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

text:
    Bill STOUT v. STATE of Arkansas
    5329
    426 S. W. 2d 800
    Opinion delivered April 22, 1968

      Sam Sexton, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Bill Stout was tried on a first degreei murder charge for the fatal shooting of Winfred Lee Jones. From a conviction of manslaughter he appeals. Eight procedural errors are urged for reversal.

Stout and Jones, both in their thirties, were friends. Both were family men and they visited in each other’s homes. On the day of the shooting, Jones went to the Stout home in Fort Smith and the two men drank some beer. Stout said he consumed two beers. Stout was working on a cabinet and Jones helped with the task. Stout went to work on a 4:00 p.m. shift and when he left home about thirty minutes earlier, Jones remained at the Stout home. Shortly after six o’clock Stout received a call from a member of his family, informing him that Jones was still at the home, and was belligerent and insulting. Stout obtained a short leave and went home. He asked Jones to leave and the latter refused. Stout went to a nearby telephone and called the police. Officer Hamlet declined to answer the call unless Stout would come in and swear out a wjarrant. It was Stout’s testimony that he returned to his home; that he sent word in to Jones to come outside; that Jones refused; whereupon Stout walked inside the door. Jones arose from a couch and “went tp his left-hand pocket again.” It was at that point that Stout fired his pistol, fatally wounding Jones. The defendant testified he knew Jones had a knife and thought he might have a pistol.

Stout testified that he had no intention of shooting Jones. He stated that his only purpose in firing the shot was to shoot over Jones’ head and frighten him into leaving the house. The single shot entered the front part of the left chest and lodged in the rear of the right chest. It tore the left pulmonary artery and transgressed the upper aspect of the left lung. Death followed within a matter pf minutes.

The case was submitted to the jury on first and second degree murder and manslaughter. The manslaughter conviction carried a sentence of two years. We reverse on Point I, but because of a possible retrial we will enumerate and discuss seven of the points raised.

Point I. The trial court erred in refusing to require the prosecuting attorney to produce the written statements of the defendant and Witness Tommy Rco/y Thomas. When Stout was taken to the sheriff’s office he made an oral statement to Sheriff Vickery, explaining his version of the incident in detail. Shortly thereafter the prosecuting attorney arrived and took a written statement. When Sheriff Vickery was testifying as to the oral statement made to him, counsel for appellant inquired if the written statement was the same as the oral statement. To that question the prosecutor replied that they were generally similar. At that point appellant’s counsel.asked that the written statement be introduced through the sheriff. The request was denied on the ground that its introduction was a matter for the prosecuting attorney to decide.

Later the same matter arose. Appellant was being cross-examined by the prosecuting attorney. He challenged the truth of appellant’s contention that appellant received a report by telephone that Jones was still at the house, drunk and belligerent. The prosecutor asked: “How does it happen in your [written] statement that there is no mention of it?” At that point appellant’s counsel objected to the prosecutor picking out parts of a statement and withholding the rest; he suggested that the proper procedure would be to introduce the statement. The court overruled the objection. The prosecutor continued to ask the witness questions concerning the contents of the written statement, the clear insinuation being that accused told the truth when he gave the statement but not so when he was testifying.

The prosecutor used the written statement as a tool to impress upon the jury his contention that inconsistencies existed between that statement and the testimony of the accused. With the credibility of the witness being so placed in jeopardy, we think the request by the accused that the jury be permitted to evaluate the contents of the statement should have been granted. The prosecutor accused Stout of denying portions of his written statement. How could the jury determine the accuracy of that accusation unless they were permitted to examine the statement? By introducing the statement on appellant’s motion the State would not necessarily be bound by its contents. It could also be introduced for the limited purpose of determining if any inconsistencies existed between its contents and Stout’s testimony. Stout had in fact testified; that the two were the same except for details. The prosecuting attorney’s attempt to establish inconsistencies was in effect an effort to impress portions of the written statement in the minds of the jurors. In Adkins v. Hershy, 14 Ark. 442 (1854), the court said:

“The admission must be taken as a whole, and if the plaintiff proves only a part, the defendant may call for the entire conversation on cross-examination. The rule is, not that the plaintiff is concluded by the entire admission, but that it is competent evidence for the defendant to go to the jury, who are the proper judges of its credibility, and may reject such portions if any, as appear to be inconsistent, improbable or rebutted by other circumstances in evidence. ’ ’

It is true the> State did not formally introduce parts of the written statement but the effect was the same. We therefore hold that the same rule should apply, namely J that the defendant should be permitted to prove other relevant portions. Whitten v. State, 222 Ark. 426, 261 S. W. 2d 1 (1953).

It was Pot error to permit the sheriff to testify as to the oral statements made to him by the accused. The written statement was taken by the prosecuting attorney and not by the sheriff. Those were tVo different statements. Finn v. State, 127 Ark. 204, 191 S. W. 899 (1917).

Point II. The court erred in refusing to suppress< oral statements made by the defendant at his home and before he was advised of his constitutional rights. Officer Hamlet, with whom Stout had previously conferred on the telephone, was the first officer to arrive after the shooting. He could see the deceased lying on the floor. He inquired of appellant as to the whereabouts of the weapon. Appellant’s wife located it and brought it to the officer. Hamlet then inquired of the accused if that gun was used in the shooting; to which the latter replied in the affirmative. That was the sum total of their conversation.

Shortly thereafter the sheriff arrived. The only conversation between the sheriff and the accused was summarized by appellant: “He asked me what was going on and a few simple questions.” At that point the sheriff told Stout he would have to go to town with him.

Appellant relies on Miranda v. Arizona, 384 U. S. 436 (1966), contending he was not given the required warnings prior to the two recited interviews. Mircmda does not apply here. The police were responding to a call from the defendant and found a dead body. The officers ’ investigation had not reached an accusatory stage. Mircmda warnings are required when the investigation reaches custodial interrogation of a suspect. The officers testified that immediately on reaching headquarters, and prior to that interrogation, defendant was fully advised of his'rights.

Points III and VI. It was error to refuse appellant’s requested Instructions 1 and 2. Both instructions embodied the theory of justifiable homicide by killing in self-defense. Stout’s version of the cause for the killing was that he went in the house with the gun with the intention of scaring Jones from the home. Stout testified tha,t he meant simply to shoot over Jones “and kind of bluff him and shoo him on out of the house.” He said he didn’t intend to shoot Jones; he only wanted to frighten him; Stout asserted he never intentionally hurt anyone in his life.

Justifiable homicide embodies an intent to kill but under circumstances which render the act proper. “. . . excusable homicide is that which takes place under such circumstances that the party can not strictly be said to have committed the act willfully and intentionally, and whereby he is relieved from the penalty annexed to the commission of a felonious homicide.” Warren on Homicide, V. 1, p. 616 (1938). Killing in necessary self-defense is our statutory definition of. justifiable homicide. Ark. Stat. Ann. § 41-2231 (Repl. 1964).

Since Stout’s defense was not based on a willful and intentional killing in self-defense, he was not entitled to the proffered stock instructions on self-defense. His assertion that the killing was unintentional is inconsistent with the concept of self-defense. State v. Hale, 371 S. W. 2d 249 (Mo. 1963). The law of self-defense is not involved, only the right of self-defense. Curry v. State, 97 S. E. 529 (Ga. 1918). Consonant with his right of self-defense, he would have been entitled to an instruction covering excusable homicide. A suggested instruction under very similar circumstances is summarized in Curry, supra. It involves the law of excusable homicide as applied to the evidence in the particular case, which narrows down to accidental homicide.

This court recognized the rule in the Curry case in Jordan v. State, 238 Ark. 398, 382 S. W. 2d 185 (1964). However, in that case the rule was held not applicable because it was Jordan’s intention, according to his testimony, to shoot his assailant to save himself from being shot. Jordan was therefore entitled to an instruction on self-defense.-

Point IV. The covert erred in permitting the widow of the deceased to testify because she was permitted to remain in the courtroom, notwithstanding the Rule had been invoiced, and because her name had not been furnished as a witness for the prosecution. In chambers, and before the beginning of the trial, appellant’s counsel reminded the court that Mrs. Jones had been called as a witness and he asked that she be excluded from the courtroom. His motion was overruled. When the trial shortly began, Mrs. Jones was called as the first witness. At that point, the only motion made by appellant’s counsel was that Mrs. Jones not be permitted to testify because her name was not on the list of witnesses. Specifically, he did not renew his objection to her testifying on the ground that she should have been placed under the Buie. The failure to so object constituted waiver. Mrs. Jones was the first witness called and she was never recalled to the stand, so she heard no testimony from other witnesses. If the court committed error, it was clearly not prejudicial. Williams v. State, 237 Ark. 569, 375 S. W. 2d 375 (1964). Furthermore, she testified only to the age, height, and weight of the deceased, the number of children in the family, and the fact that the Joneses often visited in the Stout home. In other words, she testified to no facts really material to the case.

As to the second objection, the requirement of endorsing the witnesses has long been held merely directory, assuming it applies to prosecution by the filing of an information. It should also be said that the prosecutor advised appellant’s counsel on the morning of the trial that he intended to call Mrs. Jones to testify to matters which were not material.

Point V. The court erred in instructing the jury on first degree murder. A discussion of this point is unnecessary because Stout cannot again be tried for a crime greater than manslaughter.

Point VII. The prosecuting attorney was permitted to improperly cross-examine the defendant and his witness, Ed Baker. The prosecutor inquired of Stout concerning several alleged misdemeanors. On more than one occasion Stout denied having been convicted. Since those were collateral matters, each denial should have concluded that inquiry; however, the prosecutor would not accept the denial but would proceed to press the matter further. That practice should be avoided on retrial; nor should such questions be propounded in argumentative and accusatory form.

Point VIII. The court erred in refusing to permit Witness Ed Baker to testify as to the past actions of Winfred Lee Jones when the latter was drinking. Ed Baker was foreman at a plant where Jones was at one time employed. If permitted, he would have testified that Jones was discharged by Baker because he was intoxicated on the job, was “loud and belligerent, rude and very disrespectful.” There was evidence to the effect that decedent was intoxicated when he was shot and that he was belligerent. Appellant contends that Jones’ acts of belligerency at the time he was discharged would tend to show that drunkenness always brought on belligerency on the part of Jones. To establish such a pattern of conduct by a single prior act is too illogical to require comment.

Reversed.

FoglemaN, J., dissents.

John A. Fogleman, Justice,

dissenting. I would affirm the judgment of the lower court. I have a consuming curiosity about the content of appellant’s written statement, but this is not a proper basis for reversal. In considering whether reversible error was committed we should consider the entire record in the case and the actions of appellant and his attorney in regard to this particular statement. Appellant first filed a motion to suppress, stating that it was a mere written summary of what he had told the police officers, without having been advised of his constitutional rights. This motion was denied, hut appellant’s motion for new trial assigns this denial as error. When the sheriff took the witness stand, appellant objected'to his relating an oral statement, contending that if the statement was taken down in writing, the writing would be the best evidence'. It was then established that the oral statement to the sheriff had not been reduced to writing. The prosecuting attorney stated that, in general, the oral and written statements were the same. Appellant’s abstract does not reveal any request for inspection of the written statement. On cross-examination appellant’s attorney determined that the sheriff had possession of a copy of the written statement. He moved its introduction after the sheriff testified that only the first part of the written statement was made in.his presence. This motion was denied. Appellant’s attorney did not ask for permission to inspect the statement at that time and did not make any proffer for the record. The defendant, in testifying, stated that he was willing for the statement to be introduced. He also said that it was substantially the same as his testimony, except that his testimony was in more detail. On cross-examination, defendant stated that only the prosecuting attorney and his secretary were present when the written statement was made. Although the prosecuting attorney asked defendant how it happened that there was no mention of his wife’s call to him to come home in his written statement, the defendant never answered the question and never was called upon to answer. After an objection by appellant’s attorney; this question was never repeated. The statement was not offered by the prosecution to contradict defendant’s testimony.

The sheriff was called by the state in rebuttal to contradict testimony of defendant’s witness Thomas. On cross-examination he stated that he had in his possession the written statement of Tommy Ray Thomas and appellant. Appellant’s counsel then specifically asked to see the statement of Thomas and asked its in-treduction. No objection was offered to inspection of this statement by appellant’s attorney. When an objection was made to introduction of the Thomas statement, appellant’s counsel proceeded without a ruling by the court and inquired of the sheriff about the absence of a part of Thomas’ testimony from this statement. He did not ask to be permitted to see the statement of appellant nor did he ask that it be introduced at this time. There is no' reason to believe that any objection would have been raised to examination of the statement by appellant’s attorney.

If the statement was favorable to appellant, it was not admissible as it would have been a self-serving declaration and not contemporaneous with the statement made to the sheriff. Butler v. State, 34 Ark. 480. Selfserving statements cannot be offered in rebuttal of proof of incriminating statements. Patterson v. State, 179 Ark. 309, 15 S. W. 2d 389. Such statements are not rendered competent merely because they differ from statements testified to by other witnesses. Reece v. State, 125 Ark. 597, 189 S. W. 60.

If it were admissible to impeach the testimony of the officers as to the content of appellant’s oral statement, then it could not be introduced through one who was not present when it was made. Appellant never at any time called either the prosecuting attorney or his secretary to testify as to this statement, as he might have done. Neither did he indicate that he desired to offer the written statement to impeach the testimony of the officers or lay the foundation to do so.

But the most fatal defect of all is that the statement was never proffered for the record. This being the case, we are not at liberty to consider its admissibility or possible prejudice in the refusal to admit. Misenheimer v. State, 73 Ark. 407, 84 S. W. 494; Latourette v. State, 91 Ark. 65, 120 S. W. 411; Jones v. State, 101 Ark. 439, 142 S. W. 838; Baldwin v. State, 119 Ark. 518, 178 S. W. 409; Simmons v. State, 124 Ark. 566, 187 S. W. 646; Fowler v. State, 130 Ark. 365, 197 S. W. 568; Powell v. State, 133 Ark. 477, 203 S. W. 25; Lassiter v. State, 137 Ark. 273, 208 S. W. 21.

I do not agree with the trial judge that the matter of introduction of the written statement lay wholly within the province of the prosecuting attorney. I agree that it is reversible error for the prosecuting attorney to withhold evidence favorable to a defendant. I do not agree that this rule requires him to introduce a defendant’s self-serving statements, nor do I agree that we should act on the admissibility of evidence without knowing what that evidence is. We can only speculate as to the content of the statement. There simply is no evidence that anything favorable to the defendant was withheld. It is a novel idea to suggest that an attorney is required to offer his entire conversation with a witness in evidence because he asks the witness why some fact revealed in the witness’ testimony was not disclosed in the conversation. The majority’s holding that this statement was admissible regardless of its content is unique to say the least.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Aubrey VANGILDER v. Paul FAULK
    5-4550
    426 S. W. 2d 821
    Opinion delivered April 22, 1968

      Kirsch, Cathey & Brown, for appellant.

      Barrett, Wheatley, Smith & Deason, for appellee.
   John A. Fogleman, Justice.

This appeal is from a judgment based upon a jury verdict denying appellant a recovery from appellee for the death of a Hereford bull owned by appellant. The parties are adjoining landowners whose pastures are separated by a partnership fence. Evidence on behalf of appellant tended to show that his bull suffered injuries on November 14th from an encounter with appellee’s Angus bull in appellant’s pasture. Appellee was notified of the occurrence by appellant’s wife. He caused his employee to remove his bull from appellant’s pasture and to return it to appellee?s premises where it was in a holding corral for less than half a day. Thereafter, the bull was returned to appel-lee’s pasture. Appellee took no action designed to prevent another trespass by his bull into appellant’s pasture, where appellant kept not only his bull but 20 to 25 cows. Appellee did cause an employee to walk and inspect the division fence, which was found to be intact. Appellee stated that he knew that a bull which escaped his enclosure once had a tendency to make other escape attempts; that when strange bulls meet they can be expected to fight, particularly in the presence of the female of the species; and that when bulls fight there is danger that injury will occur.

Appellee’s bull escaped into appellant’s pasture again on November 17th. Evidence indicates that another fight took place on that occasion. Appellant’s bull died on November 25th as a result of injuries which appellant contends were inflicted in the second fight.

The first point relied on for reversal is that there was error in the court’s instructions in that the basis of appellee’s liability was limited to negligence in permitting Ms bull to run at large. The point is properly preserved in appellant’s objection to the instruction given and by the rejection of his offer of instructions which would have submitted the case to the jury on the alternate bases of ,(;1) strict liability for damage done by a trespassing animal and (2) liability based on ap-pellee’s knowledge of the dangerous propensities of his bull.

Appellant first argues that our cases, such as L. R. & F. S. Ry. v. Finley, 37 Ark. 562, and St. Louis I. M. & 8. Ry. v. Newman, 94 Ark. 458, 127 S. W. 735, rejecting the rule of strict liability of an owner for the acts of his trespassing animals should have no application here. This argument, is based upon the contention that the properties of these parties were located in a stock law district created under the provisions of Act 156 of 1915. The trial court took judicial notice of the existence of this district. We agree that the rule stated in the above cases is confined to situations where the owner permits his animals to run at large on unenclosed lands of another, and that the rule may well be changed by laws requiring an owner to keep his animals within his own enclosure.

We do not agree with appellee’s contention that the 1915 stock law has no application to tMs case by reason of its repeal by Act 368 of 1947. We have already recognized that stock law districts created under Act 156 remain in existence in spite of the specific language of Act 368 which states that it repeals sections relating to the creation of such districts and to the legal effect of adoption of the district by the electorate. In Goggin v. Ratchford, 217 Ark. 180, 229 S. W. 2d 130, it was held that annexation of a single township to a stock law district to which Act 368 was applicable could only be made .to districts already in existence when this act was passed. This holding recognized, without stating, the rule that where both the prior and subsequent acts legislate upon the same subject and the subsequent act re-enacts substantial portions of the original act but either adds, eliminates or modifies provisions of the original act, the subsequent act shall be treated as amendatory only in spite of language expressly repealing the prior act. Bear Lake & River Waterworks & Irrigation Co. v. Garland, 164 U. S. 1, 17 S. Ct. 7, 41 L. Ed. 327 (1896); Lamb v. Powder River Live Stock Co., 132 F. 434, 67 LRA 558 (8th Cir. 1904).

A very closely parallel application of the rule is found in Petition of Orange County Water District, 292 P. 2d 927 (CA Cal. 1956). There the contention was made that the district created by a 1933 act was superseded by a completely new district of the same name created by a 1953 act. The basis for this contention was the repeal of § 1 of the 1933 Act by the 1953 Act. It was held that this contention was unsound because the re-enacted portion of the repealed act continued in force without interruption even though the new act provided for different boundaries, different directors and different purposes. Here the re-enactment of substantial portions of the 1915 Act neutralized the repeal, and the 1947 Act should be considered as amendatory of the 1915 Act. The stock law remains in effect as amended by the later act. This appears to be the majority rule. Crawford, Statutory Construction, § 322, p. 657. See 77 ALR 2d 357. It is consistent with the holding of this court on the effect of the repeal of our first general comparative negligence statute. Chism v. Phelps, 228 Ark. 936, 311 S. W. 2d 297, 77 ALR 2d 329.

The doctrine of absolute liability was applied in Pool v. Clark, 207 Ark. 635, 182 S. W. 2d 217. That case is not authority requiring the application of the doctrine here, however, because the stock law involved there absolutely prohibited the running at large of certain animals. Absolute liability of the owner was there predicated upon the statute’s making the running at large of stock unlawful. See Act 103 of 1907, as amended by Act 273 of 1909. The statute applicable here does not contain such an absolute prohibition. It provides that it shall be unlawful for an owner to permit his animals to run at large outside the owner’s enclosure. See Act 156 of 1915 and Act 368 of 1947. We have held that the owner is subject to the consequences of such a statute only when he intentionally or negligently permits his animals to run at large. Favre v. Medlock, 212 Ark. 911, 208 S. W. 2d 439. Therefore, the doctrine of strict liability cannot be applied for the reason urged.

Appellant’s next argument is that the case should have been submitted to the jury only on the questions of proximate cause and measure of damages because ap-pellee was apprised of the occurrence of November 14, 1966. The evidence was sufficient to raise an issue of fact as to appellee’s liability for keeping and failing to restrain an animal known by him to he possessed of vicious and dangerous qualities. Holt v. Leslie, 116 Ark. 433, 173 S. W. 191; Field v. Viraldo, 141 Ark. 32, 216 S. W. 8; McIntyre v. Prater, 189 Ark. 596, 74 S. W. 2d 639. Appellant offered his requested instruction no. 1 that would have submitted these issues, hut the instruction was defective in that it would have permitted a verdict for appellant if appellant’s hull died as a result of either fight. There is no evidence upon which scienter could have been held to exist as a matter of law on the occasion of the first fight, in spite of appellee’s admissions. Testimony of a veterinarian called as a witness by appellant might be construed to mean that the death might have resulted from the first fight. This instruction would have also found appellee to have had sufficient knowledge of the bull’s propensities after the first encounter to invoke strict liability. The testimony here is not sufficiently clear to eliminate a question of fact on this point.

The trial court’s refusal to give an instruction which is not accurate, correct and free from criticism is not reversible error. Henry Wrape Company v. Barrentine, 138 Ark. 267, 211 S. W. 366; Bovay v. McGahhey, 143 Ark. 135, 219, S. W. 1026. It would have been error for the court to háve ¿iven the offered instruction since it would have allowed the jury to find a verdict for appellant without considering the issue of whether the second fight was the proximate cause of the loss of the hull. Miller v. Ballentine, 242 Ark. 34, 411 S. W. 2d 655.

Appellant offered his requested instructions, numbered two and three, relating to this issue. These were not subject to the proximate cause defect to the same extent as was the first request, although they should have made it clear that liability based on scienter required previous knowledge by the owner. There are other reasons, however, why the refusal of these instructions did not constitute reversible error. Instruction No. 2 would have- virtually amounted to the direction of a verdict for appellant. He was not entitled to this. As previously pointed out, there was a jury question as to scienter of appellee under all the surrounding circumstances. While appellant’s requested Instruction No. 3 was a correct statement of the law, AMI 1602 is applicable in this case and should have been given with appropriate modifications fitting it to a situation where the injury is to an animal rather than a person. The AMI form would have given the jury an objective statement of the law. The instruction requested is somewhat slanted toward appellant’s contentions. One of the primary purposes of adoption of Arkansas Model Jury Instructions was to make jury instructions objective, rather than partisan, statements. Introduction, Arkansas Model Jury Instructions, p. X.

The per curiam order of this court (entered April 19, 1965) clearly directs that when an AMI instruction is applicable in a case, it shall be used unless the trial judge finds it does not accurately state the law. In the event an applicable AMI is not used, the judge is required to state his reasons for refusal. It is implicit in this order that parties request instructions in the language of an applicable AMI, modified if necessary. If a judge is required to state reasons for not using an AMI, it is only logical to require a party offering an instruction when he thinks that an AMI does not adequately or accurately state the law to state his reasons into the record. For this reason, there was no reversible error in the refusal of appellant’s requested Instruction No. 3.

Appellant’s second point for reversal is the giving of the court’s Instruction No. 5 over his objection. This instruction told the jury that in determining whether or not appellee was negligent, it was not to consider the inadequacy of the division fence to restrain appellee’s bull, because the responsibility for its maintenance and upkeep was borne by each of the parties. Appellant objected to the giving of this instruction on the basis that there was no allegation or proof with respect to maintenance and upkeep of the fence and that the instruction prejudicially singled out the fact that the inadequacy of the fence to restrain appellee’s bull should not be considered when there was no question at issue about the adequacy of the fence. We find appellant’s position as to the lack of an issue on maintenance and upkeep to be well taken. The only statement in the pleadings remotely related to such an issue is the vague and general statement in appellee’s amendment to his answer alleging that appellant was guilty of contributory negligence by failing to use ordinary care to prevent appellee’s animals from entering his pasture. No evidence was ever offered by either party to show any deficiency in the maintenance or upkeep of the fence. On the contrary, an employee of appellee checked the fence after each expedition of the bull and found it to be in good order. It was a 39-inch woven wire fence above which there was one strand of wire making the fence 44 inches high. On appellee’s side of the fence there was a ditch about 30 feet wide and 6 feet, deep. The ditch was not more than 3 feet from the fence at any point and in places was immediately adjacent to the fence. After the second visit of appellee’s hull to appellant’s pasture, appellee’s employee found black hair caught on the fence. Consequently, insofar as the inadequacy of the fence from the standpoint of maintenance and upkeep is concerned, the instruction was abstract, even if it could be said to be academically correct. The court’s Instruction No. 4 had told the jury that a violation of the applicable stock law prohibiting an owner from permitting his cattle to run at large was evidence of negligence. When the two instructions are read together, the giving of this instruction is calculated to be misleading and confusing. Under these conditions the giving of such an instruction is prejudicial and reversible error when it cannot be determined that the jury did not base its verdict on the abstract instruction. Ayer & Lord Tie Co. v. Young, 90 Ark. 104, 117 S. W. 1080; District Grand Lodge No. 11 v. Pratt, 96 Ark. 614, 132 S. W. 998; Harkrider v. Cox, 230 Ark. 155, 321 S. W. 2d 226.

Since the appellant, in making his objection to the giving of court’s Instruction No. 5, stated that there was no question in the ease about the adequacy of the fence, we cannot consider the correctness of that instruction in that respect as a ground for reversal. We foresee that there is a possibility on a retrial that the adequacy of the division fence might be a circumstance to be considered by the jury in determining whether appellee was negligent in failing to take some additional step to prevent his bull’s second foray into the Vangilder pasture. We see no reason why the joint responsibility of the parties for the maintenance and upkeep of the fence or the fact that it was a partnership fence should prevent this circumstance from being considered with all the other facts and circumstances of the case on the question of negligence.

The judgment is reversed and the cause remanded for a new trial.

       It is recognized that modifications of these instructions may be necessary. See Arkansas Model Jury Instructions, “How To Use This Book” pp. XXIV, XXV.


author: J. Fred Jones, Justice.

text:
    Carl WIDMER v. MODERN FORD TRACTOR SALES, a Corporation; and W. A. “Jake” Davis
    5-4512
    426 S. W. 2d 806
    Opinion delivered April 22, 1968

      Carl Widmer, pro se.

      William Powell Thompson, for appellees.
   J. Fred Jones, Justice.

On January 2, 1962, the appellant, Carl Widmer, purchased from the appellees, Modern Ford Tractor Sales and its agent, W. A. “Jake” Davis, a Landmaster tiller under a conditional sales contract for a total purchase price of $1,195.14. When appellant defaulted in the final payment due on January 2, 1963, the tiller was repossessed by appellees.

On December 3, 1965, appellant filed suit in the Sebastian'County Circuit Court alleging damages in the amount of $3,250.00 because of breach of warranties in the sale of the tiller and alleging that the tiller with the attachments was worth $1,250.00 when appellees wrongfully trespassed and took the equipment from appellant. Appellant prayed judgment for compensatory and punitive damages in the total amount of $7,556.25.

The issues were joined by answer and counterclaim on a welding and repair bill allegedly owed to appellees by the appellant. After the answer and counterclaim was filed, appellant, on April 12, 1966, filed a request for admission of the truth of 27 separate statements covering all of the detailed allegations in the complaint. Each of the facts stated by appellant, which he requested appellees to admit, were all separately denied, or admitted, by the appellees on April 22, 1966, and copy was mailed to Widmer on April 23. Appellant then on July 5 filed “Interrogatories to Defendant” which in effect required that the answers to the original requests for admission be made more definite and certain. Example: “Please state the facts on which you base your denial of request for admission of fact No. 5.” On July 8, 1966, appellant filed additional requests for admissions. Example: “That the Landmaster Mark 650 Tiller literature from which the photo-copies of statement No. 1 were obtained, was obtained in the showroom of Modern Ford Tractor Sales located at 1320 Towson Ave. in Fort Smith, Arkansas.” On July 15 appellant propounded additional interrogatories to appellees.

On July 15 appellees filed a motion to quash the interrogatories filed on July 5 and the request for admission of facts filed on July 8. On July 22 appellees filed a motion to quash the additional interrogatories filed by appellant. On July 22 appellant filed a motion to stay proceedings on appellees’ motions pending appellant’s full opportunity to exercise his rights under discovery procedure. By agreement of the parties, On August 3, 1966, an order of the court was entered .requiring that all discovery procedures be completed by September 1, 1966, and setting the case for trial on September 27, 1966. On August 29, 1966, appellees’ motion to quash the interrogatories filed on July 4, was granted and the motion to quash the requests for admissions of fact filed on July 8 and the interrogatories filed on July 15, were granted in part and denied in part. Ap-pellees filed answers to the interrogatories and requests for admission on which their motion to quash was denied.

The case was not tried on September 27, 1966, as originally set, and on March 17, 1967, appellant filed additional requests for admission. Example:

“That the net fair market value of the crop losses suffered by plaintiff because of the delays in planting and subsequent reduction in yields of the crops, as set out in statement 6, after harvesting- costs, would be $900.00 for the 60 acres of Spring Barley; $1,275.00 for the 85 acres of Spring Oats; and $1,-075.00 for the 170 acres of Fall Soybeans; and that the total net fair market value after harvesting costs, of the crop losses suffered by plaintiff because of delays in planting and subsequent reduction in yields of crops resulting therefrom during •the 1962 crop year would be $3,250.00.”

On March 22 appellees filed mob on to quash the requests for admissions alleging in their motion as follows :

“That since the 3rd day of December, 1965, plaintiff has pursued this matter against the defendants and others in this court and in other courts of this county, and the plaintiff has from time to time since said date filed an untold number of interrogatories and requests for admission of facts which have been answered; that now the continued propounding of same is simply for the purpose of annoyance, expense, embarrassment and oppression, .all of which is contrary to the spirit and purposes of the discovery procedures of this state; that the same are irrelevant and argumentative and that the Request is otherwise improper in whole or in part, and for said reasons same should be quashed.
“It is further pointed out that all discovery procedures were closed in this matter as of September 1, 1966, by court order of August 3, 1966.”

This motion was granted on March 22, and on April 21, 1967, appellant filed motion for summary judgment.

A jury was waived and on May 29, 1967, this case proceeded to trial before the court sitting as a jury, at which time the court made the following comments of record:

“Upon examination of the file, I find that the request for the admissions of fact dated April 12, 1966, were all answered and denied by the defendant on April 22, 1966. So, contrary to the assertion here, they are not deemed admitted in their entirety for failure to respond.”

The court then continued, as revealed by the record, as follows:

“Now, Mr. Widmer, gentlemen, the requests for admissions of fact dated March 17th were ruled out by the Court. We said that defendant was not required to answer them, and that was done in the Court’s order of March 22, 1967. Now, that is what the defendant [sic] relies upon except that he says he has a verified complaint and that what admissions of fact he has, and I don’t know what he is referring to really — in the interrogatories I haven’t found anything of significance — -basically it seems he’s resting on his verified complaint. Here is the plaintiff representing himself and he, in effect, as I understand it, has submitted his verified complaint as an affidavit in support of his motion for summary judgment. Is that correct, Mr. Widmer?
MR. WIDMER: Yes, but, Your Honor, there are answers to two interrogatories — you know, where they set out the amount of funds they received for the sale of this tiller, that they did answer. Other words, the court order and the order to these where they state who they sold it to and the amount they received.
THE 'COURT: Right, and that would' go to the counterclaim. That’s- going as a defense to the counterclaim?
MR. WIDMER: Yes, that’s right.
THE COURT: But for the reasons I’ve said— and, Mr. Widmer, I’ve been, if anything, overly meticulous about this, to try to get you to understand why the Court feels that it cannot render your motion for summary judgment. I hope you understand the basis for my ruling.
MR. WIDMER: Yes, sir.
THE COURT: Now, we’re talking about the ifiotion for summary judgment on the complaint. Both counts I and II. So let me ask you now — do I understand you correctly that it’s your wish to simply stand on your motion?
MR. WIDMER: That is right, your Honor.
THE COURT: Without any proof in connection with it?
MR. WIDMER: Yes, sir.”

Appellant refused to go forward with any proof at all. Appellees did offer proof in contradiction to appellant’s complaint, but- before doing so the record reveals the following inquiry by the attorney for the appellees and response by the court and the appellant:

“MR. THOMPSON: Do I understand that the plaintiff is not going to go forward with his case?
THE COURT: He is resting. Your answer?
MR. WIDMER: Motion for summary judgment? You mean on this other counterclaim, this counterclaim?
THE COURT: No, on the complaint.
MR. WIDMER: Yes, we are resting op our motion for summary judgment.”

None of the evidence was abstracted by appellant in his brief, but on May 29, 1967, the trial court entered judgment for appellees as to appellant’s complaint, and the complaint was dismissed with prejudice.

A cursory check of our reported cases over the past two years reveal that this is the fourteenth appeal by Mr. Widmer to this court from adverse judgments and decisions of the Sebastian County Circuit Court wherein Mr. Widmer attempted to act as his own attorney. Widmer v. Wood, 243 Ark. 32 (9-18-67); Widmer v. J. I. Case Credit Corp., 243 Ark. 149, 419 S. W. 2d 617 (10-1-67); Widmer v. Wood, 243 Ark. 457, 420 S. W. 2d 828 (11-13-67); Widmer v. Kennedy, Albers & Phillips, 243 Ark. 527, 421 S. W. 2d 609 (11-20-67); Widmer v. Wood, 243 Ark. 617, 421 S. W. 2d 872 (12-4-67): Widmer v. State, 243 Ark. 952 (1-22-68); Widmer v. Tole, 243 Ark. 990 (1-19 & 31-68); Widmer v. Apco Oil Co., 243 Ark. 773, 421 S. W. 2d 888 (12-18-67); Widmer v. Gibble Oil Co., 243 Ark. 735, 421 S. W. 2d 886 (12-18-67); Widmer v. Wood, 244 Ark. 307 (3-11-68); Widmer v. Price Oil Co., 243 Ark. 756, 421 S. W. 2d 885 (12-18-67); Widmer v. J. I. Case Credit Corp., 239 Ark. 12, 386 S. W. 2d 702; Widmer v. Ft. Smith Vehicle & Machine Corp., (still pending in this court). All of these cases are of a similar nature in that Mr. Widmer relied on motions and requests . for admissions, and he offered no evidence, in support of his contentions, in any of them.

We take judicial notice of the expense involved in perfecting an appeal to this court, and in a number of Mr. Widmer’s cases the foreseeable cost of appeal amounted to more than the amount involved in the litigation. (Widmer v. Apco Oil Co.; Widmer v. Gibble Oil Co.; Widmer v. Price Oil Co., supra). Knowledge of how to prepare and file the various instruments permissible under our civil code is, of course, an elementary necessity in the practice of law, but a thorough knowledge of the office of the instrument, and when and why it should be used, is indispensable in the proper preparation and trial of a lawsuit. A knowledge of how to proceed in the trial of a lawsuit after a motion has been granted or denied, or after requests for admissions have been complied with, refused, or ignored, is more important in resolving differences by a fair and impartial trial in a court of law than is the knowledge of how to prepare and file such motions or requests. We recognize a litigant’s right to attempt his own representation in the courts of this state under our code of practice, but regardless of the amount in controversy or the merits of a litigant’s cause, we know of no way to protect a litigant against the incompetency of his attorney when he insists on representing himself in a court of law.

We have held that upon a motion for summary judgment the burden is on the movant to show that no justiciable issues exist. Widmer v. J. I. Case Credit Corp., supra. We have also bdld that a motion to quash requests for admissions may constitute written objection thereto and that a failure to answer the requests in such case does not necessarily mean that the requests stand admitted. Widmer v. Wood, 243 Ark. 617, 421 S. W. 2d 872.

All of appellant’s requests for admissions filed on April 12, 1966, were admitted or denied by appellees in the case at bar. The trial court did not abuse its discretion in quashing appellant’s interrogatories of July 5, 1966, and in quashing appellant’s request for additional admission of facts filed on March 17, 1967.

Although appellant designated the entire record in this case and failed to abstract the evidence offered by the appellees, we have examined the transcript of the testimony of the witnesses produced by appellees and there is substantial evidence in the record to sustain the judgment of the trial court.

The judgment is affirmed.


text:
    E. M. OTT, and J. W. RAY, d/b/a Crawfordsville Dehydrator Company, a Partnership v. WONDER STATE MANUFACTURING COMPANY
    5-4551
    427 S. W. 2d 20
    Opinion delivered April 22, 1968

      Rieves & Rieves, for appellants.

      Branch & Adair, for appellee.
   J. Fred Jones, Justice.

E. M. Ott and J. W. Eay, as partners, doing business as Crawfordsville Dehydrator Company, brought suit in the Greene County Circuit Court against Wonder State Manufacturing Company for damages sustained by Ott and Ray because of the collapse of a grain bin they purchased from Wonder State. This appeal by Ott and Ray, is from a judgment entered on a jury verdict in favor of Wonder State.

The appellants, Ott and Ray, were engaged in the business of manufacturing alfalfa pellets, and the ap-pellee, Wonder State Manufacturing Company, was engaged in manufacturing and selling metal seed houses or bins. In early 1965, the appellants purchased from the appellee two 46% ton bins to be used for the purpose of storing the processed alfalfa pellets. These bins, when erected in single units, were ten by twelve feet in dimension with ten foot vertical side and end walls. The bottom of each bin or unit was of hopper like design in the form of an inverted pyramid and the entire unit was elevated on steel posts in such manner that trucks could be driven underneath for loading from the hopper. The two bins purchased by the appellants were put together in such manner that they actually constituted a single building or bin 12 feet wide and 20 feet long with two loading hoppers, one at each end. One bin was first erected without its north wall and the second bin, without a south wall, was added to the first bin on the north side of the first bin, thus constituting the single bin without a partition between the two units. This single bin with the two hoppers was supported on six steel posts set in concrete. The manufactured pellets were introduced into the bin by a pneumatic process through a tube or pipe inserted through a hole that had been cut near the top or eave in the side of the second unit, or north portion of the bin. The pellets were then allowed to flow by gravity to the south and other portions of the bin. Appellants advised the appellee of the purpose for which the bins were being purchased and the appel-lee assured appellants that the bins were suitable for the intended use.

In June 1965, the northwest corner of the bin buckled, and the north hopper of the bin collapsed, under the weight of the pellet content and in appellants’ suit for damages they allege the collapse was caused by the defendant in improperly designing the building for its intended use, and that such failure constituted a breach of warranty made by appellee to the appellants. Appel-lee answered by general and specific denials and alleged, among other things, that the collapse of the bin and hopper was caused by the appellants overloading it. There is no question that the collapse occurred because of the weight of the contents of the bin, so the actual question at the trial was whether the fault lay with the appellee in design, construction, or warranty, or whether the fault lay with the appellants in the use of the bin. On appeal to this court, the main question involves the sufficiency of the evidence, and about the only law involved in this case is the law of gravity.

Appellants designate two points upon which they rely for reversal, as follows:

“The court erred in permitting witness to testify, over appellant’s objection, as to improper loading of bin.
The court erred in permitting the introduction of the testimony and the graphic illustration by appel-lee’s expert witness, Tom Bailey, with reference to the maximum pile of alfalfa pellets which could be introduced into the seed house; and in failing to strike the testimony of Tom Bailey at appellant’s request. ’ ’

We find no merit in either of the points designated by appellants. From appellants’ own evidence it is clear that three holes had been cut through the wall of the double unit bin for the purpose of introducing pellets into it. The first hole was approximately 44 inches from the bottom of the bin and from the top of the hopper portion of the bin. This hole was approximately 29 inches south of the center line of the bin and was over the north portion of the hopper constituting the bottom of the south unit of the bin. The second hole was of no significance, but the third hole, and the one being used for the introduction of pellets, was some 104 inches from the bottom of the bin and from the top of the hopper portion of the bin. This hole was approximately 44 inches north of the center line of the bin and was over the south portion of the hopper constituting the bottom of the north unit of the bin. At least 89.41 tons of the pellets had been blown into the north end of the bin through this third hole and these pellets were still in the bin when the north side of the bin and the north hopper collapsed. As to the weight of the pellets in the bin at the time of the collapse, appellant Ray testified as follows:

“Q. How much of it [alfalfa pellets] were you able to salvage?
A. I have got some tickets. We weighed it all. I
believe, looks like 168,820 pounds.
# # *
A. We estimated there was an additional five tons we couldn’t recover.”
On cross-examination Mr. Ray testified:
“Q. Do you recall, offhand, the weight of the pellets that remained in the hopper that stayed up?
A. No, I do not. I recall, I was a little bit, amazed me, there were — I don’t recall, exactly, I remember, more in there than I thought there would be.
# # #
Q. Do you have anything here you could look at to determine the weight of the pellets that remained in the hopper?
A. No, sir. I don’t believe so.
Q. Do you recall, it was something between 19 and 20 ton?
A. No, sir. I don’t recall, but it is possible that is right.
Q. The amount left in the hopper and that recovered from the ground together weighed 168,820 pounds, figure you testified to earlier?
A. Yes, sir. That is correct.
Q. And you and someone from Wonder State estimated there was about six tons, that remained on the ground, could not be, be recovered?
A. I think we said five, five or six. ’ ’

According to appellant’s own testimony, when his lowest estimate of five tons of pellets that copld not be salvaged is added to the amount that was salvaged and weighed,, there was 89.41 tons of pellets in the entire bin when it collapsed. This was only 3.59 tons short of the weight both bins were designed to hold had they been erected as single and separate units. From appellant’s own testimony, and that of his own witnesses, the entire bin would have reached its pellet weight content capacity of 93 tons when the pellets had reached a uniform depth throughout the bin up to the first hole that had been cut 44 inches from the bottom of the bin. There is no question that all 'the pellets in the bin had been blown into it through the hole near the top of the side of the north unit or end of the bin and allowed to simply flow by gravity to the other areas of the bin. Appellant testified that at the time the north end collapsed, the bin had not been filled to the first hole on the south side. So we conclude, that from appellant’s own evidence and the undisputed physical facts deductible therefrom, the jury, by the application of its common sense to the laws of gravity, could have reasonably found that considerably more than 46% tons of pellets was in the north’ end or unit of the bin when it collapsed, and that it' was the excessive weight of these pellets that caused the north hopper and north end of the bin to collapse.

Appellee’s-Witness, Tom Bailey, not only testified as a qualified expert in the construction and erection of the type of bins involved here, he testified that he went into the collapsed bin and observed the pellets that remained in the south end of the bin and in the south hopper. He testified that the southeast corner of this south hopper had not filled up. Bailey also testified that the angle of repose for alfalfa pellets was 25 degrees and from the angle of repose of the pellets he observed in the south and undisturbed end of the bin and hopper, he estimated the distribution of the contents between the north and south halves of the bin to be 40% in the south end and 60% in the north end at the time of the collapse.

The only evidence offered as to statements made in the nature of express warranties, pertained to statements that a single bin would hold 46% tons of feathers and that the bins would be suitable for storing alfalfa pellets. It is obvious that the statement as to feathers simply meant that the bin could be completely filled with any substance so long as the total weight did not exceed 46% tons. There is no evidence in the record that the bins would not hold 46% tons of feathers or anything else, including 46% tons of alfalfa pellets. There is no evidence in the record that the bin was not suitable for storing alfalfa pellets, but there is substantial evidence in the record that appellants overloaded the north end of the bin with more than 46% tons of alfalfa pellets and that the north end of the bin collapsed under this weight. Many automobiles are designed as eight passenger automobiles and are sold as being suitable for safely transporting people, but certainly there is no warranty in the sale of such automobile that eight people can ride •safely in the front seat. There is substantial evidence in the record to sustain the verdict of the jury, and finding no error in the admission of the evidence, we affirm the judgment of the trial court.

Affirmed.

Fogleman, J., not participating.


text:
    OLD AMERICAN LIFE INSURANCE COMPANY v. Dorcas TAYLOR
    5-4552
    427 S. W. 2d 23
    Opinion delivered April 22, 1968

      Jack L. Lessenberry, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Old American Life Insurance Company from an adverse judgment of the Pulaski County Circuit Court in favor of Mrs. Dorcas Taylor, who was the plaintiff in the trial court.

On June 12, 1964, Southern Union Life Insurance Company issued a family group hospital and surgical benefit policy to the appellee, Mrs. Dorcas Taylor, and among other benefits the policy provided for payment for accidental injury resulting in death of any of the named insureds. Old American Life Insurance C'ompany assumed all the obligations of Southern Union to the holders of policies issued by Southern Union. James Taylor, one of the named insureds in the policy issued to his mother, Mrs. Taylor, sustained an accidental injury resulting in his death, and Mrs. Taylor filed claim for $2,000 under the policy. Old American paid $1,000 as the full amount due under the policy, and Mrs. Taylor, filed suit for $1,000, together with' interest, penalty, costs, and attorney’s fee. A trial before the judge, sitting as a jury, resulted in total judgment of $1,557 in favor of Mrs. Taylor and on appeal to this court Old American relies upon the following points for reversal:

“The evidence was insufficient to sustain the judgment of the court.
“The trial judge should not have considered opinion testimony. ’ ’

Only a fact question is actually presented in this case and that question concerns the validity of an additional provision added, in red type, to the face of the policy, as follows:

“All the benefits of this policy, with the exception of the daily room benefits shall be payable at the rate of 200% of the stated amounts.”

The appellant contends that this provision was a forgery, so the question boils down to whether this provision was in the policy when it was issued or whether it was added to the policy after the policy was issued.

The appellee, Mrs. Taylor, testified that her husband purchased the policy through an agent by the name of Delbert Standridge; that the policy was received through the mail and that the provision typed in red was on the policy when it was received. Mr. Taylor testified that he purchased the policy from Mr. Standridge who was part owner of a general insurance agency; that the policy was delivered through the mail; that it is now in exactly the same condition as it was when received, and that it has not been changed.

The evidence submitted by the appellee was heard by the court on June 2, 1967, and it was agreed that the remainder of the evidence would be heard on June 17. On June 17 appellant presented its evidence, and Mr. Kelly, former vice president and part owner of Southern Union Insurance Company testified that the policy was sold by Delbert E. Standridge as a writing agent and who is now in California; that T. Gr. Tubb of Beebe was president of Southern Union, that he saw Tubb a couple of weeks ago down town but has no personal knowledge of whether Tubb is in the state. Mr. Kelly testified that the portion of the policy typed in red is not a normal provision of policies issued by Southern Union and stated: “We don’t issue policies like this. We didn’t put this on there.” Mr. Kelly testified that Mr. Standridge was a general agent; that Miss Dutchy Wilson, the receptionist and secretary in the home office of Southern Union, ordinarily did the necessary typing on insurance policies, and that he is not sure where she is now unless she is at home. At page 35 of the transcript, Mr. Kelly testified as follows:

“A. Of course we keep a copy of the policy.
Q. Where is that?
A. Where is a copy of the policy?
Q. Yes, sir.
A. In the file.
Q. Whose file ?
A. Old American.”

Appellant did not offer the testimony of agent Standridge who sold the policy, nor the testimony of Miss Wilson who ordinarily did the typing on the policies. Neither did appellant offer in evidence the office file copy of the original policy or attempt to explain its failure to do so. We conclude that there was substantial evidence to sustain the’judgment of the trial court.

Some attempt was made on direct examination of the appellee as a witness at the trial, to qualify her as an expert on typing; on cross-examination she was questioned concerning her qualifications as an expert on typewriters, but the testimony elicited from her was not such testimony that would be confined to the knowledge of an expert in either field. On direct examination ap-pellee testified that when a piece of paper has been typed on and removed from a typewriter, it is difficult to return the paper to the machine and obtain proper alignment of margins and spacing between the lines; that the typing in question on the policy involved, seemed to her to have the proper margin alignment and the proper spacing between the lines. On cross-examination the appellee testified that the typewriter used had pica rather than elite type.

The knowledge revealed by the testimony of appel-lee as to the marginal alignment, spacing of lines, and pica rather than elite type on the typewriter used in preparing the policy, was knowledge common and well known to anyone who has ever used a typewriter and there is nothing in the record to indicate that the trial court gave any more weight to appellee’s opinion as to the alignment of margins and spacing of the lines than he did to his own observation from examination of the policy, so we conclude that the trial court did not err in overruling appellant’s motion to strike this testimony.

After the appellant had rested in the trial of this case, the appellee offered evidence in rebuttal that has given us considerable concern, especially in the light of our recent decision of Rushton v. First National Bank of Magnolia, 244 Arkansas Reports (Advance Sheets), opinion delivered April 1, 1968.

As rebuttal testimony, the attorney, who had conducted the trial for the plaintiff throughout the case, took the witness stand and under examination by another member of his firm, testified as a witness for their client. The testimony will not be set out in detail since no argument has been directed to it on this appeal, but the substance of this .rebuttal testimony was to the effect that the attorney had taken the insurance policy to the office of the appellant and that the officers of the appellant company had admitted owing the full amount of the $2,000.00 claimed by the appellee; and that they and their office employees were more or less apologetic for their error in not having already paid it. No objection was made by appellant to the offer of this testimony, and unlike the RusMon case, supra, the witnesses were not under the rule in the case at bar, nevertheless, we reiterate the admonition laid down in the RusMon case against an attorney testifying for his client in a case he is trying.

We conclude that there was substantial competent evidence to sustain the judgment of the trial court and that the judgment should he affirmed.

Affirmed.


author: Conley Byrd, Justice.

text:
    POTLATCH FORESTS, INC. et al v. Carl BURKS
    5-4554
    426 S. W. 2d 819
    Opinion delivered April 22, 1968

      Williamson, Williamson & Ball, for appellants.

      Paul K. Roberts, for appellee.
   Conley Byrd, Justice.

Appellants, Potlatch Forests, Inc., and Hartford Accident & Indemnity Company, appeal from a circuit court order that set aside an order of the Workmen’s Compensation Commission denying Carl Burks compensation benefits for a hernia he experienced, because he failed to meet the five requirements laid down in Ark. Stat. Ann. § 81-1313(e) (Repl. 1960). That section provides:

“(e) Hernia: In all cases of claims for hernia it shall be shown to the satisfaction of the Commission:
(,1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region;
(3) That such pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the eiriployer within forty-eight (48) hours thereafter;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within forty-eight (48) hours after such occurrence; ...”

The facts giving rise to the claim are that on December 22, 1966, while appellee was operating a cut-off saw at appellant Potlatch Forests’ plant, a board struck appellee in the stomach just above the belt line. Appellee was knocked backwards a step or two and suffered severe pain in his abdominal region. After resting for a few minutes, he then continued to work until quitting time. Appellee slept very well that night but was still bothered by pain the next morning, Friday, December 23, and although suffering he worked all day.

Appellant’s plant closed down Friday, December 23, for the Christmas holidays. On Saturday, December 24, appellee was still suffering and attempted to contact his physician, but was unable to do so. Appellee spent most of this day lying down, as he had found that alleviated the pain.

On Sunday, December 25, appellee still had pain and spent most of the day reclining, which gave him some relief from the pain. -He again tried to reach his phvsi-cian, but without success. At no time did appellee call any of the other physicians in Warren.

On Monday, December 26, appellee still felt pain and had to lie down most of the day. He was again unable to contact his physician.

On Tuesday, December 27, appellee went back to work, but the pain became so severe that by 9:30 a.m. he was forced to stop working. He then sat down and elevated his feet and by this means got some relief. Ap-pellee also notified his foreman, Mr. Greenwood, that he had injured himself and would have to discontinue work and see a physician. On Tuesday afternoon ap-pellee attempted to reach his physician but was unable to do so.

On Wednesday, December 28, Dr. Jaimes W. Marsh, who had been out of town since December 23, returned to Warren. Dr. Marsh examined appellee and diagnosed the trouble as an inguinal hernia.

The evidence also shows that appellee had a hernia on his right side when he went to work for Potlatch in 1936; that subsequently he had a hernia on his left side in 1960, which was repaired; and that the present hernia was just above the one he had in 1960.

When the testimony is viewed in the strongest light in favor of the Commission’s finding, as we must do, Fagan Electric Co. v. Green, 228 Ark. 477, 308 S. W. 2d 810 (1958), we find that there was substantial evidence to support the Commission’s denial of relief to appellee.

Appellee, to support the circuit court’s decision overruling the Commission, relies upon The Crossett Co. v. Childers, 234 Ark. 320, 351 S. W. 2d 841 (1961); Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S. W. 2d 929 (1963); and Williams Mfg. Co. v. Walker, 206 Ark. 392, 175 S. W. 2d 380 (1943).

In the Crossett case, testimony showed that on February 9 a heavy wrench came in contact with Childers’ stomach; that although he observed a small lump in the hernia area that night, it did not occur to him he might have a hernia; and that subsequently on February 12 there was a leakage of chlorine gas at the plant which caused Childers to cough steadily for twenty minutes or more. It was at that time that a big swelling came out and Childers was forced to cease working. We there held that the occurrence on February 12 was sufficient evidence to support the Commission’s conclusion that the hernia occurred as a result of the working conditions on that date.

Nor do we find anything in the Williams or Prince eases to sustain appellee’s position. An estoppel was involved in both of those cases. In the Williams case the employee suffered an injury causing a cessation of his work which was promptly reported to the employer and which the employer’s doctor was unable to diagnose as a hernia within the 48-hour period. In the Prince case, claimant promptly reported his injuries to the employer, but because of the employer’s heavy work schedule he continued to work, át the employer’s specific request and with the aid of others furnished by the employer, beyond the 48-hour deadline for attendance by a physician. The estoppel present in those two cases is not present here.

Reversed and remanded.


author: W. B. Putman, Special Justice.

text:
    A. F. HOUSE, Trustee v. James R. LONG et al
    5-4258
    426 S. W. 2d 814
    Opinion delivered April 22, 1968

      Wrighty Lindsey & Jennmgs, for appellant.

      Robinson, Thornton, McCloy & Young, for appellee and cross-appellant, Arkansas Louisiana Gras Co.

      Catlett & Henderson, for appellee, Monarch Mill . & Lumber Co.
   W. B. Putman, Special Justice.

This litigation involves the priority of liens among a purchase-money mortgage, a construction money mortgage, various mechanics’ and materialmen’s liens and a security agreement involving certain fixtures in thirteen different dwellings.

The defendant Long, a builder, had arranged for financing with Modern American Mortgage Company for approximately forty residences to be constructed primarily in Beverly Hills Addition to the City of Little Rock, Arkansas. On each lot purchased by Long, purchase-money mortgages were given in amounts varying from $2,750.00 to $3,200.00, and in addition, separate construction money mortgages in the amount of $10,-000.00 were given on each lot. Both the purchase and construction money mortgages and the notes which they secured were subsequently assigned in trust to the appellant, A. F. House. Construction was not begun until these mortgages were placed of record.

On ten of the thirteen residences in question, arrangements were made to disburse the proceeds of the construction money loans through Beach Abstract and Guaranty Company. Disbursements on the other three were through Standard Title Company. The procedure established required Long to submit to the disbursing agent each week a list of the laborers, mechanics and materialmen who were entitled to payment and the amounts thereof on each house. An officer of Modern American would then inspect the premises to determine whether construction had progressed sufficiently to justify the requested disbursement. If so, funds would he sent to the disbursing agent, and Long would execute a separate note for each disbursement. Individual checks would be issued to each laborer, mechanic or material-man in the amount shown on the list and delivered to them by Long.

Cross-appellant, Arkansas Louisiana Gras Company, had entered into a separate contract with Long to sell a heating and air-conditioning unit, a cooling tower, a kitchen range and oven and to install the duct work in each house. A blanket security agreement was executed on November 30, 1964, but was never recorded. Security agreements on individual lots were also executed as the goods were delivered, but these also were not recorded. It was not until December 27, 1965, approximately two months after construction had ceased and Long’s insolvency was generally known, that additional security agreements were executed and recorded.

The chancellor held that the language of the construction money mortgages did not unqualifiedly commit the mortgagee to make the advances so as to afford it priority over the mechanics’ and materialmen’s liens. He further held that the transaction between Arkansas Louisiana Gas Company and Long created a purchase-money security interest in collateral other than inventory which was not perfected within ten days after the debtor received possession as required by Ark. Stats. 85-9-312 (4) (Repl. 1961) in order to give it priority over conflicting security interests.

Accordingly, the chancellor established the priorities in the following order: (1) Purchase-money mortgage; (2) mechanics’ and materiálmen’s liens; (3) construction money mortgage; (4) the security interest of Arkansas Louisiana Gas 'Company. From this decree, A. F. Honse, Trustee, and Arkansas Louisiana Gas Company have appealed.

The pertinent language in each of the thirteen construction money mortgages in question is as follows:

“Grantee agrees that the acceptance and recordation of this mortgage hinds grantee, its successors and assigns absolutely and unconditionally to make said loans and advances. Such advances will be made as requested by grantor as such work progresses.”

It was the view of the trial court that this language was insufficient under our decisions requiring such a recitation to leave the mortgagee no option in the matter of making advances. See Lyman. Lamb Co. v. Union Bank of Benton, 237 Ark. 629, 374 S. W. 2d 820, and that the conduct of the parties left it to the discretion of the lender whether to make such advances. We are unable to agree with this conclusion.

The provision plainly recites that upon acceptance and recordation of the mortgage, the grantee (mortgagee) is “absolutely” and “unconditionally” bound to make the advances. Had the recitation stopped at the end of the first sentence, we presume there would have been no quarrel with’ it. If, therefore, there is any deficiency in the provision, it must be created by the last sentence which provides that “such advances will be made as requested by the grantor as such work progresses.” We do not believe that this language grants the mortgagee any option in the matter. On the contrary, whatever options there are rest with the mortgagor. If he causes the work to progress and requests the advances, the mortgagee has no choice other than to make them.

There is no necessary vice in a disbursement procedure keyed to the progress of construction. In Ash down Hardware Co. v. Hughes, 223 Ark. 541, 267 S. W. 2d 294, the construction money mortgage provided for advances to be made upon completion of each of a series of tourist cabins. Tbe unconditional nature of the commitment was sustained when attacked by a material-men’s lien holder seeking priority.

The precise language in question here was approved in Planters Lumber Co. v. Wilson, 241 Ark. 1005, 413 S. W. 2d 55, a case decided after the entry of the decree from which this appeal was taken. Although in that case the principal question was the priority of a construction money mortgage to the extent that funds secured by it were withheld as payment for the lot and for interest, this Court stated that the language of the mortgage absolutely and unconditionally bound the mortgagee to make advances as the work progressed.

We hold that the language in the construction money mortgages unconditionally required Modem American to make advances to Long and that they should take priority over the mechanics’ and material-men’s liens.

Arkansas Louisiana Gras Company has filed a cross-appeal asserting that the chancellor did not accord it the priority to which it is entitled. We believe this point is well taken. The trial court held that Ark. Stats. 85-9-312 (Repl. 1961), dealing with priorities among conflicting security interests in the same collateral, was determinative of the rights of Arkansas Louisiana Gas Company. It was, however, stipulated that the kitchen range and oven were fixtures, and the chancellor held that the heating-air-conditioning units and cooling towers became fixtures when installed. We are of the opinion that under these circumstances, the applicable statute is 85-9-313 which is the provision of the Uniform Commercial Code designed to establish priority of security interests in fixtures. The appropriate provisions of that statute are as follows:

“(2) A security interest which attaches to goods before they become fixtures takes priority as to the goods over the claims of all persons who have an interest in the real estate except as stated in subsection (4).
“(4) The security interests described in subsections (2) and (3) do not take priority over
“(c) a creditor with a prior encumbrance of record on the real estate to the extent that he made subsequent advances if . . . the subsequent advance under the prior encumbrance is made or contracted for without knowledge of the security interest and before it is perfected.”

Under this statute if Arkansas Louisiana’s security interest in the goods, although not yet perfected, attached to the goods before they became fixtures, it would take priority, as to the goods only, over the prior recorded mortgages to the extent that advances were made under these mortgages before the goods were affixed to the realty.

Ark. Stat. 85-9-204 (1) provides that a security interest attaches when there is an agreement that it attach and value is given and the debtor has rights in the collateral. The chancellor found that as between Arkansas Louisiana and Long, the security interest attached before the goods became fixtures.

All of the purchase money had been advanced before the goods became fixtures, and it is apparent from the record that some construction funds were advanced before and some were advanced afterward. In order to establish the extent to which Arkansas Louisiana is entitled to priority as to its goods which became fixtures, it will be necessary to determine in each case how much money had been advanced under the construction money mortgages before the goods became fixtures and how much was advanced thereafter.

It is likewise our holding that the materialmen’s liens will take priority over Arkansas Louisiana’s attached but unperfected security interest in the goods only to the extent that labor or material was supplied after the goods became fixtures.

It is argued that this permits a “secret lien” and results in inequities to the other lien holders. The answer to this is that there is no inequity in prohibiting a secured creditor from looking to security other than that upon which he relied when he decided to advance the money. Arkansas Louisiana’s priority of security interests affects only the goods which became fixtures and not the remaining realty and improvements. Ark. Stat. 85-9-313 (5) provides for the removal of the fixtures from the real estate in circumstances of this kind upon the posting of adequate security for the payment of damages resulting from the removal.

Appellant House argues, however, first: That Arkansas Louisiana’s security interest attached at the time of the execution of the blanket security agreement on November 30, 1964, and that all the mortgage funds were advanced after that date; and, second: That this issue was raised by Arkansas Louisiana for the first time on appeal. We consider both of these arguments to be without merit. A security interest cannot attach under Ark. Stat. 85-9-204 (1) until value is given and the debtor has rights in the collateral, and, in any event, it is important only to determine whether the security interest attached before the goods became fixtures. The significant time in determining the extent of priority is the time the goods were affixed to the real property, for it is only after this has been done that a prior mortgagee may be induced to make further advancements by seeing the fixtures in place.

Arkansas Louisiana Gas Company pleaded that its lien was superior to that of appellants and prayed that the Court determine the nature and extent of its rights in the property. We consider this to he sufficient to raise the issue at the trial level.

Appellee Monarch Mill & Lumber Company, a ma-terialmen’s lien holder, argues that the appeal should be dismissed because appellant A. F. House had no beneficial interest in any of the notes and mortgages assigned to him, and cites Ark. Stat. 27-801 which requires every action to he prosecuted in the name of the real party in interest.

It is true that House held only the hare legal title to these instruments, that he gave no consideration for them and that they were assigned to him merely for reasons of convenience. We do not agree, however, that this deprives him of standing to prosecute this action. House held these instruments as an assignee in trust. Ark. Stat. 27-804 provides that the trustee of an express trust may bring an action without joining with him the person for whose benefit it is prosecuted.

One of the primary purposes of “real party in interest” statutes is to prevent defendants from being harassed by different suits arising from the same cause. See Pitts v. Crane, 114 Ore. 593, 236.P. 475. The real party in interest, therefore, is generally considered to .be that person who can discharge the claim on which suit is brought and not necessarily the person ultimately entitled to the benefit of the recovery. There can be little doubt that an adjudication of the rights of A. F. House as trustee of these notes and mortgages will be equally binding on his assignor, Modern American Mortgage Company.

The cases cited by Monarch, holding that in a suit to foreclose a deed of trust both the trustee and the owner of the indebtedness are necessary parties, are distinguishable. When a deed of trust is used as a security device, the trustee holds the security and the beneficiary holds the indebtedness. Clearly they must both be parties to an action to foreclose the security and satisfy the indebtedness. Snch a split ownership does not exist in this case, however, .poellant House owned legal title to both the notes and the mortgages.

This case must be reversed and remanded for determination of the amounts advanced under each construction money mortgage prior to and after the goods were affixed to the realty in question, for similar determinations in connection with the mechanics’ and ma-terialmen’s liens, and for establishment of priorities of liens on the fixtures and on the remaining real property in accordance with this opinion.

FoglemaN and Byrd, JJ., disqualified.

LeRoy Autrey, Special Justice, joins in the opinion.


author: Carleton Harris, Chief Justice.

text:
    Fred BRYSON et ux v. Delmar DILLON et ux
    5-4523
    427 S. W. 2d 3
    Opinion delivered April 29, 1968

      Rhine So Rhine, for appellants.

      Brcmch So Adair, for appellees.
   Carleton Harris, Chief Justice.

This is a boundary line case involving Lots 29 and 30 of Block “H-G” of Castleberry’s Addition to Paragould, Arkansas. Appellants, Fred Bryson and wife, are the owners of Lot 30, and appellees, Delmar Dillon and wife, are the owners of Lot 29. The dispute which has arisen relates to the boundary line running east and west between the two lots. Both appellants and appellees derived their title either directly, or indirectly through mesne conveyances, from a common grantor, Kermit Mellberg. On April 7, 1949, Mellberg conveyed Lot 29 to W. W. Duncan and wife. On January 14, 1956, Duncan and wife conveyed to Marion H. Wineland and wife. The Winelands conveyed the property to John D. Osburn on September 17, 1959, and the Osburns conveyed to appellees Dillon on September 27, 1965. The original deed from Mellberg to Duncan described the land conveyed as follows:

“The South Half of Lot 28 and all of Lot 29 in Block ‘H-G’ of Castleberry’s Addition to Paragould, Arkansas, being a resurvey of Block ‘H and G’ of Castle-berry’s Addition to Paragould, Arkansas, as recorded in Plat Book 1, at page 45, said re-survey being of record in Plat Book 1, page 94.”

In all of the other conveyances this same identical description was used. Appellant purchased Lots 30 and 31 in Block H-G from Mellberg and wife by warranty deed on December 3, 1962.

On May 31, 1967, appellees instituted suit against the Brysons alleging that in 1956 Wineland and Mell-berg orally agreed that the boundary line between Lot 29 and Lot 30 “should be a line running East and West arid located at a point five (5) feet South of the Southern most part of the house located on Lot 29, then owned by Marion H. Wineland, et ux, and now owned by the plaintiffs.” It was then asserted that the subsequent grantees of Wineland had made improvements treating the aforesaid line as the true boundary and had exercised acts of ownership up to said line. It was then alleged that the Brysons were encroaching over the agreed line, and it .was prayed that appellants be enjoined from interfering with the use of the property, and that appellants be required to remove rose bushes and other obstructions from the land allegedly belonging to appellees. The Brysons answered, denying that any oral agreement had ever been entered into concerning the boundary, asserting the title to the property in question, and asking that the complaint be dismissed. On trial, the court held that Wineland and Mellberg “had made a tacit agreement during 1956 as to the location of the boundary line” between the two lots, and that the Bry-sons and their predecessor in title had “acquiesced in the location of the boundary and are now estopped from asserting any other line as the boundary line” between Lots 29 and 30. Thereupon, the court declared the following line to be the boundary:

“The place of beginning shall be a point four feet South of the Southeast corner of the Southernmost wall of the plaintiffs’ house. From the place of beginning run thence in an Easterly direction to the center of a drain pipe exit place (said drain pipe being the one running in a Southerly direction from the Southeast corner of the plaintiffs’ house, approximately five feet; thence in an Easterly direction to its exit place); thence from said center of the exit place of the aforedescribed drain pipe and continuing in the same direction on the same course, to the East boundary line of Block ‘H-G-’ of Cas-tleberry’s Addition to the City of Paragould, Arkansas.
“Then, again beginning at the place of beginning and running in a Westerly direction to a point twelve inches South of the South edge of the plaintiffs’ water meter; thence continuing in the same direction and on the same course to the East line of Hilltop Street in Castleberry’s Addition to the City of Paragonld, Arkansas.”

From the decree so entered, the Brysons bring this appeal.

First, let it be said that the evidence is undisputed that the record title to the property in question is in appellants.

Mr. Mellberg did not testify, and the court’s finding was apparently largely based upon the testimony of Wineland. This witness testified that he and Mellberg lived next to each other, and that he (Wineland) performed drain work on the property while he lived at that location. He said that he hooked up a sewer line from his kitchen sink and from the automatic washer. “It run outside the kitchen window and then down to an open ditch at the back. It went out to the south and then east. About 4 or 5 feet outside the house.” This “4 or 5 feet” was on the property presently owned by tke Brysons, and Wineland said that he built a fencé on the south side of the drain. The witness said that Mellberg did not object to either of these acts, though, he lived on Lot 30 at the time, and knew about them, and Wineland stated that he never had any dispute relative to the property line with Mellberg. He said that he mowed his lawn over to this fence.

“Q. And from the fence and gate to the front, to Hilltop Street, where did you mow?
A. Well, I mowed out in line with it.”

Wineland testified that the fence had been taken down when he left the property, but part of the posts were still there. He said that he did not obtain permission from Mellberg to run the drain down to the east side of his house, nor did he obtain permission from Mell-berg to build the fence — he simply performed these acts, and Mellberg never did say anything about it. He stated he never had any survey made in an effort to locate the true line between the two lots as reflected by the recorded plats. On re-direct examination the following testimony was given:

“Q, .You said there wasn’t any verbal agreement, Mr. Wineland. Do you actually remember whether you had any verbal agreement or do you just not know whether you made one or not?
A. Well, I don’t know of any. I don’t recall any agreement that we made.
Q. But you don’t definitely say that there wasn’t one, do you?
A. Well, I don’t recall any agreement that we made. ’ ’

Osburn, who purchased from Wineland, testified that he. did not know where the property lines were located. “Well, there never was anything said about no line no more than they just said approximately out there somewhere. ’’-The witness stated that there was no fence of any kind on the south side of the house, and on being asked if, when he moved into the property, he could see where a fence had been, answered, “I don’t believe you could no more than it was in a low place. A slope from each house sloped toward it and you could still tell where there was a low place and see where it joined on.” Osburn said that he mowed out four or five feet from his house, and that Mellberg never made any objection; nothing was ever said about where the line was located, “I don’t know where it was but that was just the understanding between me and him.” He also used the drain that Wineland had constructed, but he could not state exactly where the drain was located. The witness testified that Mellberg moved while he (Osburn) was still living on the premises; that Bryson moved into the Mellberg house, but did hot object to his manner of mowing. Osburn testified that Bryson had the line surveyed, that the surveyer “put it over there somewhere in my way and I picked it up and throwed it out of the way.” He said he told one of the Bryson “kids” that there was no need of “stakes between me and him.” Osburn lived on the premises approximately six years before conveying to Dillon. The latter testified that he was claiming over to the drain, approximately five feet. This was admittedly a guess, and at other times, the witness would state, “4 or 5 feet.” He said that Bryson started to build a fence about six inches from his house, but never did construct it; however, appellant put out rose bushes on the strip Dillon was claiming. Dillon admitted that at the time he purchased the property, and was looking it over, Bryson asked him if he “found out where the property line was,” and he further said that appellant told him that the line was about two and one-half inches from his house.

Bryson testified that when he first moved to the premises he did not know just where the line was located, and he subsequently obtained a surveyor to ascertain that fact. He stated that both he and Osburn mowed the same strip, but they, never discussed the matter. Appellant said that he met Dillon when the latter came to look over the Osburn property, and he told this appellee that, according to the survey, the house extended on his (Bryson’s) property, but “I’ll not cause you any trouble over it.” Dillon made no response. Appellant said that he set rose bushes out on the disputed strip, and Dillon complained, stating that he intended to have it surveyed. However, from the record, this was not done. Two surveys were made at the instance of Bryson, one by George Wadley, and the other by Olay Kenward, registered engineer. The Wadley survey caught the southeast corner of the Dillon house, and the Kenward survey came out about one foot to the south, leaving the line about eight inches from the corner of the house. Bryson stated his willingness to accept the second line.

It will be seen from this review of the evidence that there was never any agreed boundary line, i. e., none of the prior owners had ever agreed, or for that matter, even discussed, where the property line was located. In fact, it doesn’t even appear that anyone gave thought to the true location of the line until Bryson had the first survey made. The trial court recognized this fact, and held only that a “tacit” agreement had been reached. This holding was based on acquiescence. The complaint does not allege, nor did the court find, that title had been established by adverse possession. In a long line of cases, we have held that, to establish an agreed boundary line, there must be an uncertainty or dispute as to the boundary line, there must be an uncertainty or dispute as to the boundary; that the agreement must be made by adjoining landowners; the boundary line fixed by the agreement must be definite and certain, and finally, the agreement must be followed by possession. Payne v. McBride, 96 Ark. 168, 131 S. W. 463; Taylor v. Rudy, 99 Ark. 128, 137 S. W. 574; Malone v. Mobbs, 102 Ark. 542. 145 S. W. 193, (on rehearing) 102 Ark. 545, 146 S. W. 143; Sherrin v. Coffman, 143 Ark. 8, 219 S. W. 348; Moeller v. Graves, 236 Ark. 583, 367 S. W. 2d 426. As occasionally happens, cases are found, which, without careful scrutiny, may indicate a departure from this rule. Appellant mainly relies on our case of Deidrech v. Simmons, 75 Ark. 400, 87 S. W. 649, where these requirements are not specifically mentioned, and it is said that an agreement may he inferred from long continued acquiescence and occupation, thus binding the parties. However, the facts there are not at all in accord with the present facts. In Deidrech, Melinda E. Kilpatrick was deeded Lot 4 in Block 74 of Tennehill and Owen’s Addition in Pine Bluff by James M. Hudson, who also conveyed Lot 1 to Silas Beynolds. These two parties later conveyed to others, and eventually Deidrech became the owner of Lot 1 and Simmons became the'owner of Lot 4. Simmons caused Lot 4 to be surveyed, and his survey reflected that this lot included some of the Deid-rech property (which had earlier been owned by Reynolds). Mrs. Kilpatrick, who had originally purchased Lot 4 from Hudson, testified that she built a fence marking the boundary line between the two lots, and never at any time claimed any land north of the fence. Reynolds subsequently built a fence adjoining her fence, and she stated that she never, either before, or after, claimed any part of the land on the Reynolds side of the fence. This line was also observed by the subsequent owners of Lot 4 until the property was conveyed to Simmons. This court held that Mrs. Kilpatrick and Reynolds and subsequent purchasers had tacitly agreed unon the division line.

The opinion reflects, however, that there was uncertainty as to the line, caused by differences in two maps, both being generally accepted as correct, though they differed as to a 12-foot strip between the properties, so it is very evident that there was uncertainty as to the true line. In the next place, the original fence was constructed by the owner of Lot 4, the result being that she gave up a strip of her property, but she emphatically stated that she never claimed beyond the fence she had herself built.

Here, there is really no uncertainty as to the boundary line (except for the difference of less than a foot in the two Bryson surveys); rather, the owners- of the properties apparently never bothered to find out where the line was located. Also, to conform to Deidrech, the fence constructed in the present litigation would have had to have been built by Mellberg, who would have been giving up some of his property, rather than by Wine-land, who was taking additional footage. Not only that, but in Deidrech the fence stood for many years, and the Wineland fence only stood during the period of his particular ownership, which could not have been more than three years.

Appellee also relies on Seidenstricker v. Holtzendorff, 214 Ark. 644, 217 S. W. 2d 836. The opinion points out that there was uncertainty in the location of the true line, and it was also shown that for more than thirty years, a fence had been recognized as a division fence. The court held that:

“Acquiescence, by owners of adjoining lands, in a boundary line, as shown by a division fence, for more than seven years will ordinarily confirm the boundary line as thus located, even though the fence may not be placed on the true line between the tracts.”

It is apparent that adverse possession was one of the factors in this case, and the same is also true of the third case relied upon by appellee, Vaugn v. Chandler, 237 Ark. 214, 372 S. W. 2d 213. There, too, the case was determined on the basis of adverse possession, the court stating:

“After a careful review of the evidence in this case we have determined that the 1,295.7 foot strip of land was occupied adversely by the appellee for more than seven (7) years in the belief that the existing fence represented the true boundary.”

In Sherrin v. Coffman, supra, we said:

“In the present case there is no testimony to show that the parties made any agreement about the boundary line, or that such agreement if made was executed. Mrs. Coffman’s testimony only goes to the extent of showing that she had a survey made and that the adjoining proprietor afterwards recognized its correctness and asked permission to move a house situated on the disputed strip. This testimony falls short of showing that the parties made an oral agreement establishing a boundary line which had been in dispute and that the possession of the disputed tract was taken by Mrs. Coffman by virtue of such agreement.”

Summarizing, the evidence in this case reflects that the same description was used in each conveyance all the way from Mellberg to Dillon, and, under this description, the disputed tract belonged to appellants. There was no agreement by any of the owners, nor was any definite line considered as the boundary. In fact, the strongest evidence offered by appellee was that the line was approximately “4 or 5 feet” from the southeast corner of the house. While there was testimony by Wine-land that he built a fence (and it is not clear to where this fence extended), this mark of a purported boundary was only in existence for less than three years, and was no longer standing- when the property was conveyed from Wineland to Osburn. Finally, it does not appear that there was any dispute about the location of the proper boundary until the appellant had the property surveyed.

It follows, from what has been said, that the complaint should have been dismissed, and the court erred in establishing the line heretofore referred tó; the decree is reversed, and the cause remanded to the Greene County Chancery Court, with directions to enter a decree in accordance with this opinion.

       Actually, this conveyance was from Hilltop Lumber Company, Mellberg being a partner.

       From the testimony:
      “Q. This fence that you said you installed on the south line, where did it run from?
      A. From the 'back corner of the house, from the southeast corner of the house out to the line and then back to the east side.
      Q. Was it right next to the house or was it offset some way?
      A. I had a gate where I could go through beside the house and • then it went to the south and then back.
      Q. Approximately how far was this from the edge of the house to the gate? How wide was your gate?
      A. Oh, it was I would say four or five feet. I just made a gate all the way out.
      Q. So from the comer of your house the gate came out approximately four or five feet south and then the fence ran 6ut to the south side of the drain, is that correct?
      A. Yes, sir.”