author: Jim Johnson, Associate Justice.

text:
    Williams v. Clark.
    5-3320
    382 S. W. 2d 366
    Opinion delivered October 5, 1964.

      Wright, Lindsey, Jennings, Lester & Shults and Thomas E. Sparks, for appellant.

      L. Weems Trussell, for appellee.
   Jim Johnson, Associate Justice.

This is an action for damages for personal injuries sustained in one of a chain of automobile rear end collisions.

On November 10, 1962, appellee Faye V. Clark was a passenger in an Oldsmobile automobile being driven by her husband on Highway 71 in Washington County. They and their two passengers were en route to a football game in Fayetteville. Ahead of the Oldsmobile was a Pontiac being driven by Mr. Samuel Campbell; behind was a Cadillac driven by appellant Garland Williams. Several cars ahead in the line of traffic came to a stop, as did Mr. Campbell. Mr. Clark braked sharply, but skidded into the rear of Campbell’s Pontiac. Immediately after this collision Clark’s Oldsmobile was struck from the rear by Williams’ Cadillac. Appellee, riding in the front seat of the Oldsmobile, was thrown forward on her knees, her right foot twisted underneath her. About March 28,1963, appellee filed suit in Dallas Circuit Court against appellant, three occupants of appellant’s car and Mr. Campbell, owner of the Pontiac ahead. Trial was had on August 29, 1963, at which time the court directed a verdict in favor of all the defendants other than appellant, leaving appellee and appellant as the only parties to the suit. Appellant’s motions for a directed verdict as to him were denied, and the jury subsequently returned a verdict for appellee in the sum of $25,000.00, for which sum judgment was entered. Appellant has appealed urging that (1) the court erred in refusing to grant his requests for a directed verdict, and (2) the verdict was grossly excessive.

Appellant moved for a directed verdict at the close of appellee’s case and again at the conclusion of all the evidence, both of which motions were denied. In Smith v. McEachin, 186 Ark. 1132, 57 S. W. 2d 1043, the canon on directed verdicts was pronounced with such clarity that it will bear repeating again:

"It is a rule .of universal application that, where the testimony is undisputed and from it all reasonable minds must draw the same conclusion of fact, it is the duty of the court to declare as a matter of law the conclusion to be reached; but, where there is any substantial evidence to support the verdict, the question must be submitted to the jury. In testing whether or not there is any substantial evidence in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in tlie light most favorable to the party against whom the verdict is directed, and if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair-minded men might draw1- different conclusions therefrom, it is error to direct a verdict.”

In the case at bar there was testimony of quite a few' eyewitnesses, passengers and drivers of at least four cars, including appellant and appellee. Appellant’s contention is that appellee was probably injured when her husband collided with the vehicle ahead of his, and that appellee failed to produce any substantial evidence to discharge appellee’s burden of proving that she was injured as a result of appellant’s negligence. Appellee’s testimony was that when her husband hit the Pontiac ahead, she was thrown or slid forward to her knees, and that when appellant’s Cadillac hit appellee’s Oldsmobile from the right rear causing the rear of the Oldsmobile to svTing out across the center line of the highway, it “threw' me and jarred me around and turned my ankle under me.” Testimony of the driver of the Pontiac, Mr. Campbell, states that he was driving in the right hand lane, the Oldsmobile behind him, which hit him ‘ ‘ square across the rear end.” Testimony of others corroborate that the Oldsmobile was in line behind the Pontiac, hit it squarely from the rear in the first collision after laying dowrn some twenty feet of skidmarks from braking, and in the second collision the rear of the Oldsmobile was knocked or pushed sideways across the center highway line, snapping the car around. There was testimony that appellant was following the Oldsmobile more closely than wras prudent considering the traffic and its speed, failed to exercise ordinary care in avoiding collision with the car in front, failed to keep a lookout and keep his automobile under reasonable control as to be able to check its speed or to stop, that he didn’t brake his car but tried to pull into the left lane and while doing so struck the Oldsmobile, knocking it sideways across the highway. All of this is controverted, of course, but this and other evidence in the record, submitted to the test of Smith v. McEachin, supra, convinces us the question of whether appellant was negligent and, if so, whether his negligence was a proximate cause of appellee’s injuries was properly a jury question. Thus the trial court did not err in refusing to direct a verdict for appellant.

Appellant’s second argument is that the verdict of the jury was grossly excessive.

In a recent case, Beggs v. Stalnaker, 237 Ark. 281, 372 S. W. 2d 600, this court reiterated its rule relative to damages as follows:

“ ‘Under oúr well established rule the amount of recovery in these personal injury cases is for the jury’s fair determination and when supported by substantial testimony we do not disturb the verdict unless it is shown to have been influenced by prejudice and so grossly excessive as to shock the conscience of the court.’ Grandbush v. Grimmett, 227 Ark. 197, 297 S. W. 2d 647.”

In addition to the testimony of appellee about the injury to her foot and ankle, its continued duration, the later inversion of her foot requiring a special cast and still later orthopedically-corrected shoes, the pain, swelling and discomfort she has continued to have, the irritability, tension and depression apparently resulting from the trauma of the accident, appellee and her husband testified how her injuries prevented appellee from performing many of her duties in their business and at home. He also corroborated her testimony about her physical and emotional damage. Three doctors testified on behalf of appellee. A Little Rock orthopedist testified that appellee had a permanent residual disability of 25% of the foot and ankle as a result of the severe mid-tarsal joint sprain, possible fracture and severe ligamentous injury. Appellee’s family doctor testified that the permanent disability would be from 25% to 35% and that he was. “more inclined to 35% that while he was not qualified to testify about personality changes, appellee was more upset and nervous since the accident, suffered from agitated depression, had required various tranquilizers and on occasions sleeping tablets, and had lost 15 pounds in a two-month period following the collision. A Little Rock neurologist testified that from his examination and history, appellee had some predisposition toward acute' chronic depression prior to the accident, that a chronic depressing reaction with anxiety was precipitated by the accident and, based upon his experience in the field of neurology, that these acute episodes of depression would tend to grow in severity in the future and should require treatment.

Appellant offered no medical or other testimony in contravention of appellee’s damages.

“We cannot measure human suffering in dollars and ce'nts, but we have in numbers of cases held that it entitled .the sufferer to ¿ substantial recovery in damages.” Gaster v. Hicks, 181 Ark. 299, 25 S. W. 2d 760. While we as jurors might not have concurred with the verdict here returned, our province on appeal is confined to a determination of whether the amount of the verdict resulted from passion or prejudice or was so grossly excessive as to shock the conscience of the court. In order to preserve the sanctity of the jury system it has been wisely determined that juries have the same right to pass upon the question of the amount to be awarded as compensation for an injury that they have to pass upon the question of liability for the injury; and we may not set aside a verdict in either case where it is supported by subsantial testimony. Phillips Motor Company v. Rouse, 202 Ark. 641, 151 S. W. 2d 994.

Finding no error, the judgment is affirmed.

G-eorge Rose Smith, J., and Robinson, J., think the verdict is excessive.


source: Caselaw Access Project

author: Frank Holt, Associate Justice.

license: Public Domain

text:
    Mo. Pac. R.R. Co. v. Harelson.
    5-3309
    382 S. W. 2d 900
    Opinion delivered October 5, 1964.
    [Rehearing denied November 9, 1964.]

      William J. Smith and Ben Allen, for appellant.

      Gordon & Gordon, for appellee.
   Frank Holt, Associate Justice.

Tire appellee, Willie Harelson, brought this action against the appellants, Missouri Pacific Railroad Company, and its employees, W. E. Parsall, F. E. Matthews, and A. J. Hanson, to recover damages for personal injuries he sustained in a spur track crossing accident. The appellants denied the various allegations of negligence and pleaded the defense of contributory negligence. Upon interrogatories a jury found the issues in favor of the appellee and awarded him damages in the amount of $12,500.00. On appeal from this judgment the appellants first contend that their motion for a directed verdict should have been granted.

The collision occurred at the crossing of a street and a railroad spur track. The paved street runs north and south. The spur track runs east and west. They intersect at right angles. At the time of the accident there was a large sheet metal building located at the southwest corner of the intersection. There was evidence that this building was six to fourteen feet west of the street and somewhat less than six feet south of the spur track thus .creating a “blind” corner. The train engine had proceeded west across this intersection upon some business property where two box cars were coupled onto the front end which was about one hundred feet from the crossing. The engine, with brakeman Duty and appellants, engineer Matthews and fireman Hanson aboard, was backed into the spur track crossing as appellee came upon it. The appellee, with six passengers, was driving north toward this crossing a few minutes after leaving their work at 4:00 P.M. It was a cold day, the pavement was covered with snow and ice, the car windows were up and the car heater operating. The windshield and windows permitted a clear and unobstructed view. The appellee testified that he was looking straight ahead and that it was impossible for him to see to his left or the west until he was even with the north end of the metal building which was blocking his view. He was corroborated by the other occupants of his car. He testified that he did not notice the presence of the engine backing into the crossing until his brother discovered it just as he drove upon the track. The engine struck the left front door of his automobile and carried it down the spur track approximately thirty feet. Appellee was driving approximately ten miles per hour as he entered the spur track crossing. The engine was traveling approximately three or four miles per hour. No one was on the rear end of the engine as it backed into the crossing. The engineer and fireman were in their regular positions near the front of the engine. The brakeman was on the front end of the engine where the cars were coupled.

The fireman, appellant Hanson, was the only crewman who observed the accident. He testified that he was keeping a lookout from his position which was about thirty feet from the lead or rear end of the fifty-foot-long engine; that as they backed into the crossing his view was blocked by the building; that he first saw appellee’s car when it was about six feet from the track and as the rear end of the engine entered the crossing; that he then gave a -warning to the engineer who applied the emergency brakes before striking the car. There were no signs of any kind maintained at the crossing and no bell was ringing since it was frozen. According to appellee’s evidence no whistle was heard to blow. For many years appellants had stationed a flagman at this crossing to warn the public during such switching operations. Appellee and the occupants of his car were accustomed to the presence of a flagman since they had traveled this street and crossing for many years going to and from their employment.

The appellants submit that the appellee, in failing to look or listen, was guilty of contributory negligence etpual to or greater than that of appellants and, therefore, the court should have granted appellants’ motion for a directed verdict. We cannot agree. The failure to look and listen is not always negligence as a matter of law nor an absolute duty. In the early case of Martin v. Little Rock & Ft. S. Ry. Co., 62 Ark. 156, 34 S. W. 545, we recognized there was no absolute duty to look and listen without any exception. There we said:

“We do not hold in every case where a traveler fails to look and listen, and is injured by a train while crossing a railway track, the case should be taken from the jury. It is only where it appears from the evidence that he might have seen had he looked, or might have heard had he listened, that his failure to look and listen will necessarily constitute negligence. ’ ’

See, also, St. Louis I. M. & S. Ry. Co., v. Hitt, 76 Ark. 224, 88 S.W. 911; Tiffin v. St. L. I. M. & S. Ry. Co., 78 Ark. 55, 93 S.W. 564; Chitwood v. St. Louis I. M. & S. Ry. Co., 104 Ark. 38, 148 S.W. 278; and 44 Am. Jur., Railroads, § 546 et seq.

Furthermore, in the case at bar we think the practice of stationing a flagman at the crossing, to which appellee was accustomed for many years, gave him the right to rely upon the presumption that the track was clear. Railway Company v. Amos, 54 Ark. 159, 15 S.W. 362. On this subject see 71 A.L.R. 1160.

Where fairminded men can honestly differ as to the existence of either negligence or contributory negligence, it is not a question of law. It is a question of fact to be settled by a jury. St. Louis I. M. & S. Ry. Co., v. Hitt, supra.

In the case at bar we think the facts are such that fairminded men could differ in their conclusions as to the existence of either negligence or contributory negligence of the parties. The question was properly submitted to the jury for its determination.

The appellants next contend that the court erred in submitting to the jury instructions relating to the maintenance of a lookout. Appellants particularly complain that the word “defendants” is used in Instruction No. 2. This instruction was given in the language of the statute. Ark. Stat. Ann. § 73-1002 (Supp. 1963). The duty to keep a lookout may be discharged by a single member of a train crew provided such person is in a position to do so efficiently and effectively. The duty is not imposed upon all members of the train crew. St. Louis S. W. Ry. Co., v. Cone, 111 Ark. 309, 163 S.W. 1170; Taylor v. St. Louis I. M. & S. Ry. Co., 116 Ark. 47, 171 S.W. 1182.

In Kelly v. DeQueen & Eastern Ry. Co., 174 Ark. 1000, 298 S. W. 347, we said:

"We think the law requires the railroad company to keep an efficient lookout, and if the person on the train is so situated that it is irnpossible to keep a lookout to ascertain whether persons are in danger of being hit by moving the cars, it would then be the duty of the railroad company to keep such a lookout as would discover persons that might be hit by the moving of the train.” Certainly it was a question for the jury, in the case at bar, under proper instructions, to determine whether the appellants had met this test. As the engine was backing into the crossing the engineer was on the north side of the engine maintaining a lookout in that direction. It was impossible for him to see apxoellee approaching from the south. The brakeman, Duty, was riding the front end of the engine approximately fifty feet from the rear end. The fireman, Hanson, was the only employee of the railroad Avho could possibly see apx>ellee as he axoproached the crossing from the south. Hanson’s position Avas thirty feet from the rear end of the engine as it backed into the crossing. The large building blocked his vieAV to the south. We are of the view there Avas substantial evidence justifying the submission to the jury the questions whether an efficient and effective lookout was being kept and whether the accident could have been averted by keeping such a lookout. The jury could have believed that had the engineer received an earlier Avarning the train could either have been stopped or slowed sufficiently to avoid the collision. The questions pertaining to a lookout were correctly submitted to the jury under proper instructions.

Appellants contend that the court erred in refusing to give their requested Instruction No. 26A. This instruction follows Ark. Stat. Ann. § 75-637 (Supp. 1963) defining the duty of a traveler to stop at a railroad crossing. We think that appellants’ Instructions Nos. 17 and 18, which were given by the court, fairly presented appellants ’ theory of the case on this issue. These instructions defined the duty of a traveler approaching a railroad crossing, as Avell as his duties Avhen obstructions, noises, or other conditions prevent effective looking and listening. It is not error to refuse to give an instruction upon a subject adequately covered by instructions already given. Tiffin v. St. Louis I. M. & S. Ry. Co., supra; Pine Bluff & S. W. Co. v. McCaskill, 88 Ark. 177, 114 S. W. 208: Nuckols v. Flynn, 228 Ark. 1106, 312 S. W. 2d 444.

Finally appellants urge that the verdict of $12,500.00 is excessive. The appellee suffered an injury to his left shoulder. He continued his employment as an “oiler” although he was relieved of any duties requiring use of his left arm for six weeks at which time he resumed his regular duties. His duties mainly require oiling machinery and no heavy lifting is necessary. The uncontradicted medical evidence is that there is a rotator cuff tear in appellee’s left shoulder resulting in a ten per cent permanent partial disability to the body as a whole; that upon movement of the shoulder there is a grating noise in the joint and pain results; that appellee cannot move his left arm above shoulder level without pain and this limited motion appears permanent; that injections of cortisone have to be made with a two and one-half inch needle into the tenderest spot of the shoulder joint to control inflammation; that the necessity of this injection may be expected to continue about every five weeks the rest of his life at a cost of $8.00 per. injection. Appellee was fifty-three years of age at the time of the injury with a life expectancy of 19.19 years and was earning $11.50 per day on the date of the trial. The medical bill was $279.00. The undisputed testimony is that appellee had worked for approximately twenty-six years in his present employment and that because of his injury he had to refuse a promotion in his work. This proffered job would have paid him $2.00 more per day. This was a proper element of damages for consideration. Hines v. Patterson, 146 Ark. 367, 225 S. W. 642; Clark Lbr. Co. v. St. Coner, 97 Ark. 358, 133 S. W. 2d 1132; St. L. I. M. & S. Railway Co. v. Sweet, 60 Ark. 550, 31 S. W. 571. In view of the diminution of appellee’s earning capacity, the pain and suffering endured, and to be endured during the remainder of his life, his attendant medical expenses, and his permanent partial disability, we cannot say that the verdict of the jury is excessive.

Finding no reversible error, the judgment is affirmed.


author: Ed. P. McFaddin, Associate Justice.

text:
    Ballard v. Beard.
    5-3318
    382 S. W. 2d 593
    Opinion delivered October 12, 1964.

      E. V. Trimble, for appellant.

      Gochrill, Laser, McGehee & Sharp, for appellee.
   Ed. P. McFaddin, Associate Justice.

This appeal is an effort to have an instrument admitted to probate as the last will and testament of Ethel Bell Beard. The appellant is one of the beneficiaries under the alleged will, and appellee is the surviving husband of the deceased.

Ethel Bell Beard died April 5, 1963. Seven days later an instrument was admitted to probate as her last will and testament. On April 23, 1963, Leroy Beard, surviving husband of the deceased, filed this petition praying that the, probate order be set aside. On September 3, 1963, the Probate Court heard the contest; and set aside the order of probate, finding that Ethel Bell Beard died intestate. Prom the said order of September 3rd there is this appeal; and the points of appellant’s argument are:

“1. That it will be presumed, in the absence of contrary evidence, that will was executed in compliance with all requirements of law.
“2. That the Court errored in permitting witnesses to give parole testimony to vary the written instrument that they signed.
“3. That the Appellee has not sustained the burden of proof required for nullifying the genuineness of the Will.”

We consolidate and consider the appellant’s points together. The evidence offered to the Court at the hearing on April 12, 1963, when the will was admitted to probate, was the usual form of ‘ ‘ proof of will, ’ ’ and was as follows:

“PROOF OF WILL
“We, C. Washington, and Willie Williams, on oath state:
“We are the subscribing witnesses to the attached written instrument, dated September 11, day of 1963, which purports to be the last will of Ethel Bell Beard, deceased. On the execution date of the instrument the testatrix, in our .presence, signed the instrument at the end thereof, or acknowledged her signature thereto, declared the instrument to be her will, and requested that we attest her execution thereof; whereupon, in the presence of the testator each of us signed our respective names as attesting witnesses. At the time of execution of the instrument the testatrix appeared to be eighteen years of age or older, of sound mind, and acting without undue influence, fraud or restraint.
“DATED this 11th day of April, 1963.
‘ /s/ Willie Williams
“/s/ Cleouphs Washington
“STATE OF ARKANSAS COUNTY OF PULASKI
Subscribed and sworn to before me this 11th day of April, 1963. /s/ Alice S. Trimble, Notary Public (SEAL).”

At the trial on September 3, 1963, each of the alleged attesting witnesses to the will — i.e., Cleouphs Washington and Willie Williams — testified against the proof of will and also against the attestation of the will. Regarding the “proof of will,” Cleouphs Washington testified that he merely signed a paper that some man brought to him; that he never swore to the paper; and that he was not in the presence of the alleged notary at any time. Willie Williams testified that no notary public was present when he signed the paper; that he was never sworn; and that he did not know what the paper was. The Notary Public whose name appears on the proof of will was not called to testify as a witness to refute the testimony of the witnesses, Washington and Wil-. liams, or to show that the Notary did administer any oath to either of them. So the ‘ ‘ proof of will, ’ ’ on which the initial probate was based, stands entirely impeached; and the Court was correct in setting aside the probate of a will where due proof had never been made.' ■ •

We come then to the testimony of Washington and Williams as to the attestation of the proffered will; and each of them testified against the validity of the instrument. The will — the original of which is before this Court — was a typewritten instrument prepared by a person who was not a lawyer. The first page of the will concludes with the signature of the alleged testatrix; and the entire attestation is on a second and separate page. Cleouphs Washington testified that Zola McG-uire brought the attestation page to him at his home and asked him to sign it, telling him that Ethel Bell Beard was in the hospital and wanted him to sign the page; and that he signed it under those circumstances. He testified that when he signed the page only he and Zola McG-uire were present; that he never saw Ethel Bell Beard or Willie Williams sign any instrument of any kind at any time; and that Ethel Bell Beard never at any time asked him to sign as a witness to her will. Willie Williams testified that Zola McGuire brought a paper to him at his home and asked him to sign it, claiming it related to some out-of-town property; that he wrote his name; that only he and Zola McG-uire were present; that he never saw Ethel Bell Beard sign her name; that she never asked him to witness any instrument; and that Cleouphs Washington was not present when he signed the said papér for Zola McGuire. While there was some slight contradiction to the testimony of these witnesses, yet, in the main, their testimony stood up against vigorous cross-examination. A significant fact is that Zola McGuire did not testify.

The appellant insists that the Court should not have allowed Washington and Williams to testify in disparity of the proof of will or against the attestation of the will; but we hold that they were competent to so testify, even though their testimony under such circumstances is viewed with suspicion. In Leister v. Chitwood, 216 Ark. 418, 225 S. W. 2d 936, we quoted from Rogers v. Diamond, 13 Ark. 474, and from Anthony v. College of the Ozarks, 207 Ark. 212, 180 S. W. 2d 321; and then used this language:

“The situation, as here, where one of the subscribing witnesses denies the existence of certain facts necessary for legal execution of a will, is discussed in 2 Page on Wills (Lifetime Ed.), § 758. There it is stated: ‘The testimony of the subscribing witnesses which denies the performance of one or more of the facts which are necessary to the validity of the will is, at best, to be received with caution, and to be viewed with suspicion .. .
“The subscribing witnesses are especially discredited where they testify in favor of the will at probate and against it at contest; or where they hesitate and evade before denying the validity of the execution of the will’ (page 473).”

Likewise, in Bruere v. Mullins, 229 Ark. 904, 320 S. W. 2d 274, we recognized the general rule that attesting witnesses may testify against the validity of the will, even though their testimony is viewed with suspicion. Cases generally are to the same effect. See 57 Am. Jur. p. 585, “Wills” § 881; annotation in 79 A. L. ft. 394 entitled, “Admissibility and credibility of testimony of subscribing witness tending to impeach execution of will or testamentary capacity of testator.” See Page on Wills (Bowe-Parker Rev.) Yol. 3, § 29.24.

When we hold — as we do — that the attesting witnesses to the will were not disqualified from testifying against the validity of the will, we have decided all of appellant’s points, because, with the testimony of the attesting witnesses in the record, the great preponderance of the testimony is against the validity of the will. The Probate Court was correct in so holding.

Affirmed.

       He alleged, regarding the instrument: “(a) It is not duly executed, witnessed or attested by two or more credible witnesses in the presence of each other and in the presence and at the request of the decedent; . .

         Here is the text of the order challenged on appeal: “Now on this day this cause comes on to be heard, petitioner Leroy Beard, appearing by his solicitor, Abner McGehee, and Dora King, Executrix of the Estate of Ethel Bell Beard, appearing in person and by her solicitor, Edward Y. Trimble, the same is submitted to the Court upon the petition to contest probate of will, testimony of witnesses and exhibits thereto, from all of which the Court doth find:
      “1. That the petition to contest the probate of will filed herein was filed within the time allowed by law.
      . “2. That the instrument purporting to be the last will and testament of Ethel Bell Beard which was admitted to probate by this court on the 12th day of April, 1963, was not executed, witnessed or attested by two or more credible witnesses in the presence of each other and in the presence and at the request of the decedent, and that the order admitting said purported will to probate should' be set aside, and Dora King, heretofore appointed executrix of the estate of Ethel Bell Beard, is hereby discharged as executrix of said estate.
      “3. That the decedent, Ethel Bell Beard died intestate. “It is, therefore, by the Court Considered, Ordered, Adjudged, and Decreed that the order admitting an instrument purporting to be the last will and testament of Ethel Bell Beard to probate is hereby set aside, and Dora King is-hereby discharged as Executrix of the Estate’of Ethel Bell Beard and is further ordered to make a complete and final accounting of her actions as such executrix to this court within ten days of the entry of this order; and the Court hereby appoints Leroy Beard, surviving spouse of Ethel Bell Beard, as administrator of her estate and to serve in such capacity without the necessity of bond, and the Clerk of this Court is hereby ordered to issue Letters of Administration to the said Leroy Beard. Dated this 3rd day of September, 1963.”

       Ark. Stat. Ann. § 60-403 (1947) gives the requirements for the valid execution of a will.


author: G-eorge Rose Smith, J.

text:
    Wenderoth v. Baker.
    5-3287
    382 S. W. 2d 578
    Opinion delivered October 12, 1964.

      Harper, Harper, Young'& Hurclen, Warner, Warner, Ragon é Smith, for appellant.

      Mark E. Woolsey, Don Gillespie and Don Langston, for appellee.
   G-eorge Rose Smith, J.

The appellants are residents of Fort Smith, owning homes in the eastern part of the city. The appellees, whom we will refer to as the Commission, are the members and directors of the State Highway Commission, their official residence being in Pulaski county. In 1963 the Commission began the construction of Interstate Highway 540, a four-lane limited-access highway that will pass through the residential district where the appellants live. This suit was brought by the appellants, either as plaintiffs or as interveners, to enjoin the Commission from proceeding with the construction of the highway until adequate security has first been given for the payment of the appellants’ compensable damages. The chancellor dismissed the suit, finding that the proposed construction does not involve any compensable injury to these property owners. That is the 'issue on appeal.

Several different questions are presented. We consider first the case of Mrs. Wenderoth and Mr. and Mrs. Pierce, who complain that as a result of the new highway they will be compelled to travel an added half a mile to reach the Port Smith business district or to take their children to school. These plaintiffs live on Kinkead Avenue, which will be blocked by the new highway at a point a few hundred feet east of their homes. Instead of being able to drive down Kinkead directly to town or to the school they will have to travel to and from an underpass a quarter of a mile north of Kinkead in order to cross the new highway.

Any diminution in property values that may result from an inconvenience of this kind is not compensable. In Risser v. City of Little Rock, 225 Ark. 318, 281 S. W. 2d 949, we rejected a similar claim, pointing out that such damages are not special or peculiar to the complaining landowners. As we said there: ‘‘Every person that travels the street suffers the same inconvenience as the appellants.” Thus the case falls within the rule that “a landowner whose land is not being taken is not entitled to compensation for damage of the same kind as that suffered by the public in general, even though the inconvenience and injury to the particular landowner may be greater in degree than that to others.” Ark. State Highway Comm. v. McNeill, 238 Ark. 244, 381 S. W. 2d 425.

The other appellants, Mrs. Crigler and Dr. and Mrs. Haynes, own homes that are directly across the street from each other on Park Avenne, an east-west street. The new highway, running north and south, will occupy a right-of-way that borders on the western side of these appellants’ lots. The new roadbed will pass under Park Avenue at right angles at a depth of 27 feet. The underpass will he in a cut having sloping sides that furnish lateral support for the Crigler and Haynes lots.

No change is to be made in the grade of Park Avenue, upon which the two homes front and to which their driveways provide access. No part of either lot is being taken. It is insisted, however, that the owners will suffer special compensable damages because their lots will lie along a sloping 27-foot cut instead of along the level ground that formerly existed.

This contention is not well taken. It is not enough for a landowner to show that his damage differs from that suffered by the general public. He must also show either that part of his land has been taken or that a property right has been invaded. Nichols, Eminent Domain (3d Ed.), § 14.1. It must often happen that the value of a city lot is diminished as a result of the condemnation of adjoining property for some distasteful purpose, such as the construction of a city jail. But, as the court convincingly demonstrated in City of Geary v. Moore, 181 Okla. 616, 75 P. 2d 891, this is an injury “for which the law does not, and never has, afforded any relief.”

In the McNeill case, supra, we held that the condemnation of a highway right-of-way alongside a lot in a residential district does not make the State liable for the ensuing reduction in the value of neighboring property. The only difference between that case and this one is that here the highway is to he below the original ground level. A landowner, however, cannot complain because his neighbor reduces the grade of his lot. Holden v. Carmean, 178 Ark. 375, 10 S. W. 2d 865. Thus there is no distinction in principle between the McNeill case and this one. Our holding in Ark. State Highway Comm. v. Partain, 192 Ark. 127, 90 S. W. 2d 968, affords the appellants no support. There the grade of an existing street that bordered Partain’s property was raised by the Highway Commission. AYe merely followed our settled rule that a landowner who improves his property in reliance upon the grade of an abutting street suffers a compensable damage if the grade is changed. That is not the situation here, for these appellants’ lots were not previously bounded by a street on the west.

The new highway, at the bottom of the proposed cut, will curve slightly as it passes the Crigler and Haynes lots. If the edge of the right-of-way being condemned paralleled this curve in the paved highway it would cross at least a corner of these two lots. At first the Commission attempted to purchase the corner of Mrs. Crigler’s lot that would be needed to make the right-of-way parallel the pavement. The parties were unable to agree upon the purchase price, however, and the Commission abandoned its efforts to acquire this corner, as it was free to do. Selle v. City of Fayetteville, 207 Ark. 966, 184 S. W. 2d 58. The Commission evidently decided that the acquisition of a right-of-way across the corners of the Crigler and Haynes lots was not necessary to the completion of the project. AYe do not perceive how the Commission’s decision not to condemn a portion of these appellants’ property entitles them to special damages. It is true that their lots now jut slightly into the public easement, but a comparable situation exists in the case of any corner lot that lies at the intersection of two city streets. The situation in itself is not damaging.

There is no merit in the contention of Dr. and Mrs. Haynes that they are entitled to compensation because their home has been damaged by clouds of dust that were created by the construction work. This is not a taking. It is at most a tort for which the sovereign State cannot be held liable. Ark. Const., Art. 5, A 20. Nor is the Commission responsible for the city’s action iii removing its water main from the new right-of-way and re-laying it along the edge of the Haynes lot. This is not State action.

Affirmed. „


author: George Eose Smith, J.

text:
    Fred's Dollar Store v. Adams
    5-3338
    382 S. W. 2d 592
    Opinion delivered October 12, 1964.

      Barrett, Wheatley, Smith & Deacon, for appellant.

      R. W. Raster and R. Dale Hopper, for appellee.
   George Eose Smith, J.

This is an action by the appellee, Christine Adams, to recover damages for personal injuries that resulted from a fall which took place as she was leaving the appellant's store in Osceola. The only question before us is whether the jury’s award of $20,000 is excessive.

The accident occurred on October 27, 1962. At the time of the trial more than thirteen months later Miss Adams was still suffering pain from her principal injury, which was to her lower back. Four different physicians had examined or treated her, without success. In February of 1963 she was confined to a hospital- for thirteen days and was in traction except when she was receiving-heat therapy. In May she was returned to the hospital for another twelve or thirteen days. Among other things a myelogram was performed. Her doctors thought that she was suffering from a ruptured disc in her hack. They recommended surgery, hut Miss Adams was not financially able to bear the expense of the operation.

On the date of her injury the plaintiff was twenty-six years old. She lived on a farm with her two brothers, keeping house and doing farm work. In season she also earned $5.00 a day as a cotton picker. Dr. Moffatt found that there was a 50 per cent limitation of motion in her back. There is evidence to show that she is no longer able to keep house or to work in the fields. Heat therapy is necessary three or four times a day. It is recommended that she wear a supporting girdle during the day and use a heating pad at night. Past and estimated future medical and hospital expenses amount to almost a thousand dollars. From the evidence the jury was justified in concluding that the plaintiff’s condition is not likely to improve, at least without surgery.

The appellant argues that certain matters, such as future disability and loss of earning capacity, cannot be considered, because, the court’s instruction on the measure of damages did not specifically refer to them. This point is not well taken. The court told the jury that “you may take into consideration” several enumerated elements of damage. The instruction did not expressly or by implication forbid the jury from taking into account other matters that were established by the testimony. Upon this record we are not compelled to assume that the jury laid aside significant elements of damage that had been established without objection in the course of the trial.

In a ease of this kind precedents are of scant value. No two cases are so nearly identical that essential points of difference cannot be found. The ultimate question is whether the verdict shocks the conscience of the court or demonstrates that the jurors were motivated by passion or prejudice. Alexander v. Botkins, 231 Ark. 373, 329 S. W. 2d 530. There is no suggestion here that Miss Adams is a malingerer. When we consider the suffering that she endured for more than a year before the trial, the economic loss that has resulted from her injuries, and the extent to which these matters may be expected to persist in the future we are not warranted in finding that the award is too liberal.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    U-Finish Homes v. Hale.
    5-3312
    382 S. W. 2d 583
    Opinion delivered October 12, 1964.

      Clark, Clark S Clark, for appellant..

      Hale é Henson, for appellee.
   Carleton Harris, Chief Justice.

On January 8, 1963, U-Finish Homes, appellant herein, obtained a judgment against American Homes and Cabins, Inc., for $3,594.12. In March of 1963, appellant caused writs of garnishment to be issued, directed to John E. Hale, Sr., and Ray Cooper, appellees herein; appellant alleged that Hale and Cooper were indebted to American Homes and Cabins. The court, after denying a motion by appellant for summary judgment, and after hearing testimony on a motion for judgment against the garnishees, ordered the writs of garnishment dismissed.

The facts are as follows:

American Homes and Cabins, an Arkansas corporation, was incorporated in February, 1962, for the purpose of building shell homes, and was engaged in that business at the time of the events giving rise to this litigation. Howard Mozingo was president of the corporation, and John E. Hale, Sr., one of the appellees herein, served as secretary, and also as part-time bookkeeper, for which he received the sum of $25.00 per month. Hale originally held 100 shares of stock in the company, and later acquired 200 shares from H. J. Allison, who had been one of the original incorporators. Appellee Cooper purchased 100 shares of stock from Howard Mozingo for the sum of $300.00.

On August 2, 1962, Hale and Cooper executed a “Stock Sale and Transfer,” by which Hale sold his 300 shares to Howard Mozingo, and Cooper sold his 100 shares to Marie Mozingo, wife of Howard; all shares were sold at $4.50 a share. The stock certificates, evidencing Hale’s ownership of 300 shares, and Cooper’s ownership of 100 shares, were endorsed to the Mozingos on August 16, 1962. Hale was paid for his stock by a check for $1,350.00, drawn on the account of American Homes and Cabins, Inc., at the National Bank of Commerce, Pine Bluff, Arkansas. Cooper was paid for his stock by a check for $450.00, drawn on the same account. The cheeks were signed by Howard Mozingo, as president, and countersigned by John E. Hale, Sr., as. secretary of American Homes and Cabins. On the same date that he disposed of his stock, Hale resigned as secretary of the corporation, and a new secretary was elected on the same day. Appellant, after obtaining the judgment against American Homes and Cabins, caused writs of garnishment to be issued against Hale and Cooper. In the motion for summary judgment, appellant sought judgment against Hale for $1,350.00, plus interest and costs, and against Hale and Cooper, jointly and severally, for $450.00, plus interest and costs, alleging that the use of the corporate funds for purchase of the stock, at a time when the corporation had outstanding debts, constituted a fraud upon the creditors of American Homes and Cabins; it was asserted that appellant (as a creditor) was entitled to recover from Hale and Cooper the amounts of corporate funds that they had received. As previously stated, the court held contrary to appellant’s contention, and ordered the writs of garnishment dismissed. Thus, this appeal.

Appellant states that only one question is involved in this litigation, vie:

“To what extent is a corporate stockholder who sells his stock in the corporation to another stockholder and receives his pay, not from the stockholder to whom the shares were sold but from the assets of the corporation, liable to the creditors of the corporation for the corporate funds so received by him?”

That question cannot readily be answered under the proof in this case for the answer depends upon the financial condition of the corporation at the time of the transfer. We think, for liability to attach to the seller, in favor of a creditor, it should appear that the corporation was insolvent, or was, at least, on the verge of insolvency. The term, “insolvent,” is given several meanings, both in legal and standard dictionaries, and has been used in situations varying all the way from ‘ ‘ unable to pay debts as they fall due in the usual course of business” to “one who has gone into bankruptcy.” Webster’s Third New International Dictionary also defines the term as “having liabilities in excess of the reasonable market value of assets held.”

The books, or account ledgers, of American Homes and Cabins were not introduced into evidence, but rather the contention made by appellant (that liabilities ex-ceéded assets) is based on oral testimony and answers to depositions. Tlie record here is not easy to follow, and the testimony is quite conflicting in some respects; it is extremely difficult to determine just what amount of indebtedness was past clue, but there is definitely no evidence that American Homes and Cabins had (or has) been adjudged a bankrupt; nor is there any evidence of executions returned unsatisfied.

In its brief, appellant has compiled a list of creditors of the corporation as of August 16, 1962, together with the amounts due such creditors, and the amounts are totaled at, $17,528.70. Assets are listed as $7,917.06, including bank account of $6,517.06, but not including a 1957 Ford automobile, upon which no value is placed. .But these figures do not establish that the corporation was insolvent, or that liabilities exceeded assets on August 16. For instance, the list includes indebtedness due Stewart Building Supplies, Inc., arising from the various jobs wherein Stewart furnished supplies. One listed is the “Elton Dixon Job,” wherein it is shown that American Home and Cabins owed $2,936.90. However, the record reflects a check in that amount, payable to the Stewart Company, given on the 16th day of August, and cashed on August 17. Another creditor listed by appellant is Bahner Abstract Co., which, according to appellant, was due $648.22. Mr. Ott, president of the abstract company, in responding to interrogatories, testified that this amount was paid on August 17, 1962. G-.M.A.C. is also listed as a creditor in the amount of $886.36, but this amount was paid by American Homes, through check, on the 16th of August. These payments total $4,471.48. While it is true that these amounts paid, are due to be deducted from the amount of cash shown in the bank, and heretofore mentioned, the bank statement further shows that during the period from August 16 to September 1, alone, over $9,500.00 w;as deposited in the bank by the corporation. Hale also testified that Mozingo had $8,000.00 worth of checks on August 16, which the corporation had evidently received from sale of houses.

The record reflects that the first judgment was obtained on December 4, 1962.

According to the evidence of Hale, he received the 200 shares of stock from Allison in payment of $400.00 due this appellee for bookkeeping work, and the 100 shares from the corporation were likewise received in payment of services performed by attorneys, one of which was Hale’s brother, appellee testifying that these shares were held in trust by him for the benefit of the attorneys who had. not been paid. Hale stated that he sold the stock because he needed the money at that time. Cooper simply bought the stock as an investment, and subsequently resold it for a profit.

The Chancellor viewed these witnesses, heard their testimony, and was in a far better position to evaluate the evidence. It was his finding that the writs of garnishment should be dismissed, and we are unable to say that the Chancellor’s findings were against the preponderance of the evidence.

Affirmed.

       Hale was regularly employed by National Investors Life Insurance Company.

       Liability against Hale for the $450.00 was asserted because of the fact that Hale had, as secretary of the corporation, signed the check to Cooper, along with Mozingo, the president.

      One of appellees’ attorneys made the statement: “There has been an execution.” This, of course, was not evidence, even if the return were shown.

       The bank statement does not show the payment of the G.M.A.C. check. The check, however, is in the transcript, but the date of payment cannot be definitely determined.


author: Paul Ward, Associate Justice.

text:
    Cannaday v. First National Bank of Fayetteville.
    5-3301
    382 S. W. 2d 589
    Opinion delivered October 12, 1964.

      Crouch, Blair <& Cypert, for appellant.

      Wade (& McAllister, Dickson, Putman, Millwee & Davis, Pearson & Pearson, Greenhaw & Greenhaw, and Bussell Elrod, for appellee.
   Paul Ward, Associate Justice.

In August, 1958 the City of Fayetteville entered into a contract with C. R. Cannady, d/b/a Cannady Construction Company (hereafter referred to as "Cannady”) to make certain improvements to the City Airport. The contract provided primarily for certain excavations and for putting in place large amounts of stone and aggregate in constructing additions to the runway. Before the work was finished trouble arose, and a multitude of legal maneuvers followed. Since several pleadings and parties are involved, it seems expedient to set out below a list of identifications.

(a) Cannady employed, as sub-contractor, James A. Ulrich (hereafter called "Ulrich”) to do most of the work — especially the stone and aggregate items. To help finance his undertaking Ulrich executed to the First National Bank of Fayetteville (hereafter called "Bank”) a note for $15,500 which amount was advanced to him. Later Ulrich abandoned the undertaking and Cannady employed the Tune Construction Company (hereafter called "Tune”) to complete the work. Ulrich purchased materials from the McClinton Brothers1 Company (hereafter called "McClinton”) in the amount of $7,104.53 for which McClinton was not paid. Cannady was required to make a statutory performance bond, and it was executed by the Employers Mutual Casualty Company (hereafter called "Mutual”).

(b) The Bank sued Ulrich for a balance of $13,500 on his note and caused a writ of garnishment to be issued against Cannady alleging he held certain credits due Ulrich. Later the Bank had a receiver appointed for Ulrich. In his answer Cannady contended that he could not determine whether or not he would owe Ulrich, or how much, until a settlement was made with the City and Ulrich. The City filed an intervention alleging that it owed Cannady a balance of $9,836.66 and paid that amount into court. Cannady then answered that he was entitled to an additional $25,000 because the City was purporting to pay on the cubic contents of the stone and aggregate in place on the runways when, under the terms of the contract, the City should pay on the basis of loose stone and aggregate in the trucks. Tune claimed he was due $1,-003.58, plus penalty and attorney’s fee from Mutual and Cannady. For material furnished Ulrich, McClinton claimed $7,104.53 and penalty and attorney’s fee from Mutual and Canaday. Mutual denied all liability, and particularly denied liability for penalties and attorneys’ fees.

The issues set out previously were presented to the trial court sitting as a jury. After a lengthy trial the court made, in substance, the following findings of fact and law.

Findings of Fact. The Bank was entitled to judgment against Ulrich for $13,900, including interest; Tune was entitled to judgment for $1,003.58 against Cannady and Mutual; McClinton was entitled to judgment for $7,104.53 against Cannady and Mutual; of the $9,836.66 deposited in court, $9,401.41 goes to Ulrich (or rather to the receiver) and the balance of $435.25 goes to Cannady; and, when the Bank garnished Cannady the City owed Cannady the sum of $9,401.41.

Findings of Law. (a) The Bank’s lien (by virtue of garnishment) was prior to any other lien.

(b) Cannady’s claim of $25,000 against the City is denied.

(c) Tune is entitled to judgment against Mutual and Cannady for $1,003.58 and from Mutual a 12% penalty and $350 attorney’s fee.

(d) McClinton is entitled to judgment against Mutual and Cannady for $7,104.53 and from Mutual a 12% penalty and $500 attorney’s fee.

For a reversal appellants, Cannady and Mutual, rely on certain specified points which we now discuss in the order presented by them.

One. Cannady and Mutual first contend there is no substantial evidence to sustain the court’s finding that Cannady had in his possession goods, chattels, money, credits and effects belonging to Ulrich in the amount of $9,401.41 (as held by the court). We are unable to agree.

In the record we find the following testimony: All labor and work done by Ulrich (including work done by Tune and material furnished by McClinton) amounted to $98,433.65; Cannady paid to Ulrich personally a total of $38,317.41 and for other claims (such as for aggregate, piping, equipment rental, etc.) the sum of $18,715.68 — ' making a total of $57,033.09. Add to the last figure $9,836.66 deposited in court by the City and we have a grand total of $66,369.75 accounted for out of $98,-433.65. This leaves the sum of $31,563.90 unaccounted for by Cannady. Certainly Cannady was in a better position than anyone else to explain what use was made of money. It is our conclusion, therefore, that there was substantial evidence to support the finding of the trial court that Cannady owed at least as much as $9,836.66 to Ulrich. The trial court also had a right, in this connection, to consider the fact that Ulrich had borrowed $15,500 from the Bank to finance him as a sub-contractor.

Two. It is next contended that the court erred in giving the Bank a prior lien on the $9,401.41 paid into court. This contention appears to be based on the fact that the Bank’s writ of garnishment was served on Cannady before the money was paid by the City into court. Under the general rule announced by this Court, we think it makes no difference that Cannady did not know at the time the writ was served against him how much he owed Ulrich so long as he actually did owe him (as we have just held). In the case of Harris v. Harris, 201 Ark. 684, 146 S. W. 2d 539, this Court quoted with approval from 28 C.J. 129, § 171, the following:

‘£ Under some statutes it has been held that a debt not presently payable is not subject to garnishment. But generally debts contracted, although not presently payable or matured, but which will certainly become payable in the future, may be reached. And this, although the terminology of the statute is that claims or debts ‘due’ may be garnished, the term ‘due’ being taken in its larger sense as importing merely an existing obligation, without reference to the time of payment.”

The Harris case has been cited with approval in Miller v. Maryland Casualty Co., 207 Ark. 312 (p. 318), 180 S. W. 2d 581 (p. 584); Coward v. Barnes, 232 Ark. 177 (p. 179) 334 S. W. 2d 894 (p. 896); and Gossett v. Merchants & Planters Bank, 235 Ark. 665 (p. 667), 361 S. W. 2d 537 (p. 538). It is not denied that the Bank was first to have a writ of garnishment filed against Cannady. The lien thus created took effect at the time the writ was served. See: Bergman v. Sells & Co., 39 Ark. 97 and the Gossett case, supra.

Three. We do not agree with appellants that the court erred in assessing penalties and attorneys’ fees to Tune and McClinton. It is first insisted by appellants that there was no demand for payment made on Mutual, but the record shows that on March 17, 1961 Mutual was advised of the extent of the claims. Mutual was asked to affirm or deny the claim. The failure of Mutual to deny the claim under oath amounted to an admission. See: White River Limestone Products Co. v. Mo.-Pac. Rd. Co., 228 Ark. 697, 310 S. W. 2d 3; Brown v. Lewis, 231 Ark. 976, 334 S. W. 2d 225; and 10 Ark. Law Rev. 439, 454 (1956). Also, although two months elapsed, Mutual made no effort to settle the claim out of court.

Four. Finally it is insisted that the canse should be reversed because the court misinterpreted the prime contract, and thereby , used the wrong method to determine payments due for stone and aggregate used on the runways. We do not agree.

The prime contract between the City and Cannady is long and complicated but it suffices to quote the following portion:

“The quantity of crushed aggregate base course to be paid for shall be the number of cubic yards of material placed, bonded, and accepted in the completed base course.” (Emphasis added)

Appellants contend the City should.pay for the cubic for the cubic yards loose in truck, while the City contended it should pay for materials measured in place. It is apparent the former method would mean more money to Cannady.

The trial court held the contract was not ambiguous and found that the “. . . materials for base and sub-base furnished under the written contract should be measured by compact in place measurement rather than loose -truck load measurement”. We agree that the above mentioned portion of the contract was not ambiguous, and likewise agree the trial court interpreted it correctly.

Finding no reversible error, the judgment of the trial court is affirmed.

Affirmed.


author: Sam Eobinson, Associate Justice.

text:
    Phillips v. Nowlin.
    5-3344
    382 S. W. 2d 588
    Opinion delivered October 12, 1964.

      Richard W. Ilobbs, for appellant.

      Lookadoo, Gooch é Lookadoo, for appellant.
   Sam Eobinson, Associate Justice.

On March 8, 1963, appellee, E. E. Nowlin, filed suit in the Clark Circuit Court against appellant, George Phillips, alleging that-defendant was indebted to plaintiff in the sum of $2,-280.00 for past due rent on a store building. Defendant filed a general denial. The case was set for hearing in July, 1963, but defendant obtained a continuance on account of illness. The case was reset for October 15, 1963, and again the defendant obtained a continuance alleging illness. The case was reset for November 1, 1963. On that, date it was again maintained that defendant was unable' to attend trial.

It was agreed by the attorneys in the case that the deposition of defendant would be taken and the cause submitted to the court in that manner. On November 27, 1963, the attorneys in the case, accompanied by a court reporter, went to defendant’s home to take his deposition. He refused to give a deposition contending that he was sick and unable to do so.

The court, sitting as a jury, after having heard the testimony of plaintiff, made a finding in his favor for the amount sued for, $2,280.00. A judgment was rendered accordingly. Whether a continuance should be granted is in the discretion of the trial court. Sage v. Sage, 219 Ark. 853, 245 S. W. 2d 398; Wood v. Wood, 234 Ark. 358, 352 S. W. 2d 176; Andrews v. Lauener, 229 Ark. 894, 318 S. W. 2d 805.

Here, there was no abuse of idescretion. It does not appear that the trial court was greatly impressed with the testimony of appellant that he was unable to give his deposition on November 27, and neither are we impressed by his statement to that effect.

Affirmed.


text:
    Hicks v. Woodruff.
    5-3322
    382 S. W. 2d 586
    Opinion delivered October 12, 1964.

      DuVal L. Purloins, for appellant.

      William PL. Drew, for appellee.
   Jim Johnson, Associate Justice.

This is an action by appellants Dave Hicks and Billy D. Hicks, his son, for specific performance of an option to purchase clause contained in a farm lease contract, against appellees Thomas E. Woodruff and Pauline B. Woodruff, his wife, and Dewey Beavers and Naomi Beavers, his wife, in Chicot Chancery Court. After a long drawn out hearing the diligent chancellor concluded in 31 pages of findings that the lease was operative, that the option was ambiguous, that appellants had failed to comply with the terms of the option and that appellants’ complaint should therefore be dismissed. From the judgment on these findings appellants have prosecuted this appeal.

Appellants urge two points for reversal, both of which pertain to the chancellor’s interpretation of the option clause. After protracted and careful study of the seven volume record on trial de novo, we do not reach either point argued.

This is a suit for specific performance in which appellants sued on a written contract, the farm lease. They, of course, had the burden of proving the existence of the writing. Appellees, admitting the execution of the contract, claim it has been rescinded, canceled or abandoned and therefore have the burden of proving such claim. 18 C.J.S., Specific Performance, § 140, p. 715; 3A Corbin, Contracts, § 749 et seq. Rights acquired under a contract may be abandoned or relinquished by agreement, conduct or by a contract clearly indicating such purpose. To constitute an abandonment of rights, an actual intent to abandon must exist. 17A C.J.S., Contracts, § 412. The rule applicable here is succinctly stated in Restatement, Contracts, § 406, comment b (1932), as follows:

“b. The agreement to rescind need not be expressed in words. Mutual assent to abandon a contract, like mutual assent to form one, may be manifested in other ways than by words. Therefore, if either party even wrongfully expresses a wish or intention to abandon performance of the contract, and the other party fails to object, there may be sometimes circumstances justifying the inference that he assents. If so there is rescission by mutual assent; but mere failure to object to repudiation is not a manifestation of assent to a rescission. Sometimes even circumstances of a negative character, such as the failure by both sides to take any steps looking towards the enforcement or performance, of a contract, may amount to a manifestation of mutual assent to rescind it.”

The conduct of the parties here clearly evidences a rescission of the farm lease (which contained the option to purchase). It is axiomatic that the option to purchase was dependent upon the existence of the lease, and if the lease was rescinded, the option to purchase was a fortiori rescinded. Smith v. Carter, 213 Ark. 937, 214 S. W. 2d 64. The actions and correspondence of the parties subsequent to 1961 manifested an obvious intention to abandon performance of their contract as written and resulted in appellees making a substantial change of position, that is, appellants permitted appellees to expend over $11,500.00 in clearing some 231 acres of land on the farm which had been the subject of the. option. Appellees then rented this cleared land to someone else, with the knowledge of and without objection from- appellants, although the lease sued on expressly gave appellants exclusive control of the property. Prior to this, in January 1962, when half of the 1962 rent was past due under the lease, appellants wrote appellees stating, “It’s rent time again,” and requested that appellees rent the land to them in 1962 for $3,000.00. (The lease, provided for $4,900.90.) Further, under the lease sued on appellants rented the entire farm, but after appellants’ letter, appellees rented them only the land they farmed in 1961, and appellants made no claim for the balance of the farm. If the lease were in force, appellants would have had the right to farm all of the lauds described in the lease including the 231 newly-cleared acres at no additional rental. Certainly it was never in the contemplation of the parties at the inception of the farm lease contract for appellees to gratuitously enrich appellants by making extremely valuable improvements on property they had optioned to sell at a fixed pirce. Without detailing other facts utterly inconsistent with the continued existence of a lease, suffice it to say that appellees clearly met the burden of proving rescission of the contract.

Having thus concluded, we reach the same results as the learned chancellor but for different reasons. Accordingly, the decree is afinned.


author: Prank Holt, Associate Justice.

text:
    Barnes v. Young.
    5-3276
    382 S. W. 2d 580
    Opinion delivered October 12, 1964.

      W. B. Howard and Jack Segars, for appellant.

      Gerald E. Pearson, for appellee.
   Prank Holt, Associate Justice.

This is a suit by appellee against appellants to quiet title to a two and one-half acre strip of land lying between their properties. Also, damages are sought for destruction of a fence and growing crops. Appellee claims ownership of acquiescence and adverse possession and asserts that a fence constitutes an agreed boundary. The appellants denied these assertions and contend that the use of this disputed strip by appellee and his predecessors in title was permissive. The Chancellor found the issues in favor of the appellee and this appeal follows.

For reversal appellants first urge that “the court erred in excluding testimony as to parol agreements of appellee’s predecessors in title, recognizing that the fence in question was not the boundary line and agreeing that their use of the land was permissive.” The deposition of appellant S. F. Barnes, father of the other two appellants, was offered in evidence to this effect. The appellants are correct in their contention that this evidence is admissible. This is true even though appellee’s predecessors in title are now deceased. It is well settled that declarations against interest of one in possession of land, though now deceased, which are adverse to his title are admissible against successors in interest who claim under him. Russell v. Webb, 96 Ark. 190, 131 S. W. 456; Norden v. Martin, 202 Ark. 180, 149 S. W. 2d 550; Howell v. Simpson, 216 Ark. 873, 228 S. W. 2d 40.

It is likewise urged that appellant Woodrow Barnes should have been permitted to testify as to a conversation he overheard between his father, S. F. Barnes, and Herman Young, now deceased, about the time Young-acquired title from their common grantor. From our review of the excluded testimony, we are of the opinion it is too general, or indefinite, to indicate any agreement concerning- permissive use. Further, when the Chancellor excuded the attempted testimony no offer was made to show exactly what the testimony of the witness, Woodrow Barnes, would have been. We cannot consider on appeal an objection to the exclusion of testimony unless there is a showing of what it would have been. Stewart v. Bittle, 236 Ark. 716, 370 S. W. 2d 132; Lynch v. Garnes, 227 Ark. 767, 301 S. W. 2d 739.

The appellants next contend that the preponderance of the evidence showed that the boundary line between the respective tracts had never been established. We assume, arguendo, that the excluded evidence of Woodrow Barnes was sufficiently clear to be admissible. When we consider on a trial de novo his rejected testimony, along with that of his father, S. F. Barnes, to the effect that the use of the land by the appellee and his predecessors in title was permissive, we are of the view that the evidence in the case at bar preponderates in favor of the appellee.

There is some evidence that the true boundary line is about ninety feet south of the fence. However, there is no evidence in this case supporting the claim of agreed or permissive use of the disputed land except that of these interested parties. Appellant S. F. Barnes, ninety-two years of age, gave a deposition about an understanding of permissive use of the disputed land that occurred in 1907 when he purchased his land from a Mr. Pratt and another such incident in 1925 or ’26 when appellee’s father, Herman Young, purchased the adjoining tract from Pratt. Also, that he had “talked about the corners” with appellee. The other evidence is by appellant Woodrow Barnes concerning a conversation he overheard between his father and Herman Young about 1925 or ’26 when he, Woodrow, was a boy approximately ten years of age.

Contrasted with this meager evidence there is testimony by the appellee and distinterested witnesses that the fence in question existed for approximately fifty years prior to the date of the trial; that a wire fence replaced an old picket fence about 1925 or 1926 when Herman Young, appellee’s predecessor, purchased the land from Pratt; that appellee and his predecessor in title, his father, had exercised possession and control adversely over the disputed strip for more than the required seven years or for approximately thirty-seven years by cultivating it up to the disputed fence; that part of it had been placed in “the soil bank” program; and that appellee’s.first knowledge of appellants questioning his ownership was shortly before this litigation. Appellee denied appellants’ assertion of permissive use by his father or himself.

In Stewart v. Bittle, supra, we said:

“It may be conceded, as claimed by appellant, that there never was any express agreement to treat the fence as the dividing line between the two parcels of land. Such an agreement, however, may be inferred by the actions of the parties.”

Also, see Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18. In the case at bar we think that the recognition of the. fence as visible evidence of the division line for some fifty years was of such quietude and acquiescence that an agreement is fairly inferred that it represents the true boundary.

We are of the view that ownership of the property in question was also established by adverse possession. Pitts v. Pitts, 213 Ark. 379, 210 S. W. 2d 502. Certainly, from a careful review of the evidence in this case, upon a trial de novo, we cannot say that the Chancellor’s finding that the existing fence constituted the true boundary is against the preponderance of the evidence. England v. Scott, 205 Ark. 47, 166 S. W. 2d 1014.

The appellants next contend there was no evidénce on which to predicate a $175.00 judgment for damages resulting from appellants’ tearing down the fence and plowing up appellee’s crops. Appellee established the damage to his growing crops by showing only the gross income from similar crops which had matured and he had harvested. This is not the proper measure of damages. The appellee was only entitled to the value of his growing crop at the time of its destruction or damage. Moore v. Lawson, 210 Ark. 553, 196 S. W. 2d 908; Turner v. Smith, 217 Ark. 441, 231 S. W. 2d 110.

Appellee sought to prove his damages 'for destruction of the existing fence by showing the replacement cost of a new fence. This was incorrect. The appellee was entitled only to the cost of replacement of the existing fence in substantially the same condition that existed at the time appellants destroyed it. Bush, Receiver v. Taylor, 130 Ark. 522, 197 S. W. 1172; Missouri Pacific R. Co. v. Wood, 165 Ark. 240, 263 S. W. 964.

The decree is modified to the extent that the award of damages is disallowed. Accordingly, the decree is modified and affirmed.


text:
    Standard, Inc. v. Standard Coin-Op Distributors
    5-3335
    382 S. W. 2d 888
    Opinion Delivered October 19, 1964.

      Thorp Thomas d> Hoy Finch, Jr., for'appellant.

      Moses, McClellan, Arnold, Otven & McDermott, for appellee.
   Carleton Harris, Chief Justice.

Carroll Johnson, Jr., of G-allatin, Tennessee, president of Standard Coin-Op Distributors, Inc., a Tennessee corporation with its home office in Memphis, and engaged in the coin laundry and dry-cleaning business, sent two dry-cleaning machines to Standard, Inc., of Little Rock, for reconditioning. (One was sent in September, 1961, and the other in November of the same year.) According to the evidence,appellant company accepted the machines, and Teddy Abeles, vice-president of appellant company, agreed that the machines would be overhauled or reconditioned at a charge of between $350.00 and $500.00 each. It developed that one of the machines was subject to a mortgage by a prior owner, and Johnson requested Standard to send that machine back without being reconditioned. After waiting a week for the request to be complied with, Johnson called again, and was advised that it would be sent at once. According to Johnson, numerous similar requests were made for the machine to be returned, and he finally made a trip to Little Rock to determine why his request liad not been honored. Johnson also demanded the return of the second machine, but never received either one. In June, 1963, appellee instituted suit, alleging that appellant company had converted the machines to its own use, and seeking judgment for the value of the machines at the time of the conversion, which was alleged to be $10,620.00. An answer was filed, denying the material allegations of the complaint, and setting out that the machines were not purchased from the appellant company, “and were not covered by warranty. Defendant [appellant] was under no obligation to repair the machines of the plaintiff [appellee], and merely acted as a bailee thereof for the sole benefit of the plaintiff.” Nearly three months later, appellant amended its answer , to allege that it had offered to return to appellee the machines sued for, but, because of appellee’s refusal to identify its machines, had been unable to return them. On trial, the Circuit Court, sitting as a jury, found that the two dry-cleaning machines had been sent to appellant company for repair, and had been accepted by appellant for that purpose; that appellant was under an obligation to hold appellee’s property separate from the other machines, and thereby be in a position to deliver the machines to appellee; that appellant company did not keep the machines separate from other machines, but dismantled and co-mingled the parts together, and was therefore unable to redeliver the machines to appellee; even though demand was properly made. The court found that the fair market value of each machine, at the time the demand was made for the return of the property, was $3,500.00. Judgment was accordingly awarded appellee in the amount of $7,000.00. From such judgment comes this appeal.

For reversal, appellant asserts first that there was no proper demand, or refusal, to return the machines involved prior to the institution of this action, and, second, that the damages are not only excessive but there is nothing in the evidence upon which the court could have found the damages to be $7,000.00.

Pertinent testimony was as follows:

Johnson, in addition to his testimony that demand had been made for the return of the machines several times, also testified that he made a trip to Little Rock, and talked with Jim Spaulding, sales manager of Standard at that time. He stated that Spaulding told him that the machines had been dismantled and the parts sold. He also testified that he had been offered two machines the Saturday before the trial, but they were not the ones he had sent to appellant. Spaulding testified that the Standard Coin-Op machines had a value of from $4,500.00 to $4,800.00 each.

C. B. Pugh, president of Standard, Inc., testified that his company was not in the business of remodeling or reconditioning machines; rather, that it only manufactured them. However, he did not deny that the machines were in the possession of appellant, but stated that any agreement made had been entered into by Teddy Abeles, vice president of Standard. The witness said that Abeles had left the day before the commencement of the trial to go to Canada, because of previous commitments. He further testified that the Johnson machines were outdated in 1962, and did not have a value of more than $500.00 to $1,000.00 each. Pugh testified that about twenty-two machines, all alike, were disassembled at the same time, and this number' included the two machines sought- by Johnson. He said that no parts had been sold, and though he had requested Johnson on several occasions to furnish the serial numbers of the machines, in order that appellant would know which particular machines belonged to appellee company, this information had not been furnished. He stated that Johnson could “pick them up” after identification.

O. A. Carter, sales engineer for Standard at the time of the trial, testified that he did not know whether the machines (here in litigation) were saleable in September, 1962, but be stated that they were not saleable in January, 1963 (because of their being old models).

It is earnestly contended by appellant that there was no absolute refusal to return the property to appellee, and Pugh said that his company would have returned the machines if Johnson had furnished the serial numbers. Johnson admittedly did not furnish the serial numbers.

an * j ]mew niy machines weren’t down there. He wouldn’t show them to me. He could take the serial number and put it on another machine and ship it back as the right one. * * * The serial number is only on a little plate, stamped on and you can move the plate from machine to machine.”

It is insisted by appellant that the failure to return the machines (because of not knowing the serial numbers) amounted to only a qualified refusal, and Johnson’s not providing these numbers constituted a valid legal reason for not complying with appellee’s demand. Authority is cited to the effect that mere negligence of a bailee does not amount to a conversion.

We are of the view that the facts in the case before uk establish much more than mere negligence on the part of appellant company. The proof reflects that the machines were sent to appellant for reconditioning; though Pugh stated that his company did not accept machines for that purpose, there is no denial that these machines were actually received. According to the evidence of both the president of appellee company, and the president of appellant company, the agreement was entered into between Johnson and Abeles. Abeles, as previously pointed out, did not testify, but had left this state the day before the trial. Certainly, if appellant disputed the evidence of Johnson relative to the purpose in sending the machines to appellant company, and it was necessary that Abeles be away from the state, the deposition of this witness could have been taken.

Appellant argues in its brief that, to repair, or recondition, the machines, it was certainly necessary that they be dismantled. That assertion cannot be disputed,, but we have found no valid reason for intermingling the parts of at least twenty-two machines, and thus making it impossible to determine from which machines the various parts were taken. Mr. Pugh admitted that there was no way to definitely determine which parts came from the Johnson machines, and accordingly no way in which to restore those parts to the machines involved in this litigation. He simply said that the parts installed by his company would be “better parts * * * better than the ones we took off.”

We are of the opinion that, irrespective of whether the parts had already been sold, or whether they remained on appellant’s premises in bins, there was substantial evidence of a conversion. The furnishing of the serial numbers would not have enabled appellant company to locate the various parts which had been removed. This is not a case wherein the bailee' lost property, or where it was 'accidentally destroyed, or .inadvertently misplaced. Prom a legal standpoint, this case bears some similarity to the Texas case of Rabe v. Jourdan, 102 S. W. 1167. In that case, Jourdan sued Rabe, the latter having purchased a number of rings and gems (loose stones) from a ten-year-old boy under circumstances that would have put an ordinarily prudent person on notice that the property was stolen. The jewelry belonged to Jourdan, who demanded the return of his property, alleging the jewelry to have a value of $2,309.00. However, Rabe testified he had intermingled the jewelry with his own, and denied refusing to return the property, asserting that he had told Jourdan that if he (Rabe) had any of Jourdan’s property, he was ready to deliver it upon proper identification; that he had offered to let Jourdan inspect all property in his possession, and was still -willing for this to be done. The jury found for Jourdan in the amount of $1,052.00. In affirming the judgment, the Texas court said:

“* * * We.have examined the testimony and ascertain that there was evidence which would warrant a finding that the goods received by defendant were so intermixed with defendant’s stock that defendant stated, when asked for them, that he himself was unable to select them. It is true that he says he told plaintiff to pick them out, and he would let him take them; but plaintiff testified he was unable to select them, and told defendant so. There can be no doubt that there was evidence of a demand, of a confusion of the goods consisting largely of loose stones, with property of defendant, and of both plaintiff’s and defendant’s inability to identify and select them, which practically amounted to a refusal of plaintiff’s demand for them, inasmuch as the result of the confusion of the goods ivas chargeable to defendant. The demand was sufficiently shoion to be refused, if it appeared that defendant had placed himself in a position that rendered compliance inpracticable."

Here, neither Pugh nor Johnson could identify the parts, but the. officers and employees of appellant company, through their acts, placed appellant “in a position that rendered compliance impracticable.”

Accordingly, we find no merit in appellant’s first contention, nor can we agree with appellant in its second contention. It is asserted that there was no evidence to support the $7,000.00 judgment. It is true that appellee’s testimony was to the effect that the machines were worth $4,500.00 each, but this gives appellant no cause for complaint, since the amount awarded was $2,000.00 less than the value given by appellee’s witnesses. Frequently a jury will return a verdict for a figure which is between the values given by witnesses for plaintiff and defendant, respectively, and we have upheld such verdicts. Ark. State Highway Comm. v. Kennedy, 234 Ark. 89, 350 S. W. 2d 526.

Of course, it is not our prerogative, to determine whether judgment should" have been rendered in the stated amount. We are only concerned with the question of whether there was substantial evidence to support the court’s findings. As heretofore'set out, testimony was offered by apparently competent witnesses as to the value of the machines, and we are unable to say that the testimony so offered did not constitute substantial evidence.

On the whole case, we find no reversible error.

Affirmed.

       Spaulding is no longer with appellant company, having resigned in June, 1963.

       This was apparently two days beiore the trial, the case having been tried on September 23, 1963, a Monday, and the testimony reflecting that the offer was made “last Saturday.”

       Emphasis supplied.


author: Ed. F. McFaddin, Associate Justice.

text:
    B-W Acceptance Corp. v. Terrell
    5-3325
    382 S. W. 2d 884
    Opinion Delivered October 19, 1964.

      Willis V. Lewis, for appellant.
    No brief filed for Appellee.
   Ed. F. McFaddin, Associate Justice.

The question here posed is whether the appellee Terrell filed within due time his appeal from the Camden Municipal Court to the Ouachita Circuit Court. If the question is answered in the affirmative there must be an affirmance; if the question is answered in the negative a reversal is required.

Appellant filed a replevin action against the appellee in the Municipal Court of Camden. There was a bond and a cross bond. On February 21, 1963, judgment was rendered for the plaintiff (appellant here) and on the same day the defendant (appellee here) gave notice of appeal. On February 23, 1963, the defendant filed in the Municipal Court an affidavit for appeal and a bond for appeal, which bond was approved by the Municipal Judge. Then on February 27, 1963, there were filed in the Circuit Court three pages: one page was the original affidavit for appeal; the second page was the original bond given by defendant to supersede the judgment of the Municipal Court; and we copy in full below the third page:

“TRANSCRIPT OF CIVIL CASE NO. 552
“B. W. Acceptance Corp. Plaintiff
v. Mr. Willis V. Lewis, A tty.
Jefferson Terrell Defendant
Mr. L. B. Smead, A tty.
“Complaint at law filed 1-22-63 against defendant for $243.09 plus costs. Order for delivery in replevin issued 1-22-63 and made returnable 2-7-63. Bond of plaintiff filed 1-22-63. Case continued until Feb. 21, 1963 on motion of Mr. Smead, A tty. for Defendant. Cross bond filed .by defendant on 2-1-63.
“This case came on to be heard the 21st day of Feb. 1963. The testimony of both plaintiff and defendant presented and it is the finding of the Court that plaintiff is entitled to judgment for amount prayed for in complaint and costs and that said judgment be entered against surety for amount prayed for in complaint and all costs accrued. “Notice of appeal given by Atty. for defendant. Appeal bond set at $500.00.”

It will be observed that this third page was not signed by the Municipal Clerk or certified in any way. It was a mere unsigned typewritten page. No other papers of any kind were filed in the Circuit Court until November 14,1963, when, on request of the Circuit Judge, the Clerk of the Municipal Court sent to the Circuit Court the complete file of all the pleadings and proceedings in the Municipal Court. In the Circuit Court the appellant filed a motion to dismiss the appeal as filed out of time; but the Trial Court held that tlie filing in the Circuit Court, on February 27, 1963, of the three pages heretofore mentioned, was a substantial compliance with the law and that the appeal had been filed in due time. From a final judgment dismissing the cause of action of the plaintiff there is this appeal; and the question posed has heretofore been stated.

We have two statutes which are mentioned in the appellant’s brief in this case. The first is Ark. Stat. Ann. ^ 22-707 (Repl. 1962), which reads:

“All appeals of civil cases from municipal courts must be taken and the transcripts of appeal lodged in the office of the clerk of the circuit court within thirty (30) days after judgment is rendered, and' not thereafter, only after the party appealing has paid to the clerk of the municipal court the costs now allowed for the preparation of the transcript, and also the filing costs due the circuit clerk. The clerk of the municipal court shall within (5) days after such payment lodge such transcript with the circuit clerk and pay to him the amounts due as filing costs. The circuit court shall advance on its docket such causes on appeal and the same shall stand for trial de novo in the circuit court ten (10) days after being docketed. ’ ’

The second statute is Ark. Stat. Ann. § 26-1307 (Repl. 1962), which reads :

“If a party appeals from a justice of the peace judgment or a common pleas judgment or a municipal court judgment the clerk of the court or the justice of the peace of the court from which the appeal is taken must file the transcript of the judgment in 'the office of the circuit court clerk within thirty (30) days after the rendition of the judgment. ’ ’

There is no brief filed in this Court by the appellee, but, regardless of which of the above statutes the appellee might have desired to'urge, the result is the same: the appellee failed to comply with the requirements of either statute. All that was filed in the Circuit Court within the thirty day period were the three pages sent from the Municipal Court, as previously mentioned. These pages failed to constitute a “transcript.” In Camden Gas Corp. v. Camden, 183 Ark. 583, 37 S. W. 2d 74, we said: “The transcript is nothing but a certified copy of the record below. ...” A good case recognizing that a certificate is required to constitute a transcript is L. & N. RR. v. Caudill (Ky.), 194 S. W. 2d 508.

In the case at bar there was nothing certified, so there was no transcript, as required by the statute for timely filing of appeals from municipal court to circuit court. Our holding in Barber v. Crabtree, 214 Ark. 463, 217 S. W. 2d 265, (points to the present holding. The fact, that the three .pages were sent from the Municipal Court, rather than filed direct in the Circuit Court, does not differentiate the case at bar from the adjudicated case. The three pages filed in the Circuit Court were not certified in any way, and therefore there was no compliance with the requirements for a transcript.

The judgment of the Circuit Court is reversed and the cause is remanded, with directions: (a) to enter a judgment .dismissing the attempted appeal of Jefferson Terrell from the Municipal Court; (b) to render judgment for the B-W Acceptance Corporation on the bond; and (c) for all other proper relief.

       By sub-poena duces tecum we caused the original of these three pages to he brought before us in order to see if there was any kind of certificate to the pages.

         Recent cases on Ark. Stat. Ann. § 26-1307 (Repl. 1962) are: Whiteley v. Pickens, 225 Ark. 845, 286 S. W. 2d 4; Ex parte Hornsby, 228 Ark. 975, 311 S. W. 2d 529; and Craig v. State, 235 Ark. 563, 361 S. W. 2d 16.