author: George Rose Smith, Associate Justice.

text:
    McConnell v. State.
    4876
    302 S. W. 2d 805
    Opinion delivered June 10, 1957.
    [Rehearing denied July 1, 1957]

      Q. Byrum Hurst, for appellant.

      Bruce Bennett, Atty. Gen’l.; Thorp Thomas, Asst. Atty. Gen’l., for appellee.
   George Rose Smith, Associate Justice.

This purports to be an appeal from a judgment imposing a fine and suspended jail sentence for the possession of untaxed liquor. Ark. Stats. 1947, § 48-934. Whether an appeal was perfected is open to question, for the record does not clearly show that the circuit court granted an appeal, as the law requires. Ark. Stats., § 43-2708. Instead, counsel filed a notice of appeal and designation of the record, apparently in the belief that the procedure is governed by Act 555 of 1953. That statute, as its title indicates, applies only to civil cases. Nevertheless, the record sufficiently presents the principal point in the case; so the procedural irregularity is unimportant.

It is contended that the trial court’s judgment, even if originally valid, was rendered void hy Act 293 of 1957 and should be set aside by this court. In view of this contention we may properly treat the purported appeal as a proceeding by certiorari to quash a void judgment and in this way reach the merits of the issue.

The case was tried below on February 11,1957, which was during the sixtieth regular session of the legislature. On the day of trial the accused filed a motion for continuance, on the ground that his regularly employed attorney, Senator Q. B. Hurst, was a member of the General Assembly. The order denying this motion indicates that Senator Hurst was not employed in this particular case until the day before trial, that the accused had previously engaged another lawyer to defend him, and that the lawyer first employed had discussed the case with the deputy prosecuting attorney on the morning of February 11, before the opening of court.

Under the statute then in force the court’s denial of the motion was not error. That statute provides that when any attorney in a pending case is a member of the General Assembly, or a clerk, sergeant-at-arms, or doorkeeper thereof, the proceedings shall be stayed for not less than fifteen days before the convening of the General Assembly and for thirty days after its adjournment. Ark. Stats., § 27-1401. Although this statute is regarded as mandatory in cases to which it properly applies, it does not require that a continuance be granted when the litigant is represented by other counsel or when the member of the legislature is not the litigant’s regular attorney and is employed after the legislative session has begun. Cox v. State, 183 Ark. 1077, 40 S. W. 2d 427; Lynch v. State, 188 Ark. 831, 67 S. W. 2d 1011. Hence, under the law as it then existed, the court did not exceed its jurisdiction in refusing a continuance.

Thereafter the. legislature passed Act 293 of 1957, which (by reason of an emergency clause) became effective March 27, 1957. Section 1 of the act is a verbatim re-enactment of the existing law, Ark. Stats., § 27-1401. Sections 2 and 3 of Act 293 read as follows:

“Section 2. (b) Proceedings shall be stayed in such pending suits without regard to when, where, how or why any member of the General Assembly or the aforesaid employees became employed or associated in the suit; and, without regard to the number of other attorneys that may also represent party litigant.

“Section 3. (c) Any judgment, decree, sentence or fine that may have been or may hereafter be rendered in any judicial proceedings in this State after Motion for Continuance shall have been filed by a member of the General Assembly, its clerks or Sergeant-at-Arms, within the time aforesaid, and after said motion shall have been overruled or disregarded, is hereby declared to be void, and no officer of this State shall attempt to enforce such void order. ’ ’

By its explicit language Act 293-undertakes to compel every court, within the specified period surrounding-each legislative session, to grant a continuance whenever it is requested by a member or employee of the General Assembly. By the terms of the act the courts have no discretion in the matter; the sole power of decision rests with the member or employee of the legislature. The question is whether the General Assembly can, consistently with the separation of governmental powers, take from the courts the power to decide what is essentially a judicial question.'

It must, of course, be conceded that the legislative branch of the government does not have unlimited authority over the judiciary, for the constitutional separation of powers would then be a. mere fiction. Thé legislature cannot, for example, require this court to deliver a written opinion in every case. Vaughn v. Harp, 49 Ark. 160, 4 S. W. 751. Again, in a case that goes far toward controlling this one, it was held that the General Assembly cannot assume the exclusive power of determining whether a continuance should be granted in a judicial proceeding. Burt v. Williams, 24 Ark. 91. There a statute requiring that all cases be continued until the ratification of peace between the United States and the. Confederate States was held to be an unconstitutional attempt by the legislature to exercise judicial power. From the opinion: ‘ ‘ Granting a continuance is either an exercise of judicial discretion upon particular facts, or an application of legal rules to them, the facts being. ascertained by the court, and the discretion used, or application of law made by the court; and in either case is exclusively a judicial act. A legislative act is an annunciation by the legislative authority that certain results shall follow particular actions or conditions; but the ascertainment of the act or condition and the application of the consequences belong to the courts.”

"We recognize without hesitation that attorneys serving in the legislature are often entitled to have their cases continued for that reason and that a statute affording them reasonable protection in that respect is constitutional. Service in the legislature is usually undertaken at a personal sacrifice and involves public duties of the greatest importance. Obviously a lawyer cannot devote his entire time to legislative matters unless some provision is made for excusing him from appearances in court. If the public is to have the benefit of legal training and legal knowledge among its senators and representatives it is evident that lawyers in the General Assembly'must be allowed to suspend their practice while that body is in session.

Sections 2 and 3 of Act 293, however, cannot be justified by the considerations that we have mentioned. These sections clearly go beyond, the needs of the situation and in fact transfer the control of judicial dockets from the courts to any attorney who is a member, clerk, sergeant-at-arms, or doorkeeper of the General Assembly. A case may be supposed in which litigation of great consequence had been set for trial, with- the court postponing other matters to leave several days open for the hearing. Jurors and witnesses might have been summoned at substantial expense to the public and to the parties. The case might present questions of public interest that should be settled as quickly as possible. Despite these considerations, under Act 293 the proceedings could be halted at any stage upon the arbitrary demand of any attorney having the required connection with the General Assembly. And this would be true even though that attorney had been employed only for delay, had no knowledge of the case, and was not expected to take part in the trial.

Statutes providing for continuances to accommodate lawyers serving in the legislature have been upheld in other states, but we know of no decision sustaining legislation as extreme as Sections 2 and 3 of Act 293. To the contrary, when it' has been suggested that such an act should be construed to deprive the courts of any discretion in the matter, the opinions have pointed out that such an interpretation would render the act unconstitutional. The question was considered in detail in Johnson v. Theodoron, 324 Ill. 543, 155 N. E. 481, where the statute provided for a continuance upon a showing by affidavit that the presence of an attorney member of the legislature was necessary to a fair trial. In rejecting a contention that the court was required to grant a continuance whenever the statutory affidavit was filed the court said:

‘ ‘ Whether the attendance in court of a particular attorney for a party to a pending suit is necessary to a fair and proper trial of such suit is a judicial question, to be determined by the court in which an application for continuance is made . . . Where a statute requires that a certain conclusion shall be made to appear as a ground of proceeding by a court, the facts from which that conclusion follows must be proved to the court by documentary evidence or testimony under oath. The court must be placed in a position where it can exercise its own judgment and not be compelled to accept the opinion of the affiant ... In construing this statute a contrary holding was made in Wicker v. Boynton, 83 Ill. 545, where it was held that the statute does not require that the affiant shall state the facts showing the necessity of the attorney’s presence for a fair and proper trial' of the suit. This construction of the statute would render it unconstitutional. The Legislature does not have the power to declare what shall be conclusive evidence of a fact . . . nor can it say that a court is bound to act in accordance with the opinion of a party to a suit, or of his attorney, expressed in the form of an affidavit. It is not within the power of the Legislature to exclude from the courts that which proves the truth of the case nor to compel them to receive that which is false in character. It cannot direct what orders shall be entered by the court in pending actions. It may enact statutes which affect pending actions, but the application of the statute to a particular case is a judicial function, and the determination of what order shall be entered in such a case is the exercise of judicial power which does not belong to the Legislature.”

A statute similar to the Illinois act was considered in Kyger v. Koerper, 355 Mo. 772, 207 S. W. 2d 46, where Judge Hyde, speaking for a majority of the court, pointed out that the act should be construed to permit the court to reach its own conclusion: “I think that any other construction would make this statute unconstitutional. We have held that an act which arbitrarily imposes an unreasonable or unnecessary delay upon the administration of justice would be contrary to Section 10, Article II, Const, of 1875 . . . Also as stated, 16 C. J. S., Constitutional Law, § 128, p. 329, the Legislature cannot entirely exclude the exercise of the discretion of the Court. To do so is an encroachment of one department of Government upon the functions of another, prohibited by Article III, Const, of 1875 ... If the Court is not permitted to determine this issue, which it could only do from a consideration of some facts about the case and the situation of the parties and attorneys, then its decision is arbitrarily compelled merely by the conclusion stated by the party making the affidavit regardless of what justice to others may require. Such a construction takes away all the judicial function of the court in making, continuances applied for under this section. ” ■ ■ .

Since Sections 2 and 3 of Act 293 attempt to deprive the courts of'.the .power to. determine a. judicial question, i.e., whether a. continuance should be .granted in' a given case, we conclude that these sections are unconstitutional for the reasons given in the decisions cited. It follows that the judgment of the trial court is not void.

It is also contended that the evidence introduced by the State is insufficient to support a finding of guilt. Even if we assume that the case is properly before us by appeal, the appellant’s failure to file a motion for a new trial precludes us from reviewing the sufficiency of the evidence. Holliman v. State, 213 Ark. 876, 213 S. W. 2d 617.

Affirmed.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Whayne v. Gillia.
    5-1306
    303 S. W. 2d 246
    Opinion delivered June 10, 1957.

      John S. Mosby, for appellant.

      Giles Bearing', for appellee.
   Paul Ward, Associate Justice.

Appellee, Roy Gillia, owned and operated a drug store on Highway No. 70, in Shelby County, Tennessee, known' as Roy’s Drug Store. On May 30, 1951, appellee sold his- stock of merchandise and fixtures in the drug store to one A. E. Whayne, who, at the time, was an employee in said drug store. On said date’ appellee for $10 and other valuable considerations conveyed to A. E. Whayne said stock of merchandise and fixtures, setting forth numerous items of indebtedness against the stock of merchandise amounting to $3,595.11. In said Bill of Sale it was also stated that the First National Bank of Memphis, Tennessee held title to the fixtures in said drug store under a Conditional Sales Contract to appellee and that there was a balance due on said fixtures in the amount of $2,928.52. . ,

Also on May 30, 1951, A. E. Whayne and his mother who is the appellant in this case executed to appellee 34 promissory notes in the aggregate amount of $6,880.43. The first note was for $100 and was due on or before June 20, 1951. The other notes [in varying sums] were due and payable monthly thereafter- in successive order. At the same time A. E. Whayne and his mother executed a chattel mortgage to appellee in which they conveyed to William Walsh, as trustee, all their right and interest in the said stock of merchandise and fixtures. Said conveyance was upon condition that the signers should pay the notes heretofore described, but upon failure to pay any part of the indebtedness when it became due all of the said indebtedness would become immediately due and payable, and the said trustee would be authorized and empowered to sell said property after having first given 10 days notice by posting three notices, one of which was to be posted at the Shelby County Court House and the other'two were to be posted at public places in the county. It was noted in the chattel mortgage that it was subordinate to the. Conditional Sales Contract to the First National Bank of Memphis.

After operating the drug store a short while A. E. Whayne was apparently unable to make the payments to appellee as they became due, and on September 7,1951 he went into voluntary bankruptcy. From this source $695.12 was received by appellee, and applied to the payment of Whayne’s indebtedness. Appellee secured a release of the fixtures from the referee in bankruptcy and proceeded to foreclose his chattel mortgage. At this sale the fixtures were sold for $1,000 of which amount $58 was deducted for expenses of the sale and the balance of $942 was applied to Whayne’s indebtedness.

In October 1953 appellee, Roy Gillia, filed a complaint against A. E. Whayne’s mother, Mrs. Ira Mae Whayne [appellant herein], in which the facts set forth above were alleged in detail, and asked for a deficiency judgment against Mrs. Whayne in the amount of $3,-850.78 with interest at 6 per cent from May 30, 1952 until paid and for the sum of $169.22 with interest from September 30, 1953 until paid. In her answer appellant admits the execution of the notes and chattel mortgage, but alleges that her signature as a co-maker was obtained through fraud and misrepresentation. She also denied that the chattel mortgage was duly foreclosed or that the property was sold according to the laws of Tennessee. It was further alleged by appellant that it was understood between her and appellee that she was to be bound only to the extent of $2,500 and not to the full amount of the indebtedness.

On May 18, 1954, upon motion of appellee, the cause of action was transferred to the chancery court. Upon the issues above set forth there was a. trial in the chancery court, and on August 8, 1956 that court entered a decree giving appellee, Roy Gillia, judgment against Mrs. Ira Mae Whayne, appellant, in the amounts prayed for as set forth above. From this decree appellant has appealed to this court for a reversal. - ■ :

We deem it unnecessary to discuss all the different grounds relied on by appellant for reversal in view of the conclusions which we have reached. It is our judgment that the cause must be reversed for two reasons which are somewhat related, viz: 1. The sale of the fixtures was not fairly conducted, and; 2. Appellee having purchased the fixtures at the sale is, accountable to appellant for the fair value thereof.

1. While no actual fraud is shown in connection with the sale of the fixtures under the chattel mortgage, yet there are several incidents which convince us that appellee did not protect appellant’s interest as he should have done. In Vol. 10 Am. Jur., page 883, under the title of Chattel Mortgages, in § 261 what appears to be the general rule is expressed in this language: “If the sale is attacked, the burden is on the mortgagee to show that it was openly and fairly conducted and that the price was not so inadequate as to raise a presumption of bad faith ...” The record shows that appellee purchased the fixtures for $1,000 and that one year later he sold the same for $4,500 notwithstanding the fact that the fixtures had been damaged to some extent in the meantime. It further appears that only 4 or 5 people were present at the time of the sale and that the first bid offered by appellee was $800. Following this one person present offered $900. Immediately thereafter appellee had a private conversation with the last bidder and no other bids were offered except appellee’s later bid for $1,000. Although appellant at that time resided in Arkansas, and still does, appellee and his attorneys knew that the Whaynes’ had an attorney in Memphis, Tennessee. The record shows that on October 23, 1952 appellee caused a letter to be written to said attorney notifying him t-hát the sale would be held on the following day- — and the sale was held at 10 o ’clock A. M. on October 24, 1952. The result is that appellee, at the time this suit was filed in the Circuit Court of Poinsett County, had already received a substantial portion of the indebtedness due him. Appellee chose as a forum a court of equity in this state and in so doing he is required to do equity.

The views we have expressed appear to be iii harmony with the holdings of the Tennessee Courts. In the early case of Lyon v. Jones, 25 Tenn. (533), the matter of the necessity of good faith and fair dealing by a mortgagee purchaser was discussed. Among other things the court said: “The relation in which-the mortgagee or creditor in a deed of trust stands' to the vendor or debtor, imposes upon him the observance of fairness and good faith; and if he make an improper use of the power which he has over the trustee and over the sale, and becomes the purchaser, he will be held, in equity, as entitled to retain the property only as a security for his debt.” It was said in the case of Brown v. Eckhardt, 23 Tenn. App. 217, 129 S. W. 2d 1122, at page 1133, that: “The mortgagee or creditor in a deed of trust may purchase at a trust sale if he acts with fairness in the transaction, and his title will be good. ” In the early case of Wade’s Heirs v. Harper, et al., 11 Tenn. 383, the Tennessee court went even further in putting the burden of fair dealing on the mortgagee purchaser. There Wade [father of appellants] had given a deed of trust to Harper. The latter, on foreclosure, bought the property, worth $4,000 for $1,-000. In commenting, the court said: “We cannot distinguish the relation of Harper to this transaction, from that of a commissioner of a bankrupt, where the trustee makes the sale of the assets. In such case, the commissioner has a duty to perform, to make the estate bring the best price, and cannot buy without being subject to have the sale set aside at the election of the creditors. ’ ’

As we view the facts and circumstances in this case, appellee has not met the burden of showing that he in good faith tried to realize, for appellant’s benefit, the full value of the drug, store fixtures.

2. According to the Tennessee decisions there is some doubt as to whether a mortgagee is allowed to purchase property sold under the power of - a chattel mortgage. In the Harper case, supra, the court held that the mortgagee could not, but in the case of Brown v. Eckhardt, supra, it was held-, that he could. The holdings in the two cases however can be .reconciled.as * was apparently done in the Brown case itself, for it was there said:

“Complainants also'insist that the .mere'.f act .that defendant Eckhardt became the purchaser at the'sale is sufficient to set the sale aside since he was the holder of the debt secured by the deed of trust. This on the theory that under these circumstances he became a quasi trustee for complainants and must account for the actual value of the land, not being authorized to bid at the sale.” (citing cases) “It is only necessary to say that in these cases it does not appear that the holders of the debt were authorized by the mortgages or deeds of trust to bid at the sale. It was no doubt to meet the holding of these and other similar cases that clauses were inserted in mortgages and deeds of trust allowing mortgagees and holders of debts secured by trust deeds to bid and become purchasers at sales held under the instruments. ’ ’

Following the above the court noted that the deed of trust under consideration contained a provision giving the creditor a right to bid at any sale held under the trust conveyance.

We have examined the chattel mortgage in the case before us and it contains no provision authorizing appellee to purchase at the sale. It is also pointed out here that, as shown by the record, the trustee in the chattel mortgage here was selected by appellee and was his regular attorney. '

In either event, whether appellee failed to show, he acted in the best interest of appellant or-whether he had no right to purchase the. fixtures at the sale, he-will be held to have taken possession of the fixtures as a trustee for the appellant and must account for their fair value. Fortunately in this instance, the value of the fixtures has been fixed at $4,500, which :is the price he admits receiving for them a year later. ' . v'.’

Taking as true the. figures set out in appellee’s complaint, and charging him with $4,50.0 ...less $942. [which is the amount bid at the sale and. applied on the indebtedness] we find that he is entitled to judgment against appellant in the sum of $1,019.46. The cause is- therefore reversed with directions to the trial court to enter a decree in accordance with the above.


author: Sam Robinson, Associate Justice.

text:
    Yost v. Studer.
    5-1316
    302 Ark. 775
    Opinion delivered June 10, 1957.

      Wood <& Smith, for appellant.

      Barber, Henry, Thurman & McCashill, for appellee.
   Sam Robinson, Associate Justice.

W. F. Yost filed this suit, alleging property damages and damages due to personal injuries sustained when his automobile, which he was driving, was struck by an automobile operated by appellee, Charles Studer. There is no question about the negligence of Studer; the only issue is the amount of damages. There was a judgment for the plaintiff, Yost, in the sum of $2,293.00 for medical expenses, pain and suffering, and damages to his automobile. Subsequently, Yost died, and this appeal is prosecuted by the administratrix of his estate.

On appeal, appellant contends that the trial court erred in refusing to submit to the jury the question of whether Yost, who was a dentist, had been damaged by loss of time from the practice of his profession. It was shown that he lost about two weeks from his work, but there is no evidence whatever as to his earning capacity. The court refused to give an instruction requested by Yost, authorizing recovery for “the value of his time during periods of total or partial disability”. The court offered to re-open the case, and permit Yost to introduce evidence of damages due to loss of time, but this offer was not accepted.

Appellant relies on Coca Cola Bottling Company v. Jones, 226 Ark. 953, 295 S. W. 2d 321. In that case, Jones, who operated a small grocery store, was injured when a bottle exploded; he conducted his own business and was disabled for several weeks due to his injuries. We said: “His absence from the grocery store involved a financial loss that the jury were entitled to consider ... If the defendant believed that this element of damage could have been more accurately expressed by some language other than the court’s reference to the loss of net remuneration or earnings from the business, the improved wording should have been offered in the form of a specific objection to the charge. ’ ’

The situation in the case at bar is quite different from the Jones case. Here, when plaintiff finished his case, not a scintilla of evidence had been introduced as to any damages he may have sustained because of loss of time. The jury had the benefit of no evidence whatever to be guided by in determining such alleged damages. Any verdict based on such alleged loss of time would have been pure speculation. There was no inkling as to whether such loss, if any, was $50.00 or $5,000.00 In these circumstances, it would have been utterly impossible for the jury to have reached an intelligent conclusion as to such alleged damages. We think the rule as stated in 15 Am. Jur. 507 is applicable here. There it is said:

In the case of a professional man the proper measure of damages for loss of time is the amount he would have earned by the practice of his profession.

“In order to recover for loss of time, a professional man must prove the amount he would have earned in the practice of his profession during the time in question, and the jury should consider the probability of his being employed during the period for which he seeks to recover. Testimony as to. what he had previously been ■ receiving for his services is admissible, and he may. show his actual earnings during the period of the previous year corresponding to that in which he was injured.' If he was not engaged in the practice of his profession immediately before the alleged loss of time, but resumed it immediately thereafter, it is proper to show what he earned thereafter, not as establishing in itself the value of his time, but as evidence to aid the jury in fixing it.”

In the case at bar, there is absolutely no evidence of the earning capacity of the appellant. The jury, therefore, had nothing to use as a measure of damages for loss of time, and the court was correct in refusing to submit the issue of damages for loss of time to the jury.

Affirmed.


text:
    Martin v. Reynolds & Williams.
    5-1301
    302 S. W. 2d 803
    Opinion delivered June 10, 1957.
    [Rehearing denied July 1, 1957]

      Paul K. Roberts, for appellant.

      Mebaffy, Smith & Williams and Robert V. Light, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Elgin Martin, was an employee of appellees, Reynolds & Williams, a partnership, composed of S. P. Reynolds, James H. Reynolds and C. W. Williams,-contractors ' engaged in constructing a highway in Lincoln County, Arkansas. Martin was discharged on November 8, 1956; on January 5,1957, he filed this action against appellees, alleging that he was due certain wages -when he was discharged; that such wages-have not been paid and that the defendants are indebted to him' in the -penal sum' of $744.40, in addition to the unpaid wages. The defendants demurred to that part of the complaint seeking to collect a penalty for failure to pay the wages- due within seven days after the employee -was discharged. -The trial court sustained the demurrer, and Martin, the plaintiff hás:'appealed.

Appellees first contend that the appeal should be dismissed because the order sustaining' the demurrer is not appealable, but they are mistaken in that contention. Not only did the court sustain the demurrer but dismissed the complaint insofar as it pertained to the penalty issue. The dismissal of the complaint was a final judgment, and appealable.

Ark. Stats. § 81-308 provides:

“Whenever any railroad company or corporation or any receiver operating any railroad engaged in the business of operating or constructing any railroad or railroad bridge, shall discharge with or without cause or refuse to further employ any servant or employee thereof, the unpaid wages of any servant or employee then earned at the contract rate, without abatement or deduction, shall be and become due and payable on the day of such discharge or refusal to longer employ; any such sérvant or employee may request of his foreman or the keeper of his time to have' the money due him, or a valid check therefor, sent to any station where a regular agent is kept, and if the money aforesaid, or a valid check therefor, does not reach such station within seven [7] days from the date it is so requested, then as a penalty for such nonpayment the wages of such servant or employee shall continue from the date of the discharge or refusal to further employ, at the same rate until paid. Provided; such wages shall not continue more than sixty [60] days, unless an action therefor shall be commenced within that time. Provided, further, that this act [§§ 81-308 — 81-310] shall apply to all companies and corporations doing business in this State, and to all servants and employees thereof, and any such servants or employees who shall hereafter be discharged or refused further employment may request or demand the payment of any wages due, and if not paid within seven [7] days from such discharge or refusal to longer employ, then the penalties hereinbefore provided for railway employees shall attach.”

The issue here is whether the statute applies to individuals. If not, then the trial court’s action in sustaining the demurrer must be affirmed. Ark. Stats. § 81-308 is Act No. 61 of 1889, as amended by Act No. 155 of 1903 and Act No. 210 of 1905. In the case of Leep v. St. Louis I. M. & S. Ry. Co., 58 Ark. 407, 25 S. W. 75 (1894), this Court held that the 1889 act was unconstitutional when applied to individuals.

In Combs v. Bunn W. Robertson, Inc., 205 Ark. 20, 166 S. W. 2d 665, this court said:

‘ ‘ The legislation upon which the suit for the penalty is predicated appears to have had its inception in Act 61 of the Acts of 1889, p. 76, entitled, ‘An Act to provide for the protection of servants and employes of railroads.’' The Act appears as § 6243, Sandels & Hill’s Digest, and the Digester appended the following note to that section: ‘This act as originally passed applied to persons as well as corporations, and was held valid as to corporations and invalid as to natural persons in Leep v. St. Louis I. M. & S. Ry. Co., 58 Ark. 407, 25 S.W. Rep. 75, 23 L.R.A. 264, 41 Am. St. Rep. 109, and all portions applying to natural persons is stricken out.’ The opinion in the Leep case recites the Act as it reads after the unconstitutional portions had been stricken ■ — ■ the Act having been held separable — and the Digester conformed the Act to that opinion.

“The Act was amended by Act 155 of the Acts of 1903, p. 272, so as to make receivers of railroad companies, in applicable cases, liable for the penalty, and, as thus amended, appears as § 6649, Kirby’s Digest.

“This section of Kirby’s Digest was amended by Act 210 of the Acts of 1905, p. 537, by the addition of the following proviso: ‘Provided further, that this Act shall apply to all companies and corporations doing business in this State, and to all servants and employees thereof, and any such servants or employees who shall hereafter be discharged or refused further employment may request or demand the payment of any wages due, and if not paid within seven days from such discharge or refusal to longer employ, then the penalties hereinbefore provided for railway employees shall attach.’

“As thus amended the Act appears as § 7125, Crawford & Moses’ Digest, and as § 9111, Pope’s Digest. The obvious purpose and effect of the 1905 amendment was to make the provisions relating to penalty apply to all corporations, including railroads.”

Here, the employers are individuals. The act is highly penal and if it had been the intention of the Legislature that the act should apply to individuals doubtless such intention would have been clearly expressed. In the Combs case, decided in 1942, this court construed the amended act as applying to all corporations, and the General Assembly has not amended the act since that decision. We are urged to overrule the Leep case, but we do not think that individuals are liable for the penalty under the present act, as amended, and, therefore, the Leep case is not controlling.

Affirmed.

McFaddin and Millwee, JJ., dissent.


author: Carleton Harris, Chief Justice. George Rose Smith, J.,

text:
    Brown v. Bridges.
    5-1302
    304 S. W. 2d 939
    Opinion delivered June 17, 1957.
    [Rehearing denied Sept. 30, 1957]

      Claude F. Cooper and Frank C. Douglas, for appellant.

      Giles Dearing, for appellee.
   Carleton Harris, Chief Justice.

This case is here on a second appeal from a judgment of the Cross Chancery Court, which, in each instance, entered its decree quieting and confirming title in appellee to three lots in the city of Wynne, Arkansas. Appellee has maintained his home upon the property in question since January, 1942. Appellant, Ella Brown, is claiming title under a deed from the State dated December 19, 1945, and based upon a sale for the 1941 taxes. In the first trial, the Chancellor found that appellee had acquired title by seven years adverse possession. Appellant contended in her earlier appeal that the Chancellor erred in so holding, and the case on appeal was remanded for further proof. Quoting from the Opinion, “ * * * Since the proof was not fully developed on the question of whether the lots were subject to taxation for the year 1941, we have concluded that justice would be best served by a further hearing on that issue.” On trial after remand, the court held that the sale of the lots to the State for the non-payment of taxes for the year 1941 was invalid, that the deed from the State to Ella Brown should be can-celled and set aside, and that appellee’s title should be quieted as against any right, title, or interest of appellant. Prom such decree comes this appeal.

It is admitted that the lots involved were subject to 1941 general taxes, and that these taxes were not paid by appellee; that the lots forfeited and were sold to the State, title confirmed, and that appellant received a deed from the State. It is therefore true, and the Chancellor so held, that when the lots sold in 1942 for the 1941 taxes, there was no conflicting title, in either the State under prior sales, or in any improvement district. Appellant contends that this was the only question which remained open for proof, under the mandate and Opinion in Brown v. Bridges, 222 Ark. 669, 262 S. W. 2d 145, and that she must accordingly prevail. She therefore contends that the trial court erred in permitting the complaint to be amended and in taking testimony relative to the allegations contained in the amendment. We do not agree. Perhaps the mandate and Opinion in Brown v. Bridges, supra, were not entirely clear, but it was certainly the intent of this Court that additional evidence be heard on the question of the validity or invalidity of appellant’s tax deed. In the paragraph preceding the order remanding the cause, in the Opinion, is this language, “ * * * If appellant’s deed from the state is valid/ appellee had not held possession for the full seven years when he instituted this suit. * * ” Accordingly, the actual meaning of the language herein quoted in paragraph one was ‘ Since the proof was not fully developed on the question of whether the lots were subject to taxation or sale for the year 1941 * * We therefore hold that the trial court proceeded properly in admitting evidence relating to the validity of the sale.

Appellee testified that he attempted to pay the taxes on the property in February, 1942 (1941 taxes) but that the sheriff would not accept the money. 4*He further testified that he endeavored to pay the taxes for the years 1942, ’48, and ’44, but that the sheriff still refused to accept the payments.0 This evidence is not disputed by appellant, other than it is contended that he (appellee) testified differently during the first trial of the cause. Parts of his testimony do appear to be, to some extent, contradictory; however, the very first question that appellee was asked on cross-examination during the first trial, and answer given, was as follows: “ Q. Mr. Bridges, you told Mr. Dearing you had paid the taxes since you went in that property in 1941? A. No, I paid them when I got the place paid for, and they should have been paid up, but I found a flaw-.” Here, the witness was interrupted, and the “flaw” was never explained. Appellee contends that this answer had reference to the sheriff’s reason for not accepting his money in payment of the taxes in 1942.

The Chancellor saw, and heard appellee testify, had ample opportunity to observe his appearance on the witness stand, and was in a position to best determine whether the witness was telling the truth. This was a finding of fact, and we' have held that we will not reverse a Chancellor’s decree unless his findings are against the weight of the evidence. Lupton v. Lupton, 210 Ark. 140, 194 S. W. 2d 686 (1946). In addition, the court gave some consideration to the testimony of the county clerk, who had testified in the first trial. From the Opinion of the trial court: ‘ ‘ * * * There are even some circumstances in the tax records of Cross County which would tend to give support to the positive testimony of the plaintiff. The court refers here to the testimony of the County Clerk wherein he says that the lands were first set up on the tax hooks for the year 1941 in the name of the State and that was stricken out and the name of Mrs. G. J. Durham (plaintiff’s grantor) written in. * * * ” As heretofore mentioned, no evidence was offered on behalf of appellant to contradict the testimony that appellee, in good faith, had endeavored to pay the 1941 taxes.

We have repeatedly held that where an owner attempts to pay his taxes, and the oversight or mistake of the collector prevents him from doing so, the sale of the land, because of failure to pay such taxes, is void. Schuman v. Lunnie, Administratrix, 219 Ark. 645, 243 S. W. 2d 937; Schuman v. Person, 216 Ark. 732, 227 S. W. 2d 160. We accordingly conclude that the sale was void. Appellant contends that if the State deed did not convey good title to her, then she has title under a quitclaim deed from Sewer District No. 1 of Wynne, dated November 9, 1954. This contention was not raised by the pleadings, nor considered by the trial court. Appellant has relied entirely upon her deed from the State in both the first and second trials.

Appellant is entitled to have refunded the $10.93 which she paid for her deed from the State, together with interest at the rate of 6 per cent per annum. Buschow Lumber Co. v. Witt, 212 Ark. 995, 209 S. W. 2d 464. In addition, the proof shows that she paid $12.95 for taxes for the year 1945, which she paid under a claim of ownership, and which should be refunded to her, together with interest at the rate of 6 per cent. She is also entitled to have refunded the amount paid for the Sewer District deed, together with interest at the rate of-6 per cent. The amount so paid is not shown in the record. The judgment of- the Chancery Cohrt is accordingly modified to-' the extent that appellee is directed to pay to appellant the sum of $23.88, together with interest, as herein set out, and the cause is. remanded with directions to ascertain the amount paid by appellant for the Sewer District deed, and to grant judgment to appellant for same, together with interest at the rate of 6 per cent. Costs, in both the trial court, and here on appeal, shall be borne equally.

George Rose Smith, J., dissents.

George Rose Smith, J.,

dissenting. I think that the chancellor erred in permitting the plaintiff, after the case was remanded, to bring in a new cause of action by amendment to the' complaint. No doubt that procedure would have been permissible had the case been tried in the circuit court; for it is well settled that when an action at law is remanded for a new trial the cause stands as if there had never been a trial, and the pleadings are therefore open to amendment. Stewart-McGehee Const. Co. v. Brewster, 176 Ark. 430, 3 S. W. 2d 42; Sanders v. Walden, 214 Ark. 523, 217 S. W. 2d 357, 9 A. L. R. 2d 1040.

In equity, however, the rule is and should be quite different. Chancery appeals, unlike those at law, are tried de novo by this court, and ordinarily we render final judgment on the record without having to remand the case. Occasionally it is necessary, as it was in this instance, to send the cause back for additional proof on a particular issue; but we have repeatedly held that the chancellor is then limited to that issue and cannot permit the injection of new issues that should have been presented at the original trial. The rule was clearly stated in Felker v. McKee, 154 Ark. 104, 241 S. W. 378:

“The only question presented for determination on this appeal is whether the court erred in overruling appellant’s motion to permit him to offer further proof upon two of the issués presented by the pleadings in the cause. His case was submitted upon the merits in the original trial. Ample opportunity was given him to fully' develop his case upon all issues presented by the pleadings'. To construe a reversal and remand of a cause for further proceedings, which had been submitted originally upon the merits, to mean that appellant might further develop his cause would enable him to proceed in his case by piecemeal and try it over every time he secured a reversal ad infinitum.”

Similarly, it ivas held in Cruce v. Hill, 156 Ark. 224, 245 S. W. 485, a chancery case, that a new issue could not be raised by an amendment to the pleadings after remand. “The issue of compensation as commissioner was brought into the ease only by amending the pleadings after the remand of the cause and taking further testimony, and, as has been said, no authority for that action was given.”

In the case at bar there ivas no suggestion on the first appeal that the tax sale ivas void because the plaintiff had attempted to pay his taxes and had been prevented by the collector from doing so. That is a wholly new issue that was not originally raised either in the pleadings or in the proof. Our statement in the first opinion ivas this: “Since the proof was not fully deA7eloped on the question of whether the lots Avere subject to taxation for the year 1941, Ave have concluded that justice Avould be best served by a further hearing-on that issue. The decree is accordingly reversed and the cause remanded for that purpose.” In view of our earlier holdings I think it plain that this direction did not permit the appellant to bring- into the case a neAv issue that should have been pleaded and proved when the ease was first tried on its merits.

       See 222 Ark. 669, 262 S. W. 2d 145.

       The amendment alleged that appellee had tried to pay the 1941 taxes, but that the collector refused to take his money; that appellant’s deed was void. Alternative relief for recovery of costs of- improvements was 0.1so prayed, but no proof was offered on this point.

       Emphasis supplied.

       Italicized words supplied.

       Witness testified as to the reason given by the sheriff for not accepting the money, but this was hearsay evidence and inadmissible.

       The lots had been sold to the State in November, 1942. Appellee also offered to pay the 1945 taxes, but same had already been paid by appellant; he has regularly paid the taxes each year thereafter, (1946-47-48-49-50 and ’511.


author: J. Seaborn Holt, Associate Justice.

text:
    Naylor v. Eagle.
    5-1298
    303 S. W. 2d 239
    Opinion delivered June 17, 1957.

      Wood & Smith, for appellant.

      Albert G. Sexton and Edwin E. Dunaway, for appellee.
   J. Seaborn Holt, Associate Justice.

This litigation involves alleged damages growing out of the existence of a dam and concrete spillway across the mouth of Fish-trap Slough, a short distance upstream from its juncture with Bayou Meto in Lonoke County. Appellant, Jack Naylor, as owner of a large tract of farm land some three miles upstream and north of the dam, within the watershed of Fishtrap Slough, [and the other appellants as his tenants] sued appellee, Eagle, for damages allegedly caused by overflow backwaters from said dam and asked for a mandatory injunction requiring appellee to remove the dam. Appellants alleged in their complaint that the above farm land “adjoins a natural drain, improved by dredging in 1922, known as Pishtrap Slough, which generally parallels Bayou Meto, ... 3. that Eagle is owner of a 40-acre tract at the junction of Bayou Meto and Pishtrap Slough. He has constructed on Pishtrap Slough near such point a concrete dam which obstructs the natural drainage and raises the water level above by several feet. The effect has been to cause an impoundment of water on the land of plaintiffs, upper proprietors, and make planting and cultivation impossible in some areas and to greatly increase cost and reduce yield in others. Despite notice of the damage caused and which will continue as long as the dam is permitted to remain, defendant has refused to remove or lower the dam. Future damage will occur unless defendant is enjoined from maintaining the dam and plaintiffs have no adequate legal remedy. 4. As a direct result of the dam’s presence water remained on plaintiff’s land until the latter part of July, having risen in the latter part of May after some crops had already been planted and had come up, causing loss of the planted crops and reduced yield in others. Specifically plaintiffs have suffered the following damage. ’ ’

Appellee answered with a general denial and also pleaded the 3-year statute of limitations as a bar. Trial resulted in a decree in favor of appellee on all issues, and this appeal followed.

For reversal appellants first contend that the court erred in holding that the action was barred by limitations. We agree with appellants’ contention on this point. It appears that this dam in question was installed in May 1952. Appellants concede that the chancellor’s finding that it was so erected is not against the preponderance of the testimony. The present suit was filed December 13, 1955. This installation date, however, in the circumstances is not material. Unless it should appear that the obstruction caused by the dam was of' such nature that its effect must have been apparent with reasonable certainty, then limitations would not begin to run on an action for damages until such damages actually occurred. . ■ . •

Our governing rule in cases such as this has been many times'stated by this court. In Missouri Pacific R. R. Company v. Holman, 204 Ark. 11, 160 S. W. 2d 499, we said: “Upon consideration of the question as to the application of’ the: statute of limitation to these overflow cases, the permanency of the structure or obstruction impeding the flow of water is not the controlling question. Indeed, the question cannot arise unless the obstruction is of a permanent nature, but its permanency does not of itself determine whether the damages, which result from its erection, are original or recurring. If it is of such a construction as that damage must necessarily result, and the certainty, nature and the extent of this damage may be reasonably ascertained and estimated at the time of its construction, then the damage is original and there can be but a singlé recovery, and the statute of limitations against such cause of action is set in motion on the completion of the obstruction. If it is known merely that damage is probable, or, that even though some damage is certain, the nature and extent of that damage cannot be reasonably known and fairly estimated, but would be only speculative and conjectural, then the statute of limitations is not set in motion until the injury occurs, and there maj7 be as many successive recoveries as there are. injuries. ’ ’

Here we think the preponderance of the evidence showed the damages were probable and their nature and extent could not be reasonably known and estimated at the time the dam was built. Appellee himself so testified, in effect. ‘ ‘ Q. When you installed the last concrete spillway was it reasonably certain that the installation of that spillway would cause the damage that has resulted here ? . . . A. No, sir. . . . Q. So the presence of the spillway from the very beginning of the time this last one was put there was not known to you or anyone else that it would cause any damage, was it? A. No. sir.” There was also the testimony that appellant’s’ farm was some three miles upstream and after' the dam was built the weather up to May 1955. had been unusually dry and the rainfall insufficient to test the flooding effect of the dam.

Appellants next argue that: “The chancellor erroneously held that appellee could obstruct a natural drain when the effect, according to the undisputed testimony of the engineer [Crist] who testified for appellants, was to materially retard drainage off the Fishtrap Slough watershed. Under decisions of this court a determination of the technical aspects of drainage is restricted to the testimony of experts. Since the testimony of appellants’ expert is undisputed the chancellor’s decision is against a clear preponderance of the evidence, ’ ’ and that appellants were entitled to crop damages. We have concluded, after carefully reviewing all the testimony, that the chancellor’s finding on this issue, to the effect that the dam did not cause the damages claimed by appellants, is not against the preponderance thereof.

There is no dispute here as to the applicable law in eases of this nature. It appears well settled by our decisions that one riparian owner along a non-navigable stream has no right to obstruct the natural flow of said stream to the detriment or damage of other riparian owners. DeVore Farms, Inc. v. Butler Hunting Club, Inc., 225 Ark. 818, 286 S. W. 2d 491. The question, whether appellee’s dam flooded appellants’ land to their damage, is purely factual. To sustain their contention of flood damage, appellants lean heavily on the testimony of their engineer, Crist, and argue that his is the only competent testimony “on the issue of whether the dam obstructs Fishtrap Slough to such an extent that appellants’ land was flooded and damaged by the, rain that fell May 26 and 27, 1955.” We do not agree that the testimony in this case must be confined to that of this engineer. We have many times announced the rule that the testimony and opinion of lay witnesses, non-experts, is competent when the witness lays a proper foundation by stating facts and observations upon which his opinion is based.

We said in Burdine v. Partee Flooring Mill, 218 Ark. 60, 234 S. W. 2d 193, “Moreover, were it conceded that all the expert witnesses introduced in the case agreed upon conclusions as argued by appellant, the jury would not necessarily have to so find the facts to be, because such testimony may be controverted by any other competent evidence. St. Paul Fire & Marine Ins. Co. v. Green, 181 Ark. 1096, 29 S. W. 2d 304. Not only this, but, were it conceded that all the expert testimony offered by both parties was in full accord and agreement and not contradicted by any other expert evidence, yet the jury would not be bound by such testimony. 11 R. C. L., 586, states the rule as follows: ‘ Even if several competent experts concur in their opinion, and no opposing expert evidence is offered, the jury are still bound to decide the issue upon their own fair judgment. ’ Arkansas Power & Light Co. v. Bollen, 199 Ark. 566, 134 S. W. 2d 585. ’ There was much testimony from lay witnesses, on behalf of appellee, tending to contradict Crist. Appellee Eagle testified that he, together with the Lonoke County Surveyor, had gone all around Fishtrap Slough and had determined the water level and that the dam had not caused any damages to property owners. In this connection he testified: “A. I waited until the water went down within its channel. I don’t know anything about 206 and things like that, but I know that no engineer can beat a water level, so I walked the level in the woods. All of this was in woods back in there then and it has all been cleared up since then, most of it. I walked it and I had a 22 and I would mark it at the water ledge and I would later after I marked it — I called that a bench mark, I don’t call the stobs a bench mark, I call a hack in a tree, the old fashioned country way is the only way I know about these levels, so I marked it with a water level. Later I confirmed it with shots that our county surveyor put there for me.”

Ben Daniels testified: “Q. Is your farm between Mr. Eagle’s dam and spillway and Mr. Naylor’s farm and both adjoining Fishtrap Slough? A. Yes, sir, I am west of Mr. Naylor’s. Q. But your property is adjacent to or joins on to Fishtrap Slough? A. Yes, sir. Q. And the water that affects you would affect him or vice versa? A. Yes, sir. Q. Mr. Daniels, how much crop did you make on your rice or how many bushels per acre in 1955, after that water went off of it? A. Well, approximately one hundred bushels to the acre.”

Jeff Cates, another farmer who owns land adjacent to Fishtrap Slough and between the dam and Naylor’s property, testified, in effect, that the water got higher than the fence posts following the big rain in 1955; that there is very little difference in the elevations of the lands in the Fishtrap Slough basin away from Bayou Meto down to the mouth of Fishtrap Slough and land up above; that in this area the lands are similarly situated and there is a difference of about 2 feet or 3 feet only in elevation; that the land slopes slightly and gradually south towards Bayou Meto and Fishtrap Slough. He further testified, in effect, as did several other witnesses owning lands in between that of appellants and appellee, that he had not been damaged by the presence of the spillway and made normal crops in 1955. There was other testimony to the effect that every year water backs out of Bayou Meto and floods the country for several miles north of appellee’s dam and spillway.

As indicated, while the testimony of the engineer, Crist, tended to contradict appellee’s witnesses and without attempting to detail the testimony further, we have concluded that the chancellor’s findings are not against the preponderance of the evidence. Accordingly, we affirm.


author: Ed. F. McFaddin, Justice.

text:
    Griffin v. Murdock Acceptance Corporation.
    5-1243
    303 S. W. 2d 242
    Opinion delivered June 17, 1957.

      T. O. Abbott, for appellant.

      H. D. Lichens, James M. McHaney and Owens, McHaney, Lofton & McHaney, for appellee.
   Ed. F. McFaddin, Justice.

This case began as an effort by the appellant, Griffin, to avoid a note on the ground of usury. On March 19, 1955, Griffin purchased a new Rambler Hudson station wagon from Kelly Motors, Inc. of Little Rock, and. executed a title retaining note for $2,396.70, as explained hereinafter. Kelly Motors, Inc, immediately transferred the note to Murdock Acceptance Corporation. The note and title retaining contract were on forms furnished by Murdock Acceptance Corporation (hereinafter called “Murdock”); so, under our holding in the Hare case, we treat Murdock as having been the original lender.

Griffin traded an old car to Kelly Motors, Inc. as part payment, and owed a balance of $1,793.79 on the new Hudson Rambler. In addition, Murdock delivered to Griffin certain insurance policies, so that the note signed by Griffin was for $2,396.70 as a total of the following items:

Balance on Car.......................................................................................$1,793.79

Insurance Premiums:

Collision and Comprehensive..................$209.00

Accident and Health.......................................... 59.92

Credit Life Insurance....................................... 59.92

Total Insurance Premiums'........................:................................ 328.84

Total Interest Charge........................................................................ 274.07

Face Amount of Note........................................................................$2,396.70

The note was payable in thirty monthly payments of $79.89 each. No payments were made on the note; and on May 17, 1955 (just short of sixty days from the original purchase) Griffin- — claiming usury — brought this suit against Murdock to have the note and conditional sales contract cancelled. Murdock denied the usury and sought judgment on the note and the enforcement of the vendor’s lien. (§ 34-2301 Ark. Stats.) The Chancery Court refused Griffin’s claim of usury and rendered judgment for Murdock as prayed. This appeal followed, in which Griffin urges only two points for reversal.

I. Griffin says: “The appellant contends that the conditional sales contract is usurious: the premium for the health and accident insurance in the sum of $59.92 was.imposed upon the appellant, against his will. Appellant specifically told the agent .for the insurance company, who was also the agent, for the seller, the hinds of insurance he wanted: that he had plenty of accident and health insurance with his employer.”

The burden of appellant’s argument on this point is, that he did not want the health and accident insurance but was compelled to obligate himself for the premium of $59.92 in order to purchase the car oh the time payment plan. The Trial Court held against the appellant on this point; and the evidence amply supports the finding of the Trial Court.

Assuming that the health and accident premium of $59.92 could be successfully urged as a cloak for usury, still the facts remain: (a) that the appellant received the health and accident policy, (b) that he was not overcharged for the premium, and (c) that he enjoyed the protection of the policy. Also, Griffin admits that he signed a written application for the health and accident insurance policy. He claims that he did not read the application and did not know what he was signing; but the automobile salesman testified that he explained the insurance in full to Griffin, and that Griffin said he wanted all possible coverage: “I want it all.” Without detailing all the other testimony, we conclude that the Chancery Court was correct in finding against appellant on this first contention.

II. The appellant says: “The conditional sales contract is usurious: in spite of the fact that the appellant, at the time of the purchase of the car, and at all times thereafter, ivas entitled to a class ‘H’ classification rate with a premium of $189.00 for the collision and comprehensive coverage, he was instead arbitrarily placed in class ‘1’ rate, and charged a premium of $209.00, resulting in an excess charge of $20.00 for this insurance coverage.”

This point presents a more serious issue. Murdock admits that there was a $20.00 overcharge on the insurance premium for the comprehensive and collision insurance ; that is, the premium should have been $189.00 instead of $209.00, as charged. Also, it is conceded that the total interest charge of $274.07 is less than 10 per cent if there had been no $20.00 error, but is slightly more than 10 per cent if the $20.00 overcharge for the insurance was really a cloak for usury. So, the case turns on whether there was an honest mistake in the overcharge of $20.00 on the insurance premium, or whether the “mistake” was made in order to collect more than 10 per cent interest.

Thus we have a fact question; and the case at bar is strikingly similar to two of our recent cases: one being Whiddon v. Universal CIT Credit Corp., 227 Ark. 824, 301 S. W. 2d 567; and the other being Jones v. Jones, 227 Ark. 836, 301 S. W. 2d 737. In the Whiddon case the Chancellor, after seeing the witnesses and hearing the evidence, held that there was an honest mistake; and we affirmed the Chancellor. In the Jones case, the Chancellor, after seeing the witnesses and hearing the evidence, held that the mistake was a cloak for usury; and we affirmed the Chancellor. In the case at bar, the Chancellor, after seeing the witnesses and hearing the evidence, found that there was an honest mistake and that Murdock acted with reasonable promptness in correcting the mistake; and we conclude that the Chancellor’s findings are not against the preponderance of the evidence.

The evidence, here, shows that the car was purchased on March 19, 1955; that Griffin was entitled to a 1,000-mile check-up and a 2,000-mile check-up; that when he had the 1,000-mile check-up in the early part of April he went to see Murdock about the insurance policies which he had received; and that the policies were explained to him. One of the policies was for collision and comprehensive insurance; and the premium charged on that policy was $209.00 because the car had been classified as “I.” Cars are classified by symbols ranging from “ A” through “R,” depending on the year and model of the car, the age of the drivers, and the use to which the car is being subjected. On Griffin’s second visit about the middle of April, 1955, he informed Murdock that an insurance agent in El Dorado had advised him (Griffin) that the car should have been classified as “ H ” instead of “I”; and that the correct premium was $189.00 instead of $209.00. Murdock had remitted the premium of $209.00 to the Universal Security Insurance Company; and Murdock promised Griffin to look into the matter and write him.

Just a few days later, and under date of April 19, 1955, Murdock wrote Griffin and admitted the mistake. Griffin testified that Murdock told him that when he made Ms first payment on the note, he could deduct the $20.00 from such payment. The foregoing, and other facts in the record, amply support the Chancellor’s finding'.that the $20.00..insuraiice premium overcharge in this case was an honest mistake, and that as soon as Murdock discovered the mistake, it promptly made correction and offered restitution. As aforesaid, under these facts and circumstances, we cannot say that the Chancellor decided against the weight of the evidence in holding that the mistake in this case was not a cloak'for usury.

III. The Gross Appeal of Murdoch Against Columbian Carbon Company. On May 24, 1956, the Chancery Court entered judgment in favor of Murdock and against Griffin for $2,370.11, together with interest and costs and attorney’s fee, “for all of which execution may issue”; and the Court ordered that the automobile be sold under the vendor’s lien statute (§ 34-2301 Ark. Stats.), with the proceeds of the sale to apply on the judgment. On May 31st Griffin gave notice of appeal from the judgment.

On June 13th Murdock obtained a writ of garnishment after judgment (§ 30-501 et seq., Ark. Stats.), and obtained service on Columbian Carbon Company, requiring it to answer within twenty days as to any moneys or properties in its hands belonging to D. E. Griffin. This garnishment .was served on June 13th; and on June 18th, on motion of Griffin, the Chancery Court quashed the writ of garnishment. On July 16th Murdock filed in the Chancery Court a notice that it was appealing to the Supreme Court from the order quashing the writ of garnishment.

■ Assuming, but not deciding, that Murdock has properly brought to this Court an issue on quashing- the garnishment, nevertheless we hold Murdock is entitled to no judgment against Columbian Carbon Company on the said writ of garnishment heretofore issued. This holding is true because Murdock never superseded the order of the Chancery Court that quashed the writ of garnishment. In Hot Springs Concrete Co. v. Rosamond, 180 Ark. 690, 22 S. W. 2d 368, we cited from the earlier case of American National Bank v. Douglas, 126 Ark. 7, 189 S. W. 161, L. R. A. 1917B 588, and held that when a writ of garnishment was quashed, and no supersedeas bond was filed to supersede the order of quashing, then the garnishee was fully released from the garnishment. That case is ruling here; so Murdock’s cross appeal is without merit.

Affirmed.

       See Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973.

       The order recited in part: “. . . said writ of garnishment be and the same is hereby quashed and the garnishee, Columbian Carbon Company, be and is hereby released from answering herein.”

       The record does not disclose that' Columbian Carbon Company was ever served with any notice of appeal; but in this Court, Murdock argues in its cross appeal: “Accordingly, the action of the lower court in quashing the writ should be reversed with directions to enter judgment against Columbian Carbon Company for the amount of judgment remaining unpaid. In the alternative, appellee submits that Columbian Carbon "Company should be required to'answer what-goods, chattels, moneys, credits a.nd effects it had in its possession belonging ,to appellant from the date of service.of said writ until the return day thereof, and that judgment be entered against Columbian Carbon Clompany in said amount.”- '


author: Minor W. Millwee, Associate Justice.

text:
    Springfield v. Housing Authority of City of Little Rock.
    5-1310
    304 S. W. 2d 938
    Opinion delivered June 17, 1957.
    [Rehearing denied Sept. 30, 1957]

      O. W. Pete Wiggins, for appellant.

      Mehaffy,' Smith $ Williams, for appellee.,
   Minor W. Millwee, Associate Justice.

Appellee, Housing Authority of the City of Little Rock, Arkansas; brought this suit in circuit court to condemn 7% residential lots with 27 dilapidated dwellings located thereon for a slum clearance and urban development project. The case was transferred to chancery court, where the appellants, as owners, contested appellee’s right to take the property on numerous grounds. Trial resulted in a decree finding that the properties comprised a portion of a blighted slum area which appellee was entitled to condemn and take in its slum clearance project. The court further established just compensation for the taking at $48,740.00, for which amount appellants were awarded judgment against appellee.

Appellants have abandoned all contentions concerning the right of appellee to take the properties in question and the sole issue on this appeal is the amount fixed as compensation.

The testimony in regard to valuation of the properties followed the usual pattern in cases of this kind. Each side presented three real estate experts as witnesses. The three experts presented by appellants inspected the properties as a “committee” and each fixed the fair market value at $75,450.00. One of appellee’s witnesses fixed the fair market value at $42,040.00, another fixed it at $43,400.00 and the third found said value to be $44,740.00.

The six experts were well qualified and it would serve no useful purpose to detail the various factors, methods, considerations and reasons given by each in reaching his opinion as to the market value of the several properties which are near and similar to those involved in the recent case of Springfield v. City of Little Rock, 226 Ark. 462, 290 S. W. 2d 620. In this connection, we cannot agree with appellants’ insinuation that appellee’s witnesses are not well qualified and their conclusions incomplete and inaccurate merely because they were not members of the National Society of Besidential Appraisers and did not follow a particular formula advocated by that organization in fixing fair market value. Contrary to appellants’ further contentions, an examination of the evidence also discloses that appellee’s witnesses' gave consideration to rental income and the value of the houses located on the several lots in reaching their conclusions as to market value.

Appellants also argue that the trial court erred in viewing the properties in question. However, no objection to the court’s action in this respect was made at the trial and the question cannot be raised for the first time on appeal. Koelsch v. Arkansas State Highway Commission, 223 Ark. 529, 267 S. W. 2d 4. In addition to a personal inspection of the property, the chancellor also had the advantage of observing the witnesses as they testified and was in a more favorable position than we are to evaluate their testimony. It is certain that he did not wholly accept the testimony of any particular witness and wo cannot say his findings and conclusion as to fair market value are against the preponderance of the evidence. The decree is accordingly affirmed.


author: George Rose Smith, J.

text:
    Bass v. Willey.
    5-1300
    304 S. W. 2d 943
    Opinion delivered June 17, 1957.
    [Rehearing denied Sept. 30, 1957]

      Arthur B. Macom, for appellant.

      Virgil Roach Moncrief, John W. Moncrief and Sharp & Sharp, for appellee.
   George Rose Smith, J.

On March 25, 1946, the appellee’s predecessor in title, C. F. Willey, obtained a default decree which found that C. F. Willey was the owner of Fractional Section 1, Township 8 South, Bange 4 West, “and all accretions adjoining or contiguous thereto, situate in the Southern district of Arkansas County. ’ ’ The decree enjoined the present appellant, T. P. Bass, from trespassing upon the land, removing timber from it, or interfering in any manner with Willey’s possession.

In 1947 Willey filed a petition asserting that Bass had violated the 1946 decree and should be punished for contempt of court. Bass defended the contempt citation by attempting to prove that the 1946 decree was a nullity. It was his contention that fractional Section One, as originally surveyed by the United States in 1819, had been completely eroded away by a gradual northward movement of the Arkansas river. Bass further contended that the river, after having eaten away the entire section, had then retreated southwards even beyond its original 1819 channel and by that retreat had re-created land which by the law of accretion became a part of other lands owned by Bass and lying north of what had once been Section One. It was Bass’s theory that the 1946 decree referred only to nonexistent lands and was therefore void. The chancellor rejected this contention and entered a decree for the plaintiff on December 1, 1948. We affirmed that decree, on the ground that Bass had conveyed Section One to Willey in 1930 and was accordingly estopped to denv the existence of the property described in his deed. Bass v. Willey, 216 Ark. 553, 226 S. W. 2d 980.

The present petition, which involves only certain land that lies outside the boundaries of Section One as it was surveyed by the Government in 1819, was filed by the appellee a few months after our affirmance of the 1948 decree. In this petition Willey charges that Bass has again violated the court’s decrees by cutting timber from the area now in controversy. In defending this citation for contempt Bass concedes that he no longer has any claim to the land within the original boundaries of Section One, but he insists that he is entitled to assert title by accretion to land outside the original section. In answer to this contention Willey pleads the 1946 decree and the 1948 decree as res judicata. The chancellor, considering this issue upon the present pleadings and the record in Bass v. Willey, supra, held that Bass is precluded by the doctrine of res judicata from disputing Willey’s title to the land now in controversy.

We are unable to say that either of the earlier decrees established Willey’s title to any land lying outside the boundaries of Section One as it existed in 1819. The 1946 decree may be laid aside without much discussion, for it confirmed Willey’s title only to the original section “and all accretions adjoining or contiguous thereto.” It is plain enough that this decree left open, as a question of fact, the issue of whether any particular piece of land was actually formed as an accretion to the original section. That is the issue that Bass seeks to have determined in the present phase of the litigation; clearly it is not foreclosed by the 1946 decree.

The more difficult question is whether the 1948 decree went beyond the earlier adjudication and permanently settled this issue of fact. It will be remembered that in 1948 Bass attempted to prove that the original section had been wholly destroyed by erosion and had been later replaced by other land that gradually emerged from the river as an accretion to Bass’s property lying farther to the north. Bass undoubtedly contended then, as he contends now, that the re-created land was not an accretion to Section One as it existed in 1819. Since Bass unsuccessfully made that contention in 1948 the appellee very plausibly argues that the issue cannot be re-examined.

Whether the present question of fact was considered by the chancellor in 1948 cannot be definitely determined from the wording of the decree. The chancellor declared that Bass had failed to sustain the burden of proving the nonexistence of Section One. This conclusion disposed of the case; so there was no reason for the chancellor to say whether the original section had been enlarged by accretions. Hence Willey’s plea of res judicata rests not upon the express language of the 1948 decree but upon the implication that all questions raised were decided adversely to Bass.

This implication, however, is effectively rebutted by the language of the opinion affirming the chancellor’s 1948 decree. In that opinion we specifically limited our decision to the single point that the chancellor had correctly refused to set aside the earlier decree of March 25, 1946. The original opinion began with these words: ‘1 The only question to be decided on this appeal is whether the Chancery Court was correct in refusing to set aside a decree rendered at a former term. Other questions, injected into the record and briefs, concern (a) accretion and avulsion, and (b) determination of County boundary lines. These matters, however, are not necessary to a decision of the stated question; and are mentioned for the purpose of negativing any idea that this opinion decides them.” Despite this language unmistakably limiting the scope of the decision it was suggested in Bass’s petition for rehearing that we had inferentially approved a survey that tended to support Willey’s position on the matter of accretions. In denying a rehearing we delivered a supplemental opinion that closed with this paragraph: “We deny a rehearing; but in order to remove any doubt, we point out that we did not approve the Kramer survey, or any other survey made subsequent to the decree of 1946; we held that the 1946 decree should not be vacated. ’ ’

That opinion became the law of the case and governs all future proceedings in this litigation. Williams v. Fulkes, 103 Ark. 196, 146 S. W. 480. According to that opinion the first contempt proceedings had no force as a precedent except to hold that the 1946 decree should not be set aside as a nullity. Thus the effect of those proceedings was merely to leave undisturbed the earlier decree, which referred in general terms to Section One and all accretions thereto.

Furthermore, common fairness is opposed to the plea of res judicata in this instance. An examination of the record and briefs on the first appeal shows that Bass offered proof to establish the nonexistence of Section One (which of course would also establish the nonexistence of any accretions thereto) and also argued the point on appeal. We declined to decide that issue and limited our holding to another question. It is obvious that we cannot with consistency refuse to consider a question on the first appeal on the ground that it is not presented and then refuse to consider it on the second appeal on the ground that it has already been decided. The doctrine of res judicata is designed to prevent a litigant from trying the same issue twice; to apply the doctrine in this case would effectually prevent Bass from trying the issue at all.

Reversed and remanded for further proceedings.

Harris, O. J., disqualified and not participating.


text:
    City of Magnolia v. Kendrick.
    5-1309
    304 S. W. 2d 945
    Opinion delivered June 17, 1957.
    [Rehearing denied Sept. 30, 1957]

      William I. Prewitt and Joe D. Woodard, for appellant.

      Henry B. Whitley, for appellee.
   Sam Robinson, Associate Justice.

In 1951, the appellee, J. W. Kendrick, was City Clerk of the City of Magnolia, and, as such, he was ex-officio Clerk of the Municipal Court. The City Council fixed his salary as Clerk of the Municipal Court as $1,800.00 per year; by agreement, the city paid one-half of the salary and the County one-half. Kendrick contends that he should have been paid a salary of $2,400.00 per year as Clerk of the Municipal Court. He filed suits against the county and the city for the difference between the $1,800.00 per year and $2,400.00. The cases were consolidated; demurrers to the complaints were overruled; the defendants elected to stand on the demurrers and refused to plead further. Judgrnent was rendered on the complaints and the county and city have appealed.

Prior to 1951, Ark. Stats. § 22-713 provided: “The Judge of the Municipal Court may appoint a Clerk for the court who shall be designated and known as the Municipal Court Clerk, and the salary of such clerk shall be $1,800.00 per annum, payable in equal monthly installments. * * *; Provided, the city council of any city subject to this act may fix the salary of the Municipal Court Clerk at any sum not exceeding eighteen hundred dollars ($1,800.00) per annum, and may designate that the duties of such clerk be performed by any other officer of the city.” The General Assembly of 1951 adopted Act 280, which amended the above statute by providing that the salary should be $2,400.00 per year, but that the city council could fix the salary at “any sum” not exceeding $3,000.00 per year. The 1953 General Assembly, by Act 313, amended the statute by adding the provision, “in county-seat towns with less than 2,400 population, the City Council may fix the salary of the clerk at any sum not to exceed eighteen hundred dollars ($1,800) per annum. ’ ’

Appellee maintains that the 1951 amendment fixed the salary at $2,400.00 per year and that the city has no authority to pay less than that amount. We do not agree Avith the appellee in that respect. The 1951 amendment merely fixes the salary at $2,400.00 in the event the city does not elect to pay some other sum not exceeding $3,000.00 per year. The amendment clearly states: “ * * * Provided, the city council of any city subject to this Act may fix the salary of the Municipal Court Clerk at any sum not exceeding three thousand dollars ($3,000.00) per annum, and may designate that the duties of such clerk may he performed by any other officer of the city. ’ ’ Obviously, it Avas the intention of the General Assembly to permit the city to assign the duties of the Clerk of the Municipal Court to some officer of the city who was already drawing a salary from the city. The act permits the city to pay such officer an additional sum not exceeding $3,000.00, hut considered as commensurate with the work that he would do as Clerk of the Municipal Court, which, as a matter of fact, might require very little of his time. To hold that the city could not pay an amount less than $2,400.00 as salary to one serving as Clerk of the Municipal Court Avould "be to read out of the act the words: ‘ ‘ any sum not exceeding three thousand dollars ($3,000.00) per annum.”

The 1953 amendment is not applicable; the City of Magnolia is not Avithin the classification of cities affected by that amendment.

Reversed, with directions to sustain the demurrer.


author: Carleton Harris, Chief Justice.

text:
    Hickinbotham v. State.
    4875
    303 S. W. 2d 565
    Opinion delivered June 24, 1957.

      Kenneth Goffelt, for appellant.

      Bruce Bennett, Atty. Gen’l.; Thorp Thomas, Asst. Atty. Gen’l., for appellee.
   Carleton Harris, Chief Justice.

Appellant, H. Y. Hickinbotham, over a period of weeks, was convicted of twenty violations of Ark. Stats. (1947) Sec. 41-3802 (keeping grocery store open on Sunday). On appeal to Circuit Court, the cases were consolidated, and tried January 18,1957. The court directed a verdict for the State, leaving only the question of proper punishment to be der termined by the jury. The jury assessed a fine of $25 in each case. From such convictions, comes this appeal. Appellant, in his motion for a new trial and amendment thereto, sets out twenty assignments of error; however, he argues only one point in his brief. This being a misdemeanor case, it is appellant’s duty to abstract the record and brief the case on the points that he desires to have considered. If this is not done, such alleged errors are waived. Fields v. State, 219 Ark. 373, 242 S. W. 2d 639; Van Hook v. Helena, 170 Ark. 1083, 282 S. W. 673. The only assignment appellant argues here, and therefore the only one we consider, is that he is being discriminated against in violation of the Fourteenth Amendment to the Constitution of the United States.

In Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S. W. 2d 679, the defendant was convicted of keeping his grocery store open on Sunday. This Court, in upholding the trial court’s action in refusing to permit the introduction of evidence by the defendant relative to Sunday sales by drug stores, hotels, filling stations, restaurants, etc., said, “* * * Sunday laws applicable only to grocery stores and meat markets have been held to represent a reasonable classification. * * * It does not seem to us that the equal protection clause restricts the legislature to classifications based on the type of commodity being sold. The legislature might reasonably believe that it is necessary and desirable to allow pharmacists to fill prescriptions on Sunday. It might also find that druggists are unwilling to open their stores for that limited activity alone and that medicines can be made available to the public on Sunday only by permitting all departments of the drug stores to remain open. Hence it does not necessarily follow that because the druggist sells a bar of soap on Sunday the grocer has a constitutional right to do the same. A study of the cases indicates that to test discrimination solely on the basis of the article sold is apt to result in abolishing all exceptions to Sunday laws, for businesses are tending more and more to overlap one another’s activities. * * * It is our conclusion that a Sunday law applying only to grocers would be valid and therefore, appellant is entitled only to be treated in the same manner as other grocers. * # *” Accordingly, the only question to be considered on this appeal is whether appellant established that he was being discriminated against by the law enforcement officers of Little Rock and Pulaski County, vis, that he was being systematically arrested for violations of the law while the officers knowingly permitted other grocery stores to remain open on Sunday and carry on their business without interference.

The question may well arise, “Just what constitutes ‘discrimination’?” Certainly not that one person is apprehended while another who commits the same offense goes free. If such were a defense, convictions would never be obtained, for it is common knowledge that'murderers, thieves, robbers, and rapists are sometimes never apprehended, though fortunately, in a vast majority of the cases, they are apprehended and pay the penalty for their crimes. No one could reasonably argue that because every felon is not caught and punished, all other felons should go unpunished. Applying such a system of law enforcement would, of course, bring on a chaotic condition and a complete breakdown of law and order. Applying such reasoning to this case, it would not be sufficient substantiation of appellant’s claim of discrimination to simply show that other grocery stores were operating on Sunday. Certainly it would have to be further shown by cogent evidence that the officers knowingly permitted others to continuously and systematically remain open, while making it a point to see that appellant did not operate unhindered. It is not necessary that we discuss just what proof or circumstances would be necessary to sustain such a contention. Suffice it to say that discrimination is not established by the record in this cause.

The officers testified that they had directions to arrest all grocery store operators. Officer Waggoner stated, “We observed all grocery stores that came within our eyesight as we drove down the street, and if we thought they were selling groceries, we checked them, and Mr. Hickinbotham’s store was open.” Officer Mackey testified: “Q. Did you have a directive to arrest all grocery stores that were open on Sunday? A. Yes, sir. Q. Did you follow that directive to the best of your knowledge? A. Yes, sir.” Officers Cranford, Satterwhite, Whitener, Biggs and Brians all testified to the same effect. The last mentioned officer testified, “We checked all places which was possible in our tour of duty. You can only check so many places in a given length of time and we checked all places that we thought might have been selling grocery items. ’ ’ Officer Mackey testified that on one of the Sundays, they found a certain Deason’s Grocery open, hut that Deason had a confectionary license, and stated that he was selling only milk, ice cream, and bread; that the confectionary was separate from the grocery department, although they were under the same roof. Certainly, no discrimination was established from the testimony of these officers.

Appellant’s only witness was J. H. Hickinbotham, father of the defendant. From his testimony:

“Q. Since last July, have you made a close observation of businesses in Little Bock, similar to yours — that is, that sell the same articles that you do — and which have remained open on Sunday?

A. Yes, sir.

Q. How many businesses would you say there are that have continuously and systematically remained open on Sunday? I am fixing it from last July because that is the time affected in this case. How many arc there that sell the same articles you sell in your store, including groceries ?

Mr. Holt: I object to him answering the question. It is framed exactly like he had it before.

The Court: Objection overruled.

A. What was the question, please?

Mr. Coffelt: Bead the question to him. (The reporter reads the question.)

A. I didn’t make a complete survey, but I listed a few here that I had passed by on my way to lunch or some other time.

Q. I don’t care about identifying them now, but are there a large number of them ?

A. Yes, sir.

Q. Are they on busy corners?

A. Some are on corners and some are in the middle of the block.

Q. Were they open on these Sundays at places where it would be easy for the police officers to observe in case they were making an inspection?

A. Yes, sir.”

If the cause should have been submitted to the jury, it would have had to be on the basis of the testimony above quoted. In the first place, the testimony is vague in the extreme. No definite locations are mentioned . . . no dates are mentioned ... no names are mentioned. We are unable to determine what is meant by “a large number,” nor can we determine the meaning of “observation of businesses similar to yours.” As previously herein set out, this Court, in Taylor v. City of Pine Bluff, supra, held that discrimination is not tested solely on the basis that other establishments sell some of the same articles sold by a grocery store. ‘£ They were open where anybody could observe them” adds little or no weight to the testimony. No attempt was made to show that the officers were in the vicinity, or, if there, deliberately passed up such places in making their inspection. No testimony was offered, nor witnesses called, to offer evidence that particular grocery stores were open for business, or that any such stores were being-permitted to operate. Two newspaper advertisements of January 5, 1957, and January 12, 1957, were offered which stated that Owen Henderson’s Super Market would “be open all day tomorrow.” This evidence, of course, was inadmissible as not being the best evidence, nor did it occur during the period of the offenses for which appellant was being tried. It was excluded by the trial court on the latter ground.

The above testimony falls far short of establishing that appellant has been a victim of discrimination within the holdings in our cases or those of the United States. Taylor v. City of Pine Bluff, supra; Taylor v. City of Pine Bluff, 226 Ark. 749, 294 S. W. 2d 341; Yick Wo v. Hopkins, 118 U. S. 356; 6 S. Ct. 1064, 30 L. Ed. 220, Snowden v. Hughes, 321 U. S. 1, 88 L. Ed. 497, 64 S. Ct. 397. Accordingly, the trial court’s action in directing a verdict of guilty was entirely proper.

In Ms amendment for motion for new trial, appellant states that on Sunday, January 20, 1957, he made a careful inventory and investigation of the places of business remaining open, that he found 178 places of business open in Little Bock; that at least 50 of these places were selling and offering for sale grocery items; that he was the only person arrested for violation of the law on that date; that the law enforcement authorities refused to file charges or prosecute these persons. According to such amendment, “he is not only being discriminated against, and being singled out and arrested for the law violation, but he is being discriminated against in that the arresting officers and' the courts, and all enforcement agencies, deliberately refuse to make other arrests, or prosecute thereon, even when information is furnished them by this defendant with the request to make affidavit as to the charges and to post bond for costs; that this discrimination violates the constitutional rights of the defendant under the equal protection clause of the Fourteenth Amendment to the Federal Constitution. ’ ’ It would be repetitious to again say that the sale of particular items which might be classified as grocery items does not constitute violation of the law; further, these alleged violations did not occur during the period of the violations for which appellant was being tried, but rather, on January 20th, which was after appellant had been tried and convicted, and thus cannot be considered as newly discovered evidence.

Affirmed.

Justice Robinson dissents for the same reasons stated in his dissent in Taylor v. City of Pine Bluff.

       Numerous eases from other jurisdictions are cited.