author: J. Fred Jones, Justice.

text:
    Linda Ellen SNOW and Mrs. Dale Loyd SMITH v. Marjorie T. MARTENSEN
    73-223
    505 S.W. 2d 20
    Opinion delivered February 11, 1974

      Crouch, Blair, Cypert if Waters, for appellants.

      Wade, McAllister, Wade if Burke, P.A., for appellee.
   J. Fred Jones, Justice.

Blanche M. Box died testate having named a daughter, Mrs. Martensen, and two grandchildren, Miss Snow and Mrs. Smith, as sole beneficiaries under her will. Mrs. Box willed her jewelry to her daughter Mrs. Martensen, and the remainder of her estate one-half to Mrs. Martensen and the other half to Miss Snow and Mrs. Smith.

Upon the death of Mrs. Box, Mrs. Martensen filed the will for probate and obtained her own appointment as personal representative. On May 10, 1975, she filed her inventory listing the assets of the estate as totaling $786.

Miss Snow and Mrs. Smith filed a petition challenging the inventory and alleging that funds in an account at the First Federal Savings and Loan Association in Fayetteville, Arkansas, were assets of Mrs. Box’s estate and should be included in the inventory of the decedent’s estate. They prayed for the removal of Mrs. Martensen as personal representative and for an accounting of withdrawals she had made from the savings account, both before and after the death of Mrs. Box.

As grounds for a special motion to dismiss, Mrs. Mar-tensen alleged that she claimed the savings account in question as the sole owner; not as an heir or beneficiary having an interest in the estate, but in her own personal right as a stranger to the estate. She alleged that the savings account in question was a joint account with right of survivorship and so listed on the records of the First Federal Savings and Loan Association, and she demurred to the petition on the grounds that the probate court was without jurisdiction to determine the ownership of the funds in the savings account.

The appellants’ petition for the removal of Mrs. Mar-tensen as administratrix and their request for certain admissions were denied by the trial court, but since the case turns on the question of whether the probate court had jurisdiction of the subject matter under the facts and pleadings in this case, we confine our discussion to that issue.

The probate court sustained the demurrer and dismissed the petition for want of jurisdiction of the subject matter. On appeal to this court Miss Snow and Mrs. Smith have designated one point they rely on for reversal. In substance they contend that the trial court erred in ruling that it did not have jurisdiction to hear the subject matter of their petition and in sustaining the demurrer thereto.

The trial court set out a clear and concise memorandum for precedent and as to jurisdiction, said:

“The point raised by demurrer here is that probate court has no jurisdiction to try title to property (the joint savings account) under the facts thus far made apparent. The demurrer admits the allegation of petitioners that there was, and is, a joint savings account in the names of testatrix and administratrix. The demurrer does not admit petitioners’ assertion that the apparent joint savings account is not, as a matter of law, a survivorship account.
Thus, the contest as to the savings account emerges as one between administratrix, claiming ownership, not as administratrix, but in her own right, and the petitioners, claiming, in behalf of the estate, that the account belongs to the estate.
This posture brings the matter squarely within the aegis of the rules announced in Hartman v. Hartman, 228 Ark. 692, and. cases there cited and discussed. Broadly stated, the rule is that probate court has jurisdiction to settle ownership of estate property as between or among contending heirs, devisees and interested persons, on a sort of ‘in house’ basis; but where, as here, a person who is otherwise an heir or devisee claims title in his own right, and not stemming from the will, such person is claiming adversely to the estate and as to other heirs and distributees, and as a stranger to the estate.
Such controversy, thus, must be resolved, not in probate court, but in the forum, either at law or in equity, which would have jurisdiction to try title.”

As above indicated, the trial court relied on our decision in Hartman v. Hartman, 228 Ark. 692, 309 S.W. 2d 737. We do not disagree with the trial court as to the rules announced in Hartman, but we do not agree that rules in Hartman apply to facts in the case at bar. In Hartman the decedent had sold real property prior to his death and had taken in part payment a series of promissory notes falling due annually. The notes were made payable to both Mr. and Mrs. Hartman who were husband and wife. Mrs. Hartman apparently entered into an agreement whereby she assigned her interest in some of the notes to Mr. Hartman in exchange for some remaining land owned by Mr. Hartman and the validity of the assignment was a part of the matter in litigation. Mrs. Hartman admitted by stipulation that the notes had been assigned to the estate of Mr. Hartman, but she apparently had retained possession of the notes. The probate court made no attempt to determine the validity of the assignment but it ordered Mrs. Hartman to deliver the notes in question to the administrator of the estate. We held that the probate court had jurisdiction to order the delivery of the notes to the administrator, and in that case we said:

“This leads to a discussion of the jurisdiction of the probate court in a discovery proceeding. Ark. Stat. § 62-41S provides for a discovery proceeding by the probate court in regard to alleged assets of an estate. Section 62-415 (Rev. Stat., ch. 4, § 50) provided for an attachment of any property found in such proceeding to belong to the estate.
In Moss v. Sandefur, 15 Ark. 381, it appears that if the person in possession of the property in issue has color of title thereto, the probate court does not have jurisdiction to order the delivery of the property to the administrator. And in Ellsworth v. Cornes, 204 Ark. 756, 165 S.W. 2d 57 (1942), it is held that the probate court does not have jurisdiction to determine title to contested property, but it is pointed out that where the contest is between the executor or administrator and parties who claim as heirs or beneficiaries having some interest in the estate and who do not claim adversely or are strangers to it, the probate court has jurisdiction.” (Our emphasis).

In Hartman we pointed out that when the new probate court code was adopted in 1949, the old statute for discovery was re-enacted and the former statute providing for attachment was not re-enacted. The Hartman case turned, however, on the conceded fact that Mrs. Hartman had assigned the notes to Mr. Hartman prior to his death. Under this concession the probate court correctly considered the notes as assets of the estate and ordered Mrs. Hartman to surrender the notes to the administrator. Although admitting that the assignment had been made, Mrs. Hartman contended that the assignment itself was void. The probate court did not pass on that issue and it was not before us on appeal. We did point out that the burden was on Mrs. Hartman to establish her alleged invalidity of the assignment and that remedy was still available to her. Another primary difference in Hartman and the case at bar is that Mrs. Hartman was not the admini-stratrix of Mr. Hartman’s estate.

The case of Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808, is more in point with the case before us for in that case the widow of the decedent was the admini-stratrix of his estate. In Thomas the probate court found that certain property was the individual property of the widow and awarded it to her. The brothers and sisters of Thomas contended on appeal that the probate court had no jurisdiction to determine title to property when the dispute was between the administrator and others, and in that case this court said:

“It is true that the jurisdiction of the probate court is confined to the administration of the estate of the decedent. The probate court had jurisdiction to appoint appellee as administratrix of the estate of James Thomas, deceased, and to allot her dower in his estate as his widow. According to the evidence adduced by her, she and her husband lived on a farm in Ashley County, Arkansas, and he had accumulated considerable personal property which was kept on the farm. Certain articles of this property however, belonged to her, and the court gave it to her. In order to properly administer the estate of James Thomas, deceased, and to allot dower to bis widow, it was necessary for the court to determine what property belonged to the estate, and the question of the title to certain articles arose as a necessary incident to the determination of the main matter before the court. In such case the probate court can determine the question of title to the property, for this is necessary in properly administering the estate and allotting the property to those entitled to it as distributees under the statute. King v. Stevens, 146 Ark. 443.”

In the more recent case of Carlson v. Carlson, 224 Ark. 284, 273 S.W. 2d 542, Roy E. Carlson, Jr. was appointed administrator of his father’s estate and he listed a truck as an asset in his inventory filed. The decedent’s widow petitioned the probate court for the exclusion of the truck from the court’s order of sale, asserting that her husband had given the truck to her. After hearing testimony on the matter, the probate court found in Mrs. Carlson’s favor. On appeal to this court the only point raised was “the court’s power to determine that Mrs. Carlson owned the truck.” In this connection this court said:

“As to the contention that the probate court was without authority to vest title to the car in Mrs. Carlson, the answer in so far as this controversy is affected is to be found in Thomas v. Thomas, 150 Ark. 43, 223 S.W. 808, where Mr. Justice Hart said in a unanimous opinion that the probate court, in the exercise of its jurisdiction to administer the estates of decedents, is authorized to determine what property belongs to the estate. See Ellsworth, Administrator v. Cornes, 204 Ark. 756, 165 S.W. 2d 57.”

In the case of Hobbs, Admr. v. Collins, 234 Ark. 779, 354 S.W. 2d 551, cited by the appellants in the case at bar, the decedent Mr. Gaylor, had accumulated bank deposits and bonds worth about $40,000. A Mrs. Collins claimed that Gaylor had given 'her the money and bonds during his lifetime. The administrator of the estate had listed both the money and bonds as assets of the estate and Mrs. Collins filed exceptions to the inventory. The probate court found that Mrs. Collins was entitled to the money in the banks and on appeal to this court the administrator contended that the probate court did not have jurisdiction to determine the ownership of the money. While no objections to the jurisdiction of the probate court were made until the case reached this court on appeal, in our opinion in that case we said:

“The Probate Court was not without jurisdiction of the subject matter. Carlson, Administrator v. Carlson, 224 Ark. 284, 273 S.W. 2d 542, Thomas v. Thomas, 150 Ark. 43, 233 S.W. 808, King v. Stevens, 146 Ark. 443, 225 S.W. 656, Ark. Stats. § 62-2409. If appellant had not wanted to submit the issue of the ownership of the property to the Probate Court, objection should have been made before a full scale trial was had and then appellant would have been in a position to raise the question on appeal. It appears, however, that the Administrator voluntarily submitted to the jurisdiction of the Probate Court. This can be done. Park v. McClemens, 231 Ark. 983, 334 S.W. 2d 709.”

In Ellsworth v. Cornes, 204 Ark. 756, 165 S.W. 2d 57, we stated a rule which we still adhere to and by which we measure the jurisdiction and distinguish the case at bar. In Ellsworth we said:

“Throughout its history, this court has held that probate courts are without jurisdiction to hear contests of and determine the title to property between personal representatives of deceased persons and third persons claiming title adversely to the estates of deceased persons. Moss v. Sandefur, 15 Ark. 381; Mobley v. Andrews, 55 Ark. 222, 17 S.W. 805; Shane v. Dickson, 111 Ark. 353, 163 S.W. 1140; Fowler v. Frazier, 116 Ark. 350, 172 S.W. 875; Gordon v. Clark, 149 Ark. 173, 232 S.W. 19; Huff v. Hot Springs Savings, T. & G. Co., 185 Ark. 20, 45 S.W. 2d 508; Sides v. Janes, 188 Ark. 386, 66 S.W. 2d 617; Ellis v. Shuffield, 202 Ark. 723, 153 S.W. 2d 535.”

In the case at bar we are unable to accept Mrs. Mar-tensen or Miss Snow and Mrs. Smith as “third persons” claiming title to the funds involved adversely to the estate of Mrs. Box. Mrs. Martensen was the administratrix of the estate with will annexed and it was her duty to marshal all the assets of the estate and distribute them as directed in the will under proper orders and approval of the probate court. If Mrs. Martensen was claiming title to the savings account as a third party and adversely to the estate, she certainly occupied an inconsistent position of claiming against an estate she was required to administer. For all practical purposes she was already in possession of the savings account and the question was whether it belonged to her or to the estate she was administering. If the probate court had no jurisdiction to determine this question, she would probably have no desire to go elsewhere.

Miss Snow and Mrs. Smith are not third persons claiming title to the funds adversely to the estate. They are beneficiaries under the will and as such beneficiaries, they are claiming the funds, not against the estate, but as their lawful share of the estate. If they were third parties claiming the funds adversely to the estate, they, of course, would have ample recourse outside of probate jurisdiction, but such is not the situation in the record before us. Miss Snow and Mrs. Smith would have no recourse against the savings and loan association in this case, because their claim is against the estate and not adversely to it. In any event, a suit by them in chancery or circuit court would place Mrs. Martensen in the conflicting position of defending her personal claim to the property involved as against the estate she is charged with administering, and would place the circuit or chancery court in the position of determining what are, and what are not, assets of the estate actually in the hands, or under complete control, of the personal representative. The fee of a personal representative, as well as the amount of required bond, is based on the value of the assets of the estate being administered and the allowance of such fee and fixing of such bond, fall within the exclusive jurisdiction of the probate court.

We are of the opinion that in the probation of wills or administration of estates the better rule would be that the probate courts do have jurisdiction to determine the ownership of property as between personal representatives claiming adversely to the estate, or adversely to the heirs or beneficiaries of estates claiming as such, and as between personal representatives claiming for the estates and heirs or beneficiaries claiming adversely to the estates.

The order of the probate court is, therefore, reversed and this cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

      Now Ark. Stat. Ann. § 62-2409 (Repl. 1971).


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Howard PORTER v. James L. DEETER and NaDean DEETER d/b/a DEETER REAL ESTATE
    73-213
    505 S.W. 2d 18
    Opinion delivered February 11, 1964

      Robert L. Blount, for appellant.

      Boyett & Morgan, P.A., for appellees.
   Conley Byrd, Justice.

This is an appeal by Howard Porter from a summary judgment in the amount of $11,122.00 entered in favor of James L. “Dobie” Deeter and NaDean Deeter d/b/a Deeter Real Estate for a commission allegedly due upon the sale of a bulk oil plant.

At the bottom of an itemized list of property dated 9/27/71, is an agreement admittedly signed by Porter which provides:

“Owner hereby agrees to give Deeter Real Estate (Agent) an Exclusive Listing on the above listed property & equipment for a period of ninety (90) days; also agree to pay Agent five per cent (5%) commission. If sold at a reduced price, commission will be reduced as agreed by Owner and Agent.”

The complaint alleged that Porter, on March 1, 1972, closed a sale to Jerry Ethridge that was negotiated during the 90 day listing period, for the sole purpose of avoiding the payment of a real estate commission to appellees. The answer denied that the sale was made during the 90 day period and affirmatively alleged that appellees in obtaining the exclusive listing represented that the contract was for the purpose of preventing other real estate agencies from contacting Porter. The appellees do not contend that they procured the purchaser or that the sale resulted from their efforts.

Through interrogatories it was determined that Porter sold the property described in the listing contract for $222,440.00 to Ethridge and that the transaction was closed on March 1, 1972. Based upon the foregoing information appellees moved for summary judgment contending there was no genuine issue as to any material fact. Porter responded: (1) denying that the property was sold during the 90 day listing period; (2) contending that he was entitled to have a jury pass on the issue of whether the contract was an exclusive listing contract or an exclusive sales contract; and (5) pointing out that appellees had not produced a ready, willing and able buyer during the exclusive listing period. The affidavits attached to the response tend to support Porter’s contention that no sale was made during the 90 day period. Thereafter appellees’ counsel filed a reply to Porter’s response to the motion for summary judgment including therein an excerpt from an alleged deposition taken of Porter. The trial court, based upon the motion for summary judgment, the interrogatories, the affidavits of Porter and Ethridge and the response to the motion for summary judgment which contained excerpts from the alleged deposition of Howard Porter, awarded ap-pellees a summary judgment in the amount of $11,122.00 —that amount being 5% of the full sale price of $222,-440.00. For the reasons hereinafter stated, we reverse.

1. The rule is that before a movant is entitled to summary judgment, he must show that there are no issues of fact. Ark. Stat. Ann. § 29-21 l(c)(Supp. 1975). The appellees in contending that the agreement here involved prohibited Porter from selling the property without becoming liable for the broker’s commission rely upon such cases as Halbert v. Block-Meeks Realty Co., 227 Ark. 246, 297 S.W. 2d 924 (1957); Blumenthal v. Bridges, 91 Ark. 212, 120 S.W. 974 (1909); and Hardwick v. Marsh, 96 Ark. 23, 130 S.W. 524 (1910). Since the language in those cases all involved or referred to “exclusive sales” of property as distinguished from the language here which only refers to “exclusive listing” of the property, we do not find them controlling of the issue raised in Porter’s answer. The contract here is somewhat ambiguous particularly in view of Porter’s affirmative allegation in his answer that it was represented to him as an agreement solely for the purpose of preventing him from doing business with other real estate agents. Consequently, a fact issue remains as to whether Porter reserved a right to sell the property.

2. The record, although certified as the complete record, does not contain the deposition of Howard Porter. The excerpt contained in the reply filed by appellee’s counsel to appellant’s response to the motion does not show affirmatively that appellees’ counsel was competent to testify to the matters therein contained. Thus we need not decide whether the deposition is conclusive of the issue of whether the sale was made during the term of the listing. We note that the affidavits of Porter and Ethridge raise a fact issue — it being their contention that the sale did not take place until after the expiration of the listing.

3. On this motion for summary judgment appellees do not even contend that during the exclusive listing period they furnished a purchaser ready, willing and able to buy the bulk plant. Having failed to so furnish a purchaser, they are not entitled to recover the full amount of the commission under the terms of the contract here involved even if it should ultimately be determined that Porter breached the contract by selling during the terms of the listing period. Manzo v. Parke, 220 Ark. 216, 247 S.W. 2d 12 (1952). Appellees’ reliance upon Halbert v. Block-Meeks Realty Co., supra, overlooks the fact that in that case the agreement provided for liquidated damages in the amount of the commission in the event of a sale by the owner.

Reversed and remanded.


author: Frank Holt, Justice.

text:
    LIFE AND CASUALTY INSURANCE Company of Tennessee v. Anna GILKEY
    73-202
    505 S.W. 2d 200
    Opinion delivered February 11, 1974
    [Rehearing denied March 11, 1974.]

      Wallace M. Moody, for appellant.

      Camp ir Thornton, P.A., by: Ronald L. Griggs, for appellee.
   Frank Holt, Justice.

Appellant issued its policy insuring the deceased, William Gilkey, against loss of life, limb, or sight resulting from violent external and accidental means. His mother, the appellee, was made the beneficiary of the policy. The insured was fatally injured by a tractor he was driving on a public highway when he was thrown or fell from it. He was enroute to his home after using it for farming purposes. The policy provides a $1,000 coverage for accidental death in four instances. The only relevant section, and the one in controversy, provides coverage when death occurs:

As a result of a collision of or other accident to any automobile, taxicab, bus, truck, wagon or buggy inside of which the insured is riding or driving on a public highway ....

Both parties moved for a summary judgment based upon the pleadings, the insurance contract and a stipulation of facts. Both motions were denied and the case then proceeded to trial. Appellant presented no evidence and its motion for a directed verdict, which was overruled, is not an issue on appeal. A jury awarded the policy benefits to the appellee. Appellant first contends for reversal that the trial court erred in denying appellant’s motion for summary judgment because there existed no genuine issue as to any material fact and, therefore, appellant was entitled to judgment as a matter of law.

A sufficient answer to this contention is that the denial of a motion for a summary judgment is not reviewable on appeal when, as here, the cause then proceeds to trial on its merits. Deposit Guaranty v. River Valley, 247 Ark. 226, 444 S.W. 2d 880 (1969), and Ross v. McDaniel, 252 Ark. 253, 478 S.W. 2d 430 (1972). See also Widmer v. Fort Smith Veh. & Mach. Co., 244 Ark. 971, 429 S.W. 2d 63 (1968).

Appellant next contends that the trial court, “upon denial of appellant’s motion for summary judgment, erred in failing to determine, and to set out, the facts about which there was no genuine issue or controversy” as required by Ark. Stat. Ann. § 29-211 (d) (Repl. 1962). This statute requires the court to make an order specifying the facts that appear to be without substantial controversy and, upon trial, the specified facts shall be deemed established and the trial conducted accordingly. Appellant relies upon Young, Adm’r v. Dodson, 239 Ark. 143, 388 S.W. 2d 94 (1965). The case at bar proceeded to trial without any request for such an order or an objection by appellant as to the asserted non-compliance with the procedural requirements of the statute. Although, there was a stipulation of facts, it appears the appellant did not ask that the stipulation be presented to the jury to avoid the necessity of testimony by the appellee upon the agreed facts. In fact, it appears appellant acquiesced in the procedure and thoroughly cross-examined the witnesses. Although formal exception to the action of the court is no longer required, it is necessary to make known to the court the action desired or make objection to the court’s action and the grounds therefor. § 27-1762. A matter to which no objection is made during the trial is not reviewable on appeal. Sherman, Adm’x v. Mountaire, 243 Ark. 301, 419 S.W. 2d 619 (1967). In the circumstances, we do not perceive any prejudicial effect is demonstrated by appellant.

Appellant next asserts that the trial court “erred in failing o give appellant’s requested jury instruction No. 3 and due to such failure, the jury was not instructed on the law applicable to the situation before the court.” Appellant’s proffered instruction reads:

You are instructed that the word ‘automobile’ is defined to be taken in its ordinary and popular acceptation, which is a motor driven vehicle having four wheels, a body, sides and top, suitable and intended for the conveyance of persons.

Appellant’s instruction was based verbatim on the definition of an automobilé in Neighbors v. Life and Casualty Ins. Co. of Tenn., 182 Ark. 356, 31 S.W. 2d 418 (1930), where the policy in question provided coverage for injuries effected solely by external, violent and accidental means where the same were caused ‘‘by the collision of or by any accident to any private horse drawn vehicle or private motor driven automobile in which the insured is riding or driving.” There we said:

.... in a contract where the word ‘automobile’ is used it is to be taken in its ordinary and popular acceptation, which is a motor driven vehicle having four wheels, a body, sides and top, suitable and intended for the conveyance of persons, and does not include such a vehicle as a motorcycle.

We observe that both parties focus their arguments upon the issue as to whether a tractor is an automobile within the meaning of this policy. We realize that insurance contracts must be so interpreted as to resolve all reasonable doubts in favor of the insured. First Pyramid Life Ins. Co. v. Thornton, 250 Ark. 727, 467 S.W. 2d 381 (1971). However, as Neighbors, supra, indicates, we will not allow an unreasonable meaning and in that case we established the acceptable definitional boundaries. Since the trial court judge is under a duty to instruct as to the law applicable in the case, it was error not to give the instruction.

Reversed and remanded.


text:
    W. N. RASMUSSEN et ux v. Mike REED and Kirby REED, d/b/a REED BUTANE & APPLIANCE Company and James P. DOLLAR, d/b/a DOLLAR SHEET METAL Company
    73-214 and 215
    505 S.W. 2d 222
    Opinion delivered February 11, 1974

      Rasmussen and Hogue, by: Sigun Rasmussen, for appellants.

      Robert D. Ridgeway, for appellees.
   Frank Holt, Justice.

These cases were consolidated at trial and on appeal since the same issues exist in each case.

A contractor, Don Kymes, agreed to build a house for the appellants. Appellees, Reed and Dollar, each contracted with Kymes to supply certain equipment for the house. The equipment supplied through Kymes by Dollar was valued at $1,360. The appliances furnished through Kymes by Reed were worth $506.30. Appellees, Reed and Dollar, were never paid by Kymes and timely filed their respective materialmen’s liens on the Rasmussen property. Several weeks prior to the filing of the liens, Kymes was adjudged bankrupt. Neither Dollar nor Reed joined Kymes as a co-defendant in their complaint or petition to foreclose their respective liens until sixteen months after their liens were filed. Nevertheless, the lower court granted both appellees a lien upon one acre surrounding appellants’ dwelling. Appellants contend that since appellees failed to join the contractor, Kymes, as a co-defendant within fifteen months of the filing of their liens, the statutory limit, the tardy joinder constitutes a bar to this action.

Ark. Stat. Ann. § 51-610 (Repl. 1971) requires the contractor to defend an action against the owner to enforce a lien. We have consistently interpreted this statute to require that the contractor is a necessary party to an action to enforce a lien. People’s Building & Loan Assn. v. Leslie Lbr. Co., 183 Ark. 800, 38 S.W. 2d 759 (1931), Cruce v. Mitchell, 122 Ark. 141, 182 S.W. 530 (1916), and Simpson et al v. J. W. Black Lbr. Co., 114 Ark. 464, 172 S.W. 883 (1914). Appellees vigorously contend that this is a harsh requirement and we should reconsider our long standing rule.

The policy reason for that requirement is set forth in People’s Building & Loan Assn. v. Leslie Lbr. Co., supra:

This court, therefore, is committed to the doctrine that in suits to foreclose mechanics liens the contractor is a necessary party. He should be made a party because the original contract for the improvements is made between the contractor and the owner. The other contract, that with materialman, is made between the contractor and materialman; the owner is not a party to it, and it is therefore necessary in a suit to foreclose a mechanic’s lien against the property of the owner, to make the contractor a party. The owner is not primarily liable, and it is necessary to make the contractor a party to prove the debt against him, show that the material went into the construction of the building, before the materialman is entitled to a lien against the owner’s property ....

The rationale and practicality of the requirement that the contractor be joined as a necessary party are further well stated in Simpson et al v. J. W. Black Lbr. Co., supra:

He was a necessary party, both for his own [the contractor] and the owner’s protection. The owners had the right to look to him for payment of any judgment that might be recovered against their property for materials furnished, having contracted with him to supply such materials and paid him the contract price for the improvement and can not be compelled to resort to another action against the contractor for the recovery of such sum of money in which the contractor would be at liberty to claim that he did not owe the materialman the amount for which the judgment was rendered and the lien enforced. It is the intention of the law to have the contractor to defend all such actions and be bound by the judgment rendered.

We adhere to our decisions.

Ark. Stat. Ann. § 51-616 (Repl. 1971) places a fifteen month statute of limitations for commencement of a foreclosure action after timely filing a lien. In the instant case, the petitions to foreclose the asserted liens were filed against the owners within the fifteen month period. However, the contractor was not joined as a party until sixteen months after the liens were filed. In each case, the joining of the contractor by leave of the court after the statutory period had expired, constituted a new cause of action which was barred. Simpson et al v. J. W. Black Lbr. Co., supra.

Appellees argue that the amendment did not come too late because the Federal Bankruptcy Act tolled our statute of limitations. The section of that act relied on by appellees is 11 U.S.C. § 29 (f):

The operation of any statute of limitations of the United States or of any state, affecting the debts of a bankrupt provable under this title, shall be suspended during the period from the date of the filing of the petition in bankruptcy ... (3) until thirty days after dismissal of the bankruptcy proceeding. . . .

Appellants stipulated to the existence of a bankruptcy proceeding involving Kymes. The stipulation appears in the Reed case and is referred to and incorporated in the Dollar case.

The court: Well, so far as this proceeding is concerned in this claim and other cases involved here, the court is going to rule that if either there is a stipulation or proof that Kymes is in bankruptcy and that bankruptcy court had issued its usual injunction against bringing lawsuits against him.
Mr. Rasmussen: We’ll stipulate that provided that there is a date as to discharge from bankruptcy. [That date was provided which was several months before appellees’ petitions to foreclose their asserted liens were instituted.]

Appellees rely on that stipulation as being sufficient to invoke the tolling provision of the Bankruptcy Act. However, we note that the “usual injunction” issued by the Bankruptcy Court in the Kyme proceeding temporarily enjoined all creditors in that court proceeding from attempting the collection of their claims and stayed their pending suits. We do not construe the stipulation as being sufficiently comprehensive to include appellees. Unless appellees were listed as creditors in the bankruptcy proceeding, they cannot utilize the tolling provision, 11 U.S.C. §29 (f), supra. The stipulation and the record, including the appellees’ pleadings, are void of any proof that appellees themselves were listed creditors.. The court will not extend a' stipulation beyond its terms nor construe a waiver of a right not plainly intended to be relinquished. See In Re Caroll, 247 So. 2d 350 (Ala. 1971), and Griego v. Hogan, 71 N. M. 280, 377 P. 2d 953 (1963). Appellees misplace the burden of proof. They shouldered the responsibility of demonstrating their status as listed creditors, since the burden falls on the party attempting to toll a statute of limitations. Taylor v. Merchants National Bank, Ex’r., 236 Ark. 672, 367 S.W. 2d 747 (1963).

Since the contractor, a necessary party to both actions, was not joined within the statutory period, we must reverse the judgments and dismiss the causes. Therefore, it becomes unnecessary to discuss other contentions asserted by appellants for reversal.

Reversed and dismissed.


author: PER CURIAM

text:
    The SUPREME COURT COMMITTEE ON PROFESSIONAL CONDUCT v. Guy Hamilton JONES, Sr.
    73-121
    499 S.W. 2d 619
    October 8, 1973
   PER CURIAM

Now on this day, the above styled cause comes on for hearing and is considered by the court on the pleading filed by respondent, Guy Hamilton Jones, Sr., on July 30, 1973, and the Reply filed to such pleading by the Supreme Court Committee on Professional Conduct on September 9, 1973.

Respondent, in his Response, avers that there are unique, extenuating and mitigating facts and circumstances that would bear on whether petitioner’s petition should be granted, and that he should be given the opportunity to present evidence to establish such circumstances.

After due consideration of the pleadings filed by both petitioner and respondent, it is the opinion of the court that the request of respondent should be granted, limited, however, as hereinafter set out. Under Paragraph 11, in Sub-sections A, C, and D, respondent mentions matters which relate only to the charges against him, and his conviction in the United States District Court for the District of Arkansas (Eastern District, Western Division), and these allegations, referring only to matters that have already been adjudicated and disposed of, are not considered proper subjects for further testimony. In other words, it is not the intent of this order to permit any evidence relating to the issues there concluded.

Respondent may offer evidence under Sub-sections B, E, F, G, H, I, and J, which might be deemed pertinent to the issue of mitigation.

It is, therefore, the order of this court that respondent, Guy Hamilton Jones, Sr., be permitted to offer evidence on the matters set out under the sub-sections heretofore mentioned, but he is not permitted ot offer any evidence under Sub-sections A, C, and D.

For the purpose of conducting such a hearing, W. D. Murphy, an Attorney of Batesville, is hereby named as Master of this court and said Master is authorized and directed to take testimony offered by respondent, and to take testimony offered in opposition thereto by The Supreme Court Committee on Professional Conduct in an open and public hearing, each side to be represented by counsel who shall have the full right to examine and cross-examine as in any trial in a court of law or equity. Said hearing shall be conducted in a location or locations convenient to the Master, shall be reported by a competent reporter selected by the Master, and shall be concluded not later than sixty days from the entry of this order. At the conclusion of the hearing, said reporter shall transcribe the testimony and a record of same shall be filed with this court by the Master.

Thereafter, briefs shall be filed in accordance with Rules 7 and 9 of this court, respondent Guy Hamilton Jones, Sr., filing in accordance with Sub-section (a) of Rule 7, petitioner, The Supreme Court Committee on Professional Conduct, filing in accordance with (b), and respondent being permitted to file reply brief in accord with Sub-section (c).

Costs will be adjudged as in chancery court.

It is so ordered.

Justice Byrd would permit a proffer of what respondent wished to show under Sub-sections A, C, and D of Paragraph 11.


author: George Rose Smith, Justice.

text:
    Harold Sherman UPTON v. STATE of Arkansas
    5820
    502 S.W. 2d 454
    Supplemental opinion delivered December 24, 1973
    [Original opinion delivered July 23, 1973,

      Camp & Thornton, P.A., and James J. Calloway, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   George Rose Smith, Justice.

In our substituted opinion on rehearing in this case, delivered on July 23, 1973, we reversed the judgment because the State had been allowed to introduce inadmissible hearsay evidence. In due course our mandate was issued, remanding the case to the circuit court “for further proceedings to be therein had according to law, and not inconsistent with the opinion herein delivered.”

Thereafter Upton filed in the trial court a motion to dismiss the information, on the ground that the case had not been remanded for a new trial. The trial court overruled that motion. Upton then filed a petition for habeas corpus in the United States District Court, reasserting the same point. Judge Oren Harris, to whom the petition was presented, suggested that the Attorney General seek a clarification of our opinion. .Such a request for clarification is now before us. The time for a response to the Attorney General’s petition has expired without any response having been filed, but we have studied Upton’s petition for habeas corpus and the supporting brief that was filed by his counsel in the federal court.

Upton contends that this court did not remand the case for a new trial, because our opinion ended with the word “Reversed” instead of “Reversed and remanded” or some similar phrase. We customarily use the terms interchangeably; so that no significance attaches to either one. We frequently end our opinions with the word “Reversed” even though the opinion itself shows that a new trial is contemplated. Among countless such opinions in our Reports, recent examples include Courtney v. State, 252 Ark. 620, 480 S.W. 2d 351 (1972); Morris v. State, 252 Ark. 487, 479 S.W. 2d 860 (1972); Swanson v. State, 251 Ark. 147, 471 S.W. 2d 147 (1971).

It is argued that our opinion in the case at bar should be construed as directing a dismissal of the information, in the light of § 12 of Act 333 of 1971, which reads:

A conviction shall be reversed and a new trial ordered where the Supreme Court finds that the conviction is contrary to the Constitution, the laws of Arkansas or for any reason determines that the appellant did not have a fair trial. Where appropriate, the Supreme Court shall reverse the conviction and order the appellant discharged. In all other cases, the conviction must be affirmed, but the sentence of the appellant may be reduced if it is deemed excessive. [Ark. Stat. Ann. § 43-2725.2 (Supp. 1971).]

We do not read the statute as having anything to do with the manner in which this court writes its opinions —a matter not falling within the authority of the legislative branch of the government. Vaughn v. Harp, 49 Ark. 160, 4 S.W. 751 (1886). But even if we did so interpret the statute, it states plainly that the court, where appropriate, sháll order the appellant discharged. We did not enter such an order. To the contrary, our mandate remanded the cáuse for further proceedings, which completely answers Upton’s presenf contention.

Harris, C.J., not participating.


author:
PER CURIAM
      PER CURIAM Conley Byrd, Justice,

text:
    In The Matter of Uniform Docketing Rule
    73-240
    December 24, 1973
   PER CURIAM

Effective January 1, 1974 the following is adopted as Rule 15 of the Uniform Rules of Procedure for Circuit, Chancery and Probate Courts.

RULE 15

At the discretion of the presiding judge the following may be adopted as a uniform docketing rule of the court:

DOCKET NUMBERING

CIVIL DOCKETS

Civil cases shall be assigned docket numbers in the order of filing as follows:

Beginning with the first case filed each year in each court, the last two digits of the current year shall be entered followed by a hyphen and the number assigned to the case beginning with the number “1”. Thus, the first case filed in 1974 will be assigned the docket number “74-1” and the first case filed in 1975 will be assigned the docket number “75-1”. In those instances where the presiding judge is of the opinion that further identification is desirable the letters “CIV” preceding the docket number for civil cases in Circuit Court, the letter “E” preceding the docket number for cases filed in Chancery Court, and the letter “P” preceding the docket number for cases filed in Probate Court may be used.

CRIMINAL DOCKETS

The procedure to be used for criminal cases shall be the same as that for civil cases except that the docket number shall be preceded by the letters “CR”; thus the first criminal case filed in the year 1974 will be designated as “CR-74-1” and the first criminal case filed in the year 1975 will be designated as “CR-75-1”.

COURTS OF LIMITED JURISDICTION

All County, Juvenile, Municipal, City, Police, Justice of the Peace Courts and Courts of Common Pleas shall follow the docketing procedure set forth above for Circuit, Chancery and Probate Courts.

PER CURIAM

In compliance with the motion adopted by the Arkansas Judicial Council on October 12, 1973, whereby said Council approved the Code of Judicial Conduct [with the second alternate Canon 5C (2)] adopted by the House of Delegates of the American Bar Association on August 16, 1972, this Court declares that such Code constitutes proper standards for the Judiciary of this State. The reports of compensation required by Canon 6 of the Code should be filed annually during the month of June, for the preceding calendar year, with the Clerk of the Arkansas Supreme Court, Justice Building, Little Rock Arkansas, 72201.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. I dissent to the action of this court in adopting the Judicial Code as a standard of conduct for judges and in fixing a time and place for the filing of the financial reports required by the Judicial Code. Such action on the part of this court is not authorized by the Constitution — in fact as I read the Constitution such action is prohibited. Article 4, of the Constitution of Arkansas provides:

1. DEPARTMENTS OF GOVERNMENT. — The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.
“§ 2. SEPARATION OF DEPARTMENTS. — No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”

The only other provisions of our Constitution giving any jurisdiction and power to the Supreme Court are Article 7, § 4 and amendment 28. Article 7, § 4 provides:

“JURISDICTION AND POWERS OF SUPREME COURT. — The Supreme Court, except in cases otherwise provided by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the State, under such restrictions as may from time to time be prescribed by law. It shall have a gem eral superintending control over all inferior courts of law and equity; and, in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus and quo warranto, and, other remedial writs, and to hear and determine the same. Its judges shall be conservators of the peace throughout the State, and shall severally have power to issue any of the aforesaid writs.”

Amendment 28 provides:

“The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.”

In Parker v. Laws, 249 Ark. 632, 460 S.W. 2d 337 (1970), I pointed out in my concurrence that this court has no authority under Article 7, § 4 to discipline judges —the discipline of judges is reserved to the General Assembly under the provisions on impeachment. Amendment 28 applies by its own provisions only to “the practice of law and the professional conduct of attorneys at law”. By the decisions of this court it does not permit the investigation of the conduct of a trial judge.

While I agree that the “Judicial Code” is worthy of adoption by this state as a standard of conduct for judges, it appears to me that we are violating Article 4, § 2 and usurping a power reserved to the legislative body by promulgating a rule that would lead the public to believe that judges are obligated by rule of this court to comply therewith.

Even if the per curiam adopting the “Judicial Code” be considered only as a guide to judicial conduct and not as a rule of judicial conduct, still we are giving the appearance of legislating and with some logic can be accused of legislating contrary to the Constitution. If this country is to remain a “nation of laws” then those in authority (especially those with whom “the buck stops”) must not only comply with a constitutional mandate but also with the spirit thereof.

For the reasons stated, I respectfully disagree with the foregoing per curiam adopting the “Judicial Code.”


author: Carretón Harris, Chief Justice.

text:
    John HOLLAND v. Hughland H. BAGLEY and June BAGLEY
    73-224
    505 S.W. 2d 228
    Opinion delivered February 19, 1974

      Hardin, Rickard & Harmon, for appellant.

      Charles A. Wade, for appellees.
   Carretón Harris, Chief Justice.

Hughland H. Bagley and June Bagley, appellees herein, instituted suit against John Holland, appellant herein, alleging that on August 5, 1971, a car driven by Holland ran into the rear end of the Bagley automobile, while it had temporarily stopped at a stop sign. June Bagley sought $1,000 for alleged injuries and Hughland Bagley asserted that his automobile was damaged to the extent of $400.00. Holland answered, denying liability, denied that June Bagley was injured and stated that any injury and damages, if any, were caused by this appellee’s negligence. On trial, the Saline County Circuit Court, sitting as a jury, found damages for Mr. Bagley in the amount of $390.90 representing property damage and for June Bagley in the amount of $35.00 for personal injuries. From the judgment so entered, appellant brings this appeal. For reversal, it is simply asserted that the court erred in rendering these judgments since there was insufficient evidence to support the damages awarded Mr. Bagley and no evidence to support the damages awarded June Bagley.

We agree with appellant that this judgment will have to be reversed. Hughland Bagley did not testify and, as to damages, the record reveals that June Bagley testified that the back end of the automobile was damaged and that she took it to a repair shop and had an estimate made as to the damage. Her testimony then reveals the following:

“Q I ask is this a copy of the estimate they prepared?
Mr. Rickard: Objection.
The Court: Overruled.
A This is it.
Q Was the car repaired in line with this estimate?
Mr. Rickard: I object unless she can introduce the repair bill.
A Yes, si'
Q How much was the amount of those damages?
A I don’t remember.
Q The amount of the estimate, whatever the amount of the estimate is. Is that what was paid for the repairs.
A Yes.
Mr. Rickard: Note our objection.
The Court: Overruled.”

The estimate does not appear in the record, and it will be noted in the above quote that no introduction of the exhibit was tendered. On cross-examination, the record reveals the following:

“Q, How much did it cost you to have this repaired?
A I don’t remember.
Q. It was quite a bit less than this estimate, wasn’t it?
A No.
Q Well, did you pay for it?
A No, my insurance company did.
Q, You know how much they paid for it?
A No, sir.
Q Did you have the work done?
A Well, I brought it to the shop and they did the work.
Q You know what was done to it?
A The back end.
Q You know whether or not the gas tank was replaced?
A Yes. It had a hole knocked in it and leaked all the gas out.
Q You know whether it was patched or replaced?
A Something was done.
Q You know whether the rear deck lid was replaced or repaired?
A What is the rear deck lid, the trunk?
Q Yes.
A It was replaced.
Q You know whether the right tail light assembly was replaced or repaired?
A I don’t remember.
Q The point is, Miss Bagley, you don’t know what amount of money was paid to repair your automobile, do you?
A It was in the neighborhood of three hundred or four hundred dollars. That is what I know.
Q But you don’t know how much, do you?
A No, sir.”

As to personal injury her testimony is rather brief, and not at all revealing. The record reflects the following:

“Q Was anyone injured?
A No, sir.
Q Did you have to go to a doctor or did you go to a doctor for examination?
A Yes,
Q What did he find?
A Nothing.
Q He checked you and released you?
A And gave me some x-rays.
Q You remember the amount of those medical expenses?
A No.”

This was all the testimony as to damages except that some photographs depicting the back end of the car were offered, and Holland testified that there was only a dent in the back on the bumper.

It is at once apparent that the judgment for the $35.00 personal injuries cannot stand since June Bagley simply testified that she did not know what the charge was for the x-rays, and stated that she was not injured; nor was the estimate (which, as stated, does not appear in the record) sufficient evidence to support the award for damage to the automobile. We have said many times that the proper measure of damages is the difference between the market value of the automobile before the collision, and the value of same after the collision. In Golenternek v. Kurth, 213 Ark. 643, 212 S.W. 2d 14, we said:

“In the absence of other competent proof of market value, we have held that the difference in market value before and after the collision may be established by a showing of the amount paid in good faith for the repairs necessitated by the collision. (Citing cases).”

Four other cases are cited by appellee, but they do not support this particular judgment. In Watson v. White, 217 Ark. 853, 233 S.W. 2d 544, there was evidence given by the repairman as to certain repairs that had been made on the automobile, but he did not remember the exact charge, nor was a bill presented. He just testified that it was a “little over $100.00.” The court, at the conclusion of plaintiffs case, granted a directed verdict for defendant and on appeal, we affirmed this action by the trial court, stating:

“It is not shown whether certain parts were replaced or merely repaired and the amount of the charges is indefinite. The installation of new parts in a 1941 model automobile may enhance the value a great deal and _thereby materially affect the difference in market value before and after the injury. Under the testimony adduced here, we cannot say that the trial court erred in directing a verdict for defendant.”

In Beggs v. Stalnaker, 237 Ark. 281, 372 S.W. 2d 600, we again cited the general rule and then said:

“Two of appellees’ witnesses, used car dealers familiar with that particular car, testified on the market value of that car immediately before and immediately after the collision. It is true that, in the absence of such competent proof as to the amount of damages, the difference in market value before and after the collision may be established by proof of the total amount paid for repairs necessitated by the collision. Golenternek v. Kurth, 213 Ark. 643, 212 S.W. 2d 14, 3 A.L.R. 2d 593. In the instant case there was no repair bill in evidence, and although appellee Smith testified as to what she had so far paid for repairs, she also testified that repairs were not completed. In our opinion, the jury was presented with the best evidence available, that is, competent appraisals, and the trial court did not err in refusing to instruct the jury that they should consider the cost of repairs in assessing the property damage.”

In Slaughter v. Barrett, 239 Ark. 957, 395 S.W. 2d 552, a repair order was introduced in evidence, reflecting the total cost of repairs to the automobile involved and the opinion reflects further:

“In the case at bar Slaughter, who is himself an automobile mechanic, described the specific replacements and repair work that were necessitated by the collision. The repair bill reflects the labor and materials that went into the job. Under the rule approved by our cases Slaughter’s testimony and the repair bill itself were sufficient to justify the trial court in submitting the question of damages to the jury.”

In Payne v. Mosley, 204 Ark. 510, 162 S.W. 2d 889, the actual cost of the repairs was also shown.

As reflected by the record herein quoted, the proof in the present case is far different from the cases cited by appellee. In accordance with what has been said, the judgment is reversed and the cause remanded to the Saline County Circuit Court.

It is so ordered.

       This name appears in the record and in the judgment, although the briefs use the name “Hughlon”.

        Bnuvier's Law Dictionary, Vol. 1 (Third Revision), p. 1359 defines “good faith’’ as:
      “An honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious. ”


text:
    INTERNATIONAL PAPER Company v. Emerson D. REMLEY
    73-225
    505 S.W. 2d 219
    Opinion delivered February 19, 1974

      Bridges, Young, Matthews & Davis, for appellant.

      Youngdahl, Brewer, Huckabay, Funk <3? Larrison, for appellee.
   George Rose Smith, Justice.

This workmen’s compensation case concerns a second injury to the appellee’s right hand. The first injury occurred in 1934, before Arkansas had a workmen’s compensation act and 34 years before the appellee went to work for the appellant, who is a self-insurer. The first injury, according to the proof in this case, resulted in a 20% partial disability of the hand, but there was no permanent impairment of Remley’s earning capacity.

The second injury occurred in 1971, after Remley had gone to work for the appellant. That injury resulted in an additional 15 per cent permanent partial disability of the hand; but again there was no permanent impairment of earning capacity, it being shown that after his healing period Remley returned to work with no reduction in wages. The commission’s decision, which was affirmed by the circuit court, awarded compensation for the entire 35 per cent disability, upon the theory that apportionment would be contrary to the general purposes of the act and to our decisions in Wilson Hargett Constr. Co. v. Holmes, 235 Ark. 698, 361 S.W. 2d 634 (1962), and Davis v. Stearns-Rogers Constr. Co., 248 Ark. 344, 451 S.W. 2d 469 (1970). The appellant insists that it is responsible only for the 15 per cent disability suffered in its employ.

The cases and the statute both tend to sustain the appellant’s position. Our prior opinions, in construing the pertinent sections of the compensation act, have given effect to two matters of policy that are important here. First, we have drawn a distinction, as far as earning capacity is concerned, between scheduled injuries and non-scheduled injuries. The Wilson and Davis cases, relied upon by the commission, are not persuasive here, because they inolved nonscheduled injuries. Where, as here, a scheduled injury is involved, we have held that it is immaterial that the claimant has suffered no loss of earnings. Anchor Constr. Co. v. Rice. 252 Ark. 460, 479 S.W. 2d 573 (1972). In that case we quoted Larson’s justification for the rule, which avoids protracted and uncertain administrative calculations by “the apparently cold-blooded system of putting average-price tags on arms, legs, eyes, and fingers.” Of course the courts are bound by the legislature’s decision to adopt a rigid rule in the case of scheduled injuries.

In the second place, workers as a whole will not always benefit in the long run by a rule of non-apportionment that makes an employer liable for the total consequences of a second injury, as if the first injury had not occurred. Such a rule might easily make it hard for the victims of a first injury to find re-employment. In Davis, supra, we quoted this observation from Larson: “It has been said, for example, that within the thirty days following the announcement of the nonappor-tionment rule in Nease v. Hughes Stone Company, [114 Okla. 170, 244 P. 778 (1925)], between seven and eight thousand one-eyed, one-legged, one-handed men were displaced in Oklahoma.”

Both of the foregoing rules of policy are pertinent here. That is, the fact that Remley’s 1934 injury did not result in a loss of earning capacity is not of paramount importance, because the act provides a fixed schedule of payments for an injury to the hand. Secondly, a rule denying apportionment as between two injuries is not necessarily a desirable one for all workmen. Again, the courts are bound by the legislative decision upon an issue of policy.

The language of the statute points to the same conclusion. In quoting the governing section of the compensation act we have italicized the two pivotal references to permanent disability.

“If an employee has a prior permanent disability not occasioned by an injury resulting while in the employ of the same employer in whose employ he received a subsequent permanent injury, the amount of compensation for the subsequent injury shall be fixed as follows:
“i. If the subsequent permanent injury is one that is scheduled under section 13 (c), and to the same member the injured employee shall be paid compensation for the healing period and for the permanent disability occasioned only by the subsequent injury, but not to exceed the time specified in section 13 (c).” Ark. Stat. Ann. § 81-1313 (f) (2) (Supp. 1973).

The appellee, as a basis for his argument against apportionment, is driven to the contention that the two references to permanent disability, though appearing in the same sentence, do not have the same meaning with respect to the loss of earning capacity. That is, the appellee must argue that there was no permanent disability as a result of the 1934 injury, because there was no loss of earning capacity. Yet there was also no loss of earning capacity as a result of the 1971 injury; so if the second reference to permanent disability has the same meaning that the appellee attributes to the first reference, he has no basis for any recovery at all. Thus he must insist that the first statutory mention of permanent disability refers to loss of earning capacity, while the second refers only to a functional loss. We must reject this self-contradictory argument, for which we find no support either in the language or in the policy of the statute. As in other instances of scheduled injuries, we consider the loss of earning capacity to be immaterial. Therefore the appellee's recovery for the functional loss caused by the second injury cannot, under the statutory language, include the functional loss caused by the first injury.

As a secondary contention for reversal the appellant argues that it did not controvert the appellee’s claim to 15 per cent permanent partial disability and therefore should not have been held liable by the commission for the claimant’s attorney’s fee with regard to that part of the claim. We must affirm the commission’s decision upon this point. The appellant, in offering to make payment to Remley for the 15 per cent disability first assessed by the treating physician, demanded that Remley accept a check containing the notation, “Final settlement.” Remley, in refusing the offer, could not be expected to know that the notation was not really as conclusive upon his rights as it seemed to be. Moreover, when Remley’s attorney (whom he employed later on) asked the appellant to pay the 15 per cent claim that is now said to have been uncontroverted, the appellant disregarded that request at least until a hearing was had some six weeks later. We consider these facts to be substantial evidence indicating that the appellant was using its control of the purse-strings as a coercive means of controverting the claim in fact if not by its formal pleadings.

Affirmed in part and reversed in part.


author: George Rose Smith. Justice.

text:
    Herman SEALS v. STATE of Arkansas
    CR 73-144
    505 S.W. 2d 202
    Opinion delivered February 19, 1974

      Edward Page Oliver, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. //. Hargraves, Dep. Atty. Gen., for appellee.
   George Rose Smith. Justice.

The appellant, Herman Seals, was charged with burglary and with being a habitual criminal. Upon a showing of indigency the trial court appointed an attorney to conduct the defense. The jury returned a verdict of guilty and, after then hearing proof of five previous convictions, fixed the punishment at confinement for 31 years. This appeal is taken at public expense by Seals’ appointed counsel.

In this court counsel first filed a brief arguing a single point for reversal, that the proof is insufficient to support the verdict of guilty. We find no merit in that contention. The record shows that after midnight on September 7, 1972; Tex-arkana police officers discovered that the Cottage Tavern had been forcibly entered and that three coin-operated machines had been broken into. Seals was apprehended about a block and a half away from the tavern. He had in his possession a blue-handled hammer that was identified by the owner of the tavern as having been on the premises before the burglary. The State also proved that when Seals was arrested he was wearing shoes but no socks, his socks being found in his jacket pocket. On the following morning an examination of the tavern disclosed not fingerprints but fabric marks, which, according to the testimony, indicated that the burglar had worn gloves, socks, or some kind of cloth on his hands. The defense offered no testimony. It is evident that the State’s proof was amply sufficient to support the verdict.

Seals’ attorney, after submitting his brief, filed two motions pursuant to the holding in Anders v. California, 386 U.S. 738 (1967). In the first motion counsel asserted that the appeal is frivolous and that he should be permitted to withdraw from the case. In the second motion he asked that Seals be given time to raise any other points that he wished to interpose. We deferred action upon the first motion but granted the second, pursuant to which Seals has filed a longhand statement of his contentions.

In the Anders case the Supreme Court, in the following paragraph, outlined the procedure that is to be followed by appointed counsel and by a state appellate court in a case in which counsel thinks the appeal to be without merit:

The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel Finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel— then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Seals’ handwritten document discloses no error whatever. For the most part he argues trivial inconsistencies in the State’s proof — matters to be considered by the jury rather than by this court. He also attempts to contradict the State’s witnesses in some particulars. At the trial, however, Seals had the opportunity to take the witness stand, but he .decided not to do so. Obviously that decision precludes us from considering what amounts to testimony which Seals was unwilling to give in the presence of the jury, where he would have been subject to cross-examination by thetprosecuting attorney. We must decide the appeal upon the same evidence that was heard by the jury.

Pursuant to the Anders procedural blueprint we have made a full examination of all the proceedings. We find no basis for a reversal either under federal requirements or under the law of this state. We accordingly grant counsel’s request to withdraw and affirm the judgment of the trial court.

Affirmed.


author:
Lyle Brown, Justice.
      John A. Fogleman, Justice,

text:
    Richard R. HEATH, Director, Department of Finance and Administration v. MIDCO EQUIPMENT Company
    73-211
    505 S.W. 2d 739
    Opinion delivered February 19, 1974

      Karl D. Glass, John F. Gautney, Dewey Moore Jr., A. W. Nisbet, and J. R. Nash, for appellant.

      Owens, McHaney & McHaney, by. John G. Galhoun Jr., for appellee.
   Lyle Brown, Justice.

The issue before us is whether three rear dump trucks sold by appellee to Big Rock Stone & Material Co. are subject to our sales tax act. The chancellor enjoined the imposition of the tax, finding that the trucks were used directly in the manufacturing process of the purchaser. Appellant contends that the trucks are not so used and that in fact they are transportation equipment which is not included in the exemption provisions.

Big Rock is engaged in the extraction and processing of stone from a quarry site in Little Rock. The stone is blasted from the face to the floor of the quarry and loaded by crane into these rear dump trucks. The loaded trucks are driven around a ridge a distance of three-quarters of a mile to the primary crusher. At all times the trucks travel on the private property of Big Rock. The load of rock is dumped into the primary crusher and the truck returns for another load.

From the primary crusher the stone is 'conveyed along a vibrating chute which screens out all stone less than four inches in size. These small pieces, consisting of one percent of the quarry sales, find their way to bins from which they are sold as “four-inch base”. The larger pieces go to a secondary crusher. From there the material is transferred by overhead conveyors and stock piled. It then is passed through a third crusher, through a transfer point, and then to the finishing mill where it is washed and screened to size; The finishing mill produces some seven different stone products. Some of the stone is loaded into railroad cars under the mill and some is loaded into trucks from a chute under the mill.

The applicable exemption provisions are found in Ark. Stat. Ann. § 84-1904 (r) (Supp. 1971):

(2) Gross receipts or gross proceeds derived from the sale of tangible personal property consisting of machinery and equipment used directly in producing, manufacturing, fabricating, assembling, processing, finishing, or packaging of articles of commerce at manufacturing or processing plants or facilities in the State of Arkansas, but only to the extent that such machinery and equipment is purchased and used for the purposes set forth in this subsection.
(C) It is the intent of this subsection to exempt only such machinery and equipment as shall be utilized directly in the actual manufacturing or processing operation at any time from the initial stage where actual manufacturing or processing begins through the completion of the finished article of commerce and the packaging of the finished end product. The term “directly” as used in this Act is to limit the exemption to only the machinery and equipment used in actual production during processing, fabricating or assembling raw materials or semi-finished materials into the form in which such personal property is to be sold in the commercial market. Hand tools, buildings, transportation equipment, office machines and equipment, machinery and equipment used in administrative, accounting, sales or other such activities of the business involved and all other machinery and equipment not directly used in the manufacturing or processing operation are not included or classified as exempt.
(E) For the purposes of this subsection, the terms “manufacturing” and/or “processing”, as used herein, refer to and include those operations commonly understood within their ordinary meaning and shall also include mining, quarrying, refining, extracting oil and gas, cotton ginning, and the drying of rice, soy beans and other grains.

The taxpayer carries a rather heavy burden to establish a right to the claimed exemption. “As stated, this court has consistently held that the burden is on the taxpayer to establish clearly that the legislature intended the claimed exemption since taxation is the rule and exemption is the exception. An exemption cannot be implied.” Cheney, Comm’r. v. Georgia-Pacific Corp., 237 Ark. 161, 371 S.W. 2d 843 (1963). In Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S.W. 2d 1007 (1935) we said the burden is on the claimant “to establish clearly his right to exemption”. In Peterson Produce Co. v. Cheney, Comm’r., 237 Ark. 600, 374 S.W. 2d 809 (1964) we said: “Let it also be remembered that a tax exemption must be strictly construed, ‘and to doubt is to deny exemption’ ”. Most of the recited principles were reiterated in Hervey, Comm’r. v. Tyson’s Foods, Inc., 252 Ark. 703, 480 S.W. 2d 592 (1972).

We have no Arkansas case in which trucks carrying materials from the blasting area to the first crusher operation have been claimed as an exemption. The nearest case in point is Cheney, Comm’.r. v. Georgia-Pacific, supra. There it was held that a towmotor and carrier used to -transport materials between processes in the plant were not exempt. We said the item was removed from exemption by the last paragraph of Ark. Stat. Ann. § 84-3106 (Supp. 1961). That provision as amended is now included in Ark. Stat. Ann. § 84-1904 (r) (2) (C) (Supp. 1971), the last sentence of which is very similar to the repealed section above cited and reads: “Hand tools, buildings, transportador! equipment, office machines and equipment, machinery and equipment used in administrative, accounting, sales or other such activities of the business involved and all other machinery and equipment not directly used in the manufacturing or processing operation are not included or classified as exempt”.

Appellant and appellee cite several cases from other jurisdictions which are persuasive but far from conclusive. In the first place, we are unable to find where any of those jurisdictions have statutes identical with ours. In the second place, we have not one, but three sections, of the statutes which must be harmonized to find the legislative intent. In the third place, the cited cases do not tell us whether those jurisdictions follow our rules of evidence governing the burden of proof, strict construction, and resolution of doubt, all of which have heretofore been recited in this opinion.

The cited sections of the applicable law emphasize that to be exempt the machinery must be used directly in the manufacturing process. Section 84-1904 (r) (2) (C) tells us that to be exempt the machinery must be used directly in manufacturing and must be utilized “from the initial stage where actual manufacturing or processing begins...” The same section excludes transportation equipment from exemption. Section 84-1904 (r) (2) (E) says the terms “manufacturing” and “processing” shall include those operations commonly understood to be such within their ordinary meaning.

We hold that the recited statutes, considered in their entirety, leave substantial doubt that the trucks are exempt from the tax.

Reversed and remanded with directions to enter judgment consistent with our conclusion.

Harris, C.J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. I consider the dump trucks in this case to clearly fall within the exemption. They are certainly machinery or equipment used directly in producing, assembling or finishing articles of commerce at a manufacturing or processing plant or facility. This would bring them within the purview of Ark. Stat. Ann. § 84-1904 (r) (2) (Supp. 1073), unless excluded by the clause “but only to the extent that such machinery is purchased and used for the purposes set forth in this subsection.” The only other applicable portion of the subsection is Ark. Stat. Ann. § 84-1904 (r) (2) (C). Under that subsection, in order to be exempt the machinery or equipment must be used directly in the actual manufacturing or processing operation between the initial stage through the completion of the finished article of commerce and the packaging of the end product. But the use of the term “directly” is intended only to limit the exemption to the machinery and equipment used in actual production during processing, fabricating or assembling raw materials or semi-finished material into the form in which personal property is to be sold in the commercial market. “Actual production” as used in the act seems to me to include every activity from the time the raw stone is blasted from the walls of the quarry until it has been crushed and screened to obtain a salable product.

In the sense used in the act, production is defined as: “ [a]ct or process of producing, bringing forth or exhibiting to view; as, the production of commodities, of a witness, or of a play” (Webster’s New International Dictionary, Second Edition); “the act or process of producing, bringing forth or making” “the creation of utility: the making of goods available for human wants” (Webster’s Third Edition).

Even though our lien statutes are strictly construed when determining whether a lien is created, it has been held that a laborer who cuts and rakes prairie hay, a natural product, was entitled to a lien because the cut and dried hay was “the production of the laborer who cuts and rakes it ... ” Emerson v. Hedrick, 42 Ark. 263. The night engineer of an ice plant, who operated machinery, handled the compressor, froze ice, “pulled it” and put it in the “dump room,” was held to be engaged in the production of ice. Couch v. Ward, 205 Ark. 308, 168 S.W. 2d 822.

The accepted definition of the word “actual” is “[¡Involving, pertaining to, or manifested in acts or actions; active” and is opposed to potential, possible, ostensible, virtual, speculative, conceivable, ideal, theoretical, hypothetical or nominal. (Webster’s Second Edition.) We have taken the word to mean “in fact.” Crossett Lumber Co. v. Johnson, 208 Ark. 572, 187 S.W. 2d 161; Life & Casualty Ins. Co. of Tennessee v. DeArman, 192 Ark. 11, 90 S.W. 2d 206.

If a laborer raking hay is engaged in production of hay, certainly these dump trucks are engaged in real and active production of the marketable stone. These dump trucks are motorized, wheeled and self-propelled conveyor belts, nothing more. If they are not exempt under this clause, neither is the conveyor belt which transports the stone to the “surg pile,” to the tertiary crusher, or to the finishing mill. Appellant argues that to be exempt “the machinery must be used directly in the extraction of the stone from the earth.” If this is so, how can the crushers be exempt? But the state not only does not contend that either the conveyor belts or crushers were not exempt, it seems to admit that they were. I submit that this construction, and that of the majority, passes beyond a strict one and becomes, if it is even a possible one, a very narrow one.

It must be remembered that this statute is considerably different, and the facts considerably differ, from those considered in Cheney v. Georgia-Pacific, 237 Ark. 161, 371 S.W. 2d 843. The exemption there considered did not apply to certain items, equipment and materials “which are incidental or useful in connection with the manufacturing or processing operations and not directly used in the primary production processing or manufacturing.” The conveyors there held not exempt transported waste materials from a storage bin at a lumber mill into a mechanism which fed a pneumatic conveyor, which, in turn, blew the waste material over to a paper mill, where it was used as a fuel for boilers. The towmotor and carrier held subject to tax transported material between processes in the plant. The key words in the statute then before the court were “incidental or useful” and “primary.” Certainly the particular items were incidental and useful in connection with the production but not directly used in the primary production. The words actual and primary are far from synonymous. “Primary” means “ [f] irst in order of time or development or in intention; primitive; fundamental; original; initial; . . . [f]irst in dignity or importance; chief; principal; as, primary effects, meanings; . . . [o]f the first order in successive divisions, combinations or ramifications; as, primary nerves, compounds ...” (Webster’s Second Edition). In Cheney, a machine was held to be a primary facility when its removal would cause the manufacturing operation to cease.

Thus, a machine could be incidental or useful to primary, but not secondary, production and still be utilized in actual production, whether primary or secondary. I submit that the General Assembly is presumed to have adopted the language in the 1968 statute now before the court with complete awareness of our 1963 decision construing the earlier act, and that it clearly intended the current exemption to be construed differently from that given by us in Cheney.

I am well aware of, and subscribe to, the rule of construction that doubts are to be resolved against exemption from a tax, but, to my way of thinking, the majority has imported a doubt into the construction of the statute in order to hold as it has by removing the doubt. This we must not do. Rules of construction cannot be used to import ambiguity into, a statute where none exists. 82 C.J.S. 527, Statutes, § 311; Inwall v. Transpacific Lumber Co., 165 Ore. 560, 108 P. 2d 522 (1941); New England Die Co. v. General Products Co., 92 R.I. 292, 168 A. 2d 150 (1961).

I agree with the Chancellor, and would affirm the chancery decree.

I am authorized to state that the Chief Justice joins in this dissent.


author: Lyle Brown, Justice.

text:
    Bruce Leroy COCKRELL v. STATE of Arkansas
    CR 73-139
    505 S.W. 2d 204
    Opinion delivered February 19, 1974

      Robert L. Shaw and James D. Emerson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Richard Mattison, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant was found guilty of grand larceny on a charge of having stolen three guns from the home of the prosecuting witness. The points for reversal which are essential to a determination of the appeal will be set out as they are discussed.

During the night of May 16, 1972, the rural home of Robert Trout was burglarized and three guns were taken therefrom. At around 5:00 a.m. on May 18, Rickey Dale Golden was spotted driving on the streets of Hot Springs in a suspicious manner. Golden was stopped for questioning, at which time the officer saw personal items in the car which further aroused his suspicions. With Golden’s permission, the officer looked in the trunk and found two weapons. Golden was taken to police headquarters and there made a statement that he, along with appellant and another, had burglarized the Trout home and took three guns, two of which were found in the trunk of the car. Golden informed the interrogating officer that the car he was driving belonged to appellant. Golden further stated that the third gun would be found in appellant’s apartment. The recited information was given to the interrogating officer in the presence of Officer Bob Griffith. The latter officer was instructed to go before the municipal judge and execute an affidavit for a search warrant for appellant’s apartment. A search was made and the third gun was found between the mattress and box springs on the bed where appellant was sleeping.

The first point for reversal is that the shotgun found in the bed was illegally obtained by the officers because of a void search warrant. The body of the affidavit for the search warrant reads:

Before Earl J. Mazander, Judge of the Municipal Court of the City of Hot Springs, Arkansas.

The undersigned being duly sworn deposes and says: that he has reason to believe that on the premises known as 210'/’ Alcorn (garage apt.) County of Garland, State of Arkansas, there is now being concealed certain property, namely: 1 - 12 ga. shotgun and 1 - 38 cal. pistol which are stolen from Bob Trout at RR No.. 1, Box 349 in Garland County, Arkansas.
And that the facts tending to establish the foregoing grounds for issuance of a search warrant are as follows: reliable informant states that items are located at above address.

Officer Griffith signed as affiant and the jurat was executed by Judge Mazander.

Officer Griffith testified that Judge Mazander filled in the printed form of affidavit after asking some questions. It is significant that Officer Griffith on cross-examination said the informant was Rickey Golden; that he did not know Golden; and that he had no knowledge of Golden's reliability for the truth.

The affidavit does not pass the tests we have pronounced. In Bailey v. State, 246 Ark. 362, 438 S.W. 2d 321 (1969), we said: “The purported affidavit, which is the sole evidence of probable cause afforded the magistrate, is defective in that it states a mere conclusion”. There we also said that when an officer obtains information from an informer (hearsay) “the warrant should not issue unless good cause is shown in the affidavit for crediting that hearsay”. Then in Walton v. State, 245 Ark. 84, 431 S.W. 2d 462 (1968), we said: “In determining probable cause for the issuance of a search warrant, the magistrate must judge for himself the persuasiveness of the facts relied upon by a complaining officer and may not accept a complainant’s conclusions without question”. And in Durham v. State, 251 Ark. 164, 471 S.W. 2d 527 (1971), we said: “It is elementary that a valid search warrant cannot be issued except upon probable cause determined from facts and circumstances revealed to the issuing magistrate. ...”

The State emphasizes the testimony of Officer Griffith to the effect that Judge Mazander asked the deponent several questions. We have held that oral testimony may be used to support an affidavit. Walton v. State, supra. We have also approved the procedure whereby parties to the oral testimony can come into court and recount the substance of that testimony; however, the General Assembly of 1971 made void that procedure. Ark. Stat. Ann. § 43-205 (Supp. 1973). That act provides: “A search warrant may be issued by any judicial officer of this State, only upon affidavit sworn to before a judicial officer which establishes the grounds for its issuance”. The cited act thus eliminates from consideration any oral testimony unless it is reduced to writing and accompanied by affidavit. We have said that for an instrument to be an affidavit it must be “reduced to writing and sworn to or affirmed before some person legally authorized to administer an.oath or affirmation”. Thompson v. Self, 197 Ark. 70, 122 S.W. 2d 182 (1938). It is therefore important that magistrates and law enforcement officers take heed of § 43-205 and govern their actions accordingly.

The appellant next asserts as error the refusal to grant his motion for a directed verdict. It is contended that the conviction was based entirely upon the uncorroborated testimony of Rickey Golden, an admitted accomplice. The testimony of an accomplice must be supported by “other evidence tending to connect the defendant with the commission of the offense”. Ark. Stat. Ann. § 43-2116 (Repl. 1964). The mere fact that two of the stolen guns were found in appellant’s car is not sufficient corroboration of the accomplice’s testimony. The evidence is undisputed that Golden had free use of appellant’s car, especially at night when appellant was working. The accomplice was also living with appellant.

Appellant urges that we reverse and dismiss the case. In Paschal v. State, 245 Ark. 396, 432 S.W. 2d 879 (1968), the same state of facts is found as in the case at bar. We held that the evidence corroborating the accomplice was insufficient to sustain the conviction. It was argued there that a remand of the case would constitute double jeopardy. We held this: “The decision of the accused to appeal is a waiver of the plea of former jeopardy.” We further said: “In reversing criminal convictions for insufficiency of the evidence we have customarily remanded the cause for a new trial [State v. State, 221 Ark. 527, 254 S.W. 2d 314 (1953); Taylor v. State, 211 Ark. 1014, 204 S.W. 2d 379 (1947)] unless it appears that the case has been fully developed”, in the case at bar we are unable to say that the production of further evidence by the State is beyond the realm of probability.

Reversed and remanded.