text:
    Kratz v. Mills
    5-3812
    402 S. W. 2d 661
    Opinion delivered May 16, 1966

      Martin K. Fulk, Cooper Jacoway, for appellant.
    if. B. Stubblefield; Rose, Meek, Rouse, Barron, Nash & Williamson; Gregory & Clay comb, and Wright, Lindsey & Jennings, for appellee.
   Guy Amsler, Justice.

This is an appeal by Claire B. Kratz and Claire Knighten Lake (plaintiffs below) from a summary judgment.

Twin City Development Company was incorporated in 1915 and purchased property in Pulaski County, Arkansas. In 1923, the corporate charter was forfeited for failure to pay franchise taxes to the State of Arkansas. According to the corporation stock book, 200 shares of Twin City stock were outstanding. The stockholders at the time of forfeiture were Charles H. Miller, 25 shares; A. C. Butterworth, 25 shares; Ben. J. and M. L. Altheimer, 50 shares; C. G. Price, 25 shares (later transferred to Altheimer by certificate number 19 dated November 19, 1924); Southern Trust Company and American Southern Trust Company, 75 shares. The interest of Southern Trust Company and American Southern Trust Company was acquired by G. B. Oliver, Jr. when he purchased the assets of the bankrupt trust companies in the middle or late nineteen hundred thirties. Appellee Mary C. Oliver became the owner of these shares when her husband, G. B. Oliver, Jr., departed this life in December of 1958.

The original stock certificate (No. 12) for 25 shares-issued to A. C. Butterworth and dated April 9, 1915, is-appended to the stock book and bears this notation r' “Transí, to certificate number 20—J. I. Trawick, one', share. Transí, to certificate number 21—A. C. Butter-worth, 24 shares.” Certificates numbered 20 and 21 are not available but the stubs of these, dated February 2,1927, bear the signatures of Trawick and Butterworth. Attached to the stub of certificate number 20 is a type-, written receipt signed by J. K. Riffel which reads:

“Received certificate number 20 of the Twin City Development Company for one (1) share, this 24 day of March, 1927.”

A similar receipt by Riffel is attached to the stub of certificate number 21. Riffel was a local attorney whose connection with Twin City or the stockholders is not shown by the record.

Butterworth moved to St. Louis, Missouri, in 1927, and lived there until his death in 1947. The appellant Claire B. Kratz is his only living child and appellant Claire Knighten Lake, a granddaughter, is his only other living heir. They both live in California.

Ben J. Altheimer died on May 29, 1946. During his lifetime he created “The Ben J. Altheimer Foundation” and in the course of the administration of his estate questions arose as to which assets went to the foundation and which belonged to the estate. These differences resulted in litigation which delayed closing the administration of his estate until September 12, 1950.

On some uncertain date, subsequent to September 12, 1950, the Altheimer people learned that Ben J. Altheimer at the time of his death owned an interest in some Pulaski County property by virtue of having been a stockholder in the Twin City Development Company. The property had greatly increased in value following the depression years of the early nineteen hundred thirties.

There appears to have been no dispute regarding the Altheimer ownership in Twin City. However, a disagreement arose as to whether the Altheimer interest in the Twin City property belonged to the foundation or to the Altheimer estate. Protracted litigation, which was terminated in October of 1961, ensued. Appellants Kratz and Lake were not parties to this litigation, which arose in Jefferson County, Arkansas, and ended in this court. Selig v. Morrison, 230 Ark. 216, 321 S. W. 2d 769; Selig v. Barnett, 233 Ark. 900, 350 S. W. 2d 176.

The records before us are rather devoid of information regarding Twin City activities from 1923 until 1949. The amount of taxes paid on the Twin City land is shown, but who made these payments is not clear. During the period 1949-1951 Twin City conveyed, by corporate deeds, several parcels of its land. Appellee Mary C. Oliver executed the deeds as secretary of the corporation while G. B. Oliver, Jr. is shown as president. Just when the corporation was revived or reactivated, if ever, is not shown by the record.

Again the records are not definite, but apparently during the early part of 1953 the Olivers, Millers and the Altheimer representatives became desirous of partitioning what remained of the Twin City lands. They were aware, and had been all along, of what the stock book showed regarding the shares issued to Butter-worth.

They must also have known that appellant Kratz was an heir of Butterworth because on July 31,1953, the attorney for the widow of C. H. Miller addressed a letter to her at 1615 Lasnen Road, Santa Barbara, California, making inquiry regarding the Twin City stock issued to Butterworth. Having received no reply to that communication the attorney wrote Mrs. Kratz again on September 22, 1953. During the succeeding four or five weeks the attorney for Miller and Mrs. Kratz personally corresponded with the Guaranty Trust Company of St. .Louis, which was understood to be handling the Butter-worth estate. The Trust Company had no information! regarding the Twin City stock certificate and neither did Mrs. Kratz.

Within a reasonably short time after the exchange of these communications Mrs. Kratz employed local counsel who discussed the problem with the attorneys for Miller and Altheimer. In the course of these negotiations, probably during late 1953 or early 1954, the attorney for Miller informed the attorney for Mrs. Kratz that they (the attorneys for Miller and Altheimer) had decided to file partition proceedings in the Pulaski Chancery Court so that all the parties, including Mrs. Kratz, could present their claims. This procedure was approved by the Kratz attorney. The affidavit of her attorney regarding this assurance stands undisputed. Mrs. Kratz was advised of such proposal by her attorney and gave her approval.

In January of 1959, neither Mrs. Kratz nor her attorney had heard anything further concerning the proposed litigation and an inquiry to Miller’s attorney revealed that the plan to seek partition through the Chancery Court had been abandoned. In lieu of such suit the Miller heirs had sold and conveyed their interest in the Twin City lands to Altheimer and then the owners of the Altheimer and Oliver interests had effected partition through an exchange of deeds. An investigation revealed that the exchange of deeds had taken place in. 1955.

The deeds were dated July 18, 1955, although not recorded until March 19,1956. The information obtained by her attorney, through the attorney for Miller, and the recorded partition (or division) deeds were the first notice to appellant Kratz that the others who claimed to ■own stock in Twin City were claiming adversely to her.

Certain recitals in the deed from appellee Mary C. 'Oliver and her husband G. B. Oliver, Jr. to the Altheim■er and Miller representatives are of especial significance in disposing of the issues on appeal. Following a description of the property conveyed is this wording:

‘ ‘ The above described property is part of the land acquired by the Twin City Development Company, an Arkansas Corporation, in two deeds, one dated March 15,1915, and recorded in Record Book 19, at Page 112 and the other dated March 20, 1915, and recorded in Record Book 119, at Page 111 in the office of' the Recorder of Pulaski County, Arkansas. The said corporation’s authority was revoked on April 23, 1923, for failure to pay the Arkansas corporate franchise tax, but G. B. Oliver, Jr., and Mary C. Oliver, his wife, continued thereafter to act as trustees in managing the property in the interests ■of the stockholders. An investigation of all available records, including the stock book of the corporation, shows that all of the issued stock of the corporation has been purchased as treasury stock except the following :
75 shares owned by G. B. Oliver, Jr., and Mary C. Oliver
75 shares owned by the trustees of the Estate of Ben J. Altheimer
25 shares owned by the heirs of Charles H. Miller, being namely his wife, Edna Ward Miller, and two daughters, Anne Charlene Miller O’Hair and Edna Ward Miller Howell.
“This deed is executed in consideration of the sum of $1.00 and in consideration of the agreement of the above named persons to partition the remaining lands owned by them as the sole remaining stockholders of the Twin City Development Company, it being the intent of the parties and the purpose of this deed to partition the lands to separate the three-sevenths interest owned by G. B. Oliver, Jr., and Mary C. Oliver from the four-sevenths interest owned by the Altheimer Estate and the heirs of Charles H. Miller.”

Upon receipt of the information set forth immediately above and on advice of her attorneys Mrs. Kratz, on June 16, 1960, filed the present suit.

Appellant Kratz sued Charlotte Mills and others as trustees of the estate of Ben Altheimer, the widow and heirs of Charles H. Miller, Mary C. Oliver, widow of G. B. Oliver, Jr. and certain grantees in the corporate deeds previously mentioned as having been executed (during 1949-1951) by the Olivers as officers of the corporation. The last group was later dismissed as defendants and those remaining are the appellees herein. The complaint in finality prayed for cancellation of the deeds between the various Twin City interest holders; that appellant Kratz be declared to have a 12%% interest in the lands; that the remaining lands be partitioned and the part belonging to appellant be set aside to her; and that Mary Oliver be required to account for money received by her and her late husband for Twin City property they conveyed as purported corporate officers. Separate answers were filed by the Altheimer, Miller and Oliver interests denying generally the allegations of the complaint and setting up by 'way of affirmative defenses the statutes of limitations and non-claim ; estoppel; laches; waiver and abandonment.

Motion for summary judgment was filed by the defendants based on the affidavit of and answers to interrogatories by Mary C. Oliver; the deposition of Mrs. Kratz; tlie affidavits of attorneys for Kratz, Altlieimer and Miller; copies of tlie conveyances herein referred to and of communications between the attorney for Miller, Mrs. Kratz, her son (Ben Boren) and the Guaranty Trust Company of St. Louis. Thereafter and before summary judgment was granted, Claire Knighten Lake was permitted to intervene as an heir of Butterworth and adopt Mrs. Kratz’ pleadings and prayer for relief.

Appellants rely on one point for reversal, which is: “The Court erred in granting to appellees a summary judgment because this case presents unresolved issues of material fact; and the court failed to resolve the doubts against the party moving for summary judgment. ’ ’

Appellees contend that any one of 6 grounds independently and standing alone, is sufficient to uphold the chancellor’s action. They are listed as:

(i) There is no proof whatever that A. C. Butterworth owned stock in Twin City at the time of his death on November 5, 1947.
(ii) Neither A. C. Butterworth nor appellants paid or offered to pay taxes and special assessments on the lands in question.
(iii) After the fullest possible disclosure to appellant Mrs. Kratz and her representatives in 1953 no action whatever was taken by her until the filing of this suit on June 16, 1960, and no action whatever was taken by appellant Mrs. Lake until she filed her intervention on December 22, 1964, after the filing of the Motion for Summary Judgment.
(iv) Appellants sat by and permitted numerous conveyances for valuable consideration to be made.
(v) Appellants sat by and permitted protracted, vigorously contested and very expensive litigation to be carried on with reference to the title to the lands, Selig v. Morrison and Selig v. Barnett.
(vi) No claim was filed or presented by A. C. Butterworth or any person claiming under him against the estates of Ben J. Altheimer or G. B. Oliver, Jr.

The pleadings, exhibits, and contentions of the parties have been set forth at considerable length in order to obviate the necessity for a lengthy review of the summary judgment law and cases bearing on its use. Our summary judgment procedure, adopted in 1961 [Ark. Stat. Ann. § 29-211 (Repl. 1962)], is a salutary measure, designed to prevent unnecessary trials where the record shows that there is no genuine issue of fact to be litigated. It was taken largely from Rule 56 of the Federal Rules of Civil Procedure.

There are numerous Federal and State cases dealing with the use of this extraordinary remedy. The rationale of those holdings is that summary judgment will be granted only if there is no genuine issue of fact to be decided and the burden rests on movant to demonstrate that no justiciable fact issue exists. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89; Epps v. Remmel, 237 Ark. 391, 373 S. W. 2d 141; Universal Life Ins. Co. v. Howlett, 240 Ark. 458, 400 S. W. 2d 294.

We are of the opinion that under our often announced rule the case at bar presents unresolved questions of fact which appellants are entitled to have resolved by the trial court.

No useful purpose would be achieved by pointing out in this opinion all issues of fact that could and may arise on trial of this cause. At the threshhold of this controversy the court is confronted with a determination of whether Butterworth owned stock in Twin City, Facts shown in the record establish prima facie ownership in Butterworth and this alone presents a fact question on which the trial judge is obliged to pass.

It was conceded by appellees that when the Twin City charter was forfeited the stockholders thereupon occupied the relation of co-tenants and if it should be determined that Butterworth owned stock in the corporation at the time it became defunct then the defenses of laches, statutes of limitations and others asserted by appellees become questions of fact that must be resolved by the trial court. 19 Am. Jur. 2d, Corporations, § 1660; Jamison v. Henderson (1934) 189 Ark. 204, 71 S. W. 2d 696.

Reversed and remanded.


source: Caselaw Access Project

author: Gtjy Amsler, Justice.

license: Public Domain

text:
    Brown v. Masterson
    5-3861
    402 S. W. 2d 666
    Opinion delivered May 16, 1966

      Bale L. Bumpers, for appellant.

      Wayland A. Parker, for appellee.
   Gtjy Amsler, Justice.

The very able chancellor in his opinion on this case seems to have adequately recited the pertinent facts as follows:

“Plaintiffs allege that on April 3, 1891, Sarah A. Jamison received U. S. Patent under Homestead Certificate No. 5622 to the following lands in Greenwood District of Sebastian County, Arkansas, to-wit:
Lot Three (3) of the Northwest Quarter (NW%) of Section Five (5), Township Eight (8) North, Range Twenty-nine (29) West, containing 111.54 acres.
“Said Sarah A. Jamison married James Larkin Steele, who died intestate in the year 1916. Thereafter, she married R. M. Floyd, and after they married she and her husband conveyed the following lands to Jess and Ellen Broughton, to-wit:
A plot of land containing 11.54 acres in the Northwest Quarter (NW%) corner of Section Five (5), Township Eight (8) North, Range Twenty-nine (29) West, this plot of land runs two (2) acres wide from North to South and running West and East a distance sufficient to contain 11.54 acres.
“Sarah A. Steele Floyd died intestate December 17, 1939, leaving as her sole and only surviving heirs at law: R. M. Floyd, Rose Mae Barber, Fred Steele and Jessie Steele, Ellen Broughton, Eaph Steele and Mrs. Eaph Steele, Nora Ada Brown, Amy Cupp, James M. Steele and Mrs. James M. Steele.
‘ ‘ Thereafter, Rose Mae Barber died as Rose Mae Barber in 1960, leaving her surviving the following named heirs: Bill Freeman, Clyde Barber and Lucille Barber, Jim Barber and Evelyn Barber, Ruby Francis, William Barber and Sue BaT-ber.
“That the said son, Fred Steele, died April 10, 1945, leaving him' surviving: Jessie Steele, Madge Steele, James Larkin Steele, and Mrs. James Larkin Steele.
"That the said Ellen Broughton died November 2, 1962, leaving the following surviving heirs at law: Jess Broughton, Nora Jones, Letha Hobbs, Bill Broughton and Para Lee Broughton, Florence Hobbs, Mary Elkins.
"Said lands were assessed in 1952 for $200.00, the taxes on which was $9.00, and was assessed as follows:
"J. M. Steele, Lots 2-3, NW%, 5-8-29.”
"Said taxes were not paid when due and said lands were sold on November 9, 1953, for the delinquent taxes and subsequently certified to the State, December 28, 1955.
"On January 8, 1957, the defendant, Jim Master-son, purchased said lands from the Commissioner, and received a State deed, which is recorded in Deed Book 121 at page 186, under the following description:
Lots 2-3 NW% 5-SN-29W 96.57 acres.
"Thereafter, Jesse Steele, widow of Fred Steele, deceased, conveyed by quit claim deed the following lands, to-wit:
Lot 3 of the Northwest Quarter of Section 5, Township 8 North, Range 29 West, except a parcel in the Northwest corner thereof which runs 2 acres wide from North to South and running West to East a distance sufficient to constitute 11.54 acres,
to Jim Masterson.
"On June 30, 1964, James M. Steele, a single man, conveyed by quit claim deed to Nora Ada Brown the following- described lands:
Lot 3 in the Northwest Quarter of Section 5, Township 8 North, Range 29 West except a parcel in the Northwest corner thereof which runs two acres from North to South and West to East a distance sufficient to constitute 11.54 acres.
“Plaintiffs contend that the sale to the State of Arkansas, and the subsequent conveyance to Jim Masterson is void for 9 separate reasons as set out in paragraph 12 of their complaint.
“Plaintiffs offer to reimburse the defendants for all taxes, penalty and interest paid and incurred by them. ’ ’

The trial judge continued:

“The defendants filed an answer denying all allegations except the purchase of said lands from the State of Arkansas on the 8th day of January, 1957, and further allege that after said purchase, they immediately took possession of said lands and that said possession on their part as being continuous, peaceful, open and notorious, adverse and under color of title. That they have so used and occupied said lands and paid the taxes thereon for more than 7 years last past. The defendants further allege that said sale to the defendants from the State of Arkansas, was confirmed by the Chancery Court in and for the Greenwood District of Sebastian County in the year 1957.
“They pray that the complaint of plaintiff be dismissed for want of equity and that title be quieted in them.
“Thereafter, and on October 6, 1964, the defendants filed an amended answer in which they plead the protection of Ark. Stat. Ann. § 34-108 (Repl. 1962).
“The defendants further allege that during their possessive years, they have improved said lands in the amount of $3,000.00, and ask for betterments under the provision of Ark. Stat. Ann. § 34-1420 (Repl. 1962).
“Thereafter, on October 14, 1964, the plaintiffs filed an amendment to their petition to show that Pauline Wilson was a surviving heir of Ellen Broughton, changed the name of Florence Hobbs to Florene Hobbs and supplemented paragraph 12 as follows: (j) That the aforesaid lands were erroneously assessed since lots 2 and 3 contained 191.54 acres of land and the tax assessed thereon was almost double the taxes due.”

The chancellor then concluded:

“Plaintiffs contend and list the issues as follows:
(1) Was the tax sale to the State of Arkansas void?
(2) Are plaintiffs barred by the Statute of Limitations ?
(3) Bid confirmation cure the sale if originally void?
(4) If the sale was void, and confirmation did not cure the defects, do defendants own the property by adverse possession?
“To sustain their position, plaintiffs rely upon the provisions of Ark. Stat. Ann. § 84-1102 (Repl. I960) et seq. These statutes provide that the clerk attach a certificate at the foot of the record, stating the name of the newspaper in which the delinquent list was published and the date.
“Ark. Stat. Ann. § 84-1118 (Repl. 1960) provides a limitation of two (2) years from date of sale for any contest to be filed.
“Ark. Stat. Ann. § 34-1419 (Bepl. 1962) provides as follows:
“No action for the recovery of any lands, or for the possession thereof against any person or persons, their heirs and assigns, who may hold such lands by virtue of a purchase thereof at a sale by the collector, or commissioner of State Lands, for the nonpayment of taxes, or who may have purchased the same from the State by virtue of any act providing for the sale of lands forfeited to the State for the nonpayment of taxes, or who may hold such land under a donation deed from the State, shall be maintained, unless it appears that the plaintiff, his ancestors, predecessors, or grantors, was seized or possessed of the lands in question within two (2) years next before the commencement of such suit or action, and it is hereby intended that the operation of this act shall not be retroactive.
‘ ‘ The defendants rely upon this statute, and cases construing the same as a complete bar to plaintiffs5 recovery.
“The only witness for plaintiffs, Nora Ada Brown, traced the history of the Steele family and further testified that neither she nor any of plaintiffs had ever been in possession of said real estate.
‘ ‘ The above is a statute of limitations and one holding lands under a State Deed adversely for the statutory time, title is vested regardless of a defect in the tax sale. Honeycutt v. Sherrill, 207 Ark. 206, 179 S. W. 2d 693; Terry v. Drainage District No 6, Miller County, 206 Ark. 940, 178 S. W. 2d 857.
“Plaintiffs contend, however, that (1) this is not a suit for the recovery of lands hut to remove a cloud on the title, and (2) that said lands were sold under a void description.
“.Tim Masterson testified that he took possession of these lands in 1957 and leased to Tom White for pasture purposes, for $40.00 per year. He has a quit claim deed from Jessie Steele, that he expended about $1,200.00 to $1,500.00 in improvements.
“While plaintiffs couch their complaint in terms calculated to lead one to believe that it is a suit to cancel a deed and remove a cloud from the title, it is in fact a suit to recover land. If the plaintiffs rely on their theory they are faced with the same issue.
“To remove a cloud from a title, plaintiff must show that he is in possession of the land * * * A Chancery Court cannot remove a cloud where plaintiffs assert a legal title and defendants are in possession since there is a complete and adequate remedy at law. Rowe v. Allison, 87 Ark. 206, 112 S. W. 395. In a suit such as this one, plaintiffs must succeed, if at all, on strength of their own title, and cannot rely on weakness of his adversary’s title. Sanders v. Baker, 217 Ark. 521, 231 S. W. 2d 106; Crow v. Johnson, 209 Ark. 1053, 194 S. W. 2d 193.
“In Lumsden v. Erstine, 205 Ark. 1004, 172 S. W. 2d 409, 147 A. L. R. 1132, the Supreme Court of Arkansas held after the lapse of a year from confirmation pleadings under Act 119 of 1935, all irregularities and defects are cured except those that go to the power to sell * * *. ‘Power to sell’ requires concurrent existence of a valid law, lawful tax, legally assessed and levied on land liable to the tax, and the owner fairly in default. This case is also authority for the proposition that a void description defeats the power to sell, and confirmation proceedings cannot cure this defect. The land involved in the instant case was sold under the description J. M. Steele, lots 2-3, (NW1 234/^, 5-8-29). Under the controlling cases this is not a void description and fairly places the landowner on notice that his property lias been sold for taxes even though lot 2 did not belong to the landowner.”

"We think the findings and conclusion of the Chancery Judge are supported by a preponderance of the evidence and that he has correctly applied the controlling legal principles and that the record contains no error.

Affirmed.

Bland, J., not participating.

George Bose Smith, J., concurs.


author: Hugh M. Bland, Justice.

text:
    Carson v. Hercules Powder Co.
    5-3898
    402 S. W. 2d 640
    Opinion delivered May 16, 1966
    [Rehearing denied June 6, 1966.]

      Cecil C. Matthews, Macorn & Moorhead, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Hugh M. Bland, Justice.

This is a suit seeking injunctive relief and damages. The record is voluminous, containing 375 pages of testimony. The facts are substantially as follows.

Appellant, Kelsey Carson, is a commercial fisherman and has fished approximately a 30-mile stretch of Bayou Meto, a non-navigable stream, since 1927. He claims to have permission of the riparian owners along this stream, mostly oral permission with the exception of a written agreement with one Nelson Crum. Since 1951 he has lived on the bank of the stream in his own house located on the farm of W. "W. Walton. He does not own any land but has an oral agreement with Walton to live on his land for the rest of his life. Although he lists the riparian owners with whom he has permission to fish, the record does not disclose actual ownership of the land by them. The appellant sells fish commercially in wholesale lots of from 2,000 to 3,000 pounds. He was required to obtain from the Arkansas Game and Fish Commission, in addition to the regular fishing license, a hoop net and wings license at an annual cost of $260.00.

Appellant claims that the appellee, Hercules Powder Company, in the operation of its plant near Jacksonville, Arkansas, has polluted Bayou Meto by discharging into it phenolic materials causing fish kills, creating a rotten egg odor, and making the fish unedible and unsalable.

Hercules took over the operation of the plant at Jacksonville in January 1962. Because of the alleged pollution appellant did not procure a fishing license in 1961-62-63-64-65. He testified that fishing was his sole occupation but during the years he did not fish he repaired his nets, worked on boat rows, net sets, and other paraphernalia. Appellant is 55 years old and in good health. His fishing license permitted him to fish anywhere in the State of Arkansas. It was stipulated that appellant’s federal income tax returns showed that he earned $1,741.47 in 1956; $1,742.29 in 1957; $4,090.40 in 1958; $1,222.41 in 1959; $2,549.33 in 1960; $28.92 in 1961; and $1,958.72 in 1962.

Exhibits introduced into evidence show the discharge of effluent into Rocky Creek from the Hercules plant and pictures of dead fish along the stream.

Marvin L. Wood, director of the Arkansas Pollution Control Commission, testified that he conducted studies, examinations and investigations of Bayou Meto and investigated fish kills in 1959, 1963 and 1964. This study resulted in a hearing before the Commission on April 24, 1963 which culminated in a cease and desist order by the Commission on the 29th of May, 1963, and appears as Exhibit No. 16. A transcript of the proceedings before the Commission was admitted as Exhibit No. 17. In the above order the Commission found that Hercules Powder Company is discharging large quantities of industrial waste into the waters of Bayou Meto in the vicinity of Jacksonville, Arkansas, containing chemical substances in quantities highly toxic to fish and other aquatic life; that the foregoing constitutes pollution within the meaning of Act No. 472 of the Acts of Arkansas, 1949, [Ark. Stat. Ann. § 82-1902 et seq (Supp. 1965)] in that the discharge of said industrial waste into the waters of Bayou Meto has created a public nuisance and has rendered such waters harmful and detrimental to public health, safety and welfare and to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, and to fish and other aquatic life. In the order Hercules was directed to submit to the Arkansas Pollution Control Commission primary plans and specifications within 120 days from the date of the order and final plans within 45 days thereafter for the construction of such treatment facilities as might be necessary to abate the aforesaid pollution. According to the record this order has been fully complied with by Hercules and for that reason the matter of injunctive relief is not before us on appeal. The witness, Wood, further testified that the Commission was unable to determine the cause of the fish kill in the latter part of 1963 and the one in July of 1964. Wood also testified that the runoff of water from agricultural land is a factor in the presence of phenolic materials in lakes and streams and that odor is not a reliable scientific test of pollution as a sensibility to odor levels will vary. It was his opinion that the rotten egg gas odor that was mentioned by other witnesses was probably due to hydrogen sulphide that occurs at the bottom levels of lakes caused by the decomposition of organic material and that this odor would have no connection with the waste from Hercules; that after a heavy rainfall we expect to get runoff from agricultural lands containing chemicals; that in the fall of 1963 it was the conclusion of the Commission that the runoff from farm land was probably responsible for the fish kill; that at the time the test of the water did not reveal any phenolic material and it was the opinion of the Commission that Hercules was not responsible for this kill; that fish sometimes die from reasons that we cannot determine; sometimes thermocline dissolves the oxygen and the fish die from the lack of it; a sudden cold rain causing a thermal shock will also kill them; some kills are caused by decaying vegetation being swept into the stream by heavy rainfall; pollution caused by the operation of Hercules has been substantially eliminated and there is no toxic effect that will kill fish. This testimony was substantiated by other witnesses.

At the conclusion of the plaintiff’s testimony and upon motion by counsel for the defendant for dismissal, the chancellor held that the testimony was insufficient to justify the issuance of an injunction and after additional testimony and argument of counsel, lie declined to award any damages to the plaintiff.

The Arkansas Pollution Control Commission, after a full and complete hearing, found that the appellee did pollute the waters of Bayou Meto creating a public nuisance and rendering the waters harmful and detrimental to fish and other aquatic life. According to the record the appellee has corrected this condition and the matter of injunctive relief is not before the court. This, however, does not relieve the appellee of liability for damages to appellant for loss of profits and damage to his business. He had a substantial investment in a business that had been in operation since 1927. It was his only means of livelihood. By polluting the water of Bayou Meto, the appellee prevented the operation of this business for the years 1963, 1964 and 1965 and by doing so became directly liable to appellee for any damage to his business and loss of profits. Root Refineries v. Robertson, 176 Ark. 353, 3 S. W. 2d 57; McLaughlin v. City of Hope, 107 Ark. 442, 155 S. W. 910. In St. Louis Iron Mountain & Southern Railway Co. v. Hall, 71 Ark. 302, 74 S. W. 293, this court quotes with approval Sedgwick on Damages, § 69, as follows:

“Any one having an interest in land is liable to suffer injury in respect to his right; and accordingly, if his right, however limited it be, is injured, he may recover for compensation equal to his individual loss. The general rule may be said to be that the extent of the injury to the plaintiff’s proprietary right, whatever it may be, furnishes the measure of damages. The owner of a freehold may recover for an injury which permanently depreciates his property, while a tenant, or one having only a possessary right, may recover for an injury for the use and enjoyment of that right.”

On the question of damages the appellant contends that he is entitled to $2,500.00 per year for the years 1963, 1964 and 1965, or a total of $7,500.00 for damages to Ms business and loss of future profits. The only evidence in the record as to Ms earnings is Ms federal income tax returns from 1956-1962 inclusive. These returns were properly admitted into evidence for the purpose of assisting the court in determining the amount of damages to which appellant might be entitled. In the case of Coca-Cola Bottling Company of Southeast Arkansas v. Jones, 226 Ark. 953, 295 S. W. 2d 321, this court approved an instruction as to measure of damages for loss of earnings of a self-employed person as “the damages which he may have sustained on account of the loss of net remuneration or earnings from his business.”

The court below did not go into the question of damages and we believe, in view of our holding that the appellee is liable to appellant, that the court should further explore the amount of damages the appellant has suffered from loss of profits and damages to his business.

The trial court sustained the defendant’s motion to dismiss at the close of the plaintiff’s case. We find such ruling to have been erroneous. Under Ark. Stat. Ann. § 27-1729 (Repl. 1962) the cause must be remanded to the trial court for proof and development and for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Harris, C.J., concurs.


author: Carretón Harris, Chief Justice.

text:
    Reamey v. Watt
    5-3515
    403 S. W. 2d 102
    Opinion delivered May 23, 1966
    Amended opinion delivered June 6, 1966

      Arnold & Hamilton, for appellant.

      W. P. Switzer, James M. Barker, Jr., for appellee.
   Carretón Harris, Chief Justice.

The issue in this litigation is the validity of an election in Ashley County on the question of adopting a stock law. Preparatory to holding such an election, a group of citizens sponsored circulation throughout the county of petitions as a matter of obtaining sufficient signatures to place this proposal upon the ballot. One hundred and seventy-four petitions, bearing approximately twenty-five hundred signatures, were filed in the office of the County Clerk on August 31, 1964. On that same date, the Ashley County Court entered an order directing that the ballot for the general election should contain the proposal for the stock law. On October 10, 1964, appellees instituted an action in the Ashley Chancery Court, seeking to restrain appellants (the election commissioners of Ashley County) from placing this issue on the ballot. By amendment, appellees attacked the sufficiency of the number of petition signers, the form of the petitions, and the validity of the 'County Court order of August 31, 1964, wherein the election was called. The Chancellor temporarily enjoined appellants from placing the question on the ballot in Banner, Prairie, Beech Creek, Elon, Marie Saline, Mill Creek, Longview and Bearhouse Townships in the county, and also enjoined appellants from certifying results of any ballots cast in these particular townships. Appellants appealed to this court, and we entered an order on November 2, 1964, modifying* the injunction to permit the holding of the election, but not rendering moot the question of the validity of the petitions; also, we directed that the Ashley Chancery Court could hear and determine all issues in the case, as though temporary proceedings had not been held. At the general election, the proposed stock law carried by a large majority, and thereafter the Chancery Court proceeded to hear the case, as permitted by the order of this court, heretofore referred to. At the conclusion of the trial, the court found that the petitions and order approving the election did not meet the jurisdictional requirements of the law authorizing such elections, and the petitions and order were held void. The court however, found that appellees had not sought relief for any townships, except those earlier mentioned in this opinion, along with Township “Extra,” and that accordingly, appellants should be directed to certify the vote of the election in the other townships in the county. Prom the decree entered in accordance with these findings, appellants bring this appeal.

The controlling statute in this litigation is Ark. Stat. Ann. § 78-1401 (Repl. 1957). The section provides as follows;

“Whenever twenty-five percent (25%) of the qualified electors of three (3) or more townships in a body in any county in this state as shown by the election returns for Governor at the last General Election preceding the date of the petition, shall petition the County Court for the privilege of voting on the question of restraining horses, mules, asses, cattle, goats, swine and sheep or any two (2) or more of said animals or the male species thereof from running at large, the County Court shall make an order for an election in said townships to be held at any General or Special Election for State or County officers; and provided that if petitioners shall file with their petition proper bond to be approved by the Court conditioned to pay all the cost and expense of a Special Election, the County Court may call an election at any time upon the filing of such petition by giving notice thereof as now provided by law for General Elections; and provided further that said petition shall contain twenty-five per cent (25%) of the qualified electors residing within each township mentioned in said petition.”

Appellants complain that the Chancellor’s finding of invalidity was based on the fact that the petitions calling for the election, made reference to the voting precinct of the signers, rather than the political township, and that language, denoting compliance with the statute, was not set forth in the petitions and order.

Appellants vigorously urge that the petitions and court order contain sufficient recitals of jurisdictional facts to make them valid, and that the order specifically states, “that the petitions as filed do contain the required number of signatures for each and every township in Ashley County, Arkansas, except Bayou Township),” and that this order is presumed to be correct unless it is affirmatively shown that the order is erroneous.

It is not necessary that we discuss whether the petitions and the county court order must recite specifically the requirements of the statute, setting out that these had been complied with, in order for the court to have jurisdiction, for we think the evidence reflects that the findings recited in the order are erroneous. Irrespective of the reason set forth by the trial court as the basis for its decision, even though such reason be erroneous, we will not reverse, if the decision reached by the trial court is correct. See Southern Farm Bureau Casualty Insurance Company v. Reed, 231 Ark. 759, 332 S. W. 2d 615, and cases cited therein.

The County Judge stated that he did not use a map in making the order, and further testified that he could only recognize the boundaries of the various townships by looking at a map. "When asked from what information he made the finding that the required number of signatures were on the petition, the judge replied, “I took the word of the attorneys that filed the petition that they had the required number of signatures.” The judge evidently made no examination himself to ascertain whether 25% of the qualified electors in each township had signed the petitions. This testimony of the witness, in itself, was sufficient to show that there was no proper determination that an adequate number (of electors) had signed. In addition, several witnesses testified that, in the check of particular townships, it was determined that 25% of the qualified electors had not signed the petitions. We think the evidence shows that the petitions did not contain signatures, in conformity with the provisions of the statute, and the filing of petitions with the required number of signatures is jurisdictional. See Wright v. Baxter, 216 Ark. 880, 227 S. W. 2d 967, and cases cited therein.

Appellants attack the proof offered on this point, asserting that the witnesses based their opinion on a township map, which was not established to be correct. However, appellants admit that the signatures were not acquired on the basis of the electors ’ township residence, but rather, were obtained on the basis of the signers’ voting precinct. In fact, there is no place on the petitions for a person to designate his township, but a place only to designate the voting precinct. It appears that, for a long number of years, the voters of Ashley County have voted entirely by precinct, without reference to their township; many citizens vote in precincts that are not located within the townships in which they live. Appellants assert in their brief that, under the circumstances, they have followed the only procedure available, and they argue that the court’s holding was based on a “technicality.” We do not agree. The statute very plainly provides that the petitions shall contain the names of “twenty-five per cent of the qualified electors residing within each township.” Of course, a statute cannot be ignored simply because a county’s voting procedure is set up in a manner that precludes an election under that statute. Any relief along that line addresses itself to the Legislature.

Nor are appellants entitled to relief because, by custom, they have, in conducting elections, ignored township lines for a long period of time. Custom and usage are not sufficient to override the clear wording of the statute. Logan v. Moody, 219 Ark. 697, 244 S. W. 2d 499.

Appellants do allege one point which contains merit. It is asserted that the Chancery Court was without authority to uphold a portion of the County Court order, and hold the remainder invalid. This argument has reference to the fact that the election was voided only in the contested townships, and appellants were authorized to certify the vote of the election in Union, Montrose, Portland, De Bastrop, Egypt, White, Carter and Wilmot Townships. The Chancellor based his action on the fact that appellees did not seek any relief in the townships just named. Appellants contend that in holding the order partly valid, and partly invalid, the Chancellor has actually amended the County Court order—which he had no authority to do.

We agree that this constituted error. In State v. Phillips, 176 Ark. 1141, 5 S. W. 2d 362 (a stock law case), we said:

“It is claimed, however, that this defect in the order of the county court was cured by the decree of the chancery court restraining the holding of the election in Greenfield Township. We do not agree with this contention. The chancery court had jurisdiction to restrain the election because it was made upon a void order, but it had no jurisdiction to cancel or amend the order of the county court. As we have already seen, the order of the county court must be based upon the petitions filed; and it was void because the order as made was not based upon the petition of the requisite number of qualified electors as provided by statute. No subsequent decree of the chancery court could give validity to the order of the county court.”

This holding is entirely practical, since it cannot be assumed that persons would have voted for the stock law if they had known that it would not include the entire county. It follows that that portion of the decree, authorizing the certification of the votes in the uncontested townships must be reversed, and it is so ordered.

It is regrettable that the will of the people, as expressed in the election, cannot be carried out, but this court is without authority to enact law; we can only interpret the law as expressed by the Legislature. Act 368 of 1947 (Section 78-1401) clearly and unequivocally provides that efforts to obtain an election creating a stock law district are commenced by the petition of 25% of the qualified electors, residing within each township affected.

Affirmed in part; reversed in part.

      A11 townships in the county were included except one, Bayou.

      Union, Montrose, Portland, DeBastrop, Egypt, White, Carter-, and Wilmot Townships.

      Henry Austin, a resident of Prairie Township, testified that 1'2'5 electors lived there, and only 1& had signed the petitions. Devereax Brown, a resident of Longview Township, testified that there were 154 qualified voters in the township, and only 21 had signed the petitions. Witnesses also testified similarly, concerning some other townships.

      Both the County Judge and Irene Riley, employed in the County Assessor’s office, testified that they considered the map, correct.


author: Ed. E. McFaddin, Justice.

text:
    Roberson v. Hamilton, Adm’x
    5-3886
    405 S. W. 2d 253
    Opinion delivered May 23, 1966

      O. E. Snwggs, for appellant.

      McKay, Anderson & Grumpier, for appellee.
   Ed. E. McFaddin, Justice.

This appeal involves the administration of the estate of Jesse B. Hamilton, who departed this life intestate on June 29, 1963, a resident of Ouachita County. On July 10, 1963, the present appellant, Mattie Lee Roberson, obtained the appointment of herself as administratrix of the estate of Jesse B. Hamilton; but such appointment was set aside in a short time and the present appellee, Georgia Hamilton, was appointed administratrix by order filed August 12,.1963. She is the widow of the deceased and entitled to preference under the statute, since she filed her petition in due time. (Ark. Stat. Ann. § 62-2201 [Supp. 1965]). Ever since she was ousted as administratrix, the appellant, Mattie Lee Roberson, has been objecting to the various proceedings in the administration of the estate, and the present appeal is the culmination of her objections.

In addition to the facts above stated, the record before us reflects the following:

(a) On July 24, 1964, Georgia Hamilton filed her first and final account as administratrix of the estate and petitioned that she be discharged upon approval of her report; and due notice of the filing of such account and petition was given by publication for the time and in the manner required by law.

(b) On September 10,1964, C. C. Hamilton, alone, filed objections to the final accounting of Georgia Hamilton; and on October 26, 1964, there was an extensive hearing before the Court on the said objections. Mattie Lee Roberson appeared and testified at that hearing; and the significance of this appearance will be later mentioned. By order entered December 30, 1964, the adrriinistratrix was directed to amend her report and make certain distributions.

(c) On February 20, 1965, the Administratrix reported to the Court that she had performed the requirements as made by the Court, and prayed for her final discharge; and on March 18, 1965, the Probate Court conducted a hearing and entered an order which concludes with this language:

“IT IS THEREFORE by the Court considered, ordered and adjudged that the balance remaining in the account at the Stephens Security Bank, listed as Georgia Hamilton, Administratrix of the Estate of Jesse Hamilton, Deceased, be and the same is hereby ordered to lie Georgia Hamilton’s individually. It is further considered, ordered and adjudged that the bond of Georgia Hamilton herein be and the same is hereby discharged, and the said Georgia Hamilton and her Bondsmen are hereby relieved of any and all liabilities on said bond. It is further considered, ordered and adjudged that this Estate be and the same is hereby closed.
“IT IS SO ORDERED.”

(d) There were no objections noted to the foregoing order and no appeal from it; but on April 2, 1965, the appellant, Mattie Lee Roberson, filed objections to the closing of the estate; and in May 1965, and again in June 1965, supplemented and enlarged such objections.

(e) On May 11, 1965, the Probate Court conducted a hearing on the objections filed by Mattie Lee Roberson, and, after hearing all the evidence which Mattie Lee Roberson desired to offer on her objections, the Court disallowed the said objections, and made the following findings and order:

“The Court finds that Mattie Lee Roberson has been represented by Counsel in this cause since the original Petition was filed on her behalf on July 10, 1963, and that she personally appeared before the Court and testified at the previous hearing held in October of 1964, which hearing resulted in the Order of this Court entered on December 30, 1964, . . . Many of the objections presented at this time were disposed of in the prior hearing or should have been disposed of by the Court at that time, since the same issues were raised in prior pleadings. ... “IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED, BY THE COURT, That the objections to the Closing Of Administration Of Estate, And Petition To Remove Administratrix And Personal Representative, as well as the Motion On Hearing To Require Pull Disclosure Of Assets, And Completion Of Administration is denied. “The exceptions of the Objector are noted of record.”

(f) On June 11, 1965, Mattie Lee Roberson filed a renewal of her objections, and again they were disallowed by an order entered August 11, 1965; and it is from the disallowances of all of her objections that Mattie Lee Roberson prosecutes this appeal, raising a total of seven points, which are so interrelated that we consolidate them for disposition.

To take up each point that the appellant has raised and separately dispose of it would unduly lengthen this Opinion. The objections are to matters that occurred in the course of the administration of the estate; and in some of the matters Mattie Lee Roberson, herself, testified to support the claim; for instance, that of C. 0. Hamilton. Furthermore, when C. 0. Hamilton filed his objections to the final report of the administratrix, Mattie Lee Roberson was present in person and testified at that hearing; so she knew that a final hearing was in progress. "When a person appears as a witness and testifies in a proceeding, such person cannot later be heard to say that he did not know that such hearing was taking place. Mattie Lee Roberson knew of tbe hearing on tbe objections to tbe final report of Georgia Hamilton. .She appeared and testified. After tbe conclusion of tbe bearing of March 18, 1965, it was too late for Mattie Lee Roberson to seek to have tbe estate reopened so sbe could file further objections on matters that were all known to her at tbe time sbe testified at tbe bearing on March 18, 1965. It was thoroughly shown that Mattie Lee Roberson received tbe full amount due her as one of tbe heirs of Jesse B. Hamilton, and, in continuing to object to everything that happened in tbe estate, sbe is “only raking over old ashes.” Boyd v. Matthews, 239 Ark. 112, 388 S. W. 2d 102.

We therefore affirm tbe order of the Probate Court.

      The order concludes with this language:
      “IT IS THEREFORE considered, ordered and adjudged that the first and final accounting- of Georgia Hamilton, Administratrix of the Estate of Jesse Hamilton, deceased, be and is hereby in all things approved as amended by the findings of the Court said hereinabove. Georgia Hamilton be and is hereby ordered to make final distribution as ordered hereinabove, with the balance being paid as set forth in the final accounting under Schedule F, and the remainder going to Georgia Hamilton, individually. After this order has been complied with, the Administratrix is directed to report to this Court so that this Estate may be closed. IT IS SO ORDERED.”

      These points are:
      “I. Error of the Court, in its order of March 18, 1965, approving the accounting filed by administratrix, release and discharge of administratrix and her bondsmen, and closing the administration, on the petition filed by the administratrix on February 20, 1965, without the filing of a final accounting and settlement in the manner required by the statutes of Arkansas, Sections 62-2803, 62-2804, and 62-2805; without the statutory notice required by Ark. Stats. 62-2806; without notice, as requested by Mattie Lee Roberson, and within the prohibited 60 day statutory period of Sec. 62-2806.
      “II. Error of the Court in its order of March 18, 1965, closing the administration, without the filing of accounting and settlement covering the period of administration from July 24, 1964 to February 20, 1965.
      “III. Error of the Court in allowing the oral claim of C. C. Hamilton for alleged materials furnished and labor performed in the improvement of the house on estate property for him to live in without payment of rent for 12 years, in the sum of $2,219.89, which claim was barred by the 90 day lien statute of Arkansas, the three (3) year statute of limitations, and the statute of nonclaim, Ark. Stats. 62-2601, without, as a matter of equity, a set-off of reasonable rent for and during said 12 years of free occupancy.
      “IV. Error of the Court in ordering the administratrix to transfer and convert to her own use individually, a large part of the cash assets of the estate, and without disclosing the uninventoried and unaccounted for money on deposit in the Stephens Security Bank of Stephens, Arkansas, the assets of the estate.
      “V. Error of the Court in refusing to continue administration of the estate to completion, after the reopening of the administration on June 11, 1965, to require the administratrix to pay to Mattie Roberson, heir, the sum of $642.81, represented by the check of the administratrix, turned down by the Stephens Security Bank for lack of funds to cover, and which had been previously reported paid.
      “VI. Error of the Court in overruling the objections filed by appellant, Mattie Lee Roberson, filed on April 2, 1965, and filed in open Court on May 11, 1965.
      “VII. Error of the Court in overruling the objections filed by Mattie Lee Roberson on June 3, 1965, other than the objection that the administratrix had converted to her own use the sum of $642.81 reported to the Court to have been previously paid.”

      We do not hold that a witness, by testifying, would thereby enter his appearance so as to be bound by the judgment entered: such is not the law. Cahill v. Hayes (Kan.), 156 Pac. 735, 157 Pac. 1169; Brown v. Van Kueren (Ill.), 172 N. E. 1; First Regular Baptist v. Allison (Pa.), 154 Atl. 913; Ex parte Honaker (Okla.), 61 Pac. 2d 702.


author: Ed. F. McFaddin, Justice.

text:
    Swindle v. Bradley, Chancellor
    5-3941
    403 S. W. 2d 63
    Opinion delivered May 23, 1966

      Bay A- Goodwin, Kirsch, Cathey & Brown, for appellant.

      No brief filed for Bespondent.
   Ed. F. McFaddin, Justice.

This is a petition for a writ of certiorari to quash, as void ab initio, an order made by the Greene Chancery Court on August 9, 1965, awarding temporary custody of a child to its father. The petition is a further effort of Mrs. Valerie M. Swindle to obtain from Gerald M. Swindle the custody and possession of the daughter of the said Swindles. While the case is styled Swindle v. Bradley, Chancellor, the father of the child is also named as a respondent. Service of the brief on Mr. Swindle is questionable; but the other named respondents were served, so we may dispose of the case on its merits.

Mr. and Mrs. Swindle were married in the British Isles in April 1962, and their daughter Sharon was born in 1963. The Swindles separated in St. Louis, Missouri, in April 1964, and Mrs. Swindle returned to her home in England and took the little girl with her. On May 28, 1965, Mr. Swindle obtained a decree of divorce in the Chancery Court of Greene County, Arkansas (in which County he was then living). Mrs. Swindle had entered her appearance to such divorce proceeding; and said decree found:

“That there was on child born of this marriage, Sharon L. Swindle, a girl age two (2) years now in the care and custody of the defendant who is a fit and proper person to have the care and custody of the said minor child; that plaintiff should have reasonable visitation rights including the right to have said child visit with him in this country; . . . ”

The decree ordered that Mrs. Swindle “be and is hereby given care and custody of the said minor child, with reasonable visitation rights to the plaintiff, including the right to have the child visit with him in this country; . . .”

On August 9,1965, Mr. Swindle filed in the Greene Chancery Court (the same Court that had granted the divorce and awarded custody of the child) a petition to modify the custody provision of the said decree. The petition was duly verified and stated, inter alia: “In keeping with his rights under the decree of May 28,1965, plaintiff has brought the minor child from England back to Arkansas and the jurisdiction of this Court. . . The Court should enter a temporary order awarding plaintiff custody of the child . . . pending a hearing on the merits of this cause.” Based on the foregoing petition to modify the decree, and to allow him the temporary custody of his minor daughter pending a hearing on the merits, the Greene Chancery Court (Hon. Gene Bradley, Chancellor), after hearing evidence not now before us, entered an order on August 9, 1965, that Mr. Swindle be temporarily “awarded the custody of the minor child,” and that Mrs. Swindle be entitled to a hearing on the matter at any reasonable time.

It is the said order of August 9, 1965, that is here assailed as. being void ab initio. Mrs. Swindle appeared on November 1, 1965, and there was a hearing; and on that date the Court cancelled the temporary custody that had been awarded Mr. Swindle in the order of August 9th; but in the meantime Mr. Swindle had taken the child and gone to California and has never subsequently appeared in the Greene Chancery Court. By order of November 1, 1965, the Greene Chancery Court revoked the right of Mr. Swindle to have the child; but the Chancery Court refused to set aside the order of August 9th as void ab initio; and the present petition for writ of certiorari is asking us to hold that the Chancery Court of Greene County, Arkansas, had no jurisdiction to make its order of August 9, 1965, awarding temporary custody of the child to the father, pending a further hearing. Petitioner lists four points in her brief filed in this Court:

“I. Greene Chancery Court had no jurisdiction to award temporary custody of Sharon L. Swindle to Gerald M. Swindle by its order of August 9, 1965.
<£II. The order of August 9, 1965, denied petitioner due process of law under the fourteenth amendment to the Constitution of the United States.
“III. Certiorari is a proper remedy by which this Court can declare the order of August 9,1965, null and void.
“IV. Valid grounds exist for the issuance of a writ of certiorari in the present case declaring the order of August 9, 1965, null and void at all times.”

As much as we may personally sympathize with this mother, who is seeking to recover the custody of her little girl from a father who has taken the child beyond our jurisdiction and who refuses to return to have a hearing on the custody of the child, nevertheless we cannot hold that the Chancery Court of Greene County, Arkansas, was without jurisdiction to make the order of August 9, 1965, concerning the temporary custody of the child then before the Court. We have a long line of cases, all holding that the Chancery Court has the jurisdiction to make proper orders concerning the care and custody of minors before it. As evidence of such holdings, we quote the folio-wing language from cases wherein the facts may have been dissimilar from those in the case at bar, but in which the same rule of law was applicable.

In Kirk v. Jones, 178 Ark. 583, 12 S. W. 2d 879:

“Minors are the wards of chancery courts, and it is the duty of such courts to make any orders that would properly safeguard their rights.”

In Crenshaw v. Crenshaw, 203 Ark. 1086, 160 S. W. 2d 37:

“. . . the chancery court, having general jurisdiction over these minors and their property, had the power and was justified in granting the relief requested under the facts in this case. Myrick, v. Jacks, 33 Ark. 425. At page 428, Mr. Justice Eakin speaks of this jurisdiction as a very high trust, involving the most delicate and important interests of a helpless class. This trust, he says, is peculiarly the subject of the jealous and watchful care of chancery.”

In Kimberling v. Rogers, 223 Ark. 348, 265 S. W. 2d 952:

‘ ‘ Our decisions are specific in holding that minors are wards of chancery courts. Kirk v. Jones, 178 Ark. 583, 12 S. W. 2d 879. It is the duty of such courts to make orders properly safeguarding the rights of infants.”

In Holt v. Holt, 228 Ark. 22, 305 S. W. 2d 545:

“Fortunately, in custody cases, the court retains jurisdiction, and if future developments should indicate that a change of custody would be desirable, and for the best interests of the children, the Chancery Court is vested with full authority to revise its orders.”

In Edwards v. Martin, 231 Ark. 528, 331 S. W. 2d 97, we quoted from the earlier case of Myrick v. Jacks, 33 Ark. 425:

“The general jurisdiction over the persons and property of minors belongs to the Chancery Courts. ’ ’

So the Chancery Court of Greene County had the jurisdiction on August 9,1965, to make a temporary custody order for the child before it; and that is the issue before us. Mrs. Swindle’s counsel frankly state in the brief filed in this Court that unless the order of August 9, 1965, is set aside as void ab initio, she cannot obtain the services of the Prosecuting Attorney and other law enforcement officials to proceed criminally against Mr. Swindle for taking the child beyond the jurisdiction of the Court, and that she is without funds to go to California to recover the custody of the child from Mr. Swindle in that jurisdiction. All of this causes personal sympathy for Mrs. Swindle; but we cannot make shipwreck of the law just because of such personal sympathy. The petition for writ of certiorari is therefore denied.


author: George Bose Smith, Justice.

text:
    Bonds v. State
    5184
    403 S. W. 2d 52
    Opinion delivered May 23, 1966

      Robert E. Irwin and Williamson & Mattingly, for appellant.

      Bruce Bennett, Attorney General; Jerry Faubus, Asst. Attorney General, for appellee.
   George Bose Smith, Justice.

By information the appellant was charged with having assulted Glen Grace and other deputy sheriffs with intent to kill. This appeal is from a verdict and judgment finding the appellant guilty and sentencing him to penitentiary confinement for three years.

Despite the objections of the accused the trial court permitted the State to prove that on other occasions Bonds had committed assaults upon police officers. The court instructed the jury that this evidence was admitted to show the propensity of the accused to commit offenses of the type charged in this instance. That ruling was reversible error, for the reasons stated in Long v. State, 240 Ark. 687, 401 S. W. 2d 578 (1966).

The appellant questions the sufficiency of the proof to establish the necessary elements of the crime of assault with intent to kill. One of the elements to be proved by the State is the defendant’s specific intent to take the life of the person assaulted. Francis v. State, 189 Ark. 288, 71 S. W. 2d 469 (1934). The intent may, however, be inferred from the circumstances of the assault. In Morris v. State, 226 Ark. 472, 290 S. W. 2d 624 (1956), we sustained a conviction upon proof that the 23-year-old defendant had used his fists to commit a violent and brutal attack upon his elderly disabled father-in-law. Each case must rest upon its own facts.

Here the assault occurred outside a roadhouse on the night of September 4, 1965. Several officers were raiding the place when Bonds arrived in his car, visibly under the influence of intoxicants. Lyle Hawkins, a special deputy sheriff who was not in uniform, attempted to place Bonds under arrest. Bonds resisted the attempt to detain him, questioning Hawkins’s authority in the matter. Two other deputies, Carter and Grace, came to Hawkins’s assistance. The three men subdued Bonds by wrestling him to the ground and handcuffing his wrists. The handcuffs were applied while Bonds’s arms were in front of him rather than behind his back.

When Bonds was permitted to stand up he cursed the officers, threatened to kill them, and tried to attack them with his fists. He succeeded in striking Hawkins in the face, cutting his cheek and lip, and in hitting’ Grace as well, injuring his left hand. Two of the officers at once quieted Bonds by using their night sticks, and a few moments later a third officer struck Bonds so hard that he was unconscious for nearly an hour and had to be taken to a hospital.

We do not consider the State’s proof to be sufficient to establish an assault with intent to kill. The officers were all armed with billy clubs. At least two of them weighed 200 pounds or more. Bonds, on the other hand, was already in handcuffs when the assault occurred and was hardly in a position to inflict serious injuries upon his adversaries. We do not think the testimony supports an inference that Bonds attacked the officers with the required specific intent to take their lives. At most, his drunken anger led him to provoke a decidedly unequal fist fight.

In view of the court’s error in permitting the State to introduce proof of prior assaults the case must be remanded for a new trial. The State will then have an opportunity to offer additional proof of Bond’s criminal intent. If, however, the evidence is substantially the same as that now in the record, only the lesser degrees of assault, such as assault with a deadly weapon and aggravated assault, should be submitted to the jury. We need not discuss the appellant’s other contentions, for they concern matters that are not apt to arise upon a retrial.

Beversed.


author: George Rose Smith, Justice.

text:
    Cox v. State
    5195
    405 S.W. 2nd 937
    Opinion delivered May 23, 1966
    [Rehearing denied September 19, 1966.]

      W. B. Howard, Jack Segars, for appellant,

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. General, for appellee.
   George Rose Smith, Justice.

Charged with rape, the appellant was convicted of assault with intent to rape and sentenced to imprisonment for twsnty-one years. His contentions for reversal relate only to the admissibility of á tape-recorded confession made shortly after he was taken into custody.

We need state only such facts as are pertinent to the appeal. On the afternoon of May 9,1965, the prosecutrix, a nineteen-year-old girl, took her father’s car to a. service station in Paragould to have the brakes checked. Cox, the accused, aged twenty, was working at the station. He got into the car with the prosecutrix and drove a short distance out of town to test the brakes. In their testimony both witnesses agree that Cox stopped the car on a back road and that an act of sexual intercourse occurred. Whether Cox accomplished his purpose by force or with the girl’s consent was the principal point of dispute in their testimony. The jury’s verdict has settled that controversy.

Upon returning home the prosecutrix reported the matter to her parents, identifying Cox as her assailant. He was arrested at his home at about six o’clock that evening, perhaps a little later. For a short time—probably less than an hour—Cox was held in jail. There is no contention that he was physically mistreated.

At about 7:30 Cox was taken to the office of Howard Mayes, a deputy prosecuting attorney, where he was questioned by Mayes, Sheriff Woodrow Davidson, and Police Chief Lloyd Hill. Mayes did not testify in the court below, doubtless because he was trying the case for the prosecution. Officers Davidson and Hill testified that Cox was warned “three or four times” or “numerous times” that he was not required to make a statement and that anything he said might be used against him in court. Cox denies having received such a warning, but in this respect he is contradicted by the tape recording that was made.

The only serious question is whether Cox, in the language of the Supreme Court, “intelligently and knowingly” waived his right to counsel. Escobedo v. Illinois, 378 U. S. 464 (1964). Officer Davidson testified that Cox was told: “You have a right to call a lawyer. There is a phone if you want to call one.” Davidson quoted Cox as having answered that “he didn’t want a lawyer, wasn’t in any trouble.” Officer Hill’s testimony was much to the same effect: “I told him he was arrested for rape, and he needed a lawyer, ‘and there is the phone if you want to call one.’ ” Cox’s reply was, “I don’t want a lawyer.”

Cox disputed the officers ’ statements, insisting that he was not told that he had a right to talk to a lawyer. On cross examination, when asked why he at first tried to mislead the sheriff by saying that he did not even leave the service station with the prosecutrix, Cox replied, without explanation, “Because I wanted to talk to a lawyer.”

Before the trial the accused was sent to the State Hospital for a determination of his mental condition. The examining physicians found that he was a mild mental defective, with an I.Q. of 70 or 71. He was considered to be without psychosis and to be legally responsible for his conduct. Other testimony shows that Cox reached the seventh grade in school, although he may have been promoted from the sixth grade without having made a passing mark. At the time of the offense he was employed at the service station and was living with his second wife and his only child.

There can be no doubt, under the language in Escobedo v. Illinois, supra, that in the case at bar the officers ’ investigation had reached that accusatory stage at which Cox had the right to consult an attorney. The pivotal issue is that of waiver. Upon that point this is counsel’s position, as stated in their brief: “It is ridiculous to speculate as to whether or not a ‘mild mental defective’ can ‘intelligently’ and ‘competently’ waive counsel. A mere recitation of such a proposition demonstrates its absurdity. It is a contradiction in terms to speak of a mental defective exercising intelligence in such a complicated matter.”

We are not convinced that we should overrule the trial court’s judgment in the matter. The report made by the staff of the State Hospital must be considered along with the other evidence in the case. Cox was earning his own living at the time he committed the offense in question. He appears to have been able to support his wife and child. There is ho direct indication that anything in his appearance or in his behavior when interrogated should have put the officers on notice that something more than a clear statement of his rights was called for. The record of Cox’s testimony at the trial impresses us as that of a person who understood his situation and the questions he was called upon to answer. Our impression might be even stronger if we shared the trial judge’s opportunity to observe all the witnesses in the courtroom.

Counsel for the appellant rely with much confidence upon our recent decision in Smith v. State, 240 Ark. 726, 401 S. W. 2d 749 (1966), where, in reversing a conviction upon another ground, we held that upon the record made at the first trial the accused’s confession should have been rejected under the Escobedo rule. There, however, the controlling consideration was not so much waiver as the officers’ failure to bring home to the accused his absolute right to counsel. At most he was told that he “needed” counsel,- there was hardly any intimation that he was entitled to such assistance or that he would he permitted to seek it. There could he no finding of- an intelligent waiver on the part of one who did not understand his rights.

In attempting to abide by the Escobedo decision we share the difficulty experienced by other courts, that of deciding the extent to which the language of the court’s opinion is to be applied to fact situations not so favorable to the accused as that which confronted Danny Escobedo. In the case at bar we suggested during the oral argument that the question might be held in abeyance until the Supreme Court clarifies the scope of the Escobedo holding, as it intends to do in five cases that were taken under advisement last fall. We readily understand why counsel did not feel at liberty to acquiesce in a postponement that might delay their client’s possible release from the state penitentiary. In the circumstances we do not think that our decision should be deferred.

We find no merit in the appellant’s second contention, that the tape-recorded confession was in fact involuntary. Indeed, counsel candidly admit that this argument is made only to preserve the possibility that' the point may he urged in the future in the federal courts.

Affirmed.


author: Paul Ward, Justice.

text:
    Freeman v. State
    5189
    403 S. W. 2d 61
    Opinion delivered May 23, 1966

      Charles E. Scales and Harold L. King, for appellant.

      Bruce Bennett, Attorney General; Lance Ha/nshaw, Asst. Attorney General, for appellee.
   Paul Ward, Justice.

Samuel Theodore Freeman, appellant herein, was charged with the crime of murder in the first degree. He was convicted as charged and sentenced to life imprisonment. The State contended appellant unlawfully, feloniously, wilfully and with malice aforethought killed Mrs. Dorothy Lee Owens on December 3, 1964.

On December 6, 1964 Mrs. Owens’ body was found in appellant’s apartment on Scott Street in Little Bock with a window cord tightly wound around her neck. The appearance of her body indicated to the coroner she had been dead many hours.

The trial court appointed two attorneys to represent appellant, and also committed him to the Arkansas State Hospital for Nervous Diseases for observation for a period not exceeding thirty days.

After appellant had entered a plea of not guilty and a plea of not guilty by reason of insanity, he was tried and convicted on October 27,1965. In due time a motion for a new trial was made and overruled, and this appeal follows.

Appellant pointed out numerous errors in his motion for a new trial, and on appeal he relies on five alleged errors as grounds for a reversal. All the grounds relied on are included in and will be discussed under the points hereafter discussed.

Before discussing the several grounds alluded to we point out that none of them pertain to the defense of not guilty by reason of insanity. In other words, it is not contended here that appellant was insane when Mrs. Owens was killed or at the time he was tried. It does appear in the record, however, that appellant was examined by the hospital doctors, that he was found to be sane, and that the question of his sanity was submitted to the jury under instructions which are unchallenged here.

One. Although the state produced no witness who saw appellant kill Mrs. Owens, we think the established facts and circumstances, coupled with his own statements, constitute substantial evidence to support the jury’s verdict of guilty.

It is not disputed that appellant and Mrs. Owens had been together on several occasions before she was killed on or about December 3, 1964, or that he lived in the apartment where her body was found. On Sunday December 6, 1964, when appellant was arrested at Searcy by the sheriff of "White County, he informed the sheriff he had found the body in his room. Thereupon he was turned over to the officers in Little Bock. The coroner, who examined the body that afternoon in appellant’s room, testified the body was black and swollen; it was on the bed and there was a cord, resembling a Venetian blind cord, around her neck, and; that, in his opinion, Mrs. Owens’ death was caused by strangulation.

The record contains a lengthy written statement signed by appellant, in which he admitted; he took the deceased to his apartment on the night of December 3, 1964; in entering the apartment he broke the key; they undressed, took a few drinks, and went to bed; when he awoke the nest morning he had a funny feeling and didn’t feel good; he turned on the light and saw the deceased with a cord around her neck, and, then he realized what he had done. A police testified he found the broken piece of the key in the door to the apartment and that it matched with the broken key found on appellant. Other portions of appellant’s written statement were corroborated by state witnesses.

We point out that much of appellant’s written statement indicates the possibility of his insanity but, as previously pointed out, the doctors and the jury found .otherwise.

Two. Appellant’s attorneys insist the case should be reversed because the state’s evidence fails to establish deliberation, premeditation, and malice. We can see no merit in that argument under the facts in this case. In House v. State, 230 Ark. 622, 324 S. W. 2d 112 this same question was raised and answered. We said: “But deliberation and premeditation may be inferred from the circumstances of the case ... ”, citing Weldon v. State, 168 Ark. 534, 270 S. W. 968. Likewise, malice may be implied. Ark. Stat. Ann. § 41-2204 (Repl. 1964) reads:

“Malice shall be implied when no considerable provocation appears, or when all the circumstances of the killing manifest an abandoned and wicked disposition.”

In the recent case of Stockton v. State, 239 Ark. 228, 388 S. W. 2d 382, we find this statement:

£ Certainly the cruelty and brutality manifested in the killing of the deceased is sufficient in the case at bar to supply the inference of malice. We have upheld convictions when the accused aggressor used only his fists.”

We submit that few killings portray such cruelty and brutality as are shown by the record in this case.

Three. Finally, it is contended by appellant that the trial court erred in refusing to give an instruction on manslaughter. We do not agree.

Ark. Stat. Ann. § 41-2207 (Repl. 1964) defines manslaughter as “the unlawful killing of a human being, without malice express or implied, and without deliberation”. In the very recent case of Walker v. State, 239 Ark. 172, 388 S. W. 2d 13 (decided March 15, 1965), we said:

“ Where there was no testimony tending to prove that a defendant was guilty of any offense lower than first degree murder, the trial court has not been required to instruct on any other grade of homicide.”

•Certainly there was no such testimony in this case.

A complete answer to appellant’s contention under this point is found in the case of Jones v. State, 102 Ark. 195, 143 S. W. 907 where we held it was not error for a trial court to refuse to instruct on manslaughter where the defendant was found guilty of murder in the first degree under proper instructions. The Jones case was cited with approval in Newsome v. State, 214 Ark. 48 (p. 51), 214 S. W. 2d 778.

The judgment is affirmed.


text:
    Jones v. Halliburton Co.
    5-3857
    403 S. W. 2d 51
    Opinion delivered May 23, 1966

      Franklin Wilder, for appellant.

      'Daily & Woods, for appellee.
   Paul Ward, Justice.

This appeal arises from the granting of a summary judgment against the appellant. In 1965 the appellee filed a petition for the registration of a 1961 Oklahoma default judgment against the appellant, preparatory to levying an execution on his property in this State. Appellant filed an answer denying personal service was had on him in Oklahoma and, among other things, alleged that the judgment was fraudulent and void. The alleged service on appellant in the 1961 proceedings was predicated upon an Oklahoma statute which provides that the ownership of a leasehold interest in that state constitutes an agreement by the non-resident owner that constructive service gives the Oklahoma court personal jurisdiction.

After the issues were properly joined by the pleadings there was a hearing at which time the appellee moved for a summary judgment. In support of his position that the Oklahoma court had no jurisdiction over him appellant testified under oath that he was not the owner of a leasehold interest in Oklahoma as recited in the judgment. After hearing this testimony the court stated that the appellee was entitled to a summary judgment except for the one issue raised by appellant’s sworn testimony denying he had owned such a leasehold interest.

Thereafter the appellee was permitted to file a copy of an unsigned contract supported by an affidavit which stated that appellant owned a leasehold interest in Oklahoma. Appellant then filed a motion to strike in which he denied he was a party to any such contract, and also denied the contents of the supporting affidavit, contending that both were false and untrue. Said motion was sworn to by appellant. The court then denied the motion to strike, and upon appellant’s failure to further refute the issue, the court granted appellee’s motion for summary judgment. -This appeal follows.

It is our conclusion that the trial court erred in granting the summary judgment. It is true appellant refused to offer further proof or take further steps, but it was unnecessary to do so. It must be remembered that the matter was before the court on a Motion for Summary Judgment only.

We think appellant was entitled to a trial on the vital issue of whether or not he was the owner of a leasehold interest in Oklahoma at the time of the litigation in that State. In the recent case of Griffin v. Monsanto Co., 240 Ark. 420 (p. 422), 400 S. W. 2d 492 (decided March 7, 1966), this Court, in discussing summary judgment said:

“Such a motion cannot be used to submit a disputed question of fact to the trial judge.”

Referring to the statute on summary judgment, Ark. Stat. Ann. § 29-211 (Repl. 1962), we call attention to a portion of the language in subsection (c) which reads:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”

In the case of Russell v. City of Rogers, 236 Ark. 713, (p. 714), 368 S. W. 2d 89, in discussing the above mentioned statute, we said:

“It has been pointed out, under the Federal Rule, .that the theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict. . . . Hence any testimony that is submitted with the motion must be- viewed in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party.”

Viewing this case in the light of the rules above set forth we are forced to conclude that a genuine, material question of fact is presented. We feel that appellant, in attempting to show he was not a lease-holder, should have an opportunity to present his witnesses and cross-examine appellee’s witness in open court. Accordingly, the judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.

Reversed.

Harris, C. J., dissents.

McF addin, J., not participating.


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

text:
    Providential Life Ins. Co. v. Clem
    5-3908
    403 S. W. 2d 68
    Opinion delivered May 23, 1966

      Barrett, Wheatley, Smith & Deacon, for appellant,

      Lohnes T. Tiner, for appellee.
   Paul Ward, Justice.

The Providential Life Insurance Co., appellant herein, issued a group policy (called “The Providential School Plan”) to the public schools of Harrisburg. The plan purported to pay the sum of $1,500, under specified contingencies, upon the death of a student.

This is a suit by Mr. and Mrs. Erby Clem, appellees herein, to collect for the death of their son David, a student in the Harrisburg High School, who was killed in an automobile accident while he and his teammates were on their way to Jonesboro to compete in a track meet.

The pertinent facts, which are not disputed, are now set out. (a) Appellant caused to be circulated a pamphlet or “application” to the students which states, in effect, the policy covers anyone who is killed while traveling “to and from home and school sponsored activities provided such travel is adult supervised.” (b) The application ivas taken by David to his parents who paid for the protection without ever seeing the policy, (c) The policy contains the following provision:

“In the event that such travel is performed by more than one motor vehicle, direct and immediate supervision shall mean in addition to the above, that at least one parent or adult school employee must be physically present in such motor vehicle; ...”

(d) When David was killed he was riding in the second of four cars which carried the team. In this car there was no parent of David or any “adult school employee”. However the trip to Jonesboro was supervised by the school officials, and two adult officials were in the fourth car.

Appellees filed this suit alleging David was killed while the policy was in full force and effect, and asking judgment for $1,500, interest, penalty, and attorney’s fee. Appellant filed an answer denying it owed any amount under the terms of the policy. At the close of all the testimony the trial court, over appellant’s objections, instructed a verdict in favor of appellees, hence this appeal.

It is our conclusion that the trial court was correct. Under Lawrence v. Providential Life Insurance Co., 238 Ark. 981, 385 S. W. 2d 936 appellees had a right to rely on the wording contained in the pamphlet or application referred to previously. In that case we said:

“ ... the application, the form of which was prepared by the insurance company, clearly states those things not covered by the policy. The insurance company had no right to add other exclusions to the policy without the approval of the applicant”.

In view of what we have just said, the only remaining issue or question presented to the trial court was whether the trip to Jonesboro was “adult supervised”. All of the testimony shows it was so supervised. The superintendent of the Harrisburg Schools said it was supervised, pointing out that the track coach, Eddie Borneo (an adult) was in charge of the team and the trip, and that he was assisted by another adult, both of whom went along with the boys. None of this is denied or questioned by appellant. Webster defines the word “supervise” to oversee, to superintend, to exercise supervision. Under the facts and circumstances of this case as heretofore set out, we think it would be unreasonable, and unjust to appellees, to allow a jury to speculate on whether the team trip was supervised by an adult. The trial court was correct in directing a verdict for appellees.

The judgment is affirmed.

McFaddin, J., concurs.

Ed F. McFaddin, Justice,

concurring. I concur in the result reached by the Majority, but I arrive at such result by a process of reasoning different from that set forth in the Majority Opinion: hence this Concurring Opinion.

The pamphlet which the insurance company caused to be circulated to the appellees herein contained this language: “This policy covers: . . . travel: ... 2. to and from home and school sponsored activities, providing such travel is adult supervised.” (Emphasis my own.) The fact that the policy specified a more detailed kind of adult supervision cannot be seized on by the insurance company as a defense against the coverage of the policy since the pamphlet governs, and not the “fine print” in the policy. See Lawrence v. Providential Life Ins. Co., 238 Ark. 981, 385 S. W. 2d 936.

The insurance company insists, however, that, even under the adult supervision language in the pamphlet, the case should have been submitted to the jury to decide whether the kind of adult supervision shown in the evidence here was sufficient to comply with the adult supervision provision in the pamphlet. I would agree with such insistence by the insurance company, except for the fact that the insurance company in the case at bar filed only a general denial. In Childs v. Mann, 240 Ark. 527, 400 S. W. 2d 667, we had occasion to discuss what evidence could be shown by a defendant who filed only a general denial, and that holding is applicable here.

According to the pamphlet the policy covered travel to and from home and school sponsored activities. The additional language, “provided such travel is adult supervised,” was and is an exception to the general coverage, and if the insurance company desired to defend in this case because of the absence of adult supervision, that exception to the coverage should have been specifically pleaded. Mo. State Life Ins. Co. v. Barron, 186 Ark. 46, 52 S. W. 2d 733; So. Nat. Ins. Co. v. Pillow, 206 Ark. 769, 177 S. W. 2d 763; Bankers Nat. Ins. Co. v. Hemby, 217 Ark. 749, 233 S. W. 2d 637; and Pinnacle Old Line Ins. Co. v. Ellis, 228 Ark. 458, 307 S. W. 2d 882. The general denial did not allow the insurance company to defend on the absence of adult supervision, so there was no issue to submit to the jury on the matter of adult supervision.

The insurance company says that when the evidence of adult supervision was admitted without objection, such constituted an amendment of the pleadings to conform to the evidence, and cites Parker v. Jones, 221 Ark. 378, 253 S. W. 2d 342; and Antrim v. McElroy, 229 Ark. 870, 319 S. W. 2d 209. But the answer to the insurance company’s argument on this point is found in the fact that the Trial Court did not permit the pleadings to be amended to conform to the evidence. Rather, the Trial Court, in giving an instructed verdict for the plaintiff, struck out the improper evidence, as the Court had a right to do.

-I therefore concur in the result reached by the Majority.