author: MiNor W. Millwee, Associate Justice.

text:
    Abraham v. Jones.
    5-1486
    310 S. W. 2d 488
    Opinion delivered February 17, 1958.
    [Rehearing denied March 24, 1958]

      Bruce Ivy and James M. Gardner, for appellant.

      William 8. Rader and James W. Stemsieh, for ap-pellee.
   MiNor W. Millwee, Associate Justice.

Appellants, Chadad Abrabam and wife, own a business building on Asb Street in Blytbeville, Arkansas, in wbicb tbey operate a cafe. On the afternoon of June 12, 1956, a wooden awning or overhang attached to the front of the building weighing nearly a ton fell.

Appellee, Charlie Jones, brought this action against appellants alleging numerous acts of negligence in the construction and maintenance of the awning which he claimed struck him when it fell resulting in serious bodily injuries, great pain and suffering, loss of past and future earnings and the ability to earn a livelihood, for which he prayed judgment in the sum of $14,025.00. In their amended answer appellants admitted the awning fell and their liability for any injuries resulting therefrom but denied that appellee sustained any such injury or damage. On the issues thus narrowed the cause proceeded to a jury trial resulting in a verdict and judgment for appellee in the sum of $6,500.00.

Appellants first challenge the sufficiency of the evidence to support the verdict on the grounds that (1) “the testimony of appellee and his witnesses is so conflicting as to render it worthless, to rest the verdict on”; and (2) the verdict “is against the preponderance of the evidence. ’ ’ In determining the sufficiency of the evidence to support a verdict on appeal the test is not whether it is supported by the preponderance of the evidence, but rather whether it is supported by any substantial evidence; and in making that determination the evidence adduced on behalf of appellee must be given the strongest probative force that it will reasonably bear. Baldwin v. Wingfield, 191 Ark. 129, 85 S. W. 2d 689; Reed v. Baldwin, 192 Ark. 491, 92 S. W. 2d 392. Another elementary rule is that the jury are the exclusive judges' of the credibility of the witnesses and the weight to be given their testimony.

We briefly consider the evidence in the light of these settled rules. Appellee is a 68-year-old Negro farm laborer who lives with his friend, Major Franklin, at Blytheville, Arkansas. Appellee testified they had been chopping cotton on the day in question when- they went to appellants’ cafe where appellee purchased a cold drink. They then sat down on a bench on the front porch of the cafe and the awning of the porch fell without warning striking appellee on the head, shoulders “and all over”. When the awning was raised by several bystanders and an employee of the cafe appellee lay unconscious with blood running from his mouth and nose and was taken to a hospital where X-rays were made disclosing two broken bones in his left foot which was placed in a cast covering half of his leg. He was in the hospital one day and was taken home where he remained in bed for 30 days and used crutches for 30 or 35 days longer when he started using a cane which he was still using at the time of the trial, a year after his injury.

Appellee demonstrated to the jury how he had to walk on the heel of his injured foot. He stated he had suffered and was still suffering much pain in his foot, shoulder and back as a result of the injury; that he could hardly “git around” and would never “git around” as he used to; that he was still unable to chop or pick cotton which had been his lifetime vocation; and that his health had been good and he had never consulted a doctor prior to his injury. He formerly earned $700.00 or $800.00 a year chopping and picking cotton. The testimony of appellee was corroborated in the main by that of Major Franklin and W. A. Taylor, a bystander, Avho assisted in lifting the awning off the two men.

Dr. H. L. Hubener examined appellee at the hospital on the day of his injury. He described appellee’s injuries as, “lacerations, fracture of the fifth metatarsal, contusion and concussion of the head, and a back sprain.” He stated the injuries were painful and that appellee suffered from osteoporosis, a disease of the bone that goes along with old age and would delay the healing process. Appellee’s foot had not healed when he removed the cast on July 5, 1956, but it showed good position. While he saw no evidence of a back injury on the X-ray film, appellee still complained of pain in his foot and back in November, 1956, and he did not disbelieve the complaint nor did he think appellee was then able to resume work.

Dr. W. W. Workman, a witness for appellants, examined appellee in May, 1957. Appellee then complained of pain in his foot and back which the doctor did not disregard. X-rays then taken showed an old back injury, but if there had been a fracture of the foot it was no longer visible. On examination of the X-rays taken on the date of the injury he stated he found a fracture of the fourth and fifth metatarsal, and that the injury to appellee’s back shown in the X-ray was a ‘‘compression type of deformity” which could have been caused by the awning striking appellee on the head and shoulders.

There was some contradiction of the foregoing testimony by that of the appellants and slight discrepancies in the versions given by appellee and certain witnesses on his behalf. It was the province of the jury to resolve these conflicts in the evidence and we do not regard them such as to render it worthless as a basis for the verdict, as appellants contend. On the contrary we hold it substantial and sufficient to sustain the verdict.

Appellants also argue the court erred in permitting the introduction of the mortality table showing appel-lee’s life expectancy. The only objection urged at the trial was that this testimony was immaterial because there was no evidence of any future loss of earnings or disability. On this point we think the trial court correctly held that the testimony offered by appellee was sufficient to warrant a jury finding for future loss of earnings and disability. This testimony, although contradicted, was to the effect that appellee was still suffering pain and unable to perform his usual occupation as a farm laborer at the time of the trial. Similar evidence has been held sufficient to sustain a verdict for future loss of earnings and disability. Missouri Pacific Transportation Co. v. Mitchell, 199 Ark. 1045, 137 S. W. 2d 242.

Appellants also complain because the court did not give an instruction on future loss of earnings. But no request was made for such instruction and no objection was made by either party to the instruction given on the court’s own motion which authorized the jury to consider “any loss of earnings” resulting from appellee’s injury, if any, in fixing Ms damages. Under tMs state of the record appellants are in no position to claim a prejudicial omission by the trial court.

Nor do we concur in appellants’ final contention that the verdict is excessive. “Under our well-established rule the amount of recovery in these personal injury cases is for the jury’s fair determination and when supported by substantial testimony we do not disturb the verdict unless it is shown to have been influenced by prejudice or so grossly excessive as to shock the conscience of the court.” Grandbush v. Grimmett, 227 Ark. 197, 297 S. W. 2d 647. According to appellee’s proof he had suffered loss of earnings of $700 or $800 at the time of the trial with a prospect of loss of future earnings because of his inability to work, and had incurred medical expenses of $77.00. He also received painful and disabling injuries from which he still suffered at the time of the trial if the testimony on his behalf is credible. While the verdict for $6,500.00 is generous we cannot say it is so grossly excessive that it may not be permitted to stand.

Affirmed.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    City of Ft. Smith v. Taylor.
    5-1457
    310 S. W. 2d 13
    Opinion delivered February 17, 1958.

      Pettus A. Kmcannon, Lem G. Bryan and Warner, Warner & Bagon, for appellant.

      Gean, Gean & Gean,- for appellee.
   George Rose Smith, J.

This is a dispute over the ownership of a sewer main, a mile or more in length, which lies along Old Greenwood Road in the city of Fort Smith and drains into the city’s sewer ■ system. The main was installed by the appellee, who contends that it will remain his private property until he has recouped his construction costs by means of connection charges imposed upon lot owners who utilize the main. The city insists that the sewer-became city property upon its completion and that the city alone is entitled to impose connection fees. The circuit court, sitting without a jury, adopted the appellee’s theory of the case and entered a judgment declaring the main to be private property until the appellee shall have recovered his costs of construction, which the court fixed at $41,190.

There are at least three ways by which permission niay be obtained for the laying of sewer lines within the public streets of Fort Smith. One, involving the formation of an improvement district, does not concern us here. The pivotal question is which of the other two methods should be regarded as controlling with respect to this particular sewer main.

The city argues that the main was constructed under the authority of Ordinance No. 1075, a general law adopted in 1913. This ordinance permits the owners of land not served by the city sewer system to connect their property with that system upon the payment of $150 an acre. The ordinance provides that a permit for the connection must be obtained, that the construction will be supervised by the city engineer, and that upon completion the sewers lying within the streets and alleys will become the property of the city.

Taylor insists that when he constructed this main in 1955 he followed not the general law but a special resolution adopted by the city commissioners in 1952. That resolution authorized Taylor to lay a private sewer line along South 31st Street, to serve several named subdivisions “and any other property in said vicinity which can be drained into said sewer line.” It is conceded that Taylor built the 31st Street main in 1952 and that it remained his private property until he recovered his outlay by means of connection charges. The court below found that at the time of the trial Taylor had recouped the entire cost of the 31st Street private sewer line and that title to the line should be vested in the city.

The construction of the Old Greenwood Road main, now in dispute, came about in this way: In April of 1955 Claude Meadors owned about thirteen acres, abutting Old Greenwood Road, which he proposed to subdivide as a residential area to be known as Marilyn Heights Addition to the city. A similar area, perhaps half a mile farther down Old Greenwood Road, was owned by the Peoples Company and was also to be subdivided as a residential addition. On April 8, 1955, Meadors and the Peoples Company obtained from the city commissioners, acting under the authority of Ordinance No. 1075, separate permits to connect their proposed additions to the city sewer system, the required fees of $150 an acre being paid. "We may remark at this point that the lateral sewer lines subsequently laid in the dedicated streets of these two additions doubtless became, upon completion, the property of the city, in accordance with Ordinance 1075.

The Marilyn Heights acreage lay about half a mile from the end of the South 31st Street sewer, which was then privately owned by Taylor, and the Peoples Company property lay still farther away from a point of access to the city sewer system. To meet this difficulty both Meadors and the Peoples Company executed written contracts with Taylor, who is a plumbing contractor. These contracts recite that Taylor owns a private sewer line (the 31st Street line) which he agrees to extend to the new subdivisions. It is expressly stated that title to the extension will remain in Taylor and that he will be entitled to connect other property to the line, within the limits of its capacity. Other additions were in fact later connected to the line; by the date of the trial Taylor had recovered about 80 per cent of what the court found to have been his investment.

Before installing the Old Greenwood Road sewer main Taylor filed with the city his plans and specifications, which were approved by the city engineer and the State Board of Health. He did not obtain either a permit under Ordinance 1075 or the passage of a resolution similar to that adopted in 1952. He did, however, discuss the matter with the city commissioner in charge of the sewer department, and the circuit court was justified in finding that both Taylor and this commissioner believed that the proposed construction came within the 1952 resolution’s reference to “other property . . . which.can be drained into” the South 31st Street line. During the progress of construction the work was inspected by the city engineer.

This litigation arose in 1956, after the city had granted a connection permit to a man named Hinton, who owned property in the undeveloped area between Marilyn Heights Addition and the Peoples Company addition farther down the road. Taylor insisted that he was entitled to receive the connection fee and brought this action to recover from Hinton. By intervention the city asserted its claim of • ownership. The circuit court held that, even if the city’s contention were technically sound, it was estopped to dispute Taylor’s title until he had recovered his investment in the line.

The trial court’s conclusion is manifestly just, and we think it to be well founded in law. There can be no doubt that Taylor, as well as everyone else concerned, thought the Greenwood Road line to be an extension of the 31st Street private sewer. When the older line was originally installed Taylor intended to use six-inch pipe, but the city commissioner required him to put in an eight-inch line to allow for future extensions. The 1952 resolution expressly referred to other property that might be drained by the 31st Street private sewer. The contracts between Taylor and the real estate developers clearly recognize Ms title to the extended line. The responsible city commissioner shared the general belief in the matter and permitted Taylor to go ahead without any warning that the city meant to take over the line as soon as it was completed.

Despite these facts the city argues that the. 1952 resolution was void and therefore cannot serve as a basis for Taylor’s assertion of title. It is pointed out that the statute relating to the commission form of city government, which prevails in Fort Smith, provides that no right to occupy the streets shall be granted except by ordinance. Ark. Stats. 1947, § 19-615. Hence, it is said, no such right can be granted by a mere resolution. Furthermore, the city contends that Ordinance 1075 could not be modified by the 1952 resolution, in view of the rule that an ordinance cannot be repealed or amended by a resolution. Meyer v. Seifert, 216 Ark. 293, 225 S. W. 2d 4.

This reasoning overlooks the essential nature of the commission form of city government. The mayor and the two city commissioners sit together as a legislative body composed of three equal members, with the mayor having no power to veto any measure. Ark. Stats., 19-609 and 19-614. In these circumstances the traditional distinctions between an ordinance and a resolution naturally lose their force, for the difference becomes one of form rather than of substance. As we said in McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707, with respect to the very city that is now before us: “ It is claimed, however, that the increase of salary was given these officers by resolution, instead of ordinance. This did not make any difference. The board of commissioners under the act are given the power to exercise all respective functions usually exercised by city councils. According to the allegations of the complaint, the increase in salary was given to these officers by a resolution passed by the board of commissioners, and this was in legal effect an ordinance enacted by them.”

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Murphy v. Wilson.
    5-1467
    310 S. W. 2d 1
    Opinion delivered February 17, 1958.

      P. E. Dobbs, for appellant:

      Sigun Rasmussen, for appellee.
   Paul Ward, Associate Justice.

Appellant, William (Bill) Murphy, brought suit against appellee, Clyde Wilson, for damaging a truck-tractor and a low boy trailer attached thereto. After hearing testimony introduced by both parties the trial judge, sitting as a jury, dismissed the complaint.

The complaint, which is copied in full in appellant’s abstract, states a cause of action for damages. The pertinent parts read as follows:

On or about July 20, 1954, the defendant and one of his employees took a certain Diamond T tractor truck belonging to the plaintiff, without plaintiff’s consent or knowledge, and said employee, under the directions of the defendant, was driving same with what is known as a low boy attached thereto to a certain job of the defendant, for the purpose of hauling certain heavy equipment belonging to said defendant, and while so driving and operating said tractor truck, the employee of said defendant wrecked and practically demolished said tractor truck and low boy attached thereto, resulting in damage to said tractor truck in the sum of $1,600 and to said low boy in the sum of $133.50 making a total sum of $1,733.50.

The plaintiff has made demand of defendant for the damage sustained to his equipment, but same has been refused by said defendant.

Wherefore, plaintiff prays that he have judgment against the defendant in the sum of $1,733.50, and for his costs herein expended and for all other and proper relief to which he is entitled.

The answer denies “each and every material allegation contained in said complaint”.

The judgment and findings of the trial court are not abstracted, so we assume, since there is an admission of damage, that the complaint was dismissed for the lack of evidence to sustain it.

It is our conclusion however that the testimony abstracted by appellant shows appellee to be liable. A summary of that abstracted testimony follows:

Appellant. I am the owner of the truck and low boy;' I purchased same for $800 in 1954 and paid out $436 for new tires, $236.87 for work on the motor, and $135.50 for welding; I did not give appellee permission to use it; I later learned at the hospital that Raymond Lindsey was driving the truck; I didn’t give Lindsey authority to use it, and Lindsey was not working for me at the time; Lindsey had worked for me previously, and; I valued the truck at $2,500 and it was completely destroyed.

Raymond Lindsey. I was the driver of the truck at the time; I had previously worked for both parties; when I had the wreck I was working for appellee, who hired me the day before; he (appellee) came to my house about 5:30 A.M., and I went with him in his car; he took me to where appellant’s truck was parked on highway No. 7 and I asked him if that was the truck we were going to use, and he said it was; I got the truck and started to town, and at the intersection of highways 70 and 270 I wrecked it; I was injured, and was awarded compensation as an employee of Mr. Wilson (appellee), and; I do not believe this truck can be purchased under $1,800 or $2,000.

William Henclrix. Appellee came to my house to hire Lindsey, and I know they came and got the truck the next morning.

Milce Richards valued the truck in 1954, in good shape, at $2,000.

Clyde Wilson. I was present when the Workmen’s Compensation Commission had a hearing to determine if Lindsey was entitled to compensation, and he being my employee, it was held he was my employee; my defense at the time is the same as it is here; I merely got into my car and went to Mr. Lindsey’s house the next morning after I was out on the job that afternoon; I got him out of bed and drove him in my car; I knew the truck belonged to Bill Murphy; I got no authority myself from Mr. Murphy to move this truck at all other than through Lindsey; I heard Mr. Hendrix’s testimony that I came out there and stopped and came up on the bank — that is true; I assumed the truck belonged to Mr. Murphy; it did not have his name on it; I agree that I didn’t talk to Mr. Murphy, and; I knew that Mr. Lindsey had been working for Mr. Murphy as an employee.

Appellee abstracts no testimony at all. He does make several references to the findings of the trial court, hut abstracts no testimony to support those findings, and they are not supported by appellant’s abstract. It may well be that appellant’s abstract omits portions of the record which justified the dismissal of the complaint by the trial court. If this is true appellee had the option, under Rule 9 (e) of this court, to supply the same. Not having done so, the judgment of the trial court must he reversed and remanded.


author: Sam Robinson, Associate Justice.

text:
    Community Savings Bank v. Pearson.
    5-1469
    310 S. W. 2d 12
    Opinion delivered February 17, 1958.

      Rose, Meek, House, Barron & Nash and Stanley E. Price, for appellant.

      A. R. Cooper, for appellee.
   Sam Robinson, Associate Justice.

This suit was filed by appellants against appellees to foreclose a real estate mortgage. Appellees did not file an answer. A default judgment was rendered and the court ordered the property sold to satisfy the- judgment.' After the expiration of the term of court at which the judgment was rendered and the sale ordered, appellees filed a petition asking that the sale be postponed. The court granted the petition, and the mortgagees have appealed, contending that the effect of the court’s action in staying the sale is to set aside the judgment rendered at the previous term of court; that the petition to stay the sale asserts no valid grounds for setting aside the decree of foreclosure and that the court is therefore without jurisdiction to make an order which in effect nullifies the foreclosure decree.

The petition to stay the sale was filed on May 6, 1957, and alleges that the decree was entered on April 4th and that the sale under the decree was set for May 8th. The petitioners further allege that they are unable to pay all of the past due installments on their note secured by the mortgage, but that they can pay $100 per month until such time as the past due installments have been paid in full.

On May 7th the court issued an order staying the sale until June 26th. On May -9th appellants filed a petition asking that the court set aside its order staying the sale. On May 31st there was a hearing on the matter of postponing the sale, and -the court ordered that appellees pay into the registry of the court all -past due monthly payments which became delinquent prior to the rendition of the decree and that in the event the mortgagors failed to make such payment into the registry of the court, the sale should he held on June 26th. On-June 25th the court made an order, reciting that the appel-lees had paid into the registry of the court all the ar-rearages on the notes secured by the mortgage, plus interest and costs, totalling $381.96, and the court ordered that the sale he postponed until the further orders of the court.

Undoubtedly it was not the intention of the court to require the mortgagors to pay into the registry of the court all of the arrearages and then permit the property to be sold to satisfy the judgment. In the decree the court had given effect to the acceleration clause in the mortgage, and to permit the mortgagors to make the monthly payments and thereby stay the sale indefinitely would amount to a modification of the judgment of foreclosure, and the court does not have jurisdiction to do this after the term has expired.

This does not mean that the court does not have jurisdiction to stay a sale when such action does not amount to the setting aside of the decree; Here no evidence was introduced to show the inexpediency of holding the sale as directed in the decree of foreclosure.

Appellees concede that they have no meritorious defense ; they simply want an opportunity to catch up on the delinquent monthly payments and then make further payments in accordance with the terms of the note and mortgage. Though it is understandable that appellees would like to reinstate their contract in a satisfactory manner, it cannot be done by ignoring the law that a court cannot set aside or amend a judgment after the term has expired except on grounds which are not asserted in the case at bar. In Stewart-Morris Implement Co. v. Koenig, 226 Ark. 1001, 1004, 295 S. W. 2d 352, 353, the court quoted as follows from Raymond v. Young, 211 Ark. 577, 581, 201 S. W. 2d 583, 585: “ £The court lost control over the decree of July 23, 1946 with the ending of the April, 1946, term of court, and was without authority to vacate that decree at a subsequent term except in the manner, and upon the grounds, specified in Section 8246 and 8248, Pope’s Digest (Ark. Stats. § 29-506 and § 29-508), or by bill of review under the chancery practice. Many other cases could be cited to the same effect’.”

Reversed, with directions to proceed in a manner not inconsistent with this opinion.

George Rose Smith, J., not participating.


author: Carletoh Harris, Chief Justice.

text:
    White v. White.
    5-1446
    310 S. W. 2d 216
    Opinion delivered February 24, 1958.

      Jeptha A. Evans, for appellant.

      Robert J. White, for appellee.
   Carletoh Harris, Chief Justice.

Appellant, Mary Tygart White, and appellee, Sam White, were married on June 29, 1952, and lived together as husband and wife until December 1, 1953. Mrs. White filed complaint for divorce on July 5, 1956, alleging that she was compelled to leave Mr. White because of indignities suffered at his hands. She alleged that he was the owner of several hundred acres of land and a large number of cattle, and prayed that she be awarded her statutory rights in both the personal and real property. Mr. White filed a general denial, subsequently appellant amended her complaint, first alleging desertion, and further alleging three years separation without cohabitation. The cause proceeded to trial, and at the conclusion of the evidence, the court granted appellant the divorce on the grounds of three years separation without cohabitation, awarded her the sum of $550, attorney’s fee of $250, but refused to grant her any part of the defendant’s personal property or any interest in his real estate. From the action of the court, in refusing to grant a divorce on the grounds of indignities allegedly suffered, and in refusing to vest her with any portion of appellee’s property, appellant brings this appeal.

Mrs. White testified that she had had a nervous breakdown, was highly nervous, and that Mr. White was “very hateful” to her; that on one occasion he “knocked me down, and got astride of me, and he said that if I said anything else he would stomp my guts out”; that she was afraid of him, and that he, and his daughter by a previous marriage, constantly mistreated her, making derogatory remarks about her, and threatening her. Appellant’s sister, Mrs. Euby Gardner, a resident of Denver, Colorado, testified that on an occasion when appellant was taken to St. Vincent’s hospital in Little Eock for illness, she observed that appellant’s right leg was black and blue, and she noticed while in the home that her sister was constantly crying and upset. Mrs. White’s son, by a previous marriage, a junior in high school, testified that he had seen his stepfather, on one occasion, strike his mother, and that White frequently abused her. He stated, “My mother was just a nervous wreck. She was just about crazy.” Appellant’s father, B. R. Ty-gart, testified that he received a call that his daughter wanted him to come out and get her . . . that on arriving he found she was sick and nervous . . . said she was leaving . . . stated her husband had said he was going to whip her, which statement, according to Tygart, appellee at first denied, but later admitted . . . that appellee walked out to the car and said he did not want her brought back, and he (the father) took her on to his home. Appellee, his daughter and son, all -denied that Mr. White had struck or mistreated either appellant or her son, and six neighbors testified, in effect, that Mr. White seemed devoted to his wife, that they knew of no mistreatment, and that she never complained to them of any mistreatment. Several of these were frequently around the Whites. Mrs. A. J. Lipe testified that appellee was “very good” to appellant, and that he assisted her with the cooking and housekeeping. Mrs. Ned Breashears stated that she and her husband had attended community affairs with the Whites, and that they seemed devoted to each other. Troy James, who had worked on the White farm making a crop at one time, and would see them each day, stated that appellee was “very nice” to his wife, and testified about an occasion when Mrs. White became angry. “A. She walked over and sat down on the woodpile and then Sam came out to where she was sitting and talked to her and asked her to come back, in the house. She would not go in the house and she went out in the road and laid down. Q. What did you do, if anything? A. Sam went out to her and he got her to raise up. He went and got a chair for her to sit in and then he and her boy carried her back in the house.” Mrs. Josh Tygart, whose husband is a brother of Mrs. White, stated that she had known both appellant and appellee since 1929, that her relationship with them was rather intimate, and “as far as I know, Sam could not have been any better to Mary than he was when we were out there.” She testified that she helped her husband in his store, and that Mrs. White had a charge account which was available to her at all times. ..From the testimony: “Q. Did Sam ever.challenge any of her bills? A. He told us to let her have what she wanted.”

As can be readily seen, the evidence was most conflicting. The decree of the court finds:

“ * * * . that no cause of action existed in favor of plaintiff under paragraph two of her complaint, but further finds that the parties have separated and remained apart for more than three years prior to the date hereof, and by reason of that fact, each of the parties is entitled to be divorced from the other.
The court further finds that the plaintiff, Mary Tygart White, having failed to prove by a preponderance of the admissible evidence that she is entitled to a divorce from the defendant by reason of any misconduct on the part of the defendant, the plaintiff is not entitled to dower or alimony as prayed by plaintiff, * # *
The court further finds, however, that the plaintiff is well employed, and is earning substantially more money than the defendant, but that in so doing she has been caused to expend in preparation, the sum of Five Hundred Fifty and no/100 ($550.00) Dollars, which the court finds should be repaid her by the defendant, # & * J )

The fact that appellant has more income than appellee does not, within itself, preclude her right of recovery, though the fact that a wife has more income than the husband may be taken into consideration in making an award. Alexander v. Alexander, 227 Ark. 938, 302 S. W. 2d 781. But in the Alexander case, we also held that the husband was more at fault than his wife.

Appellant earnestly insists that she is the injured party in this case, and should be awarded a division of the property as provided by Sec. 34-1214, Ark. Stats. (1947) Anno. As previously stated, the evidence was conflicting, but we think the preponderance sustains the holding of the chancellor. It is also noticeable that though Mrs. White testified she was forced to leave the home in December, 1953, because of indignities suffered at the hands of appellee, no suit was filed for 2% years, and the matter not heard until the parties had been separated for more than 3 years, and the complaint amended to that effect. At any rate, considering the fact that the witnesses were before the court, where the chancellor had the opportunity to observe their demean- or and attitude from the witness stand, we are unable to say that the court’s holding was against the preponderance of the testimony, and without so finding, Mrs. White cannot prevail.

Affirmed.

       Mrs. Georgia Olinghouse, niece of appellee, disputed this statement. “Q. It was testified that she had bruises on her right leg and thigh. Did you know anything about that — Did you have occasion to help her dress or undress? A. Yes, sir. She slept at my house and had on short clothes and she did not have any bruises on her then. I brought her some pajamas and helped her put them on and I did not see any bruises. She dressed right there before me and I would have noticed if there had been any.”

       Mrs. White had been twice previously married. The first husband died and she was divorced from the second after six weeks.

       When asked if she knew she had a charge account at her brother’s store, Mrs. White replied: “No, I didn’t know it. He called me a gold digger when I went there one day.”

       Mrs. White teaches in Wichita, Kansas, earning $4,125 for 9 months.


author: J. Seaborn Holt, Associate Justice.

text:
    Housing Authority of City of Blytheville v. City of Blytheville.
    5-1461
    310 S. W. 2d 222
    Opinion delivered February 24, 1958.

      Taylor & Sudbury, for appellant.

      Marcus Evrard and James M. Gardner, for appellee.
   J. Seaborn Holt, Associate Justice.

In 1914 the City of Blytheville created Sewer District No. 1 and issued bonds for funds to pay for this improvement. These bonds were duly paid together with all indebtedness of the District by 1937. In 1955, the City of Blythe-ville, by proper ordinance authorized the construction of a central sewer system, by enlarging, extending and improving District No. 1. By this ordinance and a later amendment, rates for sewer service were set at $1.80 per month. This sewer system was constructed, bonds were sold in the amount of $850,000 to cover costs and services commenced.

On March 12, 1940, appellant, Housing Authority (hereafter referred to as “Housing”) was created by the City of Blytheville under the provisions of Secs. 19-3001 — 19-3074 Ark. Stats. 1947. In 1941 the City and Housing entered into a cooperation agreement under the terms of which Housing was to erect a low rent housing project in the City. Under this agreement ap-pellee, City, agreed that it would “not levy, impose or charge any taxes, special assessments, service fees, charges or tolls against the project or against the Authority or with respect to the project and that it will furnish without cost to the Authority and the tenants of each project the usual municipal services and facilities which are or may be furnished without cost or charge to other dwellings and inhabitants in the City, including but not limited to fire, police and health protection and service, street maintenance and repair, garbage, trash and ash collection and disposal, street lighting on public streets within any project and the boundaries thereof and sewer services.” Housing erected 80 units under this agreement.

Later, in March 1950, a second agreement was entered into, by the terms of which the City agreed “without cost or charge to the local Authority or the tenants of such project (other than Payment in Lieu of Taxes) to furnish or cause' to be furnished to the local Authority and the tenants of such project (I) the public services and facilities which are at the date hereof being furnished without cost or charge to other dwellings and inhabitants in the City, including but not limited to: educational . . . and services; maintenance and repair of . . . sewer and Avater systems; adequate sewer service for such project . . . and (II) also such additional public services and facilities as may from time to time hereafter be furnished withr out cost or charge to other dwellings and inhabitants in the City.” Thereafter Housing erected and completed 128 additional dwelling units. Housing was among those in the City Avhich derived benefit and used such sewer services, but it refused to pay for such services ($1.80 per month) whereupon appellee sued to recover from Housing a judgment (in a sum certain) for. the amount due. From a judgment in favor of appellee' (city) is this appeal.

The facts are not in dispute, the reasonableness of the rate is not an issue, nor the fact of using such services. For reversal appellant relies on these two points: “1. Appellant contends that the Decree of the lower court is contrary to the provisions of Act 298 of the General Assembly of the State of Arkansas for the year 1937 which exempts Housing Authority from the sewer charge. 2. Appellant contends that the Decree of the loAver court is contrary to the written cooperation agreements of the Housing Authority and the City of Blytheville exempting Housing Authority from said sewer charge.”

The parties agree that the sole question presented is whether the Housing Authority is liable for the monthly charge of $1.80 for each of its dwelling units occupied. Sec. 19-3027 Ark. Stats. 1947 provides: “Tax exemption — Payments in lieu of taxes. — The property of an authority is declared to be public property used for essential and exclusively public and governmental purposes, and not for profit, and such property and an authority shall be exempt from all taxes and special assessments of the State of any State Public Body thereof; provided, however, that in lieu of such taxes or special assessments, an authority may agree to make payments to a State Public Body for improvements, services and facilities furnished by such State Public Body for the benefit of a housing project, . . .” “State Public Body” includes a city, municipal corporation, district or other subdivision of the State.

The determination of the issue here presented must turn upon the proper construction of the above sections of the two cooperation contracts between the City and Housing. The trial court found,' — and we think correctly, — that the charge of $1.80 fixed by the Sewer Ordinance of 1954 did not constitute a tax or an assessment within the meaning of the pertinent Section 19-3027 above, but was, in fact, a proper sewer service charge. First, we point out that since these two cooperation agreements were prepared by the Housing Authority it is a well settled rule that any doubtful language used in these contracts should be construed against the party who prepared them.

In analyzing and interpreting the meaning of the two provisions, above, the first, in the 1941 cooperation agreement, and the other in the 1950 agreement, the trial court in its findings used this language: “. . . the first contract . . . combines an agreement upon the part of the city to the effect that it will not undertake to impose or levy or charge any taxes or special assessments, with the further agreement that it will furnish to the Authority without cost or charge the usual municipal services and facilities, ‘which are or may be furnished without cost or charge to other dwellings and inhabitants in the city, including but not limited to: fire, police and health protection and services — garbage —, and sewer services.’ . . . (The first cooperation agreement) . . . undertakes to cover in one sentence, an agreement to the effect that the city will not, for a specified time, levy, impose or charge any taxes, special assessments, service fees, charges or tolls against the property or against the Authority or with respect to the project. And then without punctuation and continued in the same sentence, undertakes to obligate the city to furnish, without cost or charge to the Authority or the tenants thereof, the usual municipal services and facilities which are or may be furnished without cost or charge to the other dwellings and inhabitants in the city and in this connection, includes garbage and sewer services.

“It is plain, therefore, that the author of the contract intended to include . . . the legal exemptions for taxes and assessments and that the first part of the sentence has reference only to this statutory exemption and that the second part of the sentence undertakes to provide an agreement to furnish certain services free of charge ... It does not appear to the court that the language used is susceptible to the interpretation or construction that the municipality intended to furnish free of charge at all times specified in the contract such services and facilities as were being furnished without cost or charge to other dwellings and inhabitants in the city. Any other construction would render the use of the words, ‘Or may be furnished without cost or charge’ superfluous and meaningless. The proper construction to be placed upon the language used is that the municipality agreed to furnish such usual services and facilities that were then being furnished without cost or charge to other dwellings and inhabitants in the city or that might be furnished free of charge in the future. In other words, it cannot be said that the parties intended to discriminate and furnish such essential services in the future free of charge if it should become necessary to charge the other dwellings and inhabitants of the city for similar services and facilities.

“The provisions of the contract of 1950 and the language used therein makes it clearer that such was the intention in the first contract as well as in the second . . . (These provisions) obligate the municipality to furnish without cost, or charge, (1) The special services and facilities which were at that time being furnished without cost or charge to the other dwellings and inhabitants of the city, including garbage, trash and ash collection and disposal and adequate sewer services, and (2) Such additional public services and facilities as may, from time to time hereafter, be furnished without cost or charge to other dwellings and inhabitants in the city.

“The court is likewise of the opinion that the language here used means simply that it is the intention of the parties to place the Housing Units and the occupants thereof in the same position relative to public services and facilities as the remaining inhabitants of the city and to furnish public services and facilities free only so long as such services and facilities are furnished free to the other inhabitants of the city.”

Based on the above findings, a decree was entered against Housing in the amount of $1,634.40. We affirm that decree.

McFaddiN, J., dissents.


author: Ed. F. McFaddiN, Associate Justice.

text:
    Adams v. Adams, Excx.
    5-1320
    310 S. W. 2d 813
    Opinion delivered February 24, 1958.
    [Rehearing denied March 31, 1958]

      Moses, McClellan & McDermott, for appellant.

      Rose, Meek, House, Barron & Nash, for appellee.
   Ed. F. McFaddiN, Associate Justice.

This is an action for damages claimed to have been suffered by plaintiffs (appellants) because an obstruction which defendants (appellees) placed in a drainage ditch caused an overflow of waters onto plaintiffs’ land. Equity jurisdiction was invoked to obtain a removal of the obstruction ; and jurisdiction was retained to try the- issues of (a) cause of the overflow, and (b) damages, if any, resulting therefrom. We will refer to the parties as they are styled in the Trial Court. After hearing the evidence the Chancery Court held that the overflow was caused by excessive rainfall and not because of the obstruction placed by defendants in the drainage ditch. Plaintiffs have appealed. We have two questions to consider.

I. The Cause Of The Overfloio. Cypress Pocket Drainage Ditch was constructed in about 1927 and flows into the Arkansas River. In the fall of 1954 some of the defendants — with the acquiescence of the others — constructed a dam across the drainage ditch at a point on the defendants’ lands; and the purpose of the dam was to impound water to he used in irrigation. The plaintiffs owned lands above the dam. On May 27, 1955 there was an enormous rainfall in the area drained by the ditch; and the result was an overflow of the plaintiffs’ lands, rendering portions incapable of being cultivated in 1955. The defendants claimed that (a) the excessive rainfall and (b) the clogging of the outlet of the ditch were responsible for the overflow, rather than the dam constructed by defendants. Without prolonging this opinion to recite all of the evidence, it is sufficient to say that the dam was a substantial factor in causing the overflow of the plaintiffs’ lands. It was shown that for some time after the rainfall the water level above the dam was higher than the water level below the dam; and that it was not until after a substantial portion of the dam had been removed that the water subsided from plaintiffs’ lands.

No permission was obtained by defendants from the Drainage District to construct the dam across the ditch. Section 21-565 Ark. Stats, makes it a misdemeanor for anyone to obstruct a drain. The unlawful act of obstruction may be considered on the matter of negligence. The torrential rainfall of May 27, 1955 was what is termed in law, “an act of God”; but the law is that when the negligence or tort of the defendants concurs with the act of God to cause damage to the plaintiff, then the defendant is liable for plaintiff’s resulting damages. St. L. S. W. RR. Co. v. Mackey, 95 Ark. 297, 129 S. W. 78; Manila School Dist. v. Sanders, 226 Ark. 270, 289 S. W. 2d 529; Lee v. Crittenden County, 216 Ark. 480, 226 S. W. 2d 79. In the last cited case we said:

“The rule of law in this State is well settled by this court in St. L. S. W. Ry. Co. v. Mackey, 95 Ark. 297, 129 S. W. 78. It was there said: ‘If the injury was produced by the combined effect of the act of God and the concurring negligence of defendant, then it would be liable therefor. Where two concurring causes produce an injury which would not have resulted in the absence of either, the party responsible for either cause is liable for the consequent injury, and this rule applies where one of the causes is the act of God’.”

So we conclude that the preponderance of the evidence shows that the defendants are liable to the plaintiffs for the damages resulting from the overflow.

II. The Amount Of The Damages. Here the plaintiffs run into considerable difficulty. The plaintiffs tried their case on the theory that the measure of damages to which they were entitled was what they would have produced on the overflowed land in 1955 if they had cultivated and harvested their crops in a good and proper manner; and the plaintiffs offered proof as to how much of each crop might have been produced from the land in 1955; what each crop would have brought; the expense of reconditioning the property, plowing, cultivating, harvesting, etc. This would have been the correct method of proving damages if the overflow had occurred after the time that the crops had reached a growth sufficient to have a value; but the plaintiffs’ proof does not show that any of the crops had reached such a stage.

There were three crops listed in the plaintiffs’ itemization of damages: cotton, oats, and beans. As regards the cotton crop, the plaintiff, Dorsey, admitted on cross examination that the cotton crop had not reached such a stage of development on May 27, 1955, as to have a market value. Here is his testimony: “Q. As of the time of the flood on May 27th, when the cotton was too immature — was so immature a cotton crop at that time — it would not have any market value? A. I never did sell any cotton in the field at that age. A. There is no market for cotton that young? A. No. Q. No question.” There was no testimony to the contrary regarding the cotton crop. As regards the crop of beans and oats, there is likewise no evidence that at the time of the overflow the crops bad a market value, as distinct from the rental value of the land. In fact, as far as the bean crop is concerned, there is an inference to the contrary, because one of the defendants testified that he offered to give Dorsey enough bean seed to replant after the overflow.

The burden was on the plaintiffs to establish their damages. In St. L. Ry. v. Saunders, 85 Ark. 111, 107 S. W. 194, we said:

“There was evidence on behalf of appellee tending to prove the total destruction of his crops at a time when they were so young that they had no market value, and, yet when it was too late in the season-to replant, cultivate and mature crops of the kind usually produced on appellee’s farm. The evidence tended to show that appellee by reason of the overflow was deprived entirely of the usable value of his land. That being the case, the court, did not err in giving the above instruction on the measure of damages. The rental or usable value of the land was the proper criterion. 1 Sedgwick on Dam., § 184; Chicago v. Huenerbein, 85 Ill. 594. See Willitts v. Chicago, Burlington & K. C. R. Co., 88 Iowa 281, 55 N. W. 313, 21 L. R. A. 608. ’’

The foregoing rule has been recognized in our subsequent cases. See Brown v. Arkebauer, 182 Ark. 354, 31 S. W. 2d 630; Faires v. Dupree, 210 Ark. 797, 197 S. W. 2d 735; and Farm Bureau Lbr. Corp. v. McMillan, 211 Ark. 951, 203 S. W. 2d 398.

Thus the plaintiffs failed to show their damages by the correct measure of damages, but did show that the defendants were liable: so the plaintiffs are entitled to nominal damages. In Barlow v. Lowder, 35 Ark. 492, Chief Justice English said: “. . . some damages are always presumed to follow from the violation of any right; and therefore the law will in such cases award nominal damages if none greater be proved.” See also St. Louis, A. & T. Ry. v. Graham, 55 Ark. 294, 18 S. W. 56. Therefore, the decree of the Chan-eery Court is reversed and tlie cause is remanded, with directions to award the plaintiffs nominal damages of $10.00, which will carry with it all costs of all courts.

George Rose Smith, J., not participating.

       A portion of the dam was removed by the defendants, and complete removal was sought in this suit.


author: Minor W. Mill wee, Associate Justice. •

text:
    Pardo v. Creamer.
    5-1465
    310 S. W. 2d 218
    Opinion delivered February 24, 1958.
    • Baggett .& 'Baggett axiS'Sharp &'Sharp,"for appellant. ■ ... -.
    ■ John G.' Sheffield, H. M.' McCastlain and ’Fred MacBonald-, for appellee. ‘ -

       Petitioner’s correct name is J. F. Linzey and the child’s correct name is Vena Vista Allen.

   Minor W. Mill wee, Associate Justice. •

This appeal involves the validity of an-.adoption order made in 1907 by the Probate Court of Monroe County, Arkansas, in which J. F. Linzey attempted to .adopt Vena Vista Allen, the four-year-old .daughter of his wife, Alice L. Linzey, by a former marriage. The order' reads as follows:

“Order of Court-
Now on this day October 21st 1907, a day of the regular October 1907 term of the Monroe Probate Court the above matter came on to be heard upon the petition of the petitioner, J. P. Lindsay, seeking the adoption of the minor, Uena Vista Allen: It appearing to the court that said petition was in the manner and form as prescribed by law, and duly verified, it further appeared to the Court from the consent of the mother of said minor who appeared in open court and was examined touching said matter, that it is to the best interest of said child that she be adopted by the said J. P. Lindsay and henceforth bear the name of Buena Vista Lindsay and shall occupy the same position in the household of the said Lindsay as a natural child would occupy in the way of liability on part of petitioner for education maintenance, power and right to inherit and in every other wise as a natural child, and the Clerk hereof will spread upon the record this order of the Court in full.”

The petition mentioned in the order was never recorded until July 1, 1957, and reads:

“To the Hon. Probate Court of Monroe county, Arkansas, Hon. R. P. Millwee, Judge thereof, presiding:
“Your petitioner, the undersigned J. P. Lindsay, would most respectfully state and show unto your hon- or, that he is a bona fide resident of Monroe county, Arkansas, that he desired to adopt to himself and to his name Buena Vista Allen, minor daughter of petitioner’s wife; that the age of said child is four years; that it has no property; that both its parents are living, its mother being the wife of petitioner, and its father, Alfred Allen is living at Monroe, Arkansas, the divorced husband, of petitioner’s wife. Petitioner says upon his oath that said child was given to petitioner’s wife upon her separation from the said Alfred Allen and that the sole purpose for which he seeks the adoption of said child is to the end that it may inherit of the estate, of petitioner as his own children shall inherit and be entitled to all the rights and privileges that his own children bearing his own name enjoy or may hereafter enjoy.
“Petitioner introduces into open court his wife, the mother of said child, to the end that she may show her consent to the said adoption.
Respectfully submitted,
(s) Greo. P. Chaplin
Attorney for petitioner
“I, J. P. Lindsay state upon my oath that the statements in the foregoing petition are true, to the best of my knowledge and belief.
(s) J. P. Linzey
“Subscribed and sworn to before me on this the 1st day of Oct. 1907.
(s) W. L. Hinton
County Clerk”

When J. P. Linzey sought to adopt Vena Vista Allen in 1907 he was married to the child’s mother by a former marriage. The child lived with her mother and stepfather until her marriage- to the father of James S. Wilson and died intestate about 1918, survived by the said James S. Wilson as her sole heir. J. P. Linzey died intestate in 1929 survived by his widow, Alice L. Linzey, and by appellee, Effie W. Creamer, his only natural child. Alice L. Linzey subsequently married one McPherson and was living on the lands involved in this litigation at the time of her death testate on June 20, 1956. After a bequest of $5.00 to appellee she bequeathed and devised the remainder of her property to James S. Wilson.

On July 6, 1956, James S. Wilson brought the instant partition suit against appellee claiming they were tenants in common of J. F. Linzey’s lands by reason of the adoption of his mother by J. F. Linzey in 1907. On August 15, 1956, James S. Wilson conveyed his interest in the lands to the appellant, Valentine Pardo who was duly substituted as party plaintiff in the suit. The chancellor adopted appellee’s contention that the order of adoption was, and is, void for want of jurisdiction, dismissed the complaint for want of equity and quieted appellee’s title to the lands as against the claims of the appellant and James S. Wilson.

Act 28 of 1885 was the statute governing adoptions when the instant order was made in 1907. It is noted that neither the order nor the petition upon which it was based stated that the child, Vena Vista Allen, was a resident of Monroe county at the time of the filing of the petition and the making of the order. These were the identical facts in the rather controversial but landmark case of Morris v. Dooley, 59 Ark. 483, 28 S. W. 30 and 430, where the court held that a proceeding in the probate court to adopt a child under the statute is a special statutory proceeding, not according to the course of the common law, nor in the exercise of the court’s general jurisdiction; and that a judgment rendered therein is void upon collateral attack if neither the judgment nor the petition states that the child was a resident of the county. The 3 to 2 decision has been followed in many subsequent cases including Minitree v. Minitree, 181 Ark. 111, 26 S. W. 2d 101, where another divided court held that the failure of the formal order of adoption to state that the child was a resident of the county constituted a jurisdictional defect which rendered it void upon collateral attack. Vigorous and eloquent dissents were written by Justice Riddick in the Dooley case and by Justice Frakk G. Smith in the Minitree case.

. The question arose again more recently in Dean v. Brown, 216 Ark. 761, 227 S. W. 2d 623, where this court in a unanimous decision said in reference to the Dooley case: “The correctness of the holding in that case is.not open to reconsideration by ns at this time. There are many cases of this Conrt which hold to be -void orders of ¿doption similar to the one at bar when the order failed- to recite the residence of the minor. ■ The case of Morris v. Dooley'is directly in point, and wé decliné to overrule it; so we hold that the purported order of adoption made by the G-arlarid Probate Court in 1911 is void on this collateral attack, because neither the order, nor the petition, showed that the minor, Nettie Bond, was a resident of' Carland County, Arkansas, at the time the order was made.” See also, Brunk v. Merchants National Bank, Executor, 217 Ark. 499, 230 S. W. 2d 932.

Appellant earnestly contends: (1) That appellee, being in privy with J. F. Linzéy, the adopting parent in the 1907 proceedings, is bound by and now estopped to attack the order; (2) that in granting the order a presumption arose as to the existence of the .jurisdiction of the Probate Court concerning its validity; and (3) that the adoption statutes should be most liberally construed in favor of the adopted child and so as to preclude a holding in favor of appellee. These propositions were ably urged by the dissenting justices but rejected by the majority in the Dooley and Miottree cases. We still decline to overrule those cases, and conclude that the 1907 adoption order is void for lack of jurisdiction. Since title to the lands in question vested in appellee upon the death of J. F. Liiizey in 1929, subject to the widow’s life estate, appellant is entitled to no relief under the curative provisions of Act 408 of 1947. Dean v. Brown, supra.

Appellant also contends that the petition for adoption and its recordation constituted a declaration of heirship by J. F. Linzey in favor of Vena Vista Allen so as to make her one of his heirs at law under Ark.. Stats. Secs. 61-301 and 61-302. It first should be noted that the petition was not recorded as required hy the second section of the statute until many years after title to the lands in question had already vested in appellee. J. P. Linzey did not execute or sign the petition nor did he acknowledge that he had done so, hut only executed a jurat verifying the instrument. An acknowledgment is a formal declaration of admission before an authorized public officer hy a person who has executed an instrument that such instrument is his act and deed. It is distinguished from a jurat in that a jurat-is.a ¡simple statement that an instrument is subscribed and-'Sworn to or affirmed before a proper officer without the further statement that it is the act or deed of the- person making it. 1 C. J. S., Acknowledgments, Sec. 1.; Jemison v. Howell, 230 Ala. 423, 161 So. 806, and other cases cited in Vol. 1, Words & Phrases, 62Ó. ÍSTor can the curative provisions óf Ark.- Stats., Sec.' 49-213, designed to cure defective acknowledgments be held to-sup-' ply an acknowledgment when in fact, there is none. Jackson v. Hudspeth, 208 Ark. 55, 184 S. W. 2d 906.

J." ÍVKLiUízey Avas not-merely seeking "to -declare the child his" heir in- the ihstant -proceeding.- His clear intent was to- declafé: her an- heir provided 1 he could adopt her ás Ms oavíi child;-but this attempt -failed-for the reasons already stated:; Under the- circumstances we cannot agree there has been sufficient compliance! Avitli the statute in question to make thq ¡.child one of his heirs at laAv. . . . .; ,u .1, ,

' The decree is affirmed. ' ' ■ ’

       “Sec. 61-301. Declaration — Acknowledgment.—In all cases hereafter, when any person may desire to make a person or persons his or her heirs at law, it shall be lawful to [do] so by a declaration in writing in favor of such person or persons, to be acknowledged before any judge, justice of the peace, clerk of any court, or before any court of record-in'this Státe.” •'< i • . ••••*' •' ' . , . ;
      “Sec. 61-302. Recording of declaration. — Before said declaration shall be'of any force or effect, it shall be recorded in the county where the said declarant may - reside, or in the county where the' person in whose favor such declaration is made, may reside.”


author:
George Bose Smith, J.
      Ed. F. McFaddiN, Associate Justice,

text:
    Mankin v. Dean.
    5-1464
    310 S. W. 2d 477
    Opinion delivered February 24, 1958.
    [Rehearing denied March 24, 1958]

      Pettus A. Kinccmnon, City Atty., for appellant.

      McMath, Leatherman & Woods and Dobbs, Pryor <& Dobbs, for appellee.
   George Bose Smith, J.

This is an action brought by the appellees, members of the Fort Smith fire department, for a writ of mandamus to compel the city commissioners to comply with Act 157 of 1957. The decisive question is whether the statute violates the constitutional prohibition against local legislation. Ark. Const., Amendment 14. The trial court held the act to be valid and issued the writ.

Before the passage of the act in question it was provided by general law that fire department employees in cities of the first class should not be required to work more than seventy-two hours a week, except in emergencies. Ark. Stats. 1947, § 19-2104. Act 157 added a proviso directing that in cities or towns having a commission form of government with a full paid fire department, no member of the department should be required to be on duty more than fifty-six hours a week, nor should there be a reduction in pay on account of the shorter work week. It is stipulated that the parties are not aware of any city except Fort Smith that is affected by Act 157.

It is settled by many decisions of this court that the Constitution permits the General Assembly to resort to classification if the varying treatment accorded to the different classes bears a reasonable relation to the purpose of the statute. We summarized the matter in Jacks v. State, 219 Ark. 392, 242 S. W. 2d 704: “General laws often apply uniformly throughout the State, but absolute uniformity is not essential in every instance. Classification is permitted, but the differences in the impact of the statute must be reasonably related to the purpose of the law. Webb v. Adams, 180 Ark. 713, 23 S. W. 2d 617; Simpson v. Matthews, 184 Ark. 213, 40 S. W. 2d 991. Thus the legislature may restrict the city manager form of government to the larger cities, as there is less need for the system in small communities. Knowlton v. Walton, 189 Ark. 901, 75 S. W. 2d 811. But a statute which applies only to counties of a certain population is local if relative population has nothing to do with the subject-matter of the law. State ex rel. Burrow v. Jolly, 207 Ark. 515, 181 S. W. 2d 479.”

Here the question is whether the form of city government is a factor to be fairly and logically considered in fixing the working hours of the fire department. The appellees rely confidently on the holding in McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707, but it is quite plain that that case, apart from the fact that it was decided before the adoption of Amendment 14, is not controlling here. There the legislature had originally fixed the salaries of the board of commissioners in cities of the first class having that type of government. By the amendment attacked in the McLaughlin case the legislature increased the salaries of the commissioners in cities having a population of 25,000 or more. We held the act to be valid, even though it applied only to Fort Smith, because it was so worded as to permit other cities to come within its purview in the future. We adhere to that view and do not intimate that Act 157 of 1957 is a local law merely because Fort Smith is the only city now affected by it.

In the McLaughlin case, however, the classification was in other respects so clearly reasonable that we did not find it necessary even to discuss the point. The act, it is true, applied only to cities having a commission government, but-that was unavoidable, as the sole purpose of the act was to fix the salary of the commissioners. Nor was it unreasonable to provide higher salaries in cities having more than 25,000 inhabitants, for the duties of the commissioners are undoubtedly more extensive'in the.-larger cities than in-the smaller'ones'.

■After careful study.-we are unable to find. any. substantial connection -between the work week of firemen a.nd the form of.municipal government. .Doubtless many considerations,.such, as the health of the workman and the occupational, hazards to which, he is subject, must be taken into account in arriving .at the maximum hours of .dufy^ for..a, fireman. But we are at a. loss .to see why the determination should.. ,be, controlled solely by. the f,orm of city., government. «It is not suggested, that, th^ firemen’s duties or working conditions in a city havv ing a board of commissioners are in any way dissimilar to those in a city having a mayor and-city council or a city manager. There' being no reasonable relation' -be1 tween the classification'and';thé"p'urpos'é :ó£ the'link, the distinction must- be'deeméd to be' arbitrary alid to violate the .prohibition against-'local legislation.' ■ • •

,le. are .urged to,hold that the General ..Assembly should be permitted,-t.o experiment with; new legislation in a ’ narrov field before making it applicable, to ;.the state as a, whole., However..^sin^.]3le, "syfr plight think that .course ;t.o be, Amendment14 coutains. no ..exception t.o its. positive command :. “The General ^ssemtílj^ shall not pass any local or special act'. ’ ’ If tins theory of experimentation were accepted it is hard to see "’what would be left of the constitutional'provision, for every'local measure could- be justified on the ground that it ■ was being preliminarily tested in a restricted area.

Reversed and dismissed. ' •-'■■■'

McFaddin, J., dissents. .

Ed. F. McFaddiN, Associate Justice,

dissenting. The learned Circuit Judge wrote a splendid opinion in deciding this case as he .did; and I think the majority should have affirmed his judgment. I copy portions of Judge Paul Wolfe’s said opinion:

In the opinion of the court all of these objections were met in the case of Nalley v. Throckmorton, 212 Ark. 525, 206 S. W. 2d 455. In that case the plaintiffs were members of the Little Rock Fire Department and they sought to force the City of Littie Rock to put into effect the 72 hour week provided for by Act No. 240 of 1947. . . . The City of Little Rock raised the same'objections there to avoid the 72 hour week as are raised now by the City of Fort Smith in seeking to avoid the 56 hour work week. The Supreme Court of Arkansas upheld the law creating the 72 hour standard and stated:

‘ ‘ The fact that enforcement of a law of general application to all classified cities may, as a practical proposition, compel the appointment of additional firemen does not render the legislative mandate void for want of due process, or for any other reason. ’ ’

Furthermore, in the City of Stuttgart v. Elms, Admr., 220 Ark. 722, 249 S. W. 2d 829, the Legislature had raised the salary of the Municipal Judge of the City'of Stuttgart ; and the City voiced the same objections as'are now raised by the City of Fort Smith. The ’Supreme Court again said that the argument of the City was without merit. . . .

The objection that Act 157 constitutes void local legislation would pose a formidable legal question but for the reliance this Court places upon the decision in McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707. This case was decided in 1925 prior to the adoption of Constitutional Amendment 14, but the considerations involved are identical with the prohibition raised by Amendment 14 for the reason that if the Act under review in McLaughlin v. Ford was local it would be unconstitutional as the then mandatory 30 day notice period of an intent to apply for a local bill had not been given as required by Article 5, Section 25 of the Constitution. Furthermore, McLaughlin v. Ford is actually one of the recognized landmark cases on the subject of general versus special legislation and has been cited many times in cases arising under Amendment 14. See LeMaire v. Henderson, 174 Ark. 936, 298 S. W. 327 (1927); Blytheville v. Bay, 175 Ark. 1089, 1 S. W. 2d 548 (1928); Webb v. Adams, 180 Ark. 713, 23 S. W. 2d 617 (1929); Cannon v. May, 183 Ark. 107, 35 S. W. 2d 70 (1931); Board of Commissioners v. Wood, 183 Ark. 1082, 40 S. W. 2d 435 (1931); Street Imp. Dist. v. Hadfield, 184 Ark. 598, 43 S. W. 2d 62 (1931); Conway County v. Williams, 189 Ark. 929, 75 S. W. 2d 814 (1934); Paige, Treas. v. Rodgers, 199 Ark. 307, 134 S. W. 2d 573 (1939); and Murphy v. Cook, 202 Ark. 1069, 155 S. W. 2d 330 (1941).

In McLaughlin v. Ford a taxpayer sought to void an Act of the 1923 Special Session of the Legislature on the ground that it applied only to the City of Fort Smith, and therefore was local in character. The act questioned raised the salary of certain Fort Smith officials and was passed as a direct amendment to Section 12 (the salary provision) of Act 13 of 1913. Act 13 authorized the commission form of municipal government for Arkansas cities and provided that upon adoption by the city concerned that the officials thereof should be paid certain salaries. The Amendment to Section 12 provided that cities having a population of 25,000 or more should pay their officials certain salaries, thus giving these officials a raise in pay. In the suit which followed it was acknowledged that the City of Fort Smith was the only municipality in the state affected, for while there were other cities in the state having a population of 25,000, Fort Smith was the only one of this category which also had a commission form of government. One of the two ultimate issues to be decided then, as in the case at bar, was whether legislation directed only to cities having a commission form of government constituted local legislation where only one city was affected. The decision was that such circumstances did not invalidate the legislation. In so holding the Court said:

“To make a law general it is not necessary that-it should operate upon all cities and towns in the State; but that it is sufficient if it applies to all towns and cities coming within the designated class ... to say that a general law cannot he passed to govern and regulate cities having a certain designated population or more, because only one city of that class exists, is to hold that no law can he passed to provide for future wants or necessities, . . . It may be, as contended by counsel for the plaintiffs, that Fort Smith is the only city in the State which falls within the provisions of the original act and the amendatory act; but when the provisions of both acts are considered, it will be readily seen that other cities may come within the provisions of the act in the future.”

The Court thus stated the “prospective in operation” test, as later applied to LeMaire v. Henderson, 174 Ark. 936, 298 S. W. 327, and other cases. Similar issues have arisen in other states. In a case notably like this one (Baumhauer, et al. v. State ex rel. Smith, 240 Ala. 10, 198 So. 272 (1940) decided by the Supreme Court of Alabama), the legislature had passed an act granting salary increases to firemen and policemen in incorporated cities governed by a commission form of government created under a 1911 act. It was charged that the act was special legislation and applied only to the City of Mobile, Alabama, which was the only city having a commission form of government. The Court dismissed the charge of special legislation and upheld the act, saying:

“The Act of March 4, 1937, does not attempt to classify cities as to population, but is a general act applicable to all cities that may elect to adopt the commission form of government under the Act of 1911. . . .”

In a recent Texas case (Smith v. City of Austin, [Tex. Civ. App.] 212 S. W. 2d 947 [1948]), a taxpayer urged that certain collection'laws under city government were invalid because they were provided for by special law. The law in question applied to “Home Rule” cities only. The Texas Court said:

“The legislature may classify similar subjects for legislative purposes so long as the classification is reasonable and not arbitrary. Legislative classification of cities or towns according to the mode of incorporation, i.e., by special law, general law, and by adopting Home Rule charters, has been long recognized and upheld.”

Similarly, in the case at bar, the Arkansas Legislature chose to classify cities according to their mode of incorporation and any city incorporating as a commission form’of'government is covered by Act 157. In Devlin v. Cooper, 125 N. J. L. 414, 15 A. 2d 630, 1940, the act in question made different provisions for certain officers of municipalities, depending upon whether the municipality had accepted or adopted certain state provisions relating to civil service. The effect of the act was' that one result would come about in tenure in office if civil service regulations had been voluntarily accepted by the city and another result if not. It was argued that the discrimination made the act special legislation. Said the Court:

“But the statute in question does not evidence the speciousness in generalization that is the deciding factor in the determination of unconstitutionality in issues of this character. It is well established that statutes may be operative and limited to specified types of municipalities. . . . The Legislature is g'iveu considerable discretion in this respect. There is undoubted legislative power to classify and differentiate among municipalities through the voluntary acceptance of the privileges and limitations of the Civil Service Act by some, while others choose to stay outside the act. . . . That is a right open to all municipalities if they wish to exercise it, so that it is general, not special. . . . The power to make classifications is original with and equivalent with the power to confer attributes on the classifications.”

The case at bar is an excellent example in concrete form of the language just quoted. Other cities in Arkansas have the right open to them to become commission cities, just as the legislature has the power to confer attributes on the various classes of Arkansas cities which it has created. . . .

It may also be said that Act 157 should have been passed as an amendment to Act 13 of 1913. Certainly it would not have been construed as a local exemption to that Act under the holding in McLaughlin v. Ford, supra, but in any event it does not appear proper for tlie judiciary to sit in judgment upon the paths the legislative branch elects to follow ^within its own chambers; at least we should not do so in the absence of a clear violation or manifest abuse of the legislative process. In this connection our Supreme Court has said that in classifications as a basis for the enactment of laws, the Legislature must be allowed a Avide latitude of discretion and judgment. Knowlton v. Walton, 189 Ark. 901, 75 S. W. 2d 811; Bollinger v. Watson, 187 Ark. 1044, 63 S. W. 2d 642. • '

There are, of course,. many cases, on the subject of local acts, but a review of them, fails to dislodge the validity of the analysis of Justice Ilar.t in the McLaughlin case and the supporting cases cited from, other jurisdictions. This is not “one mile from the court house” legislation as in Conway Co. Bridge District v. Williams, 189 Ark. 929, 75 S. W. 2d 814, nor is it apart, from the long sanctioned type of legislation which has been frequently utilized by the Legislature and approved by the courts. In this connection it should be,noted that since, the passing, of the 1913 Act authorizing .a commission.form.of Government that the practice of drafting legislation so as to pertain only to cities having a commission form of government has been an unchallenged legislative practice.. There are many acts pertaining to the City of. Fort Smith, that would be jeopardized with far reaching consequences by overturning what has thus been long accepted as a lawful approach. In the absence of cogent reasons which are lacking here surely s-uch a long established custom should not be ignored .and abruptly condemned without any form of caveat.

As a matter of course throughout the consideration of the questions presented herein the Court-has borne in mind the presumption that the Legislature ^ properly ■ exercised its authority, and where it is doubtful whether the Act violated the Constitution', the doubt must be resolved in favor of the constitutionality of the Act. Board of Commissioners of Red River Bridge District v. Wood, 183 Ark. 1082, 40 S. W. 2d 435; Buzbee v. Hutton, 186 Ark. 134, 52 S. W. 2d 647; Bollinger v. Watson, 187 Ark. 1044, 63 S. W. 2d 642.

Lastly, the Court would like to point out that while it is sympathetic with the problems of both the firemen and the City Commission, that the question of whether the firemen should or should not be given a raise or whether the city has or has not the money to pay an increase is not for this Court to decide in passing on this case. Our law is plain that the Legislature has supreme authority in this field when it elects to act, and as judge I am bound by the law. It follows that the only questions open for this court to pass upon in this case have to do with legal technicalities. In announcing this decision, I feel obligated to state that I do not feel that the law should be as it is, for it tends to deprive the people of the city of the right to manage their own household. In my private judgment the pay of city employees and the city’s financial affairs are both purely local matters which the taxpayers of the city should he allowed to pass on without outside directions. But this is not the law of the land, and I am hound by a higher principle which is universally recognized as sound, the principle that judges of courts are not to consider the wisdom of legislation nor let their private judgment interfere when passing upon the constitutionality of legislation.

I cannot improve on Judge Paul Wolfe’s opinion; so I adopt it as my dissent.


text:
    Harper v. Albright.
    5-1474
    310 S. W. 2d 475
    Opinion delivered February 24, 1958.

      Thomas L. Gashion and John M. Shackleford, Jr., for appellant.

      Carneal Warfield, for appellee.
   Paul Ward, Associate Justice.

This litigation arose over the sale of land under an oral contract. Appellant, the seller, sought to avoid the sale- on the ground that it was within the statute of frauds. The trial court held it was taken out of said statute by part performance, and appellant appeals from that decision.

On December 11, 1955 Odis N. Harper, appellant, and Carl Albright, appellee, entered into an oral agreement for the sale of 81.55 acres of land in Chicot County for a consideration of $3,000, $100 of which amount was paid at the time. The understanding was that ap-pellee, the purchaser, would have a limited time to pay the balance. Appellee took possession of the land before appellant attempted to revoke the sale, but appellant claims lie did so without Ms permission.' On January 25tli or 26th, 1956, appellant told appellee the deal was off and refused to execute the oral’sales agreement. A few days later appellee instituted this action to compel specific performance of the alleged oral agreement.

To better understand the issues presented, we set out below a summary of the various pleadings:

(a) February 1, 1956 appellee filed complaint against Odis N. Harper alleging the terms of the oral agreement and his willingness and ability to perform. The prayer was for specific performance.

(b) March 20, 1956 Harper filed a demurrer based on the statute of frauds, which was over-ruled.

(c) April 16, 1956, complaint amended to show appellant and his wife had conveyed the land to John Perry Murray and Bernice Murray, asking, to have them and appellant’s wife made parties. This was done.

(d) On September 11, 1956 appellants renewed their demurrer based on the statute of frauds and also entered a general denial.

(e) On the same day Murray and wife answered that they were innocent purchasers for value.

(f) On September 14,1956, appellee, without objection on the part of any- of the defendants, filed an amendment to his complaint alleging that he took possession of the land when he paid the $100 aforementioned and continued in possession until appellants repudiated the sales agreement, during which time he placed improvements on the land.

One. We cannot agree with appellants’ contention that the oral contract was within the statute of frauds. Part performance may take an oral contract for the sale of land out of the statute. The sufficiency and extent of the performance is a matter of evidence. This will be discussed in connection with the next point in the case.

Two. It is next insisted by' appellants that the conrt erred in finding appellee’s part performance was sufficient to take the oral agreement out of the statute of frauds. Our examination of the testimony sustains the court’s finding on this point.

It is admitted that appellee and Harper entered into the oral agreement, and that appellee gave Harper a check for $100 as part payment which was accepted and cashed. It is further admitted that the total purchase price was to he $3,000 and that the balance of $2,900 was to be paid later. The trial court found, and we think the evidence supports the findings, that: “Appel-lee was to secure a loan (on the.land in question and other lands belonging to him) to pay the. balance of the purchase price, and that this arrangement was made before appellant, Harper, tried to revoke the sale; . At about the same time the agreement was entered into or shortly thereafter appellee entered into possession of the land by cutting timber thereon, by repairing fences, by placing cattle thereon to pasture, and by renting the “cotton allotment” for the year 1956. Part payment of the purchase price and the taking' of possession'by appellee took the oral agreement out of the statute of frauds. See: Ferguson v. The C. H. Triplett Company. 199 Ark. 546, 134 S. W. 2d 538, and Person v. Miller Levee District No. 2, 202 Ark. 876, 154 S. W. 2d 15.

Three. Is is next insisted that no tender of the purchase price was made by appellee. We think the testimony sustains the Chancellor’s finding that such a tender was timely made. A few days before Christmas in 1955 the parties agreed to extend the time for securing the balance of the purchase price. On January 24, 1956 appellee’s attorney wrote a letter advising Harper that an insurance company had made a commitment for a loan of the necessary funds, enclosing a deed for Harper to sign. Harper was advised by the attorney that the balance would be paid in about 10 days when the “loan fund” would be available and when the signed deed was received. Upon receipt of the above mentioned letter and deed Harper went to appellee’s home and informed him, for the first time, that he would not execute the deed. The following day appellee secured all the balance of the purchase money and went to Harper’s home to pay him in full, hut could not do so because Harper and his wife had already deeded the land to John Perry Murray and his wife.

Four. We do not agree ivith appellant that there was no mutuality of remedy. Since, as we have seen, the oral contract was lifted out of the statute of frauds by part performance, it became binding on both parties.

Five. It is objected that “the court erred in granting specific performance as to this estate by the entirety.” It is true that Harper’s wife was not a party to the oral agreement to sell, but appellant overlooks the fact that she joined in the deed to the Murrays, thus divesting herself of any interest in the land. Murray and his wife were parties defendants to the litigation, and they have not appealed.

Six. There is no merit to appellants’ contention that appellee had an adequate remedy at law. The suit was for specific performance of a contract to sell land which is properly cognizable only in a court of equity.

Several other issues were injected into the trial of the case, but we have considered only the specific points relied on in appellants’ brief for a reversal. Since none of these points present reversible error, as we have heretofore pointed out, the decree of the trial court is affirmed.

Affirmed.