text:
    Mary RAINER and Tom RAINER v. Pat ROWLETT
    73-181
    502 S.W. 2d 617
    Opinion delivered December 24, 1973

      Guy H. Jones, Phil Stratton and Guy Jones Jr., for appellants.

      Brazil ir Roberts, for appellee.
   George Rose Smith, Justice.

The appellee, Pat Row-lett, brought this suit against her parents, the appellants Tom and Mary Rainer, to obtain the custody of Pat’s four-year-old daughter, Janet Diana Rainer. The appellants, relying upon an oral contract with Pat, defended the suit upon the theory that they had “equitably adopted” the infant. The chancellor attached scant weight to the contract and awarded custody to Pat. In seeking a reversal the appellants continue to assert a contractual right to the custody of their grandchild.

The facts are so unusual as to be without precedent. In 1967 the appellee, then an unmarried fourteen-year-old high school student, became pregnant in Texas, where the Rainer family was living. A few months later the family moved to Guy, Arkansas. It was orally agreed between Pat and her parents that when the child was born it would be entered upon the birth records as the child of Mr. and Mrs. Rainer, who agreed to bring up the infant as their own. That course was followed. After the child’s birth Pat continued to live with her parents and went back to school. For some three years the infant was supported by the elder Rainers and was told that they were her parents and that Pat was her sister.

In July, 1971, Pat married Jerry Rowlett, who knew that Janet was Pat’s daughter. The Rowletts soon moved to a home of their own, taking Janet with them. The child was then told that the Rainers were her grandparents and that Pat was her mother.. Mrs. Rainer, who was apparently the dominant moving force throughout the sequence of events, testified that she allowed the Rowletts to take the child upon a trial basis only, to see if the marriage was successful. After more than a year the Rowletts experienced some rather inconsequential marital difficulties, which they attributed to their fear that Mrs. Rainer would take Janet away from them and to Mrs. Rainer’s reaction to Jerry’s proposal that he adopt Janet. In January, 1973, Mrs. Rainer obtained possession of the child by telling Pat that she would look after the child while Pat was shopping. Mrs. Rainer refused to give up the child, so that Pat was compelled to bring this suit to regain custody.

The chancellor’s decision was plainly right. We stress the fact that the oral contract did not provide that the Rainers would adopt Janet, subject to the various safeguards contained in our adoption statutes. Instead, Pat was to release her own parental rights to the Rainers, who would bring up the child as their own. Such a contract is contrary to public policy. As the Restatement of Contracts points out, “a bargain by one entitled to the custody of a minor child to transfer the custody to another person, or not to reclaim custody already transferred of such child, is illegal unless authorized by statute.” Rest., Contracts, § 58B (1932).

We expressed that view in Washaw v. Gimble, 50 Ark. 351, 7 S.W. 389 (1887), saying: “The custody of a child is not the subject of gift or barter. A father cannot, by a mere gift of his child, release himself from the obligations to support it or deprive himself of the right to its custody. Such agreements are against public policy and are not strictly enforceable.” In the case at bar there is the added circumstance that Pat was only fourteen when the agreement was made and was therefore entitled to disaffirm the contract upon reaching her majority, even if the agreement had been valid.

The true issue before the chancellor, as in any custody case, was the best interest of the child. As between a mother and grandparents, the mother is entitled to her child unless she is unfit to be entrusted with its care. Nolan v. Nolan, 240 Ark. 579, 401 S.W. 2d 13 (1966). Here there is no such intimation. To the contrary, even Mrs. Rainer testified that Pat is a good mother. Upon the proof the chancellor’s conclusion was the only proper one.

Affirmed.

Harris, C.J., not participating.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Ruth MULLENS
    73-184
    502 S.W. 2d 626
    Opinion delivered December 24, 1973

      Thomas B. Keys and Philip N. Gowan, for appellant.

      John J. Calloway, for appellee.
   Lyle Brown, Justice.

This eminent domain case concerns a 104 acre tract with a quarter mile frontage on State Highway 23. The highway commission cut a considerable swath across the lands, taking 51.10 acres for Interstate 30 and a rest area. After the taking there remained wooded lands north of the new highway and the homesite and cultivated lands south of the new highway and fronting on State Highway 23. By her testimony the landowner fixed her damages at $28,100; her expert witness fixed the damages at $20,300. The jury awarded damages of $28,100. For reversal appellant contends (1) that the testimony of the landowner to the before taking value was insubstantial, and (2) that the court should have struck the before value of the landowner’s expert witness. We find no merit.

It is axiomatic that a landowner has more leeway in fixing values than does an expert. We said in Arkansas State Highway Comm. v. Fowler, 240 Ark. 595, 401 S.W. 2d 1 (1966): “It is not necessary to show that he was acquainted with the market value of such property or that he is an expert on values. He is deemed qualified by reason of his relationship as owner to give estimates of the value of what he owns. The weight of his testimony is, of course, affected by his knowledge of the value.” To the same effect see Arkansas State Highway Comm’n v. Kennedy, 248 Ark. 301, 451 S.W. 2d 745 (1970).

Appellee and her husband purchased the property in 1960 and moved onto it. After the husband’s death in 1965, appellee continued to live there another six years. She detailed a good knowledge of the topography. The house is located on high and level ground; to the north of the house the land is uphill; at the point where appellant indicated the rest area, there is a beautiful view of the entire countryside, including the river, the town of Ozark, and the locks and dam. She estimated the value of the entire tract before the taking at $400 per acre, based on what she thought a willing buyer would pay. On cross-examination she was questioned concerning why all the acreage — woodlands and cultivated lands — was valued at $400 an acre. She said her figure was based on a sale of the acreage as a unit. She conceded that her knowledge of sales in the area was based on hearsay; however, she related she sold two acres off the tract fronting on Highway 23 for $750 an acre.

The fact that the landowner had no personal knowledge of the details of other sales does not destroy her testimony. The fact that she took into consideration what she had heard several different persons say in discussing the value of lands did not make her testimony on that score inadmissible. Arkansas State Highway Comm. v. Russell, 240 Ark. 21, 398 S.W. 2d 201 (1966). It is also said in Russell that if cross-examination shows a questionable basis for the landowner’s values, that fact has a bearing on the weight to be given the witness’ testimony. We think the landowner’s testimony passes the substantial evidence test.

Now as to the before taking value given by the expert, Eddie Anderson. The witness has lived in Ozark all his life and for the past nineteen years has been a licensed real estate broker. He has made many appraisals in the area, some for federal agencies and others for private landowners. He has been acquainted with the subject property all his life. He gave an across the board value of $300 per acre. He believed the highest and best use of appellee’s property was for homesite development. He said there was a good view in every direction, including the locks and dam, the Arkansas River, the town of Ozark and a mountain range. He stated specifically he did not know of another tract of 100 acres in Franklin County comparable favorably to the subject property.

As to the three comparables used, one was a three acre tract which sold for $1800 per acre; another a 23 acre tract which sold for $1,087 per acre; and another a 51 acre tract abutting a dirt road which sold for $200 an acre. We are unable to say the trial court erred in not striking the witness’ before value testimony.

Affirmed.

Harris, C.J., not participating.


text:
    Maurice G. MORLAN v. Mildred C. MORLAN
    73-203
    502 S.W. 2d 628
    Opinion delivered December 24, 1973

      Denver L. Thornton, for appellant.

      James J. Calloway, for appellee.
   Lyle Brown, Justice.

Appellant’s petition for a divorce was denied. We affirm because the appellant failed to meet the requirement of corroboration.

The parties were intermarried in 1954 and lived together until March 11, 1972. For several years prior to the separation they lived in Memphis where appellee still resides. At the time of separation appellant moved to El Dorado. The divorce petition alleged general indignities. Appellee denied the allegation and alleged in substance that the separation resulted from appellant having an affair with a woman in El Dorado. In addition to denying appellant’s prayer for divorce the court awarded custody of the minor child to appellee; ordered appellant to pay $300 per month for support of the wife and minor child; and gave possession of household furnishings and an automobile to appellee. The latter did not ask for a divorce.

Appellant testified at length relating that appellee was in the habit of drinking, committing acts of hysteria, consistently spending money beyond their income, em-barrasing appellant, and committing acts of violence toward appellant. He denied having an affair with another woman but in oral argument the incident was admitted.

In the absence of collusion in a contested divorce comparatively slight evidence of corroboration is sufficient. Anderson v. Anderson, 234 Ark. 379, 352 S.W. 2d 369 (1961). Witness R. A. Chapel resides in El Dorado and has business dealings with appellant. The witness testified that in February 1972 he received a telephone call from appellee trying to locate appellant; that “she got kind of loud’ ’ and wanted to know if the witness knew a woman named Bobbie; that appellee used some profane language and said “This is some more that is going to pay for this”. Mrs. Chapel was called as a witness. She testified that when appellant moved to El Dorado he had a black eye; that she inquired of the cause and appellant attributed it to an accident. Appellee was called as a hostile witness. She said the parties scuffled on the evening of March 11, 1972, the date of the separation; that in the same encounter she threw a glass at appellant and in the same confrontation she tore his shirt. She said she was incensed because of “the other woman” and by having learned that appellant had lied about his whereabouts on a previous night which was spent away from home. Summarizing, appellant’s corroboration related to a telephone call inquiring about another woman; a black eye which appellant attributed to an accident; and a physical encounter with appellee on March 11. Appellant refers us to the testimony of several witnesses called by appellee and urges that their testimony corroborates appellant’s testimony. Sharon Cook said she heard the couple argue about bills which the witness did not consider uncommon among married couples. Dorene Dundas said she had heard the Morlans fuss about appellant not spending more time with his young son. Charlene Ulander said she had heard appellee use abusive language towards appellant. Mark Morlan, the seventeen year old son of the parties, said he “got between” the couple one night when they were arguing. None of those witnesses related how often they witnessed the described events, neither is it clear who was the aggressor, nor is it revealed when the incidents occurred.

To sustain a divorce on grounds of indignities it must be shown that the misconduct of the offending spouse was conducted habitually and continued for such a period of tíme as to make the married life intolerable for the other spouse. Preas v. Preas, 188 Ark. 854, 67 S.W. 2d 1013 (1934). “Indignities may mean a number of things in various circumstances but in order to constitute the grounds for divorce they must be constantly and persistently pursued with the object and effect of rendering the situation of the opposing party intolerable.” Gibson v. Gibson, 234 Ark. 954, 356 S.W. 2d 728 (1962); see Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598 (1973). In view of the recited requirement of the law, and in further view of the fact that the chancellor saw and heard the witnesses and with the right to judge their credibility, we are unable to say his finding was against the preponderance of the evidence.

Appellant does not argue that the property division or support money was improvident; at least they do not brief the questions. Be that as it may, we are unable to say that the awards made in those areas, along with an attorney’s fee, were improper.

In addition to judgment for costs in favor of appel-lee, she is awarded an attorney’s fee of $500 for appeal to this court. In fixing a rather modest fee we note that appellant has not accumulated any savings; his annual salary is around $9000; he has a son in a private school and is paying appellee $300 a month.

Affirmed.

Harris, C.J., not participating.


author: John A. Fogleman, Justice.

text:
    Ferdinand D. HAND and James W. RANDALL, d/b/a SOUTHLAND INSURANCE AGENCY v. NORTHWESTERN NATIONAL INSURANCE COMPANY
    73-172
    502 S.W. 2d 474
    Opinion delivered December 24, 1973

      Wright, Lindsey if Jennings, for appellants.

      Laser, Sharp, Haley, Young if Boswell, P.A., for ap-pellee.
   John A. Fogleman, Justice.

This appeal springs from the dismissal of appellants’ complaint on motion of appellee. Appellants operate an insurance agency and appellee is their insurer under an Insurance Agents’ and Brokers’ Errors and Omissions Policy. This action was brought by appellants to recover from appellee the amount of a fire loss allegedly suffered by F. L. and Delma Abernathy which was not covered by fire insurance due to the failure of appellants to renew a policy. Appellee first filed a pleading which it entitled “Motion to Dismiss.” This motion alleged that plaintiffs are not the real parties in interest and that defendant was not a proper party. After a response by appellants, which seems to be more responsive to a brief of appellee in support of its motion than to the motion itself, appellee filed an amendment to its motion, “readopting” the allegations of its original motion, but adding that it was not a proper party defendant for the “additional” reason that the policy involved contained the following clause:

Action Against Company. No action shall lie against the company unless, as a condition precedent the Insured shall have fully complied with all the terms of this policy, nor until the amount of the Insured’s obligation to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the company.

Appellants then filed a supplemental response, which also seems to be more in the nature of a brief than a response. The gist of this response is the contention that the appellants, under the circumstances should not have been required to suffer a lawsuit and judgment against them, when their admitted negligence and the damages suffered in the matter were clear, particularly in view of a denial of coverage by appellee. Appellants also claimed to be the real party in interest because they had paid the full amount of the loss to the party to have been insured, $11,700, of which $10,700 was loaned to them by Farmers and Merchants Insurance Company, under the terms of a loan receipt in which their right to sue appellee was recognized. Appellee covered all losses in excess of $1,000.

After the circuit judge had advised counsel for both parties by letter that the motion was sustained, appellants filed a motion to set aside the judgment of dismissal (which had not then been formally entered). The grounds alleged were that appellee’s motion to dismiss was not a proper pleading under the laws of Arkansas and that, if it were treated as a motion for summary judgment, there remained genuine and material issues of fact. Thereafter, the formal order of dismissal was entered. It contained these specific findings:

1. That the plaintiffs are bound by the terms of their written contract with the defendant.
2. That the plaintiffs are bound by their contract and by the law of this state and are precluded from bringing a direct action against this defendant.
3. That defendant, Northwestern National Insurance Company is not a proper party defendant in this cause.

The rules of pleading in this state are appropriately liberal and this court has, at least since the adoption of the Civil Code, regarded substance rather than form. In this case, however, the true nature of the pleadings seems well obscured by their titles and the treatment given them by the parties. Whatever they are, we are convinced that the order of dismissal was at least premature.

A motion to dismiss upon jurisdictional grounds or for want of venue has been recognized by this court. See Hoggard & Sons v. Russell Burial Assn., 255 Ark. 576, 501 S.W. 2d 613; Arkansas-Louisiana Highway Improvement District v. Douglas-Gould and Star City Road Improvement District, 138 Ark. 162, 210 S.W. 150. We have also approved its use to obtain dismissal for abuse of process. Heard v. McCabe, 130 Ark. 185, 196 S.W. 917. When based upon the assertion that the complaint fails to state a cause of action, it is tantamount to a general demurrer. Meeks v. Arkansas Power & Light Co., 147 Ark. 232, 227 S.W. 405. Such a pleading is not described in the Civil Code, or amendments thereto, and our attention has not been called to any case in which it has been recognized for other purposes, except, of course, for the motion to dismiss a chancery case for insufficiency of the evidence on behalf of a plaintiff, provided for by Ark. Stat. Ann. § 27-1729 (Repl. 1962). Ark. Stat. Ann. § 27-1162 (Repl. 1962), relied upon by appellee does not authorize any pleading. It simply authorizes hearings on pretrial motions outside the county in which an action is pending.

This court has always determined the nature and function of a pleading by its content, and sometimes even by the manner in which it is treated by the parties and the trial court, rather than by its title. See Hoggard & Sons v. Russell Burial Assn., supra. When we view appellee’s first motion in this case, it appears that it should be characterized as a demurrer for defect of parties, authorized by Ark. Stat. Ann. § 27-1115 (Repl. 1962). Appellee says in its brief here that the court correctly granted its motion as a demurrer for defect of parties. In order for such a demurrer to be sustained, the defect must appear upon the face of the complaint. Hoggard & Sons v. Russell Burial Assn., supra. See also, McCallister’s Admr. v. Savings Bank of Louisville, 80 Ky. 684 (1883), construing the code section we adopted and now appearing as Ark. Stat. Ann. § 27-1115; Cleveland v. Biggers, 163 Ark. 377, 260 S.W. 432.

There is nothing in the complaint to suggest that the plaintiffs are not the real parties in interest, i.e., the sole owner of the alleged cause of action against appel-lee. Even though the insurance contract is the basis of appellants’ cause of action, and is described and identified in the complaint, it was not made an exhibit thereto. The terms relied upon by appellee are nowhere mentioned in the complaint. There is nothing in the complaint to indicate that appellee is not the only possible defendant in the cause of action alleged by appellants. The first motion could not properly have been sustained as a demurrer.

The amendment to this motion, by importing grounds based upon facts not appearing on the face of the pleading, seems to have made the pleading a “speaking demurrer.” Hoggard & Sons v. Russell Burial Assn., supra. Such a pleading is not only not recognized but is abhorred, eschewed and rejected by the courts of Arkansas. Hoggard & Sons v. Russell Burial Assn., supra; Jones v. Capers, 231 Ark. 870, 333 S.W. 2d 242; Rider v. McElroy, 194 Ark. 1106, 110 S.W. 2d 492. It has only been given consideration when it could be treated as a motion to dismiss for want of jurisdiction. Hoggard & Sons v. Russell Burial Assn., supra; Askew v. Murdock Acceptance Corporation, 225 Ark. 68, 279 S.W. 2d 557.

Somewhere in the course of the proceedings, however, appellee resorted to a discovery deposition of appellant Jim Randall. Nothing in that deposition showed that the court did not have jurisdiction of the cause of action. We do not agree with appellee that it was proper to introduce proof on the question of a defect of parties on demurrer. Although appellee nowhere suggests that its pleadings should be considered as a general demurrer, evidence could not be offered in that case either. This leaves the motion for summary judgment as a basis of treatment of the motion which could result in a dismissal of the action. If so, its character as such was so well veiled that an adverse party might well be excused for not responding to it as such. Appellants suggest that possibility, but appellee does not so treat it.

Appellee, as a matter of fact, states in its brief that the trial court correctly construed its initial motion as the equivalent of a demurrer for defect of parties. It went on to submit that the court correctly allowed the motion to be amended so as to allow proof to be taken on the question regarding a defect of parties and properly dismissed the complaint on that basis. While we do not agree, we should affirm this order, if we could sustain it on any ground. Reamey v. Watt, 240 Ark. 893, 403 S.W. 2d 102; Reeves v. Arkansas Louisiana Gas Co., 239 Ark. 646, 391 S.W. 2d 13; Polk v. Stephens, 126 Ark. 159, 189 S.W. 837. This being so, and in view of the statement in the order of dismissal that the court had considered the depostion of Randall, we have considered the motion as one foy summary judgment and find that we cannot sustain the order as the granting of such a motion.

In order for summary judgment to be justified, there must have been no genuine issue of material fact. All doubts about the question are resolved and all inferences drawn against the moving party. Moon v. Sperry & Hutchinson Co., 250 Ark. 453, 465 S.W. 2d 330; Evers v. Guaranty Inv. Co., 244 Ark. 925, 428 S.W. 2d 68. The evidence must be viewed in the light most favorable to the party against whom the judgment would go. Wilson v. McDaniel, 247 Ark. 1036, 449 S.W. 2d 944. If fair-minded men might differ about the conclusion to be drawn or if inconsistent hypotheses might reasonably be drawn from the supporting testimony, a summary judgment should be denied. Mason v. Funderburk, 247 Ark. 521, 446 S.W. 2d 543; Harvey v. Shaver, 247 Ark. 92, 444 S.W. 2d 256. If there is any doubt whatever, a summary judgment should be denied. Bull v. Manning, 245 Ark. 552, 433 S.W. 2d 145.

The deposition of Randall, the only possible support for a motion for summary judgment in this case, rather than clearly demonstrating the absence of such an issue, tends to indicate that there are genuine issues of material fact. Randall revealed that:

His agency, having placed homeowner’s insurance on the Abernathy property with Farmers and Merchants Insurance Company, a subsidiary of the Silvey Companies for six years, sent renewal notices to the Abernathys and had received a renewal premium from them prior to July 24, 1971, the renewal date. The renewal statement was then placed in the Abernathy file in the agency office instead of being processed for a renewal policy in the usual manner. The agency did not check the “account current” listing furnished it by Silvey from which it could have detected that the insurance company had dropped the Abernathy policy. As a result, the premium was never remitted to any insurance company, and no policy was ever issued. There was no reason to believe that the Abernathy policy would not have been renewed routinely by Farmers and Merchants. The Abernathy dwelling house was later destroyed by fire. On the date of the fire, Randall notified both Farmers and Merchants and Northwestern. When the Abernathys asserted a claim, Randall notified Silvey, who advised him to call his errors and omissions carrier. When Randall did so, appellee’s claims manager, Ken Rhinehart, stated that, in his opinion, appellants had no claim against appellee and that they would have to collect from Silvey. A few weeks later, Randall again talked to Rhine-hart who told him that Northwestern could only help if appellants and the Abernathys joined in a suit against the Silvey Company and that Northwestern would defend appellants against any liability they incurred. Randall objected to involving his customers in a lawsuit. According to Rhinehart, the only alternative was for Silvey to pay the claim and file suit against Northwestern to recover. Subsequently, Silvey officials agreed to advance $10,700 of the $11,-700 loss on the basis of a loan receipt executed by appellants. By this receipt, appellants acknowledged receipt of the sum advanced by Farmers and Merchants, repayable only from any net recovery made from appellee. This receipt contained the following clause:
As security for repayment of the loan I hereby appoint FARMERS AND MERCHANTS INSURANCE COMPANY, its officers and agents, as attorneys in fact, with irrevocable power to collect, compromise, or abandon any such claim and to institute, prosecute, compromise or withdraw, in may [my] name but at the expense of FARMERS AND MERCHANTS INSURANCE COMPANY, any legal proceedings which it may deem necessary or proper to carry into effect the purpose of this agreement.
Thereafter, Northwestern canceled the errors and omissions policy, charging appellants with entering into an agreement that was neither ethical nor legal.

We find no basis for dismissing the complaint as an unauthorized “direct action” by appellants against their “errors and omissions” insurer. Any action by the insured against the insurer on an indemity policy is, of course, a direct action. But appellee contends that, because there is no statute authorizing such an action, the motion was properly sustained. The action is not prohibited by law, and we see no reason why special statutory authority for such a suit is required. The basic issue is whether appellee breached its contract of insurance with appellants.

We cannot agree with appellee that the statement of Rhinehart must be taken, not as a denial of coverage under the policy, but as a denial of appellants’ liability to the Abernathys. We deem Randall’s testimony on this point to be subject to a construction contrary to that given it by appellee, so that it would raise a question of fact. At least, we cannot say that the matter is free from doubt.

Appellee says appellants were not guilty of any negligence that proximately caused any damages to the customer of appellants. We see no merit in appellee’s contention that there was no liability to the Abernathys on the part of appellants. See Martin v. Langley, 252 Ark. 121, 477 S.W. 2d 473; Derby v. Blankenship, 217 Ark. 272, 230 S.W. 2d 481; Lawrence v. Francis, 223 Ark. 584, 267 S.W. 2d 306.

The policy exhibited to Randall’s deposition contains the usual clauses prohibiting the insured from making any payment or assuming any obligation, except at its own cost. It also permits recovery from ap-pellee after a claimant has secured a judgment against the insured. Still, there are circumstances other than the insurer’s refusal to defend an action actually filed under which the insured is entitled to recover from its insurer after having made a settlement with a claimant in spite of such clauses. Home Indemnity Co. v. Snowden, 223 Ark. 64, 264 S.W. 2d 642; St. Paul Fire & Marine Insurance Co. v. Crittenden Abstract & Title Co., 255 Ark. 706, 502 S.W. 2d 100; Carter v. Aetna Casualty & Surety Co., 473 F. 2d 1071 (8th Cir. 1973); L. A. Tucker Truck Lines v. Baltimore American Ins. Co., 97 F. 2d 801 (8th Cir. 1938); Isadore Rosen & Sons, Inc. v. Security Mutual Ins. Co., 31 N.Y. 2d 343, 291 N.E. 2d 380 (1972). Randall’s testimony would at least raise an issue of fact as to whether appellee, by its inaction in failing to investigate and settle the claim of the Aber-nathys repudiated the contract or had waived the provisions on which it relies. And there is no certainty that the amount of the loss was 111,700, although it may be that this amount would be fixed under the valued policy law, and there may be a question of fact on this point. The complaint does not show appellants’ reasons for making the payment to the Aber-nathys, but Randall’s deposition is adequate to show that when issue is properly joined there could be a question of fact as to appellants’justification in doing so. If appellee’s motion was for summary judgment (and appellee does not contend that it was) the burden was on it to show beyond doubt that no question of. fact existed. Certainly, the existence of a question of fact is not foreclosed by Randall’s deposition. Appellee did not clearly demonstrate that it acted in good faith in failing to recognize the liability of appellants to Abernathy.

There remains the remote possibility that appellee’s pleading could have been treated as a motion to dismiss for want of necessary parties under the third subdivision of Ark. Stat. Ann. § 27-1405 (Repl. 1962), although the court’s order seems to preclude that possibility, and it seems to have been indicated in our decisions that this statute is to be invoked at trial. See Duval v. Mayson, 23 Ark. 30; Powell v. Massey-Herndon, 69 Ark. 79, 62 S.W. 66. Be that as it may, such a motion would fail unless Farmers and Merchants is the real party in interest or is a necessary party plaintiff. But so far as this record discloses, Farmers and Merchants has really only loaned appellants money to be used in satisfying the Abernathys, with the understanding that it is to be repaid only from appellants’ recovery from appellee, if any. While we do not consider Farmers and Merchants to be an insurer of appellants in any sense of the word, their position, as far as this record discloses, is somewhat analogous to that of the insurer which pays a part of its insured’s loss. If that analogy is drawn, appellants remain the real parties in interest and Farmers and Merchants is not a necessary party to the action. Limberg v. Lutz, 236 Ark. 264, 365 S.W. 2d 713; Washington Fire & Marine Ins. Co. v. Hammett, 237 Ark. 954, 377 S.W. 2d 811; McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566. By the same analogy, Farmers and Merchants was entitled, under the loan receipt, to prosecute the action in the name of appellants. Graysonia, N. & A. R. Co. v. Newberger Cotton Co., 170 Ark. 1039, 282 S.W. 975; Ry. Co. v. Fire Assn., 60 Ark. 325, 30 S.W. 350, 28 L.R.A. 83; Dixey v. Federal Compress & Warehouse Co., 132 F. 2d 275 (8th Cir. 1942).

The order of dismissal is reversed and the cause remanded for further proceedings.


text:
    PIONEER FINANCE COMPANY v. Dorwon D. LANE et al
    73-176
    502 S.W. 2d 624
    Opinion delivered December 24, 1973

      Sam Goodkin, for appellant.

      Rodney C. Wade and Booth ir Shaver, for appellees.
   John A. Fogleman, Justice.

Appellant Pioneer Finance Company, a foreign corporation not authorized to do business in Arkansas, brought suit against appellees on a promissory note executed by them to Rainbow Industries and secured by a security agreement. Appellant alleged that, prior to maturity, the note was assigned to it. The note, an exhibit to the complaint, was an installment note given for the balance of the purchase price on a Rainbow Home Conditioner. In their answer, appellees alleged that Pioneer Finance Company was not authorized to do business in the State of Arkansas and that the agreement was unenforceable by it in the courts of Arkansas and void ab initio. They also alleged that Rainbow Industries was not authorized to do business in the State of Arkansas and that the agreement was unenforceable by it and void ab initio. Later, appellees filed a motion for summary judgment based upon the fact appellant was a foreign corporation not authorized to do business in Arkansas and alleged it was barred from enforcement of the note under the provisions of Ark. Stat. Ann. § 64-1202 (Repl. 1966).

The circuit court granted this motion for summary judgment after considering the affidavit of the secretary of state in which that official stated Rainbow Industries was not qualified to do business in Arkansas as a domestic or foreign corporation. We reverse the summary judgment because appellees did not meet their burden of demonstrating that there was no genuine issue as to any material fact.

The certificate of the secretary of state had no bearing whatever upon appellant’s right to enforce the note. No one has ever asserted that Rainbow Industries is a corporation. In its complaint Pioneer Finance Company alleged that Rainbow Industries was a proprietorship owned by Kyle Day. There is nothing in the note sued on, the security agreement or the assignment to appellant to indicate anything to the contrary. Even if appellees’ answer was sufficient to put that question in issue, it has not produced evidence that Rainbow Industries is a corporation, either foreign or domestic. Consequently, the status of Rainbow Industries cannot be a basis for summary judgment in this case.

Appellees have also failed to meet their burden of showing that the assignment of the contract was made in Arkansas. Widmer v. J. I. Case Credit Corporation, 243 Ark. 149, 419 S.W. 2d 617.

Appellees’ arguments with relation to the burden of proof at trial and that appellant was barred from enforcement of the note because it transacted a substantial part of its ordinary business in Arkansas are wholly irrelevant at this stage. There is absolutely no evidence as to the nature and extent of the business conducted in Arkansas by Pioneer Finance Corporation in the record at this time. Of course, our statutes and cases make it quite clear that the burden is on the movant to establish that there is no genuine issue of material fact. See Ark. Stat. Ann. § 29-211 (Repl. 1962); K and S International, Inc. v. Howard, 249 Ark. 901, 462 S.W. 2d 458; Widmer v. J. I. Case Credit Corp., supra. It is only when the moving party has clearly met its burden that the opposing party has the burden of demonstrating the existence of such an issue, and only then will its failure to offer evidence in opposition to the motion entitle the movant to a summary judgment. Hervey v. AMF Beaird, Inc., 250 Ark. 147, 464 S.W. 2d 557.

The judgment is reversed and the cause remanded for further proceedings.

Harris, C.J., not participating.


author: John A. Fogleman, Justice. Conley Byrd, Justice,

text:
    City of FORT SMITH, Arkansas v. Odell BREWER, Paul BROWDER and David CORBIN, For Themselves and as Representatives of a Class
    73-179
    502 S.W. 2d 643
    Opinion delivered December 24, 1973

      Daily, West, Core ir Coffman, for appellant.

      Pearce, Robinson ér McCord, for appellees.
   John A. Fogleman, Justice.

This appeal involves questions about the amount of holiday pay to which firemen in the City of Fort Smith are entitled, and the terms on which it is to be paid. It requires a construction of Act 132 of 1955, as amended by Act 264 of 1957, now appearing as Ark. Stat. Ann. §§ 19-2108 and 19-2109 (Repl. 1968). The action was instituted by appellees Brewer, Browder and Corbin, as a class action on behalf of all firemen of the city. They sought to recover pay for the holidays specified by the statute in lieu of additional days of vacation theretofore granted. They based their action upon an election of the firemen evidenced by a letter to the city’s board of directors, dated April 23, 1971, signed by 86 members of the fire department. On June 21, 1971, the city passed its ordinance, No. 2896, effective July 1, 1971, honoring the election. This ordinance provided for “holiday pay” by adding one day of pay to every other biweekly pay period, beginning July 1, 1971. Since there are 26 such payroll periods, this would result in payment for 13 holidays. After this ordinance was passed, appel-lees amended their complaint to challenge it on the method of calculation of a “day’s pay” utilized and the allowance of only seven days of benefits in the year 1971. Appellees contended that their work shift required that they be paid holiday pay on the basis of their pay for a 24-hour work shift and that they should be paid for 13 rather than seven holidays during 1971.

The matter was submitted to the circuit court upon a stipulation of facts. The following additional facts, among others, were stipulated:

1. Prior to 1971, the Fort Smith firemen accepted 13 consecutive days of paid vacation in lieu of holiday equalization pay.
2. All firemen receive a vacation of 15 days each calendar year with pay.
3. Those firemen who accepted a holiday vacation of 13 consecutive days prior to July 1, 1971, have no claim in the calendar year 1971 to equalization pay. Others received no vacation time for holiday equalization.
4. An ordinary day’s work for a fireman is a 24-hour period beginning at 6:30 a.m. on one day and ending at 6:30 a.m. on the next, after which the fireman is off active duty, although subject to call, for a 48-hour period between each work period.
5. The city has paid firemen on a biweekly basis, since 1967. During a biweekly pay period, a fireman will average working 4 2/3 work periods of 24 hours each and average 56 hours active duty per week or 112 hours per biweekly pay period.
6. In calculating holiday equalization pay under Ordinance No. 2896, and for all budgetary purposes, except for computation of overtime, the city divides the biweekly salary of each grade and range of firemen by 10, as the city had done for payment of non-uniformed employees and for unused vacation and sick leave time for policemen.
7. Overtime is paid to firemen on an hourly basis determined by dividing biweekly salary by 112.
8. Since 1971 was not a biennial election year, the three election days listed as holidays in the statutes were not observed in 1971, and the city contends that the firemen were entitled to pay for only 10 holidays in 1971 and other odd-numbered years.

The city administrator testified that those firemen who did not receive the full 13 days of additional paid vacation in 1971, would receive seven days of holiday equalization pay, and the city had offéred those firemen three days’ vacation in addition to the seven days’ holiday pay. He also stated that non-uniformed employees worked 80 hours during a payroll period and policemen averaged 40 hours work per week. It was his understanding that firemen could not leave the city during the 48 hours they were subject to call without calling and obtaining permission.

The trial court entered judgment, finding that: the proper method of calculating each day of holiday equalization benefit is to divide the biweekly salary by 4 2/3; Ark. Stat. Ann. §§ 19-2108 and 2109 provide for 13 days of holiday equalization benefits in each calendar year; the firemen are entitled to receive holiday equalization pay for the period of time prior to the effective date of their election in the form of pay and the city may not provide such benefits in the form of days of vacation.

We disagree with the circuit judge’s conclusions. At the outset, we should say we also disagree with appellees’ contention that these are findings of fact. The facts were undisputed, and the only questions involved turned upon interpretation of Acts 132 of 1955, as amended by Act 264 of 1957, appearing as Ark. Stat. Ann. §§ 19-2108, 2109.

Appellant’s first point for reversal is that the circuit court’s holding is erroneous, because it provides appel-lees with three days’ pay for each day of holiday benefit. It argues that the city’s method of payment is in keeping with the intent of the act. We agree with this contention. In order that our interpretation of the act be better understood, we set out the act as it appears in Arkansas Statutes Annotated, Volume 2B, with that portion added by the 1957 amendment italicized:

From and after the passage of this Act all firemen shall be paid for the thirteen [13] Arkansas legal holidays as set forth in Sec. 69-101 and 69-104 of the Arkansas Statutes. Firemen shall also be paid for any additional holidays which may hereafter be declared by legislative act. [Acts 1955, No. 132, § 1, p. 317.] Said equalization pay shall be based on each man’s daily rate of pay and in addition to the regular pay schedule. This equalization pay for the thirteen [13] holidays shall be pro-rated and paid during the regular payroll periods; except that in lieu of said pay, firemen in said cities and towns may accept paid vacations not to exceed thirteen (13) days in any one [/] year. Said paid vacations to be in addition to any vacation time to which said firemen may now be entitled under city ordinance or departmental rules or departmental policy. [Acts 1955, No. 132, § 2, p. 317; 1957, No. 264, § 1, p. 808.]

We have previously held that the legislative intention of a similar act affecting policemen was that policemen be paid additional compensation for all legal state holidays regardless of whether they actually worked on each of them. Deason v. City of Rogers, 247 Ark. 1061, 449 S.W. 2d 410. The overriding purpose of the act was expressed in the key words “equalization pay.” If it could be said that the language of the body of the 1955 Act does not clearly express the General Assembly’s intention that firemen be paid for holidays they might or might not receive, in order that they stand upon the same footing as most city employees who do not work on these holidays, but are paid, nevertheless, all doubt may be resolved by the title and emergency clause of the act, to which we resort in such cases. Cook v. Bevill, 246 Ark. 805, 440 S. W. 2d 570; Rouse v. Weston, 243 Ark. 396, 420 S.W. 2d 83; Roscoe v. Water & Sewer Improvement District No. 1, 216 Ark. 109, 224 S.W. 2d 356; Sager v. Hibbard, 203 Ark. 672, 158 S.W. 2d 922; Hollis v. McCarroll, 200 Ark. 523, 140 S.W. 2d 420; Taylor v. J. A. Riggs Tractor Co., 197 Ark. 383, 122 S.W. 2d 608. The title reads:

AN ACT Providing Equalization Pay for Firemen for the Thirteen Legal Holidays During Each Calendar Year Based On Their Daily Rate of Pay and in Addition to Their Regular Pay Schedule. Declaring an Emergency and for Other Purposes.

The emergency declared was based upon this statement in Sec. 4 of the Act:

It is necessary and essential for firemen to work on legal holidays for the protection of the public peace and safety, and adequate fire forces must be maintained at all times. On holidays firemen are denied the free vacation and leisure time enjoyed by other employees and that such equalization pay is needed by the firemen to give them more equitable and adequate support for their services and for the support of their families, and to maintain their present high standard of morale and efficiency.

If any lingering doubt be left, it was completely resolved by the 1957 amendment which permitted the firemen to accept paid vacations not to exceed 13 days in any one year in lieu of “equalization pay.” Clearly, acceptance of the paid vacation time would guarantee that every fireman would receive as much time off work for holidays, without loss of pay, as other city employees. It would be rather odd to suggest, as appellees do, that the legislature somehow expected to equalize the position of the firemen of Fort Smith by giving them a “daily rate of pay” which resulted in their being virtually three times as well provided for in this respect as other city employees, or that the firemen of any city whose working periods for firemen are arranged as those in Fort Smith should be so much better provided for than those in cities where work shifts may be on a 12- or eight-hour basis. It also seems most illogical to ascribe to the General Assembly an intention that the firemen in any city, by merely accepting vacation with pay, would receive approximately one-third as much as they would receive if they took the benefit in the form of “equalization pay.” We can only assume that the legislative branch meant to “equalize” so far as possible. Even though it is not for us to pass upon the logic or wisdom of a clearly expressed legislative intention, we should never construe an act, which does not state the intention in clear and unambiguous terms, to reach an illogical result, when it can be construed to reach a logical one. Warfield v. Chotard, 202 Ark. 837, 153 S.W. 2d 168; Ledbetter v. Hall, 191 Ark. 791, 87 S.W. 2d 996; LaFargue v. Waggoner, 189 Ark. 757, 75 S.W. 2d 235; 2A Sutherland, Statutory Construction (Fourth Edition) 37, § 45.12; 50 Am. Jur. 385, Statutes, § 377; 82 C.J.S. 540, Statutes, § 316. See also, Arkansas State Highway Commission v. Mabry, 229 Ark. 261, 315 S.W. 2d 900; Watson v. Harper, 188 Ark. 996, 68 S.W. 2d 1019; Wilson v. Biscoe, 11 Ark. 44.

Still another approach to ascertainment of legislative intent, when ambiguous, is to construe a new act in the light of analogous acts or acts in pari materia. Indian Bayou Drainage District v. Dickie, 177 Ark. 728, 7 S.W. 2d 794; Wilkin v. Special School District, 181 Ark. 1029, 29 S.W. 2d 267; Cooper v. Town of Greenwood, 195 Ark. 26, 111 S.W. 2d 452; Prewitt v. Warfield, 203 Ark. 137, 156 S.W. 2d 238; Graves v. Burns, 194 Ark. 177, 106 S.W. 2d 602; Connelly v. Lawhon, 180 Ark. 964, 23 S.W. 2d 990. See also, Smith v. Page, 192 Ark. 342, 91 S.W. 2d 281; Golden v. McCarroll, 196 Ark. 443, 118 S.W. 2d 252; State v. Fidelity & Deposit Company of Maryland, 187 Ark. 4, 58 S.W. 2d 696; Chandler v. Chandler, 211 Ark. 332, 200 S.W. 2d 508; Ross v. Rich, 210 Ark. 74, 194 S.W. 2d 297. We have said that, in construing any statute, the court should place it beside other statutes relevant to the subject and give it a meaning and effect derived from the combined whole. Boone County Board of Education v. Taylor, 185 Ark. 869, 50 S.W. 2d 241.

For the purpose of construction of such a statute, resort may be had to its relation to other laws. Ledbetter v. Hall, supra. Ark. Stat. Ann. § 19-2105 is the statute providing for vacations for firemen. It requires that each employee of a city fire department “be granted an annual vacation of not less than fifteen [15] days with full pay.” When this act is considered along with the optional additional 13 days’ vacation in lieu of “equalization pay,” the intention that this pay be consistent with that provided for vacations, regular or additional, seems even clearer. It is at least clear that the legislature recognized that there was a different standard as to vacation pay, when by Act 241 of 1971 it brought firemen into the purview of the act theretofore requiring a uniform basis for accumulation of sick leave for policemen. See Act 393 of 1969 and Ark. Stat. Ann. §§ 19-1718 — 1720. When this was done, the firemen were permitted to accumulate sick leave on the basis of “working days,” which were specifically defined by the amendatory act as “a tour of duty.” If the General Assembly had intended for the act in question to apply in the same manner, it would have defined its terms as it did in Act 241 of 1971, or it would have used the latter act as a vehicle for amending Ark. Stat. Ann. §§ 19-2108, 2109.

When all factors are considered, it seems obvious to us that the adjective “daily” modifying “rate of pay” in the act in question should be applied with the same connotation as the noun “days” in the same section of the act. The mere fact that the city has endeavored to simplify administrative pay calculations for budgeting and payroll purposes by defining a day’s pay as one-tenth of the biweekly pay instead of one-fourteenth to conform with the practice as to non-uniformed employees is not so inconsistent with the construction for which appellant contends to be given serious consideration in interpreting the governing act. Neither do we think it reasonable or logical to think the legislature intended that the city could increase or decrease holiday equalization pay by the simple expedient of changing the work shifts of firemen.

Consequently, we cannot accept appellees’ contention that in the context of the act in question, “a man’s daily rate of pay” is based entirely upon the 24-hour work shift, to the exclusion of the 48 hours between shifts, when the fireman is off duty, but subject to call. Our construction makes the terms of the act consistent with one another and with other legislation. It is also consistent with the rules of statutory construction. The construction urged by ap-pellees and adopted by the trial court is not productive of the degree of consistency desirable in construing statutes.

As a second point, appellant contends that the trial court erred in holding that firemen should be paid for 13 holidays in calendar years in which no elections are held, apparently because Ark. Stat. Ann. § 19-2108 provides that “all firemen shall be paid for the thirteen (13) Arkansas legal holidays as set forth in §§ 69-101 and 69-104.” Yet, three of these days are election days, which do not occur in odd-numbered years. Here again, we believe the circuit judge overlooked the purpose and policy of the acts, i.e., to equalize the situation of the firemen with that of employees who did not work on the specified holidays but were still paid as if they had. There is no intimation that any of these employees is not required to work in odd-numbered years on days which would have been election days in an even-numbered year. The result reached by the circuit court would result in an over-compensation rather than an equalization, because other city employees would be compensated for only 10 holidays in odd-numbered years rather than 13. The argument that firemen are to be paid for 13 holidays in every year overlooks the fact that they are to be paid for the 13 set forth in specific statutes and three of these are election days that occur biennially instead of annually. There is no indication that firemen are to be paid for holidays that do not occur. Furthermore, the language in § 19-2109, that firemen “may accept paid vacations not to exceed thirteen (13) days in any one [1] year” should be a conclusive indication that they might be paid for less but not more.

Both parties refer to Deason v. City of Rogers, 247 Ark. 1061, 449 S.W. 2d 410, on this point, but it really has no significance here. As appellees point out, this issue was not before the court in that case. It hardly could have been for the case reached this court on a demurrer to a complaint of a policeman seeking pay for the IB holidays whether he worked or did not work on the holidays. The case was remanded, and there is no holding either express or implied that the policeman was entitled to pay for 13 days each year.

The fact that Fort Smith previously allowed 13 days of vacation each year as equalization has no real bearing on the question, because an administrative or legislative determination by the officials of one city certainly is not to be accorded any significant weight in construction of a statute governing hundreds of cities and towns. There is no maximum limit on the number of days of vacation a city may allow firemen.

We likewise agree with appellant that the city is not required to give holiday equalization pay for 13 days to those firemen who did not receive paid holiday vacations prior to July 1, 1971. The circuit court held that the city could not provide for these benefits by granting days of paid vacation. Yet, some of the firemen had already been granted 13 days of paid vacation. The city provided for equalization pay for seven holidays to those who had not. The mid-year election made by the firemen would certainly be disruptive to orderly administration of the department’s financing, to say the least. But the city does not question the right of the firemen to make a new election at the time they did. Consequently, we do not have to be concerned with that question. Yet, it seems that, insofar as possible, the city could take steps to make the election applicable only for one-half the year and allow paid vacation time for all holidays to be considered in excess of the seven for which pay is being added.

We cannot agree that this issue is not before the court. It is clear that the circuit judge thought it was. In their complaint appellees asked that those firemen who had not been given 13 additional days of paid vacation be awarded a judgment in the amount of equalization pay due them. Evidence was given on the subject, without objection by appellees. The trial court in its judgment stated the opposing contentions of the parties on this issue, and we find to objection raised to this statement.

The judgment is reversed.

Byrd, J., dissenting.

Conley Byrd, Justice,

dissenting. It looks to me that when the Legislature got through enacting Ark. Stat. Ann. §§ 19-2108 and 19-2109, the firemen in the several cities of this state were entitled to be paid for 13 holidays at “each man’s daily rate of pay”, and that instead thereof, each firemen had an option to elect to take an additional 13 days vacation. Now that the majority of this court has interpreted this statute, thirteen does not mean thirteen but ten. “Daily rate of pay” is now an average wage selected by the city, and the option to receive vacation time in lieu of pay is a qualified option subject to the control of the city’s budget.

I submit that every court in this nation, except this court, that has been called upon to construe the term “daily rate of pay” or “daily wage” has calculated the “daily rate of pay” in the same manner that the trial court used — i.e., by dividing the pay received during the pay period by the number of days worked. See Carlson v. Condon-Kiewit Co., 135 Neb. 587, 283 N.W. 220 (1939), and Franklin v. J. P. Floria & Co., 158 So. 591 (La. App. 1935). Laws are designed to promote the general welfare without regard to specific and individual results.

For the reasons stated I would affirm the trial court.

      The city administrator explained that overtime was calculated on an hourly basis, because a fireman’s overtime work might be less than a full day.


author: J. Fred Jones, Justice.

text:
    Harold UTLEY et ux v. David RUFF
    73-171
    502 S.W. 2d 629
    Opinion delivered December 24, 1973

      Williams ir Gardner, for appellants.

      James K. Young, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Harold Utley and wife from a chancery court decree vesting title to a triangular piece of land in David Ruff by adverse possession. For the purpose of clarifying the issues on this appeal, the appellee Ruff is the unquestioned owner of a two acre plot of land in Pope County described as follows:

“Part of the NEM of the NWM of Section 34, Township 9 North, Range 20 West described as beginning at a point 856 North of the Southwest corner of said NEM of the NWM, run North 330 feet; thence East 240 feet; thence South 330 feet; thence West 240 feet to the point of beginning.”

The appellant Utley holds record title to land in the NWM of the NWM of Section 34 adjacent to, and immediately west, of Mr. Ruff’s land. State Highway No. 7 runs in a southeasterly direction across the east side of the NWM of the NWM of Section 34 and this litigation concerns the ownership of that portion of the NWM of the NWM lying east of the highway and between the highway and Ruff’s two acre tract in the NEM of the NWM. Utley claims it under the deed record title and Ruff claims it by adverse possession. The litigation arose when Utley built a fence along the east boundary line of the NWM of the NWM between Ruff’s described land and the highway, and Ruff filed suit in chancery for removal of the fence alleging that he had acquired title to the land between Utley’s new fence and the highway by adverse possession. Of course Ruff assumed the entire burden of affirmatively proving his title by adverse possession. The chancellor found in favor of Ruff, but on trial de novo we are of the opinion that the chancellor’s findings and decree are against the preponderance of the evidence.

There were two survey plats made and prepared by surveyor Ragsdale and one made and prepared by surveyor Orton placed in evidence. These survey plats differ as to the exact location of Highway 7 in relation to the Ruff two acre tract. Ragsdale admitted that his surveys did not accurately locate the highway in relation to the Ruff land as they were not made for that purpose. All the surveys substantially agree as to the location of the division line between the northwest of the northwest and the northeast of the northwest, so that line in relation to the highway becomes immaterial since Ruff claims by adverse possession all the land between the west boundary line of his two acre tract and the highway. The chancellor accepted the Orton survey and we see no reason to discuss the accuracy or differences in the surveys.

The law on adverse possession is well established in Arkansas, but the difficulty arises in applying the law to the facts established by evidence in a given case. The evidence in the case at bar is rather clear that Ruff’s two acre tract has never been enclosed by fence and has not been in cultivation since about 1927. It is also clear that the portion he claims by adverse possession has never been in cultivation or enclosed by fence.

Title to land by adverse possession does not arise as a right to the one in possession; it arises as a result of statutory limitations on the rights of entry by the one out of possession. Possession alone does not ripen into ownership, but the possession must be adverse to the true owner or record title holder before his title is in any way affected by the possession, and the word “adverse” carries considerable weight. With the exception of saving clauses in favor of minors and insane persons, Ark. Stat. Ann. § 37-101 (Repl. 1962) reads as follows:

“No person or persons, or their heirs shall have, sue or maintain any action or suit, either iri law or equity, for any lands, tenements or hereditaments but within seven [7] years next after his, her or their rights to commence, have or maintain such suit shall have come, fallen or accrued: and all suits, either in law or equity, for the recovery of any lands, tenements or hereditaments shall be had and sued within seven [7] years next after title or cause of action accrued, and no time after said seven [7] years shall have passed.”

This statute does not say or mean that one in possession of land for seven years thereby obtains title to it. The statute simply says and means that when one is in possession of land, no one may question his claim of ownership except within seven years after the cause of action first accrues. So in any case of adverse possession the primary questions are, when did the possession become adverse and when did the cause of action accrue. These questions have been before this court in many cases.

There is some difference between adverse possession under color of title and adverse possession where there is no color of title. The primary difference is that in the absence of color of title possession is limited to the land actually occupied (sometimes referred to as “pedal possession”); whereas in adverse possession under color of title, the actual possession, by presumption of law, is constructively limited to the instrument which provides color of title. Dierks Lbr. & Coal Co. v. Vaughn, 131 Fed. Supp. 219; Bradbury v. Dumond, 80 Ark. 82, 96 S.W. 390; 11 L.R.A. (N.S.) 772.

One of the cardinal principles of adverse possession in order that it may ripen into ownership is that the possession for seven years must have been actual, open, notorious, continuous, hostile and exclusive, and it must be accompanied with an intent to hold against the true owner. Terral v. Brooks, 194 Ark. 311, 108 S.W. 2d 489; Strieker v. Britt, 203 Ark. 197, 157 S.W. 2d 18; Montgomery v. Wallace, 216 Ark. 525, 226 S.W. 2d 551.

Culver v. Gillian, 160 Ark. 397, 254 S.W. 681, was an adverse possession case without color of title. The adverse claimant submitted proof that he put up a sign on the property forbidding trespassers from coming there; that at one time he had underbrush cleared and some of the larger trees cut down; that one year he planted some garden seed on the property, and that within the statutory period he enclosed and rented a part of the land. In holding the evidence insufficient to establish title by adverse possession, this court said:

“[T]o constitute an adverse possession, there need not be a fence or building, yet there must be such visible and notorious acts of ownership exercised over the premises continuously, for the time limited by the statute, that the owner of the paper title would have knowledge of the fact, or that his knowledge may be presumed as a fact. In other words, it has been well said that if the claimant 'raises his flag and keeps it up,’ continuously for the statutory period of time, knowledge of his hostile claim of title may be inferred as a matter of fact.
In the present case it may be said that, under the circumstances shown by the defendant himself, there has been no actual, visible, hostile appropriation of the lots, to the exclusion of the owner of the paper title, continuously for seven years. The lots were un-inclosed and unimproved. There was no actual continuous use of the lots by the defendant of such unequivocal character as to reasonably indicate to the owner that the defendant was making a hostile claim to the lots. Norwood v. Mayo, 153 Ark. 620.
The defendant claims to have gone into possession of the lots in 1907 and to have held adverse possession ever since. He describes his adverse possession, however, and it is not of such a substantial character as to give him title to the lots. At one time he had the underbrush cleared and some of the larger trees cut down. One year he planted and cultivated a few garden seed. He did nothing from that time until the suit was brought, except that, in 1917, a part of the lots were inclosed and rented. It is true that, in the beginning, he put up a sign on the lots forbidding trespassers from coming there. This of itself would not be sufficient to show adverse possession of the lots against the true owner. It is not even shown that the sign remained posted up continuously for seven years. Therefore we hold that, under his own testimony, the defendant did not acquire title to the lots by adverse possession.”

In Coons v. Lawler, 237 Ark. 350, 372 S.W. 2d 826, we pointed out that to prevail on a claim of adverse possession not under color of title one must show actual or pedal possession to the extent of the claimed boundaries, and in that case the acts of the plaintiff in constructing a septic tank, filling in a low place on the disputed strip, parking trailers on the property at irregular intervals, planting a row of trees on the property and building a boat dock, fell short of that adverse possession required for a trespasser’s claim to ripen into title.

We have also held that seasonable cultivation of patches on unenclosed and undefined lands, without color of title, is insufficient to constitute the continuous, pedal, and actual possession to the extent of the claimed boundaries for the seven years that the law requires of an adverse possessor. Hill v. Surratt, 240 Ark. 122, 398 S.W. 2d 225. See also Dierks v. Vaughn, 131 Fed Supp. 219, affirmed 221 Fed. 2d 695 and the Arkansas cases therein cited.

To constitute effective adverse possession the possession must be continuous for the full period; if there is a break in the continuity, the adverse holding before and since the break cannot be tacked in computing the period of limitations. Brown v. Hanaver, 48 Ark. 277, 3 S.W. 27; Nicklace v. Dickerson, 65 Ark. 422, 46 S.W. 945. See also Byers v. Danley, 27 Ark. 77; Pulaski County v. State, 42 Ark. 118.

As already stated, Mr. Ruff had the burden of establishing his claim of title by adverse possession, so we now examine the evidence most favorable to his claim. Mr. Ruff identified a redemption deed to his grandfather, D. P. Ruff, dated in 1896 calling for “Pt NE NW Sec. 34 Twp. 9 Range 20 — 2 acres.” He said he interited the property as the last of the family In pointing out the land in litigation from an aerial photograph, Mr. Ruff said:

“This little triangle angle right here, Northwest, Northwest, and my property runs to these trees. There is some very large old trees right here that we use to use for shade when we was working there. We use to rent it out and turned off the road and came down here and angled into that property. About where the line between the Utley property use to be the Carter place and our property joins. Angled into that over this little triangle.”

Mr. Ruff said he had always regarded the highway as his west line. He said the south, east and north sides of his property had been fenced but there had never been a fence completely around it. He said the fence along his north line came out to where the trees stopped 30 or 40 feet from the highway. He said potatoes and cotton were raised on his “little patch” until about 1927 when he went into the Navy. He said he never knew of anyone claiming the property here involved until Utley erected his fence in 1970. He said that prior to 1970 he did not know where the quarter section lines were; that the highway had been moved from its previous location but that he had always claimed his land as extending to the highway. Mr. Ruff then testified as follows:

“Q. What is the description on your redemption certificate?
A. Well, it only shows 3 acres. 34, 9, 20. Part of the Northeast, Northwest.
Q. Now, are you claiming any property of the Northwest, Northwest?
A. Yes, sir.
Q. And how did you get title to that?
A. Adverse possession.
Q. And I take it you never had any deed or any other evidence of title?
A. No, sir.
Q. Have you fenced that property?
A. No, sir.
Q. You didn’t fence it along the edge of the road?
A. No, sir, Mr. Utley did that for me.
Q. Well, was there ever a fence running on your property line that would be your west property line?
A. Not tó my knowledge.
Q. You don’t recall any?
A. I don’t recall any fence being on the west side of our property.”

Mr. Ruff said he had two surveys made of his property and both surveys found his southwest comer to be in the highway. He said his two acre tract was located in the northeast quarter of the northwest quarter and he did not claim any property in the northwest of the northwest except the little triangle by adverse possession.

“[W]e just went across it, in an out of the property, as a good, easy natural place coming down from Dover with equipment. That was the first place you approached the property, and we just angled off the road into it by those big trees.”

Mr. Lawrence Campbell testified that he is 78 years of age and has been familiar with the Ruff land for about 60 or 70 years. He said he attempted to purchase the property at one time from Mrs. Elizabeth Ruff but she could not make up her mind about selling it. He said he always assumed the Ruff family owned the property, and never did hear of anyone else claiming it. He said he never did know where the property lines were located; that he didn’t get that far along in his negotiations with Mrs. Ruff to inquire as to the property lines; that he assumed the Ruff property extended west to the highway, but never did hear anyone claim one way or the other as to the property lines.

Mr. Newton Powers testified that about 1920 the Ruff two acres was planted in sweet potatoes. He said he plowed the potatoes up and stored them in working out a doctor’s bill he owed to Mrs. Ruff’s brother. He said he never heard of anyone claiming title to the land involved, and did not hear of Ruff claiming title to it until the past few days.

John Page testified that he was the administrator of the Carter estate (Utley’s grantor); that he never did know the exact location of the south line of the Carter property, but knew that Ruff claimed some property south of the Carter property. He said he also tried to purchase the property from Mrs. Ruff for a filling station. He said he understood that the Ruff property extended to the road but that he didn’t know where the lines were and that he doesn’t remember Mrs. Ruff telling him it extended to the road.

County Judge Grant testified that he was originally in the real estate business and had an open listing to sell all of Mr. Ruff’s land. He said he had one prospective purchaser for the land here involved, but after a survey by Mr. Ragsdale indicated that about half of the property fronted on the highway, the prospective purchaser refused to buy, because he wanted all the highway frontage.

Chancellor Richard Mobley testified that in 1961, before he was elected chancellor, he represented the Carter heirs in partitioning their property, a part of which was later sold to the appellant Utley. He said he had also represented the Ruffs from time to time and it was his understanding that both the Utley land and the Ruff two acres were bounded on the west by Highway 7. He said he never did hear of anyone making claim to any property east of the highway adjacent to the Ruff property. He said he prepared the deed of conveyance from. Carter to the appellant Utley and included in the description: “All of the Northwest quarter of the Northwest quarter of Section 34, Township 9 North, Range 20 West, lying East of State Highway 7.” He said there was some question as to the exact acreage owned by the Carters and this description was included in the deed to make sure that Utley would receive everything the Carters owned. He said he prepared the deed from the description in the abstract of title and the name “Ruff” was not mentioned in the abstract.

Mr. Ragsdale testified that he made a survey of the Carter land as testified by Chancellor Mobley but his testimony adds nothing in support of adverse possession of the land here involved. He did say the property was grown up in bushes and trees and did not appear to have been in use for a long time.

Mr. Ruff, on recall, testified that he had paid taxes on two acres in the northeast of the northwest since 1896. He said that when he went into the Navy in 1927, the two acre tract had been in cultivation as far back as he could remember. He then testified as follows:

“Q. When did you go in the navy?
A. January 22, 1927.
Q. Did you cultivate it?
A. Yes, sir.
Q. What crops did you raise on it?
A. Cotton.
Q. How far out did you come? Did you come to the road?
A. No, we came to the big trees that is setting just about on that quarter section line on the west side of our property. This little triangle that continues out to the road, we merely used that to go in an out of the property.
Q. Is that where you parked your team?
A. That’s right. Not only myself, but the renters that we rented that land in successive years. There is one particular large tree there and they parked their team and wagon when we were chopping cotton and picking cotton. We would take the teams there with a cultivator and cultivate it.
Q. But for a period of ten to fifteen years this was in cultivation?
A. More than that I’m sure.
Q. By cultivation, do you mean row crops?
A. Cotton and potatoes that I know of. Dr. Truette, my second uncle, rented it for many years from my grandmother and planted sweet potatoes in there.
Q. Is that the sweet potatoes Mr. Powers was talking about?
A. That’s correct. He worked it with day labor to collect some of his fees. The farmers owed him money and they would come in and do the work.” (Emphasis added).

Mr. Utley testified that he purchased and claims the property here involved in the northwest quarter of the northwest quarter of the section. He and surveyor Orton testified that the property was grown up in trees, vines and undergrowth to the extent that a bulldozer was employed for the purpose of clearing the property line for the purpose of a survey. The both testified they found an old fence row consisting of some posts and old wire running north and south for some distance from the north line of the property and about ten feet west of the true boundary line between the northeast quarter and the northwest quarter of the section. Mr. Utley said he built his fence on the true boundary line as established by Or-ton’s survey. We cannot say that the chancellor erred in accepting Orton’s survey as establishing the true division line between the northwest quarter and the northeast quarter of section 34 here involved.

The record indicates that the chancellor may have viewed some of Utley’s testimony as to his own exercise of dominion and rights of ownership over the property involved with considerable skepticism and for good reason. But the burden was on Ruff to prove his own title by adverse possession as previously defined in the decisions, supra. Mr. Ruff recognized his burden in this regard and readily assumed it, but as we view the record, he fell far short of proving adverse possession. He simply proved by several witnesses that they assumed his land extended west to Highway 7 and had never heard anyone claim that it did not. According to Mr. Ruff’s own testimony, he had always considered the highway as being the west boundary of his two acre tract. His testimony was straightforward and carries the ring of truth, but it falls far short of the proof required. He simply says in substance that his two acres in the northeast of the northwest were in cultivation prior to 1927 and the workers, while attending crops on the land, parked wagons and ate their lunches under a tree on the edge of the property here involved. He denied knowledge of any fence ever existing north and south on the west side of his property and said that he only used the property here involved in gaining access to the two acres in cultivation. Of course, use of a passageway over property of another does not affect title to the property outside the passageway and by the same token, the right to a passageway over the property of another is not dependent upon adverse possession of all the property over which the passageway extends.

As already pointed out, for Mr. Ruff to have prevailed in this case, it would have been necessary for him to have proven actual acts indicating his claim of ownership in the possession of the land involved, otherwise the true owner would never know that anyone was claiming adversely and the true owner’s cause of action would not accrue until he did have actual or constructive knowledge or notice that his land was being claimed by another. The possession in order to ripen into ownership must be actual, open, notorious, continuous (for seven years), hostile, exclusive, and accompanied by an intent to hold against its true owner.

The decree is reversed.

Harris, C.J., not participating.


text:
    Tommy DAIL, a/k/a Tommy DALE v. STATE of arkansas
    CR 73-133
    502 S.W. 2d 456
    Opinion delivered December 24, 1973

      John R. Henry, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Tommy Dale was convicted at a jury trial for selling marijuana. He was sentenced to three years in the Arkansas Department of Correction and fined $500 with the fine suspended. On appeal to this court he contends that the trial court erred in admitting into evidence a plastic bag containing vegetable material identified by a witness as marijuana. He also contends that the trial court erred in failing to grant a mistrial when the prosecuting attorney elicited from the state’s witness, Ron Rutledge, testimony to the effect that Tommy Dale had committed other crimes. We find no merit in either contention.

William Ronald Rutledge, an undercover police officer, testified that he purchased a "lid” of substance represented to, and believed by, him to be marijuana from Tommy Dale. He said that when he first met Mr. Dale, Dale informed him that he had access to a quantity of drugs. He said that after his first conversation with Dale he returned later and was told by the appellant Dale that he dealt in pounds of marijuana and did not deal in “lids.” He described “lids” as being plastic bags containing approximately one ounce of marijuana. He said that further discussion of marijuana with Dale resulted in Dale opening a suitcase containing about 20 or 25 bags of what appeared to be marijuana. He said that Dale handed him a plastic bag containing a subr stance which he believed to be marijuana and be handed Dale $15 in payment. He said he called Sergeant Silvey and delivered the bag with its contents to him. He said the bag was closed by a rubber band wrapped around it; that he placed his label on the bag when he delivered it to Silvey; that the bag offered into evidence was the same bag he purchased from Dale and the contents of the bag appeared to be the same.

Sergeant Silvey testified that he was familiar with the appearance of marijuana; that Rutledge delivered the bag to him and that the bag contained what appeared to be marijuana. He said he placed the bag with its contents in a locked filing cabinet in the police headquarters building and that he, together with Captain Walker and Lieutenant Smith were the only officers in the department having keys or access to the cabinet. He said that he and Captain Walker removed the bag from the locked cabinet and took the bag with its contents to the laboratory in Little Rock for analysis. He said Lieutenant Smith was present when the bag was removed from the filing cabinet; that the bag still had the rubber band around it, together with the label, and that it had not been altered in any way before he and Captain Walker took it to the laboratory for analysis. He said he was with Captain Walker when Captain Walker handed the package to the chemist at the laboratory in Little Rock. Sergeant Silvey’s testimony was corroborated by Lieutenant Smith and the testimony of Captain Walker. Manuel Holcomb testified that he received the plastic bag and contents offered in evidence from Captain Walker on November 21, 1972; that he kept the bag and contents under lock and key in the storeroom at the laboratory until he made an analysis of the substance in the bag on November 22. He said the chemical analysis showed the substance in the bag to be marijuana, and this witness identified the package and contents offered in evidence as being the same he received from Captain Walker. The chain of possession was well preserved under the evidence in this case and we find no merit in the appellant’s first contention.

As to Dale’s second contention, relative to the testimony of Rutledge on redirect examination, the record appears as follows:

“Q. I believe, you testified that he mentioned, that Tommy Dale mentioned that he had other drugs?
A. Yes, sir.
Q. But I don’t believe you, did he mention what specific drugs he had?
A. Yes, sir. He did.
Q. Tell the jury what he said? ,
A. He mentioned cocain and RJS’s, which, and marijuana and hash.
Q. Cocain, hasish—
A. Cocain, hash, marijuana.
MR. PARKER: You may ask.
THE COURT: You may be excused. (Witness excused)
(Note: Conference at bar of The Court.)”

This testimony was then followed by the testimony of Sergeant Silvey, Lieutenant Smith and Captain Walker. After these three witnesses had finished their testimony, the appellant moved for a mistrial and stated his reasons therefore as follows:

“During the State’s re-cross or re-direct examination of the witness, Ron Rutledge, the State elicited testimony that the defendant, Tommy Dale, was in possession of other and had possessed other narcotics, which narcotics, which drugs were named by the witness on the witness stand and in the presence of the jury. At that time, the defendant moved for a mistrial on the grounds that the testimony elicited from the witness Rutledge was not elicited for proof of the allegations set forth in the Information, but for proof of other crimes which are not admissible, which the only purpose for the elicitation of said other crimes was to show that the defendant was a man of bad character, addicted to crime. The defendant would move The Court to declare a mistrial at this time, based upon the Arkansas Supreme Court decision, Sweatt versus State, reported in 473 S.W. 2nd, 913.”

The state resisted the motion on the ground that the statement attributed to Mr. Dale, was a part of the res gestae or facts and circumstances surrounding the sale of the marijuana, wherein the defendant at the time stated he was interested in the sale of pounds and not “lids” of marijuana, and that it did not constitute separate offenses as was the situation in Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913, relied on by the appellant. The state also opposed the motion because the testimony was hot timely objected to. The trial court overruled the motion for a mistrial and stated that in the court’s opinion the Sweatt case and the rule announced therein were distinguishable on the facts from the case being tried, and that the holding in the Sweatt case was not applicable. We agree with the trial court.

In Sweatt v. State, supra, the defendant was charged with selling or bartering LSD, a hallucinatory drug, to Robbie White, a 14-year-old boy. Robbie White testified that he bought one LSD tablet from Sweatt for $3.00 on credit and that Sweatt told him the strength of the tablet was 300 micrograms. White testified that after taking the tablet it caused him to “go on a trip”; that his vision was “messed up” and couldn’t do things right and felt dead. We held that the jury was justified in concluding from this testimony that Sweatt said the tablet was LSD and in fact it was. In the Sweatt case, however, the facts are distinguished from those in the case at bar in the following language:

“Upon the second point the appellant is right in his contention that the court erred in permitting the State to prove other offenses committed by Sweatt. The court allowed the prosecution to introduce much testimony showing that Sweatt had had marijuana at his apartment and had sold it. In fact, as in Moore v. State, 227 Ark. 544, 299 S.W. 2d 838 (1957), the other offenses were proved in more detail than was the charge actually being tried.”

In Sweatt we then reiterated the basic rules stated in Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954), as follows:

“‘The State is not permitted to adduce evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and is therefore likely to be guilty of the charge under investigation. In short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime.’”

We are of the opinion that the evidence objected to in the case at bar falls more within the rule announced in Davis v. State, 182 Ark. 123, 30 S.W. 2d 830, and cases therein cited. Davis and another, were charged with murder in the perpetration of robbery. The victim Weed was killed about 8 o’clock and a witness was permitted to testify that at a time before 8 o’clock and at a place near the scene of the homicide, he was robbed by the appellants and that they were armed. In that case we said:

“The testimony was, therefore, competent to show the business in which appellants were engaged that night, and the probable purpose for which they went to Weed’s place of business soon thereafter.
It is well settled that if testimony tends to prove the commission of the crime charged in the indictment, it is not to be excluded because it also tends to show the commission of another or different crime.”

The testimony objected to in the case at bar was not independent testimony of separate crimes committed by the accused, but was testimony of the witness as to what products the accused said he had available, after which the witness elected to purchase the marijuana. We are of the opinion that the evidence was admissible in the context given and the trial court did not err in refusing Dale’s motion for a mistrial. Having reached this conclusion we do not pass on the matter of timely objection argued by the state. However, in Powell v. State, 231 Ark. 737, 332 S.W. 483, we said:

“[A]n objection to be effective must be made at the first opportunity to do so, or appellant must move for exclusion. See Clardy v. State, 96 Ark. 52, 131 S. W. 46. At any rate, because of the delayed objection, the matter of granting a mistrial was in the sound discretion of the trial court and its action will not be reversed unless an abuse of that discretion is shown.”

In the case at bar, we are of the opinion that the appellant’s second contention is without merit for the reason that the evidence was simply a part of Dale’s offer of the drugs he had for sale and did not amount to testimony of other criminal acts.

The judgment is affirmed.

Harris, C. J., not participating.