text:
    Tennessee Gas Transmission Co. v. State.
    5-2082-2083-2084
    335 S. W. 2d 312.
    Opinion delivered May 2, 1960.
    [Rehearing denied June 6, 1960]

      C. H. Moses and Ohmer C. Burnside, for Tenn. Gas Transmission. Ohmer C. Burnside and C. H. Moses, Steptoe ¡& Johnson and Henry C. Ikenberry, for Trunk-line Gas Co. O. C. Burnside and Harry E. Meek, for American La. Pipe Line Co.

      Bruce Bemiett, Atty. General by Ovid T. Switzer and Carneal Warfield, for appellee.
   Sam Robinson, Associate Justice.

The issue here is whether the appellants, Tennessee Gas Transmission Company, Trunkline Gas Company, and American Louisiana Pipe Line Company, are liable for nominal damages to the State of Arkansas for having constructed pipe lines used in transporting natural gas in interstate commerce under the bed of the Mississippi River at a point in Chicot County, Arkansas, the line crossing the river from Chicot County to the State of Mississippi. The trial court ruled that the pipe line companies are liable for such damages. There is no dispute as to the facts; only questions of law are involved.

The State of Arkansas ex rel. the Attorney General of the State filed separate suits against the appellant companies, asking for judgments in ejectment requiring them to remove their pipe lines from that part of the bed of the river which is in Arkansas, and for large sums as damages. The cases were consolidated for trial. The Tennessee Gas Transmission Company has five lines crossing the river at the point involved; the Trunkline Gas Company has four lines; and the American Louisiana Pipe Line Company has two lines crossing the river. The trial court refused to order ejectment because U. S. Code, Title 15, § 717(f) provides that no natural gas company shall abandon any portion of its facilities without the permission and approval of the Federal Power Commission. There is no cross-appeal by appellee from the judgment. The court rendered judgments for the State against the Tennessee Company in the sum of $5,000, against Trunkline in the sum of $4,000, and against the American Company in the sum of $2,000 ($1,000 for each line), as nominal damages. Appellants make no point on appeal that the judgments are excessive as nominal damages, but do contend that the pipe line companies are not liable to the State of Arkansas in any amount by reason of the pipe lines having been laid across the bed of the Mississippi Eiver.

The pipe line companies, acting pursuant to the Natural Gas Act (15 U. S. C. § 717), obtained from the Federal Power Commission certificates of convenience and necessity authorizing the construction of the gas lines. In making applications for certificates of convenience and necessity, maps of the exact routes the proposed lines would traverse were filed. The necessity of crossing the Mississippi Eiver at a point in Chicot County is shown on the maps. Also, the pipe line companies obtained from the Secretary of the Army and the Chief of the United States Engineers “permits” showing no objection to laying the lines across the bed of the river. These so-called permits provide inter alia: “It is to be understood that this instrument does not give any property rights either in real estate or material, or any exclusive privileges; and that it does not authorize any injury to private property or invasion of private rights, or any infringement of Federal, State, or local laws or regulations, nor does it obviate the necessity of obtaining State assent to the work authorized. It merely expresses the assent of the Federal Government so far as concerns the public rights of navigation.”

The Rivers and Harbors Act of March 3, 1899 (U. S. Code, Title 33, § 403) does not authorize the Secretary of the Army or the United States Engineers to grant permits to build pipe lines or bridges across navigable streams. Hubbard v. Fort, 188 F. 987. The Act does provide, however, that such crossing of the river cannot be made without approval of the Chief of the United States Engineers and the Secretary of the Army.

The pipe line companies obtained permits or easements signed by the Governor, Secretary of State and Attorney General of the State of Arkansas, purporting to authorize the laying of the lines across the river. The Arkansas Legislature has not authorized the Governor, Secretary of State or Attorney General to grant such easements, although the Legislature could give to the officials named such authority. State ex rel v. Southern S. & M. Co., 113 Ark. 149, 167 S. W. 854. But without such authorization the State is not bound by the act of the officials. Pulaski County v. State, 42 Ark. 118; Rankin v. Chancery Court of Pulaski County, 221 Ark. 110, 252 S. W. 2d 551; Arkansas State Hwy. Commission v. McNeil, 222 Ark. 643, 262 S. W. 2d 129.

It is the principal contention of appellants that Congress, by adoption of the Natural Gas Act, 15 U.S.C. § 717, gave the Federal Power Commission authority to grant permits to cross the beds of navigable waters with pipe lines used in transporting gas in interstate commerce and that the certificates of convenience and necessity granted by tbe commission carry with them permits to make such crossing.

In State ex rel. v. Southern S. & M. Co., 113 Ark. 149, 167 S. W. 854, the question was whether the State had the right to sell sand and gravel in navigable streams. It was held that the State has this right; that the State owns the beds of the navigable waters, subject to the paramount right of Congress to control navigation. Judge McCulloch quoted the language of the Supreme Court of the United States in Scott v. Lattig, 227 U. S. 229, 33 S. Ct. 242, 57 L. Ed. 490, as follows: “. . . ‘it was settled long ago by this court, upon a consideration of the relative rights and powers of the Federal and State Governments under the Constitution, that lands underlying navigable waters within the several States belong to the respective States in virtue of their sovereignty, and may be used and disposed of as they may direct, subject, always, to the rights of the public in such waters and to the paramount power of Congress to control their navigation so far as may be necessary for the regulation of commerce among the States and with foreign nations.’ ”

The National Gas Act does not specifically give the Federal Power Commission authority to grant permits to lay pipe lines across the bed of the Mississippi River, nor does the Act imply such authority. In fact, if there is any implication one way or the other, it is to the effect that the Commission does not have such authority. The Act provides that the gas companies have the right of eminent domain in constructing their pipe lines in interstate commerce. State lands are subject to be taken by eminent domain. State of Missouri ex rel and to Use of Camden County, Mo., et al v. Union Electric Light & Power Co., et al., 42 F. 2d 692; City of Davenport v. Three-fifths of an Acre of Land, 147 F. Supp. 794, aff’d 252 F. 2d 354; Union Bridge Co. v. United States, 204 U. S. 364, 27 S. Ct. 367, 51 L. Ed. 523.

Moreover, 43 U.S.C. § 1311 provides: “(a) It is determined and declared to be in the public interest that (1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States . . .”

Appellants rely on Stockton v. Baltimore & N. Y. Rd., 32 F. 9, as support for the assertion that Congress may grant an easement over the bed of a navigable stream without the grantee compensating the State. We do not need to discuss this point, because here Congress has not granted any easements to the pipe line companies, whereas in the Stockton case Congress did grant such authority. A pipe line company having no authority from Congress cannot legally lay a pipe line across the bed of a navigable stream separating two states without the consent of the states involved. Hubbard v. Fort, 188 F. 987. But of course the pipe line company can proceed by eminent domain as authorized by the Natural Gas Act. This was not done in the case at bar.

Appellants argue that the State’s action to recover damages because of the use of the bed of the river by appellants tends to obstruct or interfere with interstate commerce. There is no merit to this contention. The State has not refused to permit appellants to lay their lines across the river. Of course, appellants are engaged in interstate commerce and the State could not prevent such crossings. As heretofore pointed out, the appellants have the right of eminent domain, which they failed to exercise. Furthermore, on appeal appellants do not contend that if they owe anything as nominal damages, the amount of $1,000 per line is excessive. Certainly $1,000 is a nominal sum, in view of the fact that it appears to have cost more than a million dollars to lay a line across the river.

Appellants further argue that Ark. Stats. § 35-601 gives to domestic corporations the right to lay pipe lines across navigable streams, and to deny foreign corporations engaged in interstate commerce the same right is to discriminate against interstate commerce. In effect, the statute gives to the corporations engaged in the numerous businesses mentioned in the statute the right of eminent domain. The appellants have this same right under the Natural Gas Act. On this point appellants rely heavily on Oklahoma v. Kansas Nat. Gas Co., 221 U. S. 229, 31 S. Ct. 564, 55 L. Ed. 716. That case turns squarely on the proposition that the Oklahoma statute was for the avowed purpose of preventing gas developed in the State of Oklahoma from being transported in interstate commerce. The United States Supreme Court said: “We place our decision on the character and purpose of the Oklahoma statute.” Here it cannot be said that the purpose of Ark. Stat. § 35-601 is to interfere with interstate commerce.

The appellants have mentioned other points, all of which we have examined carefully, but we find no error.

The judgments are therefore affirmed.

George Bose Smith, J., not participating; Ward, J., dissents.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Harris v. Perron.
    5-2101
    334 S. W. 2d 705
    Opinion delivered May 2, 1960.

      Fred E. Briner, for appellant.
    No brief filed for appellee.
   Jim Johnson, Associate Justice.

This case involves a suit on a promissory note, set-off and counterclaim.

Appellants, Robert H. Harris and Adelyn Harris, on May 30, 1952, sold to appellees, C. F. Perron and Ruby Perron, a house and lot located in Benton for the sum of $21,000, of which amount a down payment of $10,905 was made. The balance of $10,095 was to be paid in monthly installments of $100 each. The down payment of $10,905 consisted of a cash payment of approximately $1,000 and delivery of a promissory note in the face amount of $13,500, dated July 26, 1949. This note was executed by Carl L. Barnes and Jewel Barnes, payable to the order of Henry Y. Young and Nelle F. Young. At the time of the making of the down payment there was a balance owing on the note of approximately $9,095. The note was endorsed by the payees to appellees. Appellees in turn endorsed the note in favor of appellants. Default was made in payment of the note and suit was instituted in the Circuit Court of Saline County against C. F. Perron and Ruby Perron as endorsers on the note for the sum of $5,783.48, representing the balance due on the note after allowing all credits. A set-off and counterclaim was filed by appellees for fixtures and shrubbery which were removed from the premises after the sale and prior to delivery of possession in the amount of $5,000. Upon trial of the case before a jury a verdict in the amount of $83.48 was returned in favor of appellants. Thereupon, appellants moved for a judgment notwithstanding the verdict which motion was granted in part by the trial court in the amount of $783.48. This appeal is from the verdict of the jury and the ruling of the court.

For reversal, appellants contend that there is no substantial competent evidence to support the jury verdict and that the trial court committed error in failing to enter a judgment notwithstanding a verdict in favor of appellants in the amount of $4,256.48.

The record reveals the testimony to he undisputed that there is a balance due on the note of $5,783.48. Endorsement of the note was admitted by appellees. Therefore, the only question presented in trial of the case was the amount of set-off due appellees. The only testimony introduced on behalf of appellees regarding the set-off claimed is that of appellee, Ruby Perron. This testimony consisted of claims for specific amounts for the removal, by appellants, of three specific items which, according to appellees’ testimony, were to remain with the house. The first item claimed is for the removal of three rugs or carpets from the dining room, living room and front bedroom. Appellee, Ruby Perron, testified that the value of these items was “about $1,300 or $1,400.” The second item claimed in the set-off is for a bamboo curtain which appellee testified appellant told her was worth $100. The third item claimed is for 17 camellias removed from the premises. The value of these was put at $7.50 each, being the replacement cost of each of the 17 camellias at $7.50 each, amounting to $127.50. This constitutes the only testimony introduced by appellee as to the value of property removed or damages claimed in the set-off. While giving appellee’s testimony its strongest probative force, even though it was vigorously disputed by appellants, it is impossible for us to find, from appellee’s own testimony, the value of the property removed and damages sustained to be in excess of $1,627.50.

The record contained other evidence which was immaterial to the issue here involved that could have easily confused the jury as to its duties and responsibilities in this case. However, on the basis of the competent evidence relative to the value of the property removed, or damages sustained by appellant, and since the jury had been instructed to award judgment to appellant in the amount of $5,783.48, reduced by the amount of the set-off, if any, the most the jury could have reduced the undisputed balance due on the note would have been $1,627.50.

Being unable to find any evidence in the record which would substantiate a reduction in a greater amount, we are, therefore, compelled to follow our oft repeated rule that the question of sufficiency of evidence is a matter of law, there being no substantial evidence to sustain the verdict of the jury or the judgment of the trial court, and the cause appearing to have been fully developed, the judgment is reversed and the cause is remanded to the trial court with orders to enter judgment in favor of appellant in the amount of $4,155.98. See: Shanks v. Clark, 175 Ark. 883, 300 S. W. 453; Jackson v. Carter, 169 Ark. 1154, 278 S. W. 32.


author: Carleton Harris, Chief Justice.

text:
    Harkrider v. Cox.
    5-2133
    334 S. W. 2d 875
    Opinion delivered May 9, 1960.

      Shaver, Tackett & Jones, for appellant.

      Lookadoo, Gooch <& Lookadoo by J. Hugh Lookadoo, for appellee.
   Carleton Harris, Chief Justice.

This is the second appeal of this case. See Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226. The original judgment was reversed, and the cause remanded, because of an abstract instruction given. On re-trial, the jury returned a verdict in favor of appellee, Oma Lee Cox, for $8,000, and for the appellee, J. C. Cox, Jr., the sum of $625. From the judgment so entered, appellant brings this appeal.

A brief resume of the facts show that on November 16, 1957, Oma Lee Cox, a young lady sixteen years of age, was living a short distance from Curtis Junction in Clark County, Arkansas. Miss Cox was a senior in high school, and worked on Saturdays and holidays at a department store in Arkadelphia. She generally would catch a bus to that city, but on occasion had ridden with a neighbor, Gr. W. Harkrider, who also was employed in Arkadelphia. On the aforementioned date, she was given a ride by appellant in his 1952 Chevrolet pickup truck. They proceeded on U. S. Highway 67, where traffic was heavy; there was an extremely dense fog, testimony establishing that visibility was limited to a distance of fifty to one hundred feet. In attempting to overtake and pass a cattle truck, which was proceeding in front of him at approximately 40 miles per hour, Harkrider moved to the left side of the highway, and collided with an oncoming vehicle. Miss Cox suffered serious injuries, and through her father as next friend, instituted suit against appellant. Mr. Cox sought recovery individually for hospital, medical, and nursing bills, and loss of services of his daughter. On trial, the amounts, hereinbefore mentioned, were awarded.

For reversal, appellant relies upon seven points, the first being a contention that the evidence was not sufficient to sustain a finding of willful and wanton disregard on the part of Harkrider. This point was thoroughly and fully discussed in the opinion of March 2, 1959, including a full recitation of the events leading up to, and including, the collision. The court concluded its discussion on this point by stating “the rule is, that when fair-minded men might differ, then the question is one for the jury”, and held that a jury question was made as to whether Harkrider was guilty of willful and wanton negligence. The proof in the present case, relating to the collision, was practically the same as in the first trial, no less substantial, and no additional reasons or arguments are made which are persuasive of an erroneous holding.

Next, appellant complains of certain instructions given by the court (3, 4, 5, 6, 7, 11, 12, 13, 14 and 14%). Instruction No. 3 defines “proximate cause”; No. 4 defines “ordinary care”; No. 5, “negligence”; No. 6, “contributory negligence”; and No. 7, “gross negligence”. These instructions correctly defined the terms involved, but appellant argues that the instructions led the jury to believe that appellees were entitled to recover on a showing of mere negligence, or negligence less than the willful and wanton degree. We disagree. As stated in Pinkerton v. Davis, 212 Ark. 796, 207 S. W. 2d 742:

“"When all the instructions are thus considered we cannot say that they incorrectly presented the law, or that the jury could have been misled thereby.”

In Instruction No. 8, the court defined “willful and wanton negligence”. Such instruction was as follows:

‘ ‘ To operate an automobile in willful and wanton disregard of the rights of others is a course of conduct which involves deliberate, intentional or wanton conduct in doing or omitting to perform acts, with knowledge or appreciation of the fact, on the part of the culpable person, that danger is likely to result therefrom. It is greater than gross negligence.
To be willfully negligent, one must be conscious of his conduct, and, although having no intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury.”

In Instruction No. 18, the court instructed the jury as follows:

“It is agreed by the parties hereto that Oma Lee Cox was a guest in the pickup truck operated by the defendant Harkrider. Our law provides that no person transported as a guest shall have a cause of action against the operator unless the vehicle was willfully and wantonly operated in disregard of the rights of others.
Therefore, before Oma Lee Cox can recover in this case, she must establish by a preponderance of the evidence that her injuries received in this upset were due to some act or acts of willful and wanton misconduct on the part of her host, the defendant, Harkrider.”

The jury therefore, was plainly told that recovery was predicated upon willful and wanton misconduct or disregard on the part of Harkrider, and this requirement was reiterated in Instructions 19 and 20. The latter reads as follows:

“You are told that even though you believe from a preponderance of the evidence that the defendant driver was guilty of gross negligence in the operation of his vehicle — that degree of negligence would not of itself entitle plaintiff Oma Lee Cox to recover. Oma Lee Cox must go further and show by a preponderance of the evidence that Harkrider persisted in a course of conduct which to the knowledge of an ordinarily prudent person would naturally or probably result in injury.”

Appellant’s contention is held to be without merit.

Instruction No. 11 told the jury that they could not speculate on the issue of negligence or any degree thereof. Appellant states:

“Willful and wanton disregard has often been described by this Court as greater than any degree of negligence. Therefore, this instruction concerning negligence and degrees thereof is abstract law, misleading, and erroneous. We are not dealing with negligence or any degree thereof. We are dealing with willful or wanton misconduct.”

We do not agree that willful and wanton disregard or misconduct is an area, or field, of law entirely distinct and apart from negligence. Our previous opinion several times mentions “willful and wanton negligence”. “Willful and wanton negligence” and “willful and wanton disregard” are synonymous in meaning, and as stated in the previous paragraph, the court properly instructed the jury in this regard.

Instructions 12, 13, 14, and 14% all deal with ‘ ‘ rules of the road”, and were proper instructions. Appellant states:

‘ ‘ The jury should have been advised, in accordance with defendant’s request, in each rule-of-the-road instruction, that plaintiff would not be entitled to recover unless the jury found that the defendant was guilty of willful and wanton disregard for the consequences of his acts when violating any rule of the road.”

We reiterate that the “willful or wanton” feature was covered in the instructions heretofore set out. The same is true with regard to appellant’s Eequested Instruction No. 1.

Finally, appellant argues that the judgment for the benefit of Oma Lee Cox was excessive. The testimony on this point reflected that she was hospitalized for seven days after the accident ; after returning home, she stayed in bed most of the time for a week, and returned to school after about two weeks; that she constantly complained of pain in her head and back; she has been very nervous since the accident, and is upset by riding in an automobile; that she has headaches for three or four days at a time. Mr. Cox testified that Oma Lee was unconscious from Saturday morning until Tuesday morning, and further testimony reflected that the girl received cuts on her forehead, across her nose, over the eye, on each side of her jaw, and on her tongue. Mrs. Cox, the mother, testified that her daughter’s legs were “swollen clear over her shoes”, and that Oma was not able to help with household work; that the daughter is unusually nervous, and will “cry about anything”; two teeth were chipped and capped. Dr. Charles D. Yohe of Hot Springs, a psychiatrist, testified that he examined Miss Cox on two occasions (July 15, 1959, and September 21, 1959). The witness stated that on the first occasion he held a general exploratory interview, and gave a neurological examination. He also gave the Bender-Gestaldt test. On the second occasion, he gave the StanfordBinet, the Revised Stanford-Binet, and the Rorschach test. The witness stated that on her first occasion, Miss Cox was pleasant and cooperative, but had little to say. “She was rather empty, vapid * * * her responses to most any question or subject were inadequate, apathetic, disinterested, et cetera. She didn’t seem to grasp adequately most of the subjects brought up.” He stated that the Bender-Gestaldt test was highly suggestive of organic brain damage, and the additional testing was subsequently performed. The doctor then testified: “It is quite apparent from the findings I have here that there is definite organic brain damage, and that her intelligence is at present that of a moron; that her mental capacity and intelligence has been reduced to 74.” He then explained that IQ test scores of 50 to 75 are generally referred to as scores of a moron, and that general intelligence is in the area of from 90 to 100. Further, “it also could be stated that the pattern of her test scores were those typical for organic deterioration of intelligence. By that I mean it is very suggestive that once her intelligence was higher, and that it has been reduced to its present level.” Dr. Yohe then stated that, in his opinion, this was a permanent condition, but if there should be any change, “it would be in a downward direction, rather than in an upward direction.” The doctor was firmly of that view, despite the fact that on cross-examination, it was developed that the young lady’s school grades were substantially the same after the accident, as before. He testified that injuries producing several days of unconsciousness are very often associated with permanent reduction in intelligence. The witness stated that it was fortunate that Miss Cox had already had considerable education prior to the accident, because, in his opinion, her peak of education has been reached. Based on information that he had obtained concerning the mentality of Miss Cox, prior to the collision, including an IQ test given the young lady sometime during the year preceding the crash (wherein she made a score of 96), it was the opinion of Dr. Yohe that the injuries sustained in the wreck were the cause of the reduction in mental capacity.

Dr. William I. Porter, a neurosurgeon of Little Bock, testified that he could find nothing abnormal about Miss Cox’s legs or hands, and found no evidence of any brain damage. He further stated that he could not detect any gross deficits in her mental function, and considered her alert and cooperative. He found nothing to indicate that the girl was a moron, though admittedly, he did not give the tests referred to. The doctor was obviously of the opinion that some of the tests were of little value in determining whether one had suffered a brain injury. He found no evidence of injury to the spinal cord or nerves, but did mention the scars which Miss Cox had shown the jury. Dr. Porter indicated that these might be “smoothed out” by careful plastic surgery. He testified that she did receive a severe cut on her tongue, but that the tongue had healed, and was not, in any manner, deformed. The doctor was unable to say whether the headaches complained of could be traced to the injuries received in the collision, but did state that lie found no nerve or tissue damage to the brain, and was of the opinion that Orna Lee received no permanent injury to the brain at the time of the collision.

It is not for us to say which diagnosis was correct. That question was properly one to be considered by the jury. As was stated in Arkansas Power and Light Company v. Mart, 188 Ark. 202, 65 S. W. 2d 39:

“It is contended also that the verdict of the jury is excessive. The evidence is in conflict as to the extent of appellee’s injuries. The jury may have believed the evidence of appellee’s witnesses, and, if so, it was justified in returning the verdict it did. This was a question of fact which was the province of the jury to determine, and as we have many times said, although we might not agree with the jury, yet if there was any substantial evidence to sustain its verdict, we are not authorized to disturb it. In other words, the jury is the judge of the facts, and we cannot substitute our judgment of the facts for the judgment of the jury.”

Likewise, we have, on innumerable occasions, held that in determining the sufficiency of the evidence to support a verdict, such evidence must be viewed, with every reasonable inference arising therefrom, in the light most favorable to appellee. Missouri-Pacific Railroad Company v. Dotson, 195 Ark. 286, 111 S. W. 2d 566. The evidence on behalf of appellee, if believed by the jury, was sufficient to sustain the verdict.

Finding no reversible error, the judgment is affirmed.

       On December 8,1958, this Court reversed and dismissed the judgment obtained by appellee in the trial court, holding there was no substantial evidence in the record to establish wanton and willful' negligence. On March 2, 1959, a rehearing was granted, the opinion of December 8th withdrawn, and a substituted opinion filed, wherein the judgment in the trial court was reversed and the case remanded.

       The judgment given in the first trial was $3,000. Appellant makes no argument that the present judgment in favor of the father, in the amount of $625, was excessive.


author: J. Seaborn Holt, Associate Justice.

text:
    Vines v. Ark. Power & Light Co.
    5-2135
    337 S. W. 2d 722
    Opinion delivered May 9, 1960.
    [Rehearing denied September 19, 1960]

      Melvin T. Chambers, Stein $ Stein, for appellant.

      House, Holmes, Butler S Jewell; McKay, Anderson <fb Crumpler, for appellee.
   J. Seaborn Holt, Associate Justice.

This is an action for tbe wrongful death of Leonard Vines who was appellant’s husband.

On June 10, 1955, while Leonard Vines was employed by the Southwest Unit Structures, Inc., and while moving a beam with the aid of a “gin pole”, the pole came in contact with a high voltage line built and maintained by appellee, and the electricity coming down the “gin pole” caused Leonard Vines’ death. Alice Vines, widow of Leonard Vines, on March 28,1957, brought suit under Ark. Stats., §§ 27-903 — 27-904, against appellee for her husband’s alleged wrongful death. She prayed judgment: “Individually, — against the defendant in the sum of $80,000.00 for the loss of love, affection, association and consortium; and also the sum of $116,563.04 for the loss of earnings; and as administratrix she prays for judgment against the defendant in the sum of $25,000.00 for pain and suffering that Leonard Vines endured prior to his death”. As indicated, the death of Leonard Vines occurred June 10, 1955. The original, or first suit was filed on March 28, 1957. The case was reached for trial October 20, 1958, at which time appellant [Alice Vines] took a non-suit. Later, a second suit was filed by appellant on July 10, 1959. Appellee [defendant below] demurred to this last complaint on the grounds that since the present suit was instituted under the above sections of the statute and a non-suit was taken by appellant and another suit was filed more than two (2) years from the date the cause of action arose [June 10, 1955], this second suit was barred by the statute of limitations. The trial court sustained this demurrer and dismissed this complaint. This appeal followed.

For reversal appellant says: “(1) That if a new suit be filed within one year from the time of non-suit, then the cause of action is saved even though more than two years had passed since the cause of action arose. (2) That Alice Vines had a personal cause of action, and it was saved from the running of the Statute of Limitations. ’ ’

The two provisions of the statute under which this suit was brought, commonly known as the “Lord Campbell Act”, were enacted in 1883 and provide: “Wrongful death.- — Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony. ’ ’ And ‘ ‘ 27-904. Parties — Beneficiaries-—-Damages—Limitation of action.— Every such action shall be brought by, and in the name of, the personal representatives of such deceased person, and if there be no personal representatives, then the same may be brought by the heirs at law of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and, in every such action, the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person. Provided, every such action shall be commenced within two [2] years after the death of such person.” Ark. Stats., § 27-908.

Prior to 1883, a cause of action for injuries resulting in death did not survive the deceased person or exist at common law, and our legislature enacted the above act obviously to give a cause of action to the widow and next of kin and the personal representative of a deceased person. It will be observed that this act, which creates a cause of action, also has a built-in statute of limitations [§ 27-904] of two years which was in effect when Vines was killed June 10, 1955.

Appellant contends that since suit was first filed on March 28, 1957, well within the two year period following Vines death on June 10, 1955, then non-suited on October 20, 1958, and within a year following the date of the non-suit the present suit was filed, that it was filed in time under our non-suit statute [Ark. Stats., § 37-222] which provides for one year within which to file a new action after non-suit. We do not agree. In Smith v. Missouri Pacific Railroad Company, 175 Ark. 626, 1 S. W. 2d 48, a case in which suit was instituted almost three years after the death of the intestate and based on the above sections [27-903 —27-904], we said:

“The general rule is that, where a canse of action does not exist at common law, bnt is created by the statutes of a State, it only exists in the manner and form and for the length of time prescribed by the statutes of the State which created it. * * * Therefore we conclude that it is now well settled that, where a statutory right of action is given which did not exist at common law, and the statute giving the right also fixes the time within which the right may be enforced, the time so fixed becomes a limitation or condition upon the right of action, and will control, no matter in what forum the action is brought. ’ ’

But appellant says: “(2) * * * that Alice Vines joins in this suit individually for the loss of services and companionship of her husband. This is an individual action on her part, and she should not be deprived of it” and “* * * since her damages in the loss of services and companionship had to be brought in this suit she should not be barred even if the action by the administratrix is barred.” Again we do not agree.

We think it was the intention of the legislature when it enacted Lord Campbell’s Act creating a cause of action, that did not exist before or at common law, “for the exclusive benefit of the widow and next of kin of such deceased person, * * * and, in every such action, the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person,” [Ark. Stats., § 27-904] to cover and include every right of recovery of pecuniary damages to which the widow would be entitled growing out of her husband’s death, including consortium, loss of services and companionship, and to limit to one cause of action [thus avoiding a multiplicity of suits] which must be brought within a period of two years from the date of her husband’s death. “The term ‘cause of action’ is generally understood as meaning the whole cause of action; that is, all the facts which together constitute plaintiff’s right to maintain the action; every fact which it is necessary to establish in order to support the right to judicial relief.” 1 C. J. S. Actions § 8 (g) p. 986.

Finding no error, the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Coward v. Barnes.
    5-2062
    334 S. W. 2d 894
    Opinion delivered May 9, 1960.

      Douglas Bradley, for appellant.

      E. D. McGowan, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal necessitates a study of the law relating to garnishments. C. C. Coward, appellant, recovered judgment against Pfeifer on September 2, 1958 for $821.03 and interest and costs. On September 30, 1958 Coward had a writ of garnishment served on appellee, Luther Barnes, . . to answer what goods, chattels, moneys, credits, and effects he may have in his hands or possession belonging to said defendant, Ralph Pfeifer, to satisfy the judgment aforesaid”. On October 3, 1958 Barnes filed answer, stating that Pfeifer was then indebted to him, and that be (Barnes) bad nothing in bis bands then belonging to Pfeifer. On September 24, 1959 trial in the Circuit Court, without a jury, resulted in a judgment discharging Barnes as garnishee; and from that judgment Coward prosecutes the present appeal.

At the outset it is well to mention that the factual findings of the Circuit Judge have the force and effect of a jury verdict. (Pate v. Fears, 223 Ark. 365, 265 S. W. 2d 954.) Barnes testified that Pfeifer was his sharecropper for 1958; that he furnished Pfeifer $817.40 in cash during the crop year; that half of the gross crop would go to Pfeifer, less — from Pfeifer’s said half — all advances; that when the garnishment was served and answer made on October 3, 1958, only three bales of the 1958 crop had been gathered, and that no proceeds had been determined because the remainder of the crop had not even been picked. One who cultivates land for a specified portion of the crop, the landlord furnishing the land, team, and tools, is not a tenant, but a laborer. Gardenshire v. Smith, 39 Ark. 280; Hammond v. Creekmore, 48 Ark. 264, 3 S. W. 180; Douglas v. Lamb, 157 Ark. 11, 247 S. W. 77; Houck v. Birmingham, 217 Ark. 449, 230 S. W. 2d 952. Barnes, being thus an employer of Pfeifer, was subject to garnishment proceedings under § 31-501 Ark. Stats., just as any other employer would be subject to garnishment proceedings; and our statute (§ 31-502) recognizes that wages may be garnisheed.

The question presented is, whether the undetermined amount due the sharecropper Pfeifer, was subject to garnishment on September 30, 1958 or on October 3, 1958 (Harris v. Harris, 201 Ark. 684, 146 S. W. 2d 539). Did Barnes have anything in his hands definitely belonging to Pfeifer on either September 30, 1958 or October 3, 1958? Did it belong to Pfeifer at all events, or was any such amount entirely contingent? In Wyatt Lbr. Co. v. Hansen, 201 Ark. 534, 147 S. W. 2d 366, we had occasion to consider the matter of contingent obligations not subject to garnishment proceedings. In that case there had been a garnishment of the owner, Hansen, for whatever might be due by him to a building contractor, whose work had not been completed or finally accepted at the time of garnishment or answer. We held that any amount due to the contractor by the owner was entirely contingent and, therefore, not subject to garnishment at the times involved in the case. Mr. Justice Prank Gr. Smith, speaking for a unanimous Court, said:

“Another reason why relief by way of garnishment may not be awarded the Wyatt Company is that the building contract was not fully completed. It is argued that there had been a substantial compliance with the original written building contract. But the court made a specific finding to the contrary; and we cannot say that this finding is contrary to the preponderance of the evidence. But, even so, by the terms of the written contract, additions thereto became a part thereof . . .
“There is an extended annotator’s note to the case of McKendall v. Patullo, 52 R. I. 258, 160 Atl. 202, 82 A. L. R. 1111, and the annotator cites many cases in support of the following note: ‘It is held that, in order that a garnishee may be charged, there must be an existing debt at the time of the service of the garnishment, and not a mere conditional or contingent liability. So, in the case of a construction contract, where the employer is not to become indebted to the contractor until performance in all particulars, .there is no indebtedness owing to the contractor which may be reached in a garnishment proceeding until the terms of the contract have been performed. ’
“Here, as has been said, the contract price for the work was payable ‘Upon the completion of the work.’
“In the case of Medley v. American Radiator Co., 27 Tex. Civ. App. 384, 66 S. W. 86, it was said: ‘In order for a fund or liability to be subject to garnishment, there must be no condition precedent, no impediment of any sort between the garnishee’s liability and defendant’s right to be paid . . .’ ”

Even though the 1958 cotton crop may have been matured at the time Barnes answered the garnishment, nevertheless the major portion of the cotton had not been picked, and it was Pfeifer’s duty to pick this cotton and carry it to the gin. The cost of picking was a sizeable advance. The gin tickets were introduced in evidence, and twenty-three of them are dated after October 6, 1958. Who could have told on October 3, 1958 how many bales of cotton Pfeifer would make, when part of the cotton was still in the field ungathered? Who could have told the price to be received from the cotton? Barnes testified: “We always wait until we get through before we settle up”. So on October 3, 1958, whether Barnes might owe Pfeifer any amount was entirely contingent on future events. We cannot view the results as they were at the time of the trial in September 1959. The issue is, what was the situation on October 3, 1958? In the annotation in 2 A. L. R. 506, the holdings are summarized in this language:

“But where a further performance of a contract is necessary before money payable thereon becomes due, the payment is conditioned on the performance, and is not subject to garnishment until the condition has been fulfilled . . . The rule rests on the view that ‘as a plaintiff can have no greater right against the garnishee than the defendant would have, and can occupy no better position with respect to the garnishee than the defendant could in a suit brought by him against the garnishee, it follows that, where a contract between the defendant and the garnishee had not been fully performed by defendant at the time of attachment by plaintiff, the garnishee is not chargeable’. Johnson v. Healey (1913), 35 R. I. 192.”

We therefore conclude that the evidence is amply sufficient to support the finding and judgment of the Circuit Court to the effect that on September 30, 1958, as well as on October 3, 1958, any amount Barnes might ever owe Pfeifer was entirely too contingent to be subject to garnishment process.

Affirmed.

       Our cases hold that unless the answer of the garnishee is denied by written pleadings, it is taken as conclusive. See Kochtitzky & Johnson v. Malvern Gravel Co., 195 Ark. 84, 111 S. W. 2d 478, and cases there cited. The transcript before us does not contain a written pleading by Coward controverting the answer of Barnes; but we will not rest our opinion on that omission because it is not even mentioned or suggested in the appellee’s brief, and such a pleading controverting the garnishment might have been filed and inadvertently omitted from the transcript, since the absence of such denial is not mentioned.

       It was shown — at the trial in September, 1959 — that the total 1958 cotton crop was thirty bales, which, after paying ginning, brought a gross sum of $5,392.59; and that one-half of what remained of this sum, after paying advances and expenses for which Pfeifer was liable, ultimately belonged to Pfeifer. The calculation appears to be as follows:
      Sharecropper’s Vz gross $2,696.29
      Less cash advances by Barnes to make the crop ' $ 817.40
      Less cost of fertilizer and poison 340.76
      Less advance for cotton picking 1,223.36
      Total charged against Pfeifer 2,381.46
      Net balance to Pfeifer from crop $ 314.83

       This is really the point on which the learned Circuit Judge decided the case; for he stated, after argument of counsel: “I cannot find any evidence that Mr. Barnes tried to beat the creditor out of the debt. If I did, I wouldn’t hesitate to hold him responsible for it. I think he, under advice of counsel, stated what the situation was on September 30th.”

       To the same effect see 4 Am. Jur. p. 682, “Attachment and Garnishment” § 200; annotation in 2 A.L.R. 506, entitled; “Money due only on further performance of contract by debtor as subject to garnishment;” and annotation in 134 A.L.R. 853, entitled; “What amounts to a contingency within statute or rule permitting garnishment or similar process before an obligation is due or payable, if payment or delivery is not dependent upon a contingency”.


author: George Rose Smith, J.

text:
    Jones v. Nix.
    5-2139
    334 S. W. 2d 891
    Opinion delivered May 9, 1960.

      Lyman L. Mikel, A. A. McCormick, for appellant.

      Bose & Kiser, for appellee.
   George Rose Smith, J.

This is a suit by the appellant to foreclose a real estate mortgage executed by Henry Dodd on February 9, 1957, securing a note for $256. The debtor died, insolvent, on November 13 of that year, and his estate was administered in the probate court. In the course of those proceedings the administrator obtained an order for the sale of the land in question, for the payment of debts. The land was duly sold on April 14, 1959, to the appellee Estes, who bid and paid $260 for the property. The sale was promptly confirmed, and Estes received a deed from the administrator.

Thereafter, on June 22,1959, the appellant filed this foreclosure suit against Estes and the mortgagor’s heirs. The complaint seeks an in rem foreclosure decree against the land. After a trial on the merits the chancellor announced two reasons for dismissing the complaint: First, the plaintiff had failed to prove that Dodd executed the note sued upon, and, secondly, the proceedings in the probate court were a bar to the maintenance of a suit to foreclose the mortgage.

Upon the first point the statutes simplifying the proof of written instruments are not involved, for the complaint was not accompanied by an affidavit of merit, as required by Ark. Stats. 1947, § 27-1142, and the deceased mortgagor was of course not a party to the case within the provisions of § 28-927.

At the trial the plaintiff introduced the original mortgage, which Dodd had signed by mark, before witnesses, and had acknowledged before a notary. The mortgage contains a description of the note and was recorded on November 15, 1957. (The appellees point out that the instrument was not placed of record until two days after Dodd’s death, but we do not see how this fact makes any difference. Martin v. Ogden, 41 Ark. 186.) After the plaintiff had rested the chancellor permitted him to reopen his case and introduce the original note, which was also signed by mark and witnessed. The defendants objected to the introduction of the note, on the ground that the plaintiff had not called anyone to prove its execution by Dodd, but the chancellor permitted the note to be received in evidence.

We are unable to agree with the chancellor’s decision to dismiss the case for want of proof that Dodd signed the note. The mortgage, having been recorded, was admissible without proof of its execution. Straughan v. Bennett, 153 Ark. 254, 240 S. W. 30. Hence the case seems to fall within our holding in Goodman v. Pareira, 70 Ark. 49, 66 S. W. 147, where it was said: “But the deed of trust contained a full description of the notes, and it was duly acknowledged and filed for record. This was sufficient proof of the execution of the notes.”

Moreover, it will be remembered that the court admitted the note in evidence over the same objection that is now urged by the appellees. Had the court sustained the objection the plaintiff might have produced a witness to show that the note was genuine. Thus the reception of the note into evidence may have led the plaintiff astray, and it would be manifestly unfair for us now to hold that his proof is fatally deficient.

The chancellor’s second point concerned the effect of the probate proceedings upon the present suit. It is unfortunate that Estes fell into the error of purchasing encumbered property, but that fact does not entitle him to take free of the mortgage, as a bona fide purchaser. A court can offer at a judicial sale only such title as is held by the person or estate whose interest is being sold. Consequently it is firmly settled that the rule of caveat emptor applies to such a sale, so that the purchaser takes subject to outstanding liens. McIlroy v. Fugitt, 182 Ark. 1017, 33 S. W. 2d 719, 73 A. L. R. 1223. Estes was bound by constructive notice of the appellant’s recorded mortgage.

The record does not support the appellees’ suggestion that the appellant participated in the probate proceedings to such an extent as to waive the lien of his mortgage or to be estopped from asserting it. The appellant filed a claim against the estate, showing it to be a secured claim, but a mortgagee is entitled to prove his claim against the estate of the deceased mortgagor, for otherwise the statute of nonclaim would prevent the mortgagee from reaching other assets if the mortgaged property proved insufficient to satisfy the debt. Hughes, Arkansas Mortgages, § 322. The mere filing of the claim did not affect the appellant’s right to foreclose.

The probate court might have ordered the property sold free of the appellant’s lien by giving him a preferred claim against the proceeds of sale, Ark. Stats., § 62-2609 (e); but there was no attempt to follow this procedure. The administrator simply applied for and obtained a routine order for the sale of the land to pay debts of the estate. It is argued that the appellant should have resisted the order of sale or appealed from it; but there are two short answers to this argument. One, there is no showing that the appellant was given any notice of the order, and, two, any protest by him would have been unavailing, since the probate court unquestionably had the power to order that the estate’s equity in the property be sold for the payment of debts. There is not the slightest intimation in the record that the appellant took any affirmative step that might have induced prospective purchasers at the sale to suppose that the property was being sold free from his mortgage lien.

In the record and in the briefs there is some passing mention of the fact that Estes’s wife is not a party to this proceeding. It is true that Estes has succeeded to the original mortgagor’s interest in the land, and hence his wife’s inchoate dower entitles her to redeem. But the fact that she has not been joined as a defendant does not call for a dismissal of the case; it means only that her right of redemption is not being foreclosed. See Hughes, supra, 369 and 379. Upon remand the plaintiff should be permitted to bring Mrs. Estes into the case if he so desires.

Reversed and remanded for further proceedings.


author: Paul Ward, Associate Justice.

text:
    Jones, Excx. v. Ark. Farmers Assn., Inc.
    5-2143
    334 S. W. 2d 887
    Opinion delivered May 9, 1960.

      James R. Hale, for appellant.

      Thompson & Thompson by Edgar R. Thompson, for appellee.
   Paul Ward, Associate Justice.

J. Hal Jones died testate on October 16, 1958, and shortly thereafter appellant was appointed executrix. On the 25th of the same month the first notice to creditors was published which meant that April 25, 1959 was the last date (as provided by Ark. Stats. § 62-2601) on which a claim could be filed against the Jones estate. On November 6, 1958 appellee, Arkansas Farmers Association, Inc., filed its claim against said estate in the amount of $495.00. This claim purportedly was for the sale of chicks by appellee to said Jones although it was not so stated in the claim as filed. The executrix disallowed appellee’s claim on May 28,1959. Later, after a full hearing on the merits, the Probate Court ordered appellee’s claim paid in full. It is from said Order that appellant prosecutes this appeal.

For a reversal of the Order of the Prohate Court appellant contends (a) that the said claim was not made out and filed according to the provisions of Ark. Stats. § 62-2603; (b) that the Probate Court erred in admitting testimony offered by appellee to explain and prove its claim; and (c) that there is no competent proof that any goods or property were sold or delivered by appellee to said Jones. Other objections are discussed by appellant which we shall briefly note later. We are unable, however, to agree with appellant in any of the three contentions above mentioned.

(a) The claim heretofore mentioned which was filed by appellee merely showed the invoice number and a balance of $495.00 on what appears to be a statement blank or letterhead of appellee. It was certified by Waymond W. Elrod, Comptroller. Attached to the claim was an affidavit by appellee’s attorney to the effect that all payments on the account had been credited, that there were no offsets, and that the amount of the claim ($495.00) was correct. It is appellant’s contention that the above stated claim does not satisfy the requirements of said § 62-2603 in that it does not describe the nature of the claim. The pertinent part of this section reads: “No claim shall be allowed against an estate . . . unless it shall be in writing, describe the nature and amount thereof, if ascertainable, . . . that the amount is justly due, . . . ”

We think it is unnecessary to decide (and we do not here decide) whether in this instance appellee’s claim was sufficiently described to meet the requirements of the statute, because we have reached the conclusion that the executrix waived any possible non-compliance on the part of appellee by failing to deny the claim or to object to its form until the statute of non-claim had run. As heretofore noted, the last day for filing claims was April 25, 1959 and the executrix did not deny appellee’s claim until May 28, 1959. There are several sections of the statutes (§ 62-2601, § 62-2602, § 62-2603, and § 62-2604) which deal with the filing of claims against an estate. It appears to us that the overall purpose of these statutes is to effect and facilitate the payment of just claims against an estate within the specified time and not to defeat a just claim on a technicality that might entrap the claimant. The rule which we think achieves the above purpose, and which we hereby approve, is well stated in 21 Am. Jur., Page 593, § 373, Form and Requirements of Claim. It is there stated: “If there is any uncertainty in a claim filed against a decedent’s estate, it is incumbent on the personal representative to call for clarification. Where no objection is made by the executor or administrator against the sufficiency of the form in which a claim is stated he may be deemed to have waived the insufficiency. If he relies on defects in form in refusing to allow a claim, he should make known his objection seasonably.”

(b) In view of what we have heretofore said and the conclusion heretofore reached it must necessarily follow that appellee had the right to introduce testimony in Probate Court in an attempt to establish the validity of its claim. This is what appellee attempted to do in the introduction of its testimony and we are unable to see how appellant was prejudiced in any way because she had full opportunity to show that the claim was not a valid one if she desired to do so.

(c) Appellant’s assertion that “there is no competent proof in the record showing that any goods or property were ever sold or delivered to J. Hal Jones”, is not substantiated by the record. Waymond W. Elrod, appellee’s employee in the capacity of Comptroller and Chief Accountant, states that he was in charge of all of the records, that the records reflect the transactions between appellee and Hal Jones; that they reflect “the sale to Mr. Jones of 4,500 Ozark White Cornish chicks” at ten cents each plus debeaking and vaccination. Also the record contains, as an exhibit, a full sheet showing numerous transactions on numerous dates between appellee and Hal Jones, verified by Elrod, and showing a balance due by Jones to appellee in the amount of $495.00. We find nothing in the record to contradict the above. In fact it does not appear that appellant seriously challenged the validity of the claim on its merits.

The record reflects that appellee filed a suit in the Circuit Court on exactly the same account mentioned above against J. Hal Jones approximately forty days before Mr. Jones died. Appellant makes several objections based on the contention that the suit was not properly revived against the executrix and on the fact that Ark. Stats. § 62-2602 was not followed in an attempt to perfect his claim by filing a copy of the Circuit Court petition in the Probate Court, etc. It is sufficient to say, we think, that this suit was voluntarily dismissed by appellee and that it chose to present its claim as heretofore set out.

It must follow, therefore, from what has been heretofore said that the Order of the Probate Court must be, and it is hereby, affirmed.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Kagen and Tibbett v. State.
    4974
    334 S. W. 2d 865
    Opinion delivered May 9, 1960.

      J. Sam Wood, Martin L. Green, Jack Rose, for appellant.

      Bruce Bennett, Attorney General by Ben J. Harrison, Asst. Attorney General, for appellee.
   Sam Robinson, Associate Justice.

Appellants appeal from convictions of involuntary manslaughter and sentences of three years each in the penitentiary. The only point we reach is whether the evidence sustains the verdicts.

On August 19, 1959, the appellants, Bruce Kagen and Jimmie Tibbett, and Clinton Silvey and Claudine Gilliam, met at the DeLuxe Cafe in Fort Smith. They all agreed to go swimming near Sugar Loaf Mountain. They left in Silvey’s car and went to two or three places attempting to get other girls, but were unsuccessful in that respect. They then proceeded to buy some whiskey, gin and vodka. Silvey was driving the car and did not go to the swimming place near Sugar Loaf, but drove to a strip pit full of water, made in a mining operation. On the way Claudine Gilliam became very drunk and passed out, and either she or someone else took her clothes off, and apparently she had vomited on herself. According to the evidence, Tibbett took her down to the water in the strip pit, washed her and bathed her face; brought her back to the car and put her clothes on. According to the statements of appellants, they endeavored to get Silvey to take all of them back to town because of the condition of the girl. Silvey became very angry and got out of the car with a pair of metal knucks on his hand and made an attack on the appellant Kagen. The two clinched, and- Tibbett came up and caught hold of Silvey, who then asked them to turn him loose, that everything was all right; but when they turned Silvey loose, he ran away a short distance and began throwing rocks at Kagen and Tibbett, who were standing near Silvey’s car. It is indicated that the rocks struck the car, because pictures introduced in evidence show damage to the vehicle.

The appellants did not testify at the trial, but made statements subsequent to the tragedy that they had thrown one rock each in the direction of Silvey at the time and that he could have been struck by one of the rocks. Appellants also stated that Silvey then ran to the strip pit and entered the water; that they threw nothing at him while he was in the water, only endeavoring to get him to come back and drive them to town, but that Silvey swam on out into the water and they heard nothing more of him. They concluded that he drowned or had come out on the other side of the pit. Appellants attempted to start Silvey’s car, but could not do so. They then walked to Eugene Johnson’s house about a half-mile away, taking Claudine Gilliam with them. Tibbett assisted her in walking. The Johnsons had no telephone, but the Johnson boy went with one of the appellants to a neighbor’s house about two and one-half miles distant, and the sheriff was called.

The sheriff went to the scene immediately and after searching around the strip pit and seeing no evidence of anyone having come out of it, made arrangements to obtain grappling hooks for the purpose of dragging the strip pit, which was very deep. Two sets of grappling hooks were obtained, one of which was made of an iron bar about four feet long, with sharp hooks about three inches long extending from it. After dragging the pit for a considerable time with both sets of grappling hooks, the body had not been located. Skin diving apparatus was then obtained, and by the use of this equipment Silvey’s body was found at the bottom of the pit in water about 60 feet deep, at a point about the middle of the pit, which is approximately 125 feet wide, and about 60 feet from the end of the pit. In other words, the body was at least 60 feet from dry land in any direction. When the body was brought to the surface, it was found that there was a gash in the scalp to the rear of the top of the head, about three-quarters of an inch long. When found, the body was lying face down, with the hands under the body, and there were marks where grappling hooks had passed close to the body. In fact, mud had been stirred up by the hooks and settled on the body. No doubt the gash in Silvey’s head could have been made by the grabs. An autopsy was made and the autopsy report contains this statement: “The autopsy findings indicated that the cause of death was due to asphyxia (drowning). A laceration was found at the top of the scalp. This was strictly in the skin and was superficial. No evidence of fractured skull or traumatic injury to the brain could be seen. The other findings are incidental.” The autopsy report also shows that the body contained 191.4% of alcohol, and the undisputed evidence is that with this amount of alcohol in the body a person would be very drunk.

If appellants made a vicious attack on Silvey, causing him to jump into the strip pit in an effort to save his life or to prevent great bodily injury, they would be guilty of homicide. Tharp v. State, 99 Ark. 188, 137 S. W. 1097. But there is no substantial evidence that this occurred. The deceased could not have got to a point above where the body was found except by swimming. There is no current in the pit, and the record does not indicate that there was a boat. And of course if appellants had struck him in the head with a rock while he was in the water and knocked him unconscious, causing him to drown, they would be guilty. There is no substantial evidence to sustain either theory. Even assuming that the appellants were throwing rocks at Silvey and he felt it necessary to make a hasty retreat, it was wholly unnecessary that he jump into the water in order to get away. Pictures of the scene of the killing were introduced in evidence, and there is a clear strip of ground about 50 feet wide around the strip pit. Silvey could have gone in any one of three directions without going into the pit. The fact that Silvey did jump into the pit, as stated by appellants, is corroborated by the fact that his shoes were found at the place 30 or 40 feet from the pit, where they said he ran. The shoes were about 25 feet apart, indicating that they had come off while he was running. They were not laced up. In 25 A. L. R. 2d 1187, it is stated that one may be found guilty of some degree of homicide by causing another to jump to his death, but it must appear that the act of the deceased was such a step as a reasonable man might take and that his apprehension was of immediate violence or injury and must have been well grounded. Cases from eight states are cited in support of this doctrine.

When Silvey’s body was found, there was a pair of metal knucks on his left hand. The evidence is that there was no indication that Tibbett had been drinking, and Kagen showed no signs of intoxication, although he stated to the sheriff that he had taken some drinks. Claudine Gilliam was so drunk that according to her own testimony she passed out before arriving at the strip pit and still needed help in walking to Johnson’s after the tragedy occurred, and the sheriff testified that she was groggy when he got to the Johnson house. The State lays much stress on the fact that at just about the place where appellants said Silvey was when the rock throwing occurred there are some blackberry vines, and although Silvey had on no shirt, there were no scratches on his body. A picture of the vines is in the record and they do not appear to be so high as to indicate that they would necessarily scratch the top part of a person’s body. Moreover, there-is no evidence in-the record that Silvey was actually' in the blackberry vines. The State cites the cases of Tharp v. State, 99 Ark. 188, 137 S. W. 1097, and Padgett v. State, 151 Ark. 290, 236 S. W. 603, in support of 4he proposition that when one is killed in trying to avoid an unlawful assault, such a happening will sustain a homicide' conviction, but in neither case are the facts similar to the case at bar.

There is no evidencé whatever that any rocks were thrown at Silvey while he was . in the water, and to say that the accused threw at him in such circumstances would be pure speculation. Professor Wharton, in his work on Criminal Evidence, Vol. 2, §’872, states: “To sustain a conviction, proof of the • criminal agency is as indispensable as the proof of death. The fact of death is not sufficient; it must affirmatively appear that the death was not accidental, that it was not due to natural causes, and that it was not due to the act of the deceased. Where it is shown by the evidence, on one side, that death may have been accidental, or it may have been the result of natural causes or due to suicide, and on the other side, that it was through criminal agency, a conviction cannot be sustained. Proof of death cannot rest in the disjunctive. It must affirmatively appear that death resulted from criminal agency.”

In Taylor v. State, 211 Ark. 1014, 204 S. W. 2d 379, in holding that the evidence was not sufficient to sustain conviction, the Court quoted from Bowie v. State, 185 Ark. 834, 49 S. W. 2d 1049, 83 A.L.R. 426, as follows: “In a case depending on circumstantial evidence the circumstances relied upon must be so connected and cogent as to. show guilt to a moral certainty and must exclude every other reasonable hypothesis than that of the guilt of the accused. Circumstances, however strong they may be, ought never to coerce the mind of the jury to a conclusion of guilt if they can be reconciled with the theory that one other than the defendant has committed the crime or that no crime has been committed at all.”

From a careful study of the record it does not appear that appellants were at any time mad at Silvey or wanted to harm him. Appellants stated that Silvey made an attack on Kagen with a pair of metal knucks and appellants merely held him and let go of him when he asked to be turned loose. When Silvey’s body was recovered the knucks were on his hand. It does not appear that appellants were intoxicated; in fact, it does not appear that Tibbett had been drinking at all, and certainly Kagen had drunk very little. The sheriff said he showed no sign of intoxication. Moreover, only three half pints of liquor were bought. Claudine Gilliam said she drank all the whiskey; and from the amount of alcohol in Silvey’s body, he must have drunk practically all of the half pint of gin and the half pint of vodka. Even though appellants threw some rocks at Silvey while he was throwing rocks at them, certainly there is no evidence, circumstantial or direct, that they wanted to kill him, and surely no one in his right mind would throw rocks at anyone swimming in deep water unless a homicide was intended. Nothing in the record would indicate that appellants were not in their right minds. They went out with Silvey and the girl in Silvey’s car to go swimming. Kagen drank very little and it appears that Tibbett drank nothing. Before they got to go swimming, the girl became intoxicated and sick and unconscious. Tibbett tried to help her by bathing and putting her clothes on her, all except her panties, and when Silvey’s body was recovered, they were found in his pants pocket, as were the keys to the car, along with a contraceptive. It appears that if anyone had sexual relations with the girl, it was Silvey, and not either of appellants.

Eugene Johnson testified that while appellants and the girl were at his house the girl said: “They’re lying to you. They know where the body is. It’s over there all right but they know how it is there, and they’re the ones that put it there.” One of the appellants replied: “She’s sick. She doesn’t know what she is saying.” The alleged statement of the girl was hearsay, and to be admissible it must come within one of the exceptions to the hearsay rule. There is at least grave doubt that it comes within such an exception. The girl who is alleged to have made the statement was in court and testified as a State’s witness, but she did not testify that sbe made tbe statement attributed to her by Johnson. However, she did testify:

“Q. How many different stories have you told the officials here, including Mr. Glenn Abbott. —Of different things you thought you might have remembered?
A. I don’t know. I must have told him something the night I came in but I don’t know what I told him. — The night they picked us up.
Q. Was that because you were still intoxicated?
A. No, not exactly. I was a little drunk. —I was passed out when they came after us.
Q. You were passed out when they came to Johnson’s to get you?
A. Yes, sir.
Q. And you were passed out when you got to the strip pit, weren’t you, Claudine?
A. That’s right, but I walked up to the farmhouse by myself.
Q. Did you just walk in a trance?
A. Well, Jimmie might have been holding me up a little.’’

In order to bring hearsay evidence of an implied admission within the exceptions to the hearsay rule, not only must it be shown that the statement was made, but it must also be shown that the accused heard the statement; that he understood it, and remained silent or evaded a response. It is the failure to deny that is significant. If the total response adds up to a clear-cut denial, this theory of implied admission is not properly available. McCormick on Evidence, pp. 528-530. Here one of the appellants — the record does not show which one — spoke up and said, “She’s sick. She doesn’t know what she is saying.” In the circumstances it appears that the reply is all that was required and the girl’s statement therefore does not have any probative value, although no objection was made to the admissibility of it.

The law presumes a defendant innocent until proved guilty beyond a reasonable doubt. Where the State depends on circumstantial evidence, this Court has said: ‘ ‘ The evidence against the accused was entirely circumstantial. In such cases it is required that the evidence relied on must show the guilt of the accused to a moral certainty and must exclude every other reasonable hypothesis than that of the defendant’s guilt. We conclude that the testimony adduced was not sufficient to establish the guilt of appellant with the certainty that the law requires in cases of this kind. We cannot say that the circumstances shown could not be reasonably explained except upon the hypothesis of appellant’s guilt.” Johnson v. State, 210 Ark. 881, 197 S. W. 2d 936.

It is our conclusion that the evidence in the case at bar is not sufficient to sustain the verdicts. The judgment is therefore reversed and the cause remanded for new trial.


text:
    Brown v. Gardner.
    5-2124
    334 S. W. 2d 889
    Opinion delivered May 9, 1960.

      Gordon <& Gordon, for appellant.

      B. S. Dunn, for appellee.
   Jim Johnson, Associate Justice.

This case involves the violation of an agreement which was made in order to accomplish the consolidation of two school districts.

In 1947 a majority of the qualified electors of Cherry Hill School District No. 21 of Perry County signed a petition requesting that that District he dissolved and the territory annexed to Perryville School District No. 7 of Perry County. Prior to the signing of the petition the electors and patrons of the Cherry Hill School District had an agreement with the School Board of the Perryville School District that a ward school with one teacher would he maintained at Cherry Hill schoolhouse so long as at least ten students were in average daily attendance at said ward school.

On August 26, 1947, the Perry County Board of Education entered its order dissolving the Cherry Hill District. In accordance with the agreement and the order of the County Board of Education, the School Board of the Perryville District continued to maintain the ward school at Cherry Hill until the opening of school on August 31, 1959. At that time the Perryville School Board refused to maintain the ward school at Cherry Hill and forced the students to attend school at Perryville.

The plaintiffs, who are qualified electors and patrons of Perryville School District No. 7, and also qualified electors and patrons of what was formerly Cherry Hill School District No. 21, filed suit against the Directors and Superintendent of the Perryville School District to require them to continue to operate the ward school at Cherry Hill, and in the alternative, asking that the order of the County Board of Education dissolving the Cherry Hill District and annexing said District to the Perryville District be set aside, and the Cherry Hill District be restored as it was prior to the order of the County Board of Education.

The defendants demurred to the complaint on the ground that the complaint, as amended, did not state a cause of action. The Chancery Judge sustained the demurrer and dismissed the complaint. The plaintiffs bring this appeal alleging error by the trial court in sustaining the demurrer and dismissing the complaint.

The appellants urge that the agreement to operate the ward school at Cherry Hill was a condition to the annexation and that this agreement was made a part of the order of the County Board of Education when they dissolved the district. It is true that the agreement was made a part of the order of the County Board of Education. It is further true that ethics is on the side of appellants. Even so, our research reveals the cold letter of the law to be on the other side. This being so, we have no choice but to find contrary to appellants position. School District Directors can only enter into agreements which bind their districts and the inhabitants thereof by reason of express statutory authority. School District No. 18 of Jackson County v. Grubbs Special School District, 184 Ark. 863, 43 S. W. 2d 765. A person contracting with a Board of Education is presumed to know the limitations of its powers and can acquire no right by contract which said board is not clearly authorized to make. Rural Special School District No. 50 v. First National Bank, 173 Ark. 604, 292 S. W. 1012.

There is no statutory authority giving school directors the power to enter into contracts agreeing to maintain a school at a certain place indefinitely. The powers of school directors are conferred by law for public purposes, and the exercise thereof, involving as it does a matter of future policy properly subject to change to meet changing conditions, cannot be restricted by an agreement of the nature of the one here involved. To hold otherwise would create a school at Cherry Hill not subject to change by anyone as long as the condition is met.

Based upon this reasoning, appellants’ remaining contention that the action of the Perryville School Board is in the nature of a collateral attack on the order of annexation made by the County Board must also fail since the part of the order concerning the future operation of the Cherry Hill School was void because the School board possessed no authority to make the agreement.

Equity being bound to follow the law, we conclude that the decree of the Chancellor must be affirmed.


text:
    Ark. State Highway Commission v. Union Planters National Bank.
    5-2004
    334 S. W. 2d 879
    Opinion delivered May 9, 1960.

      Bill Demmer and W. B. Thrasher, for appellant.

      Hale & Fogleman, for appellees.
   George Rose Smith, J.

The appellees have filed a motion asking us to modify our original holding to the extent of taxing the costs of appeal against the Highway Commission. It is contended that the assessment of any costs against the landowner in a condemnation proceeding would deprive him of his constitutional right to full compensation for his land.

It is true that when the only issue in a case of this kind is the value of the land the owner should not be compelled to pay the costs of a proceeding brought for the purpose of taking his property. Nichols on Eminent Domain (3d Ed.), § 4.109. But this rule does not necessarily apply when there are other issues in the case. Nichols points out, for instance, that when the landowner unsuccessfully contests the validity of the taking he may be compelled to pay the costs. Here, in like manner, the landowners wrongfully demanded and obtained a judgment for the amount of their expert witnesses fees. The Commission was therefore compelled to appeal, and since it obtained a reversal and a substantial recovery upon this issue the case does not fall within the rule relied upon by the appellees.

The motion to retax the costs is denied.


text:
    Carnahan v. Carnahan.
    5-2131
    335 S. W. 2d 295
    Opinion delivered May 16, 1960.

      William H. Drew, for appellant.

      Thomas L. Cashion, for appellee.
   Carleton Harris, Chief Justice.

Appellee, Francis N. Carnahan, was granted a divorce from appellant, Virginia Mae Carnahan, on December 17, 1956. Prior to the rendition of such decree, the parties entered into an agreement regarding care and custody of their minor child, Carolyn Sue Carnahan, born May 8,1947, and also entered into a property settlement, the agreements being incorporated into the decree. The decree, inter alia, provided :

“That the said Francis Carnahan, on or before January 1, 1957, and on or before the first day of every Calendar month thereafter, pay to the said Virginia Carnahan the sum of $125.00 per month until the minor child of the parties hereto, Carolyn Sue Carnahan, reaches the age of 18. That out of said payments the said Virginia Carnahan is to provide for the care and maintenance of herself and minor child, Carolyn Sue Carnahan. ’ ’

A few months subsequent to the divorce, appellant moved to Greenville, Mississippi, where she and Carolyn have resided since that time.

On September 8th, 1959, Mrs. Carnahan filed a motion with the court, asserting that Mr. Carnahan was delinquent in the monthly payments, and seeking judgment for the alleged arrearage. On the same date, Mr. Carnahan filed a motion, setting up that he “has for some time passed been acutely financially embarrassed, and is threatened with bankruptcy, and has been unable to make the payments ordered by the court”; that his income was insufficient to make the payments, and he prayed a reduction in “the support and maintenance and alimony to a sum that the plaintiff can pay, and the plaintiff believes that if given sufficient opportunity, he will be able to pay the arrears on an installment basis.” Appellee further sought an amendment of the custody order to permit him to have custody of the minor child during the summer months. On October 13th, the date set for the hearing, appellee amended his motion, alleging further as a defense that appellant had taken the minor child to the State of Mississippi without the permission of the Chicot Chancery Court. Following a hearing on that date, the court found that Mr. Carnahan was in default in payments totaling seven months, or a total amount of $875, but refused to enter judgment, finding as follows:

‘ ‘ The Court further finds that said child is now and has been since 1957, outside of the jurisdiction of this Court with her mother; that permission was never sought or granted by this Court for authority for the removal of said child outside of the jurisdiction of this Court; that a judgment for said $875.00 should be refused for the reason that said child is not now nor has she been within the jurisdiction of the Court during the period of delinquency as above found. The plaintiff-respondent should not be held in contempt for willful violation of the order of this Court incorporated in the decree of December 17, 1956, for the reason that the child has been removed from the jurisdiction of this Court without the Court’s permission. It is further found that the defendant-petitioner should be granted authority and permission to remove said child from the jurisdiction of the Court upon the filing of a good and sufficient bond with the Clerk of this Court, conditioned that defendant-respondent will comply with all orders of this Court relating to the care, custody, support and general welfare of the child involved in this action, and a written appointment of the Clerk of this Court and/or her successor in office designating said Clerk and/or her successor as agent for service for all writs that may be issued in this action relating to the care, custody, support and general welfare of said child. ’ ’

A decree was entered in accordance with the findings, and from the court’s order refusing to render judgment for the back payments, appellant brings this appeal.

The Chancellor evidently relied on the case of Pence v. Pence, 223 Ark. 782, 268 S. W. 2d 609, in which case, this Court held that the right of the mother to claim support payments was suspended during a period when she kept the minor child outside the jurisdiction of the court, at a place unknown to the father; i.e., such payments were remitted. This opinion somewhat modified the holding in Sage v. Sage, 219 Ark. 853, 245 S. W. 2d 398. In the Sage case, the mother had taken the children to Virginia, and the trial court relieved the father of the obligation to pay past due installments amounting tó $450. This Court reversed the trial court on that point holding that the court had no power to remit accumulative payments under the circumstances of the case. See also Allison v. Binkley, 222 Ark. 383, 259 S. W. 2d 511 (1953).

The case at bar is, we think, easily distinguishable from the Pence case. There, the mother refused the father the right to have the child visit him during the father’s coming furlough from the Navy, sometime in 1944; just prior to the father’s return to this state, Mrs. Pence, without permission of the Chancery Court, took the boy to the Pacific Northwest. Pence and his family made diligent effort to find the child, but were unable to do so. After living for a time in Washington and Oregon, Mrs. Pence and her subsequent husband returned to Joplin, Missouri, and in 1950, returned to Arkansas to live. During this entire period of time, Mr. Pence was without knowledge of the whereabouts of the child, and never had the opportunity to visit with him. Nor did Mrs. Pence endeavor to collect any payments from Mr. Pence during that period. This Court said: ‘‘Now, after a lapse of years, Mrs. Pence wants all of the accumulative payments — without having allowed Mr. Pence — in all the intervening years — to have the pleasure ■of seeing his child. Equity cannot aid her in such a situation. ’ ’ Here, the situation is vastly different. Appellee has known at all times the whereabouts of the child; the evidence reflects that he has visited the child in Greenville, and it is further indicated (though this is not entirely clear from the transcript) that the child has visited him. The distance from appellee’s home in Eudora to Greenville is approximately 35 miles, and certainly, this distance did not occasion undue hardship or inconvenience to appellee when he desired to visit the child. There is absolutely no evidence in the record that Mrs. Carnahan has refused Mr. Carnahan the right of visitation, nor is such a fact even alleged.

Mr. Carnahan made these payments from the time of the decree, all through the year of 1958, and into 1959, without complaint that the child had been removed. As heretofore mentioned, appellee only asserted this defense on the day of the hearing, after previously setting up other defenses. It would appear that Mr. Carnahan’s failure to pay was based on something other than the removal of the child to another state. However, no testimony was offered on behalf of appellee; in fact, the sole testimony in the hearing was offered by Mrs. Carnahan.

While appellant noted her exceptions to the entire order of the court, the notice of appeal relates only to that portion denying her the back payments. Likewise, this is the only point argued in the brief. Accordingly, we are not called upon to determine whether the court was justified in requiring the compliance bond, and in directing appellant to designate the clerk of the court as her agent for service in all matters relating to the custody and support of the minor child.

The court should have awarded appellant judgment for sums due for the following months of 1959: March, April, June, July, August, September, and October, or a total amount of $875. The decree is accordingly reversed, and the cause remanded with directions to enter judgment for appellant in the said amount of $875. Appellant’s attorney is awarded an attorney’s fee of $150. Costs against appellee.

         Counsel for appellee requested that he be permitted to take a non-suit on his motion for reduction in support payments, and part-time custody, and the court permitted the motion to be withdrawn.


author: J. Seaborn Holt, Associate Justice. Ed F. McFaddin, Associate Justice,

text:
    Central Ark. Milk Producers Association v. Smith.
    5-2138
    335 S. W. 2d 289
    Opinion delivered May 16, 1960.
    [Rehearing denied June 6, 1960]

      Thompson & Thompson, for appellant.

      J. E. Simpson, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee, Willard Smith, brought suit against appellant, Central Arkansas Milk Producers Association (an association of dairy farmers which was organized under the laws of Arkansas for the purpose of collectively selling milk produced by the members thereof), for appellant’s alleged failure to purchase appellee’s milk truck in accordance with the terms of a previous oral contract, or agreement, between the parties wherein appellant agreed to purchase the truck at its then or above value; and as a further condition of purchase of said truck, appellee, Smith, agreed to assist appellant in obtaining contracts with people for whom he, Smith, hauled milk to become members of Central Arkansas Milk Producers Association, appellant. Appellee alleged that he fully performed his contract or agreement with appellant, but that appellant had refused to purchase his truck.

From a judgment, on a jury verdict in favor of appellee, in the amount of $600.00 is this appeal. For reversal appellant relies on the following points: “(1) The proof in the case clearly fails to establish that a contract was entered into by the Appellant to purchase the Appellee’s truck or any part thereof. (2) If the jury could under the evidence find that there was a contract, the plaintiff completely failed to prove any damage suffered by reason of a breach thereof. (3) Since the most any witness said the truck bed was valued at, at the time of the alleged contract, was Six Hundred Dollars, plaintiff should have been limited to a recovery of Three Hundred Dollars since Defendant in open court at the time of the instructions of the jury offered to pay plaintiff, * *

The record reflects that Smith, appellee, was the owner of a milk route in Carroll County and a truck used in connection with collecting milk along the route. Appellee desired to dispose of his milk route and he contracted appellant to induce it to take his milk route over. Several meetings were held between the appellant’s representative, Dwight Hull, Smith, and the producers along Smith’s milk route. The evidence shows that the general consensus arrived at in these meetings was that the producers would sell their milk to appellant if appellant would purchase the milk truck of appellee. Appellant was equipped for bulk collection of milk and most of the producers had facilities for only canned milk collection and difficulties arose over the collection of the milk. The result was that a number of the producers signed with appellant and the remaining producers found other outlets for their milk.

We think there was substantial evidence adduced that there was a contract or agreement between the parties for appellant to purchase Smith’s truck. Smith testified that appellant agreed to buy his truck: “Mr. Hull (appellant’s representative) never did tell me how many dollars he would pay for the truck, said he would pay more than it was worth. He told me to go down here to the garage somewhere or to some of these dealers and find out what it was worth. ’ ’ Kenneth Pinkley testified that he (appellant’s representative, Hull) stated that appellant would buy Smith’s truck, at its value or above, that the truck was suitable as a bulk tank truck by just putting a tank on Smith’s truck. Witness Hoyt Pinkley testified that there was discussion that appellant would buy Smith’s truck and equipment. Appellant’s representative, Hull, when asked if Smith would be “taken care of,” answered, in effect, that appellant would take care of the hauler, that they had never taken a route yet where they hadn’t taken care of the hauler and they would buy Smith’s truck, — “He told Smith he would reasonably compensate him for the truck, that it was their policy to compensate for the truck when he took their route.”

Logan Stafford testified that it was the general impression of the meeting that appellant would buy Willard Smith’s truck and equipment. King Hale’s testimony was of a corroborative nature. All of the witnesses, in effect, agreed that appellant was to purchase Smith’s truck and the only thing that was not mentioned was the price of the truck which was never agreed upon.

As indicated, we hold that the above was substantial evidence that a contract or agreement was entered into between the parties. But, says appellant, “this record is devoid of any meeting of the minds on the price to be paid Williard Smith by appellant for his truck.” We do not agree. The rule of law seems to be well settled that where, as here, no definite contract price was agreed upon between the parties, this alone does not invalidate the agreement or contract. The law invokes the standard of reasonableness and the fair value of the property may be shown and recovered where, as here, the complaining party has duly performed his side of the agreement. “It is by no means uncommon for those who offer or agree to employ others, or to buy goods, to make no statement as to the wages or price to be paid. The law invokes here (as likewise where an agreement is indefinite as to time) the standard of reasonableness. Accordingly the fair value of the services of property is recoverable on the implied in fact contract. * * Williston, Contracts, Yol. I, § 41 at p. 115. And, “There is no more settled rule of law applicable to actions based on contracts than that an agreement, in order to be binding, must be sufficiently definite to enable the court to determine its exact meaning and fix exactly the legal liability of the parties. Indefiniteness may relate to the time of performance, the price to be paid, work to be done, property to be transferred, or other miscellaneous stipulations of the agreement. If the contract makes no statement as to the price to be paid, the law invokes the standard of reasonableness, and the fair value of the services or property is recoverable, * * *” Corthell v. Summit Thread Co., 132 Me. 94, 167 A. 79, 81, 92 A. L. R. at p. 1394.

Here, as indicated, there was substantial testimony that the price to be paid was the market value or above “what it’s worth”, indicating that the price to be paid was the market value. Here it appears that the trial court had no testimony before it as to the value of the truck, other than the owner’s (Smith) testimony, and he testified that it was worth far more than the jury found it to be worth. It further appears that appellant offered Smith $300.00 for the truck and offered to pay this sum into the registry of the court.

Appellant also contends “that there was no testimony in this record to go to the jury establishing appellee ’s damages for the breach of the alleged contract. ’ ’ The court gave the following instruction on damages: “* * * you are told that the measure of damages would be the difference in the value of the truck at the time it was supposed to have been purchased by the defendant and the value at the time it was refused to be purchased, which I believe, under the evidence, is the sum of twenty-one days. The difference in the change of the value of this article during that time. You are told that it would be limited to $600.00 which, testimony shows, was the value of the bed on the truck, as special damages. There is no evidence that the truck changed in value, but there is evidence that the $600.00 was the cost of the milk bed that was on the truck, which he says he couldn’t find a sale for, or find any use for.” Appellant says, with reference to this instruction, that “the trial court, therefore, decided against appellee’s contention that he was entitled to damages by reason of breach of contract to purchase his truck and took that part of the case away from the jury. There has been no appeal from the court’s ruling. The only question before this court is the correctness of the instruction of the court and the jury’s finding with reference to the milk bed that was on the truck.” As we read the above instruction, it, in effect, told the jury that the only issue in the case to consider was the value of the milk bed which has no other use than for hauling milk. There was testimony by the appellee that it was worth $600.00. In other words, the court found that the evidence showed no depreciation of the truck in the twenty-one day period from the date it was supposed to be purchased by appellant and its value twenty-one days later; but the evidence showed that the milk bed had been destroyed as regard to its value. We think the court was justified in giving the above instruction on the record presented.

Finding no error, the judgment is affirmed.

McFaddin, J., concurs.

Ed F. McFaddin, Associate Justice,

concurring. I concur for the purpose of emphasizing: (1) that there was a contract between Campa and Smith; (2) that Smith had performed his part of the contract; and (3) that under such a situation Campa cannot escape liability by claiming that no price was agreed upon for the bed of the truck.

If the conversations had been executory (i. e., unperformed) on both sides, then I doubt if there-would have been a contract. But when Campa accepted Smith’s services it thereby became liable to pay a reasonable value therefor, which was the purchase of the truck.