author: Frank Holt, Justice.

text:
    Bobby Gene Ballew et al v. State of Arkansas
    5-5411
    441 S.W. 2d 453
    Opinion Delivered June 2, 1969

      Marvin L. Kieffer for appellants.

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen.; Mike Wilson, Asst. Atty. Gen. for appellee.
   Frank Holt, Justice.

The appellants, Avho are brothers, were jointly charged by information with the offense of assault with intent to kill. A jury found them guilty and assessed the punishment of Bobby Gene BalleAv at fifteen years and Rodger Huey Ballew at twelve years imprisonment in the state penitentiary. From the judgments on these verdicts comes this appeal.

For reversal, the appellants, through court appointed counsel, contend that the evidence is insufficient to support the verdicts. On appeal Ave must review the evidence in the light most favorable to the appellee and if there is any substantial evidence to support these verdicts then the Arerdicts must be sustained. Finley v. State, 233 Ark. 232, 343 S.W. 2d 787 (1961).

The appellant, Bobby Ballew, had been “dating” Omega "Wallace Ooots, the prosecutrix, for about a year. FAentuallv, Mrs. Cools informed him that she desired to return to her children’s father from Avhom she Avas divorced. The appellant threatened, on several occasions, to kill her, if this should happen. The night before the alleged assault, she and this appellant argued most of the night at her house about her intention to return to her former husband. Bobby Ballew again repeated his threat to kill her. About noon the following day he left her house. Both appellants had spent the night there.

About 2:00 A.M. tire next day both appellants, appeared at a friend’s house and borrowed his shotgun and some shells Avith the explanation that they Avere going to use it to go rabbit hunting. They were given several shells. Among the shells were some old ones and one containing a deer slug. They A\rere told that the latter would fire since it was a new shell. They knew that "Mrs. Coots was not at her residence and was spending tlie night at her father’s. Appellants parked their car about three blocks from the father’s house. They took the gun and walked this distance to his house where Rodger Ballew blocked on the door and called Mrs. (loots to the door telling her that his brother wanted to talk to her. Bobby Ballew then asked the prosecutrix if she was going hack to her former husband. When she ’replied affirmatively, Bobby Ballew told his brother, Rodger Ballew, “Go back of the house and make damn sure nobody comes around front where I’m at.” Rodger Ballew complied. Mrs. Coots went hack in the house and closed the door. The appellant, Bobby Ballew, shot through the door. Mrs. Coots’ father found her lying on the floor suffering from a wound from the deer slug that penetrated her side and stomach. Bobby Ballew heard what appeared to be “her scream.”

The appellants fled the scene and went to a relative’s residence, got some breakfast, and prevailed upon the relative to take them to a nearby river boat landing. They were apprehended later in the day in this vicinity.

In Nunley v. State, 223 Ark. 838, 270 S.W. 2d 904 (1954), we find the applicable rule of law governing- the sufficiency of the evidence in this case. There it is said:

“While the intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault, such as the use of a deadly weapon in a manner indicating an intention to kill, or an act of violence which ordinarily would bo calculated to produce death, or great bodily hami. In determining whether or not the intent to kill should be inferred, the trier of the facts may properly consider the character of the weapon employed and the way it was used, the manner of the assault and the violence attendant thereon; the nature, extent and location on the body of the wound inflicted, jf any; the state of feeling existing between the parties at and interior to the difficulty; statements of the defendant, if any; and all other facts and circumstances tending to reveal defendant’s state of mind. [Citing cases.] It is not essential that the intent should have existed for any particular length of time before the assault, as it may be conceived in a moment. ’ ’ ’

To the same effect see Murry v. State, 209 Ark. 1062, 194 S.W. 2d 182 (1946).

The distinction between an accessory and a principal is now abolished and an accessory is equally as guilty of a crime as is his principal. Ark. Stat. Ann. § 41-118 (Repl. 1964); Rush v. State, 239 Ark. 878, 395 S.W. 2d 3 (1965).

In the case at bar we are of the view that there is ample evidence of a substantial nature to support both verdicts rendered by the jury. It follows that the court correctly refused to direct a verdict of not guilty requested by the appellant, Rodger Ballew, and property denied the motion of both appellants for a new trial based upon insufficiency of the evidence.

Nor reversal it is further urged that the trial court erred in denying the motion to suppress the introduction of the shotgun as evidence. We cannot agree. When the officers discovered the appellants they were ordered to stop running and walk toward the officers from a distance of approximately 500 feet, with their hands raised. It was necessary for the appellants to wade a shallow “seep ditch” at a levee. At times the weeds and brush were of such a height that the appellants were partially obscured. When the appellants were approaching the. officers one of them stooped down. They were asked the whereabouts of the shotgun. The officers were told that it was nearby in a “hollow log.” It was found there contemporaneous with the arrest. It is argued that this procedure is in violation of Miranda v. Arizona, 384 U.S. 436 (1966), which requires that the accused must be warned of his constitutional rights against self-incrimination before any interrogation is begun. In other words, it is insisted that a Miranda warning should have preceded the inquiry.

We have recently held that a Miranda warning is not required to be given in every instance the moment asuspect is taken into custody. Edington v. State, 243 Ark. 10, 418 S.W. 2d 637 (1967); Haire v. State, 245 Ark. 293, 432 S.W. 2d 828 (1968). In those cases we held that a spontaneous statement was admissible. In the case at bar, we think the statement that the shotgun was in a “hollow log” was in the nature of a spontaneous admission. Wo do not agree that Miranda can be construed or is intended as being applicable in these circumstances.

Further, in the case at bar the officers, based upon probable cause, were effecting the legal arrest of the appellants who were fleeing from the scene of an alleged crime which had recently been committed by the use of a shotgun. In the circumstances it must be said that officers had a right to inquire of the presencio or whereabouts of the weapon for their own safety as well as to prevent escape and the destruction of evidence as being incidental to a lawful arrest.

We find no merit in appellants’ contention that there was an infringement of any constitutional right, by the shotgun being thus discovered aucl used as evidence in the case at bar.

It is asserted that the court erred in denying appellant Bobby Ballew’s motion to suppress his confession. The appellants both testified that they wore wet, cold, hungry, and sick; that the police told them it would go easier on them if they made a statement; that they were interrogated and signed a waiver of rights and confessions in a police dominated atmosphere, all of which rendered their statements coerced and involuntary. There was evidence contradicting these assertions. Evidence was adduced by the state that the Miranda warning was given and that appellant, Bobby Ballew, signed a “waiver of rights” before he was questioned and thereafter voluntarily signed the questioned confession. The trial court, in a Denno procedure in chambers, found that appellant, Bobby Ballew, was thirty-one years- old and had made a. voluntary statement with the knowledge and intelligence to understand the Miranda warning with reference to his constitutional rights. From our independent review of the record, we think the trial court’s ruling is sustained by the evidence. Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968); Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311 (1969). Therefore, we find no merit in this contention.

It is next contended that the trial court erred in denying appellant Rodger Ballew’s motion for a severance. In his motion he asserted that he was only sixteen years of age and that a joint trial would he prejudicial to him because of his confession which contained inadmissible references to himself as well as cross-implicating references to his codefendant. The trial court ruled his statement inadmissible in the Denno proceeding. The motion for severance was denied. It is within the discretion of the trial court to permit a severance or a separate trial when defendants are jointly charged with a felony less than a capital offense. Ark. Stat. Ann. § 43-1802 (Repl. 1964). We do not disturb the refusal of a severance unless there was an abuse of discretion. Finley v. State, supra. We find no abuse of discretion in the case at bar.

It is further asserted that the trial court erroneously refused appellant Bobby Ballew’s motion to discharge appellant, Rodger Ballew, as a defendant - in the case under the provisions of Ark. Stat. Ann. § 43-2118 (Repl. 1964). This motion seeks dismissal of the charges against his codefendant on the basis that his codefendant took no part in the alleged crime and that his codefendant was needed by him as a witness. In support of the motion is the affidavit of the appellant, Rodger Ballew, that he, in effect, was not guilty of the crime with which he was charged and that his codefendant desired him as a witness. Suffice it to say that this statute provides that if "the court is of [the] opinion that the evidence in regard to a particular individual is not sufficient to put him on his defense,” then the trial court is authorized to grant appellant’s motion to discharge his codefendant in order that he could be a defense witness. Trial courts must have much latitude and discretion in conducting the trial of a cause and we do not interfere unless there is a clear abuse of discretion. Pixley v. Stale, 203 Ark. 42, 155 S.W. 2d (1941). Certainly it cannot be said that the trial court abused its discretionary authority in view of the evidence adduced bj7 the State.

The appellants argue that it was error for the trial court to permit, over appellants’ objection, medical testimony relative to and photographs of the wound on the victim’s body. The doctor testified about the nature and extent of the wound and identified the accuracy of the photographs portraying the same. His testimony and the accompanying photographs were proper to show the corpus delicti and to corroborate the testimony. Stewart v. State, 233 Ark. 458, 345 S.W. 2d 472 (1961). Photographs are admissible when they fairly represent the objects portrayed and aid the witness in his testimony and the jury in understanding' the evidence. Harris v. State, 239 Ark. 771, 394 S.W. 2d 135 (1965). In the case at bar the medical testimony and the photographs were properly admissible in evidence.

It is urged for reversal that it was error for the .court to permit evidence of appellant Rodger Ballew’s "prior juvenile convictions.” The appellant took the witness stand in his own behalf. He was asked when he was last convicted of any crime. In overruling appellant’s objection, the court told the jury that if answered in the affirmative it must be considered only as affecting the credibility of appellant as a witness. This admonition was proper. Ark. Stat. Ann. § 28-605 (Repl. 1962); Stewart v. State, 240 Ark. 701, 402 S.W. 2d 116 (1966). The appellant answered that three or four years ago he had stolen a truck and burglarized a cafe. An objection was again overruled. The disposition of those acts was not elicited. We have often held that the general rule is that a defendant, on cross-examination, can be asked about specific acts of misconduct for the purpose of discrediting his testimony, subject to the right of .the witness to make an explanation in justification. Wright v. State, 243 Ark. 221, 419 S.W. 2d 320 (1967); Sullivan v. State, 171 Ark. 768, 286 S.W. 939 (1926); Trotter v. State, 215 Ark. 121, 219 S.W. 2d 636 (1949); and Skaggs v. State, 234 Ark. 510, 353 S.W. 2d 3 (1962). These inquiries and the responses given were pennissible when considered within the limitation placed upon the testimony b)' the court.

In answer to a further inquiry the appellant stated that he had been sent to the Arkansas Boys’ Industrial School by his mother. Ark. Stat. Ann. § 45-205 (Repl. 1964) provides that the disposition of a juvenile case in a juvenile court proceeding cannot be used as evidence against the juvenile for any purpose in aim other court. We cannot determine from the record whether the appellant was sent to the Industrial School from the circuit court imrsuant to Ark. Stat. Ann. § 46-306 (Repl. 1964), or the juvenile court. Further, since no objection was made to this latter inquiry, we cannot consider appellant’s contention. Randall v. State, 239 Ark. 312; 389 S.W. 2d 229 (1965).

The appellants finally argue that the punishment as to each appellant is excessive. We hold, as in other cases, that since there was substantial evidence to support the verdicts which were within the limits prescribed by law [1-21 years, Ark. Stat. Ann. § 41-606 (Repl. 1964)], the jury had the right and the authority to assess those penalities.

Affirmed.

Fogleman, J., not participating.


source: Caselaw Access Project

author: Frank IIont, Justice.

license: Public Domain

text:
    Thomas Edward Stevens v. State of Arkansas
    5-5414
    441 S.W. 2d 451
    Opinion Delivered June 2, 1969

      darner & Parker for appellant.

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen.; Mike Wilson, Asst. Atty. Gen. for appellee.
   Frank IIont, Justice.

The appellant was charged with the crime of first degree rape. The jury found him guilty of assault with intent to rape and assessed a penalty of 21 years in the penitentiary. From the judgment on this verdict comes this appeal. For reversal appellant contends, through court.appointed counsel, that the evidence is insufficient to establish that the appellant was capable of forming the necessary specific intent to commit the alleged offense.

The victim was a seven-year old child who was attending a drive-in theater with her mother and other relatives. The offense occurred about midnight. Earlier in the evening, or about 7:30 pan., the appellant, who is nineteen years of age, accompanied by his uncle and two other boys, drove approximately fifteen miles from Fort Smith wdiere they engaged in a two hour beer-drinking and glue-sniffing party. The appellant drank two or three six-packs of malt liquor and sniffed twro or three tubes of glue. En route back to Fort Smith the appellant consumed about one-half of a pint bottle of whiskey.

“When the appellant and his party returned to Fort Smith, they went to a local drive-in theater. Because of lack of funds, the appellant and two in his party gained entrance by climbing over the fence while the driver of the vehicle proceeded to pay for his admission. All of them met at the automobile for a short time. The appellant observed some children playing- on the movie playground. He then gave* them some firecrackers and rode on the merry-go-round with them. The appellant picked up the seven-year old victim and forcefully carried her behind the movie screen. Her small brother fought him and then sought the assistance of the adults in his party. Appellant was found by the victim’s mother and another adult on top of the child with one hand around the child’s throat and the other hand in a position “somewhere down below” the waistline. The child’s dress was pulled up. The appellant was forcefully pulled off the child. His attempt to escape b}r climbing a nearby fence was prevented and he was taken into custody. There was evidence of bruises on the child’s neck, right arm and leg and a bleeding laceration of her female organs.

Appellant testified that his memory was “spotty” and he could not remember the assault. There was evidence adduced by him that he appeared to be something worse than “dog-drunk” and “out of Ms head”. A psychiatrist testified in his behalf that, in his opinion, the appellant was in a state of limited awareness and his intoxication reduced and diminished appellant’s level of consciousness. The psychiatrist further stated that the appellant might be aware of his intentions and yet be unaware of the results to him; that glue-sniffing can produce amnesia, hallucinations and delusions; and that it produced a short period of intoxication lasting from fifteen minutes to an hour.

The appellant as a witness recalled his acts immediately preceding the commission of the crime; the method of gaining entrance into the theatre; giving the children firecrackers and playing with them on the merry-go-round; remembered having the struggling little girl in his arms and her small brother asking him to release her, which request he thought he complied with; recalled trying to effect his escape by climbing the fence; and remembered that his escape was thwarted and someone set-on him to prevent a further attempt to escape. There was evidence offered by the state that the appellant, although he had been drinking, was not intoxicated and appeared rational and responsible for his acts when he was observed and questioned a short time after being apprehended.

Where an offense can only be committed by doing a particular thing with a specific intent it may be shown that at the time the offense was committed the accused was so intoxicated that he could not have entertained the intent necessary to constitute the crime. Crowning v. State, 91 Ark. 503, 121 S.W. 735 (1909). However, the determination as to whether a defendant is intoxicated to the extent of being incapable of forming the required specific intent to commit a crime is solely within the province of the jury. Murry v. State, 209 Ark. 1062; 194 S.W. 2d 182 (1946); Hankins v. State, 206 Ark. 881; 178 S.W. 2d 56 (1944); Casat v. State, 40 Ark. 511 (1883). In Murry v. State, supra, we said:

“ ... It is a matter of common knowledge that many of the most atrocious and deliberate crimes are committed by persons more or less under the influence of intoxicants, indeed in many instances, the intoxicant is used to supply the necessary fortitude to commit the criminal act, and if appellant was not intoxicated to the extent of being incapable of having the specific intent to kill, the fact that he was intoxicated, but in a less degree, is no defense...”

In the case at bar, the evidence was in conflict as to the appellant’s being capable of forming the required specific intent. There is substantial evidence to support the verdict. Therefore, we find no merit in appellant’s contention that he was incapable of formulating the required specific intent.

The .appellant next asserts for reversal that the court erred in refusing an instruction on child molesting. Ark. Stat. Ann. § 41-1124 (Repl. 1964). This is a misdemeanor. The statute provides for punishment by a fine not exceeding $500.00 or six months imprisonment or both for “Every person who annoys or molests any child * * V’ We cannot agree with the appellant.The court gave instructions on first, second and third degree rape and assault with intent to rape. In addition, the court instructed tlie jury on unlawful fondling of a child. Ark. Stat. Ann. § 41-1128 (Repl. 1964). This statute provides for a penalty of not less than one nor more than five years for any person who fondles a child with lascivious intent. This latter instruction was as favorable to the appellant as he was entitled to demand. Even then the jury refused to apply this statute with its lesser penalty. No error was committed. See Talley v. State, 236 Ark. 908, 370 S.W. 2d 604 (1963). Further, the trial court is not required to give an abstract instruction. An instruction must be germane to the factual issues before the refusal of the trial court to give an instruction can be assigned as error. French v. State, 231 Ark. 677, 331 S.W. 2d 863 (1960). See, also, Stevens v. State, 231 Ark. 734; 332 S.W. 2d 482 (1960). As we have already indicated the evidence is sufficient to support the verdict of assault with intent to rape.

In the ease at bar, we perceive no prejudice to the appellant by the refusal of the trial court to give the requested instruction on child molesting since the instructions given fully declared the law.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Manpower, Inc. of Tenn. v. Manpower, Inc. of Pulaski County
    5-4933
    441 S.W. 2d 796
    Opinion Delivered June 9, 1969

      Smith, Williams, Friday & Bowen by G. Boss Smith for appellant.

      Willis V. Leíais for appellee.
   Carleton Harris, Chief Justice.

On October 1, 1962, Malcolm Keith Baker, appellee herein, contracted to purchase the franchise of Manpower, Inc. of Pulaski County, from Manpower, Inc. of Tennessee, hereafter called Manpower of Tennessee, for the sum of $11,000.00. The franchise was to remain in effect for a period of five years, with the option of renewal, except that appellant had the right to cancel, if certain conditions of the agreement were not complied with. The nature of the business consists in offering a variety of services to business concerns, including the supply of temporary employees. Manpower, Inc. of Tennessee is a subsidiary of Manpower, Inc. of Delaware, hereafter called Manpower, the home office being located in Milwaukee, Wisconsin.

On October 15, Baker, while at the home office in Milwaukee for training, executed a note for $7,500.00 to the First National Bank of Milwaukee, this note subsequently being assigned to Manpower, the note being endorsed by Baker’s wife. This note was payable in monthly installments, which were to be concluded on November 15, I960. Thirty-five hundred dollars was paid.

The first point of disagreement arose between the parties when Baker returned to Little Rock. It was, and is, his contention that the $11,000.00 sale price paid to Manpower included approximately $6,000.00 of office furniture and equipment; Baker found this equipment had been moved from the building when he returned from Milwaukee. Manpower denies that the agreement included this furniture and equipment.

When Baker commenced liis operation, he was instructed to draw on the company bank account in Milwaukee as a matter of paying the Pulaski County employees, and this proceedure was followed for the next several months. After the first of the year, various officials of the company called Baker, insisting that he sign a note for the amount, that had been drawn to pay employees, and finally, on July 7, 3 963, Baker signed this note in the amount of $5,718.45, (he note being a demand note-dated April 15, .1968. On January 14, 1965, Manpower instituted suit against Baker and wife, asserting that no part of the principal or interest of the $7,500.00 note had been paid, and seeking judgment in that amount. On the same date, Manpower of Tennessee instituted a complaiut against Manpower, Inc- of Pulaski County and Baker, alleging non-payment, of the note for $5,718.45, and seeking judgment for that amount, together with interest. The Bakers answered, denying the allegations of the complaints, and filed their own cross-complaint, (counter-claim), asserting that appellants had wrongfully taken possession of Baker’s business, furniture and assets; it was alleged that he had been damaged in the sum of $84,000.00. Punitive damages were also sought in the amount- of $50,000.00. Appellants responded to the cross-complaint, denying all allegations. The cases were consolidated for trial, and on hearing, the court, sitting as a jury, at the conclusion of the evidence, announced its findings, a part of which was incorporated into the judgment, as follows:

“There will bo judgment for the defendant on the suit — on the notes in both cases, and there will bo judgment for the defendant, on the cross-complaint against the plaintiff for damages to his business in the sum of $7,500.00.”

Judgment was then entered for appellee on both notes, and appellee was also awarded judgment, for $7,-500.00 on the. cross-complaint. From the judgment so entered, appellants bring this appeal. Several points arc urged for reversal, but we discuss only the first, since error was committed and the judgment must be reversed, and the case remanded.

It is first argued by appellants that the court committed error in failing to enter judgment for appellants on the two promissory notes, admittedly executed by appellee; that even if appellee established the right of set-off against the amount owing on the notes, such a finding -would not constitute a defense to the execution of llie notes, and there was no legal basis for the court to simply refuse to grant a recovery. We agree that error was committed. Baker does not allege forgery or fraud in the execution of the instruments; to the. contrary, the signing of the notes is admitted. It was likewise admitted that no payments had been made on either note. It is true, of course, that any set-off established by a counter-claim could properly be allowed as a credit against the amount of the note. In Harris v. Perron, 232 Ark. 162, 334 S.W. 2d 705, we said:

“The record reveals the testimony to be undisputed that there is a balance due on the note oP $5,-783.48. "Endorsement of the note was admitted by appellees. Therefore, the only question presented in trial of the case was the amount of set-off due appellees. The only testimony introduced on behalf of appellees regarding the set-off claimed is that, of appellee, Ruby Perron. This testimony consisted of claims for specific amounts for the removal, by appellants, of three specific items which, according to appellees’ testimony, -were to remain with the house.”

The court, in rendering its findings, heretofore quoted, gave no explanation for disallowing any recovery on either of the notes, and one would have to assume that lie found nothing to be due because of the fact that amounts due under the counter-claim were greater than the total amount claimed by appellants. In fact, to conform to the judgment entered, it was necessary that the court find that the counter-claim by appellees exceeded appellants’ claim by $7,500.00, meaning that the counterclaim had a value of $20,718.45. Here, again, the trial judge did not explain the basis of the award, though in remarks preceding those appearing in the judgment, it appears that an allowance of $6,000.00 might have been made on the basis of the court’s finding that the furniture and .equipment had been purchased by appellee, but had been removed by appellant. There is nothing in the remarks of the trial judge indicating the basis for the balance of the counter-claim allowed, $14,718.45, though the figures indicate that a part of the judgment was based on cancellation of the notes.

Since this case is being remanded for another trial, it might be here said that it is rather difficult to follow parts of the testimony, and a portion of the evidence is somewhat vague and speculative. It would seem that, more specific evidence could be offered by all parties to the litigation on some of the questions involved.

Ill accordance with, tlie views herein set out, the judgment is reversed, and the cause remanded for farther proceedings not inconsistent with this opinion.

      This case was tried by Judge Tom Gentry, but Judge Gentry resigned from office before judgment was entered. The judgment was subsequently entered, on Gentry’s findings, by the present Circuit Judge of the Pulaski County Circuit Court, Third Divi sion, the Honorable Tom Digby.

       Appellee argues a number of items which he contends supports recovery; however, he took no cross-appeal. It is asserted that, because of the wrongful cancellation of his franchise, and the taking over of the business by appellants, he lost $118,560 00 in net profits, this figure being based on a five-year operation, the length of the franchise. It is further contended that he was entitled to a credit of at least $1,787.42, a part of the money on deposit in the Union National Bank at the time of the cancellation of the franchise; it is contended that Manpower of Pulaski County held accounts receivable in the amount of $10,000.00; appellee argues that he was due the return of the $3,500.00 cash paid on the contract price: that he was due $7,500.00 that he invested in the business (not the $7,500.00 mentioned in the note); other lesser items are also included.


author: G-rouge Bosk Smith, Justice. John A. Fogleman, Justice.

text:
    Paul Shick v. Ben Dearmore
    5-4894
    442 S.W. 2d 198
    Opinion Delivered June 9, 1969
    [Amended on denial of Rehearing July 14, 1969.]

      Thomas B. Timwn for appellant.

      Bog E. Danvser for appellee.
   G-rouge Bosk Smith, Justice.

In 1967 the appellee, Ben Dearmore, sold a vacant residential lot to Norbert Nelson, who was to pay for the lot in monthly installments over a period of two years. Nelson took possession of the lot by moving a trailer house to it and began the construction of a permanent dwelling house on the land. Nelson employed the appellant, a well driller, to drill a water well on the property. Shiek successfully completed a well by drilling to a depth of 284 feet anctinstalling 191 feet of pipe. Nelson ran out of money without having paid Dearmore for the lot or Shiek for the water w.ell. Nelson abandoned the project and apparently left the state, his whereabouts thereafter being unknown.

Late)- on it was learned that Nelson and Shiek had made a mistake in locating the well, which was actually drilled at a point a few inches past Nelson’s boundary line and upon an adjoining lot also owned by Dearmore. "When Shiek threatened to assert a well-driller’s lien against the lot, Dearmore brought this suit in equity to enjoin Shiek from either claiming a lien or destroying the well. By counterclaim Shiek asserted that Nelson had acted as Dearmore’s agent in employing Shiek to drill the well. Silicic asked that he be given judgment against Dearmore for the contract price of $992, that the judgment be declared a lien upon the land, that the lien be foreclosed, and that Shiek have such other relief as he might be entitled to.

At the trial Shiek, not having Nelson as a witness, was unable to prove the asserted agency. Dearmore testified that Nelson had not been authorized by Dear-more to contract for the well and that Dearmore knew nothing about the drilling until the well had been completed. At the end of the trial the chancellor apparently ruled in Dearmore’s favor but went on to say that Shiek might remove the pipe and restore the land as nearly as possible to its original condition. Upon objection, however, the court invited briefs on the question and later rendered a decree holding that the casing installed in the well was a permanent improvement that became part of the realty; so Shick had no right to remove it. This appeal is from that decree.

Dearmore first insists that Shick has no standing in this court to seek the return of the pipe, because he did not pray for that relief in his counter-claim. There is no merit in that contention. In Grytbak v. Grytbak, 216 Ark. 674, 227 S.W. 2d 633 (1950), we considered on rehearing just such a contention — that an issue had not been before, the trial court because it was not raised by the prayer for relief. In denying the contention we said: “AYe have held that the statement of facts in a complaint or cross-complaint, and not the prayer for relief, constitutes the cause of action, and that the court may grant whatever relief the facts pleaded and proved may warrant, in the absence of surprise to the complaining party. Albersen v. Klanke, 177 Ark. 288, 6 S.W. 2d 292. AYe conclude that the facts pleaded and proved warrant the allowance of alimony, and that appellee is not in a position to plead surprise.”

So in the case ai bar. Shirk's counter-claim pleaded his contract with Nelson and the ensuing completion of the well; so Dearmore could not have been surprised by the proof. ' Shick failed, however, to prove that Dear-more had authorized the drilling of the well. Hence the question on appeal is whether, upon the facts actually pleaded and proved, Shick is entitled to remove the casing that he installed on Dearmore’s land in good faith but by mistake.

AYe are convinced that in a court of equity Shick should be given the right to remove the casing and restore the land to its original condition, if that can be done without damaging the land. Any other holding would allow Dearmore to be unjustly enriched by obtaining a flowing water well to which he lias no equitable claim.

The chancellor followed the strict common-law rule in holding that a permanent improvement placed upon another’s land by mistake becomes a part of the realty and cannot be removed. Such a rule is obviously unjust when the improvement can be removed without damage to the freehold. Justice Joseph Story, while trying a case in Maine as circuit justice, first pointed out the inequities of the common-law rule and refused to follow it in a proceeding in equity. His language, often quoted since, appears in his opinion in Bright v. Boyd, 4 F. Cas. 127 (No. 1,875) (C.C. Me. 1841):

Take the case of a vacant lot in a city, where a bona fide purchaser builds a house thereon, enhancing the value of the estate to ten times the original value of the land, under a title apparently perfect and complete; is it reasonable or just, that in such a case, the true owner should recover and possess the whole, without any compensation whatever to the bona fide purchaser? To me, it seems manifestly unjust and inequitable, thus to appropriate to one man the property and money of another, who is in no default? The argument, I am aware is, that the moment the house is built, it belongs to the owner of the land b}1- mere operation of law; and that he may certainly possess and enjoy his own. But this is merely stating the technical rule of law, by which the true owner seeks to hold, what in a just sense, he never had the slightest title to, that is, the house. It is not answering the objection; but merely and dryly stating, that the law so holds. But, then, admitting this to be so, does it not furnish a strong ground why equity should interpose and grant relief?

Among the many cases that have adopted Justice Story’s view we may mention Union Hall Assn. v. Morrison, 39 Md. 281 (1873); Hardy v. Burroughs, 251 Mich. 578, 232 S.W. 200 (1930); Hatcher v. Briggs, 6 Ore. 31 (1876); Herring v. Pollard, 23 Tenn. (4 Humph.) 362 (1843); Murphy v. Benson, 245 S.W. 249 (Tex. Civ. App. 1922).

When the Restatement of Restitution was published in 1937 the American Law Institute took the position in 4 12 tlial the harshness of the common-law rule had been mitigated in most states at least to the extent of allowing restitution as a defense or set-off to affirmative relief sought by the land-owner. Since then the steady trend of the decisions has been to allow the removal of the improvements in an equitable proceeding wheuever that course can he followed without substantial damage to the land. A typical statement of the modern view was made 1hreo years ago by the South Carolina court in Citizens & So. Nat. Bk. v. Modern Homes Const. Co., 248 S.C. 130, 119 S.E. 2d 326 (1966):

While common law principles strongly affected our earlier decisions in dealing with the rights of one who improved the land of another, there is no sound reason to deuy the plaintiff a remedy in equity under the facts alleged. Tf the plaintiff is allowed to remove the building, the defendant would be deprived of nothing to which he is justly entitled and would he compensated for any damage that might result from the removal of the building. Both parties would be made whole. It would he clearly inequitable, under the facts alleged, to allow the defendant to be enriched by the construction of the building on its land. Courts in other jurisdictions have found no difficulty in granting relief in such cases, not upon the theory of the betterment statutes, hut upon the broad power of equity. See: Halazar v. Garcia, Tex. Civ. App., 232 S.W. 2d 685; Toalson v. Madison, Mo., 307 S.W. 2d 32; Hardy v. Burroughs, 251 Mich. 578, 232 N.W. 200; Murphy v. Benson, Tex. Civ. App., 245 S.W. 249; Pull v. Barnes, 142 Colo. 272, 350 P. 2d 828.

We are so strongly in favor of the equitable view that has been taken more and more widely in the past several decades that we have no hesitancy in adopting it in the case at hand. Thus the chancellor’s immediate reaction at the close of the proof was right — that Shick should be allowed to remove his casing and restore the land to its original condition. It is not entirely clear, however, that such a course can be followed without damage to the land that might fairly be considered to be substantial when compared to the pecuniary loss that Shick would otherwise sustain. Pursuant to our discretionary power to remand a chancery case for further proof, General Box Co. v. Sculock, 224 Ark. 266, 272 S.W. 2d 678 (1954), we think it best to remand this cause to give the parties an opportunity to develop the proof upon the point mentioned, with leave to the Chancellor to dispose of the watt-er by an award according to the principles of equity.

Reversed and remanded.

Harris, C.J., and Fogleman, J., dissent.

John A. Fogleman, Justice.

I respectfully dissent. The majority opinion, based upon the chancellor’s finding that this fixture is a permanent improvement, allows appellant to come upon the land and reclaim it. However equitable this result may seem in this case, it amounts to an overruling of a long standing rule of property, i.e., that permanent fixtures become part of the realty and belong to the owner thereof. See Ozark v. Adams, 73 Ark. 227, 83 S.W. 920. We have held on several occasions, upon a finding that the fixture was a permanent improvement, that it cannot be removed from the land because it has become a part of the realty. DePriest v. Peikert, 211 Ark. 460, 200 S.W. 2d 804; Dent v. Bowers, 166 Ark. 418, 265 S.W. 636; Waldo Fertilizer Works Inc. v. Dickens, 206 Ark. 747, 177 S.W. 2d 398.

The cases cited by the majority, except one, all involve situations where equity has granted some sort of remunerative relief to a person who has mistakenly placed a permanent improvement on another’s property. They are not support for the relief granted by the court here. Admittedly Citizens & So. Nat. Bk. v. Modern Homes Const. Co.] 248 S.C. 130, 149 S.E. 2d 326 (1966) allows the removal of improvements where it can be done without substantial damage to the land, but the short answer to this is that it is not the law in Arkansas. In Wallace v. Snow, 197 Ark. 632, 124 S.W. 2d 209, we said, ‘■'Tt is further argued that the court should have allowed him judgment for improvements. In Marlow v. Adams, 24 Ark. 109, it was held that a party in possession of lands who fails to establish his title thereto, cannot be allowed for improvements more than the value of the rents. And in McDonald v. Rankin, 92 Ark. 173, 122 S.W. 88, it was held that at common law the true owner had a right to improvements placed thereon even by a bona fide possessor; but that equity adopted the doctrine requiring the value of permanent improvements placed by a bona fide possessor to be off-set against the rents and profits, whenever the true owner applied to equity for an accounting by the possessor of the rents and profits. In this ease there is no demand by appellees for rents and profits, and appellant cannot recotier for Ms improvements. Not having color of title to the disputed strip of land he cannot claim under the betterment statute. # 4658, Pope’s Digest. See also, Foltz v. Alford, 102 Ark. 191, 143 S.W. 905, Ann. Cas. 1914A, 236.” (Emphasis mine.) T am unable to distinguish the Wallace case from the case at bar. See also Buswell v. Hadfield, 202 Ark. 200, 149 S.W. 2d 555.

If it were the rule in Arkansas that the relief the. majority would afford could be successfully asserted against a suit for equitable relief it should have been applied in DePriest v. Peikert, supra; Dent. v. Bowers, supra; Wallace v. Snow, supra, where the claim was asserted in such, an action.

Harris. G.J., joins in this dissent.


author:
G-eoroe Rose Smith, Justice.
      John A. Fogleman, Justice.

text:
    Arkansas State Highway Commission v. Russell C. Roberts et ux
    5-4934
    441 S.W. 2d 808
    Opinion Delivered June 9, 1969

      Thomas B. Keys and Kenneth B. Brock for appellant.

      (hn¡ If. Jones and Clark, Clark & Clark for appellees.
   G-eoroe Rose Smith, Justice.

This is a condemnation ease by winch the highway department is taking, as a right-of-way and interchange for Interstate 40, a 9.63 acre tract in Conway, owned by Circuit Judge Roberts and his wife. No severance damages are involved, the taking being total. Four expert witnesses and Judge Roberts himself testified. For the landowners, the witness Baines valued the land at $108,000, the witness Pearce at $105,750, and Judge Roberts at $129,750. For the commission the witness Adams valued the land at $27,000, and the witness Lieblong at $24,200. The verdict urns for $125,000. For reversal the commission questions the admissibility and substantiality of the landowners’ evidence.

Borne description of the property and its location is essential lo an understanding of the case. On the date of the taking, June 6, 1966, the Roberts tract, approximately square, lay about a mile north of the Conway central business district. The tract was bounded on the south by IT. S. Highway 65. At the back of the property, away from the highway, it sloped upward steeply to a ridge 60 feet higher than the front of the tract. The improvements consisted of a four-room house, a barn, and three stock ponds, but no witness attributed any value to the improvements in arriving at an estimate of just compensation for the land.

H. S. Highways 64 and 65 are of critical importance throughout all the testimony. The two routes run northward together from downtown Conway to a point about a quarter of a mile southwest of the Roberts tract. At that point there is a “ Y” by which No. 65 diverges in an easterly direction and No. 64 diverges in a westerly direction.

At the beginning of the trial the landowners were allowed to introduce two composite aerial photographs showing''tile land in its setting with relation to the city and the two highways. Counsel for the commission had no objection to the photographs, but they did object, unsuccessfully, to the introduction of a plastic overlay for each picture, showing the proposed location of Interstate 40 after its construction. The overlays were readily separable from the photographs and should have been excluded. They had no possible relevancy to the value of the land on the date of the taking and could only divert the jury’s attention to the higher values that might be expected to flow from the construction of the interstate route. Needless to say, one who offers evidence has the burden of showing its admissibility. Wigmore, Evidence, § 18 (3d ed., 1940). Even in their briefs in this court counsel for the landowners have offered no sound basis for the introduction of the overlays, their argument, being in effect that the evidence was not- prejudicial. The error, however, must be considered to have been prejudicial unless the absence of prejudice is shown. Equitable Discount Corp. v. Trotter, 223 Ark. 270, 344 S.W. 2d 334 (1961). In view of the size of the award — which was the only issue for flic jury — it certainly cannot be said that the absence of prejudice affirmatively appears.

The main issue, however, is the substantiality of the landowners’ testimony. That issue is singularly uncomplicated in this case, because all the witnesses used only one method of evaluation — that of comparable sales —in reaching their conclusions. Nichols points out that the four factors generally considered in the determination of market value are sales, cost, income, and use. Nichols, Eminent Domain, § 12.1 (3d ed., 1962). We have considered all four factors in cases too numerous to mention. Comparable sales, cost (or reproduction cost) less depreciation, and capitalization of income are methods of evaluation recognized universally by the authorities. See especially Sill Corp. v. United States, 10th Cir., 343 F. 2d 411 (1965). The highest and best use of the properly is an added element of value that in many instances is not inherent in the method of evaluation being used and that may therefore be considered along with it.

In the. case at bar the improvements on the -tract were of such relatively slight value and presumably were rented for so little that no witness used either the method of cost less depreciation or the method of capitalization of income. Barnes, testifying for the landowners, mentioned a number of nebulous considerations such as the proposed develo]uncut of the Arkansas River, the rate of population increase, and similar matters that obviously would be reflected in comparable sales and in the year-lo-vear tendency toward rising prices that was’ ''also brought out by the testimony. Neither Barnes nor any other witness assigned definite weight to such vague considera! ions.

Thus the substantiality of the landowners’ evidence rests, when objectively considered, on the comparability of the sales upon which they relied for their conclusions. In the study of that vital issue two points must be kept in mind:

First, a sale must be comparable even to be admissible in evidence. City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W. 2d 30 (1958). We described comparability in this paragraph in Ark. State Highway Commn. v. Wifkowski, 236 Ark. 66, 364 S.W. 2d 309 (1963):

There can be no fixed definition of similarity or comparability. Similarity does not mean identical, however it. does require some reasonable resemblance. See Nichols, Eminent Domain, Vol. 5 § 21.31, p. 439. There are certain criteria of similarity-which can be utilized to establish a reasonable resemblance. Important factors of similarity to be considered are location, size and sale price; conditions surrounding the sale of the property, such as the date and character of the sale; business and residential advantages or disadvantages; unimproved, improved or developed land. None or any combination of these criteria were sufficiently shown, “connected up” or “tied in” as between the. Caldwell and Witkowski tracts to establish a reasonable resemblance. In the case at bar the jury could only speculate in applying the evidence in question to the market value of the subject property.

Secondly, although an expert witness may state his opinion on direct examination without first detailing the. facts on which it is based, his testimony is not substantial evidence if he is unable to give a sound and reasonable factual basis for his conclusions. Ark. State Highway Commn. v. Johns, 236 Ark. 585, 367 S.W. 2d 436 (1963). With those points in mind wc turn to the evidence in the case at bar.

Barnes, the first witness called, gave the most comprehensive testimony for the landowners. He described the land as having a 660-foot frontage on Highway 65 and about an equal depth. The tract was zoned for commercial use to a depth of 200 feet from the highway with the rest being zoned for residential use. In valuing the entire tract at $108,000, Barnes valued the commercial strip at $100 a front foot, making a total of $66,000, and the rest at 15 cents a square foot, or $42,000 in round numbers. Converting his figures to acreage, Barnes stated that he valued the commercial strip at $21,780 an acre and the rest at $6,534 an acre.

On cross examination Barnes explained that he had checked about 250 sales and selected those that he thought be comparable to the Roberts tract. It appears from ilie record that five of the sales were outlined on a blackboard and referred to repeatedly by the landowners’ expert witnesses. Those five sales, as nearly as can be determined from a study of the record, were as follows:

Identification of Sale Price per Acre Price per Front Foot

Covington to Bell $ 8,000 $ 78.50

Bailey to Lynch 16,370 90.00

Lieblong to Clawson 7,000 83.33

Tyler to Leonard 13,333 130.00

AVatering to Starkey 14,800 93.50

An analysis of the record demonstrates beyond question that the sales relied upon did not involve properties comparable to the Roberts land. The first sale — the only one involving laud on Highway 65 — must be laid aside quickly. The testimony shows without contradiction that the purchaser, Bell, bought it as a speculation in the expectation that the interstate highway would be located nearby. That speculation proved to be correct. A Holiday Inn was eventually built on the parcel. The public, however, cannot be compelled to pay prices based either upon speculation or upon a value that accrues by reason of the improvement for which the land is being taken. Ark. State Highway Commn. v. Watkins, 229 Ark. 27, 313, S.W. 2d 86 (1958); Ark. State Highway Commn. v. Griffin, 241 Ark. 1038, 411 S.W. 2d 495 (1967).

The other four sales may be considered together. All four parcels were on Highway 64 — not Highway 65— at or near the i£Y” They were in a small area that had already been developed to commercial use. Bacli tract, at the time of its sale, was the site of a going business occupying a building whose value had to be estimated and subtracted from the purchase price in the determination of the value of the land alone. The traffic count on Highway 64 was about double that on 65.

By contrast, the Roberts property fronted on Highway 65. That area had not been developed commercially. Quite the opposite, there is no contradiction of the., commission’s testimony that only 18% of the property in that vicinity had been developed commercially; that the other 82% was either vacant or devoted to residential use only;' and that there had never been “any business out 65 that didn’t go broke or quit.”

Barnes made an adroit effort to harmonize the discordant facts by saying that owing to the higher traffic count the other tracts would be more valuable for a “traffic oriented commercial use,” but the Roberts property would bo better for a commercial use that “wanted to avoid traffic congestion.” The inherent contradiction is too plain to be overlooked. Barnes used the “traffic oriented” parcels to establish a front foot value, which he then applied to the Roberts tract. But obviously front footage on the highway derives its primary importance from the tract’s attractiveness to businesses that áre dependent upon the heavy flow of traffic. Comparability at once disappears when that essential similarity is wanting. Moreover, in arriving at his front-foot figures Barnes entirely disregarded the depth of the property. For instance, the- Lieblong property was described as being 600 feet deep, but Barnes made no allowance for that fact in comparing it to the commercially zoned strip of the Roberts land, only 200 feet deep. It is manifest that on a front-foot basis a lot 600 feet deep is not fairly comparable to one 200 feet deep.

Barnes valued the back part of the Roberts tract, as a potential site for apartment houses and other multifamily uses. His testimony was, to say the least, conjectural. There was no showing of any active demand .for- apartment houses in the neighborhood. None had been built, nor had any property been bought or sold for that purpose. There were such structures in other parts of Conway, but the witness did not have definite information about them. In fact, lie ultimately admitted on cross examination that lie did not have “a single sale of property in Conway comparable to [the Roberts tract] which was bought for multi-housing units.” Since he was using only the comparable sale method of evaluating the property, there was in reality no basis for his,.conclusions. His entire testimony should have been stricken on motion of the highway commission’s counsel., "Wb need not detail the testimony of the landowners’ other expert witness, Pearce. He worked with Barnes in the preparation of his testimony and really added nothing to what had already been said.

Judge Roberts was the other witness for himself and his wife. He admitted witli candor that 'lie paid only $1,750 for the ten acres in 1946 and that at the time of the taking it was assessed for taxation at $1,500 (which, however, would ostensibly be only 20% of its market value. Ark. Stat. Ann. § 84-476 [Repl. 1960]). The judge differed with his expert witnesses by assigning a value of $125 a front foot to the commercial part of his land, but he stated no basis for that figure — other than mentioning a sale somewhere east of Conway which he himself said was not comparable.

IVe find no substantial evidence in the record to support the amount of the verdict or anything approaching that figure. At the same time, the testimony of tln> commission’s expert witnesses is not altogether convincing. It appears that in earlier condemnation cases their testimony with respect to the same subject matter was more favorable to the landowner than that given in the case at bar. As in Ark. State Highway Commn. v. Darr, 246 Ark. 203, 437 S.W. 2d 463 (1969), we cannot with confidence arrive at a minimum sum which the landowners should in any event recover. The .judgment must therefore be reversed and the cause remanded for further proceedings consistent with this opinion.

Fooukivtan, J., concurs.

John A. Fogleman, Justice.

I agree that this case must be reversed for the reasons stated in the majority opinion. However, it seems to me that the flaw in the testimony of appellees and their witnesses consists of a failure of the witnesses to satisfactorily explain the extent of the effect of various factors upon market value of the land in question rather than in considering them in arriving at an opinion.

In considering this ease, we do not have a question as to the admissibility of direct evidence of sales of other lands. Instead, we are considering the opinion testimony of experts based, at least substantially, upon such sales. Since the majority opinion states that the testimony of appellees and their witnesses should have been stricken on motion of appellant (a point not relied upon here), it seems to me to imply that upon retrial their opinions cannot be substantial evidence. It is my opinion that they would have been substantial evidence if the witnesses had given a satisfactory explanation of the effect, of the various factors considered by them and of the adjustments made in evaluation of the sales considered by them as pertinent to market value.

Nichols’ “The Law of Eminent Domain” is perhaps the leading authority on this subject. In treating the determination of market value, this authority states that the following are to be considered, among other things (4 Nichols on Eminent Domain 84, § 12.31 [2]) :

(a) A view of the premises and their surroundings.

(b) A description of the physical characteristics of the property and its situation in relation to the points of importance in the neighborhood.

(c) The price at which the land was bought, if sufficiently recent to throw light on present value.

(d) The price at which similar neighboring land has sold at or about the time of the taking. Tliis test, so conclusive in the case of articles of personal property commonly bought and sold, is so much less valuable in the case of real estate that in some jurisdictions it is rejected altogether, but it is generally considered that it should be used for what it is worth.

(e) The opinion of competent experts.

(f) A consideration of the uses for which the land is adapted and for which it is available.

It is to he noted that sales of neighboring lands and opinions of experts are two separate and distinct factors. We have said that the determination of the value of lands taken by eminent domain is largely a matter of the opinion of the witnesses who are familiar with the lands and the use for which they are best suited, having such weight only as the jury may be convinced they should have by the reasons given for the respective opinions. Southwestern Bell Telephone Co. v. Biddle, 186 Ark. 294, 54 S.W. 2d 57.

This does not mean that opinions of experts without a reasonable basis can be considered See 5 Nichols on Eminent Domain 240, § 18.42 [1]; Arkansas State Highway Commission v. Stanley, 234 Ark. 428, 353 S.W. 2d 173: Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S.W. 2d 436. Still, the opinion of an expert as to market value need not be based upon comparable sales alone. 5 Nichols on Eminent Domain 245, § 18.42 [1]. The question of who are competent to express opinions on the value of lands taken must be largely left to the discretion of the trial court. Ft. Smith & Van Buren Bridge District v. Scott, 103 Ark. 405, 147 S.W. 440. The inquiry is not confined to testimony relating to sales of similar property for like purposes, but may be determined from opinions of witnesses having knowledge of the subject and whose business or experience entitles their opinions to weight. Ft. Smith & Van Buren Bridge District v. Scott, supra. This rule was applied in the cited case in sustaining the admission of testimony by witnesses who had no knowledge of land sales or prices realized under like conditions for like purposes. Apparently these witnesses were “non-expert.”

An oven greater latitude is allowed expert witnesses. The difference in latitude is demonstrated by the rule which permits a witness whose qualifications and familiarity -with the subject are shown, to express an opinion, without first detailing the facts upon which his opinion is based as a non-expert witness would be required to do. Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S.W. 2d 436. Arkansas State Highway Commission v. Dixon, 246 Ark. 756, 439 S.W. 2d 912. We have said that in considering testimony based on comparable sales reasonable latitude must be allowed in evaluating sales and adjusting or compensating for differences in similar lands. Arkansas Stake Highway Commission v. Sargent, 241 Ark. 783, 410 S.W. 2d 381; Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S.W. 2d 563.

In this connection, the following statement from Nichols’ text is pertinent (Vol. 5, p. 253, § 18.42 [1]):

“A distinction must also be drawn relative to the foundation which must be laid for such evidence based upon whether the comparable sales data is used as support for an expert’s opinion or as indedendent substantive evidence of value. Quite obviously, when evidence of the price for which similar property has been sold is offered as substantive proof of the value of the property under consideration, a foundation should be laid showing that the other property is sufficiently near that in question and that it is sufficiently like the property in question as to character, situation, usability and improvements to make it clear that the tracts are comparable in value. However, where evidence of sales of similar property is offered not as substantive proof of value, but merely in support of, and as background for, the opinion of an expert as to the value of the land in question, the requirement of such foundation is not so strict.
Testimony of an expert can be considered though ho did not base his opinion entirely on comparable transactions.
The supporting data testified to by the opinion witness must be relevant and competent although the use of hearsay, in and of itself, is not sufficient to condemn the competency of the opinion especially where the witness shows that his own knowledge and experience require agreement with such hearsay evidence. The fact that certain elements are not independently admissible in evidence, however, does not bar their consideration by an expert witness in reaching an opinion. Thus, it has been said:
‘An integral part of an expert’s work is to obtain all possible information, data, detail and material which will aid him in arriving at an opinion. Much of the source material will be in and of itself inadmissible evidence but this fact does not preclude him from using it in arriving at an opinion. All of the factors he has gained are weighed and given-the sanction of his experience in his expressing an opinion. It is proper for the expert when called as a witness to detail the facts upon which his conclusion or opinion is based and this is true even though his opinion is based entirely on knowledge gained from inadmissible sources.’ ”

This principle was followed by us in holding that there was no error in refusing to strike the testimony of an expert when his knowledge of prices paid by the condemnor in the area entered into his determination of value. Arkansas State Highway Commission v. Kennedy, 234 Ark. 89, 350 S.W. 2d 526.

"With the more liberal approach required in considering the basis for the testimony of an expert witness, an examination of our authorities governing sales of other lands will demonstrate that the testimony of appellees and their witnesses would not have been subject to being stricken, if adequate explanations had been given. Perhaps the leading case in Arkansas on the admissibility of the value of other lands is St. Louis I. M. & S. R. Co. v. Theodore. Maxfield Co., 94 Ark. 135, 126 S.W. 83. There, it was held that testimony relative to the value of lands similar to that taken, and of lands not similar if accompanied with explanations sufficient to show the difference between market values of such lauds, is admissible by way of comparison to show the market value of the lands in question. This is the authority relied upon in City of Little Rock v. Sawyer, 228 Ark. 516, 309 S.W. 2d 30, cited in the majority opinion. In passing, it should be noted that this court in that case merely approved the ruling of the trial court in denying the condemnor the right to cross-examine condemnee’s value expert about a certain sale of lands he described as being so dissimilar as to preclude a comparison. We said that there was no error in the trial court’s holding that the condemnor must first develop a similarity between the properties before the question would be proper.

This court has also held that an objection to the introduction of evidence relative to the sale price of a one-acre tract purchased by appellant for a particular purpose because it was not similar in location or topography to the damaged lands was without merit. Sewer and Water Works Imp. Dist. No. 1 v. McClendon, 187 Ark. 510, 60 S.W. 2d 920. There we said that “sales of other lands in the same locality is a fair criterion to aid in establishing market value.” The contention that there was reversible error in admitting testimony by a landowner as to the value of his farm situated about seven miles from the lands involved was also rejected. "We said:

“ * * * There were similarities detailed by him between his tract and appellee’s land; so the testimony was admissible notwithstanding they were separated by a distance of seven miles. In these days of good roads and rapid means of transit, it cannot be said as a matter of law that the lands were in different localities. The description of the two tracts make the testimony’- of Everett admissible under the rule of evidence announced in the ease of St. Louis Iron Mountain & Southern Railway Company v. Maxfield, 94 Ark. 135, 126 S.W. 83, 26 L. R. A. (N.S.) 1111.”

The holdings in the cases cited above are not affected in any way by the opinion in Arkansas State Highway Commission v. Witkowski, 236 Ark. 66, 364 S.W. 2d 309. There the action of the trial court in permitting direct testimony as to a sale of property’- by a witness was found erroneous. The only evidence as to proximity was conjectural. There was no evidence to show a comparison or similarity’ between this property and the property’ of the condemnee.

In this case, appellant has not contended that either appellees or their witnesses are not qualified to testify. Each of them cleaily qualified to express an opinion. Witnesses who are properly qualified are in much better position to know the considerations which determine market value, i.e., influence prospective buyers and sellers, than most judges, either at the trial or appellate level. Yet they should be able to give some means of evaluating the effect of such factors on values of property about which they testify. They should also be able to measure to some degree the adjustments to be made in comparing sale prices of other lands because of differences in the properties involved. For example, the location of property’ on a different highway’ where traffic is greater should not render a sale thereof improper as a basis for an expert opinion when adjustment is made for the difference.

In evaluating’ tlie testimony of tlie witness Barnes, it must be remembered that he is not only an appraiser but a real estate counselor engaged in the business of making analyses with respect to demands and needs for real estate and advising a client with respect thereto. When asked whether he considered sales in the community and neighborhood comparable to this property, he stated that there were no sales comparable to this property. He added that he used sales that had been made and compared the factors that went to make up the value of that property with the factors which affected the value of the Roberts property. This is in keeping with rules governing such testimony. Yet I agree that the witness failed to adequately explain the effect of any particular factor. Specifically, he failed to adequately explain a front foot value for commercial property higher than that given for property which would seem to command a higher price. The differences pointed out in the majority opinion as to the four sales treated there together, unexplained, would render the basis insubstantial. I do not think then we can say, as a matter of law, that they could not be considered if an evaluation of similarities and differences is given. They could have a very real effect on prospective buyers and sellers of property like that of appellees. According to appellant’s witness Adams the first sale considered by him was the sale by Lieblong to Clawson, one of the sales held to be dissimilar in the majority opinion. Mr. Lieblong, appellant’s other value witness and the seller in that sale, also considered it. I cannot help asking whether the court is saying that the witnesses for neither party can consider this sale on retrial.

Furthermore, I do not think we can rule out the sale by Covington to Bell as speculative as a matter of law. Although Barnes answered a question as to whether the purchaser was speculating as to the location for a Holiday Inn site in the affirmative, he stated that Bell was ••hopeful that he would be located near enough to the interstate facility “to work something out” but did not feel that he paid any increment for the land on account of that speculation. Barnes also stated that the site was suitable for a Holiday Inn whether the interstate highway was built or not. That this sale should not be discarded as speculative is best demonstrated by its use by appellees’ expert witness Adams in considering the market value of the condemned property.

I cannot agree that the testimony as to the highest and best use of part of the property for multifamily housing is necessarily conjectural. Barnes investigated rental housing' in Conway and found an insufficiency of both single and multifamily units available. The zoning ordinances permitted this use of the property. Barnes did not think that other properties which could be used for that purpose were as well located with reference to community facilities, the Arkansas Children’s Colony or Hendrix College. The advantage of the view of the community from the high elevation was pointed out by the owners and by Barnes. Both Barnes and Pearce testified that this was its highest and best use. The fact that such developments have not been made in the immediate vicinity would go only to the weight to be given to the testimony. Someone always has to have the first such development in an area, but the fact that such development is the first does not .eliminate the adaptability and availability of the property for that use. The experts simply disagreed on the highest and best use. '

It seems to me that the majority has weighed the evidence while considering its substantiality.


author: Lyle Brown Justice.

text:
    Horatius Williams v. Jefferson Hospital Ass’n Inc.
    5-4949
    442 S.W. 2d 243
    Opinion Delivered June 9, 1969
    [Rehearing denied July 14, 1969.]

      Alonso D. Gamp for appellant.

      ...Bridges, Young, Matthews & Davis for appellee.

      Spitzberg, Mitchell & Hays Amicus Curiae Brief.
   Lyle Brown Justice.

Horat-ius Williams brought a tort action against Jefferson Hospital Association, Inc., and two doctors. The hospital moved for summary judgment in its behalf on the basis of our doctrine that charitable institutions are immune from tort liability. That motion was granted and Williams appeals.

The complaint alleges that Williams was admitted to Jefferson Hospital in Pine Bluff following a vehicular accident; that he was treated and observed for some seven hours; that not withstanding his serious condition he was negligently discharged by the doctors and an unnamed agent of the hospital; and that they released him to law enforcement authorities knowing that action would result in his being placed in “a common jail.” For their alleged negligence in abandoning him after assuming professional responsibility for treatment plaintiff prayed for actual and punitive damages.

To its motion for summary judgment, Jefferson Hospital attached a copy of its articles of incorporation which describe it as a charitable, scientific, educational, and non-profit organization. Other supporting affidavits were exhibited. The response to the motion for summary judgment did not deny the allegations of the motion ; the court was asked — -in the event it found Jefferson Hospital to be a charitable institution — to enter an order “abandoning the doctrine of charitable immunity from tort liability7'.” The court entered an order finding Jefferson Hospital to be a charitable institution and dismissed it from the action.

Aside from electing not to controvert the hospital’s assertion that it was in fact dedicated to the operation of a charitable facility, appellant concedes in his brief that Jefferson Hospital “falls into the category of charitable institutions, and, under present law, is exempt from tort liability under the charitable, immunity doctrine.” With that candid admission appellant presses the single point that our doctrine of charitable immunity from tort should be abolished.

Appellant advances most of those persuasive arguments favo ling the uprooting of the doctrine and which are well known to lawyers and jurists. Charities, as many respected authorities contend, should not be placed beyond the reach of a rule of law generally applicable, to most individuals and organizations; they assert that the value of life and limb is of greater importance than the property of a charity; that legal scholars who condemn the doctrine of charitable immunity are in the great majority; and that such immunity created by ancient judicial fiat is not consonant with modern day principles of social justice. The arguments are buttressed with citations reflecting a decided judicial trend toward relief, in various forms, from some or all the inequities of the rule. We would be less than candid if we did not concede the collective argument to be impressive, forceful, and even tempting. Nut of course we are duty bound to examine tlie other view of the issue.

First, we are faced with our own case law, promulgated initially in 1906, in Fordyce v. Woman’s Christian Nat'l. Lib. Ass’n., 79 Ark. 550, 96 S.W. 155. It was there held that the property of a charitable institution could not be levied upon to satisy a judgment obtained by one who had been injured by the negligence of an employee of the Association. It was said that funds, as well as real property, held by and dedicated to public charity, were included in the exemption. The opinion in Fordyce relied strongly on Grissom v. Hill, 17 Ark. 483 (1856), concluding that the latter case established the exemption as a rule of property:

We believe that the case of Grissom v. Hill was rightly decided; but, if we thought otherwise, we should think it inexpedient to reverse a rule of property so long acquiesced in. The Legislature can change the rule, if it likes; but it has shown no desire to do so.

In Cabbiness v. City of North Little Rock, 228 Ark. 356, 307 S.W. 2d 529 (1957), a unanimous court held that a boys’ club, being a charitable corporation, was immune from tort liability; and that it was for the Legislature to effect a change because the immunity had become a rule of property.

The latest case in which this court considered the question of hospital immunity from tort judgment was Helton v. Sisters of Mercy, 234 Ark. 76, 351 S.W. 2d 129 (1961). In declining to overrule our position we said:

It will be noticed that in the Cabbiness case it is stated that the rule of immunity of a charitable corporation from tort liability has become a rule of property. In Pitcock v. State, 91 Ark. 527, 121 S.W. 742, Chief Justice McCulloch, speaking for the Court, said: “Decisions which become rides of property should never be overruled, whether they are right or wrong.” And in Burel v. Grand Lodge I.O.O.F., 163 Ark. 131, 259 S.W. 369, it is said: “The decision has become a rule of property, and should not be disturbed, even if the court was otherwise disposed to do so.”

Appellant argues that the harshness of the doctrine requires its abandonment. Concededly that attack would be more persuasive if our court applied the doctrine in a broad and liberal manner, as has been true in some jurisdictions. Our court has in fact given the term “charitable immunity” a rather narrow construction. “A hospital.. .free to all ■who are not pecuniarily able, and supported partly by private contributions and partly by fees from patients, but producing no profit, is a purely public charity.” (Italics supplied.) That statement is found in the early case of Hot Springs School Dist. v. Sisters of Mercy, 84 Ark. 497, 106 S.W. 954 (1907). In Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W. 2d 548 (1953), reference ivas made to those agencies, including hospitals, entitled to the immunity and they were described as created and maintained exclusively for charity. (Italics supxdied.) In that case the hosx'iital was found to fall short of “purely benevolent and charitable irarposes essential to clothe its property with trust attributes.” A tort judgment was affirmed. In Helton, supra, we discussed the many factors which led to the conclusion that the hospital was a public charity. Those were the articles of incorporation; the exemption from all forms of taxes; the free labor of the Sisters; and “its doors are always open to anyone, regardless of creed, needing hospitalization” irrespective of ability to pay. It would indeed be enlightening to know just how many hospitals in Arkansas which are designated as charitable institutions can meet the tests we have enumerated from the three cited cases.

Appellant points to our holding in Parish v. Pitts, 244 Ark. 1239, 429 S.W. 2d 45 (1968), in which we abrogated municipal immunity from tort liability. That decision is not controlling here and at most might b.e persuasive. Parish dealt exclusively with municipalities and a number of reasons there cited for subjecting them to tort liability are peculiar to units of government as compared with charitable institutions. The ability of the cities to spread by taxation the cost imposed by torts is oxxe example. Again, we were there dealing with an antiquated doctrine that “the king can do no wrong.”

There is another reason why the Parish case is not controlling. The Legislature acted within less than one year after Parish v. Pitts, Ry Act 165 of 1969 that holding was overturned. That Act declares the public policy to be that all political subdivisions of the Stale be immune from tort liability. The Act does require all such subdivisions to acquire public liability insurance on their vehicles. It is further provided that such governmental units may hear and settle tort claims against them. It can well be argued that this expression of legislative intent to retain governmental immunity would bring forward a similar expression in the field of charitable immunity if this court abrogated the latter rule.

Another factor to be considered is the broad impact that would result from renouncing the rule of tort immunity as it applies to charitable hospitals. If such hospitals are not entitled to the immunity then there are a multitude of similar charitable organizations which should likewise be subjected to liability. Some of them administer care to the crippled and persons otherwise afflicted, such as crippled children’s clinics and homes for expectant unwed mothers; then there are orphans’ homes and homes for the aged which are operated by charity and whose clientele are medically treated. AAre do not say that the varied problems which would result from the outright- overruling of charitable immunity make-it impossible to mitigate any harshness in the rule. AATe do shy it could much better be resolved by legislation based on comprehensive study than by this court,. Doubtless the Legislature could evolve a method to lighten substantially the load of the injured and at the same timo avoid any devastating impact on the involved charities. That procedure has been followed by the Legislature in at least four instances that are cited in Parish v. Pitts, supra. Likewise, by Act 165 of 1969, the harshness of municipal tort immunity was considerably reduced.

When we consider collectively the reasons we have, recited which do not favor the overruling of charitable tort immunity of hospitals wo conclude that appellant should not prevail.

Affirmed.

Harris. ('LL, not participating.

      The admission by appellant that Jefferson Hospital is a charitable institution is binding only for purposes of this particular case.


author: John A. Fogreman, Justice.

text:
    Shirley E. McFarlin, et al v. William T. Kelly, et al
    5-4853
    442 S.W. 2d 183
    Opinion Delivered June 9, 1969

      Henry Woods for appellants.

      Richard B. Adkisson for appellees.
   John A. Fogreman, Justice.

This opinion is filed pursuant to per curiam order of November 15, 1968.

Each of the appellants was a candidate in the general election for a position as delegate to the Arkansas Constitutional Convention from District 22, consisting of Pulaski and Perry Counties. In a petition filed November 11, 1968 they sought judgment against the Board of Election Commissioners of Pulaski County (appellees here) declaring the election on November 5 void, insofar as the election of delegates to the convention was concerned. They asked that the board be enjoined from certifying the results of the election and holding of the runoff election scheduled for November 19, 1968, as required by Act 42 of 1968 upon the basis of those returns. They also sought a writ of mandamus directing the appellees to hold another election for choice of delegates. The only defendants were the members of the Pulaski County Board of Election Commissioners. Belief was denied and appellants’ complaint dismissed by the circuit court after a hearing on November 12. We were asked to stay the runoff election pending appeal filed on November 14.

Relief was sought because of the arrangement of the names of candidates in Pulaski County for the positions of delegate to the convention where more than two aspirants had qualified to have their names on the ballot for a position. Appellants alleged that a drawing for ballot positions in these races had been conducted without adequate notice to any of them, and without any notice at all to some of them. Tt was their contention that when they learned from a sample ballot how the names would appear upon the voting machines to be used in the election, it was too late for them to take any action other than the filing of their pleading in the circuit court.

The ballot arrangement complained of was alleged to be different from all other races for positions where them were more than two candidates. Appellants showed that in programming the voting machines and preparing ballots in other races in Pulaski County the names of all candidates for an office appeared on a horizontal line on the machine. On the other hand, part of the names of candidates for delegate appeared on one horizontal line, the remainder on a line immediately beneath that line. The names of candidates drawn for odd-numbered ballot spots appeared on the top line, and the names of those, drawn for even-numbered slots appeared on the lower line. The names of all of the appellants were assigned to the lower line, and none of them received enough votes to be eligible for the runoff election. There was testimony that every “top-line” candidate having the name of no “bottom-line” candidate appearing below his name was successful in attaining a runoff position. Some of the candidates whose names appeared on the bottom line also achieved the runoff.

Evidence was introduced tending to show, and the trial court found, that those candidates whose names appeared on the top line had an advantage greater than the normal advantage held by a candidate who drew a “top-line” ballot position. This condition existed only in the precincts where voting machines were used. Paper ballots were used for absentee voters in Pulaski County. Presumably, paper ballots were used in all precincts in Perry County.

The trial court held that public interest in the election was too great to warrant the granting’ of any relief to appellants and that any election held on a day other than that fixed by the General Assembly would be void, relying upon our decisions in Simpson v. Teftler, 176 Ark. 1093, 5 S.W. 2d 350, and McCoy v. Story, 243 Ark. 1, 417 S.W. 2d 954. While we agree with the trial judge on this point appellants have raised other questions which require a more extensive answer than mere affirmance of the judgment entered.

Insofar as the action was for a declaratory judgment, the necessary jurisdietiona requirements were not met. The applicable, statute requires that all those whose interests are affected be made parties to the action. Ark. Stat. Ann. § 34-2505 (Repl. 1962). Those candidates who apparently attained runoff election positions on the basis of the November 5 elections, voters in Perry County, and the Perry County Board of Election Commissioners all had rights and interests that would be materially affected by this action. The failure to make any of them parties was a defect requiring the denial of a declaratory judgment. Johnson v. Robbins, 223 Ark. 150, 264 S.W. 2d 640; Laman v. Martin, 235 Ark. 938, 362 S.W. 2d 711; Southern Farm Bureau Casualty Co. v. Robinson, 236 Ark. 268, 365 S.W. 2d 454; Block v. Allen, 241 Ark. 970, 411 S.W. 2d 21. Before declaratory relief is granted, it should appear that the relief sought would terminate the controversy. Ark. Stat. Ann. § 34-2505. Johnson v. Robbins, supra. It appears to us that the granting of the relief sought here and in the trial court would not terminate, but would actually complicate, the controversy.

Declarator)' and injunctive relief are remedies to be sparingly used by the courts to prevent the holding of a regularly scheduled election. Brown v. McDaniel, 244 Ark. 362, 427 S.W. 2d 193. Such remedies should never be resorted to in cases where there is available to those seeking it an adequate pre-election or post-election remedy. See Orr v. Carpenter, 222 Ark. 716, 262 S.W. 2d 280; Brown v. McDaniel, supra; Ellis v. Hall, 219 Ark. 869, 245 S.W. 2d 223. Under Ark. Stat. Ann. § 3-814 (Repl. 1956) appellants had a pre-election remedy. That section provides for the correction of any error in the printing of ballots by order of the circuit judge. Tf this remedy had proven inadequate, no doubt a petition for mandamus would have been available. "While statutory provisions having to do with election procedures [such as Ark. Stat. Ann. §§ 3-810—3-830 (Repl. 1956), §§ 3-1709—3-1718 (Supp. 1967), having to do with preparation of ballots and voting machines] are often considered as only directory after an election, compliance before election is mandatory. Orr v. Carpenter, supra: Henderson v. Gladish, 198 Ark. 217, 128 S.W. 2d 257; Ellis v. Hall, supra; Henley v. Goggin, 241 Ark. 348, 407 S.W. 2d 732; Rich v. Walker, 237 Ark. 586, 374 S.W. 2d 476.

Appellants contend, however, that lack of notice of drawing for ballot position prevented their taking preelection corrective action. An unfortunate situation contributed to an apparent failure of a substantial number of appellants to receive notice. The latest permissible date for drawing for ballot positions is 40 days before the election. Ark. Stat. Ann. § 3-824 (Repl. 1956). The time to qualify as a candidate for delegate to the convention was also not less than 40 days preceding the general election. Section 4, Act 42 of 1968. By coincide] ice the drawing was held on the last day for qualifying and employees of appellees obtained the names of those qualifying as candidates in District 22 by going to the office of the Secretary of State. These employees then commenced an effort to give the required notice by telephone. They testified that they left word at the homes or offices of those candidates who were not ■reached by this method. No doubt this system failed in several instances, as only two of the appellants were present. While it may well be that this notice requirement should be viewed as directory after the election, the appellants were not prevented from having corrective action prior to the election. Testimony. that printed facsimile ballots and sample machines were displayed as required by law [Ark. Stat. Ann. § 3-1711 (Supp. 1967)] is undisputed. There was also testimony that a facsimile ballot was published in newspapers published in the county. At least two of appellants who were not present at the drawing but who had seen the ballots and machines in the courthouse appeared before the appellees to protest on October 28. One of tliem had been advised of the situation by an employee .even before he saw a machine on display. Under these circumstances all candidates had an opportunity to ascertain ballot positions assigned and to apply to the courts for action preceding the election. Post-election remedies were still available to them by way of contest. On oral argument, appellants stated that they' were satisfied with the results of the election in Perry County and conceded that these results could not be affected by' this action. "VVe do not understand, nor could-appellants explain, how the results of the election in Perry County' could have been correlated with the results of new elections in Pulaski County so that an integrated result of the election in District 22 could be determined. Neither was any suggestion forthcoming about the time and manner in which the runoff election could have been conducted in Perry County.

Appellants contend that results of the election should be voided because the wrong of which they complain was clear and flagrant, and in nature, so diffusive in its influences, that it rendered the result uncertain so as to defeat a free election unde]' the test announced in Patton v. Coates, 41 Ark. 111, and applied in Baker v. Hedrick, 225 Ark. 778, 285 S.W. 2d 910. This rule is applicable in election contests, but this proceeding is not of that nature.

Appellants also urge that the trial court should have granted the remedies sought by them because Art. 2, Section. 13, of the Arkansas Constitution recites that, every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character, in effect denying him due process of law. Our answer to this contention is threefold. In the first place, appellants liad both pre-election and post-election remedies, as hereinabove pointed out. Secondly, the rights protected are personal and property rights, not political rights as are asserted by appellants here. See Molloy v. Collins, 66 R.I. 251, 18 A. 2d 639. The distinction in these rights is pointed out in Walls v. Brundidge, 109 Ark. 250, 160 S.W. 230, Ann. Cas. 1915C 980.

Thirdly, it is the function of the legislature, not the courts, to create rights of action, or provide relief where means of redress have not been designated. Lucas v. Bishop, 224 Ark. 353, 273 S.W. 2d 397.

if we should have declared the election void, no means of calling an election existing, the selection of delegates representing District 22 might well have been left to the delegates from other districts. Section 3, Act 42 of 1968. This would have been a highly undesirable result and would have been a greater deprivation of the rights of voters in the district than could have resulted from this unfortunate situation.

The judgment and our order per curiam are affirmed.

Holt, J., not participating.

      This was subsequent to the time fixed by law for the furnishing of ballots for absentee voting [Ark. Stat. Ann. § 3-1109 (Repl. 1956)] and for placing of voting machines with ballot labels in the precincts for demonstration [Ark. Stat. Ann. 5 3-1711 (Supp. 1967)].

      See Ashby v. Patrick, 181 Ark. 859, 28 S.W. 2d 55, where the ’ order of a trial court voiding an election because of the arrangement of the ballot was reversed.

      Contests of this sort might be subject to the jurisdiction of the constitutional convention only. Section 8 of Act 42 of 1968 provides that the convention shall be the sole judge of the qualification and election of its own membership. See Pendergrass v. Sheid, 241 Ark. 908, 411 S.W. 2d 5.