author: JohN A. FoglemÁN, Justice.

text:
    Clarence C. Collie v. Mary Alice Collie
    5-4143
    413 S. W. 2d 42
    Opinion delivered April 3, 1967

      Jack L. Lessenberry, for appellant.

      House, Holmes & Jewell, for appellee.
   JohN A. FoglemÁN, Justice.

This case originally-involved two appeals. The second appeal was. from an order by a special chancellor committing appellant to jail until he paid certain arrearages on child support provided for in an agreement between the parties and incorporated in a decree of divorce granted the wife.. This appeal has. become moot and will be dismissed, it being conceded that these arrearages have been paid.

The first appeal is from the order of the chancellor reducing appellant’s child support payments, from $583.33 to $400.00 per month. Appellant contends that the trial court erred in dismissing his petition to correct the original decree of divorce, insofar as it relates to child support and in failing to grant a greater reduction in these payments.

The divorce action was instituted by appellant in May, 1965. Appellee, having first answered, filed a cross complaint for divorce. This pleading was filed one day after the parties entered into the property settlement agreement in question. The agreement was approved by the Honorable Royce Weisenberger, Chancellor (apparently serving on exchange or by assignment), and incorporated into the decree which was dated August 30, 1965. This agreement referred to a statement of assets and liabilities of appellant as of May 31, 1965, as an exhibit thereto, but it was not incorporated into the decree. Certain distribution of property was provided for and appellant agreed to convey a residence to the three children of the parties under a trust agreement to which reference was made. Appellant agreed to make all payments required on a $35,000.00 mortgage on the residence, to pay $150.00 per month as alimony and $7,000.00 per year for child support in monthly installments. In addition, he agreed to provide a four-year college education to each of the children, to continue to provide summer camps for each of them during minority, to pay all high school fees and hook costs, all medical and dental expenses, and certain premiums on life insurance policies of which the children would be beneficiaries. In addition to the signatures of the parties, the agreement was approved by their respective attorneys. Each party acknowledged therein that he had been fully advised as to his rights.

A pleading designated “Petition for Correction of Divorce Decree” was filed by appellant only seven months after the entry of the decree. His bases for correction of the decree are the remarriage of appellee and the allegation that certain ingredients of the total child support provided for would properly have been alimony, but were considered as child support in order to lower appellant’s taxable income. He contended that he actually agreed to pay only $180.00 per month for child support in addition to dental expenses, camp fees and college education costs. He also contended that the agreement had become inoperative because of the impossibility of complying with the trust for the benefits of the children, but he admitted that the parties had consummated an alternate to this provision. Appellee denied the allegation of the petition, except as regards the trust agreement. Appellant later filed an amendment to this, petition asking that, in the alternative, his child support payments be reduced because of a change in the circumstances of the parents and children.

Upon hearing, the trial court dismissed the original petition but found that a change in the circumstances of appellant justified a reduction of child support payments to $400.00 per month.

The chancellor was correct in denying the petition to correct the decree. A case appealed from the same chancery court involved a petition by a wife to have title to two tracts, of land quieted in her after expiration of the term of court at which a decree of divorce in the case had been rendered, in spite of statements in the pleading of the parties that no property rights were involved. There [Fullerton v. Fullerton, 230 Ark. 539, 323 S. W. 2d 926] this court said:

“* * * The Chancery Court terms for Pulaski County commence the first Monday in April and the first Monday in October. Appellee obtained her divorce decree during the April term, and the order directing appellant to vacate the property was entered during the following October term. We have many times held that a court is without authority to set aside or modify its decrees after the lapáe of the term in which they were entered, except upon statutory grounds.”

Here a full term of court intervened between the entry of the divorce decree and the hearing on appellant’s, petition. None of the statutory grounds for vacation or modification of a decree after the expiration of the term at which it was rendered are alleged or shown.

• A chancery court may correct its decree after the expiration of the term at which it was rendered to make it conform to the judgment actually rendered but not to change it to - one not actually rendered or to correct errors or review actions of the court. Kelley Trust Co. v. Lundell Land & Lbr. Co., 159 Ark. 218, 251 S. W. 680 ; Hendrickson v. Farmers’ Bank & Trust Co., 189 Ark. 423, 73 S. W. 2d 725. Petitioner, in asking the court to change the amounts fixed as alimony and child support by consent of the parties, was asking the court to make the decree reflect an action different from that taken by the court. Insofar as it was a consent decree, it could not be so changed over the objection of one of the parties, in the absence of fraud or similar ground. Cornish v. Keesee, 21 Ark. 528 ; Peay & Scull v. Tannehill & Owen, 27 Ark. 114 ; Blair v. Askew-Jones Lbr. Co., 186 Ark. 687, 55 S. W. 2d 78. Furthermore, as an alimony and property settlement agreement incorporated in the decree, it is contractual. In the absence of fraudulent inducement affecting its execution, it cannot be modified by judicial action. McCue v. McCue, 210 Ark. 826, 197 S. W. 2d 938 ; Tennison v. Tennison, 216 Ark. 748, 227 S. W. 2d 138 ; Godwin v. Godwin, 231 Ark. 951, 333 S. W. 2d 493.

It has been held by this court that when an independent, formal, written contract for alimony and child support has been approved by the chancellor and incorporated in the decree, the trial court has no jurisdiction to reduce the amount of monthly payments provided for or to modify the decree at a later date. Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d 439. The cited case recognized, however, that a chancery court might decline to use its powers, to enforce such payments where changed circumstances rendered such inequitable, leaving the parties to their remedy at law. Later decisions have held that the court has power to modify a divorce decree as to provisions for support of minor children on the showing of changed conditions necessitating such a modification, by either increasing or reducing such amounts. Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409. Any apparent conflict in these cases is probably attributable to the fact that the alimony and child support were not provided for separately in the Bachus case, but child support was a separate item in the Lively case. See Reiter v. Reiter, 225 Ark. 157, 278 S. W. 2d 644. At any rate we think that the better rule is that a chancery court may withhold enforcement of the payment of child support payments that have become inequitable by change of circumstances and the court may either reduce or increase amounts of child support payments provided for by such agreements because of changed circumstances. The interests of minors have always been the subject of jealous and watchful care by courts of chancery. Myrick v. Jacks, 33 Ark. 425 ; Crenshaw v. Crenshaw, 203 Ark. 1086, 160 S. W. 2d 37. The public interest in the welfare of children is sufficient reason for the exercise of this power, the interests of the children being paramount. Daily v. Daily, 175 Ark. 161, 298 S. W. 1012 ; Penny v. Penny, 210 Ark. 16, 193 S. W. 2d 811 ; Reiter v. Reiter, 225 Ark. 157, 278 S. W. 2d 644.

The expiration of the term is also insignificant insofar as changed crcumstances require modification of child support payments. Rowe v. Rowe, 238 Ark. 423, 382 S. W. 2d 370.

In considering the matter of reduction of payments, we first find that the petition states no grounds for any reduction. Remarriage of appellee and reduction of appellant’s income because of a property division with her, provided for in the agreement, are not sufficient. The former, standing alone, is not the kind of change of circumstances contemplated. The latter is not a change of circumstances at all, as it must have been contemplated at the time the agreement was made. The financial statement of appellant as of May 31, 1965 was not an exhibit but appellant referred to it in his testimony. It showed him with a net worth deficit of $205,338.36. When asked to state the changes in his financial statement, appellant called attention to elimination of the following:

1. $20,000.00 equity in residence.
2. $44,000.00 nursing home.
3. Interest in Executive House in Dallas.
4. Property in Fayetteville.

The residence was the one appellant agreed to put in trust for the children. He received a note for $64,000.00 on disposition of the nursing home which he pledged to secure about $60,000.00 in debts. The interest in Executive House was shown on the financial statement to have a negative net worth. He couldn’t remember what he got for the sale of the Fayetteville property, but he did hold an $8,000.00 note, two-thirds of which belonged to him. Other changes in his holdings were in performance of his property settlement agreement with his wife. Appellant also lost his equity in an apartment building in Austin to the mortgage holder, but does not show what, if any, effect this had on his financial condition. Appellant had an income of $745.00 per month at the time of the divorce, and only has a salary of $500.00 per month at this time. While the financial prosperity of the venture in which he is employed seems uncertain at this time, if it is successful his contract calls for additional benefits. It cannot now be said that he will not continue to receive this salary. Secured Mortgage, in which he owns all the capital stock, and which had a net worth of $8,000.00, recently collected one commission of $27,000.00 which was applied toward retirement of its debts. Collie was relieved of the payment of $250.00 per month on the residence mortgage and the taxes oh the property by the alternate agreement with appellee. Appellee testified that the present cost of maintenance of the children was $501.75 per month. In this she included $125.00 for one-half of the note payment on the residence in which her present husband and his son also reside. If this is deducted, the monthly amount would be $376.75.

The asumption is that the chancellor correctly fixed the proper amount for child support in the original decree. Clinton v. Morrow, 220 Ark. 377, 247 S. W. 2d 1015. One seeking modification has the burden of proving that there has been a change of circumstances requiring a modification. Stovall v. Stovall, 228 Ark. 1077, 312 S. W. 2d 337. The amount of child support on modification is a matter within the sound discretion of the trial court under the facts of each case. Robbins v. Robbins, 231 Ark. 184, 328 S. W. 2d 498.

We are unable to say that, on the showing made by appellant, the finding of the chancellor, who saw and heard the witnesses., was against the preponderance of the evidence or was an abuse of his discretion. This decree is. affirmed.

Harris, C. J., would reduce the regular support payments to $300.00 per month.

Byrd, J., disqualified and not participating.

       This order was stayed by this court pending1 this appeal.

       In the transcript we find a letter dated July 15, 1965 from the attorney then representing appellant to appellee’s attorney at that time. A copy of this letter went to Chancellor Kay L. Matthews who later announced his disqualification. In this letter a postponement of trial was protested for the reason that appellant’s business and financial situation was on the brink of disaster and his situation highly precarious.


source: Caselaw Access Project

author: CoNley Byrd, Justice.

license: Public Domain

text:
    John Barger v. State of Arkansas
    5240
    413 S. W. 2d 54
    Opinion delivered April 3, 1967

      Gerald'T. Ridgeway, for appellant.

      Joe Purcell, Attorney General, Don Langton> Asst. Atty. General, for appellee.
   CoNley Byrd, Justice.

This habeas corpus petitioner, John Barger, alleges that his constitutional right to the assistance of counsel was violated in that he was arrested in Pulaski County, Arkansas, in July, 1963; that he entered a plea of not guilty in the Pulaski Circuit Court on Septembér 4, 1963, when his case was passed with his consent to the September, 1963, term (which began on the fourth Monday of September); that no action was taken in the September, 1963, term nor in the March, 1964, term; and that on February 1, 1965, (a day of the September, 1964, term), he entered a plea of guilty to three charges of forgery and received a ten-year sentence on each charge — all without the assistance of counsel. The state admits that petitioner was not represented by counsel and it does not contend that he was advised of his right to the assistance of counsel.

In McIntyre v. State 242 Ark. 229, 412 S. W. 2d 826, we held that under these circumstances the petitioner had not waived his consitutional right to the assistance of counsel. Therefore, we hold that petitioner’s writ of habeas corpus should have been granted and his Pulaski Circuit Court‘convictions set aside.

Reversed and remanded.


author: Carleton Harris, Chief Justice. CoNley Byrd, Justice,

text:
    Lester Willis v. Ray Elledge
    5-4186
    413 S. W. 2d 636
    Opinion delivered April 10, 1967

      Gannaway & Barrow, for appellant.

      Martin, Dodds & Kidd; By Lowber Kendricks, Jr., for appellee.
   Carleton Harris, Chief Justice.

An automobile driven by appellant, Lester Willis, struck the rear of an automobile operated by appellee, Ray Elledge, on West Markham Street in Little Rock about 5:30 P.M. in December, 1965, the Elledge vehicle being stopped at the time, awaiting the clearance of westbound traffic. El-ledge instituted suit against appellant for damages, alleging personal injuries, and contending that Willis was guilty of negligence, and further asserting that appellant was under the influence of alcoholic beverages, and had voluntarily rendered himself unfit to operate his automobile. The complaint sought the recovery of $25,-350.00 for compensatory damages, and also asked punitive damages in the amount of $5,000.00. On trial, the jury returned a verdict awarding compensatory damages in the sum of $2,500.00, and also awarded the additional sum of $5,000.00 as punitive damages. This appeal is taken from that portion of the judgment awarding punitive damages. Only one point is relied upon, vis.:

“The verdict awarding punitive damages to Appel-lee in the amount of $5,000.00 is not supported by the evidence and is excessive, evidencing passion and prejudice on the part of the jury.”

Elledge and Officer W- H. Armstrong were the only persons to testify on behalf of appellee relative to appellant’s alleged intoxication. Elledge’s testimony on this point is as follows:

“Q. Now, getting back to the accident for a moment, Mr. Elledge, did you detect any. odor of alcohol on the person of Mr. Willis?
A. Yes, sir. I did.
Q. Did you form any opinion as to the sobriety...
MR. GANNAWAY:

* * * your Honor, I don’t believe that would be admissible.

THE COURT:
He can tell what he saw, physical facts, but lie can’t give his opinion whether or not he was sober at the time.
ME. HENDBICKS:
Q. All right. Mr. Elledge, in addition to the odor of alcohol that you smelled, was there anything unusual in Mr. Willis’ movements, conduct?
A. Yes sir he didn’t talk very good.
Q. In what way?
A. Well he was kind of incoherent.
Q. Was his speech slurry?
A. And he leaned up against the car and staggered and his eyes were kind of, I don’t know you could tell he was drunk.”
Officer Armstrong gave the following testimony on that point:
“Q. Did you detect any odor of alcohol about the defendant, Lester Willis?
A. Yes, sir, I did.
Q. Did Mr. Willis make any statements to you, Officer, regarding drinking?
A. Yes, sir. When I first arrived I talked to Mr. Willis, along with Mr. Elledge, and he stated that he had one beer. At the scene of the accident he was staggering and incoherent and I told Mr. Willis it was to my opinion he had more than one beer and he said that he was out West Markham earlier in the afternoon and that he was having target practice with a 22 caliber rifle he had in the back of his car, and that he had been drinking about all afternoon.
Q. Did you form any opinion as to the sobriety of Mr. Willis?-
A.' Yes., sir, I kind of felt that he was drunk.”

Willis testified that he had been out “target shooting” during the afternoon with a friend, and that he had consumed one quart of beer from 1:30 P.M. through the balance of the afternoon. He denied that he was intoxicated in any degree, and said that he did not see ap-pellee’s. car until revealed by his own lights.

“Well, I came over the hill, coming east, and I hadn’t much more than got straightened out until my light hit this car up in front of me. That’s all I saw, this bulk up in front of me and I immediately put on my brakes as hard as I could and it wasn’t enough to stop me.”

He testified that he was operating his car well within the speed limit (40 miles per hour), and there is no evidence to the contrary. Willis, a carpenter and-veteran of World War II (Seabees), apparently as a matter of minimizing the effect of the evidence about his “staggering,” stated:

“I am rated 10 per cent disabled, service-connected on my left shoulder due to a neuritis condition and 10 per cent on my feet.”

He testified that he wore “built-up” shoes to support his feet, and exhibited the shoes to the jury.

“By the end of the day, when I finish my work, by the time I put in eight hours walking around or working I am limping. It’s painful to be on my feet. I will limp after I have been on my feet for around eight to nine hours.”

Appellant first argues that there was not enough evidence to submit the issue of punitive damages to the jury, but we cannot consider this question, since an instruction on punitive damages, was given the jury without objection on the part of appellant. The failure to object to an instruction operates as a waiver of any error that might be committed in giving it. Evins v. St. Louis & S. F. Rd. Co., 104 Ark. 79, 147 S. W. 452.

It is next argued that the amount recovered was. excessive. Four, cases are cited by the parties on this point. In Miller v. Blanton, 213 Ark. 246, 210 S. W. 2d 293, the opinion reflects, that the vehicle driven by appellant Miller was coming over a hill and traveling on Blanton’s half of the highway. Further, from the opinion:

“When persons living nearby reached the scene the abnormal condition of appellant Miller was apparent. One of these testified that Miller’s breath smelled of liquor, and that his tongue seemed to be thick. Another witness noticed the liquor on his breath and said that he staggered when he tried to walk. This witness expressed the opinion that Miller was drunk. Uncertainty about his condition was removed by the testimony of Miller himself. He testified that during a few hours before he left Mena he had consumed ‘four or five highballs’ and that he was ‘half-drunk.’ He admitted that he was on the wrong side of the road when his ear struck appellee’s, automobile, and could give no reason whatever for driving over this hill on his left-hand side of the highway.”

Miller also testified that he had pleaded guilty to a charge of reckless driving, the court pointing out that this offense is defined as, “Any person who drives .any vehicle in such a manner as to indicate either a willful or a wanton disregard for the safety of persons or property. ’ ’ The jury had awarded punitive damages of $500.00 for Mr. Blanton. These judgments were affirmed. It will be at once noted that the testimony as to intoxication is vastly stronger than the evidence in the present case, and that the amount awarded to both appellees only totaled $1,000.00..

In Hall v. Young, 218 Ark. 348, 236 S. W. 2d 431, an award of $100.00 punitive damages was given appel-lee. The court reviewed the testimony relating to punitive damages as follows:

“***Appellant and four other young men were returning to Marvell from a night club near Forrest City, Arkansas. Appellant and two of his companions, had been drinking heavily since early in the afternoon and had stopped at Walnut Corner for the last drink shortly before the collision. It was raining and the highway was only 14 feet wide at the point of the collision. The shoulders of the road had been recently graded and were muddy.
‘•‘We will not attempt to detail the testimony. It is sufficient to say that the jury was warranted in concluding that the collision was the proximate result of appellant's gross and wanton negligence in operating his car on a rainy night over the narrow, slippery road at an excessive speed while intoxicated. Under our holding in. the recent case of Miller v. Blanton, 213, Ark. 246, 210 S. W. 2d 293, 3 A. L. R. 2d 203, the evidence, when viewed in the light most favorable to appellee, was sufficient to sustain the verdict for both compensatory, and punitive damages.”

Again, the evidence of intoxication is considerably greater than in the present instance, and, as stated, the amount awarded was only $100.00. In Vogler v. O'Neal, 226 Ark. 1007, 295 S. W. 2d 629, the opinion reflects the evidence to he as follows:

“We hold, however, that $10,000 allowed by the jury for exemplary damages was excessive and that this amount should be reduced to $5,000. From the testimony presented, the jury had this situation before it: Vogler bought two half-pints of whiskey in Walnut Ridge, drank them before he got to Little Roek, was traveling 60 miles per hour across the Main Street Bridge from North Little Rock to Little Rock; drove his ear from the extreme west of the bridge across to the extreme east of the bridge and struck appellee; was so drunk he didn’t recall any of the details of the accident; was so indifferent to O’Neal’s injuries, that he didn’t bother to see Mr. O’Neal after the accident until the day of the trial. In these circumstances, the jury was warranted in assessing in effect, Vogler’s. conduct as willful, and that he was exhibiting a wanton disregard for other people’s rights. * * *
#' * *
“We can well understand that the jury here was justifiably outraged at the reckless and wanton conduct of this drunken appellant, and that it felt warranted in fixing his penalty high, as a warning to intoxicated operators of automobiles., however we have concluded, as indicated, that such penalty should not be greater than $5,000.”

The final case cited is Holmes v. Hollingsworth, 234, Ark. 347, 352 S. W. 2d 96. Both appellant and appellee cite this, case in support of their respective positions. There, Mrs. Hollingsworth was awarded $2,500.00 compensatory damages and $2,500.00 punitive damages; her child was awarded $1,500.00 compensatory damages and $2,500.00 punitive damages. On appeal, this court said:

“There was ample evidence to take the ease to the jury on the question of punitive damages. It was shown that Mr. Holmes was intoxicated at the time he drove into the rear of the Hollingsworth car; that he got out of his car and went to the Hollingsworth car and insisted that there was nothing wrong with the baby, who at the time was unconscious and barely breathing; and it was shown that Holmes’ conversation and locomotion were noticeably affected.by the intoxicants.”

We reduced the awards of punitive damages to $1,-250.00 for each appellee, ór a total of $2,500.00.

The cases all point out that it is difficult to lay down a rule for testing the excessiveness of a verdict for punitive damages, hut it is evident that in each of the four cases mentioned, there was more evidence of intoxication, and likewise, more evidence of hazardous driving than in the case before us. In other words, there was a much stronger showing of wrong-doing, so as to justify the awards of exemplary or punitive damages. Yet, in two of the four cases, the awards were reduced 50%, and the other two cases only involved awards of $500.00 and $100.00. Here, there is no evidence of violation of the speed limit, no evidence of driving on the wrong side of the street, and no evidence of a slick highway or other hazardous conditions. Nor is the testimony of the officer unequivocal as to appellant’s condition. “Yes, sir, I hind of [our emphasis] felt that he was drunk.” We have reached the conclusion that an award of $2,500.00 for punitive damages would be fair and reasonable.

If, therefore, within seventeen calendar days, the appellees will enter remittitur for punitive damages in excess of $2,500.00, the judgment 'will be affirmed. Otherwise, the judgment will be reversed and the cause remanded.

George Bose Smith, Foglemah, and Byrd, JJ., dissent.

CoNley Byrd, Justice,

dissenting'. I dissent from that portion of the majority opinion that reduces the jury’s $5,000 punitive damage award to $2,500.

The evidence fails to show any indication of prejudice or passion on the part of the jury, particularly in the awarding of. the compensatory damages in the amount of $2,500. Begarding the compensatory damages, the testimony shows that appellee had a pre-existing arthritis of his neck which was aggravated by the hyper-extension flexion injury of his neck, and that he also had a lumbosacral strain or a sprained back. The doctor testified that, although the accident happened on December 4, on December 21 the muscle spasm in appellee’s neck could be seen completely across the room. Appellee lost work from December 4 to February 18, incurred doctor bills of $461.50, and has a continuing drug bill of $18 per month. The $2,500 compensatory judgment for these damages is, most modest, and in fact appellant does not argue that it is excessive.

In addition to the facts set out in the majority opinion, the record shows that appellant did not see appel-lee’s stopped car until he was within 60 feet of the rear thereof, even though he had an unobstructed view in excess of 150 feet before the point of impact. The facts surrounding appellant’s activities on that day, together with.his attitude which was observed by the jury, belie his “one-beer” story. It is true that he admits that he bought one quart of beer from a grocery store in the morning, which he says he drank from some time about 1:30 until around 5 o’clock. While so testifying about the one beer, he states that the reason for his having been out to do some target practicing was. that he had built up a gun which he wanted to test. On cross examination, however, he admitted that he had split his thumb the day before he went out to test the gun, and because of the sore thumb he was unable to try out the gun.

Many other inconsistencies in appellant’s story could be shown from the record, including his failure to respond to pertinent questions put to him op cross examination.

Viewing the record in its total perspective, it is my opinion that there was testimony from which the jury could have found that appellant had been drinking all afternoon immediately preceding the accident; that he was drunk at the time of the accident; that he ran into the rear of appellee’s car on one of the busiest streets in Little Bock; and that there was a lack of candor in his testimony in the court room, particularly with reference to the distance from which he could see the car and the tail lights on the car. In my opinion, a drunk in an automobile on either Markham Street or University Avenue in the vicinity of Park Plaza shopping center on a Saturday afternoon at or near 5 o’clock is. as hazardous as would be a lunatic firing a gun. When his drunken condition is considered along with his lack of candor in testifying, in my opinion the jury was. certainly justified in awarding a verdict of $5,000 for punitive damages.

For these reasons I would affirm the judgment.

George Rose Smith and Fogleman, JJ., join in this dissent.


author: George Rose Smith, Justice.

text:
    Lloyd W. Davis v. State of Arkansas
    5260
    413 S. W. 2d 634
    Opinion delivered April 10, 1967

      Jesse B. Thomas, for appellant.

      Joe Purcell, Attorney General; Don Langston, for appellee.
   George Rose Smith, Justice.

On October 28, 1965, the appellant was convicted of having received the earnings of a prostitute and was sentenced to five years imprisonment. Thereafter he filed in the circuit court an “Appeal for a Writ of Habeas Corpus,” which the trial court correctly treated as a petition for post-conviction relief under our Criminal Procedure Rule No. 1. 240 Ark. 1094. The petition asserted that Davis’s constitutional rights had been denied in that he was induced to enter a plea of guilty without knowledge of his right to counsel. The trial court, after a hearing, denied the petition on the ground that the proof showed that the petitioner’s right to counsel had been fully explained to him before he elected to plead guilty.

There is an abundance of competent proof to support the trial court’s finding of fact. The court’s original docket entry, made when the plea of guilty was accepted, included a notation that the accused waived the services of an attorney. The court reporter who made a record of that proceeding testified that her notes reflected a statement by Davis that he did not want a lawyer. An attorney who happened to be in the courtroom when the plea of guilty was entered gave similar testimony. The only proof to the contrary at the hearing under Rule 1 was Davis’s testimony that the court reporter misunderstood his statement — not that he did not want a lawyer but that he did not have a lawyer. We conclude that the record amply supports the finding of the trial court.

It is also contended that the court erred in admitting in evidence the affidavit of a police officer, who stated that in an interview before the arraignment the prosecuting attorney had informed Davis that the court would appoint an attorney for him if he was unable to employ one. When the affidavit was first mentioned at the hearing under Rule 1 counsel for Davis said: “We will have to object to anything other than direct testimony.” Nothing more was said about the affidavit until after the testimony of three witness.es had been heard. When the affidavit was finally offered in evidence there was no objection or exception by defense counsel.

The original objection was not a continuing one and should, in fairness to the trial court, have been renewed when the incompetent document was actually offered in evidence. See New Empire Ins. Co. v. Taylor, 235 Ark. 758, 362 S. W. 2d 4 (1962). The participants in a post-conviction proceeding under Rule 1 need not be expected to observe the same formal rules that have been developed for jury trials upon the basic issue of guilt or innocence, but orderly procedure nevertheless requires that timely objections be made to the rulings of the trial court. It is clearly not the presiding judge’s responsibility to interpose objections that the attorneys, have not seen fit to make.

On the other hand, we do not imply that the technical precaution of noting exceptions is necessary in hearings, conducted under Rule 1. When a criminal case is first heard the saving of an exception serves a good purpose: The objector thereby indicates that he does, not acquiesce in the court’s adverse ruling and preserves the point for inclusion/in his motion for a new trial. Different considerations come into play when the fairness of the original trial is questioned by a petition under Rule 1. Such a petition is in itself in the nature of a motion for a new trial. The goal is to reach the merits of the petition. If it should be shown that the accused’s constitutional rights were disregarded at the trial on the merits, there is scant justification for a refusal to set the matter right on the technical ground that no exception is noted to the overruling of an objection made at the Rule 1 hearing. See Henry v. Mississippi, 379 U. S. 443 (1965). Lest there he any uncertainty about the matter we are today entering a per curiam order amending Rule 1 to state expressly that the preservation of exceptions is unnecessary in such a proceeding.

Affirmed.


author: Paul Ware, Justice.

text:
    Robert Courtney v. State of Arkansas
    5262
    413 S. W. 2d 643
    Opinion delivered April 10, 1967
    [Rehearing denied May 8, 1967.]

      L. K. Collier, for appellant.

      Joe Puroell, Attorney General; Don Langston, Asst. Atty. General, for appellee.
   Paul Ware, Justice.

This is a Criminal Procedure Rule No. 1 Case, wherein the trial court revoked a suspended sentence given to appellant, Robert Courtney. The issue arose out of the facts, and circumstances presently summarized.

In March of 1956, in Case No. 1337, appellant pleaded guilty to burglary and grand larceny, and was sentenced by the Poinsett County Circuit Court to ten years in the penitentiary. The last six years of the sentence was suspended on good behavior. On March 4, 1963 appellant was charged again, in the same court, with committing burglary and grand larceny to which he pleaded not guilty. On the same day the deputy prosecuting attorney filed a Motion, in the same court, to revoke the six years suspended sentence referred to previously. On March 15, 1963 appellant was tried, convicted and sentenced to twenty one years in the penitentiary, with nine years, suspended. On the same day the trial court revoked the six years suspended sentence in Case No. 1337. Appellant was then placed in the penitentiary, no appeal having been taken.

In December, 1965 appellant filed a Motion (in his own handwriting), under Bule No. 1, to vacate the order revoking the six years suspended séntence. In the Motion appellant alleged his constitutional rights had been violated in that he “was not offered an attorney to represent him, nor was he present at the hearing on March 15, 1963, when the sentence was reinstated”.

The court denied appellant’s Motion, and, on appeal, he relies on the following point:

“The trial Court erred in failing to find that the Defendant was without counsel at the hearing on the petition to revoke the suspended sentence, thereby violating the Defendant’s constitutional rights.”

Under the record before us, we find no reversible error. Appellant admits he was notified on March 4,1963 of the Motion filed to revoke the suspended sentence. It is not disputed that appellant was present in court at the time the suspended sentence was revoked, this being immdiately after he was convicted for burglary and grand larceny. At that time he was represented by his attorney, Burk Dabney. Incident to that occasion Attorney Dabney was. asked if he was present, and he testified, in part, as follows:

A. “Yes, sir. Present at that time.
Q. “And representing the defendant?
A. “Yes, sir.
Q. “And the Hon. John Mosby did see fit, after the hearing, to revoke the suspension and make it consecutive to the time that the Court saw fit to render in its judgment in No. 1941?
A. “That is correct.”

It is. true that Attorney Dabney could not recall all the details of exactly what happened two years before, but he did make this statement:

“Mr. Collier, as far as paying me a fee, as far as asking me to represent him, did not. However, I have never yet left a client struggling there without representation. If there was anything tó be done with any conviction, then I did what I thought was my duty as an attorney to them, him. I did it in Mr. Courtney’s case, althoug’h I do not have a clear recollection of it.”

Dabney was asked by appellant’s attorney about the lapse of time “between the jury’s, verdict and the hearing on the petition”. His answer was: “I don’t remember there being..,. ”, when appellant’s attorney said: “That is. all”.

In view of the above facts and circumstances we are unwilling to hold appellant “was without counsel at the hearing on the petition to revoke the suspended sentence”.

Affirmed.

Foglemah, J. disqualified.


author: .Lyle Brown, Justice.

text:
    Andrew Webb v. O. E. Bishop, Supt. of Arkansas Penitentiary
    5230
    413 S. W. 2d 862
    Opinion delivered April 10, 1967
    [Rehearing denied May 15, 1967.]

      John W. Walker, for appellant.

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

This appeal comes from a hearing on appellant’s petition for a writ of habeas corpus. Appellant was on parole from a three year sentence to the Arkansas. Penitentiary and his parole was revoked. He attacked the revocation procedure as being violative of his rights under the due process and equal protection provisions of the Constitution of the United States. Webb’s petition for discharge and return to parole status was denied and he appeals.

Appellant Webb and his wife resided \ in or near Gould, Arkansas, and he was regularly employed by his parole sponsor. Shortly after midnight on Sunday morm ing, July 17, 1966, the couple and companions were arrested by the chief of police of Gould. Webb was charged with driving while intoxicated, resisting arrest, and altering a driver’s license. It is undisputed that he was thoroughly intoxicated. He was. held in jail from the time of his arrest until the next Monday morning. The arresting officer called Webb’s parole supervisor, reported the incident, and recommended that Webb’s parole be revoked. The supervisor requested that Webb be held until the next day, Monday, July 18th, at which time the supervisor would come to Gould.

When the supervisor arrived Monday morning, Webb was taken from the jail to the justice of the peace between nine and ten o’clock a.m. Charges were read to Webb and he was. asked to plead to the charge of DWI. Webb wanted to argue before he answered, but the record is silent as to the subject of his argument. The justice of the peace apparently indicated that he wanted no argument and requested Webb to plead. Webb responded by pleading guilty to DWI. Thereupon, the parole supervisor took Webb into custody and returned him to the penitentiary. •

It is appellant Webb’s contention that the treatment he was afforded from the time of his arrest to and including the time of I arraignment, was violative of his constitutional rights. These allegations are based on four assertions:' (1) That on Sunday, Webb’s wife informed the chief of police that she wanted to make bond and was advised there would be no .bond; (2) that Webb was deprived of a public trial; (3) that he was not represented by counsel or advised that he had a right to counsel; and (4) that he was “whisked away” to the penitentiary immediately after the arraignment and thereby deprived of the opportunity to appeal.

Although it is recognized that the arraignment on a charge of DWI, and the parole revocation, are separate and distinct, appellant earnestly contends that his revocation was caused by an illegally exacted plea of guilty on the DWI charge. Strength for this argument is founded on the testimony of the parole supervisor. He testified that he had authority to revoke paroles. He further stated that Webb’s revocation was based solely on the plea of guilty to DWI.

The illusionary grandeur of this officer,is quickly dispelled, both in law and in fact. Parole supervisors are creatures of the statutes and their duties are there enumerated. These duties are contained in three different sections of Ark. Stat. Ann., Title 43, Ch. 28 (Repl. 1964), and may be summarized as follows: 1. Arrest and place in jail without warrant any person found to be violating the terms of his parole. 2. Immediately report parole violations to the director of paroles. 3. Make daily reports to the director of paroles. 4. Make such reports as are required concerning persons in their respective districts who are on parole.

These are all the statutory duties assigned the supervisor. If we add the power to revoke parole (simply on the supervisor’s assertion that he has such authority) , it would be violative of the express direction of the statute which vests such authority in the State Penitentiary Board. Ark. Stat. Ann. § 43-2802 (Repl. 1964).

With respect to parole revocation, the Board promulgated its. rules in 1955. We take judicial notice thereof. Seubold v. Fort Smith Special School Dist., 218 Ark. 560, 237 S. W. 2d 884 (1951) ; Palmer v. State, 137 Ark. 160, 208 S. W. 436 (1919). There we find the Board has delegated to only one official the authority to revoke a parole, namely, the director of paroles. Any parolee feeling aggrieved by revocation promulgated by the director is entitled to be heard by the Board at its ensuing meeting at the penal institution.

So much for the legal authority for parole revocation. When we examine all of the testimony of the supervisor — having in mind these statutory provisions — it is readily discernable that he did not in fact revoke appellant Webb’s parole. Laying aside his assertion of authority to revoke, we examine his actual procedure which is explained in his own words:

“I made a revocation of parole July the 17th [actually meaning the 18th], mailed it to the home office in Little Bock that date. They mailed a parole revocation warrant from Little Bock to the State Penitentiary verifying that I had ashed, for the parole revocation.’ ’ [Our italics.]

When the supervisor’s statement is examined in light of his statutory duties, it is not difficult to ascertain the correct events. He attended the JP court; he heard Webb plead guilty to I>WT; such conduct — even drinking intoxicants. — is in violation of the written parole agreement; the supervisor mailed “to the home office in Little Bock” a report of the parole violation, this being the report that is required by statute; he took Webb into custody, as he is authorized to do by statute; he delivered him to the penitentiary, a short distance from Gould, there to be held until the revocation recommendation was approved or disapproved; the director of probations, headquartered in Little Bock, who is the Board’s executive secretary, mailed the order of revocation to the state penitentiary.

The phrases, “I made a revocation of parole,” and “I . . . asked for the parole revocation,” are inconsistent. So, when we tnrn to the statutes, we find the latter statement to be the one that is correct.

Let us assume, without deciding, that some constitutional right of appellant was violated, as alleged, with respect to the arrest, detention, and hearing on the DWT charge. We are still unable to see how such a violation, particularly in a misdemeanor proceeding, could work to inhibit the right of the State to retrieve the admitted parole violator. As to the DWI charge, he had the right of appeal, and Webb and his attorney were reminded by the circuit judge at the habeas corpus hearing that the time for such an appeal had still not expired. As to the parole violation, Webb, at both hearings, admitted his guilt. At the hearing in circuit court, he stated that he went to the twelfth grade in school, he showed a good knowledge of the contents of the parole contract, and he readily admitted that he was drunk and driving. At no time did he offer any proof of physical mistreatment, nor did he express ignorance of the nature of the act of driving while intoxicated.

In the matter of parole revocation, a parolee is not in the same category (as respects constitutional rights) as is a free and unconvicted citizen who is faced with a criminal charge. As was stated in the landmark case of Burns v. United States, 287 U. S. 216, 53 S. Ct. 154 (1932):

“Probation is thus conferred as a privilege and cannot be demanded as a right. It is a matter of favor, not of contract. There is no requirement that it must be granted on a specified showing. The defendant stands convicted; he faces punishment and cannot insist on terms, or strike a bargain-
“The question, then, in the ease of revocation of probation, is not one of formal procedure either, with respect to notice or specification of charges, or a trial npon charges.”

Then, in People of the United States ex rel. Harris v. Ragen, 81 F. Supp. 608 (1949):

“It should he understood at the outset thát a parolee possesses no inherent constitutional right which would entitle him to a hearing before his parole could be revoked. If he seeks to assert such a right, he must look to the Statutes rather than the Federal Constitution. ’ ’

In Harris v. Ragen it is pointed out that the administration of the parole law is vested in the executive, not the judicial, branch of the government, and it is further held that the claim of the parolee to a right to' legal representation at a revocation hearing was without merit.

We hold that when our State Penitentiary Board revokes a parole, that revocation can be set aside in the courts if it be shown that the Board acted arbitrarily or capriciously. Such an attack must be by direct proceeding and not collateral, as was attempted by appellant Webb.

Affirmed.


author: CarletoN Harris, Chief Justice.

text:
    Loren W. Myers v. Vence Majors
    5-4200
    413 S. W. 2d 661
    Opinion delivered April 17, 1967

      Gus Causbie, for appellant.

      Sullivan & Orr, for appellee.
   CarletoN Harris, Chief Justice.

Vence Majors, appellee herein, instituted suit against Loren "W. Myers, appellant herein, alleging that he furnished labor and materials for appellant in the total amount of $901.00, said labor being performed, and materials furnished, in drilling a water well on property belonging to Myers; that this amount remained unpaid. An itemized account was, attached to the complaint, and appellee had previously, within proper time, served a notice of his claim upon appellant, as required by law. Myers answered the complaint with a general denial, hut subsequently amended his answer to allege that appellee, because of faulty workmanship, or some unknown cause, “is attempting to charge against the Defendant an additional 85 feet of 6 /? inch casing and a cost of $170.00 which was used entirely because of the fault of the Plaintiff in the alleged drilling of the well.” It was further asserted that the water in the well was. unsafe for drinking purposes, and that the well was unsatisfactory and unsuitable for domestic use. On trial, the jury returned a verdict for Majors in the sum of $901.00, and from the judgment entered on this verdict, appellant brings this appeal. For reversal, it is asserted that the court erred in permitting appellee to testify that he had entered into a contract to drill a well over the objection of Myers, because no contract had been mentioned in the pleadings, and further, the court erred in refusing to grant an instructed verdict for appellant.

Majors testified that he commenced drilling a well for Myers on February 5, 1965, and completed it on March 21, 1965, and that he considered his part of the contract concluded at that time. He testified that the parties orally agreed on a price of $3.00 per foot for the drilling and $2.00 per foot for the casing, which was to bo paid when the well was completed. Majors stated that appellant had only paid $125.00 of the agreed price, and that $901.00 remained due. Counsel for Myers objected to any testimony about an agreement on the basis., “there is no contract mentioned in the complaint,” but this objection was overruled by the court. This, then, is appellant’s, argument for reversal, i.e., that there is no allegation in the complaint that the claim for a lien was founded on contract, and this allegation (appellant states) was essential to the validity of the complaint. We agree that our cases hold that this type of lien is based upon contract, but we do not agree that appellee’s failure to specifically set out in the complaint that the claim was so based, was fatal. Our statute, Ark. Stat. Ann. § 51-701 (1947), provides that the claimed lien shall be based upon a contract, “express, or implied.” Of course, Majors’ testimony was quite specific and related an express contract, and the complaint itself certainly implied a contract. It would be a most unusual occurrence for an individual to expend time and money digging a well on another’s land (except through mistake, not here involved), unless he had already entered into an agreement. with the owner to do so. Appellee assorted that he had furnished labor and materials for Myers between certain dates, and further alleged the value of the services and materials. We have stated many times that courts regard the substance of pleadings, rather than form, and we have also said that pleadings under the code are to be liberally construed. General Motors Acceptance Corporation v. Purkins, Judge, 204 Ark. 229, 161 S. W. 2d 398. At any rate, after filing his answer, appellant amended same, as set out in Paragraph One of this opinion, by asserting that Majors,’ charges included additional casing, “which was used entirely because of the fault of the plaintiff in the alleged drilling of the well.” This assertion, along with other allegations in the amendment, also heretofore mentioned, constitutes an admission that some type of contract was entered into.

This, of course, is not a case where appellee pursued a completely different theory on trial from that advanced by the allegations in the complaint; certainly appellant was not surprised, and he was not prejudiced by the court’s action in overruling his objection. Nor were any pleadings filed attacking the sufficiency of the complaint.

The jury heard the evidence, including the testimony by appellant, that he did not agree to pay for extra pipe, and further, that he had only agreed to pay Majors, if the latter “drilled a well and got good water.” The jury, trier of the facts, found for appellee.

Finding no reversible error, the judgment is affirmed.

       The total amount originally claimed was $1,026.00, but Myers was given credit on the account for $125.00, which had been paid before the suit was instituted.'


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

text:
    Florence Carolyn Balch Montgomery v. First National Bank of Newport, Adm’r
    5-4175
    414 S. W. 2d 109
    Opinion delivered April 17, 1967
    [Rehearing denied May 22, 1967.]

      Ward & Mooney, for appellant.

      Pickens, Pickens & Boyce, for appellee.
   George Rose Smith, Justice.

This case went off below on demurrer, the chancellor holding that the plaintiff’s complaint showed on its face that her asserted causes of action were barred by laches. This appeal is from the ensuing orders of dismissal.

The complaint names three defendants: The First National Bank of Newport, administrator of the estate of the plaintiff’s father, Lucas G. Balch; American Employers Insurance Company, surety on her father’s bond when he was serving as her guardian; and the Newport Federal Savings & Loan Association.

In substance the complaint asserts: The plaintiff was born on August 15, 1941. In 1951 she became entitled to $12,500 as the proceeds of an insurance policy upon the life of her brother. Her father was appointed by the probate court as her guardian, with the defendant American Employers as the surety on his bond. Balch, as guardian, collected and invested the insurance money. In October of 1959 he obtained an order of the probate court which recited that he had turned his daughter’s property over to her when she attained her majority. The property then consisted of $2,900 in Government bonds, a savings account of $10,000 on deposit with the defendant Newport Federal, and a small bank account that does not appear to be in issue. The plaintiff’s father, in obtaining the probate court order (and, presumably, in obtaining his discharge as guardian), presented what purported to be his daughter’s receipt, acknowledging the delivery of her property.

That receipt, the complaint goes on to say, either was forged or was procured by fraud. None of the plaintiff’s property was ever delivered to her. To the contrary, her father, during the rest of his life, assured her that he held at least $12,500 of her money, which he would account for in due time. It was not until after her father’s death on November 21, 1965, that the plaintiff first learned that he had misappropriated the assets of the guardianship. The complaint sought judgments in appropriate amounts against Balch’s estate, against the surety company, and against the savings and loan association.

Preliminarily we mention a procedural point. Two of the defendants filed answers merely denying the allegations of tlie complaint. The plaintiff then filed a motion for summary judgment, with a supporting affidavit. She now contends that the chancellor erred in permitting the defendants, while the motion forisummary judgment was pending, to amend their pleadings by raising the issue of laches by demurrer.

This argument is without merit. In effect the appellant insists that the following language in the summary judgment statute freezes the state of the pleadings the moment a motion for summary judgment is filed: ‘ ‘ The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ark. Stat. Ann. § 29-211 (Repl. 1962).

We are unwilling to say that the legislature, by referring merely to “the pleadings ... on file,” intended to prohibit the trial court from allowing the pleadings to be amended after a motion for summary judgment is filed. Rather, the summary judgment act must be read in harmony with our Civil Code, now almost a century old, which declares that the court may at any time, “in furtherance of justice,” permit pleadings to be amended. Ark. Stat. Ann. § 27-1160. We are not persuaded that the summary judgment statute was meant to change our policy to one that would in substance be one in furtherance of injustice.

On the merits, the court was in error in sustaining the demurrers of the bank, as administrator of Balch’s estate, and of the insurance company, as surety on the guardian’s bond. In equity, limitations (and laches) may be raised by demurrer if the complaint shows the cause of action to be barred and fails to allege facts sufficient to remove the bar. Mueller v. Light, 92 Ark. 522, 123 S. W. 646, 31 L. R. A. (n.s.) 1013 (1909). But here the complaint, construed liberally on demurrer, asserts two grounds for suspending the running of the statute: First, that Balch concealed his fraud (Kurry v. Frost, 204 Ark. 386, 162 S. W. 2d 48 [1942]), and, secondly, that as a guardian Balch was a fiduciary, so .that limitations did not begin to run until there had been a repudiation of his trust. State ex rel. Atiy. Gen. v. Van Buren School Dist. No. 42, 191 Ark. 1096, 89 S. W. 2d 605 (1936) ; Sconyers v. Sconyers, 141 Ark. 256, 216 S. W. 1045 (1919).

It might be argued that the guardian’s surety, not having been an actual party to the fraud, is entitled to rely upon that section of the Probate Code which permits a probate court to set aside a guardian’s settlement for fraud only if the petition is filed within three years after the guardian’s discharge. Ark. Stat. Ann. § 57-645 (Supp. 1965). That section of the Code, applicable to guardians, parallels a similar section that applies to personal representatives. Section 62-2912. The Probate Code Committee’s comment to the latter section suggests that the section was drafted to extend the power of the probate court — a power that had formerly been narrowly limited with respect to orders approving final settlements. See, e.g., France v. Shockey, 92 Ark. 41, 121 S. W. 1056 (1909). There is-no indication.that the Committee meant to curtail the long-recognized power of the chancery court over such settlements. Quite the opposite, the Committee’s comment implies that the remedial powers of a court of equity are to continue. Hence the extension of the time within which a probate court may reopen a settlement does not aid the surety company in this suit in equity.

Upon the remaining aspect of the case the chancellor correctly sustained the demurrer of the savings and loán association. There is no allegation of any misconduct whatever on the part of that company. The only permissible inference from the meager facts asserted in the complaint is that the association may have allowed Balch to withdraw the deposit. A depository of trust funds, however, incurs no liability in permitting withdrawals by the trustee unless in so doing it knowingly participates in a breach of trust. Restatement,'Trusts (2d), § 324, and Ark. Annotations. The bare allegation that some of the ward’s funds were formerly on deposit with the savings and loan association falls decidedly short of stating a cause of action against the ássociation.

Affirmed in part, reversed in part, and remanded.

Harris, C. J. and Byrd, J., dissent.

Conley Byrd, Justice,

dissenting. I dissent to so much of the majority opinion as holds that the statute of limitations, Ark. Stat. Ann. § 57-645 (Supp. 1965), has not run against the surety on the guardian’s bond. Ark. Stat. Ann. § 57-645 provides as follows:

“Upon the guardian of an estate filing receipts or other evidence satisfactory to the court, showing that he has delivered to the persons, entitled thereto all the property for which he is accountable as guardian, the court shall make an order discharging the guardian and his surety from further liability or accountability with respect to the guardianship. The discharge, so obtained' shall operate as a release from the duties of his office which have not theretofore terminated and shall be final, except that upon a petition being filed within three gears of the entry thereof, it mag be set aside for fraud in the settlement of the accounts.” (Emphasis, supplied.)

Section 57-645, supra, is a portion of Act 140 of 1949, which was adopted subsequent to Amendment 24 to the Constitution of Arkansas.

With respect to the jurisdiction given probate courts, Amendment 24 provides as follows:

“In each county the Judge of the court having jurisdiction in matters of equity shall be judge of the court of probate, and have such exclusive original jurisdiction in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians and persons of unsound mind and their estates, as is now vested in courts of. probate, or may be hereafter prescribed by law...” (Emphasis supplied.)

Pursuant to Amendment 24, the jurisdiction given to the probate courts under § 4 (b) of Act 140 of 1949 (Ark. Stat, Ann. § 62-2004b [Supp. 1965]) is as follows:

“The Probate Court shall have jurisdiction of the administration, settlement and distribution, of estates of decedents, the probate of wills, the persons and estates of minors, persons of unsound mind and their estates, the determination of heirship, adoption, and (concurrent tuith jurisdiction of other courts) jurisdiction to restore lost wills and for the construction of wills when incident to the administration of an estate; and all such other matters as are now or may hereafter be by law provided. The judge of the Probate Court shall try all issues of law and of fact arising in causes or proceedings within the jurisdiction of said court and therein pending. The court shall have the is^ame powers to execute its jurisdiction and to carry out its orders and judgments, including the award of costs as noiv exist in courts of general jurisdiction-, and the same presumptions shall exist as to the validity of its orders and judgments, as of the orders and judgments of courts of general jurisdiction.” (Emphasis supplied.)

Therefore under the majority opinion the probate court’s jurisdiction in matters involving estates of minors is not coextensive with that of courts of other competent jurisdiction. Since to me it is. obvious that the committee that drafted the Probate Code was intending by § 4 (b) to give the probate court jurisdiction coextensive with other courts, I can not read the three-year statute of limitations as. being applicable only to the probate courts, nor interpret the law as intending to give other courts any greater jurisdiction than that given to prohate courts.

Section 4 (b) of the Probate Code appears to have actually given the probate court exclusive jurisdiction of matters involving the settlement and disposition of estates of minors. It is not only subject to that interpretation but the committee comment is as follows:

‘ ‘ The foregoing section follows each enumeration of jurisdictional functions granted in Amendment No. 24 and adds determination of heirship, adoption, AND CONCURRENT JURISDICTION TO CONSTRUE WILLS, AND ESTABLISH LOST WILLS. Adoption is covered by existing statutes and is not embraced in this code. THE DETERMINATION OF HEIRSHIP AND THE RIGHT TO CONSTRUE WILLS AND ESTABLISH LOST WILLS CONCURRENTLY ARE ADDITIONS TO THE GENERAL GRANT OF JURISDICTIONAL CONTROL OVER ESTATES OF DECEDENTS AND PROBATE OF WILLS PURSUANT TO THE AUTHORITY CONTAINED IN AMENDMENT NO. 24 . . . ” (Emphasis supplied.)

However, here the parties, have not briefed the issue and I do not raise it on my own except as it affects the interpretation of the three-year statute of limitations set out in Ark. Stat. Ann. § 57-645.

Thus, it is seen that the legislature was attempting to give the probate court either exclusive jurisdiction of the estates of minors, in accordance with Amendment 24, or at least concurrent jurisdiction coextensive with courts of general jurisdiction, and for purposes of this opinion under either theory the majority opinion disregards, this intent on the part of the legislature in enacting Act 140 and on the part of the people in enacting Amendment 24. It is my view that § 57-645, being the three-year statute of limitations, is. here applicable to the surety, since there is no allegation which would toll the statute as to it. Of course, under the allegation of the promises, made by the father during his lifetime, the statute would he tolled as to him or his personal representative, and because of the confidential relationship between the father and the daughter, outside of his legal status as guardian, the chancery court would certainly have jurisdiction to require an accounting of monies' received in such fiduciary capacity.

To follow the view of the majority will put all bondsmen of guardians and personal representatives in a position of requiring the actual service of notice in each instance, rather than permitting the expeditious procedure used by many lawyers of submitting a waiver of notice and hearing as is suggested in Ark. Stat. Ann. § 62-2902 (Supp. 1965). In fact, the committee comment under § 62-2902 provides:

“The committee feels, that the order of final distribution should completely bar all persons who may have a right to object to any of the proceedings as to any matter which might be the basis of their objections. It does not bar third persons who would have no right to intervene in the proceedings or to object to the order.”

For these reasons, I would affirm as to the guardian’s bondsman.

Harris, C. J., joins in dissent.


text:
    National Cotton Compress & Cotton Warehouse Assn. et al v. Atlantic Mutual Insurance Co. et al
    5-4114 & 5-4178
    413 S. W. 2d 860
    Opinion delivered April 17, 1967

      JohnH. Todd and Owens, McHcmey & McHcmey, for appellant.

      Gaughan & Laney, for appellee.
   George Rose Smith, Justice.

Under the Arkansas Insurance Code an insurance company belonging to a rating organization may apply to the Insurance Commissioner for permission to put into effect a deviation from premium rates fixed by the rating organization. Ark. Stat. Ann. § 66-3122 (Repl. 1966). These two appeals, consolidated here, bring up for review orders of the Commissioner by which the appellees, Atlantic Mutual Insurance Company and Highlands Insurance Company, were permitted to lower their fire insurance rates upon cotton stored in some 500 “igloo-type” warehouses on the premises of the Shumaker Naval Ordinance Depot, near Camden. Under the Code the circuit court reviews the Commissioner’s decision by what amounts to a trial de novo, but in this court the substantial evidence rule is controlling. Section 66-3134.

The appellees, in seeking authority to lower their premiums, based their request upon the exceptionally fire-resistant construction of the igloo warehouses and upon a favorable loss-experience record with respect to similar warehouses in Texas. The application for a deviation was opposed by the appellants, two trade associations that represent the great majority of cotton ware-housemen in Arkansas. The protectants contended that the proposed premium rates would be unjustifiably low and would give an unfair competitive advantage to the igloo-type facilities. The Commissioner approved the requested reduction in rates, finding that “by reason of the unique and unusual type and quality of construction of these warehouse facilities and the fire protection equipment and service available to the area of the storage facilities, the applications should be approved.”

"We lay aside the appellees’ reliance upon the loss-experience in Texas. Apparently it did not extend over a period of five years, as required by the Code. Section 66-3104 (1) (c). We also lay aside the appellants’ contention that the reduced premium rate permits the proprietors. of the igloos to enjoy an unfair competitive advantage in storage rates. The record does not contain sufficient proof to support a finding that the reduction in rates has had or will have the effect of creating an unwarranted disparity in storage charges. As we view the case, the single controlling issue is whether there is substantial evidence to support the circuit court’s conclusion that the Commissioner correctly found the igloos to have advantages in construction and in fire protection sufficient to sustain the requested reduction in premium rates.

We find the evidence abundantly sufficient to support the circuit court’s judgments. These igloos, were originally built for the storage of explosives at the ordnance plant. The buildings are made of reinforced concrete, with thicknesses of six inches for the floors, eight inches for the roofs, and fourteen inches for the walls. The only entrances are steel doors at the front of the buildings. There are small vents for ventilation, hut they can he closed to shut off the oxygen supply for any fire that might get started. There is no electric wiring whatever in the buildings, nor any heating or lighting facilities that might create a fire hazard.

The igloos are spaced about four hundred feet apart. Warehouse employees are in and out of the buildings during the daytime, and each igloo is opened and inspected every night by a watchman. The proprietors have contracts with Camden and East Camden for fire-department protection. Moreover, the only cotton stored in the igloos is what is referred to in the warehouse business as “old cotton” — that is, cotton ginned from 48 to 72 hours prior to its being put in storage. That interval goes far toward eliminating the possibility that a fire caused by a spark in the ginning process may still be smoldering inside the bale when the cotton is warehoused.

We gather from the record that cotton warehouses have heretofore been classified, for rating purposes, either as protected by a sprinkler system or as not so protected. The igloos, now in question are not so protected, but it cannot be doubted that their construction makes them far more fire-resistant than unsprinklered warehouses of conventional design. In fact, the only two unsprinklered cotton warehouses in the State, other than the igloos, are receiving stations of inferior construction which are used for the temporary storage of “new cotton.”

Upon the record as. a whole we agree with the Commissioner’s conclusion that the extent to which these igloo-type buildings deserve a reduced premium rate is essentially a matter of judgment. No fire has yet occurred in any of them. The appellees, declare their willingness to insure cotton in any similar warehouses at the rate proposed by their request for a deviation. It is perhaps somewhat unusual for a group of ratepayers to be in the attitude of protesting insurance rates, on the ground that they are too low, but on the record now before us we are unwilling to say that the Commissioner should have refused to permit the downward deviation.

Affirmed.


author: Paul , Ward, Justice.

text:
    Sulphur Springs Recreational Park, Inc. v. City of Camden, Arkansas et al
    5-4182
    414 S. W. 2d 113
    Opinion delivered April 17, 1967
    [Rehearing denied May 22, 1067.]

      G. E. Snuggs, for appellant.

      Gauglum & Laney, for appellee.
   Paul , Ward, Justice.

This appeal comes from an Order of the Chancery Court refusing to strike portions of the defendant’s answer.

To understand, the issue raised by appellant it is necessary to set out a summary of the facts and pleadings.

Sulphur Springs Recreational Park, Inc. (appellant) was organized for the purpose of constructing, building', maintaining, and operating a public recreational park and center for the use and benefit of citizens of the City of Camden and of Ouachita County. On January 14,1965 appellant filed a complaint in chancery'court'alleging: On; September 22, 1949 it obtained a twenty year lease on certain lands, and has spent $6,000 constructing buildings and improvements thereon; certain persons (named as defendants) have, in divers ways, taken over and appropriated to their own use a large portion of the leased lands — to appellant’s damage in excess of $35,000. The prayer was for recovery of said damages. Appellees (City of Camden and six individuals) filed an answer on January 25, 1965 denying all material allegations in the complaint. They also pleaded forfeiture of the lease and the Statute of Limitations by laches and estoppel.

On February 15th appellant filed a “Motion to strike Portions of Answer” on the ground that the answer contained “affirmative allegations” and was not served on appellant as required by Ark. Stat. Ann. §§ 27-361 and 27-362 (Supp. 1965).

The trial court overruled appellant’s Motion to strike, holding appellees’ answer was filed within the time provided by the statutes. The court also found that the case should be “set for trial on the complaint and the apswer.” Appellant excepted, and filed a notice of appeal to this Court.

The essence of appellant’s point for a reversal is that the trial court erred in refusing “to strike affirmative allegations of appellees ’ answer. ’ ’

We do not, and cannot, reach the merits of the issue attempted to be raised by appellant, because there is no final ‘irder from which an appeal can be taken. ■

In the early case of Cambell Et Al. v. Sneed, 5 Ark. 398 this Court said:

“Consequently, as from the transcript before us, no final adjudication of the circuit court, upon the matters in controversy between the parties, appears to have been made, the case must be regarded as still pending’ for such adjudication in that court; and therefore, as this court has no jurisdiction over it, until such final adjudication is there made, this writ of error must be dismissed. ’ ’

The above rule has been many times affirmed and never overruled by this Court. See also Smith v. Amis, 193 Ark. 874 (p. 878) 103 S. W. 2d 349.

There can be no contention that there was a final order in this case. The Order of the trial court did not dismiss the cause of action, but, on the other, hand, it found that the case should be set for trial on its merits.. Moreover appellant, in its brief concedes that if there had been a trial appellees would have had the “right of cross-examination of appellant’s witnesses.”

The case of Wicker v. Wicker, 223 Ark. 219, 265 S. W. 2d 6, reiterates the same rule. There we made this statement:

“An appeal cannot be taken from an order of the chancery court which is not a final order. ’ ’

It therefore follows that appellant’s appeal must be, and it is hereby, dismissed.


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

text:
    Devaux LeGrand Owens et al v. American Bankers Insurance Company
    5-4176
    413 S. W. 2d 663
    Opinion delivered April 17, 1967.

      Walker, Jackson & .Smith and Oliver L. Adams Jr., for appellant.

      McMillm, Teague, Bramhall & Davis, for appellee.
   Lyle BrowN, Justice.

This suit was. brought by plaintiffs-appellants against American Bankers Insur-anee Company to cancel an insurance contract and obtain refund of premiums. The complaint was grounded in fraud. Complainants did not recover the full amount sought, and they appeal. The Insurance Company cross-appeals, relying principally on thé defense of laches. The Company also contends, that the trial court erred in finding" it had breached the contract.

Dr. Owens one of the two appellants, purchased a policy of insurance from Equitable Investors Life Insurance Company in December 1948. The named insured was Dr. Owens’ granddaughter, Mary Christine Johnston, and he was the beneficiary. The triple features of the policy are significant.

First the policy provided ordinary life coverage in the principal sum of $6,000.00.

Second, the Insurance Company set up a “Mortality Endowment” plan designated as a “Primary Division.” Under this feature the Company would place twenty-sis policy holders in the “Primary Division,” and they would be numbered from one through twenty-six. In this instance Mary Christine Johnston, then two years of age, would be placed in a group of twenty-six persons of corresponding age. In the event of the death of any person in her division, Dr. Owens (as the owner of his granddaug’hter’s policy) would receive a stated amount if at that time Mary’s policy was the lowest numbered policy in her division. If it was not then the lowest numbered policy, she would move up to the next favored position, and so on until she was next in line for payment.

The third and final, feature of the. policy was designated “Secondary Division.” This division worked similarly to the “Primary Division,” except that the names in these units worked in inverse order. In other words, those named in this group would progress downward to twenty-six instead of upward to number one position.

The important point to the investor (in this case Dr. Owens) was the filling of the various divisions, by the Insurance Company. This could be accomplished only by the sale of similar policies to persons in the same age bracket as his granddaughter. American Bankers Insurance Company assumed this contract in June 1950. By 1952, the efforts of Equitable and the succeeding efforts of American Bankers had not filled any of the divisions. Because of lack of public demand American ceased selling this type of contract. Until that time Dr. Owens had annually received “Certificate of Advance in Position” of his granddaughter. The last of these notices was received in July 1953.

The abundant correspondence between Dr. Owens and American Bankers from 1953 until 1962 was introduced at the trial. In 1956 the doctor inquired about the advancements of his granddaughter in the various positions. He specifically asked whether this type policy was then being sold. Bankers’ reply did not answer that question. Again, in 1959 Dr. Owens made further inquiry. For the first time he was advised that the endowment provisions would in time reach the point of no benefit. Bankers’ statement read:

“There is one situation regarding these policies, Dr. Owens that you should know about. This type policy has. not been sold for the past several years and naturally no additional members are being added to the divisions. Eventually, because of death, lapse, maturity by endowment, etc., these divisions will get down to where there will be only one person in them and the mortality endowment feature of the policy will not then be of benefit.”

From 1959 through 1961 the correspondence reflects Dr. Owens ’ complete dissatisfaction with the policy. His first demand was for an equitable settlement. The only offer made was payment of cash surrender value ($144.00 as of 1959). During the succeeding years the doctor made repeated demands for settlement. He received the same answer as in 1959. In 1962 he referred it to Ms attorney. The attorney’s efforts were not successful, and suit was filed in December 1964.

During all these years Dr. Owens timely paid the premiums under protest, apparently in order to prevent forfeiture until such time as he could obtain what he considered an adequate settlement. In. fact, he paid the premium due in 1964 into the registry of the court.

The holding of the chancellor was based on his finding that the insurance companies violated an implied obligation to in good faith continue to write the particular type of policy owned by Dr. Owens. From the testimony of an actuary it was determined that of the annual premium of $176.88, the sum of $78.88 was attributable to the cost of the endowment provisions. The balance of the premium represented the cost of the ordinary life provision. The chancellor awarded Dr. Owens judgment for $1,340.96, being that part of the premium payments attributable to the cost of the endowment provisions. This judgment was conditioned that the holder of the policy agree to a deletion of the endowment provision or forfeit the policy for its cash value. No attorney’s fee was allowed. No interest on the premium payments ordered refunded was awarded.

We agree with the chancellor’s finding that the sale of the policy to Dr. Owens carried an implied obligation on the part of the insurance company to in good faith endeavor to market this type of policy. The filling of the positions under the endowment provisions was. vital to the operation of the plan. When efforts to sell tMs type of policy ceased before the positions were filled, good faith would dictate that such purchasers as. Dr. Owens be forthwith notified. The principle adopted by the chancellor serves, generally, as a proper equitable basis, for disposition of the case. However, we tMnk equity dictates some modifications of his calculations. The reason for each such modification will be explained.

1. Dr. Owens is not entitled to a refund of premiums he paid in 1948, 1949, 1950, and 1951. The policy was received December 21 1948. He carefully studied the policy. Some parts, were not understandable, and he immediately wrote Equitable for information. He also advised that the insurance salesman assured him the granddaughter would have a preferred position in the divisions. From the correspondence it appears that the salesman, under instructions from Equitable, called on Dr. Owens with reference to his request for information. There was no further complaint registered with Equitable until December 1949. Dr. Owens received notice of the second annual premium. Dr. Owens protested that he had been assured by the salesman that there would be a pay-off under the endowment before the second premium came due. Equitable replied, calling the doctor’s attention to the provisions of the policy. The company clearly indicated that the provisions of the policy governed, and not oral representations, made by a salesman.

Equitable’s position in this respect is strengthened by the application which Dr. Owens executed. Among other things, it provided:

“I hereby agree: (1) that any statements, promises, or information made or given by or to the person soliciting or taking this application for policy or by or to any other person, shall not be binding on the Company or in any manner affect its rights unless such statements, promises, or information be reduced to writing and presented in this application to the home office of the Company; ...”

Dr. Owens, a medical doctor, held important offices in the Arkansas Medical Society. He apparently had substantial business interests. In the field of insurance he has served on the board of directors, of two insurance companies.

In view of these facts, along with the fact that the insurance companies were apparently endeavoring during these years to market this special policy, we hold it would be inequitable to order refund of the premiums for these stated years.

2. Dr. Owens is entitled to a refund of that part of all other premiums which were charged because of the endowment provisions. American Bankers absorbed Equitable in 1950. American apparently sold this type of policy through 1952. The actuary testified that none of the endowment divisions had been filled to the maximum since the issuance of Dr. Owens’ policy. He explained this was caused by lack of public demand. The fact that American Bankers had ceased marketing this type of policy was. not made known to Dr. Owens until 1959, notwithstanding his repeated inquiries.

In this situation Dr. Owens was faced with a dilemma. One, he could forfeit the policy and collect the small cash value. Two, he could switch to a standard endowment policy which would likely not be payable during his lifetime. Three, could keep the present policy in force. Four, he could sue for recovery of premiums.

It is urged that Dr. Owens continued to keep the policy in force with full knowledge of the status of the endowment provisions, particularly after 1959. It is true he kept paying the premiums., but such payments were under considerable protest. He wrote seven letters to Bankers over a three-year period and before turning the matter over to his attorney. He emphatically explained his intention to recoup all premium payments and urged a settlement in lieu of litigation. We are impressed by the fact that during those years he was paying a premium for the endowment provisions, which were practically worthless. This condition was due to the fact that so few persons were in the groups with the granddaughter. In fact, the numbers in the respective groups ranged from a low of one to a high of five. To allow Bankers to retain premium monies chargeable to the endowment provisions would constitute unjust enrichment.

With respect to the ordinary life provisions in the policy, the situation is. different. Ordinary life coverage was afforded during these years. It would be inequitable in this case to hold that Bankers he required to refund the charge for that coverage. In situations where an insurance company has wrongfully repudiated a contract, premiums have been ordered refunded as damages. Here, the prime contract is, and always has been, in force.

American Bankers advances the defense of laches. Numerous, cases on the subject are cited. Most of these cases are concerned with the requirement that the policyholder examine the policy and return it within a reasonable time. Otherwise, he i,s deemed to have accepted it and is liable for the premium obligation. The case before us. does not fall in that category. For some seven years American Bankers had not lived up to its implied obligation to sell this type of policy — a fact that was not made known to Dr. Owens until 1959. By that time the doctor had invested over two thousand dollars in premiums. If he surrendered the policy, he would be paid $144.00 surrender value. If he accepted Bankers’ offer to switch to a twenty-year endowment, he would probably not receive any benefit therefrom during his lifetime. Alternatively, he could pay premiums under protest to keep alive his chance to recoup a more substantial sum. The dilemma was. created by American Bankers. Laches is an equitable defense. Before sustaining a defense of laches the court will take a long look at the facts to see if the pleader has in fact done equity.

American Bankers contends. Dr. Owens could have sued for recovery of premiums in 1949 if he was not satisfied with the policy. It is. then asserted he should have so acted in 1953 when he was writing to Bankers. But Bankers overlooks the fact that its letters to Dr. Owens, during this period were reassuring. It was not until 1959 that Bankers, revealed the truth.

But there is yet another, and stronger, reason for denying the defense of laches. To sustain that plea the leader mast show that the delay results in a disadvantage. No such disadvantage was suffered by Bankers.

“Since laches, is an equitable doctrine, its application is controlled by equitable considerations. It cannot be invoked to defeat justice; and it will be applied where, and only where, the enforcement of the right asserted would work injustice.” 30A C. J. S. Equity § 115.

It should be noted that Bankers pleads the statute of limitations.; however, it is not argued as a point for reversal. We therefore express no opinion in this respect.

We are reminded by appellants that this court cannot make a contract for the parties. This is correct; we can only construe and enforce contracts which have been made. The result of our decision will not have the effect of making a contract; we simply find that the endowment provisions of the insurance policy are so nearly worthless as to justify rescission and refund of premiums.

The chancellor made no allowance for an attorneys’ fee. Appellants claim a fee under Ark. Stat. Ann. § 66-3239 (Repl. 1966). This statute, being penal in nature, must be strictly construed. Whether we treat this as a suit to recover premiums or to cancel the policy, the statute does not authorize an attorney’s, fee. See American Republic Life Ins. Co. v. Claybough, 227 Ark. 946, 302 S. W. 2d 545 (1957).

Dr. Owens, is entitled to six per cent simple interest on his recovery, to be calculated from the date he made each payment.

Finally, we dispose of the question of the future status of the policy. The chancellor gave Dr. Owens, the option of keeping the policy at a reduced premium and with the endowment provisions deleted, or of surrendering the policy upon receipt of the cash loan surrender value. We hesitate to approve this, procedure, because it might be interpreted as making a contract between the parties. Since plaintiffs specifically prayed for cancellation and supported this prayer with testimony to the effect that they do not want the policy, we think it better to lay the matter at rest by directing surrender of the policy and payment by Bankers of the cash value.

Remanded with directions that the decree be modified to comport with this, opinion.

Ward, J., would affirm the decree.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I dissent from that part of the decision of this case which permits the recovery of premiums by Dr. Owens. The basis of my disagreement with the majority is the unreasonable and unexplained delay on his part in asserting his rights. He had full knowledge of all the facts and circumstances giving rise to his cause of action at the time of his receipt of appellee’s letter of February 27, 1959. This is further evidenced by his own letter of March 4, 1959, in which he demanded a cash settlement and advised of his intention to try to collect from appellee. On March 20, 1959, Owens advised appellee that if he did not have a reasonable settlement offer in fifteen days, he would be forced to turn the matter over to his attorney. Yet, no suit was filed until December 18, 1964, well over five years later. During this time he continued to pay premiums annually, usually complaining about the situation at the time of each remittance. He periodically threatened suit. During this time appellee did nothing whatsoever to discourage appellant from bringing suit.

Whatever label may have been applied to the cause of action, it is for the rescission of a contract. Appellee specifically pleaded the statute of limitations and laches. I agree with the majority that the possible bar of the statute of limitations is no longer in issue, not having been listed as a point on which appellee relies or argued in its brief. Appellee does however, urge the defense of laches here. Regardless of the label given this defense, it relates to the staleness of appellants’ demand on which appellants, not appellee, sought equitable relief. In equity a stale demand is a form of laches. Sullivant v. Sullivant, 239 Ark. 953, 396 S. W. 2d 279.

This court considered the effect of lapse of time in Davis v. Tarwater, 15 Ark. 286, wherein rescission of a contract for the sale of lands was sought more than ten years after the date of the contract and more than five years after the discovery of the fraud alleged.'In holding that a court of equity would refuse relief because of lapse of time where no excuse or explanation was offered for the delay, the court said that where one was guilty of negligence and slept on his rights, the best interests of society required that causes of action should not be deferred an unreasonable time. This court said that the objection that the claim is stale can be made at the hearing, or that the court might deny relief on its own motion when such a case is disclosed. It then said:

“Lapse of time is not founded upon statutory provisions, though the statute may be referred to at fixing a reasonable time for its operation. The rule is applied by Courts on a broad view of all the circumstances of the case. And even in case where the demand is not barred by positive limitation, Courts of Equity refuse to interfere after a considerable lapse of time, from considerations of public policy and from the difficulty of doing entire justice. Nothing can call a Court of chancery into activity, but conscience, good faith, and reasonable diligence, and where these are wanting, the Court is passive and does nothing.”

The principle was recognized and applied in Jones v. Gregg, 226 Ark. 595, 293 S. W. 2d 545, where this court held that an action to rescind a contract because of the failure of a seller for a period a little over two years to obtain a release of a vendor’s lien which encumbered certain property sold to a buyer not to be timely. The court said:

“While the law gave them the right to rescind the agreement upon the failure of the appellants to comply with their part of the contract, this was only one of their remedies, and they were not required to exercise it. The law does require, however, that in order to rescind a contract, the rescission itself must be made within a reasonable time after the facts, giving rise to the right of rescission arise or become known; and, unless such right to rescission is exercised within reasonable time after the discovery of the facts justifying the rescission, the party otherwise entitled to rescind will be deemed to have waived this right. ’ ’

Later, in Koolvent Aluminum Awning Co. of Arkansas v. Johnson, 231 Ark. 517, 331 S. W. 2d 265, the failure of a service station operator to assert a right to rescind for more than one year after work was completed on the installation of a canopy in front of his station was held to be an unreasonable delay amounting to a waiver of his right to rescind. It appeared that the operator complained that the materials used were not fireproof and of inferior grade, and that the canopy leaked, while the work progressed. There the operator had told workmen of the contractor to “tear it down and put it in the junkpile. ’ ’ With respect to this contention of the operator, this, court said:

“ ***If this statement could be considered as notice to the seller of his election to rescind it must fail for the want of adhering to it since he permitted appellant to perform work on the contract after the statement without protest. The record reveals no affirmative act toward rescission was done by appellee until his answer was filed to the lawsuit which was more than a year after the work was completed. We hold that failure to assert the right to rescind for this period was an unreasonable delay which amounted to a waiver of the right to rescind, hence, the trial court was in error in decreeing rescission. ’ ’

There are other cases wherein the failure to act promptly in seeking relief from contracts, that have application here, even though the matter of rescission may not have been the actual issue involved. Among them are:

Grayson-McLeod Lumber Co. v. Slack-Kress Tie and Stave Co., 102 Ark. 79, 143 S. W. 581, Avhere it was said that it was the duty of one who discovered an apparent breach of a contract to insist upon a forfeiture at once if he intended to do so and that permitting the continued performance of the contract Avaived the breach.

New York Life Ins. Co. v. Adams, 151 Ark. 123, 235 S. W. 412, Wherein it was held that an insurance company like a policyholder, waives the right to rescind a contract of insurance by failure to take advantage thereof Avithin a reasonable time after discovery of the facts constituting grounds for rescission.

In Newsum Auto Tire Vulcanizing Co. v. Shoemaker, 173 Ark. 872, 294 S. W. 11, the failure to seek to rescind a release obtained by false representations and fraud for a period of more than two years after discovering the circumstances was held to be such an unnecessary delay as. to constitute acquiescence and con-donation of the fraud and a waiver of the right to rescind.

This is the basis of appellee’s contention Avith reference to the defense of laches and I cannot agree that cases cited in its brief are inapplicable simply because they relate to failure of a policyholder to act promptly to reject an insurance policy not conforming to the agreement of the parties. The principle is the same and appellee appropriately argued this, in my opinion. Remmel v. Griffin, 81 Ark. 269, 99 S. W. 70, cited by appellee, is also cited by this court as authority for the holding in New York Life Ins. Co. v. Adams, 151 Ark. 123, 235 S. W. 412. Retention of a policy for more than three months was held to be such an unreasonable delay as would constitute a bar as a matter of laAv in Carrigan v. Nichols, 148 Ark. 336, 230 S. W. 9. Delay of four months in bringing suit after obtaining actual knowledge of the contents of the policy was held to bar rescission in Smith v. Smith, 86 Ark. 284, 110 S. W. 1038. Delay of one year in repudiating a lease after lessee learned that he was induced to enter into it by fraudulent representations was held to he so unreasonable as to constitute waiver in La Vasque v. Beeson, 164 Ark. 95, 261 S. W. 49. [New York Life Ins. Co. v. Adams, supra, was cited as authority.] These cases were appropriately cited by appellee.

I would reverse on cross-appeal.