author: Sam Robinson, Associate Justice. George Rose Smith, J.,

text:
    Wilson v. Morse Mill Company.
    5-696
    282 S. W. 2d 803
    Opinion delivered October 17, 1955.

      Rex W. Perkins and E. J. Ball, for appellant.

      Price Dickson and W. B. Putman, for appellee.
   Sam Robinson, Associate Justice.

The principal issues here are whether one D. F. Keepers was an agent of appellant, G. W. Wilson, or an independent contractor, and whether a credit once applied to an open account can be changed to the detriment of a third party when such party is not consulted.

Appellant, Dr. G. W. Wilson, is a member of the School Board of the Greenland School District. At his own expense he had three buildings constructed for the school. The first structure was built in 1949 at a cost of $9,815.83; the second in 1950 at a cost of $7,596.93; and the third building was completed in 1952 at the cost of $45,170.41. Dr. Wilson employed D. F. Keepers to construct these buildings. After the last building was completed, there was owed to appellee, Morse Mill Company, $2,591.54 for material furnished on the job. Morse filed this suit for that amount against Dr. Wilson. Wilson contends that he is not liable because Keepers was an independent contractor, and further that, in any event, Morse cannot recover more than $1,197.28 because the account had been credited with $1,394.26 paid by Keepers which was later canceled without the consent of Wilson. It is the contention of Morse that Keepers was Wilson’s agent and that Wilson is liable for the entire amount. The cause was submitted to the court sitting as a jury and there was judgment for Morse Mill Company in the sum of $2,591.54. Dr. Wilson has appealed.

Whether Keepers was an independent contractor or an agent of Dr. Wilson’s is a question of fact. A finding of fact by the trial court has the same force and effect as a jury verdict. Gray v. Ford, Bacon & Davis, Inc., 210 Ark. 995, 198 S. W. 2d 508; Harvell v. Matthews, 189 Ark. 356, 72 S. W. 2d 214. The trial court’s finding of fact when a jury is waived is considered conclusive and will not be reviewed if supported by any substantial evidence. Wallis v. Stubblefield, 216 Ark. 119, 225 S. W. 2d 322. This court gives evidence adduced on behalf of the prevailing party the strongest probative force it will reasonably bear. Wall v. Robling, 207 Ark. 987, 183 S. W. 2d 605. Here, there is substantial evidence to support the finding that Keepers was Wilson’s agent. At the time of the trial of this cause Keepers had died, but by agreement of counsel the testimony he had given in a cause in the federal court, in which the government was seeking to recover social security taxes from Dr. Wilson, was admitted as evidence. According to this testimony, Keepers was acting in the capacity of Wilson’s agent and not as an independent contractor. He testified that there was no contract between him and Wilson:

‘ ‘ Q. And you had no contract with him to build the building? A. No contract whatever. Q. How-were you to be paid? A. Just as he paid me. Q. Did you draw a salary there, too? A. That’s what I worked on all the way through — a salary. Q. By the hour? A. By the hour. Q. How much an hour ? A. A dollar and a quarter an hour. ’ ’

This is substantial testimony to the effect that Keepers was not an independent contractor and, even though we should find that the judgment is contrary to a preponderarme of the evidence, we must affirm where there is substantial evidence to support the judgment.

Subsequent to the completion of the third building in 1952, Morse Mill Company rendered a statement to Dr. Wilson in the sum of $1,197.28, but later claimed that Wilson owed them $2,591.54. The change came about in this manner: Morse Mill Company was indebted to Keepers in the sum of $2,379.00. They paid this account by giving Keepers credit for that amount on the school job, but later they were directed by Keepers to credit $1,394.26 to another account Keepers owed to Morse. Morse then withdrew the credit from the school job and applied it to the other account. The question is, in these circumstances, could Morse legally void the credit given on the school job without the consent of Wilson.

In National Surety Company v. Southern Lumber & Supply Company, 181 Ark. 105, 24 S. W. 2d 964, the court said: “The exercise of the right of appropriation of payments belongs exclusively to the debtor and creditor, and no third person can control or be heard for the purpose of compelling a different appropriation from that agreed upon by them. But an appropriation by either party cannot afterward be changed so as to injuriously affect the rights of third persons.” The account was carried on the books of the Morse Mill Company in the name of Keepers, but it is their contention that Wilson is primarily liable. There is evidence in this case to the effect that Keepers had not applied to the school building account all of the money furnished to him by Dr. Wilson for that purpose, and it is not beyond the range of possibility that Wilson could have compelled the application to the school account of all the money owed to Keepers by the Morse Company.

In Smart, Administratrix, v. Owen, 208 Ark. 662, 187 S. W. 2d 312, this court quoted with approval from 41 C. J. S. 792 as follows: “The parties may agree as to the application of a payment, and may, by agreement withdraw a payment once credited on the mortgage and apply it otherwise, provided no third person is prejnoticed thereby. ’ ’ In this case, Dr. Wilson was certainly prejudiced when the credit of $1,394.26 on the school account was withdrawn, and this credit should be restored. Since the cause appears to have been fully developed, the judgment is reduced to $1,197.28 and, as modified, is affirmed.

Justices Millwee and George Rose Smith dissent.

George Rose Smith, J.,

dissenting. It seems to me that the majority’s action in reducing Morse’s judgment, by the amount of $1,394.26, is contrary to settled principles of law. A somewhat more detailed statement of the facts will make my position clear.

In 1952 Keepers did certain construction work for Morse, under an agreement by which Keepers was to furnish the labor and Morse was to furnish the material. Upon the completion of that project Morse owed Keepers $2,379 for the labor he had supplied. Needless to say, that money was owed to Keepers personally and was of no concern whatever to Dr. Wilson.

Instead of paying Keepers in cash Morse undertook to apply the $2,379 as a credit upon its books. At that time Keepers owed Morse about $1,400 upon a personal account of his own, and in addition there was a large unpaid balance for the construction of the third school building, the latter being referred to as the Greenland Gym job. In applying the credit of $2,379 Morse credited the entire amount to the Greenland Gym job. The trial court was warranted in believing from the evidence that Keepers knew nothing of this bookkeeping entry when it was made.

Upon the basis of'this credit Morse sent Dr. Wilson a statement in the sum of $1,197.28. Wilson discussed the matter with Keepers; the trial court, as the trier of the facts, was at liberty to infer that Keepers then learned for the first time that the money due to him personally had been credited to the Greenland Gym job. Keepers got in touch with Morse and directed that part of the $2,379 be used to extinguish his personal indebtedness to Morse. Keepers undoubtedly was entitled to take this action, as it is familiar law that tbe debtor has tbe primary right to direct the application of payments. Harrison v. First Nat. Bk. of Huntsville, 117 Ark. 260, 174 S. W. 553. Conversely, Morse had no choice in the matter except to obey Keepers’ instructions in the matter. All that happened was that Dr. Wilson, who is now found to have actually owed the Greenland Gym account, was temporarily given credit for money that belonged to some one else. This mere bookkeeping entry was promptly corrected, and it is not contended that Dr. Wilson in any way relied upon the error to his detriment.

For their conclusion the majority cite only the National Surety Company case and the Smart case. Neither case is relevant to this one except for the general statement that an appropriation of a payment, when made, cannot be changed to the prejudice of a third person. This rule has not the slightest application to the ease at bar. To begin with, there was no appropriation until Keepers acted, as the right of appropriation belonged to him. In the second place, Dr. Wilson has not been prejudiced in any proper sense of the term. He was temporarily credited with money that belonged to Keepers alone — money to which Dr. Wilson had no present claim. Before Dr. Wilson changed his position in any respect the erroneous credit was properly withdrawn at Keepers’ direction. If prejudice results from the deletion of a credit to which the debtor was never entitled, it obviously follows that in no instance can a mistake in a creditor’s statement of account ever be corrected. Of course that is not the law, notwithstanding the majority opinion in this case.


source: Caselaw Access Project

author: Lee Seamster, Chief Justice.

license: Public Domain

text:
    Bradshaw v. Pennington, Administrator.
    5-732
    283 S. W. 2d 351
    Opinion delivered October 24, 1955.
    [Rehearing denied November 28, 1955.]

      Marcus Evrard and Collins, Core & Collinsf for appellant.

      Shaw & Spencer and Shaver, Tackett & Jones, for appellee.
   Lee Seamster, Chief Justice.

Dr. L. B. Gunnels died a resident of Mena, Polk County, Arkansas, at the age of 88 years, on the 7th day of March, 1954. He was unmarried and without descendants. Dr. Gunnels was survived by one brother, J. B. Gunnels; two sisters, Lucy Jane Half acre and Bettie Pennington; one niece, Gertrude Gunnels Bradshaw, daughter of a deceased brother; and two grandnephews, James and Bobert Anderson, brothers, who are grandsons of a deceased sister, all constituting the heirs at law of Dr. L. B. Gunnels.

On March 12, 1954, the petition to probate six sheets of holographic writings as the last will and testament of the deceased was filed in the Probate Court of Polk County, Arkansas. Five of these sheets were in identical form, with the exceptions that each contained a different beneficiary and a different list of enumerated property. Each of the five sheets contained in form the following:

“4/2/37 Mena Ark.

this is my last will.

I give, bequeath and devise to (here appears in each the beneficiary name. In one it is “my brother J. B. Gunnels”; in another, “my Niece, Gertrude Gunnels, Calvin’s Daughter”; in another, “Esther Buth”; in another, “my sister Jane Halfacre”; in another, “my sister Bettie Pennington”) “in complete and perfect ownership all my right and property of every claim and Nature whether real Personal or mixed wherever situated as written below.” (Then in each of these five sheets of holographic writings there follows a list of real and personal property, each list setting forth specific property and not duplicating any items set out in the other lists.)

/s/ L. B. Gunnels”

The sixth sheet of holographic writing contains the following:

“4/2/37 Mena Ark.

this is my last will.

I Give, bequeath and devise to my Nephews and Neices, that I havent given any property to all the Best of my property (Then follows a list of real and personal items, still not duplicating any items set out in the other five sheets.)

Best money after any Funeral expenses is Paid

/s/ L. B. Gunnels”

Each of the six sheets of holographic writings was complete in itself; that is, no portion of one sheet was carried over to the next sheet and each was separately-headed, dated and signed by L. B. Gunnels. The six sheets were found together in an envelope marked “Last Will of L. B. Gunnels, In case of death to be opened and read by Fred C. Embry.”

These six sheets of holographic writings constituted the entire proffered will of Dr. L. B. Gunnels. They were offered for probate by Olen Pennington, nephew of the deceased, and certain other relatives and heirs of the deceased. On March 13, 1954, the will was probated in common form without notice and Olen Pennington was appointed administrator with the will annexed.

Following entry of the order appointing him administrator, Olen Pennington commenced with the administration of the estate and filed an inventory and appraisal. On April 1, 1954, he filed a petition requesting cei'tain constructions by the Probate Court of some of the provisions contained in the six sheets of the will. Notice of the filing of this petition was given, and as a result of this notice, Gertrude Bradshaw contested the probation of these six sheets as Dr. Gunnel’s will. She was later joined by the other appellants herein.

The cause was tried by the Polk Probate Court on September 1st and 2nd, 1954. This litigation involved two phases, (1) the contest of the will by the appellants, and (2) determination as to the construction of certain provisions of the will in the event it should be admitted to probate. The Probate Court rendered a”decision, contained in an opinion composed of two parts, the second of which was rendered on November 8, 1954. By virtue of that opinion, the court found that the six sheets of holographic writings, when viewed together, constituted one complete will and ordered such writings admitted to probate as the valid holographic will of Dr. L. B. Gunnels. It was the opinion of the trial court that the first five sheets naming individual legatees, be limited to the specific property listed on each sheet, and the wording on the last page, when read together with the other five pages, shows an intent by the testator to give what is left of the estate to the nephews and nieces not remembered elsewhere in the will, therefore, it wonld constitute a residuary legacy and would pass all property not listed in the first five sheets of the will.

Appellants prosecute this appeal from the judgment of the Probate Court. They contend that the trial court’s decision should be reversed for the following reasons: (1) the trial court failed to consider appellant’s most serious objections to the probate of these six sheets; (2) each one of the five sheets naming specifically an individual legatee is a complete will in itself, each one effective to pass the entire estate to its respective legatee; resulting in each one of the five being in irreconcilable conflict with each one of the other four, so that they mutually destroy one another and none can be admitted to probate; (3) the sheet naming “nephews and nieces I havent given any property to” is too indefinite, both as to who is to take and what property is intended to pass thereunder, to qualify for probate; (4) the findings by the Probate Judge, that these six sheets before the Court constitute all the writings left by the testator as his last will, are against the preponderance of the evidence; (5) in the interest of future testators and the probate law generally, this collection of holographic sheets should be denied probate as a will; and, (6) the testator intended to limit each sheet to the specific property listed, and the findings of the Probate Judge to the contrary are against the preponderance of the evidence.

The appellants contend that each of the sheets is a complete will in itself, each effective to pass the entire estate to its respective legatee; resulting in each one of the sheets being in irreconcilable conflict with the others, so that they mutually destroy one another and none can be admitted to probate. The law is well settled as to a testator’s right to make a number of testamentary documents, each dealing with a separate portion of his property. In 57 Am. Jur., page 190, § 228, we find the following :

“SEPARATE INSTRUMENTS — It is elementary that a will may Be comprised of two or more separate documents. A man can have only one will, but that will may consist of several different testamentary papers of different dates. It is the aggregate or the net result of several testamentary writings left by a decedent that constitutes his will, or, in other words the expression of his testamentary wishes. Such is the case not only where one instrument is a codicil to the other, or is incorporated in the other by reference, but also where the instruments are executed and attested as wills independently of one another with the formalities prescribed by statute, provided the one does not revoke the other, expressly or by reason of inconsistency between the instruments, in respect of their provisions. ¡It is undisputed that a testator may, at his volition, make a number of testamentary documents each dealing with a separate portion of his property. A testator may with propriety execute one testamentary instrument disposing of his property at his domicil and another disposing of property located elsewhere. ’ ’

Two or more wills may be probated and effectuated in the same way that a will and one or more codicils are construed together. The task confronting a court in construing a will is, of course, to ascertain the intent of the testator, and, in doing that, isolated words or sentences should not be considered by themselves, but the language of the whole document or documents, which taken together constitute the will, should be considered, and all parts of same, if possible, given effect. This must be done from the language used as it appears from the consideration of the entire instrument, and when such intention is ascertained it must prevail, if not contrary to some rule of law, the court placing itself as near as may be in the position of the testator when making the will. See Clemenson v. Rebsamen, 205 Ark. 123, 168 S. W. 2d 195; Jackson v. Robinson, 195 Ark. 431, 112 S. W. 2d 417.

When all of the competent and creditable testimony in the record is carefully considered «together, a preponderance of the evidence sustains the six sheets of writing as the whole, valid and last unrevoked will of Dr. Gunnels. Counsel for appellants argue that there “may” have been other sheets, but there is no evidence of any other, and there is evidence that these six sheets compose the whole will. All six sheets are dated the same day; each follows a “will form” which Dr. Gunnels possessed; each page or sheet was signed by Dr. Gunnels; and, all six sheets were found pinned together. When all of the sheets are read together, they show an intent of the testator to leave separate portions of his estate to specific legatees. Therefore, after giving careful consideration to the first five points raised by the appellant for reversal, it is our opinion that the trial court’s decision should be affirmed, as to that portion of the judgment that admitted the six holographic sheets to probate as the last will of Dr. Gunnels.

The sixth point raised by the appellants, “That the testator intended to limit each sheet to the specific property listed,” calls for a more meticulous examination of the will from its four corners and a view of all of its terms.

The courts have, in a long list of cases, given recognition to certain general rules to be observed in the construing of a will. Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014, is one of the leading cases which announced the general rule, that a will should be, if possible, construed so as to avoid intestacy. This case stated: “A testator is presumed to intend to dispose of his entire estate, and it is to be borne in mind in the construction of wills that they are to be so interpreted as to avoid partial intestacy, unless the language compels a different construction.” In this case, considerable weight was given to the introductory portion of the will, in which the testator said, among other things: “As to my worldly estate and all property, real, personal or mixed, of which I shall die seized and possessed or to which I shall be entitled at the time of my decease, I devise . . . ”

The G-alloway case was cited in Barlow v. Cain, 146 Ark. 160, 225 S. W. 228. The Barlow case reveals that Joseph Cain made a will, in which the following language appeared: “And then after paying all my lawful debts, I give and bequeath and dispose of the residue of my estate real and personal, as follows towit:” Here he gives specific real estate to his widow, son and daughter, as well as one dollar to each of the heirs of his two deceased daughters. In the 3rd clause of his will, he said: “Also, it is my will that my son, T. F. Cain, take full control of all my notes and accounts that may be due or become due after my decease, and that he, my son, T. F. Cain, is to settle all of my affairs and pay all of my indebtedness against my estate. ’ ’ In construing this will, the court said: “The language of the paragraph being insufficient to bequeath the personal estate, the testator died intestate as to the residue of the personal property, after the payment of all debts and small bequests provided in the will . . . ”

In the case of Smith v. Smith, 219 Ark. 304, 241 S. W. 2d 113, the following paragraph appeared in Dollie Smith’s will: “I give my home in Blytheville . . . to my daughter, Lorene (Smith) Smith to be used by her as a home as long as she wishes, and in case she should not use it as such and wish to sell it, then the proceeds to be divided between my son, Floyd Smith, and my daughter, Lorene (Smith) Smith in equal shares.” In construing the above paragraph, the court said: “The appellee relies also upon the presumption against partial iutestacy to support her contention that she owns the fee. But this is merely a presumption, and it certainly does not operate to convert a life estate into a fee in every case in which the life estate might have been more accurately described. Here the presumption is materially weakened by the existence of other instances of partial intestacy in the same will. In devising her other two parcels of land Dollie Smith made no provision for their devolution in the event that both her children died without issue, and hence the testatrix died partly intestate as to these tracts. In this situation we are more readily inclined to accept the existence of partial intestacy as to the land now in controversy. ’ ’

In Williams v. Norton, 126 Ark. 503, 191 S. W. 34, we have a case where A. B. Williams died testate. He owned some 4,200 acres of land and certain personal property. He was survived by his widow, four sons and two daughters. Mr. Williams left a homestead and certain lands to the widow for life and disposed of his personal property. He appointed two of his sons executors and empowered them to collect his accounts and settle his debts, to rent or sell the rest of his real estate as in their opinion seemed best. The proceeds from the sale of real estate were to be paid % to the widow and % to his daughter, Kate Old, for the use of herself and children so long as she remained a widow.

The following paragraph appeared in his will: “If I have made any omissions in the directions about my bequests herein, my said executors are fully empowered to supply them. My son, E. B. Williams and I own some land jointly as tenants in common, which I wish disposed of as I have directed about my lands held in my own right. Any residuum not provided for herein I wish to bo given to my daughter, Kate Old. ’ ’ In construing the will, the court stated, in part: “In the absence of any language in the will which either expressly or by necessary implication carries the idea that he intended to devise the fee simple title to anyone, the presumption against partial intestacy so far as the lands are concerned cannot be indulged.

“In the old English case of Denn v. Gaskin, 2 Cowp. 657 (1777), Lord Mansfield declared, that ‘though the intention is ever so apparent, the heir at law must of course inherit unless the estate is given to somebody else.’ . . .

“ Schauber v. Jackson, 2 Wend., N. Y., 13, is one of the leading cases in this country. . . . The court for the correction of errors there held, ‘if there is not sufficient in a will to take the case out of the rule that all of the estate which is not legally and sufficiently devised to some other person must go to the heir, the heir will take whatever may have been the intention of the testator. ’

“Following this decision, the Supreme Courts of Virginia and Georgia, also in cases where there is an exhaustive review of the authorities, held that ‘an heir can be disinherited only by express devise or necessary implication, so strong that a contrary intention cannot be supposed; that the heir cannot be disinherited unless the estate is given to somebody else.’ Boiseau v. Aldridges, 5 Leigh’s Rep. 222, 27 Am. Dec. 590; Wright v. Hicks, 12 Ga. 155, 56 Am. Dec. 451.

“In the last above case it was held (quoting syllabus) : ‘Intent to disinherit heir is essential to raise an estate by implication, the presumption being, in the absence of plain words in the will to the contrary, that the testator intended that his property should go in the legal channel of descent.’ See, also, Doe ex dem. Clendenning v. Lanius, 3 Ind. 441, 56 Am. Dec. 518.

“Applying the doctrine of the above cases to the will under review, there is certainly no language in it that either expressly or by necessary implication overcomes the presumption that A. B. Williams intended that his real estate, subject to the uses to which he had subjected it under the provisions of his will, should go in the legal channel of descent. To hold otherwise would be to make a will for the testator, and one too that would create an unjust discrimination in favor of the heirs of Mrs. E. C. Old as against the other heirs of the children of A. B. Williams.”

In order to discover the dominant testamentary scheme or overall intention of the testator, we must examine the manner in which Dr. Gunnels prepared his will, together with the provisions as contained in the six sheets of the will. The apparent meaning of particular words, phrases or provisions should be harmonized, if possible, to such scheme, plan or dominant purpose that appears to be the intention of the testator.

The instant case reveals that Dr. Gunnels had evolved a plan whereby certain specific properties were to be left to specified legatees. The testator, in all probability, had before him a list of the properties to be disposed of, at the time he made his will, or at least he had said properties well in mind. He refers to the property which he bequeathed and devised as “my property.’;’ We denote that no reference is made to his estate; to property that he might own at his death (except money); to property he might die seized and possessed; or, any of the usual terms that would indicate that he meant tq dispose of after-acquired property in the will.

Bach of the first five sheets contain the language “I give, bequeath and devise (to a named beneficiary) in complete and perfect ownership all my right and prop: erty of every claim and nature whether real Personal or mixed wherever situated as written below, ” then he describes certain specific properties. In the sixth sheet, he devised to his nephews and nieces ‘ ‘ all the rest of my property,” then without punctuation or further stating as written below, he described six separate tracts of real estate, $2,000 in government bonds, bank stock, a mule, two cattles and “rest money after funeral expenses :is paid.” The language used by the testator in disposing of his money in this manner indicates that he .knew the proper language to use in disposing of after-acquired property. The failure to use such language indicates that he intended to devise only the property he specifically set out in his will.

In view of the unusual manner in which Dr. Gunnels prepared his will and after examining the provisions of the will, we are unable to say that he intended to leave the nephews and nieces his after-acquired property, since he limited them to specific property in his will. The testator disposed of “all my right and property” in the first five sheets of his will; the sixth sheet disposes of “all the rest of my property.” In each sheet of the will he specifically sets out with particularity, each item of property that he wishes each beneficiary to have at the time of his death. We find that the testator died intestate as to all of the property that he owned at the time of his death, with the exception of that property which was specifically described in his will.

In regard to partial intestacy, the Arle. Stats., Section 60-411, provides as follows :

“PARTIAL INTESTACY — If part but not all of the estate of a decedent is validly disposed of by will, the part not disposed of by will shall be distributed as provided by law with respect to the estate of intestates. ’ ’ See also Wyatt v. Henry, 121 Ark. 479, 181 S. W. 297.

That portion of the judgment of the Probate Court, construing the will to give the nephews and nieces all the balance of the property belonging to the estate, is reversed and remanded, with instructions to proceed with the administration of the estate according to law and not inconsistent with this opinion.


author: J. Seaborn Holt, Associate Justice.

text:
    Wells v. Hill.
    5-687
    283 S. W. 2d 116
    Opinion delivered October 24, 1955.

      Thorp Thomas, James L. Sloan and Roy Finch, Jr., for appellant.

      Spitzberg, Mitchell & Hays, for appellee.
   J. Seaborn Holt, Associate Justice.

March 2, 1953 Appellant Wells (Seller) and Appellee Hill (Purchaser) entered into the following “Sales Agreement and Note”: “L. L. Wells does hereby sell and convey to James R. Hill the Dairy Bar store interest he now holds, and known as Jim’s Dairy Bar, located at 3601 Conway Pike, North Little ■ Rock, Arkansas, including all equipment, prepaid insurance, meter deposits and does hereby sublease said property as follows: Total price $5,647.00 to be paid as follows: Down payment of $1,400.00 is hereby acknowledged. Purchaser is to assume 14 monthly payments of $171.71 per month and will make these payments to L. L. Wells on the first day of each month commencing April 1, 1953 and terminating when paid in full foí a total of payments amounting to $2,403.94 which leaves a balance of $1,843.06 plus $110.04 interest for a total amount of $1,953.10 owed to L. L. Wells to be paid as follows: $108.50 per month commencing April 1, 1953 and each month to and including November 1, 1953 and said $108.50 payments to commence again March 1, 1954 to and "including November 1, 1954, making a total of eighteen (18) months at $108.50 and a grand total of $1,953.00.

“Rental on said building will be paid direct to M. B. Witkowski, (the owner) as follows, $100.00 per month commencing March 1, 1953 to and including November 1, 1953 and same each and every year so long as lease on said building is in effect or until March 1, 1963 if purchaser so desires.”

Operations under this instrument began March 1953 and continued until November 1953. Hill made the initial payment of $1,400.00 and in addition, seven (7) of the $171.71 installments. None of the $108.50 installments were paid. In December 1953 Hill ceased operations and Wells took charge of the business and shortly thereafter, in March 1954, Wells entered into a contract with Andrew Nahlen to sell to Nahlen the business for $5,500.00, payable $2,000.00 down and the balance at the rate of 50^ on each gallon of ice cream mix sold by Nahlen, with a monthly accounting to Wells of the sales. Bent of $100.00 per month on the building, to Witkowski (owner), was to be paid direct to Wells. Subsequent to this sales contract of Wells to Nahlen, Hill brought the present suit against Wells for his equity in the business and for an accounting. Hill alleged that he had paid Wells a total of $2,953.43 under the terms of his agreement above with Wells, and further, “During the month of. March, 1954, the defendant (Wells) arranged for a sale of the business referred to in the attached contract for a consideration represented by him to be $5,500.00. This sale was made under an agreement with the plaintiff (Hill) whereby the business would be sold and the plaintiff and the defendant would share in the proceeds of.the sale in proportion to the amount that each had invested in the business. The defendant had paid the plaintiff the sum of $300.00 as a part payment of the latter’s share in the proceeds from the sale of this business. The defendant has promised to account to the plaintiff for the latter’s share of the proceeds from this sale, but he has failed and refused to do so.” Appellant’s answer was in effect a denial of every allegation in the complaint.

Trial resulted in a finding by the Court that Wells was acting as the agent of Hill when he (Wells) sold the business to Nahlen and that Hill had never surrendered any equity he might have in the business and was entitled to an accounting. Wells was credited with the purchase price stipulated in the sales contract between him and Hill and the remaining balance of the sales contract between Wells and Nahlen was ordered paid to Hill. From the decree is this Appeal.

For reversal, Appellant says: ‘‘The decision of the Trial Court is contrary to the evidence and the law.” We do not agree with either contention.

The finding of the Court that Wells was acting as Hill’s agent when he sold the business involved to Nahlen is, we- hold, not against the preponderance of the evidence. Hill testified in effect that he decided to sell the business in January 1955. When he told Wells that he wanted to sell, Wells tried to dissuade him, but when Wells saw that he (Hill) was determined to sell, Wells said: “ ‘We will go ahead and sell the store and get your equity out of it.’ It was approximately the latter part of February or a few days after we made this agreement I went out to the store and cleaned it up and painted it and gave Mr. Wells one key to the store. The latter part of February Mr. Wells sold the store to Andy Nahlen. The 5th of March I went out to the store to teach Mr. Nahlen to operate the machine and draw the product out of the syrup and the next day I went back to help Mr. Nahlen get one of the machines running that had broken down, and approximately a week later Mr. Wells came to Reb samen and gave me a check for $300.00 and said, ‘We will get together next week and settle out the rest of your equity,’ ... I never did make an agreement to terminate the first contract, (Wells-Hill).” The record reflects that Wells, in response to request for admission of facts by Hill, stated: “Defendant admits that he made a statement to the plaintiff subsequent to the sale of the business to Mr. Nahlen that defendant did not know the plaintiff’s share of the proceeds from this sale but that defendant would have his accountant determine plaintiff’s share.”

There was other evidence tending to corroborate Hill. While Wells’ testimony tended to contradict that offered by Hill, after a careful review of it all, without detailing it, we are unable to say, on trial de novo here, that the Court’s findings were against the preponderance thereof. Little v. Farm Bureau Co-Operative Mill & Supply, 224 Ark. 289, 272 S. W. 2d 818, and Lupton v. Lupton, 210 Ark. 140, 194 S. W. 2d 686.

Having concluded that the Trial Court correctly found that Wells acted as Hill’s agent in selling the business, then certainly as such agent the law required him (Wells) to account to his principal (Hill) for any funds which he received for Hill. Affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Associated Mechanical Contractors of Arkansas, Etc. v. Arkansas Louisiana Gas Company.
    5-734
    283 S. W. 2d 123
    Opinion delivered October 24, 1955.

      Bailey, Warren & Bullion, for appellant.

      Lesley, Spitzberg, Mitchell <& Hays and Moore, Burrow, Chownmg & Mitchell, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question to be decided is whether the Arkansas Public Service Commission (hereinafter called “Commission”) has the power to prohibit the Arkansas Louisiana Gas Company (hereinafter called “Appellee”) from selling and installing air-conditioning equipment in competition with appellants. The Commission held itself to be without power to make such order; the Circuit Court agreed with the Commission; and the case is here on appeal.

In May 1954 the Associated Mechanical Contractors of Arkansas, Refrigeration and Air-Conditioning Division (hereinafter called “appellants”), filed before the Commission a complaint against appellee. The complaint alleged: that the appellants constituted a mercantile association in the State of Arkansas; that § 73-216, Ark. Stats., allowed any “mercantile association” to file a complaint before the Commission against any public utility involving the “furnishing of service”; that appellee, as a public utility engaged in the sale of gas, was under the jurisdiction of the Commission (§ 73-218, Ark. Stats.); and that the Commission had the power to ascertain and fix the “service to be . . . furnished” by any utility. The complaint (therein referring to appellants as “complainants” and appellee as “defendant”) contained the following allegations:

“The defendant for a number of years has established and followed a practice of dealing in the retail sale and installation of appliances, including air-conditioning units and equipment. . . . Complainants assert that the merchandising of fixtures and appliances is properly a non-public utility operation. Defendant occupies the favored position of a protected monopoly in its public utility operations with an assured profit, part of which profit it is using in a destructive competition with private enterprise. It has sustained a loss of approximately seventy thousand dollars for each of the years 1952 and 1953 in said non-public utility operations through its practices of underbidding its business competitors. . . . ”

The prayer of -the complaint was that appellee be prohibited from engaging in private business. Appellee filed before the Commission a motion to dismiss, which said:

“(1) This Commission has no jurisdiction of the subject matter of the complaint.

“(2) This Commission has no jurisdiction or power to issue cease and desist order as prayed for by complainants. ’ ’

As aforesaid, the Commission sustained the motion to dismiss.

I. Jurisdiction of the Commission. The threshold question is whether the Commission has jurisdiction to grant relief in a case like this one. In the case of City of Ft. Smith v. Dept. of Pub. Utilities, 195 Ark. 513, 113 S. W. 2d 100, we said of the extent of jurisdiction of the Commission:

‘£ The Department is an administrative body, created by the Legislature, and, as such, it may perform only such duties and exercise such jurisdiction delegated to it by the Legislature as the law-making body itself could constitutionally exercise.” (Italics our own.)

Therefore we search our Statutes to see the power of the Commission. Over the years we have had a series of Legislative enactments which have been designed to regulate public utilities. Without going too far back into history or attempting to give all the Acts and amendments, we begin with Act No. 571 of 1919, which created the Arkansas Corporation Commission; Act No. 124 of 1921 amended the 1919 Act; Act No. 72 of 1933 created the Fact Finding Commission; Act No. 324 of 1935 was a comprehensive Act that created the Department of Public Utilities; and Act No. 40 of 1945 consolidated the Arkansas Corporation Commission and the Department of Public Utilities into the “Arkansas Public Service Commission,” which is the present name of the agency.

We give the foregoing list of some of the Acts for the purpose of pointing out that in Section 11 of Act 571 of 1919 there was a paragraph which said:

“The Commission shall have general supervision of all persons, firms or corporations having authority . . . to lay . . . pipes . . . for the purpose of furnishing and distributing gas. . . .”

The quoted “general supervision” paragraph in the 1919 Act was eliminated by § 8 of the Act No. 123 of 1921; and we do not find any such “general supervision” language in any of our subsequent legislation. Therefore, it seems clear that the Arkansas Public Service Commission does not have “general supervision” over all of the dealings of a corporation that is a public utility, but only has supervision within the Legislative grant of those dealings wherein the corporation, in fact, acts as a public utility.

Just as a municipal corporation may act in either a governmental capacity or a proprietary capacity, so also a public service corporation may act in some matters of business as a private corporation. In 73 C. J. S. 1003 cases are cited to sustain this rule:

“A public utility may act in a private capacity as distinguished from its public capacity, and in so doing is subject to the same rules as a private person. The fact that a business or enterprise is, generally speaking, a public utility does not make every service performed or rendered by it a public service, with the consequent duties and burdens, but it may act in a private capacity as distinguished from its public capacity, and in so doing is subject to the same rules as a private person.”

Appellee’s charter gives it the power to sell equipment, so it is not claimed that appellee is acting ultra vires; besides, injunction against ultra vires acts of a corporation is a matter for a court and not a point on which the Commission might bottom its jurisdiction. Whether the Legislature has the power to prohibit a public utility from acting in a private capacity is a question not before us; so we need not consider the arguments contained in the case of Capitol Gas & Elec. Co. v. Boynton, 137 Kan. 717, 22 Pac. 2d 958. The basis for our conelusion is that our present Statutes do not give the Commission authority to act in a case like this one involving the non-public utility business of a corporation.

II. Losses in Private Business Matters. Finally, appellants urge that the appellee is sustaining an annual loss in this private business of selling air-conditioning equipment, and that this loss is carried into the rate base for the public utility charges that the appellee makes. Such an argument is a matter that addresses itself to the Public Service Commission in fixing a rate base; but such argument cannot be used to confer jurisdiction on the Commission in a case like the appellants now have before us.

Affirmed.

       The quoted language is in accord with the holdings of other courts on the same question, some of which are: West v. Sun Cab Co. (Md.), 154 Atl. 100; State ex rel. Utility Dist. v. Dept. of Pub. Serv. (Wash.), 150 Pac. 2d 709; and Taylor v. Mich. Pub. Util. Comm. (Mich.), 186 N. W. 485.

       Sec. 19 (6) of the Act No. 324 of 1935 transferred to the Department of Public Utilities the powers of the Arkansas Corporation Commission over utilities.

       The fact of this elimination is mentioned in the annotation following § 73-123, Ark. Stats.

       See Town of Searcy v. Yarnell, 47 Ark. 269, 1 S. W. 319; and Arkansas Valley Compress v. Morgan, 217 Ark. 161, 229 S. W. 2d 133.

       As to injunction against ultra vires acts, see generally 32 C. J. 234 and 43 C. J. S. 605.

       Cases from other Public Service Commissions are in accord with the holding of the Arkansas Public Service Commission on this point. See City Ice & Fuel Co. v. Consolidated Edison Co. (N. Y. Dept. of Public Service 1939), 29 P. U. R. (N. S.) 193; Master Plbrs. Assn. v. Brockton Gas Lt. Co. (Mass. Dept. of Public Utilities 1935), 36 P. U. R. (N. S.) 364; In Re Milwaukee Gas Lt. Co. (Wis. P. S. Com. 1942), 44 P. U. R. (N. S.) 194; and see also In Re City Ice & Fuel Co. (N. Y. Sup. Ct. App. Div. 1940), 37 P. U. R. (N. S.) 218 and 23 N. Y. S. (2) 376.


author: Minor W. Millwee, Associate Justice.

text:
    Nelms v. Steelhammer.
    5-737
    283 S. W. 2d 118
    Opinion delivered October 24, 1955.

      Ivan Williamson and Ben Williamson, for appellant.

      W. J. Arnold, for appellee.
   Minor W. Millwee, Associate Justice.

This appeal is from a decree denying the petition of appellant, Joe Nelms, for a permanent injunction to restrain appellees from interfering with appellant’s use of a certain road which he claimed had become a public highway by prescription.

Appellees, James E. Grant and wife, purchased 400 acres ..in Stone County in December, 1949, which included lands joining appellant’s 40-acre tract on the north ai/d east as shown by the following sketch introduced by appellees :

Appellant and his witnesses testified that the roadway shown on the sketch had been used by two or three local landowners and the public generally over a period of 35 to 50 years as an outlet to the village of Rushing and other points on State Highway No. 9. When the Grants purchased their lands in 1949, appellant was living near Gate 4 in a house that was torn down shortly thereafter when he moved to the residence which he built near Gate 1. At one time he had lived in his father’s home, which was also located near Gate 1, but this house was torn down 8 or 10 years prior to the trial. Appellant also lived in Indiana for 1% years, beginning in 1948. He admitted that the road in question had been moved from time to time and that there were three different roads over the lands. He assisted appellees in building a fence on the north line of his property in 1950 when Gate 1 was put in, but he could not remember the location or date of installation of the other gates.

A good portion of the lands in question had been open and unenclosed for long periods prior to 1949. However, small portions of the land had been cultivated at different times. John Moore, appellees’ predecessor in title, was cultivating a small acreage and maintaining Gates 2 and 3 in 1950. A witness for appellees testified that these were old gates when he first noticed them about 7 years prior to the trial and there was other evidence that the gates had been in existence and use for 8 or 10 years in 1950 when appellees completely fenced their lands as a stock farm and installed Gates 1 and 4. Gates 1, 3 and 4 were necessary to keep livestock off the outside range and Gate 2 was used to protect a cultivated field which was separated from the pasture lands.

In 1952, Mrs. Grant closed Gate 1 because the gates were continually being left open and torn down. A suit then filed by appellant was dismissed under an arrangement whereby appellees installed cattle guards at Gates 2 and 3, which proved inadequate or unsatisfactory, and the gates were restored. When someone, identified by Mrs. Grant as the appellant, persisted in leaving open and tearing down the gates, Mrs. Grant again closed Gate 1 by locking it and the instant suit was filed.

Evidence introduced by both sides tended to show that the portion of the road from Gate 1 to Gate 2 had not been used for a period estimated at 8 to 12 years prior to 1949. Mrs. Grant was positive that there was no road there in 1949 nor any visible evidence that a road had ever been there. Much of the road traversed lands which were unenclosed and unoccupied for a considerable portion of the time in which adverse use was claimed. The land in the vicinity of Gates 1 and 4 was first fenced in 1950 and the land between Gates 2 and 3 was allowed to “lay out” much of the time. Different ways were used over the lands at different times. Evidence offered by appellant in an effort to show that the road extending west from his house near Gate 1 was inadequate for vehicular travel was first admitted, but appellees’ offer to show that said road furnished an adequate outlet to the highway without crossing their property was rejected on the ground that it was immaterial to the issue involved.

The rule applicable to the establishment of a public highway by prescription over private lands was announced in Howard v. State, 47 Ark. 431, 2 S. W. 331, where this court held: “A road becomes established as a public highway by prescription, where the public, with the knowledge of the owner of the soil, has claimed and continuously exercised the right of using it for a public highway for the period of seven years, unless it was so used by leave, favor or mistake; and this though the public travel may have somewhere slightly deviated from the original track by reason of any obstacle that may have been placed in it.” Another well-settled rule is that where a road is used by the public across unoccupied and unenclosed lands, such use is presumed to be permissive. Brumley v. State, 83 Ark. 236, 103 S. W. 615. We have also held that if the public acquiesces for more than seven years in the existence of a gate across a road established by prescription, its conduct amounts to an abandonment of the prescriptive right, entitling the owner to close the gate permanently. Porter v. Huff, 162 Ark. 52, 257 S. W. 393; Kennedy v. Crouse, 214 Ark. 830, 218 S. W. 2d 375.

In denying the prayer for a permanent injunction, the chancellor pointed out the changing routes of the road over the years and the fact that much of the land was open and unenclosed while part of it was fenced with gates across the road. There was. a finding that the evidence was insufficient to establish a public way by prescription because the use of the road over the years was permissive and not adverse. We cannot say this finding is against the preponderance of the evidence. Even if it he held that a public highway was at one time established by prescription, the evidence also tends to show that appellant, and the public generally, acquiesced in the use of Gates 2 and 3 for a period of 8 to 10 years prior to 1950, thereby losing any prescriptive right previously acquired. The facts here are similar to those in Porter v. Huff, supra, where the court said: “"When appellee enclosed his land and placed gates across the road, it was notice to the public that thereafter they were passing through the land by permission, and not by right. ’ ’

Affirmed.


author: George Bose Smith, J.

text:
    Craig v. Barron.
    5-753
    283 S. W. 2d 127
    Opinion delivered October 24, 1955.

      Dean R. Morley, Ike Murry and Frank II. Cox, for appellant.

      Ed E. Ashbaugh and Alonso Camp, for appellee.
   George Bose Smith, J.

This is a contest of a local option election that was held in Fourche Township, Pulaski County, on June 1, 1954. As originally certified the vote was in favor of the manufacture and sale of intoxicants. A petition to contest the election was then filed by the appellees. The county court dismissed the proceeding, but on appeal the circuit court reinstated the petition and tried the cause. The court found that a total of fifty-four votes had been illegally cast in favor of the continued sale of intoxicants; the elimination of these votes changed the election result from wet to dry.

The appellants urge two principal points for reversal, both of which are well taken. First, it is contended that the contestants ’ petition was not filed in the county court within the time allowed by law. The result of the election was declared by the county court on June 4. The statute requires that a contest be filed within ten days and invests the county court with original jurisdiction of the proceeding. Ark. Stats. 1947, §§ 48-820 and 3-1205; Hubbard v. Watson, 218 Ark. 737, 238 S. W. 2d 656. Thus the appellees’ petition should have been filed in the county court by June 14, 1954.

The petition was in fact filed with the county clerk on June 9, but it was addressed to the County Board of Election Commissioners. That body is charged, among other things, with the safekeeping of original ballot boxes. Ark. Stats., §§ 3-1008, 3-1013. This petition asks that the board impound the absentee ballot box, that the petitioners be permitted to examine the ballots, and that proof be taken to determine which ballots were irregular. In publishing the statutory notice of the filing of the petition (Ark. Stats., § 48-820), the contestants stated that ‘ ‘ a petition has been filed with the County Board of Election Commissioners.”

It was not until July 2 that the contestants filed a supplemental petition asking the county court to take jurisdiction of the case. That court correctly dismissed the proceeding as being out of time. The only petition filed within the statutory time limit was addressed to the County Board of Election Commissioners and sought relief from that body alone. Had the law directed that the petition be filed with the board in question it is plain enough that this pleading would have been lodged in the proper forum. But the tribunal having jurisdiction is the county court, and it cannot very well be said that this petition was pending before the board and the court at the same time.

In defending their position the appellees put much stress on the fact that the petition was filed in the office of the county clerk. It does not follow, however, that the petition was therefore pending in the county court. The county clerk, in addition to being the clerk of the county court, is the clerk of the probate court, the juvenile court, and the quorum court; he is also the designated custodian of many public' records. It is quite apparent that the mere deposit of a paper with the county clerk does not convert it into a pleading addressed to the county court. We must conclude that the appellees’ petition was originally filed with the County Board of Election Commissioners, which was the wrong forum. The case of Casey v. Burdine, 214 Ark. 680, 217 S. W. 2d 613, is controlling as to the lack of statutory authority for a belated transfer of the cause in such a situation.

Second, it is insisted that the appellants’ demurrer to the contestants’ petition should have been sustained when the case reached the circuit court. We agree with this alternative contention, but it need not be discussed at length. The contestants’ statutory notice pretty well described the petition by stating that it asked that the ballots “be re-examined for irregularities and that if said irregularities be found, said irregular ballots be stricken from the rolls.” The petition does not charge that any specified vote was illegally cast; instead, it asks that the contestants be permitted to examine the ballots “in order that proof may be taken to determine which ballots are irregular.” It is true that the petition contains conclusions of law to the effect that illegal votes were cast by the wets, but the petition contains no information that would identify any allegedly illegal voter. We are not convinced that the legislature, in requiring the contestants to file within ten days “a written statement of the grounds of contest” (Ark. Stats., § 48-820), meant to sanction a petition that might conceivably consist of a mere recitation, in general language, of every election irregularity to be found in the books. Yet the statute would have to he so interpreted if this petition is to he held sufficient.

Beversed and dismissed.


author: Paul Ward, Associate Justice.

text:
    Harris v. Brooks.
    5-711
    283 S. W. 2d 129
    Opinion delivered October 24, 1955.

      William H. ■Donham, for appellant.

      John T). Elrlrklgc, Jr., for appellee.
   Paul Ward, Associate Justice.

The issues presented by this appeal relate to the relative rights of riparian landowners to the use of a privately owned non-navigable lake and the wafer therein.

Appellant, Theo Mashburn, lessee of riparian landowners conducts a commercial boating and fishing enterprise. In this business he rents cabins, sells fishing bait and equipment, and rents boats to members of the general public who desire to use the lake for fishing and other recreational purposes. He and his lessors filed a complaint in chancery court on July 10, 1954, to enjoin appellees from pumping water from the lake to irrigate a rice crop, alleging that, as of that date, appellees had reduced the water level of the lake to such an extent as to make the lake unsuitable “for fishing, recreation, or other lawful purposes.” After a lengthy hearing, the Chancellor denied injunctive relief, and this appeal is prosecuted to reverse the Chancellor’s decision.

FACTUAL BACKGROUND. Horseshoe Lake, located about 3 miles south of Augusta, is approximately 3 miles long and 300 feet wide, and, as the name implies, resembles a horseshoe in shape. Appellees, John Brooks and John Brooks, Jr., are lessees of Ector Johnson who owns a large tract of land adjacent to the lake, including three-fourths of the lake bed.

Por a number of years appellees have intermittently raised rice on Johnson’s land and have each year, including 1954, irrigated the rice with water pumped from the lake. They pumped no more water in 1954 than they did in 1951 and 1952, no rice being raised in 1953. Approximately 190 acres were cultivated in rice in 1954.

The rest of the lake bed and the adjoining land is divided into four parts, each part owned by a different person or group of persons. One such part is owned by Ed Harris, Jesse Harris, Alice Lynch and Dora Balkin who are also appellants. In March, 1954, Mashburn leased from the above named appellants a relatively small camp site on the bank of the lake and installed the business above mentioned at a cost of approximately $8,000, including boats, cabins, and fishing equipment. Mashburn began operating his business about the first of April, 1954, and fishing and boat rentals were satisfactory from that time until about July 1st or 4th when, he says, the fish quit biting and his income from that source and boat rentals was reduced to practically nothing.

Appellees began pumping water with an 8-inch intake on May 25, 1954, and continued pumping until this suit was filed on July 10, and then until about August 20th. They quit pumping at this time because it was discovered fish life was being endangered. The trial was had September 28, 1954, and the decree was rendered December 29, 1954.

THE TESTIMONY. Because of the disposition we hereafter make of this case, it would serve no useful purpose to set out the voluminous testimony in detail or attempt to evaluate all the conflicting portions thereof. The burden of appellants’ testimony, given by residents who had observed the lake over a period of years and by those familiar with fish life and sea level calculations, was directed at establishing the normal or medium water level of the lake. The years 1952, 1953 and 1954 were unusually dry and the water levels in similar lakes in the same general area were unusually low in August and September of 1954. During August 1954 Horseshoe Lake was below “normal,” but it is not entirely clear from the testimony that this was true on July 10 when the suit was filed. It also appears that during the stated period the water had receded from the bank where Mashburn’s boats were usually docked, making it impossible for him to rent them to the public. There is strong testimony, disputed by appellees, that the normal level of the lake is 189.67 feet above sea level and that the water was below this level on July 10. Unquestionably the water was below normal when this suit was tried the latter part of September, 1954.

On the part of appellees it was attempted to show that; they had used the water for irrigation several years dating back to 1931 and . Mashburn knew this when he rented the camp site; although they had been pumping regularly since May 25, 1954, the water did not begin to fall in the lake until July 1st or 4th; an agent of the Arkansas Game and Fish Commission examined the lake and the water about July 2nd and found no condition endangering fish life, and similar examinations after suit was filed showed the same condition, and; they stopped pumping about August 20th when they first learned that fish life was being endangered.

ISSUES CLARIFIED. In refusing to issue the injunction the Chancellor made no finding of facts, and did not state the ground upon which his decision rested. Appellants strongly insist that the Chancellor was forced by the testimony to conclude first that the normal level of the lake was 189.67 feet above sea level and second that the water in the lake was at or below this level when the suit was filed on July 10th. This being true, appellants say, it was error for the Chancellor to refuse to enjoin appellees from pumping water out of the lake. If it be conceded that the testimony does show and the Chancellor should have found that the water in Horseshoe Lake was at or below the normal level when this suit was filed on July 10th, then appellants would have been entitled to an injunction provided this case was decided strictly under the uniform flow theory mentioned hereafter. However as explained later we are not bound by this theory in this state. It appears to us there might have been some confusion as to the ground upon which appellants based their contention for relief. Under the pleadings it appears that they may be asking for relief on two separate grounds: (a) The right to fish and (b) The right to conduct a commercial boating enterprise. It was incumbent upon appellants to show that one or both rights were unreasonably interfered with when the water level sank below “normal.” It is difficult to tell whether the testimony establishes this fact in either instance. (a) The only testimony in the first instance is that fish quit biting somewhere about the 4th of July but there was no conclusive evidence that this was caused by the lake being below “normal” level. It is common knowledge that fish quit biting sometime for no apparent good reason. There was no testimony that fish life was endangered before July 10th but on the other hand there was positive testimony to the contrary, (b) Likewise there was no conclusive testimony showing that it was impractical to dock or run boats on the lake prior to July 10th. Moreover it would be pure conjecture to say that the same water level, whether normal or otherwise, controlled both fishing and boating. Certainly appellants made no attempt to make any distinction either in the pleadings or by the testimony between the two causes of action.

In view of the above situation it is urged by appellees that the case should therefore be affirmed, but we have concluded that the best interest of the parties hereto and the public in general will be served by concluding this case in the light of the announcements hereafter made and the conclusions hereafter reached. Before attempting such conclusion it appears proper to make some general observations relative to the law regulating the use of water in lakes and streams.

TWO BASIC THEORIES. Generally speaking two separate and distinct theories or doctrines regarding the right to use water are recognized. One is commonly called the “Appropriation Doctrine” and the other is the “Riparian Doctrine.”

Appropriation Doctrine. Since it is unnecessary to do so we make no attempt to discuss the varied implications of this doctrine. Generally speaking, under this doctrine, some governmental agency, acting under constitutional or legislative authority, apportions water to contesting claimants. It has never been adopted in this state, but has been in about 17 western states. This doctrine is inconsistent with the common law relative to water rights in force in this and many other states. One principal distinction between this doctrine and the riparian doctrine is that under the former the use is not limited to riparian landowners.

Riparian Doctrine. This doctrine, long in force in this and many other states, is based on the old common law which gave to the owners of land bordering on streams the right to use the water therefrom for certain purposes, and this right was considered an incident to the ownership of land. Originally it apparently accorded the landowners the right to have the water maintained at its normal level, subject to use for strictly domestic purposes. Later it became evident that this strict limitation placed on the use of water was unreasonable and unutilitarian. Consequently it was not long before tbe demand for a greater use of water caused a relaxation of the strict limitations placed on its use and this doctrine came to be divided into (a) the natural flow theory and (b) the reasonable use theory.

(a) Natural Flow Theory. Generally speaking again, under the natural flow theory, a riparian owner can take water for domestic purposes only, such as water for the family, livestock, and gardening, and he is entitled to have the water in the stream or lake upon which he borders kept at the normal level. There are some expressions in the opinions of this court indicating that we have recognized this theory, at least to a certain extent.

Reasonable TJse Theory. This theory appears to be based on the necessity and desirability of deriving greater benefits from the use of our abundant supply of water. It recognizes that there is no sound reason for maintaining our lakes and streams at a normal level when the water can be beneficially used without causing unreasonable damage to other riparian owners. . The progress of civilization, particularly in regard to manufacturing, irrigation, and recreation, has forced the realization that a strict adherence to the uninterrupted flow doctrine placed an unwarranted limitation on the use of water, and consequently the courts developed what we now call the reasonable use theory. This theory is of course subject to different interpretations and limitations. In 56 Am. Jur., page 728, it is stated that “The rights of riparian proprietors on both navigable and unnavigable streams are to a great extent mutual, common, or correlative. The use of the stream or water by each proprietor is therefore limited to what is reasonable, having due regard for the rights of others above, below, or on the opposite shore. In general, the special rights of a riparian owner are such as are necessary for the use and enjoyment of his abutting property and the business lawfully conducted thereon, qualified only by the correlative rights of other riparian owners, and by certain rights of the public, and they are to be so exercised as not to injure others in the enjoyment of their rights. ’ ’ It has been stated that each riparian owner has an equal right to make a reasonable use of waters subject to the equal rights of other owners to make the reasonable use (U. S. v. Willow River Power Co., 324 U. S. 499, 65 S. C. 761, 89 L. Ed. 1101). The purpose of the law is to secure to each riparian owner equality in the use of water as near as may be by requiring each to exercise his right reasonably and with due regard to the rights of others similarly situated. (Meng. v. Coffey, 67 Neb. 500, 93 N. W. 713, 108 Am. St. Rep. 697).

This court has to some extent recognized the reasonable use theory (Thomas v. LaCotts, 222 Ark. 171, 257 S. W. 2d 936; Ralph R. Harrell, et al., v. City of Conway, et al., 224 Ark. 100, 271 S. W. 2d 924, but we have also said (in the City of Conway case) that the uniform flow theory and the reasonable use theory are inconsistent and, further that we had not yet made a choice between them. It is not clear that we made a choice in that case. The nucleus of this opinion is, therefore, a definite acceptance of the reasonable use theory. We do not understand that the two theories will necessarily clash in every case, but where there is an inconsistency, and where vested rights may not prevent, it is our conclusion that the reasonable use theory should control.

In embracing the reasonable use theory we caution, however, that we are not necessarily adopting all the interpretations given it by the decisions of other states, and that our own interpretation will be developed in the future as occasions arise. Nor is it intended hereby that we will not in the future, under certain circumstances, possibly adhere to some phases of the uniform flow system. It is recognized that in some instances vested rights may have accrued to riparian landowners and we could not, of course, constitutionally negate those rights.

It should also be made clear that nothing in this opinion is intended to or can infringe upon the powers of the Arkansas State Game and Fish Commission as invested by Amendment No. 35 to the Constitution of this State. It is recognized that said Commission has the power to propagate, preserve, and protect fish in streams and lakes. In exercising this power the Commission will undoubtedly be interested in some instances in the amount of water that may be removed from lakes or streams where injury to fish life is involved.

The result of our examination of the decisions of this court and other authorities relative to the use by riparian proprietors of water in non-navigable lakes and streams justifies the enunciation of the following general rules and principles:

(a) The right to use water for strictly domestic purposes — such as for household use — is superior to many other uses of water — -such as for fishing, recreation and irrigation.

(b) Other than the use mentioned above, all other lawful uses of water are equal.

Some of the lawful uses of water recognized by this state are: fishing, swimming, recreation, and irrigation.

(c) When one lawful use of water is destroyed by another lawful use the latter must yield, or it may be enjoined.

(d) When one lawful use of water interferes with or detracts from another lawful use, then a question arises as to whether, under all the facts and circumstances of that particular case, the interfering use shall be declared unreasonable and as such enjoined, or whether a reasonable and equitable adjustment should be made, having due regard to the reasonable rights of each.

Application to This Case. Some of the questions, therefore, which must be considered are these:

(a) Had appellees on July 10,1954, by the continued use of water from Horseshoe Lake, destroyed appellants ’ right to fish and conduct the boating enterprise? If so, the injunction should be granted.

(b) If it is found, however, that appellants’ rights had only been impaired at the stated time, then it must be judged, under all the facts and circumstances as before mentioned, whether such impairment is unreasonable. If it is so found then the injunction should issue. If it is found that appellants ’ rights have not been unreasonably impaired, having due regard to all the facts and circumstances and the injury which may be caused appellees as weighed against the benefits accruing to appellants, then the injunction should be denied.

We do not minimize the difficulties attendant upon an application of the reasonable use rule to any given set of facts and circumstances and particularly those present in this instance. It is obvious that there are no definite guide posts provided and that necessarily much must be left to judgment and discretion. The breadth and boundaries of this area of discretion are well stated in Restatement of the Law, Torts, § 852c in these words: “The determination in a particular case of the unreasonableness of a particular use is not and should not be an unreasoned, intuitive conclusion on the part of the court or jury. It is rather an evaluating of the conflicting interests of each of the contestants before the court in accordance with the standards of society, and a weighing of those, one against the other. The law accords equal protection to the interests of all the riparian proprietors in the use of water, and seeks to promote the greatest beneficial use of the water, and seeks to promote the greatest beneficial use by each with a minimum of harm to others. But when one riparian proprietor’s use of the water harmfully invades another’s interest in its use there is an incompatibility of interest between the two parties to a greater or lesser extent depending on the extent of the invasion, and there is immediately a question whether such a use is legally permissible. It is axiomatic in the law that individuals in society must put up with a reasonable amount of annoyance and inconvenience resulting from the otherwise lawful activities of their neighbors in the use of their land. Hence it is only when one riparian proprietor’s use of the water is unreasonable that another who is harmed by it can complain, even though the harm is intentional. Substantial intentional harm to another cannot be justified as reasonable unless the legal merit or utility of the activity which produces it outweighs the legal seriousness or gravity of the harm.”

In all our consideration of the reasonable use theory as we have attempted to explain it we have accepted the view that the benefits accruing to society in general from a maximum utilization of our water resources should not be denied merely because of the difficulties that may arise in its application. In the absence of legislative directives, it appears that this rule or theory is the best that the courts can devise.

OUR CONCLUSION. After careful consideration, an application of the rules above announced to the complicated fact situation set forth in this record leads ns to conclude that the Chancellor should have issued- an order enjoining appellees from pumping water out of Horseshoe Lake when the water level reaches 189.67 feet above sea level for as long as the material facts and circumstances are substantially the same as they appear in this record. We make it cléar that this conclusion is not based on the fact that 189.67 is the normal level and that appellees would have no right to reduce such level. Our conclusion is based on the fact that we think the evidence shows this level happens to be the level below which appellants would be unreasonably interfered with. This holding is, we think, in harmony with the holding in the Tampa Coal Company case, supra. That case involved a shallow privately owned lake similar to the one under consideration. Taylor was enjoined from pumping the water from the lake to irrigate his citrus grove on the ground that to do so destroyed the use of the lake by the employees of the Coal Company for recreational purposes. The court held that Taylor could not pump water from the lake after it reached the normal level. A careful reading of the case, however, shows that the decision was not based on the normal level or natural flow theory but rather on the fact that that level happened to be the one below which it would be unreasonable to reduce the water. In reaching its conclusion the court, among other things, said: “. . . each riparian owner has the right to use the water in the lake for all lawful purposes, so long as his use of the water is not detrimental to the rights of other riparian owners. From the evidence in the record it is plain that when the water of the lake here involved is at a normal level the lake is too small in area and content to allow water to be pumped therefrom for irrigation purposes without consequent damage to other riparian owners.” The court then justified its conclusion “when conditions are such that the lake is either at or below normal water level and the use thereof for irrigation purposes will operate to the injury of other riparian owners. . . .”

We think the conclusion we have reached is not only logical but practical. Although appellees had quit using-water from the lake when this ease was tried yet they testified that they intended to use water therefrom in 1955. We might assume that they would want to also use water in subsequent years, so it would seem to be to the best interest of all parties concerned to have a definite level fixed at which pumping for irrigation must cease in order to avoid useless litigation.

Appellees make the point that the Chancellor should be sustained because they have acquired a prescriptive right to the unlimited use of the water in Horseshoe Lake, and, to the same effect, that appellants are estopped from asserting any rights to the contrary. We cannot sustain this contention. Although appellees, according to the record, have used this water for irrigation purposes on several occasions in previous years, dating back for more than seven years, yet it appears that appellants had not been disturbed in the exercise of their riparian rights previous to 1954. Prior to that year appellees had merely been exercising their lawful rights as riparian owners and their exercise of those rights was in no way adverse to the rights of any one. (56 Am. Jur., p. 730, § 343) in the City of Conway case, supra, where the same contention was made that appellees here make the contention was denied, the court saying: “We are unable to find any act or acts on the part of Conway of an adverse claim or nature, or such as would put appellants on notice of any adverse claim. ’ ’ The court then followed with citations which are applicable here.

Reversed with direction to the trial court to enter a decree in conformity with this opinion.

Justice McFaddin concurs.

       Wells A. Hutchins, U. S. Department of Agriculture in a paper presented before the Midwestern States Flood Control Conference, East Lansing, Michigan, on June 15, 1954, among other things, said:
      “The effect of the repudiation of a common law system and its complete replacement by an appropriative system is to deny the right of an owner of land bordering a stream ... to divert and make use of the water solely by reason of his ownership of the land; to declare all such waters to be the property of the state, and; to make all waters . . . open to appropriation for beneficial use. . . .”

       In St. Louis Southwestern Railway Company v. Mackey, 95 Ark. 297, 129 S. W. 78, at page 299 of Ark. Reports, it was said: “It is the right of each proprietor along a natural drain or watercourse to insist that the water shall continue to flow as it has been used and accustomed to do so; . . .”

      In Taylor v. Rudy, 99 Ark. 128, 137 S. W. 574, this language was used at page 132 of the Ark. Reports: “Every owner of land through which a stream of water flows is entitled to the use and enjoyment of the water, and to have the same flow in its natural and accustomed course without obstruction, diversion or corruption.”
      In Meriwether Sand & Gravel Company v. State Ex Rel. Attorney General, 181 Ark. 216, 26 S. W. 2d 57, at page 226 of the Ark. Reports, it was said: “Every such proprietor is entitled to the usual flow of a stream in its natural channel over his land, undiminished in quantity and unimpaired in quality, subject to the reasonable use by upper proprietors, and with the right to make any reasonable use of the water necessary for his convenience or pleasure, including in non-navigable waters, the exclusive privilege of taking fish from the stream.”

       In the case of Meriwether Sand & Gravel Company v. State Ex Rel. Attorney General, supra, at page 226, Ark. Reports, this court said: “Riparian rights inhere in the owner of the soil and are part and parcel of the land itself, and are vested and valuable rights which no more may be destroyed or impaired than any other part of a freehold.” This right was also recognized in the LaCotts case, supra.

       The use of water for domestic purposes is usually accorded a preference over the demands of irrigation and manufacturing. 56 Am. Jur. 784, § 343. Humphreys-Mexia Co. v. Arseneaux, 116 Tex. 603, 297 S. W. 225, 53 A. L. R. 1147.

       In the case of Taylor v. Tampa Coal Co. (Fla.), 46 So. 2d 392, at page 394, it is stated: “It is the rule that the rights of riparian proprietors to the use of waters in a non-navigable lake such as the one here involved are equal.”

       See Meriwether Sand & Gravel Co. v. State Ex Rel. Attorney General, supra, and Barboro v. Boyle, 119 Ark. 377, 178 S. W. 378, at pages 382, 383 of the Ark. Reports.

       In 56 Am. Jur., page 783, it is stated: “In determining whether an artificial use of the water of a stream is reasonable or not, it is necessary to consider what the use is for, its extent, duration, necessity, and application, the nature and size of the stream, and the several uses to which it is put, the extent of the injury to one proprietor and the benefit to the other, and all other facts which may bear upon the reasonableness of the use.”


author: Pau'l, Ward, Associate Justice.

text:
    Staudenmayer v. City Transit Company.
    5-729
    283 S. W. 2d 121
    Opinion delivered October 24, 1955.

      L. V. Rhine and John C. Watkins, for appellant.

      Frierson, Cherry, Walker & Snellgrove, for appellee.
   Pau'l, Ward, Associate Justice.

Tbe City Transit Company, owner of a garage in Jonesboro, secured a jury verdict against June Staudenmayer [and her guardian, Lelia B. Staudenmayer] in the amount of $585.05, for negligently driving, or causing to be driven, an automobile through its garage door, damaging said building and some of the contents thereof. The specific allegation of negligence was:

“The collision and the resulting damage were the direct and proximate result of the negligence of the defendant in becoming drunk and engaging in a drunken party with the unknown person occupying the car with her and in driving and permitting her car to be driven in such a condition and in failing to keep her car under control or to cause the driver to keep it under control and in driving off the street and across plaintiff’s lot and into its building without controlling or stopping the car.”

The answer was a general denial.

The principal question on appeal is one of law and it arises over an instruction given by the trial judge. There is practically no dispute about the pertinent facts.

June Staudenmayer is a young lady afflicted periodically with epileptic spells, but at other times she is perfectly normal. Because of this condition her mother was appointed her guardian in 1946. On the night of February 8, 1952, or the early morning of the 9th, June, who lived with her mother at Leachville, secured the keys to her mother’s car, without her mother’s consent, and drove the car to Monette. There she picked up two men who were strangers to her. She says one of the men drove the car while she sat between him and the other man. It appears likely June was under the influence of liquor at this time or, as she says, under the influence of medicine' she had taken. She says that she remembers driving towards Jonesboro but remembers nothing else until after the accident.

An employee of the Transit Company was on duty at the garage early on the morning of February 9th when he heard the car crash through the swinging doors used by busses. He made an immediate investigation and found June sitting in the car but he did not see anyone else around the car or leaving the building. It was his opinion that June was drunk or doped. A patrolman who appeared on the scene in about five minutes did not see either of the strange men around the car or leaving the building but he did see June in the middle of the front seat. He stated she was in her pajamas and intoxicated and that she was charged with public drunkenness. It is admitted that the car belonged to June’s mother and appellants do not question the extent of the damages.

At the conclusion of plaintiff’s testimony appellant moved for a directed verdict on the ground that it was not shown that June Staudenmayer owned the car or that she was driving the car at the time of the accident. The trial court denied this motion and we think correctly so. Some of the reasons for this conclusion will be set out later but it suffices to note at this time that there was evidence from which the jury might have found that June was driving the car at the time of the accident. This being true a jury question was presented and therefore the court correctly overruled the motion.

The principal ground urged by appellants for a reversal is the alleged error in appellee’s Instruction No. 3 given by the court to the jury. This instruction reads:

“If you find from a preponderance of the evidence in this case that the defendant, June Staudenmayer, individually, drove or caused to be driven by another, the automobile in which she was riding in a negligent manner, and that as a proximate result of the negligent driving of the said automobile the property of the plaintiff was damaged, your verdict should be in favor of the plaintiff against the defendant, Lelia B. Staudenmayer, as guardian of the defendant, June Staudenmayer, and unless you do so find your verdict will be for the defendant. ’ ’

We understand that appellants admit, first, that under the facts in this case appellee is entitled to a judgment if June Staudenmayer had been a normal, sane person, and second, that appellee would likewise be entitled to judgment even though June was an incompetent person if she had been driving the car. Therefore we assume that appellants’ main objection to the instruction set out above is to that portion which allowed appellee to recover if the jury should find that June “caused the car to be driven by another. ” It is strongly argued that June, being adjudged an incompetent person, could not be liable in this case, if she was not actually driving the car, except on the theory that she appointed one of the strangers to drive for her as her agent. It is then argued that she had no such capacity under the law citing, among others, the following authorities: George v. St. Louis I. M. & S. Ry. Co., 34 Ark. 613; First National Bank of Rogers v. Tribble, 155 Ark. 264, 244 S. W. 33; Reams v. Taylor, 31 Utah 288, 87 Pac. 1089; Thompson v. Bell, 6 Cir., 129 Fed. 2d 211, and; Restatement of the Law of Agency, Vol. 1, Sec. 20. We have read all of the authorities cited hy appellants and agree that they hold, in general, that an insane person is incapable of appointing an agent. In the George case, supra, appellant sought to void a release he had signed to a Railway Company on the ground that he was insane at the time he signed it. It was held that this was a question of fact for the jury to determine from the testimony. In the Tribble case, supra, the court made the same announcement when appellee, who had been adjudged incompetent, defended against an action for borrowed money on the ground that he was incompetent. In the Thompson case, supra, it was held that an incompetent person could not enter the relationship of a joint enterprise which rested upon the principle of agency.

It is our view that none of the authorities cited by appellants are decisive of or pertinent to the case under consideration. As we see it the facts in this case do not raise the question as to whether an insane person can appoint an agent. There is no substantial evidence in this record to show that June Staudenmayer was insane or incompetent during any time related to this episode. It is admitted of course that her mother was appointed her guardian in 1946 because she was subject to epileptic seizures but all of the testimony including her own shows that at all times when not so seized she was the same as any other normal intelligent person. Appellants made no attempt to show, and there is no testimony to show, that June was affected by a seizure when she left her mother’s home, when she picked up the strangers or when the accident occurred. There is testimony that she might have been doped or drunk but she cannot'escape liability here by bringing these conditions or either of them upon herself.

Appellants did not ask, and we think correctly, for an instruction which would have permitted the jury to pass on June’s mental capacity at the time involved here. Under this situation appellants are in no position to object to the court’s instruction set forth above.

The view which we have taken of this case makes it unnecessary for us to consider other questions which were raised and discussed, such as the following: Can an insane or incompetent person be held for damages done by an automobile which he owns and in which he is riding hut which is driven by another person; and is it material whether the incompetent person actually owns the car at the time or has it in his lawful possession.

Finding no error, the judgment of the lower court is affirmed.


text:
    Johnston v. Johnston (Widener)
    5-735
    283 S. W. 2d 151
    Opinion delivered October 31, 1955.

      Kirsch, Cathey & Brown, for appellant.

      Fostef Clarlie and Penix £ Penix, for appellee.
   Lee Seamster, Chief Justice.

The appellant, Shirley Johnston, and the appellee, Sylvia Johnston (Widener) were married on July 20, 1940. Three children were born to said marriage, Donna Jean, now 7 years of age; Shirley Ann, now 14 years of age; and Walter Ray, now 12 years of age. On December 31, 1949, Shirley Johnston was granted a divorce from Sylvia Johnston. The divorce decree awarded the appellant absolute custody of the three minor children. The appellee agreed in writing that the father should have absolute custody of the three children. Since that date the children have lived in the home of their paternal grandparents, also’ appellants herein.

On March 30, 1954, the appellee filed a petition in Craighead Chancery Court, Western Division, asking that the original divorce decree be modified to give her custody of her three minor children. Upon trial of this cause on April 16, 1955, the chancery court modified its original decree and awarded custody of Donna Jean to the appellee; leaving the custody of Shirley Ann and Walter Ray with the appellant, Shirley Johnston. Appellants have appealed from that portion of the modified decree that awarded custody of Donna Jean to the appellee. The appellee has perfected a cross-appeal from that portion of the modified decree which left custody of the two older children with the appellants.

On appeals, such as this, the case comes to us for trial de novo. The party who seeks the modification of a divorce decree, awarding custody of minor children, assumes the burden of showing such changed conditions as would.justify such modification in the minor’s interests.

It is well established by numerous decisions of our court that before a change in custody is justified, the moving party must show a change in conditions since the initial award and it must appear to be for the best interest of the children. In Thompson v. Thompson, 213 Ark. 595, 212 S. W. 2d 8, we said: “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.”

We said in Kirby v. Kirby, 189 Ark. 937, 75 S. W. 2d 817: “It is the well-settled doctrine in this state that the chancellor, in awarding the custody of an infant child or in modifying such award thereafter, must keep in view primarily the welfare of the child ... A decree fixing the custody of a child, is, however, final on the conditions then existing and should not be changed after-wards unless on altered conditions since the decree, or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child.” See, also, Phelps v. Phelps, 209 Ark. 44, 189 S. W. 2d 617.

In the case at bar the appellee has failed to show any of the above mentioned matters. In 1949, Shirley and Sylvia Johnston were living in their home. Mr. Johnston secured a divorce from his wife, when he discovered that she had become enamored of another man. The testimony shows Mr. Johnston procured the divorce from appellee on the basis of an entry of appearance, signed by appellee, in which she agreed that absolute custody of the three children should be awarded to Mr. Johnston. Since that date, the children have lived in the home of their paternal grandparents.

The appellant, Shirley Johnston, has not remarried and works in St. Louis, Missouri. He spends about every other week end, in addition to his vacations, with .his three children in the home of his parents. Mr. Johnston has made satisfactory arrangements with his parents for the support and maintenance of the children in their home. The grandparents are devoted to the three children and have given them a good home and surroundings, with necessary schooling and proper religious training. Their general fitness to care for the children appears unquestioned. Strong ties of affection have been allowed to develop between the children and the appellants during the 5 years that have elapsed since the appellee voluntarily surrendered custody to the father. The children have developed strong ties of love and affection for each other.

Since the divorce, the appellee has married the man of whom she was enamored. She and her husband now reside in a five room apartment in Chicago, Illinois. This apartment is shared with four relatives of the appellee and her husband. Since the divorce from the appellant, the appellee has visited the children about 3 or 4 times each year. Her visits were of a short duration, most of the time for only 30 or 40 minutes. Until the present suit was filed, appellee made no formal complaint as to the care and treatment these children were receiving at the hands of their father and grandparents.

After a careful review of the testimony, we find no substantial change in conditions affecting the welfare of these children, since custody was awarded appellant. The facts and circumstances in the instant case do not warrant the conclusion that appellants are unfit persons to have custody of Donna Jean. The chancellor recognized this by allowing the father to retain custody of the two older children. Both appellant and the grandparents are apparently able to furnish a suitable home for the three children. Unless exceptional circumstances are involved, this court has indicated that young children should not be separated from each other by dividing their custody. See Vilas v. Vilas, 184 Ark. 352, 42 S. W. 2d 379. Under all the circumstances, we have concluded that the permanent welfare of the children would be best served by allowing appellants to have custody of all three children.

The appellee shall have at all times the right of reasonable visitation. She will have to win back, if she can, the affection and respect of the children. The appellants will be ordered not to interfere with the mother’s efforts in this respect or in any other way, so long as appellee conducts herself in a proper manner.

We affirm that portion of the modified decree that allows the appellant to retain custody of the two older children. That part of the modified decree awarding custody of Donna Jean to the appellee is accordingly reversed and the cause remanded with directions to award such custody to the appellant, Shirley Johnston.


author: J. Seaborn Holt, J.

text:
    Shelton v. Gaston.
    5-746
    283 S. W. 2d 154
    Opinion delivered October 31, 1955.

      Oscar E. Ellis, for appellant.

      W. E. Billingsley, for appellee.
   J. Seaborn Holt, J.

This is the second appearance of this case here. February 9, 1953 in our former opinion, Shelton v. Gaston, 221 Ark. 583, 254 S. W. 2d 679, we reversed the judgment and remanded the case for a new trial, for error of the trial court in submitting to the jury the issue whether a partnership existed between Gaston and Westall. We said in that opinion:

‘ ‘ This suit involves an alleged conversion of several head of cattle. . . .

“Appellant, G. P. Shelton, contends that he is the owner of certain cattle which he turned over to Antone Westall under an agreement whereby Westall would receive one-third of the increase, as consideration for looking after the cattle. On the other hand, Westall contends that not only was he to get one-fonrth of the increase but was to be the owner of one-fourth of the entire herd, as consideration for his services.

“Westall, without the knowledge of the appellant, sold one-third of the cattle to appellee, Carl Gaston. Soon after Shelton learned of the sale, he filed suit against Gaston for conversion. Upon trial the jury returned a verdict in favor of Gaston. . . .

“From the pleadings in the case and the testimony of the witnesses, it appears that the only dispute between the parties is that appellant, Shelton, maintains Westall was to receive only one-fourth of the increase from the cattle as a consideration for looking after them, whereas Westall claims that he was to be paid, as such consideration, one-fourth of all the cattle. . . .

‘ ‘ Reversed and remanded for a new trial. ’ ’

The mandate from this court was filed with the Clerk of the Izard Circuit Court March 17, 1953. Thereafter, March 22, 1954, appellant filed motion in effect for judgment on the pleadings and evidence on the former trial, which motion was overruled. On March 28, 1955, more than a year later, appellant filed a second motion which was in effect a renewal of his first motion. This second motion contained this language: ‘ ‘ Said plaintiff [Appellant] now announces to the Court that he will stand upon said motion and still insists upon the same and to his objections and exceptions to the said ruling of the Court and will now proceed no further in this case in this Court.” This motion was also overruled, whereupon appellant refused to plead further and the cause was dismissed.

For reversal appellant argues that the action of the trial court was contrary to the law and the evidence. We do not agree. As indicated under our directive, this cause was reversed and remanded for a new trial. Appellant steadfastly refused to avail himself of the opportunity to try the case again. In this situation the case stands as if no action had been taken, or trial had, in the trial court. Our rule is clearly announced in the situation such as is here presented in Deason & Keith v. Rock, 149 Ark. 401, 232 S. W. 583. We there said: . . . “‘when a cause is remanded broadly for a new trial, all the issues in the case are open for trial anew the same as if there had been no trial. On a reversal of a cause by this court, it seldom occurs that the same is remanded for a new trial; but when such is the direction of this court, then the case stands for trial precisely the same as if there had never been any trial.’ It follows, therefore, from this expression of the court that, unless the direction for a new trial is specifically made upon a part or all of the issues involved, a direction for further proceedings according to law and not inconsistent with the opinion can mean nothing more than to render a decree in accordance with the record made.”

“When on an appeal or writ of error a cause is reversed and remanded for new trial, the case stands as if no action had been taken by the lower court,” Hartford Fire Insurance Company v. Enoch, 79 Ark. 475, 96 S. W. 393. See also Sanders v. Walden, 214 Ark. 523, 217 S. W. 2d 357, 9 A. L. R. 2d 1040.

Judgment affirmed.