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

text:
    State v. Snow.
    5-1859
    324 S. W. 2d 532
    Opinion delivered June 1, 1959.

      Bruce Bennett, Atty. General; Bose, Meek, House Barron <& Nash, for appellant.

      Mark E. Woolsey, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal stems from a proceeding in the Franklin Prohate Court, brought on the relation of the State of Arkansas against appellee, ~W. F. Snow, under the provisions of Act No. 161 of the Arkansas Legislature of 1955. The effort was to have Appellee Snow committed to the Arkansas Tuberculosis Sanatorium, since the claim was made that he had tuberculosis in an active and communicable stage, was unwilling to voluntarily submit to medical treatment, and was living in environmental conditions that made appellee a source of danger to others.

The proceeding was instituted on June 5, 1958; the first hearing was on September 4, 1958; the second hearing was on November 10,1958; and the Court’s judgment, entered on December 5, 1958, contained these findings:

‘ ‘ That the petitioner has failed to show by sufficient and competent evidence that the respondent has tuberculosis in a communicable or infectious stage; has failed to establish by sufficient and competent evidence that the circumstances are not suitable for proper isolation or contagious control; has failed to establish by sufficient and competent evidence that the respondent is a source of danger to others and has failed to establish by sufficient and competent evidence that respondent should be committed to the sanatorium. ’ ’

The State has appealed. In Probate cases, as is this, appeals are tested in the same way Chancery appeals are tested: that is, we examine the evidence to see if the findings of the Probate Judge are against the preponderance of the evidence. Campbell v. Hammond, 203 Ark. 130, 156 S. W. 2d 75; Umberger v. Westmoreland, 218 Ark. 632, 238 S. W. 2d 495; and Credit Industrial Co. v. Blankenship, 230 Ark. 371, 323 S. W. 2d 198 (opinion of April 13, 1959). After a careful review, we reach the conclusion that the Probate judgment must be affirmed, since we cannot say that the findings are contrary to the preponderance of the evidence; but the effect of the affirmance will be limited, as hereinafter set forth.

This being the first case before us involving the Act No. 161, we think it not amiss to discuss the Act for future guidance. The caption of the Act No. 161 is: “An Act to Require Isolation of Recalcitrant tuberculous Patients ; Prescribing Methods and Procedures Therefor; and for Other Purposes”. Section 1 of the Act defines the words, “active tuberculosis”; Sections 2 and 3 relate to the investigations to be made by the proper persons preliminary to invoking probate jurisdiction; Section 4 states the allegations to be made in the petition; Section 5 authorizes the court to fix the hearing and cause notice to be served and provides for intermediate quarantine; Sections 6 and 7 relate to the probate hearing and the matters to be proved before the Court shall order the commitment of said person to a hospital or sanatorium; Sections 8, 9, and 10 relate to the matters after the commitment to the institution; Section 11 provides punishment for failure to observe the rules and regulations of the institution; Sections 12 and 13 are in regard to release from the institution; Section 14 provides a penalty for violation of the Act; and Section 15 is the general repealing section.

A proceeding under this Act for the ascertainment of the status, and the adjudication as to commitment, of a tubercular person is, in some respects, similar to an inquest regarding insanity, but the analogy must not be carried too far. Like an insanity proceeding, this is neither a civil nor a criminal proceeding, but rather is a special proceeding by the State in its character of parens patriae, based on the theory that the public has an interest to be protected. This is not a penal statute, yet it is to be strictly construed to protect the rights of the citizen.

With this brief review of the Act before us, we revert to the case at bar. Section 1 of the Act says that “active tuberculosis” means “. . . that the disease is in a communicable or infectious stage as established by chest x-ray, microscopical examination of sputum, or other diagnostic procedures approved jointly by the State Health Officer and the Medical Director of either the Arkansas Tuberculosis Sanatorium, McRae Memorial Sanatorium or Arkansas State Hospital”. (Emphasis supplied.) In the case at bar, there is no evidence that any “. . . diagnostic procedures approved jointly. . .” have ever been made. Turning next to chest x-rays, the answer is that no x-rays were introduced. Finally, if we consider sputum tests, the answer is that no witness testified to having taken sputum of the appellee and examined it. There are in the record letters which purport to have attached to them reports made by the Veterans Administration concerning the condition of the appellee. One report, dated January 25, 1955, showed active pulmonary tuberculosis based on an examination of January 20, 1955; another report, dated June 25,1956, showed the same condition based on an examination of April 19, 1956; another report, dated December 9, 1957, showed the same condition based on an examination of July 5, 1957; and the most recent report was dated April 16, 1958 showing the same condition and based on an examination of December 9, 1957.. But the trial of this case was in September and November, 1958; and we do not know what the appellee’s condition was at that time. No witness was produced by either side who had personally examined the appellee. There is in the record some evidence from which the Court might have found that the disease was in a communicable or infectious stage at the time of the hearing; but the record is very meager as to the circumstances at appellee’s home in regard to proper isolation. Because of the condition of the record, we cannot say that the findings of the Trial Court are against the preponderance of the evidence.

However, a reading of the entire record indicates the probability that appellee is a very sick person who stubbornly refuses to allow treatment and is probably a source of danger to those around him. So the affirmance of this present case is without prejudice to the institution of another proceeding by the proper officials against Mr. Snow; and the affirmance of this case will not be res judicata against any further proceeding. The possibility of such a serious and dangerous situation is indicated by this record that we are issuing an immediate mandate in order that further proceedings may be taken in keeping with the procedure and views stated in this opinion.

Affirmed.

Ward and Johnson, JJ., concur.

Holt and Bobinson, JJ., dissent.

George Bose Smith, J., not participating.

Paul Ward, Associate Justice,

concurring.

I concur in the majority opinion for two reasons.

(a) As stated by the majority, the trial judge found: ‘ ‘ That the petitioner has failed to show by sufficient and competent evidence that the respondent has tuberculosis in a communicable or infectious stage ’ ’. I agree that the above statement is true, but it is my view that it was not necessary under the statute for the court to make such a finding. Even a casual reading of said Act 161 confirms my view. Section 1 defines tuberculosis in a “communicable or infectious stage” as if is established by a procedure approved jointly by the State Health Officer and the Medical Director of either the Arkansas Tuberculosis Sanatorium, the McBae Memorial Sanatorium, or the Arkansas State Hospital. To my mind it is unreasonable to think that a Probate Court would be expected to conduct an examination such as contemplated by the statute, or, if it were attempted, that the Probate Judge would not be capable of properly evaluating it. Section 2 and 3 of the statute make it plain that a petition may be filed in the Probate Court upon “reasonable grounds to believe” that a person has tuberculosis, and that, upon such showing, the Court takes jurisdiction. Section

7 of the statute shows plainly that there is only one issue to he decided by the Court. That issue is not, as the majority holds, whether the respondent has tuberculosis in a communicable form, but it is whether his surroundings are suitable “for proper isolation.”

There is an important fundamental difference in my view and the view of the majority. Under my view the Tuberculosis Sanatorium would make the examination while under the majority view the Probate Judge would make it. I submit that the majority view is not sustained by the Statute, and, further, that it makes said Act 161 unworkable and useless, because the Court is not equipped to make a test of this nature.

(b) As stated before, the Probate Court’s duty was to determine from the evidence whether the respondent was living in circumstances not suitable for isolation. I have read the record carefully and feel that it supports the trial court’s finding that no such showing was made. It is upon that ground only that 1 would affirm.

Stating the matter briefly, Act 161 of 1955, provides: (a) if there is reasonable grounds to believe John Doe has active tuberculosis, and (b) if he refuses to be examined, then (c) the Probate Court is empowered to do one of two things, (d) If it finds John Doe is properly isolated he must be released, but (e) if the Court finds John Doe is not properly isolated he must be sent to the Sanatorium for examination and treatment.

Jim Johnson, Associate Justice,

concurring.

I concur in the result reached in the majority opinion.

This was an action brought in the name of the Franklin County Health Officer under the provisions of Act No. 161 of 1955, seeking an order of the Franklin County Probate Court to commit appellee, William Fred Snow, to the Arkansas Tuberculosis Sanatorium alleging that appellee has tuberculosis in an active and communicable form, that he will not voluntarily seek medical treatment, that the environmental conditions and conduct of appellee are not suitable for proper isolation or contagious control by any type of local quarantine, and that he is a source of danger to others.

After all the evidence had been presented at the hearing, the trial court found that appellant failed to establish grounds for committing the appellee and discharged him.

From such findings comes this appeal. Appellant urged three points for reversal. For the reasons hereinafter set forth, I reach none of the points raised by appellant.

Sections 2 and 3 of Act 161 of 1955 are as follows:

“Section 2. When the state or any county health officer shall have reasonable grounds to believe that any person has tuberculosis in active state or in a communicable form, and who will not voluntarily seek a medical examination or treatment, then it shall be the duty of said health officer to make an investigation of such person to determine whether the environmental conditions of the person, or the conduct of the person, is suitable for proper isolation, or contagious control of the case by any type of local quarantine.
1 ‘ Section 3. If the health officer finds that the circumstances are not suitable for proper isolation of contagious control of the case by any type of local quarantine, and said person will not voluntarily seek medical treatment and is a source of danger to others, he shall petition the Probate Court of the county where said person is found, to order the admission of the person to any state owned and operated tuberculosis hospital or sanatorium.” (Emphasis supplied.)

This action was brought by Mrs. Onoto P. McCann, Public Health Nurse of Franklin County. Mrs. McCann testified that she was “in the Public Health Service, under the Arkansas Board of Health, part-time Health Officer for Dr. Stacey Long who is the Health Officer of Franklin County.” Ark. Stats. Cum. Suppl. 82-201, provides : “. . . the State Board of Health, with the approval of the County Judge, shall appoint for each county in this State a health officer, who shall serve for a term of two years. The county health officer shall be a graduate of a reputable medical college, and shall have had at least three years’ experience in the practice of medicine in this State;” (Emphasis supplied). There is no provision in the statutes for a “part-time” county health officer, hence it must be concluded from Mrs. Mc-Cann’s own testimony that Dr. Stacey Long is the County Health Officer. Dr. Long did not testify in the case and according to the record he had absolutely nothing to do with the matter. Therefore, since neither the state, county or city health officer brought this action as required by the Act, it is my view that we should continue to follow the well established rule that a statute should be construed so that no clause, sentence or word shall be void, superfluous or insignificant. Wilson v. Biscoe, 11 Ark. 44. The effect of this statute will be to deprive the appellee of his liberty against his will and therefore should be construed strictly in favor of the appellee. The fact that this is a public health measure is no excuse for abandoning the safeguards and the constitutional liberties enjoyed by this appellee without requiring strict compliance with the terms of the statute and with the rules of evidence as in other cases where a person’s liberty is involved. Therefore, for the reasons stated, I concur.

Sam Robinson, Associate Justice, dissenting. The appellee, Snow, is left free to go his way with wanton disregard of the fact that perhaps he is giving the dreaded disease of tuberculosis to others. The majority say: “There is in the record some evidence from which the court might have found that the disease was in a communicable or infectious stage at the time of the hearing; but the record is very meager as to the circumstances at appellee’s home in regard to proper isolation. Because of the condition of the record we cannot say that the findings of the trial court are against the preponderance of the evidence.” The majority fail to mention that the State cannot force this man to submit to an examination unless he is sent to the State Tuberculosis Sanatarium.

In my opinion the overwhelming weight of the evidence is that Snow has tuberculosis in a communicable form and that conditions at his home are not suitable for isolation. In fact, there is no substantial evidence to the contrary.

In response to the State’s petition that he be sent to the Tuberculosis Sanatarium, Snow denied that he has tuberculosis in a communicable form and he further stated in his response that he “desires to have himself examined by a competent physician, or physicians, of his own choice to determine this question [if he has tuberculosis in a communicable form] and if such examination should show that he does have tuberculosis in‘an active state or a communicable form, he will voluntarily seek medical treatment for such disease.” The State’s petition to have Snow sent to the Tuberculosis Sanatarium was filed on June 5,1958. The above mentioned response was not filed until three months later. During this three month period Snow apparently made no effort to have himself examined. When the original petition was filed on June 5th notice was given that a hearing would be held on June 16th. At that time Snow had filed no response, and no hearing was held. On August 28th another notice was served that the hearing would be held on September 4th. On that day, September 4th, Snow for the first time filed a response. He did not deny that he has tuberculosis, but alleged that it is not in a communicable form and although he stated he wanted to be examined by a doctor of his own choice, he gave no explanation of why he had not submitted to an examination during the three months that had expired since the State’s petition was filed on June 5th. In his response filed on September 4th he sought further delay by asking that he be granted a continuance in order that he might have made the examination. Although the State’s evidence was taken on September 4th, Snow was granted a continuance to have himself examined, and the case was reset for October 8, 1958. On that day the case was again continued at his request. Finally, on November 10th, when Snow produced his evidence, he testified that he went to a Dr. Bussell at Jasper, Arkansas, in Newton County, for the examination. Dr. Bussell was not called as a witness, nor was any report from him put in evidence. But apparently Snow had some kind of a report from the doctor, because the trial court commented as follows: “Now, this is not a very good report. I mean as far as court proceedings are concerned. This ‘heart and lungs negative to P and A’ — I don’t know what that means.” Neither does this Court know what it means. Snow does not live very far from the State Tuberculosis Sanatarium at Booneville. It is a matter of common knowledge that it is one of the finest institutions of its kind in the world, and yet Snow did not go there for an examination, and he gives no reason for not going there to be examined. Perhaps he felt that the doctors at that institution would report that he has an active case of tuberculosis.

Dr. Dorothy Cody, M.D., is a graduate of Duke University School of Medicine and served an internship and residency at the University Hospital in Little Bock. She is a director of the Division of Tuberculosis, State Health Department, and has been in that work since July, 1955. She caused the proceedings to be filed, attempting to get Snow into the Tuberculosis Sanatorium, so that he would not endanger the lives of others. She testified that tuberculosis is a very communicable disease. She was asked:

“Q. . . . You do not know of your own knowledge, based on any examination that you made yourself, whether the defendant has tuberculosis or not, do you?
A. To that I would like to say yes, Your Honor.
THE COUNT: Explain your answer.
A. . . . the sputum provided by Mr. Snow and examined showed tuberculous bacilli, which is found to be positive. This is evidence he has tuberculosis and I know this of my own knowledge. ’ ’

The witness testified that she was only stating what she knew herself. She testified that she personally had seen an examination of sputum which Snow is purported to have furnished. Snow did not deny that he had furnished such a specimen of sputum.

Snow testified that he is being paid 100% disability by the Veterans Administration because of having tuberculosis. He testified that he has had hemorrhages from the lungs and had coughed up “a mass of horny tissue, larger than a hen egg. . . . with corruption”. There are several reports in the record made by doctors at the Veterans Administration to the effect that Snow has tuberculosis in a communicable stage; that he is a hazard to other people and should be hospitalized. But considering that these reports may not have come into the record according to the strict rules of evidence, nevertheless there is overwhelming competent evidence that Snow has tuberculosis in a communicable form.

Mrs. Onoto McCann, public health nurse, testified in the case, and a report that she had made was introduced in evidence as an exhibit. She was not cross-examined on this report. It states that Snow has a far advanced active case of tuberculosis; that the sputum status was positive; that he lived in a four room house with four beds; that his wife and a son lived there; that the situation was not such that he could have a room of his own; that the water supply was from a well and there were no facilities for sewage disposal; that there was a milk can sitting at the gate when she went into the house, but it apparently was picked up during her visit, because it was gone when she came out — indicating that the Snow family sells milk; that there were two preschool grandchildren visiting in the home. The situation is pretty well explained by a letter dated June 13, 1958, written by Mrs. McCann to Dr. E. J. Easley of the Arkansas State Board of Health. A copy of this letter was made an exhibit and Mrs. McCann was not cross-examined in regard to it. This letter is as follows:

Í (
“As I drove into the yard of Mr. ¥m. Fred Snow, Mr. ¥m. Fred Snow and two men were standing on the driveway talking and three cars were parked around the house. Mr. Snow sent the men with him into the field to work before he came to greet me and invited me into the home. His wife, his son, Wayne, Wayne’s wife and two preschool children were sitting at the table eating. The son, Harold, who is a household contact, and the patient’s wife joined Mr. Snow and me in the living room. After about an hour and a half of letting the patient talk freely, and my tuberculosis health education teaching, the patient and his son, Harold, were giving some consideration of running three 3-day sputum test and being hospitalized in YAH, at least, until his sputum was not positive, but he was still contending that his religion would not let him take medicine or any type of treatment.
“At this point, the married daughter, Mrs. Pauline Wyers, (who works in the Bank of Ozark) who had not previously been in the room during the discussion, ordered me to leave the home immediately, and to attend to my own business, and not to do any snooping around when I got back to Ozark. At the same time, the son, Wayne, from California, walked in and picked up a double-barrelled shot-gun, which was behind a curtain, and held it on me until I left the room and the premises in my car.
“As I went out the door Mr. and Mrs. Snow and Harold apologized for Pauline and Wayne’s actions, and they asked me to leave the sputum containers, as they might be used.
“I also observed a large milk can at the front gate as I went in and during my visit some one picked it up.
“Yours sincerely,
“ (Mrs.) Onoto P. McCann, Public Health Nurse”

The record in this case convinces me beyond a shadow of a doubt that Mr. Snow has active tuberculosis in a communicable form; that the facilities at his home are not such that he can be properly isolated; that he will not voluntarily cooperate with the health authorities; and that he should be sent to the Tuberculosis Sanatarium, to keep the public from being exposed to tuberculosis germs that undoubtedly are being spread about from this active case of tuberculosis. For these reasons I respectfully dissent.

Mr. Justice Holt joins in this dissent.

       Our research reveals that the Act No. 161 of 1955 is not an exact copy of the act of any other State, but does bear a similarity to acts of some other States. We mention only four: Oklahoma Act of 1955, page 361, as found in Title 63 § 533 of Oklahoma Statutes Annotated; Pennsylvania Act of April 23, 1956, as found in Title 35 § 521.1 of Purdon’s Statutes of Pennsylvania; Tennessee Act of 1953, Chapter 166, as found in § 53-1010 of the Tennessee Code Annotated; and Connecticut Act of 1955 S2124d and Public Act of 1957 No. 586 S16, both as found in § 19-120 of the 1958 Revision of the General Statutes of Connecticut. Our Act No. 161 of 1955 was amended by Act No. 298 of 1957 to add the City Health Officer in § 2 of the 1955 Act.

       The constitutionality of the Act is not raised in this case.

       Our research reveals that Act 161 of 1955 was not adopted from any one state but instead was the result of a study of the acts of a number of states, viz: Ky., Tenn., Conn., Penn., Okla., Ariz., Calif., Fla., Ga., Idaho, Ind., Iowa, Maryland, Mich., Minn., Nev., N. J., N. C., N. Dak., Ohio, S. C., S. Dak., Alaska, and Hawaii.

       This Act was amended by Act 298 of 1957 to include the words “or city” following the word county and preceding the word health in the first line of Section 2.


source: Caselaw Access Project

author: G-eorge Bose Smith, J.

license: Public Domain

text:
    Holstein v. Quality Excelsior Coal Company.
    5-1850
    324 S. W. 2d 529
    Opinion delivered June 1, 1959.

      Sam Sexton, Jr., for appellant.

      Hardin, Barton, Hardin $ Garner, for appellee.
   G-eorge Bose Smith, J.

This claim by the appellant, Benlah Holstein, for benefits under the compensation law is based on the theory that silicosis was a contributing cause of her husband’s death. The commission’s denial of the claim was affirmed by the circuit court. The only question presented here is whether there is substantial competent evidence to support the commission’s decision.

Charles W. Holstein was a coal miner for many years and was last employed in that capacity by the appellee, from November, 1948, to May, 1952. It is now evident that Holstein was afflicted with silicosis when he left the appellee’s employ, though the exact stage to which the disease had progressed is not shown by the record. It does not appear that the disease was ever disabling, for Holstein, after leaving the appellee’s mine, worked for an aircraft plant in California for four or five months in the latter part of 1952 and for an oil company in Oklahoma for two months in the spring of 1953.

In May or June of 1953 Holstein returned to California and looked for work. On July 5 he was found on the street in Los Angeles, seriously ill, and was taken to the county hospital. He was found to be suffering from a large gastric ulcer, which had been bleeding for eighteen hours or more. The ulcer was removed by surgery on July 7, and the patient did fairly well until July 13, when his condition worsened and he died. During his stay in the hospital Holstein received fifteen pints of blood by transfusion.

An autopsy was performed. It showed that death was due to pulmonary embolism, which is described as the obstruction of the pulmonary artery by a blood clot. The autopsy did not disclose just where the clot originated, but Dr. Thompson, who performed the greater part of the autopsy, was nevertheless of the opinion that there was a causal connection between Holstein’s silicosis and his death. In his testimony Dr. Thompson expressed the view that there is a relationship between chronic pulmonary disease and the existence of gastric ulcers. Had this testimony been accepted by the commission it would have supported an award.

The trouble is that Dr. Thompson’s conclusions are not shared by the other medical witnesses. The decided weight of the evidence is to the effect that the pulmonary embolism was a complication resulting from the operation and the patient’s consequent confinement to his bed. Dr. Courville, who also took part in performing the autopsy, states that1 ‘ the most common cause of acute pulmonary embolism ... is major surgery.” He was of the opinion that silicosis had no bearing upon the ulcer and that Holstein died as a result of conditions unrelated to the silicosis. Dr. Koenig expressed the same view, saying: “This man died of a pulmonary embolism with which silicosis had nothing to do. It did not aggravate his condition. It did not cause his condition, and it bore no relationship whatever to his cause of death.” Dr. Darnall testified that silicosis had nothing to do with Holstein’s death, and the same conclusion appears in a letter from Dr. Greutter.

The appellant makes two arguments to support her contention that the commission was required to disregard all the medical testimony that contradicts Dr. Thompson. First, it is insisted that the other medical witnesses formed their opinions from a study of the autopsy report, thereby violating the principle that one expert witness is not permitted to express an opinion that is based merely upon the' opinion of another expert. This argument is answered by the fact that the autopsy report is a statement of facts rather than an expression of opinion. The report details hundreds of facts that were observed by the physicians performing the autopsy. The report is also accompanied by a summary of the patient’s clinical history and of the course of his treatment while in the hospital. These documents were undoubtedly admissible under the statutes that govern in compensation cases, Ark. Stats. 1947, §§ 81-1323 and 81-1327; and it was proper for the expert witnesses to give their opinion on the basis of the information contained in the autopsy report and the hospital record. Biddle v. Riley, 118 Ark. 206, 176 S. W. 134, L. R. A. 1915F, 992; Missouri State Life Ins. Co. v. Fodrea, 185 Ark. 155, 46 S. W. 2d 638.

Secondly, the appellant argues that the medical testimony adduced by the appellee does not constitute substantial evidence, for the reason that in some respects the doctors’ opinions cannot be reconciled with all the facts set forth in the autopsy report. For instance, the report indicates that the embolus did not originate at the site of the stomach operation, for the report finds that “all suture lines appear to be securely in place.” In the opinion of Dr. Courville, who participated in the autopsy, this finding did not exclude surgery as the cause of the embolism, “because the vein that might have been tied off may have been small. It may have been hidden, you see, under the stomach, under the diaphragm, which is right next to the heart. It’s not impossible you could overlook a thing of that sort.” It will be remembered that Dr. Thompson, in performing the autopsy, was unable to discover the origin of the embolus. Thus the pivotal question of fact — the exact cause of the pulmonary embolism — could not be resolved by any witness with complete certainty. In this situation the conflicts in the proof naturally had a bearing upon the weight to be attached to the testimony of each witness, but they did not have the effect of depriving the testimony of all substantiality. The issue narrows down to a disputed question of fact, upon which the commission’s findings are conclusive.

Affirmed.

Johnson, J., dissents.


author: Paul Ward, Associate Justice.

text:
    City of Sherwood v. Hardin.
    5-1863
    325 S. W. 2d 75
    Opinion delivered June 1, 1959.

      Charles L. Carpenter, for appellant.

      Byron Bogará, for appellee.
   Paul Ward, Associate Justice.

This is an annexation proceeding. The appeal comes from the order of the Circuit Court reversing the County Court and denying the City of Sherwood the right to annex four separate parcels of land. There is very little, if any, dispute about the facts, but there is some difficulty in drawing the proper conclusion from those facts.

On September 16, 1957, while Sherwood was an incorporated town, the Council enacted four separate ordinances calling for a vote of the people at the November election upon the question of annexation. The vote in each instance was 56 in favor of and 6 against annexation. In due course four separate petitions were filed with the County Court seeking an order of annexation, which was granted. In February 1958, after Sherwood was made a City of the Second Class on January 20, 1958, each order of the County Court was appealed to the Circuit Court with the result heretofore stated. The testimony introduced in the Circuit Court is substantially as set out below.

The Mayor testified: We have a contract with the County for the repair of streets, and a considerable amount of work has been done recently; We are now in the process of widening the corner of Edgewood and Country Club; and we maintain the paved streets; The City now has a regular garbage collection service at a charge of $2 per quarter; We have a City Marshal and two part-time deputies and we have a close working agreement with the Sheriff’s office; We require all dogs to be vaccinated against rabies and there has not been a case of rabies since the City was organized; The City has some spray equipment and keeps the ditches and weeds sprayed for protection against mosquitoes and insects, and we have a sanitation department which enforces ordinances against unsanitary conditions; We have ordinances for fire protection and prevention which have received a very high rating from the National Underwriters Laboratory; We have no sewer system at this time but we have employed an engineer to make a preliminary survey leading to the acquisition of a sanitary sewer system; We have given the Arkansas Louisiana Gas Company a franchise to serve the City, and; The City has a City Hall and a playground with tennis courts, swing, lights, etc., for which the City pays about $2,500 each year.

Seven witnesses testified against annexation. Aside from unimportant details, all this testimony was to the effect that they were satisfied with the law enforcement, fire protection and garbage collection service which they now had; that they had septic tanks, that they saw no advantage to them to be annexed to the City of Sherwood, and that it would only force them to pay 5 mills extra in taxes to be annexed.

The parties entered into the following stipulation at the trial:

“It was stipulated by the parties that in each case the Ordinance calling for the vote upon the question of annexation was properly passed by the Council of the Incorporated Town of Sherwood; that it was referred to the people and voted upon at the General Election in November, 1957; that the annexation was approved by the vote of the electors of the town of Sherwood.”

A map of the entire City and surrounding territory was introduced and marked Exhibit 1. It shows Area A to contain about 8 lots, Area B to contain about 6 lots, Area C to contain about 20 lots, and Area D to contain about 15 lots. It further shows all areas to be plotted and adjacent to the City, and two of the areas to be almost surrounded by the City.

In reversing the annexation order of the County Court, the Circuit Court gave as its reasons in each instance, (a) that annexation would not be to the best interest of the residents affected, (b) that the area was small, and (c) that annexation has not been approved by the Metropolitan Area Planning Commission of Pulaski County. We are unable to sustain the judgment of the trial court on any of the grounds mentioned above.

Little need be said, we think, regarding the reasons assigned in (b) and (c) above. Appellees refer us to no decision of this court, and we know of none, which holds that annexation will be denied because the proposed area (to be annexed) is too small, or because it is not approved by a planning commission. Requirements for annexation, as we have frequently said, are matters for the legislature and not for the courts, and our legislature has not seen fit so far to make any such restrictions as (b) and (c). As is pointed out, we have refused to allow annexation where the area is too large, but the courts have been given some latitude of discretion in that instance by the legislature in Ark. Stats. 19-303. Act 26 of 1955 (Ark. Stats. 19-2820 ei seq.) under which the Pulaski County Metropolitan Area Planning Commission was organized, merely permits cities and towns to organize and “jointly cooperate in the exercise and performance of planning power, duties and functions as provided by state law for cities and counties, ’ ’ but in no way deals with the question of annexation. The record shows that Sherwood is a member of the said Commission on a strictly voluntary basis, and so would not be bound by any suggestion or requirement it might make. It is not shown that any was made here.

(a) Nowhere in the record do we find any substantial evidence to support the finding that it would not be to the best interest of the appellees to be incorporated. In many decisions of this court, from Dodson et al v. Mayor and Town Council, Fort Smith, 33 Ark. 508 to Marsh v. City of El Dorado, 217 Ark. 838, 233 S. W. 2d 536, we have held in this kind of a case that the judgment of the Circuit Court will be sustained if supported by substantial evidence, but we have also announced other rules which must be considered and applied here. In the Dodson case, supra, we find this: “The vote of the town makes a prima facie case as to the propriety of annexation.” This statement was also approved in the Marsh case, supra. In the latter case we also said that the burden (onus) was on the remonstrants to override the judgment of the County Court. Again, in speaking of the weight that should be given to the finding of the County Court, we said: ‘ ‘ This should always be a grave matter of consideration, and the Circuit Court, in cases like this, should hestitate to interfere with the judgment and discretion of the County Courts, when fairly exercised, without any fraud or mistake as to the law of the case, upon the facts presented.” In the case before us it is stipulated that the law was followed, and it is not contended that there was any fraud or mistake which influenced the judgment of the County Court. In the case of Foreman et al v. Town of Marianna, 43 Ark. 324, we said that annexation did ‘ ‘ not depend upon the will of the citizens whether or not they may be subject to the restrictions and burdens of these municipal quasi corporations and we also said that it did not depend on whether it “would put money in the pocket” of an individual remonstrant. And in the same case it was said, in speaking of the power to determine when to incorporate, that “Indeed the County Courts are the best depositories of that power . . .”

Therefore, since it is admitted that all procedural requirements of the statute have been met by appellant, since there is no evidence of fraud or mistake, and since appellees have not shown any valid reason, recognized by our former decisions, for opposing annexation, we have concluded that the record contains no substantial evidence to overcome the prima facie case for annexation or to meet the burden placed on appellees as explained heretofore. Hence there is no substantial evidence to sustain the judgment of the trial court and it is therefore reversed, and the order of the County Court is reinstated.


text:
    Scott v. State.
    5-1870
    326 S. W. 2d 812
    Opinion delivered June 1, 1959.

      Eugene Coffelt, for appellant.

      Harcly Croxton and Clayton Little, for appellee.
   Paul Ward, Associate Justice.

This is a condemnation proceeding instigated by the State of Arkansas for the use and benefit of the Pea Ridge National Park Commission, pursuant to the powers given by Act 192 of the 1957 General Assembly, to acquire 139 acres of land belonging to Mrs. L. D. Frances Scott, et al.

Pursuant to said Act the Commission is attempting to acquire the aforementioned land in order to convey it to the United States of America, or any of its agencies, for inclusion in the Pea Ridge National Park. Section Five (5) of the Act provides for the appraisal of the land by three qualified and impartial appraisers, but further provides that if the owners of the appraised land refuse to sell for the appraised price, then the Commission may acquire the same by condemnation. Suit was first filed in the circuit court of Benton County, but was removed to chancery court on the motion of the landowners. Later, however, the landowners chose to abandon all questions except the value of the land and asked to have the cause referred back to circuit court for a jury trial. This motion was refused, but, over the objections of appellant, a jury was impaneled in the chancery court to fix the amount of damages. After taking testimony and after the jury was instructed by the chancery court, a verdict was returned in favor of the landowners in the amount of $16,500, from which judgment comes this appeal by one, and only one, of the owners.

In view of the decision hereafter reached, many of the questions which were argued by both sides on appeal are passed over, and we will consider only the matter of the amount of compensation. It is conceded by both sides that the verdict of the jury fixing the amount of compensation was not binding upon the chancery court. Therefore, we will review the proceedings as we do in a chancery case.

It is the contention of appellant that the Commission’s appraisers valued the land solely for its agricultural purposes, and she insists their land has a peculiar or unusual value, aside from agricultural purposes. The testimony on the part of appellants is substantially as set out below.

Alvin Seamster testified in substance: I have been in Federal service- and practiced law for more than 30 years; at the present time I am writing a history of Benton County and the Pea Ridge Battlefield and am well acquainted with Elkhorn Tavern, which is a part of the property being condemned; from history the Elk-horn Tavern property was used as a hospital for both the Union and Confederate soldiers, and the Elkhorn Tavern was the center of battle on the 7th and 8th; Elk-horn Tavern property has been used for a museum for the last 40 years; people go up there and go through the property, and I have been up there with groups of people to show them the battlefield; I have all the history that has been written about the battle of Pea Ridge and the Elkhorn Tavern, and I will produce the records providing they may be returned to me; the Elkhorn Tavern was built in 1832, and I know the history behind the horns that are on the Tavern; I know that Clyde Ellis, while he was in Congress, tried to get a bill through Congress to have it declared part of a national park; when the Tavern was rebuilt, it was built on the old foundation ; the property will get more valuable as time goes on. Much of the testimony set forth above was objected to by the State and sustained by the court, but, as we shall later show, we think it was competent.

Wallace Scott testified substantially as follows: I have lived at Elkhorn Tavern 59 years, and Frances Scott is my mother; she is 93 years old and lives at the Tavern; she was born at the Tavern and the property in question has been in the Scott family since 1832; the property has been used as a museum, tourist attraction and park purposes for the last 40 years; people come up there to look over the battlefield and see the museum; the chimney on the Tavern was built in 1833; we have not spent any money to develop it or promote it or advertise it; we keep registers for people to sign from time to time, and there have been people in the Tavern from 42 states and 6 foreign counties; I checked the number of people that went through the Tavern from May 1st until July 23rd, and during that time 4,360 people registered; we don’t have any more people visiting the Tavern now than we did have years ago • — • in fact, there were more tourists in 1949 and 1950 than there are now; the property is not for sale and it has never been on the market for sale; we have had several chances to sell the property, and many of them tried to get us to make an offer, and one party in Oklahoma City has tried several times to buy the property. (The witness offered to show that an offer of $50,000 had been made for the property but was not allowed by the court to do so.)

Willie G-alyen stated that he lived a mile from Elk-horn Tavern for 20 years and that people congregate there from everywhere and go to visit the old battlefield. He doesn’t notice them visiting any of the other farms, but they come to Elkhorn Tavern, and there are no more people coming now than 5 or 10 years ago. Testimony similar to the above was given by Elmer Smith.

Edgar A. Harris testified in substance: I have lived at Springdale for a year and before that I lived in Oklahoma City, Tulsa, Claremore, Cleveland, Ohio, and Chicago; I am a retired educator, formerly connected with Oklahoma A. & M. and with the Department of Education in Oklahoma for 10 years, and am well acquainted with the Elkhorn Tavern property; I first visited the Tavern in 1932 with a group, and I wrote a thesis on the Creek Indians and Creek Nation in Oklahoma, wherein many references are made to the Battle of Pea Eidge in Indian History, and I understand that the Trail of Tears runs through the Elkhorn Tavern property; I am familiar with the value of property of the nature of Elkhorn Tavern for its unusual adaptability, and I have bought and sold property in Benton County; based upon my knowledge of the value of real estate and my acquaintanee with the Elkhorn Tavern property and what it is being used for, it is my opinion that it is worth $100,-000, and I think Elkhorn Tavern property could easily be sold for $100,000.

C. A. Linebarger testified in effect: I have lived in Benton County 58 years and I am one of the founders of Bella Vista and still own Wonderland Cave at that place; I developed that area and have spent my life dealing with tourists; I have been familiar with Elkhorn Tavern property since 1930, and at one time I tried to buy the property.

Mr. Hugh Johnson testified substantially as follows: I have dealt with tourists for the last 8 or 10 years and have been on the Elkhorn Tavern property only one time, but have heard of the property for the last 40 or 45 years; I am familiar with the value of property that attracts tourists and is capable of being used in the tourist business, and from my knowledge and experience, I place the value of the Elkhorn Tavern property at $125,000.

Bennie McCann testified in substance: I have been in the real estate business at Seligman, Missouri, for about 20 years, and I have been familiar with the Elk-horn Tavern property all my life, and it is my opinion that the fair market value of this property is $50,000, but if it were used as an ordinary farm I would place the value at $8,000 or $9,000.

Bill Hunt testified that he had been in the real estate business at Rogers for 20 years; that he was familiar with land values in Benton County, and with the Elkhorn Tavern property, and that he placed the value of said property at $50,000.

The following testimony was introduced on behalf of the State to show the value of the land taken:

Harry Pratt, County Clerk of Benton County, testified that the assessment record shows 118 acres assessed for 1950 through 1956 at a value of $300 and for 1957 it shows an assessed value of $790.

Joe Johnson, a real estate dealer and appraiser of farm lands in Arkansas, Missouri and Oklahoma since 1947, stated that he was one of the appraisers appointed under the provisions of said Act 192; that he appraised the Elkhorn Tavern property consisting of 139 acres at $9,067.50, being $4,992.50 for the land and $4,279 for the buildings; he stated that he appraised the value partially on an agricultural basis. In the explanation of the above, the witness stated that he appraised 24 acres on which the buildings were located at $70 an acre, 12 acres at $60 an acre, 12 acres at $14 an acre, 91 acres at $94.50 per acre; and the land right across from Elkhorn was appraised at $110 or $115 per acre. He also stated that in his opinion the tourist attraction feature added nothing to the value of the land unless they paid some money.

Jess DeFolliart, a licensed broker, stated that he was familiar with the Elkhorn Tavern property but had not been in the house and had not been in the museum; that the land is rough timbered land and partly brushy; and that from an agricultural standpoint, the property is worth $5,000, and for all purposes not to exceed $10,000. On cross-examination he said there is nothing at Elkhorn Tavern property to attract tourists, but later stated there might be some attraction. "When asked if he appraised the property on the basis of a park, his answer was “No”. He further stated: “I appraised it, as I told you a while ago, on the basis of comparable land and improvements and what they would bring over the country.” When asked how he appraised the property, he answered: “Well, I placed the value of about, as far as agricultural purposes, of, I would say, around $3,500, and then added $10,000 for the historical situation.”

The last witness, who was a banker at Pea Ridge, stated that he had known the Elkhorn Tavern property all his life and was familiar with land values, but had no idea what the return would be from the tourists. .

Prom the portions of the record set out heretofore and after a careful reading of the entire record, we cannot escape the conclusion that the Commission’s testimony as to the value of the lands in question was based largely, if not entirely, on its use for agricultural purposes. Moreover, we cannot help but be impressed with the fact that appellant was somewhat restrained from fully developing her case on her announced theory that the lands have a special value as a tourist attraction. We note that in some 40 or 50 instances when appellant was attempting to develop her case in accordance with her theory appellee objected and was sustained by the court. This court has many times recognized that land may have value based on peculiar qualities, conditions or circumstances, and we have many times announced rules relative thereto. In the early case of Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, involving the taking of land by the railroad for a bridge site, the court approved from Mr. Cooley this statement: “The principle upon which the damages are to be assessed is always an important consideration in these cases; and the circumstances of different appropriations are sometimes so peculiar that it has been found somewhat difficult to establish a rule that shall always be just and equitable. ’ ’ In the ease of Gurdon and Ft. Smith Railway Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019, an action to determine the value of property taken for a railroad right-of-way, the court said it was competent to show its advantageous location for that purpose. In the same case the court said: “The owner has a right to obtain the market value of the land based upon its availability for the most valuable purpose for which it can be used. The peculiar circumstances of its location and the character of the surrounding country may be proved in order to show the adaptability of the land taken for the purpose desired because that would be an element of value which the owner would have a right to insist upon in estimating the value of his land.”

The same principle was announced in Ft. Smith & Van Buren District v. Scott, 103 Ark. 405, 147 S. W. 440, where the value of land suitable for a bridge site was under consideration. There the Court said: “. . .we cannot see why these facts could not all be taken into consideration in estimating the value of the land condemned for a bridge site, nor why would they not have been such things as the owner of the land desiring to sell it would naturally call to the attention of one proposing to buy.” In speaking of the rule relative to the measure of damages the court said: “The measure of the owner’s compensation for the land condemned is the market value thereof at the time of taking for all purposes, comprehending its availability for any use to which it is plainly adapted, as well as the most valuable purpose for which it can be used and will bring most in the market.”

Text writers are also in accord with the rules above announced. In 18 Am. Jur., under the subject of Eminent Domain, Section 245 entitled “Value from Peculiar Availability for Use for which Taken, ” it is stated: “If, however, entirely apart from the fact that the property was taken for a particular use, it appears that it was exceptionally adapted and available for such use, as, for example, for a municipal water supply, or for a railroad, or for a bridge, and the necessity for such use was so imminent as to add something to the present value in the minds of possible buyers, that element may be considered in determining the fair market value.” In 29 C. J. S. under Eminent Domain, Section 160, it is stated: “The value of land condemned is not to be estimated simply with reference to the condition in which the owner has maintained it or for the use to which it is at the time applied, but with reference to any use to which it is reasonably adapted.”

In the case under consideration there is no room for doubt, it seems to us, that appellant’s property has a peculiar and special value over and above its value for agricultural purposes. In fact, appellant does not claim that the land is valuable for agricultural purposes. It seems to us that the very fact that the State desires to acquire this land so that it may be deeded to the United States for national park purposes is a strong indication that appellant’s land has a peculiar value. “We think appellant’s witnesses were qualified to testify regarding this peculiar value. Since, as we have heretofore stated, it appears that appellee’s testimony regarding the value of the land in question failed to fully take into consideration this peculiar value, we feel that great weight must be given to the testimony of appellant’s witnesses. Since their testimony fixes a minimum value of $50,000, and since we try the case de novo as in other Chancery appeals, we conclude that a value of $30,000 for the lands in question is established by the weight of the evidence.

We are unable to determine from the record what interest appellant has in the land or how many other people have an interest therein. Therefore, we are remanding the case to the trial court to determine the exact interest appellant has in the property.

If, however, there are other parties holding an interest in the land in question they will not be allowed to benefit by the increased amount of damages resulting from this decision because they have not appealed from the decree of the trial court. See: Clark et al v. Barnett, 24 Ark. 30; Thorn and Wife v. Ingram, 25 Ark. 53; Cannon v. Lunsford, 89 Ark. 64, 115 S. W. 940; Moore v. Price, 101 Ark. 142, 141 S. W. 501; Maners v. Walsh, 180 Ark. 355, 22 S. W. 2d 12; A. S. Barboro and Co. v. James, 205 Ark. 53, 168 S. W. 2d 202 on rehearing at page 61 of the Arkansas Reports. The rule announced by these cases is well stated in the headnote of the Clark case, supra, which reads: “It is the settled practice in this court not to disturb the decree of the court below for errors committed against a party who does not appeal from the decree.”

The decree of the trial court is therefore modified to the extent heretofore mentioned and the cause is remanded with directions to determine what interest appellant has in said lands and, based on such determination, to award her the correct portion of $30,000, and to award each of the other interested parties his or her correct portion of $16,500.

Modified and affirmed.


text:
    Wilson v. Ellis.
    5-1873
    324 S. W. 2d 513
    Opinion delivered June 1, 1959.

      Sam Anderson and Holt, Parle & Holt, for appellant.

      Walter J. Hebert, Lloyd E. Darnell, G. A. Stanfield, Q.. Byrum Hurst, N. L. Schoenfeld, for appellee.
   Paul Ward, Associate Justice.

This election contest grows out of the first democratic primary on July 29, 1958, to select the nominee for sheriff of Garland County. The tabulation of the returns by the election officials showed 6,143 votes for Leonard Ellis, appellee; 5,942 votes for Clyde Wilson, appellant, and; 175 votes for Doyle Rowell, there being only three candidates for the office of sheriff. On July 30, appellant demanded a recount before the Garland County Democratic Central Committee, the result of which showed 6,172 votes for. appellee, 5,933 votes for appellant, and 182 votes for Rowell, and on August 1st, appellee was declared the nominee and certified as such.

On August 18, 1958, appellant filed a complaint in the Circuit Court pursuant to, and within the time provided by Arli. Stats. Sec. 3-245, contesting the certification of appellee. Three days later (the last day for filing under the above statute) he filed an Amendment to the Complaint, and some two and one-half months later (on November 3, 1958) he filed another Amendment. Appellee filed a demurrer to the complaint and the first Amendment, and also filed a Motion to Strike the second Amendment. After taking testimony on the Motion to Strike the trial court sustained appellees’ demurrer, struck portions of the second Amendment, and dismissed the complaint from which action of the trial court appellant prosecutes this appeal.

We deem it unnecessary to consider the action of the trial court on the Motion to Strike, because we have concluded that the complaint and the first Amendment fail to state a cause of action and that they cannot be corrected to do so by the second Amendment since it was not filed within 20 days after certification as provided by the above cited statute.

This brings us to an examination of the allegations contained in the complaint and the first Amendment. Since the Complaint and the Amendment contain a very large number of paragraphs, with each paragraph purporting to state a separate allegation or ground for relief, and since many of the allegations or grounds are similar, we will consider them in groups rather than separately. It would, we believe, also unduly extend this opinion and add nothing to its value as a precedent to copy the pleadings in full.

(a) One allegation reads as follows: “Many persons voted absentee in said primary who were not qualified electors.” It will be noted that the above contains no allegation as to how many voters were allegedly disqualified nor does it say for whom the votes were cast. There were seven other paragraphs in which the allegations were of the same nature.

(b) Another paragraph of the complaint reads: “Many persons voted absentee ballots who claimed to be voting for the first time and who voted for the defendants, Ellis and Rowell, and no written affidavits of such right to vote were taken and attached to their ballots as required by law.” It will be noted that while it is stated for whom the votes were cast, the number of votes is not given. Again, there were seven other allegations of exactly the same nature.

(e) Another paragraph reads:

“In Ward 2, Box A, this Plaintiff, according to the election returns, received 182 votes; the Defendant, Leonard Ellis, received 329 votes and the Defendant, Doyle Rowell, received 4 votes. This Plaintiff alleges the truth to be that he received more than 182 votes in Box A,. Ward 2 of the City of Hot Springs, and the Defendant Ellis received less than 329 votes in Box A, and the Defendant Rowell received less than 4 votes in Box A, and that a proper count of the ballots cast in Box A, Ward 2 of the City of Hot Springs, Arkansas, will establish the truth of this allegation.”

While the above paragraph gives the number of votes- and for whom cast, there is no allegation as to what extent the result would be changed if a proper count were made. The complaint contains four or five other paragraphs of this same nature.

(d) One of the paragraphs reads as follows:

“One Grlen Buchanan, a duly appointed guard of Ward 2, of the City of Hot Springs, Arkansas, and an employee of the Southern Club in said City, was overzealous in his efforts to secure votes for the Defendant Ellis and openly solicited votes for said Defendant Ellis inside the polling place.”

The above, of course, does not allege that any illegal votes were cast for Ellis, and certainly no specific number. If the allegation was meant at the time to be the basis of fraud, it has not been so urged on appeal. Moreover, it is well established by our decision that many election regulations such as this one, which are mandatory and may be enforced before the election are not mandatory after the election, and that the courts do not favor disfranchising a legal voter because of the misconduct of another person. See: Ellis v. Hall, Secretary of State, 219 Ark. 869, 245 S. W. 2d 223, and Orr v. Carpenter, 222 Ark. 716, 262 S. W. 2d 280. There were 8 other paragraphs in the complaint of the same nature.

(e) In another paragraph appellant alleged:

“Eighty-one illegal ballots were cast for the defendants, Leonard Ellis and Doyle Rowell, in one lot in the absentee box by employees of Olsen’s Carnival, Inc., all in the same handwriting and all of said absentee ballots were mailed to the County Clerk in one envelope and all of said eighty-one illegal votes were cast and counted for the Defendants Ellis and Rowell.”

The above allegation comes closer to stating a cause of action than any of the others, in our opinion, but we think it also fails to make out a prima facie case. First, it will be noted there is no allegation that all, or how many, votes were cast for Ellis. Therefore, according to the allegation, 3 of the 81 votes could have been cast for Ellis and 78 for Rowell, which would leave Ellis with 100 votes more than the required majority, and still the nominee. In the case of McClendon v. McKeown, 230 Ark. 521, 323 S. W. 2d 542, we said in commenting on McClendon’s complaint: “He has never stated as a fact that he received a majority of all legal votes cast in the election, he has merely stated that if the ballot boxes were opened and the alleged illegal ballots cancelled and a retabnlation made, be . . . verily believes be will have received more votes than L. O. McKeown.” (Emphasis supplied). There, we held the above allegation insufficient. Here, appellant does not even express a belief that be would have a majority.

Nor does a general allegation at the end of appellant’s complaint to the effect that be would have a majority of all the votes if all illegal votes were cast out. The simple reason is that a large number of indefinite allegations cannot add up to a definite allegation.

When all the above is considered in the light of our former decisions and the pertinent statutes, we are forced to conclude that the Complaint and the Amendment do not state a cause of action.

This case is controlled to a large degree by our recent opinion in McClendon v. McKeown, supra. There we affirmed the Circuit Court which sustained a demurrer to a complaint because it failed to state “bow many legal votes be (appellant) claimed that each candidate received.” There is no such allegation in this case. In that case we also said: “but McClendon has never given the name of any person alleged to have cast an illegal ballot.” That statement is true in the case under consideration. The only way in which the cited case differs from this case is that McClendon refused to give names, while here it appears that appellant merely failed to do so. We believe that difference is not controlling here for the reason that appellant made two attempts and failed to give names, and also because be was present when the ballot boxes were opened by the Central Committee and be bad every opportunity to secure names if be desired to do so. In the McGlendon case we also said: “It was not the duty of the Circuit Court on its own initiative to ask McClendon to name the persons alleged to have cast illegal ballots; it was McClendon’s responsibility to allege a cause of action.” We know of no reason why the same rule should not be applicable in the case under consideration. Not only does the statute (Ark. Stats. Sec. 3-246) require the contestant to make out a prima facie case, but tbe same requirement was made in Robinson v. Knowlton, 183 Ark. 1127, 40 S. W. 2d 450; in tbe McClendon case, and: in Hailey v. Barker, 193 Ark. 101, 97 S. W. 2d 923. In Hill v. Williams, 165 Ark. 421, 264 S. W. 2d 964, we said it was necessary to allege facts and not conclusions. In Moore v. Childers, 186 Ark. 563, 54 S. W. 2d 409, it was beld that a complaint could not be based on mere conclusions.

We have carefully examined each one of tbe numerous allegations in appellant’s pleadings and find a total failure to set out tbe names of tbe persons alleged to bave cast illegal votes, and that tbe allegations are indefinite or based on conclusions or on irregularities that are not mandatory at tbis stage of tbe proceedings. Tbis being tbe case, we think appellant bad no right to file bis amendment after tbe statutory time of 20 days bad elapsed.

In summation of tbe entire matter we adopt as pertinent here tbe following statement which was approved in closing tbe McClendon opinion, supra:

“Neither tbe allegations nor the prayer of tbe Petition set out a prima facie case under tbe procedure and allegations essential to state a cause of action for such an election contest. Tbe Petition and prayer for relief suggest a discovery proceedings or ‘fishing expedition’ wherein tbe Court is asked to supplant or substitute tbe Court for tbe County Central Committee . . . It is not tbe duty, or within tbe power, of tbe Court within tbe scope of tbe allegations and prayer of tbe Petition herein, to impound and open tbe ballot box or boxes, and, in effect canvas tbe votes cast for Mayor (Sheriff) in order to declare tbe nominee . . .”

Affirmed.


author: Sam Bobinson, Associate Justice.

text:
    Lincoln v. Lincoln.
    5-1866
    324 S. W. 2d 516
    Opinion delivered June 1, 1959.

      Gentry S Gentry, for appellant.

      Charles J. Lincoln, for appellee.
   Sam Bobinson, Associate Justice.

Appellant, Louise Gr. Lincoln, appealed from an order granting appellee, Charles J. Lincoln, a reduction in alimony.

The parties were married in 1946 and a divorce was granted to appellant in 1954. No children were horn to the couple. They agreed on a property settlement which, among other things, provides for alimony in the sum of $100 per month, but it was expressly agreed that the chancery court should retain jurisdiction for the purpose of modifying or terminating the payments of such monthly support. Subsequently appellee married a lady with two minor children. In addition, two children were born to this marriage. Later one of appellee’s stepchildren died and there were expenses of about $3,500 in connection with the child’s illness and untimely death. Appellee got in arrears with his alimony payments and had to borrow about $2,300 to make the account current. He now owes debts totaling $8,365.00.

At the time of the divorce, appellant was not working, but she now has a job and earns $185 per month, and her salary will be increased to $200 per month in the very near future. When the divorce was granted appellant was earning $420 a month. He now gets $440 a month after taxes, group hospitalization and social security payments are deducted. When the divorce was granted he lived at the home of his mother and had no living expenses. Now, he has a wife and three children to support and owes over $8,000. There has been a decided change in circumstances since the divorce was granted.

In support of her contention that the alimony should not be reduced, appellant cites Lewis v. Lewis, 213 Ark. 262, 209 S. W. 2d 874, but there, after considering all the facts, which were not as favorable for the reduction of alimony as the facts in the case at bar, the alimony was reduced to some extent and such reduction was affirmed by this Court. In McCutcheon v. McCutcheon, 226 Ark. 276, 289 S. W. 2d 521, we said: “For reversal, appellant contends the remarriage of appellee and birth of his second child did not constitute such a changed condition as would warrant a reduction of the monthly support payments. . . . While the fact that a divorced husband has remarried is not alone ordinarily a ground for reducing the amount of the allowance for child support, it is a circumstance that may be considered in weighing the equities of the situation.”

The Chief Justice and Justices McFaddin and Ward would modify the order of the trial court by reducing the alimony to $75.00. But, when all the facts are considered, the majority of the Court feel that we cannot say the chancellor erred in reducing the alimony to $50 per month.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Bullington v. Farmers' Tractor & Implement Co., Inc.
    5-1879
    324 S. W. 2d 517
    Opinion delivered June 1, 1959.

      Pope, Pratt $ Shamburger, by Julius G. Acchione, for appellant.

      Williams S Gardner and Barber, Henry, Thurman & McGaskill, for appellee.
   Sam Robinson, Associate Justice.

This is an appeal from a directed verdict in a suit for damages growing out of an automobile wreck. On June 11, 1956, appellant, Bullington, wbo lives in Pulaski County, was on bis way to Morrilton, when bis car developed trouble in tbe lubrication system. Upon his arrival at Morrilton, be took tbe car to appellee, Farmer’s Tractor & Implement Company, hereinafter referred to as Farmer’s, to have his friend, appellee O. D. Eaton, a mechanic employed by Farmer’s, make the necessary repairs. Eaton discovered there was a leak in the oil line, and repaired it. He also had the motor steam cleaned, checked the points and plugs, and tuned the motor. At that time Bullington paid the bill. There is no dispute about what happened up to this point. Later, while driving the car on Highway 64 west of Morrilton, with Bullington riding in the car, Eaton drove off the highway. The car was thereby wrecked and Bullington was injured. Bullington filed this suit against Eaton and Farmer’s for damages due to personal injuries and for damages to the automobile. The trial court directed a verdict for the defendants and Bullington has appealed.

Appellees attempt to sustain the directed verdict on two theories: First, Farmer’s contends there is no substantial evidence that Eaton was acting in the course of his employment at the time the mishap occurred; and, second, both Eaton and Farmer’s contend there is no substantial evidence of negligence on the part of Eaton. Bullington testified that they were driving on the highway at the time of the wreck, for the purpose of checking the car. Exhibit 8 introduced by Bullington is a statement made by Eaton regarding the wreck. From this statement it appears that Eaton was looking at the oil pressure gauge at the time the wreck occurred. It will be recalled that Eaton had repaired the oil line. In a statement made in connection with a claim by Eaton for workmen’s compensation due to injuries he received, Mr. C. C. Torbett, president of Farmer’s, stated that at the time of the accident Eaton was “checking a car that had been worked on”. Bullington’s testimony that they were checking the ear, plus a statement of Torbett on that point, and the statement of Eaton that be was looking at the oil pressure gauge when the accident occurred, made a case for the jury on whether Eaton was acting in the course of his employment at the time. There is circumstantial evidence to the effect that perhaps Bullington and Eaton were joyriding at the time of the wreck, but it was a jury question.

Appellees’ second point is that there is no substantial evidence of negligence on the part of Eaton. We think the doctrine of res ipsa loquitur applies. Eaton was driving the car at about 50 miles per hour on a good hard surface road. From his statement in Exhibit 8, it can be inferred that he was watching the oil pressure gauge and not the road. If such were a fact, it would be a question for the jury as to whether Eaton was negligent. But in any event, the circumstances were such as to place upon Eaton the duty of explaining his action of driving off the highway. The operation of the car at the moment was under the control of Eaton and at 50 miles per hour only a fraction of a second was required to go from the road into the ditch. There was nothing Bulling-ton could have done that would have prevented the wreck. There is no indication that prior to the mishap Eaton had been driving in a reckless manner that required Bullington, if acting with due care, to remonstrate with him or request or demand that he change his manner of driving.

One of the requisites for the application of the res ipsa loquitur doctrine is that the instrumentality causing the injury must be under the exclusive management or control of the person charged with negligently causing the injuries. In the case of Southwestern Tel. & Tel. Co. v. Bruce, 89 Ark. 581, 117 S. W. 564, the Court said: “And, where the defendant owes a duty to plaintiff to use care, and an accident happens causing injury, and the accident is caused by the thing or instrumentality that is under the control or management of the defendant, and the accident is such that in the ordinary course of things it would not occur if those who have control and management use proper care, then, in the absence of evidence to the contrary, this would be evidence that the accident occurred from the lack of that proper care. In such case the happening of the accident from which the injury results is prima facie evidence of negligence, and shifts to the defendant the burden of proving that it was not caused through any lack of care on its part.” See also Johnson v. Greenfield, 210 Ark. 985, 198 S. W. 2d 403. And see Hartsell v. Hickman, 148 F. Supp. 782. The res ipsa loquitur doctrine has frequently been applied in cases such as the one we have under consideration. 5A Am. Jur. 820.

Eaton was a mechanic. He had worked on the automobile and there was evidence that he was testing the car at the time of the wreck. The jury could have concluded that the car was under the control of Eaton for the purpose of checking it. When all of the facts are considered, we think the doctrine of res ipsa loquitur is applicable.

In view of the fact that the case must be sent back for a new trial, we point out that appellant’s contention that his Exhibit 9 should have been admitted in evidence is well taken. Appellant attempted to introduce in evidence a written statement of the defendant Eaton. Defendants’ objection to admitting the statement in evidence was sustained by the court. We think the statement is admissible with an admonition to the jury that it should be considered in the case against Eaton only, and not against Farmer’s. According to Eaton’s statement, Exhibit 9, he was looking at the oil pressure gauge at the time the automobile left the road. The statement was in the nature of an admission by the defendant Eaton and as such it was admissible as original evidence, the same as Exhibit 8, which had been admitted.

In Covington v. Little Fay Oil Co., 187 Ark. 1046, 13 S. W. 2d 306, this Court said: “It is well settled that any statements made by a party to a suit against his interest, bearing on material facts, are competent as original testimony. Collins v. Mack, 31 Ark. 684; St. L. I. M. S S. R. Co. v. Dallas, 93 Ark. 209, 124 S. W. 247; Jefferson v. Souter, 150 Ark. 55, 233 S. W. 805; and McCor mack-Reedy Lumber Co. v. Savage, 169 Ark. 192, 273 S. W. 1028.”

Reversed and remanded for new trial.


author: Jim Johnson, Associate Justice. J. Seaborn Holt, J.,

text:
    North Hill Memorial Gardens v. Hicks.
    5-1882
    326 S. W. 2d 797
    Opinion delivered June 1, 1959.
    [Rehearing denied September 7,1959]

      Howell, Price <0 Worsham, by Dale Price, for appellant.

      Ike Murry and JohnF. Park, for appellee.
   Jim Johnson, Associate Justice.

This case involves an attempt to prohibit the establishment of a cemetery near North Little Rock, Pulaski County. Pursuant to Act 250 of 1953 (Secs. 82-411 through 82-426, Ark. Stats., 1957 Supplements), the Arkansas Cemetery Board issued a cemetery permit to appellant Tommy H. Russell, an individual doing business as North Hills Memorial Gardens, to establish, construct and maintain a perpetual care cemetery on 200 acres of land particularly described in the permit. The land is located on Highway 67 between North Little Rock and Jacksonville.

This permit was granted on August 13, 1958. Almost three months thereafter on November 3, 1958, appellees, who are property owners and/or residents in the vicinity of the proposed cemetery, filed this suit requesting a mandatory injunction enjoining the cemetery from operating as such and praying that the permit issued by the Board be cancelled.

A temporary injunction was also prayed for and upon a hearing was refused. At the conclusion of the case the Chancellor’s decree was silent as to the injunction, but he cancelled the permit issued by the Board. Prom the action of the court this appeal followed.

Act 250 of 1953 is primarily a banking measure regulating the creation, maintenance and operation of perpetual care cemeteries. The Cemetery Board is comprised of the State Bank Commissioner as Chairman, and the State Health Officer and the Securities Commissioner of the Bank Department as the other two members. To locate such a cemetery in a rural area, the Act provides that applicant shall secure a recommendation as to the need and desirability from the County Judge. In addition to providing for strict regulations and checks on the trust funds accumulated, See. 8 and Sec. 9, as amended by Act 295 of 1957, (Sec. 82-418 and Sec. 82-419, Ark. Stats. 1957 Cum. Pocket Part), read as follows:

“Upon receipt of the application, the Cemetery Board shall cause the State Health Department to make, an investigation of the proposed cemetery location with respect to a sanitary viewpoint. The State Health Department in making any such investigation shall take into consideration the proximity of the proposed cemetery, or extension, to human habitation, the need of a new cemetery, the nature of the soil, the drainage of the ground, the danger of pollution of valuable springs or streams or water and such other conditions as would bear upon the situation. Having completed this investigation, the' State Health Department shall promptly submit in writing its approval or disapproval from a sanitary standpoint to the Cemetery Board. In the event the Health Department disapproves the proposed cemetery location, further action on said application shall be suspended until the applicant acquires a location which meets the approval of the Health Department.
“If the applicant has fully complied with all the provisions of this Act (Secs. 82-411 — 82-426) and if the State Health Department approves the location of the cemetery, the application shall be submitted to the Cemetery Board for investigation and for approval or disapproval. The Board shall immediately upon the submission to it of each application make such investigation as shall enable it to determine the fitness of the applicant, the need, from the public standpoint, and all other questions bearing directly or indirectly upon the need or desirability from the public standpoint of the proposed cemetery. If the application be approved, the Cemetery Board shall issue to the applicant a permit to carry out the proposed undertaking of establishing a new cemetery. ’ ’

In the instant case the Arkansas Cemetery Board found that appellant met all the rigid requirements of the Act and issued him a permit. We said in Newton v. American Sec. Co., 201 Ark. 943, 148 S. W. 2d 311:

“It has been uniformly held by this court that where boards are lawfully appointed and charged with the duty to investigate and determine certain facts, the court cannot substitute its judgment for the judgment of the board, and the judgment of the board provided for the purpose of ascertaining the facts is controlling unless there is evidence that it was arbitrarily exercised.”

The burden of proving that the Board’s action in granting appellants’ permit was arbitrary rested on the appellees. A careful review of the record convinces us that the weight of the evidence falls short of meeting this burden.

There was testimony by appellants’ future competitors in the cemetery business to the effect that there was no need for the establishment of an additional cemetery. They cited at great length the number of lots available in established cemeteries in the county. There was no testimony to the effect that the information adduced from these witnesses in the hearing was not available to the Arkansas Cemetery Board which granted appellants permit. The County Judge recommended the need and desirability of the proposed cemetery. The Health Department investigated the need for the cemetery and reported to the board who found that there was a need for the cemetery. In the absence of statute setting out what constitutes the need and desirability of a proposed cemetery we must conclude from the action of the board that other things besides the availability of lots in other established cemeteries are taken into consideration. We find nothing in the Act calculated to create a monopoly in favor of existing cemeteries.

Appellees’ witnesses testified that they were afraid that their water wells would be contaminated because of the close proximity of the cemetery. They also testified that some of the proposed cemetery property overflowed during rainy weather. The Sanitary Engineers for the State Health Department, who made extensive investigations of the property according to the terms of the Act, testified unequivocally that the cemetery plots would not contaminate the wells and that the surface drainage is away from the houses which border the cemetery. There was further testimony by appellees that the location of the cemetery near their property would have a harmful psychological effect on them; that funeral processions would constitute traffic hazards, depreciate the value of their property, restrict the area growth and detract from the beauty of their property.

In McDaniel v. Forrest Park Cemetery Co., 156 Ark. 571, 246 S. W. 874, we said:

“As public cemeteries, for the orderly and decent sepulcher of the dead, are necessary requirements for all populous communities, private convenience must yield to the convenience of the public in fixing sites for them, and the courts should be particularly careful not to interfere to prevent such establishments, unless the mischief be undoubted and irreparable. The decided weight of authority may be said to be to the effect that a cemetery is not per se a nuisance, and ordinarily in such cases courts of equity will not interfere, but will leave the complainants to an action at law, unless it clearly appears by competent evidence that a nuisance will be brought into existence by the acts of the parties sought to be restrained, and that the party complaining will be injured unless the injunction is granted. Whether a place of interment of the dead is a nuisance depends on the position and extent of the grounds, and especially on the manner in which the burials are effected. If the grounds be arranged and drained, and the burial of the dead be conducted in a proper manner, it will not be a nuisance, either public or private. The unpleasant reflections suggested by having before one’s eyes constantly recurring memorials of deaths is not such a nuisance as will authorize the intervention of equity. It is well settled, however, that it is within the province of a court of equity to restrain the location or maintenance of a cemetery which will endanger the public health or operate as a nuisance. Accordingly, when it appears that a place of a sepulcher is so situated that the burial of the dead there will endanger life or health, by corrupting either the surrounding atmosphere or the water of wells or springs, the court will grant its injunctive relief, upon the ground that the act will be a nuisance of a kind likely to produce irreparable mischief, and one which cannot be adequately redressed by an action at law.”

In addition to the above we found in Fentress v. Sicard, 181 Ark. 173, 25 S. W. 2d 18, and Blair v. Yancy et al, 229 Ark. 745, 318 S. W. 2d 589, dealing with funeral parlors and undertaking establishments, that the establishment of such businesses would not be prohibited simply because they might be offensive to adjoining property owners’ senses and/or depreciate their property. Therefore, the use of the land as a cemetery, not being a nuisance per se, and not having been found a nuisance by the Chancellor, does not constitute an invasion of appellee’s property rights. Hence, no notice under the common law or by statute in this State was required to be furnished to adjoining property owners expressing the intention to so establish. This being true, the decree of the trial court cancelling the permit issued by the Board is accordingly reversed.

Holt and Robinson, JJ., dissent.

J. Seaborn Holt, J.,

dissenting. I do not agree with the majority view. The cemetery permit to appellants, issued to Tommy H. Russell, an individual doing business as North Hill Memorial Gardens, North Little Rock, to establish a cemetery on 200 acres of land, was issued to him on August 13, 1958. It appears undisputed that on August 27, 1957, one year before granting the present permit to appellant, the Cemetery Board had denied a permit to one Mr. Gardner to establish a cemetery about one mile north of appellant’s proposed cemetery and on the same highway toward Jacksonville, Arkansas, on the ground that such cemetery was not needed. In the present case, the Chancellor reversed the action of the Arkansas Cemetery Board and denied the permit primarily on the ground that it was not needed. The decree contains this recital: “The Court . . . finds that in April 1957 an application was filed for the construction of the .cemetery one mile north of the location of the North Hill Memorial Gardens and upon a hearing and consideration of such, application, said Arkansas Cemetery Board on August 28, 1957 found that there was no need for the Cemetery as there were adequate facilities in existing cemeteries; that said existing cemeteries are still adequate and there has been no change in conditions since the denial of that permit as will warrant the need at this time for the establishment of another cemetery in that locality.”

A comprehensive cemetery act was enacted by the Legislature as Act No. 250 in the 1953 session and as amended by Act No. 295 of 1957, now appears as Sections 82-411 — 82-426 Ark. Stats. Section 82-418 provides: “Upon receipt of the application, the Cemetery Board shall cause the State Health Department to make an investigation of the proposed cemetery location with respect to a sanitary viewpoint. The State Health Department in making any such investigation shall take into consideration the proximity of the proposed cemetery, or extension, to human habitation, the need of a, new cemetery, . . .” and 82-419 further provides: “If the applicant has fully complied with all the provisions of this Act (Sections 82-411 — 82-426) and if the State Health Department approves the location of the cemetery, the application shall be submitted to the Cemetery Board for investigation and for approval or .disapproval. The Board shall immediately upon the submission to it of each application make such investigation as shall enable it to determine the fitness of the applicant, the need, from the public standpoint, and all other questions bearing directly or indirectly upon the need or desirability from the public standpoint of the proposed cemetery.”

The 64 appellees here own farms and homes that immediately join, or are across the highway from, appellant’s proposed 200 acre cemetery and approximately 100 people live in the neighborhood. Appellees make no claim that a cemetery is a nuisance per se, or that it will constitute a nuisance, but rely solely on the ground that this cemetery is not needed. As indicated, a similar permit to a Mr. Gardner for a cemetery within one mile of the one in question here was denied by the Commission just one year before, on the ground that it ivas not needed and that the available space in the already established cemeteries in Pulasld County, and in that vicinity, was adequate for the needs of that farm community. The evidence shows no change in conditions since. At that time and now the following cemeteries are in operation in Pulasld County: “Roselawn Memorial Park, Edgewood Memorial Park, Forest Hills Memorial Park, Oakland Cemetery, Calvary Cemetery, Haven of Rest Cemetery, Chapel Hill Memorial Park Cemetery and Pine Crest Memorial Park Cemetery.” Mr. Willifred Barnhardt testified that he had been engaged in the cemetery business since 1935 and has managed Roselawn Memorial Park until 1950 and is now one of its directors. He testified that Roselawn Cemetery contains 40 acres and if all burial spaces were used, 37,120 burials could be made. Since Roselawn was established in 1920, there have been 9,000 burials throughout all 37,120 burial spaces, and that all the above cemeteries have a certain amount of acreage developed, ready for use and sale, and additional acreage for enlargement. He further testified: “I put Edge-wood Cemetery in about 1922 and it has operated with only 10 acres since. It has additional acreage available. Oakland has additional acreage- — we see burials there practically every day. Haven of Rest Cemetery has quite a lot of additional space available, but I don’t know how much. I think there are sufficient grave spaces available to maintain the needs of the county. I don’t know the exact number of acres available in all these cemeteries but there is available space in them for more development. Forest Hills Cemetery has over 100 acres. In three years I don’t believe they have a thousand burials. In North Little Rock there is the Edgewood Cemetery and Mr. Kelley’s cemetery up near Jacksonville.”

Mr. Huy Kelley testified: “ I own Chapel Hill Memorial Park Cemetery, about a mile and a half northeast of Jacksonville and about four and one-half miles from this proposed cemetery. We have developed at this time 20 acres, around 15,000 grave spaces already marked, ready for use. We have a total, land owned and have leases and options on a total of 90,000 grave spaces. It can be marked off and graves dug on very short notice in the land I own and have a ten year lease on and option to buy.”

Mr. Haskill Wallis testified: “I live at Route 5, North Little Rock, about 3 miles south of Jacksonville and have lived there about nine years. My home is on Lot I and adjoins the property where the proposed cemetery would go in. I certainly do not know of anything that has happened in the past year which has changed the situation with reference to the need for additional grave spaces or a graveyard or cemetery in that community.”

It thus appears that Roselawn Cemetery still has 28,120 available burial spaces. Edgew;ood Cemetery, which has operated with only 10 acres since 1922, still has additional space available; Forest Hills Cemetery has over 100 acres, 928 graves to the acre. It further appears that there are more than 160,000 burial spaces in this cemetery and the evidence shows that there have been approximately 1,000 burials since its opening. Haven of Rest Cemetery has considerable additional space for graves. Without taking into consideration available grave spaces in Oaklawq, Calvary and Pine Crest Memorial Park, there is a reasonable estimate of the total grave spaces available in Pulaski County from only three cemeteries (Roselawn, Forest Hills and Chapel Hills) amounting to 220,008 grave spaces available. Clearly, it seems to me, that the great preponderance of the testimony shows that there is presently no possible need for this proposed cemetery of appellant, Russell.

The majority lean heavily for support on the case of McDaniel v. Forrest Park Cemetery Company, 156 Ark. 571, 246 S. W. 874. We must bear in mind, however, that that opinion was delivered in January 1923, some thirty years.before the passage of our cemetery acts, 250 of 1953 and 295 of 1957. In this case there was no mention of the need, one of the primary requisites of granting a cemetery permit under the above Acts. There the court considered only the nuisance and sanitary features connected with, the establishment of cemeteries, as indicated in the headnotes of that opinion as follows:

“1. Nuisance — cemetery. — -A cemetery is not a nuisance per se, and ordinarily courts of equity will not interfere but will leave the complainants to an action at law, unless it clearly appears that a nuisance will be brought into existence by the acts of the parties sought to be restrained.
“2. Nuisance — cemetery.—When it appears that a place of sepulture is so situated that the burial of the dead there will endanger life or the water of wells or springs, the court will grant its injunctive relief, upon the ground that the remedy at law is inadequate.
“3. Nuisance — cemetery. — Evidence held insufficient to enjoin the establishment of a cemetery.”

Here, as pointed out, appellees rely solely on the ground that the preponderance of the evidence shows clearly that there was no need for this proposed cemetery and I think they are correct in this contention.

Justice Robinson joining.