text:
    Wright v. Vincent.
    5-1577
    313 S. W. 2d 849
    Opinion delivered June 9, 1958.
    [Rehearing denied July 1, 1958.]

      Rhine & Rhine, for appellant.

      French & Gamp by Gus R. Gamp, for appellee.
   Paul Ward, Associate Justice.

This is an appeal by Ivan C. Wright, appellant, from an adverse judgment in an ejectment action brought against him by Homer Vincent, appellee. The decisive issue relates to the sufficiency of the description of the parcel of land involved.

In March, 1957 appellee filed a complaint in ejectment against appellant in which it was alleged: He is the owner of and entitled to possession of “A part of the NE% of NW% of Section 26, Township 19 North, Range 7 East, more particularly described as Lot 5 of the NE^ of the NW]/i of Section 26, Township 19 North, Range 7 East of Laffler’s Survey to the town of Rector, Arkansas”; He is the owner of said property by virtue of a chancery court decree, dated December 6, 1956, quieting title in him, a copy of which decree is attached and marked Exhibit “A”; On December 7, 1956 appellant took possession of said property by placing a fence around it, is still in possession, and refuses to surrender possession thereof to appellee. The prayer was for possession, costs, and a Writ of Assistance.

Later in March, 1957 appellant filed his answer to the above complaint, entering a general denial, and also stating: He admits the chancery decree of December 6, 1956 mentioned before which quieted title in appellee by the description set forth in the previous paragraph; He specifically denies that he is in possession of the land described in said chancery decree, and; He admits he did on December 7, 1956, fence and take possession of a certain parcel of land described as follows: “That part of the Northeast Quarter of the Northwest Quarter of Section 26, Township 19 North, Range 7 East, more particularly described as follows: Begin at the Northeast Corner of the Northeast Quarter of the Northwest Quarter of Section 26, Township 19 North, Range 7 East, thence West 837.3 feet to point of beginning proper; thence South 3 degrees 05 feet West 378.2 feet; thence North 45 degrees 31 feet West 326.7 feet to Railroad right of way; thence North 43 degrees 26 feet East 204.6 feet to-Section line; thence East 112.6 feet to point of beginning proper, less and except the right of way of State Highway Nos. 1 and 39 crossing said tract.” Further answering appellant states lie has occupied and claimed the land above described since June 24, 1946 and is still in possession thereof, and that the description under which appellee claims title is void and describes no land that can be identified or located by use of said description. Other pleadings were filed but they are not material to the issue.

A lengthy trial ensued upon the pleadings thus joined, and many exhibits, including an abstract of title, were introduced in evidence. Under the view we take most of the testimony and exhibits are not material, and we shall refer to them only as is deemed necessary.

The trial court, sitting as a jury by agreement, found “that the two above described parcels of land are one and the same and that the plaintiff (appellee here) has deraigned sufficient title to be entitled to possession thereof . . .”, and gave appellee judgment against appellant “for possession of the above described premises under either of the two aforesaid descriptions.” It is our conclusion that the judgment of the trial court should be affirmed.

Exhibit “A” to appellee’s complaint shows, and appellant admits, that on December 6, 1956 the chancery court entered a decree quieting title in appellee to the parcel of land first above described. Prom that decree we find that Ivan C. Wright (appellant here) was made a party defendant, that he filed an answer and that he was represented by counsel. In the decree it also appears the court found “that neither the plaintiff (appellee here) nor defendant (appellant here) is in physical possession of the above described premises, but that plaintiff is in constructive possession.” The chancery court then decreed “that the title to the above described premises is hereby quieted in the plaintiff against all persons whatsoever . . .”, and adjudged all costs against Ivan C. Wright. Ivan C. Wright prayed an appeal from the chancery decree to the Supreme Court, but none was ever taken.

The record discloses that on December 7, 1956 (the next day after the above decree was rendered) appellant took possession of the parcel of land in question by placing a fence around it and placing thereon certain items of personal property.

We think the decree of December 6, 1956 settles the issue in this case in favor of appellee. In Thomason v. Abbott, 217 Ark. 281, 229 S. W. 2d 660, this court said: “It has long been recognized, in cases like this, that the plaintiff must recover on the strength of his own title, whether the case be in ejectment or one to quiet title.” This burden, therefore, was on Vincent when he sued Wright to quiet his title to this parcel of land, and the court there held that Vincent sustained that burden. Any defenses available to Wright should have been made at that time, and they are not available to him now.

Appellant strenuously contends that the present cause in ejectment should be reversed because he and appellee are talking about two entirely different parcels of land, and that appellee’s description is so indefinite that it locates no certain parcel of land. The testimony of two surveyors was to this effect. We think, however, there are several facts and circumstances which constitute substantial evidence to sustain the finding of the circuit judge (sitting as a jury) that both descriptions describe the same parcel of land.

One. It will be noted that appellee’s land, in addition to being a part of NE^ of NW1/^, Sec. 26, Twp. 19 N. E. 7 E, is described as Lot 5 of Laffler’s Survey of the Town of Sector, Arkansas. This record contains a Plat of this Addition, shown to be of record in the circuit clerk’s office since 1935. Lot 5 appears on that Plat to be plainly indicated. The southwest border is a straight line 270 feet long (the dividing line between Lot 5 and Lot 6), it is bounded on the east by an alley, and on the north and west by a state highway. The highway on the west runs along the east side of the tracks of the St. Louis S. W. Ry. Co. The Plat also shows some dozen blocks, each divided into Lots with all dimensions given. The testimony shows that several families live in this addition. Prom all this we are led to believe that Lot 5 can be located with reasonable certainty.

Two. It is unrealistic to believe Wright and Vincent are talking about two separate parcels of land. This is demonstrated by the record in various ways, (a) The day after the chancery court quieted appellee’s title to Lot 5 appellant put a fence around the exact parcel of land in question, (b) All parties must have known where the land was located because appellee had a fence around it and pastured it for 7 or 8 years prior to 1946. (c) Appellant evidently knew where the land was located because he must have pointed it out to the surveyor he employed to run the metes and bounds description in December, 1956. Otherwise, how could the surveyor have known what land to describe? (d) The record shows that several persons knew where the land was located long before it was described by a surveyor. They testified as to who had and who had not occupied it.

Affirmed.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Harbour v. Harbour.
    5-1544
    313 S. W. 2d 830
    Opinion delivered June 9, 1958.
    [Amended on Rehearing July 1, 1958.]

      Charles 8. Goldberger and E. W. Brockman, Jr., for appellant.

      J. 8. Brooks and M. P. Matheney, for appellee.
   Sam Robinson, Associate Justice.

On October 21, 1955, the parties were divorced. The decree gave the wife possession of the home owned as an estate by the entirety, and the husband was ordered to pay $50.00 per month as alimony and as support for a minor son. The appellant, Thurmon B. Harbour, became delinquent in the monthly payments to the extent of $425.00 as of April 1,1957. In the meantime, the State in a condemnation proceeding acquired, for the sum of $7,825, the property owned by the parties, the possession of which had been given to Mrs. Harbour in the divorce proceedings. In addition to the property owned by Mr. and Mrs. Harbour, there was an adjoining lot also taken in the condemnation proceedings, which belonged to Mr. Harbour. The price paid for that lot was $1,025. The money was paid into court.

This action was instituted when Mrs. Harbour filed a motion for modification of the decree fixing the alimony and support and to collect the alimony and support payments then in arrears. In a hearing on the motion the court held that she was entitled to $3,912.50 covering her interest in the money then in court and owned as an estate by the entirety; also $233.27 for her dower interest in the adjoining lot; and $709.67 covering accrued and delinquent alimony and maintenance payments for the period ending October 17, 1957. The court also held that Mrs. Harbour was entitled to $2,100 because she had been dispossessed of the home place, which not only deprived her of a place to live, bnt also caused her to lose income in the amount of $35.00 per month which she had been receiving as rent for a garage apartment located on the property. It appears that this $2,100 was to be considered as a lump sum payment of an additional monthly award until such time as the minor child should become of age.

On appeal Mr. Harbour contends that the court erred in ordering a lump sum payment of alimony and maintenance to Mrs. Harbour, and that all funds should be held in the registry of the court as an estate by the entirety until the death of one of the parties or until there is an agreement for distribution. Appellant also contends that he should have credit against the alimony in arrears for about $295.00 given to his son; that the alimony and support payments should be reduced; that the order for alimony and support should designate what portion of the monthly payments should be considered as alimony and what part maintenance for the child; and that he is entitled to recover two-thirds of the household furniture.

We think the appellant is right in his contention that he should not be required to pay $2,100 in a lump sum as alimony or maintenance. It is not a debt that has accrued, but something that may or may not accrue in the future. There are several contingencies, the happening of which would bring an end to the monthly payments. No doubt the trial court was completely justified in reaching a conclusion that since the house in which Mrs. Harbour lived was no longer available to her, and since she had lost the income from the garage apartment, the alimony should be increased, and we completely agree with that view. But Harbour cannot be required to pay part of the alimony and support in a lump sum in advance. McIlroy v. McIlroy, 191 Ark. 45, 83 S. W. 2d 550; Walker v. Walker, 147 Ark. 376, 227 S. W. 762.

Next, Mr. Harbour contends that the funds in the registry of the court from the sale of the land held by the entirety should remain in court as an estate by the entirety for the benefit of the survivor of the two or until there is an agreement as to distribution.

The condemnation proceeding had the effect of converting the real estate into personalty by operation of law. Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, 227 S. W. 1. Prior to Act 340 of 1947, it was held that a divorce did not dissolve an estate by the entirety in realty. Ward v. Ward, 186 Ark. 196, 53 S. W. 2d 8. And in Jenkins v. Jenkins, 219 Ark. 219, 242 S. W. 2d 124, it was held that the Act (340 of 1947), providing for the dissolution of an estate by the entirety, did not affect such estates created before the effective date of the Act. However, such an effect has never been given to an estate by the entirety in personalty. See O’Quin v. O’Quin, 219 Ark. 247, 241 S. W. 2d 117, where a joint bank account held as an estate by the entirety was divided equally between the parties. It follows that appellant’s argument, that the proceeds from the condemnation proceedings remain in court as an estate by the entirety for the benefit of the survivor of the two or until there is an agreement relative to distribution, is without, merit.

We do not think that Mr. Harbour is entitled to credit: money he gave his son against the alimony and support: payments ordered by the court, nor do we think that the alimony and support payments should be discontinued or reduced. On the contrary, now that Mrs. Harbour no longer has possession of the home and does not have the $35.00 per month rent from the garage apartment, and the $2,100 in controversy will be paid to Mr. Harbour, the alimony and support payments should be increased to $100.00 per month, and it is unnecessary to designate the exact amount that is to be considered as alimony and the amount to be regarded as support for the minor child.

Mr. Harbour contends that under the provision of the original decree he is entitled to two-thirds of the household furniture, but subsequent to the decree he entered into an agreement whereby in consideration of the relinquishment by Mrs. Harbour of all claims to an automobile she was given the use of all the furniture as long as she remains unmarried. She has not remarried. The decree is modified to the extent of allowing the $2,100 now in the registry of the court to be paid to Mr. Harbour and increasing the alimony and support to $100.00 per month, and as modified the decree is affirmed.


text:
    Perry v. Perry.
    5-1604
    313 S. W. 2d 851
    Opinion delivered June 9, 1958.

      Holt, Parh & Holt, for appellant.

      Thad D. Willimis, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Tiny Perry, and appellee, Julius Perry, were married June 7, 1925. On September 25, 1951, Tiny filed suit for separate maintenance; Julius filed a cross complaint asking for an absolute divorce. On October 15, 1951, the court granted Tiny’s prayer for separate maintenance and gave her custody of the three minor children, who have since that time become of age; gave her possession of the home place, which was an estate by the entirety; and ordered Julius to pay her $25 per week as maintenance and support for the children. On December 17, 1951, Julius was granted an absolute divorce on his cross complaint. The previous order granting separate maintenance to Tiny was not a grant of alimony pendente lite, but was separate maintenance granted in a suit filed for that purpose, and the granting of the separate maintenance in the circumstances was not a bar to the granting of a divorce to Julius. Hill v. Rowles, Chancellor, 223 Ark. 115, 264 S. W. 2d 638.

The decree granting the absolute divorce did not change or modify the previous order giving to Tiny possession of the property constituting an estate by the entirety. The prior order in that respect remained in full force and effect. Later both Tiny and Julius remarried, but Tiny continued in possession of the property constituting an estate by the entirety. On August 19, 1957, Julius filed a petition asking that he be given possession of the property. The court granted the petition, but the order sets out that Julius is willing that the property be sold and the proceeds divided equally between him and Tiny, and in addition that Julius is willing to pay to Tiny, from his part of the proceeds of the sale, $410 which he has been in arrears a long time in maintenance payments.

On appeal Tiny contends that the decree of December 17,1951 is res adjudícala of the question of possession of the estate by the entirety, and that the court has lost jurisdiction by lapse of time. The possession of the property was given to Tiny by way of maintenance. In the final decree the order giving Tiny possession was in no way disturbed or modified, but the decree specifically provides that the court retains “control of this cause for such further orders and proceedings as may be necessary to ascertain definitely, and enforce, the rights of the parties hereto in the property herein referred to.”

As a matter of law the trial court retains control of the cause with jurisdiction to modify an allowance of alimony or maintenance. Ark. Stat. § 34-1213 provides: “The court, upon application of either party, may make such alterations from time to time, as to the allowance of alimony and maintenance, as may be proper, . . .” Decrees for continuing alimony are always subject to the modification of the court upon application of either party. Schley v. Dodge, 206 Ark. 1151, 178 S. W. 2d 851.

The chancellor had jurisdiction to change the order providing for maintenance, which the court did by holding that since she had married again Tiny is no longer entitled to exclusive possession of the estate by the entirety. As it now stands, Julius and Tiny own the property by the entirety, but neither of them is entitled to exclusive possession. Since the estate was created prior to Act 340 of 1947, the court does not have authority to order that the property be sold. Jenkins v. Jenkins, 219 Ark. 219, 242 S. W. 2d 124. Of course, the parties may agree to a disposition of the property, and if they cannot agree the courts may take the proper steps to protect the interest of each of them.

Reversed with directions to enter a decree not inconsistent herewith.


author: Carleton Harris, Chief Justice.

text:
    Robinson v. Merritt, Judge.
    5-1579
    314 S. W. 2d 214
    Opinion delivered June 16, 1958.

      Paul K. Roberts, for petitioner.

      Clifton Bond, for respondent.
   Carleton Harris, Chief Justice.

This is a petition praying this Court to issue its Writ of Prohibition, directed to the Probate Court of Bradley County, prohibiting said court from taking further testimony in the cause, hereinafter discussed. Petitioner was the appellant in the case of Bobbie Jean Robinson v. George W. Hammons, 228 Ark. 329, 307 S. W. 2d 857. George W. Hammons was serving as guardian of the person and estate of Bobbie Jean Robinson. On June 24, 1952, Hammons filed his verified account, in which he charged himself with $1,325 and took credit for various amounts, including $338 paid for the burial of petitioner’s grandfather, and a total of $876.08 paid out in cash and checks to petitioner on various occasions. Petitioner, by her next friend, filed exceptions to the account, claiming that a certain receipt for $50 was a forgery, and that the book of receipts presented by the guardian, and purportedly signed by petitioner, was incorrect for various reasons. The trial court disallowed the $50 item, but allowed all the other claimed credits. On appeal, this Court allowed the item of burial expense, but stated “as to the other expenditures, it was error for the trial court to allow the guardian credit on the showing made in this record. * * * Under the above state of the record, we think the trial court erred in allowing all of the credits in controversy. * # * The cause is therefore reversed and remanded with directions to proceed further not inconsistent with the views herein set forth.”

On January 27, 1958, the Bradley Probate Court entered its order on the mandate, vacating so much of its decree allowing credits in Hammons’ final accounting as has been disallowed by this Court, and directing a further hearing on such items. The petition for Writ of Prohibition followed.

Petitioner contends that the doctrine of res judicata applies, pointing out that the questions to be heard are identical with those tried on January 28, 1957, that the parties are identical, the guardian has had his day in court, and this matter has already been finally adjudicated.

Let it first be pointed out that this is not a proper case for Prohibition. As stated in Corpus Juris Secundum, Vol. 73, paragraph 8, page 26:

“In general, three things are necessary to justify the issuance of a writ of prohibition; that the court, officer, or person against whom it is directed is about to exercise judicial or quasi-judicial power, that the exercise of such power by such court, officer, or person is unauthorized by law, and that it will result in injury for which there is no other adequate remedy.

# * #

The writ ordinarily issues only to prevent great impending present injury or extraordinary hardship, or where the public good demands, or to prevent some great outrage on the settled principles of law and procedure ; unless it is shown that injury would result from the act sought to be prohibited, or that damage is likely to follow such act, prohibition will not lie.”

Our own cases denote the same view. In Lowery, Administrator v. Steel, Chancellor, 215 Ark. 240, 219 S. W. 2d 932, this Court said:

“ ‘The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Order of Railway Conductors of America v. Bandy, Judge, 177 Ark. 694, 8 S. W. 2d 448, and cases cited.’ Merchants & Planters Bank v. Hammock, 178 Ark. 746, 12 S. W. 2d 421, and ‘The writ is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction.’ Bassett v. Bourland, 175 Ark. 271, 299 S. W. 13.”

See also McClendon v. Wood, Judge, 125 Ark. 155, 188 S. W. 6. In the instant matter, even if petitioner’s assertion that this litigation has already been finally adjudicated, should be correct, the writ sought would not lie. There is no great impending injury, nor extraordinary hardship, and the contention here asserted, could be as well asserted on appeal. In other words, the remedy by appeal is adequate.

The petition is thus disposed of, but to possibly preclude another appeal based on the same contention, we deem it well to state our actual intention at the time of rendering the opinion in Robinson v. Hammons, supra. Possibly such intent could have been stated with more clarity, but when the language is considered, we think it clear that the cause was remanded for further proof relative to the credits claimed by the guardian. We stated “It was error for the trial court to allow the guardian credit on the showing made in this record.”, and remanded the cause with directions “to proceed further not inconsistent with the views herein set forth.” Of course, if we had simply intended to disallow the items, finally and irrevocably, there would have been no occasion to remand, for there would have been nothing left with which to “proceed further.” We would simply have allowed the funeral bill of $338, and disallowed the other items. Petitioner states in her brief, “If this court affirmed the $338 item, then this court disaffirmed all the other expenditures. This court could not affirm one item and remand all the others back for further hearing.” We disagree with this conclusion. While it is true that Chancery and Probate cases are generally determined on the basis of the record before us on a first appeal, occasionally some cases are remanded for further proof where it would appear that the ends of justice require such action. Such procedure, though not the usual action, has been followed in numerous cases by this Court. As stated in American Jurisprudence, Vol. 3, page 712, Sec. 1210:

“It may be stated as a general rule that when the record is in such shape that the appellate court cannot in justice determine what final judgment should be rendered, the case will be remanded for such further proceedings as may be necessary in the trial court, or it may be remanded with directions for further proceedings in conformity to the opinion of the reviewing court, or for proceedings not inconsistent therewith.”

Also, in Corpus Juris Secundum, Vol. 5, page 1447, Sec. 1934, we find:

“The nature and extent of the proceedings which will be ordered upon a reversal and remand is a matter largely within the discretion of the appellate court, which will be exercised according to the exigencies or circumstances of the particular case . * * * Indeed, the directions, instructions, and limitations, imposed or given may be such that the subsequent proceedings in the lower court, whether or not denominated a new trial, fall short of being a full and unrestricted new trial of the original issues.”

Still further, in Sec. 1935, page 1448:

“Whether by reason of statutory provision or otherwise, it is generally held that an appellate court, on remanding a cause, may in its discretion either grant a complete new trial or restrict or limit the purpose of the proceedings or the issues to be tried in the lower court, according to which course is demanded by the circumstances or the ends of justice. ’ ’

The petition is denied.

Justices MoFaddin and Robinson concur.

       Bobbie Jean, upon becoming of age, ratified this expenditure.


text:
    Sindle v. Sindle.
    5-1584
    315 S. W. 2d 893
    Opinion delivered June 16, 1958.
    [Rehearing denied September 29, 1958.]

      Paul K. Roberts, for appellant.

      W. G. Medley, for appellee.
   Carleton Harris, Chief Justice.

This is a child custody case. Appellant, Dixie Sindle, and appellee, Charles L. Sindle, were married January 14, 1955. On August 10, 1955, a child, Charles Randle Sindle, was horn. Appellee was granted a divorce on October 17, 1955; custody of the child was given to appellant, and appellee was directed to pay the sum of $40 per month for child support. The order further provided appellee should have the right to visit the child ‘ ‘ and when it became older, to have it visit him.” On July 9, 1957, Mr. Sindle filed a petition for modification of the decree, alleging that he had never been allowed to visit the child or have the child visit him, asked that he be granted the custody of Charles Randle for not less than one-half the year, and that the child support payment be reduced to $20 per month during the period in which the child remained in the custody of appellant.

At the conclusion of the hearing on such petition, the court granted appellee the custody of Charles Randle during the months of March, July and November, for the years 1958 and 1959, and reduced the support payments from $40 per month to $35 per month for the remaining 9 months of each year. From such action of the court, comes this appeal.

As has been so often stated by this Court, the paramount and controlling consideration in all custody cases is the child’s best interest and welfare. Cushman v. Lane, 224 Ark. 934, 277 S. W. 2d 72. Holt v. Holt, 228 Ark. 22, 305 S. W. 2d 545. The proof shows that appellee is an itinerant construction worker, presently located in Senatobia, Mississippi, though he claims Hampton, Arkansas, as his legal residence. Subsequent to the divorce, he married again on January 31,1957. His present wife is 18 years of age. Appellant has not remarried, is unemployed, and lives with her parents.

Appellee contends that appellant has deprived him of his right of visitation with the child. According to the evidence, he has gone to the home where she resides four or five times, the last occasion being about a year before this trial, for the purpose of visiting his son, and appellee refused to let him take the child away from the house, and according to his testimony, took it into another room. The mother contends that she is perfectly willing for Mr. Sindle to see and visit with the child, but that on the occasions of his coming to the home, he has been drinking, and at times has come to the house after the family had retired for the night; that she would not permit visitation under those circumstances. This testimony was corroborated by her father. The proof shows that appellant had gotten behind with his child support payments, and Mrs. Sindle had had him arrested, following which, no further visits were made. At the present time, he is current in his payments.

It is contended that appellant leaves the child with her parents, and does not stay with it. After a close search of the record, we are unable to find the basis for this contention. The only testimony that even slightly indicates such a fact, was given by appellee.

“Eight after the baby was born I could go over. Not long after she went to El Dorado and stayed a good while. Then it started raining, and I couldn’t keep up with the payments. She had to leave El Dorado and come back home.”

Further:

“You said something about Dixie wanting to take some kind of trip, what do you mean by that?

A. Every time she gets a check she goes somewhere. The last one, she went up to Booneville.

Q. Do you know what she was doing up there?

A. No, I don’t, because I wasn’t up there with her. I have a bud up there in the hospital. She went in there to see him. That might have been what she went for, I don’t know.”

Appellant also testified that she went to church one night and left Charles Eandle with her parents. These statements by appellee are rather general, and in fact, it is not shown but what she took the child with her. . Of course, there could be no objection to her leaving Charles Eandle at home to attend a night church service. It might be added that we cannot visualize extensive travel on $40.00 per month. At any rate, since no alimony is being paid, Mrs. Sindle might well be forced to obtain employment, in which event the child would certainly have to stay with her parents. Appellee recognizes that he would not be able to be with the child at all times, and plans for his present wife to look after Charles Eandle while he is at work.

The court awarded Mr. Sindle custody of this child during the months of March, July, and November, for the years 1958 and 1959. The reason for choosing these particular months is not shown in the record. As we stated in Aaron v. Aaron, 228 Ark. 27, 305 S. W. 2d 550:

“Divided custody of a minor child is not favored unless circumstances clearly warrant such action.”

We are unable to see that such action is warranted in this instance. As previously mentioned, appellee is an itinerant construction worker, and the record does not reflect where he will be during the months he was awarded custody of the child, nor what kind of home, or surroundings he will be in. It may well be that he does not know where he will be located during those periods, but we are of the opinion that before the child is placed in his custody, the environment and home surroundings should be ascertained. There is not one line of evidence in the record to indicate the type of neighborhood, or atmosphere, to which appellee and his wife intend to take the boy. We do not know whether they rent a house, live in a trailer, or reside at a hotel. The present wife did not testify, and her attitude toward the child, or ability to care for and look after it, is not shown, except that her husband testified as to her willingness to take Charles Randle. Of course, it is recognized that a child of tender years, under normal circumstances, belongs with its mother, and as stated in Perkins v. Perkins, 226 Ark. 765, 293 S. W. 2d 889:

“* * * It is a matter of common knowledge that usually there is no love like a mother’s love; this is a law of nature that is almost invariable, and unless there are compelling reasons for giving someone other than the mother custody of a small child, it should not be done. ’ ’

There is no evidence here that comes close to establishing that this mother is not devoted to her child. We are unwilling to approve a transfer of part-time custody of this little fellow, still less than three years of age, from his mother, who has had the custody from the time of his birth, to the father, where he would largely be under the care of an 18 year old stepmother. This, in our opinion, would not he for the best interest of the child. Certainly appellee is entitled to visit Charles Randle, and arrangements can be made for him to take the little boy away from the house, if visiting conditions are presently unpleasant. Mr. Sindle could take the child to town, or on a picnic, or numerous places where he would have no occasion to be annoyed or disturbed by appellant. It goes without saying that on such occasions, he should be entirely sober.

The court reduced the monthly support payments from $40 to $35 for the nine months period during which it was ordered that the mother have custody of Charles Randle. Again, we find no evidence upon which to justify a reduction. No one testified as to appellee’s salary or wages. The only evidence relative to Mr. Sindle’s income is as follows:

“You are asking for this decree to be modified to where you will only pay $20 a month while the child is with its mother. On what are you basing that petition?

A. Because I think I could take it and raise it for $20 a month.

Q. You think that is too much?

A. Yes, I do.

Q. Are you working for the same company you were working for at the time the decree was rendered?

A. What do you mean?

Q. This decree was rendered back in October, 1955. Were you working for that same company then?

A. Yes, sir.

Q. Are you making the same money?

A. No, sir.

Q. You are not?

A. No.

Q. How much more now than then?

A. I am not making more. ”

So it is not shown that his earnings are less, nor his expenses greater, than at the time of the granting of the divorce decree. To justify a reduction in support payments, changed circumstances must be shown. Clinton v. Morrow, 220 Ark. 377, 247 S. W. 2d 1015. Of course, we know that appellee has remarried, but this is not emphasized in the testimony, nor argued as justifying a reduction in the support payments.

Appellant asks that she be allowed a reasonable attorney’s fee, and we think this request should be granted. We approved an attorney’s fee for the ex-wife in a child custody proceeding in Vilas v. Vilas, 184 Ark. 352, 42 S. W. 2d 379, and Aaron v. Aaron, supra. In those instances, the proceedings for modification were instituted by the divorced wives. Here, the proceeding was instituted by the ex-husband, and appellant, apparently without funds of her own, was certainly entitled to defend against the petition. We accordingly allow an attorney’s fee of $100.

The decree is reversed and remanded with directions to enter a decree consistent with this opinion, and to enter an order allowing appellant’s attorney a fee of $100.


author: J. Seaborn Holt, Associate Justice.

text:
    Lamar Bath House Company v. City of Hot Springs.
    5-1536
    315 S. W. 2d 884
    Opinion delivered June 16, 1958.
    [Rehearing denied September 29, 1958.]

      House, Holmes, Roddy, Butler & Jewell, for appellant.

      A. D. Shelton, City Attorney, and Wood, Chestnutt and Smith, for appellee.
   J. Seaborn Holt, Associate Justice.

In 1934 the City of Hot Springs entered into an agreement with the National Park Service, Department of Interior, relative to the construction of a city sewer system and sewage plant in Hot Springs. The parties recognizing that Hot Springs’ reservation, including- appellant’s bath houses located thereon, contributed largely to the city’s sewage, the Park Service agreed to pay 22.5 per cent of the construction cost and an additional 5 per cent in lieu of maintenance and operation charges. Park Service in the aggregate contributed $82,000. Appellants’ bath houses furnished no part of the consideration. The agreement contained this recital: “1. That the Government be not charged for any service or use of the system at any time in the future. 2. That the cost of all repairs, alterations, maintenance and operation of the system be borne by other than the United States government sources. Necessary replacements of the entire plant due to natural or human destruction not to be considered a part of paragraph 2.” The balance of the cost of construction was paid partly by the U. S. Public "Works Administration and partly by a city bond issue of $175,000, financed by a 1.5 mill ad valorem tax on the property within the city. In 1934 the 1.5 mill tax was extended against appellants’ property and assessed for taxation. In July 1935 appellants obtained a temporary restraining order against the collection of this tax, setting up the agreement as a defense. Thereafter, in 1945, on the city’s motion to dissolve the injunction and for a decree for past due taxes, the court held, in effect, that appellants were U. S. government sources within the meaning of the agreement and enjoined the city from assessing and collecting the 1.5 mill tax against them.. There was no appeal from this decree.

The record reflects that by 1952, the city sewage disposal plants were obsolescent, inadequate and heavily overloaded, creating a serious health problem, and the pollution of Lakes Hamilton and Catherine. A thorough engineering study was made resulting in recommendations to the city to enlarge, overhaul and repair the disposal system and to change the method of purifying the city sewage. Following this recommendation and to cover the cost and properly proceeding under the provisions of Act 132 of 1933 (Sec. 19-4101 etc. Ark. Stats. 1947), the city caused bonds to be issued in the amount of $786,000, which were to be financed by a sewer service charge. It appears that prior to this time the city had never levied any sewer service charge. Sewer service charge rates were set forth in Ordinance 2444 by the city. Following the completion of the work, sewer service charges were made against and sent to appellants and other users of the system. Charges to appellants were calculated upon the total volume of sewage discharged by them from their bath houses into the sewer system, and included both the city water and also the hot mineral water furnished by the National Park Service. Appellants operate commercial bath house companies located on the U. S. reservation and are large consumers of water, and large contributors to the water that goes through the sewage system. There was evidence that in 1952 appellants discharged 57,365,500 gallons of sewage into the system, or about 7.5 percent of the total flow. In 1953 the total number of gallons discharged was 55,705,800, or 7.5 percent of the total -flow. Appellants refused to pay to the city any sewer service charges and in 1955 brought the present suit to enjoin collection. In the trial court, and here on appeal, appellants relied on the following points: “1. The agreement is valid, and imposition of sewer charges upon appellants is an unconstitutional impairment of contract. 2. The validity of the agreement is res judicata. 3. Appellees are estopped to assert any invalidity in the agreement and from imposing sewer charges upon appellants. 4. The city had no legislative or territorial jurisdiction to impose sewer charges upon appellants, and the trial court had no jurisdiction to render judgment against them. 5. No claim or judgment in person-am could lawfully be made or rendered against appellants. 6. In no event could any charge be calculated against appellants on volume of hot mineral water from the National Park springs.”

Appellees defended primarily on the ground that their agreement or contract relied upon by appellants was ultra vires as applied to the sewer service charge, asserted their right to collect these service charges from appellants and in a cross complaint asked for a judgment for the full amount of the unpaid sewer service charges not only for the city water but also for the hot mineral water furnished by the National Park Service which, as indicated, was also discharged through the sewer system. Upon a hearing the trial court held that the contract or agreement of 1934 was valid as to the 1.5 mill ad valorem tax for the original construction, but ultra vires as applied to the present sewer service charges, and that appellants were liable only for the amount of city water discharged into the sewers and not for the hot mineral water. The court also disallowed the city’s claim for penalties and attorney’s fees. It appears that all bonds for the original construction under the 1.5 mill tax are paid and this tax is no longer levied. The case is before ns on appellants’ direct appeal and a cross appeal of appellees.

The primary, if not the decisive, question presented is whether the above agreement between the city and the National Park Service is ultra vires in the circumstances here. We hold that it was in so far as it would estop or deny the City of Hot Springs the right and power now or at any future time, in the exercise of its police powers to enforce collection of sewer charges against appellants. The city not only has the right in exercising its legislative and governmental functions to protect the health, safety and general welfare of its people, but it is its duty to do so and may not contract away any such right. “A municipality cannot bind itself by a perpetual contract, or by one which lasts an unreasonable length of time . . . It is declared to be against public policy to permit a municipal corporation to part with any of its legislative power. In the absence of a clear grant of power from the legislature, the municipal authorities can do nothing which amounts in effect to the alienation of a substantial right of the public. It cannot obligate itself not to exercise such powers, and a contract in which it purports to do so, even upon valuable consideration, is void. Thus, a municipal corporation cannot, by contract or otherwise, divest itself of its general police power, or of the power of eminent domain which has been delegated to it by the legislature, or of the power of taxation,” Risser v. City of Little Rock, 225 Ark. 318, 281 S. W. 2d 949.

In effect, the same issues as here were presented to the Supreme Court of Ohio in State ex rel. Gordon v. Taylor, et al., 149 Ohio St. 427, 79 N. E. 2d 127. In that ease Ohio State University refused to pay a bill for sewer service charges presented by the City of Columbus on the ground that it had many years before entered into an agreement with the city under the terms of which it had conveyed to the city an easement across University property for sewer purposes in consideration of “the right and privilege to the Board of Trustees, and to the Ohio State University, to use the city sewers on the campus of said university without cost or expense to said university, or its Board of Trustees.” In rejecting the university’s defense, that court used this language: ‘ ‘ The language of the grant of easement involved herein, if construed as contended by counsel for the respondents, would be so broad and comprehensive as to vest in the university the right to use the city sewer and the benefit of the city’s sewerage system without restriction or limitation, and without liability for any future charge or expense of maintenance, renewal or additional facilities required by any change of conditions . . . If the University is completely exempted from any charge therefor- and is privileged, without any limitation or restriction, to empty into the city sewers all the sewage from the campus, the boundaries of which are not defined or limited and may be indefinitely extended, such exenlption could be held valid only if the city, notwithstanding its duty and obligation to protect the health, safety and welfare of the citizens of Columbus, is authorized to relinquish as to the university property the powers and prerogatives vested in the municipality and to contract away its duty and obligation to require all users of the city sewerage system to pay proportionately the cost and expense of an essential municipal function.

In the construction of a sewerage system, a municipality acts in a governmental capacity, and, hence, in accepting the grant of easement subject to the right of the university to use the sewer would be ultra vires, if by such exemption the city bargained away all its duties and obligations with reference to maintenance of such sewer and agreed to forever maintain it for the benefit of the university. It is only in the maintenance of a sewerage system that the city acts in a ministerial or proprietary function. City of Portsmouth v. Mitchell Mfg. Co., 113 Ohio St. 250, 148 N. E. 846, 43 A. L. R. 961.” (State v. Taylor, 79 N. E. 2d 127 supra.)

“The supervision and regulation of the sewers is a police function of the city. Therefore, in granting permission for the use of the sewers in the first instance and for the continuing use thereof, the city must at all times retain control, and any attempt by way of contract to deprive the city of that control is void. The police power of the city cannot be bargained away by contract, but must at all times be available for use to meet such public needs as may arise. McQuillin, Municipal Corporations, 2d Ed. Rev. Secs. 393, 1564,” Ericksen v. City of Sioux Falls, 70 S. D. 40, 14 N. W. 2d 89. “. . . an indefinite exemption, the purpose or amount of which is not reasonably ascertainable, is not only ultra vires, but is also against public policy,” City of Cleveland v. Edwards, 309 Ohio St. 598, 143 N. E. 181, 37 A.L.R. 1352. “ . . . in the absence of express grant of power, a municipal corporation has no authority to make contracts for the exemption or commutation of local assessments,” McQuillin, 3d Ed. 14, Sec. 38.86. Cases from Delaware, Indiana, Kentucky, Massachusetts, Mississippi, Missouri. New York, Wisconsin and Ohio are cited to support the text.

Appellants have presented for our consideration a large number of cases in their effort to uphold the validity of the above agreement between the city and the National Park Service, however, upon examination of each of these cases there appears to have been statutory or constitutional authority which permitted the municipality to enter into the contract in question. As pointed out above, in the present case we find no authority or express grant of power, statutory or otherwise, giving to the City of Hot Springs the authority to exempt appellants here from the sewer service charge in question. “A common council ‘cannot bargain away or divest itself of the right to make reasonable laws, and to exercise the police power whenever it becomes necessary to conserve or promote the health, safety or welfare of the community.’ So, power conferred upon a city to contract respecting a particular matter does not confer power, by implication, so to contract with reference thereto as to embarrass and interfere with its future control over the matter, as the public interests may require. Hence, all contracts which interfere with the legislative or governmental functions of the municipality are absolutely void.” McQuillin, 3d Ed. Vol. 10, Sec. 29.07.

It appears practically undisputed here that when this bond issue of $786,000 was made that the City of Hot Springs was faced with a serious problem of sewage disposal, affecting the health and well being of its inhabitants, and we see no valid reason, and appellants have pointed to none, why appellants who are citizens and conducting their businesses in that municipality should not pay their just share, through sewer service charges, of this necessary improvement for the public good.

Appellants’ contention that “the validity of the agreement is res judicata” cannot be sustained. As we have heretofore stated, ‘ ‘ the police power of a city must at all times be available for use to meet such public needs as may arise.” It does not appear from the record that any such need existed in 1935 when a temporary restraining order was obtained or in 1945 when it was made permanent. Consequently, at those times, there was no occasion for the city to exercise its police powers. On the other hand it appears now that such a need does exist and consequently there is an occasion for the city to exercise its police powers.

On the contention of appellants that the city is estopped, little need be said in addition to what we have set out above.

Since we are holding that the contract or agreement here in question is ultra vires, then the city may not be estopped to deny its invalidity. . . contracts which the corporation is not permitted legally to enter into are not subject of ratification, and a city may not be estopped to deny the invalidity of a contract that is ultra vires in the sense that it is not within the power of the municipality to make,” McQuillin, 3d Ed. Vol.10, Sec. 29-104, p. 422.

On cross appeal appellees contend that there was error in the trial court’s decree in denying them the right to base sewer service charges on the total volume of all water which appellants discharged into the sewers, which included both the city water and the hot mineral water. We agree that this contention should be sustained. It appears that the basis of the sewer service charge is based on the volume of sewage discharged into and through the sewers. The record reflects that the water consumption for the calendar year 1952 was used as a basis for sewer charges for period from October 1953 through September 1954. This water, which was emptied into- the sewers, amounted to approximately 4,452,800 gallons of city water and 52,912,700 gallons of hot mineral water. For 1953 the volume of city water was slightly greater and that of the hot mineral water somewhat less. As indicated, sewer service charges are based on the use of the system. Appellants used the water in their businesses in which, obviously, they seek to make a profit, and we can see no just reason why they should not be required to share, along with all other users of sewers, the cost burden of disposing of this water through the sewer system.

We hold that there was no error in denying to appellees the penalties and attorney’s fees as provided in Sec. 19-4113 Ark. Stats. 1947. This statute is penal in its nature and must, therefore, he strictly construed. It provides in part: “If any service rate or charge so established shall not be paid within thirty days after the same is due, the amount thereof, together with a penalty of ten per cent, and a reasonable attorney’s fee, may be recovered by the sewer Committee. . .” This provision says that penalties “may be recovered” not that they must be. The trial court is thus granted a reasonable discretion in denying or allowing penalties depending on the facts and circumstances. “It is a general rule of statutory construction that penal statutes are to be strictly construed. Statutes imposing penalties are subject to this rule of strict construction. They will not be construed to include anything beyond their letter, even though within their spirit. The rule that penal laws are to be construed strictly is perhaps not much younger than construction itself. It is founded on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department.” 23 Am. Jur., Forfeitures and Penalties, Sec. 37, p. 631. We find no abuse of that discretion here.

Accordingly, the decree is affirmed on direct appeal, on appellees’ cross appeal the decree is reversed and remanded with directions to enter a decree consistent with this opinion.

McFaddin, J., dissents.


text:
    Mizell v. West.
    5-1589
    314 S. W. 2d 216
    Opinion delivered June 16, 1958.

      Johnston & Rowell, for appellant.

      Robert A. Zebold and John Harris Jones, for appellee.
   J. Seaborn Holt, Associate Justice.

This litigation involves an oral lease of farm land. According to the evidence adduced by appellee West, he and appellant (Mizell) entered into an oral agreement whereby West (landowner) leased to Mizell for the year 1956, 108 acres of land to be planted to cotton and 70 additional acres for beans. It was agreed that Mizell would furnish all the necessary farm machinery and equipment and as lessee was to receive three-fourths (West one-fourth) of all cotton produced. Under this agreement Mizell farmed the land, properly and successfully, and at the end of the 1956 year West refused appellant’s request for renewal of the lease for 1957 and additional years, and placed the land under the soil bank program. Appellant testified on the other hand that the oral agreement between him and West was for the lease of appellee’s land for a period-not only including 1956, hut for several years thereafter. That the reason for a long-lease was to enable Mizell (lessee) to pay for the additional farm equipment which would require several crop years. He further testified that it was his understanding that he (Mizell) was to have the land as long as he made an average crop and wanted it. “A. . . . I hadn’t discussed with Mr. West anything during the time he rented to me —■ he told me he was going to put it in the soil bank and work the rest himself — I was under the impression all the time that I was going to be there this year and continue on as long as I made an average crop on the place. Q. As far as you were concerned it was just going on as long as he owned the land? A. That is what he told me and the boys, as long as we wanted to work it. ... Q. Did he ever offer to share the soil bank proceeds with you. A. No sir.”

Appellant brought the present suit against West alleging: “That by reason of the defendant’s breach of the aforesaid rental contract and his unlawful dispossession of the plaintiff from the aforesaid lands this plaintiff has suffered damage by reason of depreciation” of his equipment in the amount of $3,732.72 and “that by reason of loss of profits from farming the 108 acres of land hereinabove mentioned to cotton and the 50 to 70 acres of soybeans, this plaintiff has suffered damage in the sum of $7,250.00 or a total damage in the sum of $10,982.72,” and prayed for a judgment in this amount. In an amendment to his complaint plaintiff further alleged: “That the Soil Bank payments under the contract will be in the approximate sum of Seven Thousand Five Hundred Dollars ($7,500.00), and that this plaintiff is entitled to receive three-fourths of said payment or the sum of Five Thousand Six Hundred Twenty Five Dollars ($5,625.00).

Wherefore, in addition to the prayer of the original complaint filed herein, plaintiff prays, in the alternative, that he have judgment against the defendant in the sum of Five Thousand Six Hundred and Twenty Five Dollars ($5,625.00) and for all other relief to which he may be entitled.”

West answered with a general denial and in a cross complaint sought to recover from Mizell $450.00 alleged balance due on the 1956 rental, $300.00 for cotton alleged to have been abandoned by Mizell and left in the field and $84 for tractor fuel used in seed bed preparation and planting, or a total of $834.00.

A jury trial resulted in a verdict for West on Mizell’s complaint and a verdict in favor of Mizell on West’s cross complaint. This appeal followed.

For reversal appellant relies on one point: “The trial court erred in instructing a verdict for the defendant, upon the claim of the appellant for a pro rata share of the soil bank payments, thereby refusing to recognize appellant as a third party beneficiary under the soil bank agreement.”

The record reflects that Mizell requested only two instructions, which were given by the court, as follows: “1. If you find from a preponderance of the evidence in this case that the defendant, J. E. West, entered into an agreement with the plaintiff, E. E. Mizell, to rent him the lands involved in this case for the year 1956 and as many years thereafter as E. E. Mizell farmed the lands in a satisfactory manner, and you further find from a preponderance of the evidence that E. E. Mizell moved onto the lands and began the performance of such contract, and purchased equipment because of such a contract and repaired a house on the land to live in so that he could perform the contract, and if you further find that the defendant gave the plaintiff no notice that his work was unsatisfactory, or that he would not be able to farm the lands for the year 1957, then you will find for the plaintiff and fix his damages in an amount equal to the value of the lands to the plaintiff less the agreed rental under the contract. 2. If you find for the plaintiff you may consider, in determining the value of the lands to the plaintiff for the year 1957, the pro rata amount of the soil bank payments to which he would be entitled under the soil bank program of the federal government.”

As we view the evidence these instructions fully and clearly covered appellant’s theory of the case, and the jury found against him on substantial testimony. Obviously, the soil bank issue did. not arise in the 1956 crop year, when appellant operated the leased land. It conld only arise in subsequent years provided appellant’s theory of the case had been sustained by the jury’s verdict and, as indicated, it was not.

The record shows that the court gave appellee’s requested instruction No. 9 on appellant’s claim to a share in the soil bank payments, as follows: “You are instructed to find for the defendant upon the alternative claim of plaintiff for a portion of the soil bank payment,” and appellant’s objection is in this language: “To which action of the court, in giving to the jury, defendant’s written requested instruction No. 9, the plaintiff at the time objected generally, his general objection was by the court overruled, and the plaintiff at the time asked that his exceptions be saved and duly noted of record, which is hereby accordingly done.” It is thus apparent that appellant’s objection was only general, not specific, and he did not offer any instruction to cover his alleged alternative claim for participation in the soil bank payment. It was his duty to present to the court an instruction on his theory of the case. “A party failing to request a definite instruction is in no position to complain that one was not given,” Wallace v. Riales, 218 Ark. 70, 234 S. W. 2d 199; “Appellant cannot complain that the trial court failed to give an instruction that was not asked by appellant,” Headnote 6, Ward Furniture Mfg. Co. v. Isbell, 81 Ark. 549, 99 S. W. 845; ‘ ‘ One who appeals cannot complain that the instructions of the lower court were incomplete if he made no effort to have the omissions supplied at the trial,” Headnote 4, White, v. McCracken, 60 Ark. 613, 31 S. W. 882.

Accordingly the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Songer v. Songer.
    5-1586
    314 S. W. 2d 223
    Opinion delivered June 16, 1958.

      Terral, Rawlings ■<& Boswell, for appellant.

      Howell, Price & Worsham, for appellee.
   Ed. F. McFaddin, Associate Justice.

This case involves the custody of two little hoys, Larry and Chris Songer. Mr. and Mrs. Songer were married in 1936, and had five children before they were separated on May 4, 1955: Mrs. Songer became enamored of Mr. Halcumb. The five children, and their ages in 1957, are: Caroline Songer McNeill, a woman of full age; Tommy Song-er, a boy aged 17; Larry Songer, a boy aged 10; Chris Songer, a boy aged about 5; and Cynthia Cale Songer, a girl of tender years.

On April 10, 1956 Mrs. Songer obtained a divorce; and the decree, insofar as refers to the custody and support of the children, provided:

“The custody of the minor children of the parties hereto is awarded to the plaintiff (Mrs. Songer), with the right of visitation of defendant (Mr. Songer) at reasonable times. Defendant shall pay $125.00 per month for the support and maintenance of Larry Song-er, Chris Songer, and Cynthia Gale Songer, which sum shall be automatically reduced to $100.00 per month if and when the plaintiff remarries, and to $75.00 per month when Larry Songer is married, becomes of age, self-supporting, or ceases to live in the home of Jewel Songer, and when Chris Songer reaches such status it shall be reduced to $50 per month for the support of Cynthia Gale Songer.”

On May 31, 1957 the foregoing custody order was modified so that Mr. Songer was given the custody of the two boys, Larry and Chris, for all of June, July, and August (except for the period from June 21st to June 29th) and .with right of visitation afforded the mother. On June 4, 1957 Mrs. Songer married the previously mentioned Mr. Halcumb, and we will refer to her as Mrs. Songer-Halcumb.

On August 15, 1957 Mr. Songer petitioned the Court for the full custody of the boys, Larry and Chris, with their mother, Mrs. Songer-Halcumb, to have the right of visitation. Trial on the issue of custody of Larry and Chris resulted in a decree refusing Mr. Songer his prayed relief; and from that decree there is this appeal.

At the outset it is admitted by all parties that the burden on Mr. Songer in the Chancery Court was twofold: (a) to show that it was for the best interests of the two boys, Larry and Chris, that the father have their custody; and (b) that a change of circumstances had come about since the entry of the custody order con-tamed in the divorce decree of April, 1956. In Thompson v. Thompson, 213 Ark. 595, 212 S. W. 2d 8, Mr. Justice Robins stated the law:

“While any order as to custody of a child is subject to future modification by the court making it, the rule, uniformly adhered to by us, is that before such modification may be made it must be shown that after the making of the original order, there has been such, a change in the situation as to require, in the interest of the minor, the change to be made, or it must be shown that material facts affecting the welfare of the child were unknown to the court when the first order was made. ’ ’

To recount all the evidence in this case would present a rather sordid picture and would serve no useful purpose. To discharge the two-fold burden resting on him as aforesaid, Mr. Songer showed, inter alia-, (a) that Mrs. Songer had married Mr. Halcumb, the man who had disrupted the Songer home; (b) that Mrs. Songer-Halcumb worked, away from home, from 7:15 in the morning until 3:45 in the afternoon and it was necessary to leave the children with someone during all of such absence; (c) and that Mr. Songer had married a fine Christian lady who did not work and who testified that she wanted the two Songer boys in her home and that she would look after them and provide them with every possible care.

Mr. Songer also testified that on May 31, 1957, he saw Mrs. Songer-Halcumb’s car, with three of the Song-er children in it parked, in front of a beer joint on East Ninth Street in Little Rock; and that Mr. Halcumb and Mrs. Songer-Halcumb came out of the beer joint and got in a fight; that Larry and Chris Songer got out of . the car screaming and crying; and that Tommy Songer got out of the car and had an encounter with Mr. Halcumb. Mrs. Songer-Halcumb took the witness stand; and did not deny this testimony. Mr. Halcumb —■ although present in Court — did not testify, either to deny the brawl incident or to say that he wanted the two children, Larry and Chris, in his home. Furthermore, it was shown that the two older Songer children (the daughter, Caroline Songer McNeill, and Tommy Songer) have become hostile to their father. We apprehend that if these two little boys, Larry and Chris, remain in the Halcumb home they will be encouraged to develop a like hostility toward their father, who is shown to be devoted to them and to be a regular church attendant. An unfortunate situation envelops the two Songer children, Larry and Chris; but under all the circumstances, we hold that the father, Mr. Songer, is entitled to their care and custody, with the mother to have the rights of visitation.

The lower Court awarded Mrs. Songer-Halcumb $100.00 for attorneys’ fee. We also reverse that portion of the decree; but we hold that the costs of both Courts should be equally divided.

The cause is remanded to reinvest the Chancery Court with jurisdiction to enter and enforce a decree in keeping with our holding herein.

Robinson, J., dissents.

       Mrs. Songer had a sixth child born after the separation. The custody of that child is not here involved.

       The monthly support payment for the boys was abated during June, July, and August.


author: Minor W. Millwee, Associate Justice.

text:
    Neilson v. Hase.
    5-1611
    314 S. W. 2d 219
    Opinion delivered June 16, 1958.

      Paul E. Gutensohn, for appellant.

      Daily S Woods, for appellee.
   Minor W. Millwee, Associate Justice.

Appellees, Fred C. Hase and Elsa A. Hase, his wife, were the owners in fee simple of 160 acres of land in Sebastian County, Arkansas, prior to October 12, 1949. On that date they conveyed an undivided one-half interest in the minerals, and said interest subsequently passed through mesne conveyances to the appellants, C. M. Neilson and Woods Oil Corporation. After execution of the 1949 mineral deed, Fred C. Hase and wife continued to be the owners of the surface and an undivided one-half interest in the minerals until January 7, 1952, when they executed a full interest oil and gas lease to appellee, C. J. Haller, who in turn assigned said lease to appellee, Carter Oil Company.

The undivided one-half mineral interest severed by the 1949 deed was separately assessed for the 1952 general taxes which became delinquent. At the annual tax sale on November 9, 1953, appellee, Fred C. Hase, bid in the undivided one-half mineral interest and at the end of the two-year redemption period received a deed to said interest from the county clerk.

Appellants, C. M. Neilson and Woods Oil Corporation brought the instant suit on September 30, 1957, claiming that the purchase by Fred C. Hase at the 1953 tax sale of the forfeited one-half interest in the minerals should be treated as a redemption for the benefit of the appellants as his co-tenants, and not as a purchase ; and that said tax deed should be declared void and title to said mineral interest quieted in appellants upon their tender to Hase of the amount of said delinquent taxes, penalty, interest and costs. Appellants also alleged a number of irregularities connected with the tax sale and the record of the assessment of the severed mineral interest but these allegations were not sustained by the proof. This appeal is from a decree adverse to appellants in which the chancellor found: ‘ ‘ The conveyance in 1949, by defendants Fred C. Hase and Elsa A. Hase, of an undivided one-half interest in the oil, gas and other minerals did not create a tenancy in common between Hase and his grantees, but created two separate, distinct taxable estates to which Ark. Stats. Sec. 84-1304 does not apply.”

It is undisputed that Fred C. Hase and wife owned the surface and undivided one-half mineral interest and that appellants owned the other one-half mineral interest in the lands as a result of the 1949 and other conveyances executed prior to the 1953 tax proceedings. Appellants contend the chancellor erred (1) in refusing to hold they were tenants in common as to said mineral im terest, and (2) that the purchase by Hase of the tax title to the separately assessed one-half undivided mineral interest constituted a mere redemption for the benefit of appellants, his cotenants.

We find it unnecessary to determine whether Hase and the appellants were cotenants. Conceding, without deciding, that they were tenants in common, the purchase of the tax title by Hase did not amount to a mere redemption for the benefit of his cotenants. Appellants rely on the general rule that a cotenant who acquires a tax title to the entire property, either by purchasing at the tax sale himself, or subsequently buying from a purchaser who bought at such sale, cannot assert such title against his co-owners, except as a basis for contribution to repay him for his expenditure. His purchase simply amounts to a payment of the taxes, or a redemption from the sale, and gives him no right except to compel contribution. We have recognized this well-established rule in numerous cases but it is inapplicable here.

An exception to the foregoing general rule arises where the land has been assessed upon the tax books to and in the names of the owners of the undivided interests respectively, and when the owner of each undivided interest could have paid his own tax unaffected by the fact of joint interest, and where the subsequent tax sale and deed are based upon the separate assessment. The annotator states the applicable rule in 54 A. L. R. 906, as follows: “Where taxes are assessed separately against the interest of each cotenant, rather than against the common property as a whole, any co-tenant may acquire exclusively for himself, with his own money, title to parts of the property based upon tax sales against the other cotenants, provided, of course, he acts in good faith, and is under no contractual obligation, express or implied, to pay taxes assessed against his cotenants.” So, where the undivided interests of tenants in common are separately assessed, and there is no obligation resting on one of the tenants to pay the taxes of the others, he may acquire the interests of his co-tenants through a sale thereof for delinquent taxes. 86 C. J. S., Tenancy in Common, Sec. 64 b (1).

Many eases recognizing the exception to the general rule are collected in other annotations on the question in 70 Am. St. Rep. 101; 116 Am. St. Rep. 368; 85 A. L. R. 1538. One of these is Brittin v. Handy, 20 Ark. 381, 73 Am. Dec. 497, where the court approved the following statement from 1 Lomax Dig. 262: “It is, therefore, considered that joint tenants and coparceners stand in such confidential relations in regard to one another’s interest, that one of them is not permitted in equity to acquire an interest in the property hostile to that of the other. And, therefore, a purchase by one joint tenant or coparcener of an incumbrance on the joint estate, or an outstanding title to it, is held at the election of his co-tenants within a reasonable time, to inure to the equal benefit of all tbe tenants, upon the condition that they will contribute their respective ratios of the consideration actually given.

“The same equity is considered as subsisting between tenants in common under the same instrument. But it is suggested that tenants in common, probably, are subject to this mutual obligation only where their interest occurs under the same instrument, or act of the parties, or of the law, or where they have entered into some engagement or understanding with one another, for persons acquiring unconnected interests in the same subject by distinct purchases, though it may be under the same title, are probably not bound to any greater protection of one another’s interests, than would be required between strangers. ” The Brittin case is also cited in support of the following statement of the rule in Thompson on Beal Property, Sec. 1862: “If tenants in common occupy and improve the common land in severalty, and each is assessed and pays taxes on a particular portion, one of them can not afterwards, upon a sale of the land for taxes in separate parts, invoke the relation of cotenancy to defeat the tax title acquired by the other.” See also, 14 Am. Jur., Cotenancy, Sec. 54. We are convinced the same rule should apply to a purchase by a cotenant of a tax title to undivided mineral interests separately assessed, as in the instant case. The Oklahoma court so held in Patterson v. Wilson, 203 Okla. 527, 223 P. 2d 770.

We have held that the sale of an undivided mineral interest operates as a severance of said interest from the surface and creates two separate and distinct estates. Huffman v. Henderson Co., 184 Ark. 278, 42 S. W. 2d 221. In Pasteur v. Niswanger, 226 Ark. 486, 290 S. W. 2d 852, we said: “Owners of leasehold working interests are not cotenants of the owners of the fee or surface of the land. Their interests are of a different kind. Their interests are also of a different kind to the interests of the owners of mineral rights where severed from the land.”

Regardless of whether Fred C. Hase was a tenant in common with the appellants, or the owner of a completely separate and independent estate, his purchase of the separately assessed mineral interest at the tax sale did not constitute a mere redemption inuring to the benefit of the appellants. When he executed and delivered the deed to the undivided one-half mineral interest and received the consideration therefor, there remained no duty or obligation, legal or moral on his part to pay the taxes on such interest, and it is not shown that he was guilty of any fraud or inequitable conduct in connection with his purchase of the tax title. It follows that Sec. 84-1304, supra, does not apply where the tenant in common merely purchases an undivided mineral interest separately assessed and there is no duty resting on him to pay the taxes on such interest. Since the regularity of the 1953 tax sale is not in question, the chancellor acted correctly in dismissing appellants’ complaint seeking cancellation of the 1955 tax deed and in quieting the title of the appellees as against the appellants. The decree is accordingly affirmed.

       Sec. 84-1304 reads: “ ‘The purchaser at the sale of lands or lots, or parts thereof, for the taxes of the interest of any joint tenant, tenants in common or coparcener, or any portion of such interest, shall, on obtaining the deeds from the clerk of the county, hold the same as tenant in common with the other proprietors (or proprietor) of such land, or lot, and be entitled to all the privileges of a tenant in common, until a legal partition of such land, or lot, or part thereof, shall be made.’ ”


author: George Rose Smith, J.

text:
    Rogers v. Crowder.
    5-1616
    315 S. W. 2d 914
    Opinion delivered June 16, 1958
    [Rehearing denial September 29, 1958.]

      A. A. McCormich, for appellant.

      J. Sam. Wood, for appellee.
   George Rose Smith, J.

This controversy over the custody of a nine-year-old boy is between the child’s father, the appellant, and the child’s maternal grandmother, who was appointed as guardian for the boy after the death of his mother. This appeal is from the chancellor’s denial of the father’s petition for a change of custody.

The child’s parents, Clinton and Wanda Rogers, were married in 1947 and were divorced in 1949. The divorce decree awarded the custody of the couple’s six-month-old son to the mother and directed the father (the present appellant) to pay $15 a week for the child’s support. Within fifteen days after the entry of the decree Rogers was jailed for failure to make the required weekly payments. Upon his promise to make proper arrangements for the infant’s support Rogers was released a month later. He at once left the state, settled down in Oregon, and from that distant point ignored the order of support for about eight years. Rogers says that during those years he sent money from time to time to his former wife, although the decree required that the payments be made into the registry of the court. He did not, however, produce any canceled checks or other evidence that would convincingly corroborate his rather vague assertions that he made contributions toward the child’s maintenance. The chancellor was justified in concluding that Rogers pretty well disregarded his responsibility as a father until the present petition was filed in November, 1957.

In the meantime Wanda Rogers, the child’s mother, was left with the burden of providing for the infant. Wanda remarried within a few months after her divorce, but she and her second husband, a man named Curry, found it necessary to move into the appellee’s home and to depend at least to some extent upon Mrs. Crowder for financial help. There can be no doubt that over a period of years Mrs. Crowder assisted in the care of her grandson and helped to meet the family expenses. In September of 1957 Curry killed his wife, Wanda, and then committed suicide; this tragedy was followed by the appointment of Mrs. Crowder as the child’s guardian, and later on the present petition for a change of custody was filed.

In refusing to change the existing arrangement the chancellor found by his decree: “That the child is nine years old, in good health, attends school regularly, and from his appearance in court on the day of this hearing seems to be well adjusted to being with his grandmother. That he obeyed her, was devoted to her, and appeared to look upon her as his own mother. That the testimony showed that the grandmother had reared the child in her home most of the time since his birth . . . That the defendant father is now married to a 23-year-old woman, has one child by this second marriage, and said wife is now pregnant with child. That this court had no opportunity to see this woman. That said woman did not appear in court, nor did she testify by deposition. That this court has no way of knowing whether she would be a fit mother for the nine-year-old boy or not. That apparently the boy has never seen this woman whom defendant asks that this court deliver the boy to, to rear him from now on. That this court has no assurance that the new wife would rear the child properly, see that he attended school or church, etc. That this court does not even know that the new wife would agree to rear the child at all, if defendant were allowed to take him back to Oregon with him.”

As we view this record the appellant’s contention narrows down almost entirely to the fact that he is the boy’s father and therefore occupies a position that is prima facie superior to that of the child’s grandmother. Even so, the many other circumstances disclosed by the proof so strongly support the trial judge’s conclusion that we do not feel warranted in setting aside his decree. Our reluctance to differ with the chancellor is of course enhanced by the fact that he saw both the contending parties on the witness stand and thus had, in contrast to us, an advantage that is immeasurable in a case of this kind.

A minor contention is that the chancellor erred in overruling the appellant’s demurrer to the intervention filed by Wanda Curry’s administrator, who sought to recover the support payments that had accrued since the entry of the original divorce decree. This issue, however, has not yet been determined on its merits, and of course an order that merely overrules a demurrer is not a final judgment from which an appeal may be taken. Ark. State Bd. of Architects v. Larsen, 226 Ark. 536, 291 S. W. 2d 269.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Anderson v. McClanahan.
    5-1578
    314 S. W. 2d 222
    Opinion delivered June 16, 1958.

      Reives & Smith, for appellant.

      Hale & Fogleman, for appellee.
   Paul Ward, Associate Justice.

This appeal comes as an aftermath of a recent decision by this court, involving these same parties, rendered March 11, 1957; Weeks, et. al. v. McClanahan, 227 Ark. 495, 300 S. W. 2d 6. To understand the issue on this appeal it is necessary to set out briefly pertinent portions of the former decision. The parties involved were: Anderson, landowner; McClanahan, lessee, and; Weeks, a subtenant under McClanahan. The trial court in the first case rendered a decision in favor of McClanahan against Anderson (and also Alton Weeks) for double the rental value of 412 acres of land (at $18 per acre) on the theory that Anderson (the owner of the land) conspired with Weeks (who had subrented from lessee McClanahan for the year 1951) to keep McClanahan from getting possession of the 412 acres for the year 1952, in violation of Ark. Stats. § 50-509. This court, on appeal, held that the trial court erred in assessing double damages against Anderson instead of single damages, and remanded the cause to the trial court with instructions to correct that error.

Upon remand the trial court followed this court’s instructions and rendered judgment against Anderson for single damages in favor of McClanahan.

Anderson, appellant here, argues that the trial court should have reduced the judgment against him by the amount of rent which McClanahan was obligated to pay Anderson for the land. It is not disputed that McClanahan Avas to pay Anderson $11 per acre for the 412 acres of land for the year 1952.

On this appeal Anderson says: “The sole question is: Did the Circuit Court err in fixing the damages of appellee as to Anderson ... at one year’s rent based on a value of $18 per acre, instead of rendering judgment only for the difference betAveen the rent reserved and the rental value?” It is of course the contention of appellant that the trial court did so err, and it is the contention of appellee that the question raised by appellant was settled by the first decision rendered by this court. We find ourselves in agreement with appellee’s position for the reasons set out below.

On March 14, 1957, (6 days after the delivery of our first opinion), Anderson filed a Motion in this court to clarify the opinion and judgment. In that Motion Anderson raised precisely the same question which he raises here. He there stated: “That the term ‘single damages’ should be defined as meaning those damages determined by application of the usual and ordinary rule of measurement, that is, the difference between the rent reserved and the rental value of the premises.” A response was filed by McClanahan resisting Anderson’s motion to so clarify in which it was suggested that the “ordinary rule” relied on by Anderson did not apply when damages are assessed under Ark. Stats. § 50-509, and also that under our original opinion Anderson had already been given credit for the rental value of his land. The motion filed by Anderson was denied by this court.

We do not, at this time, attempt to revaluate the validity of the conflicting contentions presented by both parties presented on the said motion, but we do hold that our former opinion, together with our denial of the motion, constitutes the law of the case, and therefore settles the issue here against the contention of appellant.

Affirmed.


author: Sam Robinson, Associate Justice. Carleton Harris,

text:
    Hobbs Western Tie Company v. Orahood.
    5-1567
    315 S. W. 2d 930
    Opinion delivered June 16, 1958.
    [Rehearing denied September 29, 1958.]

      Gentry & Gentry and Herrn Norfhcutt, for appellant.

      Green $ Green, West Plains, Mo., and Oscar E. Ellis, for appellee.
   Sam Robinson, Associate Justice.

This is a personal injury case. Plaintiff, Othel Orahood, appellee, obtained a judgment in the sum of $4,500 as damages for personal injuries sustained when she was struck by a crosstie which fell on her from a truck that was being unloaded. Appellants contend there was no substantial evidence to sustain the verdict, and that an admission said to have been made by one of the defendants to the plaintiff was inadmissible in evidence.

The defendant Hobbs Western Tie Company is in the railroad crosstie business and has places of business in several localities, one of which is at Mammoth Spring. The Mammoth Spring operation was in charge of Lester Quarles, an employee of Hobbs Western. About 4:00 p. m. on June 16, 1956, Herschel Abney brought a truck load of ties to Hobbs Western’s place at Mammoth Spring for the purpose of selling them. Mr. Quarles agreed to buy the ties, and instructed Abney where to place his truck for the purpose of unloading them. The spot where Quarles instructed Abney to place his truck for unloading purposes was partly on the public road and partly on the private property of Hobbs Western. Appellee, Mrs. Orahood, worked for a chicken processing plant and was on her way home, walking on the side of the public road opposite the side where the truck was parked. Just as she was passing the truck, one of the crossties from the truck struck her about the legs, causing serious injury. Appellants contend that the agent of Hobbs Western, Quarles, who was present, had no control over unloading the truck — that he was merely inspecting the ties; but it is admitted that Quarles, as agent for Hobbs Western, instructed Abney to place the truck partly on the public road to unload it.

Negligence is the doing of that which an ordinarily prudent person would not do under the circumstances, or the failure to do that which an ordinarily prudent person would do under the circumstances. It was a question for the jury to determine whether it was negligence for Quarles to have the truck placed partly on the public road to be unloaded. It is a matter of common knowledge that railroad crossties are very heavy timbers. Whether Quarles should have anticipated that the very thing that did happen might happen was a question for the jury.

There is no showing as to what caused the tie to be propelled from the truck and strike Mrs. Orahood, except the testimony of Jim Romine, who was assisting in unloading the tics, and he testified:

“Q. After the truck was stopped where Mr. Quarles directed you, who actually unloaded the ties?

A. I did.

Q. Did you push the ties off the truck on to the ground?

A. Yes.”

To sustain their position, appellants cite Leonard v. Standard Lbr. Co., 196 Ark. 800, 120 S. W. 2d 5. There it was held that the owner of a mill was not liable for injuries received by a person when struck by lumber from a truck when the lumber was being unloaded on the mill property and the mill owner had no control over the person unloading the lumber. There is quite a distinction between that case and the case at bar. In the Leonard case the lumber was being unloaded on the private property of the mill owner. There was no question of the public road being used as a place to unload the lumber. Appellants also cite Willoughby v. Hot Springs Ice Co., 180 Ark. 231, 21 S. W. 2d 168. This case is hardly in point. One customer of an ice company negligently and carelessly ran into and killed another customer of the ice company on the ice company’s property. A public street or road was not involved. This Court quoted with approval from the case of Manning v. Sherman, 110 Me. 332, 86 A. 245, 46 L.R.A.N.S. 126, as follows: “. . . The fact that the negligent act which caused the injury was done on a person’s land or property will not render him liable, where he had no control over the persons committing such act, and the act was not committed on his account . . .”

In the case at bar appellants were responsible for the heavy crossties being unloaded from the truck while it was parked partly on the public road. The agent for the appellant Hobbs Western instructed the driver of the truck to stop the truck at that place to unload it, and he knew pedestrians customarily walked along that road. It was a question for the jury to say whether this action of the agent, Quarles, constituted negligence. In the case of Blakely & Son v. Jones, 186 Ark. 1169, 57 S. W. 2d 1032, we said: “In determining what is or is not negligence in any given case, the test is always what in the light of all the circumstances and in situations similar to that of the person under inquiry, one of ordinary prudence would or would not do, and where men of ordinary intelligence might differ in their honest judgment, the question of negligence is one for the jury.” And in 65 C. J. S. 592, it is said: “A person responsible for a place, agency, instrumentality, or operation which is dangerous and likely to cause injury or damage to persons or property rightfully in its proximity is charged with the duty of taking due and suitable precautions to avoid injury or damage to such persons or property. ... A person responsible for a dangerous place or instrumentality must guard, cover, or protect it for the safety of persons or animals rightfully at or near it, and his failure to do so is negligence. . . .”

When human life is at stake, the rule of due care and diligence requires that, without regard to difficulties or expense, every precaution must be taken reasonably to assure the safety of any persons lawfully coming into immediate proximity of a dangerous agency or device. Been v. Lummus Co., 173 P. 2d 34, 76 Cal. App. 2d 288.

Mrs. Orahood testified that subsequent to the time she received the injuries Mr. Quarles, one of the defendants in the case, told her “We are to blame and I hope you get a reasonable settlement.” This testimony was given over the general objection of the defendants, bnt the court was not asked to instruct the jury that the statement should be considered only as against Quarles, who had made the statement. This was an admission on the part of Quarles and was clearly admissible against him. No doubt if the request had been made the trial court would have told the jury not to consider the statement as against Hobbs Western. “The admissions of a party made directly by him, . . . relative to the subject matter of a suit are received as original evidence against such party, where inconsistent with the claim which he asserts in the action, whether he is the plaintiff or the defendant.” 20 Am. Jur. 460.

Affirmed.

Harris, C. J., and George Rose Smith, J., dissent.

Carleton Harris,

Chief Justice, dissenting. In my opinion, the Court should have directed a verdict for the defendant, Hobbs Western Tie Company. Bouvier’s Law Dictionary defines negligence as:

‘ ‘ The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing something which a prudent and reasonable man would not do.
Such an omission by a reasonable person, to use that degree of care, diligence, and skill which it was his legal duty to use for the protection of another person from injury as, in a natural and continuous sequence, causes unintended injury to the latter.
# # #
Negligence, in its civil relation, is such an inadvertent imperfection, by a responsible human agent, in the discharge of a legal duty, as immediately produces, in an ordinary and natural sequence, a damage to another.”

I am unable to see that the injury which occurred to Mrs. Orahood was one that Lester Quarles, foreman for Hobbs Western, conld reasonably foresee to be a result of Ms directing the truck to be parked in a manner in wMeb it partly protruded into the road. Let it be borne in mind that the parking of the truck is not what occasioned the injury. The injury was caused by a tie falling from the vehicle, and the placing of the truck in that location was not the proximate cause of the accident; it might be otherwise if a vehicle, traveling the road, had struck the truck, which protruded into the highway. In other words, at the time of directing the location for the parking of the truck, Quarles reasonably could not foresee that those in charge of the truck would permit a tie to fall off at the same time a pedestrian walked by — and that such pedestrian would be walking close enough to the truck to be struck. The record shows that this manner of unloading had been used for a long period of time, apparently without mishap to anyone.

I cannot agree that Quarles was guilty of negligence. As stated in American Jurisprudence, Vol. 25, Sec. 307:

“One of the uses, and the temporary obstruction incident thereto, to which streets, roads, and sidewalks are lawfully subject as of necessity is the loading or unloading of goods in the course of the transportation or delivery thereof to or from the abutting premises, including, as incidental thereto, the right to deposit such goods temporarily in the street or road, or on the sidewalk.”

In the next place, I consider this case to be controlled by our decision in Leonard v. Standard Lumber Company, 196 Ark. 800, 120 S. W. 2d 5. In that case, Leonard drove his truck onto the premises of Standard Lumber Company, and stopped at a point designated by Standard’s agent, in order to unload the lumber. Another truck, driven by one Johnson, with a load of lum-her, entered the driveway, and parked opposite from the first truck, also for the purpose of unloading. When Leonard finished unloading, he went to the rear and pulled the standard from the cup, to place it in a box, used for that purpose, to prevent losing it when moving while empty. While removing the standard, with his back to the second truck, the lumber fell from the latter, struck appellant, and severely injured him. The lower court gave an instructed verdict, for the Standard Lumber Company, and Leonard appealed, contending that a jury question was made by the testimony. This Court said:

“* * # The undisputed proof shows that appellee’s agent did not exercise any control over the manner of the unloading of the trucks by the truck drivers, but only directed that the lumber be stacked orderly on the platform after it was taken from the truck, and where it should be stacked. There is no evidence that appellee’s agent knew anything about the condition of Johnson’s truck and the placing of Johnson’s truck in close proximity to that of appellant was as observable to appellant as it was to appellee’s agent. Even if appellee’s agent had known of the defective condition of Johnson’s truck, it could not change the situation for neither Johnson nor appellant were employees of appellee, and no relationship existed that would authorize the application of the doctrine of respondeat superior.
# *
‘When the injury is the result solely of the negligent act of a third person, who does not stand in such a relation to the defendant as to render the doctrine of respondeat superior applicable, no liability attaches to defendant.’ * * *”

Here, Quarles had nothing to do with the unloading, but only graded the ties after they were removed by the truck driver and his assistant from the vehicle. I find no Arkansas case which holds this to be sufficient control to constitute liability. Let us say that a home owner purchases a load of dirt for the purpose of filling in his yard. The truck arrives, and the home owner points out the spot in the yard, near the street, where he desires the dirt to be placed, and tells the driver to park his truck at the edge of the yard, (still in the street) from which point the dirt can be unloaded in the desired location. This is done, and a pedestrian, using the street, walks by. The truck driver, in negligently unloading the dirt, permits part to fall on the pedestrian and injure him. According to my interpretation of the holding of the majority, this act of directing the driver to stop at the place most convenient for unloading the dirt, would render the home owner liable. I would conclude that hereafter, people who desire to fill in their yards, had best permit the heavy, loaded truck to be driven onto the premises. (This probably would require another load of dirt to fill in where the truck had been parked.) For that matter, if the home owner directs the truck driver to park in his yard, and an injury occurs, he may well be liable under the opinion of the majority, for under the principle enumerated therein, in telling the driver where to park, the truck is placed under his control.

Appellant, Hobbs Western, moved for an instructed verdict, and under the above reasoning, I feel it was entitled to same. Certainly it was not bound by the statement made by Mr. Quarles, mentioned in the majority opinion. This statement was made one year after the accident occurred, and after Quarles had ceased working for Hobbs Western. In addition, it was only an opinion, stating no facts upon which it was based, and I consider it inadmissible, as to the company.

For the reasons herein enumerated, I respectfully dissent.

Justice George Rose Smith joins in this dissent.

       Emphasis supplied.