author: J. Fred Jones, Justice.

text:
    Hoyt ROUNSAVILLE et ux v. ARKANSAS STATE HIGHWAY COMMISSION
    75-76
    527 S.W. 2d 922
    Opinion delivered October 13, 1975

      William G. Wright and H. Clay Robinson, for appellants.

      Thomas B. Keys and Robert E. Diles, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Hoyt Rounsaville and his wife from a circuit court judgment for damages to the Rounsaville land following condemnation by the appellee Arkansas State Highway Commission in connection with the acquisition of right-of-way for Interstate 540 in Van Burén, Crawford County, Arkansas.

The appellants owned an 80 acre tract of land on the outskirts of Van Burén and the appellee took fee title to .13 acres by condemnation and deposited $50 into the registry of the court as just compensation. The appellant owners prayed damages in the amount of $20,000. A jury trial resulted in a verdict in favor of the appellants landowners for $250 and judgment was entered thereon.

The appellants rely on a single point for reversal as follows:

“The trial court erred in overruling objections to certain testimony of the appellee’s expert [Mr. McMurrough].”

Mr. Robert Geliy testified as an expert for the appellant landowners. He said that in his opinion the highest and best use of the property was for development purposes; that in his opinion the 80 acre tract prior to the taking on August 3, 1966, had a fair market value of $750 per acre, or a total of $60,000; that following the taking, and by reason thereof, the fair market value of the remaining 79.87 acres was reduced to a fair market value of $500 per acre or $39,925, making a difference of $20,065 as damages to the tract caused by obstructions which would prevent the normal flow of building or development in the direction of the Rounsaville tract. Mr. Geliy testified on cross-examination and also on redirect examination that he considered some sales of comparable land in the vicinity of the Rounsaville land in arriving at his opinion as to the market value of the Rounsaville land.

The owner Mr. Rounsaville testified that prior to the taking his property was worth around $800 per acre and that immediately after the taking, and by reason thereof, its value was reduced to $350 per acre, leaving a difference in the fair market value in the amount of $36,000 as his damages and just compensation.

Mr. Ken McMurrough, an expert appraiser who testified for the appellee Highway Commission, said that he made a market study in arriving at his opinion as to the market value of the Rounsaville property. He said that after making a market study of the sales in the general area, he formed an opinion as to the market value of the Rounsaville property. He said he considered the property to have a before taking value of $47,000. He said the property was partially in a creek bottom and partly on upland, and that he considered approximately 60 acres of the property suitable for residential development which he considered to have a value of $500 per acre. He said that about 20 acres of the property was low, creek bottomland which he considered to be of strictly agricultural value he estimated at $250 per acre. He said that the . 13 of an acre taken by the Highway Commission was in a low area of a creek bottom and that he did not consider the taking as having an adverse effect on the remainder of the land. He said that in his opinion the value of the area taken was less than $50, which he rounded off then at a value of $50, and that the remaining land had an after taking value of $46,950.

On direct examination Mr. McMurrough testified in part as follows:

“Q. In making your study at the time of the project being in progress up there, did you make a market study in regard to the value of the land of Mr. Rounsaville as well as other lands?
A. Yes, sir. I made a market study of the market value in the general area.
Q. All right, did you consider other sales in the near vicinity of Mr. Rounsaville?
A. Yes, sir. I considered sales of property, similar property, either in whole or in part to the Rounsaville property.
Q. All right, will you refer there, and I will ask you in regard to a sale from VanZandt to Sagely. Did you consider this?
A. That was one of the sales that I considered in my valuation to the Rounsaville property, it being in fair proximity to the subject property.”

Mr. McMurrough was then asked and testified as to the sales of other lands in the area having similar characteristics as the Rounsaville tract. He then testified as follows in regard to one of the sales in the vicinity:

“Q. Okay, did you check the court records to verify this sale?
A. I verified this from the Circuit Clerk’s records in the court house and also talked to Mr. VanZandt.”

The appellants objected to the witness testifying that he talked with the original owners and purchasers of the property in regard to the sale price on the ground that the testimony was hearsay as to value, and then the record appears as follows:

“Q. All right, Mr. McMurrough, the sale from Mr. VanZandt to Sagely, will you refer to your records and I’ll ask you again if you checked the court records to see if this was made a public record, this sale?
A. This sale took place on April the 6th, 1966, it’s recorded in Book 256 at Page 20, in the Circuit Clerk’s records, Crawford County, and this is Mr. VanZandt to Mr. Sagely, eight and three-tenths acres for a consideration of—
MR. ROBINSON: Now, Your Honor, I object. The question he asks was is it on the records and he has testified it’s in the records, yet any further testimony is not responsive to the question.
THE COURT: All right, we’ll let him ask the question. I’m sure he will.
MR. DIAL: Q. Mr. McMurrough, was the consideration shown in the court records?
A. I’m not sure whether the consideration was indicated in the deed records; however, this sale and all the other sales that I have testified here today, or will testify to, I have either talked to the buyer or the seller and got verification from both of them about the circumstances surrounding these sales to determine that they were fair, arms-length transactions and the consideration was verified by either the buyer or the seller or the realtor making the sale, and in addition to that, I think the most of the sales, maybe all of them I testified to here today, have been testified to in this court at the time of my appraisals.”

Mr. Ken McMurrough, the expert appraiser who testified for the Highway Commission, and whose testimony is questioned on this appeal, was qualified as an expert by over 12 years employment as a staff appraiser for the Highway Department and prior to that he was in the insurance and real estate business for six or seven years. He was a licensed real estate broker and had appraised property in all sections of Arkansas. His qualifications as an expert were not questioned in this case.

The actual crucial question presented was whether Mr. McMurrough’s testimony as to amounts paid in the sale of comparable land was admitted as independent evidence of value of the land being condemned. Now, had he testified that VanZandt sold similar land to Sagely for $600 per acre and, therefore, since the land was comparable to the land condemned, the market value of the condemned land was $600 per acre, such testimony would have presented a different question than the one that is presented and, perhaps, such evidence as stated in Nichols on Eminent Domain, vol. 5, § 21.3 [1], “must be proved with as much formality as any other material fact. ...” But it must be remembered that in this case McMurrough was testifying as an expert witness and his opinion testimony as to the value of the land involved would have been admissible strictly as opinion testimony without further qualification as to how he arrived at his opinion.

In Nichols on Eminent Domain, vol. 5, § 21.3 [2], is found the following:

“Even in the states which reject sales of similar lands as independent evidence of value, it is usually held that on cross-examination of an expert witness testifying as to value, for the purpose of testing his knowledge of the market value of land in the vicinity, he may be asked to name such sales of property (and the prices paid therefor), as have come to his attention. ...”

Of course, the sale of similar lands as independent evidence of value has been so thoroughly accepted in Arkansas that the citation of cases is not necessary. In the case of People v. Alexander, 27 Cal. Rptr. 720, 212 Cal. App. 2d 84, the court said:

“The specific question involved is whether in describing comparable sales the witness may rely for the facts upon his own investigation of records in the recorder’s office, and in the courts, the stamps upon deeds and the statements of those who personally participated in the sales. The important evidentiary point involved is whether or not the opinion of value which the witness has given is sustained by proper reasons. From a practical standpoint, if each person previously involved in effecting comparable sales should have to be called to the stand to establish the detailed facts of such sales, it would lengthen litigation of this kind out of all reason and would make it almost impossible for the State or defending landowners to make a proper showing as to valuation opinion within a reasonable time and at reasonable expense. Therefore, within proper limits, facts acquired by hearsay and used by a valuation expert in support of his conclusion that certain sales are comparable and therefore furnish support for his opinion concerning value have been customarily received in evidence in this state. In People ex rel. Dept. of Public Works v. Donovan, 57 Cal. 2d 346, 19 Cal. Rptr. 473, 475, 369 P. 2d 1, 4, it is said:
‘An expert may detail the facts upon which his conclusions or opinions are based, even though his knowledge is gained from inadmissible or inaccurate sources. (Betts v. Southern California etc. Exchange, 144 Cal. 402, 77 P. 993; McElligott v. Freeland, 139 Cal. App. 143, 33 P. 2d 430.)’ ”

In the case of United States v. 18.46 Acres of Land, etc., 312 F. 2d 287 (1963), a part of a dairy farm was being condemned and the difference in fair market value of the property involved was the measure of damages. The owner testified to $30,000 before and $15,000 after the taking, and his expert testified to $30,000 and $20,000. The government’s expert testified $27,000 and $24,500. The jury returned a verdict of $12,000. The government’s expert testified that the best method of arriving at market value was the use of comparable sales and the court held this to be the rule generally recognized. The expert witness stated that he “found four farms, one of them immediately adjacent that had sold only the year before.” At this point the counsel for the appellee objected to the witness stating any price with respect to the comparable sale on the ground that it would be hearsay. The trial court ruled that any answer was hearsay unless the witness was present when the deal was consummated. In reversing the district court, the United States Court of Appeals, Second Circuit, quoting from United States v. 5139.5 Acres of Land, Etc., 200 F 2d 659, at page 662, said:

“ ‘Cases can readily be imagined where the court in its discretion should exclude evidence of this sort because of remoteness in time of the sales or because the property sold was not similar to that being valued, but it should not ordinarily be excluded under the hearsay or best evidence rules. * * * Ordinarily evidence as to facts of this sort given by an expert as the basis of his opinion as to value comes with a sufficient guaranty of trustworthiness to justify the relaxation of the hearsay and best evidence rules.’ ”

The court then continued:

“In the case at bar, the court excluded evidence of the comparable sales as hearsay and not in the exercise of discretion, but had the court done the latter, we think exclusion of the evidence would also have been erroneous on the state of the record before us.”

In the case of United States v. 5139.5 Acres of Land, Etc., 200 F. 2d 659, the government had condemned some land and had deposited $30,300 as just compensation. A jury verdict fixed the value of the tract at $64,762.62. The government appealed alleging error in the rejection of testimony. In reversing the judgment of the district court, the United States Court of Appeals for the Fourth Circuit said:

“One of the witnesses for the government who had testified as an expert was asked as to sales of similar lands in the community near the time of the condemnation which he had taken into consideration in arriving at his estimate of value. He proposed to testify as to a number of sales which he had learned of in his investigation and which he had verified by examination of the land records in the county. This testimony was excluded because the records were not produced or the persons who had participated in the sales called as witnesses. This, we think, was error. While the admission of testimony of this sort was a matter very largely within the sound discretion of the trial judge, the exclusion here rested, not upon a sound exercise of that discretion, but upon an erroneous application of the hearsay and best evidence rules. The witness within reasonable bounds should have been allowed to give the jury the facts upon which his opinion as to value was based; and it would unduly hamper the production of such testimony and needlessly prolong the trial to require that the sales be proved with the particularity that would be necessary in suits to enforce the contracts relating thereto. The hearsay and best evidence rules are important, but they should not be applied to prevent an expert witness giving in a reasonable way the basis of his opinion. As said by this court in United States v. 25.406 Acres of Land, 4 Cir., 172 F. 2d 990, 993, certiorari denied 337 U.S. 931, 69 S. Ct. 1496, 93 L. Ed. 1738, ‘Testimony as to value would be worth little or nothing, if witnesses were not allowed to explain to the jury their qualifications as experts and the reasoning by which they have arrived at the expert opinion to which they testify; and the rule is that they may thus give the grounds of their opinions. Wigmore on Evidence 2d Ed. sec. 562; Lewis, Eminent Domain 3d ed. Sec. 654.’ ”

In the Kentucky case of Stewart v. Commonwealth, 337 S.W. 2d 880, the landowner was awarded judgment of $63,000 as the value of her property in a condemnation proceeding. The property owner appealed contending that the award was inadequate because of prejudicial error in the exclusion of certain evidence relating to the sale of comparable property. A part of the evidence alleged to have been erroneously excluded included the testimony of a real estate expert which was excluded on the ground that his information was based on hearsay. In reversing the trial court, the Supreme Court of Kentucky on this point said:

“It is quite often true that the most thorough, comprehensive and accurate professional appraisals are based almost entirely on ‘hearsay’ in the legal sense of the word. Persons who appraise or deal in real estate professionally make it their business to keep abreast of current transactions. The value of an appraisal depends very largely on the manner in which it is developed. It is of importance to the court and jury to know how it was made and on what information it was based. If some or all of that information was acquired by hearsay, but through the customary channels of the trade, or by methods recognized as standard in the making of appraisals, we see no useful purpose in a rule of absolute exclusion. Therefore, confining the effect of this opinion to witnesses whose qualifications include experience in appraising or dealing in real estate as a business, we hold that testimony as to the prices paid in comparable sales is not inadmissible merely because it is secondary or hearsay evidence. Since Mr. Hennessy was professionally qualified as an appraiser and real estate broker, the fact that he had verified the prices by personal contact with the purchasers was a sufficient basis to admit his testimony on the comparable sales.”

We are of the opinion that the trial court did not abuse his discretion or commit reversible error in admitting the testimony of Mr. McMurrough under the record before us in this case. Furthermore, most of Mr. McMurrough’s testimony which the appellants contend was error had already been testified to by the appellants’ own expert witness Mr. Geliy. Of course, Geliy’s testimony, as to comparable land values, was elicited on cross-examination without objection and, the appellants seem to concede that his testimony was admissible because it was elicited on cross-examination. In any event, the validity of Geliy’s testimony as to the price on comparable sales is not questioned. Geliy testified that the sale from VanZandt to Sagely was 1,290 acres and McMurrough said it was 1,205 acres. Geliy said the Burns to VanZandt sale was $600 per acre and McMurrough testified that it was $600 per acre. Both witnesses testified that in the Tankersly to Edwards transaction the sale price was $345 per acre. Consequently, if the court had committed error in the admission of McMurrough’s testimony on the ground of hearsay, it would have been harmless error in the light of Geliy’s testimony. See Kansas City S. R. Co. v. Morrison, 103 Ark. 522, 146 S.W. 853 (1912); Mine LaMotte Lead & S. Co. v. Con. Ant. Coal Co., 85 Ark. 123, 107 S.W. 174 (1907); Nelson v. Busby, 246 Ark. 247, 437 S.W. 2d 799 (1969); Bower v. Murphy, 247 Ark. 238, 444 S.W. 2d 883 (1969).

The judgment is affirmed.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Robert C. WRIGHT and John M. SOUTHERLAND v. STATE of Arkansas
    CR 75-87
    528 S.W. 2d 905
    Opinion delivered October 20, 1975
    [Rehearing denied November 24, 1975.]

      Harold Hall, Public Defender, by: Michael Castleman, Dep. Public Defender, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Lewis G. Smith, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Robert C. Wright and John M. Southerland, appellants herein, were convicted of the crime of robbery, and their punishment fixed by the jury at 12 years each confinement in the Arkansas Department of Correction. For reversal, three alleged errors are relied upon which we proceed to discuss, though not in the order listed.

I.

“THERE WAS NOT SUFFICIENT EVIDENCE TO SUPPORT A CONVICTION OF ROBERT WRIGHT.”

The background of this prosecution concerns the robbery of John’s Liquor Store around 9:00 P.M. on September 20, 1974, in Little Rock. Harvey Hall, attendant at the liquor store, testified that three white males came into the store and one struck him with a bottle of whiskey. Fighting back, Hall also struck one of the robbers in the face with a bottle. After being struck twice more, Hall fell to the floor, a pistol, which was on his person, falling to the floor beside him. The men took approximately $100.00 from the store. Hall started firing and the robbers ran from the store. After emptying one pistol, he fired another and was of the opinion that he had struck one of the participants. A prospective customer, Perry Middlebrook, had just driven up in front of the liquor store and he observed three white males run from the establishment. The first two ran toward a blue Falcon automobile and got into it; the third then fled from the store, appeared to be staggering, but also ran to the Falcon and was helped in. This third man left a trail of blood to the car. The police were called and the blue Falcon, occupied by a driver and one passenger, was later stopped by officers and the occupants arrested. These two were appellant Robert Wright, and Ivan Tabb. Wright was the driver and Tabb a passenger in the front seat.. The officers observed a considerable amount of blood in and on the car, apparently coming from a wound on Tabb’s nose. There was no blood on Wright. Both men “reeked” of alcohol. Upon searching Wright, the officers found 37 one dollar bills, 11 five dollar bills and a roll of dimes, totaling $102.00. According to Hall, $90.00 to $100.00 had been taken in the robbery, specifically, about $35.00 to $40.00 in one dollar bills, about $40.00 to $50.00 in five dollar bills and a roll of dimes. At an in-custody lineup, Hall and Middlebrook could not identify Wright, and Middlebrook picked out a third person who had no connection with the robbery. On trial, Hall was still unable to make an identification, but Middlebrook identified Wright as one of the robbers. Appellant says that the evidence was insufficient to sustain the conviction, and this assertion is apparently principally based upon the failure of Hall to make an identification and the failure of Middlebrook to make such an identification before trial.

We do not agree that the evidence vas insufficient to sustain the conviction. Wright was arrested within twenty minutes after the robbery occurred about two miles from the scene, driving a blue Falcon which had been described almost precisely by Middlebrook as the car in which the robbers had left the scene. The passenger was bleeding from his nose which certainly conformed to the statement of Hall that he had struck one of the men in the face with a bottle and also to the evidence of Middlebrook, which was that the last man who entered the Falcon on the passenger side was bleeding. The money found on Wright was substantially the amount that Hall described as taken from the store, including the fives and ones, and even to the roll of dimes found on that appellant, the roll which contained the dimes being the type, according to Hall, used in the store. No witness was offered to explain the source of the money, or the cause of the blood. Of course, the weight of the in-court identification by Middlebrook was a matter for the jury to pass upon, but entirely aside from that, the other evidence was substantial, and sufficient to sustain the conviction. Murphy v. State, 248 Ark. 794, 454 S.W. 2d 302.

II.

“THE COURT ERRED IN PERMITTING THE IN-COURT IDENTIFICATION BY THE PROSECUTING WITNESS OF THE DEFENDANT, JOHN M. SOUTHERLAND.”

Southerland was not in the car, but was arrested two days later by officers after a tip was received that he might well be involved. Both Wright and Southerland, without benefit of counsel, were placed in a lineup and Southerland was identified by both Hall and Middlebrook as one of the three robbers. Prior to trial, a motion was filed to suppress the in-custodial lineup identification of Southerland on the basis of the fact that the arrest of that appellant was illegal, in that it was made without probable cause to believe that Southerland had committed a crime; further, that the information received from a confidential informant was not reliable. At the hearing, held approximately a week before the trial, Officer Kieth Rounsavall, who made the arrest of Southerland, testified that another officer, Boyd Pettyjohn, informed him that Southerland was “hanging out at a lounge on Asher Avenue, and was supposedly involved in the robbery of John’s Liquor Store.” Pettyjohn testified that he received information relative to Southerland, but was not at liberty to divulge from whom this information was received. He did not know the informant personally and had never relied on this person before. He testified that he talked to the informant on the telephone and was asked if he was familiar with the robbery of John’s Liquor Store. Upon receiving an affirmative reply, the informant advised that the third man was Southerland, “and they gave me a description of him and his car, said that he had been bragging about his record, the police thought he was hurt and he wasn’t hurt. He had been talking about it at Jim’s Lounge out on Asher, and he was supposed to be either a half-brother, or some type of brother, to one of the other subjects we had. Also told me what kind of car he drove. The information was that this person had overheard the gentleman say he had been involved.”

The court stated that unless the state desired to produce the person, it was going to hold that the arrest was not valid since the court did not feel there was sufficient or probable cause shown for making the arrest. Officer Pettyjohn then stated that the informant did not have enough information to swear out a warrant, whereupon the court suppressed the lineup evidence, holding that the arrest was invalid; however, it did not dismiss the charge against Southerland.

On December 3, just before the trial was to commence, defense counsel filed the following motion:

“Let the record reflect that I have filed on behalf of John M. Southerland a Motion in Limine, asking the Court to have an in-chambers hearing concerning the independent identification of the defendant, John M. Southerland. The Court, in a previous hearing, quashed the incustodial lineup view of the prosecuting witness, and it is the contention of this defendant that without a showing on behalf of the prosecution that the prosecuting witness can identify the defendant independent of any information received by his incustodial view that it is improper. And we, therefore, object to the prosecuting witness identifying the defendant in front of the jury, all of which will prejudice the jury in any event the Court’s ruling in the courtroom.”

This motion was overruled and Hall and Middlebrook identified Southerland in the courtroom.

The court erred in not granting the motion. Of course, Southerland, after the original arrest (September 22, 1974) was subsequently arrested (October 17, 1974) when the prosecuting attorney filed an information and a bench warrant was issued thereon. However, the pretrial identification took place before that time, and we agree with the trial court that there was an insufficient showing of probable cause for this first arrest. The description of Southerland’s automobile contributed nothing, for it was never tied into the robbery at all. Accordingly, we have only a statement from an undisclosed informant, about whom the police apparently knew nothing, not having previously relied on his or her information, who simply stated that Southerland had bragged about his record and further, that the police thought he was hurt “and Í wasn’t hurt.” While Officer Pettyjohn stated that he talked with the informant for approximately ten minutes over the telephone, and that the informant discussed the facts with the officer without Pettyjohn relating any facts known by the police department, the officer did not testify concerning the information received in the ten minute conversation other than what has already been set out. Of course, the fact that the informant had not been used before, and could therefore not be characterized as a “reliable” informant, is not controlling, for there is a “first time” for anyone who conveys information to the police, but, as stated, on the showing made, probable cause was not established.

The state relies on Johnson v. Louisiana, 406 U.S. 356, where the appellant urged that his nighttime arrest without a warrant was unlawful in the absence of a valid excuse for failure to obtain a warrant, and further urged that his subsequent lineup identification was a violation of the claimed invasion of his Fourth Amendment rights. The court held that the validity of Johnson’s arrest was beside the point in that case, for it was clear that no evidence that might properly be characterized as a fruit of illegal entry and arrest was used against him at his trial. However, in Johnson prior to the lineup, at which Johnson was represented by counsel, he was taken before a committing magistrate to advise him of his rights and to set bail, and at the time of the lineup, the detention of the appellant was under the authority of this commitment. Those facts, of course, are not present in the instant case.

Here, however, the validity of the appearance in the lineup is not controlled by United States v. Wade, 388 U.S. 218, which deals exclusively with the Sixth Amendment right to counsel. There is no contention in the case before us relating to the fact that Southerland was without counsel, and under the circumstances involved in this warrantless arrest, it does not appear that it would contain merit even if raised. See Kirby v. Illinois, 406 U.S. 682.

Appellant’s motion to suppress actually raised Fourth Amendment issues, viz-, the guarantee against unreasonable seizures that protects individuals against arrests without probable cause. In Wade, the court set out the criteria for determination of whether an in-court identification was based upon an independent observation, or was based on the lineup procedure. While we know of no federal case which requires such a hearing where Fourth Amendment rights are involved, it would appear sound logic to conduct such a hearing. As already stated, because of lack of probable cause for the arrest, a Fourth Amendment right was violated and unless any evidence acquired through that violation is to be nullified, it would appear that the same standard applied in Wade should be likewise required.

Let it be understood that we are not saying that an illegal arrest always bars a pretrial identification, or even that an independent hearing (to determine that an in-court identification was not tainted by such a pretrial identification) is always required. See Wise v. Murphy, 275 A. 2d 205. However, under the circumstances herein, we think such a hearing is essential.

Hall described the events that occurred when the three robbers came into the store, including the fact that he was hit with a bottle, and “went down.” On several occasions, he refers to individuals, “and one of them came over the counter, and I don’t know how the other one got over there *** and during this process, well, I picked up a bottle and hit one of them in the face. *** One of them came over and kicked me and asked me where the rest of the money was at. *** They were going through the cash register and under the counter at this time *** and he turned and just as he turned, that’s whenever I grabbed the gun and turned around and started firing.” When asked if he had a “good look” at their faces, Hall replied, “Well, just about like I am looking at you now.” His description of the robbers was in general terms, i.e., somewhat vague, and it must be borne in mind that Hall was unable to identify Wright. The identification of Southerland by the witness Middlebrook, who appeared very positive and who was much more specific in his identification, is not questioned, but our record does not reflect whether Middlebrook and Hall viewed the lineup at the same time, or any of the circumstances attending the pretrial identification. We have concluded that an independent hearing should be conducted prior to retrial, under the standards set out in Wade, as a matter of determining whether Hall’s in-court identification was tainted by the pretrial identification.

“III.

THE COURT ERRED IN GIVING THE STATE’S REQUESTED INSTRUCTION NO. 5.”

The trial judge gave the following instruction:

“If you find the defendant guilty of Robbery, you will say:

‘We, the Jury, find the defendant Guilty of Robbery and fix his punishment at not less than three years nor more than twenty-one years imprisonment in the State Penitentiary.’

If you find the defendant not guilty of Robbery, or if you have a reasonable doubt as to his guilt, you will say: .

‘We, the Jury, find the defendant Not Guilty.’

In either event, your verdict must be unanimous and signed by one of your members as foreman.”

The instruction was objected to on the basis of the fact, “It is not clear in that the jury might feel they have to convict both defendants.”

We find no merit in this contention. Appellants rely upon Wolf v. State, 152 Ark. 196, 238 S.W. 25, where two defendants were tried before the jury, and an instruction was requested by appellants that commenced, “You are instructed that, if you find the defendants [our emphasis] guilty, you shall. ” The court refused to give this instruction but gave a single instruction commencing, “If the defendants, or either of them, are found guilty . . . . ” We held that the trial court acted correctly when it gave the latter instruction and we disapproved the requested instruction because it would have left an inference that the jury would have to return a verdict finding both the appellants guilty or both not guilty. It is here argued that the two defendants were entitled to separate instructions, but Wolf does not so hold; rather, it sirhply states that an instruction given concerning the verdict of guilt or innocence should not give rise to an incorrect inference that the jury must find both defendants innocent or both guilty. It will be noted that the instruction here challenged does not use the plural “defendants” but rather the singular “defendant.” For that matter, if appellants had misgivings about the validity of the verdict because of the instruction, a poll of the jury could have been requested as a matter of ascertaining that each juror was convinced beyond a reasonable doubt that each of the two defendants was guilty.

At any rate, there could have been no prejudice for before the jury retired, the court stated to the jury that it was giving them the forms of the verdict, and it then gave a specific charge on Southerland as to guilt, fixing the punishment, and then, as to not guilty. The same procedure was followed as to Wright. Appellants argue at least part of this charge was given orally and that this fact constituted error. Appellants are mistaken, for in Richardson v. State, 80 Ark. 201, 96 S.W. 752, we held that if it affirmatively appears that the giving of an oral instruction on the form of the verdict is harmless, no reversible error occurs even though there was a request for a written instruction. Certainly, an oral instruction on the verdict forms would appear harmless in view of the simplicity of the forms and the clear separation of the charge with respect to each defendant. Nor was there any objection made at the time the verdict forms were given.

In accordance with the reasons set out herein, the judgment of the court is affirmed as to appellant Wright, but reversed as to appellant Southerland, and remanded to the Pulaski County Circuit Court (First Division).

It is so ordered.

Roy, J., not participating.

      Tabb subsequently entered a plea of guilty.

      Hall stated that he had placed this money in the register shortly before the robbers came into the store.

      Middlebrook stated: “I picked out somebody else similar to him.”

      Middlebrook described the lighting in the parking lot as follows:
      “Well, in front of the store it was good. It was almost like daylight because the store has plate glass windows up front and has fluorescent lighting on the inside that puts out the good light, plus there is a night light, or a night watcher, outside on the far right hand side, which is in somebody’s yard.”
      Q. Let’s see. When you say on the right, as you’re looking at it?
      A. right.
      Q. Is that the side where the car was parked?
      A. Right. Plus there was a ’phone booth, and it had lights on it.”

      The statement of facts by both the state and appellants reflects that both Hall and Middlebrook made the identification; however, the record only reflects Hall’s identification of Southerland at the lineup.

      The court commented:
      “I don’t think you can just go out and arrest a man because someone told you he was connected with a robbery, unless that somebody is willing to come in and swear out a warrant, or something like that.”

      The court stated:
      “Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.”


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    PINE FORD, INC., v. Leon SHANKLE
    75-77
    528 S.W. 2d 392
    Opinion delivered October 20, 1975
    Broten, Compton & Prewett, for appellant.

      Streett & Faulkner, for appellee.
   George Rose Smith, Justice.

On the afternoon of February 7, 1974, the appellee left his pick-up truck at the appellant’s service department, for repairs. During the night the shop burned, destroying the truck and its contents. Shankle brought this action for damages, alleging both specific acts of negligence and res ipsa loquitur. Moon Distributors v. White, 245 Ark. 627, 434 S.W. 2d 56 (1968). In appealing from a $2,924.50 verdict for the plaintiff, Pine Ford contends that the case should not have been submitted to the jury and that the court erred in admitting certain testimony.

The court correctly submitted the case to the jury, upon both theories. In a similar situation we have held the doctrine of res ipsa loquitur to be applicable. Megee v. Reed, 252 Ark. 1016, 482 S.W. 2d 832 (1972). There was also adequate proof of specific negligence. A former Pine Ford employee testified that oily rags were allowed to accumulate at the shop, that gasoline was kept in an open container, that used oil was poured into a drain with bars across it, and that there were overhead gas heaters with pilot lights. There was also proof that a city ordinance governing the storage of oily waste and rags was violated. Such testimony presented an issue for the jury with regard to specific negligence.

Upon the second point the city fire chief testified as an expert witness that he examined the premises immediately after the fire but could not determine with any certainty the cause of the fire. The trial judge withdrew that testimony from the jury’s consideration, adding: “I’ve taken from the jury’s consideration this man’s opinion that the fire was of undetermined origin or anything else about his opinion as to the cause of the fire.”

The court was mistaken in his assumption that all testimony about the cause of a fire is inadmissible. In Williams v. Lauderdale, 209 Ark. 418, 191 S.W. 2d 455 (1945), we said that the cause of a fire is ordinarily not a matter upon which an expert opinion is admissible, but we stated that the reason for the rule is that expert testimony should be excluded when the issue is one about which ordinary jurors are fitted to draw correct conclusions from the evidence. Thus we also recognized by implication the possibility that in some situations expert opinion about the cause of a fire would be admissible.

Neither aspect of the rule is really present in the case at bar, for the fire chief testified that he could not determine with certainty the cause of the fire. That was not an expression of opinion but a statement of fact, rather like the one considered in Chicago Mill & Lbr. Co. v. Ross, 99 Ark. 597, 139 S.W. 632 (1911). Such a statement of fact is admissible and should not have been excluded in the case at bar, because counsel for the defendant was entitled to use it in arguing his case to the jury.

Reversed.

Fogleman, J., concurs. Roy, J., not participating.

John A. Fogleman, Justice,

concurring. I concur in the result because I agree that there was error in the exclusion of the testimony of the fire chief.

I must add that I concur only because of Megee v. Reed, 252 Ark. 1016, 482 S.W. 2d 832, and the fact that the reversal on the exclusion of evidence did dictate a new trial. I still am unable to accept the holding that the doctrine of res ipsa loquitur is applicable in a case such as this. And until there is at least some reliable empirical data to support the presently untenable assumption that fires in a building do not ordinarily occur in the absence of negligence on the part of the person in control of a building, I will find it difficult. It may well be that data available would show that the majority of fires are caused by someone’s negligence. But I have been unable to find anything that would indicate that even the majority of negligent fires are caused by negligence of one in charge of the building where the fire occurred. If the fire is attributable to defective electrical wiring, burning cigarettes, defective appliances or equipment or other such causes arising from negligence, it is just as probable that the negligence was that of someone else as it is that the negligence was attributable to the person controlling the premises. Since I am not aware of any indication to the contrary, I must adhere to the views expressed in my dissent in Megee. I further disagree with the premise that there was a jury issue on specific negligence, because I find no evidence that the negligence relied on was the proximate cause of the fire.

The net result of Megee and this case gives rise to a presumption that a bailee of personal property stored on his premises insures it against fire loss or damage.


text:
    Richard R. HEATH, Director, Department of Finance and Administration, State of Arkansas v. EL DORADO GOLF & COUNTRY CLUB
    75-47
    528 S.W. 2d 394
    Opinion delivered October 20, 1975

      Karl D. Glass, Chief Counsel; Harlin R. Hodnett, Robert G. Brockman, James R. Eads, Jr., and James R. Cooper, for appellants.

      Robert C. Compton, of Brown, Compton & Prewett, Ltd., for appellees.
   J. Fred Jones, Justice.

This is an appeal by Richard R. Heath, Director of Department of Finance and Administration of the State of Arkansas, from a declaratory judgment in favor of the appellee, El Dorado Golf & Country Club, wherein the circuit court held void an assessment, and enjoined the collection, of Arkansas gross receipts tax on membership dues colleqted by and paid to the appellee, El Dorado Golf & Country Club.

The only question presented at the trial in this case was whether membership dues paid by members of a country club are subject to the gross receipts tax imposed by Ark. Stat. Ann. § 84-1903 (Repl. I960), and the only question before us on appeal is whether the trial court erred in holding the tax not applicable to such dues. The Director contends that the tax is collectable under authority of § 84-1903, specifically subsection (e) of the statute, and the appellant contends in points for reversal as follows:

“The Legislature intended that ‘dues’ as well as ‘fees’ paid for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities be subject to Arkansas Gross Receipts Tax.
The appellee, El Dorado Golf and Country Club, is a place which provides its members access to or the use of amusement, entertainment, athletic or recreational facilities. ”

The question presented was before this court in the case of Scurlock, Comm. of Revenues v. Hardscrabble Country Club, 224 Ark. 629, 275 S.W. 2d 638 (1955), but we did not reach the merits in that case because of improper venue. We did, however, consider and comment on the point here involved in Cheney, Commr. v. Tolliver, 234 Ark. 973, 356 S.W. 2d 636, wherein the gross receipts tax on coin-operated music machines was primarily involved and the memorandum opinion of the chancellor was adopted as a part of the opinion by this court on appeal. In the Tolliver case § 84-1903 (e) was considered in connection with § 84-1902 (c). The pertinent portions of these sections read as follows:

“84-1902 — The following words and phrases shall, except where the context clearly indicates a different meaning, have when used in this act [§§ 84-1901 — 84-1904, 84-1906 — 84-1919], the following meanings:
* * *
(c) Sale: The term ‘sale’ is hereby declared to mean the transfer of either the title or possession for a valuable consideration of tangible personal property, regardless of the manner, method, instrumentality, or device by which such transfer is accomplished. The term ‘sale’ is also declared to include the exchange, barter, lease or rental of tangible personal property where such exchange, barter, lease or rental results or may result in either the transfer of the title or the possession. The term ‘sale’ shall include also he sale, giving away, exchanging or other disposition of admission, dues or fees to clubs, to places of amusement, recreational, or athletic events, or for the privilege of having access to or the use of amusement, recreational, athletic or entertainment facilities. The term ‘sale’ shall not include the furnishing or rendering of service or services, except as is herein otherwise provided.
84-1903 — There is hereby levied an excise tax of three per centum (3%) upon the gross proceeds or gross receipts derived from all sales to any person subsequent to the effective date of this act ... of the following:
* * *
(e) The sale of tickets or admissions to places of amusement, to athletic, entertainment, recreational events, or fees for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities, including free or complimentary passes and tickets, admissions, dues or fees, such fee or complimentary passes, tickets, dues or fees hereby being declared to have a value equivalent' to the sale price of tickets, passes, admissions, fees or dues of like kind or character.”

In the Tolliver case, supra, the chancellor’s opinion which was adopted by this court reads in part as follows:

“ ‘For the issues to be resolved, the court must determine the implications raised by the above two sections.

Q. Do they cover the proceeds derived from Automatic Mechanical Music Machines?

To do this, the court will first analyze the section which levies the tax. What does it levy the tax on?

1. The sale of tickets and admissions to

a. Places of amusement.

b. To athletic events.

c. To places of entertainment.

d. To recreational events.

2. It also levies on fees for the privilege of one having access to or the use of,

a. Amusement facilities.

b. Entertainment facilities.

c. Athletic facilities.

c. Recreational facilities.

Note: (this section does not make a levy on ‘Dues’ unless they are free or complimentary).

* * *

In Wiseman v. Arkansas Utilities Co., 191 Ark. 854, 88 S.W. 2d 81, it was said:

It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt it must be resolved in favor of the taxpayer and against the taxing power.’ ”

After copying the above from the memorandum opinion of the chancellor, this court in Tolliver said:

“We do not deem it necessary to add anything to the Chancellor’s opinion concerning the application of Act No. 386 of 1941, as his reasoning is clear and sound.
* * *
And what the Chancellor quoted from Wiseman v. Arkansas Utilities Co., 191 Ark. 854, 88 S.W. 2d 81, is apropos here:
‘It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt is must be resolved in favor of the taxpayer, and against the taxing power.-’ ”

It is true, as pointed out in Hervey v. Southern Wooden Box, 253 Ark. 290, 486 S.W. 2d 65 (1972), it is our duty to give the statute a reasonable interpretation but, as we said in Jefferson Coop. Gin v. Milam, 255 Ark. 479, 500 S.W. 2d 932 (1973):

“ [L]et us bear in mind that there is also a cardinal rule which must be observed in construing taxing legislation. In Commissioner of Revenues v. Arkansas State Highway Commission, 232 Ark. 255, 337 S.W. 2d 665, we said, quoting an earlier case [Scurlock v. City of Springdale, 224 Ark. 408, 273 S.W. 2d 551]:
‘It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt it must be resolved in favor of the taxpayer, and against the taxing power.’
See also Cook, Commissioner of Revenues v. Ayers, 214 Ark. 308, 215 S.W. 2d 705, and cases cited therein.”

We conclude that the phrase “of the following” in § 84-1903, supra, limits the sales for which the gross receipts tax is levied. Although the definition of “sale” in § 84-1902 includes “dues or fees to clubs,” that term is absent from the tax imposing section as noted in the chancellor’s opinion adopted by this court in Tolliver, supra. Had the Legislature intended to impose the tax on club membership dues or fees, other than when free or complimentary, it could easily have done so during the legislative sessions since 1962 when the deficiency was noted in Tolliver.

The judgment is affirmed.

Holt and Roy, JJ., not participating.


text:
    Auburn P. SMITH v. Tommy GOODSON
    75-122
    528 S.W. 2d 397
    Opinion delivered October 20, 1975

      Brown, Carpenter & Prewett, for appellant.

      Harry F. Barnes, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Auburn P. Smith from an adverse decree of the Ouachita County Chancery Court in a property line dispute between Smith and the appellee Tommy Goodson.

In 1923 the appellant Smith’s father purchased from a Mr. Anderson a tract of land in Ouachita County described as the NE!4 of the NW14, Section 26, Township 15 South, Range 17 West, containing 40 acres more or less, together with a small tract described by metes and bounds in Section 23. The appellant Smith acquired title to the property under the will of his father when his mother’s life estate was terminated by her death in 1970.

In May, 1950, the appellee Tommy Goodson acquired title to the SE Va of the NW Va and the NE Va of the SW Va of Section 26, Township 15 South, Range 17 West, containing 80 acres more or less by warranty deed from a Mr. and Mrs. Wright. The appellee’s land lies immediately south of the appellant’s land, with the north boundary line of the appellee’s north 40 acres, more or less, forming the south boundary line of appellant Smith’s land and the common division line between the two tracts.

In the summer of 1972 the appellee sold timber on his land and a dispute arose between the parties as to the exact location of the boundary line separating their respective tracts. The appellant Smith filed suit against the appellee Goodson alleging that Goodson had destroyed a fence marking the division line separating their property; that he had erected a new fence 80 feet north of the original fence and true division line, and had cut timber from the 80 foot strip which belonged to Smith. Mr. Smith, in effect, prayed confirmation of his title to the 80 foot strip; for an injunction against the appellee Goodson from entering thereon and for damages in the cutting and removal of timber therefrom. Mr. Smith alleged that he and his predecessors in title had exercised uninterrupted possession of the strip of land involved for many years, and that he and the defendant and their respective predecessors in title had at all times prior to 1972 acquiesced in the fence which appellee removed as marking the true and proper division line.

Mr. Goodson filed answer denying the allegations of Mr. Smith and claimed title to the land involved under his deed and also alleged continuous, open and uninterrupted possession thereof.

The chancellor made findings in a written opinion reciting the respective ownership of the tracts as above described and found the testimony offered by the parties to be in irreconcilable conflict. The chancellor then found as follows:

“The government plat which is on file in the County Clerk’s Office was introduced in evidence discloses that each of the two tracts in question are regular in size and shape and each contains forty acres. Plaintiff’s Deed conveyed to him forty acres. The quarter section line between the two forty acre tracts is a straight line East and West across the entire section.
In 1965 Plaintiff secured the services of F. M. Methvin, the County Surveyor of Union County, Arkansas, and who is a reputable Engineer and Surveyor, who surveyed Plaintiff’s tract and a copy of the plat made by him from the survey was introduced in evidence. It showed the line between the parties to be at the place shown on the official plat and stated that Iron Pins were in or placed at each corner of Plaintiff’s tract.
On March 23, 1974, Plaintiff secured the services of Mr. Ed C. Turner, a reputable and qualified surveyor, who surveyed the line between the parties and a copy of his plat of the survey was also filed in evidence and it too reflects the line between the parties to be the same as the Government Plat.
There can be no question that the official Plat and the surveys made by two able and competent surveyors are identical, (except Mr. Turner also shows on his plat a line as claimed by Plaintiff) and that the official survey is the true line between the parties. This brings us to the claim of Plaintiff of title by adverse possession and the Court finds that the evidence falls far short of establishing this contention.”

The chancellor then entered a decree reciting in part as follows:

“That Plaintiff is the owner in fee simple absolute of the Northeast Quarter of Northwest Quarter (NE !4 NW Va) of Section 26, Township 15 South, Range 17 West, Ouachita County, Arkansas; that Defendant is the owner in fee simple absolute of the Southeast Quarter of Northwest Quarter (SE Va NW Va ) of Section 26, Township 15 South, Range 17 West, Ouachita County, Arkansas; that the Government plat which is on file in the County Clerk’s office discloses that each of the two tracts in question are regular in shape and each contains 40 acres; that Plaintiff secured the services of F. M. Methvin in 1965, who surveyed Plaintiff’s tract and that the plat made from the survey, which was introduced in evidence, showed the line between the parties to be at the place shown on the official plat, and stated that iron pins were in or placed at each corner of Plaintiff’s tract; that Plaintiff secured the services of Ed C. Turner, who surveyed the line between the parties, and a copy of his plat of the survey was also filed in evidence, and it, too, reflects the line between the parties to be the same as the Government plat; that there can be no question but that the official plat and the surveys made by two able and competent surveyors are identical (except Mr. Turner also shows on his plat a line as claimed by Plaintiff), and that the official survey is the true line between the parties, that the evidence falls far short of establishing the claim of Plaintiff of title by adverse possession; that the Complaint filed herein by Plaintiff should be dismissed with prejudice; that Defendant should be awarded his costs herein, and that Plaintiff should have thirty (30) days from the filing of this Decree with the Circuit Clerk of Ouachita County in which to file an appeal to the Supreme Court of Arkansas.
IT IS, THEREFORE, CONSIDERED, ORDERED AND DECREED that the Complaint filed herein by the Plaintiff should be, and hereby is, dismissed with prejudice; that the Defendant be, and hereby is, awarded his costs herein, and that Plaintiff be, and hereby is, granted thirty (30) days from the filing of this Decree with the Circuit Clerk of Ouachita County in which to file an appeal to the Supreme Court of Arkansas.”

The appellant relies on the following points for reversal:

“There is no substantial evidence to support the court’s finding that the government plat discloses that each of the two tracts is regular in shape and contains 40 acres and that the government survey and the surveys of F. M. Methvin and Ed C. Turner all disclose that the official survey is the true line between the parties.
The court erred in failing to find that the ‘Old Goodson’ fence established the boundary line between the two tracts, as set forth on Mr. Ed C. Turner’s survey, by virtue of acquiescence.
In the event there was insufficient evidence to establish the boundary line at the ‘Old Goodson’ fence by virtue of acquiescence, the court erred in failing to divide the overage equally between the two properties.”

Our difficulty in this case on trial de novo does not arise so much from the irreconcilable conflict in the testimony as it does from the irreconcilable conflict in the evidence as a whole. Mr. Methvin, who made the survey for Mr. Smith in 1965, did not testify, but the plat of his survey was submitted in evidence as defendant’s exhibit No. 2. This plat shows the length of the south boundary line of the Smith tract to be 1 ,- 329.4 feet, and the length of the east and west boundary lines to be 1,320 feet each. The length of the north boundary line is not indicated on the plat. According to the evidence, this survey was made in connection with a question pertaining to the location of the north boundary line of the Smith tract in connection with property lying in Section 23, which was unrelated to the litigation involved here.

The original government survey plat superimposed on plaintiff’s exhibit No. 1 contains no designation at all as to the length or width of Section 26, but does show the east side of the entire tier of sections running east and west across the township as being 5,280 feet. Whereas the west boundary line of the south one-half of Section 30 on the west end of the tier of six sections is shown to be 2,640 feet, and the west boundary line of the north one-half of Section 30 is shown to be 2,-767.38 feet, making a total c.8 5,407.38 feet for the west boundary line of Section 30.

Thus, it is obvious from the government survey plat that the west boundary line of the north one-half of Section 26 would be at least some distance longer than the east boundary line of the north one-half of Section 26, and it would only follow that the west boundary line of the appellant’s property would be some distance longer than the east boundary line, unless the discrepancy should be adjusted by some engineering or surveying process, or from monuments not designated on the government survey plat.

The plaintiff’s exhibit No. 2 appears to be a larger photograph of part of the government survey plat showing the entire township from Section 1 through Section 36 north and south, with the exception of the two westerly tiers of sections on the west side of the township. This plat shows Section 26 and all other sections designated on the plat as containing 640 acres. The north and south boundary lines of these sections all differ in length. The south boundary line of Section 26 is shown as 78.18 chains, which would be 5,159.88 feet, and the north boundary line of this section as 78.14 chains, which would be 5,157.24 feet.

Mr. Ed C. Turner was employed by the appellant Smith to make a survey of the property here involved and he prepared a plat of his survey together with an enlarged copy of the original government survey, above referred to, under date of March 23, 1974. Mr. Turner’s plat was offered in evidence as plaintiff’s exhibit No. 1. His plat included a reproduction of the original government survey, or plaintiff’s exhibit No. 1 above referred to. Mr. Turner’s plat as to the specific property here involved, however, shows the west line of the Smith tract or the NE XA of the NW XA of Section 26 as being 1,320 feet. The west line of the appellee’s tract,, the SE!4 of the NW!4 of Section 26, as being 1,482.6 feet, and the west line of the appellee’s south 40, the NE XA of the SW XA of Section 26, as being 1,333 feet. Mr. Turner’s plat does not designate the length of any of the other boundary lines of the property here involved, but does indicate the area in dispute as included in the SE XA of the NW XA of Section 26 and as being 72.5 feet in width on the east end between the old fence referred to in the testimony and the boundary line between the Smith and Goodsbn properties as indicated on the plat of the Methvin survey and as indicated by the straight lines on the government survey plat. Mr. Turner’s plat shows the center of the disputed strip across the north end of the SE Va of the NW'4 to be 53.5 feet in width and 61 feet in width on the west end.

We touch lightly on the conflicting lay testimony pertaining to the fence here involved as related to the survey and government plat lines. Mr. Smith admitted that he had his land surveyed by Methvin in 1965 in connection with another transaction not involved in this case, and that Methvin did place corner markers as indicated in Methvin’s plat. He said, however, that he never did accept Methvin’s survey as establishing his true south boundary line. He said he had always considered the old fence, which was some 61 feet south of the Methvin survey line, as the true boundary line between his and the Goodson property, and that Goodson had also accepted and acquiesced in the fence as being on the true boundary line until he started cutting timber from the area in 1972.

This testimony was denied by Goodson. Goodson and his witnesses testified that the true boundary line and corners, as established by Methvin, were the true boundary line and corners; that they had always been so considered by Goodson and his predecessors in title; that Goodson purchased the wire and permitted the fence to be erected (two strands of barbed wire) through ihe woods across the north end of his property for his own use and to accommodate his friends as a pasture for their horses while deer hunting on his property. Mr. Goodson said he purchased the wire and permitted some of his friends to erect a fence and that he simply required them to erect it well within his north boundary line qnd avoid getting on anyone else’s property.

Mr. Smith said he assumed that Mr. Goodson- had erected the old fence and that he or his brother pointed out to Goodson where the property line was at the time the fence was erected.

We now consider the testimony as it relates to the plats in evidence. Mr. Ed C. Turner, called as a witness by the appellant Smith, testified that at the request of Mr. Smith he made a survey of the property here involved on March 25, 1974. He testified that he started his survey at an established point on the south line of Section 35 and ran north to Section 26. He said he found Section 35 to be 5,382.8 feet in length, or to contain an excess in feet of 102 feet. He said he found the SW corner of the SE !4 of the SW !4 of Section 26 located in a road at the corner of the section. The pertinent portions of Mr. Turner’s testimony as copied from the record are as follows:

“Q. To summarize it, you surveyed Section 35 and you established the corner of Section 26 and found a corner located in a road?
A. That is true.
Q. Did you make reference to the original government survey?
A. Yes sir, I did.
Q. For what purpose, Mr. Turner?
A. Each time I conduct a survey, platted outside of the city limits, each surveyor refers to the original government survey according to the original layout. This plat is on file in the County Clerk’s Office to determine whether a Section is exactly a Section, or larger or smaller. It is indicated on the plat as to the original survey of this County, or State of Arkansas, as to how they are located or platted. The original is located in the Clerk’s Office in each County.
Q. Did you bring that book with you?
A. Yes.
Q. Would you turn to the page with regard to Section 26?
A. Yes sir. That will be Section 26, Township 15 South, Range 17 West, page 14.
Q. Did you put on your survey part of the original government survey?
A. Yes I did, except I converted the chains to feet. The original government survey was in chains.
Q. The government survey was in chains but you converted it on your survey in feet, is that correct?
A. Yes sir.
Q. What did the original government survey reflect?
A. It shows that it is an even measured Section on the east side but when they came west, it was either over or under. The north half had 1.93 chains over a half mile.
Q. How long is a true half mile in terms of feet?
A. 2640 feet.
Q. What does the original government survey show as to overage, translated from chains to feet?
A. Your south half is an even 2640 feet, according to the government survey.
Q. You are saying the south half is a true half mile then?
A. It is supposed to be.
Q. What does it reflect on the north half?
A. The north half is supposed to be 2767.38 feet, or a plus of 127.38 feet, which is longer than the true half mile
Q. So the original government survey reflects that the north half of Section 26 is 2767.38 feet, which is longer?
A. Yes. Before I conduct a survey foi anyone, I go to the original government survey to determine whether it is large or small, and if it is short I have to convert proportionately each 40 acre tract. If it is standard, then I refer to this to determine my survey.
Q. If this is true and the original government survey shows the north half of Section 26 has an overage, what does that cause you to do when you prepare your own survey?
A. If all the overage is determined to be in the north half of that Section, then it is divided proportionately.
Q. You said the original government survey shows an overage of 127.38 feet. What does your survey show as to any overage?
A. My own survey shows we had a 135.22 foot overage in the north half only.
Q. What rules of surveying are applied when there exists an overage in a half?
A. It is divided proportionately.
* * *
A. If it is specified in one 40 acre tract, it is so specified. If it is specified in the whole Section, it is so specified. It is a survey rule I go by from the original government survey.
Q. In this case, was the overage attributed to the north half only?
A. There was overage in the south half also, by occupation.
Q. Was that shown in the government survey?
A. No sir. It was indicated in the north half only by the original government survey.
Q. So if there is an overage in Section 26, it would apply to the north half?
A. That is true.
Q. Your survey reflects a broken line which is designated an old fence. Did you survey the old fence, Mr. Turner?
A. Yes.
Q. Who was present to assist you in your survey?
A. You were there and Mr. Auburn Smith and two of his brothers. Approximately five or six people were with me.
Q. How did you locate the old fence?
A. It had been there a long time and I found wire embedded in the trees. I found at least one tree every two hundred feet and I measured every two hundred feet across to determine this fence line.
Q,. You established the old fence by finding barbed wire on old trees from east to west, is that correct?
A. Yes sir.
Q. At the extreme west side of the property you located the fence 61 feet south of the painted red and yellow line, is that true?
A. That is true.
Q. And in the middle you located it 53.5 feet?
A. Yes sir.
Q. And at the extreme east side of the property, you found it to be 72.5 feet of the painted red and yellow line?
A. Yes sir.
Q. Do you have any rules which you apply to a fence which is not straight across property at the parallel line? It does vary here?
A. I don’t have any rule, but I have to run a straight line and whatever the difference is I have to so note.
Q. How do you reconcile the difference?
A. I would determine the average width of the entire length of the fence and divide it and come up with a common denominator.”

On cross-examination the pertinent portion of Mr. Turner’s testimony appears as follows:

“Q. When was the original government survey made?
A. I don’t believe it has a date on it. Somewhere in the 1800’s I would say.
Q. And you are testifying from that survey?
A. Yes.
Q. Does it show corners on there?
A. Yes.
Q. Does it show fences?
A. No.
Q. Does it show roads?
A. Yes.
Q. If there were no conflict between the parties here, we could get this government survey and take you out there and then you could lay off the various lines and you could testify what you just testified to, isn’t that right?
A. Yes sir.
* * *
Q. You have apportioned the overage and underage to your survey, is that correct?
A. Yes.
Q. But not with any reference to the occupation line?
A. Yes, existing corners.
Q, The existing corner in the NE Va of the SW Va of Section 26?
A. Yes.
Q. What marks that corner, Mr. Turner?
A. Iron pin in the ground and a witness tree.
Q. Do you know how long they have been there?
A. No. I can usually tell from embedded wire in trees about how long it has been there.
Q. On the other end there is a pine tree there also, 61 feet north of the existing fence, is there not?
A. Yes.
Q. Did you follow this line across the north half?
A. Yes. It was well balzed and a painted red and yellow line there.
Q. There was a blazed line there?
A. Yes.
Q. Are you talking about a line established on the ground and the fence was measured from that line?
A. Yes.
Q. You have taken the old government survey and come up with your own plan for adjusted acreage because you say there is an overage?
A. It is not my plan, Mr. Barnes. It is the method of surveying taught by all schools in the country.
Q. Does that have any bearing on occupation lines? The occupation line is what throws the whole thing out of kilter, isn’t it?
A. Yes sir.
Q. That is not the case here, is it?
A. I haven’t tried to change anything, Mr. Barnes.”

On redirect examination Mr. Turner said he did not know who placed the iron pin at the corners. Whereupon the appellant Smith was called to the witness stand and testified that Mr. F. M. Methvin placed the iron pins at each corner of his tract when his survey was made in 1965.

On cross-examination Mr. Smith said that Mr. Methvin placed the iron pins 61 feet north of where the old fence was. Mr. Turner was then recalled and testified as follows:

“Q. I hand you survey plat prepared by F. M. Methvin, which is dated 1965. Would you comment on the survey, how it was prepared and how he located the iron pin between the Smith property and the Goodson property?
A. He surveyed a standard 40 acre tract of land which stated this was a large Section. He has staked out practically a standard 40 acre tract without any regard to the original government survey.
Q. This was a survey of the Smith tract, is that correct?
A. That is true.
Q. It had no reference to the Goodson tract?
A. No, sir.”
On cross-examination Mr. Turner testified as follows:
“Q. All that shows is that Mr. Goodson [sic] has what he claims, isn’t that true? It shows he has 1320 feet north and south, east and west from an iron pin Mr. Methvin put there, isn’t that right?
A. Yes.
Q. That is the northwest corner of the Goodson property?
A. I would say that is not the way the survey should have been made. That is why I referred to the plat book.
q * * * I wan{ to know if that is the Northwest Corner of the Goodson property?
A. Yes.”

Mr. Turner said the government survey showed an overage of 127.38 feet in the north half of Section 26, and that his own survey showed an overage of 135.22 feet. He said he apportioned the difference in his survey with existing corners marked by iron pins and a witness tree. He testified as to the distance from the old fence erected by Goodson to the painted and blazed line apparently indicated on the government survey plat and/or established by Methvin. He indicated that Methvin used the wrong procedure in making his survey and made it without reference to the government survey, but Mr. Turner does not say what dimensions his own survey gave to the Smith tract or the Goodson tract in the north half of Section 26.

Apparently Smith and Goodson are both thoroughly familiar with the location of the old fence-line and the so-called Methvin line. Their entire differences resulting in this litigation are over the area between the old fence and the Methvin survey line. While Mr. Turner testified as to the distances at both ends and in the middle between the old fence and the Methvin line, he never did say, and he was never asked, where he found or located the true boundary line in relation to the old fence and the Methvin survey line.

The chancellor found in effect that the division line as found or established by the Turner and Methvin surveys coincided with each other and were also identical with the quarter section line as indicated on the government survey plat. Turner’s survey plat is somewhat misleading when considered without his testimony. His survey plat shows the west side of Goodson’s north 40, more or less, in the north half of Section 26 to be 1,482.6 feet, and the west line of Smith’s tract in the north half of Section 26 to be 1,320 feet. He shows no offsets in the section or quartersection lines, but shows the west boundary line of the north half of Section 26 to be 2,-802.6 feet, which is the same as shown for the quartersection line marking the west boundary of the Smith and Goodson properties. Turner said he apportioned the overage of 127.38 or 135.22 feet, but he did not say how he apportioned it, whether north and south or east and west.

We are ill-equipped on trial de novo to resolve the differences we have noted. We conclude, therefore, that this case should be remanded to the trial court for such further proceedings as may be necessary in clarifying the record and marking the exact location of the division line between the Smith and Goodson properties as found prorated and established by the Turner survey.

This cause is remanded to the Ouachita County Chancery Court for further proceedings not inconsistent with this opinion.

Cause remanded.


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

text:
    FARM BUREAU INSURANCE Company of Arkansas, Inc. v. Betty Milligan WARD
    75-79
    528 S.W. 2d 910
    Opinion delivered October 20, 1975
    [Rehearing denied November 24, 1975.]

      Hodges, Hodges & Hodges, by: David Hodges, for appellant.

      Wilson & Grider, for appellee.
   Conley Byrd, Justice.

In a suit brought by Betty MilliganWard under the vandalism provision of an insurance policy issued by Farm Bureau Insurance Company, Inc., the jury found the issues in favor of Farm Bureau. The trial court granted a new trial on the basis that there was no evidence to justify an instruction on whether Betty Milligan Ward had violated the terms of the policy in neglecting to use reasonable means to save and preserve the property at and after the loss. The Farm Bureau appeals from that ruling. Mrs. Ward for her cross-appeal contends that the trial court erred in not directing a verdict in her favor on the liability of the Farm Bureau.

The record shows that in early 1973, Betty Milligan purchased a house for herself and her three children. The Farm Bureau issued its homeowners policy to Betty Milligan effective from 6/5/73 to 6/5/74. Some three months after the purchase of the house, Betty Milligan married Tommy Ward. Approximately two weeks before the loss involved herein. Tommy Ward left a note saying that he was leaving Betty Milligan Ward and directed her to pack his clothes and put them in his car which was parked outside. Tommy Ward, a long distance truck driver, came to her house with his nephew on the evening preceding March 16, 1974, at approximately 7:00 p.m. Betty Milligan Ward, although in the neighborhood, was not at home at that time. When the children saw Tommy Ward pull the telephone out of the wall, they ran and reported the incident to their mother. After Betty Milligan Ward arrived at her house, Tommy Ward left without speaking. It was then decided that her sister and brother-in-law would spend the night with her. Tommy Ward returned about 2:00 a.m. and when Betty Milligan Ward unlocked the door he slapped her three or four times. Tommy Ward then doubled up his fist to hit her brother-in-law but decided against it and left for the second time. At this time, Betty Milligan Ward and her children, together with the sister and brother-in-law, locked the house and went to the sister’s home to spend the remainder of the night. Upon her return the next day Betty Milligan Ward found that Tommy Ward had again returned and broken into her house. There was extensive damage to both the house and 'the furniture therein.

Jerry Mote, an adjuster for Farm Bureau, testified that the basis of his denial of the vandalism claim was that Mrs. Ward told him that her husband had caused the damage.

The only policy provision involving vandalism or any exclusion or exception thereunder, is under “Perils Insured Against” under Section 1 of the policy. In so far as applicable it provides:

“This policy insures under Section 1 against direct loss to the property covered (and additional living expense resulting from such loss) by the following perils as defined and limited herein:
10. VANDALISM AND MALICIOUS MISCHIEF, meaning only the wilful and malicious damage to or destruction of the property covered, but excluding as respects this peril loss if the described dwelling had been vacant beyond a period of 30 consecutive days immediately preceeding the loss. A building in course of construction shall not be deemed vacant.”

The Farm Bureau in contending that there was evidence warranting an instruction on whether Betty Milligan Ward had neglected “to use reasonable means to save and preserve the property at and after the loss” argues in its brief as follows:

“Therefore, the issue on appeal is whether there was sufficient evidence to sustain the giving of the instruction. What evidence was there of neglect of the insured to use reasonable means to save and protect the property at and after a loss?
(1) She did not immediately repair the windows and doors.
(2) The repairs described in the estimate have not been made at the time of the trial.
(3) Mrs. Ward unlocked the doors at 2:00 A.M. Saturday morning and let Mr. Ward in the house even though at 7:00 P.M. the previous evening he was violent enough to pull out the phones.
(4) She left the home after the fight wherein Mr. Ward struck her four (4) times. The home was, therefore, unprotected at the time the damage was done by Mr. Ward.”

The record at page 76 shows that, when Mrs. Ward discovered the damages, she first notified the police and then Farm Bureau. The property was inspected by Farm Bureau’s agents on the same day that the damage was discovered. The only evidence as to any delay in repairs is Mrs. Ward’s testimony that she had to wait until she got the money to replace the broken windows and doors. We do not believe that an insurer who refuses payment under its policy is in a position to argue that an insured without the financial means to make the necessary repairs has neglected to use all reasonable means to save and preserve the property. Furthermore, the policy provision upon which Farm Bureau relies provides:

“This Company shall not be liable for loss by fire or other perils insured against in this policy caused, directly or indirectly, by: ... (i) neglect of the insured to use all reasonable means to save and preserve the property at and after a loss, or when the property is endangered by fire in neighboring premises; ...”

There is certainly no showing here that Mrs. Ward, in locking the premises when she left, did anything other than any other prudeni person would have done under the same or similar circumstances. Since no loss occurred when Mrs. Ward unlocked the door at 2:00 a.m., we can find no logical relevance to Farm Bureau’s contention that this showed a neglect on the part of Mrs. Ward to save and protect the property. Consequently, we agree with the trial court that there was no evidence to instruct the jury on the issue of failure to save and protect the property at and after the loss.

In answer to Mrs. Ward’s contention that she was entitled to a directed verdict on Farm Bureau’s liability for the damages sustained, the Farm Bureau only contends that there was a factual issue to go to the jury as to what was meant by the words “vandalism and malicious mischief. ” We find no merit in this suggestion. As can be seen from the language of the policy, supra, the terms “vandalism and malicious mischief” are defined as “meaning only the wilful and malicious damage to or destruction of the property covered. ” The only logical conclusion that can be drawn from this record is that Tommy Ward, after a quarrel with his estranged wife, returned to the house after she left and wilfully and maliciously broke down the locked door to her house, broke windows and otherwise damaged the personal property therein (including but not limited to breaking the legs from three dining room chairs and completely destroying a color television). Therefore, it follows that the trial court erred in failing to direct a verdict in Mrs. Ward’s favor on the issue of liability under the policy.

Reversed and remanded for new trial.

George Rose Smith and Fogleman, JJ., concur.

John A. Fogleman, Justice,

concurring. I concur in the result because the circuit judge granted a new trial upon a finding that the jury verdict was against the preponderance of the evidence. The order granting a new trial contained this recital: “The verdict was, without question, contrary to the law and the evidence”. It is very easy to see why he thought so. There was no abuse of discretion in granting the motion. Since this is the case, we should go no further, because we have no way of knowing what the evidence will be on retrial. We should particularly avoid holding that under the evidence presented on the first trial, the court should have directed a verdict. If we properly reach the question, and I am not conceding that we should, I do not agree that the court should have directed a verdict for appellee-plaintiff.

A directed verdict for a plaintiff is and should be a rarity. Hales & Hunter Co. v. Wyatt, 239 Ark. 19, 386 S.W. 2d 704. In order to grant a directed verdict for a plaintiff, the court must find that there is no substantial evidence upon which a reasonable mind could find against the plaintiff on any fact issue. In considering the question all inferences must be drawn and all evidence considered in the light most favorable to the defendant. Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W. 2d 532; Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W. 2d 307. The testimony of the plaintiff (or of any party) cannot be considered as uncontradicted or undisputed. Missouri-Pacific Truck Line v. Riley, 247 Ark. 406, 445 S.W. 2d 720; McCollum v. Graber, 207 Ark. 1053, 184 S.W. 2d 264.

If there is any question of credibility, it must be left to the jury. On this subject, we had this to say in Skillern v. Baker, 82 Ark. 86, 100 S.W. 764:

It may be said to be the general rule that where an unimpeached witness testifies distinctly and positively to a fact and is not contradicted, and there is no circumstance shown from which an inference against the fact testified to by the witness can be drawn, the fact may be taken as established and a verdict directed based on such evidence. But this rule is subject to many exceptions, and where the witness is interested in the result of the suit, or facts are shown that might bias his testimony or from which an inference may be drawn unfavorable to his testimony, or against the fact testified to by him, then the case should go to the jury. ****

See also, Sykes v. Carmack, 211 Ark. 828, 202 S.W. 2d 761.

Before a verdict should be directed for a plaintiff, the facts in issue should be admitted or established by the undisputed proof of disinterested witnesses and different minds should not be able to reasonably draw different inferences from the testimony. Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665; Woodmen of the World Life Insurance Society v. Reese, 206 Ark. 530, 176 S.W. 2d 708.

Even if it should be conceded that the evidence of vandalism met these tests and that appellee was entitled to a directed verdict on that issue, the issue of the reasonableness of her efforts to protect the property involved remains. Appellee was the only witness on that subject, so, even if we consider her as an unimpeached witness, her interest in the result of the suit prevents this court or the trial court from taking her testimony as uncontradicted. Likewise, both the trial court and the appellate court must be able to say that no inference unfavorable to the party testifying can be drawn unfavorable to his testimony or contrary to the fact to which he testified. Sykes v. Carmack, supra. This certainly would prevent a directed verdict on the issue whether appellee neglected to use all reasonable means to save and preserve the property at and after the loss. It seems to me that the rule governing treatment of the testimony of a party should have a particularly strong impact where that party’s neglect or the reasonableness of his conduct is involved, as it is here. A look at appellee’s testimony will show that there are questions whether she did all within her power to protect her property.

Appellee said that her estranged husband came to the house around 7:00 p.m. on Friday evening and was rather upset to the extent that he became violent, but did not hurt anyone or break anything, except for pulling the telephone out of the wall. She stated that she was frightened but, instead of calling any of her family, she called the neighbor she had been visiting when Mr. Ward arrived at the house. According to her, while this neighbor was helping her repair her telephone lines, her sister and the sister’s husband arrived and invited her to go home with them, but she preferred that they come and stay with her. Her husband returned to the house at 2:00 a.m. In spite of her knowledge of his previous conduct, she unlocked a door and admitted him to the house. It was then, she said, that he struck her four times and left. She then left and went to the home of her sister and brother-in-law. In spite of the previous episode, she took no precautions other than locking the doors and windows. She did not return to the house until noon the next day, when she discovered the damage, which included a broken out patio door and window. She then went to the police station, but said that the police would not come to the house. A deputy sheriff did come and investigate. She called one Larry Rowland, who investigated the damages. Thereafter, she left and returned to her sister’s house. Since the door facing was pulled off, she could not lock the door and she took no precautions about protecting the property in the unlocked house or the premises themselves.

It is true that Mrs. Ward testified that she did not have the money to repair the doors and windows until some time later, but this testimony cannot be taken as undisputed. It is also true that she testified that all the damage had been done when she returned to the house at noon on Saturday. But it is indeed strange that Larry Rowland was not called as a witness by her. There is another circumstance demonstrating that her testimony might be closely scrutinized. On direct examination, when she knew that appellant was denying liability on the ground that she could not recover if her spouse inflicted the dafnage, upon being asked if she had any idea who caused the damage, she responded, “No, sir, I don’t know who caused it.” Later, on cross-examination, she said that she had seen her husband after the incident and that he denied having done it. This testimony came after she had already testified, also on cross-examination, that, at the time, there was no question but what he had done it. She said that when, she went to the police she told them he had done it.

Certainly, the question of appellee’s credibility was for the jury and it could reject any part of her testimony it found unworthy of belief. Her lack of means to protect or repair the property, whether she took reasonable means to protect the property after the initial violent display by Ward, and whether the full damage claimed was done before she left the unguarded and unlocked house, were all matters for jury consideration.

My concurrence only goes to the remand for a new trial. I would actually affirm the order granting it.

I am authorized to state that Mr. Justice George Rose Smith joins in this opinion.


author: Conley Byrd, Justice.

text:
    PIGGOTT JUNIOR CHAMBER OF COMMERCE v. Charlie HOLLIS et al
    75-96
    528 S.W. 2d 915
    Opinion delivered October 20, 1975
    [Rehearing denied November 24, 1975.]

      C. W. Knauts, for appellant.

      C. Joseph Calvin and E. L. Hollaway, for appellees.
   Conley Byrd, Justice.

This litigation involving the right of the appellant, Piggott Junior Chamber of Commerce to lease county property has been before us on two previous occasions — see Piggott Junior Chamber of Commerce v. Hollis, 242 Ark. 205, 412 S.W. 2d 595 (1967) and Hollis v. Piggott Junior Chamber of Commerce, 248 Ark. 725, 453 S.W. 2d 410 (1970). Following the last reversal, the matter came on for hearing in circuit court without the mandate from this court having been filed within the time limited by Ark. Stat. Ann. § 27-2144 (Repl. 1962) and Ark. Stat. Ann. § 27-2145 (Repl. 1962). Because of the failure to file the mandate within the twelve months limited by those statutes, the trial court was without jurisdiction to enter the order from which this appeal was taken. See Robeson v. Kempner, 189 Ark. 27, 70 S.W. 2d 37 (1934) and Palmer v. Carden, Chancellor, 239 Ark. 336, 389 S.W. 2d 428 (1965).

The appellees, to sustain the lack of jurisdiction in the trial court, contend that the issue was waived because it was not raised in the trial court. Appellees rely upon the cases of Bertig Bros. v. Independent Gin Co., 147 Ark. 581, 228 S.W. 392 (1921) and Union Nat’l Bank of Little Rock v. Smith, 240 Ark. 354, 400 S.W. 2d 652 (1966), for the proposition that the failure to file the mandate could be waived. However, in those cases the one year limitation had not expired when the parties waived the filing of the mandate, whereas in this case there was a lapse of over four years. Consequently, it follows that the trial court was without jurisdiction to enter the order of December 30, 1974.

Reversed and remanded with directions to set aside the order of December 30, 1974, as having been entered without jurisdiction.


author: Frank Holt, Justice.

text:
    HIGHLANDS INSURANCE Company of Texas v. WILLIAM BURRIS MASONRY CONTRACTORS, Inc.
    75-92
    528 S.W. 2d 405
    Opinion delivered October 20, 1975

      Wright, Lindsey & Jennings, for appellant.

      James R. Howard, for appellee.
   Frank Holt, Justice.

The appellant is the surety on the payment and performance bonds for a prime contractor on construction projects for the Little Rock Municipal Water Works and the Mountain Pine School District. The prime contractor was adjudicated bankrupt and appellant undertook full responsibility for completion of the projects pursuant to its performance bonds. The appellee was the masonry subcontractor for the prime contractor on both jobs. Appellee instituted this action to recover the $8,553.66 balance on the full contract price ($44,300) of the Water Works project and the $9,117 balance of the full contract price ($53,117) on the Mountain Pine project, or a total of $17,670.66, plus a 12% statutory penalty and a reasonable attorney’s fee. In other words, it was appellee’s position that he had fully complied with the contract and was entitled to the balance which would constitute full payment. By appropriate pleadings, appellant controverted appellee’s action.

The trial court, sitting as a jury, resolved the issues and awarded appellee the full balance allegedly due on the contract, plus the 12% penalty and attorney’s fee. The court found the amount of incompleted work by appellee subcontractor on both projects was “fairly negligible;” appellee “has not only been willing but has done everything he has been asked to do;” and appellant had “waived any right to complain about” any unfinished work since it had not asked appellee to perform. However, the court noted concern about the “final payment” contract provisions because “the prime contractor won’t be liable to pay the subcontractor the last Ten Percent **** until the prime contractor receives final payment.” The court then concluded that it was the prime contractor’s and not the subcontractor’s fault that the final payment had not been made.

For reversal the appellant contends there was no substantial evidence to support the court’s finding that the appellee subcontractor was entitled to the full amount for which he sued. We agree because the appellee subcontractor had not completely fulfilled his contracts. He testified that unless he was furnished a “punch list” showing the architect’s requirements, he considered his contracts completed. However, he testified further that the architect had acquainted him with imperfections of his work on both projects and that he, appellee, had indicated he “would take care of it.” He estimated that it would cost $200 to $300 to complete his “work” on the Water Works project and “on the Mountain Pine, I don’t know what work they are wanting me to do, so I can’t say.”

Viewing the evidence, as we must do on appeal in the light most favorable to the appellee, we must hold the evidence is insubstantial to support a finding for the full balance due on the terms of the contracts. However, there is sufficient evidence, based upon a fact issue,which “is not disputed” by appellant, that the appellee has substantially complied with the terms of his contracts. In such a situation, we have said:

When the work has been done substantially in accordance with the terms of the contract, or when there has been an acceptance of the work by the defendant, the plaintiff may, notwithstanding defects therein, recover the contract price, less the costs of correcting such defects.

Fitzgerald v. La Porte, 64 Ark. 34, 40 S.W. 261 (1897); Thomas v. Jackson, 105 Ark. 353, 151 S.W. 521 (1912); and Roseburr v. McDaniel, 147 Ark. 203, 227 S.W. 397 (1921). 13 Am. Jur. 2d., Building and Construction Contracts, § 41, reads in part:

A provision in the contract that the last payment for the work is to be made when the work is completed does not take the case out of the rule.

In the case at bar, the appellee admitted that it would cost $200 to $300 to complete his subcontract on the Water Works project. He could not say what it would cost on the Mountain Pine job. On the latter project, the appellant’s estimate of $831 is uncontradicted. Therefore, the total cost for the completion of both projects would be $1,031 when viewed most favorably to the appellee.

We find no merit in appellant’s contention that until it receives final payment it is not obligated to pay appellee. The evidence viewed most favorably to the appellee is that he had substantially discharged all of his obligations as a subcontractor; in fact, “it is not disputed” by the appellant that the appellee had “substantially” completed his work; delay was caused when the prime contractor became bankrupt because of “mismanagement,” requiring the.appellant to perform the prime contractor’s responsibilities; only minor corrections remain to be done on the buildings; they are occupied by the owners; the appellee subcontractor is willing to complete his work “without delay” on each project; and, as indicated, the cost of correcting any defects is small in comparison to the total contract price. In these circumstances, we agree with the trial court that it is not the subcontractor’s fault that the final payment has not been made to the appellant.

We find no merit in appellant’s contention that the court erred in excluding testimony with respect to the custom of the trade where a contractor charges back against his subcontractor for damages incurred because of the subcontractor’s delay in performance. A sufficient answer is, as the trial court found, that the written contracts contained no such provision. To the contrary, the contracts specifically provided that the prime contractor has the right to employ others, after notice to the subcontractor, to prevent any material delay due to the subcontractor and charge the cost to the subcontractor’s account.

The appellant asserts the court erred in awarding a statutory penalty and an attorney’s fee. It is well established that the plaintiff must recover the amount for which he sues in order to come within the purview of Ark. Stat. Ann. § 66-3229 (Repl. 1966). Fidelity Phenix Fire Ins. Co. v. Roth, 164 Ark. 608, 262 S.W. 643 (1924); and Smith v. U.S.F. & G. Co., 239 Ark. 984, 395 S.W. 2d 749 (1965). In the case at bar, as discussed, the appellee has not recovered the full amount sought and, therefore, is precluded from invoking the terms of this statute.

In accordance with our foregoing discussion, if appellee offers a remittitur of $1,031 plus the statutory penalty and attorney’s fee to appellant within seventeen calendar days, the judgment, so reduced, is affirmed. Otherwise, it is reversed and remanded.

Affirmed as modified.