author: J. Fred Jones Justice. Conley Byrd, Justice,

text:
    CARTER CONSTRUCTION Company, Inc. and UNITED STATES FIDELITY and GUARANTY Company v. Robbie A. SIMS
    5-6045
    491 S.W. 2d 50
    Opinion delivered January 29, 1973
    [Rehearing denied March 26, 1973.]

      Hall, Tucker ér Lovell, for appellants.

      Huey $r Vittitow and Hardin ir Rickard, for appellee.
   J. Fred Jones Justice.

This is an appeal by Carter Construction Company, Inc., hereinafter called Carter, and its bonding company, United States Fidelity and Guaranty Company, hereinafter called USF&G, from a judgment entered on a jury verdict in favor of Robbie A. Sims for $66,000 in agreed advances and $15,730.20 for rental of equipment, growing out of breach of contract in connection with three construction projects.

The pertinent facts appear as follows: Carter is a corporation wholly owned by Ike Carter, Jr. Robbie Sims is an individual with considerable experience in heavy construction. Carter and Sims became acquainted with each other in connection with their construction work and in bidding on public construction jobs. In the spring of 1969 Sims had run out of work so he proposed to Carter that they join forces and bid for the contract to build the Pendleton Ferry Bridge across the Arkansas River. Negotiations between the two resulted in Carter obtaining the contract for the construction of the Pendleton Ferry Bridge, and resulted in a contract between Carter and Sims under which Sims was employed as superintendent on the Pendleton Ferry Bridge job as well as two other construction job contracts awarded to Carter. The pertinent provisions of the Carter-Sims Contract appear as follows:

“Carter is desirous of employing Sims as a superintendant in connection with the three jobs set forth above and Sims has agreed to work for Carter as a superintendent and Carter agrees to pay Sims for his services as hereinafter set forth.
Carter agrees to pay Sims 49% of the net profit on Item No. 6, A, B, C, D, E, F, G, H; Item 7 and Item 10, as set forth in the Unit Price Schedule, Contract DACW 03-69-0044, Franklin County Job. Carter also agrees to pay Sims 49% of the net profit on the Crawford County job, if he be awarded same, for Items No. 3, 4, 5, 6, 7, 7, 10, 11, 12,16, 17, 18 & 19, as set forth in the Unit Price Schedule on said contract, and, Carter agrees to pay Sims 49% of the net profit on the Pendleton Job after $65,000.00 of the profits from said job has been paid to Carter Construction Company, Inc. for bidding and bonding said project.
Carter agrees to advance Sims the sum of Three Thousand Dollars ($3,000.00) per month, beginning June 1, 1969, until the three jobs are completed and the advances will be deducted from the percentage of the profits due Sims.
The three jobs, for the purpose of arriving at profits and losses, will be considered as a single job and any losses that may be suffered on any individual job will be subtracted from the profits on the remaining jobs.
The $65,000.00 due Carter Construction Company, Inc. for bidding and bonding of the Pendleton Job will be paid by deducting 5% from any and all amounts received under the contract until the sum of $65,000.00 has been received by Carter Construction Company, Inc.
That the percentages due Sims over and above the $3,000.00 monthly draw will be paid to him monthly when the surplus in the banking account to be set up for this project exceeds the sum of $50,000.00.
Monthly statements of income and expenditures will be furnished Sims no later than the 10th of each month.
All equipment in connection with these jobs will be rented from the owner or owners at a price to be agreed upon by Carter and Sims and the rental price on each piece of equipment will be in writing and signed by both parties, showing the effective rental date and both parties will also agree and endorse their approval thereon showing the termination of said rental period. All equipment rentals will be paid monthly.”

Sims owned considerable bridge construction machinery and equipment, so he moved his own equipment onto the jobs and started supervising the construction under his contract with Carter. Carter paid Sims $3,000 each month for a period of three months. Carter also paid Sims $1,700 for expenses and $150 per week in salary. Carter had also made installment payments on some of Sims’ equipment in the amount of $11,585.84, when on October 10, 1969, Carter terminated Sims’ employment.

On December 30, 1969, Sims filed suit against Carter and USF&G alleging that he had been wrongfully discharged by Carter and alleging damages for breach of contract. Sims alleged that the net profits on the three jobs involved would have been $347,986.94 if he had been permitted to complete his contract, and that after deducting $65,000 due Carter under the contract and after deducting $12,000 he had received in advances, his share of the net profits under the terms of the contract, would have amounted to $132,783.60. He prayed judgment against Carter for loss in profit in the amount of $132,-783.60. Sims also alleged that he had rented his own equipment for use on the jobs and prayed judgment against Carter and USF&G for $58,327 for such rentals. Sims also alleged $5,000 damage as a result of having to move his equipment from the jobs after he was wrongfully discharged. By amendment to his complaint, in compliance with a motion to make more definite, Sims prayed judgment against Carter in the amount of $132,-503.47 and against Carter and USF&G in the amount of $58,328.06. A jury trial resulted in a verdict for Sims with damages fixed as follows:

“Equipment rental $15,730.20
Loss of advance under the contract 66,000.00
Loss of profits 00”

Judgment was entered on the verdict against Carter and USF&G jointly and severally for $15,730.20 and against Carter for $66,000.

On appeal to this court Carter and USF&G rely on the following points for reversal:

“The court erred in giving plaintiff’s requested instructions Nos. 12, 14 and 15, and in submitting a verdict form to the jury which permitted the jury to find that Sims was entitled to both profits and monthly draw.
The court erred in giving plaintiff’s requested instruction No. 13.
The verdict is excessive.”

The instructions complained of under points one and two appear as follows:

“No. 12 If you decide for Sims on the question of Breach of Contract, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following three elements of damage sustained:
First: Equipment rental and materials furnished.
Second: Amount of draw undo: the terms of the Contract.
Third: Loss of profits.
Whether any of these three elements of damage has been proved by the evidence is for you to determine.
No. 13 Regardless of which party breached the contract dated May 2, 1969, you are instructed that if you find Sims furnished materials and equipment which were reasonable and necessary for the job, you should fix the amount which would reasonably compensate Sims for the fair rental value of said equipment and the fair market value of the material at the time; taking into consideration any amount paid by Carter on behalf of Sims as equipment payments.
No. 14 If you find from a preponderance of the evidence that Sims is entitled to recover from Carter under the Contract the measure of the damages to Sims under the ‘monthly draw’ provision of the Contract should be computed as follows:
A. $3,000 per month from June 1, 1969, for each successive month until the completion of the jobs.
B. Less any amount paid by Carter to Sims as ‘draw’ under the contract.
No. 15 If you find from a preponderance of the evidence that Sims is entitled to recover from Carter under the contract, you are instructed that where one party to a contract is prevented from performing by the fault of the other party, he is entitled to recover profits which the evidence makes it reasonably certain he would have made had the other party carried out his contract.
In this connection, you are instructed that if you find that Sims is entitled to be awarded damages for loss of profit, you will take into consideration all those items chargeable to Sims under the terms of the contract entered into by the parties on May 2, 1969.”

At the close of the case the court instructed the jury as follows:

“Gentlemen, you will now retire to deliberate. You will return one of two forms of verdict:
‘We the jury find for the plaintiff and fix his damages as follows: Equipment rental’ and there is a blank for you to insert a figure if you believe he is entitled to recover for rental of equipment; ‘Loss of Advance under the Contract and Loss of Profits’ and there you will insert a figure if you believe there was a loss. It is not necessary or required that you return a figure for each line item. You figure each individually and make your determination.”

The jury necessarily found that Carter breached the employment contract in the discharge of Sims and that finding is not questioned on this appeal. Both parties testified that they abandoned or waived the provision of their written contract relative to the rental of equipment so we hold, without further comment, that the trial court did not err in giving instructions Nos. 12 and 13 as those instructions relate to equipment rental and materials furnished. There was substantial evidence to support the jury verdict on this item. It would appear from the wording of instructions 12, 14 and 15, as they relate to both monthly draw and loss in profit, that these instructions do permit the jury to erroneously award double damages and recovery to Sims in the form of monthly draws in addition to 49% of the net profits under the contract. This error was rendered harmless, however, by the jury’s finding that Sims sustained no damages because of loss in profits. There is a conflict in the evidence as to whether a profit was derived or a loss sustained upon completion of the three construction projects. Carter said there was a loss and that the loss would have been greater if Sims had been permitted to continue on the job. Sims said there was a profit and that the profit would have been greater had he not been discharged.

It appears from the overall testimony of Sims and Carter that their initial preliminary negotiations contemplated the possibility of entering a joint venture in connection with the Pendleton Ferry Bridge job. Sims apparently had the heavy construction equipment, the experience and know-how necessary for the successful completion of such large bridge construction job, and Carter had the financial backing and reputation necessary for insuring and bonding such undertaking. Be that as it may, however, Carter and Sims actually did enter into a master and servant employment contract providing that Carter would advance to Sims $3,000 per month until the jobs were completed, said advancements to be deducted from the percentage of the profits due Sims under the terms of the contract. The employment contract was silent as to the payment or refund of advances in the event no profits were realized upon completion of the construction.

In the 1962 Louisiana case of Landry v. Huber, 138 So. 2d 449, 95 ALR 2d 499, the facts were almost on all fours with those in the case at bar. In that case Huber owned and operated a claims investigation service and in connection with opening a branch office in Beaumont, Texas, he entered into a written contract with Landry under the terms of which Landry was to manage the Beaumont office and his compensation was to be based on one-half of the net profits of the Beaumont office. The contract also provided that Landry was to be paid a drawing account of $450 per month which was to be deducted from the share of the net profits he was to receive as compensation. Huber terminated the contract on December 23, 1959. Landry had been paid his drawing account as stipulated in the contract up to November 15, 1959, but Huber refused to pay him any compensation between November 15 and December 23, contending that the drawing account was only an advance on Landry’s share of the net profits and since there was no net profits he was not liable on the drawing account. In affirming a judgment for Landry, the Louisiana Court of Appeals, 3rd cir., said:

“It is well settled that an excess of advances to an employee over the actual commissions or profits earned, from which the advances are to be deducted, cannot be recovered by the employer (Southern Molasses Co. v. Boutcher, 172 La 691, 135 So 27; Bardwell v. Szatmary, La App 2 Cir. 99 So 2d 420; A Gagliano v. Clark, La App Orl. 63 So 2d 252; Karno’s v. Schneider, La App Orl. 39 So 2d 851; Lawton v. Scott, La App 2d Cir. 29 So 2d 614; American Furniture Co. v. Snell, La App 2d Cir. 164 So 478); in the absence of an express or implied agreement of the employee to repay such excess (Rex-Metallic Casket Co. v. Gregory, La App 2 Cir. 115 So 2d 639, certiorari denied; McCardle v. Nagim, La App Orl. 61 So 2d 267). See also Annotation, ‘Personal liability of servant or agent for advances in excess of commissions earned,’ 57 ALR 33, supplemental 165 ALR 1367.”

The Louisiana court recognized that the decisions it cited concerned the converse of the situation in Landry, but the court in Landry then said:

“Unless the parties had agreed otherwise, the courts thus treat a drawing account as being in the nature of a guaranteed minimum compensation for the services of an employee, rather than as being a loan against the commissions or profits to be earned. The trial court held, correctly in our opinion, that the same principle is applicable to the present case, where an employee sues to recover the unpaid drawing account which the defendant employer had agreed to pay him during his employment.
Other than the cited cases concerning the converse of the present situation, there is no Louisiana case directly in point. However, a majority of American jurisdictions passing upon the question have reached the same conclusion as we do: In the absence of contrary agreement, a contract to pay an employee a specified sum periodically, which is to be charged against future commissions or profits, entitled him to recover this drawing account during entire term of the contract, regardless of the commissions or profits earned.”

In Agnew v. Cameron, 55 Cal. Rptr. 733, a salesman’s contract with a neon sign company was involved and in that case the California Court of Appeal, Fourth District, said:

“The majority rule in the United States is when the contract of employment provides for advances to the employee, which are to be deducted from commissions earned, as the same may accrue, the employer cannot recover excess advances from the employee in the absence of an express or implied agreement or promise to repay any excess of advances made over commissions earned. [Citing numerous cases from numerous states].
The rationale for the existence of the majority rule is that the employee’s undertaking is in the nature of a joint enterprise with the employer, the main object of which is the furtherance of the employer’s business, and it is not to be assumed that the employee, in furnishing his time and ability, likewise assumes all the risk.”

In 56 C.J.S. Master and Servant, § 95, is found the following:

“Under a contract providing for an employee’s share of the net profits and a drawing account of a fixed sum payable periodically, the drawing account is payable absolutely.”

See also Joseph Toker, Inc. v. Cohen, 169 A. 2d 838.

Returning now to the case at bar, the record is not clear as to when the three jobs were completed in this case. The record indicates, however, that the largest job, the Pendleton Bridge job, was accepted by the state on May 28, 1971, which was three days short of two years from the date the monthly payments of $3,000 were to begin under the contract. We are unable to determine how the jury arrived at its verdict of $66,000 due Sims as loss of advance under the contract. The maximum time and amount for which Carter could have been liable under the $3,000 monthly advancement provisions of the contract and under the evidence adduced at the trial, amounts to not over 24 months at $3,000 per month, or a total of $72,000. Of this amount $12,000 was paid to Sims, leaving a balance of only $60,000 as the maximum amount Sims could recover under the terms of this provision of his contract and under the evidence in this case. The evidence is clear that Sims was also paid a weekly salary of $150 for a period of 24 weeks from May 10, through October 18, in the total gross amount of $3,600.

We are of the opinion, therefore, that there is no substantial evidence that Sims sustained damages in the loss of unpaid monthly advancements or draws for more than 20 months in the total amount of $60,000. We are also of the opinion that Carter is entitled to credit for the salary paid Sims in the amount of $3,600. The judgment is affirmed on the condition that a remittitur in the amount of $9,600 is entered within 17 calendar days; otherwise the judgment will be reversed and this cause remanded for a new trial on the issues.

Affirmed upon remittitur.

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

Conley Byrd, Justice,

dissenting. For the reasons hereinafter stated, I disagree with so much of the majority opinion as treats the $3000 per month advance as salary.

In the first place the parties conducted themselves toward one or the other more in the relationship of prime contractor and subcontractor than they did as master and servant. The record shows that appellee had some two to three hundred thousand dollars worth of equipment with offices in Farmersville, Louisiana and Warren, Arkansas. At the time here involved, appellee had other jobs of his own going at the same time that he was also supervising. The proof shows that appellee not only used his equipment with the same discretion he would have used as an independent contractor but that he also used and hired as employees the people who had worked for him over the years. In fact, M. G. McLemore testified that he had worked for appellee since 1958, and that appellee hired him to work on the Crawford County job.

Furthermore, the contract, while describing appellee as “a superintendant in connection with the three jobs,” recognizes that appellee can use his equipment on the jobs and by our ruling today we have recognized that appellee was entitled to the fair rental value thereof.

Thus we have an agreement in which appellee used his equipment but at the same time continued to work on his own job. Consequently, I cannot apply the laws applicable to the master and servant relationship where the employee is expected to give his full time to the master’s services.

The cases recognize a distinction between an independent contractor such as a manufacturer’s representative and an employee who devotes his full time to his master’s services. See Argonaut Builders v. Dare, 145 Colo. 424, 359 P. 2d 366 (1961) and Strauss v. Cohen Bros. Co., 169 Ill. App. 337 (1912).

In Argonaut Builders, supra, Dare had been engaged in soliciting building and remodeling contracts whereby he received 60% of the profit. The trial court ruled at the close of Argonaut’s case that it could not recover advances made in excess of profits realized by Dare. In reversing the case the Colorado Supreme Court ruled that under the evidence presented it appeared that Dare was an independent contractor rather than an employee and that if such should be found to be true, Argonaut would be entitled to recover. In so ruling, however, it said:

“The general rule, on which the trial court based its decision and on which the defendant relies here, is that where a contract of employment provides for advances to the employee to be charged to and deducted from the commission agreed upon as the same may accrue, the employer cannot, in the absence of an express or implied agreement or a promise to repay any excess of advances or commission earned, recover such excess advances from the employee. Numerous cases supporting this doctrine are collected in 165 A.L.R. 1367 in a note on Sutton v. Avery, 132 Conn. 397, 44 A. (2d) 701, and also in 57 A.L.R. 33. It would seem from the cases referred to and an analysis of the rule reported in 56 C.J.S. 561, Master and Servant, Sec. 120c, that the basis for the doctrine is that the payments are made in regular amounts in consideration of continued activity by the employee and are thus in the nature of salary or wages. Because of this regularity of payment ana the requirement that the employee give his full time to the employment, the presumption arises that the advances are recoverable only from commissions and thus the excess cannot be collected by the employer.”

In Strauss v. Cohen Bros. Co., supra, Strauss as . a traveling salesman handled not only the Cohen Bros.’ line of merchandise but also a different line of merchandise of one Monarch. His contract with Cohen Bros, provided:

“In consideration of the good and faithful performance of said duties by the party of the second part (Strauss) he at all times fully complying with the instructions of party of the first part, said Cohen Bros. Co. agrees to advance to the second party from time to time as may be necessary, reasonable traveling expenses and to further advance to second party on the first of each month, commencing with the second month of this contract, and continuing while same shall be in force between the parties, the sum of $100.00 — One Hundred Dollars with the understanding that the sum of such advances for any year shall not exceed (--) per cent of the sales of said second party; and if at the close of the year’s shipments, the amount shown by computing-per cent on the sales of said second party, shall show an excess over and above the sum of moneys advanced by first party for traveling expenses, together with the drawing account, then any such excess sum shall be paid to second party by first party.”

The court construed this contract as purely a commission contract and in so doing construed the word “advance” in its common acceptance as: “To advance is to supply beforehand; to loan before the work is done or the goods are made.” In so doing the court reversed a judgment in favor of Strauss. Illinois, however, recognizes and applies the rule of law upon which Strauss relied for affirmance — see Eagle v. Hoffman, 258 Ill. App. 234 — where the services rendered are exclusively those for the master.

Furthermore, I do not agree that the reasoning in the case of Landry v. Huber, (La. App.) 138 S. 2d 449, 95 A.L.R. 2d 499 (1962), should be adopted by this court. The reasoning there is somewhat syllogistic. The court there reasons that if advances to an employee in excess of commissions cannot be recovered, then such advances must be wages or salary and it therefore follows that such advances must be made in the absence of commissions during the entire term of the contract. When we remember that, in dealing with such cases, we are interpreting a contract between the parties, it at once becomes obvious that the court in the Landry case overlooked the real reason for denying a recovery for excess advances over commissions — i.e., that there is an implied agreement that the advances are to be paid only from commissions and that no personal liability is to be incurred. See Argonaut Builders v. Dare, supra, and Hibbs-Kiefer Hat Co. v. Schneiderhan, 236 Ky. 470, 33 S.W. 2d 304 (1930).

In denying a recovery for excess advances to be charged against commissions in Hibbs-Kiefer Hat Co. v. Schneiderhan, supra, the Kentucky court said:

“No contract can be implied under which personal indebtedness will be created, for the express contract alleged in this petition is that those sums were to be deducted from the commission which the employee might earn. There is no reference to any personal liability. The sole source of reimbursement was the commissions. It was the belief of the parties that these would be sufficient, not only to reimburse the companies, but to compensate the salesman in addition. To that extent the enterprise was in the nature of a joint speculative adventure from which both parties expected to profit. Not unlike in principle is the case of Fox v. Buckingham, Trustee, 228 Ky 176, 14 S.W. 2d 421, in which it was held that a party undertaking to satisfy certain obligations out of the proceeds of oil wells to be developed by him was not personally liable where the particular fund was not realized, unless the failure of realization was due to his negligence or inactivity. So it is in this case that the contract limits the right of recovery of sums paid for traveling expenses and as a drawing account to a particular fund to be realized in a particular way. The agreement permitting a deduction of the advancements cannot be enforced, since that fund or a sufficiency was not realized, and no recovery can be held of the employee personally, since there is nothing to show that such failure was attributable to any action or inaction on his part.”

Consequently it does not follow as a matter of logic that an agreement to make advances is an agreement to pay a salary. In any view the agreement to advance here is nothing more than an agreement to loan against anticipated profits. As an independent contractor, appellee has no right to recover more than the profits he expected to make and would be liable, had appellant prayed for the repayment, for the advances made. As an employee he is not entitled to be loaned more than his part of the profits. It follows that I consider instruction No. 14 erroneous.

For the reasons herein stated, I would reverse and remand for new trial.

Harris, C. J., and Brown, J., join in this dissent.

       Neither the trial court nor this court found any trouble in treating the contract as amended to conform to the conduct of the parties on the equipment rental.

       Record page 152, appellant’s abstract page 50.

       McLemore and appellee married sisters.

       Appellee testified that he fixed the rental from a book used by the rental people, just like anybody else would rent it.

       Because of the terms of the contract involved in Landry I agree with the result there reached.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Lorie ROBINSON and Shirley MORRIS v. STATE of Arkansas
    5794
    489 S.W. 2d 503
    Opinion delivered January 29, 1973

      R. W. Laster, for appellants.

      Ray Thornton, Atty. Gen., by: Lonnie A. Powers, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

The appellants, Lorie Robinson and Shirley Morris, were convicted in the Little Rock Municipal Court on the charge of indecent exposure and each was fined $50 and costs. On appeal to the circuit court the case was submitted to the trial judge sitting as a jury on the record made in the municipal court. The appellants were found guilty in circuit court and were fined $50 and costs.

The staute under which the appellants were charged, Ark. Stat. Ann. § 41-2701 (Repl. 1964) states as follows:

“Every person who shall appear in public places naked or partly so, with the intent of making a public exhibition of his nudity, or who shall make any obscene exhibition of his person shall be deemed guilty of a misdemeanor.”

Ark. Stat. Ann. § 41-2702 (Repl. 1964) pertains to publicly exhibiting obscene or indecent pictures or figures and § 41-2703 provides penalty for the violation of the two previous sections as a fine of not less than $50. Sections 41-2704 through 41-2708 have to do with obscene literature.

Little Rock Police Officer Richard Duran and Lt. Pearson testified that they were admitted to the “Gaslite Club” in the Lafayette Hotel in Little Rock, upon the payment of $1.50 admission fee and there observed the female appellants appear on stage naked from the waist up. They testified that the appellants wore some type of gown when they first appeared on the stage; that they removed the gowns and were clad only in some “briefs” covering the lower part of their bodies. The officers testified that a male person then appeared on the stage and painted the appellants’ breasts with a florescent paint, and that after their breasts were painted the appellants danced for approximately three to five minutes and then left the stage. The officers testified that after observing this performance twice at about one hour intervals they obtained arrest warrants and served the warrants on the appellants.

On appeal to this court the appellants first contend that the circuit court should have dismissed the charges of indecent exposure because there was no prior adversary hearing held to determine the issue of obscenity. Under this contention the appellants admit that most, if not all, of the cases concerning obscenity deal with books, photographs or films and relate to illegal searches and seizures. The appellants argue, however, that the First Amendment to the United States Constitution applies to all forms of expression, including the art of dancing, and that the arrest of the appellants constituted a prior restraint on the exercise of freedom of expression forbidden by the First and Fourteenth Amendments to the United States Constitution.

In the Florida case of Hoffman v. Carson, 250 So. 2d 891, a go-go dancer was arrested for dancing naked under a statute similar to our own and we agree with the Florida Court when it said: “Appellant loses sight of the distinction between speech and conduct. The statute is not directed at First Amendment rights of free expression, nor does it concern itself with obscenity. . . .” The Florida Court then continues:

“The United States Supreme Court has frequently recognized the distinction between conduct which may be regulated by the State and expression which may not be restricted except upon proof of obscenity.” Citing Roth v. United States, 354 U. S. 476.

In the similar Alabama case of Jones v. City of Birmingham, 224 So. 2d 922, the Alabama Court of Appeals said:

“The instant exposure of mammary prowess and endowment —while undoubtedly not within the de minimis rule — to be given First (and Fourteenth) Amendment protection must have been more than mere conduct.”

We conclude, therefore, from the record before us, that the acts involved in the case at bar had nothing to do with the “exercise of freedom of expression,” but consisted entirely of the conduct of appearing in a public place naked or partly so with the intent of making a public exhibition of nudity. In our opinion the painting of the female participants’ breasts by a male participant added nothing to “freedom of expression,” and that the acts here involved are subject to police regulation against indecent exposure.

The appellants next contend that Ark. Stat. Ann. § 41-2701 (Repl. 1964) is unconstitutional as applied to the appellants because it provides for no judicially superintended adversary proceedings with due notice and trial by jury to determine what is and what is not obscene. The appellants cite federal decisions in support of this contention and they might have also cited our own decision in Bullard v. State, 252 Ark. 806, 481 S.W. 2d 363. However, in addition to the distinctions already pointed out, we are not dealing here with the exhibition of obscene pictures or the circulation of obscene literature as in the cases cited by the appellants and as was the situation in Bullard, but we are dealing here with the charged offense of appearing in a public place naked or partly so, with the intent of making a public exhibition of nudity.

The appellants next contend that Ark. Stat. Ann. § 41-2701 (Repl. 1964) is unconstitutional as written and applied to the appellants in that it discriminates against the appellants because of their sex. The appellants then argue that the male species of homo sapiens have from time immemorial gone about in public bare from the waist up, and that “not within the memory of man has any male been prosecuted originally for this offense.” The same argument might well apply to the female species in many geographical areas of less organized or civilized societies where the intent to make a public exhibition of nudity is not involved. It is a matter of common knowledge that the male species of homo sapiens are not physically equipped for carrying out the specific exhibition with which the appellants were charged in this case. We know of no case, and none has been cited to us, where a male person has been tried and acquitted because of his sex under § 41-2701 or a similar statute, but certainly the statute as written is couched in the masculine gender (his nudity), and there is nothing to indicate that under proper facts and circumstances, a male person would be immune to prosecution for indecent exposure in violation of § 41-2701.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    SOUTHWESTERN INSURANCE COMPANY v. Thomas CAMP
    6139
    489 S.W. 2d 498
    Opinion delivered January 29, 1973

      Cockrell, Laser, McGehee, Sharp ir Boswell, for appellant.

      Frances T. Donovan, for appellee.
   Conley Byrd, Justice.

In a trial before the court sitting as a jury a judgment was entered against appellant, Southwestern Insurance Company, and in favor of Thomas Camp for $1,000.00 plus 12% penalty and $150.00 attorney’s fee. By this appeal the insurance company contends that the trial court did not give them credit for the $50.00 deductible and that when they are properly given credit, Camp did not recover the amount sued for and consequently is not entitled to the penalty and attorney’s fee.

The record shows that Camp filed suit admitting that the policy contained a $50.00 deductible provision. In his complaint he also alleged that the actual cash value of his automobile at the time of the collision was $1,000. He then prayed for judgment for $1,000 plus 12% penalty and attorney’s fee. At the trial he furnished proof which would have sustained a judgment in excess of $1,050.00, but after both sides had rested the following occurred:

“THE COURT:
I find that the before value of this automobile to be the amount of $1,000.00. I find the after value to be $200.00.
MR. NEIGHBORS:
Your Honor, I believe we are entitled to take off the $50.00 deductible. I believe I asked the plaintiff on cross examination if it was a $50.00 deductible.
MR. DONOVAN:
Judge, we have no claim over the salvage, the insurance company has the car. We are asking for a $1,000.00 judgment.
THE COURT:
You have to give credit for what the balance is.
MR. DONOVAN:
We are entitled to the actual cash value of the automobile as of the date of the accident.
THE COURT:
Then you can have the car.
MR. DONOVAN:
They took custody after the accident. It is in their pool. We have no control over it.
MR. NEIGHBORS:
Your Honor, the company will be happy to let Mr. Camp have the salvage.
THE COURT:
I will give a judgment for $1,000.00 and let the company keep the car.
MR. NEIGHBORS:
$950.00?
THE COURT:
That’s what it will be.”

Thereafter the court entered a judgment which, after reciting the witness heard, provided:

“It is therefore ordered,, and adjudged by the Court that the plaintiff Thomas Camp, recover from the defendant the sum of $1000.00, together with attorney fees of $150.00, 12% penalty, and interest at 6% from this date until paid, together with all costs herein expended, for which execution may issue.”

Ark. Stat. Ann. § 27-1741.3 (Repl. 1962), provides that when a jury returns a verdict containing both specific findings of fact and a verdict general in terms that the specific findings of fact shall control over the general verdict. Our cases in construing this statute and other statutes like it have consistently applied the same statutory rule to cases tried before the court sitting as a jury — that is special findings of fact control over the general verdicts. See Little Rock Granite Co. v. Ross, 184 Ark. 667, 43 S.W. 2d 533 (1931). As we read the record here the trial court made a special finding that the before value of the automobile was $1,000.00. Since the complainant admits that there was a $50.00 deductible clause we can only conclude that the trial court erred in entering judgment for more than $950.00.

Camp concedes that under our well-known case law, the attorney’s fee and penalty pursuant to Ark. Stat. Ann. § 66-3238 (Repl. 1966) are not allowable where he does not recover the exact amount for which he sued, but he argues that this is a ridiculous burden to put on the insured. We cannot agree. The construction placed upon the penalty and attorney’s fee provision was done at a time when there was grave doubt about the constitutionally of the statute. There have been many sessions of the legislature since that construction was given and the statute has not been amended to require a different interpretation. Consequently, we decline to re-examine that construction.

Reversed and remanded with direction to enter judgment for $950.00.


author: Frank Holt, Justice.

text:
    Guy Lavern KUEHN v. STATE of Arkansas
    5722
    489 S.W. 2d 505
    Opinion delivered January 29, 1973

      Eddie N. Christian, Charles R. Garner, and Burl C. Rotenberry, for appellant.

      Ray Thornton, Atty. Gen., by: Henry Ginger, Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury convicted appellant of first degree murder and assessed his punishment at death by electrocution. On appeal the only contention is that the judgment on this verdict constitutes cruel and unusual punishment as forbidden by the United States Constitution and, consequently, his sentence must be reduced to life imprisonment. This contention is valid. Furman v. Georgia, 408 U.S. 238 (1972), Graham v. State, 253 Ark. 462, 486 S.W. 2d 675 (1972), and O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618.

The cause is remanded to the trial court for sentencing to life imprisonment which is the next highest available remedy. Ark. Stat. Ann. § 43-2308 (Repl. 1964).

Affirmed as modified and remanded.


text:
    ARKANSAS STATE HIGHWAY COMMISSION v. N. F. BOWMAN, et ux
    5-6141
    490 S.W. 2d 112
    Opinion delivered January 29, 1973
    [Rehearing denied March 5, 1973.]

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

      Douglas Bradley and Jon R. Coleman, for appellees.
   Frank Holt, Justice.

Appellant brought this action to condemn .58 of an acre from appellees’ 13.5 acre tract of land. The jury fixed the appellees’ (landowners) compensation at $7,500. For reversal the highway commission first contends that the court erred in failing to strike the value testimony of the landowner Bowman. He valued his land at $15,000 per acre. He estimated his damages at $8,000 for the land taken and $7,000 to the remaining land. It is insisted that his testimony is merely an opinion of what the land was worth to him and there was no satisfactory explanation or reasonable basis for his conclusion as to damages for the land actually taken. Appellant does not question the severance damages on the theory that if the landowner’s evidence as to the before value of his lands is insubstantial then the verdict cannot be sustained.

On direct examination Bowman testified that he had lived in the area for 50 to 31 years. He had been observant of property values, sales and land purchases in the area for several years. He had sold certain lots from other property in the area. One of these lots, 100’ x 119’, was sold for $3,000. Directly across the highway a 100’ frontage lot sold for $3,000. However, Bowman did not consider this property as being comparable to his since it was “swamp ground.” Bowman’s severance damage opinion ($7,000) resulted from the appellant’s removing 16” from a service station building being used for office purposes; also, as a result of the taking the highway will be closer to his residence located on the 13.5 acres and a part of the remaining lands will become unsuitable for residential or subdivision development which is its highest and best use. However, the following excerpt from the landowner’s testimony on cross-examination reflects its defectiveness:

"Q. ***I believe you testified the land was worth $15,000 an acre in your opinion there on the highway frontage?
A. It would be with this. $8,000 and then $7,000 for the damage.
Q. Maybe I misunderstood you. I thought you told me you considered your land — not talking about damage or anything else — I thought you testified in your opinion you thought that land was worth $15,000 an acre. Did you say that?
A. I said I thought it probably would be worth that much.
Q. What did you base that on?
A. I didn’t base it on anything.
Q. You don’t know of any sale of an acre of ground along there at $15,000 an acre, do you?
A. No.
Q. What you are saying, that is what it is worth to you?
A. Right.”

A landowner’s testimony as to what the property is worth to him is not substantial evidence. Ark. State Highway Comm’n v. Perryman, 247 Ark. 120, 444 S.W. 2d 564 (1969). In the case at bar we are of the view that the cross-examination of Bowman revealed that his testimony is insubstantial since he candidly admitted that he “didn’t base it [estimate] on anything,” which prefaced his statement that his $15,000 per acre estimate represented what his property was worth to him. Appellees cite as controlling in this situation our recent case, Arkansas State Highway Comm’n v. Metz, 252 Ark. 1195, 482 S.W. 2d 802. There on cross-examination, Metz testified as to what the property was worth to him; however, since this was an isolated or “loaded question,” we found no error because Metz, as did Bowman in the case at bar on direct examination, demonstrated an adequate knowledge of market values. In the instant case, however, we consider the questions and the resulting answers as being more than the result of a “loaded question.” The question was not confined to what the property was worth to him. The landowner actually admitted that he “didn’t base” his valuation on “anything.” Therefore, as stated, we cannot approve his explanation as constituting a fair and reasonable basis.

Appellant next asserts for reversal that the court erred in failing to strike the value testimony of the landowner’s expert witness, Van Natta. In view of a retrial we deem it necessary to discuss this assertion. This witness testified that $7,000 per acre was the before value of the property. It appears that he estimated the value of .58 acres taken at approximately $4,000 and allocated $3,000 for damages to die remaining lands for a total of $7,-000. It is appellant’s contention that Van Natta was unable to give a reasonable bases for his value opinion. Van Natta, on cross examination, testified that he established the before value by the use of comparable sales. He cited a $3,000 highway frontage sale acress the street from the Bowman property. He was unable to give the size or dimensions of this property. Van Natta admitted that the property had “a very decided difference” or “variable” between it and the subject property. He recited a $10,000 transaction involving a commercial tract (less than an acre) across the street from the Bowman property. However, he classified Bowman’s property as being residential as to its highest and best use. At no time did he ever demonstrate a sufficient knowledge of any sales of lands for residential purposes in the area (Lake City) or in the nearby city of Jonesboro. He acknowledged there is a residential development on the south of Bowman’s property. He stated he had made a study of the market in this area in “another appraisal,” however, he didn’t "have those figures with me.” Although Van Natta testified no acreage now exists within the city limits of Lake City for residential development except appellees’ lands, we are of the view that he did not demonstrate on cross-examination a reasonable and satisfactory basis for his value opinion. Of course, it was not necessary that comparable sales be limited to the city. He did not know the size of the property across the street which sold for $3,000, The $10,000 commercial sale of less than an acre admittedly was decidedly different in comparison to the subject property. In these circumstances we must hold Van Natta’s testimony deficient.

“In deciding the question of law whether the verdict is supported by substantial evidence we must evaluate the opinions of the witnesses for appellees in relation to the bases upon which they are founded.” Ark. State Highway Comm’n v. Perryman, supra. In the case at bar, as there, we cannot say that the value opinions of appellees constitute substantial evidence which supports the jury verdict.

Reversed and remanded.

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


author: Carleton Harris, Chief Justice.

text:
    ARKANSAS POWER & LIGHT Company v. Mrs. Dovie S. CHILDERS
    5-6135
    489 S.W. 2d 776
    Opinion delivered February 5, 1973

      House, Holmes ir Jewell, by: Robert L. Robinson Jr., for appellant.

      John S. Gibson and Charles S. Gibson, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Arkansas Power & Light Company, in January, 1971, condemned 8.09 acres of land belonging to Dovie Childers, appellee herein, 7.11 acres to be used for a substation site, and the remaining .98 acre for a road easement to the substation. The tract of land belonging to appellee consists of approximately 35 acres, the tract being divided into an east and west tract, the east tract consisting of 18.17 acres. It is from this tract that the appellant condemned the acreage sought and it is only the value of this tract that is involved. The substation site sits adjacent to a previously existing 2.37 acre substation site that was purchased from the Childers in the 1920’s. On trial, the jury awarded Mrs. Childers $19,000, and from the judgment so entered, appellant brings this appeal. For reversal, three points are relied upon which we proceed to discuss in the order listed.

1.

“When a subdivision is not in being at the time property is condemned, or for that matter at the time of trial, admission of an unrecorded hand-drawn plat of non-existent lots and streets on the property for the purpose of showing how it could be developed and how it is damaged results in prejudicial error because the evidence is misleading, speculative, and cannot be properly explained to the jury without bringing in a host of collateral issues.”

At the time of the condemnation, the property was vacant pasture land. Phillip T. Sherland of McGehee, engaged in the insurance and real estate business, testified on behalf of appellee, and in endeavoring to demonstrate alleged severance damages to the remainder of the tract, used an unrecorded hand-drawn plat of the remainder which depicted non-existent lots and streets. In the opinion of Mr. Sherland, the highest and best use of the remaining acreage was for residential development, and the purpose of the testimony was to demonstrate the diminished value of the remaining land by the location of the access road, i.e., appellee was showing how the land could be divided and be used if the road did not exist. Several cases are cited by appellant in support of its argument, but there is a distinction in those cases and the matter at hand, for in all cases relied upon by appellant involving lot and block plats of subdivisions not in being at the time of trial, there was testimony by the witnesses, in the introduction of the plats, as to the value of each lot depicted upon the plats offered. The present situation is comparable to that existing in Arkansas State Highway Commission v. Kaufman, 244 Ark. 1136, 428 S.W. 2d 251, where a diagram reflecting how the 123 acre site could have been used, except for the condemnation, was offered into evidence. The commission objected for the same reasons as those mentioned herein by appellant, but this court held the testimony admissible, stating:

“The exclusionary principle underlying those decisions has no application here. Kaufman’s drawing was not intended as a basis for the assignment of values to the various enclosures that were sketched. Those enclosures were nearly all mere spaces defined by lines that represented fences. The sole purpose of the diagram was to enable the jury to see how the rectangular 123-acre parcel could be used as a site for the ranch headquarters. That the witness admitted that the site might not have been completed for as much as ten years is immaterial, because Kaufman was merely explaining how the site could be used.”

Sherland made no attempt to testify as to the value of any lot shown upon the plat and he also stated that the plat should not be considered as the ultimate end for which the property could be used. While some figures giving the value of the lots appeared in handwriting at the top of the exhibit, there is no showing that these figures were on the plat when it was offered into evidence, or by whom the notations were made. Certainly, Sherland did not testify as to the value of the purported lots reflected in the exhibit, nor does appellant make any argument relating to these figures. The court did not err in permitting the introduction of this exhibit.

II.

“The lower court, over appellant’s specific objection, erred in permitting appellee’s value witness to state the sales prices of other lands in the vicinity without explaining the similarity and comparability, if any, of the lands sold, to the property condemned.”

The testimony referred to was not given on direct examination but was given on re-direct examination after counsel for appellant had cross-examined Sherland in an effort to show that this expert witness was not familiar with land sales in the vicinity. On re-direct examination, Sherland was questioned about sales with which he was familiar and he mentioned several. Appellant objected to this testimony because Sherland was unable to show that the lands mentioned were comparable to that in litigation, and appellant contends that this evidence should not have been admitted. Let it be remembered, however, that appellant opened the subject and the sales mentioned by the witness were made as a response to appellant’s suggestion that he was not familiar with the sale of any lands in the area. Sherland was not originally asked how many comparable pieces of property he was familiar with within five miles that had been sold, but only asked how many pieces of property. In Arkansas State Highway Commission v. Pittman, 251 Ark. 709, 473 S.W. 2d 924, this court pointed out that when one party introduces evidence which may be incompetent, he cannot complain of the introduction of the same type of. evidence which is directed to the same isue by the other party. Accordingly, if the evidence had been offered solely for the purpose of showing that Sherland was familiar with land sales in the vicinity, there would be no error; however, the record reveals the following:

“OBJECTION BY ATTORNEY FOR APPELLANT:
I object again because he is showing the comparability of the land, and the use of it so far as the utility of it. None of this has been done. In order to give the value of the land, he should show this and compare the two as well as possible.”
“ATTORNEY FOR APPELLEE:
Your Honor, we would like to show the price of the land transactions here in Monticello, and let the jury use their own opinions to compare this land to the lands that were bought.”

The evidence was not admissible for this purpose for it was not within the province of the members of the jury to use their own opinions in comparing the land to the lands mentioned; rather, the witness was due to make the comparison and to testify as to his findings. Accordingly, the admission of the testimony constituted error.

III.

“The lower court erred in giving instruction No. 6 requested by the appellee.”

In Instruction No. 6, the court told the jury that if property is well adapted for the use to which it is being taken and the necessity for such use was so imminent as to add something to its value in the minds of property buyers, that element may be considered in estimating market value. This instruction was objected to as follows:

“The Plaintiff objects, both specifically and generally, to Court’s Instruction number Six, which is Defendant’s requested Instruction Number Three, for reason that there is no evidence showing that this is property peculiar, or well adapted, to the use for which it was condemned, by the Arkansas Power and Light Company, and further, that such usage does not enter into, and should not enter into, consideration to determine what is the fair market value. This is for reason that it considers, and puts A P and L, in the position of having to pay the higher and greater value if it is in a peculiar or satisfactory location for it, and if it is a satisfactory location to it, then, they would have to pay more than fair market value for it.”

We think the court erred in giving this instruction. It does appear that the property condemned was entirely suitable for the use for which it was taken, but we do not think the evidence reflects that the land was exceptionally or peculiarly adaptable for a substation. First, let us determine the law relative to this particular point. In 27 Am Jur 2d, Eminent Domain, § 429, we find:

“It is fundamental that the value of the land taken to the party taking it is not the test of what should be paid, nor should the fact that the land is desired or needed for a particular public use be considered when it is taken for that use. Thus, it is generally recognized that the value of the land for the particular use for which it is sought to condemn it, or its value to the taker because of its peculiar adaptability for that use, or because of his needs and necessities, or because its strategic location makes it desirable or indispensable for his purposes, or the fact that it would cost him more to appropriate other lands for his use, or the benefits accruing to him from the land, are not tests of the compensation to which the owner is entitled in condemnation proceedings. It is the value to the owner, or loss caused to him, and not the value or gain to the condemnor, that is to be taken into consideration.”

Accordingly, the test is not whether this particular location was of particular benefit to the Arkansas Power 8c Light Company, but the test is rather the loss caused to the property owner by virtue of the condemnation. In other words, to support the instruction given, the proof should reflect that the land itself was particularly or peculiarly adaptable for the use of any company or individual needing land for a substation. The special adaptability should be such as to add to the value of the property in the open market. This special adaptability referred to is illustrated in the case of Gurdon & Fort Smith Railroad Co. v. Vaught, 97 Ark. 234, 133 S.W. 1019. There, plaintiffs owned land through which ran a narrow pass in the mountains, known as Caddo Gap. On either side of the gap for a great distance to the east and west were high mountain ranges so that the pass constituted substantially the only practicable route for a railroad line through that section of the country. It was urged by the railroad that the court permitted the introduction of incompetent testimony relative to the value of the land, but we disagreed. A number of civil engineers, who had acted for a number of years for various railroads and having special knowledge as to the peculiar advantages of certain sites for the location of railroads and the value thereof, testified as expert witnesses upon the question of the adaptability of the land for railroad purposes. The engineers viewed the land in controversy, carefully examined the gap and all the lands in the vicinity through which a railroad could be located along the proposed railway route. They testified to facts tending to show demand for railroad construction in that section of the country; that the gap or pass at issue was especially valuable for railroad purposes and was practically the only feasible route through the mountainous country. They then rendered their opinion relative to the fair and reasonable cash market value of the land taken. Little Rock Junction Railray v. Woodruff, 49 Ark. 381, 5 S.W. 792 involved land for a railroad bridge across the Arkansas River at Little Rock. The land embraced what was known as the “Point of Rocks”. The court described the location as “a sort of promontory that makes out into the river, and seems to have been somewhat inviting as a bridge site”. The question in the litigation was whether it was competent for the appellees to present evidence to show the value and advantages which the Point of Rocks possessed as a bridge site. The court held such evidence admissible, stating:

“We think the probable demand that there may be for suburban land for depot and bridge sites, is a recognized factor in the market value of property in some cases. All that lends value to anything that we possess is the fact that other people want it, and are willing to pay the money to get it. If it were announced that a point of rocks on the Mississippi River, at Hopefield, opposite Memphis, was offered for sale upon the market, it is easy to predict that there would be no lack of bidders, and that the price offered would be very much above what the property would be ‘worth as a piece of land.’. . .
“Of course it does not follow that because a particular spot of ground constitutes a good bridge site, that it therefore has great market value. There may be no reasonable probability that any one will ever want to build a bridge at that point. This probability is an essential condition of value in such cases.”

In the present case, most of the evidence relied upon relates to the value of the land to the power company rather than to the owner. For instance, Mrs. Childers testified that there had been a substation site in existence since 1929 and the proposed substation site is adjacent thereto. A Missouri Pacific Railroad right-of-way is the north boundary of the substation site and Mrs. Childers testified that, at a time when the old substation had burned, the company brought transformers in by railway and unloaded equipment at this substation site.

Mr. Sherland also said that the highest and best use of the land taken was for a substation, but this opinion seemed to be predicated upon the fact that the power company had condemned it for that purpose. Again, we point out that the value of the property to the power company is not the proper test.

The proof should have been directed to the peculiarities of the land prior to a substation being placed on any portion, which gave it a market value, because of its location, topography, and other factors that might make it particularly valuable as a substation site to anyone who had need of land for that purpose; it thus would possess that increased value to the owner, provided there was a market for such a tract of land. We have concluded, under the evidence, the instruction was not justified.

In accordance with what has been said, the judgment is reversed, and the cause remanded to the Drew County Circuit Court for further proceedings. It is so ordered.

       From the record:
      MR. TRIMBLE:
      “Q. How many pieces of property, within the last past five years, within two miles, or even within five miles of this property, do you actually know the one or both of the buyers or sellers and the sale price of such property?
      "A. How many? May I look at my notes?
      “Q. Yes, Sir. Tell us how many pieces of property, and do you know the buyer or seller of the property within five miles of this litigation or property involved in this litigation?”

       Mrs. Childers said, “There were three transformers there. Just a small place, and all of it was not enclosed by a fence.”

       From the record:
      “Q. Now, let me ask you this. What did you say the highest and best use of this land was prior to the taking back in January of 1971?
      "A. The highest and best, what would I say the highest and best use was?
      “Q. What was your appraisal? I mean what you stated was the highest and best use of ttie land east of the transmission line before 1971?
      "A. The highest and best use was what it is being used for right now.
      “Q. Alright, thank you. I believe that is for a pasture, isn’t it?
      “A. I beg your pardon?
      “A. That is for a pasture, isn’t it?
      "A. It has got a substation on it right now.
      “Q. What is the highest and best use for that piece of property on January 29, 1971?
      OBJECTION BY ATTORNEY FOR APPELLEE:
      “Now, he has already answered the question.
      ATTORNEY FOR APPELLANT:
      "This is before the substation was in there.
      ATTORNEY FOR APPELLEE:
      “Now, your Honor, that is what he is trying to say.

        ATTORNEY FOR APPELLANT:
      "The fact that A. P. & L. took the property does not mean that that is the highest and best use for the property.
      ATTORNEY FOR APPELLEE:
      “They must have thought so, because they took it.
      ATTORNEY FOR APPELLANT:
      “What was the highest and best use before it was taken?
      ATTORNEY FOR APPELLEE:
      "Your Honor, we feel since it was taken by A. P. and L. as a substation, that is the highest and best use for it.
      BY THE COURT:
      "He said a substation.”


author: George Rose Smith, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Lavonne West NEWTON et al
    5-6127
    489 S.W. 2d 804
    Opinion Delivered February 5, 1973

      Thomas B. Keys, Kenneth R. Brock and Regina W. Johns, for appellant.
    /. D. Patterson, Roger V. Logan, Jr. and W. Wade Berryhill, for appellees.
   George Rose Smith, Justice.

This is an appeal from a $15,000 verdict and judgment in a condemnation suit. The only argument for reversal is that the trial court should have sustained the condemnor’s motion to strike the testimony of the landowners’ expert witness with respect to the value of the land after the taking, because, in the language of the objection, he gave “no fair and reasonable basis” for his figures.

In our opinion the witness unquestionably gave a fair and reasonable basis for his opinion. He had been engaged in the real estate business in the county for 26 years, was familiar with the property, and explained the basis for his conclusions. In this court the appellant challenges the witness’s opinion because (a) he thought the entire tract, of which .66 of an acre was taken, comprised 8.08 acres instead of 9.5 acres, and (b) he had observed the change in grade resulting from the new construction, but he was not able to say exactly what change was called for by the condemnor’s plans for the improvement.

The actual objection, that the witness had given no fair and reasonable basis for his valuation, did not bring to the trial court’s attention either of the deficiencies now being urged. Had the omissions been pinpointed, the witness could have been examined further in the light of the true facts, which were readily available. It is not our practice to reverse the action of the trial court when the error could have been easily remedied upon a proper objection. Smith v. Union Nat. Bank of Little Rock, 241 Ark. 821, 410 S.W. 2d 599 (1967).


author: Lyle Brown, Justice.

text:
    Roger Dean MOSBY v. STATE of Arkansas
    5788
    489 S.W. 2d 799
    Opinion delivered February 5, 1973

      Walker, Kaplan ér Mays, by: A. T. Goodloe, for appellant.

      Ray Thornton, Atty. Gen., by: Gene O’Daniel, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

This felony-murder case has been before us on two previous occasions, both times resulting in reversals. Mosby and Williamson v. State, 246 Ark. 963, 440 S.W. 2d 230 (1969); Mosby v. State, 249 Ark. 17, 457 S.W. 2d 836 (1970). The case was tried another time but resulted in a mistrial. Mosby now appeals from a conviction at the fourth trial and advances eight points for reversal.

Robert E. Lovelace, a taxicab driver in Little Rock, disappeared on the night of June 3, 1968. A week later the cab and his body were found in Grant County. It was the theory of the State that appellant participated in the robbery of Lovelace in which the latter was killed. Additional facts may be gleaned from the cited opinions.

Point I. Appellant was denied a transcript of the proceedings which resulted in a mistrial. The same question was before the Supreme Court in Britt v. North Carolina, 404 U.S. 226, 92 S. Ct. 431, 30 L. Ed. 2d 400 (1971). In the first place there was no showing by appellant here that the transcript was needed to prepare tus defense for a new trial. Nor was it shown that the reporter’s notes of the mistrial could not have been read back if and when they were needed. Our position on this point is in harmony with Britt. Additionally it should be pointed out that appellant had access to the two previous trial transcripts.

Point II. The trial jury did not represent a cross-section of the community. On motion of appellant the prospective jurors chosen for the jury wheel were quashed, whereupon the trial court proceeded in accordance with Ark. Stat. Ann. § 39-214 (Supp. 1971). Three commissioners were appointed, one black and two whites, and they selected a new panel of sixty names. The testimony shedding light on this point consisted of the evidence given by the jury commissioners and the voir dire examination of thirty-one members of the jury panel. Appellant infers that three jury commissioners are not competent to choose a jury panel representing a cross-section of the community. We do not agree with that assertion. From the testimony of the commissioners we are impressed by their apparent acquaintance with citizens in many walks of life. In fact the testimony of the thirty-one members of the panel who were questioned on voir dire reflects broad strata of economic levels and occupations. The black member of the jury commission said he named approximately fifteen persons to the panel. Four blacks were among the thirty-one jurors questioned before a jury of twelve was obtained. We find no information concerning the total number of registered black persons in Grant County. There is nothing in the record concerning the ages, occupations, and stations in life of those twenty-nine members of the panel whose names were not drawn. The commissioners were not certain whether any eighteen-year-old electors were chosen but they did use the new voter registration list. We should also point out that Grant County is one of the most sparsely populated in the State. The burden was on appellant to show failure to draft a panel representing a cross-section of the county and he did not meet that burden. Avery v. Georgia, 345 U.S. 559 (1953). See Point er v. State, 248 Ark. 710, 454 S.W. 2d 91 (1970).

Point III. Four murder trials constitutes cruel and unusual punishment. We are cited no authorities for that proposition and we know of none.

Point IV. The felony-murder rule should be changed. Appellant is referring to that provision in the statute which makes murder perpetrated while in the commission of certain other felonies, murder in the first degree. Ark. Stat. Ann. § 41-2205. That statute has been a part of our law since 1838 and we have no intention of overruling it.

Point V. The confession introduced was not voluntarily given nor was it a correct statement of what appellant said. The allegation is contrary to the testimony of officer Tudor. The officer testified that he fully advised appellant of his rights. In fact appellant testified he told officer Tudor that appellant knew his rights. Appellant testified that no force was used on him. Officer Tudor said he made extensivfe notes of appellant’s statements and reduced them to writing and that the writing truly reflected appellant’s voluntary narration.

Point VI. The State’s witness indicated that a co-defendant confessed to the crime, stating that appellant committed the murder. We do not so interpret the testimony cited to support the point. This question was propounded to officer Tudor by appellant’s counsel on cross-examination and the following answer given:

Q. Isn’t it true this is the statement you got from Mr. Williamson and you pieced it together to place it against Mr. Mosby.
A. No, sir. Their accounts are not the same and I listened to Mr. Mosby’s statement and I recorded my impression of it and that is what I have given you today.

Point VII. Exhibits cannot be introduced based on cross-examination of a witness. The sheriff of Grant County stated on cross-examination that he found a microphone in a tree. The State then took the witness on re-direct and introduced the microphone. We simply fail to perceive any error.

Point VIII. A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied by other proof that such an offense was committed. We agree with that statement of law, it being incorporated in our statutes. Ark. Stat. Ann. § 43-2115 (Repl. 1964). We think the evidence in this case abundantly meets that test. Moore v. State, 227 Ark. 544, 299 S.W. 2d 838 (1957). Lovelace was missing from home for a week. His body was found in a desolate place. His car was commandeered. A search of the premises produced the victim’s empty wallet. A piece of the victim’s jump suit had been cut from his body and the cloth contained human blood stains. The microphone on the two-way radio had been cut and removed. One of Lovelace’s hands had been severed from the body. An identification card was found and his wedding ring was still on the finger bone. As in Moore there was ample evidence that Lovelace had been robbed and had not died a natural death.

Affirmed.

Byrd, J., not participating


author: John A. Fogleman, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Glenn STEEN et ux
    5-6128
    489 S.W. 2d 781
    Opinion delivered February 5, 1973

      Thomas B. Keys and James N. Dowell, for appellant.

      J. D. Patterson, Roger V. Logan Jr. and W. Wade Berryhill, for appellees.
   John A. Fogleman, Justice.

The Arkansas Highway Commission asserts that the judgment awarding the appellees $4,750 as compensation for the taking by eminent domain of 5.01 acres of land for construction on Highway 65 should be reversed because of the failure of the circuit judge to strike the testimony of one of the landowners and of a real estate broker who testified for appellees. Appellant also contends that the verdict is excessive and unsupported by substantial evidence. Since the alleged lack of substantial evidence is based upon the elimination of the testimony of these two witnesses, the questions pertaining to the striking of their testimony are the only ones presented. The motions to strike the testimony of each of these witnesses were based upon appellant’s contention that neither had given a fair and reasonable basis for the value he placed upon the property. We find no reversible error in the denial of these motions.

Ray Wheeler, a Searcy County real estate broker for 26 years, was the only expert witness for appellees on the value of the five-acre tract. Wheeler testified that he had sold approximately 1700 tracts of real estate in the area for others and had dealt in land on his own account. Elaboration upon his qualifications is unnecessary because appellant admits that this witness appeared to be generally qualified in the field of real estate values and sufficiently familiar with market value in the area. Appellant argues, however, that Wheeler was not “well versed” as to the physical facts concerning the property taken and was unable to supply facts upon which to base his opinion.

Failure of Wheeler to consult the highway construction plans is the principal basis of appellant’s assertion that Wheeler was not sufficiently familiar with the physical aspects of the Steen land. Of course, the planned construction itself was not a significant factor because appellant took the entire tract owned by the Steens. Appellant seems to feel, however, that review of the plans would have better informed the witness as to the location of the right-of-way line with reference to the edge of a precipice, so that he could have stated more exactly what portion of the Steen tract was rendered valueless by reason of the precipice, and the width of an easement for a power transmission line. Wheeler characterized the tract as a single commercial tract because it was an unusual piece of property, attractive to tourist trade because of its location high on the “break” of a mountain, which afforded an unexcelled view for 35 miles in two directions. Wheeler accorded no significance to the fact that the terrain was such that a large part of the five acres was not suitable for building purposes because there was at least a quarter of an acre upon which a building could be erected and an adequate means of access thereto, even though an approach from the east or from the south would not be possible. According to Wheeler, the precipitous grade on the property tended to protect the usable three-quarters of an acre from encroachment and obstruction by potential neighbors. He knew of no other commercial site for seven miles in one direction and one and one-half miles in another. He had seen the stakes indicating appellant’s right-of-way line and was aware of the transmission line across the property but was unable to state its width. He was aware of a road across the property but was certain that it was not a public road. There was no showing that the road was a public road or that it interfered with the use of the property. Even if the motion to strike were sufficient to reach asserted lack of familiarity, appellant has failed to demonstrate that Wheeler was unqualified from this standpoint. His lack of knowledge of details related primarily to portions of the tract he considered unusable except as a buffer to protect that portion to which he attributed the value he stated.

Appellant’s remaining argument about Wheeler’s testimony is that he was unable to support his opinion with comparable sales or real estate. His statement that the property taken had a value of $7,000 was based primarily upon his opinion that the land could be sold immediately at that price. Wheeler stated that this was almost imperative where there had not been any sales of this type property. He testified that there had been none, to his knowledge, and that he doubted that anyone could come up with any such sale. He added that because of the unique nature of the property, there were no comparable sales in northwest Arkansas or southwest Missouri — an area over which he traveled considerably. He knew of no comparable place on Highway No. 65 within 50 miles of this property. Wheeler stated that he had received many inquiries about this particular spot. Appellant’s value experts shared Wheeler’s appraisal of the unique view from the Steen property but differed with him principally on the availability of the property for commercial use or for the erection of any building, because of its topography and the transmission line. Both of them said that the property only had value attributable to its worth to a neighboring owner for access and other such purposes. One of them based his valuation upon the market price per acre for rough, mountainous, idle timberland in the area. He found no comparable property from the standpoint of topography and location, even though he had participated in an extensive survey of all sales in Searcy County. This witness could not recall having seen any other property on Highway 65 in Searcy County with a scenic view even similar to that from the Steen property.

We have noted that there are various recognized approaches to evaluation of real estate, among which are sales, cost, income and use. Arkansas State Highway Commission v. Roberts, 246 Ark. 1216, 441 S.W. 2d 808. Real estate values stated by a qualified witness based on his experience in buying and selling real estate in the vicinity of the land have been held admissible and not subject to being stricken when his familiarity with the land, its advantages, present and potential uses and longstanding knowledge of the fair market value of the lands and other lands in the area are clearly demonstrated. See Arkansas State Highway Commission v. Pruitt, 249 Ark. 682, 460 S.W. 2d 316. It is not always necessary that the opinion of a qualified expert on real estate valuation be supported by comparable sales to be admissible or to constitute substantial evidence, at least where comparable sales are not to be found. Common wealth v. Citizens Ice & Fuel Co., 365 S.W. 2d 113 (Ky. 1963); Commonwealth, Dept. Highways v. Sellers, 421 S.W. 2d 581 (Ky. 1967). This is particularly so when the lands involved are unimproved and unproductive. Wagner v. State, 25 A.D.2d 814, 270 N.Y.S. 2d 128 (1966). Where there are no recent actual sales of comparable property in the particular locality, the true or intrinsic value for compensation purposes may be determined by the use of the expert opinions of those who have extensively bought and sold similar property for themselves and others and who are familiar with the property, its value and the uses to which it may be put. Mississippi State Highway Commission v. Pepper, 250 Miss. 755, 168 So. 2d 307 (1964); State v. Givens, 129 So. 2d 468 (Ct. App. La. 1961); Commonwealth v. Citizens Ice & Fuel Co., supra. However, jury consideration of a naked opinion of value of an expert witness which is not based upon a recognized scientific method of appraisal should be approached with caution and permitted only in unusual cases.

As early as Ft. Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S.W. 440, we clearly recognized that the trial court has a wide latitude of discretion in permitting estimates of value by witnesses who are familiar with the property and whose opinions are entitled to weight by reason of their knowledge of the subject or their business and experience, when confinement of the inquiry to those qualified to testify only by knowledge of sales of similar property for like purposes would, in effect, deny the landowner of the right to prove the true market value of his property. If Wheeler and Mrs. Steen are correct in their opinion as to the highest and best use of the property, the exclusion of Wheeler’s testimony might well deprive the landowners of any evidence which tended to prove the market value of their property, because there is really no contradiction of Wheeler’s testimony that there were no sales of lands comparable to the Steen property for the purposes for which he considered it adaptable. We find no abuse of the court’s discretion in the denial of the motion to strike Wheeler’s testimony.

Appellant’s argument as to the striking of Mrs. Steen’s testimony is based largely upon the circuit judge’s statement, in denying the motion, that the testimony would be admitted for what it was worth but that it would not sustain a judgment for an amount in excess of the qualified appraiser’s estimate of value. We can only consider appellant’s argument that Mrs. Steen’s value testimony had no fair and reasonable basis, because its statement here that the judge’s ruling was a comment on the evidence is not founded upon any objection in the trial court on that ground. Mrs. Steen was one of the landowners. She and her husband had owned the property since 1948. They lived in Searcy County. She was born and raised there. She demonstrated an adequate familiarity with the property, its location, characteristics and accessibility and expressed her opinion that its fair and reasonable market value was $10,000. On cross-examination she testified that she was familiar with the entire countryside and that there was no comparable property in the area. She based her opinion as to value upon her observation of sales while traveling and the unavailability of property like this at a price of $10,000. She had operated a restaurant in the community and had many inquiries about the property by persons who came in that place of business.

Much of what we have had to say about the failure to strike the Wheeler testimony has application to the testimony of the landowner. Considerable latitude of discretion has been allowed in admitting a landowner’s opinion of the value of his property when he possesses a high degree of familiarity with the property. Jonesboro L. C. & E. R. Co. v. Ashabranner, 117 Ark. 317, 174 S.W. 548. When the landowner has sufficient knowledge and familiarity his opinion is to be stricken when it is unrelated to any fact in the record and is apparently plucked from the air and without any fair and reasonable basis. Arkansas State Highway Commission v. Hammond, 247 Ark. 683, 447 S.W. 2d 664. Where, however, the landowner is intimately acquainted with the land and conditions pertaining thereto and its highest and best use, his testimony is not to be stricken simply because it is not based upon comparable sales, or solely because of the owner’s lack of knowledge of property values. Arkansas State Highway Commission v. Woody, 248 Ark. 657, 453 S.W. 2d 45; Arkansas State Highway Commission v. McDonald, 250 Ark. 1011, 468 S.W. 2d 231; Arkansas State Highway Commission v. McAlister, 247 Ark. 757, 447 S.W. 2d 649; Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S.W. 2d 563.

We cannot say that appellant demonstrated that there was no fair and reasonable basis for the owner’s testimony or that the trial court erred in refusing to strike the landowner’s testimony, in spite of the judge’s statement more or less indicative of his probable action if the jury verdict exceeded the value given by the expert witness. We cannot say that any predisposition on the part of the trial judge about the limits he might ultimately impose on just compensation made his denial of the motion to strike erroneous insofar as the objection made by appellant is concerned.

The judgment is affirmed.

       Cf. Arkansas State Highway Commission v. Spurlock, 248 Ark. 90, 449 S.W. 2d 958.


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    HOLIDAY INNS OF AMERICA, INC. and AMERICAN NATIONAL INSURANCE COMPANY v. Eldridge WILSON
    5-6156
    489 S.W. 2d 806
    Opinion delivered February 5, 1973

      John M. Lofton and Fulk, Lovett if Mays, and John H. Jacobs, for appellants.

      Howell, Price, Howell if Barron, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case in which the employer-respondent, Holiday Inns of America, Inc., hereafter called “Holiday,” and its compensation insurance carrier appeal from a circuit court judgment affirming an award of 15% increase in compensation made by the Workmen’s Compensation Commission to Eldridge Wilson, an injured claimant employee of Holiday, under the provisions of Ark. Stat. Ann. § 81-1310 (d) (Supp. 1971) which states as follows:

“Where an injury or death is caused in substantial part by the failure of an employer to comply with any Arkansas statute or official regulation pertaining to the health or safety of employees, compensation or death benefits provided for by this Act [§§ 81-1301 —81-1349] shall be increased by fifteen per centum (15%).”

The pertinent facts appear as follows: Holiday desired to erect a metal flagpole in front of one of its Inns. Its employees, under the direction of the manager of the Inn, procured a metal flagpole and prepared a base for the flagpole. The base consisted of a metal collar set in concrete, and the flagpole was to be raised into an upright position and its lower end inserted into the metal collar. The concrete and metal collar base was installed under overhead electric power lines and, being unable to manually raise the flagpole, Holiday employed Marion Young, d/b/a Young’s Crane & Rental Service, to raise the flagpole with a mobile truck crane so that its lower end could be inserted into the collar. Young fastened a cable to the flagpole and raised it as high as his equipment would raise it and Wilson, a regular employee of Holiday, was directed by Holiday’s manager to assist Young by guiding the base of the pole into the collar. As Wilson attempted to swing the suspended flagpole into an upright position, its upper end came in or near contact with overhead electric lines and Wilson was injured by electric current.

Wilson’s right to workmen’s compensation benefits as an employee of Holiday was not controverted. He filed a third party suit in circuit court against Young alleging, among other acts of negligence, that Young violated the safety provisions of Ark. Stat. Ann. §§ 81-1401 —81-1410 (Supp. 1971) which reads in part as follows: lows:

“This act [§§ 81-1401 — 81-1410] provides for the minimum precautions to be taken during any excavation, demolition, transportation of equipment, construction, repair or operation in the proximity of overhead high voltage lines. The purpose of this act is to provide for the protection of persons engaged in work of any nature in the vicinity of overhead high voltage lines, and to define the conditions under which work may be carried on safely, and the procedures and means by which these conditions may be created.
No person shall require or permit employee to perform any function in proximity to overhead high voltage lines; to enter upon any land, building, or other premises, and there to engage in any excavation, demolition, construction, repair or other operations, or to erect, install, operate or store in or upon such premises any tools, machinery, equipment, materials, or structures, including house moving, well drilling, pile driving or hoisting equipment, unless and until danger from accidental contact with said overhead high voltage lines has been effectively guarded against in the manner hereinafter prescribed.”

The third party suit against Young was settled without trial for the sum of $70,000 and the suit was dismissed with prejudice. Holiday’s subrogation rights under Ark. Stat. Ann. § 81-1340 (Repl. 1960) were not questioned by the parties and, after the costs of collection were deducted from the $70,000 settlement, there remained $46,670 as net recovery against the third party. Two-thirds of this sum, in the amount of $31,113.32, was credited against the amounts of compensation paid and to be paid to Wilson by Holiday and its insurance carrier. After the third party settlement was concluded, Wilson filed his claim for penalty under § 81-1310 (d), supra. The Commission ordered the weekly benefits payable to Wilson increased by 15% and the circuit court affirmed.

On appeal to this court Holiday contends that there is no substantial evidence to support the award of the additional 15% penalty. It next contends that the consent judgment in settlement of the third party case is res judicata as to who was responsible for complying with the applicable safety statutes. We do not agree with either contention.

This is a case of first impression in Arkansas and Holiday relied on the Ohio cases of State ex rel. Whitman v. Industrial Commission, 3 N. E. 2d 52, and State ex rel. Reed v. Industrial Commission, 207 N. E. 755. Both of those cases are readily distinguishable from the case at bar on their facts. The Ohio Constitution confered upon the Industrial Commission of that state the power and authority to determine whether or not an injury, disease or death resulted because of the failure of the employer to comply with any specific requirement for the protection of the lives, health or safety of employees and when so found, to assess a penalty of no more than 50% or less than 15% of the compensation awarded and in addition to the other compensation rights.

In the Whitman case, supra, Van Gundy and Beck were general contractors in the construction of a school building. They sublet the lathing part of the contract to Rosseau, an independent subcontractor. Rosseau as well as the prime contractor had sufficient employees to subject them to the Compensation Act, but Rosseau had not qualified under the Ohio Act and the prime contractor was therefore liable in compensation for injuries sustained by Rosseau’s employees. In the performance of his subcontract, Rosseau constructed some scaffolding in violation of the Ohio Safety Code and as a result one of his own employees was injured when the scaffolding gave way. Van Gundy and Beck paid compensation as required under the Act pertaining to uninsured or unqualified subcontractors, but the Industrial Commission denied the employee’s claim for penalty against Van Gundy and Beck. The Commission’s decision was affirmed by the intermediate and Supreme Courts, and in its decision the Supreme Court said:

“It will be noted that under the amendment the board was required to determine whether injury or death resulted because of the failure of the employer to comply with any specific requirement, etc.; and when it found that the injury or death resulted because of such failure, the board was authorized to make an additional award. Conceding that section 1465-61, General Code, legally places Van Gundy 8c Beck Company in the class of an employer, it is not in that section placed in the category of an employer who fails to comply with a specific requirement. There was no failure of the Van Gundy 8c Beck Company to comply with any specific requirement; the failure was upon the part of Rosseau, the subcontractor. The Constitution has defined the term ‘employer’ as being one who has failed to comply; and the Legislature has no power to define it otherwise. Not only is this the clear import of the constitutional provision, but it falls within its spirit as well.”

In the Reed case, supra, the claimant was an employee of Robert L. Sweigart who was engaged by Rudy & Son to repair the warped exterior walls of silo-type storage bins owned and operated by Rudy. To facilitate the repair work, Rudy informally permitted Sweigart to use an electric powered elevator installed and owned by Rudy and located between the two bins to be repaired. As the elevator cage occupied by the claimant was ascending next to the bins, the claimant-employee extended his head out of the rear of the cage and it was caught between the back of the cage enclosure and the edge of the shaftway opening at the top of the bins, resulting in the employee’s injury. The construction and maintenance of the cage violated the Ohio Safety Code. The employee-claimant was paid workmen’s compensation as Rudy’s employee and later filed an application for additional award on the ground that his injury was due to violation by his employer of a specific safety requirement. The Ohio Court of Appeals denied the award and the Supreme Court affirmed. In doing so, the Supreme Court cited and followed its previous decision in Whitman, supra, and said:

“Here, Rudy owned the elevator cage and was responsible for its condition and maintenance. Sweigart merely used the instrumentality with Rudy’s permission to facilitate his work for Rudy. There is nothing to show that Sweigart knew or had reason to believe that the construction and maintenance of the elevator cage violated parts of Bulletin 110. It would, therefore, seem unfair under these circumstances to punish Sweigart for a condition, which he did not create and which he had no authority to alter or correct, and thereby place him in the category of an ‘employer’ who failed to comply with a specific safety requirement within the intendment of Section 35, Article II of the Constitution.”

In the case at bar Marion Young was paid on an hourly basis for raising the flagpole. Wilson was not only a regular employee of Holiday but Holiday selected the metal flagpole and prepared the base for its erection under the overhead electric lines. Holiday’s manager not only directed the erection of the flagpole; according to his own testimony, he knew of the overhead electric lines and he also assisted Wilson in guiding the flagpole into the metal collar in the concrete base. According to Young’s testimony, Holiday’s manager assisted, directed and supervised the entire operation.

We are of the opinion that res judicata is simply not involved under the evidence and the law in this case. Section 81-1310 (d), supra, is directed only to the precautions an employer must take for the health and safety of his employees. The mere fact that Wilson alleged violation of the safety code in his complaint against Young and subsequently settled his claim against Young by compromise under which Young specifically avoided admission of liability, does not excuse the employer, Holiday, from the provisions of the statute.

The judgment is affirmed.

Fogleman, J., not participating.


text:
    Debora Inez JACKSON v. Michael Wayne JACKSON
    5-6151
    489 S.W. 2d 805
    Opinion delivered February 5, 1973

      R. Scott Campbell, for appellant.

      George M. Callahan and Eudox Patterson, for appellee.
   Conley Byrd, Justice.

This is a child custody case arising out of a teenage marriage. At the time of the hearing appellant Debora Inez Jackson and appellee Michael Wayne Jackson were only 18, and the baby Ronald Wayne Jackson was nine months old. The Chancellor awarded the custody to the father on the conditions that he reside in his parents’ home and that Mrs. Cleo Jackson, the father’s mother cease her employment and take care of the child. Visitation was given to the mother in the home of the maternal grandparents each Saturday and Sunday. For reversal appellant contends:

“I. Irrelevant testimony concerning Debora’s life before she married Michael was introduced into the record.
II. Custody should not be awarded to a party who does not appear in court to testify.
III. The evidence in this case indicates the child’s best interests would be served by allowing him to remain with his mother in the home of the maternal grandparents.

The record not only shows a number of indiscretions on the part of appellant but it also shows a history of discord between her and her parents. Prior to her marriage she was an accomplice to some overnight partying on the part of her 14 year old sister when their parents thought the sister was spending the night with a friend. After the birth of the child, and at a time when she was separated from her husband, she surreptitiously moved into the home of some acquaintances for a week or two. While there she expressed hatred for her parents.

Neither has appellee shown the utmost stability. However, he seems to have held a steady job. He has paid the bills, including the hospital bill, and furnished food and milk for the baby. That he offered to furnish clothing is not seriously disputed. In this respect, however, the proof is rather undisputed that he turned the money over to his mother to pay the bills and furnish the food.

On the whole record and in consideration of the fact that the Chancellor saw the witnesses, we cannot say that the Chancellor did not act in the best interest of the child in awarding the custody to the father and in placing the terms and conditions thereon.

The evidence about appellant’s life before she married was relevant to show the history of her parental attitudes.

The contention that custody should not be awarded to a party who does not appear in court to testify involves appellee’s father. We find no merit in this contention. Furthermore, Mr. Jackson was present in the court room and served as guardian and next of friend to appellee, a minor.

Affirmed.