author: Conley Byrd, Justice. George Rose Smith, J.,

text:
    Arkansas State Highway Commission v. Marlin Hawkins, et al
    5-4648
    437 S.W. 2d 218
    Opinion Delivered February 3, 1969
    [Rehearing denied March 10, 1969.]

      Thomas B. Keys and James K. Biddle for appellant.

      Gordon, Gordon & Eddy for appellees.
   Conley Byrd, Justice.

In this eminent domain action appellant Arkansas State Highway Commission approaches the controversy between it and appellees, Marlin Hawkins, et al, as the taking of 11.01 acres out of a tract of 16.82 acres. Upon this basis it produced as expert witnesses Mr. W. E. Hayes and Mr. Robert E. Hamilton. Mr. Hayes placed the before value at $34,-500, and the after value at $31,250, thus arriving at a damage figure of $3,250. Mr. Hamilton gave a before valuation of $27,000 and an after valuation of $81,000 arriving at a $54,000 benefit to the lands.

Mr. Hawkins approaches the controversy on the basis that the 11.01 acre acquisition is out of an 84.66 acre tract partially developed as a subdivision. He testified to damages of $77,500 based upon a before and after valuation of $237,000 and $159,500. Mr. C. V. Barnes and Mr. Lloyd Pearce, expert witnesses on behalf of Hawkins, arrived at damages of $45,500 and $44,500 respectively. Mr. Barnes gave a before and after valuation of $203,000 and $157,500. Mr. Pearce gave a before and after valuation of $212,000 and $167,-500.

The jury’s verdict was for $55,000. The Highway Commission for reversal relies upon the following points:

I. The trial court committed reversible error in refusing to strike the value testimony of Marlin Hawkins as to the value of 165 lots before the taking and refusing to strike the value testimony of the damages sustained by Mr. Hawkins and the value testimony after the taking and in permitting testimony as to what it would cost to put water and sewer limes to the property.

II. The trial court committed reversible error in refusing to strike the opinion of Mr. Lloyd Pearce as to the value of the land before the taking.

III. The trial court erred in not striking the testimony of Mr. C. V. Barnes as to his value before and after the taking.

IV. There was no substantial evidence to support the verdict and the appellant is entitled to have the judgment modified and the trial court directed to enter judgment in the sum of $3,250 in favor of Hawkins, et al.

FACTS

The record shows that the property owners in 1960 acquired a 117 acre tract described as the NV% of SE14 and S% of SEV4 less three acres in the southwest corner. This was a family purchase for $13,000. In 1963 they donated and sold 31 acres to the Petit Jean Vocational Trade School. After the acquisition of the trade school site, the offsite utilities, including sewer and water, were brought to the property for the use and benefit of the trade school without cost to the property owners.

In 1964 a new high school was built within a half a mile of the Hawkins property. In 1966 a 20 acre site adjacent to the southeast corner of the property was acquired for construction of a new hospital.

The property owners first platted the property in 1960. A replat was filed and accepted by the City of Morrilton in 1964.

When replatted, the property was divided into 165 residential lots and three tracts of commercial property totalling 18 acres. The property was brought into the city and zoned at the time it was replatted.

The property condemned takes all of 11 and part of 15 platted lots and 5.57 acres zoned as commercial. There is also a construction easement affecting 0.56 of an acre of the commercially zoned property. As a result of the taking 26.19 acres, all residential property, lies north of the interstate highway. The balance, including the remainder of the commercially zoned property, lies south of the interstate. The northeastern corner of the property south of the interstate is bordered on the west by State Highway No. 9 and on the north by the off ramp of the freeway interchange at the intersection of Highway No. 9.

Mr. Hawkins testified that in 1939 and 1940 he was Deputy Sheriff and Collector for Conway County; that from 1941 through 1946, except for two years and five months leave, while in service during World War II, he was the Circuit Clerk and Ex-officio Recorder; and that for the last 17 years he had been Sheriff and Collector.

Because of his duties in such official capacities and his general observation of land transactions in the City of Morrilton and surrounding area, he considered that he knew what property was selling for, prior to the taking. His testimony was that the property was located two and a quarter miles from the county court house, and that the City of Morrilton had a 1960 population of 5,997 but that by 1967 the population had increased to 6,955; that there were 2,100 vehicles on Highway No. 9 in 1965 but that it had increased to 3,050 vehicles by 1967. He showed that the North Hills Addition which lies between his property and the high school was selling improved lots for $25.00 per front foot.

Based upon his knowledge Mi'. Hawkins testified that his land immediately before the taking had a fair market value of $237,000; that immediately after it had a fair market value of $159,500 and that his damages would be $77,500. On cross examination he testified that he arrived at the $237,000 figure by calculating the 165 lots at about $1,000 per lot and the 18 acres of commercial at $4,000 per acre. On re-direct Mr. Hawkins stated that the $1,000 per lot was based on what the whole subdivision as a unit would sell for to one person. Al one point in the record Mr. Hawkins said he based the $1,000 per lot upon what he had been offered, but when objection was made, he stated that it was also based upon his knowledge of real estate in the City of Morrilton.

In arriving at the after value of $159,000, Mr. Hawkins considered the taking of 21 lots at $21,000; five partial lots at $500 per lot or $2,500; six acres of commercial property at $4,000 per acre which would be $24,000; and the $30,000 extra cost for the laying of the water ancl sewer lines. The $159,500 is the difference between what he was damaged and wOiat he valued it originally.

Mr. C. Y. Barnes testified that the highest and best use for the property both before and after the taking was for residential and commercial purposes. He described how the construction of the interstate would increase the cost of sewering the property because of the interruption of the gravity flow. He also showed that there w’ould be extra cost in running' the water lines under the interstate to the lots lying to the north. In his opinion the fair market value before the taking was $203,000 and the value afterwards was $157,500.

On cross examination Mr. Barnes showed that he arrived at the before value on the basis that the residential lands had a value of $2,000 per acre and that he arrived at the same overall value by assigning a front foot value of $7.50 for lots with no improvements, $9.50 for lots with gravel streets and some improvements, and $10.50 a front foot for lots on the blacktop roads. In arriving at the value of the lands taken, Mr. Barnes used the same front foot value on the theory that the property taken had the higher set of improvements.

Mr. Lloyd Pearce was of the opinion that the highest and best use of the property both before and after the taking was for the dual purpose of residential building sites and commercial frontage on Highway No. 9. In his opinion the fair market value of the property before was $212,000 and after was $167,500. He placed $39,-785 value on the lands taken, $17,865 damages to the remainder of the lands not taken and a betterment of $13,-150 because of the location with reference to the interchange. On cross examination Mr. Pearce stated that he arrived at a front foot basis per lot by deducting the costs of developing the lots and the profit a developer would expect. He also testified that he calculated the value on an acreage basis and arrived at a valuation of $2,050 per acre for the residential.

Mr. W. E. Hayes, on behalf of the Highway Commission arrived at a value of $34,500. In arriving at his before value he used a per acre value ranging from $1,250 up to $5,000. On cross examination he testified that he considered only the lots or commercial area actually taken or touched. He gave a total enhancement to the remaining lands of $14,605 because of the location of the interchange.

Mr. Robert E. Hamilton testified, on behalf of the Highway Commission, that he considered only the lots or commercial area actually taken or touched by the taking. In his opinion that area had a before value of $27,000 and the remainder after the taking had a valuation of $81,000. The latter figure was on the basis that the interchange enhanced the value of the remainder for a service station site.

I. In contending that all of the valuation testimony of Mr. Hawkins should have been stricken, the Highway Commission relies upon Ark. State Highway Commission v. Watkins, 229 Ark. 27, 313 S.W. 2d 86 (1958) and Ark. State Highway Commission v. Taylor, 238 Ark. 278, 381 S.W. 2d 438 (1964).

In the Watkins case we quoted Nichols, Eminent Domain, 3rd Ed. as follows:

“ ‘It is well settled that if land is so situated that it is actually available for building purposes, its value for such purposes may be considered, even if it is used as a farm or is covered with brush or boulders. The measure of compensation is not (emphasis supplied) however, the aggregate of the prices of the lots into which the tract could best be divided, since the expense of cleaning off and improving the land, laying out streets, dividing it into lots, advertising and selling the same, and holding it and paying taxes and interest until all the lots are disposed of cannot be ignored and it is too uncertain and conjectural to be computed. The measure of compensation is the market value of the land as a whole, taking into consideration its value for building purposes if that is its most available use.’ ”

In the Taylor case we held that where each lot in a subdivision constitutes a separate and distinct use, that only those lots taken or touched are to be considered in arriving at the compensation to be paid the landowner unless it can be shown that the landowner has suffered special damages to lots not taken. In so holding we quoted from Wellington v. Boston & M. R.R. Co., 164 Mass. 380, 43 N.E. 652, as follows:

“ ‘Upon the evidence, all the other lands of the petitioners had been made separate and distinct parcels by transforming the locality into a village with wrought and travelled streets, and making all the land not included in the streets into exactly defined house lots, some of which had been sold to other persons, and ¡each of which then owned by the petitioners was held for the distinct purpose of independent sale. Whether a particular lot of land constitutes an independent parcel is a question which cannot be determined in the affirmative by the mere fact that it is separated from other land by a highway or street, or by paper lines, or by / ¿mees; nor can it be determined in the negative by •' ^íie mere fact that it is all in one ownership, and is r-hot divided by streets or by paper lines. But when, las in the present case, the evidence shows that there ''is an actual division by streets, wrought and in use for travel, and by recorded paper lines, and there is no evidence that any two of the lots are used together, or are held for sale as one parcel, and the only use shown is a separate and distinct use and holding of each lot by itself, we think each lot is a separate and distinct parcel.’ ”

Here the subdivision had developed to the point that the utility mains had been brought to the property but no laterals or service lines has been installed, some improvements were in place and the paper lines had been recorded but the developer was obligated to install all of the improvements to a lot before he could launch a sales promotion. Thus the subdivision had reached the stage where it had been divided into recorded paper lines but no parcel could be considered for a separate and distinct use for lack of the installation of utility service lines.

Some of the difficulties involved in classifying the property as developed or undeveloped for purposes of permitting a per lot valuation or the assessment of damages to lots not taken or touched can best be demonstrated by the Highway Commission’s different positions. The Highway Commission not only described the property taken according to the paper lot lines, but contended that it was error to consider damages to the lots not taken or touched by the condemnation order. Of. course this position could onty be taken if the individual parcels constituted separate and distinct units. In making the contention that it was error for Mr. Hawkins to value the property on a per lot basis, the Highway Commission, in retying upon the Wathms case, supra, must take the position that the property involved is not a subdivision consisting of separate and distinct parcels.

Under the proof here, the per lot valuation given by Mr. Hawkins was upon the basis of what all of the lots could be sold for to one buyer upon an “as is” basis. While the lines of the residential lots were only a paper division, they constituted a unit of measure that was before the jury, and so long as the testimony is based on what a willing buyer would pay for the total of the units in their present status (as distinguished from that which would accrue if sold at a developed retail price), we are unable to see the vice or speculative value condemned in the Watkins case. After all, any other unit valuation ou an “as is” basis would reach the same result for any prudent buyer of property suitable for development would have to do some calculation of the number of lots that could be carved out of the property in its present state. Consequently we find no error in permitting the per lot unit of valuation under the circumstances here involved.

In Ark. State Highway Commission v. O. & B. Inc., 227 Ark. 739, 301 S.W. 2d 5 (1957), all of the witnesses agreed that the highest and best use of the two unplatted lots was for residential purposes. In holding that it was permissible to show the number of lots into which the property could be divided and their value after deduction of improvement costs, we said:

“Nor do we agree with the further contention thai the court erred in admitting testimony relative to the division of the two plots into residential lots and its net value for such purposes after deduction of improvement costs. The established rule in this state in cases like this is that the owner may be allowed to show every advantage that his property possesses, present and prospective, in order that the jury may satisfactorily determine what price it could be sold for upon the market. Little Rock Junction R. Co. Woodruff, 49 Ark. 381, 5 S.W. 792, 5 Am. St. Rep. 51; Kansas City Southern R. Co. v. Boles, 88 Ark. 533, 115 S.W. 375.
“Appellant concedes that potential use of land for subdivision purposes may be considered in establishing market value but says it is error to show the number and value of lots into which a certain tract may be divided. Cases from other jurisdictions supporting this argument involve facts quite different from those in issue here. This is not a case where use for subdivision purposes is merely speculative and too remote to influence present market value. As previously indicated, it is undisputed that the land of appellees was adjacent to and surrounded by well developed residential sec-' tions of the fast growing City of Jacksonville and that its best and most logical use was for residential lot development. In these circumstances we have held the testimo^»- objected to by appellant to be admissible to establish market value.”

Neither can we find any error in permitting the property owner to show the extra cost involved in installing the sewer and water after the taking. Even under our holding in the Taylor case, this cost would classify as special damages not suffered by the public in general, for Mr. Hawkins was obligated under the subdivision regulations of the City of Morrilton to install the utilities before the different x>arcels could be put to a residential use.

II. Appellant’s argument with references to Lloyd Pearce’s testimony is that his valuation was upon a lot basis — i.e., that it was too speculative. As we read his testimony, he arrived at his valuations both on an acreage basis and a front foot basis. The front foot basis was calculated by deducting the cost of improvements not yet made and the profit a developer would require from the selling price of lots similarly situated. Since ho demonstrated that he arrived at the same total valuation under both methods, we are not in a position to say his testimony was so speculative that it should have been stricken.

III. The objection to Mr. Barnes’ testimony is identical to that of Mr. Pearce’s. The record also shows that Mr. Barnes calculated the total valuations both on the per acre unit basis and by the front foot method. He says that the latter method was a check against the acreage valuation. When we consider the fact that the property involved in the taking had some of the higher improvements, we are not in a position to say that Mr. Barnes’ testimony should have been stricken.

In finding no error here, we must point out that the situation in the Watkins ease was much clearer cut than is the stage of the development here.

IV. Under this point appellant argues that there was no substantial evidence to go to the. jury. As we have amply demonstrated above, the evidence of Mr. Hawkins, alone, is sufficient to sustain the verdict. It has been suggested that Mr. Hawldn’s valuation of $4,-000 per acre on his commercial property has no relation to any fact. However the record shows that Mr. Hawkins was as familiar with the comparable sales in the area as any other witness. Even Mr. Hayes, a witness for the Highway Commission, after making a study of the market, found valuations ranging from $1,250 to $5,000 per acre.

Affirmed.

George Rose Smith and Brown JJ., dissent.

Justice Jones would grant remittitur of $9,500.00.

George Rose Smith, J.,

dissenting. The jury’s verdict in this case awarded the landowners $55,000 for 11.01 acres of land, or about $5,000 an acre. If we leave the realm of opinion and look only to actual facts established by uncontradicted evidence in the record, it is an inescapable conclusion that the highway department is beina compelled to pay an unconscionable price for the land. Hawkins "bought 117 acres in 1960 for $13,-000, thereby paying $111.11 an acre for property that is now valued at $5,000 an acre. At the time of the trial the 211 lots were assessed, on the tax books at a total of $5,275, or exactly $25 a lot. If the assessment represented 20% of the fair market value, as the law contemplates, the property was valued by the assessor at $125 a lot, or $600 an acre, there being about 4 lots to the acre.

Hence the verdict can be sustained only on the basis of opinion. More specifically, it can be sustained only on the basis of Hawkins’s own opinion, for not even his own expert witnesses fixed his just compensation at a figure as high as the amount of the verdict. Thus the pivotal issue on appeal is the admissibility of the landowner’s opinion about the value of the property being taken and about the damage to the rest of his lands.

Hawkins’s figures were arrived at solely by assigning a value to each lot in his addition and multiplying that value by the number of lots. He valued 165 residential lots at $1,000 each and 18 commercial acres at $4,000 an acre, making a total value of $237,000 immediately before the taking. He calculated his damages at $21,000 for 21 lots taken, $2,500 for 5 lots partly taken, $24,000 for six commercial acres taken, and $30,000 for the increased cost of laying water and sewer lines (a figure not supported bv any fact in the record), making a total of $77,500.

Under our prior cases Hawkins’s opinion evidence was plainly inadmissible. His residential addition existed on paper only. It was first platted in 1960, when it seems to have been known that the interstate highway was to be located somewhere in the vicinity. It was replattecl in 1964, when more exact information about the location of the highway was available. But by the date of trial nothing had been done toward the development of the addition except a negligible amount of clearing with a bulldozer. Neither streets nor utilities had yet been provided. The tract was still raw land.

Our cases uniformly hold that in such a situation it is not permissible to arrive at a valuation on the basis of individual lot values. As it happens, most of our cases have dealt with unrecorded plats, but it goes without saying that the basic rule is not changed by the mere filing of a plat with the circuit clerk. Union Elec. Power Co. v. Sauget, 1 Ill. 2d 125, 115 N.E. 2d 246 (1953); Pickett v. Kolb, 237 N.E. 2d 105 (Ind., 1968). The issue is one of substance, not of mere form.

We reviewed our earlier decisions in this language in Housing Authority of the City of Camden v. Reeves, 244 Ark. 783, 427 S.W. 2d 196 (1968):

We have consistently held that such a lot-and-block plat is not admissible when the subdivision has really not yet come into existence. The reason for the exclusionary rule is that such an exhibit is apt to mislead the jury into valuing the property as consisting of so many lots, without adequately considering necessary development expenses such as the construction of streets and utility lines, which could not be properly explained to the jury without bringing a, host of collateral issues into the case. Arkansas State Highway Comm. v. Parks, 240 Ark. 719, 401 S.W. 2d 732 (1966). In several of the cases relied upon by the Housing Authority, the subdivision portrayed by the plat was not beyond the planning stage, so that the admission of the plat was fairly sure to mislead the jury. That point was discussed in detail in Arkansas State Highway Comm. v. Watkins, 229 Ark. 27, 313 S.W. 2d 86 (1958), where it was admitted that the land had not been developed at all as a subdivision. Similar non-existent subdivisions were involved in Arkansas Louisiana Cas Co. v. Howard, 240 Ark. 511, 400 S.W. 2d 488 (1966), and Arkansas Louisiana Gas Co. v. Lawrence, 239 Ark. 365, 389 S.W. 2d 431 (1965). Such an exhibit is especially misleading when, as in the Watkins case, it is accompanied l)3r testimony about the value of the fictitious lots.

Even more precisely in point in the case at bar is Arkansas State, Highway Commn. v. Watkins, 229 Ark. 27, 333 S.W. 2d 86 (1958), because there the plat was not introduced; so, as here, we were considering the admissibility of opinion evidence about the value of lots in an addition existing only on paper. Excerpts from the opinion:

The measure of compensation is not (emphasis supplied) however, the aggregate of the prices of the lots into which the tract could best be divided, since the expense of cleaning off and improving the land, laying out streets, dividing it into lots, advertising and selling the same, and holding it and paying taxes and interest until all the lots are disposed of cannot be ignored and it is too uncertain and conjectural to be computed. The measure of compensation is the market value of the land as a whole, taking into consideration its value for building purposes if that is its most available use.
ft ft ft ft
“It is proper to show that the property is suitable for division into village lots, and that it is valuable for that purpose, but it is not proper to show the number and value of such lots.” Lewis, Eminent Domain, Vol. 2 (2nd Ed.) P. 1058.

The majority opinion in this case cannot be reconciled with our prior holdings. Two efforts are made to distinguish the law as we have previously stated it, but neither effort can stand scrutiny. First, it is said that the highway department itself recognized “the paper lot linos'' (an apt description!) by describing the property by lot numbers in its pleadings. That procedure was unquestionably right, for when an addition has been platted a description by reference to the plat is valid. Indeed, that is ordinarily the only legal way to describe the lots. Secondly, it is said that a prudent buyer would have to do some calculation of the number of lots that could be carved out of the property in its present (undeveloped) state. Of course that is true, but exactly the same thing could have been said in the Watkins case and in our other decisions rejecting such testimony. The point is not what a prudent buyer might consider in pricing the property; it is what kind of opinion evidence is sufficiently reliable to be submitted to a jury of laymen. Our prior eases have unequivocally ruled out testimony such as Hawkins’s opinion in this case.

In truth, Hawkins’s testimony is also vulnerable to the rule that an. opinion not supported by any fair or reasonable basis is not substantial evidence. Arkansas State Highway Commn. v. Stanley, 234 Ark. 428, 353 S.W. 2d 173, 4 A.L.R. 2d 749 (1962). Hawkins’s evaluation of his property at $4,000 an acre had, as we said in the Stanley case, no relation to any fact in the record. On cross-examination he conceded the purchase prices involved in many sales of comparable or even more desirable property in the same vicinity as his lands. Nor instance, the St. Anthony’s Hospital property sold for $1,200 an acre; the R. W. Morgan, Jr., property for $1,000 an acre; the Carl Long property for $1,143 an acre; the Rex Jones property for $1,365 an acre; the Hr. Mnglelioven property for $600 an acre, and the Hodge property for $600 an acre. In the teeth of all those actual sales at arm’s length Hawkins still insisted that in liis opinion his property was worth $4,000 an acre. Just as in the Stanley case, that figure “seems to have been plucked from the air and might equally well have been ten thousand dollars or a hundred million dollars." Such fanciful figures are not substantial evidence.

I would reverse the judgment and remand the cause for a new trial.

Brown, J., joins in this dissent.


source: Caselaw Access Project

author: Frank Holt, Justice. John A. Fogleman, Justice.

license: Public Domain

text:
    Bill Shopfner, et al v. Mrs. Willie Clark
    5-4782
    436 S.W. 2d 475
    Opinion Delivered February 3, 1969

      Garner & Parker for appellants.

      Franklin Wilder for appellee.
   Frank Holt, Justice.

Appellee brought suit against appellants alleging that she had sustained damages from the unauthorized use of her property by appellants.

Appellee owned a store building and rented a part of it as a meat market at $56 per week. Shortly thereafter, on June 11,1967, the tenant qnit business and surrendered possession, neglecting to remove several meat boxes and other fixtures. The appellants, as creditors of the lessee, secured a default judgment against the lessee and on September 11, 1967 levied upon the equipment. The deputy sheriff, following appellants’ instructions, posted a copy of the levy upon the front door of appellee’s building.

Thereafter, appellee communicated to appellants her request that the fixtures be removed from her building. Appellants failed to comply with this request. In January 1968, appellee served upon appellants a three-day “notice to quit,” pursuant to Ark. Stat. Ann. § 34-1503'(Repl. 1962). Upon appellants’ continued failure to remove the equipment, the appellee then sued for immediate possession, $900 in damages for the current loss of use of her building, $200 for each additional month of alleged misuse, and “any other damage which this plaintiff might sustain by reason of the unlawful detainer of these defendants, and for all other proper relief.” Before trial, appellants removed the equipment. Thus, the only issue at the trial was the question of damages. The court, sitting as a jury, found for appellee and assessed her damages in the amount of $400. The court credited, or allowed the appellants sixty days for “action” from the date of the levy of execution in September. Damages were then awarded for a period of four months, i.e., from November 1967 to March 1968, the month appellants removed the fixtures. Prom that judgment the appellants have apjoealed.

Por reversal appellants contend that an unlawful detainer action is based upon a contract and will not lie except where the relation of landlord and tenant exists between the parties, and further, that damages are not recoverable in an unlawful detainer action.

This court has consistently held that an action of unlawful detainer presupposes the relation of landlord and tenant, and such action will not' lie except where that relationship exists. Hilliard v. Yim, 207 Ark. 161, 179 S.W. 2d 456 (1944); Miller v. Plummer, 105 Ark. 630, 152 S.W. 288 (1912). However, damages for unlawful detainer can be recovered. Ark. Stat. Ann. § 34-1516 (Repl. 1962) permits a court or jury to assess damages in a forcible entry or an unlawful detainer suit.

The fact that appellee used the words “unlawful detainer” in her complaint is not controlling as to that type of action and we do not construe her pleading as being an unlawful detainer action. We have stated many times that courts must look to the substances of a pleading and it will be interpreted according to its substance rather than its form. Under our civil- code, pleadings are liberally construed and every reasonable intendment is indulged favorable to the pleader. Myers v. Majors, 242 Ark. 326, 413 S.W. 2d 661; Stroud v. M. M. Barksdale Lbr. Co., 229 Ark. 111, 313 S.W. 2d 376; Craft v. Armstrong, 200 Ark. 681, 141 S.W. 2d 39. Consequently, appellee’s complaint could properly be considered by the trial court as merely a suit for damages.

Appellants further assert that: “A judgment creditor upon the levy of the goods of his debtor acquires no interest in said goods.” It is argued that an officer who levies execution on personal property is not only held to be entitled to possession thereof as against the judgment debtor, but is generally presumed to be rightfully in possession of the goods taken in execution, citing 30 Am. Jur. 2d § 267. Therefore, it is contended that since a judgment creditor does not acquire the ownership of goods upon a mere levy of execution, without doing more, then if anyone is responsible for the loss of use of appellee’s building, it is the sheriff. We think appellants’ argument is without merit in the case at bar since their actions involved more than the mere levy of an execution.

To support their contention that the execution officer is the party responsible for damages, appellants cite Frizzell v. Duffer, 58 Ark. 612, 24 S.W. 1111 (1894). There plaintiff had rented his house with the understanding that the tenant agreed to vacate upon one day’s notice. A deputy constable, under a writ of attachment issued against the tenant, levied upon certain chattels situated in the house. The deputy obtained the keys by an agreement with the tenant and retained possession for some weeks after he had received notice to surrender the house to plaintiff. We said that the holding of the house after receiving notice to vacate was a trespass and that the constable, being responsible for his deputy’s misconduct, was liable for damages to the owner of the house in an amount which would equal the fair rental value of the house “during the time of the unlawful detention.” We think the reasoning in this case can fairly be applied to the case at bar. An execution creditor has large control in the management of the levy of an execution and the levying official is, sometimes, regarded as an agent. 30 Am. Jur. 2d § 223.

In the instant case it appears that the levying official was at all times acting at the direction of appellants. The appellants had the execution issued and levied; the sheriff served it on the judgment debtor and then proceeded to post a copy on the front door of appellee’s building as instructed by appellants. Subsequently, there were “calls” received by the levying official about “selling” the fixtures and “a call about rental property.” These calls were referred to appellants. According to this official, he looked to appellants for his instructions before taking any action. About four months after the idle lew upon the fixtures, it was discovered that the papers had not been filed in the circuit clerk’s office because the sheriff’s fee had inadvertentlv not been paid. This was corrected immediately.

Appellee testified that she felt she could not touch or remove the property in her building since a copy of the execution papers, itemizing the fixtures levied upon, was posted on the front door. Therefore, she could not rent her building and rental was “turned down twice because of it. ’ ’ There was evidence that appellee made demands upon appellants for payment of rent and removal of the equipment from her building. She was told that the fixtures would be removed several months before the actual removal by appellants. One explanation was that they had “no place to move it.” Appellee rented her building for $500 per month when the appellants moved the equipment in March.

There being substantial evidence to support the trial court’s action, as a trier of the facts, the judgment is affirmed.

Fogleman, J., dissents.

John A. Fogleman, Justice.

I disagree with that part of the majority opinion dealing with appellants’ liability for the action of the levying officer’s acts. Certainly it is beyond dispute that an execution creditor acquires no interest in the property upon which the execution is levied. The basis of the action of the majority on this facet of the case is not clear to me, but it seems to rest in part upon a suggestion that the levying officer was the agent of the execution creditor. I do not feel that such a holding is justified. I do feel that this results in a dangerous and unwarranted precedent. The evidence upon which this holding is premised is the deputy sheriff’s testimony that appellants’ attorney directed him to post the notice of levy upon the front door of appellee’s building, appellee’s statement that she told appellants’ attorney to “do something about it,” that he promised to do something several months before any action was taken, that appellants failed to remove the property levied upon from her building, that appellants failed to remove the property after she caused a “3-day notice to quit” to be served upon appellants, one of appellants was admitted to the premises by appellee when he came out and wanted to take inventory of the property upon which the levy had been made, and the first levy was not returned by the sheriff to the clerk because tlie sheriff’s fee had not been paid. These circumstances combined are insufficient to evidence an agency, in my opinion.

There is no evidence that appellants or their attorney took any action to control the manner of the levy of the execution or the disposition of the property after the levy. There was nothing in the notice of levy posted upon appellee’s building that purported to do anything other than to give notice that the particular personal property had been levied upon and was in the custody of the sheriff. Until the sale the property was in the custody of the sheriff and it was his obligation and duty to take care of it. 30 Am. Jur. 2d 601, Executions, § 266. The execution creditor had no right to its possession. 30 Am. Jur. 2d 602, Executions, § 267. The most that can be said is that the execution creditor knew that the property was in appellee’s building and failed to instruct the sheriff to remove it. I cannot see how liability of an execution creditor can be premised on this.

I would reverse the judgment and dismiss the case.


author: Carretón Harris, Chief Justice.

text:
    Carson Steel, Ronald Steel and Mrs. Ronald Steel v. State of Arkansas
    5-5386
    436 S.W. 2d 800
    Opinion Delivered February 10, 1969

      John B. Hainen for appellants.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   Carretón Harris, Chief Justice.

This appeal concerns a bank robbery. On the morning of September 27, 1967, a little after 10:00 o’clock, the Bank of Lockesburg, Lockesburg, Arkansas, was robbed by a lone gunman. As he entered the bank, this man pulled a ladies’ stocking over his face, directed bank employees and customers to lie down on the floor, and told R. C. Norwood, president of the bank, to open the safe. Mrs. R. C. Norwood, also a bank employee, asked if she would be permitted, rather than her husband, to open the safe, and upon receiving a reply in the affirmative, opened it, and, together with the robber, took money, which he placed in a sack having the appearance of a large pillow case. The amount taken was $12,814.00. Thereupon, the gunman ran out of the bank, and drove off in a 1966 blue Ford sedan in a northerly direction. Officers in the area were alerted, and road blocks and other measures were effected in an effort to secure the capture of the robber. In less than an hour, Ronald Steel, his wife, Boris Steel, brother, Carson Steel, Jr., and Boyce McCary were arrested in connection with the holdup. All were subsequently charged with robbery, - and on trial appellants were found guilty by a jury. The two brothers were given 15 years imprisonment, and Boris Steel was given 5 years imprisonment. From the judgment so entered, appellants bring this appeal. Several points are urged for reversal, and we proceed to discuss these contentions, though not necessarily in the order listed.

First, the sufficiency of the evidence to sustain the convictions is questioned. In chronological order, the facts developed were as follows:

Bobby Friday operated an Esso service station at Lockesburg, the station being located across the street from the bank. Mrs. Bessie Dowdle, who had apparently left her automobile at the station while she went to the bank, returned and told Friday that the bank was being robbed. As she was telling Friday of the occurence, he heard the squeal of tires, looked up, and saw a 1965 or 1966 light blue Ford being driven away. Friday endeavored to get the license number, and testified that the car sped away heading north on Highway 71. The witness only observed that someone was driving the car, and he saw no one else standing around the bank.

Louis Hilton, Sheriff of Sevier County, on September 26 received a report that a 1966 Ford with Sevier County tag No. 56-2321 had been stolen from the rubber plant in DeQueen. About 10:15 or 10:20 A.M. on the 27th he received the report of the bank robbery, and also information about the blue 1966 Ford. The sheriff started for Lockesburg in his automobile, and Carroll Pag.e of the Arkansas State Police left at the same time as the sheriff in a separate automobile. While traveling Highway 71, between DeQueen and Lockesburg, Hilton observed a tan 1965 Pontiac automobile parked on a crossroad on the west side of 71, about 100 yards from the highway. The sheriff drove over to the car, stopped, and inquired of the occupant, a young woman, if she needed help. She said that she did not, and when asked what she was doing there, replied that she was waiting on her husband. The woman gave her name as Doris Steel, and stated that her husband had told her to wait there and he would be back in a few minutes; she did not know where he had gone, but said he was in a pickup truck, and would be back shortly. According to the sheriff, Mrs. Steel was dressed in blue jean shorts, a blue jacket with the word, “Alaska,” written on it, and was barefooted.

Louis Graves, publisher and editor of the newspaper at Nashville, Arkansas, drove up to where the sheriff and Mrs. Steel were talking. It developed that Page also, while traveling on the highway, had observed the Pontiac parked on the side road, and the state officer liad requested Graves (upon meeting the latter on the highway), to “check it out” for him. While talking, they heard a vehicle approaching. From the sheriff’s testimony:

“* * * As I was talking to Mrs. Steel, there was a pickup truck started down this same road, and I heard the pickup truck’s brakes, when he applied his brakes. There was some loose gravel on this part of the pavement. I heard that and I looked up and saw the pickup was headed in the direction of where we were at, and it immediately backed up and turned around and headed north.”

He said that he could tell that three people were in the pickup, and he immediately started in pursuit, asking Graves if he would remain there with Mrs. Steel until he returned. Describing events, the sheriff continued :

“Well, I was in pursuit. The car -went on north on 71 until it came to a dead-end road, which goes up to Mr. Bradshaw’s residence. The pickup turned up that road. * * *
“After I got on to 71, I saw the pickup, and then the pickup dropped out of sight for, oh, I’d say a few seconds. * * *
* * * After I got to the point where I had seen the pickup last, I could see on this straight stretch for possibly a mile or a mile and a half, and it wasn’t there. I knew about this road, and as I got to this road I felt it had turned up that way, and when I looked up the road, I saw the pickup on the Bradshaw road.”

When the officer turned up the road, the pickup “took off real fast.” The sheriff continued behind, blowing his horn, endeavoring to persuade the driver of the truck to stop, and then held his rifle out the window and fired into the air. The truck then stopped, approximately 150 yards from a private drive leading to the home of William Henry Bradshaw. The sheriff directed the occupants of the pickup to get out of the truck with their hands up, and further directed them to lie on the ground face down. About that time, Bradshaw, having heard the shot, came to the scene, and the sheriff had Bradshaw hold the gun while he (the sheriff) searched the three occupants of the truck. No comprehensive search of the vehicle was made at that time, though Hilton testified that he looked in the bed of the pickup, saw two pistols lying in a cardboard box, reached in and got the weapons, and found that they were loaded. He subsequently obtained a search warrant for the pickup, and also a search warrant for the Pontiac automobile occupied by Mrs. Steel. The three men in the pickup were appellants, Ronald and Carson Steel, Jr., and Dovce McCary. When the sheriff walked a short distance down the road, looking over the area in furtherance of his investigation, Bradshaw heard Ronald Steel say, “Now that they’ve got us, what are we going to do?” McCary told Steel to keep his mouth shut. The three were driven back to Loekesburg by Bradshaw in the pickup, with the sheriff following. Upon arriving there, they were taken to the bank. In the meantime, Graves had brought Mrs. Steel to the bank.

There, Mrs. Norwood, and some others who were in the bank at tlie time of the robbery, were present. Mrs. Norwood testified that she was not asked to make an identification, and she did not volunteer an identification. No one identified the man who had held them at gunpoint when the robbery took place. Statements were taken from the two Steel brothers about 11:15 A.M. after they had signed waivers and acknowledged that they had been advised of their constitutional rights. Both steadfastly maintained that they were not guilty of robbing the bank. Later on in the day, Ralph Rawlings, a special agent with the F.B.I., interviewed Ronald and Carson Steel at the County Jail in Nashville, and talked with Mrs. Steel at the sheriff’s office in DeQueen. The officer testified that he explained to each appellant his or her rights, and further presented each with a written statement of rights, and a waiver form, which he also explained. The special agent tesified that all voluntarily signed the waiver. Rawlings said that all stated they could read, and, before signing, they were advised that they were being investigated for the robbery of the bank. None.of the appellants signed any statement as to his or her activities, and none asked for the services of a lawyer, but they did orally answer questions. Ronald Steel related that he and his wife, on September 26, were at his mother’s home near Broken Bow, Oklahoma; that they went to the home of Doyce McCary at Wright City, Oklahoma, finding Carson Steel, McCary’s wife, and another woman there. After staying a while, Ropald and his wife returned to Broken Bow, remaining at the mother’s during the night; the next morning, Carson Steel and McCary came to the home in McCary’s pickup truck. All four then left in two vehicles, Ronald and Doris being together in the Pontiac, and McCary and Carson Steel traveling in the Ford pickup. Ronald said that the reason for the trip was to go deer hunting. The officer called attention to the fact that it was not deer season, and that appellant did not have a rifle or shotgun, but Ronald replied that lie was going to shoot deer with his pistol (a snub-nose). According to this appellant, the purpose in turning down the road (where the appellants were apprehended by the sheriff) was to ask a man about purchasing a dog.

Carson Steel related that he had spent the night of September 26 at the home of McCary and Mrs. McCary, but said (contrary to Ronald) that they had no visitors. He stated that he and McCary drove the next morning to Broken Bow, stopped at his mother’s home, and there joined Ronald and Doris. According to this brother, ■he and Doyee left first in the pickup truck; the purpose in going' to Lockesburg was to find some coon dogs. They met Ronald and his wife about 9:30 A.M., and the brother got into the truck with them, leaving the wife where they had parked the automobile. He was unable to name anyone that they contacted about dogs.

Doris Steel related that she and her husband had visited McCary and his wife on the night of the 26th and had returned to the mother’s home at Broken Bow, where they spent the night. She said that Ronald had told her she could go deer hunting with them the next day, and she and her husband left home and were joined by McCary and Carson in Lockesburg. She told the officer that the men would not let her go deer hunting with them because she had forgotten her shoes.

As previously stated, search warrants were obtained, and both the pickup truck and Pontiac automobile were searched. The only items found in the pickup truck (outside of the two pistols) that could have any bearing on the robbery were a white homemade pillow ease and a new handkerchief which was knotted. The only item found in the Pontiac that could be considered relevant to the crime was one ladies’ stocking.

The 1966 blue Ford automobile with the license No. 56-2321 was found about six miles west of Lockesburg, 160 paces north of Highway 24, but appellants were nevei' connected with this automobile. A light, blue 1963 Chevrolet automobile was found in the Tower Road vicinity the morning of the robbery, which bore a fictitious Oklahoma license. This car was apparently found about six miles from Lockesburg, but appellants were never connected with this vehicle. About a mile and a half from where this car was found, the officers located a spot where the road had been washed out and traffic could not go farther. From impressions, it was obvious that two motor vehicles had been parked close together, one having road grip tires used on automobiles, and the other bearing a type usually used on pickups; the area had the appearance of several people having stood between these vehicles. Richard O’Connell of the F.B.I. picked up a paper tag which has been torn off a piece of material. The tag read, “100% Cotton RN 14240.” The officer placed this in an envelope, and it was subsequently sent to the F.B.I. laboratory in Washington. Cigarette butts were found and also a bare heel print.

William S. Oberg, a document examiner employed at the F.B.I. laboratory in Washington, testified that he made an examination of the label found by Officer O’Connell, and the handkerchief found in the pickup truck. After explaining in detail how the examination was conducted, Oberg testified that the label had originally been attached to the handkerchief taken from the truck. A small part of the paper tag had remained on the handkerchief. From the testimony:

“The outline portion of State’s Exhibit No. 3 [label] matches the torn outline of the paper on State’s Exhibit No. 10 [handkerchief], and as a result, I concluded that State’s Exhibit No. 3 was derived from State’s Exhibit No. 10, that at one time they were part and parcel of the same thing”.

On cross-examination, Oberg repeated his conclusions rather emphatically.

Lawrence Dinger, who lives a few miles from DeQueen, was formerly a resident of Bartlesville, Oklahoma. He testified that he saw Ronald Steel in November, 1967, at a tavern near Broken Bow, Oklahoma, and which was owned by an uncle of the Steel boys. Dinger said that Ronald Steel was talking to an acquaintance of Dinger named 'William Allen, and that, as he (Dinger) walked up to the two men, he heard Ronald Steel say to Allen, “The money is buried and we haven’t touched a dime of it.”

It is true that most of the evidence was circumstantial, but we think the circumstances, when taken together, constitute sufficient evidence to sustain the convictions. No evidence was offered on behalf of appellants of why they made the trip from Oklahoma to Lockesburg — what they did after arriving at Lockesburg — why the men fled from the sheriff, and would not stop the pickup — why Doris Steel was sitting alone in the Pontiac —or why only one stocking was in the car. Of course, the jury probably did not consider the explanation given to the officers as credible. Deer hunting — out of season — without dogs — and with pistols — could hardly be called a plausible or reasonable explanation of appellants’ actions prior to their arrest. The testimony of William Henry Bradshaw stood uncontradicted, and though no positive identification was made, Mrs. Nor-wood, at the trial, pointed out Ronald Steel as the man, in her opinion, who robbed the bank, stating, “Well, in my own mind I think so.”

It is contended that the constitutional rights of these appellants were violated, and several federal cases are cited in support of tliis contention. It is asserted that a line-up occurred at the bank when appellants were taken there after the robbery. The United States Supremo Court has held several times that a suspect is entitled to counsel, unless waived, when he is confronted by witnesses for an out of court identification. United States v. Wade, 388 U. S. 218, Stovall v. Denno, 388 U.S. 293, Gilbert v. California, 388 U.S. 263. We find no violation of the rule set down in those cases. Mrs. Nor-wood stated that she was not asked to identify any of the appellants as the robber, and no out of court identification was made. Actually, the evidence of the confrontation was elicited by appellants during cross-examination of Mrs. Norwood as a matter of testing her credibility relative to her remarks made on the witness stand as to identification of Ronald Steel.

It is argued that the testimony of Bradshaw constituted error. We do not agree. The statement of Ronald Steel was a spontaneous and voluntary statement, and was made at a time when he was not being interrogated. We have held such statements admissible. Turney v. State, 239 Ark. 851, 395 S.W. 2d 1.

It is urged that the search of the pickup truck by the sheriff at the time of apprehending the appellants was illegal. We find no merit in this contention. The sheriff, of course, was entitled to search the truck, if the arrest were lawful. Under the circumstances, it clearly appears that the officer had reasonable grounds to believe that the appellants had committed a felony, and the search was therefore incident to a lawful arrest. The bank had just been robbed, and the occupants of the pickup truck were very clearly fleeing, and endeavoring to get away from the sheriff. Not only that, but, according to his testimony, the two pistols in the pickup were in clear view.

Appellants also question the validity of the search warrants, but no objection on this basis was made at the time of the introduction into evidence of the property taken from the vehicles, nor was any motion made to suppress this evidence. In Moore, Frazier, Davidson v. State, 244 Ark. 1197, 429 S.W. 2d 122, we held that the burden of proving the invalidity of a search warrant rests on the defendant, and if it is contended that the warrant is not valid, the affidavit and warrant in support of a motion to suppress should be produced. Objection was made to the introduction of articles found in the vehicles as being immaterial and irrelevant, but we have already pointed out that some articles were relevant, and certainly there was no prejudice in the presentation of articles (mostly clothing) which failed to connect appellants with the crime.

It is asserted that the holding in Gideon v. Wainwright, 372 U.S. 335, was violated, but this assertion is erroneous, as an attorney was appointed by the court to represent these appellants. The argument itself is really directed to a contention that the appointed counsel did not furnish adequate representation. Prom the brief:

“An additional problem on the appointment of counsel simply cannot be avoided. The appointment of counsel of experience is important. This Court has judicial knowledge of the experience of the Court appointed lawyer who had not been long in practice, never appealed a case.”

The record does not reflect whether this attorney had appealed a criminal case, but appellate practice would hardly seem to be as important as experience in trial practice. This phase of his practice is not shown, but tlie experience or ability of appointed counsel is not so important in this case as it might be in others, since appellants were also represented by an Oklahoma attorney. "When defendants are represented by counsel of their own choice, they are hardly in a position to complain that court appointed counsel was inadequate. Present counsel intimates that the Oklahoma attorney was not qualified to represent these appellants because he was not a member of the Arkansas Bar. We very quickly disagree — but of course, an accused person is entitled to retain whomever he desires to represent him.

It is argued that the requirements of the rule established in Miranda v. Arizona, 384 U.S. 436, were not complied with. We find no merit in this allegation. While none of the appellants testified before the jury, all three testified before the court in chambers relative to the statements. Ronald said that he was not advised of constitutional rights, though he admitted reading the waivers. Carson said that he had already made some statement before signing the waiver. Doris said that she was nervous and couldn’t comprehend the meaning of the waiver. The court held that the statements were voluntarily made after appellants were advised of their constitutional rights and this finding is supported by the weight of the evidence.

As heretofore pointed out, the state’s proof reflected that ¡each appellant was handed a waiver which set out the constitutional rights enumerated in Miranda; each read the instrument, and each voluntarily signed the waiver. No complaint is made about the federal waiver, other than it is not in harmony with the one given by the state, and counsel argues that appellants were given conflicting advice. We find no conflicts. The state waiver reads as follows:

“Before we ask you any question, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning. You have the right to the advice and presence of a lawyer even if you cannot afford to hire one. We have- no way of giving you- a lawyer, but one will be appointed for you, if you wish, if and when you go to cour . If you wisli to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop at any time until you talk with a lawyer.
WAIVER
“I have read the statement of my rights shown above. I understand what my rights are. I am willing to answer questions and make a statement. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me.”

This waiver is practically identical with the one used by federal officers, except for the italicized sentence .

It is apparently appellants’ contention that this sentence precluded the warning from being valid. It will be noted, however, that appellants were advised that they could remain silent; that anything they said could be used against them in court; that they had the right to talk to a lawyer before being asked any questions, and the right to have that lawyer with them during questioning. They could not have been more clearly told that they had the right to infuse to make any stat em en ts whats o ever.

It is asserted that error was committed by using a witness whose name had not been listed as one who would testify3' for the state. This allegation has reference to the testimony of Lawrence Dinger. On January 24, the court had directed the prosecuting attorney to advise appellants of witnesses that he planned to use, but according to the state, it was not known at that time that Dinger would be a witness, and the prosecuting attorney subsequently stated (at a hearing on a motion for new trial) that counsel were notified of any new witnesses as soon as they were known, or subpoenaed by the state. Ark. Stat. Ann. § 43-1004 (Repl. 1964) recluiros that the names of all witnesses, who were examined prior to the finding of an indictment, should be written on the indictment. In Baker v. State, 215 Ark. 851, 223 S.W. 2d 809, we held that, assuming, though without deciding, that this provision is applicable to informations, the requirement is merely directory. It might be pointed out that, though a continuance was asked for on other grounds (not argued as reversible error), no statement of surprise was made by defense counsel, nor any motion made for a continuance, when Dinger was called to the witness stand. It is also argued that defendants’ counsel was unable to obtain any information from the federal officers with regard to the testimony they would present at the trial. On the day of trial, an oral motion was made to strike all witnesses who were not listed in the bill of particulars, and to exclude all F.B.I. and state reports. The court overruled the motion, but stated that it would give counsel all the time required to talk to any and all witnesses prior to their testifying. The prosecuting attorney was also directed to furnish counsel with a copy of any reports that he planned to introduce. It is argued that the Jencks Act, 18 U.S.C.A., Section 3500, was violated. In the first place, that act only applies to criminal prosecutions brought by the United States, and in the next place, there is no requirement that the statement of any witness called by the government bo given counsel for defense until after that witness has testified on direct examination.

It is asserted that the trial court did not admonish the jury that the statements of Bradshaw could not be considered as against Doris Steel, and did not grant a severance, and these omissions constituted error. The simple answer to these assertions is that no request for either action was made by the defense.

It is argued that the court erred in not granting a motion which was made for a change of venue. The basis for this motion was three newspaper articles, relative to the robbery, two appearing in the DeQueen Bee, a weekly paper published in Sevier County, and the other being published in the DeQueen Daily Citizen. The first story complained about was published on Thursday, September 28, 1967, and is an account of the bank robbery. There is also a picture taken at the bank of the suspects, just prior to their interrogation by officers. The article is simply a news item, and recites that appellants were being questioned in connection with the robbery. It will be noted that this issue was published some seven months before the trial. The Thursday, October 5, 1967, issue of the paper merely recited that these three appellants had entered pleas of not guilty, and that each had been released on a $5,000.00 bond. None of the evidence was recited except the fact that the stolen Ford had been found abandoned. The third newspaper offered in evidence was the April 24, 1968, copy of tlie Daily Citizen, which was published five days before the trial. The article itself was very brief, reciting that appellants would be tried on Monday, and listed the names of the jurors for the adjourned February term of court. However, one sentence read as follows:

“All four had entered guilty pleas and were free on $5,000.00 bond each.”

Obviously a typographical error had been made, and the sentence should have read, “All four had entered not guilty pleas.” This is the only statement that could at all have had any adverse effect, and certainly any member of the jury learned at the very outset of the case, that no plea of guilty had been entered. Neither affidavits nor testimony was offered that appellants could not receive a fair trial, nor does the record reflect that members of the jury panel were questioned with regard to whether the newspaper articles had influenced them in any manner. In other words, there is absolutely no showing of any possible prejudice.

In June, 1968, a hearing was held on an amended motion for a new trial, wherein it was asserted that new evidence had been discovered that would impeach the evidence offered by Lawrence Dinger on behalf of the state; ‘William Allen testified on behalf of the appellants, the substance of his testimony being that Steel did not make any statement to him about buried money, nor the ijockesburg bank. Allen said that there was a conversation about money, but it concerned a shotgun. In Gross v. State, 242 Ark. 142, 412 S.W. 2d 279, this court mentioned that newly discovered evidence is one of the least favored grounds of a motion for new trial, and that such motion is addressed to the sound legal discretion of the trial judge. It was further pointed out that the mere fact that the evidence is contrary to that offered at the trial by the state is insufficient, and that it must be shown that, because of this evidence, a different result upon a new trial is probable. We said that in order to justify the granting of the motion, the evidence in support thereof should be clear and satisfactory, and the trial court’s action should not be disturbed unless it is manifest that an injustice has been done. After studying this testimony carefully, we are not persuaded that the trial court abused its discretion, and this feeling is strengthened by the fact that no request for a continuance was made when Dinger was called to testify.

Other alleged errors during the trial are mentioned, including some alleged errors that do not appear in the record. We, of course, have given no consideration to the last mentioned, but every alleged error which appears in the transcript has been examined, and found to be without merit.

Affirmed.

      McCary is not involved in the present appeal, nor does the record reflect what disposition, if any, has been made of the case against him.

      According to other witnesses, Mrs. Dowdle had started into the bank, saw what was going on, and backed out.

      He missed the year, and took the number as 56-2322, whereas the number actually was 56-2321.

      Carroll Page testified that he “probably” asked if the bank bandit could be identified by anyone present.

      One of the officers mentioned a Chevrolet automobile with a Texas license, but it is not clear whether he was speaking of the same Chevrolet.

      A new handkerchief was taken from both Ronald and Carson Steel, and the similarity of those handkerchiefs to Exhibit No. 10 prompted the officers to send in Exhibits 3 and 10.

      Emphasis supplied.

      The federal waiver provides:
      “Before we ask you any questions, you must understand your rights.
      “You have the right to remain silent.
      “Anything you say can be used against you in court.
      “You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.
      “If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
      “If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
      WAIVER OF RIGHTS
      “I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.”


author: George Rose Smith, Justice.

text:
    Sidney Dyer v. E. E. Payne, et al
    5-4812
    436 S.W. 2d 818
    Opinion Delivered February 10, 1969

      Chowning, Mitchell, Hamilton & Burrow for appellant.

      George J. Cambiano for appellees.
   George Rose Smith, Justice.

This is an action for personal injuries sustained by James Payne, who was an eighteen-year-old truckdriver at the time of the accident. As James was about to meet the appellant’s truck on a highway a large rock fell from the appellant’s truck, bounced through James’s windshield, and struck him in the mouth, causing the injuries complained of. The jury awarded $30,000 to James and $5,000 to his father for past medical expenses, but the trial court reduced the. latter to $650, which was the greatest amount sustained by the proof. Here Dyer’s sole contention is that the $30,000 award to James is excessive.

"\Ye have said more than once that precedents are of scant value in appeals of this kind. In each case we must study the proof, viewing it most favorably to the appellee, and decide the difficult question whether the verdict is so great as to shock our conscience or to demonstrate passion or prejudice on the part of the jurors.

Among the immediate results of the accident were a loss by James Payne of about a month’s time from work, during which he frequently suffered severe pain, and eventually a loss of ten pounds in weight. Several upper teeth and part of the bone in James’s upper jaw wore destroyed. By dental surgery James was fitted with what is described as a ten-unit bridge, but the surgeon testified that he was not happy with the result. Owing to the loss of bone the bridge cannot be made to fit satisfactorily and will cause discomfort as long as the bridge lasts. James was still suffering pain at the time of the trial, more than seven months after the accident.

The ill-fitting bridge has affected James’s ability to speak clearly — to an extent that was doubtless clear to the jury but of course is not equally clear to us. James’s mother testified that for months after his injury lie was too embarrassed to go to church, to go out with girls, or even to go out with other young men as often as he used to. The jury could have concluded from the testimony that the mortifying speech difficulties will continue indefinitely.

What must have impressed the jury, as it does the members of this court, is the permanent consequences of the injury. James’s teeth were already subject to some decay, owing to faulty dental hygiene. It is expected that by the time this young man reaches twenty-five the bridge will have weakened the anchoring teeth to such an extent that James will have lost all the teeth in his upper jaw. A complete upper plate will be required, but the dental surgeon expected that it would be a source of pain, discomfort, and expense for the rest of the patient’s life.

We have suffered much anxiety in the study of the case, for the award is unquestionably liberal. Nevertheless, when we take into account .the fact that this youth will suffer pain and discomfort and perhaps speech difficulties for each waking hour over a period of forty or fifty years, we are unable to say that the amount of the award — especially in view of the constantly decreasing purchasing power of the dollar — is so great that it shocks the conscience of the court. Nor are we convinced that the jury’s award of excessive damages to James’s father for medical expenses necessarily shows that the personal injury award was motivated by passion or prejudice. In our best judgment the decision of the trial court must be upheld.

Affirmed.


author: Lyle Brown, Justice.

text:
    Walcott & Steele, Inc. v. Rosamond Carpenter
    5-4818
    436 S.W. 2d 820
    Opinion Delivered February 10, 1969

      David F. Gillison Jr. for appellant.

      Drew & Holloway for appellees.
   Lyle Brown, Justice.

The plaintiffs below (appellees here) were Eosamond and Hillman Carpenter, brothers who as partners farmed lands belonging’ to the other plaintiff, Nelson W. Bunker III. Plaintiffs sued Walcott & Steele, Inc., seed dealers, alleging loss of a substantial portion of their cotton crop produced from certified cottonseed sold Carpenter Brothers by Walcott & Steele. Judgment was awarded on the theory of violation of express warranty of the seed. Walcott & Steele appeals.

Carpenter Brothers have a farming operation adjacent to the town of Lake Village. They rent several acres from Bunker Farms, paying the landlord one-fourth of the crops, mostly cotton and soybeans. In February 1966, Carpenter Brothers purchased cottonseed from Walcott & Steele, Inc., of Greenville, Mississippi. The order was for sixty bags, fifty pounds each, of Stoneville 213 seed. Evidence for the brothers was to the effect that the seed was delivered by truck and placed in dry quarters in a storage barn; that the seed was planted under normal conditions; that much of it failed to germinate; and that replanting failed to produce the desired results. Thereupon agents of the State Plant Board were called upon to test seed gathered from one of four sacks left over. The analysis showed germination to be 27.75%. To each of the sixty bags delivered was attached a tag showing germination to be eighty per cent. The State Plant Board regulations required the percentage of germination to be placed on the tags.

The local agent for the Agricultural Stabilization and Conservation Service produced the acreage records covering Carpented Brothers’ 1966 operations. Those records showed a total of 176.2 planted acres which failed to produce. Evidence from the gin records showed that in 1965 the Carpenters ginned 1231 pounds per acre, whereas in 1966 the ginning dropped to 662 pounds average per acre.

The jury awarded damages of $5,718, to be divided between Carpenter Brothers and Bunker Farms, the landlord. A credit of $176.25 was allowed Walcott & Steele for balance owed on account.

The facts to be evaluated in determining tlie nature of the warranty are important. Rosamond Carpenter testified that "Walcott & Steele’s salesman came by Rosamond's home. They had transacted business the year previous. Rosamond said he placed an order for sixty bags of Stoneville 213 cottonseed. (The meaning of “Stoneville 213” is not explained.) That was the sum total of tlie conversation gleaned from the record. Now as to the. origin of this shipment of Stoneville 213. The seeds were grown by H. K. Hammett & Sons of Green-ville, Mississippi. Hammett operates under the supervision and inspection of the Mississippi Seed Improvement Association, the official certifying agency for that State. Hammett gins the cotton, cleans and otherwise processes its seed. Each lot of seed is given a number and they are said to be kept separated, one lot from the other. Field men for Mississippi Seed Improvement Association inspect each lot. If it is approved then that agency issues a green certification tag for each fifty pounds in the approved lot. The tag shows the date tested, percentages of germination, hard seed, purity, crop seed, inert, weed seed, and noxious weeds.

Walcott & Steele picks up seed from Hammett in Walcott’s trucks and in bulk. Before bagging in its own trade bags, Walcott puts the seed through another processing. That includes removing any lint, by neutralizing the lint with a soda solution, cleaning out any trash, removing immature seed, and disinfecting the seed. Thereupon, a processing report is sent to Mississippi Seed Improvement Association. On the basis of both tlie reports from Hammett and Walcott, the green certification tags are released to Walcott and one is by Walcott affixed to each bag. The tag has a certification over the printed signature of Mississippi Seed Improvement Association.

Walcott invoiced the seed to Carpenter Brothers under the following description: “60, 50# bags Hi-Vigor Stoneville 213, Demosan treatment. ’ ’ At the bottom of the invoice was this wording:

NON-WARRANTY: WALCOTT & STEELE, Inc. Give no Warranty, Express or Implied. As To Description, Productiveness, or Any Other Matter of Any Seeds That We Sell and We Will Not in any Way Be Responsible for the Crop. Our liability in all Instances Is Limited to the Purchase Price of the Seed.
NOTICE: All claims for credit must be made within 10 days or will not be allowed.

Excepting those words shown in caps, the print can be easily classified as fine print. Mr. Carpenter said the deliveryman gave him a copy of the invoice which he signed and returned. He said he did not read it.

Each bag is tri-colored, red and black on white. Among other things wc find this wording from viewing a color print of one of the bags: “Mississippi Certified. HI-VIGOR SEED; GRADED; TREATED; SOLD BY WALCOTT & STEELE, INC.”

Hillman Carpenter testified that it is generally understood in that farming community that seed has to liave eighty per cent germination. ITe said he would not have kept the seed if the tags, which he examined, had not shown the desired eighty per cent. Rosemond Carpenter testified they had purchased the same type seed from Walcott the year before and had a very good experience.

Based on the enumerated evidence, was the trial court warranted in telling the jury that as a matter of law Walcott sold the seed under an express warranty1? The court took the position that the germination certification on the green tag constituted the warranty and so informed the jury. For resolution of the question we look to Ark. Stat. Ann. §85-2-313 (Add. 1961). That section defines express warranties and there we find this definition: “(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description. ’ ’

Walcott & Steele knew it conld not sell cottonseed for planting in the State of Arkansas unless each bag contained a label showing the true percentage of germination. See Regulations on the Sale of Planting Seed in Arkansas, Sec. 2 (B), which was introduced in evidence without objection. In other words, that provision was certainly a part of the law with which Walcott was expected to comply when if took the order. It would be absurd to say that the Carpenters were required to expressly state to Walcott that the germination percentage “must be truly and correctly given on the permit tag” in order to make it a part of the basis of the bargain. The law itself made it a part of the bargain. We find only one precedent which may be said to be in point. Mallery v. Northfield Seed Co., 264 N.W. 573 (Minn. 1936). Mallery ordered alfalfa seed for sowing on his farm. The crop failed allegedly because of seed impurity. The warranty relied on for damages was the tags on the bags of seed which were placed there in conformity with statutory requirement. The Court there held that the representation on the label constituted an express warranty.

We hold as a matter of law that the certification warrants the contents of the bag to be as stated thereon, within reasonable and recognized tolerances, and that it is a warranty made by that vendor who causes the certification to be attached. That warrantjr is of course subject to the time limit expressed by the regulations. We are not unmindful of the fact that Smith v. Tatum, 198 Ark. 802, 131 S.W. 2d 619 (1939), gave scant significance to what the Court called a “mistake” on the part of the plant board. Since that decision the plant board regulations of 1956, from which we have quoted, became effective. Also the IIOC was adopted in 1961,

The court struck from defendant’s pleading the defense of non-warranty based on the non-warranty clause appearing at the bottom of the invoice. The court was correct. There was an express warranty and Walcott was attempting to modify it by “unbargained language of disclaimer” which was inconsistent with the express warranty. To that extent it was unreasonable. Ark. Stat. Ann. § 85-2-316(1) (Add. 1961).

Now to the next point. At the beginning of the trial all witnesses were excluded from the courtroom at the request of both parties. In the afternoon of the first day of trial, a rebuttal witness for the plaintiffs came into the courtroom and stayed over an hour. It appears that he left when Mr. Bunker told him he was not supposed to be in the courtroom. It is not shown that this witness, Alvin Ford, heard any testimony touching on the subject matter of his rebuttal. Trial courts have considerable discretion “in managing and controlling the proceedings at the trial,” and that includes control over the witnesses. Arkansas Motor Coaches v. Williams, 196 Ark. 48, 116 S.W. 2d 585 (1938). The court’s action created no prejudicial error and we cannot say he abused his discretion.

Appellant next challenges the court’s instruction seven:

You are instructed that if you find from a preponderance of the evidence that the cottonseed sold by the Defendant, Walcott and Steele, Ine., did not substantially conform to the certification tag and certification of germination thereon, and you find that the failure of these seeds to substantially germinate was the proximate cause of damage to tin Plaintiffs, Carpenter Brothers and Bunker Farms. Inc., then you will find for the Plaintiffs, Rosamond Carpenter and Hillman Carpenter, d/b/a Carpenter Brothers, and against the Defendant, Walcott and Steele, Inc., and fix the Plaintiffs’ damages in a sum hereinafter as instructed by the Court.

Walcott contends the instruction is erroneous because it did not direct the jury that it must first find the cottonseed was actually sold by appellants. The court was entitled to have that specific objection called to its attention before the instruction was given, which was not done. Nor do we consider it inherently erroneous because it was admitted Walcott shipped sixty bags of Stoneville 213 and the jury certainly knew it was that particular shipment which was the basis of the lawsuit. The particular lot of seed from which the shipment originated was secondary.

Appellant challenges the court’s instruction eight wherein the jury was told the certification tags constituted a warranty. What we have already said disposes of that point. The same statement applies to the court’s refusal to give defendant’s instructions A and B.

Affirmed.


author: John A. Fooleman, Justice.

text:
    Mack Trucks of Arkansas, Inc. and Mack Trucks, Inc. v. Jet Asphalt and Rock Co., et al
    5-4761
    437 S.W. 2d 459
    Opinion Delivered February 10, 1969
    [Rehearing denied March 17, 1969.]

      Brown, Compton, Prewett & Dickens for appellants.

      Crumpler, O'Connor, Wynne & Mays for appellees.
   John A. Fooleman, Justice.

Appellants seek re-

lief from a judgment against them for $5,000 as damages for breach of implied warranty of fitness of two diesel truck engines. Appellant Mack Trucks, Inc., is a manufacturer of trucks and diesel engines. Appellant Mack Trucks of Arkansas, Inc. is a Mack truck dealer.

On or about September 13, 1965, a partnership of ITaynie & Williams purchased two Mack diesel trucks from the dealer. The purchase was made on special order, after the partners liad specified the work on which the trucks would be used and certain requirements necessary in the prosecution of their business of operating a gravel plant and an asphalt plant. Diesel engines were specifically required by the purchaser. The trucks were built by the manufacturer after the order for them had been given by the purchasers. They were delivered in January 1966. No warranty was mentioned in the purchase order signed by the dealer and the purchasers.

Haynie & Williams operated the trucks until February 1, 1966, when one of them was sold to Edwin B. Alderson, Jr. and Mary Jane Alderson and the other to Edwin B. Alderson, Jr. and Alan K. Alderson, the sons and daughter-in-law of Boyd Alderson, a stockholder of appellee Jet Asphalt & Hock Co., a domestic corporation. Subsequently, hut during the same month, the other assets and business of the partnership were sold to Jet. One of the partners in Haynie & Williams is a stockholder in Jet and was retained at the time of the sale to operate the corporation, lie became president about three months after the sale. The Aldersons leased the trucks to Jet after their purchase.

Minor trouble with power steering and rocker arms which developed while the trucks were operated by the partnership was readily corrected by the dealer. After the lease of the equipment, Jet complained to the dealer of oil leakage and excessive oil consumption by both units. Jet claimed that clutch trouble resulted making the trucks difficult to operate. Despite numerous repairs by the dealer, Jet remained unsatisfied. Most of the invoices for repairs were to Haynie & Williams, but at least two were to Jet. Each invoice showed allocation of the major part of the cost to “Warranty” and the remainder to “Customer.” Efforts of representatives of Jet, the dealer, and the manufacturer to agree on a satisfactory course of action resulted in failure. Over the protest of appellants, Jet purchased diesel units for both of the trucks from another manufacturer and caused the Mack units to be delivered to the Mack dealer. After appellants refused the demand of Jet for reimbursement of its cost of replacing the diesel units, Jet brought this action in Union County against both the manufacturer and dealer.

In its complaint, Jet alleged that Mack Trucks, Inc. is a foreign corporation authorized to do business in Arkansas and that Mack Trucks of Arkansas, Inc. is a domestic corporation with its principal office and place of business in Pulaski County. The cause of action was based upon alleged breach of an express warranty exhibited with the complaint and of an implied warranty of fitness for the purpose for which the trucks were sold. Jet sought recovery of $6,500, the cost of replacement of the engines, alleging that the value of each truck was $4,325 less at time of delivery than it would have been if they had been in good working order when delivered.

Summons was served upon both appellants in Pulaski County. They questioned jurisdiction of the person and of the subject matter by a demurrer which was overruled. Thereafter, appellants filed an answer and supplemental answer. The Aldersons intervened before trial, adopting and ratifying Jet Asphalt’s pleadings.

Just prior to the beginning of the trial appellants renewed their demurrer to jurisdiction and venue, which was again overruled. No evidence was ever offered by either party on this question.

Appellants first contend that there was error in permitting this suit to be maintained in Union Count}7, claiming that neither of them had its principal office or place of business in Union County and that the chief officer of neither resided in that county.

Ark. Stat. Ann. § 27-605 (Repl. 1962) provides that an action may be brought against a corporation created by the laws of this state in the county in which it is situated or has its principal office or place of business or where its chief officer resides. Ark. Stat. Ann. § 27-608 permits an action to be brought against a foreign corporation in any county where there may be property or debts owing to it. Ark. Stat. Ann. § 27-613 permits the bringing of actions for which the venue is not otherwise specified in any county in which one of several defendants resides or is summoned. Corporations come within the terms of these sections as defendants or persons. Harger v. Oklahoma Gas & Electric Co., 195 Ark. 107, 111 S.W. 2d 485. There is nothing to indicate where the domestic corporation is situated, nor is there anything to indicate where its chief officer resides. This corporation, for all that appears in the record might have been sued in any one of three counties. Spratley v. Louisiana & Arkansas Ry. Co., 77 Ark. 412, 95 S.W. 776 (on rehearing); Duncan Lumber Co. v. Blalock, 171 Ark. 397, 284 S.W. 15. The foreign corporation could properly be sued in Union County if it had any property there or if there were debts in Union County owing to it. Nothing in the record indicates whether or not this is the case. Generally, whore venue is questioned, there must be a determination on the facts. Belford v. Taylor, 241 Ark. 220, 406 S.W. 2d 868. Unless the pleadings on their face show that an action was commenced in the wrong-county, a defendant objecting to the venue has the burden of proving the essential facts. 92 C.J.S. 772, § 74; Tribune Company v. Approved Personnel, Inc., 115 S. 2d 170 (Fla. 1959); Cohen v. Commodity Credit Corp., 172 F. Supp. 803 (W.D. Ark. 1959); Werner v. Braunstein, 20 Misc. Rep. 341, 45 N.T.S. 757. Since appellants failed to offer any evidence on these critical points, and the record is silent otherwise, we find no merit in this contention. In this connection, it is significant that appellant Mack Trucks, Inc. failed to answer interrogatories propounded by Jet which pertain to some of these facts.

Furthermore, appellants jointly filed, an answer and supplemental answer in neither of which were their special appearances or objections to venue preserved in any way. This constituted a waiver of the objections to venue. Williams v. Montgomery, 179 Ark. 611, 17 S.W. 2d 875; Chicago R.I. & P. Ry. Co. v. Jaber, 85 Ark. 232, 107 S. W. 1170.

Appellants’ next contention is that the circuit court should have granted their motions for directed verdict because of lack of privity. They contend that appellees are barred from recovery for breach of warranty because neither the Aldersons nor Jet was in privity of contract with either of the appellants.

Act 35 of 1965 [Ark. Stat. Ann. § 85-2-318.1 (Supp. 1967)] eliminated lack of privity as a defense in any action brought against the manufacturer or seller of goods for breach of warranty, if the plaintiff was a person whom the manufacturer or seller might reasonably have expected to use, consume or be affected by the goods. Appellant argues that this act has no application in cases which do not involve injury or damage to persons or property. Unlike appellant, we are unable to find any language in the act or its title suggesting such a restrictive application of the act. The identical act has been adopted in Virginia. Va. Code Ann. § 8.2-318 (Additional Vol. 1965). We know of no decision under any such statute relating to its application to economic or commercial losses. The only cases arising under a similar act of which we know are cases involving personal injuries or property damage (see e.g. Brochett v. Harrell Bros., Inc., 206 Va. 457, 143 S.E. 2d 897). Yet, we know of no suggestion by any court that the effect of the statute is limited to these cases. We do not know of any logical reason why the effect should be so limited. If any such reason had occurred to the General Assembly, no doubt there would be limiting language in the act. In the absence of such language, we must, and do, presume that our legislative branch meant literally what it said. In so saying, it was following the present trend to shift the emphasis in breach of warranty cases from privity, or lack of it, to foreseeability. The Virginia court said that the obvious purpose of the statute was to insure the implied warranty of fitness by the manufacturer to the consumer despite the lack of privity between the two. (Brockett v. Harrell, supra.) The statutory purpose is the same as to anyone who it might reasonably be foreseen would be a user of goods manufactured or sold. The intention to permit a second purchaser or even a lessee from a purchaser to recover for breach of warranty seems implicit in the language providing that lack of privity should not be a defense ‘ although the plaintiff did not purchase the goods from the defendant.” This is not to say that every remote purchaser or user could recover for a breach of implied warranty of fitness for the purpose. Whether it was reasonably foreseeable that such a one would use the product would usually become a question of fact. Here, however, the sale and lease took place approximately one month after the original sale. Repairs were made over a period of months upon the complaints of Jet. Under these circumstances the trial court’s holding, as a matter of law, that lack of privity was not a defense, was correct.

Appellants also argue that the circuit court erred in instructing the jury not to consider the express warranties exhibited with appellees’ complaint and later introduced in evidence by them. As a part of this contention they allege error by the court in refusing to give their requested instructions which incorporated limitations expressed in those warranties. The first such instruction would have told the jury that they could consider only the express warranty. The other would have required the jury to disregard any warranty if they found the trucks were operated at a speed in excess of the factory rated speed.

Actually, appellants could not be prejudiced by the elimination of their potential liability on an express warranty, except for tlie limitations thereby imposed. Exclusions or modifications of the implied warranty of fitness existing by virtue of Ark. Stat. Ann. § 85-2-315, which appear in the body of a warranty are not effective unless they are conspicuous. Ark. Stat. Ann. § 85-2-316 (2). The trial court had previously instructed appellants not to refer to certain of the limitations inArnlved at the close of appellees’ case because of their lack of eonspicuity. ¥e do not understand appellants’ argument that these disclaimers are conspicuous. They are the same size type as the express warranty. The only part of either Avarranty which can be said to be conspicuous is the title — “Vehicle Warranty” and “Supplement to Mack Standard Warranty applicable to Mack Diesel Engines.” Nothing in either of these titles suggests the content of exclusions or modifications of the implied warranty. According to Ark. Stat. Ann. § 85-1-201, a term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. See Comment to Uniform Commercial Code; Minikes al Admiral Corp., 266 N.Y.S. 2d 461 (1966). While ITaynie testified that he was sure that he went over the Avarranties at the time the trucks were bought, he failed to respond to an inquiry as to whether he familiarized himself with the terms and conditions of the Avarranty and he could not recall definitely that the Avarranty was to repair defective parts. It was stipulated that the written warranties AA'.ere delivered when the trucks Avero delivered.

The requirement that an exclusion or modification of implied warranties be conspicuous is to insure that attention of the buyer can reasonably be expected to be brought to it. Comment to UCC, Ark. Stat. Ann. § 85-1-201. Such an attempted disclaimer is ineffective, as a matter of laAv, and fails of its purpose when it is in the body of an instrument and in type of the same size and color as other provisions. Boeing Airplane Company v. O’Malley, 329 F. 2d 585 (8th Cir. 1964); SFC Acceptance Corp. v. Ferree, 39 Pa. D. & C. 2d 225. We have indicated that a similar attempted limitation is ineffectual as a matter of law. Sawyer v. Pioneer Leasing Corp., 244 Ark. 943, 428 S.W. 2d 46, 5 UCC 453.

This attempted disclaimer or limitation is ineffective for another reason. The very purpose of the statutory requirement is that any limitation be brought to the attention of the buyer at the time the contract is made. An attempted limitation at the time of delivery long after a contract of purchase is signed does not accomplish this purpose, being a unilateral attempt of a party to limit its obligations. Zabriskie Chevrolet, Inc. v. Smith, 99 N.J. Super. 441, 240 A. 2d 195, 5 UCC Rep. Sve. 30 (1968); Admiral Oasis Hotel Corp. v. Horne Gas Industries, Inc., 68 Ill. App. 2d 297, 216 N.E. 2d 282, 3 UCC Rep. Svc. 531. See also Hunt v. Perkins Machinery Co., 352 Mass. 535, 226 N.E. 2d 228 (1967).

The circuit judge’s holding that there was an implied warranty of fitness for the purpose for which the trucks were bought under the circumstances existing here was not erroneous.

The judgment is affirmed.

      While this was the expression used in the demurrer, the appellants actually challenged venue.