author: George Rose Smith, J.

text:
    Briley v. Chicago, Rock Island and Pacific Ry. Co.
    5-1827
    323 S. W. 2d 934
    Opinion delivered May 11, 1959.
    [Rehearing- denied June 1, 1959]

      Cooper Jacoway, for appellant.

      Wright, Harrison, Lindsey ■& Upton, for appellee.
   George Rose Smith, J.

This is a suit by the appellant, C. H. Briley, for specific performance of an option agreement by which the appellee agreed to sell Briley 7.53 acres of land. Apparently the land has increased in value, so that Briley is'anxious to buy at the contract price, while the railway company is reluctant to sell. The chancellor held that Briley, during the life of the option, failed to fulfill its conditions and hence did not become entitled to buy the property. The correctness of that holding is the only issue on appeal.

There is almost no dispute about the facts. Por some years Briley and several other wholesale produce dealers were engaged in business in the same block in central Little Rock. Certain city health regulations made it necessary for these dealers to find a new location for their markets. The appellee owned a large wooded tract of land in the southeast part of the city, which it wanted developed in such a way as to create railway business. After extended negotiations, during which Briley at first requested 15 acres, the appellee sold Briley 7.53 acres on November 17, 1952.

Briley had not yet begun to improve the tract just mentioned when the parties, on October 30, 1953, executed the option agreement now in issue. This contract recites Briley’s earlier purchase of 7.53 acres and gives him the right to buy an adjoining parcel of the same size for $5,647.50. But to take advantage of the option Briley was required to comply, not later than December 31, 1955, with this language in the agreement:

■“Briley shall have no right to exercise this option and Rock Island shall not be obligated to convey until there is constructed on the lands heretofore conveyed by Rock Island to Briley ... a building or buildings containing a total of at least 28,000 square feet of concrete floor space, and requiring railroad trackage and service, the building or buildings to be constructed substantially in accordance with [a specified architectural drawing] . . . All such buildings shall be built at railroad car height.”

By the spring of 1955 Briley and two other produce dealers, Ambort and Gachot, had built four warehouses on the tract. It is conceded that these buildings contain the required floor space, that they conform to the architectural drawing, and that they were built at railroad car height. The sole dispute is whether three of the four buildings require railroad trackage and service.

At this point we must describe the buildings briefly. Briley built for his own use a large warehouse on the western part of the tract. This building is served on its west side by a spur track which the Bock Island installed at Briley’s expense. There are sliding doors in the west wall of the building, through which goods can be unloaded from freight cars on the spur track. Along the east side of the warehouse is a loading dock for trucks, which Briley uses for the local distribution of produce. It is conceded that this building complies with the contract, in that it admittedly requires railroad trackage and service.

Briley, Ambort, and Gachot each built one of the three smaller buildings, which were placed in a straight line fifty feet from the east boundary of the tract. The fifty-foot strip between these buildings and the edge of the tract was deliberately left vacant so that a railroad spur track could be laid to serve all three buildings; if the track is not installed the strip is wasted. The three smaller buildings are similar to the large Briley building, with sliding doors on the spur track side and truck loading docks on the opposite side.

In April, 1955, all four buildings had been completed and were occupied by four produce dealers — Briley, Ambort, Gachot, and Barker, who had leased Briley’s small building. Briley was using his spur track, but the others brought their produce in and out by truck except for occasional rail deliveries over the Briley spur. Briley, apparently considering that the terms of the option agreement had been met, asked the appellee to convey the second 7.53 acres. The railroad company replied that the conditions had not been fulfilled, as the trackage to the three eastern buildings had not been constructed. Briley then asked that this spur track be installed and offered to pay its cost. The appellee refused to construct the spur, even at Briley’s expense, and further stated in its letter of refusal that the installation of the spur track would not constitute compliance with the option, for the reason that none of the occupants of the three buildings “requires rail service or gives any promise of any significant amount of rail traffic.”

The dispute centers upon the contract’s reference to “a building or buildings . . . requiring railroad trackage and service.” Treating the contract as unambiguous and so not subject to explanation by parol evidence, the appellee argues that a mere lifeless building cannot require rail service, so the language should be construed to mean that the buildings must be occupied by tenants who require that service. This argument is ingenious but not really convincing, especially as the appellee prepared the contract and chose to let the participle “requiring” modify the nouns “building” and “buildings.” It seems plain enough that certain buildings do not require railroad trackage or service, such as dwellings, small stores, service stations, motels, and countless other structures that Briley was obviously precluded from placing on the land if the option was to be exercised. On the other hand, we do no violence to ordinary usage by saying that the Grand Central Station in New York City requires railroad trackage and service if it is to be put to any practical use, and in the same way it is fair to say that three warehouses which were located and built with a view to being easily served by rail require that type of service if they are to be put to their best and most suitable use.

Several considerations persuade us that Briley’s interpretation of the agreement is the right one. First, the active verb in the controversial sentence is “construct,” which strongly suggests that Briley’s duty was to construct rather than to both construct and find tenants acceptable to the railroad company. Secondly, the appellee’s interpretation pretty well makes the clause self-defeating; for Briley cannot obtain the spur track, even at his own expense, until he has tenants that need it, but how is he to obtain those tenants unless he already has the track? Thirdly, to read into the option a condition that the buildings be tenanted gives rise to many unanswered questions, such as how long must the term of a lease be for it to comply with the option agreement, who is to decide whether a tenant requires sufficient railroad service, and so on. If occupancy was to be the test of compliance we should expect these matters to have been dealt with explicitly. We think it reasonable to conclude that the parties simply relied upon the character of the buildings to attract tenants who would need rail service.

Thus if the contract is unambiguous we are of the opinion that Briley has complied with its conditions. That conclusion becomes inescapable if we consider the agreement ambiguous, as it really is, and look to the parties ’ negotiations for an explanation of what they intended by their written words. Ben F. Levis, Inc., v. Collins, 215 Ark. 172, 219 S. W. 2d 762. The parol testimony shows that during the negotiations Briley furnished the railroad with carloading figures for his own business and for that of Ambort, Gachot, and Barker. The weight of the evidence shows that the railroad company understood that these dealers would occupy the buildings and wanted them to accompany Briley to the new location. It also appears that at one point the Rock Island offered Briley a deed to fifteen acres with a clause permitting the grantor to recapture any of the land that was not occupied within five years by terminals or warehouses “requiring railroad trackage and service.” When Briley objected to this clause the railway tendered a supplemental agreement which stated in substance that the condition of the proffered deed would be met if the buildings were constructed in accordance with the architect’s drawing that we have already referred to. It is true that Briley refused both the deed and the supplemental agreement, but they are still competent to show that the appellee then placed upon the words “requiring railroad trackage and service” substantially the same interpretation as that now contended for by the appellant, and that interpretation was communicated to Briley.

Beversed.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Jones v. Wright.
    5-1852
    323 S. W. 2d 932
    Opinion delivered May 11, 1959.

      J. H. Spears and Ralph W. Sloan,- for appellant.

      Giles Bearing, for appellee.
   Paul Ward, Associate Justice.

This litigation was initiated by appellants to have a warranty deed, regular on its face, declared to be a resulting trust. More than one deed is involved but the material facts are the same in each transaction, so we will be concerned with only one deed in this opinion.

On October 20, 1953, Mary Bell McBarton executed a warranty deed conveying certain lands “to Elbert ■Wright and Laura Wright. ’ ’ The said grantees were husband and wife. Although there is a question about whose money paid for the land it will be assumed in this opinion that all the consideration was furnished by the wife.

On March 27, 1957 the wife died intestate survived by her husband, the appellee herein, and by appellants who were her next of kin and in line of inheritance.

On June 24, 1958, appellants filed a complaint in Chancery Court setting forth the above factual situation, asking that a resulting trust be declared in their favor, that the title to the subject lands be quieted in them, and that Elbert Wright (appellee) be ousted from possession of said lands. The allegations in the complaint upon which a trust was predicated were that the wife furnished all the consideration and that title was taken in both names without her knowledge or consent and because of the “connivance and artifice” of Elbert Wright.

To sustain the above allegations, appellants offered the following testimony, in substance: A brother of Laura Wright testified he never heard any discussion by Mr. and Mrs. Wright about the ownership of the lands; that after Mrs. Wright’s death, Elbert said he would give him 20 acres of the land but later changed his mind; that he heard Laura say she was going to buy a farm but didn’t mention Elbert having any part in it. Another appellant stated that after Laura’s death Elbert said they (appellants) could have 20 acres.

Appellee testified: I had $2,000 and Laura had $2,000 and some more and we put it in the First National Bank in both our names; the President of the bank explained that it was a joint account, and that either of us could draw on it, and; subsequent deposits were made, and they both drew on the account. In regard to the purchase of the property in question, appellee stated that the deed was made after consulting an attorney, and his wife was present.

From the above it is obvious that the Chancellor was justified in finding that appellants had not sustained the allegations in their complaint, viz: that the deed was executed without the knowledge and consent of Laura, and that there was connivance and artifice on the part of appellee.

The harden of proving that the deed, made out to appellee and his wife, constituted a resulting trust was upon appellants. In Bogert on Trusts and Trustees, Vol. 2A, pages 490 and 491, we find this statement:

“If the wife pays the price, but has the deed run to herself and her husband as tenants by the entirety or as joint tenants, she is deemed to intend to make a gift to the husband of half the value of the use during their joint lives and of the right of survivorship.”

In Walker v. Walker, 369 Ill. 627, 17 N. E. 2d 567, where the purchase price of land was paid by the wife, the court said:

“'When property is taken in the joint names of husband and wife and consideration is furnished by one of them, there is a presumption of a gift from the one furnishing the consideration . . .”

For other cases affirming the rule above stated see: Legendre v. South Carolina Tax Commission, 215 S. C. 514, 56 S. E. 2d 336, and Nussbacher v. Manderfeld, 64 Wyo. 55, 186 P. 2d 548.

Not only was the burden on appellants, but they were required to offer clear and convincing proof. In Neill v. Neill, 221 Ark. 893, 257 S. W. 2d 26, we said: “The rule is that implied, constructive, or resulting trusts must be established by clear and convincing evidence — something more than a mere preponderance. In Barger v. Baker, 218 Ark. 457, 237 S. W. 2d 37, it was stated “. . . trusts resulting by operation of law must be established by evidence which is full, free and convincing. ’ ’

Weighing the evidence in this case by the rules above set forth, we conclude that the decree of the trial court must be, and it is hereby affirmed.

Affirmed.

MoFaddin, J., concurs.


author: Sam Robinson, Associate Justice. Sam Robinson, Associate Justice.

text:
    Wells v. Planters Lumber Co.
    5-1864
    327 S. W. 2d 1
    Opinion delivered May 11, 1959.
    [Rehearing granted in part September 21, 1959]

      Owens, McHaney, Lofton & McHaney, for appellant.

      H. B. Stubblefield, for appellee.
   Sam Robinson, Associate Justice.

Appellee, Planters Lumber Company, sold to Walter J. Wyma, a contractor, building material used in the construction of a house for appellants, William Hugh Wells and Hazel Louise Wells, his wife, who are hereinafter referred to as Wells. Wyma collected from Wells more than a sufficient sum to pay Planters in full for the material purchased from that company for the Wells job. About the same time Wyma received the money from Wells, he paid Planters an amount sufficient to take care of the material used in the Wells job, but Wyma directed that such sums be credited to other accounts. As a result, the Wyma account with Planters on the Wells job went unpaid. Planters filed this suit to foreclose the material-man’s lien. Wells defends on the theory that his money was used to pay other accounts owed to Planters by Wyma and that Planters knew, or should have known, that Wells’ money was wrongfully used to pay such other accounts. The decree was in favor of Planters, and Wells has appealed.

We held in Long Bell Lbr. Co. v. Auxer, 221 Ark. 672, 255 S. W. 2d 163, that if the materialman knew or by the exercise of ordinary care should have known that a particular property owner furnished the money paid to the materialman by the contractor, it was the materialman’s duty to apply the payment to the account of the property owner furnishing the money.

To determine whether Planters is barred by the principles of equity from enforcing the lien, the evidence must be closely analyzed. There is no controversy about the amount of the account, the giving of timely notice of intention to file the lien, and that suit was filed in due time. The only issue is whether in view of all the facts equity should enforce the lien. The contract price for constructing Wells’ house was $32,500. The job was commenced about the 2nd of January, 1957. On January 15th Wells gave Wyma a check for $7,500, another check for the same amount on January 30th, and still another check for that amount on February 22nd, and later a check for $3,000. It is clear from the-record that Wyma used $4,834.21 of the money that he received from Wells on January 15th to pay Planters on a job known as Lot 3, Block 2, which had been completed in October, 1956. He used $3,115.96 from the $7,500 received from Wells on February 22nd to pay Planters on the White Oak Lane job, which had been completed more than 80 days previously, the time in which the property owner could have been given valid notice of the intention to file a lien. A total of $7,950.17 of Wells’ money was credited to the payment of other accounts owed by Wyma to Planters. This sum is greater than Planters claims is now due on the Wells property. In other words, if Wells should receive credit for the two payments that were credited to other jobs, he would not be indebted to Planters in any amount.

In our opinion, by the exercise of reasonable care Planters should have known that Wells, whose property was subject to a lien that Planters might file, furnished the money that was used in paying off the account on the Lot 3, Block 2 job, and also the White Oak Lane job. In these circumstances it was the duty of Planters to apply to the Wells job the money furnished by him. Employees of Planters deny they knew that Wells was the source of the money used by Wyma to pay off the Lot 3, Block 2 job and the White Oak Lane job. But the circumstantial evidence is completely convincing that the employees of Planters in the exercise of due diligence should have known that Wells was the source of the money used in paying off the other two jobs. In the first place, Wyma was a regular customer of Planters; they had been doing business with him regularly for a long time. They knew, or should have known, that the Wells job was the only one of any consequence that Wyma had during the time the money was received that was used in paying off the other two jobs. These other two jobs had been completed for a considerable time, and although when an account had not been paid it was the invariable custom and practice for Planters to serve notice on the property owner within 80 days after the completion of a job, such notice was not served on the property owners of either the White Oak Lane job or the Lot 3, Block 2 job.

Prom the evidence it can be determined that the failure to give these notices was not an oversight; it was the result of some assurance that the account was going to be paid. We do not think there is any doubt but that Planters knew, or should have known, that the source of the money used in paying the other two jobs was Wells. Employees of Planters gave no satisfactory explanation of the failure to file liens on the Lot 3, Block 2 job and the White Oak Lane job. The only reasonable explanation is that they knew they were going to get the money without the lien, and from all the evidence in this case they should have known that it was Wells’ money that was going to be used. According to the evidence it would have been normal procedure for the people at Planters to talk to Wyma about it. Mr. Barnett, an employee of Planters, testified that he was sure he talked to Wyma about each one of the accounts.

Although the last purchase on the Lot 3, Block 2 job was October 23rd, nothing was paid to Planters on that job until January 17th, two days after Wells paid Wyma $7,500. It is perfectly clear, and completely convincing from the evidence, that Planters would not have let the time run out for giving the notice unless the company had been assured that the money would be paid. It does not appear that anyone gave that assurance except Wyma. It is not likely Planters would have felt assured by any promises from Wyma without knowledge of where he was going to get the money. The facts regarding Wyma’s payment to Planters on the White Oak Lane job of money he received from Wells are practically identical with the facts relating to the Lot 3, Block 2 job.

Subsequent to the transactions heretofore mentioned, Wyma went into bankruptcy and Wells filed a claim for the full amount of the lien Planters had filed against the Wells property. It is suggested by Planters that such action on the part of Wells is an acknowledgment by Wells of the alleged debt to Planters and that Wells is bound thereby. We do not think the filing of the claim by Wells has that effect. It was merely an effort to protect himself, and he might have been guilty of negligence if he had failed to do so.

When all the facts in the case at bar are considered, the rule announced in the Long Bell case is applicable. Planters is not entitled to enforce the lien.

Beversed.

McFaddin, J., dissents.

ON REHEARING

Sam Robinson, Associate Justice.

On rehearing it has been called to our attention that on January 15th, when Wells paid Wyma, $7,500 and Wyma in turn paid Planters Lumber Company $4,834.21 which was credited on the Lot 3, Block 2 job, only $2,274.29 was owed to Planters on the Wells job. Of course, in these circumstances Planters could have applied to the Wells job only the amount of money owed thereon, $2,274.29. Cooper v. Sparrow, 222 Ark. 385, 259 S. W. 2d 496. In the original opinion Wells was given credit for the entire $4,834.21. Wells was, therefore, erroneously given credit for the difference between $2,274.29 and $1,834.21, which is $2,559.92. Wells should not have been given credit for this $2,559.92 and Planters is entitled to a lien for that amount. The petition for rehearing is granted to that extent.


author: Jim Johnson, Associate Justice.

text:
    Williams v. State.
    4934 and 4935
    323 S. W. 2d 922
    Opinion delivered May 11, 1959.
    [Rehearing denied June 1, 1959]

      George F. Edwards and Daisy Olson, for appellant.

      Bruce Bennett, Atty. General, by Bussell J. Wools, Asst. Atty. General, for appellee.
   Jim Johnson, Associate Justice.

Appellant, William R. Williams, was charged by separate informations with the commission of the following crimes: 1. Possession of beer in dry territory in excess of three gallons. 2. Possession of liquor in dry territory in excess of one gallon. 3. Transporting beer in dry territory in excess of three gallons without being a duly bonded carrier or duly licensed by the Public Service Commission to transport beer. 4. Transporting liquor in dry territory in excess of one gallon without being a duly bonded carrier or duly licensed by the Public Service Commission to transport liquor. The causes came on for trial and the jury found Williams guilty on all four charges. From fines totaling $1,500 comes this appeal.

For reversal, the following six points were urged.

1. The trial court erred in refusing to grant the appellant’s motion for instructed verdicts of not guilty in both cases now on review. 2. It is against the policy of the law to multiply or carve different crimes out of one act. 3. The trial court erred in ruling that the court could take judicial notice that Little River County was a dry county. 4. The subdivision of one offense into many charges violates the rule against double jeopardy. 5. Evidence obtained in violation of the constitutional requirement that there be a search warrant is illegal, and inadmissible. 6. It was reversible error to permit officer Eddie Craig to testify when he had remained in the courtroom in violation of the law, the rule having been invoked.

The facts are briefly as follows: On the morning of September 3, 1958, appellant was driving his pink Oldsmobile 98 automobile (which was equipped with overload springs) north on Highway No. 71 about five miles south of Ashdown. A deputy sheriff of Little Eiver County was driving south on the same highway and spotted appellant’s car; he turned around and pursued appellant’s car at a speed up to 120 miles per hour without gaining much on him. The pursuit continued into Ashdown with appellant running a number of stop signs and warning devices. Appellant finally turned into a dead end street where he was apprehended after he had turned his automobile around and attempted to drive out past the arresting officer. The officer caused appellant to get out of his automobile and placed him under arrest. The officer testified that at this point: “I said, ‘come over here,’ and he did. I said ‘turn around’; I said ‘put your hands on the top of my car,’ and I searched him. I said ‘I’m going to look in your car now,’ and he said, ‘Hell, I’ve got some whiskey and beer in there.’ ” The deputy sheriff, aided by the city mar-shall of Ashdown, then removed Williams to the jail along with 25 cases of beer and over 4 cases of whiskey found in Williams’ car.

Point one urged by appellant for reversal will be discussed last. Points two and four refer to the same issue and will be here discussed together.

Double Jeopardy: Appellant urges that “It is against the policy of the law to carve different crimes out of one act.” As a general rule appellant’s contention ordinarily would be sound. However, the test seems to be whether or not the Legislature has by separate statutes upon its own volition carved more than one offense out of the same act. In the case at bar the Legislature did the carving and the courts are bound by their culinary art. Here the appellant was found guilty of: 1. Possessing more than one gallon of liquor under Section 48-918, Ark. Stats., Act No. 91 of 1947. 2. Possessing more than three gallons of beer under Section 48-919.1, Ark. Stats., Act No. 347 of 1949; 3. Transporting more than one gallon of liquor under Section 48-921, Ark. Stats., Act 423 of 1947; and 4. Transporting more than three gallons of beer, Section 48-922.1, Ark. Stats., under Act 28 of 1953, all of which having been committed in a county legally voted “Dry” pursuant to Initiated Act No. 1 of 1942.

In Miller v. State, 222 Ark. 476, 261 S. W. 2d 411, and Eoff v. State, 218 Ark. 109, 234 S. W. 2d 521, we held that appellant’s plea of guilty on one liquor charge, where the Legislature had by two separate acts, carved out of the same transaction two separate offenses, did not bar his prosecution for the other offense, hence, no double jeopardy. See: Offenses in relation to Intoxicating Liquors 22 C. J. S. 437.

Appellant in his requested instructions and motion for new trial raised an interesting question relative to the offenses for which he was tried contending in effect that since the law does not apply to a properly licensed retail liquor dealer or common carrier or bonded carrier or private contract carriers in certain cases, and since the State failed to prove that appellant was not exempted under one of these exceptions to the law, it would be the duty of the jury to return a verdict of not guilty. The trial court was correct in rejecting the contention of appellant. The general rule which is almost unanimously followed in this and other jurisdictions is that in liquor cases the defendant has the burden of proving the existence of a license or permit. To hold otherwise would place the burden on the prosecution to prove the negative of a proposition peculiarly within the defendant’s knowledge, therefore the failure to prove the nonexistence of such a license is not subject to the objection that it deprives the defendant of the presumption of innocence. See: Williams v. State, 35 Ark. 430; Flower v. State, 39 Ark. 209; Evans v. State, 54 Ark. 227; 15 S. W. 360; Josey v. State, 88 Ark. 269, 114 S. W. 216; 30 Am. Jur. 731, Sec. 343.

Judicial Notice. In point three urged for reversal, appellant contends that the trial court erred in ruling that the court could take judicial notice that Little River County was a dry county. On this point we must agree that the trial court was correct in its ruling since this contention was settled in Skiles v. State, 150 Ark. 300, 234 S. W. 721, when we said:

. . the adoption of the terms of the statute by an election of the people is a matter of which the Court should take notice judicially. It is a law in operation in' a locality which was within the jurisdiction of the Court, and the Court should take cognizance of it without the necessity of it being brought to the attention of the Court by proof . . .”

and in Hughes v. State, 209 Ark. 125, 189 S. W. 713 when we said:

“. . . The Court informed the jury in one of its instructions that the defendant was charged with possessing liquor for the purpose of selling it in Craighead County, ‘a county which is dry under the local option law.’ There is no finding of any fact disclosing the method by which possession for sale was made illegal. The Court had a right to take judicial notice of the local law. Crumley v. Guthrie, 207 Ark. 875, 183 S. W. 2d 47.”

Search and Seizure. Point number five urged by appellant for reversal contended that “evidence obtained in violation of the constitutional requirement that there be a search warrant is illegal and inadmissible.” Appellant’s excellent argument that the 4th Amendment to the- Constitution of the United States, and Art. 2, Sec. 15 of the Arkansas Constitution had been violated is very forceful. Said Sec. 15 reads:

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

However, in this case our decision turns on a question of fact. Here we have an appellant that was apprehended- only after a chase at speeds up to 120 miles per hour who ran stop signs and devices in his eagerness to flee; attempted to escape from a dead end street after being cornered and then declared to officers after being arrested that his car contained whiskey and beer. The arrest was made for offenses committed in the presence of the arresting officers. The arrest was lawful and the search was merely incidental to it. Under these circumstances we cannot say that the search and seizure was unreasonable.

Exclusion Buie. Appellant contended in point number six that “it was reversible error to permit Officer Eddie Craig to testify, when he had remained in the courtroom in violation of the law, the rule having been invoked.” Witness Craig admitted that he had been in the courtroom when the opening statements of counsel were made. Appellant objected as follows: “Then we object to this witness being used as a witness on the ground that placing witnesses under the Rule requires, under the recent act of the Legislature, that even an officer be placed under the Rule, and that applies to the opening statements' as well as any part of the proceeding.” Apparently appellant had reference to Act 243 of 1955 which is as follows:

“If the a,caused or his attorney requests it, the judge shall exclude from the courtroom any witness, including but not limited to the officers of the court, officers of the law and experts not at the time under examination, so that they may not hear the testimony of other witnesses.” (Emphasis supplied.)

Upon this objection, the trial court made the following ruling: “I don’t believe you requested that this witness, who is the Deputy Sheriff and has been in charge of the witness room, be placed under the Rule, and for that reason your objection is overruled.” The record does not reflect that the accused or his attorney requested that this witness be placed under the Rule, therefore we cannot say that the trial court erred in overruling appellant’s objection.

Sufficiency of the Evidence. In point one urged for reversal, appellant contended that “the trial court erred in refusing to grant motion for instructed verdict of not guilty in both cases now on review.” It is a settled rule of this court that where the evidence is sufficient to sustain a conviction, a refusal to direct a verdict of not guilty presents no error. Graham and Seaman v. State, 197 Ark. 50, 121 S. W. 2d 892.

A careful review of the record in this case convinces us that there is substantial evidence to sustain a conviction. Therefore, in the absence of reversible error the decision is affirmed.

Affirmed.

Robinson, J., dissents.


author: Carretón Harris, Chief Justice.

text:
    Wear v. Boydstone.
    5-1849
    324 S. W. 2d 337
    Opinion delivered May 18, 1959.

      Virgil Evans and H. B. Stubblefield, for appellant.

      Sam Anderson, Holt, Parh & Holt, for appellee.
   Carretón Harris, Chief Justice.

This appeal is from an order of the Chancery Court which set aside three judgments, previously entered hy that court, in the total amount of $6,900. The facts are as follows:

Appellant obtained a divorce from appellee on January 23, 1952, the decree awarding the sum of $250 per month as alimony for appellant and maintenance for a minor child. On September 19th of the same year, appellant married Darrel Wear. Approximately one month later (October 22nd), Boydstone filed a motion to set aside and revise the order for alimony and maintenance payments because of the fact that appellant had remarried. This motion was never acted upon by the court. Appellee had moved to California, and appellant instituted proceedings in Kern County in the Superior Court of the State of California, against Boydstone under the Uniform Reciprocal Support Act. The California court found that appellant had remarried, and was not in need, and directed appellee to pay the sum of $50 per month to the Clerk of the Garland Chancery Court for the support and maintenance of the minor child. A certified copy of this order was filed with the proceedings in the Garland County Chancery case. Thereafter, appellant obtained three judgments against appellee, as follows: (a) On July 22, 1953, a judgment for alimony and maintenance arrearage in the sum of $2,000. (b) On April 13, 1954, a judgment was obtained for alimony and maintenance arrearage in the sum of $1,700. (c) On August 30, 1955, judgment against appellee was obtained for alimony and maintenance arrearage in the sum of $3,200. Prior to obtaining the first two judgments, appellee was sent, on each occasion, a copy of the motion for judgment and a notice of the hearing, by registered mail, addressed to him at Bakersfield, California, and prior to obtaining the third judgment, a copy of the motion and notice of hearing was personally served on appellee by the marshal of Bakersfield. On February 21, 1956, Boydstone filed a motion to set aside the judgments for alimony and asked the court to reconsider child support payments, it being alleged that the minor child had enlisted in military service, and was thereafter self-supporting ; further, that the minor child became 21 years of age on September 7, 1955. Hearing was held on May 4, 1956, no oral testimony being taken, and counsel argued the case orally. Subsequently, memorandum briefs were submitted, and on October 1, 1958, the court entered an order finding, inter alia,

“That the allowance for alimony and child maintenance' was not an award of a gross sum payable in installments, or-in lieu of, or was a substitute for Plaintiff’s property rights.
That pursuant to the divorce decree, the Defendant has paid specified alimony and child support in the amount of $250 per month from the date of the divorce until February, 1953, at which time the Defendant made no further payments.
That the Plaintiff, Dorothea B. Boydstone (Wear), on September 24,1952, remarried J. Darrel Wear.
That the Defendant, Joseph O. Boydstone, Sr., is not in arrearage in the payment of specified alimony and child support as of the date Plaintiff remarried.
That the remarriage of Dorothea B. Boydstone (Wear) to J. Darrel Wear, on September 24, 1952, automatically terminated her right to alimony upon such remarriage.
That the judgments and decrees of this Court made and entered on Jiily 28, 1953, in the amount of $2,000.00; April 13, 1954, in the amount of $1,700.00; and August 30, 1955, in the amount of $3,200.00 were judgments for alimony accruing after the remarriage of the Plaintiff and are void and without authority due to the automatic termination of alimony upon such remarriage. * * * ”

As to child support, the court found that Boydstone had paid appellant the sum of $1,600 under void orders and judgments issued subsequent to her remarriage; together with the sum of $50 a month from January, 1953, through September, 1955, and further found that the child had received a satisfactory amount for child support. The court then set aside the three judgments and discharged Boydstone from any further obligation for support and maintenance of the child. On December 12, appellant filed objections to the order, citing various reasons.

Four points are relied upon for reversal, but we see no need to discuss these individually, and under the view we take, a discussion of all is unnecessary to reach a conclusion.

The three judgments entered by the court were not void judgments. In Jones v. Jones, 204 Ark. 654, 163 S. W. 2d 528, this Court said:

“In order to collect on such a continuing general decree, it would be necessary to ascertain from time to time the amount of arrearages due in the payment of alimony and render a decree for the specific amount due. For these purposes the parties to the suit continue to be parties and, being parties already, it would not be necessary to get personal service upon them to carry out and enforce a continuing decree when an attempt is made to reduce the decree to a definite and certain amount, * * * > J

The record also reflects that Boydstone received notice on each occasion that the judgment would be applied for, but never appeared or otherwise contested the motions seeking to reduce the arrearages to judgment.

Appellee, though admittedly unable to cite an Arkansas case directly holding that alimony payments cease automatically upon the remarriage of the wife, apparently feels that we should take such a view. We have no quarrel with the statement that alimony payments should cease upon the divorced wife’s remarriage, for we see no logic in requiring a first husband to contribute at regular intervals to an ex-wife whose care and maintenance has been assumed by a second husband. We have held on several occasions that the remarriage of the wife is sufficient grounds to entitle the husband to a termination of the alimony payments — on making proper application to the court granting the original decree. Casteel v. Casteel, 38 Ark. 477, Erwin v. Erwin, 179 Ark. 192, 14 S. W. 2d 1100. This is in line with the general rule, stated in Corpus Juris Secundum, Volume 27, Section 239 (c), page 994:

“Although there is contrary authority, in the absence of a mandatory statute to the contrary, a divorced wife’s remarriage to another does not necessarily of itself operate as a release of the former husband’s obligation to pay alimony. It does, however, afford a cogent reason for the court to modify or vacate the order, * *

Appellant points out that the trial court lacked power to vacate its decrees rendered and entered at prior terms, unless and until the appellee complied with the provisions of Section 29-506, Ark. Stats. (1947) Anno. We are in full accord with this contention. The said section sets out eight grounds, any one of which, if established, would authorize a trial court to vacate or modify a judgment entered at a prior term. Admittedly, none of these grounds were set out in the motion filed by appellee asking that the judgments be set aside. We have many times held that courts lose jurisdiction of judgments and decrees with lapse of the term in which they were rendered, and they can thereafter only be set aside by establishing one of the grounds mentioned in the statute previously cited. Coulter v. Martin, 201 Ark. 21, 139 S. W. 2d 688. Hill v. Teague, 194 Ark. 552, 108 S. W. 2d 889. A multitude of Arkansas cases are to the same effect. The only authority that appellee cites is to the effect that the court may set aside void judgments — but, as herein pointed out, these judgments were not void. It is therefore apparent, without discussing other alleged errors, that the decree must be reversed.

However, we consider that there are unusual and unexplained circumstances in this case, which, by every principle of equity, require further development. In the first place, the record clearly discloses that Boydstone, on October 15, 1952 (less than a month after appellant’s remarriage), filed a motion stating:

“* * * he is informed that the plaintiff, Dorothea Boydstone, has remarried and that her name is now Dorothea Wear. Defendant requested of the plaintiff through her attorneys that he be given information as to her marital status and as to the status and requirements of the boy, James B. Boydstone, for whom the original decree makes provisions. The plaintiff has not as yet responded to the request for information, # # # f f

and asked that appellant be required to appear and state to the court her marital status, and if it should develop that she had remarried,

“* * * then the defendant moves the court that the order for alimony and child maintenance heretofore granted be set aside and that the same be revised in accordance with conditions existing today; * *

As already pointed out, this motion, for some reason, was never acted upon. The docket sheet reflects that appellee’s then counsel was permitted to withdraw from the case on December 2,1952.

Of course, there is nothing in the record to indicate the evidence before the court at the time the various judgments were rendered, or whether appellant’s remarriage was shown by the testimony. The fact that the Chancellor held these judgments void is a clear indication that he did not know of the remarriage at the time the judgments were entered.

Mrs. Wear invoked the aid of a California court, where an order was entered (January 2, 1953) finding that she had remarried, and refusing to allow alimony or support to her; the order provided that $50 per month should be paid for the maintenance of the minor child. Subsequent to this order, all three judgments were obtained. The record reflects that appellee complied with the provisions of the California decree, the April, 1954, judgment reciting that “there is now held by the Cleric of this Court the sum of Eight Hundred Dollars ($800.00) which, pursuant to the orders and directions of this Court, is paid to plaintiff in open Court to apply on said delinquencies totaling Two Thousand Five Hundred Dollars * # *”, and the August, 1955, judgment for $3,200 reciting “$4,000 less $800 paid and credited thereon.”

The first two notices to Boydstone (prior to the July, 1953, and April, 1954, judgments) were sent to him c/o Kern General Hospital, Bakersfield, California, and the decrees reducing the delinquent alimony to judgment, make such a finding. Counsel for each litigant, in the statement of the case, refer to appellee as “Dr.” Boydstone, though this appellation does not appear in the various pleadings. One might surmise that appellee is a physician (though the title is held by numerous others), and was on the staff at Kern Hospital; however, it is possible that he was a patient at the hospital.

While ordinarily, Chancery cases are decided upon the record before us, we have, on several occasions, remanded where it appeared that in the interest of justice, the cause should be more fully developed. Carlile v. Corrigan, 83 Ark. 136, 103 S. W. 620. The record leaves unanswered possible pertinent questions, and we feel that in view of these uncommon facts, appellee should be given the opportunity to assert any possible meritorious defense, in accordance with the provisions of Section 29-506 and Section 29-508.

The order is accordingly reversed, and the cause remanded with directions to proceed in a manner not inconsistent with this opinion.

       It is not essential, in determining this litigation, to set forth the allegations in the motion.


author: J. Seaborn Holt, Associate Justice.

text:
    Ark. Motor Freight Line, Inc., v. Missouri Pacific Freight Transport Company.
    5-1839
    326 S. W. 2d 820
    Opinion delivered May 18, 1959.
    [Rehearing denied September 7, 1959]

      Clifton Wade and Louis Tarlowslti, for appellant.

      Pat MeHaffy, William J. Smith and Ben Allen, for appellee.
   J. Seaborn Holt, Associate Justice.

In 1945 the Arkansas Public Service Commission issued to Columbia Motor Transport Company a Certificate of Public Convenience and Necessity, authorizing it to operate as a motor carrier of freight for compensation, over Arkansas highways between certain stations on certain lines of the Missouri Pacific Railroad Company. This certificate was upheld by this court in Arkansas Express, Inc. v. Columbia Motor Transport Company, 212 Ark. 1, 205 S. W. 2d 716, conditioning same, however, with, the proviso that any service authorized must move by co-ordinated rail and truck service (or both rail and truck). The Columbia certificate above was later transferred to appellee, the Missouri Pacific Freight Transport Company. The present case, which comes here for trial de novo, involves the legality of an order of the Arkansas Commerce Commission, on December 9, 1957, eliminating a certain restriction appearing in appellee’s certificate which prohibits it from carrying freight shipments by motor vehicle which originate in Little Rock and are destined to El Dorado and Gurdon. On a hearing, two of the three members of the commission, (one member dissenting) granted appellee the relief prayed and on appeal to the Pulaski Circuit Court, the commissions ’ action was affirmed. This appeal followed.

Appellant says, “The appellants, constituting the protestants at the hearing, contend the elimination of the sought restriction is tantamount to the institution of a new motor carrier service between Little Rock, Gurdon and El Dorado, requiring proof of public convenience and necessity. And appellee, having failed to introduce such proof of public need, the order of the Arkansas Commerce Commission is arbitrary, unsupported by the record and contrary to the express provisions of the Arkansas Carrier Act (Act 397 of 1955)”.

After a careful review of the record presented, we have reached the conclusion that appellant’s contention should be sustained. Our conclusion is in accordance with, and follows, the following findings and conclusions of '.law of the dissenting commissioner: ‘ ‘ One of the restrictions originally imposed by the commission, and approved by the Supreme Court in the Columbia case was .as follows: ‘4.(c) Ño shipments shall be transported by the carrier which originate in and are destined to the ■following stations in Arkansas: In Little Rock to Mc-Gehee; in Little Rock to Ft. Smith; in Little Rock to ■Gurdon; in Little Rock to El Dorado; in Texarkana to Little Rock; in Ft. Smith to Little Rock; in McGehee to Lexa; and in McGehee to Little Rock. ’

“By this proceeding the applicant seeks to now amend this provision of the Commission’s original order by deleting therefrom ‘in Little Rock to Gordon; in Little Rock to El Dorado ’.

“What is involved here is simply whether the present restriction, which operates to prevent the petitioner from handling shipments originating in, .and destined from Little Rock to Gurdon and Little Rock to El Dorado, should be removed. It appears clear to me that since the restriction was imposed by this Commission and ordered by the Supreme Court of Arkansas in the Columbia case, this Commission cannot treat the present application for removal of such restrictions as anything other than an application for an additional certificate, or additional carrier authority, and the Motor Carrier Act (Act 397 of 1955) expressly provides that before any authority can be granted, the applicant must discharge the burden of proving public convenience and necessity. The pertinent Section [Section 9 (a)] of the Act provides in part: ‘Subject to the provisions of this Act, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application if it found that the applicant is fit, willing and able properly to perform the service proposed and to conform to the provisions of this Act and the requirements, rules and regulations to the Commission thereunder, and that the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise such application shall be denied; and the burden of proof shall be upon the applicant . . .’

“The nature and degree of proof required to establish such public convenience and necessity to support an order of this Commission in granting a certificate to a motor carrier to operate in competition over the same highways served by other motor carriers has been well defined and established by the Supreme Court of Arkansas in Missouri Pacific Railroad Company v. Williams, 201 Ark. 895, 148 S. W. 2d 644. The petitioner has failed to,offer a single witness who could testify that the present or future public convenience and necessity requires the removal of the restrictions imposed in-the original order. It contends that “public convenience and necessity” does not necessarily mean a need for additional service to the public. It urges that-the granting of this authority would result in a more efficient and economical operation by it and its associate, the Missouri Pacific Railroad Company, because it will release to the public box cars presently required, for the Little Rock to Gurdori; Little Rock to El Dorado haul, and that this fulfills the requirement of a public need and necessity. This question I deem settled by Boyd v. the Arkansas Motor Freight Lines, Inc., et al, 222 Ark. 599, 262 S. W. 2d 282, where, in a case practically on all fours with this one, the Court in this connection said: ‘. . . the prime object and real purpose of commission control is to secure adéquaté and sustained service for the public at the least possible cost, and to protect and preserve investments already made for this purpose, for ‘ ‘ Experience has demonstrated beyond any question that competition among natural monopolies is wasteful economically and results finally in insufficient and unsatisfactory service and extravagant rates.

“ ‘Boyd’s testimony and that of his witness, Sears, emphasized the convenience that would flow to Luper with issuance of the certificate, but intrastate convenience and necessity were not shown unless we assume without evidence that the government’s unexpressed interest must be taken for granted. No other shipper of explosives of the ingredients or materials entering into the manufacturing process had the slightest concern respecting the method of making these shipments. The burden of establishing the necessity and convenience contemplated by the lawmaking body rested upon the applicant, who in this case did not go beyond the profit element to himself and to his prospective associate, Luper Transportation. ’

“The only proof introduced by the petitioner, Missouri Pacific Freight Transport Company, in this proceeding, was the profit element accruing to its parent, the Missouri Pacific Railroad Company, not a party here. In my opinion any presumed advantage that the public might possibly receive from the release of the box cars of the petitioner’s parent company and the profit and convenience flowing to the Missouri Pacific Railroad Company and to the petitioner on the one hand, is not sufficient to offset the uniform advantage flowing to the public in holding down wasteful and detrimental competition among natural monopolies.

“The protesting motor carriers presently authorized to serve the territory in question adduced abundant and undisputed testimony that they are ready, willing and able to render the proposed motor carrier service sought by the petitioner, and that their existing service is adequate to meet the existing and future public need. They contend that to grant the authority sought by the petitioner is to inaugurate a new over-the-road motor carrier operation between Little Rock and Gurdon and Little Rock and El Dorado, a service not heretofore authorized. With this premise I agree. Since the proposed service, is substantially broader and materially different from the service authorized in the original certificate, of which petitioner is the transferee, it appears clear to me that the granting of the requested authority will, in effect, permit a new motor carrier service without any proof of public need therefor. This will result in detriment and harm to the existing certificated motor carriers without any corresponding benefit to the shipping and receiving public of Arkansas.

“If the restrictions in the instant certificate were properly imposed when it was originally granted, upon the testimony there offered — and there is no testimony now that the public necessity or convenience requires a change — I feel that we are bound by the former opinion of this Commission, as modified and affirmed by the imposition of a further restriction by the Supreme Court in the Columbia case. I deem that decision as controlling this issue. The Court there said: ‘The new coordinated rail and truck service will doubtless be of great convenience to the shipping public, and, while the rights of those already in the transportation field must be taken into account in a proceeding of this kind, the paramount consideration is always the interests of the public, at whose expense the highways used in this type of transportation are built and maintained. In granting certificates, the public convenience and necessity should be the first consideration, and the interest of public utilities already serving the territory secondary, . . . But under the order made by the Commission the service authorized was not limited to a rail and truck or truck and rail movement of freight. Under this order a hauling of freight by appellee’s trucks from shippers at certain points to consignee at other points, without any preceding or succeeding movement by rail, is authorized. Now this would permit appellee, which is not a railroad corporation, to haul freight by motor truck — without any movement whatever by rail — on railroad bills of lading at rates fixed for rail transportation. While the testimony adduced before the Commission was sufficient to show the need of supplementing rail transportation of freight with a motor truck haul thereof, it did not show the necessity of any additional transportation facilities by motor truck only. The Commission should have provided that the authorization for the new service would permit only freight shipments that move partly by rail and partly by truck.

“ ‘The judgment of the lower court is modified so as to require the Commission to amend the order appealed from by including therein this sentence: “Provided, that the service authorized by this order shall not include transportation of any freight in which there is not a bona fide movement by rail and truck or by truck and rail.’

“The petitioner is a motor carrier, moving shipments upon motor carrier billings, subject to motor carrier tariff, without a prior and subsequent movement by rail, with pickup and delivery service unrestricted and is therefore, in the same category as the protesting carriers. As a motor carrier, it is here seeking to inaugurate a new service without any proof of public need. The law makes no distinction between applications filed by trucking subsidiaries of railroads and those filed by others. Each must prove public need as a condition precedent to obtaining a certificate of public convenience and necessity. There is nothing in the majority’s order to prevent the applicant here from instituting as many schedules per day or night as it may desire, between Little Rock, Gurdon and El Dorado, and between other Arkansas points and these cities. There is nothing to prevent applicant.from soliciting traffic from these points to move wholly by motor carrier from most of the State upon motor carrier billing, and at motor carrier rates. Since petitioner is a member of the general class, it should be governed by, and subject to the same laws, rules and regulations as are all other members of the class. If Sections 8 and 9 of the Arkansas Motor Carrier Act are applicable to protestants when they seek a certificate for a new or additional service, then these same statutory provisions are, and should be, applicable to the petitioner when, as now, it seeks additional authority to that which it now holds.

“It is undisputed that the present motor carrier service in the territory involved is entirely adequate, and that there is no need for additional motor carrier service over the routes involved. Granting the petition means authorizing another motor carrier to serve a territory now having admittedly meager tonnage to be transported, with an over abundance of motor carriers presently capable, willing, and able to handle such small volume of tonnage. In my opinion, it will result in not only a useless duplication of service, but also to the detriment of the existing certificated carriers and the interests of the public, which it is our duty to protect.

“In my opinion, the petitioner has failed to discharge the burden of proof incumbent upon it, and the petition should be denied.”

Accordingly, the judgment is reversed and the cause remanded to the Pulaski Circuit Court with instructions to direct the Arkansas Commerce Commission to set aside its order herein rendered and deny appellee’s petition.

Robinson and Johnson, JJ., dissent.