author: Carleton Harris, Chief Justice.

text:
    Hot Springs Civil Service Commission v. Miles.
    5-3363
    385 S. W. 2d 930
    Opinion delivered January 25, 1965

      Curtis L. Ridgeway and Nathan L. Schoenfeld, for appellant.

      Earl J. Masander, for appellee.
   Carleton Harris, Chief Justice.

Wayne Miles, appellee herein, a patrolman on the police force of Hot Springs, was accused of conduct unbecoming an officer, the alleged misconduct occurring about 9:00 A.M. on November 10, 1962, at a cafe in Hot Springs. Miles, who was not on duty at the time, was accused of drunkenness and other alleged improper conduct. An investigation was conducted by one of the police officers, and a written report was given to the Chief of Police. The chief discharged appellee, and an appeal from this ruling was taken to the Hot Springs Civil Service Commission. On December 4, 1962, a full scale hearing was held before that body, appellee being present with his attorneys, and the City Attorney of Hot Springs being present in his official capacity. Appellee did not testify, nor offer any other testimony, though it was conceded that he was intoxicated at the time of the alleged misdeeds. The commission upheld the discharge, and on January 3,- 1963, appellee filed notice of appeal -with, the commission. No transcript of the proceedings before the commission was filed with the Circuit Court until January 23, 1964, and in the meantime, the following events occurred.

On November 5,1963, Miles filed with the. Civil Service Commission a “pleading” headed “A Petition for Reinstatement.” On November 21, 1963, the commission met, with its secretary, and the legal adviser to the commission, the City Attorney of Hot Springs, and on the next day, issued a written order denying the petition. The appellee then filed a notice of appeal with the commission from this order, though the date of- such notice is not clear from the record.

Thereafter, on January 23, 1964, as he re to ford stated, the transcript of the December, 1962, hearing before the commission was filed in the Circuit Court.

On February 25, 1964, Miles filed an original petition with the Garland County Circuit Count, setting out that the Civil Service Commission had failed to file the transcript of the December, 1962, hearing, conducted by it, until approximately thirteen months had expired after the giving of the notice of appeal. It was asserted in the petition that the Circuit Court should disregard all portions of the transcript or record of that hearing because it was not timely filed.

Appellee then set forth that he had sought reinstatement on November 21, 1963, hut that reinstatement had been denied, though neither he nor his attorney was notified to appear. Miles then prayed that he be reinstated as a patrolman on the Police Department of the City of Hot Springs, “and this court should disregard all papers filed by the Civil Service Commission of the City of Hot Springs, Arkansas, in this proceeding and an Order should he entered directing the Chief of Police of the City of Hot Springs, Arkansas, to reinstate this petitioner.” On March 2, 1964, acting upon the petition filed in the Circuit Court, that court entered its finding as follows:

“That on December 4, 1962, said respondent made and entered an Order dismissing Petitioner from the Hot Springs Police Department:
“That said Petitioner filed with said respondent Notice of Appeal within the time provided for by law;
‘ ‘ That said respondent failed to file a transcript, or any documents, of said proceedings in this Court until January 23, 1964, more than one year later;
“That by their failure to file the above mentioned they totally failed to comply with Section 19-1605.1 [hereafter discussed] * * *
“That the failure of respondent to comply with the above Statute within the time provided for by law prevents this Court from taking jurisdiction of the transcript filed herein, and the Court cannot consider same .for any purpose;
“That on the 21st day of November, 1963, this Petitioner again petitioned the Civil Service Commission for a hearing and an Order was entered on the 21st day of November, 1963, denying reinstatement of this Petitioner, and the minutes of the meeting were filed showing that your Petitioner, Wayne Miles, or his attorney, were not notified to appear at said hearing; * * * ”

The order then directed the Chief of Police and the Civil Service Commission to reinstate Miles to his position as Patrolman, with full pay from November 21, 1963, to date. From the order so entered, the Hot Springs Civil Service Commission brings this appeal. Appellee cross-appeals from that portion of the order directing reinstatement as of November 21, 1963, contending that the reinstatement should have been ordered as of December 5, 1962.

The principal issue argued in the briefs relates to the responsibility of filing the transcript. Appellee vigorously argues that the duty rests with the commission, and bases this argument upon the provisions of Ark. Stats. Ann. § 19-1605.1 (Snpp. 1963). The pertinent portions of that section read as follows:

“A right of appeal by the City or employee is hereby given from any decision of the Commission to the Circuit Court within whose jurisdiction the Commission is situated. Such appeal shall be taken by filing with the Commission, within thirty (30) days from the date of such decision, a notice of appeal, whereupon the Commission shall send to the Circuit Court all pertinent documents and papers, together with a complete transcript of all evidence and testimony adduced before the said Commission and all findings and orders of the Commission. The Circuit Court shall review the Commission’s decision on the record and may in addition hear testimony or allow the introduction of any further evidence upon the request of either the City or the employee, provided such testimony or evidence be competent and otherwise admissible.”

Of course, it is obvious from reading the statute that the initial obligation to file the transcript rests with the commission, but it does not necessarily follow that the commission’s failure to perform this act has the ultimate effect of reinstating an employee to his original job— simply because there was a failure to perform a ministerial act. One does not need undue powers of perception .to recognize that the holding sought by appellee could result in a deterioration of the efficiency of an affected department (here — the Police Department), as well as a loss of confidence by the general public in such department.

A similar argument has, on several occasions, been made to this court relative to Ark. Stats. Ann. § 26-1307 (Eepl. 1962). That section provides r

“If a party appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment the clerk of the court or the justice of the peace of the court from which the appeal is taken must file the transcript of the judgment in the office of the circuit court clerk within thirty (30) days after the rendition of the judgment.”

This section was passed in 1953 as an amendment to the original act, which was passed in 1939. Prior to passage of the 1953 amendment, this court had consistently held that the burden of filing the transcript with the Circuit Court rested upon the appellant. In Whitely v. Pickens, 225 Ark. Ark. 845, 286 S. W. 2d 4, decided in 1956, the 1953 amendment, heretofore quoted, was called to the court’s attention, it being contended that the burden of filing a transcript, after an appeal had been taken, had been definitely placed on the clerk of the court. We did not agree with that contention, stating:

“As we construe Act 203 of 1953, it just simply amended Section 1 of Act 323 of 1939 [§ 26-1307 Ark. Stats. 1947] so as to place the responsibility of filing the transcript, within the 30 day peirod, upon the clerk of the Municipal Court rather than upon 'the party who appeals ’ but left the burden on appellant to see that the transcript was so filed within that period. The Act also omits and repeals that provision, or the last sentence, in Section 1 of Act 323 which says: 'If the transcript of the judgment is not filed within 30 days after the rendition of the judgment, execution can be issued against the signers of the appeal bond.’ This Act 203, however, leaves in full force and effect, and does not repeal, the. second subdivision of § 26-1302 Ark. Stats. 1947, which provides: ‘The appeal must be taken within thirty (30) days after the judgment was rendered, and not thereafter. ’
“We hold that the burden was on appellant to see that the transcript was lodged with the Circuit Court within the 30 day period and that Act 203 of 1953, which was an amendment to Act 323 of 1939, does not change the law in this respect.”

We are of the opinion that appeals from' the Civil Service Commission are governed likewise, and though the transcript is due to be lodged by the Commission, the burden is on the appellant to see that this is done. Let it be remembered that Miles was not helpless to perfect his appeal simply because the.commission had not filed it. He, very properly, could have timely applied to the Circuit Court for a writ of certiorari and that court could have ordered the record prepared and filed; there was also available to appellant the remedy of mandamus. Placing the burden on the appellant to see that a transcript is filed seems entirely logical. After all, an appellant is the aggrieved party, and the principal person (or body) interested in, and benefited by, a reversal of an adverse ruling. Because of this paramount interest, an appellant should be responsible for all steps in a proceeding that might inure to his (or its) benefit.

As to the appeal from the second order of the commission (refusing to reinstate Miles), we find no statutory authority for petitions for “reinstatement,” i.e., such procedure cannot be utilized as a substitute for an appeal from the original order. The same is true of an original petition filed in the Circuit Court seeking the same relief. Of course, if one can file an original petition with the Circuit Court after receiving an adverse ruling before the Civil Service Commission, there is no need for any statutory provision for appeal; in fact, there would be no occasion to even conduct, a hearing-before the Civil Service Commission, for the findings of that body would not be before the court and would accordingly be meaningless and without effect.

Appellee’s sole remedy from the ruling of the commission was through appeal, as set forth in the statute, heretofore quoted, and the petition for reinstatement, as well as the petition filed in the Circuit Court, was of no effect, and any orders based on those petitions were likewise ineffective. Having failed to properly proceed with his appeal from the order of December 4, 1962, appellee cannot obtain relief.

The Judgment of the Circuit Court is reversed with directions to overrule and set aside its order of reinstatement. This will, of course, leave the Civil Service Commission order of December 4, 1962, in full force and effect.

It is so ordered.

       This wa.s a luncheon meeting at a restaurant. No witnesses for either appellee or the city were called or present.

       The 1939 act read as follow: “A party who appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment must file the transcript of the judgment in the office of the circuit court clerk within 30 days after the rendition of the judgment. If the transcript of the judgment is not filed within 30 days'after the rendition of the judgment, execution can be issued against the signers of the appeal bond.”


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate justice.

license: Public Domain

text:
    Gwatney v. Allied Companies, Inc. of Ark.
    5-3331
    385 S. W. 2d 940
    Opinion delivered January 25, 1965.

      Tommy H. Russell and Ruby E. Hurley, Spitzberg, Bonner, Mitchell & Hays, By: Beresford L. Church, Jr., for appellant.

      H. B. Stubblefield, for appellee.
   Ed. F. McFaddin, Associate justice.

This litigation concerns some of the affairs of an insurance company, last named Great Security Life Insurance Company, formerly named Great Eastern Assurance Company and also Great Eastern Life Insurance Company. We will use tlie words “Great Security” for said insurance company.

On June 6,1963, Allied Companies, Inc. of Arkansas (sole appellee here) filed this suit in the Pulaski Chancery Court against Great Security, Arkansas Memorial Gardens, Inc., Tommy H. Russell, Harold Gwatney, H. J. DeArmon, and E. J. DeArmon. The germane portion of the complaint alleged:

(a) that Great Security was indebted to Allied Companies, Inc. of Arkansas (hereinafter called “Allied”) in the sum of $19,672.42 and interest for cash loans;

(b) that Great Security purported to have issued 150,000 shares of its stock to Arkansas Memorial Gardens, Inc. for 698 burial spaces, but that such attempted issue was unauthorized and the entire transaction should be set aside and the stock cancelled;

(c) that the said 150,000 shares of stock in Great Security was transferred by Arkansas Memorial Gardens, Inc. to Harold Gwatney, but that he was not an innocent or bona fide holder for value and that said Gwatney should be enjoined from transferring said stock until trial herein, when the stock should be cancelled; and

(d) that H. J. DeArmon and E. J. DeArmon should be enjoined from reissuing or rewriting any policies for Great Security and/or receiving any commissions.

A temporary injunction was issued, upon the plaintiff making bond, to prevent the transfer of the stock or the paying of excessive commissions to H. J. and/or E. J. DeArmon. Each and all of the named defendants filed general denials. Trial in the Chancery Court, with evidence taken ore terms, resulted in a decree: (1) awarding Allied a judgment against Great Security for $20,-372.46, debt and interest; (2) cancelling the 150,000 shares of Great Security stock issued to Arkansas Memorial Gardens, Inc. and the deed from Arkansas Memorial Gardens, Inc. to Great Security for the 698 burial spaces; (3) declaring the stock certificates for said 150,-000 shares then held by Harold Gwatney to be void and to be cancelled; and (4) that the temporary injunction had been rightfully issued and there was no liability on the bond.

From such decree all of the named defendants except Arkansas Memorial Gardens, Inc. have prosecuted this- appeal. Harold Gwatney has filed a separate brief, but all the other defendants (appellants) have joined in one brief. In all, a total of five points are listed by appellants, but we wall discuss these under our own topic headings.

I. The Judgment In Favor Of Allied. It was definitely established that Allied had actually furnished cash to Great Security in excess of $25,000.00; that $5,-500.00 of the amount had been repaid; and that the balance was still due and owing. The judgment in favor of Allied against Great Security for the amount awarded was correct.

IT. Bond Liability. The Court was correct in issuing the temporary injunction against the transfer of the stock pending trial, and in preventing the payment of excessive commissions to the DeArmons. The Court was correct in holding that there was no liability on the said bond.

III. The Issue Of Stock To Arkansas Memorial Gardens, Inc. For Burial Spaces. Some time in 1962 Great Security issued 150,000 shares of stock to Arkansas Memorial Gardens, Inc. for 698 burial spaces. It was shown that Allied owned substantial number of shares of stock in Great .Security and, as such stockholder, it assailed the transaction.

Ark. Stats. Ann. § 66-2628 (Repl. 1957) states the conditions under which an insurance company may invest in real estate; and there is no evidence in the record before us that would make legal tlie issuance of insurance company stock for these cemetery lots. Allied, as a stockholder in Great Security, had a right to attack the issuance of the stock for the cemetery lots in this suit since both the Arkansas Memorial Gardens, Inc. and Great Secuiity were defendants; and Allied, as a stockholder in Great Security before and at the time of the issuance of the stock for the cemetery lots, made proof that its stock rights were adversely affected by such issuance. 18 C.J.S. p. 702, “Corporations” § 249. The Chancery decree declared the issuance of the 150,000 shares for the burial spaces to be an unauthorized act, and we affirm the decree.

IV. The Status Of Harold Gwatney As The Present Holder Of The 150,000 Shares Of Stock, This is the most troublesome issue in the case. The Trial Court held that the stock certificates for the 150,000 shares should be cancelled, even in the hands of Harold Gwatney; and he has appealed from that decree and claims that he is a bona fide holder for value of the said certificates. He introduced evidence that he borrowed $37,500.00 from Tommy Russell and paid it to Arkansas Memorial Gardens, Inc. and received the stock certificates for the 150,000 shares and had the same transferred to him oil the books of Great Security. If he is a bona fide purchaser for value of the said stock certificates, then the certificates cannot be cancelled. In Park v. Bank of Lockesburg, 178 Ark. 669, 11 S. W. 2d 483, we held that a corporation could not claim the invalidity of the original issue of a stock certificate as against a person who, subsequent to the original issue, acquired the stock as a bona fide holder. Ark. Stats. Ann. § 85-8-301 et seq. (Add. 1961) is a part of the Uniform Commercial Code, and reads in part:

“. . . (2) a bona fide purchaser in addition to acquiring the rights of a purchaser also acquires the security free of any adverse claim. ...”

Was Harold Gwatney a bona fide purchaser for value? The cases hold that one who claims to be a bona fide purchaser of stock which is or was originally invalidly issued, has the burden of proving himself to be a bona fide purchaser. In 18 C.J.S. p. 708, “Corporations” § 252, the text reads: ‘ ‘ The burden of establishing his status as a bona fide purchaser for value is upon one who alleges it.” Black’s Law Dictionary defines “bona fide” as being “in or with good faith; honestly, openly, and sincerely; without deceit or fraud. Truly; actually; without simulation or pretense . . .” And the same dictionary defines a “bona fide purchaser” as “a purchaser in good faith for valuable consideration and without notice.

In the light of the foregoing statements as to the burden of proof and the definition of a bona fide purchaser, we turn to the evidence to see whether Harold Gwatney established his claim as a bona fide purchaser. He testified that he and Bussell had been together in several corporations; that he was interested in another insurance company and purchased this stock in Great Security in order to attempt a merger of the two companies. He admitted that before he bought this stock he checked the financial statement of Great Security. The auditors testified in detail as to the financial statement of Great Security. It was insolvent. If Gwatney even saw such statement of Great Security he knew that the company was insolvent. Thus, with knowledge that Great Security was insolvent, Gwatney testified that he borrowed $37,500.00 from Tommy Russell, who was president of Arkansas Memorial Gardens, Inc., and paid that amount to Arkansas Memorial Gardens, Inc. and its subsidiary, North Hills Memorial Gardens, for the said 150,-000 shares of stock in Great Security. What of the $37,-500.00 note that Gwatney executed to Russell? It has not been paid. Here is Gwatney’s. testimony:

“Q. Have you paid the money back yet?
“A. No, sir, and I am not going to pay him either until this is settled.-
“Q. You mean you are going to see about the stock before you pay it?
“A. Yes, sir. I mean there is no need of me paying him until this is settled. This is the man I dealt with.”

Mr. Russell was Gwatney’s codefendant and his attorney in this case and never made any protest when Gwatney said that he was not going to pay 'the note until his lawsuit was settled. So it is doubhful if Gwatney will ever pay anything. With all of this evidence, and other in the record, the Trial Court found that Gwaithey had not sustained the burden of proving himself to be a bona fide purchaser for value; and after a careful study of the record we cannot say that such finding is against the preponderance of the evidence; so we affirm the deere of .the Trial Court.

It is well here to add that pending this appeal Great Security was declared insolvent and placed in the hands of the Insurance Commissioner of Arkansas and he has filed his appearance in this appeal.

Finding no error, the decree is affirmed.

       There were two other individuals named originally as defendants, but as to them the complaint was reserved for future determination, so they passed out of this case.

       These def endants-appellants who here united in one brief are: Great Security, Tommy H. Russell, H. J. DeArmon, and E. J. De-Armon.

       Parc of this stock was issued to North Hills Memorial Gardens, which was connected with Arkansas Memorial Gardens, Inc. We treat the two as one. The decree cancelled the conveyance of the burial spaces to Great Security, and Arkansas Memorial Gardens, Inc. has not appealed.

       The majority of other jurisdictions hold to the same effect. See 13 Am. Jur. p. 328, “Corporations” § 219; 18 C.J.S. p. 702, “Corporations” § 249; Fletcher’s Cyclopedia of Corporation Law, Permanent Ed., Vol. 12, p. 631, § 5542; and see annotations in 73 A.L.R. p. 1435; and 78 A.L.R. 2d 834, particularly p. 876.

       Some of our own eases considering the matter of a bona fide purchaser are: Fargaon v. Edrington, 49 Ark. 207, 4 S. W. 763; Woolridge v. Thiele, 55 Ark. 45, 17 S. W. 340; Henry Wrape Co. v. Cox, 122 Ark. 455, 183 S. W. 955; and Shuffield v. Raney, 226 Ark. 3, 287 S. W. 2d 588.


author: Ed. E. McFadden, Associate Justice.

text:
    Davis v. Colvin, Judge.
    5-3438
    385 S. W. 2d 944
    Opinion delivered January 25, 1965.

      Ohmer G. Burnside, Jr., Pope, Pratt & Shambur ger and Wright, Lindsey, Jennings, Lester & Shults, for Petitioner.
    No brief field for Respondent.
   Ed. E. McFadden, Associate Justice.

This is an original proceeding for a writ to prohibit the Circuit Court of Chicot County from entertaining jurisdiction of an action filed therein by A. J. Hulett against the petitioners herein, Harold Davis and Harold Ives; and involves the Act No. 32 of 1961, later to be discussed. A traffic mishap occurred between two motor vehicles on March 27, 1964, near McGehee in Desha County. The occupants of one vehicle were the petitioners, Harold Ives and Harold Davis, both residents of Arkansas County; and the occupant of the other vehicle was A. J. Hulett, a resident of Chicot County. Under Ark. Stats. Ann. § 27-610 (Repl. 1962), the venue for any action resulting from such a mishap would be in either (a) the county of the mishap (Desha), or (b) the county of the residence of the plaintiff bringing such action.

On June 18, 1964, Harold Ives- filed action against A. J. Hulett in the Circuit Court of Arkansas County (i.e., the county of residence of said plaintiff) for damages resulting from the said traffic mishap; and on June 23, 1964, Harold Davis filed action against A. J. Hulett in the Circuit Court of Arkansas {i.e., the county of residence of said plaintiff) for damages resulting from said traffic mishap. Summons against the defendant. A. J. Hulett, was duly issued in each of the Arkansas County actions on the date of the filing of the respective complaints, and the summonses were sent to the Sheriff of Chicot County for service on the defendant, A. J. Hulett. All of these summonses were received by the Sheriff of Chicot County on June 25, 1964, but for reasons we need not recount (which do not reflect on the Sheriff in any way) service on A. J. Hulett was not obtained until June 29, 1964. In the meantime, and on June 27, 1964, A. J. Hulett, as plaintiff, filed action against Harold Davis and Harold Ives in the Circuit Court of Chicot County for damages resulting from the said traffic mishap, and forwarded the summonses to the Sheriff of Arkansas County, where the said defendants were each served on June 29, 1964.

In the said case pending in Chicot Circuit Court the defendants, Davis and Ives, filed their motions to dismiss, alleging that the Arkansas Circuit Court had obtained jurisdiction of Hulett before he filed his action in the Chicot Circuit Court. When the Chicot Court refused to sustain the said motion to dismiss, the said Davis and Ives filed the present petition in this Court for a writ of prohibition; and the record before us contains all of the pleadings, summonses, and returns in the three cases, as well as the testimony heard in the Chicot Circuit Court on the said motion to dismiss.

Prior to the Act No. 32 of 1961 (as now found in Ark. Stat. Ann. § 27-301 [Repl. 1962]), the matter of jurisdiction was dependent on actual and legal service of summons; and our cases reflect this “race for service”: Kornegay v. Auten, Judge, 203 Ark. 687, 158 S. W. 2d 473; Sims v. Toler, Judge, 214 Ark. 732, 217 S. W. 2d 928; Healey & Roth v. Huie, Judge, 220 Ark. 16, 245 S. W. 2d 813; and Carnes v. Strait, Judge, 223 Ark. 962, 270 S. W. 2d 920. To avoid this “race for service” the 1961 Legislature adopted the said Act No. 32, which, in its entirety, reads:

“AN ACT to Amend Civil Code Section 58 (Ark. Stats.
(1947) Section 27-301) to Define the Time of Commencement of a Civil Action.”
“Be It Enacted by the General Assembly of the State of Arkansas:
“ SECTION 1.Civil Code Section 58 (Ark. Stats. (1947) Section 27-301) is amended to read as follows:
“ £ A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon, and placed in the hands of the sheriff of the proper county or counties. If two or more actions are commenced in different courts involving the same subject matter, where the venue is proper in each, then that court shall acquire jurisdiction, to the exclusion of the other, wherein a complaint was filed and a summons issued thereon, and first placed in the hands of the sheriff of the proper coimty or counties, irrespective of the time of service of summons. Each clerk of court shall endorse on each complaint the exact date and time of day' when the complaint toas filed and a summons issued thereon and each sheriff shall endorse on each summons the exact date and time of day when the summons was placed in his hands.’ ”

Under the facts in this case, the summonses in the Arkansas County actions were placed in the hands of the Sheriff of Chicot County for service on A. J. Hulett on June 25,1964. Such placing for service was bona Fide and in no way fictitious, and subsequent actual service proved to be good in favor of the plaintiffs. Such placing of the summonses in the hands of the Sheriff of Chicot County on June 25th established the jurisdiction of the Arkansas Circuit Court. The action filed by Hulett in Chicot County on June 27th should have been dismissed, since the Circuit Court of Arkansas County had already obtained valid jurisdiction.

Some time ago this case was presented to this Court and a temporary writ of prohibition was issued. The temporary writ is now made permanent against the Circuit Court of Chicot County.

       We have italicized the language added by the Act No. 32 to the previously existing section. In 15 Ark. Law Review, p. 427, there is this comment about the said Act No. 32: “The only change effected by Act 32 is in the determination of prior jurisdiction in venue races where the same subject matter is involved. By giving jurisdiction to the court where the summons is first received by the serving officer, premium is placed on a plaintiff’s diligence in filing suit rather than on the uncertainties of process service.”


author: George Rose Smith, J.

text:
    Younts v. Crockett.
    5-3354
    385 S. W. 2d 928
    Opinion delivered January 25, 1965.

      Neill Bohlinger and Cooper Jacoway, for appellant.

      Shelby R. Blachmon, for appellee.
   George Rose Smith, J.

This is a suit by the appellants, Younts and his wife, to quiet their title to a tract of six or seven acres lying on the west bank of the Arkansas river. In 1917 the land in dispute was part of a larger tract which was platted in that year as Lot 1. As platted, Lot 1 was a long narrow lot that extended from the river bank on the east to Lot 5 on the west. The appellants are the owners of Lot 5. They contend that after the two lots were plaltted the river gradually moved to the west to such a distance that Lot 1 was completely submerged and eroded away. They further contend that the river then gradually moved back to the east, so that the parcel now in dispute was re-created as an accretion to Lot 5.

The appellees, Crockett and his wife, hold the record title to the land in controversy. They deny that the river ever shifted sufficiently far to the west to destroy the identity of Lot 1 in its entirety. The chancellor decided the issue in favor of the appellees, holding that the plaintiffs had failed to sustain the burden of proving that Lot 1 had been destroyed by erosion.

The question is essentially one of fact, the parties being substantially in agreement about the controlling rules of law. If the gradual westward movement of the river’s channel finally submerged Lot 1, so that it was wholly engulfed by the shifting bed of the river, Lot 1 went out of existence. In that event the tract iioav in dispute Avould have re-emerged as an accretion to Lot 5. Wallace v. Driver, 61 Ark. 429, 33 S. W. 641, 31 L.R.A. 317. On the other hand, if the Avestern boundary of Lot 1 A\ras submerged only by temporary overfloAVs that did not last long enough to establish a new high-water mark as that term is defined in our cases, Lot 1 was not destroyed. St. L., I.M. & S. Ry. v. Ramsey, 53 Ark. 13 S. W. 931, 8 L.R.A. 559, 22 Am. St. Rep. 195; State ex rel. Thompson v. Parker, 132 Ark. 316, 200 S. W. 104.

The principal testimony tending to support the appellants ’ position is that given by Mr. Younts himself. He bought Lot 5 in 1950, but he had lived in the vicinity since 1935, Avhen he Avás in his late teens. In 1935 the channel of the river Avas more than half a mile east of the boundary between Lot 1 and Lot 5. Younts says that between 1935 and 1942 the river moved gradually to the west until it had crossed this boundary by about fifty feet. This gradual movement does not seem to have been continuous, however, for Younts testified that the river “moved slowly by caving [the bank] some on each high water.” Upon this proof the chancellor may have found that the stream’s progress to the west occurred sporadically in periods of temporary overflow.

According to Younts, the main channel of the river flowed west of Lot 1 for eight years, from 1942 until it began to shift back toward the east 'in 1950. On cross examination and again on rebuttal Younts stated positively and unequivocally that the western edge of Lot 1 was completely submerged for eight years. For instance, upon being asked whether this land was under water continuously during that interval or for only part of the time, he replied, “Continuously.”

These statements by Younts are only scantily corroborated by other witnesses and in our opinion are outweighed by .the appellees’ proof. A map prepared in 1947 by the engineers for a drainage district shows that Lot 1 was not then under water. Four witnesses for the appellees — Crockett, Simmons, Hall, and Teasley — testified that several acres-of the tract in dispute were in cultivation in 1946 and succeeding years. An aerial photograph taken in 1950 indicates that the river was then 910 feet cast of the common boundary between Lot 1 and Lot 5.

The appellants rely strongly upon an undated aerial photograph, apparently taken in 1945, that seems to show that the river’s waters were then west of the boundary line in question. We are unwilling to accept this single exhibit as decisive, for (a) the one witness who attempted to interpret it may have been mistaken about where the lands in controversy were portrayed, (b) the river may have been at a temporary flood stage, and (c) the contention that Lot 1 was completely and permanently inundated in 1945 cannot be reconciled with the appellees’ persuasive proof that part of this same land was susceptible of cultivation in 1946. Finally, there are indications, including a 1950 aerial photograph, that the timber on Lot 1 could not have reached its size at the time of trial if the land had been part of the river bed as late as 1950.

As plaintiffs the appellants had the burden of proving that the channel of the river, as distinguished from its temporary overflow, crept so far westward that the boundary between the two lots was wholly submerged. After a careful study of the testimony and the exhibits we are unable to say that the weight of the evidence is contrary to the chancellor’s conclusion that this burden of proof was not sustained.

Affirmed.


text:
    Coffelt v. Gordon.
    5-3532 and 5-3533
    385 S. W. 2d 939
    Opinion delivered January 25, 1965.

      Kenneth Goffelt, for appellant.

      Gordon & Gordon, Felver A. Roioell, Jr. and E. B. Billon, Jr. for appellee.
   George Rose Smith, J.

In each of these two companion cases the trial court entered an order sustaining a demurrer to the complaint and granting the plaintiff ten days in which to amend. Roth plaintiffs filed notices of appeal and in due time lodged the records in this court.

The appellees have filed motions to dismiss the appeals, under our settled rule that an order 'which merely sustains a demurrer, without dismissing the complaint, is not a final appealable order. Ark. State Board of Architects v. Larsen, 226 Ark. 536, 291 S. W. 2d 269. The appellants, citing Nunez v. O. K. Processors, 238 Ark. 346, 381 S. W. 2d 754, have asked us to withhold our ruling upon the motions to dismiss and to permit the appellants to perfect the records by obtaining and bringing up the necessary final orders and notices of appeal therefrom.

We are unwilling to extend the doctrine of the Nunes case to the situation now before us. That case was unusual in that, despite the absence of a final order, both parties filed printed briefs in which the case was argued on its merits. It was evident that the appellee was willing to forego its right to have the appeal dismissed and preferred instead to submit the case for a decision on the merits. In the circumstances we invited the litigants to supply the deficiency in the record by agreement.

These cases are markedly different from that one. Here no briefs have been filed. The appellees, by filing their motions to dismiss, are insisting upon their right to take advantage of the jurisdictional defect in each record. We have no reason to think that the appellants are actually seeking a delay, but it is quite apparent that if we should allow time for the perfection of the records in this instance a precedent would be established that might readily be used for dilatory purposes in the future.

The appeals must be dismissed. To avoid needless expense, however, we think it appropirate to sav that if the appellants elect to obtain the necessary final orders and to file their appeals therefrom we will entertain motions to permit the present transcripts to be used in those cases.

Appeals dismissed.

Robinson, J., not participating.


author: Paul Ward, Associate Justice.

text:
    Hubbard v. Elam.
    5-3398
    385 S. W. 2d 925
    Opinion delivered January 25, 1965.

      John D. Eldridge, for appellant.

      Jetones F. Daugherty, for appellee.
   Paul Ward, Associate Justice.

Appellants prosecute this appeal from a decree of the trial court refusing to cancel a warranty deed executed by them to appellee, R. L. Elam.

On,, December 29, 1962 appellants, who apparently owned considerable lands in Woodruff County, entered into a contract to sell Elam 80 acres of land for the sum of $8,000 — $1,000 in cash and the balance in five equal annual installments. On January 18, 1963 the deed was executed and delivered in accordance with the contract. Thirty acres of the land were (or previously had been) in cultivation.

Briefly stated, the litigation arose out of the following factual situation. When the contract was entered into it was apparently assumed hy appellants that they could sell the land without transferring any of the rice or cotton allotments. However, it was later determined that, according to the regulations of the'Agricultural Stabilization Conservation Committee of the Department of Agriculture, 6.4 acres of cotton and 14.1 acres of rice allotments must accompany the land being conveyed.

In their complaint against Elam (and two renters on the land who are not concerned in this appeal) appellants alleged, in addition to the facts above set out, that “there was an express agreement between the parties and it was the distinct understanding that no allotted crop ...” would pass with the sale, and that “the purchase price was based on that assumption”; that 'there was no meeting of the minds; that the contract “is subject to cancellation on the grounds of a mistake . . .” Tender of the $1,000 down payment was made in court, and the prayer was for cancellation of the deed. In answer, appellee denied all material allegations in the complaint, and asserted that the deed was executed without any reservation or limitation. After a full hearing the trial court held that appellants “have not met the burden of proof which evolves upon them . . .”, and then dismissed appellants’ complaint. This appeal follows.

The only point relied on hy appellants for a reversal is that ‘ ‘ the preponderance of the evidence entitled plaintiffs (appellants) to a recision of the conveyance . . . on the grounds of mistake and unjust enrichment”. Actually, in their argument, appellants urged three separate grounds. One, Mutual Mistake; Two, Unilateral Mistake; and Three, Unjust Enrichment.'

One. We agree with appellants that our decisions make it clear that Equity has power to cancel a transaction for a mutual mistake by the contracting parties. It appears to us however that appellants are in no position to urge such ground in this case. In their complaint appellants stated that “there was an express agreement between the parties and it was the distinct understanding that no allotted crops, either rice or cotton, would pass with the sale of the land and the purchase price was based upon that assumption”. To sustain that part of the complaint Mr. Hubbard testified to the effect that he had such an understanding with Mr. Elam. The vice president of the First State Bank of McCrory was called to confirm a conversation between Mr. Elam and Mr. Hubbard, but he admitted he was not sure the matter of crop allotments was brought to the attention of Mr. Elam. Mr. Elam testified positively that they had no such agreement. In this situation the chancellor held appellants “have nolt met the burden of proof which evolves upon them”. We cannot say the chancellor’s holding on this point was contrary to the weight of evidence, especially in view of other facts disclosed by the record. Mr. Hubbard signed a contract to sell, he signed a warranty deed, and he wrote two letters to Mr. Elam before the deal was closed, and the matter of crop allotments was not mentioned in any instance.

Tioo. Appellants ably argue that the case should be reversed because of a unilateral mistake made by them. Apparently (this contention is based on the fact, or rather the assertion, that Mr. Hubbard did not know the allotment would follow the land. Several citations are listed in support, such as: Frazier v. State Bank of Decatur, 101 Ark. 135, 141 S. W. 941, and Fleischer v. McGehee, 111 Ark. 626, 163 S. W. 169. These cases do hold that a contract between two parties may be rescinded (as opposed to being reformed) by a chancery court because of a mistake of one party only. We think, however, these cases have little, if any, relevancy here because of the dissimilarity of the factual background.

What appears to be the modern, and we think the better, rule relative to recision for a unilateral mistake, is well stated in 13 Am. Jur. 2d, Cancellation of Instruments § 32, which reads:

‘ ‘ Equity will relieve a party from a unilateral mistake that was a result of fraud or duress or was'accompanied by other special facts creating' an independent equity on behalf of the mistaken person, such as inequitable conduct of the other party, but cancellation should not be decreed against a party whose conduct did not contribute to or induce the mistake and who will obtain no unconscionable advantage therefrom.”

In Hubbert v. Fagan, 99 Ark. 480, 138 S. W. 1001, the Court quoted with approval the following:

“Where relief is given because of the mistake of one party alone, it is where it is induced by the conduct of the other party or because the other seeks unconscionably to take advantage of it, and the ground of jurisdiction is really fraud.”

Appellants say however that if there was not a mistake of fact then there was a mistake of law in that they did not know the allotment followed the land. The matter of allotment's appears to be a matter of government regulations, but whether this be considered a mistake of law or fact is of, no consequence. In Security Life Insurance Company v. Leeper, 171 Ark. 77, 284 S. W. 12, we said:

44 The final contention is that there was a mutual mistake as to the law which induced the settlement, and that appellee is not bound by it. It is a rule of almost universal application that a mistake of law, in the absence of fraud or undue influence, does not afford grounds for the abrogation or reformation of a contract.”

There is no hint in this case that appellee practiced fraud or undue influence on appellants.

The record discloses that after the contract was signed but before the deed was signed and delivered appellants learned that 6.4 acres of cotton allotment would go to appellee, and that appellants’ attorney wrote a letter of protest to appellee’s attorney demanding more money for the land. The record further discloses that before appellee knew of this protest appellants signed the deed and mailed it to appellee. It was after, the deed was delivered to appellee that appellants learned that 14.1 acres of rice allotment went with the land. We feel that the above incident in no way affects the issues here raised by appellants. The reason is that if any mutual or unilateral mistakes were made by the parties hereto or either of them they were made before the contract and the deed were signed and delivered.

Three. We find no merit in appellants’ final contention that the deed to appellee should be cancelled on the ground of unjust enrichment. This contention is based on the uncontradicted evidence that land with allotments is much more valuable than land without allotments. For support of this contention appellants rely on Linder Corporation v. Pyeatt, 222 Ark. 949, 264 S. W. 2d 619, and on 13 Am. Jur. 2d, Cancellation of Instruments § 25. We find that the Pyeatt ease deals with the cancellation of a restrictive covenant under a factual situation wholly unlike that of this case, and that it has no bearing on the issue here considered. A casual reading of the material portions of the Am. Jur. reference reveals no support for appellants’ contention on the point here in issue:

The rule is clear that inadequacy of the consideration is not, in itself, a sufficient ground for cancellation of any agreement or instrument, including a deed. But in determining whether an instrument should be canceled, inadequacy of the consideration is a factor to be considered in connection with the presence of other inequitable features of the case. And where the consideration is grossly inadequate, equity will lay hold of slight circumstances of fraud, duress, undue influence, or the like, in granting relief by the way of cancellation.”

Again, we repeat, appellants make no contention that appellee exercised any duress or undue influence, or engaged in any fraudulent conduct, to induce them to sell the land for $8,000.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Lawrence v. Providential Life Ins. Co.
    5-3422
    385 S. W. 2d 936
    Opinion delivered January 25, 1965.

      Douglas Bradley, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   Sam Robinson, Associate Justice.

The question on appeal is whether, under the terms of a policy of accident insurance, the assured is entitled to recovery for medical expenses he sustained by reason of an injury to his son, who was insured under the policy. The specific issue is whether the nature of the injury and resulting expenses were excluded under the provisions of the policy.

The appellee, Providential Life Insurance Company, writes a type of accident insurance called “The Providential School Plan.” Among other things, this insurance provides indemnity to the extent of $5,000 for medical expenses for “teachers, students, and non-teaching personnel.” Parents of students were solicited to purchase the policy to protect themselves against medical expenses they might incur by reason of injury to their childrén. The solicitation of parents was made by the insurance company distributing to the school children, to táke home, a pamphlet advertising the policy. The pamphlet explained the benefits provided by the policy, those things not covered by the policy and the- amount of premium. The pamphlet also contained a pocket on one side where currency or a check could be inserted by the parents in payment of the premium in the event they decided to take the insurance. The pamphlet could then be sent to the insurance company and it became the application of the sender asking that the applicant’s child or children be included in a master policy to be issued to the school attended b3r the children. In this instance the policy was issued to the Brookland Public School District, Brookland, Arkansas.

The printed matter in the application appears to be complete in giving full information about what is not covered by the policy. At least the application shows on its face what the applicant understood was not covered by the polic3T. The application states:

“THIS INSURANCE DOES NOT COVER Dental expenses of any kind except those resulting from accidental injury to whole, sound natural teeth, eyeglasses, contact lenses or prescriptions therefor; intentionally self-inflicted injuries, injury for which benefits are payable under any Workmen’s Compensation Act or Law; an act of war whether such war be declared or undeclared; any form of sickness, disease or infection except pyogenic infections incurred through an accidental cut or wound; services rendered by members of the insured’s immediate family or as a part of the school duties by a physician retained by the school system. Expense for physiotherapy, diathermy, heat treatment in any form, anti-biotic therapy, manipulation or massage will be payable only when such treatment is performed in hospital to a resident bed patient.”

The polic3r as issued, in addition to the- foregoing exclusions named in the application, excluded from coverage, among other things, fighting and “any aggravation of a pre-existing condition.” Neither of these exclusions were mentioned in the application made on a printed form prepared by the insurance company. Thus, it will be seen that the 'exclusion provision of the policy is broader than the exclusion provision of the application.

The policy, when issued, was sent to the Brookland School. A copy was not sent to the applicant, the parent. It is not shown that the insurance company had any reason to believe that the parents of the children named in the policy would ever see the policy.

Appellant, Eugene E. Lawrence, father of David Lawrence, sent in an application in the aforesaid manner naming his children, including David, to be insured. David is afflicted with hemophilia. Some time afer the delivery of the policy, David received a cut to the inside of a lip while fighting with another boy. Due to the fact that he was afflicted with hemophilia, the cut did not stop bleeding for a long time. It- was necessary to send him to a hospital in Memphis. The hospital and doctor bills finally amounted to $2,454.15. A claim was made against the insurance company; payment was refused on the ground that the policy did not cover an injury due to fighting and that it did not cover an aggravation of a pre-existing condition of hemophilia.

The cause was submitted to the court sitting as a jury on a stipulation of facts. The court rendered a judgment in favor of the insurance company. The assured has appealed.

If the exclusions named in the policy are controlling, •the assured cannot recover. On the other hand, if the statement in the application setting out the things not covered by the policy is to prevail, injuries due to fighting or an aggravation of a pre-existing condition are not excluded. One of the contentions of the insurance company is that the exclusions listed in the pamphlet should not prevail because there is a notation thereon that the pamphlet is not a policy. Of course the pamphlet is not a policy, but it did become an application.

At this point it might be well to mention that the .policy provides that any form of disease or sickness is not covered by the policy. Although hemophilia may be designated as a disease, the assured is hot precluded from recovering on that ground because this court has held many times that the aggravation of a per-existing dormant condition is not a valid defense in a suit on an accident policy. Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995; Missouri State Life Ins. Co. v. Barron, 186 Ark. 46, 52 S. W. 2d 733; Metropolitan Casualty Ins. Co. of N.Y. v. Fairchild, 215 Ark. 416, 220 S. W. 2d 803. See also Clay County Cotton Co. v. Home Life Ins. Co., 113 F. 2d 856.

We now reach the question of which should prevail —those things listed in 'the application as not being covered by the insurance or those things listed in the policy as not covered. In the case of Woodmen of the World Life Ins. Society v. Counts, 221 Ark. 143, 252 S. W. 2d 390, Counts applied for a xoolicy providing double indemnity for accidental death. The policy, as issued, did not contain the double indemnity feature. The insured was accidentally killed. This court held that the insurance company was liable for double indemnity; that it was the duty of the insurance company to write the type of insurance named in the application, or to issue no policy. There, the court quoted with approval from Robinson v. U. S. Ben. Soc., 132 Mich. 695, 94 N. W. 211; “The duty of the defendant was to issue the policy in compliance with the terms of the application. If it chose to insert inconsistent provisions, it was it's duty to call the attention of the insured to them, so that he might accept or refuse the policy. The insured has the right to assume that his policy will be in accordance with the terms of his application, and he cannot be bound by a different policy, until he has had the opportunity to ratify or waive the inconsistent provisions.”

In the case at bar, the application, the form of which was prepared by the insurance company, clearly states those things not covered by the policy. The insurance company had no right to add other exclusions to the policy without the approval of the applicant.

Appellee suggests that although the stipulation shows that the insured was injured in a fight, there is no showing that he received an accidental injury within the meaning of the policy. The complaint alleges that the insured was accidentally injured. It is stipulated that he was injured in a fight with a fellow student. The inference is that the injury was accidental. There is no showing that the insured was the aggressor or that he was not acting in self defense. In Maloney v. Maryland Casualty Co., 113 Ark. 174, 167 S. W. 845, the court said: “If an injury occurs without the agency of the insured, it may be logically termed ‘accidental’, even though it may be brought about designedly by another person.’’

There is no dispute about the amount involved, which is $2,454.15. Since it has been decided that the appellant is entitled to recover, it necessarily follows that he is entitled to 12 per cent penalty on the amount sued for and a reasonable attorney’s fee. In the circumstances, we believe a $1,000.00 fee would be appropriate.

Reversed.


author: Jim Johnson, Associate Justice.

text:
    Whiteside v. Tyner.
    5-3419
    386 S. W. 2d 239
    Opinion delivered January 25, 1965.
    [Rehearing denied February 22, 1965.]

      Herrn Northcutt and S. C. Ferguson, for appellant.

      Thomas B. Tinnon, for appellee.
   Jim Johnson, Associate Justice.

This is a suit for negligent burning of another’s land seeking double damages under the provisions of Ark. Staff. Ann. § 41-510 (Repl. 1964).

Appellant Robert E. Whiteside, a nonresident land owner, filed suit in Fulton Circuit Court against appellee M. L. Tyner, alleging that on March 3, 1961, Tyner, an adjacent land owner, was burning trash, brush and grass on his land and that Tyner negligently allowed the fire to escape to the land of Whiteside; that the fire burned over a number of acres of pine trees causing actual damage to Whiteside’s property in the amount of $2,000. Whiteside specifically prayed for application of the statutory penalty of double damages. Appellee answered with a general denial and prayer for dismissal. On April 15, 1964, the cause was tried to a local jury which unanimously returned a verdict in favor of appellee Tyner. From judgment on the verdict comes this appeal.

For reversal appellant relies on the sole point that testimony is insufficient in law to sustain the verdict.

It is not contended that the trial court erred in failing to submit this case to the jury under proper instructions. This being true, the jury verdict must have reflected at least one of two findings: (1) that appellant failed to prove by a preponderance of the evidence that appellee did not take “necessary precaution” to prevent the escape of the fire to appellant’s land; (2) that appellant failed to prove by a preponderance of the evidence that appellant’s property was damaged.

Subsection 3 of § 41-507, Ark. Stat. Ann. (Repl. 1964) provides that the escape of fire under the circumstances herein presented ‘ ‘ shall be prima facie evidence that necessary precautions were not taken.” While discussing this statutory presumption in.the recent case of Thomas v. Raney, 233 Ark. 836, 349 S. W. 2d 129, we pointed out that, “the cited statute (as shown by § 41-510) is a penal statute, and in Lamb v. Hibbard, 228 Ark. 270, 306 S. W. 2d 859, we said that since it was penal it is to he strictly construed. In the cited case we also said, in speaking of Act 85 of 1935 (of which §§ 41-507 and 41-510 are a part) that: ‘Taking the statute as a whole we find no reason to think the legislature meant to create a new basis for liability . . . without fault . . By this we in effect said that the plaintiff in this kind of case, must prove negligence (or fault) on the part of the defendant just as he must do in ordinary damage suits based on negligence.” .With the rule thus declared we are confronted with the question of whether there was any substantial evidence to support a jury verdict finding appellant failed to prove by a preponderance of the evidence that; appellee failed to use “necessary precaution.” Viewing all of the evidence in the light most favorable to the jury verdict, we find appellee correctly summarized the evidence in his argument as follows: “The only evidence of negligence presented by appellant was proof that appellee had pleaded guilty in J.P. court to violation of Ark. Stat. Ann. § 41-507. On the other hand appellee testified that his property and that of appellant’s was separated by a road which testimony was never disputed ; there had been a heavy rain the evening before; he had help to control the burning of grass on his own property; there was- no wind at the time he started burning on his own property; and he had previously reported to the State Forestry Office at Salem, Arkansas, the fact that he did intend to burn. ’ ’

This being the state of the record, we cannot say that there was no substantial evidence to support the jury verdict as to “necessary precaution.” From such finding it follows that the question of proof of damages becomes moot.

Affirmed.


author: Frank Holt, Associate Justice.

text:
    Ark. State Highway Comm. v. Gladden.
    5-3394
    385 S. W. 2d 934
    Opinion delivered January 25, 1965.

      Mark E. Woolsey, Don Langston and Don Gillespie, for appellant.

      Walker & Spears, J. Loyd Shouse, for appellee.
   Frank Holt, Associate Justice.

This action was instituted by the appellees, as landowners, to enjoin the appellant’s contractor from entry upon their lands for highway purposes. Various pleadings and exhibits were filed by the appellees and the appellant. The trial court found that the County Court Order upon which appellant relied was void and ordered appellant to pay $16,500.00 to the appellees as compensation for the lands taken and damaged by the appellant. From this decree appellant brings this appeal.

For reversal appellant first contends that the court erred in finding that a condemnation order of the Boone County Court made in 1930 was void. Assuming, without deciding, that the County Court Order was in fact valid, we cannoti agree with appellant’s contention. There is no evidence to indicate that the appellees or theiy predecessors in title were ever paid any compensation for the lands in controversy or that this Order was published or that appellees had any notice of the existence of the Countjy Court Order until less than one year before the filing of this action. In Arkansas State Highway Comm. v. Dean, 236 Ark. 484, 367 S. W. 2d 107, we said:

“Where, as here, there was no payment of compensation for the taking of land and no publication of notice proved, the burden is on appellant to prove that the landowner had actual notice of the taking of his land.”

In the case of Greene County v. Hayden, 175 Ark. 1067, 1 S. W. 2d 803, we held that in the absence of any notice of the condemnation order that the “twelve [12] months from the date of the order ’ ’ of taking as provided in Ark. Stat. Ann. §76-917 (Repl. 1957) for the landowner to file his claim, meant twelve months from the actual entry on the land. See, also, Act 185 of 1963; Ark. Stat. Ann. §76-917 (Snpp. 1963). To hold otherwise would allow the taking of property without notice and just compensation.

Appellant next contends that the court erred in denying its motion to dismiss the complaint, arguing that the appellees had a complete and adequate remedy at law. The appellees alleged in their complaint that they had no adequate remedy at law. Appellant insists that the burden was upon appellees to show their remedy at law was inadequate by alleging and offering proof of the insolvency of the county. Since there was no allegation and proof of such insolvency by the appellees, the appellant contends this absence constituted a jurisdictional defect. In support of this proposition appellant cites to us several cases typical of which is The State Life Ins. Co. of Indianapolis v. Arkansas State Highway Comm., 202 Ark. 12, 148 S. W. 2d 671, and Crawford County v. Simmons, 175 Ark. 1051, 1 S. W. 2d 561. We do not consider such, cases applicable to the case at bar.

When the temporary restraining order was issued by the Chancellor, the appellant filed a $25,000.00 bond conditioned to pay such amount as might become payable to appelleés by “any judgment or settlement that may be entered in this cause.” Thereupon the temporary restraining order was dissolved and appellant was allowed to proceed with construction upon the strip of land in controversy. The appellant also filed an intervention alleging that it had acquired the right to the property in question by an easement through prescription and adverse possession, as well as by a county court order and a city ordinance. The appellant then filed a third-party complaint against various defendants in order to have a full adjudication of the rights of all interested parties in the proceeding. After these issues were joined, the case proceeded to trial and thereafter the motion was first made by appellant to dismiss the complaint for lack of jurisdiction which was refused by the court.

We have often held that a jurisdictional defect of the chancery court can be waived. Ohio Galvanizing & Mfg. Co. v. Nichol, 170 Ark. 16, 279 S. W. 377; Potts v. Rader, 215 Ark. 160, 219 S. W. 2d 769, rehearing denied 338 U. S. 882; State for Use of Ark. County v. Pollard, 171 Ark. 607, 286 S. W. 811; Hayes v. Bishop, 141 Ark. 155, 216 S. W. 298; Goodrum v. Merchants’ & Planters’ Bank, 102 Ark. 326, 144 S. W. 198. Further, it is well settled that one Aho invokes the aid of chancery in a matter not wholly beyond equitable cognizance is in no position later to reject its jurisdiction. Nottingham v. Knight, 238 Ark. 307, 379 S. W. 2d. 260. In the case at bar we are of the view that the appellant waived any jurisdictional defect' and sought the aid of the chancery court in the full determination of the cause.

Appellant’s final contention is that the damages awarded are not supported by a preponderance of the competent evidence. The lands owned by appellees were improved with a service station and a Dairy Queen building. The pump island was located partially upon the riglit-of-way of Nicholson Avenue. Appellant argues tliat the court erred in considering any of the testimony of appellees’ value witnesses because they incorrectly assumed the landowner had a right to use this part of the Avenue to service automobiles. Appellant also urges other defects in the testimony of appellees’ value witnesses.

The chancellor specifically noted in his opinion that he had discounted certain inadmissible portions of the testimony of the value witnesses. Furthermore, when a witness gives no convincing reasons to justify his estimates as to the worth of property, his testimony is subject to evaluation by this court on trial de novo. Burns v. Meadors, 225 Ark. 1009, 287 S. W. 2d 893.

Appellees’ value witnesses here testified as to the fair market value of the property before and after the taking. Their testimony indicated damages that varied from $22,500.00 to $30,000.00. Dr. G-ladden, as a landowner, was not disqualified from giving his value opinion. Ark. State Highway Comm. v. Muswick Cigar & Beverage Co., 231 Ark. 265, 329 S. W. 2d 173. According to the record, he had bought; and sold considerable property within the city the past year and was familiar with the local real estate market. He testified that the fair market value of the whole parcel was $60,000.00 before the taking and the value of the remainder after the taking was $35,000.00.

Appellant’s own expert witness, Mr. Hamilton, testified that appellees were damaged to the extent of $12,500.00 which is considerably nearer the trial court’s award of $16,500.00 than the damages estimated by appellees’ witnesses.

Therefore, considering only the competent evidence we hold that the decree must be and is affirmed.

Affirmed.


author: Osro Cobb, Special Associate Justice.

text:
    Burrow Construction Co. v. Langley.
    5-3431
    386 S. W. 2d 484
    Opinion delivered January 25, 1965.
    [Rehearing denied March 1, 1965.]

      8. Hubert Mayes and 8. Hubert Mayes, Jr., for appellant.

      Thomas D. Wynne, Jr. and Frank W. Wynne, for appellee.
   Osro Cobb, Special Associate Justice.

On February 29-, 1960, appellee, who was then employed by appellant, W. C. Burrow Construction Company, a company covered by workmen’s compensation insurance, while working in line of duty, attempted to lift an object weighing an estimated 500 pounds, sustaining substantial and disabling injuries to his back. The major portion of his immediate injuries appeared to be in the lower lumbar region, but from and after the inception of the accident appellee complained to examining physicians of pain higher up in his back and severe pain between his shoulders. The Commission allowed 28 weeks of temporary total disability, and also directed payment to appellee of 15% permanent partial disability to his body as a whole. Unhappily, appellee’s disabilities thereafter greatly increased, and the Commission entertained appellee’s seasonable application for an additional disability award therefor after refusal by the referee. A formal hearing was conducted by the Commission. It found that appellee had in fact suffered greatly increased disabilities, but that the increase was unrelated to his injury in February, 1960, and denied appellee’s supplemental claim. The dis-positive finding of fact of the Commission is short and is quoted in full as follows:

“The claimant’s present disability is not the result of the accident of February, 1960, and that his disability is arising from an unknown cause at a higher level than the site of the original injury.”

From an adverse decision by the Commission the appellee appealed to the circuit court which reversed the Commission and in so doing found the appellee to be 75% disabled as to the body as a whole. From the said circuit court judgment the appellants bring this appeal.

The record of the hearing before the Commission affirmatively shows that, appellee sustained no known injury or any other incident after February, 1960, which contributed in any way to his increasing disabilities. The question before this court, therefore, is whether the action of the Commission, in denying compensation for appellee’s increased disabilities, is supported in the record before us by substantial evidence.

It has always been the clear duty of the Commission, in adjudicating claims for compensation benefits, to give the benefiti of the doubt in factual situations to the injured workman. See McGehee Hatchery Co. v. Gunter, 237 Ark. 448, 373 S. W. 2d 401; Parrish Esso Service Center v. Adams, 237 Ark. 560, 374 S. W. 2d 468. While the Commission adjudicates claims in the light most favorable to the claimant, here on appeal we review the findings of the Commission in the light most favorable to the action taken by the Commission, and refrain from disturbing findings of the Commission which are supported in the record by substantial evidence. See McColhim v. Rogers, 238 Ark. 499, 382 S. W. 2d 892; Holland v. Malvern Sand & Gravel Co., 237 Ark. 635, 374 S. W. 2d 822. We have examined the entire record in this case and we find no substantial evidence to support the finding of fact, supra, of the Commission. On the contrary, we find, from the record in this case, that said finding of fact is speculative and conjectural.

The Commission noted that the increased disabilities of appellee were from an area higher up in the spine, near the thoracic 12 lumbar 1 level. This area is only slightly below the shoulder blades. Furthermore, this is the general area of appellee’s complaints from and after the inception of his injuries in February, 1960.

Dr. Joe F. Shuffield’s report to the Commission of July 2, 1960, includes the following history of appellee:

<< =» * * PIe bag pain in bis lower back most all of the time, and the pain extends up his back and downward when he tries to do anything.”

Dr. John H. Adametz’ report to the Commission of August 9, 1960, includes the following comment:

“He (appellee) stated that when he moved or jerked he had pain that seemed to radiate between his shoulders.”

Dr. Robert Watson, one of the medical examiners for the Commission, conceded during his testimony that the increased disabilities manifested by appellee could have been accounted for by the lifting of an object weighing approximately 500 pounds, which is the exact original history of the accident in this case. Dr. Watson further testified as to the extent of appellee’s disability:

“A. He has a whole lot.
Q. How much?
A. As far as being able to enter into just out and out unlimited competitive labor, I think lie’s totally disabled for that.”

Dr. F. Walter Carruthers, who appeared before the Commission as a witness for appellee, connected all of claimant’s disabilities to the original injury in 1960, stressing the progressive degeneration of a vital spinal nerve with attendant numbness in the leg, foot drop, and clawing of the foot — toes turning under with callouses forming as a result of the deformity — and concluding:

■' ‘ He will have to be trained for some other occupation. I don’t think he will ever be able to do any heavy manual labor.”

We conclude and find from the record in this ease that all of the disabilities suffered by appellee have resulted from the single injury to him in February, 1960. Indeed, there is no known or established circumstance appearing in the record in this case to which appellee’s increased disabilities can be logically related, except to his original injury in 1960.

We agree with the circuit court that appellee is entitled to compensation upon his present claim. However, we agree with appellants that the court exceeded its authority in determining the amount of the award. Ark. Stat. Ann. §81-1325 (b) (Repl. 1960). The judgment is, therefore, reversed with directions to remand the cause to the Commission for the determination of a proper award.

Reversed and remanded.

McFaddin, J., not participating.


author: Ed F. McFaddin, Associate Justice.

text:
    Thompson v. Robinson Tube Fabricating Co.
    5-3426
    386 S. W. 2d 926
    Opinion delivered February 1, 1965.
    [Rehearing denied March 15, 1965.]

      PicJdns, Picldns é Boyce and Alston Jennings, for appellant.

      Comer Boyett and Robert Henry, for appellee.
   Ed F. McFaddin, Associate Justice.

This is an action for damages for breach of contract and also to hold the defendants liable as partners. The contract which is the basis of this action reads:

“April 29, 1959
“It is agreed that Robinson Tube Fabricating Company will have exclusive right and agrees to furnish all labor and parts necessary to manufacture, store and ship F.O..B. Conway, a satisfactory marketable table except tubing, woodwork and boxes for the first 10,000 tables sold by Thompson Industries, Inc., for the sum of $5.10 each.
“It is agreed that Thompson Industries, Inc. will make an initial order for enough tubing to manufacture 1,000 tables, also woodwork and boxes for said amount.
“/s/ J. A. Thompson, President Thompson Industries, Inc.
“/s/ E. H. Kellar, President Robinson Tube Fabricating Co.”

On August 25, 1959, Thompson Industries ordered the 1,000 tables specified in the last sentence of the contract, but later refused to accept the tables or pay anything for them; and all of them that had been manufactured were sold for storage charges. Thereupon, Robinson Tube Fabricating Company (hereinafter called “Robinson”) filed this action against J. A. Thompson, J: A. Thompson, Jr., and Mrs. J. A. Thompson, Jr., seeking to hold them liable as partners for $26,590.00 which Robinson claimed as damages for breach of the signed contract. The Thompsons specifically denied personal liability, and denied all other allegations made by Robinson. Trial to a jury resulted in a verdict and judgment for Robinson for $4,713.17; and from that judgment the Thompsons bring this appeal, urging three points:

“I. The court erred in refusing to direct a verdict in favor of Appellants.
“II. The court erred in giving Appellee’s Requested Instruction No. 1.
“III. The court submitted the matter to the jury on a completely erroneous measure of damages.”

I.

We find no merit in appellant’s first point. It was shown that the Thompsons had not incorporated Thompson Industries, Inc. on April 29, 1959, when the contract was signed or on August 25, 1959, when the order was made for the 1,000 tables. There was evidence from which the jury could have found — -as it evidently did— that J. A. Thompson, Jr. had represented on April 29, 1959, that the corporation was already in existence. Also there was evidence that this representation induced the acceptance of the order of August 25, 1959, for the 1,000 tables. Thus the Thompsons were partners when the contract was signed and the tables ordered. Whitaker v. Mitchell, 219 Ark. 779, 244 S. W. 2d 965; Gazette Pul. Co. v. Brady, 204 Ark. 396, 162 S. W. 2d 494.

II.

Appellants’ second point relates to appellee’s Instruction No. 1 given by the Trial Court. This instruction reads:

“You are instructed that where an incorporator signs a contract or agreement in the name of the corporation before the corporation is actually formed and the other party to the agreement believes at the time of the signing that the corporation is already formed, then the incorporators are responsible as a partnership for the obligations contained in the contract or agreement, including damages resulting from any breach of the contract on their part.
“In this case it is admitted that Thompson Industries, Inc., was not formed at the time the agreement sued upon was signed. You are further told that J. A. Thompson, J. A. Thompson, Jr. and Mrs. J. A. Thompson, Jr. are incorporators of Thompson Industries, Inc.
“If you find from a preponderance of the evidence in this case that the president and treasurer of Robinson Tube Fabricating Company believed and acting as reasonably prudent persons were justified in believing at the time they signed the agreement that Thompson Industries, Inc. was a corporation already formed and in existence and you further find that the incorporator or incorporators breached the signed agreement, then you may find for the plaintiff.”

Appellants offered several objections to the instruction, but the Trial Court overruled them, saying: ‘£ The objection is overruled for the reason that the Court does not take Instruction No. 1 to point up anything other than individual liability.” When we consider all the instructions given on the various phases of the case, including the defenses offered, we conclude that the Trial Court was correct. This Instruction No. 1 related only to the liability of the defendants as partners and not to all the other issues in the case.

III.

The appellants’ third point relates to the matter of damages, and on this point we find there is some merit. Robinson alleged and, over objection of defendants, was allowed to show these items regarding damages:

Engineering the production $12,175.00
Tooling the product 7.500.00
Production development 2.835.00
Production to date 4.080.00

Over the objection of the defendants, the witness for Robinson was allowed to testify that in order to prepare to produce the tables Robinson spent $12,175.00 engineering the production and $7,500.00 for tooling the product; that special equipment was required.to perform one function, and one function only, and included dies and bending tools which could not be used for any other purpose. Furthermore, over the objection of the defendants, the witness for Robinson was allowed to testify that $2,835.00 was spent for production development and $4,080.00 for labor in working on the material for the August 1959 order made by Thompson. Over' the objection of the defendants, the Court instructed the jury:

“You are instructed that if you find for the plaintiff in this case, you will assess its damages, if any, in such sum as you find will compensate it for its expenses incurred in preparation for performance of the contract including engineering the product, tooling the product, production development and production to date, not to exceed $26,590.00, the amount sued for.”

The contract signed April 29, 1959 did not require Thompson to do anything except to order 1,000 tables at $5.10 each. This was the last sentence in the contract. In the first portion of the contract Thompson agreed that Robinson would have the exclusive right to manufacture 10,000 tables; but these were not required to be ordered immediately and no deprivation of this right has been alleged. Thompson was required to order 1,000 tables; and in August 1959 such was done. In short, the agreement of April 1959 did not obligate Thompson to immedi: ately purchase 10,000 tables from Robinson: it merely gave Robinson the exclusive right to manufacture the first 10,000 tables sold by Thompson. The first part of the contract merely prohibited Thompson from having the first 10,000 tables manufactured by anyone except Robinson. No breach of that provision is alleged. The binding obligation on Thompson was to order 1,000 tables; and that is what Thompson did. Thus, the only damages that Robinson could claim were the damages that flowed from Thompson’s refusal to accept and pay for the 1,000 tables ordered. The uncontradicted proof in the record as to such damages sustained by Robinson on these 1,000 tables is the sum of $4,080.00 paid for labor in manufacturing them.

Even though the Court was- in error in submitting to the jury the other claimed elements of damages, nevertheless this error may be cured by a remittitur. There was no evidence offered by Thompson to dispute the testimony of Robinson that it had expended $4,080.00 for labor to fulfill the order of August 1959 for 1,000 tables. Since this item of damages was undisputed, it follows that the Court’s error as to the other damages may be cured by reducing the judgment to $4,080.00. If, within 17 calendar days, the appellee will enter a remittitur as to all of the judgment in excess of $4,080.00 and interest thereon from April 6, 1964, then the judgment will be affirmed for that amount and costs, less cost of the appeal; otherwise, the entire judgment will be reversed and the cause remanded.

       The corporation was not actually formed until October 8, 1959, with three stockholders: J. A. Thompson, Sr. had one share; J. A. Thompson, Jr. had 4,998 shares; and Mrs. J. A. Thompson Jr. had one share.

       The defendants’ specific objection to this instruction was as follows: —*

        “Defendants object to the giving of plaintiff’s requested instruction No. 3, for the reason that it is an improper measure, of damages and permits a recovery as though the defendants had entered into an agreement to buy ten thousand tables from the plaintiff, which they did not agree to do; and for the reason that in permitting the jury to consider costs or expenses incurred in preparation for performance of the contract and also to recover for production to date would involve a duplication of damages, since the. plaintiff must have contemplated in setting a price of $5.10 per table that a portion of that $5.10 would represent a recoupment of expenses incurred in preparation for performance. For the further reason that the instruction would permit the jury to return a verdict up to a sum of $26,590.00, when under the evidence in this case and under the terms of the agreement of April 29, 1959, and subsequent dealings between the parties, if the plaintiff is entitled to recover at all, which the defendants deny, the maximum amount the plaintiff could recover would be $4,080.00, the amount for which the plaintiff had previously billed Thompson Industries, Incorporated.”


text:
    Duckworth v. Williams.
    5-3434
    386 S. W. 2d 234
    Opinion delivered February 1, 1965.

      Rhine & Rhine, for appellant.

      Kirsch, Cathey & Broivn, for appellee.
   George Rose Smith, J.

This dispute between adjoining landowners involves the asserted obstruction of natural watercourses. The appellants, whose land lies north of the appellees’ forty acres, brought this suit to compel the appellees to remove three low earthen levees that they built near the northern border of their land in 1962. The defendants denied that the levees interfered with any natural Avatercourse. The chancellor specifically found that no natural watercourse had been obstructed, but he afforded the plaintiffs some relief by directing that the defendants, at the plaintiffs’ expense, clean out two clogged ditches on the defendants’ land that formerly provided drainage for the plaintiffs’ property. The issue here is whether natural watercourses Avere shoAvn to exist.

We do not find the decree to be against the Aveight of the evidence. The question is essentially one of fact, for the parties are not in disagreement about what constitutes a natural Avatercourse. It may be defined as a running stream flowing in. a particular direction and having a definite channel that lies in a bed between discernible banks. A Avatercourse usually discharges itself into some other stream or body of water. It may sometimes be dry. Such a Avatercourse is to be distinguished from mere surface water that spreads over the face of the tract of land in question after heavy rains. See Brasko v. Prislovsky, 207 Ark. 1034, 183 S. W. 2d 925.

The plaintiff Duckworth, together Avith a civil engineer and a lay Avitness, testified that either tAVo or three natural watercourses had been blocked by the levees. There is, hoAvever, much testimony to the contrary. To begin Avith, this engineer estimated that the controversy involved a drainage area of about 300 acres. We find it difficult to believe that such a small watershed, amounting to less than half a square mile, could give rise to anything more than the temporary running off of surface water in periods of wet Aveather. At one point in his testimony the engineer stated that in his opinion “this water, at one time, floAved over an area some 400 feet Avide.” There is other testimony, especially with respect to the appellees ’ land, indicating that the Avaters have not been confined to definite channels having a Adsible bed lying betAveen perceptible banks.

Both sides introduced a number of photographs, which we find to be especially persuasive. These pictures portray the appellants’ land as a fairly level field devoted to the cultivation of row crops. Although the appellants produced a number of photographs, it is significant that there is not a single picture of anything that appears to meet the definition of a natural watercourse. If such positive and convincing proof had been available it would surely have been offered. Yet the only bodies of water that appear in the photographs are pools of standing water that seem to be merely the accumulation of rain water in low places at the edge of the appellants’ land.

If the case merely involves surface water, as the proof indicates, the appellees were entitled to protect themselves against it unless in doing so they unnecessarily injured the appellants. Honey v. Bertig Co., 202 Ark. 370, 150 S. W. 2d 214. In our opinion the preponderance of the evidence shows that the appellants’ land was formerly drained by a natural or man-made ditch that collected the water and cast it into one of the clogged ditches referred to in the chancellor’s decree. There appears to have been no drainage problem between these neighbors until the appellant Duckworth filled up and leveled the ditch on his own land. It was only then that the appellees resorted to levees to fend off the surface water that was being cast upon their land. We cannot say that the appellees “unnecessarily” damaged the appellants, for it was the appellants themselves who brought about the condition they now complain of.

Affirmed.


author: George Nose Smith, J.

text:
    Goswick v. Hinkle.
    5-3457
    386 S. W. 2d 252
    Opinion delivered February 1, 1965.

      Murphy & Burch, for appellant.

      Walter B. Nibloch, for appellee.
   George Nose Smith, J.

In this case the appellee’s complaint alleged that the appellant, then a college student, took the appellee’s car without permission and was involved in a collision in which the vehicle was damaged. After a trial that must have taken only a few minutes the circuit court, sitting without a jury, awarded the plaintiff a judgment for $500. The single question here is whether the plaintiff’s evidence was sufficient to make a prima facie case.

Only two witnesses testified. The plaintiff, who was represented at the trial by an attorney other than his present counsel, stated that while he was at the 71 Club on the night of May 18, 1962, his parked car was stolen and was damaged to the extent of $572.49 in an accident.

The second witness, police officer Spencer, investigated the collision, which involved five vehicles. Officer Spencer’s testimony, apart from several hearsay statements that were duly objected to, amounted to this: As a re,suit of information he had received he arrested young Goswick at a certain fraternity house in Fayetteville and questioned him. Goswick admitted that he had been at the 71 Club at the time, but he did not remember what had happened. Officer Spencer conceded that he had not identified Goswick as the driver of the vehicle. Upon this meager proof the trial judge, with manifest reluctance, entered a judgment finding that it was Goswick who took the ear and that the damage was proximately caused by Goswick’s negligence.

We cannot sustain the judgment. The only facts proved are that the car was taken while it was parked at the 71 Club, that it was damaged in a collision, that Goswick was arrested, and that upon interrogation he admitted having been at the Club but remembered nothing else. To infer, from these bare facts, that Goswick actually took the car and that he was guilty of negligence which was the proximate cause of the collision is, in our opinion, to engage in speculation and conjecture. We conclude that the plaintiff did not sustain his burden of proof.

The judgment is reversed, and, as the case has evidently not been fully developed, the cause is remanded for a new trial.


text:
    Brooksher v. Jones.
    5-3440
    386 S. W. 2d 253
    Opinion delivered February 1, 1965.

      Harper, Harper, Young & Burden, for appellant.

      Hardin, Barton, Hardin & Jesson, for appellee.
   Paul Ward, Associate Justice.

This appeal deals with the power of a city to vacate or close a portion of a street under the facts here involved.

On March 15, 1963 the City Commissioners of Fort Smith (hereafter referred to as the Commission) passed Ordinance No. 2399, the principal effect of which would have been to vacate a portion of Birnie Avenue and grant Safeway Stores, Inc. the exclusive right to occupy the vacated portion.

A few days after passage of said ordinance Buck Jones, a citizen and taxpayer of Fort Smith, filed a complaint against the Commission (suit No. 1785) alleging in substance that many persons are still using said avenue and have been doing so continuously for the past five years, and that the attempt to close the street was contrary to law. The prayer was to enjoin the Commission from vacating said portion of the avenue. To the above complaint the Commission filed a demurrer and also an answer, contending they had a legal right to vacate a portion of said avenue under Ark. Stat. Ann. § 19-2304 (Bepl. 1956) which is Section 3 of Act No. 67 of 1885. They also denied all material allegations in the complaint and asked for a dismissal of the complaint.

On April 9, 1963 eighteen other citizens and taxpayers of Fort Smith filed a similar suit (No. 1837) against the Commission, alleging that they were owners of property located on said avenue; that the said avenue had been continuously open to, and used by, the public for travel for more than twenty years; that the portion to be closed was “necessary and vital for corporate purposes and for the public interest and welfare”; and, that the Commission acted arbitrarily and unreasonably in passing said ordinance, and that it had no power or authority to do so. They prayed that the ordinance be declared illegal and void and that the Commission be enjoined from vacating said portion of the avenne. The Commission entered a general denial, and later by order of the court the two suits were consolidated for trial.

All parties moved for a summary judgment pursuant to Act No. 123 of 1961 — Ark. Stat. Ann. § 29-211 (Repl. 1962), and the matter was accordingly submitted to the trial court on three affidavits filed by the plaintiffs. No affidavit was filed by the Commission.

The trial court prepared a full and comprehensive written opinion and then entered a decree enjoining the Commission from enforcing Ordinance No. 2399 and declaring the ordinance to be null and void. For a reversal of the decree appellant (the Commission) prosecutes the appeal, contending:

‘1 The lower Court erred in finding and holding that Section 19-2304, Ark. Stats. 1947, was repealed by Section 19-3825; in granting appellees’ motion for summary judgment and in failing to grant appellants’ motion for summary judgment.”

We have concluded the trial court must be affirmed in enjoining the Commission from enforcing Ordinance No. 2399.

Although it is not material to this opinion, we do not agree that § 19-2304 has been repealed by § 19-3825. See: Cernauskas v. Fletcher, 211 Ark. 678, 201 S. W. 2d 999. A careful study of § 19-2304 reveals no authority for the Commission, under the undisputed facts set forth in the affidavits, to vacate and close a portion of Birnie Avenue “for the purpose of allowing Safeway Stores, Incorporated ... to build, construct and own buildings and other improvements ...” over and across the designated portion of Birnie Avenue. (Quotes are from the ordinance.) As we interpret § 19-2304, before a city can have the right and power to vacate or lease out a portion of a street it must first be shown that the said portion is not being “required for corporate purposes . . .”— i.e. for a street. The part of § 19-2304 pertinent to this case is the second section Avhich reads:

“To alter or change the width or extent of streets, sidewalks, alleys, avenues, parks, wharves and other public grounds, and to vacate or lease out such portions thereof as may not for the time being be required for corporate purposes, and where lands have been or may be acquired or donated to such city, for any object or purpose which has become impossible or impracticable, the same may be used or devoted for other proper public or corporate purposes, or sold by order of the city council and the proceeds applied therefor.”

It would be a strained, if not a dangerous, interpretation of the above section to say it gives a city the right to arbitrarily close a street which is being used by the public.

We find nothing in the record here to show that Birnie Avenue (or any portion thereof) was not being constantly used by appellees and the public in general. All the facts presented to the trial court are those set forth in the three affidavits produced by appellees. These facts are all to the effect that Birnie Avenue was dedicated as a public street in 1906; that the street is used daily by more than 200 cars; and that it would work a hardship on many people if a portion of the street (or avenue) were closed. No evidence to the contrary was presented to the court.

The Commission, in support of its contention, relies on Risser v. City of Little Rock, 225 Ark. 318, 281 S. W. 2d 949 and Kansas City So. Ry. Co. v. City of Fort Smith, 228 Ark. 625, 309 S. W. 2d 315. We find nothing in those cases which is decisive of the issue here involved. In the Risser case only three questions were discussed on appeal: Is the city bound by a contract? Is the cause res judicata? And, have appellants suffered special or peculiar damages? In the other case it appears that the City of Fort Smith in the year 1911 closed a street so the railroad could construct a depot with no question being raised as to the power of the city. Some forty five years later we held the city could not maintain an action in ejectment against the railroad company.

We make it plain that we are not holding a city has no right under any factual situation to vacate a street under § 19-2304, but we are merely holding that the Commission had no such right in this instance under the undisputed facts as shown by the record.

The decree of the trial court is affirmed.