author: Ed. F. McFaddin, Associate Justice.

text:
    Vickers v. Peaker.
    5-1231
    300 S. W. 2d 29
    Opinion delivered March 25, 1957.

      Homer T. Rogers and Davis é Allen, for appellant.

      Keith, Clegg S EcTcert, L. B. Smead, and Harry Crumpler, for appellee.
   Ed. F. McFaddin, Associate Justice.

From a decree of the Chancery Court refusing the plaintiffs’ prayer for cancellation of a certain instrument as a cloud on the title, there is this appeal. The equities preponderate in favor of the appellees.

The appellants are R. H. Vickers and his two sisters, Mrs. Humphreys and Mrs. Gray. They were plaintiffs below. As lessees, they own and operate an oil and gas lease (known as the “Murphy lease”) on 40 acres; described as the NW14 Sec. 28, Twp. 15 S, R 15 W, Ouachita County, Arkansas. On this lease there are four oil wells producing from the Blossom Sand, which is at the approximate depth of 2,400 feet. In order to have determined the possibility of production from the sands at a greater depth, appellants on July 21, 1955 executed an assignment to Edward McNeil, granting the right to explore the formations helow 3,000 feet on the said 40-acre tract.

Appellee, Peaker, holds under the aforesaid McNeil assignment. Somewhat similar assignments were executed by others holding interests in the said Sections 27 and 28; and appellee, Peaker, became the holder of enough of these assignments to justify him in testing the formations below 3,000 feet in said Sections 27 and 28. Peaker first drilled a well in the SE% NE14 of Section 28, known and referred to herein as the “Berg well.” He made a contract with A1 Grandebush, a recognized driller, to drill the Berg well to a depth of 5,000 feet and to complete it in the Smackover lime. The contract price was $20,000. The time of commencement of this well will be discussed in Topic I, infra.

Grandebush drilled this Berg well to a depth of 3,416 feet, but was unable to carry the well to a greater depth; so he started a new well in the SW14 NWVt of Section 27, one-quarter mile to the East, and known as the “Reynolds Brothers well.” He actually drilled the Reynolds Brothers well to the Smackover lime. The failure to drill the Berg well to the Smackover lime and the drilling of the Reynolds Brothers well to that formation will be discussed in Topic II, infra.

"When Grandebush found that he was unable to drill the Berg well to a depth greater than 3,416 feet, he tested the sand at that depth and brought in a producing oil well. That sand at 3,416 feet is now known as the “Cotton Valley Sand”; and the Berg well was the discovery well of the Cotton Valley Sand in Sections 27 and 28. "When Grandebush drilled the Reynolds Brothers well to the Smackover lime (approximate depth 4,800 feet), he found said formation to be non-productive ; so he made the Reynolds Brothers well into a commercial producer from the Cotton Valley Sand. This was on January 18, 1956,

Peaker then prepared to drill on the Murphy lease here involved (SW14 NW% Section 28). On May 5, 1956, appellant, Vickers,, and his sisters, filed the present suit to cancel the McNeil assignment under which Peaker claimed. The complaint alleged that the terms of the assignment had been breached by (1) failure to commence the Berg -well on September 15, 1955, and also by (2) failure to drill the Berg well to the Smackover lime. Peaker and the other appellees denied both of the said claims; and also made the affirmative defense of laches and estoppel (which will be discussed in Topic III, infra)., The Trial Court dismissed the Vickers suit for want of equity, and this appeal ensued: presenting the three points now to be discussed.

I. When Did Drilling Commence On The Berg Wellf Appellants say: (1) that the McNeil assignment (under which Peaker claims) required that the drilling of the Berg well be commenced on or before September 15, 1955; (2) that the actual spudding in of the well was not until October 15, 1955; and (3) that, therefore, the assignment executed by appellants expired for failure of the assignee to perform its conditions. Appellants cite and strongly rely on our case of Vaughan v. Doss, 219 Ark. 963, 245 S. W. 2d 826, wherein we discussed the “unless” type of lease; and appellants point out that this is an “unless” type of assignment.

The record herein establishes the following: (1) some- time prior to September 12, 1955, Peaker entered into a contract with A1 Grandebush, whereby Peak-er agreed to pay Grandebush $20,000 to drill the Berg well, and Grandebush agreed to drill the well to the Smackover lime, estimated to be between 4,800 and 4,900 feet below the surface; (2) on September 12, 1955, the location was surveyed and'cleared; (3) on September 13th a road was constructed to the location; (4) on September 14th a permit was obtained -from the Arkansas Oil & Gas Commission to drill the Berg well; (5) by September 15th certain material had been moved to the drill site for the well, including drill pipe, butane tanks, pipe racks, and other material; (6) the entire equipment had been moved to the drill site by October 13, 1955, and on that day actual drilling commenced by the drill bit piercing the earth; (7) in the early part of November, 1955, the well had reached a depth of 3,416 feet, when sand was encountered in such quantities as to cause the mud pump to go out of commission; (8) on November 22, 1955, the Berg well .was completed as a producer from the Cotton Valley Sand at 3,416 feet.

Appellees argue that all of these matters taken together mean that drilling commenced on or before September 15th. Appellants say that drilling commenced only on October 13th, the day the drill bit actually pierced the earth. Which argument is correct? Does “drilling” commence with the operations for a well, or does it commence only with the piercing of the ground with the drill bit? Does “baking a cake” begin with the preparation of the dough, or only with the actual placing of the dough in the oven? In Haddock v. McClendon, 223 Ark. 396, 266 S. W. 2d 74, we had a somewhat similar question presented and, in refusing to declare the lease forfeited, we reviewed a number of cases and quoted from one of them in this language:

“ ‘We are cited to no case by plaintiffs, and we know of none, holding that actual drilling of an oil and gas well is not in fact commenced until, as contended by plaintiffs, all the equipment, machinery and materials necessary to drill and complete the well have been placed upon the leased property. In fact from the testimony of witnesses produced by both- parties, it appears that it is not customary, prior to commencing drilling operations, to have upon the land everything necessary to complete the well.’ ”

In considering all of the facts as recited herein, and considering also the estoppel issue hereinafter discussed in Topic III, infra, we reach the conclusion that the appellants cannot successfully claim that their assignment was forfeited in this case for failure to have the drill bit pierce the earth by September 15, 1955.

II. What Of The Failure To Drill The Berg Well To The Smackover Lime ? Appellants insist that the McNeil assignment they executed was forfeited because of the failure of Peaker to drill the Berg well to the Smackover lime. The portion of the assignment germane to this point reads:

“Unless the assignee . . . commence the drilling of a well ... on or before September 15, . . . and completes the same ... to a depth sufficient to test the Smackover Lime Formation . . .” Appellants point out that the Berg well was the only well that Peaker could claim to have been commenced on or before September 15th; and that said well admittedly did not go to the Smackover lime. Therefore, appellants claim that their assignment is null and void.

Appellees insist that Peaker did begin the Berg well on or before September 15th, that Peaker was prevented by an unavoidable casualty from drilling the Berg well to the Smackover lime; and that immediately upon said casualty, Peaker began the drilling of the Reynolds Brothers well which went to the Smackover lime. Appellees claim “substantial compliance” with the assignment. Regarding unavoidable casualty: appellees showed that when Grandebush reached the depth of 3,416 feet in the Berg well he ran into so much sand that his mud pnmp was pnt out of commission; that it was necessary to have the mnd pump sent to Magnolia for repairs; that when the mud pump was put hack into operation, Grandebush was unable to get circulation of mud in the drilling of the Berg well. Grandebush testified that he could not afford to continue the drilling of the Berg well until he could get circulation; that his drill stem might become stuck in the sand; that if he tried to pull the drill stem, the derrick might collapse and some of his workmen might be killed or injured. Grandebush testified that he made all of these representations to Peaker; that Peaker still insisted that the Berg well be completed to the Smackover lime; but that finally Peaker reluctantly agreed that a new well (that is, the Beynolds Brothers well) could be drilled to the Smackover lime in lieu of the Berg well being drilled to that depth. The actual drilling of the Beynolds Brothers well commenced on November 15, 1955; the Berg well was not completed as a producer until November 22nd; the Beynolds Brothers well was drilled to the Smackover lime and found unproductive; and then later brought in as a producing well at the Cotton Valley Sand on January 18, 1956. With these facts thus detailed, we leave the second point to go to the matter of estoppel which, coupled with the facts heretofore recited, shows the equities to preponderate in favor of the appellees.

III. Estoppel. We have heretofore stated that the equities preponderated in favor of the appellees; and we now come to that point. The appellant, Vickers, testified that prior to July, 1955 no well had ever been drilled to the Smackover lime in Sections 27 or 28; that he executed the assignment to McNeil (under which appellee, Peaker, holds) in order that a block of sufficient size could be assembled to justify someone to test the Smackover lime; and that he was willing to make his assignment to McNeil to enable such a test to be made. From this, and other evidence in the record, it is clear that Vickers knew that Peaker, in drilling the Berg well and the Reynolds Brothers well, was relying on the validity of the Vickers Assignment to McNeil. Vickers also testified that he visited the location of the Berg well several times; that he knew at all times of the drilling by Peaker of the Berg well and the Reynolds Brothers well; and that, based on information obtained from these wells, Vickers was enabled to successfully drill two wells to the Cotton Valley Formation on another tract in Sections 27 and 28 near the Murphy lease that Vickers was operating. From this evidence it is clear that Vickers used the information from the Berg well and the Reynolds Brothers well to successfully drill wells for himself. Vickers also admitted that he was not damaged in any way, nor his rights prejudiced in any way, by the delay of Peaker in drilling the Berg well or the Reynolds Brothers well to the Smackover lime; that it was not until April 24, 1956 that Vickers first notified Peaker that Vickers considered as forfeited the assignment from Vickers to McNeil; and that this was after Peaker had made a location and started a right-of-way on the Murphy lease.

From the foregoing it is clear that Vickers sat by and remained silent and allowed Peaker to expend at least $40,000 in testing the Smackover lime and proving the Cotton Valley formation to be productive (all of which information was valuable to Vickers), before Vickers ever indicated in any way that he was going to make any claim of any forfeiture of his assignment under which he knew Peaker was holding and claiming.

In Bray v. Woodley, 162 Ark. 186, 258 S. W. 119, we held that a landowner could waive the forfeiture of a lease by accepting the delay rentals. In Hodges v. Harrell, 173 Ark. 210, 293 S. W. 25, we held that the provision in an oil and gas lease for forfeiture for failure to drill within the stated time was waived when the landowner permitted the well to be drilled after the stated time. In Keylon v. Arnold, 213 Ark. 130, 209 S. W. 2d 459, we discussed equitable estoppel by silence and quoted from 19 Am. Jur. 661:

“An estoppel may arise under certain circumstances from silence or inaction as well as from words or actions. Estoppel by silence or inaction is often referred to as estoppel by ‘standing by,’ and that phrase in this connection has almost lost its primary significance of actual presence or participation in the transaction and generally covers any silence where there are a knowledge and a duty to make a disclosure. The principle underlying such estoppels is embodied in the maxim ‘one who is silent when he ought to speak will not be heard to speak when he ought to be silent.’ ” In Johnson v. Spencer, 222 Ark. 710, 262 S. W. 2d 290, we also discussed equitable estoppel by silence. The cited cases conclusively show that all the equities in the case at bar are against the appellants.

We have given these facts in detail because this is not an ordinary oil and gas lease case where the landowner signs a lease form prepared by the lessee; but this is a case in which two experienced operators in the same field are in litigation with each other, and Vickers ’ attorney prepared the instrument here involved. Vickers is trying to use the language of that instrument to affect a forfeiture against Peaker, and yet Vickers knew all the time that Peaker, in reliance on the validity and continued existence of the assignment, made large expenditures. Vickers profited by the information he received from such expenditures; and after gaining all this information he now seeks to cancel the instrument he executed, when he admits that he has not been damaged by any delay that he claims Peaker made.

In view of all of these equities, we conclude that the Trial Court was correct in dismissing the complaint for want of equity. Affirmed.

       The said assignment (on which appellants’ suit is based) was prepared by attorneys for appellants, and the part here involved, reads: “Unless the Assignee, his heirs or assigns, commence the drilling of a well in search of oil and/or gas in Section 27 or Section 28, Township 15 S, Range 15 W, on or before September 15, 1955, and drills and completes the same with reasonable diligence to a depth sufficient to test the Smackover lime formation, this Assignment shall ipso facto become null and void and of no effect and all the rights of Assignee herein, his heirs, or assigns, shall terminate and cease. And there is a further condition under which this Assignment is given that all the rights of the Assignee herein, his heirs or assigns, shall cease, terminate, become null and void, unless said Assignee, his heirs, or assigns, shall drill and complete a well or wells for actual production of oil and/or gas in commercial quantity therefrom on the lease herein assigned within 12 months from date of this assignment.
      “There is excepted from this conveyance and reserved unto the Assignors herein, their heirs and assigns, all of the oil, gas and other minerals in, on and under said lands belonging to their leasehold interest from the surface to a depth of 3,000 feet, and the Assignee herein shall not interfere in his operation with the operation and any development that may be carried on by Assignors, their heirs or assigns to said depth of 3,000 feet.
      “Assignors herein except from this conveyance and serve unto themselves, their heirs and assigns 1/16 of 7/8ths of all the oil and gas (including distillate) which may be produced and saved from the land described in the lease herein assigned, to be paid to them as a free perpetual overriding royalty out of production from said lands and shall be paid to said Assignors, their heirs, successors or assigns, without cost of discovery, marketing or removal of same and taxes, save severance taxes.”

       There are other appellees who claim by, through, or along with Peaker; but for convenience we refer to Peaker as the principal appellee, since he was the one who undertook to fulfill the requirements of the said assignment executed by Vickers, et al.

       This was only one-half mile from the Murphy lease held by appellant.

       This Reynolds Brothers well was only one mile from the Murphy lease operated by appellant.

       He was required. under;the terms of the assignment from Vickers to McNeil to drill a well on the Murphy lease within twelve months from July 21,1955.

       In Summers on “Oil and Gas,” permanent Edition, § 349, the _ rationale of the holdings is summarized in this language: ‘‘Beginning or Commencement of a Well or Drilling Operations. Where the lessee covenants to begin or commence a well or drilling operations within a certain definite time, and his failure to do so places him under a liability to have the lease forfeited, or a duty to pay delay rental, it becomes necessary to determine what act or acts of the lessor will satisfy this requirement. The general rule seems to be that actual drilling is unnecessary, but that the location of wells, hauling lumber on the premises, erection of derricks, providing a water supply, moving machinery on the premises and similar acts preliminary to the beginning of the actual work of drilling, when performed with the bona fide intention to proceed thereafter %vith diligence toward the completion of the well, constitute a commencement or beginning of a well or drilling operations within the meaning of this clause of the lease. If the lessee has performed such preliminary acts within the time limited, and has thereafter actually proceeded with the drilling to completion of a well, the intent with which he did the preliminary acts are unquestionable, and the court may rule as a matter of law that the well was commenced within the time specified by the lease.” (Italics supplied.)

       Grandebush testified that a mud pump cost about $28,000.00.

       “Circulation of the mud” in a rotary drilling well is a matter of extreme necessity. As the hole is being drilled the mud pumped in the well operates to seal the hole against cave-ins. Unless some portion of the mud be returned to the surface, it becomes evident that the mud is going into some porous formation and is not sealing the hole. The returning of a portion of the mud to the surface is called “circulation.” Because the mud pump had to be repaired, the Berg well stood without operation for some time and when the mud pump was reinstalled, Grandebush was never able to get circulation again.


source: Caselaw Access Project

author: Minor W. Millwee, Associate Justice.

license: Public Domain

text:
    Lancaster v. Inc. Town of Mountain View.
    5-1226
    300 S. W. 2d 603
    Opinion delivered March 25, 1957.
    [Rehearing denied and opinion amended, April 29, 1957]

      Ben B. Williamson, for appellant.

      John B. Driver and N. J. Henley, for appellee.
   Minor W. Millwee, Associate Justice.

Appellees, Incorporated Town of Mountain View, Arkansas, and two of its taxpaying citizens filed this suit to enjoin the appellants, C. K. Lancaster, C. L. Lancaster Jr. and Richard Lancaster from the further erection of an obstruction upon the southern terminus of Lancaster Street in said town and to require removal of that portion of a building already erected. This appeal is from a decree granting the relief prayed.

According to appellees’ proof Gr. D. Lancaster, father of C. K. Lancaster and grandfather of the other two appellants, owned lands in 1905 which he desired to lay out as an addition to the town of Mountain View. In that year G. D. Lancaster filed for record a plat of land called Lancaster’s Addition to the Town of Mountain View which designated streets, blocks and lots therein. In 1916 he filed and recorded a supplemental or additional plat of dedication more particularly describing the area involved in this litigation. Also in 1916 the town council of Mountain View caused a map of the town to be made and filed of record which included Lancaster Addition and is still the official map of the town. After the filing and recording of said plats and map G. D. Lancaster and subsequent owners sold and transferred lots in the addition by reference to the recorded plats and map. Among many such transactions is a warranty deed executed by the appellant, C. K. Lancaster, and the other heirs of G. D. Lancaster, deceased, on March 6, 1947, to the area in controversy here.

Lancaster Street runs north and south through the western part of Mountain View for about four blocks. As shown by the official map and supplemental plat filed by G. D. Lancaster, the area in controversy is that part of Lancaster Street bounded on the north by Main Street, which runs east and west, and on the south by State Highway 66, which is the southern terminus of Lancaster Street and marks the corporate limits of the town at that point. Appellants own a small triangular strip designated as Lot 12 which is adjacent to the area in question on the east side of Lancaster Street and across the street from the American Legion Hut built about 1932. In 1946 appellants constructed a filling-station on their lot with a concrete apron or slab that extended upon the street several feet which has been used for washing and parking cars.

Shortly before the filing of this suit on December 10, 1955, appellants started construction of a concrete block addition to their filling station building. This addition encroached upon Lancaster Street a distance estimated at 12 feet 11 inches to 14 feet. Although Lancaster Street is 33 feet wide at this point according to the official map, the mainly traveled portion is about 22 feet wide. According to appellees’ witnesses the area in controversy has been used by the public generally as a street for more than 25 years and during most of this time the town has graded and maintained it in the same manner as other streets of the town.

Appellants first say the town of Mountain View never legally authorized the bringing of the instant suit, but it is unnecessary to determine this question. Regardless of the town’s authority to prosecute the suit, the two taxpaying citizens who joined as party plaintiffs had a right to maintain it as a class action under Ark. Stats., Sec. 27-809. Goodman v. Powell, 210 Ark. 963, 198 S. W. 2d 199.

Appellants’ contention that the area in controversy was never properly dedicated to public usage is also without merit. Many of our decisions recognize the rule that where owners of land lay out a town or an addition to a city or town, platting it into blocks and lots, intersected by streets and alleys, and sell lots by reference to the plat, they thereby dedicate the streets and alleys to the public use, and such dedication is irrevocable. Stuttgart v. John, 85 Ark. 520, 109 S. W. 541; Mebane v. City of Wynne, 127 Ark. 364, 192 S. W. 221; Butler v. Emerson, 211 Ark. 707, 202 S. W. 2d 599. A preponderance of the evidence supports the conclusion that such dedication was made of the area in controversy; and that the individual plaintiffs and other residents of the town acquired prescriptive rights by reason of the fact that the general public adversely used the area as a public way for more than seven years. The decree permanently enjoining appellants from further construction of said concrete block building in Lancaster Street and directing removal of that portion already built is accordingly affirmed.


author:
George Rose Smith, J.
      Carleton Harris, Chief Justice

text:
    Leach v. Leach.
    5-1235
    300 S. W. 2d 15
    Opinion delivered March 25, 1957.

      Eugene C of felt, for appellant.

      Eli Leflar, for appellee.
   George Rose Smith, J.

This case presents a question that is novel in this state and very nearly so in the United States: Can a husband maintain a suit against his wife for damages due to her negligence? The appellant’s complaint, as supplemented by a stipulation, alleges that on August 9, 1956, he was the owner of a pick-up truck and a Ford sedan. As Leach was driving the truck on a county road he collided with his wife, who was driving the sedan in the opposite direction. It is asserted that Mrs. Leach was driving on the wrong side of the road and at an excessive speed. The trial court sustained a demurrer to the complaint and dismissed the action.

At common law neither spouse could maintain a tort action against the other. In the various states there is a decided difference of opinion about the extent to which the common law rule has been affected by statutes removing the disabilities of married women. The question has usually been considered in the converse situation, where the wife seeks to sue her husband. By a dwindling majority which now stands at about two to one the American courts hold that she cannot maintain the action. Prosser on Torts (2d Ed.), § 101; Sanford, Personal Torts Within the Family, 9 Vanderbilt L. Bev. 823. The courts following the majority view construe the emancipation acts strictly, as being in derogation of the common law, and usually suggest that recognition of suits between spouses would adversely affect harmony within the home. Prosser’s criticism of the majority rule typifies the position generally taken by legal writers: ‘ ‘ The chief reason relied upon by all these courts, however, is that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home, which is against the policy of the law. This is on the bald theory that after a husband has beaten his wife there is a state of peace and harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedy — and this even though she has left him or divorced him for that very ground, and though the same courts refuse to find any disruption of domestic tranquillity if she sues him for a tort to her property, or brings a criminal prosecution against him. If this reasoning appeals to the reader, let him by all means adopt it.” Prosser, loe. cit.

This reasoning has never appealed to us. With respect to a wife’s suit against her husband we adopted the minority view more than forty years ago and have adhered to it. Fitzpatrick v. Owens, 124 Ark. 167, 186 S. W. 832, 187 S. W. 460, L. R. A. 1917B, 774, Ann. Cas. 1918C, 772; Katzenberg v. Katzenberg, 183 Ark. 626, 37 S. W. 2d 696. In the Fitzpatrick case we considered and rejected both the usual arguments, that the statute is to be interpreted narrowly and that the majority view tends to preserve marital harmony. If these arguments are without merit when the wife sues the husband, they are obviously equally ineffective when the situation is reversed.

As Sanford correctly points out in the article cited above, the problem is primarily one of statutory construction. Our emancipation act is far more sweeping in its language than are most statutes on the subject: “Every married woman and every woman who may in the future become married, shall have all the rights to contract and be contracted with, to sue and be sued, and in law and equity shall enjoy all the rights and be subjected to all the laws of this State, as though she were a femme sole; provided, it is expressly declared to be the intention of this act to remove all statutory disabilities of married women as well as common law disabilities, such as the disability to act as executrix or administratrix as provided by § 6 of Kirby’s Digest, and all other statutory disabilities.” Ark. Stats. 1947, § 55-401.

We do not perceive that the explicit language of the statute leaves any doubt about the legislative intention. The appellee’s suggestion that the act was meant only to broaden the rights of married women, and not to curtail the protection afforded them at common law, is rebutted by the unequivocal and unrestricted declaration that married women may “sue and be sued.” This clause was the basis for our holding that a wife may sue her husband in tort. There can be no sound basis for a different conclusion when the shoe is on the other foot, for in the same breath the legislature abolished her disability to sue and her immunity from being sued.

On the question now presented the decisions elsewhere do not support the appellee’s contention that we can with consistency adopt one rule for the wife and another for the husband. As might be expected, those courts which hold that a wife cannot sue her husband for a personal tort also hold that he cannot assert a similar cause of action against her. In jurisdictions adhering, as we do, to the minority view, the converse situation has arisen only twice, and it happens that both cases denied the husband’s right to sue his wife. Scholtens v. Scholtens, 230 N. C. 149, 52 S. E. 2d 350; Fehr v. General Accident, etc., Corp., 246 Wis. 228, 16 N. W. 2d 787, 160 A. L. R. 1402. But in each case the court was construing a statute which expressly conferred upon a married woman the right to sue but did not mention the correlative matter of her liability to being sued. The problem, as we have said, is one of statutory construction; so we cannot be guided by decisions based upon statutes that differ from ours upon the very point that is controlling.

Reversed, the demurrer to be overruled.

Harris, C. J., and Holt, J., dissent.

Carleton Harris, Chief Justice

(dissenting). In dissenting to the ruling of the majority, I desire to make it clear that my dissent is not based upon the fact that the common law did not grant either spouse the right to maintain tort action against the other; nor am I concerned because we are the first state to allow the husband the right to sue his wife for tort. I fully agree that if the wife has the right to sue the husband in tort, the converse should likewise be true, but I am persuaded that to allow either spouse to sue the other for unintentional tort is against public policy, and should be so declared by this Court. I would accordingly overrule the case of Katzenberg v. Katzenberg, 183 Ark. 626, 37 S. W. 2d 696.

I would not overrule Fitzpatrick v. Owens, 124 Ark. 167, 186 S. W. 832, 187 S. W. 460, L. R. A. 1917B, 774, Ann. Cas. 1918C, 772, as that case dealt with the right of the wife to sue her husband for intentional injury. Actually, in that case, the husband made an assault upon the wife, and killed her, and the suit was brought by her administrator. To me, there is a vast difference between rights of a spouse that might accrue from an intentional injury, in contradistinction to an unintentional injury.

The theory of the law in those jurisdictions which frown upon suits between husband and wife is that permitting suits between spouses would adversely affect harmony in the home. The majority, in this current Opinion, quote Prosser. “The chief reason relied upon by all these courts, however, is that personal tort actions between husband and wife would disrupt and destroy the peace and harmony of the home, which is against the policy of the law. This is on the bald theory that after a husband has beaten’ his wife there is a state of peace and harmony left to be disturbed; and that if she is sufficiently injured or angry to sue him for it, she will be soothed and deterred from reprisals by denying her the legal remedy — and this even though she has left him or divorced him for that very ground, and though the same courts refuse to find any disruption of domestic tranquillity if she sues him for a tort to her property, or brings a criminal prosecution against him. If this reasoning appeals to the reader, let him by all means adopt it.” Prosser, loe. cit. I have no quarrel with this language; in fact, I quite agree that the harmony of the home is already disrupted when either spouse commits an intentional tort against the other. The same language does not apply to an unintentional tort.

Let us take a hypothetical case. The wife, after finishing her housecleaning, neglects to return the vacuum cleaner to the closet where it usually is placed, and negligently leaves same in the middle of the hall. The husband, returning home that night from a business trip, after the wife has retired, stumbles over same, and receives injuries. Under the view of the majority, he is entitled to sue the wife. Of course, if she is without means, he would not bring a suit; if, on the other hand, she is gainfully employed, or financially independent in her own right, and he goes to court to recover from her for the injury, no imagination is needed for one to know that harmony in that home would be completely disrupted, and connubial bliss abruptly terminated. The marriage relationship, which might have been happy enough, would totally disintegrate. But, on the other hand, let us say that this particular family has comprehensive personal liability coverage, and suit is brought. In such event, I concede that domestic harmony would not be destroyed, but it could not be logically argued that such a suit between spouses would be justified simply because the insurance company, after all, would be the one to pay. This brings me to one of the worst features involved in permitting this type of suit. Using my same example, let us say that the husband fell and injured himself in the home, not because of his wife’s negligence, but because of his own carelessness. There will be medical expenses and loss of time from work, with perhaps a resulting loss of income. Under this set of facts, the husband would have to stand this loss himself, which would also directly affect the welfare of the wife. Now, if this man and wife are without morals and conscience, what is to prevent the husband from instituting suit against his wife, alleging that his injury occurred in the manner first stated. (Wherein she left the cleaner in the hall.) She does not deny it, and how can it be proved that it did not happen in that manner? There are no other witnesses to establish that the injury was sustained by the husband because of his own negligence rather than that of his wife. Unfortunately, I fear that there might be a few husbands and wives who would welcome the opportunity to make a joint raid upon an insurance company. This certainly should not be permissible. Either set of facts presents an intolerable situation, not in the interest of the public, and one which the law should not countenance. While I hope that it will not so result, the holding of the majority, in my opinion, opens the door to fraudulent claims against insurance carriers.

Be that as it may, litigation between man and wife for an unintentional tort committed by one against the other, is not salutary, and actually is repugnant, to the marriage vows. The bulwark of our community and national strength is the home, and we should not adopt a policy that might well, in individual cases, rupture marital happiness.

Solely because I consider such holding to be against public policy, I respectfully dissent.

Justice Holt joins in this dissent.

       Bouvier’s Law Dictionary defines Public Policy As: “That principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good.” It has been designated by Burroughs, J., as “an unruly horse pursuing us, and when once you get astride of it you never know where it will carry you.”


author: Paul Ward, Associate Justice.

text:
    Gifford-Hill & Co., Inc. v. Braswell Sand & Gravel Co., Inc.
    5-1192
    300 S. W. 2d 24
    Opinion delivered March 25, 1957.

      Shaver, Tackett, Jones S Lowe, for appellant.

      Cecil E. Johnson and Chas. C. Wine, for appellee.
   Paul Ward, Associate Justice.

Appellant, GiffordHill Company, Inc., and appellee Braswell Sand and Gravel Company, both claim the right to produce and sell sand and gravel from lands lying in Little River and Sevier Counties, and also claim, in connection therewith, the right to the use of personal property and equipment situated on said lands. Appellee’s claim is based on a lease and assignments emanating from the owner of said lands and personal property. Appellant’s claim is based on a subsequently executed quitclaim deed by said owner which, it contends, conveys title free and clear of any right or claim on the part of appellee.

On January 16, 1942 Nina V. Jones, as the owner in fee of said lands and personal property, executed a lease contract with the Little River Sand and Gravel Development (a partnership) whereby lessee was to have the exclusive right to produce sand and gravel from said lands, and to use the personal property and equipment jba doing so. The term of the lease contract was 4-1/2 years from the date of execution and ‘ ‘ as long thereafter as the production of gravel and sand from said lands shall be carried on by the lessee with due diligence . . .” Lessee was obligated to expend an amount not exceeding $25,000 in repairing and replacing the said equipment which was recognized in the lease to be “largely obsolete and in a state of bad repair, . . .” Both the lessor and the lessee were to be liable pro rata for the payment of severance taxes levied by the State of Arkansas. This lease deed was recorded February 24, 1942.

On October 7,1943 the same parties mentioned above executed a written “Amended Lease Agreement” which amended the lease agreement set forth above in several particulars. One of these amendments provided that the lessee should pay $500 each year to maintain said lease in force and effect after the expiration of the aforementioned 4-1/2 years, said payments to be made to the lessor, Mrs. Nina V. Jones, or to her credit in the Merchants National Bank and Trust Company of Vicksburg, Mississippi.

On October 4, 1945 the Little River Sand and Gravel Development, designated as assignor, entered into a written contract with appellee, designated as assignee, whereby the assignor sold, assigned and conveyed unto the assignee all of its right, title and interest acquired under the aforementioned lease and amended lease. Among other things this instrument recognized that assignor was charging assignee $40,000 for the equipment located on said lands to be paid as sand and gravel were produced and sold. It also provided that the assignee, appellee, should maintain the aforementioned $500 yearly payments to Nina V. Jones. The above assignment was signed by the assignor in this manner:

“LITTLE RIVER SAND AND GRAVEL

DEVELOPMENT

BT Sidney G. Myers

Sidney G. Myers, individually and as agent and attorney in fact for Richard M. Sellwood, Jr., and Joseph G. Sellwood.”

On October 6, 1945 Joseph G. Sellwood (mentioned above) individually and as agent and attorney in fact for Richard M. Sellwood, Jr., ratified the acts of Sidney G. Myers in executing the contract mentioned above on October 4, 1945.

On October 11, 1945 by a written contract filed for record on November 30, 1945, appellee entered into a lease agreement with the Kansas City Southern Railway Company relative to certain rail and track material on the lands in question.

On October 25, 1945 there were executed three other written contracts or agreements ratifying the assignment to appellee on October 4, 1945 and providing for royalty payments to Nina V. Jones.

With the exception of the original lease executed on January 16, 1942, as heretofore mentioned which was filed February 24, 1942, and with the exception of the rail lease agreement executed on October 11, 1945, as heretofore mentioned, which was filed on November 30, 1945, all of the written contracts, agreements and assignments, mentioned above were filed of record on September 8, 1953.

The record discloses that all royalty payments mentioned in the above instruments accrued up to the time this litigation began were paid to and received by Nina V. Jones or the bank designated by her. There is testimony in the record to show that appellee had not been actively engaged at all times in the production of sand and gravel on the lands involved, but that it had maintained a watchman at the site of the property and had paid severance taxes to the state np until this suit was filed.

On October 13, 1953, Nina Y. Jones for “$100 and other good and valuable considerations ’ ’ executed to appellant a quitclaim deed to all of the real and personal property involved in this litigation. This quitclaim deed was filed for record on October 16, 1953.

On April 15, 1954 appellant filed a complaint in the chancery court seeking to restrain appellee from removing sand and gravel from the lands involved herein and asking that all of the lease agreements, assignments, etc. under which appellee claims be cancelled as clouds upon its title. It was appellant’s contention that it was a bona fide purchaser without notice of appellee’s claim, and also that appellee’s rights had been forfeited by abandonment of operations. The testimony presented a fact question as to whether appellee had in fact abandoned operations to the extent of forfeiting its rights, but it is unnecessary for us to consider the case from that standpoint, because we agree with the chancellor that appellant was not a bona fide■ purchaser without notice.

Appellant ably contends that the assignment (to appellee), which was placed of record September 8, 1953, did not constitute constructive notice to it, for the reason that it was executed by an attorney in fact without the power of attorney having been placed of record. To support this contention appellant relies upon Ark. Stats. § 50-422 and the following decisions of this court: Carnall v. Duval, 22 Ark. 136; DuVal v. Johnson, 39 Ark. 182; Jones v. Green, 41 Ark. 363, and; Hershy v. Berman, 45 Ark. 309.

There are, however, convincing reasons why we cannot agree with appellant’s contentions. In the first place, the authorities relied on by appellant are not applicable to the facts of this case. The rule of law announced by them is fairly stated in the second headnote in the Jones case, supra-. “Powers by which deeds are made must be recorded, or the record of the deed will not be notice to a subsequent purchaser from the party executing the power.” (emphasis supplied). In the case under consideration appellant did not purchase from the party executing the poioer of attorney.

If any one in this case executed a power of attorney, it was of course a partner in the Little River Sand and Gravel Development, and appellant’s quitclaim deed was executed by Nina V. Jones.

There are also other reasons why appellant cannot prevail. The lease from Nina Y. Jones to the Little River Sand and Gravel Development, dated January 16, 1942 and recorded February 24, 1942, (as amended on October 7, 1943) contained a provision for standby rentals to keep the lease alive. This lease was not executed by a power of attorney and appellant was of course charged with constructive notice. If appellant had made inquiry of Nina Y. Jones it would have learned that appellee’s lease had been kept alive by the regular payment of rentals.

Not only so but, contrary to appellant’s assumption, the validity and force of appellee’s lease did not depend entirely on an unrecorded power of attorney. At least two of the partners of the Little River Sand and Gravel Development (Sidney G. Myers and Joseph G. Sellwood) signed in their own rights.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Stephens v. City of Fort Smith.
    4869
    300 S. W. 2d 14
    Opinion delivered March 25, 1957.

      Martin L. Green and J. Sam Wood, for appellant.

      Lem C. Bryan and Chas. A. Beasley, for appellee.
   Sam Robinson, Associate Justice.

Appellant appeals from a conviction of violating Ark. Stats. § 41-4501, which provides: “Any person who shall wear or carry in any manner whatever, as a weapon, any dirk or bowie knife, or sword or spear in a cane, brass or metal knueks, razor, blackjack, billie or sap, ice pick, or any pistol of any kind whatever, shall be guilty of a misdemeanor.” A jury was waived, and the cause was submitted to the court on the following agreed statement of facts:

“In March, 1956, the defendant LeRoy Stephens was employed as a United States Mail Carrier in Fort Smith, Arkansas. On or about March 6, 1956, at about 5:25 P. M. detectives Ralph Middleton and Edward Walker contacted said LeRoy Stephens at the B Street Post Office in Fort Smith, Arkansas, and asked him to come to the police station for a talk. Detective Ed Walker drove said LeRoy Stephens’ car from said post office to the police station and en route found an automatic pistol, which was loaded, in the glove compartment of said LeRoy Stephens’ car. LeRoy Stephens made the statement that the pistol belonged to his Mother.

“Stephens had been working at the said post office on said date and just finished work for the day at the time he was contacted by the officers.

“Neither the car nor the glove compartment in it was locked when Detective Walker got in it, but the glove compartment was closed.

“At the time when said pistol was found, LeRoy Stephens was not in the car for the reason that he rode to the police station in a separate car with Detective Ralph Middleton. However, said LeRoy Stephens stated that he had driven the car to work.”

The sole issue on appeal is the sufficiency of the evidence to sustain the judgment of guilty. The pertinent part of the statute reads: “Any person who shall wear or carry in any manner whatever, as a weapon, . . . any pistol of any kind whatever, shall be guilty of a misdemeanor. ’ ’ The statute making it unlawful to carry a pistol as a weapon has several exceptions, but none of the exceptions apply here. There is only one question: Is the evidence sufficient to base a finding that the pistol was carried in any manner as a weapon? It was loaded, and the presumption is that it was placed in the glove compartment of the car as a weapon. Carr v. State, 34 Ark. 448. Of course, the defendant might remove the presumption by proof. But it would be one of fact and not of law. Here, the defendant offered no evidence to rebut the presumption.

The exceptions not being applicable, can it be said that the defendant carried a pistol in any manner? If so, he is guilty. The direct and circumstantial evidence that he carried the pistol in the glove compartment of his car is substantial. Placing a pistol in the glove compartment of the automobile within easy reach of the driver is certainly one way of carrying it and, in many instances, the operator of the car could get it out of such place easier than he could draw a pistol from his pocket. The pistol was found in appellant’s car; he had driven the ear to work that morning. He claims the pistol belongs to his mother but it is not stipulated that his mother had placed the pistol in the automobile. He makes no claim that he did not know the gun was in the car.

Appellant cites some cases, such as Williams v. Commonwealth of Kentucky, 261 S. W. 2d 807, to the effect that carrying a pistol in an automobile is not a violation of the statutes of the particular state involved, but in most eases cited by appellant the statute is not as broad as the Arkansas statute. For instance, the Kentucky statute provides: “(carrying) concealed a deadly weapon, other than an ordinary pocket knife, on or about his person.” Our statute prohibits carrying a pistol in any manner whatever, with certain exceptions. In Henderson v. State, 91 Ark. 224, 120 S. W. 966, the court refers to our statute as “broad language,” and the opinion goes on to state that the purpose is to prevent the wearing or carrying about the person any pistols mentioned under the circumstances detailed in the statute. Our statute does not provide that the pistol has to be actually carried on the person. The statute prohibits the carrying of a pistol in any manner, and certainly having a pistol on the seat or the floor or in the glove compartment of an automobile, as it was here, is carrying a pistol in “any manner.”

The weight of authority sustains the view expressed herein. 43 A. L. R. 2d, page 537.

Affirmed.


text:
    DuVal v. City of Little Rock.
    5-1274
    300 S. W. 2d 19
    Opinion delivered March 25, 1957.

      Wright, Harrison, Lindsey & Upton, for appellant.

      O. D. Longstreth, Jr.; Spitzberg, Bonner, Mitchell & Hays, and Mehaffy, Smith $ Williams, for appellee.
   Sam Robinson, Associate Justice.

The City of Little Rock owns its water supply system. The City is growing rapidly and there is an urgent need for expanding and improving the water supply. In order to raise money for this purpose, the City seeks to issue Revenue Bonds under an Indenture. The appellants, George E. DuVal, property owner, taxpayer and water customer, and Curtis Barham, owner of Water Works Bonds issued in 1936, filed this suit to enjoin the issuance of new bonds to finance the contemplated improvements, extensions and betterments.

The City demurred to the complaint. The trial court sustained the demurrer, and DuVal and Barham have appealed.

To facilitate the new bond issue, hereinafter referred to as the 1956 issue, the City Council passed Ordinance No. 10,364. The ordinance declares the value of the then existing water supply system to be $11,715,000, excluding improvements made in 1952, and the value of the proposed betterments and improvements to be made under the 1956 bond issue and those made under a 1952 bond issue to be $9,585,000, the face amount of the 1956 bonds; the 1952 bonds are to be refunded. The ordinance further provides that the value of any improvements made in the future under the 1956 Indenture shall be the face amount of the bonds so issued to provide for such improvements. The revenues to be used in retiring the various bond issues are to be apportioned in accordance with such valuation. Appellants say that the fixing of such values and apportioning the revenues accordingly is not authorized by law and impairs the security for the 1936 bonds.

In Section 11 of Article V of the 1936 Indenture it was recognized that it might be necessary in the future for the City to issue additional bonds for further betterments, etc. The 1936 Indenture therefore provides for an increase in rates, if necessary, to meet the requirements of all bond issues. Hence, additional bond issues were anticipated and provision made for an increase in rates, if necessary, to meet all payments on the various issues.

Section 10 of Act 131 of 1933 (as now amended, is Ark. Stats. § 19-4210) was in effect at the time of the making of the 1936 Indenture, and applies insofar as that indenture is concerned; it provides: “Whenever any municipality . . . shall own and operate a waterworks system . . . and shall desire to construct improvements and betterments thereto, it may issue revenue bonds under the provisions of this act to pay for same, and the procedure therefor, including the fixing of rates and the computation of the amount thereof, shall be the same as in this act provided for the issuance of bonds for acquisition or construction of a waterworks system in a municipality which has not theretofore owned and operated a waterworks system; provided, however, that in the ordinance declaring the intention to issue the bonds and providing details in connection therewith, the council shall (a) provide, find and declare in addition to the other requirements set out in this statute the value of the then existing system and the value of the property proposed to be constructed, . . .” This act specifically authorizes the City Council to do the very thing the Council did in the case at bar: “The Council shall provide, find and declare . . . the value of the then existing system, and the value of the property proposed to be constructed.”

Paragraph IX of the complaint alleges: “The Board of Commissioners of the Little Rock Municipal Water Works has filed with the City Council a report on the values of the properties constituting the existing waterworks system, and the City Council has fully considered said report and other pertinent information and, as a result thereof, has found and declared that the value of the existing waterworks system, excluding the betterments and improvements financed by the Waterworks Improvement Revenue Bonds of 1952, is $11,715,000 . . .” In finding the value of the then existing system, the Council did exactly what is required by the statute. It is not shown just how the valuation of $11,715,000 was reached, but the complaint alleges that the Council had fully considered the report of the Commissioners of the Water Works system and other pertinent information. There is nothing indicating that the Council used an unlawful method in finding the valuation. Furthermore, at the time the 1936 bonds were issued there was a valuation of only $6,590,000, which was also the total amount of the bonds issued in 1936. But now, there is a valuation of $11,715,000 assigned to the existing system and only $4,572,000 balance outstanding of 1936 bonds. Hence, as a matter of fact, the 1936 bondholders now have a great deal more security than they had to start with.

Probably to simplify and make less expensive the issue of bonds in the future, the 1956 Indenture is calculated to serve for all subsequent bond issues; in other words, for financing purposes the 1956 bonds will be combined with future bond issues. Appellants contend: ‘ ‘ The action of appellees in combining for financing purposes, the proposed $9,585,000 Water Revenue Bonds, Series 1956, with subsequent series of bonds, to be issued from time to time in the future, without making separate determinations of values and divisions of revenues at the time of each such subsequent issue, is contrary to law and in violation of the rights of the holders of the 1936 Indenture Bonds.” It is true that the present valuation of the existing system, $11,715,000, will be in effect in the future notwithstanding additional bonds may be issued under the 1956 Indenture. But it makes no difference whether such bonds would be issued now urnder the 1956 Indenture or issued at some time in the future. The 1936 bondholders will be in no way prejudiced as they will always have the $11,715,000 valuation and the revenues based on that valuation for the payment of the 1936 bonds.

The 1936 bonds are being retired regularly but if there should ever become a time that the revenues are not sufficient under the prevailing rates, this situation would be met by increasing such rates, as provided by Section 11 of Article Y of the 1936 Indenture, which provides: “The City further covenants and agrees that if, at any time while any of the bonds issued under and secured by this Indenture shall be outstanding, it shall issue additional revenue bonds under the provisions of Section 10 of said Act 131 of 1933, as amended, to construct improvements or betterments to the waterworks system, the rates for water shall be increased, if necessary, to such extent that the revenues of the waterworks system remaining after setting aside the proportion thereof applicable to the payment of the additional revenue bonds issued for such improvements or betterments and to the costs of the operation and depreciation thereof, shall be sufficient to make the payments required to be made under Sections 6, 8 and 9 of Article III of this Indenture into the Water Revenue Bonds Fund, into the Water System Depreciation Fund and into the Water System Operation and Maintenance Fund, respectively.” We fail to see how the finding at this time of the present valuation of the existing system does not comply with Act 131 of 1933. It is true that the act provides that “the Council shall provide, find and declare in addition to the other requirements set out in this statute, the value of the then existing system and the value of the property proposed to be constructed,” but the Council has declared the valuation of the present system existing at the time of making the new 1956 Indenture, and the fact that all of the bonds that may be issued under that Indenture in the future are not issued at this time is of no consequence. The holders of the 1936 bonds are amply protected with the valuation fixed, and the purchasers of the bonds under the 1956 Indenture take with full knowledge of all of the provisions of that instrument. Certainly, the statute does not mean that the 1936 bondholders are entitled to more valuation than that existing at the time of the first bond issue subsequent to the 1936 issue. True, subsequent issues give additional value, but this additional value must be handled so as to produce revenues to retire the subsequent issues.

There was a comparatively small bond issue in 1952; these bonds were sold at a very low rate of interest, part bearing interest at 1 3/4% per annum and part bearing 2%. The 1952 bonds are callable, and under the 1956 Indenture they will be refunded. The 1956 issue is in an amount sufficient to take care of such refunding, and although the 1956 bonds may bear interest at not more than 5% per annum, the 1956 Indenture provides that an amount of the 1956 bonds sufficient to refund the 1952 bonds may bear interest at no more than the present interest rate on the 1952 bonds. In other words, the bonded indebtedness on the 1952 bonds is not being increased by the refunding of those bonds. The power to issue bonds includes the power to refund such bonds provided the debt on the old bonds is not increased. Talkington v. Turnbow, 190 Ark. 1138, 83 S. W. 2d 71; Arkansas Bond Company v. Harton, 191 Ark. 665, 87 S. W. 2d 52; Ferris v. Stewart, County Judge, 200 Ark. 714, 140 S. W. 2d 431. This court has approved the combining of refunding bonds and construction bonds in a single issue. Bay Special Consolidated School District No. 21 v. Hall, 194 Ark. 423, 107 S. W. 2d 347. And the law does not prohibit the refunding of any series of bonds that may be issued under the 1956 Indenture.

The 1956 Indenture permits a redemption of the bonds issued thereunder at specific periods upon the payment of a premium for such redemption. Those bonds are being sold without the privilege of conversion, therefore the bond dealer who purchases the bonds from the City must in turn sell the bonds at a premium in order to realize a profit. Of course, no one would buy a bond and pay a premium therefor if the City could redeem the bond at par. Hence, the Indenture provides for a premium in the event the City desires to redeem before maturity. But, the redemption premium allowed, coupled with the interest rate which the bonds will bear, does not exceed the rate of interest allowed by law.

The 1956 Indenture is what is known as an “Open End” Indenture, and authorizes the issuance of additional bonds on a parity with the 1956 series. The 1956 Indenture provides that before such additional bonds may be issued there must be revenues amounting to a gross of 200% and a net of 130% of the revenues needed to make the payments on the outstanding indebtedness. Appellants contend that this limitation is not authorized by law. This provision is for the protection of both the City and the purchasers of the bonds. It is realized that there will be a necessity for the issuance of additional bonds on one or more occasions before the 1956 bonds are retired. The City stands to save a great deal if such bonds can be issued under the 1956 Indenture on a parity with the 1956 bonds. But, of course, before a purchaser of the 1956 bonds would agree to such an arrangement he would want to know that additional bonds would not be issued recklessly, even ■if this could be done, which is not probable. The statutes in no way prohibit the City from agreeing to such a provision in the Indenture; in fact, Ark. Stats. § 19-4216 provides: “. . . The priorities as between successive issues of revenue bonds may also be controlled by the provisions of said ordinance. Said ordinance may also, if deemed desirable, provide for the execution ... by the municipality of an indenture defining the rights of the bondholders inter sese . . . providing for the priority of lien as between successive bond issues, ... or the application or safeguarding of the proceeds of the bonds, or other covenants intended for the protection of the bondholders; and containing any other provisions (whether similar or dissimilar to the foregoing) which are consistent with the terms of this act and which may be deemed desirable.” Here, the City has determined that it is desirable for the Indenture to contain a provision in regard to the receipt of revenues before the issuance of additional bonds under tbe 1956 Indenture. We cannot say as a matter of law that sucb provision is not desirable.

Appellants complain that under tbe 1956 Indenture tbe City is not required to maintain separate depreciation, operation and maintenance funds. Of course, tbe purchasers of tbe 1956 bonds will take with full knowledge of tbe provisions of tbe indenture. There will be allocated to tbe 1936 bonds tbe proper percentage of tbe gross revenues; it is bard to see bow tbe 1936 bondholders will be prejudiced, but if at any time a proper percentage of tbe revenues is not allocated to tbe retirement of tbe 1936 bonds, sucb condition could be corrected.

Affirmed.

Justices McFaddin, Millwee and Smith dissent in part;


author: Carleton Harris, Chief Justice.

text:
    Forster v. Bates.
    5-1218
    300 S. W. 2d 267
    Opinion delivered April 1, 1957.

      Digby & Tanner, for appellant.

      Terral <& Bawlings, for appellee.
   Carleton Harris, Chief Justice.

Pauline Bates, a resident of Pulaski County, Arkansas, died intestate on or about April 19, 1955, leaving surviving her, Fred Bates, her husband, and her brothers, M. P. Forster II, Henry Forster, her sisters, Katherine Elizabeth Mc-Cumpsey, Clara Forster Pape, and her nephews and nieces, who were children of Gertrude Pinkerton, a deceased sister. At the time of her death, Pauline Bates was the owner of a certain eight acres, described in the complaint, located in Pulaski County, Arkansas. Title to this property had originally been held by her father, and subsequent to his death, the appellants herein quit-claimed their interest in said property to Mrs. Bates. Appellee constructed a house thereon, lived there with Pauline Bates until the time of her death, and continues to reside in said location. Following the death of his wife, appellee learned (according to his testimony) that title to the property had been held entirely in his wife’s name, and that he presently held only a curtesy interest. Later he contacted an attorney, Mr. J. S. Abercrombie of Pulaski County, and subsequently proceeded to contact appellants. Mrs. McCumpsey, Henry Forster, and M. P. Forster II, accompanied appellee to Mr. Abercrombie’s office at different times, and conveyed, by quitclaim deed, their interest in said property to appellee. The wives of the Forsters relinquished their rights of dower and homestead at the same time. This deed is dated June 3, 1955. Mrs. Clara Forster Pape, who was living in Chicago, refused to sign a similar deed, and on November 2,1955, appellants filed suit in the Pulaski Chancery Court, asking that their deed be cancelled and that they, together with the other heirs of Pauline Bates, deceased, be declared the owners of the property. For grounds of cancellation, appellants alleged: “That the said defendant, Fred Bates, made certain misrepresentations and perpetrated a fraud upon the plaintiffs, and informed them that all heirs at law of his deceased wife, Pauline Bates, would convey subject property to him, individually.” * * * “That there was no consideration for the deed of conveyance aforesaid by the plaintiffs to the defendant; that he obtained said deed of conveyance from them by misrepresentation and fraud; that he has not obtained the interest of the other heirs of Pauline Bates, deceased; and that the condition upon which said deed of conveyance from the plaintiffs to the defendant has failed.” Appellee filed a general denial, and the cause proceeded to trial. At the conclusion of the hearing, the Court entered its decree, finding for the appellee, and dismissing the cause of action. From such decree comes this appeal.

The fraud, alleged by appellants, consists of the alleged statements of appellee and his attorney, purportedly made to appellants before they signed, that all other heirs of Pauline Bates would likewise convey their interest. The statements of appellants, however, are somewhat vague; for instance, Mrs. McCumpsey testified that while Judge Abercrombie made such a statement to her, she did not ask him as to where he obtained the information, asked no questions at all, just “read the deed and it seemed like it was right.” It is difficult to understand a person deeding away her interest in property simply because she is advised by an attorney that the other heirs are deeding their interests, and not even asking a single question about it. Mr. Henry Forster was asked: “Q. What was it Judge Abercrombie asked you, if you recall? A. Well, the whole thing was misrepresented. Q. Will you tell the Court what was said? I believe that is a function of the Court to determine whether that is correct, but tell the Court what was said? A. I don’t know very much. THE COURT: Answer his question, Mr. Forster. If you know tell him and if you don’t know, say so. THE WITNESS: A. I don’t know. MR. TERRAL: Q. Just a minute. Did Judge Abercrombie say anything? THE COURT: Do you recall anything Judge Abercrombie said? THE WITNESS: No. ” Appellee testified that, under the impression he held equal interest in the property with his wife, his entire life savings ($9,000) had been invested in building a home, that such expenditure would not have been made had he known the true situation, and when he learned that the deed was entirely in his deceased wife’s name, he went to Mrs. McCumpsey, and she advised that he obtain a lawyer. She, at that time, indicated her willingness to sign and stated that she would contact Mrs. Pape in Chicago. Appellee testified that he talked with the other appellants and each agreed to sign the deed. Both appellee and Judge Abercrombie testified that the latter explained to Mrs. McCumpsey that Mr. Bates felt that since he had placed a $9,000 home upon-unimproved property, under a mistaken belief, for appellee and his deceased wife to live in, he (appellee) was entitled to the property, and Judge Abercrombie asked Mrs. McCumpsey if she thought “it would be the will of your deceased sister that he should have the property.” To this question, Judge Abercrombie stated that she answered “Yes,” and proceeded to sign the deed. Judge Abercrombie further testified that before each appellant signed, he made the same explanation and asked the same question, and that the only representation he made as to whether Mrs. Pape would sign the deed was that Mrs. McCumpsey had said that she would do so. Mrs. McCumpsey denied such a conversation, and stated that she had never communicated with her sister about the deed. When asked áA to whether or not she had talked over the phone with her about signing, she replied, “I don’t remember,”; however, a letter placed in the record from Mrs. Pape to Mr. Bates, dated July 10, 1955, contained the following: “* * * Writing you about the papers that you sent me to sign when I called Katy I did say that I would sign if the clause was put in about the bauxite. * * * ”

One of the strongest arguments supporting appellee’s position relates to the fact that though thé deed in question was signed in June, 1955, not a single one of the appellants endeavored to contact appellee or saw fit to complain that they had signed the deed because of misrepresentation; in fact, they filed their complaint without discussing the alleged fraud with him. The record reflects the following testimony from appellant, Mr. M. P. Forster, II. “THE WITNESS: I have not seen him. I have not seen him, I reckon, over one time since this happened. MR. TERRAL: Q. Where was that? A. I passed him on the road. Q. Just passing on the road? A. That is right, sir. Q. Did you try to find him? A. No, sir. Q. Why didn’t you? A. It wasn’t none of my business. What did I want to look him up for? THE COUET: Just answer his questions. MR. TERRAL: Q. I think your statement is well made. You had deeded your interest in some property to him under a misrepresentation from him and Mr. Abercrombie, is that correct? A. That is right. Q. And you had no interest in getting him to correct that? A. No, sir. Q. You had no interest in getting him to deed it back to you? A. I don’t know.’’

Certainly it cannot be said that these appellants reacted in the normal manner of one who has been deprived of his property because of fraudulent representation. One would expect that appellants would have “beaten a path to the door” of appellee, demanding an explanation for the false and fraudulent statement, and clamoring for a return of the deed. Their failure to complain, of course, lends weight to appellee’s argument that no such representation was made. Had appellants intended to sign only if Mrs. Pape signed, it would have been simple enough for them to have merely postponed their execution of the deed until the deed from Mrs. Pape (the only non-resident involved) had been returned. We accordingly do not agree that the deed was invalid because a condition precedent was not fulfilled, nor can we conclude that it was signed because of a mistaken belief that all heirs would convey. It simply appears that appellants, because of the fact that appellee was the husband of their deceased sister and was accordingly looked upon “as one of the family,” and had invested his life savings in constructing the home in which their sister had lived, felt that he was morally entitled to the property, and accordingly signed the deed. Subsequent thereto, they had a “change of heart” and regretted having conveyed their interest.

The result of the lawsuit, of course, hinges upon whether or not fraudulent statements were made by appellee and his attorney, which induced appellants to execute the deed. The quantum of proof required to justify a court in setting aside a deed because of fraud, in this state, is so well known as to hardly require the citing of authority. Such proof must be clear, cogent, and convincing. Penney v. Long, 210 Ark. 702, 197 S. W. 2d 470; Morris v. Cobb, 147 Ark. 184, 227 S. W. 23. The testimony in this case falls far short of that required.

The decree is accordingly affirmed.

       Mrs. Pape and the nephews and nieces are not parties to this litigation. Appellee later obtained deed from all except Mrs. Pape.

       Mrs. McCumpsey, after testifying that she had not discussed the signing of the deed with appellee, in later testimony stated that she talked about the deed when appellee came to her house in September. She did not testify as to what was said. Appellee testified that she said, “Fred, after studying it over and considering it, we have decided that I want my deed back. We are willing that you live there on the place the rest of your life, and we will treat you nice, and you can marry anybody you like, but when you are dead, we want the property to go back to us.”

       There was testimony to the effect that Henry Forster’s wife remarked : “Do yon reckon we should sign these deeds before Clara signs them?”


author: J. Seaborn Holt, Associate Justice.

text:
    Troillet v. Troillet.
    5-1222
    300 S. W. 2d 273
    Opinion delivered April 1, 1957.

      Francis T. Donovan, for appellant.

      Wood (& Smith, for appellee.
   J. Seaborn Holt, Associate Justice.

The parties to this suit were each born in Arkansas. Appellee, Elsie Mae Troillet, has lived mostly in Little Rock, Arkansas, until she secured work in Dallas, Texas, in 1952 and took up her residence in that city. She met appellant, Leo Joseph Troillet, in Dallas and they were married February 14, 1953. Appellant had lived in Conway, Arkansas, until he moved to Dallas, Texas in 1952. Following their marriage they made their home in Dallas for upwards of four years, when they separated. A girl baby was born to them. On May 15, 1956, appellee filed suit for a divorce, for child custody and support, in Pulaski County, Arkansas, approximately 5 days after she had come to the home of her parents in Little Rock, Arkansas, and after having resided with her husband for some four years in Dallas, as indicated. Appellant answered with a general denial and in a cross complaint sought a divorce and custody of the child.

Trial resulted in a decree in favor of appellee for divorce, and custody of the child, on July 24, 1956. This appeal followed. For reversal appellant contends that the trial court was without jurisdiction of the parties, for the reason that appellee was not a resident of Arkansas at the time she filed suit, as provided and required in § 34-1208 Ark. Stats. 1947. Appellee on the other hand maintained in the trial below and argues here on appeal that “both parties were domiciliaries of Arkansas and their domicile never changed because residence in other states was never coupled with an intention to remain.”

We have concluded that the contention of appellant was correct and must be sustained. § 34-1208 above provides: ‘ ‘ The plaintiff, to obtain a divorce, must prove but need not allege, in addition to a legal cause of divorce: First, a residence in the State for three (3) months next before the final judgment granting a divorce in the action apd a residence for two (2) months next before the commencement of the action.” In Parseghian v. Parseghian, 206 Ark. 869, 178 S. W. 2d 49, in construing the above statute, we held that residence for two months in this state before filing suit for divorce is jurisdictional, and cited a number of cases in support. In that case we held that a divorce suit must be dismissed as premature where the plaintiff’s own testimony disclosed that he had been in the state two days less than two months before commencing his suit. See also Porter v. Porter, 209 Ark. 371, 195 S. W. 2d 53. We have consistently reaffirmed our holding in these cases.

Appellee’s own testimony conclusively shows that she had not complied with this statute, which requires residence in Arkansas for at least two months next before filing her suit for divorce. In fact, she, in effect, admitted she had only been in Arkansas some 5 or 6 days when she filed her action for divorce. Her testimony reflects: “Q. You are telling the Court you have been in Arkansas since May 10? A. Yes, sir. Q. That is approximately correct? A. Yes, sir . . . Q. Then you were not a resident of Arkansas for 60 days prior to the filing of this lawsuit, were you? A. No, sir . . . Q. So, you did consider yourself a resident of Dallas, Texas, as of the 13th day of March, 1956, and during the 4 years that you lived in Dallas? A. Yes.” Her testimony was also corroborated by other witnesses. In fact, we find no contradictory testimony. Appellant testified: “Q. But your home residence and domicile was in Dallas, Texas? A. It has been in Dallas. Q. Since 1952? A. Since 1952.”

It appears that appellee did not testify that it was her intention to remain in Arkansas and maintain a home here. In the circumstances we hold that appellee’s domicile since she moved to Dallas in 1952 has been in that city, and if she has since then acquired a domicile in Arkansas, she had not resided here for the required sixty days before filing suit. In Oakes v. Oakes, 219 Ark. 363, 242 S. W. 2d 128, we said: . . to effect a change of domicile from one locality, state or country to another, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last acquired residence a permanent home . . . The change of residence must be voluntary; the residence at the place chosen for the domicile must be actual; and to the fact of residence there must be added the animus manendi.”

Having concluded that the present suit was prematurely brought, the decree is reversed and the cause dismissed.


text:
    Red Top Driv-Ur-Self v. Potts.
    5-1225
    300 S. W. 2d 261
    Opinion delivered April 1, 1957.

      Wood & Smith, for appellant.

      Longstreth, Kemp & Broolcs, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal involves the liability of the registered owner of a vehicle for the traffic violation committed by one to whom the car had been rented. Appellant filed suit for a declaratory judgment. The complaint alleged, and the evidence established, these facts:

(1) Appellant owns automobiles which it rents (or leases) to persons who have acceptable credit rating. The lessee has full and complete control of the vehicle during the time of the lease agreement. The bona fides of the lease by appellant is not questioned by appellee.

(2) In each of the several instances here involved the lessee parked the car in a metered zone in the City of Little Rock and left the car parked so long that an overtime parking ticket was attached to the car. The lessee failed to pay the fine for the overtime parking.

(3) The lessee returned the car to appellant, paid the rental charge, and left the City without ever informing appellant of the overtime parking ticket or without leaving the money to pay for the traffic violation.

(4) Some time later the City of Little Rock ascertained that the automobile that had been overparked was registered in the name of the appellant. Thereupon, the City notified appellant of the traffic violation and the amount required to pay for it, which amount had become greater by reason of the failure to make prompt payment.

(5) The appellant offered to furnish the City the name and address of the persons who had each particular car rented the day of the specific traffic violation, but the City claimed that the appellant was personally liable for the fines for the traffic violations because the City ordinance reads: “It shall be unlawful and a violation of the provisions of this ordinance for any person to cause, allow, permit, or suffer any vehicle registered in the name of . . . such person to be parked overtime . . .” The City claimed that the ordinance made the appellant absolutely liable for the fines and that the City need not pursue the persons who had leased the cars from the appellant, even though appellant offered to give the City the name and address of each such person (most of whom were non-residents).

(6) "When approximately twelve of these cases had accumulated, appellant brought this suit for a declaratory judgment so that appellant and the City might know their respective rights. The Chancery Court held that the ordinance was valid and that under the stated facts the appellant was personally liable for the fine required to be paid for the traffic violation in each case.

While the question here presented is one of first impression in this Court, we are not without cases from other jurisdictions on whether merely being the registered owner of the vehicle is conclusive proof of the traffic violation by such registered owner. We list some of the cases discovered by our search: Commonwealth v. Ober, 286 Mass. 25, 189 N. E. 601; People v. Hoogy (Mich. 1936) 277 Mich. 578, 269 N. W. 605; Commonwealth v. Kroger (Ky. 1938) 276 Ky. 20, 122 S. W. 2d 1006; People v. Bigman, 37 Cal. App. 2d 708, 100 Pac. 2d 370; State v. Morgan (R. I. 1946), 72 R. I. 101, 48 A. 2d 248; City of St. Louis v. Cook (Mo. 1949) 359 Mo. 270, 221 S. W. 2d 468; State v. Scoggin (N. C. 1952) 236 N. C. 19, 72 S. E. 2d 54; State v. Scoggin (N. C. 1952) 236 N. C. 1, 72 S. E. 2d 97; and Masfell v. Ogden City (Utah 1952), 249 Pac. 2d 507. In 49 A. L. R. 2d 456 there is an annotation entitled: ‘£ Inference or presumption that owner of motor vehicle was its driver at time of traffic, driving, or parking offense ’ ’; and in the annotation other cases are cited, discussed, and classified.

The Massachusetts case of Commonwealth v. Ober, supra, holds the registered owner to he conclusively liable for the traffic violation. The North Carolina case of State v. Scoggin, supra, holds that the registered owner is not liable until the prosecution proves that he was the actual driver of the car at the time. The Michigan case of People v. Hoogy, supra, refuses to allow any presumption to arise from the fact that the parked vehicle was registered in the name of the owner. The Missouri case of City of St. Louis v. Cook, supra, holds that the registered owner is prima facie liable for the traffic violation, but that such registered owner may overcome the prima facie case by showing that he was not the person who violated the traffic regulation. We think the Missouri rule is the fairest to all concerned and is the one to be applied in this case.

It would unduly prolong this opinion to discuss each of the cases cited. This is a declaratory judgment proceeding, and it is sufficient that we make a declaration extending only to the issues presented by the stated facts. We, therefore, declare:

(1) That to make the registered owner conclusively liable for the traffic violation under the ordinance and facts here involved would be to infringe on constitutional rights; and the ordinance should not be so construed as to be unconstitutional.

(2) That the ordinance of the City of Little Rock, here involved, is constitutional when it is construed — as we do so construe it — as casting on the registered owner the burdeh of going forward with the evidence to show that such registered owner was not the person who committed the traffic violation in issue.

Applying the foregoing declarations, it is clear that when the appellant in the case at bar offers to furnish the Traffic Court of Little Rock the name and address of each person who had the car rented at the time of the traffic violation in issue, then the Traffic Court of Little Rock, if it believes the evidence offered by the appellant, should absolve the appellant from any fine for the said traffic violation in issue. In the light of the foregoing, the decree of the Chancery Court is reversed.

Millwee, J., concurs.

       The appropriateness and timeliness of this declaratory judgment procedure was not made an issue, so we do not raise it.

       In 36 A. L. R. 1153, and in 7 A. L. R. 2d 456, there are annotations not directly in point but still shedding some light on the question here.

       On the matter of conclusive presumptions being unconstitutional in certain instances, see annotations in 51 A. L. R. 1149, 86 A. L. R. 182, and 162 A. L. R. 516.


text:
    Kirksey v. City of Ft. Smith.
    5-1199
    300 S. W. 2d 257
    Opinion delivered April 1, 1957.

      Warner, Warner £ Ragon, for appellant.

      Lem G. Bryan, City Atty. and Hardin, Barton, Hardin £ Garner, Special Counsel, for appellee.

      Mehaffy, Smith & Williams and Glenn G. Zimmerman, amici curiae.

   Minor W. Millwee, Associate Justice.

The issue here is whether a municipal corporation is liable for a tort committed in connection with the operation and maintenance of its airport. Essential to such determination is the further question whether the operation and maintenance of a municipal airport is a governmental or proprietary function.

Plaintiff is the widow of Jason Kirksey, deceased, and administratrix of his estate. She brought this action against the defendant, City of Fort Smith, Arkansas, seeking damages for the injury and death of her husband arising out of his employment at the Fort Smith Municipal Airport. The complaint alleges that the airport was acquired under the right of eminent domain with all revenues derived therefrom being used for operation expenses, maintenance, retirement of bonds and improvements of such airport. There are repeated allegations in the form of conclusions of law or fact to the effect that the City operated its airport as “a proprietary function” or a “private corporation” and not for a governmental purpose; and that it sold petroleum products to the general public and operated at a net profit with income derived from such sources as office and other space rentals, cafe operation and other activities of an alleged proprietary nature. However the salient factual allegations are that the deceased sustained injuries from an explosion causing his death on account of the negligence of the defendant, and its agents, in ordering him to use certain solvents and in failing to use reasonable care to furnish him with safe tools and place to work.

The City demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. After the matter was taken under advisement and fully briefed the able trial judge rendered a comprehensive and well considered opinion in which he concluded that the operation and maintenance of the municipal airport by the City constituted a governmental and not a proprietary function for which it was not liable to respond in damages to the plaintiff; and that the demurrer should, therefore, be sustained. This appeal is from a judgment dismissing the cause of action after plaintiff declined to plead further.

In reaching the conclusion that the operation and maintenance of the Fort Smith Municipal Airport is a governmental function the trial court reviewed our various statutes dealing with the construction and operation of such installations and the cases from other jurisdictions bearing on the question relied on by each party. After noting the sharp division of authority on the question in other jurisdictions the court concluded that our own cases pointed to non-liability on the part of the City. We quote from the opinion:

“Act 128 of 1953 was passed and referred to by short title as ‘Municipal Airports Act/ which appears in Supplement, Ark. Stats, as sections 74-601 to 74-620, inclusive. Section 74-602 provided for the general powers of municipalities in the operation and maintenance of airports and as a part thereof, provided: ‘. . . including the construction, installation, equipment, maintenance and operation at such airports of buildings and other facilities for the servicing of aircraft or for the comfort and accommodation of air travelers, and the purchase and sale of supplies, goods and commodities as an incident to the operation of its airport properties . . .’

“Defendant, City of Fort Smith, contends that under Section 74-615, Supplement, (Act 128 of 1953) the operation and maintenance of a municipal airport was determined and declared by the Legislature to be a governmental function. The section provides in part: ‘the . . . construction, improvement, maintenance . . . operation . . . and the exercise of any other powers herein granted to such municipalities . . . are hereby declared to be public and governmental functions, exercised for a public purpose, and matters of public necessity; and in the case of any municipality are declared to be municipal functions and purposes as well as public and governmental . .

“Section 74-616 exempts the income from operation of airports by a municipality from taxation. Section 74-619 as to interpretation and construction of the Act, provides that: ‘This Act (74-601 — 74-620) shall be so interpreted and construed as to make uniform so far as possible the laws and regulations of this State and other States and of the government of the United States having to do with the subject of municipal airports.’ Under the provisions of Act 128 of 1953, Federal aid was made available by grant or loan for construction of airports by municipalities.

“Section 74-615 very clearly provides that the exercise of the powers granted, which include maintenance and operation of airports, constitute public and governmental functions for a public purpose and to be matters of public necessity and that in cases of municipalities are declared to be municipal functions and purposes as well as public and governmental.

“Act 128 of 1953 makes no reference to tort liability, nor does it in direct terms, exempt municipalities from tort liability, other than declaring that in the exercise of the powers granted under the Act, same constitute governmental functions . . .

“The case of Little Rock v. Holland, 184 Ark. 381, 42 S. W. 2d 383, declared the law to be that: A municipality acting in its proprietary or corporate capacity is liable for injury caused by the negligence or nonfeasance of its officers or agents; but, when acting in its governmental capacity, it is not liable for such negligence or nonfeasance. Factually, the appellee was an electric lineman, employed by the city, was sent out alone to remove a pole from the city’s line. He climbed the pole, which broke and he fell sustaining injuries. He alleged negligence upon the part of his superior by reason of failure to inspect pole or to warn him of its dangerous condition, and in failing to furnish him with a safe place to work. A demurrer was filed to the complaint, which was overruled. The appellate court on appeal, reversed the case and ordered its dismissal, holding that the operation of a municipal power plant was a governmental function. It cited with approval the case of Granger v. Pulaski County, 26 Ark. 37, in which the court held that counties are g^asi-corporations and that they possessed no power and incur no obligations except conferred or imposed by statute, by the party injured, for the negligence of their officers, unless authorized by statute. The court also stating that any distinction between liability of counties and cities had been lost sight of by the court in later decisions. The court stated that the maintenance and operation of waterworks, sewers, buildings and repair of streets were necessary governmental functions, and 'it is difficult to perceive why the same rule should not apply to the facts in this case. We hold that it does . . .’

"In the case of Patterson v. City of Little Rock, 202 Ark. 189, 149 S. W. 2d 562, plaintiff, a minor child, sustained injuries through the alleged negligence of the employees of the Municipal Waterworks in leaving open and uncovered a water meter box. She sued the City of Little Rock, the Little Rock Municipal Water Works and its Commissioners for damages. A demurrer to the complaint was sustained.

"The demurrer was sustained and affirmed on appeal to the Supreme Court. The court discussed Section 1 of Act 131 of 1933 which authorized any city to purchase or construct a waterworks system, holding that the Act conferred on municipalities the power to purchase or construct a waterworks system but did not require them to do so. If the' power was exercised as conferred, then the operation of the same was to be performed as set out therein. They held that the city was therefore, engaged in a governmental function in the operation of the water works by its board of commissioners and could not be sued. The court, reiterated its former holdings, that the city in the operation of waterworks, electric light plants, sewer systems, etc., was engaged in a governmental function and that an action for damages based upon the negligence of its officers and agents could be maintained, citing cases.

"It should be observed that the declarations of law and the holding as announced in the case of Holland v. City of Little Rock, and Patterson v. City of Little Rock, were made prior to the enactment of Act 128 of 1953. There is nothing in the context of Act 128 of 1953, as the court interprets the Act, which in any respect warrants or justifies a change, modification or reversal of the law as declared in the cases of Patterson and Holland v. City of Little Rock, supra. In the annotations p. 128, cited in 138 A. L. R., the California Court in the case of Coleman v. Oakland, 110 Cal. App. 715, 295 P. 59, held that a municipally operated airport ‘falls naturally into the same classification as such public utilities as electric light, gas, water and transportation systems, which are universally classed as proprietary.’ But the Supreme Court of Arkansas in its decisions holds directly to the contrary; that a city in the operation of waterworks, electric light plants, sewer systems, etc. was engaged in governmental functions, and not liable in damages for negligence of its officers.

“Our own Supreme Court has repeatedly held that a right of action against municipal corporations does not exist at common law and that their liability to a private action for torts, must be determined by the statute which creates them.”

In urging a reversal plaintiff relies particularly on the case of Rhodes v. City of Ashville, 230 N. C. 134, 52 S. E. 2d 371, and several cases from other jurisdictions which have followed it, including Granite Oil Securities, Inc. v. Douglas Co., 67 Nev. 388, 219 P. 2d 191; Ex Parte Houston, 93 Okla. Cr. 26, 224 P 2d 281; Harrison Co. v. West Virginia Air Service, 132 W. Va. 1, 54 S. E. 2d 1; Miami Beach Airline Service, Inc. v. Crandon, (Fla.) 32 So. 2d 153, 172 A. L. R. 1425. The North Carolina court held that the operation and maintenance of a municipal airport under a statute with a provision identical to Ark. Stats., Sec. 74-615, supra, to be a proprietary function and that the statutory declaration to the contrary demonstrated a legislative intent to declare such activities to be a governmental function only in the sense that “it was a public purpose.” On rehearing in 53 S. E. 2d 313, the court concluded that the Legislature “unquestionably” intended to declare the operation of the airport to he in furtherance of a governmental function, but that its “declaration to that effect did not make it so, for that is a judicial and not a legislative question.”

In support of the judgment the City relies on Stocker v. City of Nashville, 174 Tenn. 483, 126 S. W. 2d 339, 124 A. L. R. 345; Abbott v. City of Des Moines, 230 Iowa 494, 298 N. W. 649, 138 A. L. R. 120; and Imperial Production Corp. v. City of Sweetwater, 210 Fed. 2d 917, which hold the operation and maintenance of municipal airports to be a governmental function under statutes containing provisions similar but not identical to Sec. 74-615. In addition the defendant relies on many of our own cases which hold a municipality or quasi public corporation to be engaged in a governmental function in the operation of such facilities as water works, electric light plants and sewer systems. The City also cites Handley v. City of Hope, 137 Fed. Supp. 442, where the court held the municipality immune from a tort action arising out of the operation of a swimming pool and rested its decision on Yoes v. City of Ft. Smith, 207 Ark. 694, 182 S. W. 2d 683. In the Toes case we held the city’s operation of a water works which sold water to other cities and an army camp, and its operation of a swimming pool, cottages and concessions were all exclusively for a public and not a proprietary purpose, so as to be exempt from taxation. See also Hope v. Dodson, 166 Ark. 236, 266 S. W. 68.

There is a notable lack of harmony among the various jurisdictions in the application of the governmental-proprietary distinction to specific municipal activities and functions. One legal scholar has observed that the divergent rules adopted by American courts “make a curious patchwork of immunity and responsibility. ’ ’ Plaintiff correctly states that the weight of authority supports the proposition that the operation of a municipal airport is a proprietary function. However, as the trial court indicated, the same jurisdictions which so hold have also found the operation of water works, light plants and swimming pools by a municipality to be a proprietary function, while our cases are to the contrary.

The maintenance and operation of a municipal airport is in the interest of the public generally and we think it was within the province of the Legislature to determine that it constituted a governmental function. The North Carolina Court’s holding that this involves a judicial and not a legislative question appears somewhat at variance with our own cases and the rule generally held applicable. The question whether a municipal function is governmental or proprietary is ordinarily determined in accordance with the public policy in the jurisdiction in which it arises. 63 C. J. S., Municipal Corporations, Sec. 747. It is also generally recognized that the public policy of a state is to be found in its Constitution and statutes. See 11 Am. Jur., Constitutional Law, Sec. 139, where the author states: “In order to ascertain the public policy of a state with respect to any matter, the acts of the legislative department should be looked to, because a legislative act, if constitutional, declares in terms the policy of the state and is final so far as the courts are concerned. ’ ’ Our own cases are in harmony with this statement. Ft. Smith v. Scruggs, 70 Ark. 549, 69 S. W. 679, 58 L. R. A. 921; Ward v. Bailey, Governor, 198 Ark. 27, 127 S. W. 2d 272. Statutes exempting municipalities from tort liability are generally held to be within the power of the legislature and are not unconstitutional. See cases cited in 124 A. L. R. 350, including Mack v. Charlotte City Waterworks, 181 N. C. 383, 107 S. E. 244.

If we were privileged to set the state’s public policy on this issue we might readily agree that the present pattern of partial tort liability of municipalities should be replaced with a stricter or more complete rule of responsibility. Considerations of fair play and justice suggest that those injured by the negligence of a municipality or its agents should be compensated on equal terms with those injured by individuals or private corporations. Able law writers have so recommended, but through legislative and not judicial action. See the splendid article on “Municipal Tort Liability'in Operation,” 54 Harvard Law Review 437. A’ step in this direction was taken by the Arkansas Legislature in 1947 by the enactment of Ark. Stats.,. Sec. 66-517, et seq., which authorizes municipalities and other agencies immune from tort action to purchase liability insurance with the right of direet action by the injured plaintiff against the insurer. Perhaps the Legislature will make the purchase of such insurance mandatory at some future time. This decision rests with the people acting' directly or through their legislature, and not with the courts.

The judgment is affirmed.

McFaddin, J., concurs.

       Professor Fleming Jones James Jr. in 22 U. of Chicago Law Rev. 610.