text:
    Ark. State Hospital v. Kestle.
    5-2822
    364 S. W. 2d 804
    Opinion delivered January 28, 1963.
    [Rehearing denied March 11, 1963.]

      Pope, Pratt é Shamburger, By: M. Jack Sims, for appellant.

      Virgil B. Moncrief and John W. Moncrief, for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellant, Arkansas State Hospital for Nervous Diseases, filed this action against appellee, J. E. Nestle, to recover $1,710.00 for room, board, lodging, and treatment furnished Mrs. J. E. Nestle (wife of appellee) between the dates of March 1, 1959, and October 1, 1960. The Trial Court rendered judgment for Appellee Nestle and this appeal ensued, in which appellant urges three points:

“I. A husband is liable for the cost of maintaining his wife in the State Hospital under the provisions of Arkansas Statutes (1947), Section 59-230; and under the common law he is liable for the furnishing of necessaries to his wife.
“II. A husband is not liable for the 'observation’ period for his wife’s maintenance in the State Hospital under the provisions of Arkansas Statutes (1947), Section 43-1301, but his liability for a later commitment for medical treatment is not thereby altered.
“III. Court erred in construing Anna Kestle’s commitment as detention of a criminal or convict rather than the maintenance, care and medical treatment of a mentally ill person.”

We find it unnecessary to consider appellant’s second and third points, because our determination of the first point is fatal to appellant’s case. In the Trial Court a jury was waived and the cause was submitted to the Court upon stipulated facts, as contained in the Circuit Court judgment; and here are all of such stipulated facts:

' ‘ That at the time the said Anna Kestle was committed to the State Hospital for Nervous Diseases by Order of this Court, she was under charge of the crime of murder in the first degree; that it was to the best interests of the State of Arkansas and to the best interest of the said Anna Kestle that she be committed to the State Hospital for Nervous Diseases for treatment.
“That Anna Kestle was a patient in the State Hospital during the dates as pleaded in the complaint of the plaintiff, and received maintenance, medical care, and treatment while therein; that the said Anna Kestle is the lawful wife of the defendant, J. E. Kestle; that charges in the amount of, One Thousand Seven Hundred Ten Dollars ($1,710.00) were assessed for the maintenance, medical care, and treatment of the said Anna Kestle by the plaintiff, the Arkansas State Hospital for Nervous Diseases; that the deefndant, J. E. Kestle, had no connection with the hospitalization of his wife, Anna Kestle, but that the said Anna Kestle was committed by Order of the Court of Arkansas County on October 4, 1958, under the provisions of Act III of 1936, as amended (Arkansas Statutes (1947) Section 43-1301). That on November 1,1958, this Court further ordered that the said Anna Kestle be committed to the State Hospital for Nervous Diseases for treatment; that this was subsequent to and by virtue of the official report of the physicians at the State Hospital for Nervous Diseases declaring the wife of the defendant to be mentally ill at the time of her examination to the degree of legal irresponsibility.”

We emphasize that the foregoing are all of the facts shown in the record before us; and we rest our affirmance on the conclusion that these stipulated facts are not sufficient to support a' reversal of the Circuit Court judgment. Mrs. Kestle wds' charged with murder and committed to the State Hospital for observation on October 4, 1958, under the provisions of § 43-1301 Ark. Stats. On November 1, 1958, the State Hospital authorities reported to the Circuit Court that Mrs. Kestle was mentally ill; and the Circuit Court ordered that Mrs. Kestle be retained in the State Hospital for treatment. This order of the Circuit Court was apparently under the authority of Act No. 413 of 1957 and also Act No. 241 of 1943. Under the said order of the Circuit Court, Mrs. Kestle remained in the State Hospital for treatment until October 1, 1960 ; and the State Hospital filed this action, against Mr. Kestle on September 24, 1960, alleging that Mr. Kestle, as the lawful husband of Mrs. Kestle, was liable to the appellant, and that the $1,710.00 covered items of necessary services and maintenance rendered to Mr. Kestle’s wife. Under the first point in appellant’s brief, recovery against Mr. Kestle is based on § 59-230 Ark. Stats, and also on the claimed common law duty of a husband to furnish maintenance and necessaries for his wife. We consider these points separately.

I. The Duty Under The Statute. The germane portion of § 59-230 Ark. Stats, reads:

‘ ‘ Pay for maintenance of patients — If any patient admitted to the State Hospital be found, upon examination, to possess an estate, over and above all indebtedness, more than sufficient for the support of his or her dependents, his or her natural or legally appointed guardian shall pay out of such estate into the office of the business manager of the State Hospital, in advance, an amount equal to one (1) month’s maintenance, at a rate to be fixed by the Board of Control (State Hospital Board) from time to time on the basis of maintenance costs, and in addition, shall supply the patient with sufficient and suitable' clothing, and shall remove said patient when so required and notified by the Superintendent. If the patient remains in the State Hospital more than one (1) month, such payments shall be made, monthly in advance, for the whole period during which the patient remains in the State Hospital. If the patient has no such estate of his own, then his obligation shall exist against any person who is legally bound to support such patient. Inability to pay shall not, however, cause any person to be refused admission to or discharged from the State Hospital. ”

Thus, the statute places the primary duty of support on the “natural or legally appointed guardian.” Further along, the statute says, “If the patient has no such estate of his own, then his obligation shall exist against any person who is legally bound to support such patient.” Under the wording of this statute, the primary obligation is on the estate of the patient; and it is only after there has been a showing that the patient has no estate that the claim can be made against “any person legally bound to support such patient.”

In other words, the fact, that the statute first allowed recovery against the guardian and then later provided for recovery against others “if the patient has no estate,” convinces us that the burden was on the appellant in the case at bar to establish that Mrs. Kestle had no estate; and the establishment of that fact was a eondition precedent to recovery against Mr. Kestle. If the Legislature had intended the husband to be liable under the statute, irrespective of the estate of his wife (the patient), then the statute would have imposed liability on the guardian of the patient “or any other person legally liable for the maintenance of the patient.”

Since the stipulated facts do not mention the presence or absence of any estate of Mrs. Kestle, and do not mention any prior effort to recover from her guardian, wTe are compelled to the conclusion that the appellant has failed in its burden of proof in seeking to recover from Mr. Kestle under the statute. What defenses the guardian might offer to an action is a matter not now before us, so we need not speculate on appellant’s second and third points.

II. The Common Lmo Liability Of The Husband To Support The Wife. The appellant argues that Mr. Kestle is liable for the amount claimed, regardless of § 59-230, because he is the husband of Mrs. Kestle; that the husband is liable at common law for necessaries furnished the wife; and that the amount claimed by the State Hospital is for the maintenance of Mrs. Kestle and is a necessary: But, even if the statute (§ 59-230) does not supersede the common law in a factual situation such as the one here (a point on which we now express no opinion), nevertheless the stipulated facts in this case are not sufficient to establish an absolute liability on Mr. Kestle for the support of his incarcerated wife.

All of the authorities, in discussing the relative obligations of marriage, are practically agreed that the husband is liable for necessaries furnished his wife only under certain conditions.

In 26 Am. Jur. 970, “Hnsbancl and Wife” § 372, in discussing the burden of proof, the text reads:

‘ ‘ One who furnishes a wife with necessaries takes the risk of establishing a case against the husband, and the burden is on him to prove the existence of the elements of the husband’s liability for the goods or services furnished. Thus, he has the burden to prove that the husband failed or neglected to support his wife, and that the articles furnished her were necessaries . . . The view has been taken that a person seeking to hold a husband liable for necessaries furnished his wife while they were living apart has the burden of showing that the separation has taken place under such circumstances as will render the husband liable; the fact that the person furnishing the wife with the necessaries had no knowledge of the separation does not relieve him from such burden of proof. ’ ’

In 26 Am. Jur. 995, “Husband and wife” § 399, there is a discussion of the liability of the husband for the maintenance of his wife while she is insane; and the holdings are summarized in this language:

“A husband who has neglected to provide support and care for his insane wife is liable for the expense of support and care furnished her by an individual or private asylum. However, there is a difference of opinion as to a husband’s duty to support and care for his wife and as to his liability for necessaries furnished her, where she is in a public institution because of insanity. One view is that there is such a duty and liability according to the husband’s financial ability. Statutes consistent with this view have been enacted in some jurisdictions. A contrary view is that the husband is under no such duty or liability while she is confined in a public institution for the insane, the theory being that the husband is not derelict in his duty to support her, since her presence at the institution and absence from home are not due to his refusal to support her at home or with his consent.”

We do not have to decide in this ease on which side of the conflicting authorities Arkansas will stand because we revert to the stipulated facts in the record before us. These facts do not recite that Mr. Kestle had any connection with the hospitalization of his wife. There is no stipulation that Mr. Kestle had failed to maintain a home for Mrs. Kestle or had been unwilling to provide her with treatment in a private institution. It seems unreasonable to say that the State can take a man’s wife away from him, incarcerate her in a hospital on an unproven charge, refuse to allow the husband to have his wife in a private institution for treatment, and still charge the husband for her maintenance. We do not know any of the facts in the case at bar, other than those that have been stipulated. We limit our present holding to those stipulated facts heretofore detailed; and, under them, we are unwilling to say that the appellant has made a case against Mr. Kestle sufficiently strong to reverse the Trial Court and render judgment for the appellant.

It therefore follows that the judgment is affirmed.

       Act No. 235 of 1959 and Act No. 77 of 1961 were subsequent to Mrs. Kestle’s commitment in this case.

       The 1957 Act Stated: “The Superintendent may also request a writ of commitment for any patient for whom he deems it to the best interest of the patient that such a writ be issued, for the purpose of retaining the patient in the hospital for such time as the superintendent deems necessary for proper care and treatment.”
      The 1943 Act stated: “PATIENTS HELD UNTIL RESTORED. Any person admitted to the State Hospital under the provisions of Sections 9 and 10 of this Act, shall be there and then kept until restored to reason, which fact shall be ascertained as in case of other patients in the State Hospital.”

       In fact, the record in this case does not disclose when or how she was released, if at all.

       Typical of the general statements is this one from 26 Am. Jur. 954, “Husband and wife” § 355:
      “Apart from the contractual liability of a husband for goods and services which are within the classification of necessaries, under certain conditions he is rendered liable by law- when such goods and services are furnished his wife. A husband is liable for necessaries furnished his wife where they are furnished her when he is derelict in his duty to support her, whether his dereliction lies in his refusal or in his neglect; and although he has a primary right, so long as he acts reasonably, to determine what are necessaries for her and to dictate the source from which they shall be procured and the manner in which they shall be purchased, he may be held liable for an article or service furnished her which is one of that class of items of goods or services with which he normally is required to provide her, as well as for an article or service, such as medical services, with which he is bound to provide her under particular circumstances, irrespective of the fact that he supports her generally, unless the article or service is furnished on her credit alone. Sometimes the rule is merely stated that he is liable for necessaries furnished her, but such a statement of the rule leaves open the question of when and under what circumstances goods or services furnished her are necessaries, and fails to indicate the effect of an extension of credit exclusively to the wife ... The burden of proof of the facts requisite to establish the liability of a husband for necessaries rests upon the party who asserts such liability. Whether or not the husband has made a suitable provision for the wife in reference to her support is a question for the jury, under all the facts and circumstances.”

       We have carefully studied the cases cited to sustain the text, and have also studied the cited annotations. In addition, we call attention to the following: Thompson v. State Hospital, 208 Ark. 970, 188 S.W. 2d 503; annotation in 48 A.L.R. 733, entitled, “Constitutionality of statute imposing liability upon estate or relatives of insane person for his support in asylum”; annotation in 33 A.L.R. 2d 1257, entitled, “Liability of incompetent’s estate for care and maintenance furnished by public institution or hospital before incompetent’s acquisition of any estate or property”; annotation in 60 A.L.E. 2d 7, entitled, “Husband’s liability to third person for necessaries furnished to wife separated from him”; Briskman v. Central State Hospital (Ky.), 264 S.W. 2d 270; Sprain v. State Board (Wisc.), 263 N.W. 648; Guardianship of Gardner, 220 Wisc. 490; and see also 29 Am. Jur, 180 et seq., “Insane persons” § 57 et seq.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Bishop v. State.
    5039
    364 S. W. 2d 676
    Opinion delivered January 28, 1963.
    [Rehearing denied March 4, 1963.]
    No brief filed for appellant.

      Frank Holt, Atty. General, by: Thorp Thomas, Asst. Atty. General, for appellee.
   George Rose Smith, J.

The appellant was convicted of rape and sentenced to life imprisonment.

We find the testimony to be amply sufficient to support the jury’s verdict of guilty. Shortly before ten o’clock on the night of September 28, 1961, the prosecutrix, a young married woman, was alone in a self-service coin-operated laundry in Fayetteville. The defendant came in and persuaded her to get in her car and attempt to start his car by pushing it out a highway. According to the prosecutrix, the defendant was a complete stranger to her.

The defendant’s automobile failed to start after having been pushed for a mile or more, and the defendant came to a stop beside the highway. The prosecuting witness testified that as she was turning her car around to return to the laundry the defendant came over to the vehicle, forced his way into the driver’s seat, and started driving down the highway. Despite the prosecutrix’s struggles and attempts to escape, the defendant, who weighed nearly 300 pounds, was able to keep her in the car while he turned off the highway and parked behind a little church, where, according to the testimony of the prosecuting witness, he committed the act of rape.

The prosecutrix’s testimony is to some extent corroborated by that of three youths of college age who were driving together that night in Fayetteville. Their attention was attracted to Bishop at about eight thirty, when apparently he ran deliberately into a car that was waiting for a traffic light to change. Later in the evening these boys saw Bishop emerge from the laundry with the prosecutrix, and they decided to follow the two cars out the highway. All three of them testified positively that they could see the prosecutrix fighting and struggling with the defendant just before he turned abruptly off the highway. The boys did not follow Bishop when he left the highway, but after waiting for a few minutes at a point farther down the road they decided to return to Fayetteville, where two of them informed the sheriff of what they had seen.

Bishop was the only witness called by the defense. He testified that he had struck up an acquaintance with the prosecutrix in a record shop, several months before the event in question. Although both of them were married, he succeeded in making several dates with the woman, and they had sexual relations on three of these occasions. Bishop testified that the prosecutrix telephoned him at about nine or nine thirty on the night of the alleged crime, asking him to meet her at the laundry. He was still at work on a construction job between Fayetteville and Springdale and came into town in his work clothes. He testified that after they had failed in their attempt to get Ms car started they drove together to the churchyard, where an act of intercourse took place with the prosecutrix’s co-operation and consent.

The record is large, hut we have narrated the salient facts. It is quite evident that, in spite of the conflicting testimony, the prosecutrix’s version of the matter constitutes substantial evidence sufficient to support the verdict.

It is insisted that the court erred in permitting the three youths to testify about Bishop’s having run into another automobile earlier in the evening, since this incident involved a separate offense. The testimony, however, was undoubtedly relevant, for it explained to the jury why the boys happened to become interested in Bishop’s conduct and hence why they were following him when they observed his struggles with the prosecutrix. As we pointed out in Alford v. State, 223 Ark. 330, 266 S. W. 2d 804, independently relevant testimony is admissible even though it may involve proof of another offense.

Defense counsel also objected repeatedly to testimony indicating that on the night in question Bishop was dirty, unshaven, and ill-smelling. This proof had a direct bearing upon the matter of Bishop’s credibility, since the jury might well have believed that he would not have appeared in such an unkempt state if he was telling the truth about his past relationship with the prosecutrix and about her having asked him to meet her that night.

The court properly allowed the prosecuting witness to testify that she identified the accused at the county jail on the day after the offense. French v. State, 231 Ark. 677, 331 S. W. 2d 863. Nor did the court err in permitting the defendant to be cross-examined about prior convictions and offenses, the jury having been instructed that these matters ivere to he considered only as bearing upon the defendant’s credibility. Whittaker v. State, 171 Ark. 762, 286, S. W. 937. We have studied the other assignments in the motion for a new trial and consider them to be without merit.

Affirmed.

Prank Holt, J., disqualified.


author: George Rose Smith, Associate Justice.

text:
    Brown v. Land, Inc.
    5-2832
    364 S. W. 2d 659
    Opinion delivered January 28, 1963.
    [Rehearing denied March 4, 1963.]

      Moses, McClellan, Arnold, Owen <& McDermott, by, Wayne W. Owen, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   George Rose Smith, Associate Justice.

The appellant Brown and the appellee Land, Inc., were the proprietors of adjoining residential subdivisions in suburban Little Bock. This is a suit by Land to enjoin Brown from committing repeated trespasses upon two very narrow strips of ground that Land claims to have reserved as unplatted buffer zones between the two additions. The chancellor issued a preliminary injunction, but upon final hearing that order was dissolved and the plaintiff Land was denied any relief. Brown became the appellant by first lodging the record in this court, but the main questions are presented by Land’s cross appeal, which we discuss first.

In 1958, before any of the property was platted, Brown owned a tract that was bordered on the north and on the west by an L-shaped parcel owned by Land. On September 3, 1958, Land recorded a plat of what we will refer to as Briarwood Addition No. 1, lying immediately north of Brown’s property. Later on Land dedicated what we will refer to as Briarwood Addition No. 2, lying immediately west of Brown’s property. In both cases the original plat proved to be defective, and in both cases Land subsequently filed an amended and substituted plat in which an attempt was made to reserve a narrow strip along the common boundary with Brown. The two phases of Briarwood Addition involve wholly distinct issues and must be considered separately.

The original plat of Briarwood Addition No. 1 showed a street, 25 feet in width, named Princess Drive, that lay along the southern edge of the addition and abutted Brown’s property to the south. A municipal regulation requires that a dedicated street be at least 50 feet wide. "What Land actually intended, without so stating, was to dedicate a half street, in the expectation that Brown would contribute the other half.

Brown, however, refused to donate the other half of the street, and, in fact, it developed that he had acquired title by adverse possession to part of the 25-foot strip platted by Land as Princess Drive. To meet this difficulty Land filed a revised plat of Briarwood No. 1, in which. Princess Drive was moved northward 25 feet, leaving an unplatted strip between the south edge of this street and Brown’s northern property line, as established by adverse possession.

When Brown later platted his own tract as Cardinal Heights Addition and began using Princess Drive as a means of access in the development of his property, Land brought this suit for an injunction. Land contends that it effectively canceled its original dedication of Princess Drive and that therefore Brown commits a trespass whenever he crosses the buffer strip that Land reserved in its revised plat.

We think the chancellor was right in holding that the first dedication was still in force, so that Brown was entitled to use Princess Drive as a public thoroughfare. It is conceded that Land sold a number of lots in Briar-wood No. 1 between the filing of the original plat and the filing of the amended plat. Thus at the outset Land is confronted with our long-established rule that when the owner of land plats it into lots and blocks and sells lots by reference to the plat, he is held to have dedicated the streets to public use, “and such dedication is irrevocable.” Mebane v. City of Wynne, 127 Ark. 364, 192 S. W. 221.

In seeking to escape the effect of this settled principle Land argues that its initial dedication of Princess Drive was merely conditional, since the width of only 25 feet did not conform to the city’s minimum requirement. Nevertheless, the city approved the original plat, and there was nothing to put innocent purchasers of' lots within the addition on notice that the dedication of Princess Drive was subject to retraction. Apparently the 50-foot minimum requirement is not rigidly adhered to by the city, for it seems to have approved the revised plat also, even though it purported to dedicate only a 25-foot right of way for Princess Drive. The appellee cites Love v. Hicks, 214 Ark. 229, 215 S. W. 2d 138, as authority for its contention that the dedication of a half street is revocable, but in that case the 20-foot strip in dispute was not shown by the plat to be a street, as is the ease here.

It is also argued that the original bill of assurances for Briarwood No. 1 reserved to a majority of the landowners within the addition the power to set aside any provision in the dedication. Hence, it is argued, the revised plat was a valid exercise of this reserved power and effectively superseded the first attempted dedication of Princess Drive.

We need not determine whether it would be possible for the proprietor of an addition to reserve the power to do away with the streets within the area after he had sold lots by reference to the plat, for in this instance the language of the bill of assurances is not so unmistakable as it would have to be to achieve that result. This is the pertinent sentence in the bill of assurances: “Any and all of the covenants, provisions or restrictions set forth in this Bill of Assurances may be amended, modified, extended, changed, or cancelled, in whole or in part, by a written instrument signed and acknowledged by the owner or owners of over fifty per cent (50%) in area of land in this Subdivision ...”

It will be seen that the power is reserved to change or cancel any “covenants, provisions or restrictions” in the bill of assurances. It seems plain that the reserved power was intended to apply to such matters as the restriction of the land to residential use, limitations upon the size and location of structures within the addition, minimum requirements for the area and width of lots, a prohibition against the keeping of animals or poultry, and many other similar covenants and restrictions that are set forth in the bill of assurances. By contrast, the location of the streets is shown by the plat rather than by the bill of assurances and does not fall within the general scope of a covenant, provision, or restriction. We think it clear that in order for the dedicator to reserve such a far-reaching and drastic power as that of vacating a street, perhaps even after homes have been built in reliance upon its existence, the intention should be expressed so clearly as to leave no room for doubt. Since that degree of clarity is wanting here, we conclude that Land did not retain the authority to set aside its dedication of Princess Drive. With respect to this phase of the cross appeal the decree is affirmed.

The first plat of Briarwood Addition No. 2 portrayed the subdivision as being bounded on the east by the Brown tract, as defined by the original Government survey. It was found, however, that Brown had maintained an encroaching fence along this boundary for many years and had acquired title by adverse possession to part of Land’s property. '

To meet this difficulty Land decided to replat Briar-wood No. 2 and to that end directed its engineers to survey a line that would lie slightly west of Brown’s fence, so that there would be no question about Land’s title. Land’s engineers testified positively that these instructions were obeyed, that while the fence was still standing they surveyed a line lying slightly west of the fence and revised the dimensions of the abutting lots to leave an unplatted buffer strip between the fence line and the eastern boundary of the lots. A new plat of Briarwood No. 2, conforming to this survey, was filed.

Thereafter Brown, in the course of developing his Cardinal Heights Addition, sought an outlet for his main sewer line. To this end he bought Lot 224 of Briarwoo'd No. 2, which was one of the eastern tier of lots in that addition, and ran his sewer line from Cardinal Heights across Lot 224 to a sewer main that Land had placed in the street immediately west of Lot 224. In its complaint in the case at bar Land sought to require Brown to remove the sewer line from the unplatted strip that separated Lot 224 from what had become Cardinal Heights. In defending the case Brown contended, and the chancellor found, that Land’s engineers, in resurveying the property, had failed to leave any space between Lot 224 and the fence line. Hence there was no trespass, and the request for a mandatory injunction was denied.

We think the weight of the evidence to be against the chancellor’s conclusion. By far the most convincing testimony is that of Land’s engineers, who alone surveyed the line while the fence still existed. Brown’s witnesses did not attempt to determine the location of the fence until after it had been removed. Their efforts to reconstruct the position of a line that admittedly was not straight are not persuasive. Indeed, the testimony of Brown’s principal witness, Powers, is actually favorable to Land, indicating that Lot 224 lies about two feet west of the fence line. Even such a narrow strip is sufficient to support Land’s prayer for relief, as the rule of de minimis does not apply to controversies involving the ownership of real property. Leffingwell v. Glendenning, 218 Ark. 767, 238 S. W. 2d 942. Upon this phase of the cross appeal the decree must be reversed and the cause remanded for the entry of a mandatory injunction.

By the direct appeal Brown contends that the chancellor erred in failing to award him damages for Land’s wrongful procurement of the temporary injunction (with respect to the alleged trespasses in Briarwood No. 1). There is, however, no proof by which these damages can be determined in dollars and cents, and the chancellor’s action in charging the costs against Land was in effect an award of nominal damages to Brown. Reader Railroad v. Green, 228 Ark. 4. 305 S. W. 2d 327. The decree is therefore affirmed upon the direct appeal, with the appellee to recover its costs in this court only.


author: Paul Ward, Associate Justice.

text:
    Songer v. State.
    5064
    364 S. W. 2d 155
    Opinion delivered January 28, 1963.

      Terral, Rawlings & Matthews, for petitioner.

      Frances Holtsendorff, for respondent.
   Paul Ward, Associate Justice.

On June 12, 1962, petitioner was judged in contempt of court and fined for disobeying an order of the court pertaining to the custody of Chris Songer, a nine year old son of the petitioner. He now brings before us, by .certiorari, the record of the contempt proceedings, seeking to have the order of contempt quashed.

Since many relevant facts and circumstances are set out in Songer v. Songer, 229 Ark. 228, 314 S. W. 2d 233 (opinion June 16, 1958) we deem it sufficient for this opinion to set out below a brief summary of the testimony contained in the record which preceded and led up to the contempt order.

The petitioner and his former wife were divorced in 1956; they had five children at the time; the two older ones are married and they both appear to be bitter toward their father at this time; one boy, Larry, now 14, is living with his father (the petitioner) and is not involved here; the youngest child is living with her mother and is not involved; Chris is now nine years old, and an incident over his custody precipitated this litigation. Petitioner has married again, and Mrs. Songer is now-married to a Mr. Halcumb. The parties have been in court almost continuously over the custody of the children.

FolloAving the directive in our decision referred to-above, the trial court gave petitioner custody of Chris-with his mother having the right to have him from Friday to Sunday each two weeks. The record discloses that Chris’ visits to his mother were a constant source of trouble. It seems that Chris’ father and mother each thought the other was mistreating him, and each vied for his company and affection.

On June 12, 1962 the trial court (apparently at the request of both parties) entered of record an order, the pertinent part of which reads:

“That the plaintiff (Mrs. Halcumb) shall have the right to pick up the parties’ minor son, Christopher Songer, at noon on June 15, 1962, and to take said minor child on a trip with her out west, and shall return the said child to the home of the defendant by 5:00 p.m. on July 1,1962.”

When Mrs. Halcumb went by Mr. Songer’s home at the designated hour to pick up Chris, preparatory to making the trip out west, she was unable to get him to go with her. Mrs. Halcumb, thinking that Mr. Songer had contrived to disobey the court’s order, had him cited for contempt. A hearing was had at which testimony was given by many witnesses, including all the members of the family (except Chris) referred to above. At the conclusion the trial court found: “That the defendant, Herschel Lee Songer, is in contempt of court for violation and disobedience of the order of this court on June 12, 1962. ’ ’ Then the court assessed a fine of $50 against the petitioner and sentenced him to three days in jail, but the jail sentence and $40 of the fine were suspended ‘ ‘ pending the future good behavior and cooperation of the defendant with the court and the plaintiff regarding plaintiff’s visitation privileges ...”

It is our conclusion, after careful consideration, that the order of the trial court should be sustained. Under our view of the case it is unnecessary to review all the evidence because we think the petitioner has a misconception of the applicable law. It is his contention that he was fined on a charge of criminal contempt of court, and that, therefore, we must find the evidence shows him guilty beyond a reasonable doubt, or reverse the trial court. We are not in agreement with this contention for reasons set out hereafter.

The distinction between civil and criminal contempt proceedings is clearly set out in the case of Blackard, et al. v. State, 217 Ark. 661, 232 S. W. 2d 977, to which reference is made for a fuller explanation. One primary distinction is that the purpose of punishment for criminal contempt is to preserve the dignity of the court, while the other is to enforce the rights of the third parties. No doubt the two purposes often merge as we think they do in this case. It appears from the wording of the court’s order that the petitioner was punished because he disobeyed the court’s mandate (that is, to preserve the dignity of the court) and also to insure cooperation of the petitioner in the future (that is, to enforce the rights of Mrs. Halcumb). It is not questioned that punishment for civil contempt will be upheld by this Court unless the order of the trial court is arbitrary or against the weight of the evidence. However, it is not necessary for us to hold the petitioner was found guilty of only civil contempt in order to sustain the trial court. We think the trial court should be sustained even if the petitioner were guilty of criminal contempt. In this situation the rule is clearly set out in the Blachard case, supra, where it is stated:

“On review by this Court in such proceedings by certiorari, we do not try the criminal contempt case de novo, despite any such language so intimating as contained in Jones v. State, 170 Ark. 863, 281 S. W. 663. Rather, we review the evidence just as we would in an appeal in any criminal case. The trial court in the first instance, in a criminal contempt proceeding must find the cited person guilty beyond a reasonable doubt. Then, on certiorari proceedings this Court reviews the record to determine whether the evidence, when given its full probative force, is sufficient to sustain the finding of the trial court. See Stewart v. United States, 236 Fed. 838; Binkley v. United States, 282 Fed. 244; Davidson v. Wilson, 286 Fed. 108; and In re Oriel, 23 Fed. 2d 409.”

Weighing the testimony under the above rules, we find there is substantial evidence to support the order of the trial court.

We purposely refrain from again setting out the testimony which reeks with bitterness and family strife. It must be conceded that no witness testified he saw or heard petitioner influence Chris’ decision not to accompany Ms mother on the occasion mentioned. There were, however, conceded circumstances from which the trial judge (who saw and heard the witnesses) could have reasonably concluded the petitioner did fail to cooperate in carrying out the court’s order. One such circumstance is the tender age of Chris, indicating he would obey his father; one is the fact that the petitioner left on an extended trip with Chris a very short time after Mrs. Halcumb went by to pick him up; and, another is that the petitioner had prearranged to leave on an out of state trip at the exact time Chris was to leave with Ms mother.

We call attention to the fact that the suspension of a part of the petitioner’s punishment cannot be revoked but is in effect a remission. See: Stewart, et al. v. State, 221 Ark. 496, 254 S. W. 2d 55.

Writ denied.


author: Sam Robinson, Associate Justice.

text:
    Toler v. Toler Convalescing Home.
    5-2831
    364 S. W. 2d 680
    Opinion delivered January 28, 1963.
    [Rehearing denied March 4, 1963.]

      Levine & Williams, for appellant.

      Brockman & Brockman, H. Murray Claycomb, for appellee.
   Sam Robinson, Associate Justice.

In 1942 Lula R. Toler established a home for aged negroes in Pine Bluff. In 1946 she organized a corporation named the Negro Relief Association and conveyed the property on which the home was located to the corporation. In 1956, while Lula Toler was an officer of the corporation, the Negro Belief Association executed a deed to the property to the Toler Convalescing Home. There was attached to the deed a resolution of the Negro Relief Association showing that the name of that organization was changed to that of the Toler Convalescing Home.

Lula Toler, the dominant party connected with the convalescing home, died in 1958. The home continued to be operated by a board of directors until the members of the board resigned after having filed this suit to enjoin William H. Toler from interfering with the operation of the home and requiring him to return certain records. This is an appeal from the decree of the Chancellor granting the relief prayed.

The Chancellor gave a great deal of consideration to this case and wrote an able opinion with which we are in accord and which we accept. The opinion is as follows:

“This is an action involving ‘an Old Folks’ Home’ for Negroes in Jefferson County. The Home was initiated by Mrs. L. R. Toler, who was a former Home Demonstration Agent for Jefferson County.
‘ ‘ Originally, the Home ivas financed by public donations. Mrs. Toler caused a charitable corporation to be formed which bore the name of ‘ The Negro Relief Association’. She then deeded some real property which she owned personally to this corporation.
“The Negro Relief Association, by resolution changed its name to the ‘Toler Convalescing Home’ and executed the deed on the real property it owned to the Toler Convalescing Home in August of 1956 by its purported president, T. B. Richards and secretary, Mrs. L. R. Toler. This deed with a copy of a resolution changing the name and authorizing the deed attached, were recorded in the records of Jefferson County. Hereafter the Negro Relief Association will sometimes be referred to as the Relief Ass’n. and The Toler Convalescing Home will be referred to as the Home. When money was borrowed from local banks a corrected deed with the signature of both T. B. Richards and L. R. Toler properly acknowledged was duly executed and recorded.
“L. R. Toler was the executive secretary-treasurer of the organization from its beginning in 1942 to her death in 1958; first, in the Relief Ass ’n. and then in the Home.
‘ ‘ Though the operation first was supported by public donations, it later qualified under state and federal law to receive help from the public welfare and other sources. Its revenues at the time of the beginning of this action Avere largely from state and federal sources.
“When Mrs. Toler died August 17, 1958, the board of the Home met and appointed Kathryn Player to take her place. William H. Toler, defendant, appeared at this meeting of the board which occurred just a few days after the death of Mrs. Toler.
“On October 30, 1958, William H. Toler caused a meeting to be held of what was alleged to be the original board of the Relief Ass’n. This board selected him as secretary-treasurer to fill the alleged vacancy caused by the death of Mrs. L. R. Toler. Thereafter he attemtped to take charge of the Home. The Board of the Home brought this action to stop his efforts and asked for a restraining order against him.
“It appears that after the commencement of the action that William H. Toler caused so much trouble with the various people involved with the operation of the Home that the members of the board — who were serving without salary — resigned at or prior to the first hearing of this cause. The funds which were being received from the state and federal authorities were not paid but were being held up by the authorities because of the confusion between the Home and William H. Toler. The sixty odd patrons of the- Home were dependent entirely upon the welfare funds.
“At the first hearing it was apparent that this action could not be disposed of at that time so the Court on its own motion appointed a receiver. William H. Toler was present and was represented by legal counsel. He was represented first by Mr. Harold Flowers, later by Mr. Joe Holmes, both of the Pine Bluff Bar and lastly by Mr. J. Edward Jones of the Chicago Bar.
“Numerous hearings have been held prior to the trial. Judge Mullis and Judge Dawson each made various orders. It is not believed necessary to set out all of the manifold orders in detail.
“It is sufficient to say that William H. Toler was cited on several occasions prior to the trial and was found guilty of contempt at one hearing before a prior judge. His sentence was withheld based upon his future compliance with the orders of the Court. At the trial he showed every willingness to comply with the former orders of the Court. He turned over to the Clerk a typewriter, property of the Home, this being the last of the personal property which he had taken into his possession.
“No minutes of the Belief Ass’n. nor of the Home were introduced other than resolutions adopted by the respective boards. It is admitted that William H. Toler took all of the records then existing of the Home and later delivered them to the Clerk of this Court. He testified that some of the records had been destroyed by Kathryn Player, a person who had been Mrs. Toler’s assistant for several years and who was designated in writing by Mrs. Toler to succeed her in the event of her death or retirement.
“At the trial it developed that William H. Toler had caused a private corporation to be organized in which he held 6500 shares of 10,000 authorized to be issued. He admitted that this private corporation was formed for the purpose of operating the Home when the Relief Ass’n. should recover it. He volunteered the statement that he expected the Negro Relief Ass’n. to pay him for every day that he had spent in Pine Bluff, including the time of trial.
“Many pleadings and motions were filed which are not necessary to be set out in detail. Many of these motions and pleadings were doubtless inspired by the fact that the defendant’s counsel at the trial was not familiar with our liberal practice. Probably these motions and pleadings would seem necessary to one trained in the more technical procedures of another state. William H. Toler abandoned at the trial any claim of personal interest and acted solely in his alleged capacity as secretary and treasurer for the Relief Ass’n.
“The primary issue in this action is whether or not the Negro Relief Ass’n may recover the real property from the Toler Convalescing Home which would carry with it the operation of the Home. Subordinate issues are:
1. Was the appointment of a reeciver by the Court on its own motion proper?
2. Was the restraining order against William H. Toler proper?
3. Was there fraud or duress in the execution of the deed and the authorizing resolution by the Relief Ass’n to the Home?
4. Was the action of the Relief Ass’n board proper and if so, did it take precedence over the act of the board of the Home?
“Both the Relief Ass’n and the Toler Convalescing Home were non-profit corporations organized in the Circuit Court of Jefferson County under our statutes. The Toler Home resulted from the adoption of a resolution by the Negro Relief. Ass’n changing its name to read ‘Toler Convalescing Home’ and which resolution adopted all of the articles of incorporation of the Relief Ass’n except its name, which resolution was duly recorded in the Jefferson County records. It is doubtful that this was tantamount to organizing a new corporation.
“Prior to the death of Mrs. Toler the Home had been receiving from the State Welfare Office payments that amounted to $75 per person monthly. There were in excess of sixty patrons of the Home when this action was instituted in 1958. At the time of trial in 1961, the monthly payments which were being paid to the receiver had been raised to $90'per person and the number of patrons had been increased to seventy-four. This monthly payment was in excess of $6,000.00.
‘ ‘ There can be no vested interest in these welfare payments regardless of whether the Relief Ass’n or the Home prevails here. The Welfare Department has the right to refuse payment if its requirements are not met. The fact is that it was withholding its monthly payments at the time of the first hearing. That fact was the reason that the Court appointed a receiver on its own motion because it desired to protect the patrons of the Home from the obvious difficulties which would follow further withholding of the funds.
WHICH CORPORATION SHOULD PREVAIL?
“It is doubtful whether there are two corporations. Rather it would seem to be one corporation with a changed name. However, under the assumption that a change of names meant a change of corporation, deeds for the real property owned by the Relief Ass’n were executed and recorded conveying the same to the Home. The deeds appear valid on their face except that one has a defective acknowledgment. The other deed was given to correct this defect.
“A contention is made that the original directors — A. A. Cooper and J. S. Smith — were still in office because the Eelief Ass’n constitution provides ‘. . . that the first board of directors . . . hold office until their successors are elected and qualified.’ It is contended that because there are no minutes showing the election of succeeding directors that A. A. Cooper and J. S. Smith are still de jure officers.
“To support this contention A. A. Cooper, the first president of the Eelief Ass’n testified that no election of a successor to him had been held. However, his testimony was so vague on details that a president should know and was manifestly wrong in some matters, the Court could give but little weight to his statements.
“The Eelief Ass’n adopted a resolution February 16, which resolution was duly recorded in the Circuit Clerk’s office on March 8, 1951. This resolution showed J. S. Smith was president and L. E. Toler was secretary. Other names appear as directors on this resolution but two of these names, J. S. Smith and L. E. Toler were a majority of the original board of the Eelief Ass’n. Under the Articles this constituted a quorum. Nowhere in this resolution is the name of A. A. Cooper.
“From the date of the resolution until October 30, 1958, A. A. Cooper made no assertion of record to his claim to be president of the Eelief Ass’n. No credible evidence was offered to show that he took any action which would evidence the fact that he still claimed to be president of the Eelief Ass’n prior to October 30, 1958. In addition Mr. T. X. Jones, a member of the Jefferson County Bar in good standing, testified that Mrs. Toler, executive secretary and treasurer, informed him when he was preparing a deed to convey the property from the Eelief Ass’n to the Home, that A. A. Cooper was not president, that he had been removed from the board. The Court does not believe that A. A, Cooper was either president or a member of the board at or after the execution of the resolution in ’51 and above referred to.
“Whether it was necessary to execute deed after the change of the name is not important in this action because the defendant has not overcome the presumption of validity that follows an acknowledged deed which has been duly recorded. Oh the other hand, if it be one and the same corporation with a changed name then there could be no recovery. While the records of the corporate action under either name are scanty the actions of the Home as shown of record seems to be fuller than those of the Relief Ass’n and show some continuity of personnel and action. There were no records introduced showing that the Relief Ass ’n attempted to take any action or claim to exist as such, from the time of the name change until two and a half months after the death of Mrs. L. R. Toler. The Court accepts the recorded resolutions and other actions in writing of the Home board as being done in good faith and with no ulterior motives.
WAS THE APPOINTMENT OF A RECEIYER PROPER?
“If the Court had failed to appoint a receiver in 1958 in all probability the Home would have failed and its sixty odd patrons would have been thrown upon the community. Grasping for control of substantial monthly payments should not be permitted to injure patrons who were wholly dependent upon the welfare payments. The fact that the Home was indebted to the extent of $13,000, which has since been paid off by the receiver, was a strong circumstance indicating the necessity of a receiver.
WAS THE RESTRAINING ORDER PROPER?
“William H. Toler, evidently under the impression that if he made enough trouble that the physical properties of the Home would be turned over to him voluntarily, had seized the records and made himself so generally disagreeable that the officers and directors resigned rather than to endure his conduct. To have permitted him to continue this? conduct against the receiver would in all probability caused the receiver to have likewise resigned. Unless his conduct was restrained the appointment of a receiver would have been useless.
WAS THERE FRAUD OR DURESS IN THE EXECUTION OF THE DEED!
“The Relief Ass’n alleged fraud and duress in the execution of deeds and resolutions changing its name. The proof failed to substantiate these allegations.
WAS THE ACTION OF THE RELIEF ASS’N BOARD IN ATTEMPTING TO NAME WILLIAM H. TOLER SECRETARY-TREASURER PROPER!
! ‘ Since the Court does not accept the claim of A. A. Cooper that he was president or a member of the board on and after 1951 when the resolution of the Relief Ass’n was signed by J. S. Smith as president, it follows there could not be a legal meeting in 1958 of the board of the Relief Ass’n for the reason that only one member, J. S. Smith of the original board was present. The Court accepts the actions of the Home board as binding and taking precedence over the attempted action of the Relief Ass’n in October of 1958.
FINDINGS
“The Court finds the issues generally for the plaintiff and makes the following specific findings, to-wit:
“The Relief Ass’n may not recover from the Toler Convalescent Home. The title to the real property-described as
Lot Three in Block 10 of Geisreiter’s Subdivision of the West Fractional Half of Section 6, Township 6 South, Range 9 West, Jefferson County, Arkansas,
is in the Toler Convalescing Home and the said Home has the right and responsibility of operating the said property and the home thereon situated.
II
“'The appointment of a receiver was proper and necessary.,
III
"The restraining order against William H. Toler was proper and necessary.
IV
“There was no fraud or duress in the execution of the deed of conveyance by the Negro Belief Association to the Toler Convalescing Home nor in the execution and adoption of the resolution changing the name of the Belief Ass’n to that of the Home. The attempted act of the board'of the Negro Belief Ass’n in 1958 does not take precedence over its prior act and is a nullity.
“In the case of Bosson v. Women’s Christian National Library Association, 216 Ark. 334, 225 S. W. (2) 336, our Court made it clear that corporations of the type involved in this action are of the same nature as a charitable trust and said:
‘Being public utilities of a very high order, charities are intimately associated with the state which exercises over them full supervision so that their property, funds and revenues shall not be diverted to any improper purpose, and that trustees and agents shall perform the duties assigned to them with honesty and fidelity and for the best advantages of the charitable uses designated by the donor or donors. For these ends the Chancery Courts have an original and inherent jurisdiction.’
“The Court retains jurisdiction of this case. It extends to the parties herein at period of thirty days in which to make suggestions to the Court as to the method of securing a proper board for the Toler Convalescing Home to operate the home when the receiver shall have been discharged.
‘ ‘ Beceiver shall continue to operate said home until such a time as this litigation shall have been finally concluded, at which time the reeciver shall make a final accounting of her actions as such and when said accounting shall have been approved by the Court she shall be discharged from further responsibility as receiver,.
“Mr. Murray Claycomb will prepare the precedent, submitting copies to other counsel at the same time that it is submitted to the Court. If no objection be made within five days, the same will be entered of record. If objections are raised, the Court will set an early date for passing upon them. ’ ’

The attorney for the appellee convalescing home was appointed by the Chancellor and petitions this Court for the allowance of a reasonable fee for representing appellee on appeal. The petition is granted, and since the Chancellor is more familiar with the financial position of the parties, that Court is directed to allow such fee.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Turner v. Arrowhead Land Co.
    5-2890
    364 S. W. 2d 148
    Opinion delivered January 28, 1963.

      Alonso D. Gamp, for appellant.

      wood, Chestnutt d? Smith, for appellee.
   Jim Johnson, Associate Justice.

This is a suit for damages arising out of alleged fraud and misrepresentation by a vendor to his vendees as to the location of the boundary lines of a building lot.

Appellants, A. Britt Turner and Lucille Turner, his wife, purchased Lot 10, Block 1, Unit 3 of Arrowhead Lake Estates, on Lake Hamilton in Garland County, from appellee, Arrowhead Land Company, Inc., in 1958, and thereafter during 1959 and 1960 built a house on the lot. After the house was built, appellants discovered that the house was situated partly on Lot 9, the adjacent lot to the west. Appellants then purchased Lot 9, which was owned by a third party, for the. sum of $1,400.00. Appellants thereupon sued appellee in the Garland County Circuit Court, alleging that appellee, previous to their purchase, had misrepresented the property to appellants, by showing appellants the correct corner of Lot 10 on the road and the corner of Lot'9 on the lake, instead of all the true corners of Lot 10, so that appellants thought the lot boundaries ran at an approximate 45-degree angle from the lake to the road. As part of their damages, they further alleged that they were required to pay to the owner of Lot 8 the sum of $50.00 for damage to his lot done by the former owner of Lot 9. By agreement of the parties the cause was tried before the court. The court, sitting as a jury, found that appellants had failed to prove by a preponderance of the evidence that appellee, its agents or employees, was guilty of any fraud or misrepresentation as charged in the complaint, and that appellants failed to prove any damages for which judgment could be rendered. Appellants promptly appealed.

For reversal appellants urge that they sustained their burden in proving allegations of fraud and misrepresentation by a preponderance of the evidence. Where the court sits as a jury, this is not the test. It is axiomatic that the findings of fact of a trial court sitting as a jury have the same force and effect as the findings of a jury, and that such findings of fact will not be disturbed on appeal if there is any substantial evidence to support it. Johnson v. Spangler, 176 Ark. 328, 2 S. W. 2d 1089; Peterson v. Garland County, 188 Ark. 1167, 65 S. W. 2d 18; Wallis v. Stubblefield, 216 Ark. 119, 225 S. W. 2d 322. It is stated further, in Wall v. Robling, 207 Ark. 987, 183 S. W. 2d 605, that:

' ‘ On appeal from the findings of the court in a case of this kind we must give to the evidence adduced on behalf of the prevailing party the strongest probative force that it will reasonably bear. St. Louis Southwestern Railway Co. v. Morgan, 144 Ark. 641, 215 S. W. 589; [and other cases cited].”

Appellants and their witnesses testified that appellee’s salesman showed them the correct corner of Lot 10 on the road and erronously showed them the corners of Lot 9 on the lake as being the corners of Lot 10, which would make the lot boundaries run approximately at a 45-degree angle from the lake to the road. Appellants testified that they saw a plat of the property, and one of appellants’ witnesses stated that the salesman had a copy of the plat with him when they were shown the property and that “when we went around the four corners he showed us the four corners on the plat”. Appellants testimony further showed that there were iron pipes and wooden stakes at the four corners of each lot, that the corners on the road were marked with the lot numbers, but that the stakes at the lake front had no markings.

Appellee’s witnesses testified that the subdivision was laid out by a licensed surveyor, that all lot corners were marked with wooden stakes and iron pipes, that the front corners (on the road) had white stakes with red numbers designating the lot, block and unit number, and that on the corners on the lake the woodeu stakes bore the same markings with blue keel crayon. The surveyor further testified that the brush was cut along lot lines in order to make the survey, some three months prior to appellants’ purchase.

Appellee’s salesman testified that he showed appellants the correct lot corners, that they walked out the corners and lot lines of Lot 10. and that he had a plat with him at the time. Appellee’s manager testified also about the marking and staking of the lots, and further testified that he had instructed all salesmen to “show the true lines and always take the plat with them and acquaint the people with the lot they are getting . . that they had had no difficulty with any other lot in Arrowhead, and that pointing out the wrong lot line would be no advantage but simply cause trouble.

Giving the evidence adduced on behalf of appellee the strongest probative force that it will reasonably bear, as we must, we find that there is substantial evidence to support the finding of the trial court.

Appellants’ second point urged for reversal is that by a preponderance of the evidence appellants’ damages were clearly proven. Although consideration of this point is not necessary for determination of this case, we note from the record that appellants clearly proved their expenditures. However, there is a total failure of proof tending to show that appellants suffered a loss as a result of these expenditures. The record being thus, we cannot disturb the trial court’s finding that appellants failed to prove any damages for which judgment could be rendered.

The judgment is therefore affirmed.


author: Frank Holt, Associate Justice.

text:
    Cooper v. Cherokee Village Development Co., Inc.
    5-2921
    364 S. W. 2d 158
    Opinion delivered January 28, 1963.

      Harry L. Ponder, for appellant.

      Herschel H. Friday, Jr. and John Mac. Smith, for appellee.
   Frank Holt, Associate Justice.

Appellant seeks to have a financing or loan agreement between the appellees declared usurious and, therefore, invalid pursuant to the provisions of Article 19, § 13 of the Constitution of the State of Arkansas. He asks that any existing indebtedness under such contract be cancelled and forfeited and that a permanent injunction be issued against appellees.

Appellee, Cherokee Village Development Company, Inc., [hereafter referred to as Cherokee] and appellee, Northern Financial Corporation [hereafter referred to as Northern] each answered, entered its appearance and submitted to the jurisdiction of the court. In separate answers, each appellee admits that the loan agreement provides for a greater rate of interest than 10% per annum which, under Arkansas law, would constitute usury but alleges, however, that the substantive law of New York, rather than Arkansas, is applicable. Appellees affirmatively ask for a declaratory judgment holding the agreement valid and enforceable. The cause was submitted upon the pleadings and a stipulation of facts. The trial court upheld appellees’ contention that the substantive law of New York governs and the agreement is valid and enforceable.

The pertinent facts agreed upon are as follows. Appellant is a citizen and resident of the State of Arkansas and is the owner of 600 shares of the capital stock of appellee, Cherokee. Cherokee is a corporation organized under and existing by virtue of the laws of the State of Arkansas with its principal place of business in Sharp County, Arkansas. Appellee, Northern, is a corporation organized under and existing by virtue of the laws of the State of New York and has its principal place of business in the City of New York, New York. Northern has not qualified to do business in the State of Arkansas and has no office or place of business in Arkansas. Northern is a commercial financing company.

Cherokee is the owner, subject to rights of way, easements, liens, lots sold and contracts for the sale thereof, of a tract of real estate situated in Arkansas and containing approximately 6,375 acres. Cherokee has developed and improved said tract of real estate, platted portions thereof into lots, has sold some of said lots and entered into contracts of sale with reference to other lots. It will continue to do so in the future.

In early 1962, Cherokee entered into negotiations with Northern to obtain financing for these operations. These negotiations between representatives of Cherokee and Northern took place in Arkansas and in New York. The negotiations led to an agreement between between the parties dated April 30,1962, a copy of which was made a part of the record. The loan agreement drafted by Cherokee, the borrower, was executed and deliverd in New York City and the agreement expressed the intent of the parties that the laws of the State of New York shall govern their contractural rights and duties.

Generally stated, the loan agreement classifies the aforesaid contracts of sale into two types of “eligible paper”. One type, Class A Paper, being the contracts on which at least six installment payments, but less than twelve, have been paid to Cherokee by the purchaser. The other type, Class B Paper, being contracts on which twelve or more such installment payments have been paid. Such contracts, designated by the loan agreement as eligible paper”, are also designated as “collateral” and are to be pledged, assigned and delivered by Cherokee to Northern in New York to secure the loan. Northern agrees to advance and deliver to Cherokee, by depositing in a New York bank account of Cherokee, as requested from time to time, such sums as shall not exceed thirty-three and one-third per cent of the unpaid balance of Class A Paper and as shall not exceed fifty per cent of the unpaid balance of Class B Paper. Cherokee agrees to pay interest upon the advances so made to it at the rate of 1/27 of one per cent per day (equalling approximately 13% per cent per annum). There is sufficient eligible paper to permit a loan well in excess of one million dollars.

Under the terms of the loan agreement Cherokee agrees to continue to make collection of payments under the said contracts of sale which are assigned as collateral. Such collections are to be received by Cherokee in trust for Northern and deposited in a special bank account in the Bank of Ash Plat, Arkansas, maintained in Cherokee’s name. The funds so received are to be remitted daily by check to Northern, these being the only withdrawals from this bank account. All such remittances are to be delivered to Northern in New York and are not to be effective until three days after receipt to permit bank clearance and collection. When thus collected, the remittances are credited by Northern against Cherokee’s indebtedness. Upon any contract of sale being paid in full by the buyer, Northern must redeliver such contract to Cherokee. The loan agreement is to continue in effect from year to year until terminated as specified in the agreement. Cherokee reserves the right to terminate this agreement upon thirty days notice to the event it is able to secure necessary refinancing from commercial banks, other institutional lenders, or public financing.

The appellees have been operating under this agreement with the said contracts of sale being assigned and pledged to Northern, loans being made thereon to Cherokee, and payments being made on those loans including interest at a rate of more than 10 per cent per annum (approximately 13%% per annum).

Appellees, Cherokee and Northern, have filed a financial statement with the Clerk of Sharp County, Arkansas, and the Secretary of State, pursuant to certain provisions of the Uniform Commercial Code, Ark. Stats. S5-1-101, et seq. (Act. 185 of the Acts of Arkansas of 1961).

It is undisputed that if the substantive law of Arkansas is applicable, the loan agreement is usurious and void; however, if the substantive law of New York is applicable, the contract is valid and enforceable.

On September 17, 1962, the trial court rendered its decree holding that the validity, interpretation and effect of the loan agreement are to be determined by the substantive law of New York and, therefore, it is valid and enforceable. The court dismissed the appellant’s complaint with prejudice. From this decree appellant brings this appeal.

For reversal appellant pursues five points:

V) The transaction is one affecting the title to Arkansas land and its validity is to be determined by Arkansas law.

(2) Arkansas is the state with the most significant contracts and therefore Arkansas law must govern the contract.

(8) The Uniform Commercial Code as enacted by Arkansas requires that the contract be governed by Arkansas law.

(4) Even if the validity of the contract is to be determined by New York law, Arkansas substantive law is applicable under the doctrine of Renvoi.

(¡, 5) The strong public policy of Arkansas against usurious contracts demands a finding of invalidity.

We consider these points in the order presented.

(1) Appellant’s theory is that the contracts of sale, which are the principal collateral, when assigned, pledged and delivered to Northern, in effect transfer an interest in the retained legal title to Arkansas land. Further, that in the event of any default by Cherokee, Northern is authorized to dispose of the contracts at either public or private sale, thereby effecting another transfer of title to the Arkansas land.

The title to land is controlled by the law of the situs of the particular land in question. O’Bar v. Hight, 169 Ark. 1008, 277 S. W. 533; Nakdimen v. Brazil, 137 Ark. 188, 208 S. W. 431; Polack v. Steinke, 100 Ark. 28, 139 S. W. 538; Lefler, Conflict of Laws, (1959) § 140.

However, we think the facts in the instant case are more closely analogous to the cases in which the borrower has executed a promissory note in another state, payable in such other state, to be secured by a mortgage on Arkansas land. In these note and mortgage cases, this court is committed to the rule that the governing law is to be determined under the ordinary choice of law rules for contracts, just as if there were no mortgage. Smith v. Brokaw, 174 Ark. 609, 297 S. W. 1031; Boston Mutual Life Inc. Co. v. Newton, 174 Ark. 547, 297 S. W. 1035; Dupree v. Virgil R. Coss Mortgage Co., 167 Ark. 18, 267 S. W. 586; Tenny v. Porter, 61 Ark. 329, 33 S. W. 211. However, this court is not committed to any choice of laws rules of contracts which is a sham to evade the usury laws of our state.

In Penny v. Porter, supra, this court stated the rule:

‘ ‘ The law of the place which determines the validity of a contract secured by a mortgage determines whether the mortgage be valid or usurious, irrespective of the place where the land which is subject of the mortgage is situated * * * .”

It is our opinion that the situs of the land is not controlling as to which state’s laws are to be applied in determining the validity of the loan agreement in this case.

(2) In determining what law governs the validity of a multistate contract four different bases have been used: (1) The law of the state in which the contract was made; (2) the law of the state in which the contract is to be performed in its most essential features; (3) the law of the state which the parties intended to govern the contract, provided that state has a substantial connection with the contract; and, (4) the law of the state which has the most significant contracts with the matter in dispute (also known as the “center of gravity” or “grouping of contracts” (theory). See Lefler, Conflict of Laws, (1959) §§ 124, 125.

Arkansas has, on different occasions, applied the first three of these theories. Smith v. Brokaw, supra, (place of making); American Farm Mtg. Co. v. Ingraham, 174 Ark. 578, 297 S. W. 1039, (place of performance); McDougall v. Hachmeister, 184 Ark. 28, 41 S. W. 2d 1088, (intent of the parties). The “center of gravity” theory, which appellant urges upon us, was inaugurated in Auten v. Auten, 308 N. Y. 155, 124 N. E. 2d 99. This court has not found occasion to employ it nor do we now find it necessary in this case.

From a review of the facts in this case we are of the opinion that upon the application of any of the three traditional rules, recognized by this court, that the law of New York is controlling.

This agreement was drafted by' the borrower, Cherokee, and offered to the lender, Northern, in New York. It was in New York that this contract was executed and delivered or where the last act necessary to complete the contract and impose legal obligations was consummated. The contract was made in New York. Leflar, Conflict of Laws, (1959) § 122; Restatement, Contracts, % 74; Williston, Contracts (3rd Ed. 1957) § 97; Smith v. Brokaw, supra.

As to performance, it is in New York where all advances, repayments and remittances are to be made and all collateral assigned. It is in New York that the contract is to be performed In the main or its essential features. American Farm Mtg. Co. v. Ingraham, supra.

By the terms of the contract, it is the express intention of the parties that the laws of New York govern its validity. Cherokee and Northern had the right to select and intend the law of New York to govern the contract since New York has substantial contacts with the contract. McDougall v. Hachmeister, 184 Ark. 28, 41 S. W. 2d 1088; Dupree v. Virgil R. Coss Mortgage Co., supra. Of course, they could not validly agree to such if New York had no substantial connection with the agreement.

(3) We are only concerned in this case with the question of usury. Thus, we do not reach the question of whether the Uniform Commercial Code, Ark. Stats. 85-1-101, supports the appellant’s argument because the Uniform Commercial Code does not affect the Arkansas law on usury. See Ark. Stats. 85-9-201.

(4) Renvoi is the doctrine under which the court of the forum, in resorting to a foreign law, adopts the rules of the foreign law as to conflict of laws, which rules may in turn refer the court back to the law of the forum.

We deem it unnecessary to decide whether this court will follow the renvoi doctrine in this case. Suffice it to say that if this court applied the Avhole law of New York, which includes the New York laAv on conflict of laAvs, the result in this case would be the same as Ave reach on other grounds. In determining which state’s laAv governs the validity of a contract, New York has apparently committed itself to the “center of gravity” or “grouping of contracts” theory. Auten v. Auten, supra. Applying that theory to the instant facts, it is evident that New York is the state Avith the most significant contacts Avith the matter in dispute.

(5) This court has consistently inclined toAvard applying the laAV of the state that Avill make the contract valid, rather than Amid. Whitlock v. Cohn, 72 Ark. 83, 80 S. W. 141; Dupree v. Virgil R. Coss Mortgage Co., supra; American Farm Mtg. Co. v. Ingraham, supra; Wilson-Ward Co. v. Walker, 125 Ark. 404, 188 S. W. 1184.

This is not a case of a cloak for usury or Avhere the parties to a wholly Arkansas contract have sought to avoid the Arkansas usury Iuav by having the validity of the contract determined by the law of a state having no substantial .connection with the contract. On the contrary, this is essentially a New York contract. It is quite natural for a New York lender to loan its money in New York, to require it to be repaid in New York and to stipulate that the contract be governed by familiar New York law. These are reasonable requirements for a lender to exact.

The parties in this case were dealing fairly with each other with full disclosure. Cherokee drafted the agreement and presented it to Northern for acceptance. Cherokee reserved the right to terminate the agreement on thirty (30) days notice if it were able to obtain the required refinancing from commercial banks, other institutional lenders, or public financing. We see nothing so reprehensible about this agreement that it would require us to discard our recognized rules of conflict of laws in order to hold the agreement to be void.

The decision of the lower court is, therefore, affirmed.


author: Carleton Harris, Chief Justice.

text:
    Granite Mountain Rest Home v. Schwarz, Adm’r.
    5-2840
    364 S. W. 2d 306
    Opinion delivered February 4, 1963.

      Fred A. Neioth, Jr., and Marshall N. Carlisle, for appellant.

      Pope, Pratt <& Shamburger, by Donald 8. Ryan, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal by Granite Mountain Rest Home, Inc., from a judgment entered by the Pulaski County Circuit Court, following a jury verdict, wherein the rest home was held liable for the death of Harlejr L. Hall, Sr., a patient at the home at the time of his demise. Hall was admitted to the home, at the age of 89 years, in April, 1959. He was placed there by his children, who paid $50 per month of the charge made ($140 per month), while the State Welfare Department paid the balance of $90 per month. On July S, 1960, Hall became violently ill, was removed from the home to Baptist Hospital, and died the next day. Dr. M. D. McClain, a general practitioner of Little Bock, treated Hall, and was of the opinion that the death was dne to pneumonia, which was brought on by Hall’s consumption of kerosene. Suit was instituted against appellant by the administrator of the estate of Hall, alleging that,

“while the said Harley Lucian Hall, Sr., was in the exclusive care, custody and control of the defendant, the defendant did carelessly and negligently cause or allow the said Harley Lucian Hall, Sr., to consume a large volume of kerosene or similar substance, which resulted in his death on July 9, 1960.”

It was further alleged that Hall suffered horrible pain and mental anguish for a period of approximately 36 hours before his death. Damages were sought for the estate in the amount of $20,000, and the sum of $5,000 was sought for mental anguish by the eight surviving children. After the filing of an answer denying the allegations, and various motions, the cause proceeded to trial. The jury returned a verdict for appellee (for the estate) in the amount of $7,500. From the judgment so entered, appellant brings this appeal. For reversal, appellant relies upon three points, the first being that the court erred in not directing a verdict for the home, and the other two relating to two allegedly erroneous instructions which were given by the court.

We are unable, under our established procedure, to consider the first point for reversal, vis, that the court erred in not directing a verdict for appellant. A motion for directed verdict was made by appellant at the conclusion of plaintiff’s (appellee’s) testimony, and was denied by the court. Whether this action by the trial court was correct is of no moment, for upon the motion being-overruled, appellant proceeded to offer its evidence. We have held that when one proceeds, after the denial of such a motion, to introduce proof, he waives the error of the court in failing to grant same. Grooms v. Neff Harness Co., 79 Ark. 401, 96 S. W. 135, Ft. Smith Cotton Oil Co. v. Swift and Co., 197 Ark. 594, 124 S. W. 2d 1. This is the only motion that appellant can have reference to, for it did not renew the motion at the conclusion of all the evidence. As stated in Wigmore on Evidence, Volume 9, Third Edition, one “cannot take advantage of the judge’s original erroneous refusal to direct a verdict for insufficiency at the time of the first motion if he does not renew the motion at the close at all the evidence. ’ ’ The reasoning employed, is, of course, apparent, for if one has waived his original motion, and does not renew same, there is nothing to be passed upon by the court at the conclusion of the evidence. No error could have been committed by the court at this point — for nothing was presented.

There is yet another reason why this point cannot be considered. In Rock-Ola Manufacturing Corp. v. Farr, 226 Ark. 279, 290 S. W. 2d 2, this court said,

“Appellant’s abstract does not show that any proper motion or objections were presented to the trial court to raise, here, the question of the sufficiency of the evidence to support the jury’s verdict.
“No instructions or objections thereto and no motion for an instructed verdict at the close of the testimony were shown. Thus, appellant allowed the issues to be presented to the jury without making any objection. Not only did appellant alloiv the fact issues to be presented to the jury, but, by reference to the record [not abstracted], we find appellant reguested instructions [given by the court] on the questions of fraud and breach of warranty. By such action appellant waived the question of the sufficiency of the evidence.”

In the instant case, as pointed out, no request for directed verdict was made at the conclusion of all the testimony; appellant did request several instructions, and five were given, as requested, relating to the question of negligence. In Rock-Ola Manufacturing Corp. v. Farr, supra, this court, likewise, said,

“We note further however, it was held in the Clayton case, supra, and in Missouri Pacific Railroad Com pany et al., v. Lamb, 195 Ark. 974, 115 S. W. 2d 864, that even where no motion for an instructed verdict was requested, the point could be raised in a motion for a new trial which questioned the sufficiency of the evidence. That rule is of no avail to appellant in this case however because no motion for a new trial was made. Act 555 of 1953, Section 11, permits but does not require a motion for a new trial. Section 21 of said Act does require an aggrieved party to ‘. . . make(s) known to the court the action which he desires the court to take . . .’ This was not done by appellant in this instance.”

Nor was it done in this instance.

Appellant contends that reversible error was committed by the trial court in giving Plaintiff’s Instruction No. 6. That instruction reads as follows:

“You are instructed that the defendant nursing-home is under a duty to exercise such reasonable care for the protection and well being of the patients as the patient’s known physical and mental condition requires, and, must exercise such reasonable care as is required by the patient’s condition as should have been determined by such nursing home in the exercise of ordinary care, and such care to the patient must be in proportion to the patient’s inability to look after his own safety and well being. This duty of care extends to safeguarding patients from dangers due to his own mental incapacity.
‘ ‘ Thus, if you find the defendant, Granite Mountain Rest Home, Inc., knew that the plaintiff deceased, Harley Lucian Hall, Sr., was mentally defective, if at all, as to need close supervision and that the defendant failed in its duty to give such supervision and care, and that such failure, if any, constituted negligence and was the cause of Harley Hall, Sr., death, then you are instructed to find for the plaintiff.”

•The attack on the instruction is directed to the italicized portion. Appellant contends this phrase told the jury that the home did not exercise ordinary care in determining the patient’s condition, and further asserts that the instruction actually makes a finding of negligence on the part of appellant. We do not agree. It is true that the instruction is awkwardly worded, but no specific objection was made. Appellant made only a general objection, and the instruction is not inherently erroneous. We think the court was, in effect, saying, “and must exercise such reasonable care as is required by the patient’s condition as that condition should, in the exercise of ordinary care, have been determined by such nursing home.” In our view, this language means the same as that used by the trial court. At any rate, the complaint made cannot be reached by a general objection.

Error is also alleged in the giving of Plaintiff’s Instruction No. 9. Here, it is contended that there was no evidence to support the instruction, but again, only a general objection was made. The instruction is not inherently erroneous. Appellant’s contention (relative to the lack of evidence), would have been entirely suitable in arguing that a verdict should have been directed (if such a motion had been made at the conclusion of the evidence), but, in questioning the instruction, a specific objection was necessary.

For the reasons herein set forth, we find no merit in any of the points asserted by appellant for reversal.

Affirmed.

Mr. Justice Holt not participating.

       Hall also received a personal welfare check of $5.00 per month for his personal use.

       Emphasis supplied.


author: Ed. F. McFaddin, Associate Justice.

text:
    Beaty v. Gordon.
    5-2886
    364 S. W. 2d 311
    Opinion delivered February 4, 1963.

      Eddy <& Eddy, for appellant.

      Gordon & Gordon, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a boundary line dispute between neighbors, and is here on both direct and cross appeal.

Mr. and Mrs. Gordon owned their home in Morrilton, and their property had a frontage of 95 feet on Griffin Street; and Mrs. Emma Lee Beaty owned a vacant lot, having a frontage of 60 feet on Griffin Street, and being immediately north of and adjacent to the Gordon property. In 1959 Mr. and Mrs. Beaty decided to build their home on the vacant lot; but there was no definite marking of the boundary line and no legal survey had been made. Mr. Beaty and three others were to construct the Beaty home, and Mr. Beaty consulted with Mr. Gordon about the division line. From that conversation, Mr. Beaty thought his foundation was being laid five feet north of the Gordon property line. After the Beaty home was completed and occupied, and this dispute arose as to the boundary, the Beatys, in August, 1961, had a survey made by Mr. Ragsdale, a civil engineer; and he reported that the foundation of the Beaty home was six or eight inches north of the Gordon north line.

Because of further dissension between the neighbors, Mrs. Beaty filed suit against the Gordons to quiet her title to the property she claimed. The Gordons cross complained, alleging that the eaves of the Beaty home actually extended over the Gordon property line; and they prayed:

“. . . that the Court compel the plaintiff to move her house five feet North of the boundary line separating the plaintiff’s property from the defendants’ property, and that the Court award the counterelaimants the sum of $1,000.00 for the unlawful trespass on defendants’ property, and for all other equitable relief to which they may be entitled.”

A new survey made by Mr. Ragsdale seemed to indicate that the eaves of the Beaty home extended over the property line. After a lengthy trial, and a personal inspection by the Chancellor, the Chancery Court found that the eaves of the Beaty roof actually extended six inches over the property line and thereby damaged the Gordon’s property $1,000.00. But the Chancery Court refused to require the Beatys to remove the roof encroachment because of the expense involved and because the Gordons had allowed the encroachment to be made. On her direct appeal Mrs. Beaty makes these points:

(A) The Parties made a Binding Agreement as to the Location of the Boundary Line Before Plaintiff Began Construction of Her House.

(B) The South Line of the Plaintiff’s Property has been Established by Acquiescence for Over 20 Years.

(C) No Damages Were Proved by Defendants.

(D) Defendants Are Estopped to Claim Any Damages.

On the cross appeal Mrs. Gordon claims that she is entitled to a mandatory injunction to compel Mrs. Beaty to remove the encroachment at all events; and Mrs. Gordon also contends that, because of the building code of Morrilton, Mrs. Beaty’s wall and foundation must be moved five feet from the property line.

So much for the history of the litigation and the issues. The learned Chancellor, in an evident effort to restore harmony between these neighbors, entered a decree whereby Mrs. Beaty would not be required to remove the encroaching eaves, but in lieu thereof would pay Mrs. Gordon $1,000.00 as damages. Such would have been a good settlement, but neither party was satisfied and the case comes to us on both direct appeal and cross appeal.

1. The Cross Appeal of Mrs. Gordon. We hold that the cross appeal of Mrs. Gordon is determinative of the litigation. The overwhelming weight of the evidence supports the Chancellor’s finding that the eaves of the Beaty house actually encroached on the Gordon property; and, under our cases, such encroachment, even though small, should be abated. We have repeatedly held that the doctrine of de minimis non curat lex has no application where real estate is involved. Fulks v. Fredeman, 224 Ark. 413, 273 S. W. 2d 528. In Leffingwell v. Glendenning, 218 Ark. 767, 238 S. W. 2d 942, it was held that the owner of a lot, whose contractor inadvertently built a retaining wall separating adjacent property, was under legal compulsion to remove a protrusion varying from a fraction of an inch to nearly four inches, over a distance of twenty-six feet. In Jernigan v. Baker, 221 Ark. 54, 251 S. W. 2d 999, the eaves of the offending* house extended over the building line (as fixed by bill of assurance, rather than municipal ordinance); and, in ordering the removal of the encroachment caused by the eaves, we said: “No one could seriously argue that eaves are not a part of the attached building, and in the instant case a projection of. more than three and a half feet constituted an invasion of the area Jernigan had every cause to believe would always remain unobstructed. It follows that a mandatory injunction requiring removal should have been given.”

To overcome the effect of these holdings, Mrs. Beaty urges: (a) that the line had been fixed by acquiescence-over many years; and (b) that Mr. Gordon agreed to the boundary line. The Chancery Court found the preponderance of the evidence to be contrary to these contentions; and we agree. The line had never been established, so there could have been no “acquiescence.” Mr. Gordon was old and feeble and had no authority from Mrs. Gordon to bind her to a boundary line agreement; and Mrs. Gordon offered a reasonable explanation as to why she delayed a very short time in objecting to the Beaty foundation: her son was a civil engineer and had to come from Kansas to survey the line and advise his mother. It must be remembered that Mrs. Beaty instigated this litigation by invoking the aid of equity to quiet her title; yet Mrs. Beaty admitted that no legal survey was made prior to construction. The burden was on Mrs. Beaty to be diligent in making a survey before she could ask equity to declare an estoppel against Mrs. Gordon for a short delay in protesting. For these reasons, language contained in Hamilton v. Smith, 212 Ark. 893, 208 S. W. 2d 425, is not applicable to the case at bar.

The Chancery Court should have ordered the removal of the encroachment of the eaves of the Beaty house, insofar as the eaves extended over the Gordon property line. Mrs. Gordon insists that the Beaty house should be moved five feet from the property line; but we do not agree that Mrs. Gordon has sustained her position to that extent. In Jernigan v. Baker, 221 Ark. 54, 251 S. W. 2d 999, the landowner had the benefit of a bill of assurance under which he could seek relief. In the case at bar, there is only a city ordinance of Morrilton. The City is not a party to this suit, and may have agreed to the Beaty construction, or may now be bound by it; so we cannot consider here the alleged violation of the ordinance. With the cross appeal of Mrs. Gordon granted to the extent herein stated, it follows that Points A, B, and D, urged by Mrs. Beaty (as previously listed), are decided adversely to her.

II. Damages. The Trial Court awarded Mrs. Gordon $1,000.00 damages because the eaves of the Beaty house would continue indefinitely to encroach on the Gordon property. Even assuming that the evidence as to such damages was sufficient to support the award, nevertheless the encroaching eaves are to be removed, so the amount of damages awarded must also be reversed.

CONCLUSION

To the extent herein stated, the decree is reversed on both direct appeal and cross appeal; and the cause is remanded with directions to the Chancery Court to enter a decree and have further proceedings in accordance with this opinion. All costs are assessed against appellant.

       The city building code of Morrilton required an interval between tlie building and the property line, and the building inspector advised Mr. Beaty that the distance was five feet.

       The Gordon property was owned by entirety; shortly after the trial below Mr. Gordon died, and the cause has been revived as to his estate because of the $1,000.00 judgment.


text:
    Wagnon v. Barker.
    5-2896
    364 S. W. 2d 314
    Opinion delivered February 4, 1963.

      Sexton & Morgan, for appellant.

      Hardin, Barton & Hardin, for appellee.
   George Rose Smith, J.

This is an action by K. B. Wagnon and his wife for damages sustained in a traffic collision between their car and that of the appellee, T. C. Barker. Mrs. Wagnon was injured and the Wagnon car was damaged. Submission of the case to the jury, without interrogatories, resulted in a general verdict for the defendant. For reversal the Wagnons question the sufficiency of the evidence and the court’s action in giving and refusing instructions.

The Wagnons owned their car jointly. At the time of the accident Mrs. Wagnon was being driven upon a shopping trip by her granddaughter, Sally Ann Bercher, in circumstances from which the jury were justified in finding that Mrs. Bercher was acting as her grandmother’s agent. This question of agency was submitted to the jury; we must assume that it was resolved against the appellants.

Just before the collision Barker had been parked, facing south, on the righthand side of Towson Avenue, a four-lane street in Fort Smith. Barker pulled away from the curbing, intending to make a U-turn and travel northward. After he had almost cleared the outer right-hand lane, where he had been parked, and was about three-fourths of the way across the inner lane, his engine died. Barker tried to start his ear, but it seemed to be flooded. He first saw the Wagnon automobile, approaching from the south, when it was about a block away. It appeared to Barker that Mrs. Bercher didn’t see him: “She was just coming too fast to stop, and it looked like she didn’t even see me there.” Barker stated that his car had been standing still in the street for ‘£ quite a while” before Mrs. Bercher applied her brakes. The Wagnon car left 72 feet of heavy skid marks and struck the Barker vehicle with great force, throwing Mrs. Wag-non into the windshield.

Mrs. Bercher admitted candidly that she did not see Barker’s car “until it was just too late. When I looked up he was in my lane, and I slammed on the brakes and went into him, and I couldn’t stop.” On cross-examination she confessed that she had not seen where Barker came from; he was already stopped when she first saw his car in her path.

Giving the evidence its strongest force in favor of the verdict, we think it plain that there is substantial proof to support a finding that Mrs. Bercher’s negligence was at least equal to that of Barker. (The jury could well have believed that if Mrs. Bercher had been traveling at a lawful speed and had been keeping a proper lookout she would have seen Barker in ample time to have stopped before reaching his car.) Under our comparative negligence act the plaintiffs were not entitled to recover if the negligence of their agent equaled or exceeded Barker’s negligence. Ark. Stats. 1947, § 27-1730.2.

It is now argued by the appellants that Mr. Wag-non, at least, should recover his share of the property damage, since Mrs. Bercher was his wife’s agent, not his. Had this contention been urged in the trial court the jury might have found that Mrs. Wagnon had implied authority to bind her husband in the selection of a driver for the family car. But this contention was not made below. To the contrary, the plaintiffs, by their requested instruction No. 2, asked the court to submit as an issue of fact the question of Mrs. Bercher’s agency for both the Wagnons, and that issue was actually submitted by the court’s instruction No. 4. A party who requests the submission of an issue of fact is not in a position to contend that no such issue existed. The Home Company v. Lammers, 221 Ark. 311, 254 S. W. 2d 65.

The court’s instruction No. 4 is challenged upon two grounds, but neither of the defects now urged was mentioned in the single specific objection that was made in the court below. There was no general objection. We have repeatedly held that when a party makes only a specific objection to an instruction he waives all other objections. Southern Anthracite Coal Co. v. Bowen, 93 Ark. 140, 124 S. W. 1048; Southern Bauxite Co. v. BrownPearson Cash Feed Store, 172 Ark. 117, 288 S. W. 377; Coca-Cola Bottling Co. of Blytheville v. Doud, 189 Ark. 986, 76 S. W. 2d 87: The opinion in Trumbull v. Martin, 137 Ark. 495, 208 S. W. 803, indicating that an unfounded specific objection may be treated in this court as a general objection, is contrary to our cases both before and after that decision and cannot be regarded as a correct statement of the law.

The court properly refused the plaintiffs’ instructions No. 4 and No. 5. The former would have been abstract and confusing to the jury, in that it embodied a number of traffic rules that were of no importance in this case. It mentioned, for example, a driver’s duty to signal for a turn during the last 100 feet before turning. But Mrs. Bercher admittedly was not looking ahead and did not even see the Barker automobile; so it is plain that whether Barker gave a signal was immaterial.

Instruction No. 5 would have told the jury that neither the owner of a car, nor a passenger, is liable, merely because of the relationship, for the, negligence of the driver. Liability on account of negligence was covered by the instructions that were given. We are wholly unwilling to order a new trial simply because the court refused to give a negative charge setting out matters that counsel were at liberty to argue to the jury upon the basis of the instructions that were actually given.

Affirmed.