author: G-eoegb Rose Smith, Justice. CoNley Byrd, Justice,

text:
    Mary Alice Moore, Administratrix, et al v. Michael Robertson et al
    5-4156
    413 S. W. 2d 872
    Opinion delivered April 24, 1967

      Bernard, Whetstone, for appellant.

      John M. Graves and Louis Tarlowshi, for appellee.
   G-eoegb Rose Smith, Justice.

This action arises out of a head-on collision in Calhoun county between a car owned and being driven by Ezell Walters and a pick-up truck that its driver, Michael Robertson, had borrowed temporarily from its owner, Jim Ritchie, a filling station operator who used the truck in his. business. There were two passengers in the Walters automobile: Clayton Moore, who was killed, and Wallace Montgomery, who was injured. Moore’s widow and Montgomery, now the appellants, brought the suit, originally naming only Robertson and Ritchie as defendants. The principal question on appeal is whether the trial court abused its discretion in setting aside a default judgment against Robertson, the driver of the truck owned by Ritchie.

The complaint was filed on November 23, 1964. Ritchie was. served with summons on November 27 and duly filed his answer on December 16. Robertson was served with summons on December 2, but he failed to file an answer within the time allowed by law. On January 11, 1965, on motion of the plaintiffs, the court entered a default judgment against Robertson on the issue of liability, with the question of damages to be heard at a later date. Also on January 11 the plaintiffs amended their complaint to bring in a third defendant, J. 0. Ashcraft, asserting at the time of the collision Robertson was employed by Ashcraft and was acting in the scope of his employment. (The original complaint had asserted that Robertson was employed by Ritchie.)

On February 12 Ritchie filled a motion to set aside the default judgment against Robertson. Ritchie asserted that his liability insurance company had undertaken his defense, as required by the policy. The motion then went on to allege:

That under the terms of the policy there is and will be a question of coverage with regards to defendant, Michael Robertson. In view of this, insurer through its agents and servants, contacted defendant, Micháel Robertson, with regards to the summons served on him . .. and were advised in writing on December 1, 1964, that Mitchell Robertson would take appropriate action in order to answer the summons to avoid any default judgment being rendered. Relying on the written statement of defendant Michael Robertson, defendant Jim Ritchie’s insurer did not deem it necessary or proper to undertake the defense of Michael Robertson at that time. That had Michael Robertson not indicated that he intended to retain an attorney to answer the complaint filed against him, that even thongh there was and is a question of coverage under the terms of the policy issued to defendant Jim , Ritchie, he would have undertaken the defense of Michael Robertson.

On February 23 Robertson filed his own motion to vacate the judgment against him, asserting the same facts as. those set out in Ritchie’s motion. The court heard and decided the matter before the expiration of the term at which the default had been taken. No testimony was introduced, but the plaintiffs admitted the assertions of fact in the motions. The court vacated the judgment, without stating its reasons. Later on the case was tried on its. merits and resulted in a judgment in favor of all three defendants.

Whether a default judgment should be vacated during the same term is an issue lying within the discreton of the trial court. Johnson v. Jett, 203 Ark. 861, 159 S. W. 2d 78 (1942). Hence the question now before us is. whether there was an abuse of discretion in this instance. We have concluded that there was, that the judgment should not have been vacated.

At one time our statutes were markedly liberal in permitting trial courts to grant, extensions of time for the filing of defensive pleadings and to set aside default judgments within the term. That liberality was greatly curtailed by the enactment of Acts 49 and 351 of 1955. Those acts were construed in Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439 (1957), and Pyle v. Amsler, 227 Ark. 785, 301 S. W. 2d 441 (1957). We held that the 1955 statutes were mandatory in requiring a defendant to plead within the time fixed by law and in allowing a trial court to set aside an ensuing default judgment only upon a showing of unavoidable casualty.

Some two months before the Walden and Pyle cases were decided the legislature adopted Act 53 of 1957, which relaxed, the strictness of the 1955 acts, to the extent of declaring that “nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause.” Ark. Stat. Ann. § 29-401 (Repl. 1962). In the case at hand there is no issue of unavoidable casualty. The question is whether the trial court abused its discretion in finding either excusable neglect or other just cause for vacating the judgment.

As far as. Robertson himself is concerned, no excuse whatever is offered for his failure to file an answer. He had been served with a summons.. He knew that an answer was required. He assured Ritchie’s insurance carrier that he would take appropriate action in time to avoid a default. Yet he did nothing and offers no explanation for his. delinquency.

Ritchie and his. insurer are in no better position than Robertson. Ordinarily they would have no standing to question a' judgment entered against a codefendant. Here, however, the insurer seeks, to step into Robertson’s shoes by raising the possibility that his liability to the plaintiffs may be within the coverage of Ritchie ’& policy. Yet how can the insurer be permitted to enjoy the benefits of Robertson’s position without also submitting to its. burdens ? The company relied upon Robertson to act in its behalf, to protect it from the consequences of a default judgment. In. the circumstances Robertson’s, inexcusable neglect must be imputed to the insurance company. We have often held that a party is bound by the negligence of his attorney in failing to file an answer. Dengler v. Dengler, 196 Ark. 913, 120 S. W. 2d 340 (1938), citing earlier cases. If one cannot rely upon his. attorney in such a situation there is even less, basis for reliance upon one having no knowledge of the law.

During our discussion of the case there was. a suggestion that the trial court was justified in setting aside the default judgment, on the ground that the plaintiffs joined Ashcraft as. a defendant on the same day that the judgment was obtained. We perceive no inconsistency in the plaintiffs’ course of action. They we.re entitled, under the law, tp a default judgment against Eobertson. There were entitled, under the law, to pursue whatever remedy they might have against Ashcraft. Absent any incompatibility between the plaintiffs’ two claims for relief — and there was none — we perceive no reason for requiring them to give up one right as a condition to asserting the other.

At the trial on the merits the court found that the sole cause of the collision was Ezell Walters’ drunken driving and that Eobertson was not acting in the course of his employment by Ashcraft, his workday having ended before the collision occurred. The appellants question the sufficiency of the proof to sustain those findings, but we think it enough to say that there is an abundance of competent evidence to sustain the trial court’s, decision.

With respect to Eobertson the judgment is reversed and the cause remanded for reinstatement of the default judgment; with respect to Eitchie and Ashcraft the trial court’s judgment on the merits is affirmed.

Byrd, J. dissents.

CoNley Byrd, Justice,

dissenting. Where, as here, a default judgment can serve no purpose or be sustained on any theory except as a penalty for failure to plead within the twenty days required by Ark. Stat. Ann. § 27-1135 (Repl. 1962), it is my position that the trial court may set aside the default under the “other just cause” provision in Ark. Stat. Ann. § 29-401 (Repl. 1962).

Obviously, Eobertson has not brought himself within the “excusable neglect” or “unavoidable casualty” provisions of the statute (although it is an oddity that he, a truck driver, did not wish Eitchie’s insurer to represent him in the matter). Nor does Eitchie have any standing to question a judgment against Eobertson. But with the trial court it is a different proposition, for the plaintiffs were still pursuing their lawsuit against Eitchie and Ashcraft.

The alleged liability of Ritchie and Ashcraft to plaintiffs wag based upon the premise that Robertson was negligent in the operation of Ritchie’s truck. Consequently in pursuing their cause of action' against Ritchie and Ashcraft, plaintiffs would force the trial court to ‘try the issue of liability (or negligence) of Robertson. Ritchie and Ashcraft had denied that Robertson was negligent.

No delay was occasioned to plaintiffs in the presentation of their case because they did not make Ash-craft a party until the day the default was entered against Robertson. Nor were the pleadings completely joined at the time the default was set aside.

The default entered went only to the liability of Robertson. The .damage issue remained to be presented. Any trial court, conscious of its work load, would certainly want to try the damage issue against Robertson at the same time the damage issue was presented against Ritchie and Ashcraft.

Thus, a default against Robertson did not relieve the trial court of the burden of trying the issue of negligence on the part of Robertson,- it would not expedite plaintiff’s rights against Robertson; and by permitting’ the default on liability to stand, the trial court ran the risk of having to enter inconsistent verdicts. See Porter-Dewitt Constr. Co. v. Danley, 221 Ark. 813, 256 S. W. 2d 540 (1953).

What purpose then does a default serve? Under the proceeding’s of this case, it did not relieve the trial court of the responsibility of determining the negligence or liability of Robertson, nor would it expedite the handling of plaintiff’s claims in the ordinary course of events. Does a default under these circumstances amount to anything more or less than a penalty? I think not.

Courts abhor penalties and will not enforce them, even when a person has contracted to pay them. Canadiam, Mining Co. v. Creekmore, 226 Ark. 980, 295 S. W. 2d 357 (1956) ; McIlvenny v. Horton, 227 Ark. 826, 302 S. W. 2d 70 (1957).

Furthermore, trial judges are not struck with blindness. Only a little inquiry of counsel on the facts would show that the practical issue here was whether Robertson was negligent in failing to successfully avoid a collision with a drunk driver on the wrong side of the road. While cases may he found in which a person in Robertson’s position has been found to be negligent, such is contrary to the norm of human conduct, and the trial court was certainly entitled to take this into consideration in setting aside the default — particularly so since it would have to hear the testimony on that issue anyway.

For the reason set forth above, I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: Paul Ward, Justice.

license: Public Domain

text:
    Ernest W. Rowley v. Arkansas State Highway Commission
    5-4201
    413 S. W. 2d 876
    Opinion Delivered April 24, 1967

      Gordon and Gordon, for appellant.

      John R. Thompson and Joe T. Gunter, for appellee.
   Paul Ward, Justice.

This is a'n action where the Arkansas Highway Commission (appellee) sued to condemn, for highway construction purposes, land belonging to Ernest W. Rowley (appellant). The decisive issue on appeal requires an interpretation of Ark. Stat. Ann. § 76-536 (Repl. 1957) which is § 3 of Act 115 of the Acts, of 1953. Since the facts out of which the issue arises are not in dispute they will be briefly stated.

Appellee’s complaint, filed November 1, 1963, sought to take the fee in .04 acres, of land; at the same time appellee deposited in court $2,000 as the estimated value, and; filed a declaration of taking as. provided in Ark. Stat. Ann. § 76-534 (Repl. 1957). Also on the same day the court entered an Order of Possession giving ap-pellee “the right of immediate entry onto the possession of the property ...” On December 4, 1963 appellant answered, stating the $2,000 was. grossly inadequate and asking for just compensation. Later, at appellant’s request he was given permission by the court to withdraw the $2,000 deposit.

On July 14, 1965 appellee filed an Amendment to its Complaint and also an Amendment to its Declaration of Taking, asking the trial court to allow it to take only a part of the land originally sought. Then appellant filed a Motion to strike the amended complaint. A response was. filed by appellee, and, on February 7, 1966, the trial court overruled the Motion to Strike, stating appellant would have the right to prove any damage done to the land not taken.

On March 15, 1966 a jury was impaneled to determine the value of the land (as reduced by the amended complaint. The jury fixed the amount at $1,000. In entering* the judgment for said amount in favor of appellant the trial court also entered judgment for $1,000 against appellant and in favor of appellee.

Appellant now prosecutes this appeal from the last portion of the above judgment, relying only on the following point:

“The trial court erred in permitting the appellee to abandon a portion of the lands originally taken. ’ ’

It is. our conclusion that appellant is correct and that the trial court erred in allowing appellee to amend its original complaint and declaration of taking.

The statute first referred to above, § 76-536, reads as follows, in all parts, pertinent here:

“Immediately upon the making of the deposit provided for in Section 5 [§ 76-538] title to said lands in fee simple .. .símil vest in the persons entitled thereto ...” (Emphasis owrs.)

Appellee makes no contention that § 76-538 mentioned above was not complied with.

Appellee attempts, to evade the plain wording of the statute by citing numerous decisions from this and other jurisdictions, which concededly hold that the con-demnor can amend its complaint to take less property than first asked for. However, they have no persuasive value here because they were decided before the enactment of the statute here relied on by appellant. Ark. Stat. Ann. § 76-536 (Repl. 1957) is § 3 of Act No. 115 of 1953. Prior to 1953 this state had no statute similar to the one just mentioned, nor does it appear that the cited decision from other jurisdictions were confronted with any such statute.

It is argued, also, by appellee that it would be against public policy to require the State to purchase more property than it needs or can use. This, argument, however, is answered by Ark. Stat. Ann. § 76-548 (Repl. 1957) which gives the Highway Commission the right to sell any real property “which is no longer necessary or desirable for State Highway purposes ...”

The cause is therefore reversed and remanded for further actions consistent with this, opinion.


author: Lyle Brown, Justice.

text:
    B-W Acceptance Corp. v. Norman Polk, d/b/a Norm's Furniture City
    5-4166
    414 S. W. 2d 849
    Opinion delivered April 24, 1967
    [Rehearing denied May 29, 1967.]

      Barber, Henry Thurman, McCaslcill & Amsler, By Guy Amsler Jr, for appellant.

      Clint Huey, for appellee.
   Lyle Brown, Justice.

B-W Acceptance Corporation originated this suit in replevin against appellee Norman Polk, d/b/a Norm’s Furniture City. Jury trial resulted in a verdict in favor of Norm’s.

Norman Polk was a retail furniture and appliance dealer in Warren. The merchandise involved was purchased from two wholesale distributing companies, Douglass Distributing Company and Magnavox Company. Norm’s had arranged with B-WAC to carry financing paper on items purchased from these companies. The distributors would transfer the title to Norm’s purchases to B-WAC. In turn, Norm’s would cause to be executed in its behalf a B-WAC WHOLESALE FLOOR PLAN. Each of the instruments was designated as “Trust Receipt” and one would be executed for each order. The original due date on each trust receipt was ninety days. Each month Norm’s floor-planned merchandise would be checked by B-WAC’s field representative. The representative would calculate the amount due B-WAC for items sold out of the trust, and Norm’s would give him a check. 'If out of a particular trust list some items of listed merchandise still remained on the floor, then that particular trust receipt could be renewed for another ninety days. For the renewal a service charge was required. The renewal fee could be paid either by Norm’s or by the distributor who indorsed that particular trust receipt.

The trust receipts are identical except for the listed appliances. They may be described generally as a type of title retaining instruments. Title is, of course, retained by B-WAC, and possession is given Norm’s for the purpose of sale in the regular course of business. The provisions of the trust receipts pertinent to a decision in the case are as follows:

“I (we) may sell the merchandise at retail in the regular course of business, for not less than the respective release price listed below, however, upon any such sale I (we) shall forthwith account for and deliver the proceeds thereof to B-WAC (Entruster) or its assigns for application upon the debt with respect to merchandise so sold, and until such accounting and delivery, I (we) shall hold the entire proceeds in form as received in trust for B-WAC (Entruster), or its assigns, separate and apart from our own funds. I (we) further agree to permit B-WAC (Entruster) or its. duly accredited representatives to physically inspect and to see the model and serial number on such merchandise on the floor at all reasonable times during business hours.. ’ ’

A default in either of these or other obligations, authorized B-WAC to collect the amount due or take possession of the merchandise.

B-WAC’s claim in replevin was two-pronged. A violation of its right of inspection was claimed, along with alleged default in three trust receipts.

Appellant’s Point 1 (a): BWAG was denied its right to inspect the merchandise on the floor at all reasonable times during business hours. Since we do not here try issues of fact, it would serve no useful purpose to summarize all the evidence. We simply examine the record to determine if there is substantial evidence to support the jury verdict.

Norman Polk had been in the furniture and appliance business in Warren since 1958. B-WAC and Norm’s, started their finance dealings in 1963. Arrangements were made for floor plan financing and for the financing of retail sales. Ordinarily, B-WAC’s field representative stationed at El Dorado checked Norm’s floor plan merchandise during the first half of each month. Then during the latter part of the month the representative would return to Warren and work any delinquent retail accounts. Friction arose between the parties in December 1964, and culminated in circumstances forming the basis of this Point 1 (a). The field representative on his December inspection calculated the amount due B-WAC. Norm’s gave him a check in the proper amount and asked that it be held. The check was forthwith cashed. On the January inspection the same experience occurred. When the second check was cashed Norman Polk called the Little Bock office of B-WAC and complained. On the basis of that conversation and his evaluation, the branch manager of B-WAC decided that Norm’s floor plan should he checked and collection made twice monthly. This new arrangement, in the manager’s opinion, wonld avoid requests for holding checks.

On January 25th the field representative returned to Norm’s under instructions from the branch manager. The first discussion between the representative and Norman Polk was about some delinquent retail accounts. Norman Polk was under the impression that they could be charged against his retail reserve held by B-WAC. The two called the Little Bock office of BWAC about the matter. The branch manager refused Norman Polk’s request and then asked to talk with the field representative. After the latter conversation the field representative walked over to Norman Polk and said he was repossessing “all my floor plan.”

All of Norm’s trust receipts were that day mailed from Little Bock to the field representative, and he returned to the store with them the following day. (In the meantime, Magnovox’s credit manager called long distance about its account.) B-WAC’s representative requested a complete check of all the floor-plan merchandise. Anticipating a repossession, Norman Polk said he would first want to talk to his lawyer. He gave the representative his lawyer’s name. That ended the conversation.

B-WAC’s manager called Norm’s attorney, who testified at the trial. The attorney had not studied the contract. It was his recollection that Norman Polk told him of an agreement on the part of B-WAC or its representative to check his inventory once each month. Assuming such agreement existed, Attorney Boberts advised B-WAC’s manager that B-WAC should inspect upon the regular agreed dates. No further contact was made by B-WAC with Norman Polk, and suit was shortly filed.

The substance of the testimony we have recited was offered by appellee, Norman Polk. From this testimony, buttressed by other circumstances in the record, the jury concluded that B-WAC had not been denied its right “to inspect at all reasonable times.” This is a relative term. Does it mean daily, weekly, monthly, or any time which satisfies, the desires of the inspector? The answer depends upon the peculiar circumstances, of a particular status quo. The jury must have been impressed, as are we, that there was no impending threat of insolvency, fraud, unsecured indebtedness, or serious, delinquency. The customary monthly inspection was. made on January 6th and Norm’s'remitted for the billing.

Suffice it to say that the jury found B-WAC had not been denied the right to inspect at all reasonable times. Considering the burden of proof, the evidence, and the valued right of jurors to take into consideration their own observations, and experiences, we cannot say as a matter of law that the jury erred.

Appellant’s Point 1 (b): Trust Receipts 7, 12, and 13 had matured at the time this action was1 filed. Trust Receipt, "(Ex.) 7. It was executed February 6, 1964, due in ninety days. During that year two of the five listed items were sold and reittanmces weré made to B-WA'C’s field representative. Each ninety days there was a renewal of the trust in the customary manner. The last renewal in 1964 advanced the due date to February 1, 1965. This lawsuit was filed February 2, 1965. (Subsequent “curtailment” or “service” charges have been, made each three months, presumably by Douglas Distributing Company.) B-WAC accepted the renewal from Douglass, which distributor had a power-of attorney from Norm’s with respect to these trust receipts.

Trust Receipt, (Ex.) 12. The original maturity date was. January 22,1965, some nine days before the filing of this suit. A three-months renewal is' indorsed on the receipt, showing “renewed to 4-22-65.”

Trust Receipt, (Ex.) 13. The original'maturity date was January 28,1965, some five days before the filing of this suit. Again, a three months renewal is indorsed on the trust receipt, showing “renewed to 4-28-65.’-’

When B-WAC elected to indorse a renewal on a trust receipt in lien of request to the distributor for payment of the note and charged the “renewal service charge” to the debtor., the jury could conclude there had 'been no default.

Appellant’s Point 2: The trial court erred in 'permitting the introduction of testimony relative to Norm's outstanding retail installment sales contracts financed by B-WAC. We agree with appellant that if the only purpose of this testimony was to establish a motive for the filing of this suit, the evidence would be inadmissible. Boynton Land & Lumber Company v. Dye, 126 Ark. 513, 191 S. W. 13 (1910). However, it was admissible for other purposes. It could possibly shed some light on the important question of whether the last visit by B-WAC’s representative to Norm’s was in the course of a reasonable inspection of the floor-planned merchandise. This line of questioning was initiated by appellee’s counsel on cross-examination and could well shed some light on the witnesses’ credibility.

Appellant’s Point 3. It was error for the court to submit to the jury, as an element of damage to Norm’s, the expenditure of an attorney’s fee. We have examined the previous holdings, of our court in which the allowance of an attorney’s fee has been upheld in the absence of statutory authority. This case does not fall within the framework of those cases. In fact, this court has held that an attorney’s fee is not recoverable in a replevin case. Jacobson v. Poindexter, 42 Ark. 97 (1883).

Affirmed except as to the allowance of an attorney’s fee.


author: Lyle Brown, Justice. JohN A. FoglemaN, Justice,

text:
    Georgia Pacific Corp. v. B. Bryan Larry, Commissioner of Revenues
    5-4188
    413 S. W. 2d 868
    Opinion delivered. April 24, 1967

      Griffin Smith, for appellant.

      Lyle Williams and Tom Tanner, for appellee.
   Lyle Brown, Justice.

The Arkansas Commissioner of Revenues assessed a sales tax against Georgia Pacific Corporation on materials manufactured in Arkansas by Georgia Pacific. The materials were sold; they were withdrawn from stock and utilized in Georgia Pacific’s facility at Crossett, Arkansas. Secondly, the commissioner assessed an Arkansas Compensating (Use) Tax against Georgia Pacific on products'which Georgia Pacific manufactured without the State and which were shipped to Crossett and likewise utilized in the Crossett facility. The trial court upheld both assessments.

Sales Tax. The Arkansas Gross Receipts Act of 1941 (Sales Tax) is basically a tax on gross proceeds, or gross receipts, derived from the sale of tangible personal property and certain specified services. However, the 'Legislature enlarged the term “gross proceeds” or “gross receipts” to include stock withdrawals for personal use. Section 2 (d) of Act 386 reads as follows:

“(d) [Standard definition of ‘gross proceeds’ or ‘gross receipts.’ The term ‘gross proceeds’ or ‘gross receipts’ shall include the value of any goods, wares, merchandise, or property withdrawn or used from the established business or from the stock in trade of the established reserves for consumption or use in such businesses or by any other person.” Ark. Stat. Ann. §§ 84-1902 (Repl. 1960).

With respect to the second paragraph of Section 2 (d), it was interpreted by this court in Cook, Com. of Rev. v. Southwest Hotels, Inc., 213 Ark. 140, 209 S. W. 2d 469 (1949) :

“It cannot be doubted that under § 2 (d) of Act 386 one who withdraws merchandise or commodities from his commercial establishment or stockpile, or who reserves it for personal use, is. chargeable with the two per cent tax.”

It is our holding that Georgia Pacific is liable for the sales tas.

Use. Tax. The Arkansas Compensating Tax Alct of 1941 has no provision even remotely resembling the “withdrawal for use” provision contained in the sales tax act. Ark. Stat. Ann. § 84-3105 imposes a tax on articles purchased for use, storage, or consumption within this State. Throughout the Act, the words, “sales,” “sales price,” and “purchase,” are used to predicate the taxing of the use of the articles purchased for use, storage, or consumption.

Since there are no express words in the Use Tax Act which wonld justify the imposition of the tax on “withdrawals for use,” it is onr duty to resolve the question in favor of the taxpayer. See U-Drive-Em Service Co., Inc. v. Hardin, Commissioner of Revenues, 205 Ark. 501, 169 S. W. 2d 584 (1943).

This case is distinguishable from Republic Steel v. McCastlain, 240 Ark. 979, 403 S. W. 2d 90 (1966). In that case, Republic shipped reinforcing steel bars from its manufacturing plant in Chicago to Arkansas. Here, Republic processed the bars into a finished product and used them in building certain improvements for the United States Government under a construction contract held by Republic Steel. The opinion emphasizes the fact that Republic was acting in two separate and distinct capacities — as a manufacturer, it made the steel bars; as a contractor, it used them to perform its contract. As a manufacturer, Republic transferred its title in the steel bars to itself or its agent in the capacity of a contractor.

In this case, there was no dual capacity transaction. This was strictly a situation in which Georgia Pacific, for example, desired to remodel some offices in Crossett. In Oregon it owns a plant where panelling is manufactured. Georgia Pacific sent for a quantity of panelling and installed it in its offices. There the transaction ended. In this situation we hold Georgia Pacific is not liable for the use tax.

Affirmed in part and reversed in part.

FoglemaN and Byrd, JJ., would reverse as to both sales tax and use tax.

JohN A. FoglemaN, Justice,

dissenting. I respectfully dissent from that part of the majority opinion affirming the lower court on the assessment of sales or gross receipts tax. It seems obvious to me that there must be a transfer of title or possession before there is a tax. In sustaining this tax, the majority rely upon a statement from Cook v. Southwest Hotels, Inc., 213 Ark. 140, 209 S. W. 2d 469, admitted hy appellee in its brief to he dictum. It is interesting to note that in this case holding that hotels were not liable for the tax on food consumed hy employees, the court said that tax liabilities do not spring from inexact language, nor do they attach by construction, — rules that the majority is overlooking.

On the contrary, a reading of the statutes indicates that no tax was imposed upon a transaction such as this. Ark. Stat. Ann § 84-1903 (Repl. 1960), provides:4‘There is hereby levied.an excise tax of,three per centum (3%) upon the gross proceeds or gross receipts derived from all sales to any person * # Ohvioiisly the tax is clearly upon gross proceeds from sales. But these words are .defined in the statute (quoted only insofar as applicable here):

“84-1902. Definitions. — The- following words and phrases shall, except where the context clearly indicates a different meaning, have, when used in this act [§§ 84-1901 — 84-1904, 84-1906 — 84-1919], the following meanings:
(a) Person: The term ‘person’ includes any individual, company, partnership, joint venture, apd joint agreement, association (mutual or otherwise), corporation, estate, trust, business trust, receiver, or trustee appointed by any State or Federal Court or otherwise, syndicate, this State, any county, city, municipality, school district, or any other political subdivision of the State or group. or combination acting as a unit, in the plural or singular number.
# * *
(c) Sale: The term ‘sale’ is hereby declared to mean .the transfer of either the title or possession, except in the case of leases or rentals., for a valuable consideration of tangible personal property, regardless of the manner, method, instrumentality, or device by which such transfer is accomplished. The term ‘sale’ is also declared to include the exchange, barter, lease, or rental of tangible personal property. [Supp. 1965.]
(d) Gross Receipts — Gross Proceeds: The term ‘gross receipts’ or ‘gross proceeds’ means the total ampunt of consideration for the sale of tangible personal property and such services as are herein specifically provided for, whether the consideration is in money or otherwise, without any deduction therefrom on account of the cost of the property sold, labor service performed, interest paid, losses or any expenses whatsoever.
The term ‘gross proceeds’ or ‘gross receipts’ shall include the value of any good, wares, merchandise, or property withdrawn or used from the established business or from the stock in trade of the established reserves for consumption or use in such business or by any other person.”

This clearly indicates that the tax is levied only upon the gross proceeds from sales to persons. When the definition of gross proceeds or gross receipts is read into the section levying the tax, one cannot read out the words following — “derived from all sales to any person” — nor can. one department of the same corporation as the seller qualify as a “person”. Consequently, there can be no .tax where there is no transfer of either the title or possession of the property involved. If the legislature had intended .the effect given by the majority, then they would have changéd the definition of the word “sale” to cover this transaction.

While it might be argued that the literal application of the terms .of the act make it ambiguous, this favors the taxpayer, not the taxing authority.

This tax, like the former inheritance tax, is an excise tax or privilege tax. Hardin v. Vestal, 204 Ark. 492, 162 S.W. 2d 923. As such, it is a special tax. McDaniel v. Byrkett, 120 Ark. 295, 179 S.W. 491. The laws imposing such a tax are to he construed strictly against the government and in favor of the taxpayer. McDaniel v. Byrkett, supra ; McCain v. Crossett Lbr. Co., 206 Ark. 51, 174 S. W. 2d 114 ; Scurlock v. City of Springdale, 224 Ark. 408, 273 S. W. 2d 551. Tax acts are to he construed most strongly against the sovereign and most liberally in the taxpayer’s favor. Thompson v. Chadwick, 221 Ark. 720, 255 S. W. 2d 687.

A tax cannot be imposed except by express words indicating the purpose to do so. Wiseman v. Arkansas Utilities Co., 191 Ark. 854, 88 S. W. 2d 81 ; Cook v. Ark. Missouri Power Corp., 209 Ark. 750, 192 S.W. 2d 210 ; Cook v. Ayers, 214 Ark. 308, 215 S. W. 2d 705 ; Commissioner of Revenues v. Arkansas State Highway Comm., 232 Ark. 255, 337 S.W. 2d 665 ; Cheney v. Tolliver, 234 Ark. 973, 356 S.W. 2d 636. The express purpose to tax must be so clear that no reasonable mind should conclude the intent was otherwise. Cook v. Southwest Hotels, 213 Ark. 140, 209 S.W. 2d 469.

Where there is any ambiguity or doubt it must be resolved in favor of the taxpayer and against the taxing power. Wiseman v. Arkansas Utilities Co., 191 Ark. 854, 88 S. W. 2d 81 ; McCain v. Crossett Lumber Co., 206 Ark. 51, 174 S. W. 2d 114 ; Cook v. Wofford, 209 Ark. 824, 192 S.W. 2d 550 ; Cook v. Ayers, 214 Ark. 308, 215 S.W. 2d 705 ; Commissioner of Revenues v. Arkansas State Highway Commission, 232 Ark. 255, 337 S. W. 2d 665. All ambiguities or doubts respecting liability for the tax must be resolved for the taxpayer. City of Little Rock v. Ark. Corporation Commission, 209 Ark. 18, 19 S.W. 2d 382 ; Moses v. McLeod, 207 Ark. 252, 180 S. W. 2d 110.

Even if the general assembly intended to do what the majority says they did, we cannot say so unless we can say that their language necessarily leads to that conclusion. Hardin v. Ft. Smith, Couch & Bedding. Co., 202 Ark. 814, 152 S. W. 2d 1015. The courts are not at liberty to imply a meaning tp a tax act which is not clearly stated. Scurlock v. City of Springdale, 224 Ark. 408, 273 S.W. 2d 551. As was said by this court in McLeod v. Commercial National Bank of Little Rock, 206 Ark. 1086, 178 S.W. 2d 496 :

“If it be thought that, at most, the legislative purpose as expressed by the words employed is ambiguous, still the holding must be adverse to appellant because doubt in such cases is invariably resolved in favor of the taxpayer.”

These rules were applied in holding that the rental of automobiles was not subject to this tax, the transfer of possession not being exclusive but only temporary. U-Drive-Em Service Co. v. State, 205 Ark. 501, 169 S. W. 2d 584.

While a law '•■should be construed to give some meaning to all its parts, if possible, the construction must not be inconsistent with the language used therein. Cook v. Arkansas State Rice Milling Co., 213 Ark. 396, 210 S. W. 2d 511.

It should be noted that the legislature must have defined “gross proceeds or gross receipts from sales” as they defined “gross receipts” in order to reach the result attained by the majority, a construction inconsistent with the language of the act.

This court has expressly held that in view of the rules that tax acts are to be construed in favor of the taxpayer, we cannot, read into it matters adverse to the taxpayer. Morley v. Pitts, 217 Ark. 755, 233 S. W. 2d 539. To reach the conclusion in the majority opinion it is necessary in these circumstances to either read out of § 84-1903 the words ‘ ‘ derived from all sales to any person or read the same words into the definition of “gross proceeds” or “gross receipts”. Certainly we should apply the same rule as was applied on the attempt to read something into the statute.

I submit that in affirming the court as to the sales tax, the majority is giving the act a liberal construction in favor of the taxing power, is resolving ambiguities against the taxpayer, is reaching a conclusion to which the language of the legislature does not necessarily lead, and reading words out of the literal terms of the act. I would reverse the decree of the trial court on both taxes.

I am authorized to state that Byrd, J., joins in thh dissent.

       On motion of B. Bryan Larey, presently Commissioner of Revenues, he is substituted as appellee in lieu of his predecessor, Doria McCastlain.


author: JohN A. FoglemaN, Justice.

text:
    Ruth Sparks v. The First National Bank in Little Rock
    5-4189
    413 S. W. 2d 865
    Opinion delivered April 24, 1967

      Griffin Smith, for appellant.

      John H. Haley, for appellee.
   JohN A. FoglemaN, Justice.

Appellant questions the propriety of an order of the Probate Court appointing a guardian for her without notice and without any medical testimony. Appointment of a guardian was sought by her daughters who alleged her to be incompetent by reason of mental incapacity, “including habitual drunkenness and excessive use of drugs”. Subsequently, these daughters petitioned for immediate appointment of appellee as temporary guardian for ninety days, alleging that appellant had fled the state to evade service of process on the original petition. The trial court heard the testimony of one Odie Criglow Green, a sister of appellant, and one of the daughters. Finding that the welfare of appellant required the appointment, the court appointed appellee as temporary guardian of appellant’s estate and a daughter as. temporary guardian of her person, both for ninety days. No contention is made that any medical testimony was heard by the court.

The court proceeded under Ark. Stat. Ann. § 57-620 (Supp. 1965) [§ 207 of Act 140 of 1949, as amended] which provides:

“Temporary guardian. — If the court finds that the welfare of an incompetent requires the immediate appointment of a guardian of his person or of his estate, or of both, it may, with or without notice, appoint a temporary guardian for the incompetent for a specified period, which period including all extensions thereof, shall not exceed.ninety 90 days, and remove or discharge him or terminate his guardianship. If made without notice, the temporary guardian s'liall forthwith, give to the incompetent person notice of the appointment. The appointment may be to perform duties respecting specific property or to perform particular acts, as stated in the order of appointment. The temporary guardian shall make such reports as the court shall direct, and shall account to the court upon termination of his authority. In other respects the provisions of this Code concerning guardians shall apply to temporary guardians, and an appeal may be taken from the order of appointment of a temporary guardian. The letters issued to a temporary guardian shall state the date of expiration of the authority of the temporary guardian. [Acts 1949, No. 140, § 207, p. 304 ; 1951, No. 255, § 12, p. 591.]” [Emphasis ours]

Another section of the Probate Code, (§ 188 of Act 140 of 1949) appearing as § 57-601 c. Ark. Stat. Ann. (Supp, 1965), defines the word “incompetent” as used in the Code. Insofar as this case is concerned, an incompetent is a person who is “incapable, by reason of insanity, mental illness, * * *habital drunkenness, excessive use of drugs or other mental incapacity, either of managing his property or oaring for himself.”

Sec. 57-614 Ark. Stat. Ann. (Supp. 1965) [§ 201 of 140 of 1949] requires that, before appointing a guardian for a person, the court must be satisfied that he is either a minor or otherwise incompetent.

Ark. Stat. Ann. § 57-615 (Supp. 1965) [§ 202 of Act 140 of 1949] provides for a hearing for determination of incompetency and, in pertinent part, reads:

“a. Minors. The fact of minority shall be established by satisfactory evidence.
b. Other Incompetents. In determining the incompetence of a person for whom a guardian is sought to be appointed for cause other than minority the court shall requiré that the evidence of incompetence include the oral testimony or sworn written, statement of one or more qualified medical witnesses, whose qualifications shall he set forth in. their testimony or written statements. If the alleged incompetent is confined or undergoing treatment in an institution for the treatment of mental or nervous diseases, or a hospital or penal institution, one of the medical witnesses shall he a member of the medical staff of such hospital or institution.” [Emphasis ours]

It is clear from a mere reading of the statute that the framers of the Probate Code intended that no guardian be appointed without the court having the benefit of a medical opinion. Appointment of a person or corporation to take charge of one’s property, even for a limited time, is a drastic step and it is appropriate for the legislative branch to determine appropriate safeguards. The use of the word “shall” requires a construction making the testimony or statement of at least one qualified medical witness mandatory in determination of incompetency. If this clause were to he construed as permissive, then it is a useless appendage, for the court could require medical testimony if it desired without this clause. The construction of the word “shall” as' being mandatory is supported by the following sentence providing that one of the medical witnesses, if the alleged incompetent is confined or undergoing treatment in an institution or hospital, ‘ ‘ shall be a member of the medical staff of such hospital or institution.”

The section on temporary guardians provides for procedures, in certain instances, .different from those prescribed for other guardians. The specific statement with reference to the application of other provisions of the Code to temporary guardians clearly indicates .an intent that those procedures governing the appointment of guardians are also applicable to the appointment of temporary guardians. If the contention of appellant is correct, the section would not only have provided for hearing “with or without notice” but also with or without the testimony or statement of a medical witness or witnesses.

"While this court has recognized that the provision with reference to temporary guardianships was designed to take care of emergencies or instances where delay could cause irreparable damage to the estate of an incompetent [See Becker v. Rogers, 235 Ark. 603, 361 S. W. 2d 262], also recognize that damage might well be done to one not incompetent by the improper appointment of a guardian for his person or estate or property. If the safeguards are too exacting, the matter is for legislative, not judicial, attention.

"We do not pass upon the question of the necessity of any examination of the incompetent by the medical witness, as that question is not before us; however, we find nothing in the Probate Code to require that medical witnesses must have examined the alleged incompetent.

The order of appointment óf the 'temporary guardian is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Jones, J., not participating.

Byrd, J., disqualified.

       Letters of guardianship, however, failed to note the limitation on the appointments, as required by statute.


author: J. Fred Jones, Justice.

text:
    Tri-State Mill Supply Company v. Process Engineering Inc. and Peoples Loan & Investment Company
    5-4095
    414 S. W. 2d 94
    Opinion delivered April 24, 1967
    [Rehearing denied' May IB, 1967.]

      Wright, Lindséy & J earnings, for appellant.

      Edgar A. Woolsey Jr. and Jeta Taylor and Harper, Harper, Young & Burden, for appellee.
   J. Fred Jones, Justice.

Tri-State Mill and Supply Company sued Process Engineering, Inc., J. D. Sanders, Ozark Sales & Service Company and Peoples Loan & Investment Company in the Circuit Court of Franklin County. The case was transferred to Chancery.

Tri-State sought a money judgment against Process, in the amount of $41,217.63 for materials sold on open account. It sought a materialman’s, lien paramount to a mortgage held by Peoples Loan on the property involved. Peoples cross claimed for foreclosure of its. mortgage, and Tri-State answered with the affirmative defense of usury.

The trial court dismissed the complaint of Tri-State as to Process; entered a decree in favor of Peoples Loan for $11,524.29 and ordered foreclosure of the mortgage security. Tri-Staté has appealed.

In this ease either Tri-State or Process' must suffer a loss because Sanders, a Tri-State salesman, succeeded in obtaining from Tri-State materials that were charged to Process but us.ed by Sanders in ventures undertaken by him for his own benefit. Fundamentally the issue is whether, on the one hand, Sanders had such apparent authority to act for Tri-State that Process was justified in not questioning the purchases, charged to Process’ account with Tri-State, or, on the other hand, Sanders’ course of dealing was so indicative of bad faith that Process, should have attempted to ascertain the extent of his actual authority. The controlling principles of law are not in issue. See Hill v. Delta Loan & Finance Co., 224 Ark. 785, 277 S. W. 2d 63 (1955), and McCarroll Agency v. Protectory for Boys, etc., 197 Ark. 534, 124 S. W. 2d 816 (1939).

Tri-State Mill Supply Company is a corporation engaged in the business of manufacturing and selling mill supplies of all kinds including steel buildings and steel chicken houses made to order. Tri-State has its principal place of business in Arkansas, and makes its sales to customers through individual commission salesmen operating out from its branch offices in Arkansas. Tri-State obtains from “vendors.” such items its customers demand, which are not manufactured by TriState or held in stock by it in warehouses.

Process Engineering, Inc. is. a corporation with its principal place of business in Oklahoma. Process is. engaged in the business, of prefabricating and erecting steel buildings, including feed mills and chicken houses. The designing and preparation of plans and specifications and the erection of buildings and installation of equipment and machinery according to plans and specifications, seem to be the principal business of Process. A Mr. Stone is the president and general manager of TriState, and Mr. Ellis is president and general manager of Process.

About 1961, one James D. Sanders had gone broke in the contracting business in another state, and upon his return to Arkansas he was employed as a salesman for Tri-State by Mr. Stone. Mr. Stone and Sanders had been boyhood friends, and it appears that the usual investigation as to background and integrity was waived in Mr. Sanders ’ case when he was employed by Tri-State and Mr. Sanders was assigned to Northwest Arkansas working out of the Conway branch office of Tri-State.

Tri-State and Process had done considerable business with each other on a rather loose but mutually satisfactory basis until Sanders went to work for Tri-State in 1961. Soon after Sanders went to work for Tri-State, Mr. Ellis was invited to a sales meeting held by TriState in Pine Bluff, at' which time he was introduced to the Tri-State salesmen and his business was solicited by Tri-State and he was assured that Tri-State salesmen were of the highest integrity and that their words could be relied upon.

It appears that the business, conducted by Tri-State, as related to the business of Process, and the benefits one expected to derive from the services of the other, were brought about and carried on in this manner: The salesmen for Tri-State would sell a completed building (turn key job) to be erected where the purchaser wanted it. Tri-State would make its profit on the sale of a completed building, the salesman would receive his commission from Tri-State, and to avoid the appearance of being in competition with other contractors who purchased their materials from Tri-State, Process would actually prepare the plans and specifications, for buildings sold by Tri-State, and insofar as other contractors were concerned, Process was, an independent contractor who was just another customer of Tri-State. Insofar as the. purchaser was concerned, Process was a subcontractor or a part of Tri-State, and insofar as Tri-State and Process were concerned, their actual relationship is not clear from the record. In any event, the materials for the jobs contracted by Tri-State were billed out to Process. When Process needed materials for its own separate jobs, it purchased these materials from Tri-State. When a job was completed, or at convenient intervals, Tri-State and Process would balance their accounts and settle any difference.

After Sanders went to work for Tri-State, he sold a grain elevator to Arkansas Valley Industries to be erected in Mississippi. He arranged with Mr. Ellis for Process to design and actually erect the building, and all materials were billed out to Process as if Process was an independent contract customer arid had procured the contract itself and was merely purchasing the materials from Tri-State. Mr. Ellis settled up with Tri-State upon completion of this job and no controversy arose. The ¡materials for this job were billed out to Process, although the construction was procured by Sanders representing Tri-State.

The record in this case contains considerable testimony to the effect that after Sanders was. employed by Tri-State, Tri-State further extended its interest into the actual construction and installation of the buildings and machinery it sold to owner customers, and in order to keep it from appearing that Tri-State was' competing with its contractor customers in the erection of buildings and installation of machinery, Tri-State would bill the materials out to Process, making it appear that Process was the actual customer, when in fact the final purchaser of the building or machinery was the customer of TriState, the inference being that through billing the materials out to Process, Tri-State would reap the benefits of the profits on the erection of the building and installation of the machinery, as well as the mark-up profits on the materials sold, thus putting Tri-State actually in competition with other contractors who sold “turn key” building jobs to individuals and purchased the materials from Tri-State.

As a matter of fact it would appear from the record that this procedure may well have been Sanders’ idea and primarily initiated by him. The record would also indicate that if Tri-State did not encourage the procedure, it did nothing to discourage it when it knew, or should have known, that this procedure was being carried out by Sanders especially through Process.

In regard to the job in Mississippi, Mr. Stone testified as follows:

“Q. Can you briefly describe the transaction between Tri-State and AVI?
A. It was a sales agreement. Now the reason I recall it so vividly, the reason is we had our legal counsel draw up the sales agreement. We were studiously not entering into a contract. It was a salés agreement whereby we would furnish this grain elevator for a specified price. Now, we were going to buy this thing and erect it by Process for a specified price.
Q. You say you had your legal counsel examine this document. Why?
A. We don’t go into contracting. We don’t do contracting work as contractor.
# # # -
Q. What did your contract with AVI provide then?
A. We agreed to sell AVI this equipment installed by Process at their plant in .Greenville per specification for a given price.
* # *
Q. Did you ever see a written agreement between Sanders purportedly on behalf of Tri-State and Process ? Or was all of this oral as far as you were concerned?
A. I don’t recall seeing such an agreement. I cannot at the same time say there isn’t any.
Q. So far as your were concerned, is it your understanding that Process was purchasing certain material from you on that particular job?
A. Well, the understanding is, or it was my interpretation of the understanding that we were actually selling the job to AVI. We were in turn buying it from Process. But because we were able to sell this particular job, Process was going to buy whatever materials they needed that we handled to do the job with from us.
* * *
THE COURT: This is. cross examination.
Q. Why were you studiously avoiding the contract?
A. We . are not in the contracting business, and we don’t have a contractor’s license.
Q. You would be competing with your customers, would you not?
A. That is true.
Q. And wouldn’t want to do that directly?
A. No, sir.
Q. But you did make this contract through Jim Sanders yourself and allow Process Engineering to perform it as if they were purchasing the material from you. Is that not a fair statement of that situation? Isn’t that why you avoided the contract directly?
A. Well, we avoided the contract directly for the reasons I just gave you. This was a sales agreement between Tri-State and AVI duly drawn up by legal counsel. Now, we did buy the job from Process Engineering through our contract.
Q. Did they agree to install your material?
A. They agreed to do the job. At the same time they agreed to buy from us. whatever materials they might need in the job that we had to sell.
Q. Hadn’t Jim Sanders already arranged for the job, as a matter of fact, before this contract?
A. Well, he had been in contact with the customer and had gotten it up to a point of sale.
Q. Had he not signed an agreement in Tri-State’s name, and didn’t you later back up that agreement?
A. No, sir.
Q. He had signed no agreement? Is that your testimony?
A. I am not saying that. I. am trying to recall exactly. He. may' have signed a document which we voided and so notified the customer.
Q. But it was performed, was it not?
A. We voided it.
Qi You tore up the document but you performed the contract, didn’t you?
A. We replaced it with a sales agreement.
Q. That you signed yourself?
A. That is right.
Q. But you went ahead on the same practice and pattern he had in actual fact outlined for your' company, didn’t you? You hacked his agreement in practice and in fact?
A. We hacked up his sales, we sure did.
Q. All the way?
A. Yes, sir.”

We do not say that this procedure was legally, morally or even ethically wrong, hut it is obvious from the record that this procedure placed Sanders in a position to perpetrate the fraud he obviously perpetrated according to the record in this case.

While acting as a salesman for Tri-State in Northwest Arkansas, Sanders simply started selling- chicken houses to farmers, ordering the materials from Tri-State, charged or hilled out to Process, and delivered to the farm of the purchaser where they were erected under the supervision of Sanders, and in some instances with the assistance of Process from whom he also purchased some items of material. Sanders collected from the farmers, paid enough on his personal account for materials and labor to Process to keep his credit good with Process, and finally sold a $9,500.00 chicken house to a farmer near Ozark, ordered the chicken house from Tri-State on Process’ account, took a deed to 76.25 acres of land in payment for the chicken house and built-three more chicken houses for himself on the land so purchased. He purchased the materials for his own three chicken houses from Tri-State, had the materials charged to Process, and then borrowed $16,211.49 from Peoples Loan & Investment Company, mortgaging the land with the new chicken houses thereon to Peoples as security for the loan should he live, and taking out a life insurance policy through Peoples as additional security for the loan should he die.

Sanders ordered most of the materials he purchased from Tri-State through the Tri-State Conway office. He not only ordered and obtained delivery of the materials on Process’ account without question from Tri-State or Process, he dictated the mark-up to he charged, or profits to he derived by Tri-State, on the items purchased. On several occasions Sanders sold materials for TriState and then exceeded his authority by purchasing the materials direct from “vendors” on Tri-State’s account, and Tri-State “hacked him. up.”

Mr. Jerry Wayman, manager of the Tri-State Conway branch, testified as follows:

“Q. Who prepared the total figure in the bill on the invoice? Where did that total come from?
A. The total bill for Process?
Q. Yes.
A. I would have totaled the invoices from vendors, the delivery tickets from stock, and Mr. Sanders would tell me how much to add on what he had sold the job for.
Q. What do you mean, how much to add?
A. What percentage of profit to make. In other words, he would tell me how much he had sold that job for.
Q.' Now, just looking at the delivery tickets and the purchase orders of vendors, what figures are shown there?
A. Cost figures only.
Q. Those are strictly cost figures.?
A. That is correct.
Q. Then the add on for profit?
A. Yes, sir.
Q. Is there a standard add on every job, such as five per cent or ten■ per cent for mark-up.
A. No, sir.
Q. What did you rely upon Mr. Sanders for then —to give you the percentage mark-up? '
A. That is correct.
Q. Was the customer aware of the percentage mark-up to be charged on a job?
A. I don’t know, sir. My information came from Sanders.
Q. Sanders.
* # *
A. .. .that is a ticket that we use to ship something from our warehouse to a customer.
Q. In other words, you make this up yourself?
A. Yes, sir. It is a printed form and we fill in this part.
Q. Who does it show this material was sold to?
A. That is a memo shipping ticket that says that it was shipped to Tri-State at Conway.
Q. That says it was sold to you?
A. Yes, .sir.
Q. Sold to Tri-State at Conway?
A. Yes, sir.
Q. Who does it say it is shipped to?
A. Jim Sanders.” (emphasis supplied)

Mr. Ellis of Process, testified that when he received the hillings from Tri-State on the materials purchased by Sanders for the chicken houses:

“I discussed the matter with the people involved and was assured that this was being carried on in the same manner in which we had worked with TriState before. As for lack of a better name, as a third party in their negotiation. We had been requested by Mr. Stone and by the people at TriState to operate in this manner, and in turn bought certain materials and services from us. We hall operated in that manner prior to this time. Alii negotiations had been open and above-board. Our relations had been excellent with this group of pec pie.”

Sanders formed a corporation, Ozark Sales & Serv ice Company which was made party defendant in this case, but Sanders’ luck ran out before his corporatior. got underway, and Sanders wound up in bankruptcy owing Process $25,400.70 for materials and service purchased from■ Process, and owing Tri-State $41,217.63 for materials he purchased for Process, and owing Peoples Building and Loan $11,524.29 for borrowed money secured by a mortgage and a life insurance policy with the premiums prepaid.

Sanders exchanged a $9,500.00 chicken house for the 76.25 acres of land, he built three other chicken houses on this land and then transferred it to Tri-State by warranty deed impressed with a mortgage to Peoples in the balance amount of $14,995.68.

The appellant contends, that the loan from Peoples Loan and Investment Company to Sanders was usurious and the mortgage lien void. This contention is based upon the allegation that Sanders was required to take out term life insurance as a prerequisite to obtaining the loan. The record shows the life insurance was obtained upon a separate application. Without the inclusion of the premiums paid, the loan would not be usurious. Since this issue turns upon whether or not Sanders was forced to carry the life insurance as a prerequisite to obtaining the loan, the chancellor’s, finding to the effect that Sanders was not forced to carry the life insurance is not contrary to a preponderance of the evidence.

We have diligently searched the briefs, and the entire record and have found nothing which we feel was overlooked by the chancellor in this case. The chancellor was confronted with a fact question presented on conflicting testimony, and we are unable to say that the findings of the chancellor were clearly against the preponderance of the evidence.

The decree of the chancellor will be affirmed.

Affirmed.


author: CoNLey Byrd, Justice.

text:
    City of Little Rook v. Leawood Property Owners Association
    5-4254
    413 S. W. 2d 877
    Opinion delivered April 24, 1967

      Joseph C. Kemp and Perry V. Whitmore, for appellant.

      Patten & Brown and Louis W. Rostech, for appellee.
   CoNLey Byrd, Justice.

The city of Little Rock, Arkansas, appeals from the action of the circuit court in granting a zoning variance to appellee, Leawood Property Owners’ Association, for the purpose of constructing a swimming pool and related recreational facilities. At issue is the scope of review permitted by the circuit court on appeals from actions of the city’s Board of Adjustment, and the sufficiency of the evidence to sustain the circuit court’s judgment in favor of the Leawood Property Owners.

The Leawood Property Owners’ Association is a nonprofit corporation formed for the purpose of constuct-ing, maintaining and operating a swimming pool and recreational area in the Leawood section of Little Rock. Leawood is a. composite of several contiguous subdivisions of the city of Little Rock, consisting of several hundred nice residences of recent construction.

The Leawood Property Owners initiated this action by requesting permission of the Little Rock Planning Commission to amend the bill of assurance and restrictive covenant applying to one of the parcels on which the Association proposed to construct its facilities. The Planning Commission permitted the amendment and then suggested to the Association that, since the Little Rock zoning ordinances did not make a specific zoning provision for swimming pools and related community facilities, the Leawood Property Owners would have to go before the Board of Adjustment. The Board of Adjustment denied the application for a variance without any assignment of reasons therefor.

The city’s authority with respect to zoning, the jurisdiction of the Planning Commission, and the duties of the Board of Adjustment are contained in Act 186 of 1957. This is a comprehensive act providing for the creation of the City Planning Commission, zoning, subdivision control, etc. With respect to the Board of Adjustment it provides as follows (Ark. Stat. Ann. § 19-2829 [Supp. 1965]):

“The zoning ordinance shall provide for a board of zoning adjustment, which may either he composed of at least three (3) members or the planning commission as a whole may sit as the board of zoning adjustment. The board of zoning adjustment shall have the following functions:
# • *
“ (2) Hear requests for variances from the literal provisions of the zoning ordinance in instances where strict enforcement of the zoning ordinance would cause undue hardship due to circumstances unique to the individual property under consideration, and grant such variances only when it is demonstrated that such action will be in keeping with the spirit and intent of the provisions of the zoning ordinance. The board of zoning adjustment shall not permit, as a variance, any use in a zone that is not permitted under the ordinance. The board of zoning adjustment may impose conditions in the granting of a variance to insure compliance and to protect adjacent property.
“Decisions of the board of zoning adjustment in respect to the above shall be subject to appeal only to a court of record having jurisdiction.”

Act 186 of 1957 was amended by Act 134 of 1965 (Ark. Stat. Ann. § 19-2830.1 [Supp. 1965]), as follows:

“In addition to any remedy now provided by law, appeals from final action taken by the administrative, quasi judicial, and legislative agencies, concerned in the administration of this act may be taken to the Circuit Court of the appropriate county, wherein the same shall be tried de novo according to the same procedure which applies to appeals in civil actions from decisions of inferior courts, including the right of trial by jury.”

At trial in circuit court, appellees took the position that under Act 134 of 1965 they were entitled to present their petition for a zoning variance anew in the same manner as appeals from municipal courts and justice of the peace courts. Appellants contended that the only issue before the circuit court was whether the Board of Adjustment, in making its decision, was arbitrary. In making its argument, appellant relies upon Missouri Pac. R. R. Co., Thompson, Trustee, v. Williams, 201 Ark. 895, 148 S.W. 2d 644 (1941), but due to the difference in the language between the reviewing statutes in that case and Act. 134 here,, that case does not sustain appellant’s position. We therefore hold that under Act 134, above, appellee was correct in its position that appeals from the Board of Adjustment to the circuit court are to be tried de novo on the same issue that was pending before the Board of Adjustment.

Having decided that the circuit court may try anew the issue presented to the Board of Adjustment in the first instance, the next question is whether there was substantial evidence to support the judgment of the circuit court. In this connection Robert Beal, a real estate salesman with the firm of Rector-Phillips-Morse, testified that he had sold lots in subdivisions where swimming pools and related community facilities were planned as part of the development, and that a swimming pool assisted in the sale and development of the lots — particularly those close to the pool and park area. It was Mr. Beal’s opinion that the construction of the pool and-related recreational area would enhance the property in the Leawood area. Mr. James Larrison, called on behalf of the Leawood Property Owners, testified that he could not conceive of a situation where a swimming pool would lessen the value of surrounding property where the pool was operated within the regulations of the city, with proper setback, screening, and off-street parking.

In addition to the testimony, Act 186 (Ark. Stat. Ann. § 19-2829 [c] [Supp. 1965]) provides that the city in its control of the development of subdivision land, may request the reservation, for future public acquisition, of land for community or public facilities; and that when a proposed subdivision does not provide an area or areas for community or public facilities, the city regulations may provide for a reasonable dedication of land for such facilities or for a reasonable equivalent contribution in lieu of dedicated land, the contribution to be used for acquisition of facilities to serve the subdivision.

In view of the lack of any zoning classification for swimming pools by the city zoning ordinances, the testimony before the court, and the statutes recognizing the desirability of community facilities such as are here involved, we must hold that there was substantial testimony to sustain the court’s finding that the variance here granted would be in keeping with the spirit and intent of the provisions of the zoning ordinance. There was certainly substantial evidence from which the trial court could find that the proposed variance would not alter the character of the neighborhood.

Affirmed.


author: CarletoN Harris, Chief Justice.

text:
    Robert Thorn v. State
    5213
    414 S. W. 2d 85
    Opinion delivered May 1, 1967
    (No brief for appellant).

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. General, for appellee.
   CarletoN Harris, Chief Justice.

Robert Thom, appellant herein, was accused of the crime of possessing stolen goods of the value of more than $35.00, the item being a 1955 Ford Fairlane automobile. On trial, he was convicted, and the jury fixed his punishment at one year in the penitentiary. From the judgment so entered, appellant brings this appeal.

For reversal, it is first argued that, “The trial court erred in permitting witnesses to testify on behalf of the state who were not made known to appellant prior to the trial.” This point is based upon- the contention that counsel for appellant only learned of three or four ‘of the witnesses on the day of trial. "We find no merit in this argument. In the first place, though not at all clear, it appears that the additional names were added to the list shown on the Information on the 19th of January, 1966, and appellant was not tried until January 25, 1966. Whether notified or not by the sheriff or prosecuting attorney, it does appear that the list was available, and the record does not reflect that counsel for' appellant made any effort to contact officials for the purpose of ascertaining the names of additional witnesses. At any rate, the statutory requirement is merely directory. Baker v. State, 215 Ark. 851, 223 S. W. 2d 809. In Norton v. State, 237 Ark. 783, 376 S. W. 2d 267, the prosecuting attorney had furnished the names of all state witnesses, except Katy Thompson, the prosecutor telling the defense counsel that he could not recall her name, and would furnish it later. This was not done, and, on appeal, this failure was cited as error.

We said:

“In fact, however, the prosecuting attorney overlooked the matter of communicating the requested information to the defense attorney before the trial. Even so there was no error in permitting* Katy Thompson to testify, for the defense could have learned her identity simply by making a telephone call to the prosecuting attorney or to Keith. In the circumstances it cannot be said that the State unfairly produced a surprise witness.”

It might also be stated that there was sufficient evidence to convict Thorn without using the witnesses complained of, their testimony being largely cumulative.

Appellant contends that the court erred in overruling his motion for a directed verdict of not guilty, i. e., he contends that the evidence was insufficient to sustain' the verdict. We do not agree.

Jimmy Rogers testified that his car was stolen, and that the car returned to him by the sheriff belonged to him. The value of the car was considerably more than $35.00.

Earl Orr, state trooper, heard' a radio report that a red and white Ford Fairlane had been stolen, and, while passing through Arkadelphia, he observed an automobile, answering this description, parked near a restaurant. Two men were in the vehicle, one in the front, and one in the back. The officer drove one block, made a call to check the number of the license tag on the stolen car, received the information, and started back to the automobile, but it had been driven away, though Orr could see it some distance’ ahead. He started in pursuit, but lost sight of the vehicle while making a curve. Resurfacing of the highway was in progress, and one lane of traffic was blocked with barricades. The occupants of the Ford were forced to stop, and Orr observed three men running from the car. They ran across a field and into some woods. Other officers were notified, and a search was made in the area, the officers later obtaining bloodhounds from the State Prison. Shortly after midnight, two of the men, including Thorn, were located about twenty yards off .a gravel road, lying in a sage grass field. This was about five or six miles from where the automobile had been abandoned. Orr identified Thorn as one of the men he had observed in the car.

Ike Dawson, an employee of Reynolds Metals' Company, testified that as he was on his way to town he observed a red and white Ford on the highway; that this automobile stopped quickly and three men jumped out and ran over into the woods; that within seconds a state police car drove up and stopped behind the Ford.

Richard McElhannon testified that he was working on a fence in front of his home, and observed three men come out of the woods:

“* * *So I stood still and watched them, and they climbed over the fence and sat down, and a couple of them pulled off their shoes and dumped something out; and then my little dog was out in the road barking at them. One of them finally got up; I guess it must have been three or four or five minutes, maybe, and came down toward where my truck was parked, which evidently they hadn’t seen before, and takes a look around and out down the road; doesn’t see anything; slips on a pair of cotton gloves and heads for my truck. Well, that’s when I stepped out from where I was, and asked him what he was doing. He asked me the way back to Arkadeíphia, and I told him the way back to Arkadel-phia, but not -with my truck. So he went on back out in the woods and all three climbed back over the fence and left.”

Rick Emory, who had charge of the bloodhounds, was present when the two men were located in the sage, and he identified Thorn as one of them.

Sheriff Witt Stevenson, Sheriff of Clark County, also engaged in the search for the men, and was present when they were apprehended. He identified Thorn as one of the two, stated that the men were tired, hungry and thirsty, and that their clothes were torn.

Lt. Herrell Porterfield of the state police likewise was present when Thorn was apprehended.

Thus, appellant was identified as being one of the persons in possession of the automobile, was identified in the vicinity of the abandoned car by a farmer, identified as one of the persons running away from the vehicle, and was placed under arrest after being trailed by the bloodhounds to his hiding place.

Orr testified during the trial that when Thorn was arrested and searched, he had several hundred dollars in bills on his person. There was no objection to this testimony by appellant, and in' his closing argument, the prosecuting attorney said:

“*** We had better stop these men running around the countryside filling their pockets with money, and I say unlawfully.”

This statement was objected to, and appellant moved for a mistrial. The motion was denied, but the trial court told the jury that Thom was not being tried for larceny of money, and the possession of the money could not be considered unless it shed light on the theft of the automobile. No prejudice could have resulted to appellant, and, for that matter, no objection having been made when the testimony was given, the prosecuting' attorney was actually commenting on the evidence.

Finding' no reversible error, the judgment is affirmed.

BrowN, J., disqualified and not participating.

       The attorney who tried this case obtained the order for an appeal to this court, but he has not filed a brief. The Attorney General has briefed the case in accordance with our Rule 11(f) & (g), basing his brief on alleged errors which were asserted in the motion for trial.


author: George Rose Smith, Justice.

text:
    Charles Perryman v. State
    5234
    414 S. W. 2d 91
    Opinion delivered May 1, 1967
    No brief for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. General, for appellee.
   George Rose Smith, Justice.

The appellant was convicted of having indecently exposed himself to a girl under the age of sixteen. Ark. Stat. Ann. §§ 41-1127 and -1129 (Repl. 1964). The jury fixed his punishment at imprisonment for six months. 'The testimony of the prosecuting witness and of another high school student who was present when the incident occurred was amply sufficient to support the verdict.

The court did not err in allowing the fifteen-year-old prosecutrix to testify. In criminal cases the trial judge is given wide discretion in determining the competency of a minor as a witness. Harris v. State, 238 Ark. 780, 384 S. W. 2d 477 (1964). There was no abuse of discretion here. Quite the opposite, the record suggests no basis for questioning the competency of this witness. Nor did the court err in refusing to permit defense counsel to delay his opening statement to the jury until the State had rested its case. That exact point was decided in McDaniels v. State, 187 Ark. 1163 (mem.), 63 S. W. 2d 335 (1933).

Affirmed.


text:
    Arkansas State Highway Commission v. Roy Cromer et ux
    5-4180
    414 S. W. 2d 90
    Opinion delivered May 1, 1967

      George 0. Green and Don Lcmgston, for appellant.

      Ralph W. Robinson, for appellee.
   George Rose Smith, Justice.

This condemnation suit involves a tract of land near the tract that was taken in what now appears to have been essentially a companion case: Arkansas State Highway Commn. v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495 (1967). There we held that the trial court erred in permitting the landowners to prove an enhancement in value that was the result of the proposed improvement, the construction of Interstate Highway 40. That same proof was made in the case at bar; so this judgment must also be reversed.

Counsel seek to distinguish the Griffm ease on the ground that there the landowners’ testimony in chief included the prohibited element of valuation, while here the condemnor’s attorney brought the matter out in cross-examining* the landowners’ expert witnesses.. When those witnesses admitted that they had taken such inflated selling prices into consideration in arriving at their estimates of the value of the property being taken, the highway department’s attorney made an unsuccessful effort to have those estimates of value excluded from the record.

The asserted distinction between that case and this one is not well taken. An expert witness may state his opinion without first giving the facts upon which it is based. Arkansas State Highway Commn. v. Johns, 236 Ark. 585, 367 S. W. 2d 436 (1963). Hence the appellant’s attorney was compelled to elicit the facts by cross-examination. In this respect the case at hand is to be distingished from Arkansas State Highway Commn. v. Russell, 240 Ark. 21, 398 S. W. 2d 201 (1966). There we held that a landowner’s testimony should not be stricken simply because he admits on cross-examination that he has taken an inadmissible fact (such as an offer to purchase) into account in reaching his conclusion about the value of his land. Here, by contrast, the experts ’ reliance upon inflated selling prices led them to an ultimate opinion that was actually erroneous for the purposes of condemnation, because it included an element of value not properly a part of just compensation. Hence the opinion should not have reached the jury’s ears, not because it was technically inadmissible but because it was wrong and consequently misleading to the jury.

Reversed.


text:
    John T. Cromeans v. State
    5256
    414 S. W. 2d 399
    Opinion delivered May 1, 1967
    [Rehearing denied May 29, 1967.]

      William W. Green, for appellant.

      Joe Purcell, Attorney General, Bon Langston, Asst. Atty. General, for appellee.
   Paul Ward, Justice.

This appeal comes to ns under Criminal Procedure Rule No. 1. The background facts are summarized below.

■On November 16,1965 John T. Cromeans (appellant) was arrested in Arkadelphia on information that, while drunk and driving a stolen automobile, he had a collision with another car and killed a woman. Appellant was placed in jail and later taken before a magistrate. Upon pleading guilty and waiving a bearing, be was bound over to tbe grand jury on a charge of first degree murder. About a week later an information was filed charging appellant with murder in second degree. Upon arraignment be pleaded guilty as. charged and was sentenced to seven years in the penitentiary, the last two years being suspended on good behavior.

On April 4, 1966 appellant filed a habeas corpus proceeding in the Garland County Circuit Court, claiming his constitutional rights had been violated, and asking for a new trial. This petition was later withdrawn and on October 11,1966 another petition was filed. In this petition appellant alleged:

1.He had a preliminary hearing without benefit of counsel.
2.He was threatened with twenty-one years in the penitentiary if he did not plead guilty.
3.He was sentenced to seven years (two years suspended) without counsel.

A somewhat lengthy hearing was held before the Circuit Judge on appellant’s petition. In denying the petition the court made a written finding of facts and law.

We have carefully read the record of the proceedings on appellant’s petition and also the findings of the court and have concluded, for reasons hereafter set out, that appellant’s constitutional rights have not been violated.

One. We find that when appellant was arrested he was allowed to communicate freely with an attorney of his own choosing. The same is true at the time of his arraignment, when he entered a plea of guilty. It is true that his attorney was not present when the plea was made, and this is assigned as error under the holdings in Hamilton v. Alabama, 368 U. S. and Smith v. State, 401 S. W. 2d 749. ThesLe cases are not in point here because they deal with a jury trial. When appellant here pleaded guilty and waived a hearing he acted on advice of counsel. This is not denied. There is no contention here that appellant made any incriminating statement at the preliminary hearing.

Two. It is argued by appellant (although not raised in the petition) that the offense which he committed did not constitute second degree murder. The trial court held otherwise and we cannot say it was error.

Bule No. 1 does not contemplate a trial de novo, and none was had in this instance. Therefore we have no way of knowing what criminal acts appellant may have committed. When he pleaded guilty he chose not to raifee that issue. The only question before us is whether appellant’s constitutional rights were violated when he so pleaded after consulting with his attorney.

Three. We find no merit in appellant’s contention that he did not “knowingly and under standingly” waive counsel when he pleaded guilty. Appellant was approximately fifty years old, he had finished the ninth grade in school, and he had previously been in court on criminal charges. There is nothing in the record to show he possessed any mental deficiencies.

Fourth. At the hearing below (on appellant’s petition) a letter written by appellant was allowed to be introduced in evidence, and this is assigned as reversible error. We cannot agree. It appears that the letter was relevant to test the credibility of appellant. In any event, we find nothing in the letter which was prejudicial to appellant, and no such prejudice is pointed out by appellant.

Failing to find that any.of appellant’s constitutional rights — the right to counsel and the right not to he mistreated or coerced — have been violated, the judgment of the trial court must he, and it is. hereby, affirmed.

Byrd, J., dissents.


author: Lyle BrowN, Justice.

text:
    C. E. Tolliver v. Johnny Riley et al
    5-4167
    414 S. W. 2d 92
    Opinion delivered May 1, 1967

      R. W. Raster, for appellant.

      W. B. Howard, Jack Segars and Lolmes T. Tiner, for appellee.
   Lyle BrowN, Justice.

Plaintiff-appellant Tolliver instituted this proceeding to cancel two conveyances he made to appellee, Johnny Riley. By hill of sale and warranty deed Tolliver conveyed to Riley the Cotton Boll Liquor Store on the outskirts of Trumann, Arkansas. The chancellor refused to cancel these instruments. The principal issue for reversal is whether there was a valid delivery of the deed and the bill of' sale.

Johnny Riley was in the retail liquor business at Harrisburg and C. E. Tolliver was similarly engaged at Trumann. Early in 1965 the two men began discussing the sale by Tolliver and the purchase by Riley of the Cotton Boll Liquor Store. By February 4th they had agreed on a sale for $32,500.00. An inventory would be taken, and Riley would pay extra for any merchandise beyond an inventory of $6,000.00. On that date they met at the office of Tolliver’s attorney, Clyde Smith. An agreement was there executed styled “Sale and Purchase Option Agreement.” The full purchase price was not recited.

In the days that followed, Attorney Smith had the abstract brought down to date and prepared a warranty deed and bill of sale. On February 26th the parties again met in Smith’s office. On this occasion Riley brought along his attorney, Lohnes Tiner of Harrisburg. Riley brought with him two time deposit certificates in the sum of $5,000.00 each and $25,000.00 in one-hundred-dollar bills. The evidence preponderantly shows that Tolliver wanted mostly cash, but did not want bills in these denominations. He thought the bank kept serial numbers of such denominations, and for tax reasons he did not want them traced to him. Also, he apparently did not want to take the money in front of witnesses. Tolliver suggested that the final payment be postponed until Monday (following this Friday meeting). It was agreed that the seller and purchaser would meet in Trumann on Monday, at which time a mortgage debt would be paid the bank by Tolliver, the balance of the purchase price would be paid, and inventory would be taken. Tolliver told the attorneys that he and Riley could take care of these matters without the attorneys’ services. These arrangements seemed to be agreeable to all parties. Riley assigned over and delivered his certificates of deposits.. Tolliver executed the warranty deed and the bill of sale, which were handed to Riley’s attorney. Riley and his attorney, Tiner, returned to Harrisburg. Tiner delivered the conveyances to his client and instructed him to have them recorded. This was done the following morning.

Tlie facts just recited are substantially undisputed. Tbe same thing cannot be said with respect to the events which followed. The voluminous transcript contains an abundance of controverted testimony. Among the numerous witnesses who testified were four of the five attorneys who participated in the trial of the case. (In this respect we invite the attorneys’ attention to Canon 19 of the Canons of Professional Ethics, 237 Ark. 984.) The remaining factual point in issue which is pertinent to a decision on appeal concerns the final payment of the consideration. Tolliver asserts that he never received the balance of the purchase price, which was to be paid in cash. Riley asserts that the events leading up to, and including, final payment are as follows:

When Riley left the recorder’s office on Saturday morning he was told by Attorney Tiner that Tolliver was at the Bank of Trumann and wanted him to come over and conclude the matter. Riley went to' his home, obtained the cash, and headed for Trumann. Riley’s journey on the way was delayed when he stopped to aid a woman motorist who was out of gas. While Riley was so engaged on the highway between Harrisburg and Tru-mann, Tolliver drove up. At this point, so Riley testified, he got his money out of his pick-up and got in Tolliver’s car, where they counted out 218 one-hundred-dollar bills. Riley asked for a receipt, but Tolliver assured him the bill of sale and warranty deed would suffice. Riley wanted to proceed then to take inventory but was told Tolliver had to go to Little Rock. The two agreed they would meet at the liquor store the next morning (Sunday) and take inventory.

The next morning Riley went to Trumann in company with Bob Smith, who was going to operate the store under a lease from Riley. They found a Mr. and Mrs. Bell in the store. Apparently they were not open for business, but Bell worked in the store. Tolliver did not show up for the inventory. He was finally located but advised Riley they could not take the inventory on Sunday. Tolliver said he had called Little Rock arid received that information. Tolliver drove away. Riley called his lawyer and the sheriff. The locks were changed, and the inventory was completed by Riley and Smith around midnight. The next day Smith, began operating the store. Tolliver came to see Riley in Harrisburg, but Riley.referred him to attorney Tiner. The next occasion for any meeting between Riley and Tolliver was in court oh March 8th, at which time a receiver was appointed to take charge of the store pending the outcome of litigation.

No third person testified who purported to have witnessed the final payment to which Riley testified. However, there was strong corroboration of events leading up to, and following, the exchange of cash on the highway. The chancellor found that the final payment had been made, and there is an abundance of testimony and circumstances in proof to justify his conclusion.

The essence of appellant’s argument for reversal is that Tolliver did not intend to pass title on February 26th, and did not pass title because the full purchase price was not then paid. It is not necessary to labor this point, because the chancellor found that the balance of the purchase price was in fact paid the following day.

Affirmed.


text:
    Herman B. Young v. Arkansas State Highway Commission
    5-4219
    414 S. W. 2d 87
    Opinion delivered May 1, 1967

      Harold Sharp and Spitzberg, Bowner, Mitchell & Hays; By: John P. Gill, for appellant.

      John R. Thompson; By: Robert H. Hall, for ap-pellee.
   Lyle Brown, Justice.

This is an eminent domain case. Arkansas State Highway Commission sued to take 0.33 acres from appellant Young’s, tract of 14.7 acres. The jury awarded the property owner $2,500.00, which he considered inadequate. Appellant relies on two points for reversal, namely, inadequacy of the verdict, and the trial court’s refusal to give a separate instruction explaining the right of the property owner to testify as to fair market value. These points will he listed and discussed in that order.

1. The verdict is inadequate and is not supported by substantial evidence. An expert witness and the landowner testified as to values. The highway department offered no testimony. The expert witness fixed just compensation at $8,140.00. The landowner estimated his damage to he between ten and twenty thousand dollars. These being the only “before and after” figures introduced, it is the landowner’s contention that an award should have been made within the bounds of the proffered figures. This, contention must be rejected upon the basis of our holding in Ark. State Highway Comm. v. Schanbeck, 240 Ark. 277, 398 S. W. 2d 897 (1966). There the trial court instructed the jury to return a verdict within the limits of the value witnesses. This, instruction was held to be in error in view of the right of the jury “to exercise its own independent thinking and judgment in translating the testimony into a finding of fact. ’ ’

We are asked to declare the verdict inadequate. In Hales & Hunter Co. v. Wyatt, 239 Ark. 19, 386 S. W. 2d 704 (1965), this court said:

“Neither can it be said that the jury verdict of $2,500-00 instead of the $7,598.14 sought is so inconsistent with the pleadings and proof that the verdict is subject to appellant’s motion for judgment non obstante verdicto. We have held that where the jury renders a verdict based upon substantial evidence for more than a nominal amount, although inconsistent with either theory of the case, then the trial court does not have authority to award a larger sum than that determined by the jury. Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49.”

The verdict is based on substantial evidence. Young bought the 14.7 acres on February 20,1963, for $1,200.00 an acre. Within a few days he learned that the highway department was slicing off practically all the frontage on State Highway No. 1. This was. necessary to make a proper approach to the new interstate highway, which crossed Highway No. 1. When this information reached Young, he immediately sold the 14.7 acres (less the taking) to Transportation Industries, Inc. for $1,200.00 an acre. (In turn, Transportation obtained an easement for an access, road to its property.) The 0.33 acres taken was valued at $660.00. The jury might well have determined Young’s only damage to have been $660.00 since he sold his remainder at the same acreage rate for which he purchased it. Young testified that before the taking he had in mind erecting a motel. Yet there was no testimony which showed the property to be considered feasible for such a business. .

At the time Young bought this acreage it was generally known that Interstate 40 would overpass State Highway No. 1 at this juncture. There an elaborate interchange was planned. Therefore, as of the date of Young’s deed, land values in the area had been substantially affected and land uses had changed. This court looks with disfavor on using land values suddenly changed in anticipation of a proposed highway improvement. Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495 (1967). Likewise, the jury may well have frowned on damages near the full amount claimed in the belief that this would be unjust enrichment.

Appellant argues that the 14.7 acres was. landlocked as a result of the taking. However, the jury may have found this, assertion not to be entirely correct. The expert witness testified that there would still be access across a ditch which would require a large culvert.

2. The trial court erred in refusing to instruct that the owner may testify■ as to the fair market value Of his property. Appellant offered an instruction dealing-only with the right of the owner to testify as to the market value of his property. It was proper to refuse the instruct tion. Steptoe v. St. L., I. M. & S. Ry. Co., 119 Ark. 75, 177 S. W. 417 (1915) :

“The giving of the following instruction, at the de fendant’s request,is also assigned as error: ‘13. The jury are instructed that while they are the judges of the weight of the evidence, and the credibility of the witnesses, yet, they must not disregard the testimony of any witness arbitrarily', nor are they to discard or depreciate the testimony of a witness merely because he is in the employ of the railway company.’ The instruction, as will he seen, singles out a certain class of witnesses, and it was improper to do that in a instruction. We have often held that it was not good practice to single out facts or witnesses, individually or in classes, and to refer to them in instructions — that this court will not reverse a case for refusal to give such an instruction; but, on the other hand, we have held that the giving of such an instruction, though bad practice, does not constitute reversible error.”

The court properly instructed the jury on the credibility of all witnesses. He gave an additional instruction on “opinion evidence.” The first paragraph of this last instruction was applicable to the landowner’s opinion as well as the expert’s opinion. Under these circumstances the giving of the refused instruction could well have been duplicitous and prejudicial.

We do not hold that in every situation the giving of a properly phrased credibility instruction as to a witness or class of witnesses is inadvisable. We do hold that when the jury is adequately instructed generally on the credibility of all witnesses, it is-not error to refuse to single out a witness or class of witnesses in an additional intruction.

Affirmed.