text:
    Robert O. Justice v. Arch Campbell
    5-4220
    410 S. W. 2d 601
    Opinion delivered January 19, 1967

      Dale Price and Fletcher Jackson, for appellant.

      Langston & Langston and Sloam, & Ragsdale, "for appellee.
   Lyle Brown, Justice.

Robert 0. Justice filed this suit in the Pulaski Circuit Court seeking to debar the defendant, Arch Campbell, from the office of County-Judge. Campbell responded and asked the Court to confirm his title to the office. Campbell prevailed, and Justice appeals.

The case was submitted on stipulation, and the facts agreed upon which are now pertinent may be summarized as follows:

1. R. A. (Arch) Campbell duly assumed the office of County Judge on January 1, 1965, which term of office would normally have expired on January 1, 1967.

2. Tom Gulley was elected to the office of County Judge at the General Election on November 8,1966, for a two-year term beginning January 1, 1967. Mr. Gulley died November 24, 1966.

3. Arch Campbell claims the office by virtue of Art. 19, § 5 of the Constitution of Arkansas, which reads as follows: “All officers shall continue in office after the expiration of their official terms until their successors are elected and qualified.”

4. Robert 0. Justice was appointed and commissioned by the Governor on January 1, 1967, and took the oath of office on that date. Justice claims title to the office by virue of that appointment. The Governor acted under the provisions of Ark. Stat. Ann. § 12-113 (Repl. 1956): “When a person elected to an office (and) shall by reason of death, or for any other cause, fail to qualify, the office shall be deemed vacant and shall be filled as provided by the Constitution and statutes of the State. [Acts 1929, No. 311, . .-.]”

Another provision of the Constitution — Amendment 29, Section 1 (1938) — is brought into the case by appellant. That section is as follows: “Vacancies in the office of United States Senator and in all elective state, district, circuit, county/ and township offices, except those of Lieutenant Governor, Member of the General Assembly, and Representative in the Congress of the United States, shall be filled by appointment by the Governor. ’ ’

We find no conflict in these Constitutional provisions. At first blush, the wording in Amendment 29, “vacancies . . . shall be filled by . . . the Governor . . .,” would seem to sustain the position of Robert 0. Justice. Any such impression has clearly been dispelled by the leg-al authorities immediately cited infra.

In State v. Green and Rock, 206 Ark. 361, 175 S W. 2d 575 (1943), in referring to Amendment 29, Section .1, this Court said: “The words ‘vacancies in the office of’ as there used refer to offices which on account of death, resignation, removal or abandonment of the previous holder thereof, or for some other cause, have in fact no incumbent.”

An incumbent of an office is one who is in present possession of an office; one who is legally authorized to discharge the duties of that office. Hilliard v. Park, 212 Tenn. 588, 370 S. W. 2d 829; People v. Rapsey, 16 Cal. 2d 636, 107 P. 2d 388; State v. Blakemore, 104 Mo. 340, 15 S. W. 960.

Judge Campbell’s position is correct, and in conformity with the provisions of the Constitution of Arkansas. It is not difficult to harmonize the two sections cited, and it is our duty to give effect to both provisions. Our holding is further strengthened by the rule in a majority of the jurisdictions. Quoting from 74 A.L.R. 486:

“II. Majority Rule, (a) Rule stated. In a majority of jurisdictions the rule obtains that the death or disability of an officer elect before qualifying does not create a vacancy in the office which may be filled by the appointing power, since he never occupied the office, and that under the provision that an incumbent shall hold his office until his successor is elected and qualified, the prior incumbent is entitled to continue in the office until the election and qualification of his successor.”

Summarizing, when Amendment 29, Section 1, directs that certain enumerated vacancies shall be filled by appointment by the Governor, it means that when an office holder in present possession of an office and legally authorized to discharge the duties of that office, dies, resigns, is removed, or abandons the office, a vacancy is created.

In Rice v. Palmer, 78 Ark. 432, 96 S. W. 396 (1906), this Court had before it two questions:

1. "Whether Amendment No. 3 to the Constitution authorizing appointments to fill vacancies by the Governor was legally adopted; and
2. Whether Palmer, the incumbent Clerk, should hold over or relinquish the office to an appointee of the Governor.

Mr. Maroney was elected, but died before he could legally take office, just as in the case before us.

The Majority Opinion did not reach Point Two, because it held that the amendment was not adopted. Justice Biddick, in a concurring opinion, and joined by Justice Wood, took the position that the amendment had been adopted, and proceeded to Point Two. Of course, the concurring opinion is not a precedent. However the following statement, supported by cited authorities, is significant:

“A vacancy in an office may be caused by the death, resignation or removal of the official holding the office, or by the creation of a new office. Smith v. Askew, 48 Ark. 89. ‘As a general rule, there is a vacancy in office whenever there is no incumbent to discharge the duties of the office, that is, whenever the office is empty or unfilled; but as long as there is any one authorized to discharge the duties of the office, the office is not to be deemed vacant so as to authorize the exercise of the power to fill vacancies in office.’ 23 Am. & Eng. Enc. Law (2 Ed.), 348, 349; State v. Harrison, 113 Ind. 434, 3 Am. St. Rep. 663; People v. Edwards, 93 Cal. 157; Baxter v. Latimer, 116 Mich. 356.”

Ark. Stat. Ann. § 12-113 is in conflict with the Constitution, wherein it attempts to declare an office vacant because of the failure of one elected to the office to qualify. The Constitution, Art. 19, % 5, declares in substance that in that event the office is not in fact vacant —it is filled by the incumbent until his successor is elected and qualified.

Appellant advances this argument:

‘ ‘ Statutes declaring what shall constitute a vacancy in public office have arisen in two Arkansas cases. They are Boyett v. Cowling, 78 Ark. 494, 94 S. W. 682 (1906); and Townley v. Hartsfield, 113 Ark. 253, 168 S. W. 140 (1914). In both cases the Supreme Court of Arkansas gave effect to the statutes involved and found that there was a vacancy in office created by the statute involved. Both cases are very much in point.”

With this statement we cannot agree. In the Boyett case the incumbent was re-elected but failed to apply for his commission and pay the fee therefor within sixty days. The Governor took the position that the office was vacant and appointed Cowling. This Court rejected Cowling’s title to the office, holding that Boyett was the holdover Assessor, leaving him in office until a legally elected successor qualified.

Now as to the Townley case, there the incumbent road overseer was re-elected, but died before a new term was to begin. The then County Judge appointed Townley. A new County Judge came in office and appointed Hartsfield for the new term for which the deceased road overseer was elected. This Court sustained Hartsfield’s appointment. However, it was pointed out that the office of B-oad Overseer was created by statute “and it may be filled by election or appointment just as the statute may prescribe. ’ ’ The Legislature provided by local legislation for selection of road overseers by appointment in some Counties, and by election in others. In those Counties where they were to be elected, the statute reserved the power of appointment in the County Court in instances where one was elected and failed to qualify. So, in Townley we are dealing with an office which was a creature of the Legislature, and could, in fact, be abolished by the Legislature.

Appellant cites a number of statutory provisions which declare a vacancy ih a State or County office when one elected to office fails to make bond when required, fails to obtain a commission, etc. The-logical interpretation of these statutes in the face of the Constitution, Art. 19, § 5, is that the newly elected official failing to qualify as required by statute, is deemed to have forfeited his right to the office. Such a situation calls for action on the part of the Governor not inconsistent with the provisions of the Constitution and laws in harmony therewith, to cause the approaching vacancy in the new term to be filled.

Under the facts in the case at bar we hold that there was no vacancy in the office of Pulaski County Judge on January 1, 1967; that the power of appointment prescribed in Ark. Stat. Ann. § 12-113 is therefore not applicable in such a situation; and that Arch Campbell is authorized to hold the office until his successor is elected and qualified, as prescribed by Art. 19, § 5, of the Constitution. We are further of the opinion that this Constitutional provision contemplates the filling of the new term by election. The phrase, “until their successors are elected and qualified,” is susceptible to no other reasonable implication but that the office be filled by a vote of the people. There are numerous instances in which legislation is appropriately enacted to implement the requirements of the Constitution.

Affirmed.


source: Caselaw Access Project

author:
Carleton Harris, Chief Justice.
      John A. Fogleman, Justice,

license: Public Domain

text:
    Ocie Ruth Dame Spruill v. Lafayette L. Spruill, Admr.
    5-4076
    410 S. W. 2d 606
    Opinion delivered January 23, 1967

      Henry & Henry, for appellant.

      Clark, Clark & Clark, for appellee.
   Carleton Harris, Chief Justice.

This appeal relates to a divorce decree. Ocie Ruth Dame Spruill, appellant herein, instituted suit for divorce, alleging indignities against her husband, Lafayette J. Spruill, who will at times hereafter, for convenience, be referred to as appellee. Mrs. Spruill sought possession of the home located on Lake Conway, the title being in her name. Mr. Spruill filed a general denial and a cross-complaint, asserting that he should be granted an absolute divorce from appellant on grounds of indignities. He also prayed that he be awarded an interest in the property because of the improvements which he had placed thereon, and he sought a lien to the extent of his interest. On trial, the court granted a divorce to Mr. Spruill, and ordered the property sold. It was found that Mrs. Spruill had expended the sum of $2,068.46 in partial payment for the construction of the residence plus $500.00 for the lot on which the house was placed, and which had been purchased by appellant prior to the marriage. The court further held that Mr. Spruill had, subsequent to the marriage, expended the sum of $2,795.48 on the construction of the residence, and granted him a lien in this amount, subordinate however to the interest ($2,568.46) of Mrs. Spruill. After payment of these amounts and costs, any remaining money was to be paid to appellant. From the decree so entered, Mrs. Spruill brings this appeal. For reversal, it is first asserted that the court erred in denying appellant an absolute divorce, and in granting same to Mr. Spruill. It is then contended that any money expended by appellee in improving the property was intended as a gift from him to his wife, and the Chancellor’s findings are contrary to the law.

Pertinent background facts developed by the evidence are as follows:

The parties were married on March 3,1964, at Enid, Oklahoma, Mr. .Spruill being 67 years of age, and Mrs. Spruill being 60 years of age. No children were born to them, but both had children by previous marriages. At •the time of this marriage, Mr. Spruill, together with his son, owned a home in Tonkawa, Oklahoma. Spruill had been an oil field worker for Shell Oil Company, but had retired in 1957, because of a heart condition. According .to appellee’s testimony, his wife was dissatisfied while living in Tonkawa, and she urged that a home be built on Lake Conway in Faulkner County, Arkansas, where she owned a lot. Mrs. Spruill’s version was that her husband wanted to move to that location so he could fish. The property in Oklahoma was sold, and the parties came to Faulkner County, Mr. Spruill depositing over $3,300.00 in the First National Bank of Conway. A shell home was constructed upon the land owned by appellant, Mrs. Spruill testifying that she owned property in North Little Rock, which was mortgaged to obtain a loan to help pay amounts due on the shell home contract. It is established that both parties furnished substantially the amount of monies for construction of the house as found by the Chancellor.

Under her first point, appellant calls attention to the fact that in rendering his findings, the 'Chancellor stated that he granted a divorce to Mr. Spruill, “not so much in an attempt to find fault, but if a divorce were granted the other way, it would be necessary that a dower award be made under the statute.” It is urged that the Chancellor should have made a definite finding relative to the party at fault, and appellant contends that the evidence reflects that the divorce was occasioned by Mr. Spruill’s conduct. We do not agree that appellant’s argument contains merit. Let it be remembered that, irrespective of the reason given by the trial court as a basis for its decision, we will not reverse though the reason be erroneous, if the decision reached by the trial court is correct. Reamey v. Watt, 240 Ark. 893, 403 S. W. 2d 102; Southern Farm Bureau Casualty Insurance Company v. Reed, 231 Ark. 759, 332 S. W. 2d 615, and cases cited therein. We think, and find, that the evidence preponderates heavily in favor of appellee, relative to which party was entitled to the divorce. Mrs. Spruill testified that her husband constantly cursed her, would get angry, stay up all night, and sleep all day; that he would view television until midnight, turning the volume up so high that she could not sleep. Also, she stated that he would stay away from home all day, but would not allow her to drive either a car or a truck that they owned. Mrs. Nancy Pitts of Little Rock, appellant’s daughter-in-law, testified in behalf of Mrs. Spruill, but it is admitted that her corroboration was slight.

Mr. Spruill testified that he prepared his own breakfast because his wife would not get up and fix it, and that she did not prepare more than six evening meals during the time of their marriage. He also complained that she constantly cursed him, and this testimony was verified by the neighbors. Joe Dunbar stated that he heard appellant curse appellee about three times per week (while they were in the yard), and that Mr. Spruill would “turn around and walk away.” He also testified that he heard Mrs. Spruill threaten her husband by stating that she would take a butcher knife and “cut his belly open;” in addition, that he heard a threat to shoot appellee with a gun. Mrs. Dunbar testified that she also overheard Mrs. Spruill curse her husband, and likewise was aware of the threat to cut him open; further, ‘ ‘ Most every time I was out there working in my garden I’d hear her. And I’d hear her from the house too.” The witness said that she never did hear appellee raise his voice. Christina Ryan, another neighbor, stated that appellant had told her that she wished her husband would “drop dead,” this desire being more vigorously expressed by adding a vile epithet. "We reiterate that the Chancellor’s action in granting the divorce to Mrs. Spruill was supported by the preponderance of the testimony.

Appellant contends that any monies expended by Mr. Spruill in improving appellant’s property amounted to a gift to her from him, and that, under our cases, the court erred in granting him a judgment, and lien on the property, for the amounts he had expended. It is true that we have held that, where a husband advances money to improve his wife’s property, or where property is purchased by a husband and placed in the name of a wife, there is a presumption that a gift was intended. See among other cases, Fine v. Fine, 209 Ark. 754, 192 S. W. 2d 212, and Wood v. Wood, 100 Ark. 370, 140 S. W. 2d 275. However, the presumption is rebuttable, and in fact, this court seems to have recognized in 1956, that the aforesaid rule, when strictly applied, frequently brings about a result that is harsh and inequitable. In Stephens v. Stephens, 226 Ark. 219, 288 S. W. 2d 957, the husband and wife of middle age (Mrs. Stephens having children by a prior marriage), who had been married in Illinois, made a trip to Baxter County, Arkansas, and purchased one tract of land as an estate by the entirety. Another tract was placed in the name of Mrs. Stephens, though Mr. Stephens furnished some part of the purchase price. Subsequently, the parties moved to Arkansas, where they intended to build a home on the tract purchased as an estate by the entirety; however, they changed their plans, sold that property, and built the home on the tract which was held in the name of the wife only. Both parties contributed financially to the construction of the house. After building the home, the parties realized that, in the event of Mrs. Stephens’ death, difficulties could arise between the husband and the children of Mrs. Stephens, and a joint will was executed wherein each left to the other a life estate in any property owned, with the remainder going to the children of Mrs. Stephens. They also agreed that they would not revoke or cancel the will, but would keep it in force. Later, Mrs. Stephens instituted suit for divorce, and, though not denying that Mr. Stephens had contributed substantial amounts to the construction of the home, contended (for the same reason argued in the case before us) that he had no interest in the property. The Chancellor granted Mrs. Stephens the divorce, but decreed that the property should be sold, and the proceeds divided. On appeal to this court, we said:

“The chancellor’s decree, providing for a sale of the property and a division of the proceeds, is in accordance with the principles of equity and good conscience. In effect, Mr. Stephens was given a lien. He has reached the age of retirement and only has a small pension of $101.55 a month. He invested his life’s savings in the home; he and Mrs. Stephens agreed in writing that the property had been acquired and improved by their joint efforts. It would be unthinkable to say, in the circumstances existing here, that Mr. Stephens has no interest in the home.”

"We then quoted an earlier case stating, “It does not comport with reason that one would denude himself of all his earnings during a long period of years without making some provision for his old age.” Here, Mr. Spruill was a retired employee of Shell Oil Company, receiving a pension from that company, Social Security, and a Veterans Administration pension. He, together with his son, owned the property in Tonkawa, Oklahoma. According to appellee’s testimony (which the Chancellor evidently believed), Mrs. Spruill was not happy there, cried and complained, and asked him to sell the Oklahoma property, and build a home on Lake Conway. It is true that in the Stephens case, the parties, subsequent to the construction, recognized in writing that the home had been acquired through their joint efforts. In the instant case, Mrs. Spruill, in open court, likewise recognized that her husband had contributed the approximate amount claimed for the construction of the home. Appellee, in his brief, makes two observations that we think are somewhat significant. The first is that the house was not built on the wife’s property for the purpose of fulfilling a marital obligation to provide a home for Mrs. Spruill, for appellee was already providing a home in Oklahoma; the move to this state was simply an effort to please his wife. In the next place, it is pointed out that title was not placed in appellant at the direction of appellee, but rather, Mrs. Spruill already owned the property at the time of the transactions involved; in other words, appellee took no affirmative action to place the title in his wife, although in Stephens this was done.

Here, under the evidence, as in that case, “the Chancellor’s decree, providing for a sale of the property and a division of the proceeds, is in accordance with the principles of equity and good conscience.” This was appellant’s fifth marriage, and a second for Mr. Spruill, the marriage coming late in life. The parties only lived together for 18 months. Appellee had sold his home that he owned with his son, and, after depositing something over $3,300.00 in the Conway Bank, proceeded to contribute the amount, heretofore mentioned, to the new home, making one payment of $2,500.00 within a week after his deposit was made. Here, undoubtedly, the greater part of his savings was expended for construction of this house.

There is no error in the decree.

Affirmed.

Fogleman, J. dissents.

John A. Fogleman, Justice,

dissenting. I concur with the majority opinion in affirming the chancellor insofar as granting the divorce to Mr.. Spruill is concerned. But I must respectfully dissent from the affirmance of the trial court’s holding with reference to the real estate involved. It seems to me that the court is abandoning a rule followed by it for over eighty years, and upon which courts and the bar have relied for all that time.

In Ward v. The Estate of Ward, 36 Ark. 586, decided in 1880, it was held that the law would not imply a promise on the part of the wife to repay advances made by her husband in improving her real property, it being presumed that they were gifts.

In Hamby v. Brooks, 86 Ark. 448, 111 S. W. 277, decided June 1, 1908, it was held that no presumption would be raised in such circumstances that a husband intended to create a trust in his own favor.

In cases where the advances were by purchase of land by the husband, with conveyance made to the wife, it was held that in order to overcome the presumption of a gift and impress a trust in favor of the husband, the evidence must be clear and convincing and so positive as to leave no doubt of the fact. Hall v. Cox, 104 Ark. 303, 149 S. W. 80; Wood v. Wood, 100 Ark. 370, 140 S. W. 275; Carpenter v. Gibson, 104 Ark. 32, 148 S. W. 508; Wood v. Wood, 116 Ark. 142, 172 S. W. 860; Parks v. Parks, 207 Ark. 720, 182 S. W. 2d 470.

It is true that it has been held that such a presumption is rebuttable by preponderating-- evidence of antecedent or contemporaneous declarations and matters showing that the wife took as trustee and not beneficially, if they are fairly connected with the transaction, or are facts which existed so soon thereafter as to form part of the transaction. Della v. Della, 98 Ark. 540, 136 S. W. 927; Poole v. Oliver, 89 Ark. 578, 117 S. W. 747; Johnson v. Johnson, 115 Ark. 416, 171 S. W. 475; Parks v. Parks, supra.

The presumption that the making of improvements by a husband on his wife’s lands is a gift to her is recognized in later cases. See, for example, Aycock v. Bottoms, 201 Ark. 104, 144 S. W. 2d 43.

This court has heretofore, under these circumstances, refused to impress a trust on land in favor of a husband. O’Hair v. O’Hair, 76 Ark. 389, 88 S. W. 945. This is essential to the award of a lien on the wife’s property as was done by the chancellor below.

These principles were all reviewed and applied in Fine v. Fine, 209 Ark. 754, 192 S. W. 2d 212, when that part of the decree of the trial court awarding’ the husband judgment for expenditures made in improvements on the wife’s property was reversed by this court. The circumstances in that case would seem to me to present stronger equities in favor of the husband than are found here. There the husband had received serious ánd permanent injuries, incapacitating him. The greater portion of $1,130.00 deposited in the wife’s bank account by him from a recovery of compensation for his injuries —the exact amount of his accident insurance — was expended in improving his wife’s property. The husband claimed that he had entered into a partnership agreement with his wife whereby they would construct some rent houses on her property in order to have an income to live on in their old age. The wife claimed a gift to her. This court found the testimony in conflict and the evidence short of the “clear and convincing” effect the law requires. This case was cited as authority in Smith v. Smith, 227 Ark. 26, 295 S. W. 2d 790, where a chancellor ’s award of a judgment and lien in favor of a husband for such expenditures was reversed. Its holding has not at any time been overruled or modified.

The actions of Spruill here are no different from those of the husband in Simpson v. Thayer, 214 Ark. 566, 217 S. W. 2d 354. Dr. Simpson had made substantial improvements and paid taxes on property previously purchased by him, deeds for which had been taken in the wife’s name. In an action by which the heirs sought to have the title divested from the wife, this court said that these expenditures were all referable to his natural desire to care for and manage his wife’s property.

I have found no evidence whatever in this record to make it appear that Spruill had any desire whatever to do anything except provide a home for his wife, however unsatisfactory she may have turned out to be. I cannot find any testimony that would show anything upon which the husband’s actions were based other than a request by an unhappy Mrs. Spruill that the parties came to Arkansas because she didn’t want to live with him in Oklahoma. This, to me, falls far short of the “clear and convincing” evidence heretofore required.

The majority opinion does not in any way distinguish this case from Fine v. Fine, 209 Ark. 754, 192 S. W. 2d 212. The fact that Spruill took no affirmative action to place the title to the lot in the wife is no distinction. Neither did Fine. Nor did Smith in Smith v. Smith, 227 Ark. 26, 295 S. W. 2d 790.

The majority find support for the decree of the chancellor in Stephens v. Stephens, 226 Ark. 219, 288 S. W. 2d 957, in which this court did not even pretend to overrule any of the principles theretofore followed, hereinabove set out and so well reviewed in Fine v. Fine, supra. But many distinctions can be found between that case and this. There the realty was acquired by the joint efforts of the parties and the husband made', the down payment. He invested his entire life savings. After the construction of the home the parties realized that the title, being in the wife’s name, would not pass after her death as they desired, so they made a joint will, each leaving the other a life estate in any property owned and entered into a contract to keep the will in force. This court found evidence to rebut the presumption of gift in the will and contract. Nothing of that sort exists here. On the contrary, it appears that Mrs. Spruill has a crippled leg and is unable to work, a condition that existed at the time of the marriage; that she only has an income of $50.00 p.er month from a rental house in North Little Rock from which she must pay real estate taxes, insurance and upkeep and $20.00 per month on a mortgage to secure a loan of $1,100.00 for the house built on the property in question.

“Rules of property” have always been highly regarded by this court and it has been said that the overruling of such rules should rarely be done and, when done, it is with a great deal of trepidation. Gibson v. Talley, 206 Ark. 1, 174 S. W. 2d 551. In the cited case this court approved the following definition of a rule of property given in 54 C.J. 1110:

“A settled legal principle governing the ownership and devolution of property; the decisions of the highest court of a state when they relate to and settle some principle of local law directly applicable to title. In the plural, those rules governing the descent, transfer, or sale of property, and the rules which affect the title and possession thereto.”

The principles reviewed in Fine v. Fine, 209 Ark. 754, 192 S. W. 2d 212, seem to fit this definition well. If they are not actually “rules of property”, they are virtually such. Although we should approach their overuling with trepidation, it would be far better if we would overrule them rather than abandon them.

For the reasons stated above, I respectfully dissent from the majority opinion.

       Subsequent to the entry of the decree, Mr. 'Spruill died, and the cause was revived in the name of Lafayette L. Spruill, as ancillary administrator of the estate of Lafayette J. Spruill, deceased'.

       The charge of failing to prepare meals was, to some extent, admitted by appellant. From her testimony: “I was tired. And he come in about 2:30 [P.M.] from town with this stuff and all I could see he got mad about, he come in, brought this stuff in and. I was laying on the divan in the living room and he came in and went to cussing me. Cuss words why didn’t I have dinner on the table. And I told him why you are on a diet and your stuff is all in there. Cottage cheese and juices is what you are supposed, to eat and I had a sandwich.”

      Spruill testified that, upon being divorced, this particular payment, amounting to $80.00 per month, would cease.

      This is not difficult to understand, since Mrs. Spruill made several conflicting statements. For instance, she testified that she had been married twice previously, and flatly stated, there had been no other marriages; subsequently, however, she admitted two other marriages, testifying, as to one, that she didn’t forget it, but just didn’t want to tell about it. On another occasion, she stated that she had $102.00 in the bank (at the time of the trial), but later said that she had about $2,000.00 in a Louisiana bank, which was deposited in her daughter’s name. Also, she denied that she met Mr. Spruill through a lonely hearts club, and stated that she had never written him as “Dear Club Friend.” However, appellee offered a letter in evidence purportedly written by appellant, wherein she referred to him as “Dear 'Club Friend;” a statement also appears in the letter. “There is one thing wrong. The club give you my name as Ruby Dame. It is Ruth Dame. Not Ruby.”


author: George Rose Smith, Justice.

text:
    Theodore Fair v. State
    5242
    410 S. W. 2d 604
    Opinion delivered January 23, 1967

      Jack, Holt Jr., for appellant.

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In the court below a jury found the appellant guilty of assault with intent to kill and fixed his punishment at five years imprisonment. Here the appellant questions the sufficiency of the evidence and the trial court’s ruling upon a point of evidence.

The proof is sufficient to support the verdict. On the day of the offense the appellant, who was traveling on foot in Little Rock, engaged in what should have been a trivial dispute with a motorist about which one should precede) the other in crossing an intersection, each insisting that the other should go first. John Haydon, the motorist, finally drove past Fair and heard him use the words, “Blow your head off.” Haydon stopped at a friend’s house only two doors from the intersection. A neighbor crossed the street to tell Haydon that Fair had a gun. Haydon informed the police of the incident.

Officer Bridges responded to Haydon’s call and found the accused about two blocks down the street. When the officer approached Fair and attempted to question him, Fair unbuckled the holster of his pistol, started to draw the weapon, and said, “I’m going to blow your head off.” Officer Bridges, after a struggle, succeeded in wresting the gun away from Fair. Bridges placed Fair under arrest and took him to police headquarters, where Fair tried to seize another officer’s pistol, saying that he was going to get another gun and do a better job of it.

With respect to the sufficiency of the evidence the case is controlled by our holding in Johnson v. State, 132 Ark. 128, 200 S. W. 982 (1918). There, upon facts similar to this appellant’s encounter with Officer Bridges, we held that the act of drawing a pistol, if accompanied by a threat to use it, constitutes an assault with intent to kill. The turning point, we said, is whether the overt act is merely in preparation for an assault or is actually part of an assault. In the case at bar the jury were justified by the testimony in finding that Fair’s attempt to draw his pisol, together with his threatening language, constituted an assault with intent to kill Officer Bridges.

The challenged ruling upon a point of evidence occurred during the State’s cross examination of Fair’s sister. The deputy prosecuting attorney asked this witness where Fair had been in 1947. The witness answered, “He was in the state penitentiary in 1947, I believe.” Defense counsel objected. The court sustained the objection and admonished the jury to disregard the witness’s statement. It is now insisted that a mistrial should have been declared.

We do not approve such tactics on the part of the prosecution. Fair’s earlier confinement was wholly inadmissible and should not have been mentioned in the presence of the jury. Nevethheless the trial judge did not commit an error, for he sustained the objection to the statement and instructed the jury not to consider it. Counsel for the accused was apparently satisfied with the court’s ruling, for he did not press the matter by asking for a mistrial. In the circumstances the point now asserted was not preserved for review on appeal. Stockton v. State, 239 Ark. 228, 388 S. W. 2d 382 (1965).

Affirmed.


text:
    Dr. Frank C. Smith et ux v. Union National Bank of Little Rock
    5-4093
    410 S. W. 2d 599
    Opinion delivered January 23, 1967

      Fred A. Newth Jr., for appellant.

      W. P. Hamilton Jr. of Ghownmg, Mitchell, Hamilton & Burrow, for appellee.
   George Rose Smith, Justice.

This appeal is a sequel to an earlier one. In 1962 the appellants, Dr. Smith and his wife, conveyed property to the appellee bank upon an irrevocable trust under which the income was to be paid to the Smiths for life and thereafter to other bene•éancellation of the trust on the ground that it was voidable for want of mental capacity on their part. The trial court set the trust aside, but that ruling was reversed on appeal. Union Nat’l Bank v. Smith, 240 Ark. 354, 400 S. W. 2d 652 (1966).

Thereafter the bank as trustee filed the present petition, asking the chancery court to fix a fee, to be paid from the trust property, for the services of its attorneys in defending the validity of the trust. The chancellor ficiaries. Two years later the Smiths brought a suit for they wanted to file a petition to make the bank’s petition more definite and certain and that Mr. Hardin, the Smiths’ original attorney, had engaged Mr. Newth as co-counsel only a few days earlier. The chancellor denied the request for a continuance.

We find no abuse of the court’s conceded discretion in the matter. We do not see how a petition for the determination and allowance of an attorney’s fee could be made much more definite or certain. That was apparently the view of the appellants ’ lawyers, for they filed a response resisting the petition on its merits. The trus-

granted the relief sought, allowing a fee of $3,500. The appellants urge three unrelated points for a reversal of the decree.

First, it is contended that on the day of trial the appellants were entitled to a continuance. Their counsel had filed a response to the trustee’s petition, contesting the liability of the trust estate for the requested fee and affirmatively seeking an increase in the trust income payments to the Smiths. The case was set for. trial on May 13, 1966. On that day the trustee appeared with its witnesses, ready for trial. The Smiths’ attorneys made an oral motion for a continuance, saying that tee came to court with its witnesses, prepared for trial. The court was ready to hear the case. The reasons underlying the request for a delay not only were insubstantial but also were of such a nature that they might with diligence have been asserted before the day of trial. The chancellor acted well within the limits of his discretion in proceeding with the hearing.

Secondly, the appellants suggest that the trial court was without jurisdiction for the reason that the mandate of this court, reversing the original decree, had not been filed when the present petition was heard. The mandate, however, is merely evidence of the trial court’s reacquisition of jurisdiction, and the filing of that evidence may be waived. Bertig Bros. v. Independent Gin Co., 147 Ark. 581, 228 S. W. 392 (1921). In the case at bar the chancellor observed at the outset of the hearing that the mandate had not been filed. Neither side expressed any objection to going ahead with the trial in the face of that deficiency. Had there been any protest about the absence of the mandate the irregularity could have been quickly corrected by a routine application to the clerk of this court. It is not our practice to reverse the action of the trial court when a party fails to object to a procedural defect that could have been readily supplied had the point been raised seasonably. Degen v. Acme Brick Co., 228 Ark. 1054, 312 S. W. 2d 194 (1958). We hold that the filing of the mandate was waived.

Thirdly, the appellants maintain that the trustee’s attorneys lost their right to be paid from the trust estate by.failing to request their fee when the case was in this court upon the first appeal. Not so. When a party’s attorney’s fee is to be paid by his adversary, as in a divorce case or an action against an insurance company, we customarily fix the fee for services in this court. We are familiar with the legal services rendered on appeal and are in a better position than the trial court to fix a fair fee.

That is not the situation here. The trustee seeks to pay its own attorney, not that of its adversary. It might have paid its counsel merely upon the submission of their bill for services. Instead, to give the beneficiaries an opportunity to be heard, the trustee chose the alternative course of asking the chancellor to determine the allowance. Evidence was heard — a procedure not available when the request is addressed to us. The beneficiaries were afforded their day in court. We find no want of jurisdiction in the trial court to handle the matter in a manner manifestly fair to all concerned.

Affirmed.


author: Paul Ward, Justice.

text:
    City of Ft. Smith v. Charles C. Anderson, et ux
    5-4097
    410 S. W. 2d 597
    Opinion delivered January 23, 1967

      Daily & Woods, for appellant.

      Garner & Parker, for appellee.
   Paul Ward, Justice.

Mr. and Mrs. Anderson (appellees) filed a complaint in circuit court against the City bf Fort Smith (appellant) to recover danlágés;,tb' their home and furniture caused by a seepage or overflow of sewage. Appellant entered a general denial and, after a trial, the jury returned a verdict in favor of appellees in the amount of $3,000, hence this appeal.

The facts here stated are not in dispute. In 1963 appellant enacted ordinance no. 2431 for the purpose of rehabilitating its existing sewer system, and to finance the cost from the proceeds of sewer revenue bonds in approximately the sum of $6,500,000. The proposed project was carried out promptly.

Appellees bought and occupied a home on North “T” Street which was within the area of the completed sewer system. On December 16, 1964 their house and furniture were extensively damaged by sewage which covered the floor of the house. Appellant was notified, the cause of the sewage overflow was promptly eliminated and there has been no reoccurrence of sewage trouble since.

The extent of the damage is immaterial in view of the conclusion hereafter announced.

1. Appellant, in this case, was acting in a governmental capacity and could not, therefore, be sued in tort. In the case of Kirksey v. City of Fort Smith, 227 Ark. 630, 300 S. W. 2d 257 we said:

“. . . a city in the operation of waterworks, electric light plants, sewer system, etc. was engaged in governmental functions, and not liable in damages for negligence of its officers.”

To the same effect see: Jones v. Sewer Improvement District of Rogers, 119 Ark. 166, 177 S. W. 888, and Cabbiness v. City of North Little Rock, 228 Ark. 356, 307 8. W. 2d 529.

2. However, appellees, in their complaint, alleged: that the ordinance obligated them “to pay for sewer service” which, “created a contractual obligation or quasi contractual obligation on the part of the City to properly maintain the sewer system .. .”, but,that'“said City refused to make corrections in said sewer system and; that appellant thereby breached its contract and created a nuisance to the “damage” of appellees.

(a) There is no substantial evidence to prove a contract. At page 112 of the transcript appellees “admitted that there is no contract between the City and the Andersons other than this ordinance”: "We have carefully examined the ordinance (as abstracted by appellees) and find only one mention of a contract which reads “that by contract special rates can be established”, referring to charges for sewer services to be paid by appellees.

(b) Neither is there any substantial evidence in the record to show a nuisance was created by any defect in the sewer system; and certainly there is no substantial evidence that a permanent nuisance was created.

Even though it be conceded, for the purpose of this opinion, that the evidence does show a temporary nuisance was created, appellees would not be entitled to the relief granted by the jury. Our decisions appear t.o be unanimous in holding that appellees’ only remedy for relief would be to require the City to abate the temporary nuisance.

In the case of St. Francis Drainage District v. Austin, 227 Ark. 167, (pp 172-173) 296 S. W. 2d 668, we approved this statement:

“If, when and after the plant has been completed, it is so maintained or operated as to become.a nuisance, relief must be obtained by suit to abate the nuisance. ’ ’

In Jones v. Sewer Improvement Dist. No. 3 of Rogers, supra, this Court said:

“As we have already seen, this Court has uniformly held that neither municipal corporations nor local improvement districts nor their officers may he sued at law or tort; hut it does not follow that in a proper case they may not be enjoined from creating a nuisance or be required to abate one already created by them.”

It follows, from what we have said above, that the judgment of the trial court must be reversed, and it is so ordered.


author: Lyle Brown, Justice. Conley Byrd, Justice,

text:
    P. A. Russell v. South Arkansas Oil Company
    5-4084
    410 S. W. 2d 865
    Opinion delivered January 23, 1967
    [Rehearing denied February 27, 1967.]

      Gaughan & La/ney, for appellant.

      Spencer & Spencer and Don Gillaspie, for appellee.
   Lyle Brown, Justice.

This litigation stems from the cancellation of a ten-year lease held by South Arkansas Oil Company on a filling station site. The lease would not normally expire until August 24, 1967. In May 1965 South Arkansas Oil Company filed suit alleging breach of the lease by the defendant, P. A. Russell, and seeking damages. Russell averred that the Oil Company had in fact breached the lease and prayed for damages. The Chancellor declared that the lease was voided by the actions of the lessor, Russell, as of August 1, 1964. Damages were denied either party, and P. A. Russell appeals. The principal issue is the determination of which party breached the lease and the date of the breach.

Russell owned the filling station site and improvements thereon in Camden, and in August 1957 executed a ten-year lease to W. R. MeHaney. Appellee, South Arkansas Oil Company, shortly took over the lease by assignment from MeHaney. The lease rental to Russell was based on gallonage sales, but with a minimum payment of $1,200.00 annually, payable $100.00 monthly. The station was equipped with tanks, pumps, signs, etc., belonging to the Oil Company and stocked with its products. The venture was apparently never profitable. .Several operators conducted the business over the years, but the rentals to Russell never exceeded the minimum of $100.00 monthly.

In 1962 the Oil Company and Russell entered into an oral agreement under which Russell became the station operator. The operating agreement was admittedly vague but apparently the Oil Company was to .'continue to honor lease payments and pay the utilities, whereas Russell would market their products. This arrangement began on a temporary basis, the principal purpose being to keep the station open until the Oil Company could find a suitable operator.

According to the executive officer of the Oil Company, Russell’s operation was not profitable to the company. Wadsworth, the Oil Company executive, testified that in 1963 he sent two different individuals to Russell to take over the operation and Russell refused to give possession; that in April 1964 he wrote Russell to either pay the utilities or close the station; that a similar written demand was made in June; that in July 1964 Wadsworth went to the station and personally demanded possession and it was refused; that a few days later he wrote Russell to ‘ ‘.. . deliver the keys to such station to us as soon as possible and vacate the premises. In the event yon are still in the station on Angnst 1, 1964 . . . then we will consider that you are voluntarily voiding our lease with you.”

This demand brought no response and, according to Wadsworth, he made the last lease payment of $100.00 to cover July rent. He directed that utility bills no longer be billed to the Oil Company. In December 1964 a Mr. Pate was operating the station and marketing a competitor’s product. Pate had bought Russell’s stock.

The only further contact of appellee Oil Company with this station (according to its executive officer) was in regard to its equipment. He allegedly contacted the jobber whose products were there merchandised concerning rent for the Oil Company’s equipment. No agreement was reached. This was in December 1964. Then in January 1965 the Oil Company removed its equipment.

It would serve no useful purpose to recount the testimony of Russell. Suffice it to say that he disagreed with the Oil Company’s witness concerning Russell’s refusal to give possession. In view of Wadsworth’s testimony we cannot say the findings of the Chancellor that Russell breached the lease are against the preponderance of the evidence.

The only other witness offered to sustain Russell’s contention that he did not breach the lease was James Anderson, a liquor store operator at Cullendale. His testimony tends to support Russell’s theory that the Oil Company was exercising control over the property after August 1, 1964. Anderson testified that in late August or early September he contacted Russell about renting the station; that he made an oral agreement with Wadsworth to rent it and paid him $100.00; that he posted $100.00 good faith money with Russell to assure the latter he would buy his stock when he took over; that within a matter of weeks he gave up the idea and did not seek to reclaim the two payments.

The action of Wadsworth with respect to accepting the payment from Anderson is difficult to reconcile with his contention that the lease terminated the previous August. However, his company still had substantial equipment on the premises; they were anxious to see an operator installed who would market their products instead of those of a competitor; and Wadsworth said he explained to Anderson that the Oil Company no longer held a lease. Furthermore, it must be remembered that Bussell refused the payment. The Chancellor concluded that this transaction was not an act of dominion or control over the premises by Wadsworth, and we are unable to say his finding on this point was against the preponderance of the evidence.

Bussell’s claim for damages alleged to have been committed by the Oil Company in removing the underground tanks, pumps, etc., was likewise rejected by the Chancellor. Here again the testimony was conflicting.

This is one of those cases of conflicting testimony and circumstances. Absent the findings of the Chancellor, it would be most difficult to decide on the cold record. But, as so ably stated by Justice McFaddin in the case of Orrell v. E. Barton & Co., 240 Ark. 211, 398 S. W. 2d 685 (1966):

“The Trial Court had the opportunity to observe the witnesses’ demeanor, appearance, mannerisms, candor or lack of candor, and consequently was in a much better position than is this Court, which sees only the typewritten page, to judge the credibility of the witnesses and the weight to be given the testimony of each.”

The decree of the Chancery Court is affirmed.

Byrd, J. dissents.

Conley Byrd, Justice,

dissenting. The parties agree that after August, 1964, Mr. Anderson wanted to obtain a lease upon the service station involved and that he contacted Mr. Wadsworth, an officer of appellee and paid him $100 for a month-to-month lease on the premises. The testimony of Mr. Wadsworth is that he accepted the $100 and tendered same to Mr. Russell, the appellant, less certain utility expenses which Mr. Wads-worth had earlier claimed he was entitled to withhold at the time he had the utilities cut off. The facts also Show that Mr. Wadsworth did not attempt to remove the equipment until after he was informed of the provision in the lease that the equipment automatically belonged to appellant if appellee abandoned the lease, and then not until he saw his competitor’s gasoline being sold through his tanks by Mr. Pate.

In view of the fact that Mr. Wadsworth wrote appellant on April 13, 1964, that the service station lease was an unprofitable venture from which he would like to he released, I cannot regard his conduct in accepting the rental check from Mr. Anderson as anything hut an act of dominion over the premises at that time. Mr. Wadsworth’s explanation that he intended to lease only his equipment to Mr. Anderson does not comport with his conduct in accepting $100 rent and forwarding same to appellant. Furthermore, Mr. Anderson testified positively that he rented the premises from Mr. Wadsworth.

Therefore, I dissent from the affirmance of the trial court’s finding that appellant terminated the lease on August 1, 1964.


author: Conley Byre, Justice.

text:
    F. E. McCray et al v. Lyle B. Marshall et ux
    5-4063
    410 S. W. 2d 595
    Opinion delivered January 23, 1967

      E. L. 8chieffler, for appellant.

      Hall, Purcell, Boswell & Tucker, for appellee.
   Conley Byre, Justice.

Involved in this appeal is the title to 2.4 acres of land described as “all of the E% of NW& NE14 Sec. 3, T-2-S, R-15-W, lying West of Old Hwy. No. 70.” The trial court quieted title to the 2.4 acres in appellees, Mr. and Mrs. Lyle B. Marshall, as the owners by adverse posession. For reversal the appellants, who are the heirs at law of Mr. and Mrs. W. N. McCray and are the record title holders, relied upon the following points:

1. Appellees did not come into equity with, clean hands.

2. The record shows that appellees were not claiming hostile to the whole world because they permitted a house to be built on the area by Ouletta Enterprises without objection.

3. Appellees were holding same by mistake.

4. The trial court erred in admitting a photograph.

The record shows that the appellants’ decedents acquired title to the lands in question by deeds in 1914 and 1918. Mr. and Mrs. W. N. McCray died while appellants were in their teens, over forty-five years ago. Appellants testified that they visited the lands from time to time and that same had never been fenced. Mr. Marshall testified that when he purchased his 180-acre farm in 1950 the lands in question were fenced in with his farm, that he thought the lands were part of the land which he purchased, and that he had claimed all the way to the highway since he had taken possession of his farm. Neighbors living in the area who had been familiar with the lands for more than thirty years, testified that the strip of land in question had been fenced with the farm purchased by Mr. Marshall and that the lands had always been considered a part of the farm owned by Mr. Marshall.

This particular controversy developed in 1962 when a survey was made for a county road to the river run.ning west from Old Highway No. 70, now Highway No. 5.The surveyor at that time informed Mr. Marshall that he had some “lost land” between his and the highway —i. e., the land was not on the tax books. Thereafter Mr. Marshall had it placed on the tax books for the tax year of 1962 and subsequently offered to give appellants $300 for a quitclaim deed to clear up his record title. It was Mr. Marshall’s thinking that it would be cheaper to pay $300 for a quitclaim deed than it would be to bring an action to quiet his title.

Some time before this action was filed, Onletta Enterprises, Inc. began construction of a house on a portion of the 2.4 acres which had been platted as Lot 1, Bel Monte Estates Subdivision. However, Ouletta Enter-prices, Inc. was not made a party to the litigátion.

Appellants ’ argument that the Marshalls are barred by the Clean Hands Doctrine is apparently based upon certain statements allegedly made by Mr. Marshall on the telephone when he tried to purchase the outstanding record title for $300, with reference to tax payments since 1950; and upon the further premise that he knowingly permitted Ouletta Enterprises to build a house on the premises without objection. There is nothing in the record to show that the appellants were misled in any way by the alleged statements, nor is there anything to show how appellants are injured by Mr. Marshall’s alleged conduct toward Ouletta Enterprises. Consequently we hold this contention without merit.

The second point urged, that the Marshalls were not making a hostile claim to the lands against the whole world, is based upon the testimony of a subcontractor that he built a brick house on the premises for Ouletta Enterprises within view of the Marshall home without objection from the Marshalls. Here again the record fails to show the connection of Ouletta Enterprises with either party, and since there was ample evidence to sustain the chancellor’s finding of adverse possession in favor of Mr. Marshall before Ouletta Enterprises entered the premises, we hold this contention to be without merit.

Nor can we find any merit in the allegation that the Marshalls were holding the land by mistake. When the evidence is viewed in its entirety, the clear preponderance thereof shows that it was considered part of premises owned by the Marshalls and their predecessors for more than thirty years; that it had been enclosed by a fence which also enclosed the farm owned by the Marshalls and their predecessors; and that the Marshalls were definitely claiming that they owned the lands.

The photograph of which appellants complain is a IT. S. Department of Agriculture conservation plan aerial photograph on a scale of eight inches to a mile. Before the chancellor permitted it to be introduced it was ascertained that it accurately showed a picture of the lands involved, the location of the Marshall home and the location of the highway about which many witnesses testified. We think it was properly introduced for these purposes.

Affirmed.


author: Per Curiam.

text:
    Helen Loretta McIntyre v. Leon Bennett McIntyre
    5-4051
    410 S. W. 2d 117
    Opinion delivered January 23, 1967
    [Original opinion delivered December 12, 1966, p. 623.]
   Per Curiam.

Rehearing is denied, but an examination of the record and the opinion rendered on December 12, 1966, reveals that certain statements in the opinion are, perhaps, erroneous. The original opinion seems to assume that appellant continues in possession of the real property in question. The record, however, reveals that the appellant was given possession of this real estate on which the home of the parties was located by the original decree, based on the agreement of the parties, only until appellee finished paying for certain American Telephone and Telegraph Company stock.

It is undisputed that appellant had already vacated the property by the time the stock was paid for; that appellee then took possession and lived in the home in•termittently until he married his present wife and since íhat marriage he has lived there most of the time. Appellant testified that, under their agreement appellee wanted to live there, that it was fair for him to have the house to live in, and that if he still wanted to live in it and use it, she had no objection.

The present possession of the property should not be interrupted on the basis of the matter now before the court, so we amend the original opinion to direct that appellee’s possession (instead of- appellant’s) be not disturbed prior to sale of the property.


author: Carretón Harris, Chief Justice.

text:
    J. C. Reed v. State
    5208
    411 S. W. 2d 285
    Opinion delivered January 30, 1967
    [Rehearing denied March 6, 1967.]

      Jeff Duty, for appellant.

      Bruce Bennett, Attorney General; Richard B. AdJcisson, Asst. Atty. Gen., for appellee.
   Carretón Harris, Chief Justice.

This appeal relates to the power of the Circuit Court to grant suspended sentences, and subsequently to revoke same. J. C. Reed, appellant herein, was charged with the crime of burglary, and on January 7, 1963, entered a plea of guilty. The Circuit Court sentenced him to three years in the State Penitentiary, but deferred the pronouncement of sentence, dependent upon the good behavior of appellant. On October 24, 1963, Reed was ordered to appear to show cause why sentence should not be pronounced upon him, and, on November 21 of the same year, the hearing having been continued to that date, the court sentenced appellant to serve one year of the three year term, and stated:

“Pronouncement of sentence of the remaining two years be and is hereby deferred upon the proper behavior of the defendant during the remaining two-year period.”

Thereafter, Reed was ordered to again appear on March 30, 1965, to show cause why the additional two years of the original sentence should not be pronounced, but appellant failed to appear, and the clerk of the court was directed to issue a warrant of arrest for him. Appellant was arrested on February 14, 1966, and on February 18, 1966, in open court, the court sentenced Reed to serve the remaining two years, finding that appellant had voluntarily withdrawn from the court’s jurisdiction about February, 1965. From this judgment, appellant bring this appeal.

For reversal, it is first argued that the trial court lost jurisdiction to revoke the suspension after the passing of three years from the time of the original suspended sentence (January 7, 1963). We find no merit in this assertion. The last “show cause” order was issued in March, 1965, well within the three-year period. The court found that officers were unable to locate Reed in Washington County or within the State of Arkansas, and that the parole officer, after a diligent search, was unable to find appellant. It was then found:

<<#”that the voluntary and willful withdrawal of the defendent from the Jurisdiction of the Court on or about February, 1965, and the failure to make reports to the parole officer, or to receive permission to leave the State, and his failure to appear after notice was given to show cause, constitute and serve to toll the remainder of the three-year statute of limitation within which the Court could exercise his right of pronouncement of sentence on the defendant.”

In Parkerson v. State, 230 Ark. 118, 321 S. W. 2d 207, we held that the fact that the actual hearing on a petition (filed during the period of suspension) for the revocation of a suspended sentence, was not heard until a date beyond the period of suspension, did not divest the trial court of jurisdiction to revoke said suspended sentence. In that case, the hearing was not held until after the period of suspension had expired because of the fact that the defendant had undergone major surg'ery, and was not able to appear in court. Here, there are more cogent reasons for holding that the court had not lost jurisdiction, for Reed had voluntarily absented himself from the county and state, and could not be found by the officers. Undoubtedly, had this not happened, the hearing would have been held nearly a year earlier. For this court to hold as appellant urges, would simply mean that once a defendant received a suspended sentence, he would need only to go to some locality where he could not be found, and remain there until after the expiration of the period of suspension; he would then be free of any restraint of his personal conduct, occasioned by the court’s leniency in holding in abeyance the execution of the sentence. We hold this contention to be without merit.

Appellant next urges that the court retained no power to impose the additional term of two years, after earlier sentencing Reed to a one-year term, that term having been served; that there was no power to render a “piece meal’’.sentence. It is insisted that the court was without authority to revoke only a part of the deferred sentence, and suspend the remainder; that, after Reed was committed to the State Penitentiary under the November 21, 1963, order, the authority of the Washington Circuit Court was exhausted. Appellant relies principally upon Emerson v. Boyles, 170 Ark. 621, 280 S. W. 1005, but that case is not in point. It involved the question of whether a sentence could be set aside, the prisoner returned from the penitentiary, and the case continued. This court held, properly, that the defendant could not be placed in double jeopardy, and quashed the judgment of the Pulaski County Circuit Court, which had ordered Boyles released.

There is authority to support the argument by appellant ; in fact, it may be that his position is supported by the majority view. However, we are not favorably impressed with the rationale of the decisions that we have read, and consider the procedure urged by appellant to be in conflict with our own statute. Ark. Stat. Ann. § 43-2324 (Repl. 1964) gives the judge trying a case authority to postpone the pronouncement of final sentence and judgment upon such conditions as he shall deem proper and reasonable for probation, the section concluding with this phrase:

“* * * provided, however, the Court having jurisdiction may at' any time during the period of suspension revoke the same cmd order execution of the full sentence.” -.(Out emphasis in each instance)

We particularly call attention to the italicized words, and, in fact, many of our Circuit Courts have, for some period of time, followed the procedure here under attack. The South Carolina Supreme Court had a similar question before it in the case of Moore v. Patterson, 203 S. C. 90, 26 S. E. 2d 319. In affirming the General Sessions Circuit Court, the Supreme Court stated:

“The question then is: Can a Circuit Judge impose a sentence of imprisonment in a case of this sort and provide in it that after the defendant shall have served a part of the time he be placed on probation for the remainder of the term?”

The court then pointed out that, in imposing sentences, the Circuit Judges of the state had followed the practice in misdemeanor cases of imposing only a part of the sentence, and suspending, during good behavior, the execution of a part of the sentence. It was then said:

‘ ‘ In 1941 the Legislature adopted the probation and parole act, sections 1038-1 to 1038-16 of the Code. The first section of this Act reads as follows: ‘After conviction or plea for any offense, except a crime punishable by death or life imprisonment, the judge of any court of record with criminal jurisdiction at the time of sentence may suspend the imposition or the execution of a sentence and place the defendant on probation or may impose a fine and also place the defendant on probation.’

“It will be noted that this Act extends the power to suspend sentences to a great many felonies, as well as misdemeanor.

“In view of the long prevailing and approved practice in cases of misdemeanors, before the adoption of the probation law, it is our opinion that Section 1038-1, giving the trial Judges the power to suspend the execution of the entire sentence and to place the defendant on probation, is also intended to give them the right at the time of the sentence to provide for a suspension of a part of such imprisonment and a placing of the defendant on probation, after serving a designated portion of the term of imprisonment.”

It seems to us that our statute even more clearly gives the trial court the right to follow the procedure which is here in issue.

After all, how can the defendant properly complain, or contend that he was prejudiced under the circumstances related? To begin with, his entire sentence was suspended, and, by the observance of proper and legal conduct, Reed would never have served any part of the three-year sentence. Yet, though violating the conditions of the suspension (which would have justified the court in imposing the full sentence), the judge still, though punishing to some degree the departure from good behavior, gave appellant another chance by suspending the remainder of the three years. Again, appellant had the opportunity to avoid serving the balance, but as before, he violated the trust that had been placed in him. Our Legislature, as well as the courts, has recognized the value and justness of permitting suspended sentences in deserving cases, but it does not follow that one can take advantage of a court’s generosity, in requiring a defendant to serve only a small portion of his sentence, and then contend that he should go absolutely free.

Affirmed.

      . For instance, see Act 438 of 1965, which supplements the statute herein discussed.


author: George Rose Smith, Justice. Conley Byrd, Justice,

text:
    Mattie Jordan Coleman et al v. Sally Walls, Ex’x
    5-4078
    410 S. W. 2d 749
    Opinion delivered January 30, 1967

      L. Hobson Mahon, for appellant.

      Forrest E. Long, for appellee.
   George Rose Smith, Justice.

This is a contest of the will of Mary Gaines Jackson, who died January 10, 1963. The will in question was executed on November 8, 1962. The appellants objected to its probate on the ground that the instrument was not signed and witnessed in the manner required by law and on the additional ground that the testatrix lacked testamentary capacity. The probate court sustained the will. Here the appellants attack the will upon the same grounds that were asserted in the court below.

We consider first the validity of the testatrix’s signature. When the will was executed the testatrix, Mrs. Jackson, was about a hundred years old. For the preceding seventeen or eighteen years she had been totally blind. Before her affliction Mrs. Jackson had been able to read and write, but the contestants proved by several 'witnesses that after she lost her sight she made no attempt to write and customarily signed her name by mark. Inasmuch as the will bears the testatrix’s purported signature, the appellants insist that it could not have been genuine.

This argument fails to take into account the proponents’ proof. The typewritten will was prepared by Florence D. Sands, who was present at its execution. Mrs. Sands testified that after reading the will aloud she assisted the testatrix in signing it. The pen was in the testatrix’s hand, but Mrs. Sands helped her write her name. The signature, as it appears upon a photostatic copy of the will in the record, is not illegible, but the letters are so badly formed as to confirm Mrs. Sands’ testimony.

Upon this point the ease is governed by Vines v. Clingfost, 21 Ark. 309 (1860). There the testator was so feeble that the draftsman of the will guided .the r testator’s hand as he signed the instrument. We upheld the will, saying: “If one having testamentary capacity, is unable from palsy or other cause, to steady his hand so as to make to his will the signature required by law, another person may hold his hand and aid him in so doing; and it is not necessary to prove any express request from the testator for such assistance. The act is his own, with the assistance of another, and not the act of another under authority from him. ’ ’ In the case at bar the testimony convinces us that the testatrix intended tq sign the will and merely accepted aid in carrying out her purpose.

We come next to the formalities attending the execution of the will. Mrs. Jackson was in bed whé’h she signed the will. The two attesting witnesses, Fréd L. Harris and Marie Ellison, then came separately into the room and signed the will beneath a typical attestation clause. The appellants seem to contend, though this is not clear, that the two witnesses were required to sign the will in the presence of each other.

There has never been any requirement in Arkansas that the two witnesses sign in the presence of each other, though in construing our original statute we said that such a course might be most prudent. Rogers v. Diamond, 13 Ark. 474 (1853). In fact, very few states have such a requirement, and where it exists it is clearly expressed in the statute. Atkinson, Wills, 295 (1937).

The Probate Code made no change in our law in this respect. We quote the pertinent section of the Code, Ark. Stat. Ann. § 60-403 (Supp. 1965):

The execution of a will, other than holographic, must be by the signature of the testator and of at least two witnesses as follows:
a. TESTATOR. The testator shall declare to the attesting witnesses that the instrument is his will and either
(1) Himself sign; or
.(2) Acknowledge his signature already made; or
(3) Sign by mark, his name being written near it and witnessed by a person who writes his own name as witness to the signature; or
(4) At his discretion and in his presence have someone else sign his name for him, (the person so signing shall write his own name and state that he signed the testator’s name at the request of the testator); and
(5) In any of the above cases the signature must be at the end of the instrument and the act must be done in the presence of two or more attesting witnesses.
b. WITNESSES. The attesting witnesses must sign at the request and in the presence of the testator.

It will be seen that the section contains two subdivisions. Subsection a is headed “Testator” and deals only with the manner in which the testator is to execute the will. The requirement that ‘ ‘ the act must be done in the presence of two or more witnesses” discloses no legislative intention to require that the witnesses sign in each other’s presence.

Subsection b is headed “Witnesses” and requires merely that the witnesses sign at the request and in the presence of the testator. Had the legislature intended to change the law, clearly the modification would have been inserted in subsection b. Our conclusion is reinforced by Official Probate Form 4, “Proof of Will,” 214 Ark. xix. That form, prepared by the draftsmen of the Code and promulgated by this court, contains no recitation that the witnesses signed in the presence of each other.

Only one of the attesting witnesses, Harris, testified, and he did not explicitly state that Mrs. Jackson acknowledged her signature and requested him to sign as a witness. He did say, however, that he was told that the instrument was a will and that he was asked to sign it. Mrs. Sands, a disinterested witness who was present throughout the execution process, testified clearly that the testatrix knew what she was doing and that the two witnesses came in and signed the will in her presence. The testimony is sufficient, under our decisions, to support an inference from the circumstances that all the statutory provisions were substantially complied with. Hanel v. Springle, 237 Ark. 356, 372 S. W. 2d 822 (1963); Leister v. Chitwood, 216 Ark. 418, 225 S. W. 2d 936 (1950).

We need not discuss the remaining issue, that of testamentary capacity, in detail. The contestants’ proof was directed principally to the testatrix’s asserted inability to write her name. The one medical witness testified that Mrs. Jackson suffered from senility, that her mind would come and go. He did not attempt to say unequivocally that the testatrix lacked testamentary capacity on the day the will was executed. The lay testimony preponderates in favor of the view that Mrs. Jackson had sufficient mental ability to meet the familiar tests of testamentary capacity. Finally, there is nothing of an unusual nature in the will itself. There is a devise of real property to the testatrix’s only child, a bequest of personal property to her brother and sister, and a devise of real property to her niece, Sally Walls, who had lived in Mrs. Jackson’s home and taken care of her for more than a year. Upon the record as a whole we are convinced that the probate court correctly upheld the will.

Affirmed.

Byrd, J., concurs.

Harris, C. J., dissents.

Conley Byrd, Justice,

concurring. This is an appeal by Mattie Jordon Coleman et al., heirs at law of Mary Gaines Jackson, from a decree admitting to probate a will executed some three months before the aged testatrix’s death. The contestants allege that the will was not signed by the testatrix in the manner required by law; that it was not properly attested by the witnesses in the presence of each other; and that the testatrix did not have sufficient testamentary capacity.

Contestants’ first point is directed to the fact that the .will bears testatrix’s purported signature. During the trial much testimony was directed to the fact that testatrix became blind 17 or 18 years before her death and that she did not thereafter attempt to write. There was also proof to the effect that testatrix had made other wills before tbe present one was executed and'that testatrix had executed tbe previous wills with an “X.” However, tbe draftsman of tbe will, a Mrs. Sands, testified that, after reading tbe will to the testatrix, she “sorta held her band to keep it on the line” while she signed the will.

We held in Vines et al v. Clingfost, Exr., 21 Ark. 309 (1860), that where tbe testator holds tbe pen in subscribing bis name to tbe will, and another person guides it, tbe signature thus made is tbe act of tbe testator and that it was not necessary for tbe person guiding tbe testator’s band to sign the will as an attesting witness to tbe signature. Under tbe circumstances, we bold that tbe trial court’s finding of validity on this issue is not contrary to tbe evidence.

Tbe second point raises tbe issue of whether a will is validly executed when not attested by the witnesses in tbe presence of each other. Tbe Probate Code, Ark., Stat. Arm. § 60-403 (Supp. 1965), provides'as follows, to-wit:

Execution. — Tbe execution of a will, other than holographic, must be by tbe signature of tbe testator and of at least two witnesses as follows:
a. . . .
(1) Himself sign;, or
(5) In any of tbe above cases tbe signature must be at tbe end of tbe instrument and the act must he done in the presence of two or more attesting witnesses. (Emphasis supplied.)

This section of the Probate Code was. before tbe court in Ash v. Morgan, 232 Ark. 602, 339 S. W. 2d 309 (1960). In commenting upon tbe necessity for tbe witnesses to attest tbe will in tbe presence of each other, tbe court used tbe following language, to-wit:

“We think it evident from the above admitted .facts that the sections of § 60-403 specifically requiring that a will to be valid must be executed ‘in the presence of two or more attesting witnesses... [and] the attesting witnesses must sign at the request and in the presence of the testator’, were not complied with, and therefore the will must be and is declared invalid.
But, says appellant, there was substantial compliance with the statute here involved (Ark. Stats. § 60-403). What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case. Here neither of the alleged attesting’ witnesses signed in the presence of the testator, nor in the presence of each other.” (Emphasis supplied.)

Consequently, the writer is of the opinion that under the Probate Code, Ark. Stat. Ann. § 60-403 a(5) (Supp. 1965), it is a prerequisite to the validity of a will that the attesting witnesses must attest the testator’s execution or the acknowledgment thereof in the presence not only of the testator but of each other. Other members of the court, relying on Rogers v. Diamond, 13 Ark. 474 (1853), take the position that there has never been any requirement that the attestation by two witnesses must be in the presence of each other. However, the statute (now codified as Ark. Stat. Ann. § 60-104 [1947]) upon which Rogers v. Diamond, supra, was based reads substantially different from Probate Code, quoted above. The statute there relied upon provided that the subscription by the attesting witnesses “.. shall he made by the testator in the presence of each of the attesting witnesses...” (Emphasis supplied.) When the foregoing language is compared with the present Probate Code, i. e. “... the act must be done in the presence of two or more attesting witnesses,” it appears that the Probate Code, Ark. Stat. Ann. § 60-403 a(5) (Supp. 1965), changed the law to conform to what this court said in Rogers v. Diamond, supra, would be the most prudent course.

Having decided that the Probate Code requires that the witnesses attesting a will must do so in the presence of the testator and each other, it does not necessarily follow that the witnesses in this case did not attest the will in the presence of each other as the term “presence” has been interpreted under the so-called “conscious presence” tests. In re Hoffman's Estate, Dist. Ct. of App., 290 P. 2d 669 (Cal. 1955).

The only attesting witness who testified stated he was one of the witnesses to an instrument that they said was a will, and that he and the other attesting witness had been eating in the kitchen before they went into the room where the testatrix and Mrs. Sands were. They asked him to sign first and after he signed he immediately left the room and went out in the back yard. He didn’t know what happened after he left the room, but the other witness (Marie) told him that she had signed her name.

Under any practical interpretation of the statutory provision, Ark. Stat. Ann. § 60-403 a(5) (Supp. 1965), requiring the execution of a will “in the presence of two or more attesting witnesses,” the execution described obviously was attested by the witnesses in the presence of each other.

On the issue of testamentary capacity, the testimony was conflicting. While most of the contestants’ attack was directed to the asserted inability of the testatrix to write, there was testimony which, if believed by the trial court, would have sustained a finding in their favor. However, the testimony of the will draftsman and others to the effect that testatrix’s mental state was reasonably clear; that even with her blindness she would sometimes recognize her friends and kindred; and that she knew her relatives, and also knew what property she owned, was sufficient to sustain the trial court’s finding to the effect that she had sufficient testamentary capacity to make the will.

Therefore I concur in the affirmance.


text:
    William Jackson v. State
    5166
    410 S. W. 2d 766
    Opinion delivered January 30, 1967

      Coleman, Gantt, Ramsay & Cox, for appellant.

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. Gen., for appellee.
   Paul Ward, Justice.

This appeal comes .to us under Criminal Procedure Rule No. 1.

On March 2, 1964 William Jackson (appellant) was tried and convicted for the crime of burglary and sentenced to five years in the penitentiary. The information charged that he and Timothy Hawkins, on November 18, 1963, unlawfully broke into a grocery store owned by Howard Baker in Jefferson County with the intent to commit burglary. No appeal was taken, but on July 26, 1965 appellant filed a petition for a writ of habeas corpus in tbe Jefferson County Circuit Court alleging his constitutional rights had been denied at the 1964 trial. The petition was denied and, on certiorari to this Court, we granted this appeal. The case is now here for a review of the record made at the 1964 trial.

For reversal appellant relies on three separate assignments of error.

One. Two days after the burglary was allegedly committed appellant (and Hawkins, an accomplice) became involved in an alleged robbery in Jackson, Mississippi, and both were apprehended there by enforcement officers, and appellant was later returned to this,State. He allegedly made certain incriminating statements to officers tending to involve him in the burglary in this State. These incriminating statements were admitted in evidence at the 1964 trial over proper objections.

It is here contended by appellant that the admission of said statements violated his constitutional rights because he was not advised of his rights to remain silent and to be represented by counsel. In support of his contention appellant relies on the holdings in Escobedo v. State of Illinois, 378 U. S. 478 and Miranda v. Arizona, 384 U. S. 436.

Conceding, for the purpose of this opinion, appellant is correct in his interpretation of the holdings in the above mentioned eases, his contention for a reversal must fail. As previously pointed out appellant was convicted on March 2, 1964. The Escobedo case was decided on June 22, 1964 and the Miranda case was decided on June 13, 1966. In the case of Johnson v. New Jersey, 384 U. S. 719 it was held that the above mentioned cases were not .retroactive.

There is nothing in the record to show appellant was induced to make the statements by any threat or promise of leniency.

Two. This point deals with the question of illegal search and seizure. We agree with appellant that evidence obtained by such methods is not admissible.

At the 1964 trial the State introduced in evidence a pistol found in the possession of appellant while he was in Jackson, Mississippi. It was further shown at the trial that this pistol belonged to Howard Baker and that it was taken from his store at the time of the burglary.

It is here insisted by appellant that the officers obtained possession of the pistol by an illegal search of his motel room in Jackson. Again we cannot agree with appellant, under the facts revealed by the record.

Appellant and Hawkins were suspected of having burglarized a store in Jackson two days after the burglary in this State. Witnesses notified the officers they had seen appellant and Hawkins near the store at the time of the burglary. While investigating the scene of the crime the officers found a key attached to a tab which revealed the room number of a certain motel. The officers went to the room and found appellant and Hawkins. A search of the room revealed incriminating evidence and also the pistol in question. One officer testified he did not obtain a search warrant because he felt it was a case of emergency and that the men might leave town since they were traveling in a car. The officers took possession of the pistol which they found in a desk drawer and placed the men under arrest. Under these circumstances we think' the officers were justified in what they did under the holdings in Ker v. California, 374 U. S. 23 which discusses and evaluates numerous other decisions dealing with this same question. Also, the material facts in the Ker case were somewhat similar to the facts here involved. In the cited case officers entered an apartment occupied by Ker and his wife, arrested them and, after a search, took possession of articles which were later put in evidence. On appeal Ker and his wife contended “that their arrest in their apartment without a warrant lacked probable cause and that the evidence seized incident thereto was therefore inadmissible”. In denying appellant’s contention the U. S. Supreme Court made statements which are pertinent, we think, to the issue here raised. We now refer to some of the statements or holdings.

“We reiterate that the reasonableness of a search is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the ‘fundamental criteria’ laid down by the Fourth Amendment and in opinions of this Court applying that Amendment.”
“The lawfulness of the arrest without warrant, in turn, must be based upon probable cause, which exists ‘where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed.’ ”

In commenting on information to indicate probable cause, the Court also said:

“That this information was hearsay does not destroy its role in establishing probable cause.”

Applying the above rules to the facts heretofore set out, we are unwilling to say the search made by the Mississippi officers was illegal. The Ker case also points out that “the lawfulness of the arrest without warrant is to be determined by reference to state law”. The case before us also meets that requirement with reference to the arrest in Mississippi. Miss. Code § 2470 Arrests— When Made Without Warrant.

Three. Finally, appellant contends it was reversible error to introduce the pistol in evidence because (a) it was not identified and (b) its value was not proven. We do not agree.

(a) The pistol was traced from the Mississippi officers to the officers of Jefferson County. It was identified as a .38 Smith & Wesson revolver, serial number 291692, and it was described and identified by Mr. Baker as being the one taken from his store.

(b) Appellant’s objection here appears to be that there was no showing as to the value of the pistol, contending it was necessary to show he stole property worth more than $35 to be guilty of grand larceny. There are two answers to this contention. Appellant was not convicted of grand larceny and Mr. Baker did testify as to the value of the pistol.

Affirmed.


text:
    Tyler Meister v. Albert Reddmann
    5-4080
    410 S. W. 2d 769
    Opinion delivered January 30, 1967

      Lohnes T. Tiner, for appellant.

      Bice L. Van Ausdall, for appellee.
   Paul Ward, Justice.

Appellant, Tyler Meister, filed a complaint in' chancery court to restrain appellee, Albert Eeddmann, from entering upon his land, and to recover the value of timber cut along a ditch located thereon. He also asked to have his title quieted. Appellee admits he cut the timber but claims the ditch in question is a “T” lateral ditch (hereafter referred to as a “ditch”), and that it is a part of Drainage District No. 3 of Poinsett County (hereafter referred to as “ditch No. 3”), and that he had permission from the Commissioners of ditch No. 3 to enter upon a right-of-way across appellant’s land to cut all timber necessary to protect and clean out the ditch.

Testimony was taken on the above issues (properly pleaded), and the trial court entered a decree, in substance, as set out below:

The ditch is a part of ditch No. 3; appellant’s complaint is dismissed, and; appellant is restrained from interfering with the work being done by appellee.

For a reversal appellant sets out several points but some of them are interrelated, and we feel that all material issues can be adequately discussed under two separate groupings:

One. Appellant contends “the trial court erred in finding the ditch in question to be a Drainage District No. 3 ditch”, and that this was a finding in its favor. It is then argued this constituted reversible error because ditch No. 3 was not made a party to this litigation. There is no merit in this argument. In the case of Smith v. Petus, Curator, 205 Ark. 442, 169 S. W. 2d 586, we said:

“Furthermore, appellants did not, in the lower Court, ask that these adult heirs be made parties and they are, therefore, not in a position to raise this question for the first time on appeal.”

See also Arkansas Road Const. Co. v. Evans, 153 Ark. 142, 239 S. W. 726. No such request was made by appellant in the trial court in the case under consideration.

Two. It is argued that “the court erred in basing its decision upon incompetent testimony”. Again we find no merit in appellant’s contention that there is no competent testimony to refute his claim to an absolute fee title to his land (free of any right-of-way) by virtue of the deeds he admittedly received from his predecessors in title. It is undisputed that ditch No. 3 executed quitclaim deeds to appellant’s predecessors in title, showing they were based on tax sales. This being true the deeds amounted to redemptions from tax sales. See: Rouse v. Teeter, 214 Ark. 488, 216 S. W. 2d 869. It necessarily follows that appellant could receive no better title than his grantors held. Any other result would make it possible for a legally organized improvement district to divest itself of all lateral ditches. This disposes of appellant’s contention it was error to allow the Commissioners to testify relative to their intentions in executing said quitclaim deeds. Even if such testimony was hearsay it was irrelevant and unnecessary.

In this case it is undisputed that ditch No. 3 was organized in 1908, and that it issued bonds in the amount of $245,000 to construct said ditch and numerous laterals. Also there are copies of numerous county court orders (properly introduced) showing, among other things, the execution of the quitclaim deeds and the location of the ditches. The record reveals the ditch was constructed over appellant’s land many years before he acquired the land which was some twenty years before this suit was filed.

In view of what we have said above it is, of course, unnecessary to discuss appellant’s contentions -that the trial court erred in refusing to quiet his title and give him damages, and also erred in enjoining him from further interference.

The decree of the trial court is therefore affirmed.

Affirmed.


author: Lyle Brown, Justice.

text:
    Union Motors, Inc. v. James A. Phillips
    5-4087
    410 S. W. 2d 747
    Opinion delivered January 30, 1967

      Barber, Henry, Thurman, McCaskill & Amsler, /or appellant.

      U. A. Gentry, for appellee.
   Lyle Brown, Justice.

Appellee, James A. Phillips, purchased an automobile from Union Motor^, Ipc. Phillips brought this suit to recover comp ens atony .and punitive damages and alleged that he placed a verbal order for a demonstrator with low mileage and in,all respects as good as new. He contends that the car delivered was so warranted, but had in fact been involved in a wreck and substantially damaged, which fact was known to the seller, but concealed from the buyer.

Union Motors admitted the sale of a demonstrator, but alleged that the only warranty was the usual manufacturer’s warranty which was delivered to Phillips. Secondly, they assert that Phillips acknowledged in writing that no other warranties were involved. A jury was waived, and trial before the 'Court resulted in a compensatory award to Phillips for $650.00.

The first and principal issue to be determined is whether this is an action in contract or in tort. There are other issues, but the answer to this one is a predicate to their determination.

When fraud is relied upon, it must-be distinctly pleaded. This rule requires at least “a clear statement of facts and circumstances which unexplained, would carry the conviction of fraud; in other words would be fraudulent per se.” Jackson v. Reeves, 44 Ark. 496.

In this connection, the complaint alleges that Union Motors ’ agents represented the car to be in perfect condition and one as good as new; that after the purchase plaintiff Phillips discovered the car had been in a wreck and imperfectly repaired; that Union Motors knew at the time of sale that the car had been wrecked, which fact was concealed from Phillips; that ‘ ‘ the wrong perpetrated upon the plaintiff ’ ’ damaged him in the sum of $1,000.00; and he further prayed for punitive damages in the sum of $500.00.

In Gallon Iron Works & Mfg. Co. v. Otto V. Martin Const. Co., 176 Ark. 448, 3 S. W. 2d 310 (1928), the purchaser pleaded fraud. He alleged that Gallon’s agents represented the equipment purchased “was in first class operating condition and as good as new, with the exception of certain parts, which had been stolen, and which said defendant [Galion] was to replace”; that when the equipment arrived “it was found to be old, dilapidated, and wholly worthless for the purposes for which plaintiff intended to use the same and for the purposes which the defendant . . . knew the plaintiff intended to use it, . . .”

Our. Court there held that the suit was brought on the theory of false representations inducing the contract, consequently the purchaser, Martin, was permitted to introduce parol evidence in the face of a written contract which in substance recited it to be the entire understanding between the parties.

Appellee Phillips made a stronger charge of fraud than was alleged in the Galion case.

In Gentry v. Little Rock Road Machinery, 232 Ark. 580, 339 S. W. 2d 101 (1960), Gentry purchased a secondhand tractor under a sales contract. The Trial Court found the salesman assured Gentry that the tractor was in A-l condition, but efforts by the seller to repair it were unavailing. The seller relied on the contractual disclaimer of all warranties. The Court said: “A representation that a used truck was in A-l condition has been held to be a statement of fact and hence a warranty rather than a mere expression of opinion. Maurice v. Chaffin, 219 Ark. 273, 241 S. W. 2d 257. By the same reasoning such a representation when falsely made, gives rise to a cause of action in tort. Fausett & Co. v. Bullard, 217 Ark. 176, 229 S. W. 2d 490.”

Phillips testified that Don Gregg, salesman for Union Motors, told Phillips that Union had some outstanding buys in demonstrators. Phillips indicated his interest in a demonstrator, “but I said I want a low mileage and good clean one and one that hadn’t been in any trouble, here is what the boy told me, be said Union Motor Company if they have got a demonstrator been [in] any trouble they don’t sell that to a customer, they wholesale that automobile, I said if you can find one I want fine and dandy and I will do my best to trade with you. ’ ’

A few days later, Gregg brought out the demonstrator Phillips purchased and said, “Mr. Phillips, here is a little dumpling they have given to me as my demonstrator and it is a nice little car.” He said it had been “handled with kid gloves.” The sale was then and there consummated.

The next day Phillips took the car to Union Motors to have the front end aligned. From there he drove home, and when he got out of the car the door, instead of closing properly, “hung shut.” Upon inspection, he found the door was held shut by binding against the frame. Then he found where the left rear quarter panel had been replaced; and by measuring and comparing both sides of the car, he found they did not conform, this being difficult to detect except by comparing one side with the other. The car had been completely repainted.

When Gregg delivered the car to him, Phillips did not drive it. He relied on Gregg’s representation that it was a demonstrator with 2,000 miles on it; that it was like a brand new one; and that it had been “handled with kid gloves.”

The testimony of Lesley Caldwell, sales manager for Union Motors, developed the fact that the car did not come to them from the factory; it came to them from Union Blytheville, Inc., a related company; it was brought down as a wrecked automobile ‘ ‘ for the purpose of having it repaired . . .”; and after the repairs it was put on the sales lot of Union Motors.

It was further developed that Joe Vandiver, who participated in the sale to Phillips, knew the car had been in a wreck, bnt did not so advise Phillips. The shop foreman testified that the left rear quarter panel was repaired. It was not disputed that the entire car had been repainted.

Union Motors’ salesman, Don Gregg, who was alleged to have made the original contract with Phillips and gave the latter the assurance that Union would not sell at retail any demonstrator which had been in any trouble, did not testify. His alleged employment and agency were not disputed.

The evidence recited is certainly sufficient to show justification for the finding that the car had been substantially damaged; that this fact was known by the salesmen, Gregg and Vandiver; that Phillips accepted Gregg’s assurance that he would deliver a demonstrator that had not been so involved; and that Phillips relied on these representations in purchasing the car.

Union Motors’ contention that no damage resulted to Phillips is without merit. It is true Union offered testimony to the effect that in its repaired condition the car was like new. One car dealer who heard the car described testified that with the damages sustained, the ear would ordinarily sell for about 25% less than a similar car which had not been involved in a wreck. Another witness testified that in its damaged condition it would be worth $1,500.00 to $1,600.00. The cash price on the invoice was $2,650.00. Upon discovering the condition of the car, Phillips offered to return it and purchase a new car, but Union Motors refused. Phillips could not be refunded his purchase price because at least one of his two “trade-ins” had been sold. In this suit Phillips was asking compensatory damages based on the difference in the market value of the ear, as warranted, and its value as a wrecked car. This measure of damages is proper. Ark. Stat. Ann. § 85-2-714 (Add. 1961)

Affirmed.