author: George Rose Smith, Justice. Ed. F. McF-addin, Justice,

text:
    Nolan v. Nolan
    5-3855
    401 S. W. 2d 13
    Opinion delivered April 4, 1966

      W. H. Arnold, Switzer & Griffin, for appellant.

      Travis Mathis, for appellee.-
   George Rose Smith, Justice.

We have for review a divorce decree which nominally awarded custody of the parties’ nineteen-month-old son to the appellee, the father, hut which seems actually to have vested the right of custody in the child’s paternal grandparents.

The parents, Louis and Betty Ann Nolan, were married on February 1,1963. Louis was then twenty-one years old; Betty Ann was seventeen. Their son Mitchell was born November 25, 1963. The couple separated in June of 1965. Two months later the court granted a divorce to Louis and fixed the custody of the child.

The decree awards custody to the child’s father “for so long as he keeps said child in the home of Mr. and Mrs. C. C. Nolan [the appellee’s parents].” The mother is given reasonable visitation privileges, but neither parent is to remove the child from the elder Nolans’ home without their express consent. Louis Nolan, the child’s father, is directed to pay his parents $100 a month for the child’s support. It is apparent that the practical effect of the decree is to place the child in the custody of his paternal grandparents. This is especially true in view of the further fact that Louis Nolan expects to be employed by an Oklahoma construction company and to be away from his parents’ home at least during the day, if not during many nights as well.

We treat the decree as an award of custody to the grandparents. We have frequently held that, as between a mother and grandparents, the mother is entitled to her child unless she is unfit to be entrusted with the child’s care. Many of our cases were reviewed in Parks v. Crowley, 221 Ark. 340, 253 S. W. 2d 561 (1952), and need not be cited again in this case.

It is not shown by the proof that Betty Ann Nolan is not a proper person to bring up her little son. She was only eighteen years old when the responsibilities of motherhood became hers. There is testimony that she proved to be a poor housekeeper, that she liked to sleep until ten or eleven in the morning, and that she did not change her child’s diapers as promptly as she should have done. Her husband testified that he suspected her of having had dates with other men after their marriage, but his suspicion is wholly unsupported by proof and is flatly denied by Betty Ann herself. When we consider the record as a whole, even with due regard for the trial judge’s superior opportunity to weigh the testimony, we are unwilling to say that Betty Ann should be denied the precious privilege of caring for her own child merely because of shortcomings that involve no immorality and that are understandable in a mother so young as she. The controlling considerations are the welfare and best interest of the infant son. We are convinced that those ends will best be served by confiding the child to his mother’s devoted care.

Reversed.

McFaddin, J. dissents.

Ed. F. McF-addin, Justice,

dissenting. It is almost impossible to tell what is best to be done in a case like this one. Here is a little boy who was twenty months old at the time of the hearing. Neither parent is blameless. There is no need to recount the testimony. We see only the printed page. The Chancellor saw these parties and heard them testify; and he made a decision which he thought was the best thing for the little boy. I want to follow his superior information in this case; and so I would affirm the Chancellor’s findings.

It must be borne in mind that I dissented in Nutt v. Nutt, 214 Ark. 24, 214 S. W. 2d 366; and I dissented in Parks v. Crowley, 221 Ark. 340, 253 S. W. 2d 561. In the latter case I used this language:

“The Chancellor saw the parties and heard the testimony. He concluded that the little girl would be better cared for if left with the grandparents. We have only the cold print before us, and I am unwilling to reverse his findings. ’ ’

My views have not changed. An earnest, conscientious Chancellor saw the parties and heard the testimony. He reached a conclusion which I think is entitled to more weight than any conclusion we could reach from the printed page. I would leave his findings undisturbed.


source: Caselaw Access Project

author: Paul Ward, Justice.

license: Public Domain

text:
    Hollingsworth v. Hollingsworth, Administratrix
    5-3840
    401 S. W. 2d 555
    Opinion delivered April 4, 1966
    [Rehearing denied May 9, 1966.]

      Clint Huey, for appellant.

      Carlton Currie, for appellee.
   Paul Ward, Justice.

This appeal is from an order admitting to probate the will of Samuel Hollingsworth who died December 23, 1963.

The will, which was executed September 14, 1963, was filed for probate January 6, 1964. The deceased’s widow was appointed administratrix two days later. On January 27, 1964 the heirs of the deceased by his former wife filed a petition to contest the will, alleging it was invalid for the following reasons:

(a) The testator was acting under the influence of the principal beneficiary—the widow, who caused the will to be prepared and executed.

(b) The testator did not possess the necessary mental capacity to execute a will.

(c) The will was not executed in accord with statutory requirements.

(d) The acts of appellee in causing the will to be executed amounted to fraud.

A formal response was filed, denying above allegations.

After a rather lengthy hearing the court held the will was valid and admitted it to probate—hence this appeal.

One. It is first urged that the will was not properly executed as required by law. Appellants cite Ark. Stat. Ann. § 60-403 ,(,Supp. 1965) which provides, among other things, that the testator “shall delcare to the attesting witnesses that the instrument is his will” . . . and . . . that “The attesting witnesses must sign at the request and in the presence of the testator. It is contended this part of the statute was not complied with in this case. We are unable to agree with this contention. It is conceded that the deceased signed the will in the presence of two witnesses (Mrs. Creed and Mrs. Dickey) and that they signed in his presence. It is true that the witnesses to the will could not say positively that the testator actually said it was his will or that he literally requested them to sign it as witnesses. However the circumstances and facts revealed by the record leave not doubt that they understood the paper signed was the will of Mr. Hollingsworth and that he expected and desired them to sign as witnesses. Mrs. Creed and Mrs. Dickey both admitted the will was signed by the testator in their presence and also admitted that they signed as witnesses in the presence of the testator.

The above testimony supports the trial court’s finding that the will was properly executed when viewed in the light of former decisions of this Court. In Tatum v. Chandler, 229 Ark. 864, 319 S. W. 2d 513, we said:

“Appellant’s contention that the Will was not legally executed is based on the testimony of the two attesting witnesses. They both admitted they saw W. M. Tatum sign his name at the bottom of the paper or Will, and also admitted they signed their names at the bottom of the attesting clause in the testator’s presence and in the presence of each other. Both witnesses, hoioever, said the Will was not read in their presence and that the testator did not state the paper was his Will or request them to sign as witnesses. In support of their contention appellants cite Orr v. Love, 225 Ark. 505, 283 S. W. 2d 667.” (Emphasis added.)

To the same effect is our holding in Hanel v. Springle, Adm’r, 237 Ark. 356, 372 S. W. 2d 822, where the following statement appears:

“It is admitted that the two Howell sisters signed the instrument in the presence of the deceased but it is contended that they did not sign ‘ at the request of the testator.’ It is true that when each of the sisters was asked if the deceased specifically requested her to sign the instrument, the answer was that he did not. Although it appears from the above that, technically, there was a non-compliance with the provisions of the statute, we are convinced there was a substantial compliance under the facts and circumstances of this case.”

Two. The trial court found that Sam Hollingsworth was not under undue influence when he executed the will. Appellants here contend that such finding is contrary to the weight of the evidence. Again, we are unable to agree with appellants although they argue with force and although the issue entails some element of doubt.

With commendable candor and fairness the trial court summarized the evidence tending to support appellants, stating:

“The decedent was aged, sick, weak, disabled and suffering from senility; he was in the exclusive care and custody of the widow; that she was a strong personality; that the decedent was unable to resist the influence of his wife; that she completely dominated his every action—her will was his will; that influence was so extreme as to cause him to become alienated from his flesh and blood—his children; that she Avas the active factor in the securing of the drafting of Will No. 2, and supervised its execution ; the will was an unnatural will; she was the sole beneficiary except for a dollar bequest to each of the children; the Avill was for her exclusive benefit.”

Also, the court stressed the fact that the deceased had made a prior will which left property to his children, and that appellee, as his wife, was in a position to exercise great influence upon him. However, the trial court, after taking all these things into consideration, made the following findings: “Any direct evidence of any form of undue influence being exercised by the widow directed to the deceased to secure the new testamentary disposition is lacking .... The proof of the grounds of undue influence. . . is laid on presumption and circumstantial evidence.” We agree that this finding of facts is supported by the record.

In view of what has been pointed out above, we are unwilling to say the trial court’s finding relative to undue influence is against the weight of the evidence, especially in view of some of onr former decisions. In the early case of McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590, this Court said:

“The influence which the law condemns is not the legitimate influence which springs from natural affection, hut the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specially directed toward the object of procuring a will in favor of particular parties.”

The above rule has been approved in Alford v. Johnson, 103 Ark. 236, 146 S. W. 516, and in Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695.

. Three. Finally, appellants contend the will should have been held invalid because it was induced by a mistake of fact on the part of the testator.

As previously mentioned, Mr. Hollingsworth had made a will some years ago. In that will he left certain real estate (by a definite description) to one of his children. It appears that just shortly before his last will was executed he decided to deed the property to this child. It further appears that he thought he could not legally deed away the property because it had already been devised in the first will. It further appears he may have been advised to that effect by an attorney. It was for this reason, say appellants, that Mr. Hollingsworth executed the last will.

For at least two reasons we are unable to agree with the above contention. Conceding, for the purpose of this opinion, the testator did believe he had to make a new will (or destroy the old will) before he could deed the land, that fact does not prove, or even suggest, that he wanted to retain the other provision of the first will. Also, this Court has held that a mistake of law alone does not invalidate a will. In the early case of Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405, this Court in speaking of the effect of a mistake of law on the testator, approved the following statement:

“In the exercise of reason, he may move upon false or insufficient evidence, or by mistake of law, and thus exclude from his bounty those whom, but for his error, he would have recognized. Stupid error, either in his reasoning or conclusion, is not lack of testamentary capacity. ’ ’

The trial court ordered the costs of the proceeding below to be paid out of the estate, but appellee asks that the costs of this appeal be paid by appellants. We agree with this request, and it is so ordered.

Affirmed.

McFaddin, J., not participating.

Harris, C. J., & Johnson, J. dissent.


author: Jim Johnson, Justice.

text:
    McCastlain, Commissioner v. Berry
    5-3811
    401 S. W. 2d 38
    Opinion delivered April 4, 1966

      Lyle Williams, Tom Tanner & Hugh Brown, for appellant.

      Smith, Williams, Friday & Bowen and Wright, Lindsey & Jennmgs, for appellee.
   Jim Johnson, Justice.

This appeal is from allowance of an estate tax marital deduction.

James E. Berry, an Arkansas resident, died testate in 1961. His widow, appellee Ruby M. Berry, was nominated and appointed executrix in Union Probate Court on August 21, 1961. A federal estate tax return was filed in September 1962. Both returns claimed the maximum allowable marital deduction, which was allowed by the Little Rock Internal Revenue office. On later review by the Dallas office, the marital deduction was disallowed. It was reviewed again in Washington and again disallowed on the grounds that the interest passing to appellee under her husband’s will was subject to divestment. The estate was advised of this on November 17, 1964, and under protest paid appellant Arkansas Commissioner of Revenues the sum of $26,851.40 as additional Arkansas estate tax. On January 7, 1965, the estate filed a claim against appellant for refund of the additional tax. The trial court found that appellant had erroneously collected the additional tax and gave appellee judgment for the $26,851.40, from which comes this appeal.

The clauses of James Berry’s will which triggered this litigation are as follows:

“3rd. I hereby will and bequeath unto my wife, Ruby M. Berry, all of the rest, residue, and remainder of my property, whether real, personal or mixed, that I may own at the time of my death in absolute fee simple estate and forever.
“4th. In the event my wife, Ruby M. Berry, predeceases me or dies simultaneously with me or dies before this will is probated, then in either of these events, I hereby will and bequeath unto my daughters, Margaret L. Berry and Robin N. Berry, share and share alike, all of my property whether real, personal or mixed, that I may own at the time of my death, wherever the same may be situated in absolute fee simple estate and forever.”

For reversal appellant urges that the will did not create a fee simple estate which vested in appellee at the time of decedent’s death, but created a terminable interest subject to divestment and therefore does not qualify for the marital deduction. More specifically, the Internal Bevenue Service had disallowed the marital deduction on the grounds that the gift over in the fourth paragraph, supra, to decedent’s daughters if his wife did not survive probate of the will, made the interest passing to appellee in the third paragraph, supra, subject to divestment and thus terminable (or non-qualifying) within the meaning of § 2056 of the Internal Bevenue Code of 1954, which provides for the marital deduction. Disallowance of the marital deduction by the Internal Bevenue Service increased the taxable estate thus creating an additional Arkansas estate tax liability against the decedent’s estate, the $26,851.40 paid under protest.

The applicable rule was probably first expressed by this court in Moody v. Walker, 3 Ark. 187, very simply: “If the absolute right of property is given to the first taker, the limitation over is void. * * * If a testator gives property absolutely, in the first instance, to a legatee, he can not afterwards subject it to any limitation or provision whatever, ...” In Bernstein v. Bramble, 81 Ark. 480, 99 S. W. 682, 8 L.R.A.N.S. 1028, the testator willed everything to his wife “in fee simple forever” and then provided that if his wife died without a will the estate would pass to his brother and sister. When the wife died intestate, the husband’s brother and sister claimed the wife’s estate under the provisions of the husband’s will. After quoting a number of authorities including the Moody case, the court held that the property was devised to the wife in fee simple and the attempted limitation over to the husband’s brother and sister was void. In Collie v. Tucker, 229 Ark. 606, 317 S. W. 2d 137, which was controlled by Bernstein, appears the following:

“In the present case Collie left all his property to his wife and added the unmistakable direction that it should be ‘absolutely hers.’ In view of this clear expression of Collie’s intention that his widow would own the property outright instead of merely for life, the attempted limitation over must be declared void. We are not willing to set aside the rule of property that was announced in the Bernstein case and that has been adhered to ever since.”

The third paragraph of Berry’s will clearly vests the property in appellee, and the attempted limitation or gift over in the fourth paragraph is ineffectual and void. It follows, therefore, that the bequest to appellee qualifies for the marital deduction.

Affirmed.


text:
    Miller v. State
    5172
    401 S. W. 2d 15
    Opinion delivered April 4, 1966

      Paul K. Roberts, for appellant.

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. General, for appellee.
   Jim Johnson, Justice.

This appeal is from a grand larceny conviction. Appellant Carl Miller was arrested and jailed on April 28, 1965, for allegedly stealing two chain saws. Information was filed in Bradley Circuit Court on April 30, 1965, charging appellant with the crime of grand larceny. Trial before a jury on September 15, 1965, resulted in a verdict of guilty and a four year sentence to the state penitentiary.

For reversal appellant first urges that the trial court erred in allowing the prosecuting attorney while addressing the jury in final argument to call to the attention of the jury the fact that appellant did not testify.

The prosecuting attorney in his summation to the jury made the following remarks:
“The defendant is charged with the crime of taking, stealing, and carrying away two power saws, the property of Bruce Garner, on or about the 28th day of April, 1965, said power saws having a value in excess of $35.00. The defendant has chosen not to take the stand and that is his privilege, therefore

At this point appellant entered an objection, and the trial court stated: “I told the jury that that was his right, to testify or not to testify, and I don’t think he said anything, Mr. Roberts, prejudicial to this point.” Then the prosecuting attorney continued and said:

“He has chosen not to take the stand, therefore your consideration is to judge the evidence that has been presented to you and decide if the State has proved beyond a reasonable doubt from the evidence you heard that this man, Carl Miller, is guilty of the crime he is charged with.”

The Attorney General concedes, and we agree, that the above quoted remarks constitute reversible error. In Miller v. State, 239 Ark. 836, 394 S. W. 2d 601, decided subsequent to the trial of the case at bar, there appears the following statement:

“The defendants did not testify in this case. Over their objections and exceptions, the court instructed the jury that it was the privilege of the defendants to testify in their own behalf or to decline to so testify. In his argument to the jury, the prosecuting attorney specifically called this instruction to the attention of the jury, repeated it, and said: ‘You are instructed this is a privilege to them to either testify or not to testify. That is what the court says in that instruction.’ Obviously, by arguing this instruction to the jury in that manner, attention has been called to the fact that defendants had not taken the stand in their own behalf. This was error. ’ ’

On the point in question we are unable to distinguish this case from the Miller case. See also Griffin v. Calif., 380 U. S. 609, 14 L. ed 2d 106, 85 S. Ct. 1229.

Appellant’s second point urged for reversal relates to admission into evidence of a purported confession. Having determined the case must be reversed on the point above discussed, we think it is proper in view of a new trial to also state that, under the record now before us, the trial court was in error in admitting into evidence appellant’s alleged confession.

Reversed and remanded.


text:
    Erwin v. Allied Van Lines, Inc.
    5-3828
    401 S. W. 2d 25
    Opinion delivered April 4, 1966

      Cole & Scott, for appellant.

      Wootton, Land & Mattheivs, for appellee.
   Jim Johnson, Justice.

This action for personal injuries and property damage was brought by appellant James E. Erwin in Hot Spring Circuit Court against appellees Allied Van Lines, Inc., Benton Yan and Storage Company and James Hugh Ray on February 23, 1965. Appellant was driving from Pope County where he worked to his home in Malvern for the weekend on the evening of February 12, 1965, when he collided with the side of appellees ’ moving van which was pulling out of a truck stop. Appellant was injured and his car demolished, appellees’ van and its cargo damaged. Appellees answered denying liability and prayed judgment against appellant for their damages. By amendment to the answer, appellees alleged appellant was under the influence of intoxicants at the time of the collision. The case came to trial before a jury on May 11, 1965, resulting in a verdict for appellees which awarded no damages on their cross-complaint. From judgment on the verdict comes this appeal.

Appellant contends for reversal that appellant’s cause was prejudiced by the court’s giving appellees’ requested instruction No. 1, in that the instruction was not justified by the evidence. Appellees requested and the court modified and gave an instruction to the jury about operating a motor vehicle under the influence of intoxicating beverages.

There was testimony that appellant had had something to drink shortly before the accident. A partly full whiskey bottle was found in appellant’s glove compartment by a state trooper after the accident. Appellant and his passenger testified that they had stopped and had one or two beers on the way home but no whiskey, appellant stating he was not aware that a whiskey bottle was in his car. The state trooper testified that he could smell alcohol on appellant’s breath. The facts in this case clearly indicate that the question of appellant’s being “under the influence” was in issue and it was proper for the trial court to so instruct the jury. The jury was instructed in language similar to that contained in Jones v. City of Forrest City, 239 Ark. 211,388 S. W. 2d 386, and AMI 607. While we do not wish to approve the cumbersome instruction for future use (and therefore decline to set it out), we find the instruction objected to was not prejudicial.

Counsel for appellant, in harmony with their contention that the trial court should not have defined intoxication, criticize AMI 607 for its definition of that term. We do not now examine this AMI instruction, for it was not given in the trial court. We may appropriately observe, however, that this court has not given its blanket advance approval to the Arkansas model instructions. Our per curiam order, quoted on the inside front cover of AMI, simply gave effect to the work of the committee by directing that its instructions be used unless the trial court should find that they do not accurately state the law. A similar procedure has been adopted in other states where model instructions have been prepared.

Affirmed.


text:
    Ark. State Highway Comm. v. Fowler
    5-3836
    401 S. W. 2d 1
    Opinion delivered April 4, 1966

      Thomas B. Keys, for appellant.

      Cole & Scott, for appellee.
   Jim Johnson, Justice.

This condemnation action was brought by appellant Arkansas State Highway Commission to acquire 18.58 acres of land for highway purposes from appellees J. Houston Fowler and his wife. A complaint and declaration of taking was filed in Hot Spring Circuit Court on May 27, 1964, and $4,-850 was deposited in the registry of the court as estimated just compensation. At trial on July 13, 1965, appellant’s value witnesses testified that appellees’ damages were from $3,000 to $3,250, whereas appellees’ value witnesses placed the damage from $12,086 to $15,-000. The jury returned a verdict for $12,000'. From judgment on the verdict comes this appeal.

Appellant’s first point urged for reversal is that the trial court erred in refusing to strike the appellees’ expert witness’ testimony as to the value of the land because it was based upon a purchase by the State Highway Department.

Mr. George McClure, appellees’ expert witness, after establishing his expertise by impressive qualifications and experience, on direct examination went into a careful, detailed and lengthy explanation of how he arrived at the valuation of various parts of the property taken. On cross-examination after being cross-examined for thirteen pages of the transcript on how he had arrived at a value of $200 per acre for certain pasture land, this colloquy followed:

Q. What I wanted to know was what others sold for, if you considered them?
A. One thing, it might influence you a little bit, you [the Highway Department] paid a little over $200 an acre for land that joined that. You settled with one man there. You all thought it was worth $200 an acre then and you don’t today.
Q. This influenced you in appraising this property?
A. No, I wouldn’t say that. I would have placed that same value without that.

Appellant immediately moved to strike McClure’s value testimony on the pasture land as inadmissible. The trial court refused to strike the testimony but admonished the jury to disregard and forget the statement concerning amounts paid by the highway department for neighboring land.

A recent decision is clearly applicable: Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S. W. 2d 201. The entire opinion is pertinent here but for brevity we quote only the following:

“The cross-examining attorney, however, is not entitled to embark on a fishing expedition with immunity from any unfavorable information he may elicit. He acts at his peril in putting a question that may evoke an answer damaging to his own case.”

Appellant’s second point is a related one, that the trial court erred in permitting appellee Fowler to testify as to the value of his land before the taking and after the taking over the objection of appellant and then not striking the testimony because Fowler gave no basis for his evaluations and did not make a before and after appraisal.

Appellee testified on direct examination that his land was worth $65,000 and that there was a difference after the taking of $15,000. On cross-examination appellee was asked:

Q. In arriving at the value before and after the taking, did you just add damages and conclude that there was $15,000 worth of damages and subtract it from $65,000?

to which appellee replied, “That is exactly my way of thinking.” Appellant then moved to strike appellee’s testimony on before and after value, which was properly denied. The rule stated in the first point is equally applicable to this cross-examination testimony.

On appellant’s objection to permitting appellee, admittedly not an expert witness, to testify as to the value of his land before the taking and after the taking, Arkansas cases support the rule on opinion evidence of a property owner expressed in 20 Am. Jur., Evidence, § 892:

“It is generally recognized that the opinion testimony of the owner of property, because of his relationship as owner, is competent and admissible on the question of the value of such property, regardless of his knowledge of property values. It is not necessary to show that he was acquainted with the market value of such property or that he is an expert on values. He is deemed qualified by reason of his relationship as owner to give estimates of the value of what he owns. The weight of such testimony is, of course, affected by his knowledge of the value.”

See Arkansas State Highway Commission v. Russell, supra; Arkansas State Highway Commission v. Muswick Cigar & Beverage Co., 231 Ark. 265, 329 S. W. 2d 173; Jonesboro, Lake City & Eastern Railroad Company v. Ashabranner, 117 Ark. 317, 174 S. W. 548. Appellant’s contention is without merit. Appellee purchased this property during the 1930’s, lived on it, worked it, terraced it and otherwise improved it during the intervening years. As the owner he is clearly competent to express his opinion of the before and after value of his property.

Having thus determined that there was no error in the admissibility of the testimony of appellees’ value witnesses, we find no merit in appellant’s third point which questions the substantiality of evidence to support the verdict.

Affirmed.


author: Prank Holt, Justice.

text:
    Barrineau v. Brown
    5-3770
    401 S. W. 2d 30
    Opinion delivered April 4, 1966

      Smith, Williams, Friday & Bowen, By: William H. Bowen and Byron H. Eiseman, Jr., for appellant.

      Moses, McClellan, Arnold, Owen & McDermott, Milton H. McLees, E. H. Herrod, Catlett & Henderson, for appellee.
   Prank Holt, Justice.

By a declaratory judgment proceeding the appellant seeks to invalidate approximately $60,000.00 in gifts inter vivos allegedly made by Oddie M. Anderson, deceased, to the appellees. Prom a decree in favor of appellees comes this appeal.

Por reversal appellant first contends that the evidence is insufficient to support the chancellor’s finding of fact that the appellees have by ‘ ‘ clear and convincing evidence established that the gifts were valid and did not result from the violation of a confidential relationship.” Appellees do not dispute the existence of a confidential relationship. They accept the burden of proof that is required to overcome the presumption of invalidity of a gift when it stems from such a relationship. They assert that the gifts to them were not the product of a confidence betrayed or influence abused and, therefore, are valid gifts.

The appellant, a niece, is the closest living relative and principal beneficiary in the decedent’s will which contained numerous bequests including some to appellees. Each of the appellees was a close friend of the decedent for more than thirty years preceding her death. Appellee Brown, a stockbroker, had known Mrs. Anderson since the early 1930’s during which time he had sold her securities and advised her on the sale and purchase of securities. Sometimes she followed his recommendations and sometimes she rejected them. Appellee Loftin, a lawyer, performed some of the legal services she required during the thirty-three years he knew her as a close friend and never charged her for his services. These legal services appear to be trivial other than revising her will. Appellee Eastwood, 78 years of age, had been a close friend of Mrs. Anderson’s for about fifty years. When they became widows, many years ago, their friendship became closer and Mrs. Eastwood would often come from Warren to Little Rock to visit Mrs. Anderson in her home. Sometimes this visit would extend for a period of two or three weeks during which time they engaged in various social activities.

In November 1961 Mrs. Eastwood and Loftin were given a general power of attorney by Mrs. Anderson and each was properly authorized by her to have access to her safety deposit box in a local bank. In 1963 Mrs, Anderson gave Mrs. Eastwood $5,000.00 in stock as a Christmas present.

The gifts now in question were made by the decedent to the appellees on March 4, 1964 according to their evidence. The gifts were unexpected. Mrs. Eastwood had come to Little Rock for a visit at the written request of the decedent. On the evening of March 2, 1964 one of Mrs. Anderson’s nurses called appellee Brown and told him that Mrs. Anderson wanted to see him the following morning. When he arrived about 8:30 A.M. he found Mrs. Eastwood there. Appellee Loftin arrived shortly thereafter in response to a telephone call from Mrs. Anderson. Without knowing why their presence was desired, they waited Avhile the nurse served Mrs. Anderson’s breakfast since she was bedfast. She summoned them into her room and said she Avas sure they Avere Avondering what she wanted to see them about. She then told them that it was her desire to give her Arkansas Power and Light Company stock to Mrs. EastAvood and that she wanted Loftin and Brown to have other securities. She then directed Mrs. Eastwood and Brown to take the key to her safety deposit box and get these securities for her. They complied and left in the box a note signed by each of them designating the securities they were taking and by what authority. Appellee Loftin remained at the residence and during this time he inquired of her if she kneAV what she was doing. When appellees Brown and Eastwood returned he gave Mrs. Anderson three parcels, one containing the Arkansas Power and Light Company stock valued at $17,-000.00, one containing $21,000.00 in bonds, and another containing $22,000.00 in bonds. When Mrs. Anderson heard her sister-in-law, Mrs. Risor, in the house she asked them to leave and come back the next morning. Appellee Brown took the three parcels with him and locked them in his office that night. The next morning, on March 4th, the appellees again met at Mrs. Anderson’s house. Appellee Loftin asked: “Now, Oddie, is this what you Avant? ***' Have you made up your mind? Do you know what you are doing?” To which Mrs. Anderson again reiterated that it was her wish to make these gifts to them. Upon delivery of the gifts, Mrs. Anderson was quoted as saying: “I want you to take them, get out, and I don’t want to hear another word from you or anyone else about it.” Mrs. Anderson signed the Arkansas Power and Light Company certificates. A transfer of the other securities did not require her signature.

The appellant argues that the decedent’s age, partial paralysis, faulty vision and invalid condition when combined with appellees’ confidential relationship, the secrecy and size of the alleged gifts which are greatly in excess of the small bequests made to the appellees in her will require a finding that the gifts were not free and voluntary and, therefore, they are void. The gifts total approximately Z7Vz% of the estate.

It appears that Mrs. Anderson was 86 years of age. For about two years before her death Mrs. Anderson knew that she suffered from an inoperable and incurable degenerative process in the spinal cord probably due to softening from arteriosclerotic disease. This affected her ability to walk and at the time of the alleged gifts her lower extremities and left side were paralyzed. In December 1962 and January 1963 she spent 41 days in the hospital suffering from vertigo, a speech impairment, and inability to walk. About September 1963 she again was a hospital patient for about 15 days suffering from a cerebral vascular accident or stroke. On March 4, 1964, the date of the alleged gifts, she was bedfast and being partially paralyzed, required the constant attendance of a nurse. On May 28, 1964 she was taken to the hospital suffering from pneumonia and she died there the following October.

To corroborate their version of the validity of the gifts the appellees presented numerous disinterested witnesses. Lewis Block, Sr., a local realtor who had done business with Mrs. Anderson for approximately 35 years, was in her home on the same day the gifts were made. He was there at her request to discuss the sale of some of her property. According to him Mrs. Anderson’s mind was as keen as ever and she demonstrated her usual good business judgment. Mr. Block testified: £<Q. Did she tell you anything about her having made a disposition of some of her property recently? A. She did on the 4th of March. She said she had distributed, I believe is the word she used, some securities.” On that day he also observed the presence of the appellees. She asked him to secure certain information for her about the advisability of selling the property they were discussing. He complied and when he conferred with her a few days later she decided to reject the purchase offer.

Perhaps a Mrs. Cleveland was in a better position than anyone to testify concerning the matters involved in this case. She was a nurse in Mrs. Anderson’s home from August 1963 until Mrs. Anderson entered the hospital in May 1964 for her terminal illness. She was the nurse on duty at the time of the questioned gifts. She testified that Mrs. Anderson was mentally alert, could read to some extent, watched television, remembered telephone numbers and wrote her property ads. According to her the decedent held the Loftins in deep affection, “just dearly loved them,” and they were attentive to her personal needs. On the day of the alleged gifts Mrs. Anderson asked her to hurry and get her ready because she had asked the appellees to come to her house. Mrs. Anderson told her: “I planned on giving each of them a thousand dollars” but “Tiny, since I thought it over, they have done so much for me that would not be a drop in the bucket as far as what I really owe to them in gratitude.” Mrs. Anderson told her: “I am going to give them more than that.” But she never told her the amount. The nurse left the room after the appellees came in. After they left Mrs. Anderson told her: “It is the happiest moment of my life” and she cautioned her not to disclose her actions.

Mrs. Rockenbach, a cousin of Mrs. Anderson, testified that she had enjoyed a close relationship for many years with her, visiting with her at least twice a week after she became confined to her home. She said that her cousin had a very commanding personality and was a very resolute person; that Mrs. Anderson had given her small gifts through the years and in December 1963 she unexpectedly gave her and her husband two $1,000.00 bonds. According to her, Mrs. Anderson was mentally alert and not susceptible to being overreached. She testified that the appellees were very close friends of Mrs. Anderson and very attentive to her.

Mrs. Anderson’s cousin, Judge Nunn of the Fifth Judicial Circuit, Texarkana, Texas, testified that he was in her home the last of February or first of March and found her as rational and mentally alert as she had been through the years. He described her as follows: “She was a very strong-willed woman. *** I don’t know anyone that could dominate her. When she made up her mind, that was it.” His mother testified that she was in Mrs. Anderson’s home in the spring of 1964 and that she observed no difference in her usual mental ability. She described Mrs. Anderson as a self-willed woman who knew and managed her own affairs.

Others testifying included members of a prayer group in Mrs. Anderson’s church where she had been a member for many years. They visited Mrs. Anderson each month and found her very alert and knowledgeable in her conversations. They described Mrs. Anderson as one who had “a very strong mind of her own” who could not be easily influenced.

Mrs. Mays, who attended Mrs. Anderson as a practical nurse, cook and housekeeper, testified that Mrs. Anderson kept herself current on affairs, watched television and that her health seemed better in 1964 than in 1963. About the date of the questioned gifts, Mrs. Anderson told her: “Well, I have done something that made me happier than I have ever been. I have made a number of my friends happy.” However, she did not disclose to her what she had done.

A doctor testified that he had known Mrs. Anderson as a patient since 1956. He saw her about two months following the date of the gifts at which time he was impressed by her usual mental acuity. He described her as a dominant, driving personality whose soundness of mind was remarkable for a woman her age.

To establish the invalidity of the gifts the appellant testified that she lived in Dallas, Texas and tried to visit her aunt regularly each month in addition to the holidays and when she was critically ill; that her mother, Mrs. Risor, was very attentive to Mrs. Anderson; that her aunt could hardly sign checks because of her physical condition; that she was told by her aunt about the $2,000.00 gifts to the Rockenbaehs in December 1963, however, she had no knowledge of the questioned gifts until after her aunt’s demise and that these gifts were contrary to her aunt’s wishes; that her aunt established a joint bank account of approximately $2,-000.00 in their names in May 1964; that the appellees were among her aunt’s closest friends; that she knew of no abuse of her aunt’s confidence by appellees Eastwood and Brown; that appellee Loftin had unsuccessfully urged her aunt to sell some property; that her aunt was “a strong-willed woman” and when asked if this changed in the last few months before she entered the hospital in May 1964, she responded “somewhat” and that she was not as active as she once was, “I would say she was not as strong-willed as she had been before but usually she still pretty well knew what she wanted and what she wanted done.”

In support of her version the appellant presented several witnesses. Mrs. Robbins, who had lived as a neighbor to Mrs. Anderson for 15 years, testified that she was in almost daily contact with her. According to her Mrs. Anderson’s vision and speech were impaired, however, most of the time her mind was alert for a person her age; she was fond of her niece, the appellant; that her closest friends were Brown and Mrs. Eastwood; and that she was close-mouthed and had a dominant personality.

Mr. Reeves, Mrs. Anderson’s regular plumber, testified that she was a “sharp bargainer” and that in the spring of 1964 she did not appear to have her usual interest in her affairs; that the signatures on her checks that she gave him in 1964 were not as legible as before. However, he testified that Mrs. Anderson knew her property and its needs.

Areola Griffin, who did housework for Mrs. Anderson for 3 or 4 months in 1963 and the first part of 1964, testified that Mrs. Anderson’s vision was impaired; that she was bedfast and required constant attention; that she signed several rent receipts for Mrs. Anderson; that the appellant visited her aunt often; that Mrs. Anderson told her she was fond of appellant and her son and that she wanted them to have everything she had.

Mattie Guinn had lived with Mrs. Anderson from 1955 until September 1963 and after that continued to visit her frequently. She testified that Mrs. Anderson was helpless and not as mentally alert since becoming partially paralyzed; that it was necessary to read the paper to her; that she assisted her in issuing rental receipts for her property; that Mrs. Eastwood and the Loftins were some of Mrs. Anderson’s closest friends and that Mrs. Anderson loved her niece, the appellant. She described Mrs. Anderson as a strong-willed woman who was very conservative. Pearl Clayborn testified that she was a practical nurse with Mrs. Anderson most of the time beginning in June 1963 until the early part of 1964. She described Mrs. Anderson as being in poor condition physically and that sometimes she was mentally incapacitated. According to her, Mrs. Anderson wanted the appellant and her son to have all of her property.

There was evidence that since 1946 Mrs. Anderson had made a series of wills containing numerous bequests. In some of them, including the last one dated in March 1962, she made small bequests to appellees in comparison to the questioned gifts. There was some discrepancy in the testimony of the appellees with reference to the date the securities were removed from the safety deposit box and the date that Mrs. Anderson signed those requiring her signature.

In the very recent case of Stratton v. Corder, 236 Ark. 472, 366 S. W. 2d 894, we summarized the legal requirements of a valid gift inter vivos. There we said: “(a) the donor at the time must have been of sound mind; (b) must have actually delivered the subject matter of the gift to the donee; ((c) by such act must have intended to pass title thereto to the donee to take effect immediately; and (d) the donee must have actually accepted it as a gift.” A heavier burden of proof exists where there is a confidential relationship between the donor and donee. Young v. Barde, 194 Ark. 416, 108 S. W. 2d 495. There we said: “***The general rule is that where special trust and confidence exists between the parties to a deed, the gift to the party holding the dominant position is prima facie void.” See, also, Norton v. Norton, 227 Ark. 799, 302 S. W. 2d 78. Therefore, we closely scrutinize a gift under these circumstances and hold invalid a gift when it appears that the person in the dominant position has overreached the other. Hickerson v. Lyon, 229 Ark. 24, 312 S. W. 2d 930.

In the case at bar we are of the view that Mrs. Anderson was not under the dominance of any of the parties when these gifts were made. We agree with the chancellor’s finding:

“The Court finds that Mrs. Anderson, while suffering from a serious physical disability, was on the dates in question of sound mind, still exhibited the strong and dominant will which the witnesses agreed was an outstanding trait of her personality, and that she made the questioned gifts not as a result of any overreaching by the defendants but as a voluntary expression of appreciation to three favored friends, who had been faithful to her for more than twenty-five years. ’ ’

Therefore, we do not agree with appellant’s contention that the trial court erred in its analysis of the acts as applied to the law governing gifts inter vivos.

Appellant further contends that the “dead man’s statute,” Schedule § 2 of the Arkansas Constitution, barred the testimony of appellees since Loftin was named and had qualified as executor of decedent’s estate. The answer to this assertion is that the present action is not one by or against the executor of the estate. This action is a declaratory judgment proceeding in which Loftin is made a defendant as an individual and not in a representative capacity as executor. In fact, a special administrator was duly appointed and was serving during the pendency of this action.

Our well settled rule is that we do not reverse the findings of the chancellor unless against the preponderance of the evidence. In the case at bar we certainly cannot say that the chancellor’s findings are against the preponderance of the evidence.

Affirmed.


author: Osro Cobb, Justice.

text:
    Mullins v. State
    5159
    401 S. W. 2d 9
    Opinion delivered April 4, 1966

      Pryor & Barnes, for appellant.

      Bruce Bennett, Attorney General, Fletcher Jackson, Asst. Attorney General, for appellee.
   Osro Cobb, Justice.

Appellant, a Negro minister, was tried and convicted on the charge of murder in the second degree. The criminal information charged that one Barbara Kendricks, also a Negro, expired in the course of and as a result of an attempt by appellant to perform an unlawful and felonious abortion upon her.

The jury returned a verdict finding appellant guilty as charged and assessing the punishment at seven years imprisonment in the state penitentiary.

A motion for new trial ivas seasonably filed. The court denied the motion and sentenced appellant in accordance with the verdict of the jury and at the same time set an appeal bond in the sum of $2,500.

All questions raised on this appeal relate to the procurement and introduction into evidence of a written confession by appellant.

We quote from Act 489 of 1965, which now appears as Ark. Stat. Ann. § 43-2105 (Supp. 1965):

“Issues of fact shall be tried by a jury, provided that the determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; that the trial court shall hear the evidence concerning the admissibility and the voluntariness of the confession out of the presence of the jury and it shall be the court’s duty before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily. ’ ’

Appellant seasonably raised the issue of admissibility of his purported confession and the trial court conducted an extensive hearing in chambers on the issue as provided by Act 489, supra. In said hearing appellant testified as did the officers who were present when the confession was purportedly made and reduced to writing. At the conclusion of the hearing in chambers the court made the following ruling:

(a) That the confession of the accused had been taken and accepted and reduced to writing by Sgt. Odis A. Henley of the State Police and had been signed by the accused.
(b) That said confession had been voluntarily given by the accused and secured by the officers without coercion, threats or abuse and without enticements or inducements for the execution of same.
(c) That the accused, prior to said confession, had been fully apprised of his constitutional rights, that statements made by him could be used against him, and that he had a right to refuse to make any statement.
(d) That the accused was informed of his right to have an attorney but refused same.
(e) That for the reasons set forth in (a) through (d) above, the confession of the accused was held to be admissible in evidence.

Appellant’s confession was thereafter introduced into evidence and read to the jury. Said confession, omitting details as to the use of the catheter, follows:

“January 20, 1965
“Camden, Ark.
“Ouachitá Co.
“Sheriff office.
“I, Arthur J. Mullins, 447 Newton St. Camden, Ark. make this statement to Sgt. O. A. Henley of the Ark. State Police of my own free will & accord without any promises, or threats. On Monday January 18, 1965, I was at my house and the phone rang. I answered it and a girl said she was Bobby Kendrix, Joe Green daughter, and she told me she was in a family way and wanted me to help her out. I asked her how she know I could help her, she said someone had told her. I told her I could not help her. She phone me three or four times Monday, each time she called she said she would pay me, but never did say how much,—each time I told her I could not help her,—then on Tuesday morning Jan. 19, 1965, around 9:20 A.M. I came back to the house and the phone rang and it was Bobby. She said she had been calling me but couldn’t get me. I told her I didn’t have anything to do it with and she told me she had a catheter. I told her I still wouldn’t do it. She hung up, then in about 10 or 15 minutes later she call me back, and she said if she come over right quite [sic] would I do it. I told her no,—then she told me to drive over on Truman Road N/W and pick her- up and that she would get back herself. I drove over to Truman Road in my 1962 Green Chev. and she was walking on Truman Road. I stopped and picked her up. I drove her to Scott Alley on Washington Street. She got out of my car. I drove around the block and then picked her up on Jefferson & Adams Street, then I drove south on Adams Street then turned East onto Newton Street. I let her out of my car by the Hunter Scrap yard. I drove on to my house. I got out and went into my house. She walked to my house, around to the back door. She came into the back door into the room. She gave me the catheter.... I took the catheter ... then she said she was getting sick... She raised up on the couch and said her head was about to burst open, then she fell over on the couch.... I check her and she was dead. I called Doctor R. C. Lewis, a color [sic] doctor. He come to my house in about 10 or 15 minutes. He checked her and said she was dead. I told the doctor she said she was sick and that her head was hurting. The doctor told me to call the Coroner. I asked the doctor Avho the coroner Avas, and he told me Doctor Pruitt. Doctor LeAvis left and I called Doctor Pruitt. He told me to- call the ambulance and that he would check with Doctor Lewis. Ben Williams ambulance came and picked Bobby up, and took her to the funeral home. Then I got in my car and drove to the paper mill and told her father, Joe Green, that Bobby had died in my house. Alvin Gordon went with me. We left the paper mill and I drove Alvin Gordon back to his house then I went back to my house, then I got the catheter I -used and wrapped it up in some paper and went out in my back yard to my trash barrel and burnt it up.
“This statement is the truth to the best of my knowledge.
“Arthur J. Mullins.”

When the state rested the defense made no motion for a directed verdict and instead called Chief of Police G. D. Cole to testify for the defense. In the course of the examination of Cole, the defense brought out the death of the victim and other facts relating directly to the commission of the crime for which appellant Avas upon trial. This testimony reflected that the father of the victim had reported to Cole his suspicions of foul play in the death of his daughter and requested an investigation, and that in carrying out a search warrant as to appellant’s premises, Cole found “a kit containing some long needles, syringes and things like that.”

Chief Cole further testified that on his first visit to Mullins’ residence, Mullins invited him in and was observed on his hands and knees scrubbing the floor of the room where the victim had died and that there was a strong odor of Clorox.

Thus, when the case went to the jury, adequate evidence had been placed before the jury to support the verdict which it returned, assuming, of course, that the trial court had committed no error in admitting the confession of appellant in evidence.

Sgt. Odis A. Henley testified that the defendant was advised that he did not have to make a statement; that he was entitled to a lawyer; that he was entitled to his constitutional rights; that anything he said would be used against him in court; and that there were no promises of reward made to the defendant to induce him to make a statement. According to Henley, Mullins replied that he did not want counsel and that he was a man of the cloth and wanted to tell “about it and get it off his conscience.” The testimony of Sheriff Linebarrier supports that of Sgt. Henley. The Sheriff also testified that there were no threats of violence made as to the defendant and that the statement was of Mullins’ own free will and accord.

Against the above testimony of the state witnesses appellant testified in the hearing in chambers (a) that he was not advised of his right to an attorney; (b) that he had not been advised of his right to refuse to make a statement; and (c) that he was in fact led to believe that the statement he was induced to make would not be used against him. Appellant was not asked whether he personally knew about his constitutional rights. Chief Cole was called as a witness for the defense and contradicted the testimony of appellant as to his claiming to have been promised that his statement would not be used against him.

Counsel for appellant urges in his brief that appellant was subjected to three and a half hours of interrogation before signing the confession. This is not supported in the record. The officers testified that it took approximately one and one half hours. When appellant was asked about the time element, he said he did not know and therefore gave no support to this contention.

When the officers picked up appellant at the County Workshop on the day of his purported confession and took him to his residence to carry out a search pursuant to a valid search warrant, appellant fainted and was out for two or three minutes and was revived when Chief Cole placed some cold towels upon his head. Appellant testified that he had suffered a small heart attack in the past and had been attended by two local physicians, hut following the fainting episode he made no request for an examination or treatment by a doctor. It was some two hours later that appellant signed the purported confession.

Officers Henley and Linebarrier were in position to observe appellant during all of the time here in question and they testified that appellant appeared normal and in full possession of his faculties. Furthermore, appellant’s signed statement of the facts has the ring of truth. It treats with facts and circumstances which could hardly have been conjured up by anyone except a principal to the crime itself.

The ultimate purpose of any criminal trial is to discover the truth as to the guilt or innocence of the accused. Of course, this result should be obtained without violating any constitutional right of the accused. We should remember, however, that in such proceedings the rights of the accused are not the only rights involved. The law abiding citizens also have rights as to enforcement of our criminal laws and in seeing that their lives and property are not placed in jeopardy by freeing guilty criminals to resume their depredations. Trials, therefore, must encompass all reasonable safeguards in the ends of justice. Furthermore, a sensible balance must be maintained between the conflicting interests of the public and of the accused.

In recent years there has been an appalling increase in crime and in crimes of violence in particular. The threat of crime now casts its ugly and ominous shadow over the daily lives of all of our people. This alarming spread of crime lias been significantly coincident with the recent trend in the courts to emphasize technicalities rather than substance as to guilt or innocence in criminal prosecutions. This trend has been particularly noticeable with reference to apprehensions and efforts of peace officers to obtain factual solutions of the crimes under investigation. Companion to this new judicial attitude of expanded consideration for the accused has been the emergence of an unwarranted cloud of suspicion as to the integrity and dedication of peace officers in the performance of their duties. Their task of apprehending criminals and enforcing the law is both difficult and dangerous. A shocking number of law enforcement officers give their lives every year in line of duty. We rely upon our peace officers to protect all of. the precious personal and property rights of our people and we should likewise rely upon them to give truthful testimony when testifying under oath, absent proof of personal animus or bias as to the accused.

All of appellant’s contentions as to the confession, including the advisement of his right to counsel, were examined by the trial court in its hearing in chambers. The conflicting testimony between appellant and the officers made a question of fact to be decided by the court pursuant to Act 489 of 1965. The court made a finding adverse to appellant and admitted appellant’s confession in evidence. We have concluded that there is substantial evidence in the record to support the trial court’s determination and said determination will not be disturbed here on appeal. Brown v. State, 239 Ark. 909, 39 S. W. 2d 344 (1965); Vaughan v. State, 169 Ark. 1212, 277 S. W. 866 (1925); Williams v. State, 63 Ark. 527, 39 S. W. 709 (1897). See also, Wright v. U. S. 159 F. 2d 8 (1944).

Having found that the contentions of appellant are without merit, the judgment of the trial court is affirmed.


text:
    Shearer v. Morgan
    5-3837
    401 S. W. 2d 21
    Opinion delivered April 4, 1966

      Willimis & Gardner, for appellant.

      Gordon & Gordon, Gannaivay & Barrow, for appellee.
   Osro Cobb, Justice.

This case involves two closely related motor vehicle collisions which occurred on January 3, 1965, at a point near the west end of Point Remove Creek Bridge on Highway 64, some two miles west of Morrilton. The collisions occurred after it had become dusky dark, with traffic in both directions using headlights.

Appellee Emmitt Brown was driving his passenger car east. He testified that the ear immediately in front of him (driver unidentified) braked and fish-tailed to the right side to the road, and that he reacted by applying his brakes to keep from hitting said car. The car in front of Brown, however, swerved back to the left and continued on east. Brown had not regained his speed when he was struck from the rear by a car driven by appellee Larry E. Woods. Both cars were slightly damaged but were not rendered inoperable. Brown and Woods got out of their vehicles and decided to leave the two cars, which admittedly blocked the entire eastbound lane of traffic, until the police could arrive and investigate.

Shortly after the collision involving Brown and Woods, the truck of appellant, Melton Truck Lines, Inc., driven by Dan Shearer, also an appellant, carrying a load of approximately 66,000 pounds, approached the bridge driving west. In the meantime appellee Brown had walked across the bridge, some 200 feet, and was waving a white handkerchief to warn westbound traffic. Appellant Shearer, driver of appellant’s truck, either did not see Mr. Brown waving the handkerchief, if he was doing so, or if he did see him waving the handkerchief, failed to heed the warning and slow down.

Highway 64 is one of the main arteries of traffic in Arkansas, and a line of eastbound traffic rapidly built up behind the Brown and Woods cars. Some such cars swung out around the two parked cars and proceeded on east. Appellees Bill Ed Morgan and his wife, Shirley Morgan, were in their car and proceeding east and were likewise attempting to go around the two vehicles blocking their lane of traffic. A head-on collision with appellant’s truck occurred in the west lane of traffic, re-suiting in personal injuries and property damages to the Morgans. ^ ■ •

The Morgans, appellees, brought suit against the Melton Truck Lines, Inc., Dan Shearer, the driver of the truck, and against Emmitt Brown and Larry E. Woods, alleging that all of said parties were guilty of negligent acts, próximately causing or contributing to their injuries and damages.

At the conclusion of all of the evidence, the trial court, over the objections of appellants and appellees Bill Ed Morgan and Shirley Morgan, directed a verdict in favor of appellees Brown and Woods. The jury thereafter returned verdicts against appellants Shearer and Melton Truck Lines, Inc., and judgments were entered thereon.

Appellants are here on appeal urging five points for reversal of the judgment entered against them:

(1) That the court erred in directing a verdict for defendants Brown and Woods.
(2) That the court erred in giving an instruction ■oh punitive damages and in submitting a form of verdict on punitive damages.
(3) That the court erred in refusing to submit the the case to the jury on special interrogatories.
(4) That there was no substantial evidence offered to.support a verdict for appellee Bill Ed Morgan.
,(.5) That the verdicts rendered were excessive.

Point 1—The directed verdict for appellees Emmitt Brown and Larry E. Woods.

It is the long-established rule of this court that, in determining the correctness of the trial court’s action in directing a-verdict for either party, we must take that view of the evidence which is most favorable to the party against whom- the verdict is directed; and, if there is any substantial evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error for the court to take the case from the jury. Smith v. McEachin, 186 Ark. 1132, 57 S. W. 2d 1043 (1933). Barrentine v. Henry Wrape Co., 120 Ark. 206, 179 S. W. 328 (1915). In the Smith case, supra, we said,

“”*In testing whether or not there is any substantial evidence in a given case; ■ the evidence and all reasonable inferences deducible therefrom should be-viewed in the light most favorable to the party against whom the verdict is directed, and, if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict.”

In Huffman Wholesale Supply Co. v. Terry, 240 Ark. 399 (March 7, 1966), we reaffirmed our position with reference to appellate review of directed verdicts.

Ark. Stat. Ann. § 75-647 (Supp. Í965) provides as follows:

‘ ‘ Stopping, standing or parking outside of business or residence district.—-(a) Upon any highway outside of a business or residence district no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park, or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the• highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of 200 feet in each direction upon such highway, (b) This section shall hot apply to the driver' of any vehicle which is disabled while on the paved or main traveled portion of a highway in snch manner and to snch extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position.” (Italics ours.)

Appellee Woods testified:

“Q. Was your car in driving condition after you ran into the back of Mr. Brown’s car?
A. Yes.
Q. Could you have driven it on without any trouble?
A. I could have driven it.
Q. Could you have backed it up onto the shoulder of the road just west of the bridge?
A. I could have.
Q. Could you have driven it forward across the bridge and parked it on the shoulder on the other side of the bridge?
A. Yes.
Q. Could Mr. Brown have done either one of those things ?
A. Yes.
Q. You could have driven them on up to Morrilton, could you not?
A. Yes.”

Appellee Brown testified:

‘ ‘ Q. Was there any reason after Woods had hit you that you couldn’t have moved your car?
A. No, Sir.
Q. You did drive it on to Pine Bluff that night, did you not?
A. Yes, sir, I did.
Q. And without having any repairs done to it at all?
A. Yes, sir.
Q. It was drivable at the moment?
A. Yes, sir.”

There is no question that multiple factors were involved in causing or contributing to the second collision. The precise question before us as to the directed verdicts in this case is whether the actions of appellees Brown and Woods, in leaving their cars in a position to totally block the east-bound traffic, were such actions upon which reasonable-minded men might reach the conclusion from all of the evidence in the case that Brown and Woods were guilty of negligence which proximately caused or contributed to the cause of the second collision.

Brown and Woods both admitted that they could have moved their vehicles without difficulty and it is clear that, had they done so, freeing both lanes of traffic, there would have been no' reason for Morgan to be .cutting his car to the left lane where the head-on collision occurred with appellant’s truck. Of course, had Morgan not turned into the left lane, appellant’s truck could have passed without the collision; and, had appellant’s driver observed and obeyed the handkerchief warning alleged to have been given by Brown, the truck might have been slowed down in time to permit Morgan to pass the parked vehicles and regain his proper lane of traffic before the truck reached him. It appears to us that any tenable theory as to the cause or causes of the second collision must be directly related to the blocking of the east-bound traffic lane by the vehicles of Woods and Brown as a necessary and vital link in the chain of events resulting in said second collision. Furthermore appellee Brown obviously realized that the leaving of the cars blocking the east-bound lane of traffic created a serious traffic hazard—otherwise he would not have gone to the east end of the bridge to wave a handkerchief to -warn such traffic.

We have reached the conclusion that the acts of appehees Brown and Woods, in deliberately leaving their vehicles in such a position as to block the entire east lane of traffic on this main artery highway at dusky dark, upon a bridge and in violation of a statutory duty to remove, game, had-a definite and indispensable part in the occurrence of the second collision, and that reasonable-minded men might conclude from the..acts-of Brown and Woods that same constituted actionable negligence, proximately causing or contributing to the cause of- the second collision, and that a fact question was made as to their negligence, if any, for determination by-the jury. The directed verdicts denied the Morgans this right, and we have concluded that the whole ease must be retried. . ■ .

Point 2-—-The instruction given by the court on punitive damages.

Since we are reversing this case for a complete new trial, we only briefly discuss .the other points raised on this appeal. There was no evidence offered in the case to indicate malice,. wilfulness, or wanton disregard of .the rights and safety of others by any of the parties involved in the two related collisions, and the giving of the instruction on punitive damages was highly improper. Texarkana Gas and Light Co. v. Orr, 59 Ark. 215, 27 S. W. 66 (1894). See cases cited under A.M.I. 2217 (1965). ■ • •

Point 3—The denial of special interrogatories.

We have consistently held that the question of submitting special interroatories to a jury is within the sound discretion of the trial court. Missouri Pacific Transportation Co. v. Parker, 200 Ark. 620, 140 S. W. 2d 997 (1940). We find no error on the part of the trial court in refusing to submit special interrogatories requested in this case.

Points 4 and 5—

Since the case is to he completely retried, we find no necessity to discuss evidence in support of the verdicts rendered or to discuss the claim that the verdicts are excessive.

The judgment of the lower court is reversed and cause is remanded for a new trial.

       Wheaton Van Lines, Inc. v. Williams, 240 Ark. 280 (Feb. 14, 1966), is a joint tort-feasor action involving- many of the factual aspects of the instant case. Said case may be of assistance in the retrial of this ease as to instructions, verdicts, and contributions by the joint tort-feasors against whom verdicts may be entered. See AMI. 2111 (1965). •
      See also Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797 (1949).


author: Carleton Harris, Chief Justice.

text:
    Downs v. City of Little Rock
    5-3842
    401 S. W. 2d 210
    Opinion delivered April 11, 1966

      Lester & Shults, for appellant.

      Joseph G. Kemp, City Attorney, By Perry V. Whit-more, Asst. City Attorney, for appellee.
   Carleton Harris, Chief Justice.

This is a zoning-case. Dr. John W. Downs and Dr. G-. Grimsley Graham, plaintiffs in the court below, and Lowery Dunn and Maye L. Dunn, interveners below, filed a petition with the Little Rock Planning Commission, wherein they sought to have two lots (Lots 12 and 13, Block 7, Elmhurst Addition to the City of Little Rock, Lot 13 lying at the northwest corner of Beechwood Road and West Markham Street) rezoned. The lots are platted to lie 140 feet on West Markham Street and 100 feet on Beechwood Road, and are presently zoned as ££B” Residential District. Appellants desire to have the property rezoned to “E-l” Quiet Business District. These parties have entered into a contract to sell the property to Dr. S. W. Boellner, subject to the rezoning, and Dr. Boellner desires to construct a doctors’ clinic for two offices, with parking spaces for sixteen cars, on the two lots. The city of Little Rock refused a petition to rezone the property as requested, and Downs and Graham instituted suit in the Chancery Court of Pulaski County, wherein they sought to enjoin the city and its officials from interfering with appellants’ use of these lands for purposes authorized by an £‘E-1” Quiet Business District zoning-classification. On trial, the court refused to grant the relief and dismissed the complaint. For reversal, appellants rely upon a single point, vis, £ £ The Chancery Court erred in its finding that the refusal of the city of Little Rock to rezone the property £E-1’ Quiet Business District was not arbitrary.”

The proof reflects that Lot 13 is approximately 50 feet by 140 feet, and a three bedroom house occupies the property. The house originally rented for $110.00 a month, but at the present time is renting for $75.00 a month. Dr. Downs testified that it was necessary .to lower the rent in order to keep the property occupied, since it was undesirable, principally because of traffic conditions on Markham Street. All property west, between Beechwood and Jackson Streets (a distance of four blocks) is residential, and the property east of Beechwood is classified as residential for one block. Actually, some advertising signs appear in this block, but this is a non-conforming use. Between Ash and Walnut (one block farther east) the property adjacent to Markham is zoned as “D” Apartments; the next block (Walnut to Rose) is “E-l” Quiet Business, and Rose to Elm is zoned “F” Commercial. Evidence was offered that the latest traffic count on West Markham, taken 100 feet west of Beechwood, reflected west bound traffic of 11,338 vehicles per 24 hour period, and east bound traffic of 11,055 vehicles for the same period. It is pointed out that this is more than double the traffic on Broadway near Fourteenth Street. The proof reflected that Peck’s Drive-In is located at the northeast corner of Ash and Markham; however, this is also a non-conforming use. Testimony was offered that the Federal Housing Administration refused to insure a loan on property located at 4938 West Markham because of the fact that the marketability of the property was “too adversely affected by commercial encroachment, fast, heavy traffic, and dangerous vehicular entrance and exit from property to warrant mortgage insurance.” It is argued that the proposed office building offers a proper buffer between heavily traveled West Markham Street and the residential area lying north of the property. Appellants contend that the overwhelming weight of the testimony establishes that the lots in question are no longer suitable or desirable for residential purposes, and that the Chancery Court erred in holding that the city of Little Bock was not arbitrary in refusing to change the zoning classification.

Three residents of the area ([Elmhurst Addition) testified that they objected to the granting of the petition, principally because they felt that it was an opening wedge that would eventually result in the property in the area becoming classified as commercial property. The city further offered evidence that the granting of the petition would adversely affect the other property owners in the near vicinity, i.e., rezoning the particular property in question would have an adverse effect on the area north which is all residential for at least 600 feet.

We are unable to say that the court erred in refusing to grant appellants relief. It may -well be true that the best use for these particular lots, and the most remunerative to the owners, is for a doctors’ office building or clinic. It is also true that property bordering a heavily traveled street is not the most ideal location for a residence, but these are not the only facts to be considered. The composition of the entire area must be taken into consideration, and it is undisputed that both the area to the west of Beechwood for several blocks, and the area north of Markham and Beechwood for a similar distance are completely residential. The benefit to a few individuals cannot be allowed to override the best interests of the residents of the overall area. The Planning 'Commission has apparently spent long hours in rezoning property in the city of Little Bock with the view of establishing a long-range program, one that will best fit the needs of an expanding city in future years.

Appellants point to our decisions in' the cases of City of Little Rock v. Andres, 237 Ark. 658, 375 S. W. 2d 370, and City of Little Rock v. Gardner, 239 Ark. 54, 386 S. W. 2d 923, where we approved rezoning of certain property on Broadway, ,and they assert that there is just as much reason to approve rezoning the property in question as there was to approve the rezoning of the property in those cases. Offhand, it is at once obvious that there are two distinct differences in these situations. In the first place, we affirmed the holding of the Chancery Court in those cases, i.e., we held that the court’s finding that the city of Little Rock acted arbitrarily in denying the ■ petitions for rezoning, was not against the preponderance of the evidence. Perhaps a more important reason is pointed out in the opinion in City of Little Rock v. Andres, supra, where we said:-

“As Broadway changed from a residential' street to an important commercial thoroughfare, property adjoining-the street became progressively undesirable as a family district. Those who built the fine homes originally have moved from the street to other sections of the city. Some of the old homes have become rooming houses; some of the owners of property on the street testified that they cannot get satisfactory tenants who will pay the rent; other houses are vacant and becoming uninhabitable; some have been condemned. ’ ’

Here, of course, the Chancery Court held that the action of the city of Little Rock was not arbitrary, and to grant the relief sought by appellants, it would be necessary for us to say that this finding was against the preponderance of the evidence. This, we are unable to do. Furthermore, the homes composing the residential area in this case are not being allowed to deteriorate, nor is there any evidence that the houses are becoming vacant, uninhabitable, or have been condemned. Though, from the testimony, it appears that most of the homes are in the moderate price range, Elmhurst Addition has maintained its residential character.

It should also be borne in mind that there are no alleys in the affected vicinity, north of the property involved, which could serve as a buffer between the nonresidential use sought and the residential area which lies north of these lots. The situation here is thus contrary to that in City of Little Rock v. McKenzie, 239 Ark. 9, 386 S. W. 2d 697.

Probably, it would be most difficult to determine petitions for rezoning in any of the old additions without encountering individual cases of hardship, but the line must be drawn at some point. If this property were rezoned, where would the rezoning end? If these two lots are to be placed in a different category than “B” Residential District, why should not the lot just north of Lot 12 be placed in the same category—and so on ad infinitum ?

In accord with what has been said, we are unable, under the present facts and circumstances, to say that the Chancellor’s findings were against the preponderance of the evidence.

Affirmed.

       Downs and Graham own Lot 13. Lowery Dunn and wife, owners of Lot 12, together with Dr. Sam W. Boellner, intervened, seeking the same relief.

      This term denotes that outdoor signs were being placed on the property before the zoning ordinance was passed, and were therefore not affected.

      This property is apparently located between Monroe and Jackson Streets, approximately two and one-half to three blocks away from the -property in question, though it is spoken of in • the brief as being one block away. This difference in distance is immaterial in reaching a decision in this litigation.


author: Ed. F. MoFaddin, Justice.

text:
    Worth James v. P. B. Price Construction Co.
    5-3808
    401 S. W. 2d 206
    Opinion delivered April 11, 1966

      Smith, Williams, Friday & Bowen, By: Herschel FL. Friday and James W. Moore, for appellant.

      Catlett & Henderson, for appellee.
   Ed. F. MoFaddin, Justice.

This is an action brought by appellee for balance claimed due on a contract. Just what was the contract between the parties, is the main point of dispute.

Appellant, Worth James (doing business as Worth James Construction Company) obtained a contract to lay certain sewer lines for Base Line Sewer District, and then subcontracted a portion of the work to appellee, Price Construction Company, an Arkansas corporation. After the final completion of the work, Price Construction Company (hereinafter called “Price”) filed this action against Worth James for $19,153.89 as balance claimed due under the contract. The defense was that the items sued for were not covered by any contract. Trial to a jury resulted in a verdict and judgment for appellee, Price, for $12,963.43; and this appeal ensued. Appellant lists four points, which we will consolidate into two topics.

I.

In his first point appellant insists that he was entitled to an instructed verdict at the close of all the evidence; and this requires a summary of the evidence.

On January 23, 1963 Worth James entered into a contract with Base Line Sewer Improvement District, whereby Worth James was to construct sanitary sewer outfalls and interceptors and appurtenances for the Sewer District, according to detailed plans and specifications. It was required that Worth James would cut the pavements or surface levels in existing streets and highways, lay the sewer lines, backfill and tamp the trenches, and replace the pavement. We copy a portion of the specifications in this regard, as required of Worth James:

“It is the intent of this specification that the Contractor shall be responsible for all settlement of backfill in trenches occasioned by the work covered herein. He shall refill trenches as often as necessary to bring them back to original grade and during the period when settlement is occurring, shall refill them frequently enough to maintain traffic without hazard at all times .... ”

Worth James furnished to appellee, Price, a copy of the specifications and then subcontracted to Price the cutting of the streets and the replacing of the pavement, roads, and highways, to be done after Worth James had laid the sewer lines and tamped the dirt in the trenches to proper level. That Price did the work • efficiently seems to be admitted. Price urges that by the contract it was to be paid its actual cost for any subsequent refilling after the first pavement work, when such- refilling was caused by a subsequent settlement of the trench that Worth James had tamped. Worth James deniés that Price was to be compensated for any subsequent refillings. "• '

As aforesaid, the real question is what was the contract between Worth James and Price. Since the jury verdict was in favor of the appellee we detail the evidence in the light most favorable to the appellee. N.Y. Life Ins. Co. v. Weeks, 201 Ark. 1160, 148 S. W. 2d 330; Peoples Loan Co. v. Whittle, 205 Ark. 35, 166 S. W. 2d 1013; and Crown Coach Co. v. Whittakee, 208 Ark. 535, 186 S. W. 2d 940.

Í. Mr. P. B. Price, President of Price Construction Company, testified that in January Í963 he prepared a pencilled letter on yellow paper to Worth James, giving the offer of Price for performing the subcontract. That pencilled letter is in the transcript and contains these significant paragraphs: '

“It is further understood that in the event of settlement or shrinkage of the fill under any. cut we • will be compensated for ..the additional " base. materials and/or surface materials.
“We also agree to carry all forms of insurance and will provide certificates of such.”

2. - Worth. James held the Price letter for -some time, .and on May 24th Price caused the said- letter to be written on Price stationery and submitted it to Worth James for signing. Mr. Price testified that Worth James did not sign the May 24th -letter, as submitted; and that on or about September 23, 1963 Price and Worth James had a conversation in which Worth James stated that he could not agree to the May 24th letter with the above quoted paragraphs in it; and Worth James rewrote the letter, and used this language in lieu of that previously copied:

“We also agree to carry all forms of insurance, and will provide certificates of such. We agree to furnish performance and payment bond as provided for under the terms of the contract. Also maintenance bond as required by the City of Little Rock. ’ ’

3. Mr. Price testified that he told Worth James that he could not agree to said letter that Worth James submitted on September 23, 1963; and that he told Worth James that he would take the Worth James letter back to his office and write a supplement to it and then would sign the Worth James letter with the supplement. Mr. Price then wrote Worth James, under date of September 30, 1963, this letter:

“Worth James Construction Company
3312 Pair Park Boulevard
Little Rock, Arkansas
Re: Base Line Sewer District No. 201 (WPC-Ark-107)
“Gentlemen:
“We are returning herewith signed contract in duplicate for street repairs under your above captioned contract.
“These agreements have been executed after our discussion of them today at your office, when paragraph three on page 2 (which reads, ‘We also agree to carry . . . . ’ was further clarified, Viz: “1. Instead of providing a performance and payment bond to you, you are to deduct the cost of the bond from our estimates based on the gross amount of said estimates.
“2. You are to furnish maintenance bond to the City of Little Roclc and this supplement is to guarantee our work against failure due to workmanship or materials. Any failures due to settlement is to be- repaired at your expense and we hereby agree to perform such work for you at our actual cost. The Engineer’s decision as to settlement or failure due to faulty workmanship or material shall prevail.
“Yours very truly,
P. B. PRICE CONSTRUCTION CO.
P. B. Price, President.”

4. The above letter accompanied the letter which Worth James had prepared. Price contends that the said September 30th letter was a part of the contract. Worth James admits receiving the letter dated September 30th; but claims that he paid no attention to it because he had never agreed to its terms and that he was all the time working only under the letter that he had 'submitted to Price on September 23, 1963.

Thus, the question is whether the contract between the parties was that submitted by Worth James on September 23rd; or whether the contract between the parties was the Worth James letter of September 23rd, PLUS the Price letter of September 30th. That contracts can be made by correspondence is recognized in our opinions. Hart v. Hammett Groc. Co., 132 Ark. 197, 200 S. W. 795; Moro Supply Co. v. Griffis Co., 142 Ark. 231, 218 S. W. 370; Proctor & Gamble v. Goff, 159 Ark. 292, 251 S. W. 876; Mechanics Lbr. Co. v. Yates, 181 Ark. 415, 26 S. W. 2d 80; and Donaghey v. Remmel, 183 Ark. 67, 34 S. W. 2d 1085.

Furthermore, that a party, by knowingly accepting the benefits of a proposed contract, is bound by its terms, is likewise recognized in our cases. Blake v. Scott, 92 Ark. 46, 121 S. W. 1054. We hold that a question of fact was made for the jury as to what was the contract between the parties. The fact that Worth James never agreed—in the September 23rd conversation—to what is contained in the September 30th letter, is not a sufficient defense; also the fact that Worth James says he did not sign anything agreeing to Price’s letter of September 30th, is not a sufficient defense. If Worth James, knowing of the letter of September 30th, accepted the benefits of refilling the sunken trenches, all the time knowing that Price had stated that it was to receive its actual expenses, then Worth James would be bound. It is textbook law that an offer may be accepted by conduct; and whether Worth James accepted by conduct the provisions of the Price letter of September 30th, was a question of fact for the jury. Such was the effect of our holding in the case of Blake v. Scott, 92 Ark. 46, 121 S. W. 1054. In that case, Blake built a sidewalk and curb for Scott, who refused to pay for the curb, claiming he had contracted only for a sidewalk. Blake sued for the building of the curb. In holding Scott liable for the building of the curb, this Court said:

“When a contract is entered into, it is either express in its terms or its terms may be implied from the acts, conduct and express words of the contract. To form the agreement of the parties, it is essential that there should be a distinct intention that is common to both. But the intention of the parties need not be express; it may be implied from the acts and words used, and the law will impute to the parties an intention which the meaning of their words and acts reasonably import.....
“The defendant Blake requested him to build the sidewalk, without specifically mentioning the curb or wall; and when, in pursuance of that request, the plaintiff began the work by starting on the curb, the defendant stood by and saw the work of building the curb proceed. He must have known that plaintiff was only doing that work at his request and at the request of and by the direction of no other person or party.”
We find no merit in the appellant’s first point.

II.

Appellant’s three remaining points relate to the ruling of the Trial Court in regard to instructions. It would serve no useful purpose to copy the instructions and discuss them. It is sufficient to say that we find no error in the rulings of the Court in regard to these instructions.

Affirmed.

      The emphasis is our own to direct attention to the real issue before us.


author: George Rose Smith, Justice.

text:
    Fye v. Tubbs
    5-3850
    401 S. W. 2d 752
    Opinion delivered April 11, 1966
    [Rehearing denied May 16, 1966.]

      Wilton E. Steed, for appellant.

      Reinberger, Eilbott, Smith & Staten, for appellee.
   George Rose Smith, Justice.

This is a child custody dispute. Orville Tubbs, the appellee, obtained a divorce in October, 1962, for personal indignities. The oldest of the couple’s four children was then eight years of age. The decree gave the custody of all four children to their mother during the nine months of the school year and to their father during the three summer months. After the divorce both parties remarried. Since 1964 the appellant has lived in Port Huron, Michigan, with her husband, Charles Fye. The appellee and his wife live in Pine Bluff.

In July, 1965, while the children were with their father in Arkansas, he filed the present petition for a change of custody. When the matter was presented to the court in August Judge Dawson, who had presided in the original case, ivas ill. To accommodate the litigants the other chancellor for the district, Judge Morrison, heard the testimony on the motion for a change of custody. At the end of the hearing Judge Morrison, after expressing his reluctance to pass upon a matter originally assigned to Judge Dawson, announced that he was not making a final decision. Instead, he entered a temporary order extending the father’s summer custody for an additional nine months and postponing a final determination, by one chancellor or the other, until the end of the ensuing school year. That order, although in form temporary, is appealable. Wood v. Wood, 226 Ark. 52, 287 S. W. 2d 902 (1956).

At the hearing in the court below both parties developed their testimony fully. More than a dozen witnesses testified. There is no reason to think that a second hearing is needed. It is appropriate for us to try the matter de novo, as is our practice in equity, and reach, a decision upon the merits.

The appellee’s proof falls decidedly short of establishing either the mother’s unfitness to have the care of her children or such a change in conditions as to call for a modification of the original decree. Most of the testimony involves trivialities. Tubbs and his present wife state that when they picked up the children in June the children were wearing faded clothes and worn-out tennis shoes. The Tubbses complain that the Fyes ’ home in Michigan was untidy, with dirty dishes in the kitchen at ten o’clock in the morning. Their principal supporting witnesses are Tubbs’s sister and brother-in-law, who lived with the Fyes in Michigan for several months. We are not impressed by these witnesses’ criticism of conditions in the Fye home, for both of them continued to live there, apparently rent-free, despite the matters that they now profess to disapprove of. On the other hand, several of the Fyes’ close neighbors in Port Huron thought the home to be a suitable place for the children. The petition for a change of custody must be denied on its merits.

We appreciate Judge Morrison’s hesitancy to act in a case more familiar to Judge Dawson, but we cannot sanction the temporary order that was entered. The application for a modification of the decree ought to have been rejected. The children’s best interests were not furthered by the extension of their stay in Arkansas, involving, as it did, a transfer to different schools and a. regrettable state of uncertainty on the part of everyone concerned. The school year, however, now has only a few weeks to run. To avoid a second disturbance in the children’s education we think it best for them to remain in Pine Bluff until the end of the present term. At that time, subject to the court’s continuing power to modify the decree for cause, custody of the children will revert to their mother until June of 1967, when the arrangement fixed by the original decree will be resumed.

Reversed and remanded for the entry of a decree in harmony with this opinion.