text:
    GRIFFIN v. YOUNG.
    5-814
    286 S. W. 2d 486
    Opinion delivered January 16, 1956.
    [Rehearing denied February 27, 1956.]

      John B. Driver, McDaniel and Crow, for appellant.

      John Marable, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal emphasizes the necessity of itemizing an account. Appellees filed action against appellant, alleging:

“Defendant is indebted to plaintiffs in the sum of $310.60, together with interest from September 24, 1949, to date, at the rate of six per cent per annum, for goods, wares and merchandise which defendant purchased from plaintiffs on the dates and in the amounts as is shown on the itemized and verified statement of the account attached as Exhibit ‘A’ hereto and made a part hereof.”

The ‘ ‘ itemized and verified statement of the account attached as Exhibit ‘A’ ” merely contained information like this:

“7-29-48 Groceries 6.72

7-29-48 ” 1.87

7-31-48 ” 4.94

8- 4-48 ” 6.86

8- 5-48 ” 3.23

8- 7-48 ” 13.26

8-10-48 ” .21

8-10-48 ” 2.49

8-11-48 ” .36

8-14-48 Paid on Account 20.00

8-14-48 Groceries 17.07

8-21-48 Paid on Account 15.00

8-21-48 Groceries 11.08

10.67 8-28-48

In other words, the account merely gave a date, the general word “groceries” and the total of the purchases of groceries on the date shown.

Appellant (defendant) filed this motion:

‘ ‘ The defendant respectfully moves the Court to require the plaintiffs to make their complaint more definite and certain in the following particulars:

“1. To itemize the account sued on;

“2. To state each item alleged to have been purchased by the defendant, and the cost thereof. ’ ’

The Court overruled the motion, tried the case, and rendered judgment for appellees; and the only point on appeal is the alleged error of the Trial Court in refusing to require the appellees to itemize the account.

In Brooks v. International Shoe Co., 132 Ark. 386, 200 S. W. 1027, in regard to the necessity of an itemized account when requested, we said:

“It will be observed that the account filed by appellee did not purport to be an itemized account, but only to show the total amount of bills alleged to have been sold on the dates mentioned without giving a complete inventory of the goods sold.

“The word ‘account’ is said to have no inflexible technical meaning and is differently construed according to the connection in which it is used. However, in mercantile transactions it is invariably used in the sense of a detailed or itemized account. Bouvier defines the word as ‘A detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts or some fiduciary relation.’ Substantially the same definition is given in 1 Corpus Juris, p. 596, where it is said: ‘ To constitute an account, there must be a detailed statement of the various items, and there must be something which will furnish to the person having a right thereto information which will enable him to make some reasonable test of its accuracy and honesty. ’ ’ ’

In the Brooks case the word was “merchandise”; here the word is “groceries.” Other eases as to itemization are Tylor v. Crouch, 219 Ark. 858, 245 S. W. 2d 217; and Terry v. Little, 179 Ark. 954, 18 S. W. 2d 916. Under these cases it is clear that the defendant was entitled to have the account itemized by the plaintiffs, specifying the particular articles (i. e. ham, cheese, crackers, lard, etc.) covered by the generic word “groceries,” and totalling the amount of the purchases on each day shown.

To avoid the effect of our holdings as previously quoted, appellees claim that in Brooks v. International Shoe Co., supra, this Court quoted a Statute (then contained in § 6128 Kirby’s Digest), and that the present Statute (§ 27-1143 Ark. Stats.) omits the last sentence contained in the Kirby’s Digest section and reading as follows:

“If upon an account, a copy thereof, must, in like manner, be filed with the pleadings. ’ ’

Appellees point out that the last quoted sentence was contained in § 138 of our Civil Code of 1869 but was omitted from the Amendatory Act which was Act 48 of 1871. But the appellees’ claim in this regard fails to go to the heart of the matter. The complaint said that attached to it was an “itemized and verified statement of the account.” The defendant asked to be furnished such “itemized statement.” The plaintiffs failed to itemize the statement; and we have held that itemization is required when requested, unless good reason be shown for inability to itemize.

Furthermore we cannot see — in the record before us — anything that would support a holding that appellant has lost the right to raise the point on appeal. The order, overruling the motion to make more definite and certain, merely says:

“And the Court, after hearing argument of counsel, overrules the said demurrer and motion.”

Prior to Act 555 of 1953 an exception would have been required in order to save the point; but § 21 of Act 555 abolishes exceptions and it is only necessary that the party at the time of the ruling makes known to the Court “the action which he desires the Court to take or his objections to the action of the Court and his grounds therefor.” Certainly when the defendant filed in the Trial Court his motion to make more definite and certain, he made known the action which he desired the Court to take; and thus there is substantial compliance with § 21 of said Act 555.

The record before us contains only the pleadings in the Trial Court, but the appellees have not objected or claimed the record to be deficient. The appellant designated in the Trial Court as his point for appeal:

“The defendant herein, Roy Griffin, is appealing this case to the Supreme Court of Arkansas only from the Court’s action in overruling the defendant’s Motion to Make the Complaint More Definite and Certain.”

Section 12 of Act 555 of 1953 says in part:

“Where the record has been abbreviated by agreement or without objection from opposing parties, no presumption shall be indulged that the findings of the trial court are supported b}^ any matter omitted from the record.” (Italics supplied.)

When the defendant presented to the Trial Court his motion to have the statement itemized, the plaintiffs could have shown that they had furnished the only itemization they had, or they could have offered other excuses. But because of the said § 12 of Act 555, as above quoted, we cannot indulge the presumption that any such matters occurred. In this state of the record, we see no course open to us except to apply our cases concerning the necessity of itemizing an account when requested.

Therefore, the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Justices Holt and Ward dissent.

       In Ark. Stats. Anno. Vol. 3, p. 1101 in the Appendix, there is Form No. 16, which gives the suggested form of complaint in an action on an account. The complaint here was similar to that form.

       This Section 21 is a copy of Rule 46 of the Federal Rules of Civil Procedure.

       This quoted sentence is not a part of Federal Rule 75(e) from which the first part of § 12 of Act 555 is copied.


source: Caselaw Access Project

author: Minor W. Millwee, Associate Justice.

license: Public Domain

text:
    DeVore Farms, Inc. v. Butler Hunting Club, Inc.
    5-815
    286 S. W. 2d 491
    Opinion delivered January 16, 1956.
    [Rehearing denied February 27, 1956.]

      Botts £ Botts, for appellant.

      George E. Pike, for appellee.
   Minor W. Millwee, Associate Justice.

This is a suit by appellant, De Vore Farms, Inc., to restrain appellee, Butler Hunting Club Inc., from maintaining a dam across a bayou which allegedly obstructed the natural flow of said bayou and proper drainage of appellant’s lands. Appellant also alleged that its lands had been rendered valueless for the purpose of growing timber, and damages in the sum of $20,000.00 were asked for merchantable timber already destroyed by reason of the flooding of its lands.

In its answer, appellee admitted maintenance of the dam upon its lands since 1938 but denied that it held water on appellant’s lands or that any timber belonging to appellant had been destroyed by reason of the construetion and maintenance of said dam. After an extended hearing the chancellor determined these factual issues in appellee’s favor and, in the decree dismissing appellant ’s complaint, found: ‘ ‘ The court finds that the plaintiff has failed to establish by a preponderance of the testimony that the excess water complained of by plaintiff was caused by the act of defendant in constructing and maintaining its dam. The court further finds that the plaintiff has failed to establish by a preponderance of the testimony that damages alleged by the plaintiff were caused by the acts of the defendant.”. The sole issue is whether these findings are against the preponderance of the evidence.

Mill Bayou is a shallow, sluggish, non-navigable stream which runs in a southernly direction from a point near Almyra in Arkansas County until it flows into Big Bayou Meto about three miles above the point where that stream empties into the Arkansas River. The bottom lands through which Mill Bayou flows have an average width of about 2,000 feet and are generally lower in elevation than the adjacent countryside. There are approximately 20 dams in the area between Almyra and the point where Mill Bayou flows into Big Bayou Meto and the bottom lands are used primarily for duck hunting purposes and are unsuitable for general farming purposes.

Appellee is a Mississippi corporation licensed to do business in Arkansas and owns 600 acres in Arkansas County which it uses primarily for duck hunting purposes. Mill Bayou runs south through the 600-acre tract near its center. Appellant is an Arkansas corporation engaged in farming operations consisting of the growth of cattle, rice and oats. It owns 780 acres which it purchased in 1937. About one-half of said tract lies west of and adjacent to appellee’s land and the other one-half lies northwest of appellee’s lands. Mill Bayou traverses only a small portion of appellant’s lands on the northeast corner and before it enters lands belonging to others which lie between the lands of the parties. Appellant’s lands lie immediately below Bullock’s Levee which is on a county highway that crosses Mill Bayou on the extreme northeast corner of appellant’s land.

In. 1939 appellee constructed a dam, or levee, along and just above tbe south line of its lands. The dam' is about 2,000 feet long and begins at a point west of Mill Bayou and runs east across the main channel of the bayou and over the bottom lands east of the bayou. A drain pipe and floodgate were originally installed in the dam to control the water level but were abandoned in 1940 making the dam solid to the east end where the water flowed through a natural spillway between the end of the dam and higher ground further east. In the spring of 1953, a section of the east end of the dam 140 feet long-washed out. In August, 1953, appellee replaced the washed out section by extending- it in a northeasterly direction instead of due east as the original section ran. Appellant then filed the instant suit on November 28, 1953.

In an effort to sustain the allegations of its complaint, appellant introduced the testimony of W. J. and N. J. DeVore, manager and president, respectively, of appellant; also the testimony of Thomas J. Frickie, a consulting engineer, and H. L. Frank, a timber cruiser. Their testimony was generally to the effect that appellee’s dam caused water to back upon appellant’s bottom lands lying near Mill Bayou and a mile or more northwest of appellee’s dam, resulting in the destruction of merchantable timber growing on said lands; and that the spillway of appellee’s dam was inadequate to allow proper drainage of appellant’s lands particularly after replacement of the east end of the dam in 1953. Other witnesses, who were employed by or tenants of the appellant, testified they had seen water higher on the north side of the dam than on the south side at different times, and had also observed dead timber on appellant’s land as well as on other lands along the bayou.

W. J. DeVore testified that a considerable portion of appellant’s bottom lands had flooded from year to year for “quite a while,” and that the water was getting-higher each year. He thought appellee’s dam kept water on appellant’s land and destroyed its timber; also that the new extension on the east end of the dam was located on the site of the old spillway, which resulted in water being held higher and longer on appellant’s lands than formerly. He stated that he complained when the dam was first constructed but did nothing about it until appellee constructed the new extension without a proper spillway. He admitted the existence of a dam on appellant’s land which a former owner built for duck hunting purposes. Although he had wished “it wasn’t there,” he had done nothing to it except build a fence on it in one place. According to N. J. DeVore, his brother told him sometime after 1938 that too much timber was dying, and he took some water levels to determine the cause of the timber dying but “dropped the subject” at that time. He admitted that timber died on appellant’s hill lands as well as in the bottoms in 1954 and thought timber died “a little each year.” He also said that nobody cleared the lands in Mill Bayou Bottoms for farming purposes, and that said lands were used principally for duck hunting purposes.

Engineer Frickie made a survey in August, 1954 to determine elevations in the spillway area of appellee’s dam and at certain points where dead timber was found on appellant’s lands. He concluded that the spillway maintained by appellee afforded inadequate drainage to lands to the north, causing the timber to die. He started his survey from a government bench mark two miles northwest of the dam but took no elevations on the east side of the bayou. He thought the present spillway was higher than originally and found neither a depression nor a slough in the present spillway area. He introduced a plat upon which he noted a “timber damage line” established by his survey but did not survey the bayou which he thought ran straight as shown on the plat. Based on his assumption that the depression caused by the 1953 washout was a part of the old spillway, he thought that spillway afforded a 40% greater area for drainage and discharge purposes than the new spillway. He admitted the lands in question were normally flooded in the spring and winter months in the absence of a dam and had seen lands in the dam area flooded to an elevation of nearly 15 feet.

H. L. Frank cruised, the timber on appellant’s lands in November, 1953. On direct examination he testified that he found 68,000 feet of dead timber which he thought had died within three years and would have been worth $15.00 per thousand as green timber. "When questioned by the court, he stated that he could not say what percentage of the timber had died within the past three or four years.

In opposition to the foregoing evidence, appellee introduced the testimony of T. J. Strode, County Surveyor of Arkansas County, and engineer John P. Powers, who made an extensive survey of all the lands in question on both sides of the bayou as well as other lands below appellee’s dam and including lands in the dam area of Gillette Hunting Club which is located 3% miles south of appellee’s dam. They took elevations in Mill Bayou and at numerous places over all the lands including the dam and spillway area and bottom lands of the appellant. Detailed plats of the survey were introduced which showed that all the elevations on appellant’s lands where dead timber was found were considerably higher than the spillway at the oast end of appellee’s dam except in two sloughs and in one of these the dam on appellant’s land was holding water in the slough. They started their survey at two government bench marks near the spillway which Friekie did not find. Strode used “Mean Sea Level” while Friekie used “Gulf Sea Level” in establishing elevations, which may have accounted for the slight differences in elevation found by each in the spillway area. Strode found the spillway of the Gillette Hunting Club dam considerably higher than the spillway in appellee’s dam and saw water running upstream from the Gillette dam over appellee’s dam in August, 1954.

Appellee also introduced evidence of the different elevations of waters held against the floodgate on Big Bayou Meto about 18 miles below appellee’s dam over a period of several years as disclosed by records of the U. S. Engineers. According to Strode, these records and the elevations of the Gillette dam definitely show that waters were held on the Gillette and Butler Hunting Club lands and the lands of appellant by this floodgate for such .long periods as to kill the timber on the lands of all three. It was the considered opinion of both Strode and Powers that appellee’s dam did not back or hold water on appellant’s lands nor contribute to the destruction of timber on said lands. They also testified that appellee’s natural spillway was the type ordinarily used in the area with certain advantages over an artificial spillway and was entirely adequate. They also stoutly disputed the testimony of Frickie to the effect that there was no depression or slough in appellee’s spillway area and his assumption that the washed out section of the dam was a part of the old spillway. According to Strode, the replacement of the washed out portion in 1953 by extending it in a northeasterly direction increased the width of the spillway area and rendered it more efficient than as originally constructed in 1939.

The testimony of Strode and Powers was corroborated by that of several parties living in the vicinity who owned or farmed lands adjacent to the lands of appellant or lands lying between the lands of the parties. Their testimony was to the effect that water from appellee’s dam did not flood either their own lands or those of the appellant; that all the bottom lands were normally flooded every year from January until June; that timber had been dying in the area as long as they could remember; and that the small amount of green timber in the area is unmerchantable.

There is no dispute as to the applicable law. Whether the natural flow or reasonable use doctrine of the riparian theory be applied, it is well settled by our decisions that one riparian owner along a non-navigable stream has no right to obstruct or interfere with the natural course of said stream to the detriment or damage of other riparian owners. Turner v. Smith, 217 Ark. 441, 231 S. W. 2d 110; Thomas v. La Cotts, 222 Ark. 171, 257 S. W. 2d 936; Harris v. Brooks, 225 Ark. 436, 283 S. W. 2d 129. As previously indicated, the question whether the construction and maintenance of the dam by appellee flooded appellant’s lands and destroyed its timber is purely factual. While the testimony on this issue is conflicting, a careful consideration of the entire record convinces us that the surveys and observations by Strode and Powers for appellee were more comprehensive, detailed and perhaps more accurate than those presented by appellant. Their findings were corroborated by other farmers and landowners in the area similarly situated. The chancellor had the advantage over us of hearing and observing the witnesses, and we are unwilling to say his findings are against the preponderance of the evidence.

Affirmed.


author: George Rose Smith, J.

text:
    Ray v. Robben.
    5-818
    285 S. W. 2d 907
    Opinion delivered January 16, 1956.

      Lem C. Bryan; Hill, Fitshugh & Brizzolara, for appellant.

      Hardin, Barton, Hardin & Garner, for appellee,
   George Rose Smith, J.

This is a suit by the appellant for specific performance of a contract by which she was to sell a tourist court to the appellee for $17,500. Atothe close of the plaintiff’s proof the chancellor announced upon his own initiative that the complaint would be dismissed without the necessity of hearing the defendant’s testimony. In a memorandum opinion the chancellor gave several reasons, some of which are relied upon by the appellee, for holding that the plaintiff had failed to establish a prima facie ease for relief.

The tourist court is situated on Lot 26 and an L-shaped portion of the adjoining Lot 25, in a designated block in Fort Smith. When the contract of sale was executed Lot 26 was owned by the appellant, Pearl Ray, and the portion of Lot 25, which had belonged to Mrs. Ray’s husband at the time of his death, was owned by the Rays’ three children with Mrs. Ray having a dower interest. There had been no administration upon Mr. Ray’s estate.

On March 1, 1955, the contract was signed by the appellee and was signed for the appellant by her son Fred. Abstracts of title were delivered to the purchaser’s attorneys, who prepared opinions listing a number of defects and suggesting the desired curative steps, chief of which were the appointment of an administrator for Ray’s estate and the sale of the fractional lot by the administrator so that title might be vested in Mrs. Ray. These opinions were submitted to the seller’s attorney, who began the required curative work. While this work was in progress the appellee gave notice that he was withdrawing from the agreement. The appellant nevertheless had the curative work carried to completion, offered to perform the contract, and brought this suit when the appellee refused to carry out the agreement.

The appellee first contends that this description in the contract is too indefinite to support a decree for specific performance: “ A tourist court consisting of ten cabins, furnished, including all extra bedding, located on one full lot and a fractional part of adjoining lot. Said location being 3408 Midland Blvd., Fort Smith, Ark. ’ ’

While the question is not free from difficulty, we think the description legally sufficient. It is settled that a valid description of land must furnish a key by which the property can be located. Routen v. Walthour-Flake Co., Inc., 221 Ark. 354, 253 S. W. 2d 208. But the description is not objectionable merely because parol evidence must be resorted to in following the guide furnished by the instrument. Thus ‘ ‘ 15 acres known as- the Mart Emmons place” is a good description, though obviously oral proof is needed to identify the land. Davis v. Davis, 171 Ark. 168, 283 S. W. 360; case note, 3 Ark. L. Rev. 219.

Here the proof shows that 3408 Midland Boulevard is the correct address for the ten cabins comprising the tourist court. With the exception of the Supreme Court of Washington, Martin v. Seigel, 35 Wash. 2d 223, 212 P. 2d 107, 23 A. L. R. 2d 1, the American courts uniformly uphold a description by street number. We sustained such a description in Kempner v. Gans, 87 Ark. 221, 111 S. W. 1123, 112 S. W. 1087. In a case much like this one, Pence v. Archer, 191 Tenn. 385, 234 S. W. 2d 820, the property was described as “a house and lot at 403 West Walnut Street.” The tract actually consisted of four lots and a fraction of a fifth lot. Upon proof that the residence and surrounding yard had been used and considered as one lot the court upheld the description. In like manner the identity of a tourist court, containing ten cabins, located at 3408 Midland Boulevard, can be readily ascertained.

The chancellor stressed the fact that Fred Bay was without written authority to execute the agreement for his mother and the fact that Bay’s authority as an agent was proved only by his own testimony, which the court considered incompetent. Neither point is well taken. Although a contract for the sale of land must be in writing, an agent’s authority to execute the contract for his principal may be conferred orally. Vaught v. Paddock, 98 Ark. 10, 135 S. W. 331. And the agent’s testimony, as distinguished from his out-of-court declarations, is admissible to establish the agency. Thompson v. Hollis & Co., 194 Ark. 1, 104 S. W. 2d 1065.

It is insisted that the contract lacks mutuality of obligation for the reason that Mrs. Ray did not have title to the fractional part of Lot 25 when the agreement was signed. This argument was rejected in Elliott v. Hogue, 113 Ark. 599 (mem.), 168 S. W. 1097. Inasmuch as there are often defects in a vendor’s title it is a familiar rule that he is entitled to a reasonable time in which to perfect his title. Sturgis v. Meadors, 223 Ark. 359, 266 S. W. 2d 81. In the case at bar there is nothing to indicate that time was of the essence of the agreement or that the seller delayed unreasonably in meeting the title requirements imposed by the purchaser ’s attorneys.

The appellee contends that the appellant’s present title is not merchantable and enumerates a variety of flaws that are said to exist. In considering this contention it must be remembered at the outset that a vendee who resists a suit for specific performance has the burden of pleading and proving the specific defects upon which he relies; the plaintiff cannot be expected to prove the negative. Lone Rock Bank v. Pipkin, 169 Ark. 491, 276 S. W. 588. Here the appellee’s answer does not describe any given defect in the plaintiff’s title. The appellee’s present argument can be sustained only if the plaintiff’s own proof establishes with a fair degree of certainty a fatal defect in her title.

The principal defect now asserted by the appellee is the supposed existence of a five-foot easement across'the L-shaped tract that lies at the rear of Lot 25. Fred Ray testified that he understood that his father had given such an easement to the owner of the front portion of the lot, as a means of access to the alley. The agreement, if made, was apparently oral. Ray says that he explained the matter fully to the appellee, Avho made no objection. "Whether there is really a valid easement, and, if so, whether the appellee has waived his right to object, are questions that cannot be decided with certainty upon the plaintiff’s proof alone. It is clear that this issue has not been fully developed, and since the appellee has the burden of proof the duty of producing additional evidence rests upon him.

These same considerations apply to nearly all the other attacks made by the appellee upon the appellant’s title. Only one — an asserted irregularity in the devolution of an interest formerly owned by a bridge improvement district — finds much affirmative support in the proof, which includes the abstracts of title. This matter, however, was mentioned without objection in the purchaser’s title opinion and was not put in issue by the answer. There was no reason for the plaintiff to anticipate an objection that the purchaser had twice failed to raise. It would plainly be unfair to allow this rather weak battery to be' unmasked on appeal.

Reversed and remanded for further proceedings.

McFaddin and Ward, JJ., dissent.


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

text:
    Gardner v. Gardner.
    5-828
    286 S. W. 2d 23
    Opinion delivered January 16, 1956.
    [Rehearing denied February 13, 1956.]

      Cooper Jacoway, for appellant.

      Owens, McHaney, Lofton <fc McHaney, for appellee.
   Paul Ward, Associate Justice.

This appeal challenges a decree of the chancery court granting a divorce to Melvyn J. Gardner. Appellant, Bernice A. Gardner, urges two grounds for a reversal: (a) Appellee had no bona fide residence in Arkansas, and (b) The evidence does not show three years separation as required by statute.

Factual Background. The parties were married in Boston in 1943. Sometime later they moved to Miami Beach, Florida where they and their four children established their residences and where Dr. Gardner engaged in the private practice of psychiatry. During the latter part of 1951, as a result of estranged marital relations, Dr. Gardner moved from their home to a hotel, and Mrs. Gardner secured a decree providing support for herself and the children. In June, 1953, Dr. Gardner gave up his private practice at Miami Beach and accepted employment with the Veterans Administration at Jefferson Barracks, Missouri. He remained there until about the first of November 1953 when he asked for and was given an assignment as psychiatrist at Fort Boots Veterans Hospital in North Little Bock, Arkansas. He arrived in North Little Bock on the 7th or 8th of November and began service at the hospital on the 9th. He began this action for divorce November 9, 1954.

(a) It is appellant’s contention that the chancellor erred in holding''appellee was a bona fide resident of this state. It is specifically urged, first, that appellee did not himself say he intended to make Arkansas his permanent home and, second, that there is no corroborating evidence or circumstance to show animus manendi.

While the evidence supporting the chancellor’s finding on the question of residence could be more satisfactory yet we are unwilling to say such finding is against the weight of the testimony. We think appellee did, in effect, say he intended to make Arkansas his permanent residence.

“Q. Do you have any present intention of changing your residence, Dr. Gardner?

A. I do not.

Q. Have you made any plans that are calculated to keep you here in this state for an extended period of time? ■ ■ ' •

A. Yes, we have started the plan for a new group of research in projects which I estimate will take several years to complete.

Q. Do you intend to take an active part in those projects?

A. I do.”

We recognize that mere declarations of intent by Dr. Gardner coupled with the fact that he had lived in this state one year when his complaint was filed do not meet the test of tona fide residence announced in Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585 and subsequent decisions of this court. There is however present in this case an independent and extrinsic circumstance which, we think, is sufficient to show Dr. Gardner’s intention to make this state his domicile. Dr. Henry M. Hawkins, who is Chief of Continued Treatment Service at Fort Roots Veterans Hospital, testified regarding appellee:

“Q. How long have you known him?

A. Since November 9, 1953.

Q. Where was he living when you met him?

A. He was living on the grounds and still does.

Q. Did he move to the North Little Rock Veterans Hospital on or about November 9, 1953?

A. November 9, to the best of my knowledge.

Q. Has he lived there continuously since that time f

A. Continuously.

Q. Do you know whether he has made any plans to continue to live in North Little Rock?

A. We have worked out projects that will take us several years to complete.

Q. Has he indicated his desire to participate in those projects?

A. Most certainly; he and I are doing them together.

Q. Did you say they will require an extended period of time to complete?

A. Yes, sir.”

Dr. Hawkins who has been at his present location several years, admits that both he and appellee can be transferred by the government any time, yet, as stated by him, this is often the case where one is employed in private business. Every one is entitled to maintain a domicile somewhere regardless of the nature of his employment, and it is significant here, we think, that Dr. Gardner has abandoned his residence in Florida and has acquired one at no other place if not in Arkansas.

(b) We also think the evidence supports the cham cellor’s finding that appellant and appellee had lived apart without cohabitation for a period of three years. It was admitted by appellant and found by the Florida Court that they did not cohabit from August 28, 1951 to January 5, 1953, and appellant makes no contention that they cohabited thereafter. Appellee’s father who lives in Philadelphia stated he saw his son in February 1952 and December 1953 and had talked with him over the phone at other times, and that he was sure the parties had lived separate and apart since the latter part of 1951. He also stated that he was in Miami Beach, Florida in January and February of 1952, 1953, and 1954, and had seen appellant on each occasion except the last one. Of course there is no positive corroboration which precludes the possibility that appellant and appellee may have cohabited on some one specific occasion during the three year period, but such corroboration is not required. See Wicker v. Wicker, 223 Ark. 879, 269 S. W. 2d 311. In affirming the chancellor we recognize, and do not intend to violate, the rules against hearsay evidence, or the rule against collusive testimony in divorce cases. We do point out, in respect to testimony corroborating three years separation, that, under the circumstances disclosed here, the corroboration may be slight. There is no suggestion in this case that there exists any collusion between the parties. In dealing with a similar situation in Kirk v. Kirk, 218 Ark. 880, 239 S. W. 2d 6, we stated: “It has been said that since the object of the requirement as to corroboration is to prevent collusion, where the whole case precludes any possibility of collusion, the corroboration only needs to be very slight.”

We have decided that appellant’s request for an attorney fee covering this appeal should be allowed in the amount of $150.00 and it is so ordered.

Affirmed.

Justice McFaddin dissents.

Justice Millwee not participating.

Ed. F. McFaddin, Associate Justice

(dissenting). I am firmly of the view that the appellee did not establish a bona fide residence in Arkansas; and, therefore, I dissent from the majority holding. The appellee is a doctor in the Veterans Administration and is subject to being moved from place to place by the Veterans Administration just exactly like an officer in the Army is subject to being moved from place to place by the military authorities. All of this was developed in the evidence before us. In several cases we have held that a person in the armed services does not acquire a domicile in Arkansas by mere residence. See Mohr v. Mohr, 206 Ark. 1094, 178 S. W. 2d 502; and Kennedy v. Kennedy, 205 Ark. 650, 169 S. W. 2d 876.

The most that Dr. Gardner has acquired in Arkansas is mere residence. In June, 1953 he was domiciled in Florida, in which State Mrs. Gardner' secured a decree for support money for herself and children. Then Dr. Gardner entered the service of the Veterans Administration. He was at Jefferson Barracks, Missouri until the first of November, 1953, when he was transferred to Arkansas. He frankly admitted that the Veterans Administration could reassign him to some other position in some other State at any time. Where then is the animus manendi¶ To establish a domicile in this State he must have the intention of remaining in Arkansas, rather than yielding to the Veterans Administration if it should seek to transfer him. He has never yet testified —nor has anyone testified for him — that he would stay in Arkansas rather than be reassigned by the Veterans Administration to some other State. It was shown that he was engaged in a project at Fort Hoots that he liked very much and that it would take some time to complete the project; but that evidence is far short of showing that Dr. Gardner has the firm intention of remaining in Arkansas, even against an order of re-assignment by the Veterans Administration. Such, I understand, is the test for domicile.

I think the majority, in affirming this case, is weakening the effect of our holding in Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585, and other cases on domicile. Therefore I respectfully dissent.


author: Sam Robinson, Associate Justice. Sam Robinson, Associate Justice.

text:
    Pinkert v. Williamson.
    5-833
    287 S. W. 2d 8
    Opinion delivered January 16, 1956.
    [Opinion on rehearing delivered March 5, 1956.]

      Frank H. Cox, for appellant.

      Alonzo D. Camp, for appellee.
   Sam Robinson, Associate Justice.

This action was filed by appellee, George M. Williamson, December 15, 1954 to clear the title to certain property; there was a decree in his favor; the issue is whether appellee has acquired title by adverse possession; the facts are stipulated. Appellee’s father purchased the property, the South Half of Lot 3 and the North 25 Feet of Lot 4, Block 9, Capitol View Addition to the City of Little Rock, in 1918. The property was forfeited to the State by the non-payment of taxes for the year 1932. On July 31, 1937, appellee’s father and mother purchased the property from the State and received a deed to it. Appellee’s father paid the general taxes on the property until his death in July 1946 and appellee’s mother continued to pay the taxes until her death in 1954. Upon the death of appellee’s mother in 1954, he became the absolute owner of whatever title his father and mother had as tenants by the entirety. He and his predecessors in title have paid the general taxes on the property continuously since July 1937 to the time this suit was filed. It is further stipulated that since July 1937 the property has been unenclosed and unimproved within the meaning of Ark. Stats. Sec. 37-103.

The property is within the boundaries of Sewer Improvement District No. 94 of the City of Little Rock and the assessments due for the years 1931, 1932, 1933 and 1934 were not paid. On July 18, 1935, the District filed suit to foreclose its lien; on November 23, 1937, a decree was entered in favor of the District against appellee’s father, as owner of the property, for delinquent assessments for 1931,1932,1933 and 1934. The judgment was not paid and on the 16th day of March, 1938, the duly appointed commissioner sold the property to the District; the sale was approved on the 12th of April, 1938. On the 12th of October, 1943, after the expiration of five years, H. S. Nixon, Commissioner in Chancery, executed a deed to W. I. Stout, Trustee; and, on the 26th day of May, 1944, Stout executed a quitclaim deed to the appellant herein, Ed Pinkert. On January 16, 1950, Pinkert filed an action in the Pulaski Chancery Court seeking to quiet his title. A decree was taken quieting the title as against Lee Williamson, a stranger to the title; but that case in no way affected appellee’s title as neither he nor his predecessors in title were parties to that suit.

It will be recalled that appellee’s predecessors in title purchased this property from the State in 1937; and by that deed they acquired color of title. The Improvement District had filed suit in 1935 to foreclose its lien for unpaid assessments for previous years and the decree foreclosing such lien was taken in 1937. Assuming that the Williamsons lost title to the property by reason of the foreclosure decree in favor of the Improvement District, the question that follows is: Was their color of title, which they had by reason of the 1937 deed from the State, destroyed? Although the decree foreclosing in favor of the Improvement District for the unpaid assessments may have destroyed the title which the Williamsons obtained from the State, it did not destroy their color of title. There was no court order touching upon the deed the Williamsons had obtained from the State in 1937; that deed was not in issue in the foreclosure proceedings; no order was made by the Court with reference to it at all. ,

In Moore v. Morris, 118 Ark. 516, 177 S. W. 6, certain land had been patented by the State of Arkansas to P. K. Lester and T. J. Melton in 1856. Later, the property was acquired by one DeMoss by adverse possession. Still later, the heirs of Lester again came into possession of the land. The question was whether the original deed to their ancestor was sufficient to constitute color of title and thus support their claim of adverse possession. The Court said:

“It may be conceded (without so deciding) that appellees (those holding under DeMoss) have made sufficient showing to establish title in their ancester by adverse possession under color of title; nevertheless, the testimony shows very clearly that appellant (who holds under Lester) is entitled to have a decree quieting his title and declaring his right of possession. * * * Even if DeMoss or his heirs acquired title by adverse possession, that title was reacquired by the original owners, the Lester heirs, by payment of taxes under color of title under the Act of March 18, 1899. The undisputed evidence is that Lester and his heirs paid taxes on the land continuously up to the time it was sold to appellant. Their paper title, which constituted absolute title up to the time the ownership was wrested from them, if at all, by the adverse occupancy of DeMoss, continued thereafter at least as color of title, and the payment of taxes while the land was in a wild state and unoccupied restored the title to them by adverse possession according to the terms of the statute.”

In Brandon v. Parker, 124 Ark. 379, 187 S. W. 312, the Court said:

“We think the controlling point here, as it was in the case of Moore v. Morris, supra, is that the color of title as such was not cancelled. The owner in the case cited lost hiS title, but his deed, not having been cancelled by any order or judgment of court, remained as color of title and entitled him to the benefit of the provisions of Section 5057 of Kirby’s Digest [Ark. Stats. Sec. 37-102], upon complying with its terms.”

“In the case of Moore v. Morris, the title to the land In Inman v. Quirey, 128 Ark. 605, 194 S. W. 858, it is said: was wrested from the holders of the record title by adverse possession for seven years. The court held that notwithstanding this fact, the record title continued in existence and remained as color of title so that the holder of the record title could reacquire title to the lands by payment of taxes for seven years under section 5057 of Kirby’s Digest, the lands being wild and unoccupied lands. This rule was extended in Brandon v. Parker. There a person held lands under a donation deed and another person entered in possession of them within two years and acquired title by adverse possession. It was held that the donation deed of the first owner, although the lands were forfeited to the State under a void tax sale, remained as color of title so that the holder of it could acquire title by adverse possession for two years under Section 5061 of Kirby’s Digest. The effect of the holding in those two cases was that although the first owner lost his title by the fact that another had acquired title by adverse possession, his deed or paper title not having been canceled by any order or judgment of the court, remained as color of title.”

The Williamsons’ deed from the State has not been cancelled by any order or judgment of the Court. It therefore constitutes color of title and although the Improvement District may have acquired the legal title to the property by the foreclosure in 1937, the Williamsons have paid the taxes on unimproved and unenclosed land under color of title since 1943 when the Commissioner in Chancery deeded the property to W. I. Stout, Pinkerf’s predecessor in title. Williamson has therefore acquired title by adverse possession in accordance with Ark. Stat. § 37-102.

The decree is affirmed.

Justices Millwee and George Rose Smiti-i dissent.

SUPPLEMENTAL OPINION ON REHEARING

Sam Robinson, Associate Justice.

On rehearing, appellant insists that when appellee’s father obtained his deed from the State in 1937 he was, in effect, redeeming the land from a forfeiture for the non-payment of taxes; that a purchase of tax-forfeited land from the State by one who owned the land at the time of its forfeiture amounts to a redemption. This would be true in some circumstances, such as where there is a remainderman, but that situation does not exist here. Moreover, the father of the appellee was not the only purchaser from the State,- appellee’s mother was also a grantee, the result being an estate by the entirety. Prior to the purchase from the State, the mother had owned no interest in the land, but she acquired an interest in the 1937 deed from the State. Through the death of her husband, her estate by the entirety ripened into sole ownership, subject, of course, to any intervening divestiture.

In a similar situation, in the case of Shepherd v. Cox, 191 Miss. 715, 4 So. 2d 217, 136 A. L. R. 1346, the Supreme Court of Mississippi held that color of title was not destroyed. In Cooper v. Cook, 220 Ark. 344, 247 S. W. 2d 957, we approved the rule that “one cannot successfully claim adverse possession under color of title where he has deprived himself of the color of title relied upon by conveyance to another, or has been deprived of the color of title relied upon by a judgment or decree.” 2 C. J. S. § 69. Mrs. Williamson, from whom the appellee inherited the property, was not a party to the Improvement District’s foreclosure suit, and her deed from the State was not dealt with in that case. But, nevertheless, she may have been deprived of her title by the foreclosure decree. Still, the question remains: Was she deprived of color of title? In three cases cited in the original opinion, this court held that one does not lose color of title by reason of actually losing title to the property by the adverse possession of another. In the situation existing here, there is no more reason to say that color of title was lost than it was in those cases.

George Rose Smith, J., dissenting. The three cases cited by the majority hold that the original owner’s record title continues to be color of title after a stranger has acquired ownership by adverse possession. Those cases are not directly in point, since it is not contended that the appellant’s claim of ownership rests upon adverse possession. Pinkert’s title rests instead upon an improvement district sale, which concededly destroyed the appellee’s actual title to the land. Such a sale also destroys the owner’s color of title, for, as we held in Cooper v. Cook, 220 Ark. 344, 247 S. W. 2d 957: “One cannot successfully claim possession under color of title where he has been deprived of the color of title relied upon by a judgment, decree or involuntary sale of the land under authority of law.” I do not see how the holding in the Cooper case, which the majority have not attempted to distinguish, can be reconciled with today’s decision.

Millwee, J., joins in this dissent.


author: Lee Seamster, Chief Justice.

text:
    Pfeifers of Arkansas v. Rorex.
    5-813
    286 S. W. 2d 1
    Opinion delivered January 23, 1956.

      House, Moses & Holmes, for appellant.

      Wood $ Smith, for appellee.
   Lee Seamster, Chief Justice.

The appellee, Mrs. Albert Rorex, brought this action against appellant, Pfeifers of Arkansas, to recover damages for physical injuries which she alleged she sustained as the result of a fall she suffered while a customer in appellant’s department store in Little Rock, Arkansas, on October 25, 1954.

The negligence alleged in this case was the failure on the part of the appellant to exercise ordinary care to maintain its premises in a reasonably safe condition in that appellant had knowledge of but carelessly and negligently failed to remove a slick substance from the floor of its store or warn its visitors and customers of the presence thereof. The appellee further contends that while in the exercise of due care and regard for her own safety, she slipped on this slick substance and fell to the floor suffering serious physical injury.

The appellant’s answer was a general denial of the allegations of the complaint and a plea of contributory negligence on the part of the appellee. This canse was tried in the Pnlaski Circuit Court, Second Division, on May 16, 1955, resulting in a verdict and judgment in favor of appellee, in the sum of $5,000.

For a reversal of the trial court’s judgment, appellant lists the following three points: (1) the trial court erred in refusing to direct a verdict for the appellant. The finding of the jury that defendant was negligent was contrary to the evidence, and there was no negligence as a matter of law; (2) the trial court erred in admitting the testimony of witness C. V. Lugar concerning certain statements allegedly made by an employee of the appellant; and, (3) the damages awarded by the jury were grossly excessive and there was no substantial evidence to support the amount of the verdict.

The testimony of appellee disclosed that on the occasion of the injury she entered appellant’s store for the purpose of purchasing merchandise. She purchased several articles and was walking down the aisle of appellant’s store when her right foot came in contact with a slippery substance on the floor, she slipped and turned completely around and fell to the floor. The appellee contended that she remained on the floor for about ten or twelve minutes since the employees of appellant would not allow her to move from her position after the fall in fear that she might have been seriously injured. Appellee further testified that this fall caused severe pain in the region of her left hip whereby appellant sent her in an ambulance to the Arkansas Baptist Hospital and she remained in the hospital for a period of 41 days after the fall. A period of three weeks elapsed, after she was admitted to the hospital, before she was able to walk and then only by holding to the back of a wheelchair.

The appellee further testified that after her release from the hospital it became necessary that she remain in Little Rock for a period of ten days in order to secure further treatments. On her return home, she could only move about her home by holding to furniture and other objects. The appellee insists that the affected area was painful for a period of approximately seven months after the injury.

Dr. James W. Shuffield, a witness on behalf of appellant, testified that he examined the appellee on the date of the alleged injury and found her suffering from a bruised hip, strained muscles inside the right thigh and upper joints and muscular strain in the lower part of the back, with sensitivity of the bone utilized in sitting. Dr. Shuffield further testified that in his opinion, based solely upon objective findings, the appellee did not suffer any permanent disability by reason of the accident and could have been discharged from the hospital on or about November 8, 1954. The testimony revealed that subjectively the appellee’s progress of recovery after the accident was very slow and the objective findings made by the doctor are those findings that can be revealed by X-ray or other visible means and are not by any means tantamount to a finding that appellee had completely recovered from the injury and had been restored to good health.

0. Y. Lugar, a witness on behalf of appellee, testified that he was a customer in appellant’s store on the day of the accident and saw the appellee slip and fall on some form of greasy substance on appellant’s floor. Mr. Lugar further testified that immediately after this accident, he overheard an employee of appellant make a statement to the effect that the substance should have been removed from the floor before somebody slipped and fell. This statement was made approximately thirty seconds after the accident. At the time of the accident, Mr. Lugar was standing about ten feet in front of the spot or substance on which the appellee slipped and fell. Lugar further testified that he saw the woman who made this statement and presumed that she was an employee of appellant since she initially came out from behind a counter near the aisle and later, after issuing this statement, she went back in behind the counter.

Several of the witnesses for the appellant testified that shortly before the accident in which the appellee slipped and fell to the floor, another customer had dropped a package on the floor of the aisle. When the package made contact with the floor its contents broke and an unidentified liquid substance seeped through the brown paper sack onto the appellant’s floor. Most of these witnesses testified that only a short interval elapsed between the time the liquid seeped onto the floor and the time the appellee slipped on this substance and fell to the floor. No explanation was given as to what disposition was made of the brown paper sack nor as to identification of the woman who allegedly dropped the sack.

Mrs. Bernice Stein, one of appellant’s employees, testified that she was standing behind a counter at a distance of about three or four feet from the spot where the unidentified woman dropped the package. Her attention was called to the incident when she heard a crash and saw this woman picking up a sack, with fluid seeping through the sack onto the floor. Mrs. Stein testified that she immediately proceeded to notify the department manager of the incident so that a porter could be procured to clean up the substance that was spilled on the floor.

Initially, the appellant contends that the court erred in refusing to direct a verdict for the defendant; the finding of the jury that defendant was negligent was contrary to the evidence and there was no negligence as a matter of law. None of the trial courts instructions are attacked by the appellant. The appellant insists that appellee offered no evidence whatsoever to prove her allegations of negligence on the part of the appellant nor did appellee offer evidence tending to show how the liquid had gotten on the floor or how long it had been there. The evidence reveals that appellee was a customer and was injured by a fall on some unidentified slippery substance while shopping in appellant’s store. It was definitely established that there was a slick substance on the appellant’s floor which precipitated the fall, and its presence was known by appellant’s employees before appellee slipped on this substance and fell to the floor. The length of time the substance had been on the floor, how it got there, the sufficiency of care exercised by appellant’s employees after admitted notice, all were subject of conflicting versions and were properly submitted to the jury. It was in the province of the jury to decide whether the appellee exercised such care for her own safety as a person of ordinary prudence would have exercised under like circumstances. That is what the law required of appellee, and all that it required; and whether or not she did that was a question of fact to be determined by the jury from all the evidence. Menser v. The Goodyear Tire and Rubber Co., 220 Ark. 315, 247 S. W. 2d 1019.

The appellant next contends that the trial court erred in admitting the testimony of witness C. V. Lugar, concerning certain statements allegedly made by an employee of the appellant. Lugar testified that immediately after Mrs. Borex fell, a store employee stated, in substance, that the floor should have been cleaned up before somebody slipped and fell. We think that this statement was a spontaneous declaration uttered at the time of the occurrence of the accident and was clearly admissible as a part of the res gestae. It is not easy, always, to determine when a declaration is a part of the res gestae. It is dependent upon the particular circumstances under which the declaration is made. The circumstances of this case, both in point of time and in causal relation to the main transaction, bring it within the doctrine which admits the declaration in evidence as a part of the transaction itself. It is certain that the declaration was made immediately in point of time after the happenings of the accident; and that the declaration itself was the spontaneous emanation born of the excitement of the moment. See Beal-Doyle Dry Goods Co. v. Carr, 85 Ark. 479, 108 S. W. 2d 1053, and cases cited therein.

Finally, the appellant contends that the damages awarded by the jury to appellee were grossly excessive and there was no substantial evidence to support the amount of the verdict. The jury returned a verdict for $5,000, but we do not think it can be said to be excessive. The jury had before it evidence of a substantial nature that appellee’s health, which had been good before the injury, changed to a sudden and prolonged period of disability. A transition from good health to a condition of disability is itself of probative value.

We have often said the amount of damage to be awarded for personal injuries rests largely in the discretion of the trial jury. Many aspects of personal injury are difficult to compensate in monetary damage. It is only when the amount awarded is, under the testimony, so excessive as to raise a presumption that the jury fixed it as a result of prejudice, rather than from a deliberate consideration of the evidence, that we may require reduction thereof. In Missouri Pac. R. Co. v. Hendrix, 169 Ark. 825, 277 S. W. 337, this court said: “The element of pain and suffering is one which must be left largely to the sound judgment of a trial jury and the conclusion reached by the jury as to the proper amount should not be disturbed unless the award is clearly excessive.” Also see Meeks et al. v. Zimmerman et ux, 223 Ark. 503, 266 S. W. 2d 827; Coca-Cola Bottling Co. of Arkansas v. Adcox, 189 Ark. 610, 74 S. W. 2d 771, Norris v. Johnson, 214 Ark. 947, 218 S. W. 2d 720.

We cannot say that the amount of the verdict in this case is out of proportion to the injury suffered by appellee, Mrs. Albert Rorex, as to authorize us to interfere with the verdict on that ground.

The judgment of the trial court is affirmed.


author: J. Seaborn Holt, Associate Justice.

text:
    Whiteley v. Pickens.
    5-835
    286 S. W. 2d 4
    Opinion delivered January 23, 1956.

      Rex W. Perkins and David J. Burleson, for appellant.

      James R. Hole, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee obtained a judgment against appellant in tbe Municipal Court of the City of Fayetteville on April 12, 1955. On this same date appellant filed affidavit for an appeal, and later filed an appeal bond. On May 14, 1955, more than 30 days after entry of the judgment in the Municipal Court, appellant filed the transcript of the proceedings in the Washington Circuit Court. On May 16, 1955, appellee filed motion to dismiss appellant’s appeal on the ground that it was not filed within the 30 day period which the law required. This motion was heard by the trial court on the proceedings (no testimony was taken) and the court sustained appellee’s motion and dismissed the appeal. This appeal followed.

Appellant says: ‘ ‘ This appeal rests solely upon the interpretation of Act 203 of 1953, and the application of that Act to the facts of this case.” Act 203 of 1953 provides: “Section 1. Section 1 of Act 323 of 1939, being Section 26-1307 of the Statutes of the State of Arkansas, be and the same is hereby amended to read as follows: ‘If a party appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment the clerk of the court or the justice of the peace of the court from which the appeal is taken must file the transcript of the judgment in the office of the Circuit Court Clerk within thirty (30) days after the rendition of the judgment.’

“Section 2. All laws and parts of law in conflict herewith are hereby repealed,” etc.

Section 1 of Act 323 of 1939 [Now § 26-1307 Ark. Stats. 1947], which the above act amended, provided: “A party who appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment must file the transcript of the judgment in the office of the circuit court clerk within 30 daj^s after the rendition of the judgment. If the transcript of the judgment is not filed within 30 days after the rendition of the judgment, execution can be issued against the signers of the appeal bond.” In construing this Section 1 of Act 323 of 1939 we said in Lytle v. Hill, 205 Ark. 789, 170 S. W. 2d 684, “This section gives finality to the judgments of inferior courts where the transcript of the judgment is not filed in the office of the clerk of the circuit court within thirty days after the rendition of the judgment . . . This act is not only mandatory, but is jurisdictional. The transcript must be filed with the clerk of the circuit court within 30 days to confer jurisdiction upon the circuit court. It was so expressly held in the case of Nowlin v. Merchants National Bank, 192 Ark. 529, 92 S. W. 2d 390, and the holding in the case of Bridgman v. Johnson, 200 Ark. 990, 142 S. W. 2d 217, is to the same effect.”

As we construe Act 203 of 1953, it just simply amended Section 1 of Act 323 of 1939 [§ 26-1307 Ark. Stats. 1947] so as to place the responsibility of filing the transcript, within the 30 day period, upon the clerk of the Municipal Court rather than upon “the party who appeals” but left the burden on appellant to see that the transcript was so filed within that period. The Act also omits and repeals that provision, or the last sentence, in Section 1 of Act 323 which says: “If the transcript of the judgment is not filed within 30 days after the rendition of the judgment, execution can be issued against the signers of the appeal bond. ’ ’ This Act 203, however, leaves in full force and effect, and does not repeal, the second subdivision of § 26-1302 Ark. Stats. 1947, which provides: ‘ ‘ The appeal must be taken within thirty (30) days after the judgment was rendered, and not thereafter.”

We hold that the burden was on appellant to see that the transcript was lodged with the Circuit Court within the 30 day period and that Act 203 of 1953, which was an amendment to Act 323 of 1939, does not change the law in this respect. Affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Mo. Pac. R. R. Co. v. Vaughan, Admr.
    5-755
    286 S. W. 2d 6
    Opinion delivered January 23, 1956.

      Pat Mehaffy, Herschel II. Friday, Jr., for appellant.

      J. E. Lightle, Jr., for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellee, as administrator of the estate of J. C. Caruth, claimed that his intestate was negligently killed by a train of appellant. From a verdict and judgment for appellee, there is this appeal.

I. Sufficiency Of The Evidence. Appellant most vigorously insists that there was no substantial evidence to sustain the verdict; and this point requires a review of the testimony. On the afternoon of April 19, 1953 the deceased, J. C. Caruth, was sitting on the edge of a cross tie on the main line track of the Missouri Pacific Eailroad at a place north of Bald Knob in White County. He was struck and killed by a southbound train. The contention of the appellee was that if the trainmen had kept a lookout, as required by law (§ 73-1002 Ark. Stats.), they could have discovered Caruth’s peril in time to have stopped the train without striking him.

The appellant’s contention was that the trainmen did keep a proper and legal lookout, but that it was too late to stop the train when Carnth’s peril was discovered and that it was discovered as soon as possible. A considerable portion of the testimony related to: (a) the straightness and levelness of the track for a considerable distance north from Carnth’s position of peril; (b) the distance from Caruth at which the engineer and fireman could have discovered him on the track; and (c) the distance required to have stopped the train after Caruth’s position of peril could have been discovered. The appellant introduced evidence that it was impossible for the train operators to have discovered Caruth at a distance greater than 1,320 feet; that it required 2,640 feet to stop the train; and that the train did in fact stop in said last mentioned distance.

But in testing on appeal the sufficiency of the evidence to take a case to the Jury, or to support the verdict rendered, it is our duty to examine the evidence in the light most favorable to the verdict; and when so viewing the evidence in the case at bar, we find that the witnesses for appellee made a case for the Jury. Henry Varnell, City Marshal of Bald Knob, testified that by actual test he was able to state that at a distance of 6-10ths of a mile (i. e. 3,168 feet) to the north he could see a man seated on the track at the place where Caruth was seated ; that standing in the middle of the railroad track and looking south he could, with his naked eye, see a man seated on a cross tie (as Caruth was) a distance of 3,100 feet down the track; and that the engineer in the locomotive would be elevated a few feet higher than a man merely standing. Other witnesses testified to visibility of 6-10ths of a mile (i. e. 3,168 feet); and it was shown that at the time Caruth was killed it was a sunny day and there was nothing to obstruct the vision of the train operators for 6-10ths of a mile from the place where Caruth was seated.

The witness, Fletcher Caruth, testified: that he had worked for both the Eock Island and the Missouri Pacific Eailroads as a porter and as a brakeman; that he had worked on passenger as well as freight trains, and on diesel as well as steam trains; that he knew the distance required to stop a diesel train; that he had worked as porter on the Missouri Pacific train from Poplar Bluff to Texarkana and knew the particular portion of the Missouri Pacific track where J. C. Caruth was struck by the train. After having been thus qualified the Court permitted the witness to testify that a diesel train with ten passenger and mail cars (as was the train that struck Caruth) proceeding south toward Bald Knob at 60 miles per hour on the track in question could stop within 1,200 to 1,500 feet from the point at which the train was when the brakes were applied. Fletcher Caruth also testified that at 75 miles per hour it would require something like 14 of a mile (or 1,320 feet) to stop the train after the brakes were set, if the brakes were in good condition; and on cross-examination the witness said he did not think it would require as much as 2,800 feet distance to stop the train after the brakes were set.

It is argued that Fletcher Caruth did not know what he was talking about; but his credibility was for the jury. His testimony, if believed, was sufficient, along with all the other evidence, to take the case to the Jury on the questions of (a) whether a proper lookout was kept; (b) whether the engineer and fireman exercised due care; and (c) whether the brakes were in proper condition. We do not detail all the evidence because the foregoing covers the challenged issue. We conclude that the testimony was sufficient to take the ease to the Jury on the point here concerned.

I. Erroneous Instruction. At the request of the plaintiff, and over defendant’s general and special exceptions, the Court gave the following instruction to the Jury:

“You are instructed that if you find from a preponderance of the evidence in this case that the deceased, Joseph C. Caruth, was injured and killed by the operation of one of the trains of the defendant company, as alleged in the complaint, then you are told and instructed by the Court that the law presumes negligence on the part of the defendant company, and it will be your duty and you are instructed to find for the plaintiff, unless the defendant has overcome that presumption by a preponderance of the evidence in this case.”

The appellee seeks to defend the above instruction by citing such cases as St. L. S. W. Ry. Co. v. Vaughan, 180 Ark. 559, 21 S. W. 2d 971; Mo. Pac. R. Co. v. Overton, 194 Ark. 754, 109 S. W. 2d 435; and Mo. Pac. R. Co. v. Thompson, 195 Ark. 665, 113 S. W. 2d 720. It is true that in some of these cases an instruction like the one here involved was sustained; but our later cases (necessitated by the decision of the U. S. Supreme Court in Western & Atlantic R. v. Henderson, 279 U. S. 639, 73 L. Ed. 884, 49 S. Ct. 445) have held fatally defective an instruction like the one here involved. Some of our later cases holding the instruction fatally defective are: Mo. Pac. R. Co. v. Beard, 198 Ark. 346, 128 S. W. 2d 697; Mo. Pac. R. Co. v. Ross, 199 Ark. 182, 133 S. W. 2d 29; St. L. S. F. Ry. v. Mangum, 199 Ark. 767, 136 S. W. 2d 158; and St. L. S. F. Ry. v. Hovley (opinion on re-hearing), 199 Ark. 853, 137 S. W. 2d 231.

In Mo. Pac. R. Co. v. Beard (supra) this Court, speaking through Chief Justice Griffin Smith, said that the questioned instruction (there as here) made the presumption continuing evidence like the Georgia cases, rather than “. . . a mere temporary inference of fact that vanished upon the introduction of opposing evideuce,” like the Mississippi cases; and Chief Justice Griffin Smith said:

“The instruction in the case at bar told the Jury, without qualification or reservation, to find for the plaintiff unless the defendants had overcome the legal presumption of negligence by a preponderance of the evidence. ’ ’

The instruction in the case at bar uses the same fatal language as that contained in Mo. Pac. v. Beard (supra). Our cases reported after the Beard case, and cited above, have all held fatally defective an instruction like the one here.

Other questions raised need not be discussed because they may not occur on retrial. The judgment is reversed because of the instruction heretofore quoted.

Reversed and remanded.

Mr. Justice Millwee dissents as to reversal.

         Some of our cases on discovered peril as applied to the Lookout Statute are: Mo. Pac. R. Co. v. Coca-Cola Bottling Co., 154 Ark. 413, 242 S. W. 813; Mo. Pac. R. Co. v. Manion, 196 Ark. 981, 120 S. W. 2d 715; Mo. Pac. R. Co. v. Taylor, 200 Ark. 1, 137 S. W. 2d 747; and St. L. S. F. Ry. v. Beasley, 205 Ark. 688, 170 S. W. 2d 667.

       See Ark. P. & L. v. Connelly, 185 Ark. 693, 49 S. W. 2d 387; and Albert v. Morris, 208 Ark. 808, 187 S. W. 2d 909, and cases there cited.

       It is interesting to note that this Ross case was reversed because of the giving of an instruction like the one here involved, and that on second trial in the Circuit Court the defective instruction was omitted and the judgment for the plaintiff was affirmed by this Court, as reported in 150 S. W. 2d 211, as noted in 202 Ark. 1197.


text:
    Mark v. Maberry.
    5-820
    286 S. W. 2d 13
    Opinion delivered January 23, 1956.

      J. B. Milliam, for appellant.

      Pestus 0. Butt, for appellee.
   Minor W. Millwee, Associate Justice.

This is the third time we have been presented with the issue of appellee’s personal liability to appellant in connection with the execution and foreclosure of separate mortgages given each by Springs Investment Company, a corporation. In the original suit, appellant, Anson Mark, Jr., sought to foreclose a second mortgage given him by the corporation. Appellee, Cecil E. Maberry, as first mortgagee, intervened in the suit and a decree was entered foreclosing his mortgage. The decree was adverse to appellant’s numerous allegations as to the illegality of Springs Investment Company and the personal liability of appellee, and other incorporators, to appellant for the corporation’s indebtedness to him under the second mortgage. The decree ordered a sale of the mortgaged premises in satisfaction of appellee’s first mortgage and directed that any surplus be applied to payment of accrued interest found due on appellant’s second mortgage, the principal of said debt being then unmatured. The decree in the original suit was affirmed June 5, 1953, in Mark v. Maberry, 222 Ark. 357, 260 S. W. 2d 455.

Appellee Maberry purchased the mortgaged property for less than the amount of his judgment at the foreclosure sale held July 28, 1953, pursuant to the decree in the first suit. On September 14,1954, appellant filed the second suit against Springs Investment Company, appellee and the purchasers to whom appellee had sold the property. While this suit was primarily an attack on the validity of the 1953 foreclosure sale, it was again alleged that appellee was liable to appellant and the corporation on account of his alleged nonpayment for capital stock in the corporation, and that the purchasers from appellee should be required to apply future payments of the purchase price of the property in satisfaction of appellant’s second mortgage indebtedness. The defendants’ plea of res judicata was sustained by the trial court.

On appeal of the second decree, we upheld the action of the chancellor except as to appellant’s right to be heard on his claim for judgment against the corporation on a note and prayer for receivership, saying: “The plea of res judicata is also a defense to the appellant’s present attempt to impose personal liability upon Cecil Maberry, since the issue of such liability was involved in the earlier case, supra, and is concluded by that decision. In one respect, however, Mark’s complaint should not have been dismissed upon the plea of prior adjudication. He asserts in his present complaint that the first note in the series executed by Springs Investment Company became due, in the sum of $500, on July 1, 1954, and is unpaid. By amendment to the complaint Mark states that he is entitled to judgment upon this $500 note. The defendants’ plea of res judicata does not reach this issue, since the principal of the debt had not yet matured when the first case was decided and was not involved in that litigation. It may be true that Springs Investment Company no longer has any assets from which a judgment might be collected, but the plaintiff is nevertheless entitled to be hoard upon his claim against the corporation. On this issue the decree is reversed and the cause remanded. Whether a receiver should be appointed for the corporation is a matter to be determined by the chancellor upon remand.” Mark v. Springs Investment Company, et al., 225 Ark. 133, 279 S. W. 2d 843.

On remand, appellant filed an amended and substituted complaint in which he again attacked the validity of the foreclosure sale and asserted personal liability against appellee as in the former case, plus the additional allegation that appellee illegally acquired title to the mortgaged property in violation of Ark. Stats. Sec. 64-111 and thereby became liable to appellant for his claim against the corporation. In addition, appellant also asked for judgment against Springs Investment Company on a note for $1,000, which had matured since the second suit, and for $4,500 as the rental value of an apartment in the mortgaged prémises allegedly occupied by appellee from May, 1948 to August, 1954. The prayer for receivership was also renewed. Appellee Maberry’s separate plea of res judicata as to his personal liability was suslained by the trial court and Mark has again appealed.

Insofar as this record discloses, the questions of the liability of Springs Investment Company to appellant on the $500 and $1,000 notes and the claim for apartment rental, as well as the matter of receivership, are all still pending in the trial court and the corporation is not a party to this appeal. The only issue here relates to appellee Maberry’s personal liability to the appellant and it is clear from our opinion on the second appeal that this issue has been determined and redetermined. As to Ma-berry’s personal liability, the only new matter alleged in the amended and substituted complaint here is his alleged liability under Ark. Stats. Sec. 64-111. This statute prohibits certain corporations from transferring their property to stockholders for the payment of any debt or upon any other consideration than the full cash value of the property. Obviously no such transfer is involved in this suit, and the validity of the foreclosure sale ordered by the court in the first suit has been fully and finally adjudicated insofar as appellee’s personal liability to appellant is concerned. Since appellee’s personal liability to appellant is the only issue before us on this appeal, it follows that the trial court correctly sustained his plea of res judicata. The decree is accordingly affirmed.


author: George Rose Smith, J. J. Seaborn Holt, J.

text:
    Shelton v. Harris, Admr.
    5-780
    286 S. W. 2d 20
    Opinion delivered January 23, 1956.

      T. 8. Lovett, Jr., for appellant.

      Wiley A. Branton, for appellee.
   George Rose Smith, J.

This is an appeal from a probate court order holding that the appellant’s claim against the estate of Ella Hampton, deceased, is barred by the three-year statute of limitations, which applies to oral contracts. Ark. Stats. 1947, § 37-206. It is contended by the appellant that the case is governed by the five-year statute, applicable to written contracts. Ark. Stats., § 37-209.

Early in 1949 the appellant lent $405 to Ella Hampton upon the borrower’s oral promise to repay the money in the fall of that year. Ella Hampton died, without having repaid the debt, on December 16, 1952, which was more than three years after the last day of fall (November 30), 1949. After the appellee’s appointment in 1954 as administrator of the decedent’s estate the appellant filed her claim for $405 and accrued interest. The claim and its supporting affidavit refer only to the oral loan agreement between the parties. Upon the face of the pleadings the trial court was undoubtedly correct in applying the three-year statute.

In the course of the trial, however, the appellant testified that Ella Hampton, as security for the loan, had endorsed and pledged an overdue rent note for $450 that had been executed by Steve Hellems as maker to Ella as payee. This note was received in evidence without objection. It is now suggested that the appellant’s claim was thereby converted to a demand upon a written contract or that the court should have treated the original claim as having been amended to conform to the proof.

Neither suggestion is sound. Ella Hampton was liable during her lifetime upon two separate contracts — the oral agreement to repay the $405 loan and the written endorsement of the $450 note. The appellant, entitled to but one satisfaction, elected to base her claim upon the oral obligation. Her proof is directed to that issue rather than to the materially different facts that would be needed to establish Ella Hampton’s secondary liability as the endorser of Steve Hellems’ note. The note was properly admitted in evidence, as it tended to corroborate the appellant’s assertion that she had lent money to the decedent. But it is plain that the borrower’s act of endorsing a past-dne note for $450 did not have the effect of reducing to writing her oral promise to repay a smaller sum in the fall of the year.

Nor, for at least two reasons, would the court have been justified in treating the claim as having been amended by the proof. In the first place, the amendment would have asserted a new cause of action, upon a different contract. "We have held that it is reversible error for the trial court to permit such an amendment even when it is requested to do so. Patrick v. Whitely, 75 Ark. 465, 87 S. W. 1179. There would be still less justification for the court’s commission of the same error upon its own motion.

Second, it is essential that a claim against an estate be supported by an affidavit in statutory form. Belatively slight deviations from the statutory language have been held fatal to the validity of the claim. Superior Oil & Gas Co. v. Sudbury, 146 Ark. 319, 225 S. W. 609; Rinehart v. Wheeler, 168 Ark. 251, 270 S. W. 537. The mere introduction of the Hellems note in evidence did not and could not bring into existence the affidavit that is vital to the assertion of a claim upon that note. Whether the probate court could, without infringing upon the doctrine of election of remedies, have permitted the appellant to withdraw her claim and substitute a demand founded upon the Hellems note, is a question not presented by this record. It is enough to say that the principle of treating the pleadings as amended by the proof cannot supply the mandatory requirement that a claim upon a written instrument be supported by proper verification.

Affirmed.

Holt, J., dissents.

J. Seaborn Holt, J.

dissenting. Ella Hampton died interstate December 16, 1952 and Earnest Harris, her son, was appointed Administrator August 2, 1954. The parties are negroes. Appellant, Lidia Shelton, in apt time (§ 62-2601 Ark. Stats.) filed the following claim:

“IN THE MATTER OF THE ESTATE OF ELLA HAMPTON, deceased.

AFFIDAVIT TO CLAIM AGAINST ESTATE

I, LULA SHELTON, do solemnly swear that the attached claim against the estate of ELLA HAMPTON, deceased, is correct, that nothing has been paid or delivered toward the satisfaction thereof except what is credited thereon, that there are no offsets to the same, to the knowledge of this affiant, except as therein stated, and that the sum of Six Hundred Seven and 50/100 Dollars ($607.50) is now justly due (or will or may become due as stated therein). I further state that if this claim is based upon a written instrument, the copy thereof, including all endorsements, which is attached hereto, is true and complete.

/s/ Lula Shelton

STATE OF ARKANSAS

COUNTY OF JEFFERSON

Subscribed and sworn to before me this 19 day of August, 1954.

(SEAL) /s/ Theodore Jones

My Com. exp. 5/9/55

IN ACCOUNT WITH THE ESTATE OF ELLA HAMPTON, DECEASED

ADVANCES MADE IN THE YEAR 1949 :

$100.00, 55.00, 40.00, 40.00, 50.00, 50.00, 50.0Q, 20.00 ........................................................................$405.00

INTEREST AT 10% from July 1, 1949, that date being average date of all advances ............................................................................................. 202.50

$607.50”

Hearing in Probate Court was held on the claim October 18, 1954 and an order entered February 21, 1955 . . . “that the said claim should not be allowed on account of it being founded on an oral contract and thus barred by the Statute of Limitations prior to the death of the said Ella Hampton. ’ ’ This appeal followed.

Appellant says: ‘ ‘ There is one issue involved in this appeal — that is: 1. Does the three-year {% 37-206) or the five year (§ 37-209) statute of limitations apply?” Appellee agrees that the statute of limitations is the only issue but contends that the claim as filed is on an open account, amounting to an oral contract, on advances made by appellant and was, therefore, barred by the three-year statute of limitations prior to the death of Ella Hampton.

On the record presented I do not think the three year statute of limitations applies, but I am convinced that the five year statute of limitations does apply, and is controlling. It appears undisputed that during 1949 appellant, Lula Shelton, an aged negro, loaned decedent, Ella Hampton, a total of $405.00 and was given as security for the loan a pledge of a rent note in the amount of $450.00, executed in favor of Ella Hampton by Steve Heliums. This note was dated March 1, 1948 and was due November 15, 1948; it bore Ella Hampton’s endorsement and was in the possession of Lula Shelton when the above hearing was had in Probate Court on the claim, and was introduced in evidence without objection, or claim of surprise, by appellee. Counsel for appellee says in his brief: . . . “There is evidence that the deceased gave the claimant a Rent Note as collateral security which the deceased ‘endorsed’ on the face of the Rent Note.” At the time Ella Hampton died, December 16, 1952, approximately four years and one month had expired from its due date, November 15, 1948, and obviously it was not barred by the five year statute of limitations, and could be made the basis for appellant’s claim.

Since this case comes to¡ us for trial de novo, just as in a Chancery case, I think that when appellant introduced in evidence the pledged rent note above, as a basis for her contention that her claim was, in effect, on a written contract and not on an oral contract, it was then the duty of the trial court to permit appellant to base her claim tbereon and to treat the claim amended to conform to the proof by allowing appellant to attach the note to her claim and base it on the note. This written endorsement by Ella Hampton constituted the note a written contract, on which a claim could be based. In Sommer v. Nakdimen, 97 Fed. 2d 715, Circuit Court of Appeals, 8th Circuit (An Ark. Case) the Court said: . . . ‘ Here the advancement of the money by Lazarus at defendant’s request in and of itself constituted a complete contract. Each of the notes constituted separate written contracts. The endorsements on the notes constituted other written contracts. . . Had the amended petition alleged that the notes were endorsed and delivered to Lazarus in payment of the original debt or as collateral security therefor, and had recovery been demanded on the contract of endorsement, the case would have been altogether different from the present one.” This hearing on the claim was held in October 1954 and well within the period for the filing of claims against this estate. As I see it the position of the administrator was not changed by appellant’s failure to attach the note (or copy) to the claim as originally filed. Certainly I think appellant should be permitted, at any time within the period of filing claims, in a procedural matter as this, to amend her claim and attach thereto any written instrument upon which she might legally base her claim. Under the facts in this case the claimant substantially complied with § 112 of the 1949 Probate Code [Acts 1949, No. 140, § 112, P. 304] now § 62-2603 Ark. Stats. 1947. To hold otherwise would be to narrow the time limit within which appellant was permitted to file a claim and refuse her the right to amend and base her claim upon a written rather than an oral contract, and would allow the executor to hide behind a legal technicality, and give an interpretation to our Probate Code never intended. In short, the simple and undisputed facts were: Lula Shelton, an uneducated, sympathetic, friend and neighbor of Ella Hampton, out of her meager substance, made small loans to Ella totaling $405.00 in 1949, which Ella promised to repay that “fall.” Since “fall” embraces only tbe months of September, October and November, all agree that the claim would be barred by the three-year statute by approximately 13 days if based on an oral contract. It seems to me, however, that the majority in denying the claim when based on the pledged note, in effect clearly a written contract, are resorting to an unreasonably technical, strict and rigid construction of our claims statute and procedure thereunder that was never intended. Surely, in a case of this kind, on the facts presented, simple justice, equity, fairness and common sense, not only would warrant but would demand our holding that Lula Shelton should be allowed to amend her claim and base it on the written contract, pledged note, which was offered, in apt time, without objection.

I would reverse.