author: Paul Wakd, Associate Justice.

text:
    Bryan v. Thomas.
    5-1008
    292 S. W. 2d 552
    Opinion delivered June 25, 1956.

      Talley & Owen and William L. Blair, for appellant.

      Thompson & Stripling and Wootton, Land & Matthews, for appellee.
   Paul Wakd, Associate Justice.

A brief general statement of the facts preceding and leading up to this litigation will help to understand the issues involved on this appeal. Appellants, Vance Bryan and his wife Charlene, constructed the elaborate Jack Tar Hotel Courts in Hot Springs in 1947. In 1950 the properties were incorporated under the name of Jack Tar of Arkansas, Inc. with appellants owning practically all if not all of the stock. Some time thereafter appellants conveyed several parcels of real estate to the corporation. Substantially all of the money for the construction of the said hotel courts was financed initially by the Reconstruction Finance Corporation. Prior to the date of the incorporation appellants found themselves in financial difficulty and at different times borrowed large sums of money from Mr. C. D. Thomas, a resident of Texas. Most of appellants’ negotiations with Thomas were conducted through Mr. Thomas’ attorney, A. J'. Thompson who lived at Nacogdoches, Texas. The first loan, in the amount of $100,000, which Thomas made appellants was secured by a bus station at Kilgore, Texas, a drug store located near the hotel courts, and a piece of property on Lake Hamilton near Hot Springs. On November 23, 1951 (after the incorporation) the several loans made by Thomas to appellants were financed by a note in the total sum of $293,074.67, signed by appellants. This note was secured by the three properties above mentioned and also other properties.

In the fall of 1953 appellants became delinquent on the B. F. C. payments, and in order to avoid a foreclosure, tried to borrow an additional $22,500 from Thomas. Upon Thomas’ refusal Mr. Bryan offered to transfer to Thomas one-half of the capital stock of the Jack Tar Corporation. This offer by Bryan was countered by an offer made by Attorney Thompson that Thomas would accept all of the stock in cancellation of the debt, and an agreement to this effect was prepared. Said agreement was mailed to Bryan on October 22, 1953 and on the following day Thomas and Thompson went to Hot Springs to meet with Bryan and to get the agreement signed.

The testimony regarding what happened at this meeting in the office of the hotel courts on October 24, 1953 has an important bearing upon the issues in this case.

Present at this meeting on October 24 was Thomas, Thompson, Bryan and Arnold Adams. Bryan states that he invited Arnold Adams, an attorney from Harrison, Arkansas, to be present because he knew that Adams had been representing the B. F. C. and he wanted him present for advice. It is admitted by all parties that one of the agreements reached was that the corporation would deed to Bryan all properties on which neither Thomas nor the B. F. C. had a lien. The particular properties involved in this litigation are (a) the drug store located adjacent to other hotel properties; (b) the manager’s home which was directly adjacent to the hotel courts, and; (c) certain properties situated on Lake Hamilton, hereafter called the lake property. It is admitted by all parties that Thomas had a lien on the drug store property and the lake property but that neither Thomas nor the R. F. C. had a lien on the manager’s home. After whatever agreements were reached at this conference, Arnold. Adams was instructed to draw np deeds and papers carrying ont said agreements, and pursuant thereto, he prepared a deed conveying the drug store to appellant Bryan and the lake property to appellant Charlene Bryan. These deeds were sent to Thompson for him to affix the corporate seal, which act he did and returned the deeds. It is the contention of appellants that said deeds were prepared in accordance with the agreement reached by the said parties. It is the contention of Thomas that the said two pieces of property were to be left in the corporation pursuant to the original agreement referred to above, since neither piece of property was clear of liens. Appellants contend that this part of the original agreement was changed during the discussion and that the deeds were prepared in accordance with the changed agreement. Thomas brought this suit to have said deeds cancelled.

A third disagreement between the parties arises out of the conference held on October 24, 1953. In that connection Thomas and Thompson give this version of what occurred: Bryan stated in effect that he had no ready cash, that he would therefore probably lose any property conveyed to him, but that he had approximately $15,500 in checks which the corporation owed him, and that he, Bryan, reached into a drawer and held up a large number of checks representing to them to be in the amount of said sum, and; That Thomas thereupon agreed to take care of said checks by reducing liens against other property belonging to Bryan to the extent of said amount. Bryan’s version of what occurred is, in effect, that the corporation owed him to the extent of approximately $15,500 and that the checks were evidence of part of that amount only.

On April 14, 1955 appellees, C. D. Thomas and Jack Tar of Arkansas, Inc. filed a complaint, with numerous exhibits attached, setting forth in detail the agreements entered into in the office of the hotel court on October 24, 1953 and describing the circumstances under which the deeds above mentioned were executed. Said complaint, insofar as it pertains to the issues raised on this •appeal'as above indicated, alleged: (a) A fraudulent scheme on the part of Bryan to induce Thomas to pay off certain debts and satisfy certain liens on certain described property belonging to Bryan and prayed for judgment in the amount of $7,361.83 against Bryan, including the right of subrogation as to the liens discharged; (b) that Bryan falsely and fraudulently represented that he individually [and not the corporation] was the owner of the manager’s home and thereby induced Thomas to agree to convey to Bryan the lake property in exchange thereof, and the prayer was for the cancellation of the deed by which the corporation conveyed the lake property to Bryan, and; (c) That there was no consideration passing to the corporation or to Thomas for the conveyance, by the corporation, of the drug store to Bryan, and that said purported conveyance was obtained through the fraudulent scheme of Bryan to enrich himself at the expense of Thomas and the corporation, and the prayer was for the cancellation of said deed.

(a) The trial court rendered judgment in favor of C. D. Thomas against appellants in the total sum of $7,361.83 and subrogated Thomas to the rights of the liens which he had satisfied in that amount theretofore existing on a part of Lots 4, 5, 6 and 14 of Block 157 of the United States Hot Springs Beservation (described by metes and bounds in the transcript) and on Lot 8, Block 156 and a part of Lot 9 Block 156 [described by metes and bounds in the transcript] of the United States Hot Springs Beservation. Appellants appeal from a portion of the judgment [$5,361.83] and from the order declaring a lien therefor on specific property. After a careful consideration of all of the testimony bearing on this issue we think the judgment of the trial court should be sustained on this item. Begardless of whether or not Bryan represented, on October 24, 1953, that he had cheeks against the corporation in the amount of $15,500, it does appear from the record, apparently undisputed by appellants, that the corporation was indebted to him in the amount of $7,513.31 as of date June 30, 1953 and that this amount did not include checks which Bryan was holding against the corporation. It is admitted by appellant that he did cash cheeks on the corporation in the amount of $4,889.89. These two items together total only $12,403.20. On the other hand there is evidence from which the chancellor was justified in finding that Thomas paid out approximately $15,000 on behalf of Bryan in addition to the checks which Bryan cashed against the corporation in the amount above stated. Bryan’s own testimony shows that he did not have possession of any checks against the corporation other than those which he cashed in the amount of $4,889.89, and he admits that the latter amount was paid to him by the corporation. The testimony justified the trial court also in finding that Thomas paid off liens on specific properties as above set forth and it was correct in sub-rogating Thomas to all the liens of the former lien holders against Bryan's property.

(b) Some of the testimony and facts relative to the controversy over the manager’s home and the lake property are undisputed, and some are in dispute. It is admitted the title to both pieces of property was in the corporation at the time the agreements were reached on October 24, 1953; that neither Thomas nor the R. F. C. had a lien on the manager’s home but Thomas did have a lien on the lake property; that there was an agreement that Thomas would trade the lake property for the manager’s home, and; that a deed was executed by the corporation conveying the lake property to appellant, Charlene Bryan. There is a sharp disagreement as to other pertinent facts. Thomas contends that on the date above mentioned, Bryan represented that he held title to the manager’s home in his own name, while Bryan denies making such statement and contends that Thomas knew or should have known from the records that the title was in the corporation. Thomas concedes that he did agree with Bryan that the corporation would convey back to Bryan all properties on which neither he nor the R. F. C. had a lien or which were not necessary to the conduct of the business of the hotel courts, while Bryan and Adams state that nothing was said about the property being necessary to the business. If the testimony of Bryan and Adams is accepted then clearly the court was wrong in ordering a cancellation of the deed to Charlene Bryan. This is true because it would make no difference whether the title to the manager’s home was in the corporation or in Bryan since Bryan was entitled to this piece of property under the agreement as they all understood it. A different situation would be presented however if appellees’ testimony is accepted and if this was all the testimony, in which event it would be material to determine whether or not the manager’s home was in fact necessary to conducting the business of the hotel courts.

There are however several facts and circumstances which throw light on the disputed question and we think they are sufficient to call for a reversal of the trial court’s decree. On October 24, 1953, while Thomas and his attorney were in conference with Bryan and Arnold Adams, some kind of an agreement was reached and Adams was to prepare the deeds. Following these instructions Adams prepared a deed by which the corporation conveyed the lake property to Charlene Bryan. This deed was mailed to Mr. Thompson who is Mr. Thomas ’ attorney and who admits that he was looking after Mr. Thomas’ business affairs as well as his legal affairs in connection with this deal. Mr. Thompson had every opportunity to examine the deed and he affixed the seal of the corporation and returned it to Bryan without comment or objection. A casual examination of the description would have revealed the nature of the property. It is a significant fact that Thomas never requested Bryan to deed the manager’s home to the corporation. It would appear to us that if Thomas and Thompson were under the impression that the title to the manager’s home was in Bryan that they would have been intensely interested in seeing that Bryan executed a deed to the corporation in exchange for the deed by the corporation to Charlene Bryan. It is also significant that Thomas in the written agreement executed on October 24,1953, released his lien on the lake property. This fact, we think, stoutly confirms appellants’ contention. This suit by Thomas to cancel the deed by which the corporation conveyed the lake property to Charlene Bryan is based on fraud. In our opinion the evidence falls short of discharging the burden on Thomas to prove such allegation. In this kind of a case fraud is never presumed but must be shown by clear and convincing evidence. The rule is well stated in Ellis v. Ellis, 220 Ark. 639, 249 S. W. 2d 302, involving the cancellation of a deed where the court, after stating “fraud is never presumed” said: “The rule is well settled that before we would he warranted in setting aside, or altering this deed, the burden was upon appellant to show by a preponderance of the evidence that is clear and convincing that fraud had been practiced upon her in procuring its execution. ’ ’

(c) A different situation is presented in regard to the court’s action in cancelling the deed executed by the corporation conveying the drug store to Bryan, and we cannot say its finding is not supported by the testimony weighed under the rule above announced.

As in the ease of the lake property, the deed in question was prepared by Arnold Adams according to the instructions which he is supposed to have received during the conference on October 24, 1953. The deed which Adams prepared and sent to Thompson for the corporate seal contained the descriptions of several parcels of land, some of which were by metes and bounds and rather lengthy. One parcel of land described in the deed was the drug store and it reads: “Lot 9 in Block 154 of Hot Springs Reservation, as surveyed, mapped and platted by the United States Hot Springs Commissioners.” There was nothing, other than this description, to indicate it was the drug store property. It is admitted that Thomas had a lien on the drug store property. It is likewise undisputed that neither of the three written agreements provided for a conveyance of this property from the corporation to Bryan, or for releasing Thomas’ lien thereon. This fact we consider most persuasive against appellants’ contention herein. It would seem strange indeed that four intelligent people would draft three separate written agreements summarizing four or five hours of discussion, and overlook an item of the importance and value of the drug store here involved. It is contended however by appellants that there was an oral agreement, aside from the written agreements, that the drug store property would be deeded to Bryan. Appellees positively deny that any such agreement was made.

It appears to us that the most significant and vital testimony revolves around the dispute as to whether or not Mr. Thompson, Thomas’ attorney, made a partial draft of a deed which was supposed to have been given to Arnold Adams as a part of his instructions, and which partially prepared deed contained the legal description of the drug store with the words “drug store” written in bold letters at the beginning of the legal descriptions. A photostatic copy of this partially prepared deed was introduced in the record and is made an exhibit to appellees’ brief. Mr. Thompson denies that he prepared this instrument but Mr. Adams is of the opinion that he did prepare it. If we were convinced that Mr. Thompson prepared the instrument, knowing it contained a description of the drug store, we would certainly be strongly persuaded that the chancellor’s ruling was against the evidence. We do not question but that Mr. Adams is sincere in believing that Mr. Thompson did prepare the questioned instrument but a careful reading of the record convinces us that Mr. Adams must have been misled by someone.

It appears from the testimony that all parties were in a room and that there was only one typewriter in the room, and that the two supplemental agreements were written on that typewriter at that time, and, further, that the partial deed in question was written on the same typewriter. Adams states that he is not sure who handed the questioned instrument to him, but he is sure that he did not write the words “drug store” on the face of the instrument but that he did make other penciled notations on the margin which appear in the photostatic copy. A careful examination of the said photostatic copy and a comparison of it with the original two supplemental agreements makes it impossible for us to believe that they were all written on the same typewriter. The typing used on the agreements appears to have been written on a machine with pica type while the questioned instrument appears to have been written on a machine with elite type. This comparison also shows that 60 spaces on the machine writing the agreements extends approximately one-half inch farther than 60 spaces on the machine which wrote the questioned instrument. It further appears that there is a rather marked but distinct dis-similarity in certain letters and figures found in the agreements and the questioned instrument. There can be no doubt, for instance, that the typewriter which made the figures “5 and 8” on the questioned instrument was not the same typewriter which made the same figures on the other instruments.

The deed from the corporation to Bryan conveying the drug store property was, as above indicated, written by Mr. Adams in his office at Harrison and was mailed to Mr. Thompson on October 29, 1953. At the same time Mr. Adams wrote a letter to Mr. Thompson at Nac-ogdoches, Texas which he enclosed with the deed. In this letter he stated: “Enclosed are corporation warranty deeds conveying that part of Jack Tar of Arkansas, Inc. which was not under mortgage to either the R. F. C. or Mr. Thomas.” (emphasis supplied) It is admitted, of course, that the drug store did not fall within this classification. While Mr. Adams explained that this was just a mistake on his part, yet the fact remains that this statement in the letter was misleading to Thompson and may account for his failure to examine more carefully the descriptions in the deeds, it being remembered that the words “drug store” were not a part of the description. Appellants call our attention to the fact that Bryan, as manager of the hotel courts, made regular monthly reports to Thompson of all proceeds derived from the business and that none of the reports showed any proceeds from the drug store. Mr. Thompson’s explanation of this is that he was only interested in the gross receipts from the entire business and attached no significance to the source from which they were derived.

In view of what has above been set forth, and after a carefnl consideration of all of the testimony, we are unable to say that the trial court was in error in decreeing a cancellation of this deed.

We cannot agree with appellants’ contention that the court erred in terminating their right of redemption. In paragraph 4 of the original agreement executed on October 24, 1953 Bryan was given ‘ ‘ an option to refund or refinance the indebtedness of said corporation and . . . shall have 12 months from the date hereof in which to do so . . .” This was followed by certain conditions that Bryan would pay to Thomas all funds due him including interest, expenses and attorney fee. Paragraph 5 of the agreement provides in effect that this right of redemption was subject to the right of Thomas to sell the property for $1,200,000.00 and, after paying all debts and expenses, remit to Bryan the balance. We do not think the latter clause in any way extended the 12 month period in which Bryan had a right to redeem. The question here considered is further complicated however by a paragraph in the supplemental agreement in which Thomas stated: “I further agree that if sale is not made within the twelve months provided in the contract, but is sold by me at any time thereafter, that you will receive your then equity in the property in cash or its equivalent.” Notwithstanding the above quoted provision, we have reached the conclusion, after a careful consideration of all of the provisions in the different agreements and letters, that appellants were entitled, at most, to a reasonable time in which to redeem. Certainly there must be some terminating point. As was stated in the case of McCollum v. Niemeyer, 142 Ark. 471, 219 S. W. 746, where a similar issue was under consideration: “We think it would be a strained construction to say the clause meant that appellant should have all time, or forever, in which to make the election.” This suit was filed approximately one and one-half years after appellants were granted the right to redeem, yet it appears that they have not attempted to avail themselves of that right. Under these circumstances we are unwilling to say that the court was not justified in terminating appellants’ right to redeem.

It is ably insisted by appellants that the entire decree of the trial court should be reversed for the reason that this litigation was barred under the doctrine of res judicata. This contention is based on the fact that on April 30, 1954 the Jack Tar of Ark., Inc. brought an injunction suit against Bryan to prevent him from cutting off the thermal waters from the hot springs to the Jack Tar Bathhouse. We think however there are at least two reasons why appellants’ contention in this matter cannot be sustained. In the first place C. D. Thomas and Charlene Bryan, who are parties to the instant litigation, were not parties to the injunction proceeding. Another reason is: In his answer to the injunction suit Bryan made certain allegations relative to the original agreement entered into on October 24, 1953, heretofore referred to, and on motion of Jack Tar of Ark., Inc. these allegations on the part of Bryan were stricken from the answer as not germane to the suit. This had the effect of confining the issues to the right of Bryan to cut off the flow of water, and for that reason the injunction suit could not be res judicata of the issues involved in this litigation.

It is therefore our conclusion that the decree of the trial court should be, and it is in all things hereby affirmed, except that it is reversed insofar as it decreed a cancellation of the deed conveying the lake property to Charlene Bryan. Since the trial court should make the proper orders to restore the lake property to Charlene Bryan this cause is remanded for that purpose only.


source: Caselaw Access Project

author: Paul "Ward, Associate Justice.

license: Public Domain

text:
    Twin City Lines, Inc. v. Cook.
    5-1018
    291 S. W. 2d 810
    Opinion delivered June 25, 1956.

      Harper, Harper & Young, for appellant.

      Hardin, Barton, Hardin & Garner, for appellee.
   Paul "Ward, Associate Justice.

Two main questions are presented by this appeal. One is the effect of a Motion for New Trial in connection with the appeal procedure under Act 555 of 1953 and the other is the sufficiency of the testimony to justify an instruction permitting recovery for permanent injury.

On January 30,1955 appellee, Tressie Mae Cook, was injured while riding in a bus operated by appellant in the City of Fort Smith. No question is raised here as to appellant’s liability for the injury, and there is little, if any, conflict in the testimony relating to the extent of the injury. There is however a dispute, later discussed, as to whether the testimony indicates a permanent injury.

On a complaint by Tressie Mae Cook alleging injury to her right knee and leg, a linear fracture through the neck of the femur of her right hip, resulting in hospitalization, an operation and consequent pain and suffering now and in the future, in which complaint her husband joined alleging the loss of the services and the consortium of his wife and that he had been caused to expend large sums of money for hospital, doctor and medical expenses and would have to continue to do so in the future, the jury awarded a verdict in favor of Mrs. Cook in the amount of $10,000 and in favor of Mr. Cook in the amount of $2,000.

The trial court, among other instructions not here questioned, told the jury by Instruction No. 23 that it could, in awarding damages to Mrs. Cook, take into consideration “any pain or suffering which she may sustain or suffer at the present time or in the future” and “whether the injuries, if-any, are temporary or permanent. ’ ’

To the above instruction appellant at the time objected as follows: “We object specifically to the submission of the question of permanent disability or permanent loss. There is no proof that she will lose any earnings as a result of this in the future. The defendant specifically objects to the submitting of the issue of permanent disability or of loss of future earnings . . . for the reason that there is no proof that she will sustain any permanent diminishment of her earning capacity.” THE COURT: “That is overruled and your exceptions saved.”

Motion for Neto Trial. In taking this appeal appellant complied with all the requirements of the new procedure under Act 555 of 1953, and in addition thereto he filed a Motion for New Trial. In this motion, however, appellant made no mention of the court’s alleged error in giving the instruction set forth above. Appellees insist that appellant, cannot now be heard to complain of the alleged erroneous instruction for the reason that it was not carried forward in said motion. This procedural question is presented to this court for the first time, but to us it is clear that appellees ’ contention cannot be sustained. Section 11 of the aforementioned act states that: “No Motion for a New Trial and no assignment of errors shall be necessary.” In lieu thereof said act provides, in Section 8, for a designation of proceedings and evidence to be contained in the record on appeal and, in Section 21, for the method of making known to the court the objections to its rulings. Under the rules recently adopted by this court the latter method is the standard procedure for perfecting appeals. If appellant had made no motion for a new trial there could he no question about it having properly perfected its appeal and its right to urge error on the part of the court in giving the above mentioned instruction. It would be a strained construction of said Act 555 to hold that appellant is in a more disadvantageous position by having filed a defective motion for a new trial than he would have been in if he had filed no such motion at all. We therefore hold that appellant has properly raised the question of the propriety of the trial court’s instruction above set forth.

Sufficiency of the evidence. Appellant strongly and ably urges that the record contains no evidence to justify the giving of Instruction No. 23. In support of this contention appellant quotes extensively from Missouri Pacific Transportation Company v. Kinney, 199 Ark. 512, 135 S. W. 2d 56, where this court in a somewhat similar situation, among other things, said: “Before such a recovery can be allowed, the permanency of the injury must be made to appear from the evidence with reasonable certainty and that future pain and suffering-are inevitable and if they appear to be only probable or uncertain they cannot be taken into the estimate.” The same opinion quotes with approval from another decision this language: “The testimony, viewed in the strongest light in favor of appellee, does not make it reasonably certain that Wharton Bird was permanently injured. Unless there is testimony tending to show with reasonable certainty that the injury is permanent, the court should not permit the jury to assess any damages for permanent injury.” Appellant then, in attempting to show that the testimony in the case under consideration did not come up to the standard announced in the above quoted rules, sets out portions of the testimony of Dr. W. E. Knight who treated Mrs. Cook:

“Q. If I understand you correctly, doctor, there’s nothing in Mrs. Cook’s present medical picture that indicates anything to you except a perfect result. Is that right? •
A. That is right.
Q. And this other possibility that you have described which yon say occurs in a certain percentage of these cases, is purely speculative. Is that correct?
A. That’s right.
Q. You find nothing in her condition to base an opinion that that might occur?
A. I don’t expect it to happen to her.
Q. So there’s nothing there to cause you to suspect it, is there?
A. No.
Q. But you would have to speculate as to whether she’d have any disability or not, wouldn’t you?
A. That’s very speculative; yes.
Q. And there’s nothing in her present condition, or the studies you have made of her, to indicate that she will obtain anything other than a perfect result?
A. That’s what we hope and expect.
Q. But wouldn’t the answer to my question be that there’s nothing there—
A. Mr. Harper, I can’t answer that yes or no, because that woman deserves that, and any hip has to be watched that period of time.
Q. I understand that, doctor, but isn’t it true that there’s nothing there at present that you can see or detect that indicates anything but a perfect result ?
A. That is right.”

We have given careful consideration to the above quoted testimony and judicial announcements, and have reviewed the fact situation in the above cited opinion, but have reached the conclusion that other evidence and circumstances disclosed by the record justified the trial court in giving the instruction complained of. In viewing this case as a whole we must keep in mind we have on numerous occasions announced the rule that on appeal the evidence must he viewed in the light most favorable to appe.liee and that we must give every deducible inference therefrom which the jury might have believed or accepted as true. In the recent case of Wilson v. Morse Mill Company, 225 Ark. 405, 282 S. W. 2d 803, this court reaffirmed the well established rule that “... we must affirm where there is substantial evidence to support the judgment, ’ ’ and we also said that: ‘ ‘ This court gives evidence adduced on behalf of the prevailing party the strongest probative force it will reasonably bear.”

Viewed under the above rules, there is in this record testimony from which the jury could have found: Mrs. Cook was injured on January 30, 1955 and suffered pain until she was admitted to the hospital on February 5, 1955 at which time she was placed in traction; Three days later an incision was made in her hip and a metal screw approximately 4 inches in length was inserted into her hip bone; She remained in the hospital until February 21, 1955 when she was allowed to return home; The incision did not heal properly and her hip was very tender and painful; On recommendation of her doctor that exercise might relieve the soreness she returned to her usual work as a waitress on June 27, 1955; By July 23, 1955, she had to discontinue work on account of severe pains and was so sick that she was unable to see a doctor until August 3, 1955; At that time she was given an injection to ease the pain and she resumed work from August 23 to September 18, 1955 when the pain again forced her to quit; In October she was again hospitalized and another incision was made in her hip when the screw was removed, and; On November 2, 1955, at the time of the trial, Mrs. Cook still walked with a decided limp because of the injured leg, the involved area was swollen, she was still experiencing pain, and she was unable to work. Dr. Knight testified that it would take at least 6 or 8 weeks for Mrs. Cook to recover completely from the surgery, and that for a period of from 3 to 5 years it would be necessary for her to be under the surveillance of a bone specialist and to be checked every 6 months during that period of time. The doctor also stated that it would be necessary to take two x-ray pictures at each checking, at an average cost of $10 to $15 each; that his clinic would perform these services without additional charge since she was his patient, but that if she were forced to seek the services of another physician regular charges would be made. As to the permanency of Mrs. Cook’s disability the doctor had this to say:

“A. That’s an impossible question to answer yes or no. Anybody that has a broken hip even though they get perfect results, which we expect Mrs. Cook to get, it should be observed and watched, with serial x-rays for a period of three or even up to five years from the time of the injury, because a certain number of these hips lose their blood supply, and this head dies and two or three years afterwards, even though they’ve been walking on it with no limp, they will develop pain in the hip and we take an x-ray and find that this round ball, the head of the femur, has begun to disintegrate and get soft and flat.
Q. "What percentage of disability doctor, would she have, assuming the best result over this three to five year period you’re talking about?
A. That’s another question that you can’t absolutely put down in mathematical numbers, but I would say that if she got a perfect result, she would have at the very most not over 10% disability of that leg. Now, that’s not of the body as a whole but only to that leg.”

From the above it is our conclusion that there is substantial evidence to justify the trial court’s instruction herein complained of.

Appellant insists however, regardless of our views above expressed, that the judgments rendered in favor of appellees are excessive. We are not persuaded by appellant’s argument that, after deducting $1,000 for the 10% disability, the remaining $9,000 was excessive. In the first place we have no way of knowing what portion of the judgment the jury awarded for permanent injury and future pain and suffering. As we have said heretofore, there is no exact rule by which payment for suffering may be measured by a monetary standard. On the whole we cannot say that the verdict in her favor was excessive nor do we think the judgment for $2,000 in favor of Mr. Cook is excessive. Not only has he already been forced to expend approximately $1,000 for medical and hospital bills but there is a likelihood he may have to expend more in the future, and he has been deprived, and will in the future be deprived, of his wife’s services.

Affirmed.


author: Sam RobiNSON, Associate Justice.

text:
    Rhea v. State.
    4835
    291 S. W. 2d 521
    Opinion delivered June 25, 1956.

      Kenneth C. G of felt, for appellant.

      Tom Gentry, Attorney General, Ben J. Harrison, Asst. Atty. General, for appellee.
   Sam RobiNSON, Associate Justice.

Appellant was convicted of the crime of grand larceny; he was charged with stealing an automobile. On appeal, it is contended that the trial court erred in admitting evidence that appellant committed other crimes similar to the one for which he was on trial. In arguing before the trial court the admissibility of evidence of other crimes, the prosecuting attorney said: “The purpose of calling said witness is to show a scheme or design on the part of defendant in the commission of crimes and for no other purpose. It is a separate and distinct offense.” Over the objection and exception of the appellant, the State was then permitted to introduce evidence that the appellant had stolen two other ears at times subsequent to the offense for which he was then on trial.

In many cases, this court has been confronted with the question involved here. In Alford v. State, 223 Ark. 330, 266 S. W. 2d 804, a judgment of conviction was reversed because evidence of the commission of another offense of a similar nature was admitted at the trial. In that case, it was pointed out that the question had been considered by us more than one hundred times, and prior decisions were reviewed extensively. We can add nothing to what was said in the Alford case, and it is controlling here. The evidence of other offenses was not admissible.

Reversed.

Mr. Justice McF addiN concurs. Mr. Justice Millwee dissents.


author: Sam RobiNsoN, Associate Justice.

text:
    Block v. Terry.
    5-1019
    291 S. W. 2d 520
    Opinion delivered June 25, 1956.

      Talley & Owens and William L. Blair, for appellant.

      Dave E. Witt, for appellee.
   Sam RobiNsoN, Associate Justice.

This is a suit by real estate agents for a commission. It is alleged that the principal violated his contract to sell; a jury was waived; the conrt held against the agents and they have appealed.

Raymond E. Block, Sam A. Block and Lewis S. Block, doing business as the Block Realty Company, entered into an agreement with John W. Terry to sell for Terry Lot 10, Block 3, Sheldon’s Addition to the City of Little Rock, for the price of $8,500. Appellants were to receive $425 as their commission. Appellants obtained as purchasers for the property Samuel Wilkins and his wife, Moliee; but the Wilkins’ offer of purchase was conditioned on their obtaining an $8,000 loan. In preparing to make the loan the lending agency had the lot surveyed, and it was discovered that a driveway used by the occupants of Lot 10 was not located altogether on that lot, but part of the driveway was on the adjoining Lot 9, which is owned by the father and mother of John W. Terry, appellee. Before the lending agency would complete the loan to Wilkins, it required that the owners of Lot 9 execute an easement on that part of the lot on which the driveway was situated. The owners of Lot 9 refused to give an easement, and the sale of Lot 10 was not completed.

It is contended by the real estate agents that the deal fell through because appellee Terry refused to convey Lot 10, but the finding of the court that the actual reason for the sale not being completed was that no easement could be obtained on Lot 9 is supported by substantial evidence. The record is convincing that the lending agency would not lend the money to Wilkins to buy the property unless an easement for the driveway was obtained from the owners of Lot 9.

Terry’s contract pertained to Lot 10, and he stood ready and willing to convey that lot, but he had made no agreement with reference to Lot 9; He could do nothing about obtaining an easement from the owners of Lot 9, nor did his contract obligate him to do so.

Affirmed.


author: Lee Seamster, Chief Justice.

text:
    Deason v. Boston Store Dry Goods Company.
    5-983
    292 S. W. 2d 261
    Opinion delivered July 2, 1956.

      PauhE. Gutensolm, Warner, Warner & Ragon and Hardin, Barton, Hardin & Garner, for appellant.

      Shaw, Jones & Shaw, for appellee.
   Lee Seamster, Chief Justice.

Appellant, Grace Dea-son, brought suit against appellee, Boston Dry Goods Company, to recover damages for physical injuries alleged to have been sustained by her from a fall she suffered while a customer in appellee’s store. The negligence complained of was that on the first day of April, 1953, at approximately 9:45 a. m., the appellant entered appellee’s store, made a purchase and started up the basement stairs, when she slipped on some foreign substance on the stairway. Appellant alleges (1) that the appellee carelessly and negligently allowed a foreign article to remain upon said stairs, when it knew, or by exercise of ordinary care, should have known that the same was in an unfit condition for customers using said stairway; and, (2) appellee carelessly and negligently allowed said stairs to be so highly waxed and polished that same were slick and highly dangerous to customers, and particularly to the appellant. The appellee answered with a general denial.

At the conclusion of the testimony, the trial court instructed the jury that the appellant had failed, as a matter of law, to meet the burden of proving that there was some foreign substance on the stairway, and under the circumstances, the jury should not consider any allegations of a foreign article being on the stairway in determining whether the appellee was guilty of negligence. The court did submit to the jury the issue of whether or not the appellee’s stairway was so highly waxed and polished as to be slick and dangerous to customers. The jury considered this issue and returned a verdict in favor of appellee. This appeal follows.

For reversal, the appellant contends (1) the court erred in sustaining the appellee’s motion for a directed verdict for the appellee’s negligence as to the foreign article on its stairway, and (2) the court erred in instructing the jury that they were to disregard any evidence as to a foreign article being on appellee’s stairway.

The appellant testified: “I started up the steps — and when my foot hit the second step — my right foot — it hit something, I would not say what, but it just rolled enough to start me, and I tried to catch with my other foot, and my other foot hit that slick step and I slid — it was slick as glass, and I slipped the complete length of that, and my left foot hit the side of the wall over there and turned my foot.”

The record reveals that the accident occurred shortly after the store had opened for business that morning and there is a complete lack of testimony as to whether any other person besides the appellant had used the stairway that particular morning, before the accident. There is evidence to the effect that the store cleaning crew had polished the floors and stairway the night before the accident. But there is a complete lack of evidence as to what type of foreign article the appellant slipped on and how long this article was permitted to lie on appellee’s floor.

On .the record presented, we have reached the conclusion that the trial court was correct in directing the jury not to consider any allegations of a foreign article being on the stairway in determining whether the ap-pellee was guilty of negligence.

This court in Kroger Grocery and Baking Company v. Dempsey, 201 Ark. 71, 143 S.W. 2d 564, a case involving injury to a customer, said:

“It must be conceded under the testimony that ap-pellee stepped on a banana peel and fell. We think, however, after a review of the testimony, that there is an absence of any evidence as to how the banana peel came to be upon the floor or how long it remained there prior to appellee’s fall.
“It seems to be uniformly held in cases of this character that where a customer falls as a result of slipping upon some foreign object or substance, and there is no substantial proof showing that the store owner knew of its presence, or in the exercise of ordinary care should have known of its presence, there can be no recovery. In other words, it is necessary to show by substantial testimony the length of time the object had been on the floor or that it got there through the negligence of the defendant or its employees, negligence is never presumed, but must be proved by the party alleging it.” See also Davis v. Safeway Stores, Inc., 195 Ark. 23, 110 S. W. 2d 695; Safeway Stores, Inc., v. Moseley, 192 Ark. 1059, 95 S. W. 2d 1136.

We think the rule laid down in these cases controls here.

Affirmed.


text:
    Thomas, Administratrix v. Costello.
    5-1024
    292 S. W. 2d 267
    Opinion delivered July 2, 1956.

      Sidney 8. Taylor, for appellant.

      P. E. Dobbs and Mitchell & Mitchell, for appellee.
   Lee Seamster, Chief Justice.

The appellant, Lucille Baldwin Thomas, Administratrix of the estate of Helen Carpenter, deceased, has appealed from a decree of the Garland Chancery Court, which held that appel-lee, C. C. Costello, Jr., is an heir at law by equitable adoption of Mrs. C. C. (Barry) Costello and is entitled to one-third of the property owned by Mrs. Costello at the time of her death. Mrs. Costello died intestate on December 29, 1947.

The facts as developed by the evidence reveal that Mrs. Costello was married to Alonza Carpenter and two daughters were born of this union, Helen Carpenter, who never married, and Bopeep Carpenter, who at the time of Mrs. Costello’s death was Mrs. Harry Bledsoe, an who is now Mrs. M. S. Nelson. After Mr. Carpenter’s death, Mrs. Costello married C. C. Costello. Mrs. Costello, accompanied by her daughter, Bopeep, went to Little Kock in 1925 and at that time the appellee, who was then six weeks old, was given to Mrs. Costello by his natural mother, Idee Maroney. The appellee was taken into the Costello home in Hot Springs and reared as her natural child. He was held out to the public as Mrs. Costello’s son and was given the name C. C. Costello, Jr. Appellee went through school and served in the army under such name. Most of the members of the family knew the true status of appellee but he was not told that Mrs. Costello was not his natural mother.

On December 29, 1947, Mrs. C. C. (Barry) Costello died intestate. The appellee was then over 22 years of age. Mrs. Costello’s daughter, Bopeep, was appointed administratrix of her mother’s estate. At this time the appellee was working for Bopeep’s husband, as well as living in their household. Bopeep listed only two heirs in the application for administration of her mother’s estate, herself and her sister, Helen Carpenter. C. C. Costello, the second husband of Mrs. Costello, died when appellee was about two years old. Bopeep fully administered the estate of her mother and the final settlement was approved by the G-arland Probate Court on April 18, 1949.

There was no personal property to distribute to the heirs after payment of debts and costs, however, the deceased left some real estate which was located in the City of Hot Springs. The two sisters, Bopeep and Helen, took charge of their mother’s real estate, collected rents and paid the taxes. They later sold two houses and kept the money derived from the sales.

At the time of the trial, Bopeep had possession of the remainder of the real estate, which consisted of one lot upon which five rental houses were located. Helen Carpenter died intestate on April 5, 1954, leaving her sister, Bopeep, as her sole heir.

The appellant was duly appointed administratrix of Helen’s estate, which included her interest in the real estate left by Mrs. Costello and possibly twenty-five dollars, after payment of debts.

The appellee testified that the discovery by him of two instruments in a. deceased aunt’s suitcase was the first information he had that he was not the natural son of Mrs. Costello. One of these instruments was a written statement, signed by Idee Maroney in the presence of two witnesses, under the date of June 18, 1925. In this letter Idee Maroney relinquished all rights to- the appellee and gave him to Mrs. Costello to be adopted. The second instrument was another letter written by ap-pellee’s natural mother, Idee Maroney, in which she stated that she was leaving Little Rock and expressed appreciation to Mrs. Costello for ‘ ‘ What you did for me. ’ ’ She stated further in the letter, “I give him to you and he surely belongs to you . . . you do just what you want to with the boy, it will be all right with me.” The letter and statement were contained in an envelope addressed to Mrs. C. C. Costello in Hot Springs; the stamped date on the envelope was blurred. The appellee also testified that the two daughters of Mrs. Costello paid him five hundred dollars from the proceeds of a $5,000 life insurance policy that Mrs. Costello left to her daughters as beneficiaries.

On August 16, 1954, the appellee filed an ex parte petition in the Garland Probate Court, to reopen the estate of Mrs. C. C. (Barry) Costello so that he could have his interest as an heir determined; he claimed that he was entitled to one-third of Mrs. Costello’s estate by reason of equitable adoption. E. C. Thacker was appointed special administrator and the estate was reopened. The instant suit was filed by appellee against Lucille Baldwin Thomas, administratrix of the estate of Helen Carpenter, deceased, and E. C. Thacker, special administrator of the estate of Mrs. C. C. (Barry) Costello. Bopeep Nelson was not made a party to this suit.

The evidence reveals that appellee was never adopted by Mrs. C. C. (Barry) Costello, in the manner as provided by statute, Sections 56-101 to 56-120, inclusive, Ark. Stats. 1947. Mrs. Costello reared and held the appellee out as her natural son. However, no evidence was introduced to prove that Mrs. Costello ever agreed to adopt appellee. Our court has many times held that in an attempt to prove a contract to adopt a person, the burden of proof rests with the person claiming the benefit of an alleged contract for adoption, to establish it by clear, cogent and convincing evidence. Stanley v. Wacaster, Administrator, 206 Ark. 872, 178 S. W. 2d 50; O’Connor v. Patton, 171 Ark. 626, 286 S. W. 822.

The Chancery Court is without authority to declare appellee an heir of Mrs. C. C. (Barry) Costello, by equitable adoption. This court held in Cooper v. Bradford, 196 Ark. 327, 117 S. W. 2d 719 that: “The mere contract to adopt is not sufficient of itself to make the child a legal heir of the promisor, because the right to take as heir exists only by operation of the law.” The court in the same case further said: ‘ The right of inheritance, as such, is conferred in our state upon pursuing the special statutory proceeding for adoption.” Citing Morris v. Dooley, 59 Ark. 483, 28 S. W. 30; Chehak v. Battles, 133 Iowa 107, 110 N. W. 330, 12 Am. Cas. 140, 8 L. R. A. (N. S.) 1130.

The decree of the Chancery Court is reversed and the complaint is dismissed.


author:
Lee Seamster, Chief Justice.
      Ed. F. McFaddiN, Associate Justice

text:
    Latham v. Hudson, County Judge.
    5-1005
    292 S. W. 2d 252
    Opinion delivered July 2, 1956.

      Walter L. Brown and Robert C. Compton, for appellant.

      Bruce Bennett and Wm. I. Prewitt, for appellee.
   Lee Seamster, Chief Justice.

Appellant, J. H. Lath-am, filed a suit in Chancery Court of Union County, First Division, against Frank Hudson, County Judge, and Horace Williamson, Union County Supervisor of Schools. The other appellant, Howard H. Horne, filed an intervention in the same suit, seeking the same relief and bringing in these additional defendants: Perry Long, Treasurer of Union County, The Arkansas Appraisal Service Company, Inc., also Horace Williamson, W. R. McHaney and E. H. Davidson, as members of the Board of Equalization of Union County, Arkansas.

The purpose of the suit was to enjoin the defendants from carrying out an alleged contract entered into by and between the County Court of Union County, as party of the first part, the Board of Equalization of Union County, party of the second part, and the Arkansas Appraisal Service Company, Inc., party of the third part. In the contract the party of the third part agreed to perform the following services.

‘ ‘ 1. Compile a list of record owners of the city real and personal property and of the rural real and personal property wherever situated or located in said Union County, Arkansas, as of January 1, 1955, wherever possible and as of January 1, 1956.
“2. Make a survey and appraisal of the city and rural real property wherever situated or located in said Union County, Arkansas, such surveys and appraisal to include all improvements and timber located thereon.
“3. Make a survey and appraisal of all commercial inventories and other personal property except autos, furniture, monies in the hank, farm livestock and equipment, and all items of personal effect.
“4. Make a survey and appraisal of all minerals in commercial production and the properties of all related industries.
“5. Make a survey and appraisal of all other real and personal property wherever located in Union County, Arkansas, except for all property assessed by statute by the Arkansas Public Service Commission.
<£6. Procure all information possible and available for the use of first or second party when second party is sitting as the Board of Equalization of Union County, Arkansas, and to provide service as a witness and professional aid to the Board in its hearings and in any litigation arising from any assessments made on the basis of information furnished by third party.
“7. Provide second party with a record of all appraisals made; such records to contain (a) photographs of all real estate improvements estimated to be of more than $1,000.00 in value, (b) land descriptions, (c) record ownership (d) description, size, type of construction and area of buildings and, (f) the computation of the appraisal value of the property described.
‘ ‘ 8. Furnish second party with all reports, records and pertinent data prepared or obtained by third party in carrying out the duties imposed hereinabove, such reports, records and pertinent data to become the property of second party upon completion of the appraisal work covered herein, and to provide second party with a summary report of findings upon completion of the said appraisal work, such report to be prepared and bound in any form devised by second party.
“ Furthermore, it is agreed that the above recited compilations, surveys, appraisals and services shall be accomplished by third party on or before the third Monday in October, 1956.
“Recognizing that the cooperation of the parties hereto is of special importance in agreements of this character, the Board of Equalization and the County Court of Union County, Arkansas, expressly agree to use all of their lawful powers in carrying out the purposes of this agreement.
“It is understood and agreed by and between the parties hereto that this instrument is a contract of employment by and between the County Court as the primary employer, the Board of Equalization as the secondary employer and the Arkansas Appraisal Service Co., Inc., as the third party. If, for any reason, it should be held that first party or second party is an improper party to this agreement or is without power to enter into this agreement, then it is hereby expressly agreed that this shall be a binding contract between the legal parties herein accordance with all of the provisions herein.”

The contract also provided that the third party would be paid the total sum of $125,000, payable at the rate of $6,250 each month for a period of 20 months. The money was to be paid after an audit of the accounts by the County Court and out of the County General Fund.

The complaint further alleged that by proper resolution of the School Board of Union School District No. 2, and other school districts, municipalities and taxing units in Union County, by proper resolution, had agreed, by resolution with the County Court of Union County, to pay a specified amount each month out of each taxing unit’s funds into the General County Fund for the purpose of paying each taxing unit’s proportionate part of the cost of procuring the appraisal as provided in said contract.

The points raised on appeal are as follow:

1. Act 371 of 1955 is void for the reason that it takes from the County Court the exclusive jurisdiction over the expenditure of county funds.

'2. The County Court had no authority to execute the contract.

3. Money is being paid out under the provisions of the contract without a valid appropriation by the Quorum Court of Union County, Arkansas.

4. The contract is void for the reason that it calls for the diversion of tax moneys from the purposes for which the money was levied and collected, in violation of' the Constitution and Statutes of the State of Arkansas.

Section 5, Article 16 of the State Constitution provides: “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the G-eneral Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another.”

From this section, it is clear that the Legislature has not only the right, but it also has the duty to prescribe by law the manner in which the value of property shall be ascertained, for taxing purposes, making the same equal and uniform throughout the State.

The several General Assemblies, in recent years, have passed various acts in an effort to accomplish the Constitutional provision to equalize property taxes. Some of these Acts are: Act No. 9 of 1951, Special Session ; Act 371 and Act 153 of the Acts of 1955; and, Act No. 351 of 1949. All of these Acts pertain to the assessment of property and to the adjustment of such assessments in an attempt to make them equal and uniform throughout the State.

Act 153 of 1955 provides, among other things, that the Public Service Commission may cause the State turnback or aid withheld from any county, municipality or school district that fails to adjust and equalize assessments on property at ninety per centum (90%) of twenty per centum (20%) of the true, actual and full market value.

Under Act 153 of the Acts of 1955, the Arkansas Public Service Commission, through its Assessment Coordination Division, is empowered and directed to assist the several assessors in the State of Arkansas, in the assessment of property for tax purposes. This assistance is limited to recommendations and' advisement since the division has no authority to make the assessments. The division is directed to coordinate the work of the assessor and the county equalization hoards, with the purpose in view of causing all property in the State to he assessed in an equal and uniform manner. The Commission is also given authority to compel the county officers of this State, by mandamus, to perform their duties and assess all of the property in conformity with the law.

Section 22-601, Ark. Stats., 1947, provides: “The county court of each county in this State shall have the following powers and jurisdictions:' Exclusive original jurisdiction in all matters relating to county taxes . . . to disburse money for county purposes, and all other cases that may be necessary to the internal improvement and local concerns of the respective counties.”

By the passage of Act 153 of 1955, the Legislature has made it mandatory on the counties to procure a property assessment and valuation of all property assessed for tax purposes, so that the same is equal and uniform. Each county is compelled to perform its duty under the act or suffer the loss of a portion or all of the State’s turnback or aid to said counties, or the taxing units therein.

From what has already been said, it is obvious that •the Legislature has placed a heavy burden upon the county courts. We cannot conceive that the framers of our Constitution and the members of our several general assemblies meant to place this heavy burden on the county courts and at the same time deny them reasonable means for discharging such burden.

We hold that the county courts have the power and authority, under the general powers conferred upon them by our State Constitution and legislative acts, to enter into contracts for the employment of professional appraisers. The county court has the right to determine the necessity for the employment of professional appraisers and to fix the compensation to be paid for their services. See Strawn v. Campbell, County Judge, opinion of this Court, May 28, 1956, 226 Ark. 449, 291 S. W. 2d 508, State Use of Prairie County v. Leathem and Company, 170 Ark. 1004, 282 S. W. 367; Section 28, Article 7, Constitution of Arkansas; Section 22-601, Ark. Stats., 1947.

It is unnecessary to pass upon the constitutionality of Act 371 of 1955 since (1) the question was not raised in the trial court, and (2) in the instant case the county court had the power to enter into a valid contract under the provisions of other sections of our statutes enumerated above.

There is no merit in the contention that money was paid out under the provisions of the contract, without a valid appropriation by the quorum court. The complaint alleges that an appropriation was made by the quorum court. That appropriation is valid since the law requires the quorum court to make an appropriation for such purposes. See Section 17-409 (6), Ark. Stats.,-1947. The contract was re-executed after an appropriation was made by the quorum court; therefore, it is a valid contract. Craig v. Grady, 166 Ark. 344, 266 S. W. 267.

We do not agree with appellants’ contention that the monies to be expended under the terms of the contract herein constitute a diversion of tax monies from the purpose for which the money was levied and collected. The State Constitution, Section 5, Article 16, clearly gives the General Assembly the authority to require the county and its taxing units to pay their pro rata share of the costs of assessing property, a portion of which may be applied to the expenses of employing professional appraisers. Strawn v. Campbell, County Judge, supra; County Board of Education v. Austin, 169 Ark. 436, 276 S. W. 2.

Finding no error, the decree is affirmed.

Mr. Justice McFaddxN- dissents.

Ed. F. McFaddiN, Associate Justice

(Dissenting). As I understand the majority opinion in this case, it holds on two points:

I. The majority says that there have been a number of Acts passed by recent Legislatures, all looking to the matter of equalizing assessments of values; and, without deciding what is unconstitutional in any of these Acts, the majority says that it finds enough legislative authority from various portions of these enactments to support the legality of the contract here involved. I refer to this point as “the power to contract.”

II. The majority says that the contract here involved does NOT violate the rule that school funds are trust funds and cannot be diverted. I refer to this point as the ‘ ‘ diversion of school funds. ’ ’

I find no occasion to prolong my dissent by discussing point I - i.e., the power to contract — because I feel so deeply about the majority holding on point II — i.e., diversion of school funds — that I prefer to discuss it in some detail.

The complaint of appellants alleged that the total cost of the appraisal services was to be $125,000.00; that this was to be paid by the various taxing units on some predetermined basis; and that various school districts were to pay school funds for such appraisal. The complaint alleged the exact amount that each school district and other taxing unit in Union County was to pay. The complaint then said in Paragraph 9:

“That the said Union School District No. 2 of Union County, Arkansas, by and through the Defendant, Horace Williamson, is making illegal, unauthorized and unlawful payments of tax funds into the G-eneral Fund of Union County, Arkansas, in that Union School District No. 2 has neither the power nor authority to expend its funds for the purpose set forth in the said contract. That he has stated he will continue making such payments unless restrained by this Court.”

Attached to the complaint and made a part was a copy of the Resolution of Union School Board, whereby that School Board was to pay from school funds a total of $1733.83 over a 20-months period and that was to be for the tax appraisal study. In the face of the allegations and exhibit to the complaint, I cannot see how this Court can sanction such diversion of school funds. Our laws require that a budget be submitted to the electors of each school district before the annual election; and the school authorities are forbidden to depart from such budget. Yet in the case at bar this Court is now allowing a school board to spend money for a purpose that was never contemplated at the time the school budget was adopted. In my dissenting opinion in the case of Strawn v. Campbell, 226 Ark. 449, 291 S. W. 2d 508 (ease No. 990 in this Court, original opinion delivered May 28, 1956, modified opinion delivered July 2, 1950), I discussed in some detail this matter of school funds being trust funds; and I refer to that dissenting opinion for a full statement of my views. I now say that there is absolutely no law in Arkansas — except for the present judge-made law of the majority in this case — that sanctions such a diversion of school funds as this present opinion now approves. So, without discussion of point I, I have stated my views on point II and my conscience is clear.

      The complete Resolution is as follows: “Honorable Frank H. Hudson, Union County, El Dorado, Arkansas. WHEREAS, the Union School Board met in a regular called session on the 3rd day of May,. 1955, and by a majority vote passed the following resolution; and WHEREAS, it was determined by the said School Board that a Tax Appraisal Study of Union County would be to the benefit of our School District and would produce additional revenue over a period of time; and WHEREAS, it is necessary for the County to spend $125,000.00 to pay for the cost of said study; and WHEREAS, a pro rata cost for each taxing unit for such study has been determined based on the 1954 Ad Valorem Tax; and WHEREAS, it has been determined that the pro rata cost part for this School District is the sum of $1,733.83 which sum should be paid over a 20-month period of time, the first payment being due on the 10th day of July, 1955; and NOW THEREFORE, be it hereby resolved that this School Board does hereby agree to pay into the Union County General Revenue Fund the sum of $86.69 per month until the total cost of $1,733.83 be paid, said total cost being apportioned over a 20-month period in equal payments and we do hereby agree to make the first payment of l/20th of the total sum on the 10th day of July, 1955. IN WITNESS WHEREOF, we have hereunto set our hands on this 3rd day of May, 1955. Dean Pritchard, Pres., W. M. Talor, Sec.”


author: Ed. F. McFaddiN, Associate Justice.

text:
    Nance v. Nance.
    5-891
    292 S. W. 2d 74
    Opinion delivered July 2, 1956.

      Claude F. Cooper and Percy A. Wright, for appellant.

      Max B. Harrison, Harrison & Harrison, for ap-pellee.
   Ed. F. McFaddiN, Associate Justice.

This is a divorce ease in which is also involved the custody of three little girls, the children of the parties. The husband and wife each, desire a divorce, and each wants the custody of the children.

The parties were married on June 12,1948 and lived together until January 11, 1955. Mr. Nance farms several hundred acres of rented lands here in Arkansas. Mrs. Nance’s parents moved to Gary, Indiana, and in December, 1953 the Nances went to Gary, and both husband and wife worked there until August, 1954 when, at Mr. Nance’s insistence, they returned to Arkansas. Mrs. Nance’s parents remained in Gary; and on January 11, 1955, Mrs. Nance left Arkansas and returned to Gary, where she was living when Mr. Nance filed this suit on January 31, 1955. He prayed for absolute divorce and custody of the children, and alleged as grounds for divorce indignities and also adultery. Mrs. Nance by cross-complaint sought absolute divorce on the grounds of indignities and cruel and barbarous treatment. Trial in the Chancery Court resulted in a decree awarding Mrs. Nance a divorce and (a) custody of the three little girls, with visitation rights to Mr. Nance; (b) $75.00 per month support money for the children; (c) a lump sum of $500.00 in settlement of property rights and dower; and (d) attorney fees and court costs. From that decree Mr. Nance brings this appeal presenting points which we group and discuss under suitable topic headings:

I. Who Is Entitled To The Divorced Mr. Nance claims that the Trial Court should have awarded him a divorce on his complaint instead of awarding Mrs. Nance a divorce on her cross-complaint. When Mr. Nance filed his suit the parties had been separated for only a short time. Mr. Nance alleged that Mrs. Nance had been guilty of indignities and he also accused her of adultery, since the complaint said:

“That the defendant during the time she was living with the plaintiff and the children hereinafter' mentioned went to Gary, Indiana, where she could be near and be.in the company of her paramour; that she preferred this to living with the plaintiff and their children. ’ ’

Webster’s Dictionary defines “paramour” as . . a lover . . . one who loves or is loved illicitly; one taking the place, without rights, of a husband or wife.” So when Mr. Nance alleged that Mrs. Nance went to her “paramour,” he in effect alleged adultery. Furthermore, in the evidence Mr. Nance named the alleged paramour and also offered the testimony of a priviate detective whom he had employed in Gary to shadow Mrs. Nance and report on all that she did; and the testimony of this private detective was designed to show that Mrs. Nance had been guilty of adultery. So the pleadings, as amended by the evidence, clearly charged adultery.

This Court finds the evidence insufficient to prove such a charge. Therefore, we have a case wherein an unsustained charge of adulty has been made and also one in which Mrs. Nance testified that the beatings she received at the hands of her husband forced her to leave him and seek shelter with her parents in Indiana. She was sufficiently corroborated as to Mr. Nance’s barbarous treatment. So we have a case here very much like that of Oliphant v. Oliphant, 177 Ark. 613, 7 S. W. 2d 783; and we affirm the decree awarding Mrs. Nance a divorce.

II. Custody And Support Of The Children. These are children of tender age: the oldest little girl was born on July 4, 1949; the next little girl was born on July 12, 1951; and the youngest little girl was born March 5, 1953. When Mrs. Nance left Mr. Nance on January 11, 1955, she necessarily left the children with him; but in the decree from which comes this appeal, the custody of the three children was awarded Mrs. Nance; and we know — from another angle of this same case that was before us some time ago — that she has the children in the home of her parents in Gary, Indiana. In the present record it was shown that Mr. Nance employed a 51-year old lady to be his housekeeper and to care for the little girls during the time he had them from January 12, 1954 until the decree herein which was filed on October 4, 1955.

The testimony shows that Mrs. Nance’s mother (Mrs. Bryan) is 47 years of age; that the Bryans have a home in Gary; that Mrs. Bryan cared for the three little Nance children a portion of the time when the Nances were in Gary; and that Mrs. Bryan will assist Mrs. Nance in caring for the three little girls. From all of these facts this Court concludes that these little girls should be with their mother and grandmother rather than with a paid house-keper. The Chancellor awarded Mrs. Nance the sum of $75.00 per month for support of the three children. We do not consider this to be beyond Mr. Nance’s ability to pay, in the light of the fact that he had been paying the housekeeper $60.00 per month and room and board for her services in caring for the children.

III. Property Settlement And Attorney Fees. The Chancery Court awarded Mrs. Nance $500.00 as a lump sum for property settlement and dower and awarded her $250.00 attorney fees. Mr. Nance has farming equipment and vehicles in which he has an equity of several thousand dollars; and Mrs. Nance gave him money to make some of the installment payments on the property. In view of all the evidence, we conclude that the Chancery Court did not abuse its discretion regarding property settlement and attorney fees.

IY. Act No. 184 Of 1955. This point has given us serious concern. The cause was submitted to the Chancery Court on July 28, 1955; and the Chancellor, on his own initiative — and so far as the record here shows without notice to either side — requested the Arkansas State Department of Public Welfare to investigate and report as to Mrs. Nance’s situation in regard to custody of her three children. This request for information was claimed to be under Act No. 184 of 1955. The Arkansas State Department of Public Welfare did not make the in.vestigation by one of its employees, but rather requested the Indiana Department of Public "Welfare to make the investigation. In due time, the Indiana Department made the report to the Arkansas Department, and the Arkansas Department of Public Welfare forwarded the report to the Chancellor. After receiving the report the Chancellor made the decree of October 4, 1955, which referred to the said report from the Indiana State Welfare Department.

On appeal, appellant says that the entire decree should be reversed because of this welfare report, claiming, inter alia-, (a) that any report under Act 184 had ■to be made by an employee of the Arkansas State Department of Welfare; (b) that the report was incompetent evidence; and (c) that no opportunity was ever allowed the appellant to contradict the report or cross-examine the person who made the investigation. Many pages might be written on the correctness of such extrajudicial investigations. In a few cases arising before Act 184 of 1955 we have referred to somewhat similar reports. See Trannum v. George, 211 Ark. 665, 201 S. W. 2d 1015; Roberts v. Roberts, 216 Ark. 453, 226 S. W. 2d 579; and Ark. State Game & Fish Comm. v. Kizer, 221 Ark. 347, 253 S. W. 2d 215. But in the case at bar we find it .unnecessary to make any ruling concerning Act 184 of 1955 or the reports in this case, because this Court holds that the decree of the Chancery Court is correct in all matters, even entirely excluding the said reports.

Affirmed.

       At the expense of philosophizing, it does seem that if both parents are so anxious for custody, they should compose their marital difficulties and make a united home for their offspring: but the parents have decided otherwise.

       Heretofore in this cause Mr. Nance asked us to require Mrs. Nance to return the children to the jurisdiction of this Court pending the appeal and he also sought to supersede the decree for maintenance until after this appeal is decided. We denied both motions. There have also been other pleadings and motions in this same cause.

       In 35 A. L. R. 2d 629 there is an Annotation entitled: “Consideration of investigation by welfare agency or the like in making or modifying award as between parents of custody of children.”


text:
    Easton v. H. Boker & Company.
    5-1021
    292 S. W. 2d 257
    Opinion delivered July 2, 1956.

      John E. Harris and Clinton B. Barry, for appellant.

      Bhaw, Jones & Shaw, for appellee.
   Ed. F. McFaddiN, Associate Justice.

This is a workmen’s compensation case. The appellee, H. Boker & Company, operates a scissors manufacturing plant in Fort Smith, and appellant-claimant, Easton, has worked in that factory for more than twenty-five years.

On June 2, 1953, while changing a grinding wheel, Mr. Easton hurt his left elbow. He was treated for the injury, and Xrays disclosed a fracture of a small outside portion of one of the bones around the left elbow. Mr. Easton suffered great pain in the left arm and was thereby incapacitated from work. Even though he was left-handed, his work required the full use of both hands. Numerous doctors examined him and all agreed that his injury was disabling. He drew temporary partial disability compensation until January 15, 1954, when his compensation payments were stopped. Thereupon, he filed this claim for continuation of his compensation; a single Commissioner decided adversely to Mr. Easton; the full Commission reviewed the record and heard other evidence and decided against Mr. Easton; the Circuit Court affirmed the Commission; and the case is here on appeal.

The sole question on this appeal is whether there is any substantial evidence to support the factual finding of the Commission, which was that Mr. Easton’s temporary partial disability ceased on January 15, 1954. Our cases hold that factual findings of the Commission, if supported by substantial evidence, have the force and effect of a jury verdict. See Chicago Mill & Lbr. Co. v. Fulcher, 221 Ark. 903, 256 S. W. 2d 723; and cases there cited. With the foregoing understood, we come to the evidence in the case at bar. It is admitted by all parties that Mr. Easton was disabled by the injury he received on June 2, 1953, and that he remained disabled until January 15,1954. Mr. Easton claims that he is still disabled. The appellees claim that he was restored to full ability to work on January 15, 1954; and that is the issue in this case.

The evidence reflects that on December 18, 1953, Mr. Easton, at the request of the appellee and its insurance carrier, allowed himself to be subjected to an operation on his left arm for the ostensible purpose of removing the fractured bone fragment on the outside of his elbow. The doctor who performed the operation said it was a success; but no one has ever denied that Mr. Easton is still undergoing as much pain in his left arm as he suffered before the operation. The only evidence offered by appellee and its insurance carrier, seeking to show Mr. Easton’s condition after the operation, is contained in four reports made by two doctors to the insurance company. We now summarize and discuss these reports :

(a) On December 28, 1953, the doctor who performed the operation wrote the insurance company that he thought that Mr. Easton would have “one additional week of total temporary disability.” So this report shows that Mr. Easton was not restored to full ability to work at that time.

(b) On January 6, 1954, the same doctor wrote the insurance company that Mr. Easton “should be considered disabled until his immediate post-operative course has been completed. I anticipate this will be within the next two weeks.” So this report shows that Mr. Easton was not then restored to full ability to work.

(c) On February 10, 1954, the same doctor wrote the insurance company regarding Mr. Easton:

“It is my feeling that he has reached maximum benefit from treatment and may be discharged from active treatment at this time. I do not feel that he has any measurable permanent disability. The paresthesias of which he complains are those which, in my experience, are relative to any post-operative condition about the elbow, and all of which disappear with time.”

The report of February 10, 1954 does not say that Mr. Easton was then able to do his full work: rather the doctor said that Mr. Easton was still experiencing pain, which the doctor thought would “disappear with time.” Just why Mr. Easton was cut off of disability benefits on January 15, 1954, in the face of this letter of February 10, 1954, is a matter beyond our understanding. Certainly Mr. Easton was not capable of doing full work on February 10, 1954.

(d) On March 24, .1954 another doctor made a report to appellee’s insurance carrier as to Mr. Easton’s condition at that time. In that report (two single-spaced typewritten pages) the doctor not only reviewed the entire history of Mr. Easton’s disability, but told of Mr. Easton’s then condition and also gave the doctor’s opinion as to Mr. Easton’s future condition. We copy these excerpts:

‘ ‘ There is hypalgesia involving the entire left hand in a glove distribution extending up to the distal crease of the forearm on the palmar aspect of the- forearm and extending up to the scar on the dorsal radial aspect of the forearm and swinging down gradually to meet the area on the front of the forearm on the dorsel ulnar aspect of the forearm. He consistently finds the pin point a little sharper over the little finger than he does over the other fingers of his hand but detects no difference in the sensation to pin prick on the ulnar and radial sides of the 4th finger nor over the ulnar and radial sides of the middle finger (in other words, he seems to have the same impairment in the portion supplied by the ulnar nerve as he has in the portion supplied by the median nerve). He has some mild disturbance of sensation up to the region of the insertion of the deltoid in the mid portion of the arm . . . The sensory disturbance of the hand does not follow a known anatomical distribution. It is entirely possible that the more definite sensory loss on the dorsal radial aspect of the forearm may be due to an injury to a cutaneous nerve but I feel that is of no particular significance as far as function is concerned.”

Now with those findings, the doctor making the report gave the following as his opinion:

“I feel that this patient is definitely able to work and that his healing period should be terminated. It is entirely possible that going back to a job that requires constant use of the left hand after this long period of idleness may cause some difficulty and it probably would be much better if he could be put at a job that was less exacting for the left hand for a week or two and then work back into his old job rather than suddenly putting him into this activity.” (Emphasis our own.)

The foregoing report was on March 24, 1954, and it is crystal-clear that the examining doctor found that Mr. Easton was then still suffering pain and that if he went back to work he would have some difficulty and that he should be put on a job less exacting. This report shows that Mr. Easton was not able to return to full work on March 24, 1954. Just how the appellee and its insurance carrier can justify cutting off Mr. Easton’s disability payments on January 15, 1954, in the face of this report, is something that we are unable to understand.

As aforesaid, the only evidence in the record in this case even tending to show that Mr. Easton has ever recovered from his temporary partial disability is contained in the fonr reports from which we have copied above. In none of these reports did any doctor say that, at the time of such report, Mr. Easton was able to do a fnll day’s work; nor did any doctor ever say that Mr. Easton was free of the same pain that he had experienced from the time of his original injury on June 2, 1953. These reports do not constitute substantial evidence in the light of the record here before ns, because the opinion of the doctor as to Mr. Easton’s possible recovery in the future is based on a state of facts which definitely showed that Mr. Easton had not recovered at the time of the examination on which the opinion was based. In the case of U. S. v. Thornburgh, 111 Fed. 2d 278, Judge San-born, speaking for the Eighth Circuit Court of appeals, used this language, which we find apropos here:

“A reviewing court, however, is not always required to accept as substantial evidence the opinion of experts. ‘Where it clearly appears that an expert’s opinion is opposed to physical facts or to common knowledge or to the dictates of common sense or is pure speculation, such an opinion will not be regarded as substantial evidence.’ Svenson v. Mutual Life Ins. Co. of N. Y., 8 Cir., 87 F. 2d 441, 445. See also U. S. v. Hill, 8 Cir., 62 F. 2d 1022, 1025; U. S. v. Doublehead, 10 Cir., 70 F. 2d 91, 92.”

Not only is there no substantial evidence to support the Commission’s findings against Mr. Easton; rather the evidence is overwhelming to the effect that Mr. Easton, has been temporarily partially disabled ever since his original injury in June, 1953. As late as January 15, 1955, before the full Commission, Mr. Easton brought witnesses and offered a doctor’s report to show that Mr. Easton was still disabled; that he had gone back to work for the company and tried to do the work; that the company found that he could not do full work; that every time he tried to use his left arm, it swelled up and he was subjected to great and excruciating pain.

The judgment of the Circuit Court is reversed and the cause is remanded to the Circuit Court, with directions to remand the case to the Commission with directions to make an award to Mr. Easton for temporary partial disability benefits and other compensation benefits from January 15, 1954 until the Commission may subsequently decide on a record then made that Mr. Easton is then completely recovered.

       Notice that the doctor made reference to permanent disability rather than temporary disability.

       Webster defines this as meaning “a sensation as a prickling, tingling, or creeping, on the skin, without objective cause.”

       Maloy’s Medical Dictionary for Lawyers defines hypalgesia as “a condition in which the patient has a diminished sensitiveness to pain.”

       Some time after January 15, 1954, the scissors factory was shut down for a short time; and Mr. Easton, along with others, applied for unemployment benefits. In the oral argument before this Court, appel-lees’ counsel, with becoming candor, conceded that such application for unemployment benefit was not substantial evidence that Mr. Easton could work at such time.

       In Arkansas State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738, we discussed in some detail the matter of what is substantial evidence.


author: Minor W. Millwee, Associate Justice.

text:
    Collie v. Coleman.
    5-1016
    292 S. W. 2d 80
    Opinion delivered July 2, 1956.

      Ed B. Cook, for appellant.

      Bruce Ivy, for appellee.
   Minor W. Millwee, Associate Justice.

This is the third appeal of "this case. Appellants, as non-member tenants and sharecroppers, sued a cooperative gin company and the landlord who was its principal stockholder for recovery of patronage dividends or refunds of appellants ’ alleged share of profits realized from cotton gin-nings under Act 153 of 1939 (Ark. Stats. Sec. 77-1001 to 77-1025).

On the first appeal, we reversed a decree denying recovery to appellants as against Appellee Charles B. Coleman, the landlord and principal stockholder, and the cause was remanded with directions to make findings against him, “in accordance with the facts disclosed in the record, and for any other necessary proceedings not inconsistent with this opinion.” Collie v. Coleman, 223 Ark. 206, 265 S. W. 2d 515.

On remand, a master was appointed whose report was only partially adopted in a decree which held that the gin company’s stock instead of its cash par value should be surrendered and reissued to appellants and which rejected that part of the master’s report which found that appellants were entitled to all refunds in cash after deduction of set-offs due Appellee Coleman. However, the decree found that appellants were entitled to recover their proportionate part of cash dividends paid to appellee and the gin company with interest at six per cent from date until paid.

In the opinion on the second appeal, the majority said: “We have concluded that the findings of the Chancellor and the decree that followed are with one exception in full compliance with our directive and not against the preponderance of the testimony. The one exception is this: the Trial Court held that twelve of the tenants could not recover their refunds from the period of October 27, 1947 to September 27, 1948. We hold that these twelve tenants were entitled to recover their refunds beginning October 27, 1947. Our first opinion fixed that as the date. The motion filed on September 27, 1951 related back to the date that the first complaint was filed, which was October 27, 1950. The motion went to a matter of form and not of substance. Thus on remand the Chancery Court will allow these twelve tenants their rights beginning October 27, 1947.” Collie v. Coleman, 225 Ark. 254, 281 S. W. 2d 955. The instant appeal is from a decree entered March 16, 1956, upon this court’s mandate on the second appeal and in which the Chancellor fixed each appellant’s share of cash refunds with interest together with the amount of stock to be received by each.

Appellants contend the Chancellor erred in overruling their motion to take additional proof upon remand of the case on the second appeal, but it is clear from the opinion rendered therein that the court was to make findings on the record already made and that he correctly refused to open up the case again for further proof.

It is also argued that the court erred in refusing to render judgment in appellants’ favor for six per cent dividends allegedly paid to appellee annually since the years 1948, 1949 and 1950, together with six per cent interest thereon. As previously indicated, the court did allow appellants their proportionate part of the cash dividends with six per cent interest from due date, together with the amount of stock each was to receive under the proof already made, but did not allow interest on appellants’ proportionate share of stock issued. Insofar as the record discloses, this decree was in accordance with, and not contrary to, this court’s mandate on the second appeal. Appellants also argue, and appellee concedes, that they are entitled to costs on the second appeal in the amount of $61.50 and the trial court will, of course, require compliance with this part of the former decree.

Appellants’ principal contentions relate to matters that were finally determined adversely to them on the second appeal which became the law of the case.

On the record presented, we find no prejudicial error and the decree is affirmed.

Justice Geouge Rose Smith disqualified and not participating.