author: Carleton Harris, Chief Justice.

text:
    Walthall v. Hime.
    5-3019
    368 S. W. 2d 77
    Opinion delivered May 27, 1963.

      McKay, Anderson and Crumpler, for appellant.

      Ilarry B. Colay, for appellee.
   Carleton Harris, Chief Justice.

This is an adoption proceeding. Harold Henry Hime, a Baptist minister, was the husband of Billie Jo Walthall Hime, and Billie Jo died on September 25, 1957, eight days after the birth of the couple’s third child, Sarah Margaret Hime. AN. 0. Walthall and Lula Walthall, his wife, parents of Billie Jo, and appellants herein, took the baby home from the hospital, along with the two older minor sons. Mr. Hime also lived in the Walthall home while teaching at Bradley ; after about six weeks, he became pastor at Bradley, and moved from appellants’ home. Hime, according to the testimony, at first, returned to the Walthall home on Friday nights, and subsequently on Saturdays, at which times he would see the children and get clean clothes. In September, 1958, appellee remarried, and took the boys with him to the parsonage at Bradley. Sarah Margaret remained with her grandparents. Mr. Hime, his wife, and sons, remained in the parsonage until January, 1960. During that period the grandparents visited in his home on several occasions, at which time they took Sarah Margaret with them, and on several occasions returned the boys back to their home for a visit. Mrs. Walthall testified that appellee never did ask for Sarah to spend the night at his home, nor did he take Sarah out when visiting appellants, or ask to do so. A girl baby was born to Mr. Hime and his second wife in September, 1959. Thereafter, appellee and family left Bradley and moved to Fort Worth. Sarah Margaret remained in the home of the grandparents. According to Mrs. Walthall, the Himes, at first, came back for a visit during the summer, and the two families always had Christmas dinner together. She testified that Sarah never did visit with her father, and that no request was made for such a visit. Early in 1961, appellee commenced sending $30.00 per month to the Walthalls for the benefit of the child, the money being a portion of Social Security money (or some fund from the Government) which Hime received in behalf of the children. In May, 1962, the Walthalls received a letter from appellee to the effect that he desired to take his daughter home with him to live. Mr. Walthall directed a letter to Hime, stating that appellants intended to keep Sarah Margaret. In June, appellee filed an action in Habeas Corpus to obtain custody of the child. On the day that this matter was to be heard, appellants filed a petition in Probate Court, seeking to adopt Sarah Margaret, alleging that Hime had abandoned the child for more than six months immediately prior to the filing of their petition for adoption. A motion was also filed by them to continue the Habeas Corpus hearing until after the adoption petition was heard. The motion was granted, and subsequently the petition for adoption was heard by the Probate Court. At the conclusion of the hearing, the judge of that court entered a lengthy and studious opinion, wherein he found that the petition for adoption should be denied. In accordance with this finding, an order was entered dismissing appellant’s petition, and denying the adoption. From such order, comes this appeal.

Section 56-106, Ark. Stats., dealing with adoption, provides as follows:

“ (a) The adoption of a child shall not be permitted without the written consent verified by affidavit, of its parents or parent, if living, except as follows:
(b) The consent of a parent or parents may be dispensed with if the court, upon competent evidence, makes one of the following findings:
(I) The parent has abandoned the child for more than six (6) months next preceding the filing of the petition.
(II) The parent cannot be found.
(III) The parent is insane or otherwise incapacitated from giving consent.
(IY) A guardian of the child has been appointed by an order of the Probate or Juvenile Court giving the guardian authority to consent to adoption without notice to or consent of the child’s natural parents. In this case, the written verified consent of the guardian shall be sufficient.
(V) For five (5) years next preceding the filing of the petition for adoption, the child has resided in this State in the sole custody of one of its parents and the other parent has not, during that period contributed to its support, care or maintenance, then the appearance and consent of such other parent, whether or not his or her residence is known, shall not be necessary, and the court may order the adoption upon the consent of the parent who has had the custody, support, care and maintenance of the child.
(c) In case of illegitimacy, the consent of the mother shall suffice except where paternity has been established by judgment or order of a court of competent jurisdiction.
(d) The minority of a parent shall not bar or in any way vitiate his consent to an adoption. ’ ’

Appellants rely upon Provision (I), and in proceeding under this theory, endeavored to establish that appellee had “given” the child to its grandparents. Pour ladies testified that during the first Mrs. Hime’s last illness, appellee had told them that if his wife died, he would give the child to Mrs. Walthall; however, on cross-examination, one of the witnesses (Mrs. Pritch) stated that he was “letting them keep Sarah.” Two of the other ladies, who testified that Hime “gave” the child to appellants, added that he did not indicate he was abandoning Sarah Margaret, and the fourth testified that he seemed rather perturbed at the time over the critical condition of his wife. Mrs. Walthall stated that after her daughter’s death, appellee told her, “Mrs. Walthall, Sarah is yours and Mr. Walthall’s.” She testified that she didn’t want the children separated, and stated that subsequently (when Hime was preparing to take the boys to live with him in Bradley) told him, “Bozo, if you don’t take Sarah now, don’t ever come back for her.” The testimony reflected that on one occasion, Hime attended a homecoming celebration at Southern State College, but did not go by the Walthall home to visit with Sarah. Mrs. Walthall testified that Hime always sent Christmas and birthday presents to his daughter, and had, for seventeen months prior to the filing of the adoption petition, sent the $30.00 heretofore referred to. When asked if he had ever given any indication of deserting and abandoning the child, she replied, “Why, no, I don’t suppose you would call it that. He did walk away and leave her when I asked him if he didn’t take her then to not ever come back for her. That is the nearest I would call abandon. I don’t suppose he called it that and I didn’t.

Mr. Hime is a social case worker for Buckner Baptist Benevolences, connected with Buckner Baptist Children’s Home, near Port Worth. He testified that he did not recall ever telling anyone that he was renouncing all rights to Sarah, and he readily admitted that he felt a serious mistake had been made by leaving the child with the grandparents for so long a period of time. He stated that one reason for leaving Sarah Margaret was to help his mother-in-law, who was extremely npset over the death of her daughter, and he testified that he had not often visited in the Walthall home for two reasons— because of his schooling, pastorates, and work at the orphanage, and further, because he felt that such visits caused emotional disturbances in the family. Appellee stated that he felt his visits had become progressively less welcome but he had left the child with appellants because he did not want to hurt Mrs. Walthall; that finally, however, he felt that the step must be taken, and he directed the letter to appellants, expressing his desire to rear his daughter with the other members of his family. He testified that he received Social Security for the three children (around $60.00 per month for Sarah); that he had been sending $30.00 to the Walthalls, had purchased a participating life insurance policy for Sarah which would mature on her eighteenth birthday, and had established a small bank account for her.

The present Mrs. Hime testified that she wanted Sarah in the home and would do all possible to make a good mother for her.

The evidence establishes that all parties are of good moral character, and from that standpoint, entirely proper persons to rear the little girl.

In reaching our conclusion, it is not necessary to discuss the question of whether a child can be ‘ ‘ given away. ’ ’ Suffice it to say that we think the proof falls far short of establishing that appellee abandoned Sarah Margaret. This court, in Woodson v. Lee, 221 Ark. 517, 254 S. W. 2d 326, quoted a California case which approved Webster’s definition of "abandonment” as follows:

"To relinquish or give up with the intent of never again resuming or claiming one’s rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in; to desert, as a person to whom one is bound by a special relation of allegiance or fidelity; to quit; to forsake.”

Certainly, the proof does not reflect that Hime deserted, forsook entirely, renounced utterly, or relinquished all connection with, or concern in, his daughter. Whether, at the beginning, he intended to relinquish any rights or interest in the person of his daughter, with the intent of never again resuming the relationship, is very much debatable under the evidence in this case, but the statute requires that he shall have “abandoned the child for more than six (6) months next preceding the filing of the petition.” As heretofore stated, money had been sent for the child’s benefit for seventeen months prior to the filing of the petition, gifts had consistently been given on commemorative days, and, in fact, Hime had already filed his petition for a Writ of Habeas Corpus with the intention of obtaining the custody and control of his daughter before appellants ever filed their petition for adoption.

Finding no abandonment of Sarah Margaret by her father, appellee herein, it follows that the order of the Probate Court should be, and hereby is, affirmed.

       In Ms opinion, the trial judge stated, “It was stipulated that in the event petitioners were unsuccessful in the adoption matter, they would not further contest the action in Chancery Court.”

         This was appellee’s nick-name.

       Mr. Hime is working on his Master of Divinity degree.

       According to his testimony, every letter written by the Walthalls to his household since the death of Billie Jo had been addressed to the two boys, and he stated that he did not recall ever receiving a personal invitation for a visit to the Walthall home unless it was to bring the children.

       In re Cordy, 146 Pacific 532.


source: Caselaw Access Project

author: Oseo Cobb, Special Associate Justice.

license: Public Domain

text:
    Maxwell v. State.
    5057
    370 S. W. 2d 113
    Opinion delivered May 27, 1963.
    [Rehearing denied September 9, 1963.]

      Christopher C. Mercer, Jr. and Detector Tiller, for appellant.

      Bruce Barnett, Atty. General, by Jack L. Lcssemberry, Asst. Atty. Gen., for appellee.
   Oseo Cobb, Special Associate Justice.

1. This is a criminal case wherein appellant was charged, under Ark. Stat. Ann. 1947, Sec. 41-3401, with the commission of the offense of rape. Prior to 1915 conviction for this offense carried a mandatory death penalty. By Act No. 187 of 1915 (Ark. Stat. Ann. 1947, Sec. 43-2153) the mandatory death penalty was removed as to all capital offenses and the jury trying the accused was authorized to bring in a verdict of guilty and life imprisonment in the State penitentiary in lieu of the death penalty, if it so desired.

2. At the conclusion of this trial the court provided the jury with three forms of verdicts, as follows: (1) Not guilty; (2) Guilty with life imprisonment; (3) Guilty as charged. After several hours of deliberation the jury returned verdict No. 3, making the death sentence mandatory. Such a sentence was pronounced upon the appellant on April 5, 1962. Execution of appellant has been stayed pending review of the case here on appeal.

3. We have painstakingly examined the entire record. We have considered on its merits every motion made on behalf of appellant and denied by the trial court and we have considered on its merits every objection interposed by counsel for appellant to which adverse rulings were made by the court. In capital cases the formal saving of exceptions to adverse rulings in unnecessary. Ark. Stat. Ann. 1947, Sec. 43-2723.

I. SUFFICIENCY OF THE EVIDENCE

The offense involved was committed on November 3, 1961. Within a matter of hours appellant was taken into custody. State and Federal authorities collaborated in a thorough investigation of the crime and on November 7, 1961, appellant was formally charged by the filing of a criminal information. Appellant makes no complaint as to the circumstances of his arrest or as to the promptness of the State’s attorney in filing the information against him.

Miss Stella Spoon, age 35, lived with her aged and helpless father at 108 Nichols Street in the city of Hot Springs, in Garland County. Near 3:00 a. m. on November 3, 1961, she was aroused by an unusual noise. Clad only in her pajamas, she went into the living room. She saw the form of a man at the window engaged in cutting or breaking the screen. She warned the intruder to leave or she would call the police. The man kept trying to force the screen and she ran to her telephone in the same room to call the police. Almost in the same instant the man burst through the window. Miss Spoon had dialed the operator before she was violently seized and the receiver knocked from her hand. The telephone operator, hearing the screams, connected the line to police headquarters, where an officer heard the screams and the struggle, traced the call, and dispatched officers to the scene.

Once inside the home, the intruder subjected Miss Spoon to a literal nightmare of brutality and abuse. She fought and struggled, but to no avail. She struck the intruder with a purse. When he forced his hand over her mouth to silence her screams she bit his finger, causing it to bleed. Her helpless father tried to aid her, but was struck and left bleeding. She tried to escape through the front door, but was caught. Her attacker kept threatening to kill her and her father as well. She was dragged and forced outside the house without shoes, and while clad only in her pajamas was forced to a remote spot some two blocks from her home, where battered, bruised, bleeding and exhausted she was overpowered and compelled against her will to suffer a deliberate and calculated rape of her person. After the ravage of her person had been accomplished, and before fleeing, her attacker threatened to kill her and her father if she told.

Testimony establishing the identity of appellant as the attacker is clear and emphatic. At the window he liad a part of a nylon stocking on Ms head, with a knot in it. When he appeared to try to quickly jerk it down over his face it came off. A piece of nylon hose was found near the home of the victim and the FBI Laboratory at Washington, D. C., found in said nylon hose specimens of hair similar in every detail to that of appellant. A thread of nylon combed from appellant’s head was found to be exact in all details with the threads of the hose found near victim’s house. Negroid hair found iu the home of the victim corresponded exactly with hair of appellant.

Officers working on the case were quick to note the fresh injury to appellant’s finger and the condition of the clothes he was then wearing. Officers were dispatched to his mother’s home, where appellant resided, and she was advised that her son was in trouble. They asked permission to examine his clothes and his mother consented thereto, taking the officers to the clothes closet and permitting them to take a change of clothes and also a blue coat and a trench coat belonging to appellant. The officers forwarded to the FBI Lab in Washington, D. C., the clothing removed from the person of the appellant, his blue suit coat, his trench coat; the victim’s pajamas and the strands of hair, nylon thread and hose previously mentioned. The repeated and violent contact between the pajamas worn by the victim and the clothing of appellant left their telltale marks on both garments.

Robert Duckett, Special Agent, FBI Laboratory, whose qualifications were admitted as an expert on hairs, fibers, textiles and related materials, testified: “It has been my experience that when clothing comes in contact with other clothing or objects fibers will be interchanged or deposited. Now working on this assumption, I removed the foreign debris adhering to the T shirt that was submitted to me, the suit that was submitted to me, and the trench cost that was submited to me ... I mounted the foreign fibers and I compared those foreign fibers that I had recovered from the debris from the garments with the fibers composing the red pajamas. In the debris of the T shirt, in the debris of the suit coat and in the debris of the trench coat, I found red cotton fibers that matched the fibers composing the pajamas ...” He also testified in detail as to the matching hair and nylon thread and hose specimens examined as set ont above.

Allison Simms, Special Agent, FBI Laboratory, whose qualifications as an expert in analysis of blood stains and body fluids were admitted, testified: “I was examining these articles for the purpose of blood stains and seminal stains. Seminal stains are stains which consist of semen and semen is the male reproductive fluid which contains the male reproductive cell. I examined the pajama bottoms and tested these stains chemically and determined that these reddish brown stains consisted of blood—human blood. In the crotch of the pajamas I identified seminal stains—also on the front portion of both legs of the trousers I identified seminal stains which contained spermatozoa. On the shirt I did not find any semen but there were blood stains present which were human blood ...”

Miss Spoon struggled with her unmasked attacker in the light of her living room and having never seen him before made a special effort to remember his face. She testified:

“Q. Is that the man? (indicating appellant, then standing to be observed by the witness)
“A. Yes, six*, it is.
“Q. Is there any possible doubt in your mind?
“A. No, sir.”

Dr. James H. French (professional qualifications admitted by appellant) examined the victim shortly after the crime ixx the emergency room of a Hot Springs hospital. He testified: ‘ This patient had numerous bruises, cuts about her person. She had the undersurface of her left toe torxx, the greater part of the skin was torn. She had a bruise oxx her right hip, both wrists had abrasions circlixxg the wrist, she had bruises of both forearms, she had a bruise axxd swelling of the lower lip, she appeared emotionally upset. I did an internal examination axid obtained a smear from the mouth of the womb axid fouxid living spermatozoa of the male germ cells in the secretion. ’ ’

The evidence in this case met in overwhelming fashion all of the requirements for conviction for the offense of rape (Ark. Stat. Ann. 1947, Sec. 41-3402). McDonald v. State, 225 Ark. 38, 279 S. W. 2d 44.

II. MOTION TO QUASH INFORMATION

This criminal information was filed under authority of Amendment No. 21 to the Constitution of Arkansas. Appellant requested and was granted additional time by the court in which to enter his plea to the charge. A bill of particulars was provided appellant and his counsel, no objection being interposed thereto. After arraignment and plea of not guilty appellant requested and was given additional time in which to prepare his defense. When appellant was finally placed upon trial he and his counsel knew with particularity the exact nature of the charge. Counsel for appellant and appellant were present in open court on February 5, 1962, when the motion for continuance was granted and an agreed trial date of the case, beginning on March 19,1962, was set. No additional time was requested for preparation for trial. Hearings on preliminary motions were ended on March 16, 1962, and the court at that time asked counsel for appellant if there was any reason why the trial could not commence on March 19, 1962, as set, and was advised ‘ ‘ The defense will be ready.” The rights of the accused were fully protected. This Court and the Supreme Court of the United States have many times held such prosecutions by information valid. Washington v. State, 213 Ark. 218, 210 S. W. 2d 307; Moore v. State, 229 Ark. 335, 315 S. W. 2d 907, cert. denied, 358 U. S. 946; Hurtado v. Cal., 110 U. S. 516; Gaines v. Washington, 277 U. S. 81; Adamson v. California, 332 U. S. 46. Denial of the motion of appellant to quash was proper.

III. MOTION TO DECLARE STATUTE UNCONSTITUTIONAL IN APPLICATION.

In this motion appellant concedes that our penalty statute for rape (Ark. Stat. Ann. 1947, Sec. 41-3403) is not unconstitutional on its face, but contends that in its application to appellant and all other members of the Negro race it is unconstitutional for the reason that in Arkansas it is the practice and custom of juries to impose the death penalty upon Negro men who rape white women, without inflicting the same punishment upon other offenders. The court heard evidence on the motion. Lee Henslee, Superintendent, Arkansas State Penitentiary, testified, on call by appellant, that between the dates of September 5, 1913, and October 28, 1960, the records of the penitentiary reflected that there had been 168 executions, broken down by charge and race as follows:

Negro for rape 19 Negro for murder 108
White for rape 1 White for murder 38
Indian for murder 2

This bare listing of the number of executions does not pretend to cover the total number of such offenses by race or otherwise, nor does it cover trials resulting in acquittals, imposition of life sentences, or cover the intervention of executive clemency. Certainly there was no evidence offered even remotely suggesting that the ratio of violent crimes by Negroes and Whites was different from the ratio of the executions. There was no testimony suggesting that the State’s attorneys in the various judicial districts had not been asking for the death penalty in their prosecutions for rape, whether the accused be black or white. In any event, the jury alone could determine the death penalty. The attack therefore appears to be directed against trial by jury.

We have carefully reviewed the decisions of the Supreme Court of the United States cited by appellant in support of his position. We comment briefly as to same. Pace v. Alabama, 106 U. S. 583. Here an Alabama statute was upheld as not in conflict with the Constitution of the United States, although, it prescribed penalties more severe for adultery between persons of different races than for members of the same race. And in Friedman v. People, 341 U. S. 90, the ease was dismissed upon motion for want of a substantial Federal question. Yiek Wo v. Hopkins, 118 U. S. 356. In this case it was admitted that discrimination was being practiced against certain persons (Chinese) in denying them permits to operate laundries, although possessed of all qualifications set forth in the city ordinance under review. Smith v. Texas, 311 U. S. 128, is one of several cases involving discrimination as to race in jury service. Lane v. Wilson, 307 U. S. 268, involved abuses in voter registration. Chambers v. Florida, 309 U. S. 227, is a criminal case where the conviction was reversed because of long days of confinement and mistreatment before the filing of charges and where confessions were obtained by coercion.

We fail to find any support in the above cases for appellant’s position. Striking down our 'criminal statutes as to a large segment of the population upon the tenuous grounds urged by appellant is illogical. It could only result in chaos in the difficult job of law enforcement for the protection of the people. This Court concurs emphatically with other appellate courts of the United States in holding that justice should be administered equally and fairly as to all citizens regardless of race or color. Our penal statute for rape applies equally to all citizens of all races. On the record before us we find no basis whatever to declare our penal statute for rape unconstitutional in any respect of verbage or application. Appellant’s motion was properly overruled.

IY. MOTION FOB CHANGE OF VENUE

The burden was on appellant (Ark. Stat. Ann. 1947, See. 43-1502) to make credible proof to support his motion. A hearing was had. All of the witnesses called by counsel for appellant testified squarely against his position. Incidentally, we note here that in appellant’s listing of executions for rape that not a single such case appears to have originated from Garland County, where this ease was tried. There was no abuse of discretion bv the trial court in overruling the motion for change of venue. Speer v. State, 130 Ark. 457, 198 S. W. 113; Adams v. State, 179 Ark. 1047, 20 S. W. 2d 130.

V. MOTION TO REMOVE TO FEDERAL COURT

Ordinarily such motions are filed directly in Federal Court. No cause was shown justifying such removal, and the trial court properly refused to surrender its jurisdiction. Rand v. State, 191 F. Supp. 20 (D. C., Ark., 1961).

VI. OBJECTIONS RELATING TO VOIR DIRE

The trial court had the advantage of observing and appraising the demeanor and answers of all prospective jurors. He allowed appellant’s counsel the greatest latitude in examining the jurors before they were approved by the court for duty in the case. Indeed, we think the court proceeded in an exemplary manner in securing a jury free from actual or implied bias or prejudice. The objections of appellant concerning the selection of the jury were properly overruled. Polk v. State, 45 Ark. 165; Maroney v. State, 177 Ark. 355, 6 S. W. 2d 299; 50 C. J. S., “Juries, Sec. 275 a(l).”

VII. OBJECTIONS AS TO LIMITATIONS OF EXAMINATION OF WITNESSES

We find from the record that the court conducted the trial of this case in such a manner as to provide counsel for appellant every reasonable and legitimate latitude in cross-examination of witnesses—no witnesses having been put on by appellant. All objections of this character are found to be without merit and properly overruled.

VIII. APPELLANT’S VARIOUS MOTIONS TO EXCLUDE ALL EVIDENCE ADDUCED BY PROSECUTION CONCERNING ITEMS OF CLOTHING AND OTHER MATERIALS EXAMINED AT FBI LABORATORY, WASHINGTON, D.C.

When the police authorities sent in for examination the clothing of appellant, the pajamas of the victim, and the other items, as previously mentioned, such action could have helped to exonerate appellant rather than help to convict him, depending upon the findings at the laboratory. In this case the findings pinpointed the guilt of appellant.

The clothing removed from the person of appellant as an incident of his arrest for the crime under investigation was properly obtained. Jones v. U. S., 357 U. S. 493; Drayton v. U. S., 205 F. 2d 35.

As to items taken from the home of appellant’s mother, with whom appellant resided, the evidence clearly shows that the mother not only consented to the search, but assisted the officers in same. She was present at the trial but did not testify. Neither was a motion filed to quash the evidence obtained at the home. The proof by the State met the burden upon the State in proceeding as it did without a search warrant. Rigby v. U. S., 247 F. 2d 584; Cantrell v. U. S., 15 F. 2d 953, cert. denied, 273 U. S. 768.

“The consent of householder to the search of the house dispenses with the necessity of a search warrant, where his mother, with whom defendant was living, consented to the search, though defendant objected to the search of his room.” Gray v. Commonwealth, 249 S. W. 769 (Ky.).

The right to object to evidence on ground of illegal seizure is waived unless there is a timely motion to suppress the evidence. Morton v. U. S., 147 F. 2d 28; Butler v. U. S., 153 F. 2d 993, cert. denied, 324 U. S. 875. No motion to suppress was filed as to any item sent to the FBI Laboratory.

Lieutenant Crain was examined and cross-examined concerning a blue coat obtained at the home, without any objection being made as to the admissibility of such evidence. The admissibility of said evidence was waived. Sandusky v. Warren, 177 Ark. 271, 6 S. W. 2d 15.

The objections stated by counsel for appellant to the items sent to the FBI Lab were always made in blanket or in all inclusive form, with no breakdown as to any given item. Such objections are of no avail where any one of several items covered in the blanket objection was lawfully and properly obtained. Eureka Oil Co. v. Mooney, 173 Ark. 335, 292 S. W. 681; Haney v. Caldwell, 35 Ark. 156; Martin v. Monger, 112 Ark. 394, 166 S. W. 566.

Appellant, in his various motions to strike all evidence introduced concerning the articles sent to the FBI Laboratory, has relied almost exclusively upon Mapp v. Ohio, 367 U. S. 643, leading case in which judicial developments as to search and seizure were reviewed comprehensively. In the Mapp case, Dollree Mapp was within .her own home. Officers appeared and demanded admittance. She refused because they did not produce a search warrant. After some three hours, and without a search warrant, the officers forcibly entered the home, searching for and obtaining evidence in the form of lewd photographs, subsequently used in evidence. There is no similarity of facts in the instant case with the Mapp case, supra, and action of the Supreme Court of the United States in reversing Mapp v. Ohio, supra, is inapplicable here.

The items in question, examined by the FBI Lab-, were in court during trial, in their original containers from the FBI. They were described in detail in oral testimony of witnesses who had been in custody of or had examined same at the laboratory. The items were not passed to the jury for personal inspection nor were they listed as formal exhibits to the oral testimony adduced concerning same. The direct examination of FBI Special Agent Duckett; his cross-examination and the direct examination of FBI Special Agent Simms had been completed before any objection was made seeking to strike all of their testimony. Counsel for appellant in making an objection told the court that the articles themselves had been introduced in evidence, although improperly. The crux of the evidence as to the items given laboratory examination was the findings as to the stains, body fluids, similarity of hairs, nylon thread, etc. This evidence was susceptible, absent a stipulation of counsel, to introduction solely in oral form. Even if it had been possible to conduct the laboratory tests in the presence of the jury, such testing would have been worthless as evidence without oral testimony explaining the results and findings.

Physical objects explained to the jury may be used in presenting evidence without formal introduction. Meyer v. State, 218 Ark. 440, 236 S. W. 2d 996; Gordy v. State, 264 S. W. 2d 103 (Texas); Underhill Criminal Evidence, 5th Ed., See. 110.

In Featherston v. Jackson, 183 Ark. 373, 36 S. W. 2d 405, this Court said: ‘ ‘ On the trial a rough sketch or map showing tracks or ruts in highway was used by appellee in examining his witnesses. Appellant objected to use of said map. It was not introduced in evidence, but the day after the trial was over he filed a motion to require appellee to file the map. This came too late and the Court correctly denied the motion.”

At no time in this case did appellant ask for the formal introduction into evidence of the items examined by the FBI Laboratory.

We therefore conclude that the trial court did not commit error in refusing to strike the testimony of the special agents of the FBI. All other motions of appellant to strike testimony were likewise properly denied.

IX. INSTRUCTIONS

Appellant complains that certain instructions requested by him were not given. An examination of the record discloses that the subject matter of such requested instructions was fully covered in other instructions given by the court. We have consistently held that it is not error to refuse an instruction where the matters are fully covered by instructions already given. Griffin v. State, 210 Ark. 388, 196 S. W. 2d 484.

X. ARGUMENT OF COUNSEL

Appellant objected to the following remarks of the prosecuting attorney during argument:

u. . . He could have choked her to death as easily as not . . . He could have had a knife in his pocket and pulled it out and she did tell you, I believe, that he had some instrument when he was breaking in the screen. He could have pulled a knife out of his pocket and cut her throat from ear to ear.
THE COURT: He is referring to why she was in fear of her life. Your motion is overruled.”

Once inside the home of the victim appellant had access to all the kitchen knives and other possible weapons therein. He repeatedly threatened to kill both the victim and her father. Under the proof in the case we see no impropriety in the ruling of the court.

In his opening statement counsel for appellant stated:

“It is the position of the Defense, and the Defense will prove, both by cross-examination of the witnesses that the State will call and by evidence that it will produce itself that this alleged crime as described by Mr. Whittington could not, and in fact did not take place as he stated . .. That if in fact an assault did take place that certainly it was not rape, that if any assault did take place it was free and voluntary on her part. I think you will find that the evidence as adduced here in the Court, both the evidence produced by the prosecution and by the evidence adduced by the defendant that if in fact an assault did take place it was a free and voluntary act ...”

An objection was made during closing argument of prosecution and is set out as follows:

“MR. WHITTINGTON: May it please the Court, ladies and gentlemen, when the counsel for the defense made his opening statement he told you that he would prove to you that this matter did not take place as I had told you in my opening statement, that it was a free and voluntary act, and he would prove that it was a free and voluntary act on the part of Stella Spoon, Now, ladies and gentlemen—
‘ ‘ THE COURT: One moment, Mr. Whittington, Mr. Mercer wants to interpose an objection.
“ (Out of hearing of the Jury)
“MB. MERCER: Court please, I object to the prosecuting attorney in his argument to the Jury talking about anything the defendant has to prove because the defendant doesn’t have to prove anything.
“THE COURT: Well, he is repeating what you said in your opening statement. I think he has a right to refer to it and comment on it.
‘ ‘ MR. MERCER: Court please, it is not incumbent upon the defendant to prove anything.
“THE COURT: I understand.
“(MR. WHITTINGTON CONTINUES ARGUMENT:)
“Now, ladies and gentlemen, while it is not incumbent upon the defendant to prove anything, the defendant’s attorney got up here and he told you they were going to prove some things. They don’t have to prove anything, I am the one that has to prove the case, let’s get that clear. The Court so instructed you. But he told you what all he was going to prove and I am still waiting to hear any of that proof. I haven’t heard a word of it. We have people who must have known where the defendant was that night, if he wasn’t where he was supposed to be, I haven’t heard any of them say he wasn’t there ...”

Remarks of the prosecuting attorney were well within proper limits, and we find no eror in same. Ark. P. & L. Co. v. Hoover, 182 Ark. 1065, 34 S. W. 2d 464; Cubreath v. State, 96 Ark. 177, 131 S. W. 676.

XI. SUMMARY

The verdict reached and the sentence imposed do not appear to offend the Constitutions of the State of Arkansas or of the United States; the statutes of Arkansas and decisions heretofore rendered by this Court. Appellant received a fair and impartial trial in every respect.

Judgment is affirmed.

Holt, J., disqualified and not participating.

       Most of the opinions of this Court do not identify the race of the defendant, and it is impossible to obtain accurate information without reviewing the transcripts, which may or may not reflect the race of the accused. Appellant has listed only one execution of a white man for rape (which happened a few years ago), and this Court, only a few months ago, affirmed the conviction of another white man, with death penalty, on this charge. See Fields v. State, 235 Ark. 986, 363 S. W. 2d 905.


author: Ed. F. McFaddin, Associate Justice.

text:
    Williams v. Central Flying Service, Inc.
    5-2993
    368 S. W. 2d 87
    Opinion delivered May 27, 1963.

      Patten <& Brown, for appellant.

      Wright, Lindsey, Jennings, Lester & Shultz, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a workmen’s compensation case in which Mrs. J. R. Williams, and her children, as claimants, seek to recover from Central Flying Service compensation because of the death of Mr. J. R. Williams, who perished in an airplane crash. The Central Flying Service, as the alleged employer, denied liability, claiming that Mr. Williams’ death did not arise out of and in the course of his employment (§ 81-1305 Ark. Stats.).

Mr. J. R. Williams was a full-time police officer of the City of Little Rock, but was extremely interested in aviation; and sometimes when not on duty as a policeman, he was employed by the Central Flying Service (hereinafter called “Central”) on a part-time basis. Central paid him $5.00 per hour as an instructor; and when he served as a pilot on a charter plane he received 20% of' the gross revenue for the trip, plus $1.50 per hour for layover time. He had conducted a ground school for student flyers, but no charge for such appears on the books of Central. He held a commercial pilot’s license, a private pilot’s rating, an instrument rating, and an instructor’s rating. He wanted to qualify for a multi-engine rating, but had never done so.

On July 22, 1958 Mr. W. D. Hill, of the Civil Aeronautics Administration, was in Little Rock to examine James McClellan in a test flight with a multi-engine plane. The plane was owned by Central, but was loaned to Mr. McClellan for the test flight. Mr. Hill invited J. R. Williams and H. K. Gilbert to go on the test flight with him and James McClellan, since both Williams and Gilbert desired to eventually obtain a multi-engine rating. Mr. Hill requested Mr. Holbert, President of Central, for permission to take Williams and Gilbert on the flight, and such permission was granted. It was on this flight that the plane crashed, and all four of the occupants were killed. Mrs. Williams and her children claimed compensation from Central.

The Referee (Hon. J. R. Calhoun) held against the claimants; the Full Commission likewise held against the claimants; and the Circuit Court affirmed the Commission. At each stage of the proceedings there were briefs submitted, some of which are in the record before us. Also, the opinions of the Referee, the Commission, and the Circuit Court are in the record. Counsel for both sides have been diligent and thorough in researching the questions presented. On the appeal to this Court, appellants urge two points, which we will list, but treat together in our opinions:

“1. That the death of Jesse Ralph Williams arose out of and in the course of his employment, in that he was doing a thing which his contract of employment expressly or impliedly authorized him to do and that his presence upon the fatal flight was a concurrent or mutual benefit to the Appellee.
‘ ‘ 2. That facts, not being in dispute, create a question of law and the Court on appeal determines the legal question. ’ ’

The claimants insist: (a) that this particular flight was of substantial benefit to Central since by it Williams would gain information that could aid him in passing a test some time later for multi-engine rating; and (b) that because of this substantial benefit to it, Central is liable as an employer. Claimants cite our own cases of Fine Nest Trailer Colony v. Reep, 235 Ark. 411, 360 S. W. 2d 189; Frank Lyon Co. v. Oates, 225 Ark. 682, 284 S. W. 2d 637; and Robbins v. Jackson, 232 Ark. 658, 339 S. W. 2d 417. Claimants also cite many cases from other jurisdictions, some of which are: Wamhoff v. Wagner Electric Corp. (Mo.), 190 S. W. 2d 915, 161 A. L. R. 1454; Kimberly-Clark Co. v. Industrial Comm. et al., (Wis.), 203 N. W. 737; Tallent v. M. C. Lyle & Son (Tenn.), 216 S. W. 2d 7; Phoenix Indemnity Co. v. Industrial Accident Comm. (Cal.), 193 P. 2d 745; Owens v. Bennett Air Service (N. J.), 45 A. 2d 320; Blair v. Shaw (Kan.), 233 P. 2d 731; Garris v. Peoples Service Drug Stores, Inc. (Va.), 174 S. E. 665; Younger v. Motor Cab Trans. Co. (N. Y.), 183 N. E. 863; and Chicago, W. & F. Coal Co. v. Industrial Comm. (Ill.), 135 N. E. 784.

On the other hand, Central claims that Williams went on the flight as an invitee of Hill; that Williams was not on duty for Central at the time; and that Central received nothing for the flight. Therefore, Central insists that the death of Williams did not arise out of and in the course of his employment, but arose only because Williams accepted Hill’s invitation to accompany them as a guest on the flight. Central cites our own case of Woodmansee v. Frank Lyon Co., 223 Ark. 222, 265 S. W. 2d 521; and cases from other jurisdictions, some of which are: Young v. Dept. of Labor and Ind. (Wash.), 93 P. 2d 337; Carroll v. Western Union (Wash.), 17 P. 2d 49; Davlin v. Texas General Indemnity Co., 254 F. 2d 850 (C. A. 5, 1958); Dr. Pepper Bottling Co. v. Chandler (Miss.), 79 So. 2d 825; Taylor v. Taylor Tire Co. (Ky.), 285 S. W. 2d 173; McQuerry v. Smith St. John Mfg. Co. (Mo.), 216 S. W. 2d 534; Miller v. Greene Co. (Pa.), 90 A. 2d 262; Industrial Comm. v. Messinger (Colo.), 181 P. 2d 816; Stuhr v. State Ind. Accident Comm. (Ore.), 208 P. 2d 450; Texas Em ployers Ins. Assn. v. Stillwell (Tex.), 307 S. W. 2d 271; and Buttery. Nolde Bros. (Va.), 55 S.E. 2d 36.

It would unduly extend this opinion to analyze the eases cited by each side, or to undertake to differentiate, on the facts, the various cited cases from the case at bar. After a thorough review of all of the cases, and our own research, we hold that, from all the evidence and circumstances developed in this case, it was for the trier of the facts to draw the inferences and reach the conclusion as to whether the death of Mr. Williams arose out of and in the course of his employment; and we cannot say that such conclusion is without evidence to support it. We like the statement by Professor Larson in his splendid treatise on “The Law of Workmen’s Compensation,” Yol. 1, § 27.31 (a):

“When an employee, by undertaking educational or training programs, enhances his own proficiency in his work, he does in a sense benefit his employer. On the other hand, self-improvement is primarily the employee’s own concern. Obviously the ambitious clerk who is burning the midnight oil studying to become an accountant cannot expect workmen’s compensation if his lamp blows up.”

In the case at bar, Williams was a full-time paid employee of the Little Bock Police Department; and learning to fly an airplane might be of some advantage to the Little Bock Police Department; but it is not claimed that such outside activities of Williams could make the Little Bock Police Department liable under any theory of workmen’s compensation law. Likewise, if Williams obtained a license to fly a multi-engine plane, it might have benefitted Central, if Williams had remained with Central; but it seems to us that the connection between this particular flight and the benefit to Central is a question, the nearness or the remoteness of which rested with the trier of the facts, who found that the death of "Williams did not arise out of and in the course of his employment.

Affirmed.

Johnson, J., dissents.

       Attention is called to the general discussion in 58 Am. Jur. 716 et seq., “Workmen’s Compensation” § 209 et seq.; to the annotation in 123 A. L. R. 1176, “Injury to employee while engaged in an effort beyond the scope of his duties to increase his value to employer as one arising out of and in the course of his employment”; and to comment note in 161 A. L. R. 1461, entitled: “Accidental injury to employee while doing private work for his own benefit, following a continued practice in that regard, in employer’s plant.”


author: George Rose Smith, J.

text:
    Russell v. City of Rogers.
    5-2971
    368 S. W. 2d 89
    Opinion delivered May 27, 1963.

      Jeff Duty, for appellant.

      Scott & Davidson, by: Bob Scott, for appellee.
   George Rose Smith, J.

This is an action hy the City of Rogers to recover judgment for $8,674.00 under an oral contract hy which the appellant Russell agreed to pay the city at the rate of $2.00 a foot for 4,337 feet of sewer line-to be laid hy the city in an undeveloped subdivision owned hy Russell. Russell admits that the line was laid hy the city. His defense is that he was induced hy misrepresentation to enter into the contract. The circuit judge, considering the matter upon the pleadings and upon Russell’s testimony in a deposition offered by the city, sustained the city’s motion for a summary judgment in the full amount sued for.

Our recent summary judgment statute, Act 123 of 1961, is a re-enactment of Rule 56 of the Federal Rules of Civil Procedure. Ark. Stat. Ann. § 29-211 (Repl. 1962). It provides that a summary judgment shall be rendered if the pleadings and proof on file show “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ’ ’ It has been pointed out, under the Federal Rule, that the theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict. Moore’s Federal Practice (2d Ed.), § 56.02 (10). Hence any testimony that is submitted with the motion must be viewed in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party.

When Russell’s deposition is so considered we cannot say that the city was entitled to judgment as a matter of law. Russell testified that the city had planned to lay the sewer line in his subdivision whether he agreed to it or not. He was told by the city’s representatives that the cost would be $4.0,0 a foot and that the city would pay half the cost if he would agree to pay the other $2.00 a foot when the work was completed. If he did not accept that arrangement then he would be required to pay $4.00 a foot for that part of the line apportionable to each lot as the various lots were connected to the sewer mains. Russell said that he was told that all the property owners-were being offered this same choice.

Russell testified that he accepted the first alternative in order to save $2.00 a foot. Before he paid for the completed work, however, he found that he was being discriminated against in that the city was offering to permit other property owners to hook onto the sewer line at any time in the future at a charge of only $2.00 a foot. After discovering this discrimination Russell refused to make the lump-sum payment that he had agreed to make when the work was completed.

The city argues that even if the misrepresentations were made—-and at this stage of the case we must assume they were—they were not material and related only to future matters rather than to existing facts.

Neither point is well taken. A misrepresentation is considered to be material if it would be likely to influence a reasonable person in deciding whether to enter into the proposed contract. Rest., Contracts, § 470; Williston on Contracts (Rev. Ed), § 1490. Russell would undoubtedly have been influenced by the statement that all the property owners were being offered the same choice. If he had known the true facts there was no reason whatever for him to agree to make a cash payment of $8,674.00 as soon as the line was laid, for he could have obtained exactly the same benefits by paying, during a period of years, small installments that could not total more than the amount of the lump-sum charge and would in all probability have been less than that charge.

It is equally clear that the misrepresentation was not merely an expression of opinion about what might happen in the future. It amounted to a positive statement of the method by which the city intended to finance the entire project. Hence the representation pertaining to an existing state of fact upon which Russell was entitled to rely in reaching his decision about the proposed contract.

The appellant closes his brief by asking that the judgment be reversed and that a judgment be entered in his-favor. It is quite apparent, however, that there are a number of disputed issues of fact in the case. Consequently,, just as in cases where a verdict has been erroneously directed in the court below, the cause will be remanded for a. trial on the merits.

Reversed.


author: Paul Ward, Associate Justice.

text:
    Stewart v. Bittle.
    5-3000
    370 S. W. 2d 132
    Opinion delivered May 27, 1963.
    [Rehearing denied September 16, 1963.]

      N. J. Henley and John B. Driver, for appellant.

      Ivan Williamson, for appellee.
   Paul Ward, Associate Justice.

This litigation stems from a dispute over the boundary line between two parcels of land. Appellees contend that a fence, located in the same place for the past thirty years or more, has been generally recognized as the east boundary line of their property during all of said time. Appellant denies this, and contends the fence is some one hundred to one hundred fifty feet east of his true west boundary line.

In order to better understand the issue and the testimony relating thereto, it is necessary to briefly set forth some of the background facts.

Appellees are the sole surviving heirs of J. H. Coe who died in 1946. Shortly before his death he purchased from one D. C. Johnson the land now owned by his heirs. The deed to him described the land as follows:

A strip of land Two (2) acres in width off and across the East side of the Northwest quarter of the Southwest quarter (NW[4 SW%) and the Southwest quarter of the Northwest quarter (SW% NW%) of Section Seven (7) in Township Fourteen (14) North, Range Twelve (12) West, lying North of the North Sylamore Creek Bluff and South, of State Highway No. 66, and containing 13 acres of land, more or less.

It is conceded that one John Stewart and his predecessors in title have, for many years, owned the Southeast quarter of the Northwest quarter of the same section above mentioned. It will be seen from the above that the forty acres belonging to Stewart lies east of and adjoins part of the Coe land. In 1959 appellant bought a parcel of land, consisting of one and eleven-hundredths acres, from his father, John Stewart. No definite description of appellant’s land is contained in the record, but, for the purpose of this opinion, we will assume it lies along the west line of the Stewart forty acres.

When appellant attempted to destroy part of the said fence, appellees petitioned the chancery court to enjoin him. After hearing testimony on both sides, the trial court found that appellees were “ . . . entitled to and are hereby vested with title to . . .” the land west of, and up to, the fence. The trial court’s finding and decree were based on seven years adverse possession by appellees, and also on ‘ ‘ long acquiescence ’ ’ by the owners of two parcels of land.

After a careful review of the testimony we are of the opinion the weight of the evidence supports the court’s finding that the fence was established as the boundary line by ‘ ‘ long acquiescence. ’ ’ The testimony is overwhelming, and in fact it is undisputed, that the fence between the two parcels of land has been in existence continuously and in the same position for more than thirty years. Since 1946 some of appellees have, at different times, lived on the Coe land during which time they have pastured the land, and on occasions they have cultivated the same land. Owners of the Stewart land have at no time during all the years objected to the location of the fence or complained about the occupancy by appellees of the land west of the fence—that is, not until the recent acts by appellant which precipitated this litigation.

It may be conceded, as claimed by appellant, that there never was any express agreement to treat the fence as the dividing line between the two parcels of land. Such an agreement, however, may be inferred by the actions of the parties. In the early case of Deidrech v. Simmons, 75 Ark. 400, 87 S. W. 649, this Court said:

“The proprietors of adjacent lands may by parol agreement establish an arbitrary division line, or an agreement may be inferred from long continued acquiescence and occupation according to such line, and they will be bound thereby. (Citing cases.)
“In Burris v. Fitch, supra, [76 Cal. 395, 18 Pac. 864] the Supreme Court of California held that the acquiescence by a landowner, manifested by silent assent or submission, with apparent consent, for a long period, in the location of a fence as the dividing line between his land and that of the adjoining proprietor, operates to estop him from questioning the correctness of the location.”

On this point, the principle announced in the Simmons case has been approved by us many times. See: Payne v. McBride, 96 Ark. 168, 131 S. W. 463; Robinson v. Gaylord, 182 Ark. 849, 33 S. W. 2d 710; Peebles v. McDonald, etc., 208 Ark. 834, 188 S. W. 2d 289; Lollar v. Appleby, 213 Ark. 424, 210 S. W. 2d 900; Batson v. Harlow, 215 Ark. 476, 221 S. W. 2d 17; and, Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490. In the last cited case, the trial court held a fence had not been accepted as the boundary line, but we reversed the trial court sajdng:

“We have frequently held that when adjoining landowners silently acquiesce for many years in the location of a fence as the visible evidence of the division line and thus apparently consent to that line, the fence line becomes the boundary by acquiescence. ’ ’

In the same case we quoted from Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18, this statement:

“ ‘It is true that in this case the original rail fence line was established without a prior dispute as to boundary but the recognition of that line for the many intervening' years (34 in this case) shows a quietude and acquiescence for so many years that the law will presume an. agreement concerning the boundary. ’ ’ ’

See also Western v. Hilliard, 232 Ark, 535, 338 S. W. 2d 926. There can be no doubt, in this case, that the fence was visible, that it was in place for at least thirty-four years, and that the owners of the land east of the fence “silently acquiesced” in the location of the fence.

Appellant called as a witness the county surveyor and offered to introduce a survey of the subject lands on file in his office. The trial court refused the proffered survey and appellant assigns this action as reversible error. For several reasons, we are unable to agree with appellant. In the first place, what the official plat showed was immaterial, since appellees did not claim the fence was located on the true line. In the second place, since appellant did not set out what the survey would have shown relative to the position of the fence and the true line we cannot say appellant was prejudiced by its exclusion. In Wallace v. Riales, 218 Ark. 70, 234 S. W. 2d 199, we said:

“We have repeatedly held that an objection to the exclusion of testimony cannot be considered on appeal in the absence of a showing of what the testimony would have been. ’ ’

See also Weston v. Hilliard, supra.

It is our conclusion therefore that the decree of the trial court should be, and it is hereby, affirmed,.


text:
    Caldwell v. Board of Election Commrs.
    5-3014
    368 S. W. 2d 85
    Opinion delivered May 27, 1963.

      Richard W. Hobbs, for appellant.

      R. Julian Glover, for appellee.
   Paul Ward, Associate Justice.

One phase of this litigation has already been before this Court. In the case of Garland County Board of Election Commissioners v. Ennis, 227 Ark. 880, 302 S. W. 2d 76, we held that the matter of abolishing certain townships (and combining them with other townships) was properly before the circuit court on appeal from the county court.

Upon remand the circuit court heard testimony from those opposing abolition of the townships, overruled their motion to dismiss, and then affirmed the order of the county court of December 5, 1956 which abolished certain designated townships and consolidated them with other townships.

The appellants, who are citizens and taxpayers of the abolished townships, seek, on appeal, to reverse the judgment of the circuit court on the grounds hereafter discussed.

One. The primary contention of appellants is that Ark. Stat. Ann. § 18-101 (Repl. 1956) does not invest the county court with power to abolish townships. This section reads as follows:

‘ ‘ The county court of each county in this state, shall from time to time, as occasion may require, divide the county into convenient townships, subdivide those already established, and alter township lines.”

Although this section has apparently never been construed by this Court, we think its language, when read together with related sections, makes appellants’ contention untenable. It will be noted that under the quoted section the county court not only has the power to make the initial division, but it also has the power to make divisions “from time to time.” We can only conclude from the wording of the section that the legislature meant to give county courts full power over formation of townships in their respective counties—including the power to abolish townships already formed. Section 18-103 directs the county clerk to report to the Secretary of State the establishment of any “new township” which seems to confirm what we have just said. Actually the county court’s order “abolishes” nothing of substance, but merely assigns a name to a newly formed township.

Two. Appellants next challenge the sufficiency of the evidence to sustain the judgment of the circuit court. The petitioners, in asking the county court to abolish certain townships and combine them with others, gave as justification the improved conditions of transportation and the financial savings that would result to the county. This was not questioned by appellants. However, they presented testimony by residents of the several townships to show certain inconveniences would result to the people affected. In Davis Township some people would have to travel eight to twelve miles further to vote; in Wheatley Township some would be forced to travel about six miles further; In other instances the extra distance for some to travel was said to be from one to seven miles. On the other hand there was no showing that, with improved roads and improved modes of transportation, these people would be seriously inconvenienced. In the face of the record, as above indicated, we cannot say there was no substantial evidence to support the judgment of the trial court. In the case of Barker v. Wist, 163 Ark. 511, 260 S. W. 408, this Court considered an appeal from the circuit court on a matter which had been appealed to it from the county court. In that case we said;

“It is from the circuit court that the appeal comes to this court, and we do not try the case de novo, and . .. we do not, on appeal from the circuit court to this court, consider the question of the preponderance of the testimony. ’ ’

Three. Appellants say the trial court failed to pass upon appellants ’ motion to dismiss and upon Giles Evans-’ intervention because the court was of the opinion those questions were foreclosed by our opinion in the Ennis case, supra. It is contended this was error on the part of the trial court. An examination of the written findings included in the judgment negates this contention. A portion of such findings reads: “. . . the motion to dismiss filed herein on behalf of the respondents was considered by the court and the same was denied, and the motion to dismiss filed herein on behalf of - the intervenor was likewise considered by the court and the same was denied.”

The trial court’s judgment, in part, reads: “. . . the order of the Garland County Court, dated December 5, 1956, is in all things affirmed and approved.” Finding-no error, we affirm the judgment of the trial court.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Hendrickson v. Duncan.
    5-3015
    370 S. W. 2d 131
    Opinion delivered May 27, 1963.
    [Rehearing denied September 9, 1963.]

      Francis T. Donovan, for appellant.

      Virginia II. Ham, for appellee.
   Sam Robinson, Associate Justice.

The issue is whether appellee, Floyce Duncan, shall be required to pay part of the fee for the attorney employed by the appellant, Hendrickson, to take the necessary legal steps to partition 117.90 acres of land. Appellant owns 74/144, appellee owns 60/144, and others own 10/144 of the property. The chancellor held that the proceeding is adversary and that, therefore, appellee is not liable for a pro rata part of the fee for the attorney employed to prosecute the partition proceeding.

Hendrickson has appealed.

The action was instituted by appellant, Hendrickson, filing a complaint in the Chancery Court January 18, 1962 in which he alleged the interest owned by himself, Mrs. Duncan, and others, and asked for partition. Summons was issued and served on appellee as one of the owners. The complaint prays that “partition of said lands be made according to the respective rights of the parties aforesaid, or, if it be found that such partition cannot be had without material injury to the rights of the parties hereto, that said lands be sold and that the proceeds of such sale be divided among said parties ...”

Appellee, Mrs. Duncan, immediately employed an attorney to represent her, and on February 9, 1962, filed a separate answer in which she asked that she be reimbursed for certain expenses she had incurred in connection with the property and asked that the property be partitioned. Everyone concerned must have understood that although Mrs. Duncan wanted the land itself divided among the owners, she strenuously objected to the land being sold and the proceeds divided. The case was therefore set for trial; the trial was held on April 4, 1962; and the property was finally sold under order of the court.

Mrs. Duncan testified at length on direct and cross-examination. It is clear from her testimony that the proeeeding is adversary. She did not want the property sold as a unit; she wanted to divide it and was willing to take any part; in fact, she offered to take less than the interest she owned if it was divided. Although she was not living on the property at the time suit was filed or at the time the case was tried, she had lived on it for a long time, from 1928 to 1955. She testified that to her the land had a great sentimental value and that she hoped to go back there and retire. She stoutly resisted the sale of the land.

Ark. Stat. Ann. § 34-1825 (Repl. 1960) provides: “Hereafter in all suits in any of the courts of this State for partition of lands when a judgment is rendered for partition, it shall be lawful for the court rendering such judgment or decree to allow a reasonable fee to the attorney bringing such [suit], which attorney’s fee shall be taxed as part of the costs in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned.” This court has held, however, that the foregoing statute is not applicable in an adversary proceeding. Warren v. Klappenbach, 213 Ark. 227, 209 S. W. 2d 468.

The chancellor’s finding that the proceeding is adversary is not contrary to a preponderance of the evidence. Appellee is therefore not liable for a part of the attorney’s fee.

It might be added that Act 518 of 1963, dealing with attorneys’ fees in a partition action is not applicable here as it did not become effective until this matter had been adjudicated.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Collie v. Little River Co-Op
    5-2991
    370 S. W. 2d 62
    Opinion delivered May 27, 1963.
    [Rehearing denied September 9, 1963.]

      Bruce Ivy, for appellant.

      Ed B. Cook, for appellee.
   Jim Johnson, Associate Justice.

Appellants, Jessie Collie and others, are preferred stockholders in appellee, Little River Cooperative, Inc., and are seeking an accounting and an order compelling appellee to comply with its articles of incorporation and by-laws, which provide that an amount not exceeding six per cent of the par value of the fully paid up preferred stock shall be set aside for payment of dividends on such stock, which dividends shall have preference over all other dividends and distributions, and that after such payment there shall be first reserved an amount equal to not less than five per cent of the net savings (net profits) for the purposes of establishing and maintaining an allocated reserve of not less than twenty-five per cent of the aggregate value of all outstanding stock, and that whenever the total amount exceeds this twenty-five per cent the board of directors may apply such excess to paying off ratably by years the oldest outstanding preferred stock in the same order as originally issued. In addition to an accounting, appellants prayed that appellee be enjoined from distributing any patronage refunds (an annual refund to customers of the gin) until the six per cent dividends have been paid, that appellee furnish appellants a financial statement of the corporation, that appellee be ordered to cancel all preferred stock issued in lieu of cash patronage refunds during those years that the business operated at a loss, that appellee be required to build up and maintain an allocated reserve of not less than twenty-five per cent of the aggregate par value of all the stock, and that appellee be ordered to apply all of the excess of the twenty-five per cent to redemption or retirement of preferred stock in accordance with the bylaws. The trial court found the issues in favor of appellee and dismissed the complaint, from which appellants appeal.

For reversal appellants contend that the trial court erred by ruling, in effect, that appellee’s directors had not abused their discretion in the matters of dividends and maintaining the reserve, or that appellants failed to show such abuse.

The Little Biver Cooperative, Inc., Avas organized in 1946 under Act 116 of the Acts of 1921 (Ark. Stats. §§ 77-901 et seq.), Cooperative Marketing Associations, which provides that five or more persons engaged in the production of agricultural products may form a nonprofit, cooperative association for processing, harvesting, marketing, etc., the products of the members. The principal products of this cooperative are cotton and cotton seed. It is empowered to do business with nonmembers so long as the business transacted with nonmembers is not greater in value than that transacted Avith members. The authorized 100 shares of common stock may be oAvned only by producers who agree to patronize the co-op, and no one may hold more than one share, or transfer it without approval of the board of directors. Common stock does not bear dividends.

Article 7, Sections 3 and 4 of the articles of incorporation read as follows:

“Section 3. The preferred stock of the association shall bear non-cumulative diAddends not to exceed six per cent (6%) per annum if earned and declared by the board of directors: and such dividends shall have preference over all other dividends or distributions thereof declared in any year. At the discretion of the board of directors, all dividends on preferred stock, or any part thereof, may be paid in additional certificates of preferred stock and/or credits on preferred stock. The preferred stock shall carry no voting rights, and such stock, or any part thereof may be redeemed or retired upon call of the board of directors from time to time, provided said stock is called and retired in the same order as originally issued. All such preferred stock so retired shall be paid for in cash at the par value thereof, plus any dividend declared thereon and unpaid; and such stock shall not bear dividends after the date fixed in the call for its retirement. Upon distribution of the assets of the association, in the event of dissolution or liquidation, the holders of prefererd stock, plus any dividends declared thereon and unpaid, before any distribution is made on the common stock.
“Section 4. After providing for dividends on preferred stock if earned and declared by the board of directors, any balance of annual net income then remaining shall be allocated and/or credited to all patrons, members and non-members alike, on a patronage basis, including such amounts as may be set aside in reserve by the vote of the directors. Any distribution of reserved and other allocated savings at any time shall be made on the basis of patronage in such methods as may be prescribed in the by-laws or ordered by the board of directors. ’ ’

By-Laws Article X, Section 2, Allocation of Savings, reads as follows:

“The net savings, determined in the manner provided for in Section 1 of this Article, shall be allocated and distributed in the following order and manner:
“(a) An amount not exceeding six per cent (6%) of the par value of the fully paid-up shares of preferred stock outstanding shall be set aside for payment of dividends on such stock.
“(b) The remainder of the net savings shall be allocated to all patrons of the association on a patronage basis. The basis of allocation shall be prescribed by the board of directors and may show the division of net savings of each activity, or business of the association.
“(c) Before any distribution is made of the net savings after provision for the payment of dividends on stock, there shall first be reserved an amount equal to not less than five per cent (5%) of the net savings for the purpose of establishing, building up and maintaining an allocated reserve of not less than twenty-five per cent (25%) of the aggregate par value of all outstanding capital stock. Such deduction shall be made from the net income of each activity or business of the association as prescribed by the board of directors.

Appellants own about 2.3% of the preferred stock of the co-op, which they obtained in 1956. The co-op paid a 5% dividend on preferred stock in 1956, 4% in 1957, 2% in 1958, none in 1959, 2% in 1960, 3% in 1961 and 4% in 1962.

The general reserve of the association was approximately $4,000.00 as of March 31, 1961 (the end of the fiscal year). Over the years, losses resulting from various ventures of the co-op in the amounts of $5,000, $16,-000 and $1,000 have been charged against the general reserve. According to the testimony of the co-op manager, there would have been approximately $29,000 in the general reserve as of March 31, 1961, if these losses had not been deducted from the reserve.

In 1960 the net savings (profits) was $21,744.52; a 2% dividend, $4,100.00, was distributed to the owners of the 16,790 shares of outstanding preferred stock; the balance of the net profit ($17,744.52) was distributed to the 26 member and the few non-member patrons, 95% in cash and 5% in the general reserve to the patrons’ credit. In 1962 the net savings (profit) was $44,157.96; a 4% dividend, $8,200.63, was paid to the preferred stockholders ; $34,752.50 was distributed as advance patronage refunds. These years were selected at random from the record before us.

Appellants contend that this method of distribution of savings discriminates against the preferred stockholders in that there is no prospect for retirement or redemption of the preferred stock, and that although the co-op has shown a profit every year except 1959, a 6% dividend has never been paid, all of which is contended to be an abuse of discretion.

The preferred stock is non-voting stock.

From the record it is clear that the operation, management and control of this enterprise is absolutely vested in the hands of some 26 owners of common stock. From this group has been selected the board of directors who are responsible for the handling of the funds of the co-op. These people along with five or six non-members generally constitute the patrons of the gin here in question. It is undisputed that for many years the gin earned more than enough to pay the maximum six per cent dividend to the preferred stockholders, (and to set aside the minimum five per cent of profits for the allocated reserve), but rather than pay this amount the board voted to pay to themselves and the other patrons of the gin a lion’s share of the savings. One of appellee’s directors testified that he owns one share of common stock — one $100 share — and has no preferred stock; that for $100 he got in on the operation and last year alone (1961) saved $3,800.00. Appellee’s explanation of the handling of the funds of the gin in this manner was, “In order to keep the ginnings up [retain their patrons] so we can pay anything. If we pay six per cent every year, there would come a time when there wouldn’t be any earnings left to pay anybody anything.” Following this testimony the manager of the gin testified that, “We are putting in new high capacity machinery at a cost of $101,000.00, in order to take care of the business. . . . We lost a thousand bales or better last year in not being able to gin it.” Each year at the annual meeting, according to the testimony of one of the directors, the matter of setting up a fund to retire the preferred stock is brought up, and always voted down.

The co-op was built with borrowed money, that is, preferred stock, and there is now outstanding 16,790 shares of preferred stock representing, at $10 per share, $167,900.00. The 26 active and voting members of the co-op each have one share of common stock worth $100.00, for a total of $2,600.00. (Some of the active members also own substantial amounts of preferred stock. This is not in issue.) The co-op manager testified that there is no market value for the preferred stock. The C. P. A. for the co-op testified that based on ordinary losses, (under the system of distribution practiced by the co-op) it would be very hard to ever build up the general reserve to twenty-five per cent.

It is axiomatic that the owners of a profitable business are entitled to a reasonable share of the profits of that business as well as being able to sell their interest in that profitable business. That is one advantage of our capitalistic system. In the instant case, appellants have received some share of the profits, but have so far been effectively denied any assurance that their stock will be redeemed, while the active members enjoy a profitable return from the investment of the preferred stockholders, all of which impels us to the conclusion that appellee’s directors abused their discretion in failing to develop or maintain a rational balance between the amounts paid the preferred stockholders and the active members, and in failing to provide, maintain and build the allocated reserve required by the articles of incorporation.

We consider this case to be controlled by Driver v. Producers Cooperative, 233 Ark. 334, 345 S. W. 2d 16, and remand the cause for further development in the light of that opinion.

Reversed and remanded.


text:
    Scott v. Vuurens.
    5-3006
    368 S. W. 2d 80
    Opinion delivered May 27, 1963.

      Digby & Tanner, for appellant.

      James L. Sloan and Wright, Lindsey, Jennings, Lester & Shtdts, for appellee.
   Jim Johnson, Associate Justice.

This is a suit to foreclose a materialman’s lien. Appellant James S. Scott, doing business as Scott Lumber Company, filed suit in Pulaski Chancery Court on May 18, 1962, against appellees, Cornelias Vuurens and Violet K. Vuurens, his wife, Weston R. Coon and Ruth L. Coon, his wife, and Republic Investment Company of Arkansas, seeking-judgment for $5,234.46 against Vuurens and in rem against real property now owned by the Coons and mortgaged to Republic Investment Company, for materials furnished between September 7, 1961 and May 7, 1962, for construction of a house at 3624 Central Street in Little Rock. When building was commenced, Vuurens owned the property and had obtained a construction money mortgage for $7,500.00 from Republic on August 28, 1961. In March when the house was near completion, it was sold to the Coons who executed a mortgage to Republic for $12,100.00, who in turn released Vuurens’ construction money mortgage. Appellant sought to have his judgment (when obtained) be declared paramount to the Coons’ and Republic’s interests in the property, and prayed that the property be sold if the judgment be not satisfied within a fixed time. The Vnurens answered with a general denial and alleged affirmatively that the debt sued on had been fully paid and extinguished. The Coons filed a general denial, and Republic Investment Company admitted the two mortgages, and alleged that the release and satisfaction of the former mortgage was invalid because of failure of consideration and misrepresentations on the part of Vuurens and prayed that the release of the August 28, 1961 construction money mortgage be set aside and that mortgage be reinstated.

Vuurens then filed a counterclaim against appellant alleging that he (Vuurens) conveyed certain other property in which he owned an interest to appellant in full satisfaction of the debt, and that, if the court should sustain appellant’s complaint, then that conveyance should be cancelled.

On October 29, 1962, the Chancellor entered a decree finding that the debt of Vuurens had been fully paid and extinguished, dismissed the complaint with costs taxed against appellant, and dismissed the counterclaim as moot. From that decree comes this appeal.

The principal question involved is whether the parties (appellant and Vuurens) intended that the conveyance of the interest of Vuurens in the other property to appellant be in complete satisfaction of the debt here sued on.

Appellant and Vuurens had been doing business together for three or four years, Vuurens having built 12 houses and appellant furnishing much of the material. At the time Vuurens started to build the Central Street house, he owed appellant a considerable amount of money for materials furnished to other jobs on which the lien time had run. On November 9, 1961, Vuurens paid appellant $1,715.44, and on December 15, 1961, $750.00, which reduced Vuuren’s total indebtedness to appellant to approximately $10,000.00. The part of the total indebtedness sued for here for materials and advances furnished for the construction of the Central Street house is $5,234.46.

Vuurens had purchased ten acres of property in southwest Little Rock from Robert Lowe for the sum of $19,000.00, payable $60 a month, on which he still owed about $7,000.00. Since purchasing the Lowe property, Vuurens had improved and sold two front lots which faced on a highway, leaving about 8% acres in the tract. Vuurens became three months in arrears in his payments to Lowe, and Lowe elected to accelerate the debt and filed suit in Pulaski Circuit Court on February 27, 1962, for the balance owed. An answer was not filed on behalf of Vuurens, however Lowe’s attorney testified that he advised Vuurens’ attorney it would not be necessary to file an answer if the arrears were paid to date. Lowe’s attorney was later advised by Vuurens’ attorney that appellant might pay the arrearage and assume the obligation. On April 20, 1962, Lowe and his attorney went to appellant’s office where appellant exhibited a quitclaim deed from Vuurens and his wife and stated that he and Mr. Vuurens had worked out an arrangement whereby he (appellant) was to make an assumption of this obligation. Appellant thereafter paid the arrears, attorneys fee and court costs and assumed the obligation.

There is no dispute about the amount that Vuurens had purchased from appellant, or the amount he paid appellant, and that Vuurens and his wife conveyed the Lowe property to appellant. Virtually all other testimony appears to be disputed.

The value of Vuurens’ equity in the Lowe property is disputed — the testimony ranged from $1,000 (appellant’s testimony) to around $10,000 (Vuurens’ testimony) . Expert witnesses for both appellant and appellee testified as to the value of the property in acreage. This 8% acres was located adjacent to a new subdivision (Twin Lakes). One of appellant’s experts testified on cross-examination that there would be between 3 and 3% lots per acre involved in this property and that he knew that two lots were sold on this property (out of the original 10 acres) where the F. H. A. permitted $1,500.00 per lot evaluation.

Vuurens testified that he conveyed the Lowe property to appellant in satisfaction of his entire account, including the account here sued on, and also testified that after the conveyance he received no further statements of account from appellant. Appellant testified that Vuurens told him he had lost the property because his attorney hadn’t answered the suit and that the only consideration for the quitclaim deed was his (appellant’s) paying the arrearage, court costs and attorneys fee and assuming the balance of the obligation. However, in appellant’s deposition taken prior to trial, it was shown that appellant testified in eight different places that he had paid Vuurens a $100.00 consideration mentioned in the deed. Appellant therein stated that he paid the $100.00 “by cash”; that the record “wouldn’t show up in my company books ’ ’; that he ‘ ‘ just paid him” and “without receipt”; that the $100.00 was the only consideration; that he told Vuurens the $100.00 was all that he was to get; that he paid Vuurens the $100.00 when the deed was delivered to him at the appellant’s store; and that the phrase “$100.00 and other valuable considerations sounds like a legal term to me.” Yet at trial the testimony was that it “gradually came back to him that he had not paid Vuurens $100.00.” Appellees argue in effect, and we agree, that it would be inconsistent for appellant to maintain that he paid Vuurens $100.00 and at the same time contend that Vuurens owed him over $10,000.00 on several accounts.

Appellant testified that since Vuurens did not direct him where to apply the November and December payments, he applied them against Vuurens’ old accounts. The escrow agent for the National Abstract Company (handling disbursement of the construction money) testified that she called appellant just- after each of the payments to be sure that the payments were credited against the account on the Central Street house. She also testified that prior to but while in the process of closing the Coon loan, she called appellant to be sure Vuurens was paid up, and that appellant advised her that his account was “closed in full.” Appellant while admitting the telephone conversation with the escrow agent vigorously disputed the contents thereof. The record reveals that approximately two months elapsed between this conversation and the filing of the present law suit. In. the meantime, on April 20, 1962 the quitclaim deed to appellant was executed.

Testimony on other material points is similarly conflicting. This court stated in Dearien v. Lancaster, 221 Ark. 98, 252 S. W. 2d 72, “With the testimony about evenly balanced we are not in a position to say that the chancellor’s conclusions were wrong. The vital issue was that of credibility, and his opportunity to decide that question was immeasurably better than ours.” We have examined the record and testimony closely, and on trial de novo we cannot say that the chancellor’s findings are against the preponderance of the evidence.

Affirmed.


author: Frank Holt, Associate Justice.

text:
    Cummings v. United Motor Exchange.
    5-3007
    368 S. W. 2d 82
    Opinion delivered May 27, 1963.
    J. Fred Jones, for appellant.

      8. Hubert Mayes and 8. Hubert Mayes, Jr., for appellee.
   Frank Holt, Associate Justice.

This is a Workmen’s Compensation case in which the claimant-appellant, Ernest J. Cummings, contends that the payment of compensation benefits to him by the appellee, Maryland Casualty Company, was terminated prematurely.

On March 4, 1960, while employed by the appellee, United Motor Exchange, Inc., the appellant suffered a back injury when his foot slipped in some oil as he attempted to turn an automobile motor on the floor. As a result of this injury the appellant was paid Workmen’s Compensation benefits for a period of twenty-five weeks or until September 1, 1960. Appellant contends that the payments for temporary total disability and reasonable medical expenses should have continued until March 6, 1961. The Referee disallowed his claim, the full Commission agreed with the Referee, and from the Circuit Court’s judgment affirming the Commission comes this appeal.

The appellant urges for reversal the sole point that there is no substantial evidence he had sufficiently recovered from his unquestioned compensable injury to enable him to return to work on September 1, 1960.

The appellant had previously sustained a back injury in 1956 for which he was being paid a 10% permanent partial disability at the time of the present injury. Following the present injury and until he was discharged by I)r. Richardson it appears that he was hospitalized three separate times for observation and treatments consisting of physiotherapy and traction because of his persistent complaint of being in pain. He was examined by various doctors, including two neurosurgeons, who reviewed spinal myelograms made of him in August, 1957, and in June, 1960. They found no evidence of a herniated or ruptured disc. It is undisputed that his pain and discomfort persisted.

Dr. Richardson, in his final narrative report on July 19, 1960, wrote that upon seeing the appellant on July 12th. he ‘ ‘ was still complaining of discomfort in his right hip with activity” and “I discussed the problem again with Mr. Cummings and advised him to attempt to return to normal activity in hopes that this discomfort would disappear. As stated before, I am unable to find any physical cause for this man’s symptoms and I do not believe that he has any permanent disability.” Later he submitted his Surgeon’s Final Beport and Bill on a printed form according to which he had last seen the appellant on August 17, 1960 in his office. He indicated on this form that he had discharged him as cured and ready to return to work as of September 1, 1960. He did not see the appellant on this date or thereafter. The appellant did not return to work. His undisputed testimony is that following his discharge the discomfort and pain continued and as a result of his “misery” he was so disabled he could not and did not work and was confined to his house until December 27, 1960. On that date the appellant was admitted to the Veterans Administration Hospital where another spinal myelogram was made which then did not disclose a protruding disc. However, because of appellant’s persistent complaint upon physical therapy activity, a re-evaluation of this myelogram did show “L-5, S-l right protruding disc, and on 2-3-61 patient was taken to the operating room where he had an extruding nucleus pulposus removed from the L-5, S-l interspace on the right.” This operation relieved appellant of his pain.

In August, 1961, one of the physicians who originally observed the appellant following his present injury reviewed the Veterans Administration Hospital records and confirmed that the VA spinal myelogram “did show a definite defect at the L-5, S-l interspace on the right side.” He reiterated that the spinal myelograms made in August, 1957 and June, 1960 did not show such abnormality and, further, any disability in June, 1960 would have to be based on claimant’s subjective complaints. Dr. T. M. Fletcher, who performed the successful operation, reported:

‘ ‘ This man who has had symptoms of low back pain and sciatica for some time was operated on 2-3-61 with the removal of a herniated nucleus pulposus on the L-5, S-l interspace on the right. This was a fairly large lesion and was undoubtedly the cause of his severe symptology. His post operative course was quite good and he was free of pain. * * * At the time of the most recent back strain which occurred in March, 1960, while working, he probably sustained the extrusion of the disc, and from that time up until the time of this hospitalization was disabled with severe back and leg pain.”

We recognize the rule that a decision of the Workmen’s Compensation Commission will be affirmed if there is any substantial evidence to support it. Aluminum Company of America v. Williams, 232 Ark. 216, 335 S. W. 2d 315; McBride v. Ark-La Industries, 235 Ark. 675, 361 S. W. 2d 532. However, whether the evidence is substantial in nature is also a question of law. Boyd Excelsior Fuel Co., v. McKown, 226 Ark. 174, 288 S. W. 2d 614. In the case at bar we think there is no substantial evidence to support the Commission’s finding that appellant’s healing period ended September 1, 1960. It is true that various examining physicians were of the opinion that the spinal myelograms made in August, 1957 and June, 1960 did not disclose a herniated disc. Neither did the spinal myelogram made in January, 1961, at the Veterans Administration Hospital upon first interpretation. The crux of this case, however, is the question as to when appellant was physically able to return to work. The existence or non-existence of a herniated disc is not the primary issue — it is only a part of the total picture. Upon reviewing the evidence in this case we consider it to be overwhelming, and in fact the medical evidence so reflects, that the appellant was suffering pain and discomfort from an admitted compensable injury during all the time he was hospitalized or under observation. There is no evidence in this record to refute his claim that he continued to suffer pain and discomfort after September 1, 1960. His claim of disability is abundantly corroborated by his admission into the Veterans Administration Hospital on December 27, 1960 where he was hospitalized and treated for several weeks before Dr. Fletcher operated and removed a large lesion on February 3, 1961. Following this the appellant described his condition as follows: “I feel like a new man altogether since the operation.”

It is the intent and purpose of our Workmen’s Compensation laws that they should be liberally construed and, further, that doubtful cases are to be resolved in favor of the claimant. Boyd Excelsior Fuel Co., v. McKown, supra; McBride v. Ark.-La Industries, supra.

The judgment of the Circuit Court is, therefore, reversed and remanded with directions that the Circuit Court remand the case to the Workmen’s Compensation Commission with directions to award the appellant temporary total disability from September 1, 1960 to March 6, 1961, together with reasonable medical expenses. Reversed.


author: Carretón Harris, Chief Justice.

text:
    Vire v. Vire.
    5-3011
    368 S. W. 2d 265
    Opinion delivered June 3, 1963.

      Robert E. Irwin, for appellant.

      D. B. Bartlett, for appellee.
   Carretón Harris, Chief Justice.

Appellant and appellee were married in Johnson County on June 9, 1962. The instant suit for divorce was instituted by appellee on August 30, 1962, a few days after the parties had separated, in which she alleged general indignities. Appellant answered with a general denial, specifically pleaded condonation, and filed a “counterclaim” for divorce, likewise alleging general indignities pursued until his condition in life had become intolerable. Following the filing of amendments to the pleadings, the cause proceeded to trial. At the conclusion of the evidence, the court entered its decree, granting appellee an absolute divorce, and from such decree, appellant brings this appeal.

We are unable to consider this appeal on its merits since appellant has failed to comply with Rule 9 (d) of the rules of this court. We have stated numerous times that we are not required to explore a record that is presented to us, but that the duty rests on appellant to furnish this court such an abridgment of the record as will enable us to understand the matters presented. See Allen v. Overturf, 236 Ark. 387, 366 S. W. 2d 189, and cases cited therein. The pleadings and decree in this case are abstracted, but there is no abstract whatsoever of the testimony and exhibits which cover approximately 65 pages. A few references are made, in the brief itself, to isolated portions of the testimony, but not to a sufficient extent that we can comprehend the full nature of the evidence. As stated in Reeves v. Miles, 236 Ark. 261, 365 S. W. 2d 460:

“Although the record contains more than fifty pages of pleadings, exhibits, and testimony, appellant has presented us with no abstract of the same. The casual references in the argument to this testimony are not sufficient for us to formulate an informed opinion on the merits of the case. In such a situation this Court has heretofore uniformly affirmed the trial court’s decree or judgment. See: Ellington v. Remmel, 226 Ark. 569, 293 S. W. 2d 452; Porter v. Time Stores, Inc., 227 Ark. 286, 298 S. W. 2d 51; Farmers Mutual Ins. Company v. Watt, et ux., 229 Ark. 622, 317 S. W. 2d 285; and, Anderson v. Stallings, 234 Ark. 680, 354 S. W. 2d 21.”

Affirmed.

       According to appellant’s statement of the case, this “counterclaim” was dismissed prior to the trial. It is not involved in this appeal.