell Telephone Company, representing the employer, testified:

“The contract does not specify the length of time, and the following is from a part of the company’s established practice: ‘When it has been decided that an employee shall cease work because of pregnancy, she determines whether to resign or request a leave of absence. If she requests a pregnancy leave of absence, it is granted for a period of one year.’ It is always one year.
That doesn’t mean, however, that the employee will not be returned before one year. That depends upon the employee’s physical condition, her willingness to return and the availability of work in the office where she was formerly employed.”

This last statement pretty well states my interpretation of the leave granted, for in my view, the year’s leave of absence only relates to the period of time in which the employee may preserve her job rights. Here, there is no contention that Mrs. Mills was not physically able to return to work; certainly she was willing to return to work, and employment was only refused because there were no positions open. This is plainly shown by Mr. Harrington’s testimony.

“There has been a change in the employment conditions at West Memphis, which came about during her absence. The West Memphis office was converted to dial operation; there are not as many operators needed at present as were needed prior to the conversion. . . .

To the best of my knowledge, we have no quarrel at all with Mrs. Mills. As far as I know, also, she would be re-employed if a vacancy were present.”

In fact, on a previous occasion in 1954, after being granted a year’s leave due to pregnancy, Mrs. Mills returned to work for the telephone company after four months.

Mrs. Mills was involuntarily unemployed, and under my view, in conformity with the intent of the Employment Security Act, she was entitled to unemployment compensation when she became able and willing to return to work. The company’s answer to this contention is that Mrs. Mills agreed to take the year’s leave; however, I fail to see that appellee really had any choice, i.e., she either had to take the leave, or she had to resign. Adopting the latter course would simply mean that she would lose seniority rights, and other benefits as an employee of the telephone company. If the company had a right to demand that she take a year’s leave, or else resign, then I see no reason why it would not have equal right to demand that she take a two years’ leave, or any other period of time which it might consider desirable. For that matter, § 81-1118 provides that ‘ ‘ any agreement by an individual to waive, release, or commute his rights to benefits, or any other rights under this Act, shall be void.” If then, leave granted by reason of physical disability terminates when that person is able and willing to return to work, any agreement to the contrary would be void. In effect, the Majority have held that appellee, in accepting the leave of absence, has waived her rights to any benefits for a whole year, notwithstanding that she was able and willing to return to work before that time.

Because, on the whole, I consider the holding of the Majority to be contrary to the intent of the Legislature in passing the Employment Security Act, I respectfully dissent.

Mr. Justice Robinson joins in this dissent.


author: Ed. F. McFaddin, Associate Justice.

text:
    Salem School District No. 30 v. Unit Structures, Inc.
    5-2248
    341 S. W. 2d 50
    Opinion delivered December 19, 1960.

      Oscar E. Ellis, for appellant.

      McKay, Simpson & Grumpier, for appellee.
   Ed. F. McFaddin, Associate Justice.

Tbe appellee sought to recover judgment against the appellant for $224.97 and interest; the defense was accord and satisfaction. The cause was submitted to the Court without a jury (§ 27-1743, Ark. Stats.) on an agreed statement of facts. The judgment was for the appellee; and this appeal resulted.

On August 8, 1957, appellee sold and shipped to appellant certain materials. The invoice (# 8-578-4) was for $7,499.00 and the invoice recited that there could be 2% discount for cash after freight was deducted. The invoice also stated: “Applicable sale, use, local, state and Federal taxes not included and to be paid by buyer.” On August 19, 1957, the appellant sent its check to the appellee for $7,183.18. There was deducted:

The freight of $158.20
The 2% discount and exchange 157.62 315.82
TOTAL $7,499.00

Thus, appellant did not pay the sales tax. On August 20th the appellee sent a bill to the appellant: “To bill you 3% State Sales Tax on invoice No. 8-578-4 dated Aug. 8, 1957, not included in Sight Draft. $224.97.” Appellant refused to pay the $224.97, and claimed that the payment of the original invoice discharged the sales tax by accord and satisfaction.

We conclude that the judgment must be affirmed. The appellant, having pleaded accord and satisfaction, had the burden of sustaining such plea. Shinn v. Kitchens, 208 Ark. 321, 186 S. W. 2d 168. All the appellant established was the payment of $7,499.00; and we have held that part payment, standing alone, does not, as a matter of law, establish accord and satisfaction of the entire account. Sharp v. Sonenblick, 213 Ark. 649, 212 S. W. 2d 18. There still remained an issue for the trier of the facts; and we have repeatedly held that when a case is tried by the Circuit Court without a jury, the Court’s findings have the force and effect of a jury verdict. Woodruff v. McDonald, 33 Ark. 97; and Norvell v. James, 217 Ark. 932, 234 S. W. 2d 378, and eases there cited.

Affirmed.