text:
    Shipp v. State
    5158
    406 S. W. 2d 361
    Opinion delivered October 3, 1966

      Jack L. Lessenberry, for appellant.

      Bruce Bennett, Attorney General; H. Clay Robinson, Asst. Atty. Gen., for appellee.
   Ed. F. McFaddin, Justice.

Appellant, Johnny Paul Shipp, was charged, tried and convicted of the offense of robbery [Ark. Stat. Ann. § 41-3601 (Repl. 1964)], and brings this appeal. His motion for new trial contains 25 assignments, which we will group and consider in suitable topic headings.

I. Motion To Quash The Jury Panel. This was a two-point motion. The first point was that the jurors were not qualified because they had not complied with the recent Amendment No. 51. That point was completely answered in the cases of Coger v. Fayetteville, 239 Ark. 688, 393 S. W. 2d 622; and Harris v. State, 239 Ark. 771, 394 S. W. 2d 135; wherein we held that the Act No. 126 of 1965 was valid and was passed to eliminate just such a motion as was here made. The second point of the motion to quash was that Negroes had been excluded from the petit jury panel; and that even though the appellant was a white man, still he was entitled to have Negroes on the jury panel. We see no need to discuss the merits, if any, of this point, because the record here fails to show that the appellant exhausted his peremptory challenges. In such a situation we have held that the appellant cannot complain of the composition of the jury. One such recent case so holding was Trotter ancl Harris v. State, 237 Ark. 820, 377 S. W. 2d 14, cert. denied 379 U. S. 890, in which we said:

“Throughout the years, no rule of procedure has been more consistently adhered to than the rule that a defendant cannot complain of the composition of the jury if he does not exhaust his challenges. In Benton v. State, 30 Ark. 32, decided in 1875, Chief Justice English pointed out that this rule had stood as a precept of criminal practice in this state, for a period of over 22 years. In a long line of eases, we have consistently upheld the rule to the present time. A cursory examination of our cases reveals over thirty-five criminal cases in which this rule has been cited and adhered to . . .”

II. Sufficiency Of The Evidence. The State offered evidence which, showed that the appellant had persuaded Lee Edwin Goolsby to rob the Joiner branch of the First National Bant of Osceola, so that the appellant and Goolsby could use the money in a joint venture ;■ that on Monday morning, February 8, 1965, Goolsby went alone to the bank and at the point of a loaded pistol took in excess of $9,000.00; that Goolsby concealed the money at his home and it was subsequently recovered. Goolsby admitted all of this and said that the appellant had suggested the planned robbery. If the evidence of Goolsby, the accomplice, was corroborated to the extent required by law, then the evidence was sufficient to support the appellant’s conviction; and that brings us to the issue of corroboration of the accomplice Goolsby.

III. Corroboration. Our statute on corroboration is Ark. Stat. Ann. § 43-2116 (Repl. 1964), which reads:

“A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. ...”

We have many cases involving the sufficiency of the evidence to corroborate the accomplice. Some of these are: Knowles v. State, 113 Ark. 257, 168 S. W. 148, Ann. Cas. 1916C 568; Casteel v. State, 151 Ark. 69, 235 S. W. 368; Powell v. State, 177 Ark. 938, 9 S. W. 2d 583; and Underwood v. State, 205 Ark. 864, 171 S. W. 2d 304. In Underwood v. State, supra, we stated the rule:

‘ ‘ The corroborating testimony required by this statute must be of a substantial character which, of itself and independently of the statement of the accomplice, tends in some degree to connect the defendant with the commission of the crime, although such evidence need not in itself be sufficient to support a conviction .... Evidence which merely raises a suspicion that accused may be guilty, or which is as consistent with defendant’s innocence as guilt is not sufficient .... The question of the sufficiency of the corroborating evidence justifying submission of the question of defendant’s guilt to the jury must, of necessity, be governed by the facts and circumstances of each particular case, having regard for the nature of the crime, the character of the accomplice’s testimony and the general requirements with respect to corroboration.”

With this rule thus clearly stated, we come to the evidence in the case at bar. The only evidence to corroborate the accomplice Goolsby was that relating to the rain suit and gloves which Goolsby wore at the time of the robbery. Goolsby testified that appellant purchased a rain suit and gave it to Goolsby with instructions that he wear it in making the robbery; and Goolsby testified that after the robbery he threw the rain suit in a ditch along side the highway. The rain suit was found in the ditch and introduced into evidence. Don Rogers testified that he worked at Graber’s Department Store and that on Monday morning, February 8, Johnny Paul Shipp came into the store about nine o’clock and purchased a two-piece rain suit; that Shipp tried on the rain suit; and that Shipp wanted to buy a rain suit with a hood. The witness said the rain suit he sold Johnny Shipp was like the one introduced in evidence; but he could not say that it was the identical one sold to Shipp.

The other and far more substantial corroborative evidence was given by Sheriff William Berryman. He testified that Shipp was arrested and placed in jail; and the Sheriff sent for the witness Rogers, who had sold Shipp a rain suit, and the witness Prince, who had sold Shipp some gloves; that he warned the witnesses that they were to say nothing to the appellant; that the next day the appellant sent for the Sheriff, who went to the jail to see the appellant, and here is Sheriff Berryman’s testimony:

“I asked if he wanted to see me. He told me, those people over there looking at him so on, he did "buy that rain suit and gloves, bnt he bought it for the business. I didn’t cross-examine or inquire into it any way, just left it at that.”

And again the Sheriff testified as to appellant:

“Q. And he had a note pad in his hand and told you he was the one who bought this rain gear and was the one who bought these gloves?
“A. Yes, sir.”

And on cross-examination Sheriff Berryman testified:

“Q. You are not saying or suggesting to this jury Johnny Shipp said he had bought this particular rain suit?
"A. He said he bought the rain suit and gloves, yes.”

Thus the evidence shows that the appellant admitted to Sheriff Berryman that the particular ram suit in evidence was the one he bought-, but he claimed in his conversation with the Sheriff that he bought the rain suit for use in his business. "When the appellant admitted the purchase of the identical rain suit used in the robbery, certainly the appellant admitted enough to corroborate the accomplice. The appellant seeks to leave the impression that Goolsby stole the rain suit from him; but that was a fact question to go to the jury. "Without the testimony of Sheriff Berryman the corroboration in this case would be like that in Scott v. State, 63 Ark. 310, 38 S. W. 339; or Cool v. State, 75 Ark. 540, 87 S. W. 1176. But with the testimony of Sheriff Berryman, the evidence of corroboration went to the particular and identical rain suit introduced in evidence, and there was evidence from which the jury could have found — -and evidently did find — that appellant bought the particular rain suit which Goolsby wore at the time of the robbery; and this certainly corroborates Goolsby’s testimony to the effect that the appellant suggested and planned the robbery.

IY. Argument Of The Prosecuting Attorney. The appellant claims that the judgment should be reversed because of the improper argument of the Prosecuting Attorney. In the course of his closing argument the Prosecuting Attorney, in commenting on the matter of corroboration, said:

“. . . and every fact shows everything Lee Goolsby said about going to Kennett, about drinking coffee, about getting the rain coat, about the stocking; forty-seven different instances I checked, every word he said was corroborated by witnesses the State of Arkansas put on that witness stand.”

There was no objection made to that statement at the time it was made; but after the jury had retired the appellant made an objection. The point is now urged that the Prosecuting Attorney was telling the jury that there were forty-seven different instances of corroboration which he knew about. The appellant insists that this is like the case of the Prosecuting Attorney making a remark about evidence which is not in the record. For instance, in Hughes v. State, 154 Ark. 621, 243 S. W. 2d 70, the Prosecuting Attorney said: “I have examined the testimony and know so much about it and know things that never get to anybody else.” We held that such a remark by the Prosecuting Attorney in his argument to the jury was highly improper and reversed the judgment, saying: “Coming from a sworn official the remark was calculated to make a deep impression upon the minds of the jurymen.” Some other cases on improper argument are Todd v. State, 202 Ark. 287, 150 S. W. 2d 46; and Simmons & Flippo v. State, 233 Ark. 616, 346 S. W. 2d 197.

In the case at bar, if the remark by the Prosecuting Attorney was intended to mean that the Prosecuting Attorney knew of forty-seven different instances of corroboration which might not have been shown in the evidence, then of course the remark was improper and most certainly the Court would have ordered it stricken, if objection had been made at the proper time. But if the remark of the Prosecuting Attorney merely meant that in the evidence as developed before the jury there were forty-seven different items of Goolsby’s testimony which various witnesses had corroborated in the evidence, then of course the remark was not improper. If objection had been made at the proper time, clarification could have been ordered; but from the record as we have examined it and copied it, it appears that the appellant waited until after the jury had retired before he even made any objection on the point; and we hold that such objection came too late and the point cannot now be urged.

IY. Other Points. Other assignments in the motion for new trial are urged for reversal of the judgment. We have examined all of them and find none to possess merit.

Affirmed.

       Goolsby testified that the appellant provided the rain suit and gloves and a silk stocking. The rain suit was introduced as an exhibit in the case and is before us on appeal.

      Two pages after the foregoing quoted statement of the Prosecuting Attorney, the transcript shows that the Prosecuting Attorney had concluded his argument and the Court said: “Gentlemen, the reporter will prepare a form of verdict for you to use in this case. If you find the defendant guilty, your foreman, whom you will select, will sign the first form after inserting in the blank space provided the amount of punishment you agree upon not less than three nor more than twenty-one years. If you find him not guilty, your foreman will sign the second form. You may now retire to the jury room to consider your verdict.
      “(IN ABSENCE OF THE JURY) :
      “MR. LESSENBERRY: I want to object to the remark of the prosecuting attorney stating he had personally checked several instances of corroborating Lee Goolsby’s statement: that such a statement from the prosecuting attorney becomes so personal and very persuasive with the jury, is highly prejudicial; it cannot be overcome by an admonition of the Court.
      “MR. HARRISON: These are points I checked in the case as the evidence developed, your honor. He had the same opportunity to check them as I did.
      “COURT: Overruled. Exception noted.”


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Reno and Stark v. State
    5211
    406 S. W. 2d 372
    Opinion delivered October 3, 1966

      Leon Reed & G. E. Blackburn, for appellant.

      Bruce Bennett, Attorney General; Lance Hanshcvw, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In November, 1962, the appellants, Reno and Stark, and their wives formed a corporation for the purpose of engaging in the business of building houses. The company never prospered and finally filed a petition in bankruptcy on October 21,1964. Within the next few weeks a number of materialmen’s liens were filed against a house that the company had built for Mr. and Mrs. S. G. Banks. In September of 1965 the prosecuting attorney filed an information against Reno and Stark charging them with having failed to discharge the liens, in violation of Ark. Stat. Ann. § 51-640 (Supp. 1965). Upon trial the accused were found guilty and sentenced to a fine and imprisonment.

Reno and Stark attempted to prove, as their defense to the charge, that they had no intent to defraud the Bankses. That intent is now an essential element of the offense. An earlier statute, which lacked that requirement, was declared to be unconstitutional. Peairs v. State, 227 Ark. 230, 297 S. W. 2d 775 (1957).

In the course of the defendants’ testimony they offered to show that the contract price for the Banks house was too low, so that the builders sustained a financial loss in the transaction. The court excluded this evidence, as follows:

The Court: I don’t believe that would be material here, whether or not he made any profit or whether he lost money. The charge here is ... failure to satisfy and discharge these liens after he had been paid the contract price.
Mr. Blackburn: Yes, sir, with the intent to defraud. I thought it would show the lack of intent to defraud.
The Court: No, sir, I don’t think so.
Mr. Blackburn: Note my exceptions.

This was error. The court’s ruling would have been right under the earlier statute, had it been constitutional. But the intent to defraud is now a necessary element in the offense. If the jury had believed the defendants’ proffered proof that their insolvency and consequent failure to satisfy the liens resulted from inexperience, which led them to make improvident contracts, the jury might have found that there was in fact no intent to defraud. Hence the evidence was relevant and should have been admitted.

One other point, argued in the briefs, may arise upon a new trial. In the present statute the first sentence defines the offense, in substance, as the failure to apply payments under the contract to the discharge of the liens, with the intent thereby to defraud the owner. The second sentence then attempts, in the following language, to declare that proof of certain facts shall be prima facie evidence of the intent to defraud:

In any prosecution under this act . . . when it shall be shown in evidence that any lien for labor or materials existed in favor of any mechanic, laborer or materialmen and that such lien has been filed within the time provided by law in the office of the circuit clerk . . . and that such contractor . . . has received payment without discharging the said lien to the extent of the funds received by him, the fact of acceptance of such payment without having discharged the same lien within ten days after receipt of such payment or the receipt of notice of the existence of such lien, whichever event shall occur last, shall be prima facie evidence of intent to defraud on the part of the person so receiving payment. Ark. Stat. Ann. § 51-640 (Supp. 1965).

At the first trial the court read the statute to the jury. Counsel now contend that the statute, or at least the sentence just quoted, is unconstitutional for the same reason that the earlier statute was struck down in the Pecdrs case, supra.

We need not decide the issue of constitutionality, for the appellants’ contention can be sustained upon a narrower ground. We have frequently held, as in Blankenship v. State, 55 Ark. 244, 18 S. W. 54 (1891), that the court commits reversible error in telling the jury that proof of a certain fact is sufficient to support a conviction. More recently, in Thiel v. Dove, 229 Ark. 601, 317 S. W. 2d 121 (1958), we pointed out that “it is clearly improper for the court to tell the jury that a specific fact in evidence is sufficient to support an inference of guilt, negligence, or the like. [Citing cases.] It is for the jury to say whether the particular inference should he drawn from all the proof in the case, and consequently the court comments on the weight of the evidence when it declares that a certain inference may he drawn from a specific fact.” (Original italics.)

Under this principle the second sentence in the act now before us should not in any case be read to the jury, for it involves a comment on the evidence. Inasmuch as the prohibition against comments on the evidence is set forth in our constitution, Article 7, § 23, the legislature cannot by statute empower the trial judge to make such a comment.

We find no other error that is apt to recur upon a new trial.

Reversed.


author: George Rose Smith, Justice. Paul Ward, Justice,

text:
    Harris v. Schicker Const. Co.
    5-3928
    407 S. W. 2d 114
    Opinion delivered October 3, 1966
    [Rehearing denied November 14, 1966.]

      Patten & Brown and Robert 0. Levi, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   George Rose Smith, Justice.

This is an action by the appellant, a subcontractor, against the prime contractor and its bondsman to recover a balance due the plaintiff upon a school construction job at Arkadelphia. The case was submitted to the jury upon general instructions and two specific interrogatories. Owing to some slightly obscure allegations in the pleadings the parties are not in agreement about the judgment that should be entered upon the jury’s answers to the interrogatories. The trial court awarded the plaintiff a judgment for $1,500. The plaintiff-appellant contends that the amount should be raised to $2,850, while the defendant-appellee contends on cross appeal that the amount should be reduced to $345.91.

Harris’s complaint alleges that he and the Schiclcer company entered into a subcontract by which Harris agreed to erect the iron framework for the building at a contract price of $6,700, upon which there is an unpaid balance of $1,350. In addition, the complaint alleges that Harris did extra work for which he should receive $6,-670.94, making a total claim of $8,020.94. The complaint then goes on with this paragraph, which led to the present dispute:

The defendant Schicker Construction Company, Inc., has alleged that certain offsets of value of $2,-504.09 are due against the charges and contract sum aforesaid, and the plaintiff, although denying that in fact any offset or counter-charges are due to the defendant Schicker Construction Company, Inc., but for the purpose of this lawsuit and in order to give defendant Schicker Construction Company, Inc., the benefit of questionable charges or claims, reduces his claim, after allowance of $2,504.09, to $5,516.85, and further claims the 12 per cent penalty and reasonable attorney’s fee against the defendant, United States Fidelity & Guaranty Company.

The defendant filed an answer and a counterclaim, which contained these two paragraphs:

They admit that Schicker Construction Company, Inc., has a claim against the plaintiff in the sum of $2,504.09, but they deny that the said charges are questionable, deny that plaintiff is entitled to recover any sum whatsoever and deny that plaintiff is entitled to any penalty or attorney’s fee.
Bay Harris failed and refused to perform the said written contract in its entirety and failed to perform other portions of the contract in accordance with its terms, thereby breaching the said contract and causing damage to Schicker Construction Company, Inc., in the amount of $2,504.09, as set out in the complaint of the plaintiff. Plaintiff has admitted the said claim in the amount of $2,504.09, but contends that the said amount should be used to reduce a claim of the plaintiff. Since the plaintiff does not have any valid claim against Schicker Construction Company, Inc., to offset any part of the said sum of $2,504.09, Schicker Construction Company, Inc., is entitled to recover the said sum of $2,504.09 from the plaintiff.

Harris filed a reply in which he denied all of the defendants’ material allegations “and specifically denies that any admission has been made in the pleadings of the plaintiff or by the plaintiff that any sum is due Schicker Construction 'Company by failure of Bay Harris to perform any and all agreements that may have existed between Schicker Construction Company, Inc., and Bay Harris. ’ ’

At the trial many witnesses were called. Both Harris’s claim to compensation for extra work and Schick-er’s claim to damages for Harris’s errors and omissions were disputed issues of fact. Both issues were submitted to the jury. At Schicker’s request the court instructed the jury that Schicker had the burden of proving its right to recover on the counterclaim and that if Harris had breached the written contract either by a failure to perform or by improper performance the jury should determine the amount of Sollicker’s damages.

By agreement of counsel the case went to the jury on two interrogatories which we quote, with the answers:

What amount, if any, do you find that the plaintiff is entitled to recover for extra work not included in the written contract? $1,500.00.
What amount, if any, do you find that Schicker Construction Company has been damaged by reason of the breach of contract, if any, by Harris Erection Service? None.

As we have said, the court awarded Harris a judgment for $1,500 — the amount fixed by the jury under the first interrogatory. On the record now before us the contract balance of $1,350, owed by Schicker to Harris, is an undisputed item. That is, this amount is admittedly unpaid, and even though there was conflicting testimony about whether Harris had failed to perform his contract, that issue was not submitted to the jury under either of the two interrogatories. If it should be argued that the question of Harris’s breach of contract was submitted to the jury by the instruction that we have mentioned, the answer is that that instruction related only to the counterclaim, and the jury found in Harris’s favor upon that branch of the case.

Harris contends that since the contract balance of $1,350 is admittedly unpaid, and since by the language of the first interrogatory the verdict for $1,500 was for “extra work not included in the written contract,” he is entitled to recover $2,850. Schicker does not dispute this contention, but it insists that there must be deducted from the $2,850 the item of $2,504.09 mentioned in the pleadings, leaving a net judgment of only $345.91.

We think the plaintiff’s position to be correct. We do not construe Harris’s pleadings as containing an unqualified admission that he owed Schicker $2,504.09 no matter what his recovery proved to be under his own complaint. His attorneys evidently knew that they could recover the statutory penalty and attorney’s fees from the insurance company only if they recovered the full amount sued for. Hence, as a precautionary measure, they conceded Schicker’s claim solely as an offset against the upper $2,504.09 of Harris’s own claim. If there is any ambiguity in the complaint the matter is set clearly at rest by the reply, with its specific denial of any admission by Harris of liability to Schicker for nonperformance of the contract.

The jury was not concerned with the state of the pleadings. If the jury had found — and there was nothing in the instructions to preclude such a finding — that Harris was entitled to recover his entire claim of $6,-670.94 for extra work and that Schicker was due nothing upon the counterclaim, Harris would have been entitled to a judgment for only $5,516.85 instead of $8,-020.94. This is because with respect to that very situation Harris had waived the upper $2,504.09 of his asserted cause of action. But when it turned out that Harris’s total recovery was fixed at only $2,850 the waiver was of no effect, for Harris’s pleadings cannot fairly or reasonably be construed to mean that he conceded the merits of the counterclaim with respect to such a verdict.

Reversed on direct appeal; affirmed on cross appeal.

Harris, C. J., and Ward, J., dissent.

Paul Ward, Justice,

dissenting. There are several respects in which I am unable to agree with the majority opinion.

One. On page 3 of the opinion it is stated: “Both Harris’s claim to compensation for extra work and Sollicker’s claim to damages for Harris’s errors and omissions were disputed issues (emphasis mine) of fact. Both issues were submitted to the jury.” The rest of the opinion is apparently based on the above quoted statement which is true insofar as it goes- — -which statement is, however, only part of the truth. It is also true that it was a disputed issue whether Schicker owed Harris the balance of $1,350 (or any amount) on the written (or original) contract. This can be verified by reading the testimony of William O. Beynolds, Frank Bowers, G. W. Lashlee, W. T. McNutt, and E. B. Schick-er, Jr. — all as abstracted by appellant himself. Not only so, but Instruction No. 3 (Tr. 403) presents that same disputed issue to the jury.

Two. In appellant’s Motion for a new trial (set out at pages 15 to 19 of his brief) there appears this paragraph:

“4. That after the jury returned answers to the interrogatories, counsel for both parties appeared before the trial judge on or about July 9, 1965, and presented the understanding of each party as to the agreement under which the cause was submitted upon interrogatories.”

Following the above appellant sets out his version of the “agreement” — it being admitted no written record was made. The trial court heard the evidence presented on the Motion and denied the same. In my opinion this settles the issue. In Sellers v. Harvey, 220 Ark. 541, we said :

“Another settled rule is that the motion is addressed to the sound discretion of the court and this court will not reverse for failure to grant it unless an abuse of such discretion is shown.”

No such abuse is pointed out by the majority.

Therefore, it seems to me that the majority has usurped the function of the trial court which found that there was no misunderstanding between the parties when the case was presented to the jury.

The case was fully developed, the jury was correctly instructed, the Motion for a new trial was properly overruled, therefore I think the jury verdict should be accepted and the judgment affirmed.

Harris, C. J., joins in dissent.


author: Paul Ward, Justice.

text:
    Nelson v. State
    5202
    406 S. W. 2d 383
    Opinion delivered October 3, 1966

      E. V. Trimble, for appellant.

      Bruce Bennett, Attorney General; Lance Hanshaw, Asst. Atty. Gen., for appellee.
   Paul Ward, Justice.

This is an appeal from a finding by the trial judge that the confession [introduced at a former trial] of appellant, James S. Nelson, was voluntary.

On November 15, 1964 appellant was convicted of robbery and sentenced to serve twelve years. The conviction was appealed to this Court and on September 13, 1965 we remanded the cause to determine the voluntariness of appellant’s confession of guilt- — in line with the holding of the United States Supreme Court in Jackson v. Denno, 378 U. S. 368, 12 L. Ed. 2d 908. For further details see Nelson v. State, 239 Ark. 678, 393 S. W. 2d 614, decided September 13, 1965.

Upon remand to the trial court for the purpose above stated a hearing was held before the trial judge on November 17, 1965. At the conclusion of the hearing [three police officers testified] the trial judge held appellant’s confession was voluntary.

From the above holding appellant now prosecutes the present appeal and, for a reversal, urges two points.

One. It is contended that the first confession of appellant does not “meet the legal requirements as to the voluntariness as applied in the Escobedo case.” The essence of this contention appears to be that it was encumbent on the State to show not only that the confession was voluntary but also to show appellant was not deprived of counsel.

We find no merit in this point. The uncontradicted evidence shows appellant made two written confessions of his own volition; that appellant was not subjected to any kind of duress or pressure; that he was told he didn’t have to make a statement if he didn’t want to do so, and; that he could have an attorney if he desired one. Under that state of the record the trial judge was correct in holding the confession to be voluntary. See: Mullins v. State, 240 Ark. 608, 401 S. W. 2d 9, decided April 4, 1966.

Two. Finally appellant says it was reversible error for the trial judge to hold two of the written confessions to be voluntary and at the same time hold a third one to be involuntary. We do not agree. It appears that the “third” confession may have been made at a time when the investigation had reached the accusatory stage, but the record reveals also that this confession was not introduced in evidence on the original trial.

Affirmed.


author: Guy Amsler, Justice.

text:
    Boone Co. Board of Ed. v. Harrison School Dist. No. 1
    5-3937
    406 S. W. 2d 365
    Opinion delivered October 3, 1966

      WilUams, & Gardner, for appellant.

      Fitton & Meadows, for appellee.
   Guy Amsler, Justice.

This case involves a dispute over some 600 to 700 acres of land that each district involved desires to have within its boundaries. The acreage had a taxable value of approximately $52,000.00 and 8 pupils were residing thereon in 1965.

In January of 1965 the directors of Bergman School District (called Bergman herein) petitioned [Ark. Stat. Ann. § 80-412 (Repl. I960)] the Boone County Board of Education (hereinafter called County Board) for á boundary line change.

Directors of the Harrison School District (called Harrison) refused to agree and the County Board acting pursuant to authority given it under Ark. Stat. Ann. § 80-412, supra, fixed the boundary line so that the disputed area was transferred to Bergman.

Harrison appealed to the Circuit Court of Boone County and that court reversed the County Board— basing its conclusion on our decision in School District No. 10 v. County Board of Education, 185 Ark. 328, 47 S. W. 2d 606. Bergman and County Board have appealed.

The only point relied on by appellants for reversal is:

“ That the lower court erred in holding that the area of land involved in the Board of Education’s modification of boundary lines was substantial.”

The learned trial judge determined that the change in boundary line was of a substantial nature and that therefore the action of County Board was void. In School District No. 10 v. County Board of Education, supra, we said:

“No notice was given of the proposed change of the boundaries amounting to annexation of territory, in accordance with said § 44, [Ark. Stat. Ann. § 80-404 (Repl. I960)] nor any petitions presented or election held for that purpose, and the county board was without jurisdiction or authority to make the order changing the boundary lines, in effect taking a very substantial part of the territory of one district and annexing it to the other under the guise and procedure as for a change of boundary lines only.”

Since the General Assembly has not, subsequent to the above decision, provided the courts a yard stick for determining what constitutes boundary changes of a “substantial nature” we are not disposed to override the trial court’s conclusion.

Affirmed.


author: Hugh M. Bland, Justice.

text:
    Intl. Hodcarriers Local 1282 v. Cone-Huddleston
    5-3929
    406 S. W. 2d 366
    Opinion delivered October 3, 1966

      H. Clay Robinson, for appellant.

      Lightle & Tedder, for appellee.
   Hugh M. Bland, Justice.

The question to be determined by this appeal is whether the White County ■Chancery Court had jurisdiction to enter an injunction .against appellant, or was original and exclusive jurisdiction in the National Labor Relations Board.

Appellee was a general contractor and had contracted to construct the White County Hospital at Searcy, Arkansas. The building of the hospital was to be financed by the sale of bonds in the amount of $600,-000.00 by White County and matching Federal funds. After construction was commenced and on or about October 22, 1965 appellants demanded that appellee execute a contract negotiated between the Associated General Contractors, Arkansas Chapter, and appellants and pay the wage scale set out therein. The appellee refused to do this and on or about October 29, 1965 appellants established pickets on the project and construction ceased. The next day appellee obtained a temporary restraining order on the ground that the picketing was in violation of Arkansas’ “right-to-work law” [Ark. Stat. Ann. § 81-201-203 (Repl. 1960) and Amendment 34 of the Arkansas’ Constitution], Appellants filed a motion to dissolve the temporary order and the cause was heard on November 7, 1965. Under the evidence adduced at the hearing the chancellor found that the court had jurisdiction to grant an injunction to prevent a violation of the Arkansas “right-to-work law” and against picketing to obtain an unlawful objective. The court further found that the purpose of the picketing was to coerce appellee to sign a union contract and to coerce its employees to join appellant’s union. The temporary order was made permanent, however, the chancellor dissolved the restraining order allowing picketing as a means of informing the public that appellee was paying substandard wages. From this holding appellant has appealed.

It was stipulated that appellee had an inflow and/or outflow of materials or services in interstate commerce of $50,000.00, or more than sufficient to put it under the jurisdiction of the National Labor Relations Act. Guss v. Utah Labor Relations Board, 353 U. S. 1 (1957). Other testimony in the record is immaterial since the only issue is jurisdiction.

Appellants contend that the conduct in dispute and the parties are subject to the exclusive and primary jurisdiction of the National Labor Relations Board and that the White County Chancery Court was thus without jurisdiction, relying on such, authorities as Mitcham v. Ark-La Construction Co., 239 Ark. 1162, 397 S. W. 2d 789, decided by this court on December 20, 1965; San Diego Bldg. Trades Council v. Garmon, 359 U. S. 236 (1959); Local No. 438, Construction & General Laborers Union, AFL-CIO v. Curry, 371 U. S. 542 (1963).

In the Mitcham v. Ark-La Construction Co. case, supra, which was decided subsequent to the decree of the White County Chancery Court, we held that where the activity was arguably within the compass of § 7 or § 8 of the Act, the state courts were -without jurisdiction to act. Citing San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959) and Radio & Television Broadcast Technicians Local Union No. 1264 v. Broadcast Service of Mobile, Inc., 380 U. S. 255 (1965). In the case of Local No. 438 v. Curry, supra, the employer brought an action in a Georgia State Court seeking an injunction against the union, alleging that the union was picketing for the purpose of coercing the employer into hiring’ only union labor in violation of the Georgia “right-to-work” statute. The union argued that the National Labor Relations Board had exclusive jurisdiction. On appeal the Georgia Supreme Court affirmed. On appeal, the U. S. Supreme Court reversed, holding:

“ * # * The allegations of the complaint, as well as the findings of the Georgia Supreme Court, made out at least an arguable violation of § 8 (b) of the National Labor Relations Act, 29 U.S.C. § 158 (b). Consequently, the state court had no jurisdiction to issue an injunction or to adjudicate this controversy, which lay -within the exclusive powers of the National Labor Relations Board. * * * Nor is the jurisdiction of the Georgia courts sustainable, as respondents urge, by reason of the Georgia right-to-work law and by § 14 (b) of the National Labor Relations Act, 29 U.S.C. § 164 (b). This precise contention has been previously considered and rejected by this Court. Local Union 429 v. Farnsworth Chambers Co. 353 U. S. 969, reversing 201 Tenn. 329, 299 S. W. 2d 8. The Georgia Supreme Court clearly exceeded its power in authorizing the issuance of a temporary injunction.” 371 U. S. at pp 546, 547, 548.

In San Diego Building Trades Council v. Garmon, supra,, the U. S. Supreme Court held :

“The case before us concerns one of, the most teasing and frequently litigated areas of industrial relations, the multitude of activities regulated by W 7 and 8 of the National Labor Relations Act. 61 Stat. 140, 29 U.S.C. §§ 157, 158. These broad provisions govern both protected ‘concerted activities’ and unfair labor practices. They regulate the vital, economic instruments of the strike and the picket line, and impinge on the clash of the still unsettled claims between employers and labor unions.” 359 U. S. at p. 241.
“ * * * When an activity is arguably subject to § 7 or § 8 of the Act, the States as well as the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted. * * * The governing consideration is that to allow the States to control activities that are potentially subject to federal regulation involves too great a danger of conflict with national labor policy.” 359 U. S. at pp 245-46.

We cannot speculate what action the National Labor Relations Board will take in this dispute, but the Board must first try or reject the case before a state court may act. We, therefore hold that the White County Chancery Court was without jurisdiction to enter the injunction and the decree is reversed and the cause dismissed.

Reversed and dismissed.


author: Carleton Harris, Chief Justice.

text:
    Booth et ux v. Mason et ux, et al
    5-3947
    406 S. W. 2d 715
    Opinion delivered October 10, 1966

      Harold G. Rains Jr., for appellants.
    , N. D. EHoards and Gean, Gem & Gean, for appellees.
   Carleton Harris, Chief Justice.

Roscoe R. Booth ■and Nellie Booth, his wife, came to Arkansas in July, 1960, from the state of Oregon for the purpose of locating in this state. The Booths desired to purchase a farm, and' contacted Roy Taylor, a real estate dealer, living at Alma, Arkansas. Mr. Booth requested Taylor to find a place, and Taylor contacted Curtis Mason and wife, and a Mr. Jennings (who owned a farm adjoining that of Mason), and these people agreed to sell their farms. Taylor showed Booth over the properties, and the latter made a $500.00 down payment, the total purchase price to he $30,000.00, of which the Masons would receive $25,000.00, and Jennings would receive the sum of $5,000.00. On August 16, 1960, Booth gave his check in the amount of $29,500.00 to Taylor in full payment, and received deeds to the property. On July 22, 1965, the Booths instituted suit against the Masons, Taylor, and the Trustees of the Chastain Church of Christ, the complaint containing various allegations.

It was first alleged that the Booths purchased the Mason property with the understanding that it contained 136 acres, but they actually received by deed only 125 acres, and it was asserted that they had been damaged, by reason of the fraudulent and false representations, in the sum of $183.80 per acre, or a total of $2,-021.80. Next, it was asserted that the Booths had paid an additional $1,425.68 because part of the property was included in the Soil Bank, and they were told that they could not obtain immediate possession unless this payment were made, since Mason had not received the Soil Bank check; appellants contended that, as owners, they were to receive the check, and should not have been required to make the additional payment. It was further asserted that, after accepting the down payment on the land, the Masons had executed a deed to a third person for 7/10 of one acre, which land was supposed to go to the Booths under the agreement. Count Four alleged that taxes in the amount of $120.05 for the year 1960 had not been paid; that appellants were compelled to pay this amount and should recover it from the Masons. Finally, it was contended that the sale included certain land, which was being claimed by the Chastain Church of Christ, and it was prayed that title be confirmed in appellants, as against the trustees of the church; further, that they were entitled to receive the fair rental value of this property from the Masons; in the alternative, if it were held that the property belonged to the church, appellants asked that they be given judgment against the Masons in the amount of $229.75, the asserted value of this particular part of the land.

The Masons answered with a denial of the allegations, and further contended that every item in the complaint was barred by the statute of limitations and laches. Taylor demurred to the complaint, as not stating a cause of action against him, and the trustees of the church answered, contending that they were the owners of a particular I14 acres, wherein the church was located; that the Booths held no interest, and they asked that title be quieted in them.

The court sustained the Taylor demurrer, and, since there has been no appeal from that order, Taylor is no longer involved in this litigation. After hearing only the evidence offered by appellants, the court dismissed all counts of the complaint as to the Masons. Evidence was then offered by the Chastain Church Trustees, and the court dismissed appellants’ complaint, and on the cross-complaint, quieted title in the 1% acres at issue in them. From the decree so entered, appellants bring this appeal.

We think the court was right in dismissing the first count. For one thing, though the complaint alleges that a written contract was entered into, it does not appear that there was such a writing. Mr. Booth, when asked if he had signed a contract, or “Offer and Acceptance,” with Taylor, replied, “He made out a slip. I never did get a copy of the slip.” This is the only testimony relating to any sort of writing. It is, of course, evident that no agreement was executed by the parties, and there is never any explanation of what the “slip” contained; for that matter, Taylor might simply have been making a memorandum for his own benefit. At any rate, there is no written contract in evidence, and if the agreement was oral, the cause of action was barred after three years. Ark. Stat. Ann. § 37-206 (Repl. 1962). However, there are additional reasons why appellants’ contention on this point is without merit. Admittedly, Mason made no representations to Booth at all about the number of acres contained in the farm; rather, Booth stated that this representation was made by Taylor, and he asserts that Taylor was Mason’s agent. The testimony on this point is rather indecisive. Here again, the evidence shows that Booth contacted Taylor, and asked the latter to locate a suitable farm. The record reflects the following testimony relative to the matter of agency: “Q. Now Mr. Taylor, you did find him a place and he eventually bought the Jennings and the Curtis Mason place? A. That is right. Q. Were you paid a commission for the sale of these places? A. I was. Q. By whom? A. By Mr. Mason and Mr. Jennings. Q. Did you act for him during this sale in preparing all the papers and carrying out the transaction? A. I did.”

It is thus not at all clear whom Taylor represented (perhaps both). However, the matter of agency is really immaterial since it does not appear that appellants purchased this place on the basis of acreage, but simply bought it as a unit — in gross. When asked if he purchased the property by the acre, Mr. Booth unequivocally declared, “I did not. I bought it as a place.” The deed itself makes no mention of the number of acres, and the Booths accepted the deed. For that matter, there is no competent evidence in the record that the Mason farm did not contain 136 acres. Mr. Booth testified, “That is what I am told.” He then stated that he had measured the land himself, but Mr. Booth is not a qualified surveyor, and his answers to the questions relating to the measurements revealed that he worked from an erroneous premise.

Actually, Booth’s testimony on this point indicated that, if he had a cause of action against anyone, it was Taylor, but the court sustained Taylor’s demurrer, and no appeal was taken.

At the time of the sale, a portion of the property was in the Soil Bank, and the Soil Bank payment for the preceding year had not been paid. On August 16, 1960, the date of the deed, Booth testified that Mason said he (Mason) would have to “hold up the title on it until he got that Soil Bank check.” Booth, desiring immediate possession, paid Mason $1,425.68, which was the amount that Mason was due to receive under the Soil Bank payment program. There are several reasons why this point is without merit; suffice it to say, the payment appears to have been voluntarily made by Booth in order to enable him to get immediate possession.

There is no need to discuss Point Three, which relates to the 7/10 of an acre deeded to a third party, since Mr. Booth stated that he was willing to “leave it like it is.”

The fourth allegation was based on the fact that the 1960 taxes on the Mason property in the amount of $120.05 for the year 1960 had not been paid. Appellants, having paid the amount, assert that they are entitled to reimbursement. It will be remembered that the conveyance from the Masons to the Booths was executed on August 16, I960', and the 1960 taxes tvere not due to be paid until the third Monday in February, 1961. The 1959 taxes, due in 1960, had apparently been paid. In the absence of a specific agreement to the contrary, appellants were obligated to pay the 1960 taxes, since these taxes were not due at the time the transaction between the Booths and Masons was completed.

As to Count Five, we think appellees, Trustees of the Chastain Church of Christ, clearly established their right to the property in question by adverse possession, and it is accordingly unnecessary to discuss other defenses raised by them. The testimony reflected, without dispute, that the property had been used as a church, at least, since October, 1947. It is fenced on the east and south (such fences being clearly evident when Booth first saw the property), with a road on the north and west sides. Though Booth contends that this land was included in his purchase in 1960, he made no complaint, nor questioned the right of the people who were using the church, until 1965. One wonders why the Booths waited nearly five years to institute their complaint (on all counts); for instance, the complaint alleges that they discovered the “shortage” in acreage “some months” after the transaction was concluded.

However, we think the court erred in dismissing the alternative prayer in the complaint relative to the 1^4 acres without hearing further proof. It is admitted that the description used in the warranty deed from the Masons to the Booths included the approximately 114 acres, comprising the church property. The Masons assert, in their brief, that a mutual mistake was made, in that the draftsman of the deed, the 'Commercial Bank of Alma, made an error in describing the lands; that Mr. Booth knew full well that the church property was not to be included in the purchase. It is true that Mr. Taylor testified that he had told Booth he was not buying the “church property,” and Taylor also testified that no consideration was paid for that portion of the lands. Still, Booth testified emphatically that he was told that this 1% acres was a part of the property appellees were buying. Here, the statute of limitations does not come into play, for actions on writings under seal are not barred until five years after the cause of action accrues. Since the deed included the church property, appellants’ count, based upon a breach of warranty is not barred. There is no evidence in this record relating to the deed, i. e., who prepared it, if a mistake was made, or if so, why such a mistake was made. The action for breach of warranty, not being barred by limitations, and there being testimony (by Mr. Booth) that he was supposed to receive the 1% acres under the sale, it was error for the court to dismiss this phase of the litigation at the conclusion of appellants’ testimony. See Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225.

Accordingly, the court’s decree dismissing appellants’ complaint is reversed insofar as it relates to the alternative prayer in appellants’ complaint, i. e., the matter covered in the previous paragraph of this opinion. In all other respects, the decree is affirmed.

It is so ordered.

Bland, J., disqualified and not participating.

       Apparently appellants were satisfied as to the land purchased from Jennings, since he was not included in the suit.

      Taylor, who also testified on behalf of appellants, emphatically denied that he had made any representations at all about acreage.

       The complaint alleged that Curtis Gardner, “the government representative of said soil bank,” informed Booth that the transaction could not be completed until the soil bank check was received.

       Booth, as the owner, would have normally received the Soil Bank payment, which, of course, had been earned while Mason was the owner. The record does not reflect who subsequently received the check.


author: Ed. F. McFaddin, Justice.

text:
    First State Bank, Gdn. v. Thessing et al
    5-3913
    406 S. W. 2d 865
    Opinion delivered October 10, 1966

      Clark, Clark & Clark, for appellant.

      Robert W. Henry, for appellee.
   Ed. F. McFaddin, Justice.

This appeal challenges the judgment of the Probate Court which allowed two claims against the estate of Mrs. Frances Enderlin, a person of unsound mind.

In April 1965 the appellant bank was duly appointed guardian of the estate (but not of the person) of Mrs. Enderlin; and in July 1965 these two claims were filed. The claimants are Miss Thessing and Mrs. Finkbeiner, who are sisters of Mrs. Enderlin; and the claims are amounts paid by the claimants in 1963 and 1964 to doctors, drug stores, hospitals, and nursing homes, for Mrs. Enderlin. The evidence established that Mrs. Enderlin had been separated from her husband for more than twenty years. He continued to live in her home, while she lived in a small rented house a few blocks away. Her husband and son did not care for her as they should have; and her two sisters, the claimants, were continually aiding her. In 1963 Mrs. Enderlin became ill and her two sisters obtained treatment for her. She was first placed in a hospital in Conway, then transferred to a hospital in Little Rock, and then to a nursing home, where she remained until committed to the Arkansas State Hospital where she is still confined. During the time of her illness, and prior to her adjudication, the two claimant sisters paid the following amounts for Mrs. Enderlin; and these are the claims, the allowance of which is here contested:

Paid by Miss Thessing:
Conway Memorial Hospital $ 49.90
Arkansas Baptist Hospital 301.75
Newman Nursing Home 187.00
Dr. William Snodgrass 19.00 $ 557.65
Paid by Mrs. Finkbeiner:
Dr. Drew Agar $ 36.00
Dr. William K. Jordan 85.00
Dr. Alfred Kahn 115.00
Ellis Ambulance 10.00
Arkansas Baptist Hospital 60.00
Our Lady of Nazareth Home 1,572.40 $1,878.40

From the judgment of the Probate Court allowing these claims, the bank, as guardian, and Mr. Enderlin and Raymond Enderlin, as husband and son, respectively, of Mrs. Enderlin, prosecute this appeal and urge three points, which we consider in the order listed. They are:

“1. The Probate Court erred in denying the motion to require the joinder of Frances Thessing Enderlin as a party to the hearing on the claims of Antoinette Thessing and Mrs. Paul Finkbeiner because Mrs. Enderlin was physically present within the State of Arkansas, no guardian had been appointed for her person, no personal service was had upon her, and the claims were, in essence, in personam claims for money allegedly advanced for her benefit.
“2. The Probate Court erred in allowing any portion of the Thessing and Finkbeiner claims against Mrs. Enderlin’s estate.
“3. If any portion of the Thessing and Finkbeiner claims is to be allowed, the allowance should be limited to the costs of maintaining Mrs. Enderlin in the Arkansas State Hospital for the period of time herein involved.”

I.

It will be recalled that the bank is guardian of the estate of Mrs. Enderlin: there is no guardian of her person. Nevertheless, it was insisted below, and is insisted here, that Mrs. Enderlin should have been personally served with process on these claims and the claims transferred to the Circuit Court for jury trial; and appellants cite Ark. Stat. Ann. § 27-337 (Repl. 1962) as to necessity of service of process on the insane person. The learned Probate Judge disposed of this point in a very qoncise Opinion, which we copy:

“As to the claim of intervenors that the probate court has no jurisdiction, assuming that intervenors have the right to raise the question, it is held that the election, if any, as to the court used for prosecution of this claim is with the claimant and not with the estate of the incompetent or persons contingently interested in the estate. It is true that the claimants could have filed suit in circuit court on these claims, but they did not elect to do so. The following sections of the Arkansas statutes seem conclusive on this subject: § 57-626, § 57-627, § 57-637. Neither the Arkansas nor the Federal Constitution require jury trials of guardianship matters, since the right to trial of these issues to a jury did not exist at common law. Schuz v. Peoples National Bank, 215 Ark. 796; Sharum v. Meriweather, 156 Ark. 331, anno. 91 ALR 88; 31 Am. Jur. ‘Jury’ Section 30.”

Ark. Stat. Ann. § 57-637 (b.) (Supp. 1965) is particularly clear on the point urged, and we copy it:

“b. CLAIMS WHICH MAY BE PRESENTED. Upon the petition of any person having a claim against the estate of a ward for services lawfully rendered to the ward or his estate or necessaries furnished to him or for the payment of a lawful liquidated claim or demand against the estate of the ward, the court may, after notice, upon appropriate hearing, direct the guardian to pay such claim. ’ ’

The claimants elected to file their claims in the probate court, as they had a right to do; and that court had jurisdiction to hear and allow the claims, as it did; so we find no merit in appellants’ first point.

II.

We copy from appellants’ brief their main argument on this point:

“A. Presumption Arising from Family Relationship. The presumption is that services rendered by members of the same family are gratuitous (Williams v. Walden, 82 Ark. 136, 100 S. W. 898), and the burden is on the claimant to establish otherwise. This holding appears to be extended to advances in Meers v. Potter, 208 Ark. 965, 188 S. W. 2d 500. Miss Thessing and Mrs. Finkbeiner both testified that strong bonds of affection existed between themselves and Mrs. Enderlin, their sister; that they had in the past advanced Mrs. Enderlin money without expectation of reimbursement; Mrs. Finkbeiner made her expenditures because of a desire to help Mrs. Enderlin; and that any sums spent by them were spent willingly and without fraud, duress, coercion, intimidation or deceit. Nothing in the record herein indicates that at the time of the alleged advances there was any expectation on the part of either party that there would be any reimbursement, thus reinforcing the above presumption.”

We find absolutely no merit in this point. The husband and son of Mrs. Enderlin failed, after notice, to do anything substantial for her. The two claimant sisters came to her relief. There was no obligation on the claimants, because of family relationship, to do what they did. There is no presumption that their advances were gifts, and the evidence is to the contrary.

III.

Appellants’ third point is likewise without merit. They claim that the expenses of Mrs. Enderlin at the Arkansas State Hospital are only $90.00 per month, which includes board, medical services, and doctor bills; that the amounts paid by the claimants for Mrs. Enderlin before she was committed to the State Hospital are far in excess of $90.00 per month; and that there is no evidence that the amounts so paid by the claimants were fair and reasonable; so the appellants argue that if the claims are to be allowed for any amounts, such allowances should not exceed a total of $90.00 per month.

The equities are all on the side of the claimants. They paid every bill by check direct to the person or corporation rendering the service to Mrs. Enderlin; and all of the original checks were introduced in evidence and are in the transcript before us. Of course private hospital and medical care is more expensive than is such service at the State Hospital. Certainly the doctors, hospitals, nursing home, and druggist would not have been paid by these claimants unless and until the claimants were satisfied as to the fairness of such charges. It ill becomes the husband and son, who failed to care for this unfortunate lady, to question the amounts paid in good faith for her by her two sisters.

Affirmed.

       That is, Mr. Enderlin and his son.


text:
    Olsen et al v. City of Little Rock
    5-3938
    406 S. W. 2d 706
    Opinion delivered October 10, 1966

      Wright, Lindsey & Jennings, Philip 8. Anderson Jr., for appellant.

      Joseph G. Kemp and Perry V. Whitmore, for appellee.
   George Rose Smith, Justice.

This is a suit by the appellants to compel the city of Little Rock to rezone their property at 401 West Eighteenth Street. The lot is now restricted to “C” Two-Family residential nse. The city’s administrative bodies denied the landowners’ application to have the lot reclassified to “D” Apartment use. This appeal is from a decree upholding the city’s decision.

In a case of this kind the chancellor should sustain the city’s action unless he finds it to be arbitrary. No matter which way the chancellor decides the question, we reverse his decree only if we find it to be against the preponderance of the evidence. City of Little Rock v. Garner, 235 Ark. 362, 360 S. W. 2d 116 (1962). In this instance we are of the opinion that the decree is against the preponderance of the evidence.

The lot in question is separated by Spring Street from the grounds surrounding the Governor’s Mansion The city’s witnesses took the position that the public’s investment in the Mansion could and should be protected by restricting all property within half a block of its grounds to “C” Two-Family use. (There are a few exceptions to this plan, owing to nonconforming structures that antedated the construction of the Mansion.)

The city’s attempt to shelter the Manion must be weighed against three counterarguments toward which the landowners directed their proof. First, the city’s refusal to rezone the lot imposes a financial hardship upon the landowners. This point is comparatively unimportant. We need say only that the testimony indicates that the vacant two-story house now on the lot cannot, in view of the size of the plaintiffs’ investment, be profitably reconditioned or remodeled if the present zoning restrictions are continued.

Second, a disinterested study completed in 1963 supports the plaintiffs’ contentions. That study was made by professional planning experts representing the city as well as the metropolitan area. It involved a section of the city comprising about a hundred blocks, bounded by Roosevelt, 'Chester, Fourteenth, and Cumberland. The conclusion reached was that the section in question, in view of its nearness to downtown Little Bock, should be extensively rezoned to permit a greater density of population in the area. Specifically and significantly, the report that was made recommended that all the property surrounding the Mansion grounds be reclassified to “D” Apartment use. Most of the recommendations appear to have been followed by the city, but for some reason not disclosed by the testimony the ordinance that was eventually adopted provided for the protective two-family residential belt surrounding the Mansion grounds.

Third, both the necessity for that protective belt and its effectiveness are open to serious question. This section of the city is a comparatively old residential district, characterized by large houses built forty or more years ago. The district, owing to its proximity to the commercial center of the city, is no longer attractive to owners having the means to keep such big homes in first-class condition. Consequently boarding houses and similar semi-commercial enterprises are becoming more numerous. It is pretty clear from the testimony that the Governor’s Mansion would suffer more from the intrusion of such establishments than from the construction of those relatively small apartments which alone are permitted under the “D” Apartment classification.

That the proposed rezoning will not adversely affect the neighborhood is confirmed by the complete absence of any protest on the part of other landowners in the area. Such apparently universal acquiescence in the proposal is decidedly unusual in zoning cases. Moreover, the Attorney General obtained a continuance in the court below to enable him to decide whether the State, as the owner of the Mansion, should protest the plaintiffs’ request. No protest was made. It is fair to conclude that none of the neighboring property owners — the group who would suffer the greatest damage if the reclassification is contrary to the public interest — oppose the plaintiffs’ petition. Upon the record as a whole we are convinced that the weight of the evidence lies on the appellants’ side.

Reversed.

Ward, J., dissents.

Paul Ward, Justice,

dissenting. In 1924 the legislature passed Act 6 (Ark. Stat. Ann. § 19-2804) which says: “It is recognized and hereby declared that the beauty of surroundings constitutes a valuable property right which should be protected by law . ...” To carry out this wholesome mandate the City of Little Rock provides for a Planning Commission composed of trained men in the field of zoning. Anyone aggrieved by this Commission’s action can appeal to the City Board of Directors, and then to Chancery Court.

In the case under consideration the Commission twice refused to rezone the subject property, the Board twice refused to overrule the Commission, and the Chancery Court refused relief. On appeal to this Court the rule by which we are to be guided was plainly stated, less than a year ago, in City of North Little Rock v. Habrle, 239 Ark. 1007, 395 S. W. 2d 751:

“In resolving this conflict we cannot substitute our judgment for that of the zoning authorities. We must uphold their decision unless we can say that it is arbitrary and capricious.”

In that case we also defined the word arbitrary as “decisive and unreasoned.”

I find nothing in the majority opinion or in the record from which I can conscientiously say the Commission and the Board acted arbitrarily in attempting to protect the “beauty” of the “surroundings” of the Governor’s Mansion. Certainly their actions cannot be called unreasoned.


text:
    Marsh et al v. City of Hot Springs
    5-3973
    406 S. W. 2d 714
    Opinion delivered October 10, 1966

      H. M. Campbell and Farrell Faubus and Julian Glover and Catlett & Henclerson, for appellant.

      Curtis L. Ridgway Jr. and Ban McCraio, for appellee.
   George Rose Smith, Justice.

In 1942 the city of Hot Springs acquired by condemnation, for airport purposes, the fee simple title to 134 acres of land owned by the five appellants. In 1950 the appellants brought this suit to recover the land, asserting that the city’s failure to use the property for any public purpose had caused the title to revert to the condemnees. This appeal is from a decree dismissing the complaint for want of equity. (The record does not explain the long delay in the trial of the case.)

There are two answers to the appellants’ contention that there was a reverter. First, in deciding in the first instance whether a taking is for a public purpose the court may consider “not only the present demands of the public, but those which may be fairly anticipated in the future.” Woollard v. Ark. State Highway Commn., 220 Ark. 731, 249 S. W. 2d 564 (1952). The land now in question is not far from the runways at the municipal airport. The preponderance of the testimony shows that it is reasonable to expect that in the course of the city’s normal growth this land will be needed to permit the airport to be enlarged. Thus even if the present question had been raised in the original condemnation proceeding, when it would have been timely, the court would have been justified in sustaining the city’s position.

Second, there is ordinarily a reverter when the public abandons an easement, as for a street, but the rule is different when the landowner has been paid in full for the fee simple title, as in the case at bar. “When, however, a fee simple free from any easements or conditions is acquired, either by purchase or by the exercise of the power of eminent domain, if the use for which the land was bought or condemned is lawfully discontinued or abandoned, there is no reversion, and the corporation holding the land may leave it idle, or devote it to a different use, or sell it in the same manner and to the same extent as an ordinary private owner. ’ ’ Nichols, Eminent Domain (3d eel., 1965), § 9.36 [4].

Affirmed.


author: Paul "Ward, Justice. Ed. F. McFaddin, Justice,

text:
    Love v. State Farm Mutual Auto. Ins. Co.
    5-3968
    407 S. W. 2d 118
    Opinion delivered October 10, 1966
    [Rehearing denied November 14, 1966.]

      Ben D. Linclsey, for appellant.

      Mahony & Yocum and Gockrill, Laser, McGehee & Sharp, for appellee.
   Paul "Ward, Justice.

This litigation concerns the meaning of certain provisions in an automobile liability insurance policy.

On July 20, 1963 Dan Love (appellant) was injured when his car collided with a 1955 Buick, owned and driven by Kenneth Sweet. Appellant sued Sweet and, on May 20, 1964 recovered a judgment for $8,500 — no appeal taken.

On June 16, 1964 appellant, being unable to collect from Sweet, filed this suit against the State Farm Mutual Automobile Insurance Company (appellee herein) contending he was subrogated to the right of Sweet under an insurance policy which had been issued to him by appellee covering the 1955 Bnick.

The matter was submitted to the jury, resulting in a verdict in favor of appellee. Appellant now prosecutes this appeal for a reversal.

First, we are confronted with a motion by appellee to affirm on the ground appellant has not complied with this court’s Rule 9 (d). We have concluded the motion must be affirmed.

The above Rule requires appellant to abstract such “material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this Court for decision.” Many times we have called attention to the fact that it is impracticable (if not impossible) for all the justices to read the entire record. We find, in this case, the abstract in appellant’s brief does not provide such an understanding. There is no abstract of the complaint which consists of eight pages; of the answer which consists of seven pages; of the exhibits presented to the trial court consisting of eight pages, and there is no abstract of several orders of the court.

The conclusion which we have reached to affirm the judgment of the trial court is in conformity with the following decisions of this Court: Ellington v. Remmel, 226 Ark. 569, 293 S. W. 2d 452; Griffin v. Mo. Pac. Rd. Co., 227 Ark. 312, 298 S. W. 2d 55; Anderson v. Stallings, 234 Ark. 680, 354 S. W. 2d 21; Vire v. Vire, 236 Ark. 740, 368 S. W. 2d 265; Weir v. Hill, 237 Ark. 922, 377 S. W. 2d 178, and; Hurley v. Owens, 238 Ark. 874, 385 S. W. 2d 636.

Affirmed.

McFaddin, J., concurs.

Ed. F. McFaddin, Justice,

concurring. The purpose of this concurrence is to state that I would affirm the judgment on the merits.

From the abstract and briefs I was able to understand that the case was submitted to the jury to answer two interrogatories. These were answered adversely to the appellant, and there was evidence to support the jury’s answers.

I found no errors in the instructions; so I would affirm on the merits.


author: Oseo Cobb, Justice.

text:
    Benton et ux v. Fultz et ux
    5-3975
    406 S.W. 2d 699
    Opinion delivered October 10, 1966

      Gaughan & Laney, for appellant.

      Streett & Plunkett, for appellee.
   Oseo Cobb, Justice.

This is a case where adjoining owners of residential properties in Camden are in dispute as to the use of a driveway situated between their residences. The record indicates that the dispute has not thus far affected the neighborly relationship of the parties. The record also indicates that the positions urged by the parties have been taken in good faith, the aid of the courts being invoked to set the dispute at rest.

Introductory Facts:

In 1957 Sue Moore Olsen owned all of the properties which were subsequently acquired by the parties to this action. On May 18, 1957 the tract now owned by appellants was conveyed by warranty deed to John G. Malone and Pauline H. Malone, the deed containing the following easement reservation:

“Grantor and Grantee hereto mutually agree that easements ten feet in width and extending back forty feet in a westerly direction from Harrison Avenue shall exist for the mutual benefit of the property herein conveyed and the property lying North and the property lying South of the parcel herein conveyed; the northerly line of the property herein conveyed to be the center of such easement for the property herein conveyed and the property lying immediately North thereof and the southerly line of the property herein conveyed being the center of the easement for the benefit of the property herein conveyed and the property lying immediately South, such easement being for ingress and egress.”

On June 6, 1958 Sue Moore Olsen conveyed by warranty deed to appellees the property joining that previously conveyed to the Malones. The juncture line of the two properties, particularly toward the rear of the residences, was marked by a rough and irregular terrain with a deep ditch, making the area impassable by vehicle and even difficult to walk upon. Appellees desired to erect a retaining wall some four and one-half feet high on the Malone property and to bulldoze the area to level same in order to control water drainage for the protection of both properties; and also to extend the driveway from the 40 feet in depth, as set forth in the quoted easement, to a point reaching, the rear of their house so that their cars could be parked there and to avoid blockage of the driveway between the properties. All of said improvements were made at a substantial expense to appellees, and at a time prior to appellants’ entry upon the scene. The following factual affidavit of John G. Malone, predecessor in title to appellants, appears in the record:

“June 22, 1964
“When George Fultz purchased the property adjoining mine, we had a mutual agreement that, if he leveled the property behind his house and built up the drive-way between our houses and made it passable, that the drive-way would be kept open for the use of both families.
“It was also agreed that George would build up to the same level as his property that part of my back yard on the south side of the storm ditch. This was done by building a retaining wall along the south side of the storm ditch. All of this was done at no expense to me.
/s/ John G. Malone”

On the 9th day of May, 1959, the Malone property was acquired by appellants, who immediately moved into the residence thereon. For some five years thereafter the improved and extended driveway was used without complaint. On one occasion the parties jointly contributed to the purchase of fragments of asphalt shingles, which were used in surfacing the driveway. The driveway was contoured so that the water would move down the center and away from the residences. When the driveway needed some further repairs, appellees decided to cover it with gravel and Mr. Benton, one of the appellants, agreed to the use of gravel, but stated that he did not know whether Mrs. Benton would have any objection. It developed that Mrs. Benton objected to the gravel that was being placed on the driveway and thereafter appellants placed a series of concrete blocks along the portion of the driveway nearest their residence and in such a position as to prevent appellees from driving their vehicles upon said driveway.

Appellees brought suit to enjoin appellants from blocking the driveway and for other equitable relief. After hearing the court entered a decree declaring a permanent servitude of the land upon which the driveway had been constructed for the use and benefit of appellees in vehicular access to their property. From this decree comes this appeal.

Appellants urge three points for our consideration:

POINT I
“The trial court erred in finding that appellants’ predecessor entered into a valid and enforceable oral agreement with appellees wherein appellees acquired an easement in perpetuity over a portion of land subsequently acquired by appellants.”

Appellants concede that there was some loosely defined oral agreement or arrangement between appellees and the Malones as to the extension of the existing driveway, leveling the back yards, etc. However, appellants insist, and rightly so, that any oral agreement affecting an interest in land must be established by clear and convincing evidence before it can be enforced. Tedford v. Tedford, 224 Ark. 1035, 277 S. W. 2d 833 (1955); Jeffries v. Meredith, 219 Ark. 654, 243 S. W. 2d 942 (1951); Rolfe v. Johnson, 217 Ark. 14, 228 S. W. 2d 482 (1950).

Performance of the alleged oral agreement was, completed in a matter of days, thus removing the oral agreement, if any, from the time provision of onr statute of frauds. Ark. Stat. Ann. § 38-101, (Repl. 1962).

While appellants did not couch their testimony as to the oral agreement with the Malones in legal terms, such as servitude in perpetuity, they did make it clear that all of the improvements were made as a result of an oral agreement that they could thereafter use the extended driveway in driving their cars to and from the rear of their house. We cannot rationalize such an extensive project of improvements as those actually completed by appellees, including major construction of a retaining wall on the Malone property itself, without an agreement with the Malones. Neither can we rationalize appellees’ expenditure of such substantial sums to make the improvements, including the extension of the existing driveway, absent some understanding with the Malones that they could thereafter use the driveway. This is a case where the improvements made by appellees, particularly those as to the driveway, were such as to speak for themselves as to the intent of the adjoining owners. Significantly, the record is silent as to any complaint on the part of the Malones, who were in possession of their property for a considerable length of time after the improvements were made.

We have concluded that the trial court was justified in finding that the oral agreement as alleged by appellees was supported by clear and eonvincing evidence. We have reached this conclusion without reliance upon the affidavit of facts of Mr. Malone as it appears in the record. The affidavit was not proper evidence but does serve to indicate that he would have corroborated appellees’ claim as to the oral agreement, if called as a witness.

The finding of the trial court that an enforceable oral agreement as alleged in appellees’ complaint had been established is supported by a clear preponderance of the evidence in this case and will not be disturbed here. Spears v. Rich, 241 Ark. 15, 405 S. W. 2d 929 (1966); Orrell v. E. C. Barton & Co., 240 Ark. 211, 398 S. W. 2d 685 (1966).

We therefore find no merit in appellants’ contentions under their Point I.

POINT II
“The trial court erred in ruling that at the time appellants acquired their property they had actual, or constructive, knowledge of any adverse claim to an easement over a portion thereof by appellees.”

Appellants erroneously assume that appellees bottomed some of their claims to unimpaired use of the driveway in controversy upon elements of adverse and hostile possession. On the contrary, appellees have bottomed their claims upon an oral agreement with appellants’ predecessor in title.

Appellants challenge the enforcement of the oral agreement, if any, because of lack of actual or constructive notice to appellants. All of the improvements had been made before appellants purchased the property. They, therefore, had complete and actual notice of what had been done. Furthermore, there was unchallenged use of the driveway, benefiting appellees primarily but appellants as well, for some five years. The dispute, when it arose, did not involve a challenge as to the driveway easement but involved whether the driveway should be completely surfaced with gravel. Admittedly, the dispute grew into enlarged claims by appellants thereafter.

We have held that a purchaser of real estate is charged with notice of an easement where the existence of the servitude is apparent upon an ordinary inspection of the premises. Hannah v. Daniel, 221 Ark. 105, 252 S. W. 2d 548 (1953).

We therefore find no merit in appellants’ contentions under their Point II.

POINT III
“The trial court erred in ruling that appellees had acquired a permanent servitude over a 5 foot strip of appellants’ land; and in directing appellants to remove their concrete retaining wall; and in enjoining appellants from interfering with appellees’ use of such strip.”

Appellants here primarily rely upon our decision in West v. Bain, 184 Ark. 641, 43 S. W. 2d 245 (1931), wherein we held that a purchaser of a lot is not hound by an oral agreement between her grantor and an adjoining property owner for construction of a common driveway, she having no notice of such agreement at the time of the purchase.

In the West case, we noted: (a) that the proposed driveway had not been constructed and (b) that the purchaser had been definitely assured that there were no outstanding agreements with the adjoining property owners. These circumstances clearly distinguish the West case from the present case. Furthermore, some inference may be drawn from the West case that had the driveway been completed, putting the purchaser upon full notice of same, she could have been bound thereby. In Wynn v. Garland, 19 Ark. 23 (1857), certain drainage ditches were constructed by adjacent plantation owners in reliance upon an oral agreement that when completed each party would be allowed continuous use of the ditches to drain their respective properties. Wynn closed the main ditch on his land, making the ditching done by Garland valueless. The court said:

“We regard it as a question of immateriality in this inquiry, whether a part of all the ditches are now, or were, at the time of their construction, on the land of Garland, or whether the license was given to Garland by Wynn to construct them in the first place without consideration, for we have seen that the ditches were made in part by Garland, that the labor bestowed in this way was of value, and that they were made under the agreement and to the knowledge of Wynn, whilst they were progressing; and we have held that the expenditure of money under these circumstances, will be regarded in equity as so much consideration paid by the grantee to the grantor of the license, inducing the expenditure, and has the effect of turning such license into an agreement which will be executed in equity.”

We also quote a significant headnote from the Wynn case:

“But though the grant of an easement is within the statute of frauds, and must be in writing, yet a parol grant executed, will be upheld under the same circumstances, and on the same principles that a parol contract for the sale of land would be — as where the grantee has made improvements in good faith, under the grant, or expended money or capital in its enjoyment.”

In Chaney v. Martin, 205 Ark. 962, 171 S. W. 2d 961 (1943), we quoted with approval the following:

“An oral grant (of an easement) will be upheld where it is accompanied by consideration, action in reliance on the grant and by grantees being permitted the granted use.”

See also 28 C.J.8., p. 678; Kellums v. Richardson, 21 Ark. 137 (1860); Neil v. Neil, 172 Ark. 381, 288 S. W. 890 (1926).

Appellees have called our attention to the following quotation from Thompson on Beal Property, Yol. 2y $ 225 (Bepl. 1961):

“A license for a valuable consideration is regarded as irrevocable when the licensee has incurred expense under it or there is a mutual agreement to do certain acts and this has been fully performed on one side. This rule is based on two distinct theories; the first being that when the licensee expends large sums of money making the improvements without objections by the licensor, the license becomes executed, so that what was at its inception a license is ultimately transformed into a grant and, therefore, irrevocable. The second theory is based on -the ground of equitable estoppel and follows the rule that a court of equity will not permit the licensor to cloak himself ydth the statute of frauds, and under its cover, perpetrate a fraud upon the licensee by revoking the license.”

We have concluded that there is no merit in appellants ’ contentions under their Point III.

Having found no merit in any of the contentions of appellants, the decree of the Chancery Court is affirmed.

Affirmed.


text:
    Jimmy H. Davis v. Maudine Davis
    5-3983
    406 S. W. 2d 704
    Opinion Delivered October 10, 1966

      Fletcher Long, for appellant.

      John D. Eldridge, for appellee.
   Oseo Cobb, Justice.

The parties to this appeal were divorced by decree filed October 9, 1965, the decree providing- that appellant should pay appellee alimony of $100.00 per month. No children had been horn of their marriage.

After the decree of October 9, 1965, appellee sought employment and obtained a job at the Arkansas Baptist .Hospital in Little Rock. On December 30, 1965, some •80 days after the divorce decree, appellant filed his petition to modify the decree by abating and deleting all provisions as to further alimony payments because of the changed conditions with respect to appellee’s earnings.

Following hearing, the Chancellor denied appellant’s petition for modification and from that action of the trial court comes this appeal.

Appellee testified in detail as to her monthly living expenses which aggregated $281.73, without any allowance for emergencies that might occur; that she was then earning approximately $200.00 per month in actual take home pay and that she was in dire need of the supplemental income from the alimony payment.

While it is true that appellee may eventually become •self sustaining, this was not the case as of the time of the hearing. Furthermore, there was no showing that appellant’s capacity to pay the alimony had been diminished; indeed, there was some evidence that appellant’s financial situation was being improved.

We, therefore, find no error in the action of the trial court in refusing to modify its former decree as to alimony payments to appellee.

See Pledger v. Pledger, 199 Ark. 604, 135 S. W. 2d 851 (1940); McConnell v. McConnell, 98 Ark. 193, 136 S. W. 931 (1911).

An additional attorney’s fee to counsel for appellee in the sum of $100.00 is allowed for services rendered in this Court.

Affirmed.