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

text:
    W. H. CASON, FIDELITY and DEPOSIT COMPANY OF MARYLAND et al v. W. J. LEVERETTE
    73-59
    502 S.W. 2d 459
    Opinion delivered December 24, 1973

      Sloan & Sloan and Wright, Lindsey & Jennings, for R. H. White, Mary Rose White and Fidelity & Deposit Co. of Md.

      Sharpe ir Long, for appellee W. J. Leverette.

      Henry Wilkinson and Rubens ér Rubens, for appellant-appellee W. H. Cason.
   Conley Byrd, Justice.

This litigation arises out of the refusal of appellants R. H. White and Mary Rose White to vacate lands belonging to appellant and cross-appellee W. H. Cason after the expiration of a written lease.

The record shows that R. H. White and his wife Mary Rose White are substantial land owners in St. Francis County. In addition to farming the 1500 acres owned by them, they, for a number of years, have rented other land including Cason’s 240 acres. Up until some seven years before this litigation, appellee W. J. Leverette had worked as a hired hand for the Whites and in that capacity had farmed the Cason land. The lease under which the Whites farmed the Cason land expired on December 30, 1970. During the spring of 1970, Cason and Leverette started negotiations which ultimately resulted in a two year written lease dated March 1, 1971. That the negotiations between Cason and Leverette had re-suited in a contract between the two during 1970, is evidenced by a letter from Cason’s counsel to White under date of December 23, 1970. Cason’s unlawful detainer action against White resulted in judgment under date of April 29, 1971, against White for possession and for damages in the amount of $3,583.33. White promptly filed a notice of appeal and filed a supersedeas bond with appellant Fidelity and Deposit Company of Maryland as the corporate surety. The Whites continued in possession after the supersedeas was filed and made and harvested a bean and a rice crop from the land, but neglected to file the appeal from the unlawful detainer action in time for this Court to take jurisdiction. The Whites satisfied the $3,583.33 judgment, returned possession to Cason and offered a $7,000.00 check in full settlement of all liability.

This litigation was commenced when Cason brought action No. 7432 against the Whites and their supersedeas surety seeking double the rental value for the time from May through December. Leverette then brought an action (cause No. 7438) against Cason claiming damages by the way of lost profits upon his rental contract. The Whites and their supersedeas surety were vouched into this action by Cason. By agreement the two actions were consolidated for trial. The jury upon interrogatories found that Cason was liable to Leverette in the amount of $10,000.00 for his loss of profits and that the Whites were liable to Cason in the amount of $7,000.00. Upon motions by Cason the trial court set aside the $7,000 verdict in favor of Cason and granted a judgment N.O.V. in favor of Cason against the Whites and their super-sedeas surety for the $10,000 Leverette verdict together with an attorney’s fee in the amount of $1,000. For reversal the several points hereinafter discussed are raised.

POINT NO. 1. The Whites and their supersedeas surety here contend that the first action is res judicata of the issues here involved and that the filing of cause No. 7432 by Cason amounts tó the splitting of a cause of action. We do not agree. In the first place the issue of double damages was raised in the first action and thus the holding in Coley v. Westbrook, 208 Ark. 914, 188 S.W. 2d 141 (1945), is not applicable. Furthermore, we held in Dover v. Henderson, 197 Ark. 971, 125 S.W. 2d 798 (1939), that the liability of a principal and surety on a supersedeas bond in an unlawful detainer action for damages subsequent to the entry of the judgment for possession should be tested by an action at law on the bond.

POINT NO. 2. The Whites contend that the court erred in not permitting them to introduce evidence to show that their refusal to vacate was not willful. They also complain that the court erred in instructing the jury that their holding over was willful. Their proffer of proof on this point concerned only evidence that was either presented or should have been presented in the first trial. The trial court properly held that these issues were concluded by the first trial.

POINT NO. 3. The Whites say that Leverette’s claim for loss of profits should have been dismissed because his proof on the issue was speculative and conjectural. We do not agree.

The record shows that Leverette was a man of litde or no formal education. He was farming 240 acres of land only one quarter of a mile from the Cason land, and, for four of the years he had worked for White, he had farmed the Cason lands. Leverette testified that as he saw the two properties they were identical. On the 48.5 acres of rice that he farmed he made 5,090.44 bushels of rice for a total value of $13,498.07. On the 175 acres of bean land he made 4,621.33 bushels for a total value of $14,336.61. He testified that his total cost of making the two crops was $9,000. Without benefit of records he itemized from the witness stand $8,100 of the costs of making the crops on the lands he farmed. He then took his yield per acre and by multiplying that against the bean and rice allotments on the Cason lands arrived at the total values he would have received had he been permitted to farm the Cason land. Leverette then arrived at what the expenses would have been in making the crop by determining his per acre cost of making the same crops on the lands he did farm. He also showed that he had acquired the necessary tractors and combines to farm the land before the trial of the first action. Not only White but each witness he called testified that Leverette was a good farmer. Leverette testified he would have made 104 bushels of rice per acre on the Cason land. The Whites admittedly harvested around a hundred bushels per acre.

Leverette testified without contradiction that there was no other land for rent at the time the supersedeas was executed. While there is other evidence on behalf of the Whites that would raise issues as to Leverette’s credibility, we cannot say here that the evidence. as to lost profits was so speculative or conjectural that a jury issue was not made. At least the evidence meets the standard laid down in Crow v. Russell, 226 Ark. 121, 289 S.W. 2d 195 (1956).

Notwithstanding that the issue of Cason’s liability for loss of profits by Leverette was submitted to the jury upon instructions submitted by White over Cason’s objections, the Whites now apparently argue that such profits are not an element of damages for the breach of lease. Cason also makes the same argument but concedes the issue is harmless or should be waived as to him if the judgment over against the Whites is sustained. Our cases on the issue have reached different results. In Thomas v. Croom, 102 Ark. 108, 143 S.W. 88 (1912), and Brown v. Bradford, 175 Ark. 823, 1 S.W. 2d 14 (1927), we held that loss profits were not an element of damages. In Harmon v. Frye, 103 Ark. 584, 148 S.W. 269 (1912), Black v. Hogsett, 145 Ark. 178, 224 S.W. 439 (1920), and Crow v. Russell, 226 Ark. 121, 289 S.W. 2d 195 (1956), we permitted the recovery of lost profits for breach of a lease agreement. Our cases in allowing or disallowing lost profits as an element of damages on a lease contract do not explain why a lease contract ought to be treated any differently from any other type of contract in which loss of prospective profits is allowed. See Williams v. Hildebrand, 220 Ark. 202, 247 S.W. 2d 356 (1952). However, we need not decide here whether lost profits are a compensable element of damages for we have consistently held that a party who requests or acquiesces in an instruction submitting a particular issue to the jury is not in a position to thereafter complain, Farmers Co-op Assn’n Inc. v. Garrison, 248 Ark. 948, 454 S.W. 2d 644 (1970). The record here demonstrates that during the trial neither White nor Fidelity raised the compensability of lost profits as an element of damages. On the other hand the record demonstrates that the issue was submitted to the jury upon an instruction requested by White and without objection on the part of Fidelity. Cason has waived the issue here by stipulation.

POINT NO. 4. The Whites argue that Leverette is not entitled to recover damages for breach of his lease convenant, because he knew White was in possession when the lease was executed. We pointed out in Morrison v. Weinstein, 151 Ark. 255, 236 S.W. 585 (1921), that the possession or holding over of a prior tenant did not prevent a recovery by a tenant against a landlord upon a contractual covenant to give possession, for the liability grows out of the covenant.

POINT NO. 5. The Whites here contend that the trial court erred in rendering judgment non obstante verdicto in favor of Leverette against White in the Leveret-te v. Cason case No. 7438.

In making this argument they contend only that the issue was a fact one for the jury. We do not agree. As pointed out in Garrott v. Kendal, 212 Ark. 210, 205 S.W. 2d 192 (1947), a landlord is acting within his rights to execute a lease to another tenant. One who, by his wrongful detention, causes the landlord to become liable to a tenant, such as Leverette, renders himself liable for the damages recovered of the landlord as a matter of law.

POINT NO. 6. Neither do we find any merit in the White’s contention that the trial court erred in setting aside the $7,000 damage verdict in favor of Cason. The proof showed that the Whites had tendered a $7,000 check in full payment of the 1971 rent. Also the trial court had instructed the jury that the Whites were liable for double the rent value but that their corporate surety was only liable for the rent value. When the jury returned the $7,000 verdict, it was reasonably apparent to the trial court that the jury had become confused between the two instructions. When we consider that the trial court not only had the advantage of seeing the parties but heard the arguments of counsel, we cannot say that he abused his discretion in setting aside the verdict.

POINT NO. 7. We find no merit in the contention that the court erred in awarding an attorney’s fee as damages to Cason in defending the suit by Leverett. See Garrott v. Kendal, supra. Neither do we find the $1,000 fee excessive for defending the action.

Affirmed.

Jones, J., dissents.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case. I would reverse the judgment in favor of Leverette.

In the first place, when Leverette entered into the written lease with Cason on March 1, 1971, he did so with his eyes wide open to the unlawful detention action then pending between Cason and White. White’s written lease with Cason terminated on December 30, 1970, but he was still in possession of the land on March 1, 1971, and Leverette was bound to have known that the contest between Cason and White was for a determination of whether White had rented the land for 1971, or whether Cason was entitled to immediate possession. Leverette agreed to pay rent npt in dollars and cents but in bushels of rice and soybeans whether he planted or raised anything on the leased land or not. It is my view that Leverette practically invited such damages as he may have sustained in this case and that he should bear at least some of the consequences of his own actions. That, however, is not the basis of my dissent.

It is my view that Leverette simply failed to prove the damages awarded him by competent evidence in a case of this kind. He based his damages on what he said his profits would have amounted to from the Cason land had it been available to him on March 1, 1971. It is my view that evidence as to prospective profits from annual crops not raised on leased lands is entirely too speculative and uncertain to constitute competent and admissible evidence in measuring damages for breach of contract for the lease or rental of such lands.

In arriving at the profits he would have made on the Cason land, it is true, as pointed out by the majority, Leverette did itemize, without benefit of records, his cost of making a crop on other lands he farmed. That is one of the difficulties I find in the admissibility of such evidence. It could be totally self-serving and immune to successful challenge. If the market price of rice should go down and the market price of soybeans should increase during the crop year, there would be nothing to prevent such tenant out of possession from testifying he intended to plant all the land in soybeans and collect his damages on that basis. As I view the majority opinion, it would open the door to proof of prospective profits from the highest and best use of land intended by the tenant as the measure of damages for breach of a farm lease.

I would still adhere to the principle announced as early as 1883 in the case of Rose v. Wynn, 42 Ark. 257. In that case Rose leased a hotel to Wynn but was unable to deliver possession because a tenant was holding over under a former lease and was successfully resisting eviction under a retention bond. In proof of damages Wynn offered evidence as to the difference he paid for boarding his family and what it would have cost to live in the hotel had possession been delivered to him. In rejecting this evidence as too conjectural and uncertain this court said:

“The books agree that in an action by a lessee against a lessor for damages for refusal or failure to deliver possession of the demised premises the general rule for the measure of damages is the difference between.; the rent reserved and the value of the .premises for the term.
If the value of the premises for the term is no greater than the rent which tenant has agreed to pay, then the latter is not substantially injured, and can in general recover only nominal damages, though the landlord without just cause refused to give possession. But if the value of the premises is greater than the rent to be paid, the lessee is entitled to the benefit of his contract, and this will ordinarily consist of the difference between the two amounts. Adair v. Boyle, 20 Iowa 242; Trull v. Granger, 4 Selden, (New York Court of Appeals), 115; 3 Sutherland on Damages, 150; Green v. Williams, 45 Ill. 206; Dean v. Roesler, 1 Hilton 422.
It seems, also, from the current of adjudications, that if other damages have resulted as the direct and necessary or natural consequence of the defendant’s breach of the contract, these are also recoverable. For example, if plaintiff in good faith, and relying on the contract, has made preparation to take possession, and these have been rendered useless by the defendant’s refusal to comply with his contract, the authorities hold that there may be a recovery for the loss thus sustained.” (My emphasis).

I do not contend that in no case can loss of future profits from leased premises be recovered as an element of damages for breach of the lease, but the key words of distinction are those I have emphasized in the above quote from Rose v. Wynn. In McElvaney v. Smith, 76 Ark. 468, 88 S.W. 981, we said:

“When a landlord unlawfully evicts a tenant from the premises, the tenant is entitled to recover as damages whatever loss results to him as a direct and natural consequence of the wrongful act of the landlord. If the rental value of the place from which he is evicted is greater than the price he agreed to pay, he may recover this excess and, in addition thereto, any other loss directly caused by the eviction, such as the expense of removal to another place.” (My emphasis).

In Thomas v. Croom, 102 Ark. 108, 143 S.W. 88, the pertinent facts were almost identical to those in the case at bar and in that case we said:

“The measure of damages for the breach of this implied covenant for possession is the difference between the rental value of the demised premises and the rental price named in the lease, together with such special damages as have necessarily resulted from such breach. * * * The probable profits to a lessee from the cultivation of demised land is not the true measure of his damages resulting from the breach of a covenant for possession, and can not be considered in determining the amount of such damages.”

In Reeves v. Romines, 132 Ark. 599, 201 S.W. 822, Reeves rented land from Romines and was enjoined from cultivating the land in an action brought by Esmonds to whom the land had already been rented for the particular crop year involved. Reeves sued for $600 damages based on the profits he would have made from crops on the land. On the basis of McElvaney v. Smith and Thomas v. Croom, supra, we affirmed the trial court in sustaining the demurrer to the complaint.

As already stated, I do not contend that lost profits may not be considered in any case for breach of contract for the lease of land or buildings, but I do contend that such lost profits must be ascertainable and result as a direct and natural consequence of the wrongful act and must be proven by evidence free of speculation and conjecture. For example, in the operation of a soda fountain future monthly profits may reasonably be estimated on past monthly profits. Black v. Hogsett, 145 Ark. 178, 224 S.W. 439. In an egg ranch or a dairy operation, it would appear that daily or monthly profits could be easily and accurately ascertained by simple daily records and such profits could reasonably be projected into the future with some degree of accuracy; but it is my view, that the profits to be derived from rice and soybean farming are an entirely different matter.

It is my view that there are so many hazards and variables controlling the profits any one individual will derive from rice and soybean farming, or from any other annual field crop production, it would be next to impossible to predict, with any degree of accuracy, the profits he would have made from land he did not plant or cultivate, and to prove the amount of such profits without speculation and conjecture.

It is my opinion that the profits Mr. Leverette said he did make on the lands he did farm should not have been accepted in evidence as to profits he would have made on other lands he did not plant or cultivate; and I would reverse the judgment in favor of Leverette and remand for a new trial as to any actual damages, including special damages, he may have sustained as the direct and natural consequence of any wrongful acts of Cason.


source: Caselaw Access Project

author: Conley Byrd, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    Mrs. Joel LAMBERT d/b/a LAMBERT SEED COMPANY v. J. D. MARKLEY and Marie MARKLEY
    73-144
    503 S.W. 2d 162
    Opinion delivered December 24, 1973
    [Rehearing denied January 28, 1974.]

      Kirsch, Cathey, Brown ir Goodwin, for appellant.

      Branch, Adair ir Thompson, for appellees.
   Conley Byrd, Justice.

Appellant, Mrs. Joel Lambert, d/b/a Lambert Seed Company, used a two-ton Dodge truck equipped with a “cheater” axle in the operation of her seasonal seed business. While the truck was being driven along the highway near a railroad siding running parallel thereto, the right rear duals from the “cheater” axle became detached, rolled across the ground between the highway and the railroad siding and struck ap-pellee, J. D. Markley, a member of a train crew at work on the siding. Mr. Markley was taken to the hospital where he remained for some time. The railroad employees picked up the dual wheels and transported them to the train station in Paragould where they remained in the control of the railroad company for several days. The driver of appellant’s truck did not know that the wheels had become detached until he was stopped at Paragould, several miles from the scene of the accident.

The complaint alleged, and evidence was submitted to the jury upon, the issues of res ipsa loquitur and the specific negligence allegations that appellant failed to maintain her vehicle in a safe operating condition and failed to attach the dual wheels to the truck in such manner to keep the hub and wheels from separating from the truck. There was a dispute in the evidence with reference to the presence or absence óf a lock washer required to keep the wheels attached to the truck. However, the trial court submitted the issues to the jury only upon A.M.I. 305, duty to use ordinary care, and A.M.I. 610, res ipsa loquitur. For reversal of a verdict and judgment in favor of Mr. and Mrs. Markley, appellant raises the issues hereinafter discussed.

POINT I. In contending that the trial court erred in giving the res ipsa loquitur instruction, appellant principally relies upon Ford Motor Company v. Fish, 232 Ark. 270, 335 S.W. 2d 713 (1960). In that case Fish, a game warden, was driving a new Ford pickup which allegedly left the highway and caused personal injuries because a defective brake grabbed the right front wheel. Upon proof that the brake mechanism was bolted together at Ford’s factory and that it had not been tampered with, the trial court there submitted the issues to the jury on a res ipsa loquitur instruction. We there held the instruction erroneous, but in doing so we neither added to nor qualified the res ipsa loquitur doctrine.

When we remember that the res ipsa loquitur doctrine is based in part upon the theory that the defendant either knows the cause of the accident or has the better opportunity of ascertaining it, it can be readily seen that the case of Ford Motor Company v. Fish, supra, does not support appellant’s position. We there pointed out not only that Fish had not made the necessary showing that he was not also negligent, since he was operating and in possession of the automobile at the time of the injury, but that since the average auto repairman could determine the exact nature of the malfunction of the brake mechanism by merely removing some bolts, the cause of the malfunction could be as easily determined by Fish as by Ford Motor Company. That decision was in accord with the authorities generally which state that if the plaintiff has equal or superior means of information, the doctrine will not apply. See Annotation 46 A.L.R. 2d 110.

In the case before us, Mr. Markley is not in a position to have equal or superior means of information as to the cause of the wheel becoming detached. Even if we assume that the proof shows that the lock washer had been left off the wheel and that caused the wheel to become detached from the truck, that in itself would not establish negligence on the part of appellant. Still the appellant had the better opportunity to have access to all the information as to why her driver did not discover the loosened wheel before it became detached; who placed the wheel on the truck in the first place; whether she had caused proper inspection to be made to see if the wheel was properly secured for operation on the highways; and who could have assembled the wheels without the lock washer being in place. Of course the appellant here furnished proof to the effect that the lock washer was not missing, and, under these circumstances, what we said in Moon Distributors v. White, 245 Ark. 627, 434 S.W. 2d 56 (1968), in quoting from Cassady v. Old Colony Street R. Co., 184 Mass. 156, 68 N.E. 10, 63 L.R.A. 285 (1903), is most appropriate, to-wit:

“It is true that, where the evidence shows the precise cause of the accident . . . there is, of course no room for the application of the doctrine of presumption. The real cause being shown, there is no occasion to inquire as to what the presumption would have been as to it if it had not been shown. But if, at the close of the evidence, the cause does not clearly appear, or if there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence, and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff from relying upon the presumption applicable to it.”

When the facts are here analyzed, we must conclude that the trial court did not err in giving the res ipsa lo-quitur instruction. The annotator in 46 A.L.R. 2d 110 points out that a great majority of the courts from other jurisdictions hold that res ipsa loquitur is proper in the case of a detached wheel.

POINT II. Having determined that the case was properly submitted upon the res ipsa loquitur issue, it follows, without further discussion, that the trial court did not err in refusing a directed verdict.

POINT III. Appellant contends that the trial court erred in allowing appellees on direct to read from the deposition of J. C. McDaniel on the theory he was a “managing agent.” Different authorities are cited both by appellant and appellees to support .heir respective contentions that McDaniel was or was not a managing agent within the provisions of Ark. Stat. Ann. § 28-348(d)(2) (Repl. 1962). We need not here determine whether Mr. McDaniel was a “managing agent” for he later took the witness stand and testified to the same facts developed in the deposition. Consequently, the record demonstrates that reading of the deposition was not prejudicial.

POINT IV. Appellant asked the court, in accordance with A.M.I. 603, to instruct the jury that “the fact that an injury occurred is not, of itself, evidence of negligence on the part of anyone.” The court declined to give the instruction apparently on the basis that it to some extent conflicted with the res ipsa loquitur instruction which permitted the jury to draw an inference of negligence “from the manner in which the alleged injury occurred.”

The drafters of the Arkansas Model Jury Instructions recognized that A.M.I. 603 is inappropriate when Ark. Stat. Ann. § 75-623(c) is applicable. That statute provides: “. . . that if such driver is involved in a collision with a pedestrian in a crosswalk or a vehicle in the intersection after driving past a yield sign without stopping, such collision shall be deemed prima facie evidence of his failure to yield the right-of-way.” We can see little difference between the prima facie case raised by the statute and that involved in the detachment of a wheel from a moving vehicle upon a highway. Consequently, where, as here, the case is submitted to the jury only upon the issues of res ipsa loquitur and ordinary care (as distinguished from specific grounds of negligence such as speed and control), we cannot say that in view of the other instructions, the trial court committed prejudicial error in declining to give the instruction.

POINT V. Appellant also contends that the trial court erred in refusing to give her requested instructions Nos. 1 and 2 which stated:

“1. In connection with the alleged negligence of Lambert Seed Company, Lambert Seed Company is not liable for hidden or latent defects in their trucking equipment which were not or could not have been discovered by ordinary care and ordinary maintenance. If you find from a preponderance of the evidence that the defect which caused the wheel to become dislodged from the Lambert truck was a latent defect, or one which could not have been discovered by ordinary care and ordinary maintenance, then you are instructed the Lambert Seed Company is not guilty of negligence which was proximate cause of the accident.
2. Lambert Seed Company, as the owner of a motor vehicle, is not liable for injuries resulting from the defective condition of their motor vehicle in the absence of negligence on their part. Lambert Seed Company was required to exercise reasonable care to see that their vehicle was in proper operating condition and must have exercised reasonable care in the inspection of their vehicle to discover any defects that might have prevented proper operation. If you find from a preponderance of the evidence that Lambert Seed Company and its agents or employees could not have discovered the defect which was to cause the wheel from becoming detached by reasonable care and inspection of the vehicle, then Lambert Seed Company is not guilty of any negligence which was a proximate cause of the occurrence.”

The Committee in its introduction to the Arkansas Model Jury Instructions points out the guides that it used in drafting the instructions therein contained. One of those guides is that an instruction must be unslanted. In the per curiam order of April 19, 1965, we pointed out that:

“. . . Whenever A.M.I. does not contain an instruction on a subject upon which the trial judge determines that the jury should be instructed, or when an A.M.I. instruction cannot be modified to submit the issue, the instruction on that subject should be simple, brief, impartial, and free from argument.”

In commenting on what is impartial and unslanted the Committee said:

“To be unslanted the instructions must be an objective statement of the law. They are to be the court’s instructions and not partisian instructions sounding first like the plaintiff’s counsel and then like defense counsel. ...”

Even a casual reading of the two instructions offered by appellant demonstrates that they are slanted toward the defendant. For this reason the trial court properly refused the instructions.

Affirmed.

Harris, C.J., not participating.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I concur in all the majority opinion except that part relating to Point IV. As to that point, I think the failure to give AMI 605 was reversible error. In order to put the matter in proper perspective, the' wording of the instruction offered is of considerable importance as is the wording of Instruction 12 given on res ipsa loquitur, which was patterned after AMI 610. They read:

Defendant’s Requested Instruction — AMI 603
The fact that an injury occurred is not, of itself, evidence of negligence on the part of anyone.
Instruction No. 12: In addition to the rules of law I have just stated with respect to ordinary care and negligence, there are situations in which a jury may, but is not required to, draw an inference of negligence from the manner in which the alleged injury occurred. J. D. Markley and Marie Markley attest that this case involves such a situation, and therefore, have the burden of proving each of the two essential propositions.
First, that the alleged injury was attributable to the truck and dual wheels which have been under the exclusive control of the defendant, Mrs. Joel Lambert doing business as Lambert Seed Company or her employees.
Second, that in the normal course of events, no injury would have occurred if the said defendant had used ordinary care while the truck and dual wheels were under her exclusive control.
If you find that each of these two propositions has been proved by the plaintiffs, then you are permitted, but not required, to infer that the defendant was negligent. (Emphasis mine.)

Just how there is a conflict between these instructions escapes me, and no one has offered any plausible explana-don. A simple reading of the two together (with particular reference to the pordons of the res ipsa loquitur instruction I have underscored) clearly demonstrates that not only is there no conflict, but the two are completely harmonious and could not cause any confusion. This clearly suggests that the drafters of AMI 603 and 610 prepared them so they could be given without conflict. If they had thought AMI 603 should not be used where a case for the application of res ipsa loquitur arose, it is indeed strange that no caution was given in the “Note of Use” as was frequently done in such circumstances and as was done with respect to AMI 603 in reference to cases when Ark. Stat. Ann. § 75-623(c) (Repl. 1957) is applicable. To infer that these experienced, dedicated, alert and perceptive judges and practitioners were aware of a potential conflict with this statute, but unconscious of the implications of AMI 610, which with AMI 603 and fourteen other model instructions form “Chapter 6, Specific Factors Affecting Negligence and Defenses,” seems absurd to me.

A look at the basis for the two instructions will lead to the conclusion that there is no conflict. AMI 603 is based upon such cases as St. Louis-San Francisco Ry. Co. v. Ward, 197 Ark. 520, 124 S.W. 2d 975 and International Harvester Co. v. Hawkins, 180 Ark. 1056, 24 S.W. 2d 340. In Ward, the rule was articulated. We said:

Negligence is never presumed but the burden is on the party asserting it to establish the fact by a preponderance of the evidence. Nor is it to be presumed from the fact of injury and no one is liable in damages for a purely accidental injury.

In Hawkins, we said:

It is next contended by the appellant that negligence cannot be inferred merely from the injury. This is also a rule of law so well established that we need not cite authorities in support of it. While negligence cannot be inferred merely from the injury, negligence may be inferred from facts shown in evidence. And the facts here are sufficient to justify the jury under proper instructions to find that the appellant was guilty of negligence and that this negligence caused the injury.

Thus the drafters of AMI 603 demonstrated quite clearly by their citation of these two cases that the mere fact that negligence might be inferred from the facts in evidence would not preclude the giving of this instruction. See also, Great Atlantic & Pacific Tea Co. v. Gwilliams, 189 Ark. 1037, 76 S.W. 2d 65, wherein it was said that negligence, or facts from which it may be inferred, must be proved. In other words, negligence must be proved, either by direct or circumstantial evidence.

But what does AMI 610 say? It says that if the jury finds that the requisite facts are shown, it is permitted but not required to infer that the defendant was negligent. This is a positive indication that the two instructions, drafted with Hawkins in mind, were intended to be, and are, harmonious, and that AMI 603 should be given, even if the case goes to the jury on res ipsa loquitur alone. Before a jury is even permitted to infer that there was negligence from the fact of injury, it must first find that the thing which produced the injury was under the exclusive control and management of the defendant and that the occurrence is such that, in the ordinary course of events, does not happen, if due care has been exercised. Delta Oxygen Co. v. Scott, 238 Ark. 534, 383 S.W. 2d 885. In Martin v. Aetna Casualty and Surety Co., 239 Ark. 95, 387 S.W. 2d 334, we pointed out that evidence showing that there was an injury to a defendant to whom the plaintiff owed a duty of using due care, that the injury was caused by an instrumentality under the control and management of the defendant and that the accident causing the injury was such that in the ordinary course of things would not occur if those having control and management used proper care, in the absence of evidence to the contrary, would be “evidence that the accident occurred from the lack of that proper care.” Thus, the fact of injury is not evidence of negligence, even in a res ipsa case. It is only one of the circumstances essential to the permissible inference, and is to be considered along with other evidence.

Examination of the purpose and function of the doctrine of res ipsa loquitur confirms my position and the requirements of AMI 610. Negligence may be proved by circumstantial, as well as direct, evidence. Res ipsa lo-quitur is nothing more than one type of circumstantial evidence. Prosser, Torts (Fourth Edition) 213, 228, §§ 39, 40; Restatement of the Law, Torts Second, p. 157, § 328D, Comment b; Leflar and Covington, Res Ispa Loquitur in Arkansas, 8 Law School Bulletin 43. In order to make a circumstantial case, not only must the injury be shown, but there must be evidence of the requisite attendant circumstances. See above authorities and Prosser, pp. 214, 218, § 39.

I will not elaborate extensively on the distinction between the admonition against use of AMI 603 in cases where Ark. Stat. Ann. § 75-623(c) is involved and res ipsa loquitur. Of course, res ipsa loquitur is not a statutory declaration. It does appear, however, that the statute in question goes beyond the permissible inference arising from a showing of the elements under which res ipsa lo-quitur may be invoked. Prima facie evidence in the sense of that statute seems to imply that a presumption or compelled inference arises when the requisite facts are shown, unless there is evidence to the contrary. In this respect, the statute should have the same application as, for instance, former Ark. Stat. Ann. § 73-1007 (Repl. 1957), which was held to establish a rebuttable presumption of negligence which applied in the absence of contrary evidence. Missouri Pacific R. Co. v. Briner, 213 Ark. 18, 209 S.W. 2d 106. Barnhart, Use of Presumptions in Arkansas, 4 Ark. L. Rev. 128, 132, 150. On the other hand, when res ipsa loquitur applies, the inference is only permissible and a jury is free to hold against a plaintiff, even though the defendant does not introduce any evidence. See Barn-hart, Use of Presumptions in Arkansas, 4 Ark. L. Rev. 128, 133.

Although I firmly believe that AMI 603 should have been given even if the evidence had not justified the submission of the question of negligence based upon direct evidence of specific acts or omissions, the submission of the case on both approaches, i.e., res ipsa loquitur and specific negligence, seems to me to have required that it be given. This instruction negates the all too prevalent thought that if injury occurs someone should pay. If a plaintiff chooses to enter the arena of the courtroom riding both res ipsa (circumstantial evidence) and specific acts of negligence (direct evidence), there is no reason why a defendant should be penalized by being deprived of any protective device he would otherwise have against either.

I respectfully submit that the judgment in this case should be reversed for refusal of appellant’s requested instruction based on AMI 60S.

      This axle sometimes referred to as a tandem axle permits the truck to haul a greater weight under the State’s truck licensing laws.


author: George Rose Smith, Justice.

text:
    Franchelle MURPHY v. STATE of Arkansas
    CR 73-134
    504 S.W. 2d 748
    Opinion delivered January 14, 1974
    [Rehearing denied February 19, 19741

      Pickens, Boyce, McLarty ir Watson, by: Tim F. Watson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

On June 23, 1972, the appellant killed her husband, David Murphy, by shooting him with a .22 caliber rifle. To a charge of first degree murder she pleaded insanity. The jury, rejecting that defense, found the accused guilty of second degree murder and fixed her punishment at seven years imprisonment. Two asserted errors are argued as grounds for reversal.

At the beginning of the trial it was stipulated that Mrs. Murphy fired the fatal shot. Later on the State was allowed to introduce not only the rifle that was used in the homicide but also some .22 cartridges, two wooden clubs, a meat cleaver, and a butcher knife, most of which were found by the police in the bedroom where Murphy was shot. It is now insisted that the exhibits, other than the rifle, had no bearing upon the case and should not have been shown to the jury. Counsel cite Rush v. State, 238 Ark. 149, 379 S.W. 2d 29 (1964), where we held that the trial court erred in allowing the State to introduce in evidence a pistol that had no connection with the homicide for which the accused was being tried.

Here, however, the articles in question were relevant as bearing upon the matter of premeditation and deliberation, which the State was required to prove. Simmons v. State, 227 Ark. 1109, 305 S.W. 2d 119 (1957). Mrs. Murphy shot her husband in a bedroom in the couple’s home. According to her statement to the police, which was admitted in evidence without objection, Mrs. Murphy discovered on the morning of the shooting that her husband had cashed certain bonds that were kept in a lockbox. She telephoned him at work and asked him to come home, which he did. The two quickly got into a scuffle, and David was shot. In her statement to the police Mrs. Murphy mentioned the two clubs that were in the room and went on to say: “I was going to knock the devil out of him with that stick. That’s what I had in mind. And he didn’t come close enough to me.” The rifle had been between the mattress and springs of one of the beds, but the other weapons were somewhat more accessible. Hence the articles now in question were pertinent as tending to indicate to the jury that Mrs. Murphy had planned the homicide when she persuaded her husband to come home during the morning.

Appellant’s second objection is to Dr. Kozberg’s testimony that in his opinion Mrs. Murphy was mentally competent at the time of the killing. The witness, a psychiatrist employed by the State Hospital, had participated with other doctors in the examination of Mrs. Mur- , phy at that institution. That examination was conducted pursuant to the statute. Ark. Stat. Ann. § 43-1301 (Supp. 1971). The appellant’s present complaint goes not to Dr. Kozberg’s professional qualifications but to the fact that the joint staff examination of the accused took only about thirty minutes and that Dr. Kozberg was not sure that he himself asked her any questions. Even so, the witness’s expert opinion was admissible, for the reasons stated in Ark. State Highway Commn. v. Johns, 236 Ark. 585, 367 S.W. 2d 436 (1963). The brevity of the examination was doubtless considered by the jury in weighing Dr. Kozberg’s opinion, but the testimony was nevertheless admissible.

Affirmed.

Harris, C.J., not participating.


author: Lyle Brown, Justice.

text:
    Talmadge G. HENLEY v. STATE of Arkansas
    CR 73-137
    503 S.W. 2d 478
    Opinion delivered January 14, 1974
    [Rehearing denied February 19, 1974.]

      Louis W. Rosteck, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee
   Lyle Brown, Justice.

This appeal comes from a second degree murder conviction. The appellant challenges the sufficiency of the circumstantial evidence to support the conviction and secondly, it is contended that the evidence "clearly shows that defendant was suffering from some mental disorder at the time the crime was committed”.

We agree that the evidence was circumstantial but we think it was sufficient to sustain the conviction. We shall briefly relate the evidence in the light most favorable to the State. (The defense produced no evidence.) Sometime during the night of June 16, 1972, appellant’s wife suffered death by extreme violence. She was found lying by the side of her wheel chair with bruises and contusions all over her body and with broken ribs on both sides. The medical examiner concluded that death resulted from "blunt force injury to the chest and abdomen”. The couple lived alone in an apartment. Appellant gave a statement which was introduced by the State without objection. He stated that about 7:00 p.m. on the night in question he took two sleeping pills and went to bed leaving his wife sitting in her wheel chair watching television; that about 5:00 a.m. he discovered his wife lying beside the wheel chair with the television buzzing; and that he called the police.

The landlady lived in an apartment adjacent to the Henley apartment. She testified that at about five o’clock in the afternoon of June 16 she heard an unusual noise coming from the Henley apartment, "three loud thumps”. Mrs. Ruth Lucky said she had a call from Mrs. Henley on the telephone at 5:00 p.m. on the 16th. (The jury could have reasonably concluded that the call was one of distress.) Dewayne Lucky said he went to the Henley apartment around six o’clock on the evening of June 16 (evidently in response to the call); that he knocked and received no reply; that he called to the Henleys but received no answer; that he could open the door about two inches and "it felt like something was against the door”. The coroner testified he went to the apartment around 7:00 a.m. on June 17. He estimated the time of death to have been from three to twenty-four hours. He found no signs of struggle in the apartment. An assistant medical examiner performed an autopsy at 9:30 a.m. on June 17. He opined that the victim had been dead from six to eighteen hours prior to the autopsy.

Officer David Isom testified he arrived at the apartment at 5:10 a.m. on the 17th in response to a telephone call, presumably from appellant; that appellant informed him that Mrs. Henley had fallen out of her wheel chair; that she often had blackouts and would come to herself "within a few minutes; that the body was 90% bruised; and that appellant "had a wild look in his eyes, like he had been taking pills or something”. The officer said the apartment appeared in an orderly condition.

Detective Joe Don Thomas participated in the investigation. He said the wheels on the victim’s chair were locked; and that there was no evidence of a struggle or of forcible entry. “I saw the defendant at approximately 6:00 a.m. and talked to him again around noon.He appeared abnormal; he wasn’t remorseful — he was smiling. His speech was slurred, and he could have been under the influence of something. I did not find any alcoholic beverages or bottles. He told me he had taken two sleeping pills at 7:00 p.m.”.

The State carries a heavy burden when circumstantial evidence alone is relied upon for conviction. The evidence “must exclude every other reasonable hypothesis than that of the guilt of the accused”. Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (1969). If the jury believed the State’s evidence then this chain of circumstances was established: There was trouble in the Henley apartment around 5:00 p.m. when the landlady heard three loud thumps; Mrs. Henley made a distress call to her friend, Mrs. Lucky; in response to that call, Dewayne Lucky went to the apartment, arriving around six o’clock; he got no response and could not get in because the door was blocked from the inside; extensive investigation revealed no signs of breaking and entering; appellant was known to have been in the apartment from early in the evening until early the next morning; appellant’s explanation of his wife falling because of a blackout was not plausible; it is hardly conceivable that the victim could have received the brutal beating she suffered without appellant being alarmed by it, assuming it was done by someone other than appellant; it was impossible for the slaying to have been committed before appellant got home for the evening, because in that event he would have discovered the body when he came in. In other words, the proof points inescapably to the conclusion that appellant was in fact in the apartment when the crime was committed. Although the evidence is not as overwhelming as the State argues, we think the chain of circumstances is so connected as to exclude any cause of death other than it was suffered at the hands of appellant.

The other point for reversal is that appellant was suffering from a mental disorder and that the public defender who conducted the trial should have interposed the defense of insanity. We do not agree.

The defense of not guilty by reason of insanity was first advanced and appellant was sent to the State Hospital for observation. It was there found that appellant was probably without psychosis at the time of the offense. The public defender was furnished with an exhaustive record compiled on appellant at Ft. Roots Hospital, a veterans institution for nervous diseases. Those records were introduced at the hearing on motion for new trial. The conclusion of the Ft. Roots staff was that at no time during appellant’s last admission (1970) did he show any evidence of psychotic behavior. The report also mentioned some facts uncomplimentary to past conduct. The public defender testified at the hearing on motion for new trial that, under the circumstances, it would not have been to appellant’s best interest to plead insanity; that he fully explained the facts to appellant; and that appellant agreed the plea should be withdrawn. We refuse to overturn the case on the second point. In fact the public defender, with the consent of his client, made a tactical decision which was wholly within the bounds of propriety. Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409 (1970); Tollett v. Henderson, 93 S. Ct. 1062, 36 L. Ed. 2d 235 (1973).

Affirmed.

Harris, C.J., not participating.


author: John A. Fogleman, Justice.

text:
    Sammy HICKS et al v. Lee Otis NEWTON et al
    73-190
    503 S.W. 2d 472
    Opinion delivered January 14, 1974

      Shackleford & Shackleford, for appellants.

      Spencer & Spencer, for appellees.
   John A. Fogleman, Justice.

This case involves a dispute about a boundary line. Appellant and the other heirs of Robert and Lula Hicks own 80 acres of land. A part of the northern boundary of that tract is the southern boundary of a 40-acre tract owned by appellees. The dis-Eute was provoked when appellees caused a survey of the oundary to be made and built a fence on this line, which is now conceded to be the true boundary. Appellant then brought this action for himself and his co-heirs, claiming a tract of 0.84 of an acre north of this line and fence. He based this claim upon allegations that an old road along, but lying north of, the true boundary had been recognized as the dividing line by the parties for over 30 years, making this road a boundary by acquiescence. This road, according to the contentions of appellant, lay north of the presently established true line. Appellant also claimed that he and the other heirs of Robert and Lula Hicks held this 0.84-acre tract by adverse possession. Appellees claimed that the fence was on the true boundary and that they, rather than appellant and his co-heirs and their predecessors in title, had held adverse possession of the lands.

After trial, the chancellor, who viewed the property involved, made specific findings that appellant had failed to sustain his burden of proving that there was an agreed boundary or that he and his co-heirs had title by adverse possession, and entered his decree accordingly, fixing the true boundary on the survey line. Appellant recognizes that the chancellor’s findings as to adverse possession, the location of the true boundary and the fixing of a boundary by express agreement are not clearly against the preponderance of the evidence. He argues, however, that the chancellor’s decision entirely overlooked the issue as to whether there was a boundary by acquiescence. Even if this be so, appellant failed to meet his burden of proving long acquiescence in the road, if indeed it existed in the vicinity of the disputed area, as a boundary.

The common boundary between the parties is 757.3 feet long. It clearly appears that both the true line and the boundary claimed by appellant lie totally in wooded lands. The evidence appears to clearly establish a boundary, at least by adverse possession, in a road between the owners along the north line of the east half of the Hicks’ 80-acre tract, where the lands on both sides are in cultivation, but the disputed line is the north boundary of the west one-half of this tract, which is not cleared or in cultivation. There is evidence from which a finding that the Hicks family recognized a road connecting two north-south public roads, one lying west, and the other east, of the two tracts involved, might have been justified, but there is no evidence that appellees or their predecessors in title did. Although silent acquiescence is sufficient, there is no evidence that the Newtons were ever aware that anyone claimed that the road, said by some witnesses to have ultimately reached the Thomas farm which lay west of the Newton property, constituted a boundary. Even though there was testimony by members of the Hicks family that the Newtons were never known by the witnesses to have claimed any of the land south of this road, there is no evidence that there was any occasion for them to assert a claim. This alleged road, according to the county surveyor, the first witness called by appellant, is now evidenced only by a rutted terrain through the woods. He found pine and gum trees as much as five inches in diameter growing in this terrain. No lane or road in the wooded area was apparent to this surveyor on aerial photographs of the area taken in 1951, 1956 and 1964. He found some posts and wire out in the area, but could not connect them, and he could not find enough posts and wire to establish the course of a fence. Even though he attempted to sketch what he felt was the center line of this road, he admitted that he could not tell on which side of the road fences had run at some time in the past. According to appellant, his sister and brother, however, the west half of the Hicks tract was timbered and not fenced. He admitted that these lands were always unenclosed and unimproved and used only for making “ties.” According to Roosevelt Newton, there once had been an old wagon road which meandered in a westerly and southwesterly direction from its connection with the lane between the Newton land and the east half of the Hicks property. He said that this road was abandoned in 1928. His wife testified that during the 36 years she lived with her husband she never heard of any of the Hickses or anyone claiming to own any of the Newton land north of the true line. Jack Newton, aged 43, testified that he had lived near the Hicks property all his life and never knew of any road that ran anywhere near the southwest corner of the Newton tract, and had never known any of the Hickses to claim any property north of the true line. It is significant that Lewis Hicks, who had lived all his life on the Hicks tract helped Roosevelt Newton to build the fence on the true line, without laying any claim to the disputed tract and without making any objection, beyond saying that the fence was not on the old line. This witness, upon examination by the chancellor, stated that there had been nothing in the woods that would mark the line between owners to the north and those to the south.

This evidence falls far short of establishing acquiescence by the Newtons in any boundary except the true one.

Harris, C.J., not participating.


text:
    Jess HENDERSON v. STATE of Arkansas
    CR 73-129
    503 S.W. 2d 889
    Opinion delivered January 14, 1974

      Charles W. Atkinson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Jess Henderson relies upon five points for reversal of his conviction of the offense of delivery of a controlled substance, heroin. They are:

I. The Court erred in refusing to quash the indictment.
II. The Court erred in refusing to grant a mistrial.
III. The Court erred in refusing to grant a directed verdict.
IV. The Court erred in refusing to give defendant’s requested Instructions No. 1 and 3.
V. The Court erred in refusing to grant a new trial.

We find no merit in any of them.

I. Appellant was indicted by a grand jury. He was charged with unlawfully delivering heroin on May 11, 1972, in violation of Act 67 of 1972 and Act 590 of 1971. The name of the person to whom the delivery was made was not alleged in the indictment. The indictment did not specifically allege that appellant was not a person authorized to deliver heroin. His motion to quash the indictment, which included these and other grounds not argued here, was denied. The trial court, however, treated his pleading as a motion for a bill of particulars. The state filed a bill of particulars, stating that the delivery was made to Janice Sue Smith. No further objection to the indictment was made by appellant prior to trial. The action of the trial court was proper under Ark. Stat. Ann. § 43-1024 (Repl. 1964) which permits the prosecuting attorney to amend an indictment or file a bill of particulars. The bill did not, however, state that Henderson was unauthorized to deliver such drugs. There was no error in this respect. It was only necessary that the indictment name the offense and the party charged. Ark. Stat. Ann. §§ 43-1006, 1008 (Repl. 1964). It is not necessary that the acts constituting the offense be stated unless the offense could not be charged without doing so. Estes v. State, 246 Ark. 1145, 442 S.W. 2d 221. The act which appellant was accused of violating contains a section, now appearing in Ark. Stat. Ann. § 82-2630 (Supp. 1971), providing that it is unnecessary for the state to negate any exemption or exception in the act in any indictment and that the burden of proof of any exemption or exception is upon the person alleging it. This section also contains a provision that in the absence of proof that a person is the duly authorized holder of an appropriate registration, he is presumed not to be, and that the burden of proof is upon that person to rebut the presumption. The act under which appellant was charged provides that “[ejxcept as authorized by this Act, it shall be unlawful for any person to deliver, # * * a controlled substance.” There was no error in this regard.

II. Appellant’s contention that a mistrial should have been granted is based upon multiple actions of the trial judge. After the jury was selected but before any evidence had been presented, appellant, out of the hearing of the jury, registered an objection to the introduction of any evidence pertaining to any crime other than that charged in the indictment, and, specifically, relating to the death of Janice Sue Smith, to whom the state contended the heroin was delivered. The trial judge refused to restrict the prosecuting attorney at that time, but admonished him not to inject this fact unless necessary. During the opening statement by the prosecuting attorney, appellant’s objection to a statement to the effect “that we are dealing with human lives” was overruled. The first witness called was Dr. Mae Nettleship, who, in responding to a query whether she had done a drug or blood analysis on Janice Sue Smith, stated that she had done an autopsy. Appellant’s attorney promptly objected, asked that the jury be admonished not to consider this statement and warned that, upon repetition, he would request a mistrial. The court did not specifically rule on the objection or admonish the jury. Later, when asked if it were possible for her from her observations to make a determination as to the time of injection of heroin, this witness stated she and Dr. Vinzant worked together, and he always made the observations and conclusions in relation to the time of death. When appellant objected, the circuit judge admonished the jury to disregard that part of the testimony relating to death. No motion for the declaration of a mistrial was made.

Thereafter, the prosecuting attorney was permitted to question Dwight Wells, over appellant’s objection, about his having purchased heroin from appellant on the date the offense was alleged to have occurred. When the prosecuting attorney repeated a question to Wells, a witness called by the state, as to whether he saw appellant give any drugs to Janice Sue Smith, appellant’s attorney objected on the basis that this was an attempt to impeach the state’s witness. The prosecuting attorney then asked and received permission to treat Wells as a hostile witness, claiming surprise on the basis of a pretrial statement made by him to the prosecuting attorney. The court granted this permission and allowed the prosecuting attorney to ask leading questions, all over appellant’s objection. After a few questions with reference to testimony given the prosecuting attorney by Wells some time before the trial, appellant’s attorney objected and moved for a mistrial on the basis of these questions, together with the circuit judge’s remarks in overruling appellant’s objection that the witness was not hostile, that it was sufficient that the prosecuting attorney was taken by surprise, that the witness was a hostile witness and that the prosecuting attorney could ask leading questions. After the witness had been extensively examined and cross-examined about the statement, the prosecuting attorney asked the witness whether the content of the statement or his testimony was the truth. When the court overruled appellant’s objection that the question invaded the province of the jury as the judges of the credibility of the witness, appellant moved for a mistrial on the basis of the court’s remarks.

Although appellant seems to take the position that he made numerous motions for a mistrial, we find only two occasions when such a motion was made, and they related more particularly to remarks by the circuit judge. There was no error in the court’s holding that there was a basis for the claim of surprise, so it was proper for the court to permit the prosecuting attorney to cross-examine Wells about his prior inconsistent statement. Ark. Stat. Ann. § 28-706 (Repl. 1962); Fisher v. State, 241 Ark. 545, 408 S.W. 2d 894; Shands v. State, 118 Ark. 460, 117 S.W. 18. We find no abuse of discretion in permitting the cross-examination or denying the motions for mistrial.

III. Appellant -contends there is no evidence that he delivered heroin to Janice Sue Smith. This question must be approached with the understanding that the delivery may be shown by circumstantial, as well as direct, evidence. See. Miller v. City of Helena, 224 Ark. 1016, 277 S.W. 2d 841; Dixon v. State, 67 Ark. 495, 55 S.W. 850; Wimberly v. State, 214 Ark. 930, 218 S.W. 2d 730. As we view the matter, appellant’s principal complaint is that there is no direct evidence that he made the delivery. But we find the circumstantial evidence to rise above that we have held to be insufficient in other cases because it left the jury only to speculation and conjecture in determining whether any other hypothesis except the defendant’s guilt was reasonable. See, e.g., Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458.

In spite of the fact that Dwight Wells, the principal witness for the state, was obviously reluctant to testily in the case, and there were conflicts and inconsistencies in his testimony, we cannot say that it was not substantial. Wells, a resident of Huntsville, said he had lived with Janice Sue Smith off and on for four or five years, and was living with her on May 11, 1972, the date of the alleged offense. There are many facts disclosed by Wells’ testimony which are undisputed and as to which there is no question about the inferences to be drawn. He testified to the following before being granted immunity from prosecution:

He had been a user of whatever drjug was available including heroin. The Smith girl also used drugs including heroin. He had known Henderson for a couple of years, and had purchased drugs from him on several occasions. On May 11, 1972, he and Janice Sue came to Fayetteville in Wells’ car to get some drugs.

When asked to whom he went to obtain the drugs, Wells responded that he’d rather not answer the question. The prosecuting attorney stated he would like to grant the witness immunity from prosecution, and appellant objected. The court directed the witness to answer, advising him that testimony he gave would not be used against him in a criminal prosecution, except for perjury. The witness still seemed reluctant to answer the prosecuting attorney’s questions, but said that he saw Janice get her drugs. When asked if she got them from Henderson, Wells said he’d rather not say and then denied knowledge of the identity of the person from whom she got her drugs. He stated that she saw Henderson, that he (Wells) was present and received an affirmative answer to his inquity whether Henderson had any drugs, and that Henderson gave Wells some heroin wrapped in a little package at the time Janice Sue was in another room. He then related substantially the following:

He and Janice Sue arrived at Henderson’s apartment on Cleveland Street about dark, but found him at a house next door. They then went with Henderson to his apartment. Wells took with him the drugs given him by Henderson, which were worth $10 and wrapped in a little package. Janice Sue did not have any drugs at that time, but did later. Wells did not know where she got the drugs, and did not hear any conversation between her and Henderson about drugs, but he was present when she used the drugs she had about 45 minutes to one hour after they arrived. After using the drugs Janice Sue stayed in the bathroom and later “fell over.”

After objections to impeachment of the witness were made and overruled, Wells was asked about his recollections concerning a statement he had made to the prosecuting attorney on July 24, 1972. He recalled testifying before the prosecuting attorney that Janice Sue Smith was at Henderson’s apartment on Cleveland Street when she got $10 worth of heroin from Henderson and admitted that these statements were true, as fax as he knew. He also affirmed the correctness of his answers that the heroin was wrapped in tinfoil, that he got his heroin just a few minutes before Janice got hers, that he was to pay $10 for his and had the same understanding with Henderson in relation to that which Janice got. He also admitted that Henderson handed the heroin to Janice, as far as he knew. Wells then testified that, between him and Janice, he bought two “hits” at $10 each or a total of $20.

On cross-examination, Wells confirmed much of his previous testimony. He admitted making the statement to the prosecuting attorney and that his father was present at the time. He said his attorney was present at the beginning of it. He declined to say that the content of the statement was untrue. Specifically he said:

He had previously bought drugs from Henderson in Fayetteville several times when Janice was present. He was not present when Janice got drugs from anyone on May 11, 1972, and did not see Henderson deliver any narcotics to her on that occasion or hear any conversation between Janice and Henderson. He did see Janice while at Henderson’s with heroin wrapped in tinfoil. Henderson and another man were the only persons present at the house where he found Henderson. They all remained at this house for about a half hour, but no one else was present when he received his drugs from Henderson. When he took the drugs at Henderson’s house, he used the syringe that Henderson also used in his presence.

After cross-examination, Wells explained the difference in his testimony and the statement by saying he did not see Henderson put the drugs in Janice’s hand, but, while he and Janice were in the kitchen, she went into the bathroom with drugs at a time when only he, Janice and Henderson were in the house. He also reaffirmed his statement that he and Henderson had discussed money at the house to which he and Janice first went.

On recross-examination, Wells again said: It was true, as he had told the prosecuting attorney, that he helped Janice “shoot up.” Both his pretrial statement and his testimony were true.

Whatever contradictions, conflicts and inconsistencies there were in Wells’ testimony from the witness stand were for resolution by the jury, which could believe those parts of his testimony they believed to be true and disregard those they believed to be false. Reserve Loan Line Ins. Co. v. Compton, 190 Ark. 1039, 82 S.W. 2d 537; Houpt v. State, 249 Ark. 485, 459 S.W. 2d 565; Bartley and Jones v. State, 210 Ark. 1061, 199 S.W. 2d 965; Powell v. State, 149 Ark. 311, 232 S.W. 429. Most of the contradictions were more apparent than real. They arise by reason of Wells having stated to the prosecuting attorney that Henderson delivered the drugs to Janice Sue Smith and his having testified during the trial that he did not see the delivery made. The jury would have been justified in concluding that Wells’ statement to the prosecuting attorney was based upon circumstances which clearly indicated to him that the delivery was made by Henderson. We think the evidence clearly affords a reasonable basis for that belief, both by Wells and by the jury. We find the circumstantial evidence sufficient to support the jury verdict.

Appellant also argues that the testimony of Wells, who was treated by the trial court as an accomplice as a matter of law, was not sufficiently corroborated. Euletta Mae Jones, another reformed drug addict, testified that she had been acquainted with Wells, Henderson and Miss Smith in May 1972. She knew that Janice Sue had an overdose of drugs on May 11, 1972, at Jess Henderson’s house. She had gone to the Henderson house that evening and found Wells, Henderson and Janice Smith there, but left when she learned what had happened. According to Mrs. Jones, those present were worrying about Janice. On a subsequent date she went to Henderson’s place with him. While there, Henderson started talking about the events of May 11. He told Mrs. Jones that he had intended to “do the first hit,” as he had always done, but Janice wanted to “do it because she hadn’t gotten off in a long time.” According to Mrs. Jones, he stated that when Janice insisted, he went ahead and let her do the first hit.

In spite of the fact the trial court considered Wells to be an accomplice of Henderson under the evidence, we do not so consider him. He was nothing more or less than a purchaser of heroin for use by his paramour. If he was the accomplice of anyone, it was Janice Sue Smith, not Jess Henderson. The purchaser is not the accomplice of the seller, nor the recipient, of the deliverer, in spite of the fact that mere possession is a violation of the law defined by the same statute as that under which a defendant is charged. We have passed specifically upon the question where it was asserted that the purchaser was an accomplice of the seller. See Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913.

There is some apparent conflict in the authorities from other jurisdictions as to whether one who recommends, or directs a purchaser to, a seller of illicit drugs is an accomplice of the seller. In Arkansas, an accomplice, under the statute forbidding conviction of a felony on uncorroborated testimony of an accomplice, is one who could be convicted of the offense of which the defendant is charged. Havens v. State, 217 Ark. 153, 228 S.W. 2d 1003. In Rich v. State, 176 Ark. 1205, 2 S.W. 2d 40, we held, upon the authority of Wilson v. State, 124 Ark. 477, 187 S.W. 440, that one who assists a purchaser in buying intoxicating liquors and confines his participation in the transaction exclusively to the buying, not the selling, is not guilty of the offense, and not an accomplice. See also, Eddy v. State, 165 Ark. 289, 264 S.W. 832; Hobson v. State, 175 Ark. 1169, 299 S.W. 8. We have also held that one who was employed as a laborer in the operation of a whiskey still and was an accomplice in its operation and in manufacturing liquor, was not an accomplice of his employer in the possession of the still, because he could not be convicted of the crime of possessing a still, either as a principal or accessory. Henderson v. State, 174 Ark. 835, 297 S.W. 836. In Beck v. State, 141 Ark. 102, 216 S.W. 497, we held that one who acted only as the agent of the buyer of intoxicating liquors and had nó other interest in the sale, was not an accomplice of the seller. So long as one acts solely on behalf of the purchaser, he is not an accomplice of the seller. Ellis v. State, 133 Ark. 540, 202 S.W. 702.

Under the same rationale, other jurisdictions have held that a “facilitator” of a sale of illicit drugs is not an accomplice of the seller, so long as he is interested only on behalf of the buyer. See United States v. Moses, 220 F. 2d 166 (1955); People v. Branch, 13 App. Div. 2d 714, 213 N.Y.S. 2d 535 (1961); Commonwealth v. Harvard, 356 Mass. 452, 253 N.E. 2d 346 (1969); People v. Lindsey, 16 App. Div. 2d 805, 228 N.Y.S. 2d 427, aff’d 12 N.Y. 2d 958, 238 N.Y.S. 2d 956, 189 N.E. 2d 492 (1963). These holdings are more compatible with our general test of the status of a witness as an accomplice and with our cases relating to dealing in intoxicating liquors than decisions in jurisdictions holding to the contrary.

There is not a word of evidence to align Wells with the alleged deliverer, Henderson, in this case. His entire interest, so far as this record discloses, was to obtain the heroin for his paramour. Furthermore, even if Wells were properly treated as an accomplice of Henderson, the statements attributed to appellant by Mrs. Jones certainly tended to connect him with the delivery of heroin to Janice Sue Smith. Certainly someone delivered this controlled substance to her. The testimony of Mrs. Jones, if believed, rather than going to show the commission of an offense, along with its attendant circumstances, definitely, but independently of the testimony of Wells, tends in some degree to connect Henderson with the delivery and rises above a mere suspicion of guilt. This was all that was required, even if this evidence itself be considered circumstantial. Jones v. State, 254 Ark. 769, 496 S.W. 2d 423; King v. State, 254 Ark. 509, 494 S.W. 2d 476. The sufficiency of this evidence was for the jury. Austin v. State, 254 Ark. 496, 494 S.W. 2d 472; King v. State, supra.

IV. Appellant’s contention relating to the court’s failure to give his requested instructions 1 and 3 is grounded upon the alleged failure of the court to advise the jury that, in order to find Henderson guilty, it must find that he was not authorized by law to deliver heroin. There was no evidence whatever that Henderson had any authority to do so. The circuit judge did instruct the jury that it was unlawful for any person to knowingly deliver a controlled substance, unless pursuant to a valid prescription of a practitioner while acting in the course of his professional practice. This instruction, along with the instruction that the state must prove the defendant guilty beyond a reasonable doubt, was adequate to advise the jury on this score. In view of this coverage in other instructions, we find no prejudicial error in the refusal of these instructions.

V. The only grounds of appellant’s motion for new trial that are argued here relate to points for reversal already discussed.

Since we find no reversible error, the judgment is affirmed.

HARRIS, C.J., not participating.


author: J. Fred Jones, Justice.

text:
    Mary E. WILLIAMS v. ARKANSAS NURSING HOME
    73-197
    503 S.W. 2d 474
    Opinion delivered January 14, 1974

      Dodrill ir Bethea, for appellant.

      Lasley, Sharp, Haley, Young ir Boswell, P.A., for appellee Arkansas Nursing Home.

      Wright, Lindsey ir Jennings, for appellee Commercial Standard Insurance Company.
   J. Fred Jones, Justice.

Mary E. Williams filed a claim for workmen’s compensation benefits and her claim was denied by the Commission. The denial was affirmed by the circuit court. On appeal to this court Mrs. Williams contends that there was no substantial evidence to sustain the Commission’s denial of her claim and that is the only question now before us.

It is apparent from the record that Mrs. Williams had been employed as a practical nurse at the Arkansas Nursing Home for about eight years and was 59 years of age on February 22, 1970, when her alleged injury occurred. Mrs. Williams testified that on February 22, 1970, she was helping to lift a patient at the nursing home and she experienced a sharp pain in the small of her back. She said the pain ran down her leg. She said she went to Dr. Price, a chiropractor; that after the first adjustment she felt better and concluded that she could return to work and did return to work on May 10, 1970. Mrs. Williams said she continued to work until May 14 when she had to quit work because of her inability to bear weight on her leg. She said she called Dr. Cornett who referred her to Dr. Ashley Ross. She said she was seen by Dr. Ashley Ross and was referred by him to the orthopedic clinic of the University of Arkansas Medical Center. She said that she had previously injured her back while lifting another patient in November, 1969, and that her back continued to bother her from that injury up until her injury on February 22, 1970. She said an injury report was made out by the supervisor at the hospital on the November, 1969, injury but not on the February, 1970, injury. She stated, however, that an accident form was filled out in July, 1970, by the hospital supervisor, Mrs. Keathley, directed to Colonial Life and Accident Insurance Company setting out the claim for injury on February 22, 1970. She testified that she was seen regularly by Dr. Price from some time in April, 1970, through November, 1970; that she quit going to him for chiropractic adjustments because she was unable to pay for his services.

Dr. Toney B. Price testified that he first saw Mrs. Williams on April 27, 1970, at which time Mrs. Williams complained of severe pain in the lower back and right leg which she attributed to lifting a patient at the Arkansas Nursing Home on February 22, 1970. He testified that he treated Mrs. Williams from April 27, 1970, until November 2, 1970, at which time she quit coming to see him, and at which time she owed a clinical bill of $552. He said that Mrs. Williams did not mention a back injury in 1969 but denied any previous injury. He said he diagnosed Mrs. Williams’ condition as subluxation of the 4th and 5 th lumbar vertebrae; that in his opinion the condition was not the result of an old injury but could be attributed to lifting the patient on February 22, 1970.

Several medical reports were submitted in evidence. Under date of November 23, 1971, Dr. Price reported that when he first saw Mrs. Williams on April 27, 1970, she was complaining of severe pain in the lower back, right groin and thigh which she attributed to lifting a patient in the course of her employment in 1970. Dr. Price reported that when he first saw Mrs. Williams, she was walking on crutches with a severe limp and inability to bear any weight on her right leg. He said his examination revealed a subluxation of the 4th and 5 th lumbar vertebrae with nerve pressure at these points, muscle spasm of the erectorspinae muscles bi-laterally and diminished patella reflex of the right knee. He reported that after chiropractic adjustments Mrs. Williams obtained some relief and was able to walk without crutches, but was unable to resume her regular duties when last seen on November 2, 1970. He reported that he again examined Mrs. Williams on November 16, 1971, and found no change in her condition.

Dr. Ashley S. Ross reported he first saw and examined Mrs. Williams on March 2, 1970, at the request of Dr. James K. Cornett, her family physician. He said she was complaining of right hip and right leg pain. He stated that Mrs. Williams advised him she noticed the onset of her right hip and right leg pain while working at the Arkansas Nursing Home approximately five or six days before he saw her; that she stated the pain started in the groin area, but at the time he saw her, the greater portion of the pain was laterally around the trochanteric area and down the right lateral thigh with continued pain in the groin area. He said that upon examination there was marked tenderness of the trochanteric bursa area and his diagnosis was “right trochanteric bursitis” as well as a tentative diagnosis of bursitis around the right hip joint.

Dr. Ross reported that Mrs. Williams returned on two subsequent visits and was given injections and also prescribed oral medication, but was still complaining of pain in the right groin and the right hip when last seen by him on March 17, 1970, at which time he referred her to Dr. Woodbridge Morris for further diagnostic studies. He said that x-rays of the pelvis and hip joint and sacroiliac joints did not reveal abnormalities either in the bone or joint structures. His final diagnosis was stated in his opinion as follows:

“Mrs. Mary Williams had a right trochanteric bursitis which responded fairly well to medication and injections. She had pain in the right groin which was not diagnosed and was most probably due to some type of pelvic pathology.
She was referred to Dr. Woodbridge Morris for further diagnostic studies.”

Drs. A. Zand and Georgell Chambers of the University of Arkansas Medical Center Orthopedic Clinic, reported under date of March 24, 1970, that Mrs. Williams was referred to them by Dr. Ashley Ross for a complete physical and laboratory workup. Their report recites a history of a ruptured kidney on the right side which was operated about 16 years ago, also ovarian cyst when 18 years of age which was removed; appendicitis and a cystic lesion which was removed 10 years ago. They reported no limitation in the right hip motion except in certain position when the pain “can catch her.” These doctors reported they would like to see Mrs. Williams again in about a week for further laboratory examinations and Mrs. Williams was advised to use crutches. Under date of March 51, 1970, Drs. Duncan and Chambers reported that the crutches with nonweight bearing on the right completely relieved the pain or symptoms, but that Mrs. Williams reported that when she failed to use the crutches she continued to have some pain in the area of the adductors on the right, which the doctors concluded might be due to adductor strain.

On April 14, 1970, Dr. Duncan reported that he had been following Mrs. Williams’ progress as to her complaints of tenderness and pain in the adductor region of the right leg, but that on his April 14 examination, she had tenderness in the lower abdomen more marked on the right side just lateral to the midline, and was also tender in the right perineal area with greatest tenderness in the perineum and in the lower abdomen. He recommended a complete gynecological examination by the General Surgery Clinic.

Under date of May 31, 1972, Dr. Charles N. McKenzie reported that he examined Mrs. Williams on that date. He found the Lasegue’s signs negative but found that Mrs. Williams did have pain in her right thigh. He found tenderness in the femoral triangle and along the adductor origin. He found the peripheral pulse depressed with a stocking or sock-like decreased sensation about the right ankle and foot. He found some x-ray abnormalities in the thoracic or dorsal spine, but as to the right femur and lumbar spine, he reported as follows:

“AP and lateral views of the right femur do not show any significant abnormalities.
The AP view of the lumbar spine reveals alignment is good. The sacroiliac joints are well preserved. There are metallic sutures in the region of the right kidney.
The lateral view of the lumbar spine reveals a slightly exaggerated lordotic curve. The intervertebral disc spaces are well preserved. The vetebral bodies are well preserved. There is some very minimal anterior at the L5-S1 level. She does have a moderate degree of calcification which appears to be in the region of the lower abdominal aorta and into the common iliac vessels.
The right and left oblique views do not show any significant over-riding of the facets nor any particular increased sclerosis about the border of the facets.”

Under the heading of “Diagnoses” Dr. McKenzie reports as follows:

“(1) Osteoporosis, rather advanced.
(2) Old compression deformity, T6, with residual mild kyphoscoliosis. (With the history she describes, I do not feel this was incurred with the episode she describes, since her symptoms were not in this area at this time and there is no localized tenderness in this area.)
(3) Status, post-operative, repair (R) kidney; partial hysterectomy.
(4) Hypercholesterolemia.”

Dr. McKenzie concluded his report as follows:

“This patient has some symptoms which are rather acute and appear to be valid complaints and I am most suspicious of whether or not she may have a small femoral or internal obturator tear with her symptoms being along the course of the femoral triangle and along the obturator nerve.
This patient’s osteoporosis certainly could contribute to her pain in that senile osteoporosis in itself may be painful.
I am not able to demonstrate any instability of the sacroiliac joints of symphysis pubis.
In view of the fact also that the femoral pulses are not very well palpated and I am not able to demonstrate the pulses about the ankle, I would feel at this time that an evaluation by a general surgeon who is also familiar with vascular testing would be in order to make sure this patient has not sustained a nernia [sic] in one of the areas described.”

There is substantial evidence in the record before us that Mrs. Williams does have some disability in connection with the use of her right leg. The question before the Commission was whether the pain and disability suffered by Mrs. Williams were caused by an accidental injury sustained to her back while she was employed at the Arkansas Nursing Home. We agree with the appellant’s argument that reasonable doubts entertained by the Commission should be resolved in favor of Mrs. Williams, but the question before the circuit court, and this court on appeal, is whether there was any substantial evidence to sustain the Commission’s finding that Mrs. Williams’ disability was not caused by an accidental back injury sustained in the course of her employment by the Arkansas Nursing Home. We conclude that there is substantial evidence in the record to support the Commission’s finding.

It goes without saying that the burden was on Mrs. Williams to prove her disability was caused by the injury she says she sustained while employed at the nursing home. Mrs. Williams was the only one who testified as to an accidental injury, but she testified that she did feel pain in her back as she helped lift a patient on February 22, 1970, and that the pain persisted until she was examined by Dr. Price on April 27, 1970. Dr. Price was of the opinion that Mrs. Williams had a subluxation of the L-4 and L-5 vertebrae resulting in her disability and attributable to the injury as testified by her. Had this been the only evidence in the record, we could easily say there was no substantial evidence to sustain a Commission finding that such accident did not occur or that such disability did not result. But to reach such conclusion on the record before us, would require us to invade the province of the Commission and say the Commission erred in not accepting Dr. Price’s diagnosis and medical opinion in preference to the diagnoses and opinions of Drs. Cornett, Ross, Zand, Morris, Chambers, Duncan and McKenzie.

This appeal does not present the question of whether there was substantial evidence that would have sustained the Commission in different findings than those made, but the question on appeal is whether there was any substantial evidence to support the finding the Commission did make. Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W. 2d 950; Wilson Lbr. Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487. The Commission had a perfect right, as a jury would have had, to accept the medical diagnoses and opinions of Drs. Ross and McKenzie to the effect that Mrs. Williams’ difficulties in her right leg are due to bursitis as opinioned by Dr. Ross, or to the osteoporosis and circulatory complications as indicated by Dr. McKenzie.

The judgment is affirmed.

Harris, C.J., not participating.


text:
    George BENNETT v. STATE of Arkansas
    CR 73-142
    503 S.W. 2d 908
    Opinion delivered January 21, 1974

      Harold L. Hall, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In appealing from a conviction and 21-year sentence for murder in the second degree, the appellant contends only that the State should not have been allowed to introduce a photograph of the decedent’s face, taken by the doctor who performed an autopsy to establish the cause of death. The photograph was clearly relevant. The doctor could not positively identify the decedent by name; so the photograph was used to enable another witness to identify the dead body as that of the decedent. It is now argued that the defense did not question the decedent’s identity, but even so the State had the burden of proving that fact beyond a reasonable doubt. We may add that there is nothing about the photograph that can fairly be said to be of a gruesome or inflammatory nature.

Affirmed.

Harris, C.J., not participating.


text:
    Richard MITCHELL, d/b/a MITCHELL FUNERAL HOME v. George BEARDEN, Shirley BEARDEN et al
    73-177
    503 S.W. 2d 904
    Opinion delivered January 21, 1974

      L. V. Rhine, Douglas Bradley, and Jon R. Coleman, for appellant.

      C. Joseph Calvin, for appellees.
   John A. Fogleman, Justice.

Appellant asserts that the chancery court erred in enjoining him from constructing a funeral home in Rector on a lot acquired by him for that purpose. The error, according to appellant, is in the court’s finding that the vicinity in which the funeral home was to be located was an expanding exclusive residential area which was not in transition to business uses, so that the funeral home would constitute a nuisance. We affirm because we cannot say this finding was clearly against the preponderance of the evidence.

The importance of this finding is delineated in such cases as Fentress v. Sicard, 181 Ark. 173, 25 S.W. 2d 18; Powell v. Taylor, 222 Ark. 896, 263 S.W. 2d 906; Howard v. Etchieson, 228 Ark. 809, 310 S.W. 2d 473; and Blair v. Yancey, 229 Ark. 745, 318 S.W. 2d 589. Through these cases, we have established these general principles, with regard to preventing establishment of funeral homes: A funeral home is not a nuisance per se. The intrusion of a funeral home into an exclusively residential district would ordinarily constitute a nuisance. It may be a nuisance in an area essentially residential in character. If, however, transition of the district from residential to business has so far progressed that the value of surrounding property would be enhanced as business property, rather than depreciated as residential property, the establishment of a funeral home would not constitute a nuisance.

Decisions recognizing the right of property owners to prevent the intrusion of a funeral home into a residential district are based upon the premise that the continuous suggestion of death and dead bodies tends to destroy the comfort and repose sought by home owners. See Powell v. Taylor, supra. The critical factor in determining the application of the general principles appears to be the effect on property values because of the location of the funeral home. Considerable weight is also given to the predominance of either commercial or residential property in the area. We cannot agree with appellant’s analysis of our holdings, insofar as he interprets them to turn upon the manner of operation of a funeral home. While this could become a factor in determining whether injunctive relief should be granted, it is not determinative, and injunctive relief has been approved without any indication that the manner of operation would be in anywise contrary to prescribed standards and regulations.

The lot in question here is 170’ x 180’ and lies on the west side of Woodland Heights Drive (formerly Old Cemetery Road) in Rector, between two residences. All of the block on the west side of this drive between Second Street and Woodland Heights Cemetery, except for appellant’s lot, is occupied by residences. All these dwelling houses were constructed after the cemetery was established. There are four homes between appellant’s lot and the cemetery, the entrance of which is approximately 600 feet south of his lot. None of the property east of the street on which appellant’s lot faces is developed. It is presently being used as a cow pasture. All the land in the block in which the Mitchell lot is located lying west of that lot and the homes on each side of it is presently used for pasture. There are also residences, however, facing Second Street and lying west of the residence at the corner of Second and Woodland Heights Drive. There had been a “camper” parked northwest of this intersection on the corner lot and a mobile trailer home on the lot just north of that. There is also a machine shop on the north of this block near its western boundary on Idlewild Street. It was built 20 to 30 years ago — long before most of the residences in the area. In the next block to the north there was a dwelling house in which there was a beauty shop and another in which there is an antique shop occupying part of the garage and carport. Both faced Woodland Heights Drive, and there is evidence indicating the operators of these shops live in the dwellings in which they are located. There was testimony that the antique shop was located in a very attractive house. There is no evidence that there is any zoning ordinance in Rector or that there are any building restrictions that would prohibit the building of a funeral home anywhere in Rector.

There was testimony by a licensed real estate broker, who had been in construction work and who claimed to know property values in Rector, that several residences in the area would suffer depreciation in value by reason of the construction of the proposed funeral home. He opined that both Woodland Heights Drive and Second Street were strictly residential, even though there were some shops in the area. According to him, traffic and parking problems would be presented. He said no new businesses were being constructed in the area, but new residences were being built over a two-block area.

Another licensed real estate agent pointed out specific residential properties in the area that would suffer depreciation in value by reason of intrusion of a funeral home at the proposed location. He testified that the “cow pasture” across the street, being suitable for residential purposes, would also suffer depreciation in value. He emphasized the effect of traffic and parking problems resulting from the operation of a funeral home. It was shown by other testimony that Woodland Heights Drive is a major thoroughfare for traffic entering and leaving Rector and carries more traffic than most Rector streets. It is 18 feet wide, with a six-foot dirt shoulder on one side and a three-foot one on the other. Outside the shoulders there are ditches. The Chief of Police testified that traffic congestion resulted when a funeral was in progress. While one car could pass between two others parked on this street, two could not meet and pass.

An appraiser for a savings and loan association, who agreed with other witnesses that the erection of the proposed funeral home would depress values in the area, emphasized loss of the homeowners’ privacy. He found no adverse effect attributable to the antique and beauty shops. He also thought the property east of Woodland Heights Drive was suitable for residential development. The owner of one of the “cow pastures” testified he and his two sisters planned to sub-divide it for residential uses and had already platted part of it.

Neighboring dwellers stressed the morbid and depressing effect of a funeral home, restraints on recreational activities of families and the potential traffic congestion. Values of their property ranged from $14,500 to $28,000. There was testimony that bodies would be brought into the funeral home for embalming at all hours of the day and night. Appellant admitted that he would operate an ambulance service which would be used in response to emergency calls at all hours. Deliveries of flowers, caskets and vaults would be made to the establishment.

None of this evidence was substantially contradicted. Appellant pointed out that he planned a parking lot with capacity for 30 cars, without crowding, which he said was adequate for visitation hours and for most funerals. He anticipated that, by crowding, the lot would accommodate 45 cars, and that this would be sufficient parking for almost any funeral in Rector.

One of the arguments advanced by appellant is that the development of the area has been deterred already by reason of the cemetery. There was considerable testimony, however, that the cemetery was not visible from the property involved by reason of the fact that it lay beyond a slight knoll or rise in ground elevation. It was conceded by some of the witnesses that property in the area would be more valuable if the cemetery were not so close. One of the expert witnesses, however, testified that the residential lots in the area would not be diminished in value because of the cemetery.

The mere fact that property values in the area may have already been depressed by proximity to the cemetery does not diminish the weight of the testimony of the various witnesses about the impact of the establishment of the funeral home in that area. Neither does it tend to show that there is any transition toward commercial development, since all the residences have been built since its opening. We do not agree with appellant that there is any testimony that the cemetery has impeded the development of the lands now used for pasture, even though such an inference might possibly be drawn.

On this record, we are unable to say the chancellor’s finding was clearly against the preponderance of the evidence. Accordingly, the decree is affirmed.

Harris, C.J., not participating.

      There was testimony indicating that the trailer was not visible from Woodland Heights and that the camper had been removed prior to trial.