author: Ed. F. McFaddiN, Associate Justice.

text:
    Hicks v. Wolfe, Judge. Hicks v. Ark. Motor Freight Lines, Inc.
    5-1403
    5-1418
    307 S. W. 2d 784
    Opinion delivered December 16, 1957.

      Do.nald Poe, for petitioners.

      Dobbs, Pryor & Dobbs and Harper, Harper & Young, for respondent.
    Opinion delivered December 16, 1957.

      Donald Poe, for appellant.

      Dobbs, Pryor & Dobbs, and Harper, Harper & Young, for appellee.
   Ed. F. McFaddiN, Associate Justice.

These are companion cases arising from the same traffic mishap; and both' cases require a decision as to whether the Trial Court was correct in applying the doctrine of forum, non conveniens to actions arising under § 27-610 and § 27-dll Ark. Stats., which are venue statutes relating to damages claimed to result from an accident, such as the traffic mishap here involved.

Case No:.1403 in this Court is Hicks v. Wolfe, Judge, and is a petition for a Writ of Prohibition directed to the Sebastian Circuit Court, which had denied petitioners’ motion to quash service of summons and was about to proceed to trial in a pending cause. The petitioners herein are Lonnie Hicks and his son, Lonnie Bruce Hicks. Case No. 1418 in this Court is an appeal by Hicks et al. from a judgment of the Scott Circuit Court which quashed the service of summons on the Arkansas Motor Freight Lines, Inc. and others in an action in the Scott Circuit Court brought by Lonnie Hicks and Lonnie Bruce Hicks against the Arkansas Motor Freight Lines, Inc. and others. The practical effect of the quashing of service by the Scott Circuit Court was to deprive Hicks et al. of any trial in Scott County; so they have appealed under the authority of Berryman v. Cudahy Packing Co., 189 Ark. 1151, 76 S. W. 2d 956. The two cases in this Court (No. 1403 and No. 1418) have not been consolidated ; but we dispose of both of them in this one opinion.

On December 28, 1956 a three-way traffic mishap occurred in Scott County, Arkansas. One vehicle was owned by Lonnie Hicks and driven by his son, Lonnie Bruce Hicks. The second vehicle was owned by Arkansas Motor Freight Lines, Inc., a corporation, and driven and operated by R. C. Moore and H. W. Moon. The third vehicle was owned by Hargis Canneries, Inc., and was driven by William E. Hall. The same day of the traffic mishap (December 28th), Lonnie Hicks and Lonnie Bruce Hicks filed their action in the Scott Circuit Court (the County in which the mishap occurred) against all the owners and operators and drivers of the other two vehicles; and the Hicks obtained service as follows: Arkansas Motor Freight Lines, Inc., served on December 28, 1956 and again on December 29, 1956; H. W. Moon, served December 29, 1956; Hargis Canneries, Inc., served December 29, 1956; and William E. Hall, served December 29, 1956. We will refer to this case of Hicks v. Arkansas Motor Freight Lines, Inc. et al. as the “Scott County case.”

The Arkansas Motor Freight Lines, Inc. is a corporation domiciled in Sebastian County; and on December 28, 1956 (the same day of the traffic mishap) the Arkansas Motor Freight Lines, Inc. filed its action in the Sebastian Circuit Court (in which County the Arkansas Motor Freight Lines, Inc. is domiciled), against Lonnie Hicks, Lonnie Bruce Hicks, Hargis Canneries, Inc., and William E. Hall; and the Arkansas Motor Freight Unes, Inc. obtained service as follows: Lonnie Hicks, served January 1,1957; Lonnie Bruce Hicks, served January 1, 1957; Hargis Canneries, Inc., served December 28, 1956 and again on January 16, 1957; and William E. Hall, served December 28, 1956 and again on January 16, 1957. We will refer to this case of Arkansas Motor Freight Lines, Inc. v. Hicks et al. as the “Sebastian County case.”

In due time, Lonnie Hicks and Lonnie Bruce Hicks filed pleadings in the Sebastian County case, showing that their service on Arkansas Motor Freight Lines, Inc. in the Scott County case was prior, in point of time, to any service on them or on anyone else in the Sebastian County case. The Hicks thus pleaded the Scott County case as fixing venue regarding the Hicks’ claim against Arkansas Motor Freight Lines, Inc., as well as against all the other defendants in the Scott County case. The Hicks prayed that they be dismissed from the Sebastian County case. When the Sebastian Circuit Court overruled the said motion to quash and announced the intention to proceed to trial against the Hicks, this Petition for Prohibition resulted; and is case No. 1403 herein.

In the Scott County case, the Arkansas Motor Freight Lines, Inc. filed its motion to quash the summons served on it; and the Hargis Canneries, Inc. and Hall filed their motion to quash the summons served on them; and the Scott Circuit Court quashed all of the summons, which action — in view of the ruling in the Sebastian County case — -had the practical effect of finally disposing of the Scott County case and preventing the Hicks from trying their case in that venue; so the Hicks have appealed the said judgment in the Scott County case, and that appeal is Case No. 1418 in this Court. The same learned Judge presides over both the Scott Circuit Court and the Sebastian Circuit Court. The cases were argued and briefed together before him, and his written opinion applies to both cases. It is scholarly and enlightening.

It is conceded that the Hicks are correct in their contentions if we follow our holdings in Kornegay v. Auten, 203 Ark. 687, 158 S. W. 2d 473; Healey & Roth v. Huie, 220 Ark. 16, 245 S. W. 2d 813; and Carnes v. Strait, 223 Ark. 962, 270 S. W. 2d 920. But the learned Circuit Judge was of the opinion that the statements of this Court concerning the doctrine of forum non con-veniens, as contained in the case of Running v. Southwest Freight Lines, 227 Ark. 839, 303 S. W. 2d 578, gave the Circuit Court the right to decide which County — as between Scott County and Sebastian County — was more convenient to the Court and the litigants. "With such understanding of Running v. Southwest Freight Lines (supra), it was held that Sebastian County was the forum conveniens and that Scott County was the forum non conveniens. We are thus brought to the question, whether the doctrine of forum non conveniens applies, between Counties in this State, to actions under § 27-610 and § 27-611 Ark. Stats.

The Circuit Judge clearly recognized that in the case of Running v. Southwest Freight Lines (supra) we were applying the doctrine of forum non conveniens to an imported case: that is, one which originated in another State. Likewise, in the briefs filed in this Court it is frankly conceded that no case had been found in which forum non conveniens had been applied to venue cases between counties in the same state.

In the case of Suhay v. Whiting, Court of Common Pleas of Ohio, 96 N. E. 2d 609, an automobile collision occurred in C. County. Both plaintiff and defendant resided in G-. County. The plaintiff sued in C. County and obtained service. There was a motion to dismiss. The Court discussed the doctrine of forum non con-veniens as applied to counties in the same state; but finally rested the decision on the fact that the plaintiff had lured the defendant into C. County in order to obtain service on him; and the motion to quash was based on the fact that service had been “wrongfully obtained.” Thus, all that was said on forum non conveniens was really dicta.

In the case of U. S. v. National City Lines, 334 U. S. 573, 92 L. Ed. 1584, 68 Sup. Ct. 1169, the Supreme Court of the United States had occasion to consider whether the doctrine of forum non conveniens should be applied so as to override a venue statute; and the majority opinion (made by six Justices) in that case contains clear reasoning. The question was, whether the doctrine of forum non conveniens applied to antitrust cases brought by the Government under § 12 of the Clayton Act. The majority opinion demonstrated that such § 12 of the Clayton Act had a legislative history which showed a clear intention to allow the Government to select its venue; and the majority concluded that because of such legislative history, the doctrine of forum non conveniens should not be applied, because such application would constitute judicial overriding of legislative action as to venue. The majority opinion contains these statements:

“These conclusions concerning the section’s intent and effect are altogether inconsistent with any idea that the defendant corporation can defeat the plaintiff’s choice of venue as given, by asking for and securing dismissal of the suit, either on the ground that the venue selected within the statutory limits is inconvenient for the defendant or that another authorized venue is more convenient for it . . .
“Finally, both appellees and the District Court have placed much emphasis upon this Court’s recent decisions applying the doctrine of forum non conveniens and in some instances extending the scope of its application. Whatever may be the scope of its previous application or of its appropriate extension, the doctrine is not a principle of universal applicability, as those decisions uniformly recognize. At least one invariable, limiting principle may be stated. It is that whenever Congress has vested courts with jurisdiction to hear and determine causes and has invested complaining litigants with a right of choice among them which is inconsistent with the exercise by those courts of discretionary power to defeat the choice so made, the doctrine can have no effect.”

The quoted reasoning by the U. S. Supreme Court is faultless: when the legislative branch of the government gives the plaintiff the choice of venues and the plaintiff diligently exercises the choice, then it is not for the courts to invent their own doctrine to overrule the legislative determination. When we consider § 27-610 and § 27-611 Ark. Stats, we see the legislative intention in the case at bar as clearly as appeared to the United States Supreme Court in the case of U. S. v. National City Lines, supra, from which we have just quoted.

Section 27-610 Ark. Stats, is Act No. 314 of 1939, and was for the purpose of localizing causes of action covered by the Act. We held that the purpose of the Act was to repeal so much of § 27-613 Ark. Stats, as had previously permitted such actions to he brought in any county in the state in which service might be had on the defendant. Indicative of the contemporary reaction to the Act No. 314 of 1939, attention is called to the following articles in the Law School Bulletin of the University of Arkansas, to-wit: Yol. 7, p. 61; and Yol. 8, p. 38. In Ft. Smith Gas Co. v. Kincannon, 202 Ark. 216, 150 S. W. 2d 968, we said:

“What was the purpose of Act 314? The answer must be to localize personal injury actions, and to require that they be brought in the county where the injury occurred or where the plaintiff resides, and to repeal so much of § 1398, Pope’s Digest, as previously permitted them to be brought in any county where service might be had on the defendant; and, of course, it was contemplated that they be tried in the county in which they must be brought.”

Likewise, § 27-611 Ark. Stats, is Act No. 317 of 1941, as amended by Act No. 182 of 1947. We have also declared that this is an enactment to localize venue. Viking Frt. Co. v. Keck, 202 Ark. 663, 153 S. W. 2d 166. Thus these two statutes, here involved, were designed to localize venue; and we have held that, as between the county of the “accident” and the county of “residence,” that court has jurisdiction whose process is first validly served. Kornegay v. Auten, 203 Ark. 687, 158 S. W. 2d 473; Healey & Roth v. Huie, 220 Ark. 16, 245 S. W. 2d 813; Carnes v. Strait, 223 Ark. 962, 270 S. W. 2d 920.

If we should now permit the doctrine of forum non conveniens to apply to these venue statutes here involved, the effect would be to allow the court to determine the venue rather than the litigant whose process was first served. We would thus be allowing the courts to determine for themselves the matter of venue as between two conflicting counties, rather than allowing the litigants to determine the venue by diligence in filing suit and obtaining process. The Legislature gave the choice of venue to the diligent litigant. The courts should not usurp the legislative power of establishing venue; and such would be the effect of applying the doctrine of forum non conveniens to these two venue statutes here involved. What we said in Running v. Southwest Frt. Lines, 227 Ark. 839, 303 S. W. 2d 578, was in regard to an “imported” case: that is, one that arose outside of the State; and our language in that case should not be extended to apply to cases such as those here presented.

It follows that the Writ of Prohibition is granted to the Sebastian Circuit Court, with directions to sustain the pleadings filed by Lonnie Hicks and Lonnie Bruce Hicks therein and to dismiss them from the Sebastian Circuit Court, since their cause of action is pending in the Scott Circuit Court. There is left in Sebastian County only the case of Arkansas Motor Freight Lines, Inc. v. Hargis Canneries, Inc. and W. E. Hall. All the other causes will be tried in the Scott Circuit Court which first obtained jurisdiction by reason of its process being first served. The order of the Scott Circuit Court quashing service of process is reversed and the cause is remanded, with directions to overrule the motion to quash service and require the defendants therein to plead to the complaint of the plaintiffs. This, of course, will carry with it the cross-complaint of the Hargis Canneries, Inc. against the Hicks, because Har-gis Canneries, Inc. and Hall were served by the Hicks on the process out of the Scott Circuit Court on December 29th. The complaint by Arkansas Motor Freight Lines v. Hargis Canneries, Inc. did not draw into it the cause of action of the Hicks against Hargis Canneries, Inc. and Hall.

In Case No. 1403 the Writ of Prohibition is granted, with directions herein contained; and in Case No. 1418 the judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

       Hargis Canneries, Inc. is domiciled in Washington County; but filed its answer and cross-complaint in the Sebastian County case on January 21, 1957 and obtained service on the same day on Lonnie Hicks and Lonnie Bruce Hicks.

       We give the opinion in full: “By agreement of the parties as reflected in a pre-trial order dated 26 April, 1957 the court has before it three motions to quash and dismiss, two arising from an action filed in the Circuit Court for Scott County and one other arising from an action in the Circuit Court for the Fort Smith District of Sebastian County.
      “This litigation is three sided, having arisen from a three way truck accident which occurred in Scott County on December 28, 1956 and each side now seeks damages against the others. For convenience, the parties will be referred to as the Arkansas Motor Freight, the Hicks, and Hargis-Hall. On the same day as the accident the Hicks filed suit in Scott County against the other two sides, Arkansas Motor Freight and Hargis-Hall; and Arkansas Motor Freight filed suit in Sebastian County against the Hicks and Hargis-Hall. In the ensuing race for service Hicks got service on Arkansas Motor Freight before Arkansas Motor Freight obtained service on them, but Arkansas Motor Freight got service on Hargis-Hall before Hicks. Shortly thereafter Hargis-Hall pleaded in the Sebastian County Circuit Court with an answer, coupled with a counterclaim against Arkansas Motor Freight and a cross-complaint against the Hicks, and obtained service upon them. Motions to quash and' dismiss were filed by Arkansas Motor Freight and Hargis-Hall in Scott County, and the Hicks have filed a similar motion in Sebastian .Corinty.
      “If this court extends to each side in this litigation the principle of the cases of Healey & Roth vs. Huie, 220 Ark. 16 and of Carnes, Admx. vs. Strait, Judge, 223 Ark. 962 it would have to hear the case of Hicks vs. Arkansas Motor Freight in Scott County, and- the case of Arkansas Motor Freight vs. Hargis-Hall and the cross-complaint of Hargis-Hall vs. Hicks in Sebastian County, for while the parties are common in each court their interests are adverse and separate, so that one is as entitled to the benefit of the ‘first service’ rule as the other. But manifestly the result would be a multiplicity of litigation, of trial by piecemeal, that does not appear compatible either with the intent of the law or sensible judicial administration. Since to blindly apply the Healey & Roth and the Carnes cases to the case at bar would lead to such an undesirable situation, one must conclude that the trial court is entitled to, and should, take into consideration all factors peculiar to the litigation before it, rather than to stop with the ‘first service’ rule. In so considering the entire matter there are several other points which appear to be important. (1) The parties in each court are common, (which was not true in the Carnes vs. Strait case.) (2) None of the parties reside in Scott County. All of the plaintiffs are residents of Sebastian and Hargis-Hall live in Washington County. The case, therefore, could be tried with less expense and inconvenience in Sebastian County than in Scott. (3) The two suits were filed simultaneously and the resulting service overlapped in order of priority between the two jurisdictions. (4) The issues must be submitted to the jury under the Comparative Negligence Act, which would give rise to serious complications in the event of two trials. (5) A jury trial could be had in Fort Smith in August, whereas trial could not be had in Waldron until November. (6) Both Circuit Courts are within the 12th Judicial District and as judge of the district I am aware that the financial capacities of the two counties concerned are such that Scott County should be spared any unnecessary expense in holding court.
      “Now if there is any discretion lodged in the trial court under all of these circumstances, it is manifest that the judge should reject the jurisdiction of one of the two courts and vest it wholly in the other. That there is discretion in such instances finds favor in the doctrine of forum non conveniens, which was discussed lately by our Supreme Court in an opinion written by Justice Paul Ward in the case of Running vs. Southwest Freight Lines, Inc., 227 Ark. 839, decided May 13, 1957. It is recognized that the doctrine was there applied to an ‘imported case,’ but all of the reasoning giving validity to the doctrine, and its necessity, are applicable under the circumstances of this particular case. In the language of Justice Ward: ‘Our examination of the eases applying the doctrine of forum non conveniens reveals that several factors have a bearing on the question of accepting or rejecting jurisdiction, such as: the inconveniences that might accrue to either side in the matter of obtaining witnesses or documents. Whether considered included in the said doctrine or not, we see no reason why the trial court should not properly consider other facts and factors of a different nature, such as the condition of the trial docket, the probable expense of the trial, and any other facts or circumstances affecting a just determination.’
      “The excellent briefs of counsel do not reflect that a precedent exists combining in one case all of the facets of this problem, but the court senses a necessity and a duty to exercise discretion in matters concerning forum when the question arises under circumstances as peculiar as we have here. And especially so when the choice lays between courts which are both within the Judicial District over which the judge has responsibility.
      “It is therefore the opinion of the court that the motions to quash and dismiss of the defendants in the Scott County Circuit Court should be granted and that of the defendants in the Sebastian Circuit Court should be denied. Counsel for plaintiff in Sebastian Circuit Court may prepare a precedent accordingly and noting the exceptions of the parties Hicks. Signed this the 12th day of June, 1957 /s/ Paul Wolfe, Circuit Judge.”


source: Caselaw Access Project

author: MxNoe W. Millwee, Associate Justice.

license: Public Domain

text:
    Faulkner v. Mowry.
    5-1408
    307 S. W. 2d 789
    Opinion delivered December 16, 1957.

      J. B. Milham, for appellant.

      Claude A. Fuller, for appellee.
   MxNoe W. Millwee, Associate Justice.

Appellant, Katherine Mowry Faulkner, is the former wife of Ap-pellee, Ray Mowry. They married in 1928 and were living about 8 or 10 miles from Eureka Springs, Arkansas, in September, 1956, when she left appellee and they entered into a written property settlement in contemplation of a divorce which was granted to appellee on October 23, 1956. In Faulkner v. Mowry, 228 Ark. 285, 307 S. W. 2d 860, wé upheld the chancery court’s denial of appellant’s motion to set aside the property' settlement, pointing out that she was so anxious to get her freedom from appellee and marry her present husband that she was willing to agree to any property settlement. In her haste and eagerness to,effect the marital transition she also forgot and left behind two finger rings given her by appellee upon their marriage and a small radio, which items were not included in the property settlement.

After the divorce and appellant’s remarriage she brought the instant action in replevin to recover the rings and radio which were worth about $300.00. The parties were the only witnesses at the trial in which appellee conceded appellant’s ownership and right to possession of the articles and denied that he had unlawfully detained them or deprived her of such possession. It is undisputed that on the day the divorce was granted appellant met appellee and his attorney at a bank in Eureka Springs. In response to her inquiry about the rings and radio counsel for appellee advised her that she was entitled to them and appellee told her they were at the house where she had left them. It is also undisputed that later on the same date appellant mailed a card to appellee asking him to bring the rings to a certain place in Eureka Springs. Appellant testified and appellee denied that he had previously told her he had left the rings with a neighbor for safe keeping.

Appellee also testified that he locked his house about noon on October 24, 1956, when he left in search of a calf; and that when he returned about dark he found a lock on the back door had been forced and that the rings had been taken from a box on a dresser where appellant had left them. The next morning he also discovered the radio was missing. Appellee further stated that, upon receipt of her card written the day before, he concluded she had broken into the house and wrote a letter castigating her for doing so. This letter was introduced at the trial. He made the same accusation when she came to the place on October 27th and obtained other property to which she was entitled under the property settlement. Appellant denied retaking the items or breaking into the house.

Thus the pertinent issue to he determined by the jury was whether appellee unlawfully or wrongfully withheld possession of the property, as appellant contended, or whether the items were taken by appellant, or some third party, without any negligence on appel-lee’s part, as he contended. The jury resolved the issues in appellee’s favor under nine instructions given by the trial judge on his own motion after each party had requested a directed verdict hut the appellant requested two additional instructions which were refused.

Appellant first argues that the trial court erred in refusing to direct a verdict in her favor. This contention is apparently based on the proposition expressed in the two additional instructions requested by her which, in effect, would have told the jury to find for appellant if she demanded possession of the property on October 23, 1956, without regard to whether appellee actually refused to surrender it and regardless of what actually happened to the property. Appellant relies on such cases as Harkey v. Tillman. 40 Ark. 551, and Sibeck v. McTiernan, 94 Ark. 1, 125 S. W. 136. These cases hold that one who wrongfully detains personal property and refuses to surrender it on demand is liable in a replevin action, even though the property may not he in his possession when suit is brought. Appellant’s repeated assertion that it is undisputed that she demanded, and that appellee wrongfully refused to surrender, possession of the property on October 23, 1956, is not born out by the record. These questions were determined adversely to appellant upon evidence that is conflicting but substantial and sufficient to sustain the verdict.

Appellant now urges numerous objections to seven of the nine instructions given by the trial court. This argument is predicated on the following objections made at the trial: “I want to object generally to each instruction given by the Court, and specifically to each one of them, because they are not the law, not a correct declaration of the law, and they ignore the right of plaintiff to recover under the law; that where the defendant had possession of the rings at the time she demanded them from him, she would be entitled under plaintiff’s theory to recover, and it would be the Court’s duty to instruct the jury for the plaintiff for the rings, or for their value.” The objection that the instructions were not the law, etc., amounted to nothing more than a general objection. St. Louis San Francisco Ry. Co. v. Pearson, 170 Ark. 842, 281 S. W. 910. It is also clear that the objections embraced all the instructions in gross, or en masse. It is well settled that general objections to instructions in gross will not be considered on appeal if any one of the instructions be correct. Quertermous v. Hatfield 54 Ark. 16, 14 S. W. 1096; H. D. Williams Cooperage Co. v. Clark, 105 Ark. 157, 150 S. W. 568. In holding some of the instructions good, we do not mean to infer that any of them were erroneous. The only portion of the objection that could be said to be specific relates to the same proposition urged in the instructions refused in that it wholly ignored the question of whether the appellee wrongfully refused to surrender possession upon a demand duly made by appellant for such possession on October 23, 1956. The instructions given properly submitted this issue to the jury.

It is finally contended the trial court erred in further questioning the appellant after appellee had rested. No objection was made to the court’s action below, and it may not be urged for the first time here.

We find no prejudicial error, and the judgment is affirmed.


author: G-eorge Rose Smith, J.

text:
    St. Louis Southwestern Ry. Co. v. Robinson.
    5-1410
    308 S. W. 2d 282
    Opinion delivered December 16, 1957.

      Wilbur H. Bolts and Barrett, Wheatley, Smith & Deacon, for appellant.

      William C. Gibson and George E. Pilce, for ap-pellee.
   G-eorge Rose Smith, J.

This is an action for personal injuries sustained by the appellee in a collision between his pick-up truck and a freight train which was standing still at a public crossing just inside the city of G-illett. The plaintiff’s truck struck the fifth or sixth car of the eleven-car train. In appealing from a verdict and judgment for $7,500 the railroad company and its two employees contend that they were entitled to a directed verdict, and, if not, that the court erred in its instructions to the jury.

The accident happened shortly after dark on the evening of October 19, 1955. Robinson had been in town and was returning to Ms Lome, which is abont a city block north of the railroad crossing. He nsed this highway abont six times a day and was of course familiar with the crossing. As he traveled north toward his home his approach to the railroad tracks was, for the last few hundred feet, along a straight level road. He testified that he was driving at about 25 or 30 miles an hour, with his headlights on their low beam. He did not see the train until he was “right upon it.” He says that there was no light of any kind to warn him and that the gravel car which he hit was about the same color as the pavement. A neighbor who lives near the crossing testified that he did not hear the train whistle and that when he looked out of his window upon hearing the crash he did not see any light at the crossing.

The testimony of the railroad crew shows that the train was being backed across the highway in a switching operation. When the lead car reached the crossing a brakeman dropped off and stood in the road with an electric lamp. This witness testified that he saw the lights of Robinson’s truck when it was some 300 or 400 feet away. He signaled continuously by waving his light, but the truck came on at a speed of about fifty miles an hour and, with no reduction in speed, hit the train after the witness had jumped aside at the last moment. The engineer testified that upon seeing the brakeman’s frantic signals and the approaching vehicle he stopped the train and gave repeated short blasts of his whistle until the truck hit the train. The plaintiff concedes that the train was stationary when he drove into it.

From the conflicting testimony the jury doubtless concluded that no signals of any sort were given to warn Robinson of the train’s presence at the crossing. The appellants contend that the matter of signals became unimportant when the train occupied the crossing; they cite several cases in which we held that a railroad company was not liable to a motorist who drove his vehicle into a train that was already obstructing the highway. Cases similar to this one include Fleming v. Missouri & Ark. Ry. Co., 198 Ark. 290, 128 S. W. 2d 986, and Lloyd v. St. Louis Southwestern Ry. Co., 207 Ark. 154, 179 S. W. 2d 651.

All the cases cited were decided Tinder the comparative negligence act which applied only to railway companies and prevented a recovery if the plaintiff’s negligence exceeded that of the defendant. Ark. Stats. 1947, § 73-1004. We did not say in those opinions that the railroad company was entirely free from fault; we merely held that the plaintiff’s negligence was greater than that of the defendant and therefore prevented a recovery. This point was fully explained, after a thorough review of the decisions, in Hawkins v. Mo. Pac. R. Co., 217 Ark. 42, 228 S. W. 2d 642, where we held that the unusual fact situation presented a jury question concerning the comparative negligence of the parties.

The cases mentioned do not control this one, which arose after the enactment of Act 191 of 1955 and was tried before that act was repealed by Act 296 of 1957. Ark. Stats., § § 27-1730.1 and 27-1730.2. The 1955 statute differs from the railroad comparative negligence law in that it eliminates the requirement that the plaintiff’s negligence may not exceed that of the defendant. Hence, if the 1955 act applies to this case, the appellants are not entitled to a reversal and dismissal merely upon a showing that Robinson’s negligence was greater than their own. Upon that finding the plaintiff’s recovery would simply he reduced in the proportion that his negligence bore to the total negligence in the case.

We hold that Act 191 impliedly repealed the railroad comparative negligence act and applies to this litigation. As a general rule a general act does not repeal an earlier special act, hut there is an implied repeal when the general act takes up the subject anew and covers the entire subject-matter embraced by the special act. King v. McDowell, 107 Ark. 381, 155 S. W. 501. In each case the question is really whether the legislature meant for the special law to remain in force as an exception to the general statute.

Here there are two persuasive reasons for thinking that Act 191 was intended to be exclusive. First, Act 191 by its express language applies to “all actions hereafter accruing for negligence resulting in personal injuries or wrongful death or injury to property.” It is manifest that the legislature meant for' the act to govern every ease falling within its purview. Second, when the railroad act was first adopted its effect was to put the plaintiff in a railway case in a more favorable position than other plaintiffs, since a recovery would not be barred by slight contributory negligence. If Act 191 did not repeal the special railroad statute it would follow that the plaintiff in a railway case was put in a less favorable position than other plaintiffs, since he alone would be barred if his negligence exceeded that of the defendant. "We see no reason to suppose that the legislature had in mind a complete reversal of its policy with respect to actions against railroad companies.

At the trial the defendants correctly contended that Act 191 had repealed the railroad comparative negligence law, and on this theory the court was requested to submit special interrogatories to the jury in accordance with the mandatory provisions of the 1955 act. This request should have been granted, for, as we have seen, Act 191 governed this case at the time it was tried.

Soon after the trial Act 191 was expressly repealed by Act 296 of 1957, which (a) bars a recovery in all cases when the plaintiff’s negligence exceeds that of the defendant and (b) does not re-enact the mandatory provisions of Act 191 with reference to special interrogatories. Since Act 296 applies by its terms to actions “hereafter accruing,” its substantive provisions will not be controlling upon a new trial in this case. Instead, the rule of comparative negligence contained in Act 191 will govern, for a statute of long standing provides that pending cases are not affected by the repeal of any statutory provision. Ark. Stats., § 1-104. This saving clause does not apply, however, to mere changes in procedure, Fort Smith Gas Co. v. Kincannon, 202 Ark. 216, 150 S. W. 2d 968; so we point out that the submission of the case upon special interrogatories will not be mandatory upon a retrial, this being a matter of procedure only.

The trial court also erred in giving an instruction on the railroad company’s statutory duty to ring a bell or sound a whistle. The statute requires that the locomotive or engine be equipped with a bell or whistle, that the device be sounded at least eighty rods from the crossing, and that it “be kept ringing or whistling until it [the locomotive or engine] shall have crossed said road or street.” Ark. Stats., § 73-716. Thus the statute does not require that the signals be given after the train has occupied the crossing, and we have often held that the signals cease to be factors when the train is blocking the highway as the motor vehicle approaches. Chicago, R. I. & P. Ry. Co. v. Sullivan, 193 Ark. 491, 101 S W. 2d 175; Fleming v. Mo. & Ark. Ry. Co., supra. The instruction concerning the statutory duty to give signals was therefore abstract in this case and may well have misled the jury. Instead, the plaintiff was entitled only to an instruction submitting on common law principles the issue of the defendants’ asserted negligence in failing to give warning of the fact that the train was obstructing the crossing.

Reversed and remanded.


author: Paul Wakd, Associate Justice. Ed. F. McFaddiN, Associate Justice

text:
    Jennings v. Lynch.
    5-1336
    307 S. W. 2d 781
    Opinion delivered December 16, 1957.

      Kenneth G of felt, for appellant.

      W. B. Thrasher and Dowell Anders, for appellee.
   Paul Wakd, Associate Justice.

Cecil Jennings and others, all citizens and taxpayers living in the vicinity of Norfork Lake, Baxter County, filed a complaint against Cecil Lynch and the other members of the Arkansas Highway Commission, on May 4, 1956, wherein they asked the Chancery Conrt of Pnlaski County to direct the said Commission to construct a road from “Mountain Home across Norfork Dam, and through the rock bluff at the Norfork Dam . . ., and on to Elizabeth,” and also to relocate and reconstruct State Highways 62 and 101 in certain particulars therein set forth.

A short statement of back ground facts will make it easier to understand the issues involved. Norfork River, prior to 1941, ran in a southerly direction through Baxter County and emptied into White River near the town of Norfork. There was a bridge across the Norfork River at the small town of Henderson which was located about 9 or 10 miles south of the Missouri line and about 10 miles north of the present location of the Norfork Dam. In 1941 the U. S. Government began acquiring land preparatory to constructing the said dam and the attending reservoir. It was known at the time, of course, that the reservoir would inundate the Henderson bridge.

On May 29, 1943 the U. S. Government filed a suit No. 106, in U. S. District Court, Western District of Arkansas, Harrison Division, in which it declared the taking of the necessary land for the dam site and the reservoir, including the bridge and a portion of State Highway 62, which ran east and west across the Henderson bridge and a portion of Highway 101 which ran from the Missouri line and joined Highway 62 near the bridge.

After the dam was completed the water gates were closed on June 17, 1943, and by October of that year the Henderson bridge and adjoining portions of Highways 62 and 101 were inundated. This necessitated the installation of an expensive ferry at Henderson to cross the lake. The dam was designed and constructed in such a way that it could be used as a bridge. The only reason, apparently, why it is not and has not been used as a bridge is that it runs into a high rock bluff on the east side. Also, due to said bluff, the roads have not been constructed up to the dam on either side.

' As we understand it, appellants instituted and now maintain this litigation on the general theory that the Arkansas Highway Commission is legally obligated to re-route highways 62 and 101 so as to go over the dam, necessitating the removal of the stone bluff at the east end of the dam. As was held in Paving Districts Nos. 76 and 52 of Pine Bluff v. State Highway Commission, 186 Ark. 68, 52 S. W. 2d 623, it is apparently admitted by appellants that, ordinarily, constructing and routing highways are matters of discretion with the Highway Commission and not subject to control by mandamus.

If, as appellants contend, there rests upon the Highway Commission an obligation in this case to construct specific roads and locate them in definite places and if this obligation is such as can be enforced by mandatory injunction, then it becomes necessary to determine how this obligation arose. This, we think, appellants have failed to point out. However we discuss below the only grounds or methods suggested by appellants.

First, it is appellants’ contention that when the Arkansas Highway Commission accepted the money from the U. S. G-overnment which was assessed as damages in the condemnation proceedings (case No. 106) referred to above, it did so as trustee for the people for the express purpose of building a road across the dam. We do not agree with appellants’ interpretation of the condemnation proceedings. It would serve no useful purpose to set out these proceedings and discuss them in detail, because we think their purpose and effect are obvious and may be briefly stated. In so far as relates to this opinion, the sole object of the condemnation proceedings and the sole effect of the court order was to fix the amount of damages the 17. S. Government should pay to the State of Arkansas and the Highway Commission for inundating and destroying certain roads and the Henderson bridge. In arriving at this amount it was deemed pertinent to determine the cost of replacement, i. e., building substitute roads and bridges to take care of the east and west traffic. Before the replacement cost could be estimated it was, of course, necessary to try and determine the most feasible plan of replacement. In all, six different plans were considered, and one of these was to nse the dam for a bridge. It was npon this last plan that the agreement was reached and npon which the conrt (in case No. 106) fixed the damages. It appears clear to ns, from an analysis of the language used in the conrt order and the settlement agreement, that the plan to nse the dam as a bridge amounted to nothing more than a feasible method of determining damages, and that it did not legally bind the Highway Commission to follow that plan later in the expenditure of the money. Certainly no language to that effect appears in the record of case 106 shown in the record.

Secondly, appellants make the argument that Act 52 of 1945 obligated the Highway Commission to spend the money (received for damages) to relocate the Highways over Norfork Dam. However, reference to the language of this act fails to reveal any substantiation of appellants’ argument. Section 1, after referring to the funds received by the Highway Commission in connection with the Norfork Dam condemnation proceedings, uses this pertinent language:

“. . . they are hereby irrevocably allocated and pledged to the construction and reconstruction of roads and bridges and ferry operation in the Norfork Dam area found necessary to replace the roads and bridges destroyed or rendered useless by reason of the building of the Norfork Dam by the Federal Government. ” Section 2 of said Act reads:
“Any citizen and taxpayer in the State of Arkansas shall have the right to restrain any diversion of said funds or interest derived therefrom from these purposes by proceedings filed in the Pulaski Chancery Court.” if it be conceded for the purpose of this opinion that the legislature had the right to force the Highway Commission to construct a highway across the dam, and if it be conceded likewise that appellants have a right to maintain this suit against the Commission, still it used no such directive language in Act 52. Moreover, it appears that the legislature has long ago abandoned any intention it may have expressed by the passage of said Act 52 to direct the nse of the condemnation money by the Highway Commission. Exhibit No. 5, in the record, shows that the Highway Commission had, by 1950, spent on the ferry at Henderson and the roads in the vicinity of the dam as much money as it received from the U. S. Government. It appears now that the legislature took cognizance of the above mentioned situation. By Act 175 of 1947 and Act 361 of 1949 the legislature carried forward, in effect, the directive language copied above from Act 52 of 1945, but Act 178 of 1951 which dealt with funds of the same nature omits the directive language above mentioned, and such language has not since been reenacted.

From the above it follows that the decree of the trial court dismissing appellants ’ complaint must be and it is hereby affirmed.

Affirmed.

McFaddiN, J., concurs.

Ed. F. McFaddiN, Associate Justice

(concurring). I concur in the final result reached by the majority in this case. I never considered the points discussed in the majority opinion because, as I see it, this entire proceeding by Jennings et al., appellants, is a suit against the State of Arkansas and cannot be maintained because of Article V, Section 20 of our Constitution, which reads: ‘ ‘ The State of Arkansas shall never be made defendant in any of her courts.”

We held in Pitcock v. State, 91 Ark. 527, 121 S. W. 2d 742, 134 Am. St. Rep. 88, that this constitutional immunity could not be waived by legislative enactment; and in Watson v. Dodge, 187 Ark. 1055, 63 S. W. 2d 993, we held that any proceedings, either in law or inequity, which had the purpose and effect, directly or indirectly, of coercing the State, is a suit against the State. In Caldwell v. Donaghey, 108 Ark. 60, 156 S. W. 2d 839, 45 L. R. A. N. S. 721, Ann. Cas. 1915B 133, we held that the State of Arkansas could not be sued for specific performance; and in Arkansas State Highway Comm. v. Nelson Bros., 191 Ark. 629, 87 S. W. 2d 394, we held that a suit against the State Highway Commission was a suit against the State of Arkansas. In view of these holdings, it is clear to me that the present suit by Jennings et al is a suit against the State of Arkansas. The only persons sued were the members of the State Highway Commission, and they were sued in their official capacity as State Highway Commissioners. The real purpose of the suit was to compel the State Highway Commission to build a road according to what the plaintiffs alleged was the agreement that the State made with the United States Government. It is clearly a suit against the State, and cannot he maintained.

Act 52 of 1945 affords these appellants no relief. If they desired to enjoin the disbursement of money, they should have sued the disbursing officers rather than the State Highway Commission. Furthermore, the Act 52 of 1945 was materially changed by subsequent enactments, such as Act 175 of 1947, Act 361 of 1949, and Act 178 of 1951.

I have considerable sympathy for the appellants. Some of them live in the vicinity of Jordan, east of the North Fork River and about three miles east of the Nor-fork Dam. According to the map presented in oral argument, State Highway No. 178 runs from Mountain Home to Salesville School and there intersects State Highway No. 177, which goes from the Town of Norfork to the east side of Norfork Dam. The settlement of Jordan is east of the North Fork River; it is only about three miles from Jordan through Lake view Courts to the east side of the Norfork Dam; and there is already an unimproved road along most of the route. The State Highway Commission could improve this local road from Jordan and provide access to the east side of Norfork Dam; and thereby afford these appellants a road such as they are seeking. I think this should be done; but that is a matter for the State Highway Commission, which cannot be compelled to so act by this Court since the Constitution forbids a suit against the State.

For the reasons stated, I concur in the result in this OHS3G.


author: Sam BobiNsoN, Associate Justice.

text:
    Dixon v. State.
    4887
    307 S. W. 2d 792
    Opinion delivered December 16, 1957.

      Sid J. Reid, for appellant.

      Bruce Bennett, Atty. General; Ben J. Harrison, Asst. Atty. General, for appellee.
   Sam BobiNsoN, Associate Justice.

Appellant, Eugene “Bed” Dixon, age 23, was convicted of the crime of murder in the second degree and was sentenced to twenty-one years in the penitentiary for killing his uncle, Otis Jones, by shooting him with a 30-30 rifle. The killing was admitted and self-defense asserted as justification. There is no contention that the evidence is not sufficient to sustain the verdict. In fact, the evidence would sustain a verdict of murder in the first degree. It appears that the killing was unprovoked and was perhaps the result of ill feeling the defendant had held for his uncle, the deceased, for a long time. Several years previously, when defendant was a hoy, his mother, the sister of the deceased, had separated from her husband, and she and her children went to live with the deceased. It was during the period of about three years that they lived with the deceased that Dixon claims he was abused by his uncle. Defendant also contends that about a year before the killing Jones had threatened to get a gun after defendant, and the defendant left the premises.

It appears that on the day of the killing the defendant, Dixon, drove his truck to the home of a cousin, Eugene Jones, about 10:15 in the morning. At that time Dixon had his high-powered 30-30 rifle in the truck with him. Later, he and his cousin transferred to Eugene’s ear, and then back to the truck again; then back to Eugene’s car. Each time they transferred from one car to the other, Dixon kept his rifle with him. They bought and drank some beer during the day, and along in the afternoon made a trip to Pine Bluff to deliver some automobiles for the Ford agency. Later they again got into Eugene’s car and went out on Highway 167, Dixon having the loaded rifle by his side in the car. They stopped at Morehead’s Cafe, and after leaving there they came upon an automobile occupied by Dixon’s uncle, Otis Jones, and Dixon’s mother, Flossie Green, and her husband, Nelson Green. Flossie Green was the sister of Otis Jones. It seems that at that time Dixon warned them not to follow him, and Dixon claims that he saw a gun in the car occupied by his relatives. There was a .410 gauge shotgun in the car, that had been put there by Dixon’s mother on her return from a little hunt.

Dixon and Eugene Jones drove on south on Highway 167, and after a few miles pulled into Lisenby’s service station, and while there Dixon’s uncle and his mother and step-father drove up. His uncle, Otis Jones, got out of the car, and Dixon shot him with the high-powered rifle, killing him almost instantly. Dixon claims that he was afraid for his own life and that Jones was getting the gam out of the car occupied by his mother and stepfather when he, Dixon, fired the fatal shot.

Dixon gives no explanation whatever as to his reason for taking the loaded high-powered rifle with him from home that morning, or why he kept it by his side all during the day. There is no showing that his uncle had ever done him any substantial harm, and the evidence is convincing that on the occasion when he killed his uncle, the uncle was interested in getting him to go home so that he would not get info trouble.

The evidence is convincing that Jones had no weapon at the time he was killed, nor was he attempting to get the .410 shotgun out of the car. The bullet fired by Dixon struck Jones just about the center of the stomach and came out the lower back region, which proves conclusively that Jones was facing Dixon at the time the shot was fired, and the little .410 gauge shotgun was still in the car that Jones had just left.

Appellant contends that the trial court erred in not permitting defendant to show that a short time before the killing Jones, the deceased, was mad because he did not know where his son was. There is no contention that Jones blamed Dixon in any way for his own lack of knowledge of the whereabouts of his son. Perhaps evidence of Jones’ feeling toward Dixon would have been admissible in evidence to show who was the probable aggressor, but Jones’ feeling toward a third person would not be relevant. Mrs. Green, mother of the defendant, and sister of the deceased, was asked:

“Q. Now, then, after that what occurred?
A. Well, we went on. I begged my brother to turn around and come back, and he said, no, he was gonna make — ”

No showing was made as to what the witness would have said if she had been permitted to answer the question. We have repeatedly held that it is necessary to proffer the testimony in controversy.

Appellant complains of the trial court’s action in refusing to admit testimony to the effect that the defendant and the deceased never did get along very well. It is true that the court at first sustained an objection to such evidence, but later the court said:

‘ ‘ THE COURT: If it was your intention to prove that he was a man of violence, that sort of thing—
‘ ‘ MR. REID: That is exactly what I am trying to prove.
“THE COURT: All right, I will permit it.”

The witness was then permitted to testify that the deceased had not treated her children in a kindly manner.

The court also sustained an objection to evidence to the effect that the deceased had caused the witness to pay for gasoline which he claimed Dixon had obtained. The materiality of this testimony is not shown.

Appellant also contends that the trial court erred in permitting the prosecuting attorney to ask the defendant on cross-examination if he claimed self-defense when he was first arrested. This was proper cross-examination and was not error.

Appellant cites cases to the effect that evidence of threats is admissible, hut the record contains no evidence of threats.

Finding no error, the judgment is affirmed.


author: CarletoN Harris, Chief Justice.

text:
    Tillman v. State.
    4883
    307 S. W. 2d 886
    Opinion delivered December 23, 1957.

      Virgil Roach Moncrief and John W. Moncrief, for appellant.

      Bruce Bennett, Atty. General and Thorp Thomas, Asst. Atty. General, for appellee.
   CarletoN Harris, Chief Justice.

Appellant, John “Fifteen” Tillman, was indicted by the Grand Jury of Arkansas County (Northern District) for the crime of murder in the second degree, it being alleged that Tillman feloniously shot and killed one Madison Mayfield. On trial of the case, Tillman pleaded self defense, contending that Mayfield was attacking him with a knife at the time of the shooting. Appellant was found guilty of voluntary manslaughter, and his punishment fixed at imprisonment for six years. From such conviction comes this appeal.

The facts, relating to the killing, briefly, are as follows. On the morning of May 12,1956, sometime around 7 a.m., at a cafe in Stuttgart, a number of individuals were gathered together, engaged in drinking beer and whiskey. Among those present were Monk Bradford, Elizabeth “Eisenhower” Thomas, Clarice Caldonia Tate, Madison Mayfield, and the appellant. According to the State’s evidence, during the drinking, Bradford and Tillman engaged in an argument over $.50 that Tillman contended was owed to him by Bradford; subsequently, Tillman left. Sometime later, Bradford, “Eisenhower”, Mayfield, and Caldonia left from the hack of the cafe, and entered into an alley, where they were standing when Tillman walked by, and engaged in some further argument with Bradford. Tillman had a 22 rifle without a stock, which was pushed down behind his belt, and partly covered by his shirt. He walked on and shortly returned, when, according to “Eisenhower”, Tillman “* * * just came up and just shot.” When asked what Mayfield was doing, she stated, “He wasn’t doing nothing but standing up there looking at us.” She saw no knife. Caldonia stated she heard Tillman say, “Don’t come no further.” She saw no one with a knife. LeBoy Phillips testified that Bradford “backed” Tillman behind a car, and “* * * 15 went wild, and this other guy broke at him, and he shot him.” He heard no argument between Tillman and Mayfield, and did not know whether the deceased had a knife. LeBoy Watson, who was washing his car, testified that Tillman walked up to the group, asked them what they were doing, and then started walking back toward witness’ car. Both Bradford and Mayfield followed, and Tillman told them to get back or he would shoot • — ■ they “ * * * kept going up on him” ■ — - and Tillman fired. Watson testified he first saw a knife when the coroner turned over the body.

According to the defendant’s testimony, he had had no argument with Bradford whatsoever, hut he testified that Mayfield had earlier, inside the cafe, drawn a knife on him; later, he (Tillman) left the cafe and went to a grocery store to get some orange juice. According to his testimony, on the way to the grocery store, he found the gun that he subsequently used. “* * * I got it on my way to the Chinaman’s. I was walking and I wasn’t paying too much attention and there was something down there in some old cans and things besides Mr. Bloomfield’s place when you go through the alley there to the Chinaman’s, and that thing was laying down there in some old cans and things and I just picked it up. I didn’t pay too much attention to it.” After drinking the orange juice, he started back to another cafe. Interrogated as to when he first noticed Mayfield, he replied: “Well, I come on through that alley, him and Monk was standing up there in the alley right there by a water meter and I passed him and never said a word to neither one and so someone said, I heard someone say, “Look out, 15” and when I looked back he was coming behind me with the knife, trying to run up on me with a knife. I started to back up and I told him to get back. I just said, “G-et back.” Q. Did he get back! A. No, sir, he just kept acoming. Q. Was that when you threw the gun up and fired! A. Yes, sir. Q. Did he have anything in his hand when he was coming toward you! A. Yes, sir, he had that knife.”

The evidence, as to the circumstances surrounding the killing, was conflicting, and it was within the province of the jury to pass upon the weight of such evidence. It was their duty to determine whether appellant left the cafe to obtain a weapon with the intention of then returning to further pursue the matter, or just conveniently found the loaded gun in a pile of rubbish . . . whether deceased was involved in an altercation with appellant . . . which was the aggressor . . . whether the killing was necessary in self defense. The evidence was clearly sufficient to sustain the conviction.

Appellant argues that the Court erred in permitting the prosecuting attorney to read a portion of a written statement that the witness, Caldonia Tate, had previously made before him. The matter arose in this manner. The witness testified on direct examination that Tillman said, “Don’t come any further.” On cross examination appellant’s counsel asked the witness if, in the earlier statement to the prosecuting attorney, she had not said that Tillman’s statement was, “Don’t come any closer.” The prosecutor immediately contended that counsel gave the appearance of reading from the statement, and proceeded to read that portion of the statement himself. It might he said that the matter appears of no consequence. The witness had just testified from the stand as to what she heard said, and the reading of that portion of the statement added no weight to her testimony; actually, under the circumstances existing when Tillman allegedly made the remark, the phrases “Don’t come any further” and “Don’t come any closer” have practically an identical meaning. The witness subsequently testified that she did not remember which word she had used. We do not see that this occurrence could have swayed the jury in any manner or that appellant suffered any prejudice. Be that as it may, if this was error, it was cured by the court’s statement to the jury, “Gentlemen of the Jury. You base your verdict on the testimony you hear here, and not on statements that are read. ’ ’ This admonition was reiterated before the witness left the stand.

It is next contended that certain remarks by the State’s attorneys were highly prejudicial and constituted reversible error. In the opening statement, the deputy prosecuting attorney said: “Of course, Gentlemen, if Mayfield was here, we would know more about what happened, but Mayfield is not here to defend himself.” In the closing argument, the prosecuting attorney said: “* * * but let me tell you though, under these circumstances, if you go out of this jury box and return a verdict of not guilty for this “Fifteen”, if you do that, then sit down also and write him a license to kill and give it to him.” Upon objection being made to this statement by appellant’s counsel, the court pointed out, “He has a right to express his opinion as does the attorney for the defendant, but the jury is to try the case on the law and the testimony and not on the argument of the counsel on either side of the case. * * *”

The remarks objected to, were, of course, only opinions of the attorneys for the State. As was said in Adams v. State, 176 Ark. 916, 5 S. W. 2d 946: “This Court will always reverse where counsel go beyond the record to state facts that are prejudicial to the opposite party unless the trial court, by its ruling, has removed the prejudice. * * * but this court does not reverse for the mere expression of opinion of counsel in their argument before juries unless so flagrant as to arouse passion and prejudice, made for that purpose, and necessarily having that effect. * * * ” In addition to the admonition by the court, it is obvious that the jury was not aroused or prejudiced by these remarks, since appellant received a comparatively light sentence.

Assignment No. 4 of error is based upon the court’s action in permitting the coroner to testify regarding appellant’s statement to him of how he (appellant) found the gun. Such testimony was as follows: “The defendant stated to me that an argument had resulted in this alley and he wanted to find something to use to defend himself and he said he thought he might find a stick, a club, or some other object, and in his search he happened to look in some short weeds or grass, and this rifle was laying there and that is how he found it or came in possession of it.” As was said in Dearen v. State, 177 Ark 448, 9 S. W. 2d 30; “* * * It is always permissible to prove declarations and admissions against a person charged with an offense, if bis declarations and admissions tend to show in any way his connection with the crime charged, or tend to prove his guilt. * * * ” The admissibility of such evidence has been upheld in numerous other cases.

Appellant filed an affidavit setting forth that he owned no property of any kind, had no means with which to pay court costs, and asked that complete transcript be furnished for appellant at the cost of Arkansas County. A hearing was conducted, at the conclusion of which, the court overruled the motion to require the county to pay the costs of the appeal, stating, ‘ ‘ After hearing all of the evidence, I cannot see that he would qualify as a pauper. It has been proven that he makes around $50 a week, * * We agree entirely with this finding of the trial judge.

The appellant received a fair trial, and no reversible error appearing, the judgment is affirmed.

       It is not clear whether this remark was directed to Bradford, Mayfield, or both.

       The coroner testified that when he turned Mayfield’s body over, he found a knife along about the waist.

       From appellant’s testimony: “A. I was standing out there back of Bud’s, me and Edward Walker, and Joe Hamilton and Willie Ford came out the back door there and said, “Don’t you know your woman from mine”, and I said, “I didn’t know it was your woman out there” and we were just kidding, and went on and he went on off and May-field came up with his knife and started towards me and Edward Walker got between me and him and I went on back in at Ed Brewer’s. * * * Q. And after that time did you see him again and where and what were you doing? A. Edward Walker and I went in Bud’s private and was standing there talking and he came in with the knife again and opened his pocket knife and when he started out after me, I went behind him, and I come behind him out at the side and back out the door and I went on and through the alley there, went through the alley and all the way through the alley there.” The first instance was corroborated by one Willie Ford.

       He testified that he did not load the gun.


author: J. Seaborn Holt, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Seminole Title & Ins. Co. v. Parker.
    5-1417
    308 S. W. 2d 799
    Opinion delivered December 23, 1957.
    [Rehearing denied January 27, 1958.]

      Ralph E. Wilson, for appellant.

      Henry J. Swift, for appellee.
   J. Seaborn Holt, Associate Justice.

This is the second appearance of this case before us. Reference is made to our opinion in Parker v. Whistle, 227 Ark. 731, 301 S. W. 2d 445, for a more complete statement of the facts. The appellees here, Parker and wife, in the above case, sued Clem Whistle, his wife, and the appellant here, Seminole Title & Insurance Company. That suit was based on a contract executed by the parties (the Parkers as sellers and the Whistles as purchasers) for the sale of land by the Parkers to the Whistles. This contract contained this pertinent provision: “But if the title is good and the property not paid for as herein specified, this earnest money ($10,000) is to be forfeited to the Seller and divided equally between the Seller and Seminole Title & Insurance Company, . . .” The appellant here, Seminole Title & Insurance Company, was the real estate broker.

The Whistles put up $10,000 on the purchase price of the land, as earnest money, with Seminole Title & Insurance Company to be held in escrow. The Whistles refused to purchase the land and the Parkers sued to recover the $10,000 earnest money, based upon the sales contract as forfeited. One of the allegations by the Park-ers in their complaint was: ‘ ‘ That said contract required the defendant, Clem Whistle, upon the execution thereof, to pay to plaintiffs the sum of $10,000.00 as earnest money; the same to be applied as a part of the purchase price of said lands if he complied with the terms thereof and completed said purchase, otherwise, said sum was to be forfeited to plaintiffs and divided equally between them and the defendant, Seminole Title & Insurance Company, Inc., agent.”

Botli the Whistles and Seminole Title & Insurance Company were made parties defendant to the original suit, and both filed separate answers and cross-complaints. In its cross-complaint appellant here, Seminole Title & Insurance Company, prayed for one-half of the $10,000 earnest money in accordance with the terms of the contract. It used this language in its cross-complaint: “By way of further answer defendant, Seminole Title & Insurance Company, assumes the role as cross complainant herein and says that it is entitled to receive of and from the plaintiffs, D. C. Parker and wife, Anita H. Parker, the sum of $5,600.00 as commission in event the sale is consummated between the said Parker and wife and the said Clem Whistle and wife; further that in event said sale is not consummated and the earnest money deposited by the defendant, Clem Whistle, is forfeited to the said plaintiff Parker, then and in such event, the Seminole Title & Insurance Company is entitled to one-half of said earnest money, or the sum of $5,000.00. The Exhibit “A” attached to plaintiff’s complaint, being a copy of the contract involved, is hereby adopted as an Exhibit to this answer and cross-complaint as though set out herein word for word.” The Parkers made no reply or answer to this cross-complaint of Seminole.

The trial court denied Parker’s claim to the $10,-000 earnest money, whereupon the Parkers appealed to the Supreme Court and as indicated in our former opinion, we reversed the decree of the trial court and held that the Parkers were entitled to the $10,000 as liquidated damages (not as a forfeiture) in accordance with the terms of the contract. Our mandate contained this provision: “The court erred in failing to award D. C. Parker and wife judgment for $10,000 as liquidated damages, under the terms of a contract by which Clem Whistle and wife deposited this sum with an escrow agent as earnest money to guarantee the performance of a contract to purchase real estate, which contract was not complied with.

It is therefore ordered and decreed by the court that the decree of said chancery court in this cause rendered be, and the same is hereby, for the error aforesaid, reversed, annulled, and set aside with costs; and that this canse be remanded to said chancery court with directions to enter a decree not inconsistent with the opinion herein delivered.” Subsequent to the filing of the mandate Seminole filed petition asking for one-half of the $10,000. The trial court denied Seminole’s petition and directed the money, which had previously been paid into the registry of the court by Seminole, be paid over to the Parkers. This appeal followed.

On the record presented we have concluded that Seminole is entitled to one-half of the $10,000 liquidated damages in accordance with the plain terms of the contract upon which all parties relied. Whether this $10,000 bo considered as a forfeiture, as the Parkers claimed, or liquidated damages, as we held, it seems to us would make no difference in so far as the rights of Seminole are concerned. In the former appeal there was no suggestion nor contention on the part of the Parkers that Seminole was not entitled to one-half of the $10,-000 in question in case this amount should be awarded to the Parkers. Parkers based their claim on the contract which, as indicated, clearly provided that Seminole was to have one-half of the $10,000. In its cross-complaint Seminole specifically pleaded its right to one-half of this $10,000 under the contract in question, and the Parkers filed no answer or denial of this cross-complaint of Seminole. This, we hold, amounted to a concession or admission on the part of the Parkers that Seminole would be entitled to its share of the recovery.

While it is true that Seminole did not appeal in the former case along with the Parkers, however, Seminole’s rights were purely derivative, or dependent upon Park-ers’ recovery under the terms of the contract. “Derivative ’ ’ is defined by Bouvier’s Law Dictionary as 1 ‘ Coming from another; taken from something preceding; secondary ; as, derivative title, which is that acquired from another person . . . with regard to derivative acquisition . . . the person from whom the thing is acquired may not have an unlimited right to it . . . Derivative title must always be by contract.” The contract here in question was a bilateral contract and binding on both the Parkers and the Seminole Title & Insurance Company. After holding as we did in the former opinion, that the Parkers were entitled to recover the $10,000 on the contract, as liquidated damages, and reversing the case, it then became the duty of the trial court to determine Seminole’s claim, which under the terms of the contract was one-half of the $10,000, and to direct the payment of this amount to Seminole. Accordingly, the decree is reversed with directions to enter a decree consistent with this opinion.

The Chief Justice and Mr. Justice McFaddin dissent.

Ed. F. McFaddin, Associate Justice

(dissenting). I respectfully dissent from the reversal. By the rule known as “Law of the Case,” the Chancery. Court rendered the only decree that it could have rendered under the directions of this Court.

The majority opinion commences with the sentence: “This is the second appearance of this case before us.” So, the majority recognizes that the present case of Seminole v. Parker is the same case as Parker v. Seminole, et al. The former case in this Court was No. 1254, and the original transcript in that case shows that the appellants were D. C. Parker and Anita Parker, his wife; and the appellees in that case were Clem Whistle, Alice Keich Whistle, Seminole Title & Insurance Company and D. Fred Taylor, Jr. When we decided the former case we issued our mandate, which reads in part:

“The court erred in failing to award D. C. Parker and wife judgment for $10,000 as liquidated damages, under the terms of a contract by which Clem Whistle and wife deposited this sum with an escrow agent as earnest money to guarantee the performance of a contract to purchase real estate, which contract was not complied with.
“It is therefore ordered and decreed by the court that the decree of said chancery court in this cause rendered be, and the same is hereby, for the error aforesaid, reversed, annulled, and set aside with costs; and that this cause be remanded to said chancery court with directions to enter a decree not inconsistent with the opinion herein delivered. ’ ’

Let it be remembered that Seminole was a party ap-pellee in that case in this Court; and that the mandate directed that a decree be entered for the Parkers. If Seminole was dissatisfied with the mandate issued in that case, it should have applied to this Court to recall the mandate and make some provision to protect Seminole’s present claim. But no such motion was filed. The mandate, as previously copied, went down to the Chancery Court, and the Chancery Court entered the present decree, which is in strict accordance with the mandate. Seminole “sinned away its day of grace” in failing to ask for a modification of the mandate; and under the rule of 1 Law of the Case ’ ’ I think the Chancery Court’s present decree should be affirmed.

The rule of “Law of the Case” is recognized in scores and scores of our opinions. In West’s Arkansas Digest, “Appeal and Error,” Key No. 1096, et seq., the cases are cited. I mention only,a few:

In Hutson Motor Co. v. Lake, 193 Ark. 200, 98 S. W. 2d 947, in speaking of the rule of “Law of the Case,” we said:

“On a second appeal the judgment on the former appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former appeal, and also of those which might have been, but were not, presented. Storthz v. Fullerton, 185 Ark. 634, 48 S. W. 2d 560; American Ry. Express Co. v. Cole, 185 Ark. 532, 48 S. W. 2d 223; Ellis & Lewis v. Warner, 182 Ark. 613, 32 S. W. 2d 167.”

In National Surety Co. v. Long, 85 Ark. 158, 107 S. W. 384, we said:

“. . . the former decision, be it right or wrong, is the law of this case, and it is not now open for the court to change the law of the case, -whatever might be its views hereafter, should another case arise.”

So, under the rule of “Law of the Case,” I think the Chancery Court entered the correct decree in the case from which comes the present appeal.

Therefore, I respectfully dissent.

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


text:
    Worthen v. Rushing.
    5-1405
    307 S. W. 2d 890
    Opinion delivered December 23, 1957.

      T. E. Mayer, for appellant.

      W. E. Phipps, for appellee.
   Ed. F. McFaddiN, Associate Justice.

Appellee, Mrs. Rushing, filed suit to quiet her title to a house and lot, described by metes and bounds and also as located at 2515 Wright Avenue in Little Rock, and hereinafter called “the property”. She claimed title by adverse possession. Appellant, Mrs. Worthen, resisted the suit; and by cross-complaint deraigned paper title from the sovereignty of the soil and prayed for possession and quieting of her title. The Trial Court quieted Mrs. Rushing’s title, and Mrs. Worthen has appealed.

The evidence established that for some years prior to 1931, Mrs. Worthen owned and occupied the property; but the house became dilapidated, the fences collapsed; and in 1931 Mrs. Worthen vacated the premises. She claims that she planned to sell the property, but the proposed purchaser defaulted. At any event, shortly after Mrs. Worthen vacated in 1931, Mrs. Eushing and her husband and family moved into the house and took possession of the premises, without permission of anyone. The date of their entry was in March 1931. The house was in a terrible condition; and the Eushings set about to make the premises habitable. They installed doors and windows, had the house re-roofed, fenced the entire premises, and planted a garden. The Eushings’ possession has been continuous since March 1931.

There is considerable dispute as to whether the Eushings ever paid or agreed to pay any rent. Mrs. Rushing says that after they had been in the house a few months, some man tried to collect rent and she refused to pay. But Mrs. Worthen’s son-in-law testified that Mr. Eushing actually paid $15.00 rent at one time and a few dollars rent on other occasions in 1931 or early 1932. The testimony clearly indicates that if Mr. Rushing ever paid any rent, it was before 1933.

In September 1940 Mr. Rushing paid $61.19 to the State of Arkansas and obtained from the State Land Office a deed for forfeited town lots, which had this description: “Pt. W 1-2 SW 1-4 Sec. 9, Twp. 1-N, Eg. 12 W., one acre in city limits of Little Rock forfeited for 1929”. Of course, the foregoing quoted matter was indefinite and void as a description of lands; and it is not here contended that this deed was sufficiently valid to constitute color of title. But Mrs. Rushing claims that she and Mr. Rushing thought they had purchased the property by this deed. At that time,' Mr. Eushing (now deceased) had obtained information from some source that the property had been originally owned by Mrs. Worthen and had forfeited to the State for taxes.

After Mr. Eushing and his son (a witness here) acquired the said deed from the State Land Office and had it placed of record, they went to see Mrs. Worthen and told her that the Enshings had purchased the property from the State and were the owners thereof, and asked her if she had any deed or title papers; that, if she did, they wanted them. Mr. Eushing-, Jr. says that Mrs. Worthen was entirely agreeable. Mrs. Worthen admitted that the Eushings came to see her and wanted a deed; but she said she was sick and did not feel like talking to them.

This visit of the Enshings to Mrs. Worthen was in 1940. The Enshings evidently thought that they owned the property by virtue of the deed, because they made further and more substantial improvements on the property: they had a room added, had the entire house re-roofed, installed sewerage and electricity; and altogether have spent about $2,000.00 on the property. The Eushings have paid taxes and occupied the property ever since 1940, all the time claiming to be the owners. Of course, the description under which they paid the taxes was as indefinite as their deed, but they were claiming to be the owners of the occupied property.

Mrs. Eushing (as surviving entirety tenant) filed this suit to quiet her title on November 14, 1956. As heretofore stated, the Chancery Court entered a decree quieting Mrs. Eushing’s title, on the basis, inter alia, of adverse possession ; and from that decree Mrs. Worthen has appealed.

The point that gives ns most serious concern is whether the Rushings can claim adversely to Mrs. Worthen, after having paid rent in 1932, if they did pay snch rent. Onr cases hold, that when a person takes possession of property as a tenant and the relation of landlord and tenant is clearly established, then the tenant cannot claim adversely to the landlord. Dickinson v. Ark. City Imp. Co., 77 Ark. 570, 92 S. W. 21, 113 A. S. R. 170; Tyler v. Niven, 194 Ark. 538, 108 S. W. 2d 893; and Hoch v. Ratliff, 216 Ark. 357, 226 S. W. 2d 39.

Mrs. Worthen claims that the Rushings paid her rent in 1932 and thus became tenants; but the testimony shows that in 1940 the Rushings entirely disavowed any possible tenancy relationship and never paid any rent from 1940 until this suit was filed in 1956, and all the time have been holding the property with Mrs. Worthen making no overt claim to it in any way. We have concluded that the Chancellor was correct in quieting Mrs. Rushing’s title on the basis of adverse possession.

There are four factors that lead us to this conclusion :

(1) The Rushings did not enter the property as tenants of Mrs. Worthen: they entered as trespassers.

(2) The landlord and tenant relationship was never very clearly shown. Any payment of rent that Mr. Rushing might have made is a disputed item.

(3) Our cases recognize that a tenant can acquire an adverse tax title. Hoch v. Ratliff, 216 Ark. 357, 226 S. W. 2d 39; Sims v. Petree, 206 Ark. 1023, 178 S. W. 2d 1016; and Pickett v. Ferguson, 45 Ark. 177, 55 Am. Rep. 545. Of course, the deed from the State of Arkansas to the Rushings was not sufficient to constitute color of title because of the indefinite description; hut that deed at least showed the intention of the Rushings to own the property.

(4) The fourth and final factor is that the Rust-ings, by personal conversation with Mrs. Worthen in 1940, informed her that the Rushings were claiming the property as their own; and they completely disavowed any possible tenancy that might have existed theretofore.

Adding all these fonr factors together, we think the case at bar is clearly distinguished from any of the cases heretofore cited which hold that the tenant cannot claim adversely to the landlord. In Lewis v. Harper, 149 Ark. 43, 231 S. W. 874, Mr. Justice Wood, speaking for this Court, said: “. . . the law is that upon the disavowal of the landlord’s title the relation of landlord and tenant ceases, and as between them the tenant becomes a trespasser, and the landlord may sue at once to recover possession though the leasehold term has not expired. ’ ’ In the case at bar there was, in 1940, a complete disavowal by the Rushings of whatever relationship had previously been between the Rushings and Mrs. Worthen; and there was at that time personal notice brought home to Mrs. Worthen that the Rushings were claiming the property. Mrs. Worthen sat idly by and made no claim to the property and did nothing from 1940 until the filing of this suit in 1956.

In Sims v. Petree, 206 Ark. 1023, 178 S. W. 2d 1016, Mr. Justice Robins speaking for this Court, and after stating the general rule that a tenant may not, while in possession under a rental agreement, claim that his possession is adverse to the rights of the landlord, nevertheless went on to state: “. . . but this Court has held that one who enters as tenant is not precluded from subsequently holding adversely to his landlord. Gee v. Hatley, 114 Ark. 376, 170 S. W. 72.”

In the case of Gee v. Hatley, supra, Mr. Justice FraNk Gr. Smith quoted the language from the article on “Adverse Possession” in 1 R. C. L. § 68 and the sub-title, “Whether the Tenant May Hold Adversely”:

“ ‘As a general rule, the possession of a tenant is that of his landlord, and will be so deemed until the contrary appears. This rule affects all who may succeed to the possession, immediately or remotely, through or under the tenant. Therefore, so long as the relation of landlord and tenant exists, the tenant cannot acquire an adverse title as against his landlord. This is merely one application of the rule that the tenant cannot deny his landlord’s title. It is equally well settled that one who enters as tenant is not, merely because of that fact, precluded from subsequently holding adversely to his landlord. To do so, however, it is necessary to renounce the idea of holding as tenant, and to set up and assert an exclusive right in himself. It is also essential that the landlord should have actual notice of the tenant’s claim, or that the tenant’s acts of ownership should be of such an open, notorious, and hostile character that the landlord must have known of it. Such conduct on the part of the tenant necessarily furnishes the landlord with the legal title to enter and reposses himself of the premises’.”

In view of all of the foregoing, we reach the conclusion that the chancery decree was correct.

Affirmed.

         Hershey v. Thompson, 50 Ark. 484, 8 S. W. 689; Woodall v. Edwards, 83 Ark. 334, 104 S. W. 128; and Sutton v. Lee, 181 Ark. 914, 28 S. W. 2d 697.

         Here is his testimony: “Q. What was your purpose in going to Mrs. Worthen? A. Just like I said, after we got the tax title deed we found out that Mrs. Addie Worthen was the one that it was to and it went hack for taxes, if I ain’t mistaken, in her name. So we went to her to see if she had the original deed so we could see it and see whether or not it was recorded — I mean whether or not it corresponded. Q. That was the purpose? A. And to notify her that we had picked it up for taxes and she said, ‘Mr. Rushing, I am glad you bought the place and I hope you make a good home and a nice home out of it’. She said that standing on the front porch . . . Q. You told her it was for 2515 Wright Avenue? A. That is right. I told her it was for 2516 Wright Avenue.”

       The statute on adverse possession is §37-101 Ark. Stats. This is not merely a defensive statute but confers a title which can be enforced by suit. Jacks v. Chaffin, 34 Ark. 534; Smart v. Murphy, 200 Ark. 406, 139 S. W. 2d 33; and Hart v. Sternberg, 205 Ark. 929, 171 S. W. 2d 475.

       To the same effect is the text in 1 Am. Jur. 807, “Adverse Possession” § 32 et seq.


author: MiNOR W. Millwee, Associate Justice.

text:
    Carroll v. Kessinger.
    5-1413
    307 S. W. 2d 880
    Opinion delivered December 23, 1957.

      Shelby Blackmon and Frank J. Wills, for appellant.

      H. B. Stubblefield, for appellee.
   MiNOR W. Millwee, Associate Justice.

Appellant, Leroy Carroll, originally brought this suit to divest an undivided one-half interest in 40 acres of land out of L. A. Kesinger and World Gospel Mission, Inc., and vest it in Mm pnrsnant to an alleged oral contract between the appellant and Kessinger, who will be referred to as appellee. It was alleged that dnring negotiations for the purchase of the land, appellee fraudulently led appellant to believe that he was purchasing the property for them as tenants in common in accordance with their oral agreement; and that upon completion of the purchase appellee refused to convey to appellant his half interest although the latter was ready and able to pay half of the purchase price and expenses of sale.

The chancellor properly sustained appellee’s demurrer to the original complaint on the ground that its allegations disclosed an alleged contract within the statute of frauds, but appellant was allowed 15 days to plead further. An amendment to the complaint was then filed alleging the land was purchased pursuant to an oral partnership agreement between the parties to buy the 40 acres and any other lands that could profitably be resold; and that appellee breached the agreement by conveying the property to World Gospel Mission, Inc., without consideration. The new prayer for relief was that title to the 40 acres be vested in the parties as partners upon appellant’s payment of half the purchase price and acquisition costs; and that said partnership be wound up if they could not continue the venture. Appellee answered after his demurrer to the amended complaint was overruled and the case proceeded to trial. The court also overruled appellee’s demurrer to the evidence presented by appellant. This appeal is from a decree finding the issues in favor of ap-pellee at the conclusion of all the proof, and dismissing the complaint for want to equity.

Appellant lives in Sylvan Hills, a suburb of North Little Rock, Arkansas, and appellee lives in Little Rock. They have known each other for several years and occasionally have hunted together. In 1955 there was some discussion between them about the purchase of lands near the right of way for the new highway between Jacksonville and North Little Rock. Appellant telephoned appellee on August 29, 1955, and asked Mm to come out and look at a 40-acre tract owned by C. D. Ulrich. Ap-pellee drove to appellant’s borne where Ulrich was introduced to him and the three men inspected the property. Appellee and Ulrich then drove to Little Rock where they executed an “Offer and Acceptance” for sale of the land to appellee for $8,000.00 payable in annual installments dating from a conveyance to be executed when certain title defects were cleared. A second similar agreement was executed by them on November 14, 1955; and on February 14,1956, Ulrich executed his deed to appellee in accordance with their written agreement. On the same date appellee and his wife conveyed the land to World G-ospel Mission, Inc., with the latter assuming payment of the unpaid balance of the purchase price in the amount of nearly $6,000.00.

The evidence concerning any partnership arrangement, or other agreement whereby appellant was to be interested in the purchase of the land by appellee, is in sharp dispute. According to appellee it was under^ stood throughout the negotiations that he was buying and paying for the land for himself. He testified that-both before and after execution of the agreement to purchase on August 29, 1955, he told appellant it was all right to buy the land himself or with appellee but he refused, stating he was land poor and could not put up the money. According to appellant and his wife the parties talked about buying the land “fifty-fifty” and agreed to do so. The parties also talked to James Gr. Hill who lived in the vicinity about the purchase of another tract and he testified that appellee told him there was a partnership agreement. Appellant and Ulrich had been neighbors for 30 years. Appellant also testified he told Ulrich about the partnership arrangement but this was denied by Ulrich, who stated that appellant had never attempted to buy the land nor made any claim of any interest in the transaction to him.

Appellant called appellee again in February, 1956, and stated that new surveys had been made showing the 40 acres closer to the new highway and much more valuable, than originally expected and asked appellee to come out. Appellee testified that after again viewing the property appellant wanted to buy the most valu-ble 10 acres immediately adjacent to the new road for $2,000.00 hut appellee refused to sell it to him. This testimony was not specifically denied by appellant who had previously stated that appellee did not then tell him how much money appellant should put up but indicated that he would see him about it later. It is not contended that appellant ever actually tendered any part of the purchase price and acquisition costs; and there is little to indicate the parties contemplated a resale of the property jointly.

In support of his contention for' reversal appellant cites several cases to support the proposition that an oral contract of partnership for the purpose of buying lands jointly and divided the profits is not within the statute of frauds. In finding the issues in favor of appellee the chancellor perhaps did not reach this question, and neither do we. Before appellant could prevail under the rule, and take the case out of the statute, the burden was upon him to establish the partnership. In our opinion a preponderance of the highly conflicting evidence simply does not support the conclusion that a partnership was established. As we have frequently held: “In order to constitute a partnership, it is necessary that there shall be something more than the joint ownership of property. A mere community of interest by ownership is not sufficient. This creates a tenancy in common, but not a partnership.” LaCotts v. Pike, 91 Ark. 26, 120 S. W. 144. See also, O’Bryan v. Zuber, 168 Ark. 613, 271 S. W. 347. As we view the evidence, the chancellor could have justifiably found it insufficient to even establish an agreement for joint ownership of the property by the parties. The decree is accordingly affirmed.


author: George Rose Smith, J.

text:
    The Exchange Bank & Trust v. Gibbons.
    5-1407
    307 S. W. 2d 877
    Opinion delivered December 23, 1957.

      J. G. Ragsdale and B. L. Allen, for appellant.

      Melvin E. Mayfield and Surrey E. Gilliam, for ap-pellee.
   George Rose Smith, J.

The only question presented by this appeal is that of priority between a mortgage executed by J. M. Gibbons to the appellee McHen-ry and a later mortgage executed by Gibbons to the appellant bank. The chancellor held that the earlier mortgage had not lost its original priority. The decree awarded McHenry a first lien on the land and directed the foreclosure of both mortgages.

On March 25, 1947, Gibbons and his wife executed a mortgage to McHenry to secure three notes totaling $1,180, the last note being due March 17, 1950. No payments on this debt were ever made by Gibbons, but the due date of the indebtedness was extended by the execution of renewal notes in 1950 and 1954. McHenry failed to make an endorsement of the extensions upon the margin of the record, as required by Ark. Stats. 1947, § 51-1010; so, according to the record, the mortgage was barred by limitations on March 17, 1955.

On February 16, 1955 — -twenty-nine days before the McHenry lien was ostensibly barred — Gibbons and his wife executed to the bank what was in form a first mortgage on the land in dispute, securing a note for a preexisting debt of $2,250. This mortgage was filed for record the next day. The present suit was brought by McHenry in March of 1956, the bank being joined as a defendant. Although the debtors made no defense to the claim of either mortgagee, Mrs. Gibbons was called as a witness by McHenry and testified that when the mortgage to the bank was signed her husband told the president of the bank, Lewis Hurley, that he was taking a second mortgage and that McHenry held the first mortgage.

On these facts alone the case is clearly governed by the holding in Clark v. Shockley, 205 Ark. 507, 169 S. W. 2d 635. There the first mortgage was not yet barred of record when the subsequent mortgage was executed, and the junior mortgagee had actual knowledge of the existing incumbrance. Payments on the prior mortgage were made by the debtors, but the holder of the mortgage failed to make the required notation on the margin of the record. On the authority of several earlier decisions we held that, despite the junior mortgagee’s knowledge of the outstanding lien, the first mortgage lost its original priority when the mortgagee permitted it to become ostensibly barred of record.

Counsel for McHenry frankly concede that the Clark case would end the matter if the facts were limited to those already stated, but they insist that other proof distinguishes this case from that one. This proof, in addition to Mrs. Gibbons’s version of the actual transaction with Hurley, comprises the testimony of two other witnesses. C. L. Greene, an accountant and lawyer, had been employed by a third person in connection with. Gibbons’s affairs. In a discussion with Hnrley this witness was told that when Hnrley accepted the mortgage to the bank he understood that it was a sec» ond mortgage. As Green had no contractual relation with any party to the litigation this testimony merely shows knowledge on the part of Hurley, which, under the Clark case, is immaterial.

McHenry testified that, upon being told by Gibbons that a mortgage had been given to the bank with the understanding that it was a second mortgage, he had a conversation with Hurley, who verified Gibbons’s statement. "I asked him [Hurley] whether or not Gibbons told him that he was taking a second mortgage, that I already had a mortgage on the property, and he said yes he knew that, Gibbons told him.” It is not shown whether this conversation took place within the twenty-nine days that remained before the first mortgage was apparently barred or during the eleven months that thereafter elapsed before this suit was filed.

This testimony does not support the various arguments that are advanced for affirmance of the decree. It certainly does not show that the bank bound itself by contract to subordinate its mortgage to the McHenry lien. The bank’s mortgage did not by its terms recognize the prior lien, as was the case in McFaddin v. Bell, 168 Ark. 826, 272 S. W. 62, nor was there an explicit oral agreement in advance between the lienors, as in Merchants’ & Planters’ Bank v. Citizens’ Bank of Grady, 175 Ark. 417, 299 S. W. 753. The most that can fairly be said from the testimony is that Gibbons, in giving the mortgage to the bank, voluntarily and candidly told Hurley that there was an existing lien in favor of McHenry, and Hurley was nevertheless willing to accept the proposed security. Even if Gibbons’s oral statement to Hurley could be regarded as contractual in nature, it would of course have been merged in the written contract.

It is equally plain that the essential elements of an equitable estoppel are wanting. Such an estoppel requires that the innocent person be misled to his detriment, so that it would be inequitable to permit the person estopped to change his original position. Pomeroy begins his familiar enumeration of the requisites of es-toppel, with this statement: “There must be conduct — acts, language, or silence — amounting to a representation or a concealment of material facts.” Pomeroy, Equity Jurisprudence (5th Ed.), § 805. Later, in § 813, the further statement is made: “The estoppel is commensurate with the thing represented, and operates to put the party entitled to its benefit in the same position as if the thing represented were true.”

Here the vital requirement of a misrepresentation is wholly lacking. It was McHenry who went to Hurley for the purpose of confirming Gibbons’s statement in the matter; Hurley did not take the initiative in an attempt to lull McHenry into a feeling of security. McHenry asked Hurley whether Gibbons had told him that he was taking a second mortgage. Hurley, who appears to have acted with candor throughout, truthfully answered that Gibbons had so informed him. It is plainly impossible for an estoppel to be based upon a statement that was true when made and that the maker still asserts to be true. That the McHenry mortgage has now lost its priority is not due to any misrepresentation on the part of the bank; it is simply the result of McHenry’s carelessness or ignorance of the law, which led him to allow his mortgage to become barred as to third persons.

It is also suggested that the bank was somehow guilty of fraud in failing to prepare for the Gibbonses’ signature a mortgage expressly reciting the priority of the McHenry lien. On this point it seems sufficient to say that the debtors seem to have signed the mortgage, as prepared, without objection, that they make no assertion of having been deceived, and that McHenry is not entitled to complain of a supposed fraud in a transaction to which he was not a party.

Reversed.

McFaddin, J., dissents.