text:
    John E. MAHAFFEY & ASSOCIATES, INC. v. Ralph BROPHY et al
    5-5430
    462 S. W. 2d 226
    Opinion delivered January 25, 1971

      Louis D. Jones and Joseph W. Segers, Jr., for appellant.

      Charles W. Atkinson, for appellees.
   Frank Holt, Justice.

This appeal results from the chancellor’s sustaining a demurrer to the appellant’s complaint which seeks to impress a mechanics’ lien upon appellees’ property. The appellant is engaged in the general practice of civil engineering. By a contract with the appellees, the appellant performed certain engineering and survey services in connection with appel-lees’ real estate as a mobile home park. The alleged improvement services performed by the appellant consisted of establishing the exact boundaries of the property; marking the boundaries with recognized surveying monuments; establishing the elevation of the land above sea level and placing permanent bench mark monuments upon the property; locating and marking the streets, water lines, sewer lines and fire hydrants; placing monuments upon the land for the development of structures to be built by the owners; excavating upon the property for the purpose of completing the engineering work; locating and marking existing utilities; preparing a complete plan and plat of appellees’ lands; and otherwise discharging all the engineering work necessary for the development of the property.

The chancellor held, in sustaining a demurrer to these allegations, that appellant’s engineering work is neither permanent nor in the nature of construction; that it does not constitute improvements to or upon ap-pellees’ land; and that by Act 112 of 1969 [amendatory to Ark. Stat. Ann. § 51-601 (1947)] the legislature did not intend to broaden the lien law to include professional engineers performing these services for land development.

On appeal two points are asserted for reversal which appellant succinctly states in its contention: The crux of the issue is the construction of Act 112 of 1969 and that by its terms work of the professional engineer in land development is an improvement to or upon the land, bringing the engineer within Act 112 of 1969. We must, however, agree with the chancellor’s interpretation of the Act and refusal of the asserted lien. Obviously, Act 112 of 1969 was enacted by the legislature in response to our decision in Lambert v. Newman, 245 Ark. 125, 431 S. W. 2d 480 (1968), where we held that a contractor was not entitled to a lien upon property for work performed in clearing brush and trees from land which. was thereafter sold for the construction of residences. In construing the then existing lien law, § 51-601, we observed that the legislature did not intend for it to include “improvement to land” by the use of the language “improvement upon land.” Promptly thereafter Act 112 of 1969 was enacted to extend the lien law for any “improvement to or upon land.”

It is well established that a materialmen’s lien statute is in derogation of the common law and, therefore, the statute must receive a strict construction. Dix v. Olds, 242 Ark. 850, 415 S. W. 2d 567 (1967). However, the procedure for perfecting a lien is liberally construed whenever it is determined that the property is subject to a lien. Lambert v. Newman, supra. Cases from other jurisdictions are cited by appellant. Because of dissimilarity in either the statutes or the facts of those cases, or both, we consider them generally of no aid in the case at bar.

It is significant that the legislature, in the preamble to this amendatory act, included this language:

“Whereas, recent court decisions have disclosed that certain contractors performing clearing, excavating, or ditching services in the process of constructing home sites were not heretofore granted the same lien as mechanics, materialmen, builders, and laborers; and
Whereas, the contractors performing these vital and indispensable services should receive the same protection as others herein named; * #

Applying the rule of strict construction, we must hold that the legislature did not intend by this Act to extend the lien law for the benefit of the appellant, even though it provided a lien for improvements “to” as well as “upon” the land.

Should we agree with appellant that it is included in that part of the statute which provides for “or other person” to have lien rights, we nonetheless could not agree that the type of services and improvements performed by it are encompassed by the Act. In this respect the chancellor aptly stated:

“* * * permanence and construction, either, and usually both, are inherent in the nature of an ‘improvement’ whether it be to or upon land. The determination of elevations by engineering methods, locating of underground utility lines, even by digging, the staking of lot and building corners, and graphic portrayal of these things on a plat, are, by item or in gross, neither permanent nor in the nature of construction. They may all be, and doubtless are, preliminary to, and in aid of eventual construction. But they are not in themselves construction, which, in fact, may never occur. Neither are they permanent, for lot lines arid building locations may be changed. And the physical locating of utility lines, though it requires digging, is no improvement in itself.

The extent of the engineering services performed in the case at bar is basically planning and not construction within the meaning of this Act. As we said in Clark v. General Electric Co., 243 Ark. 399, 420 S. W. 2d 830 (1967), it was "at most a preparatory operation.” Any change to further broaden the terms of this statute addresses itself to the legislature.

The chancellor’s ruling is in all respects affirmed.


source: Caselaw Access Project

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

license: Public Domain

text:
    Dewey Ray MURRAY v. STATE of Arkansas
    5487
    462 S. W. 2d 438
    Opinion delivered February 1, 1971
    [Rehearing denied February 15, 1971.]

      Knox Kinney, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Dewey Ray Murray, appellant herein, was convicted of murder in the first degree, and his punishment fixed at death by electrocution in accordance with the jury’s verdict and Ark. Stat. Ann. § 41-2227 (Repl. 1964). From the judgment so rendered, appellant brings this appeal. For reversal, four points are asserted, as follows:

“1. The lower court erred in its refusal to instruct the jury on second degree murder and the other degrees of homicide.
II. The lower court erred in refusing to permit Counsel for appellant to argue that appellant was not guilty of death.
III. The lower court erred in refusing to instruct the jury upon circumstantial evidence.
IV. The lower court erred in allowing the introduction of inflammatory photographs of the deceased when the cause of death was admitted.”

The evidence reflects that Murray, Danny Wayne McKay, Franklin Bosnick, and Franklin Bosnick, Jr., were involved in a robbery of Gatteys’ Grocery Store on Highway 79 south of Hughes, Arkansas, when Jessie J. Morgan, a police officer, was killed. Testimony by Norris Hodge, a funeral director, was that Morgan’s death was occasioned by multiple gun shot wounds — three or four .30 caliber wounds and six .22 caliber wounds.

Mrs. Joyce Gatteys, who with her husband, operates the grocery referred to, testified that in the late afternoon or early night of December 31, 1968, David (Franklin Jr.) Bosnick entered the store and fired a pistol (22 caliber) at her husband, the bullet hitting some candy in the back of the store. Two other men, later identified as Dewey Ray Murray and Danny Wayne McKay, then came in with “long barreled guns”. James Edwards, the “sweep-up” boy, was told to lock the door and Bosnick instructed the Gatteys and Edwards to go to the back. Jimmy Vance, a farm worker came to the door (which was open) from the outside, but Mrs. Gatteys signaled to him and he left. According to the witness, Bosnick told her to get a paper bag and put the money from the cash register in it: he also directed that she put in the change. Murray also demanded money and Mrs. Gatteys got some silver halves and old coins; appellant also took the sweep-up boy’s wallet and her husband’s wallet, threatening her husband, and taping his hands. About that time, there was a knock on the door and a voice clearly said “Mrs. Gatteys, this is the law”. Bosnick declared “Well, I’ll take care of that S. B.’J, and directed Mrs. Gatteys to open the door. The witness stated that when she complied, Bosnick shot over her, and went out onto the porch, firing several shots with his pistol. Returning, he said “I just killed one son-of-a-b...., and I may kill another one.” Murray stated “Well, I guess I better go out here and finish this job off out here”, and went out the door, with a long barreled gun. Mrs. Gatteys heard more shots fired, and the intruders ran out of the room.

James Edwards corroborated Mrs. Gatteys’ testimony up to the time of the shooting. He said that when Bosnick Jr. came back in after shooting the pistol, he knelt on the floor trying to eject the spent cartridges and said, “I just killed one man, let me see if I got enough to kill another.” Edwards said that at this time appellant commented, “Well, I’ll go out and finish this job,” and that he had a 30-30 rifle as he went out the door.

Jimmy Vance told how the store door was slammed in his face by Edwards and stated that he became suspicious and notified his boss by radio to call the law. J. Wv Helms, farm manager for Shannon Brothers Enterprises, the farm oh which Gatteys Grocery is located, saw officer Morgan walk around toward the residential part of the building and heard pistol shots. Then someone, bégan firing at him. After more officers arrived, he saw Morgan lying dead, left of the steps leading to the living quarters. Trooper Bob Self testified that he and Trooper Hadaway, riding together, received the call advising that an armed robbery had taken place at Gatteys’ Grocery Store. The( officers started in that direction, and upon arriving, observed a 1959 Chevrolet convertible, With three white men in it. Self stated that as they pulled in front of the car, one of the subjects had a high powered rifle aimed across the back of the front seat at them (it developed that this man was Murray); they got out of the car and took four men into custody, one of the men lying on the back floor board of the convertible. W. D. Davidson of the Arkansas State Police Criminal Investigation Department arrived while Morgan’s body was still in the yard. He talked with each of the suspects at that time and appellant’s immediate statement was that he fired neither the pistol nor the rifle. Other supporting testimony was offered by the state, but it is not necessary to detail this evidence in determining this appeal.

Appellant, 25 year of age, testified that he was a high school graduate and had been honorably discharged from military service in January 1966; that he was employed by Park Woods Products in Pineville, Louisiana. He said that Franklin Bosnick, Sr. talked the other three into participating in the robbery. His testimony is not substantially different from that of Mrs. Gatteys until Morgan knocked on the door. Appellant stated that he first thought it might be Franklin Bosnick. He then heard a pistol firing, went outside, and David Bosnick handed the pistol to him and took the 30-30 rifle from him; Bosnick fired the 30-30 until it was empty, and gave it back. Murray stated that he did not fire the rifle at any time.

With reference to the first point for reversal, appellant contends that the trial court should have instructed the jury on second degree murder pursuant to the provisions of Ark. Stat. Ann. § 43-2152 (Repl. 1964). The state, citing Ark. Stat. Ann. § 43-1024 (Repl. 1964) contends that the information was amended to charge a “felony murder” and that under Clark v. State, 160 Ark. 717, 276 S. W. 849 (1925), and other similar decisions, the court was not required to instruct on any degree except first degree murder; that appellant was guilty of that offense, or nothing.

The information filed by the prosecuting attorney, after setting forth where and when the offense was committed, accused Murray and the others of the crime of murder in the first degree in that they “unlawfully, wil-fully, and feloniously after premeditation and deliberation and of their malice aforethought did assault, kill, and murder Jessie J. Morgan by shooting him with a firearm or firearms”.

In instructing the jury, the court read the information and then added “and the information has been amended to allege that the killing occurred ‘while the defendants were perpetrating or attempting to perpetrate the crime of robbery, against the peace and dignity of the State of Arkansas.’ ” The record, (amending the original transcript) clearly reflects that this was done in chambers before the jury was ever selected for the trial of the case. The attorney for appellant stated to the court that he desired to object “to the Prosecuting Attorney verbally charging him during the course of the trial with first degree murder in the commission of a robbery. Now, when we get to the final argument, he can argue that he’s guilty as alleged in the Information, under the law as charged by the Court, but to continually and repeatedly, in opening statements and the course of the trial, charge him verbally with a charge of murder other than as specified by the Information would be a grave error, and defendant requests the Court to so instruct”. The prosecuting attorney stated “I think the fact, if the proof shows, the law says what murder in the first degree shall constitute, but if he’s raising that, I would like to amend by ‘comma perpetrated in a robbery’ ”. Whereupon the court said “The Court will permit the amendment to the Information to charge this defendant with committing the crime of murder while perpetrating or attempting to perpetrate the crime of robbery”. Objections and exceptions were taken to the court’s order.

Ark. Stat. Ann. § 43-1024, being Initiated Measure 1936, No. 3, § 24, provides as follows:

“The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged. All amendments and bills of particulars shall be noted of record.”

What is “the record”? In Silas v. State, 232 Ark. 248, 337 S. W. 2d 644, quotting an earlier case, we said:

“The record proper includes the pleadings, any exhibits thereto, statement showing service of summons, any material order of court preceding judgment, the judgment itself, motion for new trial, the order overruling same, and the grant of appeal.”

It was not necessary that the Information itself be amended, but only necessary that an order of the court be made and it is sufficient if the court simply dictates the order to the court reporter. In Lane, Smith & Barg v. State, 217 Ark. 114, 229 S. W. 2d 43, a situation arose that we consider analogous. The opinion reflects the following:

“Appellants say that their motion to quash the indictments should have been sustained because the Court’s minutes or records did not affirmatively show that the indictments were returned in open Court in the presence of the Grand Jury, nor was it shown that twelve of the jurors voted to indict; and, secondly, there was no legal evidence presented to. the Grand Jury upon which it could base true bills.
The indictment was indorsed. ‘Returned into open Court, in the presence of all the Grand Jury, by the foreman thereof, and filed this 17 th day of October, 1949’. In passing on the motion Judge Harrison dictated a statement to the Court Reporter, the substance of which might well have been taken from the docket.”

The statement of the judge referred to, was simply that the Grand Jury had gone into open court and reported the two indictments. This court held that the trial court correctly denied the motion to quash.

It will be observed that the amendment did not change the nature of the crime charged nor the degree of the offense, and it was accordingly entirely permissible for the amendment to be made. See Lee v. State, 229 Ark. 354, 315 S. W. 2d 916. Of course, there was no element of surprise since appellant was familar with the nature of the crime with which he was charged, two of the other defendants having already been tried; nor had he ever, at any time, requested a Bill of Particulars. It follows that there is no merit in this contention.

Nor do we find merit in appellant’s second point for reversal. Counsel for Murray in chambers stated to the court that he planned to argue to the jury that the defendant was “not guilty of death”. The court stated: “Counsel for defendant proposes to argue to the jury that if they believe that the defendant did not fire a shot at the deceased, ‘then they may find him not guilty of the death penalty.’ The court will not permit counsel for the defendant to argue in that language, because it is contrary to the law, as the Court understands it. The Court will permit Counsel to argue, if he wants to, that if they find that he did not fire a fatal shot at the deceased, that, although under the law he would be considered guilty, at the same time if he did not fire a shot, it should have some bearing on the punishment that he should receive, and anything that counsel wants to say in that respect he can, but not using the words ‘not guilty of any death penalty’ because the defendant is not found guilty of a penalty.” Further, “The court is not saying, and I thought I made it plain in my opening statement, that counsel for the defendant may argue, may put forth any argument that he desires that the defendant should not receive the death penalty, but the Court is saying that he should not use the words ‘He is not guilty of the death penalty.’ Now, anything you want to argue, you may, but you use the words and terms ‘you may find him not guilty of the death penalty.’ The Court says that is improper argument.”

The court was, of course, correct. It was within the province of the jury to give life imprisonment if they so desired, but the statute provides that the punishment for the offense charged, if found guilty, is either death by electrocution or life imprisonment.

There was no error in refusing to instruct the jury upon circumstantial evidence. In a “felony murder” charge, the necessary elements for conviction are the perpetration or attempt to perpetrate a felony, a killing occurring during the course of the crime. Of course, the direct evidence from the state’s witnesses, and even of appellant himself, established that Morgan was killed during the perpetration of the robbery. In other words, it was not necessary to show that Murray actually fired the shots that killed Morgan. For that matter, we have held that the refusal to give instructions on circumstantial evidence even where the case depends wholly upon such evidence, is not error if the court has already fully and correctly instructed the jury upon the credibility of witnesses, the weight of the evidence, the presumption of innocence, and reasonable doubt. Ridenour v. State, 184 Ark. 475, 43 S. W. 2d 60. There instructions were given in the instant case without objection.

Finally, it is asserted that the court erred in allowing introduction of photographs of the deceased, the cause of death being admitted. We have held numerous times that the proper admission of photographs directs itself to the discretion of the trial court, and as recently as June 1, 1970, we held in Franklin Bosnick v. State, 248 Ark., 454 S. W. 2d 311, where these same photographs were offered into evidence, that there had been no abuse of discretion by the court in permitting them to be introduced. Likewise, under the facts in this case, we find no abuse of discretion.

Affirmed.

Byrd and Holt, JJ., dissent.

Conley Byrd, Justice,

dissenting. In the performance of my duties, I find no pleasure in reversing a criminal case when the accused’s conduct is akin to that of a vicious beast, even though the law requires a new trial. Believing, however, as between an individual and society, that the law should be fairly and impartially applied without respect to personalities, I undertake, without pleasure, to show my disagreement with that portion of the majority view holding that the failure to instruct on second degree murder was not error.

One of the statutes here involved is Ark. Stat. Ann. § 43-1024 (Repl. 1964) which provides:

“Amendment of indictment. — The prosecuting attorney or other attorney representing the State, with leave of the court, may amend an indictment, as to matters of form, or may file a bill of particulars. But no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged. All amendments and bills of particulars shall be noted of record.”

It will be noted that the statute provides that, “no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged.” In the first Bosnick case, Bosnick v. State, 248 Ark. 846, 454 S. W. 2d 311, we pointed out that the information here involved charged that “class of murder” known as “premeditated murder” and that it was error to fail to instruct the jury on second degree murder.

The distinction between “premeditated murder” and “felony murder” came into being through interpretations of this court. In the Revised Statutes of 1838, approved by the legislature March 10, 1838, “offenses against the persons of individuals” was divided into MURDER and MANSLAUGHTER. Murder was defined as (Revised Statutes, Chap. XLIV, Div. Ill, Art. I, Sec. I) “. . . the unlawful killing of a human being, in the peace of the State, with malice aforethought, either expressed or implied.” The only penalty was death (Chap. XLIV, Div. Ill, Art. I, Sec. 7.). Manslaughter was defined (Chap. XLIV, Div. Ill, Art. II, Sec. 1) as “. . . the unlawful killing of a human being, without malice express or implied, and without deliberation.” The penalty was a fine of not less than $1,000 nor more than $10,000 and imprisonment not exceeding seven years. Subsequently by an act approved December 17, 1888, the legislature provided:

“An Act modifying the Penal Code, to correspond with the establishment of a Penitentiary.
Be it enacted by the General Assembly of the State of Arkansas, that all murder which shall be perpetrated by means of poison or by lying in wait, or by any other means of wilfull, deliberate, malicious, and premediated killing, or which shall be committed in the perpetration of, or in the attempt to perpetrate, arson, rape, robbery, burglary, or larceny, shall be deemed murder in the first degree, and all other murder shall be deemed murder in the second degree; and the jury shall in all cases of murder, on conviction of the accused, find by their verdict, whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall impannel and examine testimony, and the degree of crime shall be found by such jury.
SEC. 2. And be it further enacted, That every person convicted of murder in the first degree, or as accessory before the fact to such murder, shall suffer death by hanging by the neck; and every person convicted of murder in the second degree, shall be sentenced to undergo imprisonment in the public jail and penitentiary house, for a period not less than five years nor more than twenty-one years.
SEC. 3. Be it further enacted, That whoever shall be convicted of the crime of voluntary manslaughter, shall undergo imprisonment in said jail and penitentiary house, for a period of not less than two nor more than seven years; and every person who shall be convicted of involuntary manslaughter, shall be imprisoned in said jail and penitentiary house, for a period not exceeding twelve months. . .”

Over the years the clauses in the first section of the act became codified as separate statutes. That section now appears in Arkansas Statutes Annotated as follows:

“Ark. Stat. § 41-2205. MURDER IN FIRST DECREE DEFINED All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first deeree. [Act Dec. 17, 1858, § l(lst clause), p. 121; C. & M. Dig., § 2343; Pope’s Dig., § 2969.]
“Ark. Stat. § 41-2206. MURDER IN SECOND DEGREE. All other murder shall be deemed murder in the second degree. [Act Dec. 17, 1838, § 1 (2nd clause), p. 121; C. 8c M. Dig., § 2344; Pope’s Dig., § 2970.]
“Ark. Stat. § 43-2152. MURDER CASES — DEGREE OF OFFENSE FOUND BY JURY. The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall impanel a jury and examine testimony and the degree of crime shall be found by such jury. [Act Dec. 17, 1838, § 1 (3rd clause), p. 121; C. & M. Dig., § 3205; Pope’s Dig., § 4041.]”

In Clark v. State, 169 Ark. 717, 276 S. W. 849 (1925), on a not guilty plea, we construed the statute requiring the jury to find whether the offense constituted first or second degree murder to be directory only. We held that where the evidence showed that die murder occurred while the defendant was perpetrating a felony, trial courts could properly instruct the juries to find first degree murder or nothing.

However, this court has consistently made a different construction of the act when trial for murder is had on a guilty plea. Upon a plea of guilty to a first degree murder charge, it makes no difference whether the charge is “felony murder” or “premeditated murder” because in each instance, our cases hold, raising the issue on this court’s own motion, that the trial court must submit the issue of the defendant’s guilt to the jury upon both first degree and second degree murder. See Wells v. State, 193 Ark. 1092, 104 S. W. 2d 451 (1937), and Walton v. State, 232 Ark. 86, 334 S. W. 2d 657 (1960).

The impractical and inconsistent results arising from our application of the 1838 Act, supra, are readily demonstrated by this record. Here, although the appellant entered a plea of not guilty, he took the witness stand and admitted his involvement in the conspiracy to rob, the killing of Officer Morgan in his presence and that the 30-30 rifle in his possession when he went out of and came back into the house was used to put 30-30 bullets into Officer Morgan’s body. I submit that a plea of guilty would not have admitted more. Are we not then putting form before substance in the application of the statute?

Notwithstanding the fact that the majority rely upon the amendment of the information to charge “felony murder” to get around the statutory requirement that the jury be required to find by their verdict whether appellant be guilty of murder in the first degree or second degree, the majority opinion states:

“It will be observed that the amendment did not change the nature of the crime charged nor the degree of the offense...”

The latter statement was made because of Ark. Stat. Ann. § 43-1024, supra, providing that “no indictment shall be amended, nor bill of particulars filed, so as to change the nature of the crime charged or the degree of the crime charged.”

As I view the record here, appellant without the amendment would have been entitled to the instruction on second degree murder. We so held on identical facts in Bosnick v. State, Supra, and in Bosnick v. State, 248 Ark. 1289, 455 S. W. 2d 688. I cannot be intellectually honest with myself and agree that an amendment to the information and bill of particulars which reriioves the accused’s right to a second degree murder instruction and which permits the trial court to tell the jury to either find him guilty of first degree or turn him loose does not change the nature and degree of the crime involved,

Finally, the majority says that the change or amendment of the information complied with that part of Ark. Stat. Ann. § 43-1024 which requires that: “All amendments and bills of particulars shall be noted of record.” The amendment here made was a verbal motion by the prosecuting attorney and a verbal statement by the trial judge that it was granted. The only record, if it be called a record, was that which the court reporter took down in short hand. If this constitutes a record within the meaning of the statute, I am at a loss to understand why the people, in enacting Ark. Stat. Ann. § 43-1024, bothered to write the above quoted requirement into the statute because it is pure surplusage.

Furthermore, our law in the graver affairs of life, particularly with respect to last wills and testaments, require that any and all amendments thereto be in writing. As I read our criminal laws they require indictments, informations and bills of particulars to be in writing. Should an amendment to an information be any less formal? When appellant’s mother or my grandchildren ask me why an amendment to an instrument seeking to dispose of a man’s property has to be executed with greater formality than an amendment to an indictment seeking to take his life, I will have to say, “I do not know,” and will further have to admit that the greater formality placed on property over life appears to be a blemish upon that justice which the ordinary citizen expects of the law.

For these reasons I would reverse and remand for a new trial because of the trial court’s failure to instruct on second degree murder in accordance with the 1838 Act.

       Actually this Section provides that when one receives the death penalty, it shall be carried out by hanging. Ark. Stat. Ann. § 43-2611 (1964 Repl.) changed the law to provide for electrocution.

       Mrs. Gatteys saw all the defendants within a few minutes after they had been taken into custody by the officers, and identified them as the robbers at that time.

       Edwards slammed the door closed as Vance started to enter.

       The long barreled gun was a 30-30 rifle.

         Baker v. Allen, 204 Ark. 818, 164 S. W. 2d 1004.

       This offense is defined in Ark. Stat. Ann. § 41-2205, (Repl. 1964). Under the provisions of the statute, all felonies are not included, only arson, rape, robbery, burglary, and larceny.


author: George Rose Smith, Justice.

text:
    K. & S. INTERNATIONAL, INC. v. Guss HOWARD and Donald Howard
    5-5445
    462 S. W. 2d 458
    Opinion delivered February 1, 1971

      Hout, Thaxton ir Hout, for appellant.

      Marvin L. Kieffer and Hartman Hotz, for appellees.
   George Rose Smith, Justice.

On May 21, 1966, the appellees bought a combine from the appellant, a retail dealer in farming equipment, and executed a $2,242.93 installment note for the unpaid purchase price. The appellant transferred the note, with recourse, to a bank in Jonesboro. Upon a default by the appellees in their payments the appellant paid in full the amount that was due to the bank and brought this action to collect the debt from the appellees.

The various pleadings and affidavits filed by the rival parties make up a record of almost 150 pages. Eventually the appellees filed a motion for summary judgment, upon the theory that the bank had marked the note “Paid,” without a written reassignment to the appellant, and that the effect of the notation was to discharge the appellees’ liability upon the instrument. This appeal is from a summary judgment sustaining the appellees’ theory of the case.

The appellees are mistaken in their understanding of the law. It has long been the rule that when a party secondarily liable upon a note is required to pay it, he is entitled to enforce the obligation against the maker. Briscol v. American So. Tr. Co., 176 Ark. 401, 4 S. W. 2d 912 (1928). That rule has not been changed by the Uniform Commercial Code. Section 3-601 of the Code contains an exclusive listing of the situations in which a party to an instrument is discharged. Ark. Stat. Ann. § 85-3-601 (Add. 1961); Commissioners’ Comment 1. The present situation is not included in the list. To the contrary, when a former holder reacquires the instrument, only intervening parties are discharged. Section 85-3-208. And such a party, as the holder of the instrument, may enforce payment. Section 85-3-301.

The appellees are also mistaken in their contention that the appellant, in the court below, had the burden of showing that the bank had reassigned the note to the appellant. The complaint alleged that the plaintiff was the holder of the note and had placed it in the hands of its attorney for collection. That allegation sufficiently stated that the plaintiff was entitled to bring suit on the instrument. A party defendant who moves for a summary judgment has the burden of showing that no justiciable issues of fact exist. Widmer v. J. I. Case Credit Corp., 243 Ark. 149, 419 S. W. 2d 617 (1967). Moreover, the proof supporting the motion must be viewed in the light most favorable to the party resisting the motion. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963). In view of those principles, the trial court was in error in granting the appellees’ motion for summary judgment.

The appellant also contends that its own motion for summary judgment should have been granted. We find no merit in that contention. The appellees pleaded a number of defenses to the action, including a general denial, a breach of warranty, and payments in excess of those for which they had been given credit. It cannot be said from the record that no material issues of fact exist with reference to those defenses.

Reversed.


text:
    Edward Ward OWEN v. STATE of Arkansas
    5545
    462 S. W. 2d 469
    Opinion delivered February 1, 1971

      Sharpe 6- Wilkinson, for appellant.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is the second petition for postconviction relief that has been filed by the appellant, Edward Ward Owen, under our Criminal Procedure Rule No. 1. Ark. Stat. Ann., Vol. 3A, 1969 Supp., p. 91. The trial court denied the petition, on the ground that the court’s adverse decision upon the first petition was res judicata of the issues tendered by the second petition. We affirm.

On May 7, 1963, Owen pleaded guilty in the St. Francis circuit court to charges of burglary and grand larceny. He received cumulative sentences of two years and one year, making three years in all. While serving those sentences Owen escaped from the Arkansas penitentiary and was apparently confined thereafter in Tennessee and in Florida. The State of Arkansas issued a detainer against Owen, presumably requesting that he be returned to this state at the termination of his confinement elsewhere.

In 1967 Owen filed in the circuit court what was entitled a Petition for Writ of Error Coram Nobis. Owen was then in prison in Florida. His petition asserted three grounds for relief: (1) The conviction for both burglary and grand larceny violates the constitutional prohibition against double jeopardy; (2) petitioner, when he pleaded guilty to the two charges, was not offered the services of counsel and did not intelligently and understanding^ waive that right; and (3) the petitioner had actually been in jail in Crittenden county, Arkansas, on December 26, 1962 — the date on which the burglary and theft assertedly occurred. In the petition Owen waived his right to be present at the hearing thereon.

That petition was presented to the court on October 12, 1967. The court properly treated the petition as one for postconviction relief under Rule 1, which had been promulgated two years earlier. The court, hearing the petition upon the record already made, found the petition to be without merit. Upon the second and third issues, now being reasserted, the court found (a) that Owen was offered the services of counsel when he pleaded guilty, “and the records indicate that the defendant declined counsel,” and (b) that the date of the offense, as specified in the information, is ordinarily immaterial (with exceptions not pertinent to this case). There was no appeal from the denial of the petition.

In 1970 Owen, acting through court-appointed counsel, filed this second petition under Rule 1. The petition again asserts that Owen was denied his right to counsel in the first instance and was in jail on the date of the offense, as charged in the information. The petition asks that an evidentiary hearing be held and that the original judgment of conviction be set aside.

The court denied the petition under the doctrine of res judicata but permitted the petitioner to make a record of his proffered proof. It was 'shown that Owen had in fact been in jail on December 26, 1962. He testified that when he pleaded guilty he did not know that counsel would have been provided for him if he wanted the services of a lawyer. He also said that his plea of guilty was induced by false assertions made by the prosecuting attorney and by the deputy prosecuting attorney (both of whom Owen knew to be dead when his second petition was heard).

We agree with the trial court’s conclusion that the decision upon the first petition was res judicata of the second. Appellant’s only answer to that view is that he should not be bound by the adverse decision upon the first petition, because that pleading was prepared only with the assistance of fellow prisoners and without the aid of an attornev.

It does not follow, however, that the rejection of the first petition was an empty gesture, without substantive effect. That petition was a well-prepared pleading, in which four pertinent decisions of the United States Supreme Court were cited. Owen was certainly aware of his right to counsel by them, for he asserted that very right in the petition. The court gave serious consideration to the petition and denied it in a judgment that was entered of record. No appeal was taken, even though that right was recognized and provided for in Rule 1.

Paragraph (H) of Rule 1 is applicable here: “All grounds for relief available to a prisoner under this rule must be raised in his original or amended petition. Any grounds not so raised or any grounds finally adjudicated or intelligently and understanding^ waived in the proceedings which resulted in the conviction or sentence or in any other proceedings that the prisoner may have taken to secure relief from his conviction or sentence, may not be the basis for a subsequent petition.” Thus the language of the rulé itself answers the appellant’s present contentions.

Affirmed.


author: Lyle Brown, Justice.

text:
    James L. GARREN et ux v. Charles E. KELLEY
    5-5434
    462 S. W. 2d 861
    Opinion delivered February 1, 1971

      Dickey, Dickey ir Drake, for appellants.

      Holmes & Holmes, for appellee.
   Lyle Brown, Justice.

This is a boundary line dispute between adjoining owners. The court decreed that the true boundary line was in accordance with appellee’s survey and appellants contend that in so holding, the trial court did not follow a preponderance of the evidence. Secondly, it is contended that the chancellor should have ordered an independent survey.

Appellee is the owner of the east 50 feet of Lot 42, and all of Lots 43 and 44, Park Hill Addition to the City of Pine Bluff. Appellants are the owners of Lot 45 which joins appellee’s Lot 44 on the east. The property was subdivided many years ago and the lots in the immediate area are shown to have 150 feet frontage and a depth of 287 feet. The lots were deeded to the respective parties by reference to lot numbers and not to metes and bounds descriptions.

Appellants’ neighbor on the east is Harry E. Farmin. In 1959 Farmin erected a fence on what he thought to be the Garren-Farmin boundary. Then in 1969 appellee constructed a fence on the west side of appellants. When appellants measured the distances between the two described fences they found that they were some six or seven feet short of the 150 feet called for in their deed. Appellants had a survey made by the county surveyor, J. H. Shepherd, and appellants concluded that appellee’s fence encroached on their property to the extent of the missing six or seven feet. This lawsuit followed, the purpose being to require appellee, Kelley, to remove the fence.

Appellants’ principal witness was the county surveyor. He testified that he started at the southeast corner of a quarter section, which he said was also the southeast comer of the subdivision. He testified that the subdivision was laid out with the southeast corner of the quarter section as the beginning point. He said he went due west the required number of feet and came to an iron pin at the southeast corner of appellants’ Lot 45. From theré he said he established the other three corners of appellants’ lot and concluded that appellee’s fence encroached on appellants approximately six or seven feet. He found existing iron pins at each of appellants’ corners which conformed to his survey. The testimony of Mr. and Mrs. Garren and Mr. Farmin tended to corroborate the surveyor’s description of the markers.

Leo Tyra, a registered surveyor and civil engineer, made the survey for appellee. He produced an extensive plat which he prepared on the basis of his survey. He did not start from the southeast corner of the quarter section, rather he went west and used “some very old iron pins to the west of the Kelley lots and they proved themselves all the way to Highway 65.” He explained that his starting point tied in with original survey pins and with lots north of and across the street from the Kelley property. He was critical of the pin at the southeast comer of the quarter section, from which the county surveyor started his survey. He insisted that the pin had come into existence since 1964 and appeared to have been put where the county surveyor found it because of a fence line. He related that nine feet east of that pin he found an old blaze on a tree which in his opinion was part of a surveyor’s code. He said the pin should be moved nine feet east to place it exactly on the southeast corner of the quarter section. If that were done “then I believe the entire subdivision fits there and the land is there.” Otherwise, he said there would be “utter confusion in the subdivision.”

Witness C. C. Monk, Jr. lived on the property for some thirty years, moving away just before appellants purchased Lot 45 in 1965. He related that during all those years the old pins used by Mr. Tyra were considered established points. Additionally, he testified that for many years an iron pin was to be found which was eight feet east of the fence established by Farmin. In other words, it was his opinion that Mr. Farmin had enclosed some eight feet of appellants’ property. Mr. Tyra came to the same conclusion.

The court found that the pins set by Mr. Tyra represented the correct corners separating the properties of the litigants. We are unable to say that finding is against the preponderance of the evidence.

Appellants contend that the chancellor should have ordered an independent survey. A request for such a survey was not presented to the trial court. Additionally, the levying of costs is purely statutory; and it has been held that the trial court is without power, absent agreement of the litigants, to levy the costs of a court-appointed engineer against the parties. Arkansas Game & Fish Comm. v. Kizer, 222 Ark. 673, 262 S. W. 2d 265 (1953).

Affirmed.


author: John A. Fogleman, Justice.

text:
    INDUSTRIAL COATINGS OF BEAUMONT, Employer; Phoenix of Hartford, Insurance Carrier v. William E. HEATH
    5-5436
    462 S. W. 2d 450
    Opinion delivered February 1, 1971

      Jones, Gilbreath ir Jones, for appellants.

      /. Marion Holman, for appellee.
   John A. Fogleman, Justice.

The sole question on this appeal is whether one who has received a permanent partial disability because of a scheduled permanent injury is entitled to a prorated payment for the maximum period allowed for loss of the injured member, or the full statutory percentage of his average weekly wage for a prorated period. The Workman’s Compensation Commission found that appellee Heath had sustained a 5% permanent partial disability to his right hand. It awarded him the maximum weekly compensation of $38.50 for 7Vz weeks (or 5% of 150 weeks). On appeal, the circuit court reversed, holding that Heath’s percentage of disability entitled him to that proportionate part of his weekly compensation for the full period of 150 weeks allowed for the loss of a hand. Ark. Stat. Ann. § 81-1313 (c) (5) (Repl. 1960). Since 5% of the maximum weekly compensation of $38.50 amounts to less than $10, the court ordered payment of $10 per week for 150 weeks on authority of Ark. Stat. Ann. § 81-1310.1 (Supp. 1969), which provides that minimum compensation shall not be less than $10 per week.

We have approved and applied a formula by which compensation for partial loss of use of a member has been determined by multiplying the percentage of disability of the member by the number of weeks of compensation allowable for that member and requiring payments of the average weekly wages of the claimant (or the maximum allowable weekly payment, as the case may be) for the period thus determined. See Caddo Quicksilver Corp. v. Barber, 204 Ark. 985, 166 S. W. 2d 1; Lion Oil Co. v. Reeves, 221 Ark. 5, 254 S. W. 2d 450. It is argued that cases such as these are not determinative of the question, because the correctness of the formula was never an issue, and the same total compensation would result regardless of which method of calculation was used. The trial court relied upon, and applied, the rule adopted in Hardware Mut. Casualty Co. v. Maxey, 212 Ark. 161, 205 S. W. 2d 29. In that case, we were dealing with unscheduled permanent par-dal disability to the body as a whole. At that time, the act contained no language fixing compensation as a percentage of weekly pay with maximum and minimum limits of $20 and $7. Unscheduled permanent partial disability then required payment of 65% of the difference between the employee’s average weekly wage and his wage earning capacity after injury during the continuance of the partial disability, not to exceed 450 weeks, or $7,000 total payments. The period was fixed as a maximum but did not constitute a valuation of the body as a whole at 450 weeks, as our present law does. Ark. Stat. Ann. § 81-1313 (d).

The circuit court found no logic to support any reason for a distinction between a scheduled and an unscheduled injury. We think that a possible basis for distinction is pointed out in 11 Schneider’s Workmen’s Compensation, Perm, ed., 562, § 2322, wherein it is pointed out that specific or scheduled injuries are generally compensated regardless of the fact that there may be no incapacity or disability to earn wages as a result of the injury. See Wilson & Co. v. Christman, 244 Ark. 132, 424 S. W. 2d 863. This may have been the logic applied when the law was changed to evaluate the body as a whole at 450 weeks for permanent partial disabilities not scheduled.

At any rate, none of our previous decisions is really determinative of the question here presented for the reasons hereinabove stated. Resort to decisions from other jurisdictions has not provided any guidelines, because they are based upon die respective statutes involved. The statutes, in some cases, seem to direct that the proration be on the weekly payment allowed and in others upon the period of tíme allowed for loss of a member. The dichotomy of authority is best illustrated by differing statements in recognized texts. Schneider states: “Where there is a permanent partial disability to a member, resulting in less than total loss of use of such member, compensation is usually paid at the full rate prescribed for the total loss of use of that member for that proportion of the full compensation period, which the extent of the loss of the member bears to the total loss.” Vol. 11, Perm, ed., p. 559, § 2321. Larson states that benefits for loss of use are ordinarily calculated as a simple percentage of the benefits for total loss by allowing that percent of the average wage for the number of weeks allowed for total loss of use of the member, but recognizes that, if the statute so provides, the percent may be applied to the overall duration rather than the weekly benefit. 2 Larson, Workmen’s Compensation Law 88.48, § 58.10. The authorities cited by these writers generally simply follow the language of the applicable statute, although one jurisdiction required that time be prorated when the statute seems to say that the proportionate amount shall be paid. See Lewis v. Allied Contractors, 118 Neb. 605, 225 N. W. 770 (1929).

Our statute does not give a specific direction. Arkansas Statutes Annotated § 81-1313 (c) (21) and (22) reads:

(21) Total loss of use: Compensation for permanent total loss of use of a member shall be the same as for amputation of the member.
(22) Partial loss or partial loss of use: Compensation for permanent partial loss or loss of use of a member shall be for the proportionate loss or loss of use of the member.

Examination of other pertinent parts of the applicable statute leads us to the conclusion that it was the legislative intent that evaluation of permanent partial disability be measured in weeks during which a money allowance amounting to 65% of his average weekly wage (if not more than $38.50 per week nor less than $10 per week) shall be paid. The maximum time period for payment was fixed at 450 weeks. Ark. Stat. Ann. § 81-1310.1 (Supp. 1969). See Wilson & Co. v. Christman, 224 Ark. 132, 424 S. W. 2d 863. Compensation for loss of each member listed in the statute is fixed at 65% of the weekly wage and evaluation of the loss is in terms of weeks during which the prescribed amount (within statutory limitations) shall be paid. We cannot escape the conclusion that loss of use was correctly proportioned by the commission according to the statutory direction and that the judgment of the circuit court is erroneous.

The judgment of the circuit court is reversed.

       Heath was injured March 28, 1967. The referee’s decision was made November 25, 1968. Initiated Act. No. 1 of 1968 became effective December 12, 1968.


author: J. Fred Jones, Justice. John A. Fogleman, Justice,

text:
    ARKANSAS STATE RACING COMMISSION v. Vernon SAYLER
    5-5397
    462 S. W. 2d 472
    Opinion delivered February 1, 1971

      R. David Lewis, for appellant.

      Anderson & Slagle, for appellee.
   J. Fred Jones, Justice.

This is an appeal by the Arkansas Racing Commission from a judgment of the Garland County Circuit Court which reversed an order of the Commission suspending Vernon Sayler from riding as a jockey for infraction of racing rules.

The facts of record appear as follows: On March 30, 1970, near the close of the Spring race meet at Oak-lawn Park in Hot Springs, Jockey Vernon Sayler was to ride a horse named Gypsy Ben in the seventh race. Just before the seventh race was to start, one of the track detectives received a tip that Gypsy Ben in the seventh race would be ridden by Sayler with an electrical shocking device, referred to around race tracks as a “joint” or “buzzer.” By the time this information could be relayed to the race track stewards, the horses for the seventh race had left the paddock and were being paraded toward the starting gate. Sayler was riding Gypsy Ben and Calvin Santage, while acting as “pony boy” for Sayler, rode another horse alongside the thoroughbred Gypsy Ben. It was Santage’s responsibility to hold the bridle bits of Gypsy Ben and help Sayler control the thoroughbred until it was released to the starter to be placed in a stall at the starting gate.

Upon receipt of the information conveyed by the detectives, the stewards directed that Sayler be searched. The detectives went onto the race track and after the horses arrived at the starting gate, they had Gypsy Ben backed from the stall in the starting gate and Sayler was searched. When no electrical device was found on Sayler, they permitted him to remount Gypsy Ben and participate in the seventh race. In the meantime, San-tage had started riding away from the starting gate. He was also required to dismount and was searched. An electrical device was found in Santage’s right jacket pocket and he readily stated that Sayler had placed the device in his pocket as they made a turn to go into the starting gate. Both Sayler and Santage were directed to appear that night before the board of stewards and upon doing so, Santage reiterated in Sayler’s presence, the statement he had made to the detectives. Sayler denied that he had placed the device in Santage’s pocket, and denied that he had ever seen the device or ever knew of its existence.

Sayler and Santage were both suspended and denied the privileges of the grounds by the stewards for violation of Commission Rules 139 and 147 respectively, and their cases were referred to the appellant Racing Commission. Commission Rule 139 is not in the record and the contents of Rule 147 are only referred to in a comment by Commissioner Dr. Springer on page 78 of the transcript. The appellant states in its brief that Rule 139, under which Sayler was charged, reads as follows:

“No person shall conspire with any other person for the commission of, or connive with any other person in any corrupt or fraudulent practice in relation to racing, nor shall he commit such act on his own account.”

The appellant also states that Rule 147, under which Santage was charged, reads as follows:

“No electrical or mechanical device or other expedient designed to increase or decrease the speed of a horse, (or that would tend to do so) other than the ordinary whip or spurs shall be possessed by anyone or applied by anyone to a horse at any time on the grounds of an Association, during a meeting whether in a race or otherwise.”

The authority and jurisdiction of the board of stewards, as well as that of the Racing Commission, to suspend jockeys for the violation of these rules appears to be unquestioned. The suspension order of the stewards was posted at the track on the morning of March 31, 1970, and on the same day, Sayler obtained a temporary restraining order in the Chancery Court of Garland County restraining the Commission from suspending Sayler until such time as he was able to prepare his defense, or until- the matter could be heard on its merits in the chancery court on April 6, 1970 (the last day of the Spring meet at Oaklawn). By letter dated March 31, 1970, Sayler was notified by the Commission that the matter would be heard by the Commission on April 2, 1970, at 10:00 a.m. The letter was received by Sayler on April 1, 1970. Following an evidentiary hearing before the Commission on April 2, the Commission made its decision as follows:

“It is the finding of the Commission that based upon the evidence presented today, April 2, 1970, Jockey Vernon Sayler had possession of a shocking device intended to be used in the 7th race on Monday, March 30, 1970.
The Commission candidly acknowledged that there is no way to prove to a mathematical certainty whether Jockey Vernon Sayler had the shocking device, but the evidence presented before the Commission this morning indicates, in the Commission’s judgment, that Vernon Sayler did, in fact, have a shocking device in his possession.
It is, therefore, the decision of the Commission that Jockey Vernon Sayler shall be and is hereby suspended indefinitely with the further provision that prior to the beginning of the 1971 racing season at Oaklawn Jockey Club, Hot Springs, Arkansas, the Commission will at that time review again the question of whether Jockey Vernon Sayler shall be reinstated to good standing.
The Commission further finds that if Jockey Vernon Sayler were to submit to examination by polygraph and said examination results in a finding by the Examiner that Jockey Vernon Sayler had no guilty knowledge of the shocking device in the 7 th race Monday, March 30, 1970, the Commission at that time will set aside this suspension and reinstate Jockey Vernon Sayler to good standing.”

Alleging jurisdiction under Ark. Stat. Ann. § 5-713 (Supp. 1969), Sayler filed his petition in the Garland County Circuit Court for a review of the adjudication of the Commission. The Commission filed its response admitting jurisdiction and on April 30, 1970, the circuit court entered the order appealed from as follows:

"Now on this 30th day of April, 1970, came on to be heard the above entitled cause, the Petitioner appearing through his attorneys, Anderson and Slagle, and the Respondent appearing through David Lewis, its attorney, and from the argument of counsel, and the record of the proceedings against the Petitioner, before the Arkansas State Racing Commission, the Court doth find:
1. That the Commission failed to comply with the notice and hearing requirements of Section 5-708 of the Arkansas Statutes,
2. That the Commission’s Order granting reinstatement upon favorable results of polygraph tests is an improper delegation of ■ the Commission’s authority granted by the Legislature.
3. That the Commission’s findings, inferences and decision were not supported by substantial evidence of record, were arbitrary and characterized by abuse of discretion.
IT IS THEREFORE, by the Court, considered, ordered, adjudged and decreed that the decision of the Arkansas State Racing Commission suspending the Petitioner, Vernon Sayler, is therefore, by the court, reversed and the Petitioner, Vernon Sayler, is therefore, by the court, ordered reinstated by the Respondent, Arkansas State Racing Commission.”

On appeal to this court the Commission relies on the following points for reversal:

"1. The appellant complied with the notice and hearing requirements of Ark. Stats. 5-708.
2. The appellant did not delegate any of its authority by virtue of either of its orders.
3. The appellant’s findings, inferences and decision were supported by substantial evidence of record and were not arbitrary or characterized by abuse of discretion.
4. The cost of the transcript of the proceedings before appellant should be awarded appellant as an item of costs.”

The prompt and strict enforcement of rigid rules in maintaining the integrity of legalized horse racing, where millions of dollars are wagered under a parimutuel system, needs no comment. Neither is it necessary to comment on the stigma that follows a jockey who violates those rules. The Commission’s authority over horse racing in Arkansas is set out in Ark. Stat. Ann. § 84-2734 (Repl. 1960), in part, as follows:

“Subject to the limitations and conditions as in this act [§§ 84-2727 — 84-2756] or other applicable law provided, the Commission shall have sole jurisdiction over the business and/or the sport of thoroughbred horse racing in this State whereat such racing shall be permitted for any stake, purse or reward, and, in exercising such jurisdiction as aforesaid, but without necessarily being limited to the following enumeration, it shall be the function, power and/or duty of the Commission to:
* * #
(c) Issue licenses to horse owners, horse trainers, jockeys and jockeys’ agents.
* # *
(e) Hear and determine all matters properly coming before the Commission, and grant rehearings thereon.
(£) Take such other action, not inconsistent with law, as it may deem necessary or desirable to supervise and regulate, and to effectively control in the public interest, horse racing in the State of Arkansas.”

Ark. Stat. Ann. § 84-2742 (A) (Repl. 1960) provides as follows:

“The Commission shall have full, complete and sole power and authority to promulgate rules, regulations and orders, and prescribe conditions, under which horse racing shall be conducted by a franchise holder, but the power and authority so granted shall be exercised by the Commission in a reasonable manner, and the holder of any franchise, or any taxpayer, shall have redress to the Pulaski County Circuit Court for any wrong committed by the Commission in the exercise of the power and authority granted herein.”

In Ark. Stat. Ann. § 84-2745 (Repl. 1960 and Supp. 1969) is found the following:

‘‘(A) In the event any franchise holder or person is aggrieved by any action of the Commission, they shall be entitled to a hearing by the Commission. Such hearing shall be held at such place in the State of Arkansas and at such time as the Commission may designate, and notice shall be served on the party or parties affected by mailing the notice of the time and place that such hearing will be helcl by registered United States mail to the party or parties affected. The Commission in conducting such hearing, shall not be bound by technical rules of evidence. Any of the parties affected in such hearing may be represented by counsel and shall have the right to introduce evidence, and the Commission may in its discretion likewise be represented by counsel at said hearing and such counsel shall participate in the conduct of such hearing for and on behalf of the Commission.
(D) At the conclusion of such hearing the Commission shall make its findings to be the basis for the action taken by the Commission. Such findings and order shall be subject to review in the Pulaski County Circuit Court, from which an appeal may be prosecuted to the Supreme Court.”

The Administrative Procedure Act, Ark. Stat. Ann. § 5-701 — 5-714 (Supp. 1969), as it applies to administrative adjudication, is set out in § 5-708 as follows:

“In every case of adjudication:
(a) All parties shall be afforded an opportunity for hearing after reasonable notice.
(b) The notice shall include:
(1) A statement of the time, place, and nature of the hearing;
(2) A statement of the legal authority and jurisdiction under which the hearing is to be held;
(3) A short and plain statement of the matters of fact and law asserted.
(c) Opportunity shall be afforded all parties to respond and present evidence and argument on all issues involved.
(d) Nothing in this Act [§§ 5-701 — 5-714] shall prohibit informal disposition by stitpulation, settlement, consent order, or default.
(e) The record shall include:
(1) All pleadings, and intermediate rulings; '
(2) evidence received or considered, including, on request of any party, a transcript or oral proceedings or any part thereof;
(3) a statement of matters officially noticed;
(4) offers of proof, objections, and rulings thereon;
(5) proposed findings and exceptions thereto;
(6) all staff memoranda or data submitted to the hearing officer or members of an agency in connection with their consideration of the case.
(f) Findings of fact shall be based exclusively on the evidence and on matters officially noticed.”

Judicial review under the Administrative Procedure Act, in so far as it is pertinent here, is found in § 5-713 as follows:

“(a) In cases of adjudication, any person who considers himself injured in his person, business, or property by final action shall be entitled to judicial review thereof under this Act. Nothing in this Section shall be construed to limit other means of review provided by law.
(b) Proceedings for review shall be instituted by filing a petition.
(1) in the Circuit Court of any county in which the petition resides or does business, or
(2) in the Circuit Court of Pulaski County within thirty days after service upon petitioner of the agency’s final decision. Copies of the petition shall be served upon the agency and all other parties of record by personal delivery or by mail. The court, in its discretion, may permit other interested persons to intervene.
* # #
(g) The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony may be taken before the court. The court shall, upon request, hear oral argument and receive written briefs.
(h) The court may affirm the decision of the agency or remand the case for further proceedings. It may reverse or modify the decision if the substantial rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) in violation of constitutional or statutory provisions;
(2) in excess of the agency’s statutory authority;
(3) made upon unlawful procedure;
(4) affected by other error of law;
(5) not supported by substantial evidence of record, or
(6) arbitrary, capricious, or characterized by abuse of discretion.”

The appellant’s first point raises the question of whether the notice given to Sayler of the Commission hearing was reasonable. We conclude that under the facts and the law in this case, it was. The suspension order of the stewards was posted at the track on the morning of March 31. This notice stated that the matter was being referred to the Commission and certainly Sayler was well aware of the charges against him when on March 31 he obtained an order in the Garland County Chancery Court restraining the Commission from suspending him until he could prepare his defense, or until the matter could be heard on its merits in chancery court on April 6, 1970.

When Sayler received a letter from the Commission on April 1 advising him that the hearing would be on the following day, he obviously already knew what matters would be taken up by the Commission. The race meet was to be over on April 6 and when Sayler requested that the hearing be continued to a later date, the Commission offered to reset the hearing at any time convenient to Sayler if he would voluntarily suspend himself from riding in any of the races until after the hearing. Sayler refused this offer and did not indicate what evidence he desired to offer, or what evidence, if any, he was unable to obtain. He did not show wherein he was prejudiced at all by the hearing held on April 2, except that if he were suspended he would be unable to ride during the remaining days of the meet.

The appellant’s second point concerning the polygraph test has given us considerable difficulty. Santage, with no ulterior motive reflected in the record, testified that Sayler placed the shocking device in his (San-tage’s) pocket ünder circumstances that might well have been considered by the Commission as indicating that Sayler had seen detectives on the track and suspected that they had been informed of the device he was carrying. The Commission might well have concluded that Sayler knew he was under close binocular observation and that he was anxious to get rid of the device without it being found on his person or picked up from the track if he attempted to drop it; and that he dropped it into Santage’s pocket in the hope that Santage would remove the device from the track without detection. The testimony of Santage and Sayler was in direct conflict. From the overall record it would appear that the matter came down to the simple question of which one was lying: Santage, who had the device on his person with no apparent use for it and nothing to lose by stating the truth as to where he obtained it, or Jockey Vernon Sayler, who was the logical one to use the device, especially in the light of the anonymous tip received by the detectives.

In order to add weight to his own testimony, San-tage readily agreed to submit to a polygraph test. Sayler indicated his willingness to undergo a polygraph test except for the general objections of the jockey guild to their members taking polygraph tests without psychiatric examination. Mr. Al Popara, manager of the jockey’s guild, testified as to the guild’s, and his own, objection to polygraph tests primarily because they did not feel that such tests are reliable, especially for jockeys who are usually of nervous temperament.

The record is not clear whether the appellant Commission considered polygraph tests as infallible and was interested in the results of such test as conclusive evidence of who was lying, or whether it was concerned with Sayler’s willingness or unwillingness to submit to such test as some evidence that he had or had not told the truth. The Commission had already suspended Mr. Sayler when it agreed to reinstate him if he should take a polygraph test with favorable results. Sayler’s suspension did not depend on a polygraph test, but his reinstatement was assured by the production of additional evidence in the form of a polygraph test in his favor. In effect, the Commission conducted a hearing on the suspension of Mr. Sayler and at the same time conducted a rehearing on his reinstatement, with the evidence limited to the results of a polygraph test.

We do not reach the other points raised by the appellant for we are of the opinion that the trial court should have remanded the case to the Commission for a definite and final determination by that body. If it was the Commission’s purpose and intent to grant a rehearing under authority of § 84-2734 (e), supra, such rehearing should not be consolidated with the original hearing, and the evidence should not be confined to a positive or negative result of a polygraph test. We have concluded that the judgment of the trial court should be reversed and this cause remanded to the trial court with directions to remand to the Commission for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Harris, C. J., and Brown and Holt, JJ., would affirm the circuit court judgment.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. As I view this case, the only question involved in appellant’s second point is whether the commission delegated its authority by a provision as to a polygraph test in connection with possible reinstatement of appellee. As I see it, that matter is not really before us. The record does not reveal whether Sayler has applied for reinstatement — with or without a polygraph test.

The commission did not suspend Sayler on the basis of what a polygraph test would or might reveal. Nor did it suspend him conditionally. It clearly found, on the evidence before it, that Jockey Vernon Sayler had a shocking device in his possession with intention to use it in the race. Its statement that proof could not be by a mathematical certainty was followed by its conclusion that the evidence before it indicated that appellee did have the shocking device. There is nothing equivocal about this. The statement is similar to both written and oral findings by judges which are to be found in records filed in this court. No one would think that a judge’s findings were qualified or conditional if he used this language. The commission is not limited to findings beyond a reasonable doubt, if indeed its language can be taken to express any doubt. It simply finds, and did find, where the preponderance of evidence lay.

The commission tempered its indefinite suspension with a specific provision that Sayler could apply for reinstatement at the beginning of the 1971 season. This right is not qualified in any way and is in no way based upon his taking a polygraph test. Knowing, however, that its suspension would affect Sayler’s pursuit of his occupation, the commission also offered him the possibility of an earlier reinstatement, conditioned upon his producing results of a polygraph test favorable to him. This added provision is the only part of the commission’s order that is any way qualified or conditional.

The commission has a difficult task and a heavy responsibility to the patrons of racing establishments. It should not be hampered by hypercritical judicial scrutiny of the language of its orders. Its order in fixing the time for application for reinstatement, and even affording the opportunity for earlier reinstatement, did nothing to delegate any of its own authority to suspend. If it arbitrarily refuses application for reinstatement by Sayler, he then has recourse to the courts. It is premature for us to pronounce that its terms for hearing or reinstatement were wrong.

When the commission chose to believe Santage, in the light of all the circumstances, it resolved a question of credibility. We are in no position to say that it was wrong. The evidence was substantial. While I agree that the circuit court judgment should be reversed, I would direct that the commission’s order of suspension be affirmed.

Perhaps consideration of the effect of this court’s action today on Sayler’s ability to regain the right to pursue his chosen occupation is extraneous, but I cannot help wondering if the ultímate result may not prevent him from riding for a new period of suspension after the commission acts again on remand.


author: J. Fred Jones, Justice.

text:
    Grover L. MARTIN v. Johnny L. ROMES
    5-5421
    462 S. W. 2d 460
    Opinion delivered February 1, 1971

      Guy H. Jones, Phil Stratton and Guy Jones, Jr., for appellant.

      John T. Haskins, James H. Larrison, Jr. and D. Michael Huckabay, for appellee.
   J. Fred Jones, Justice.

On March 5, 1969, John L. Romes filed suit in the Pulaski County Circuit Court against Grover L. Martin alleging personal injuries and property damage as the result of Martin’s negligence in the operation of an automobile and in causing it to collide with Romes’ automobile. Romes alleged damages and prayed judgment in the amounts of $35,000 for personal injuries and $500 for property damage to his automobile.

On March 17, 1969, Martin filed an answer of general denial and alleged that whatever damage Romes sustained in the accident was due to Romes’ own negligence. On November 12, 1969, Martin’s answer was amended alleging specific acts of negligence on the part of Romes; and specifically pleading Romes’ negligence as a bar to, or in diminution of, any amount in damages he might otherwise be entitled to receive. On November 24, 1969, through separate and additional counsel, Martin filed a counterclaim specifically alleging numerous acts of negligence on the part of Romes in the operation of his automobile, and that such negligence was the proximate cause of the collision, resulting in personal injuries to Martin by which he was damaged in the amount of $50,000.

On November 26, 1969, Romes amended his complaint lowering the amount of his alleged property damage to $50. The case was tried before a jury on December 2, 1969, with the regularly elected circuit judge, the Honorable Warren Wood, presiding. Apparently, after the case was fully tried and the jury retired, or was ready to retire, to consider its verdict, it became necessary for the presiding judge to leave and the Honorable Jack Lessenberry, an attorney in attendance, was selected to continue as presiding judge. The record indicates that the only apparent duties remaining for the trial judge when Judge Lessenberry assumed the bench, were to receive the verdict of the jury and enter judgment.

The jury was unable to agree on a verdict and upon being advised that the decision stood at 7 to 5, Judge Lessenberry, with the agreement of counsel, gave to the jury AMI instruction No. 2303 and requested further deliberation in an effort to reach a verdict. At this point the attorney for Martin on his counterclaim, pointed out to the court that the jury had retired at 3:20 and returned to the courtroom at 5:10, and the attorney made an oral motion for a mistrial. The attorney representing Martin on his general denial, and the attorney representing Romes on his complaint, objected to granting the mistrial. Judge Lessenberry stated that he would adhere to Judge Wood’s earlier rule in regard to a continuance requested by the attorney representing Martin on counterclaim, and he denied the motion for mistrial.

The record then shows that the jury foreman, Mr. Mclntire, returned to the courtroom and reported that the jury was still unable to agree on a verdict. Upon inquiry, Mr. Mclntire advised that the jury division now stood 8 to 4 and stated that he was convinced that it was not going to change. Following conference with counsel, and apparently in recognition that some progress had been made, the court again had the foreman return to the jury room with the request that the jury continue in its attempt to reach a verdict. The record shows that the entire jury then came back into the courtroom and the following transpired with all the jury present:

“THE COURT: Mr. Foreman, have you been able to reach a verdict?
MR. McINTIRE: Have not.
THE COURT: Ladies and gentlemen, I want to thank you for participating in this trial for the past two days. I think each of you conscientiously worked toward a verdict and voted your best judgment. I am going to discharge you now with a request and some instructions. I understand that there are six of you who are on Judge Digby’s jury. . .
MR. McINTIRE: We have reached part of a verdict.
THE COURT: Just a moment. Would you give it to the bailiff?
MR. HUCKABAY: Your Honor, have you declared a mistrial yet?
THE COURT: Mr. John Mclntire signed this verdict as foreman. ‘We, the jury, find for the plaintiff, Johnny Romes against the counterclaim of Grover R. Martin’ and it is signed by eight others. Total of nine. All right, you will be discharged.
MR. WHETSTONE: Would you hold them just a minute and see what this effect—
THE COURT: Whatever it affects I don’t think it’s going to involve the jury. I am not familiar with the pleadings and I can’t tell you what the effect is. Apparently they resolved 'part of a complicated case. I don’t think there would be—
MR. HUCKABAY: I think based on this verdict—
THE COURT: You are familiar with the pleadings.
MR. HUCKABAY: Based on this, I think it’s an incomplete verdict.
THE COURT: I am inclined to think that. I will declare a mistrial. I have so done. And I thank you again.
MR. WHETSTONE: But you declared a mistrial. I’m not consenting. You’re doing it over our objection.
THE COURT: All right. Your objections are noted. Anything else from counsel: Thank you again, ladies and gentlemen.”

On January 16, 1970, judgment was entered by the regular trial judge as follows:

“On this date this matter comes on to be heard, the plaintiff appearing in person and by his attorney, Mike Huckabay, and the defendant appearing in person and by his attorneys, Bernard Whetstone and Bud Whetstone, and the counterclaimant being the same person as the defendant, appearing in person and by his attorney, Guy Jones, Jr., and all partiés announced ready for trial, whereupon 12 of the regular panel of petit jurors of this court were duly selected, impaneled and sworn, according to law, to try the issues of fact arising herein; and after having heard all the evidence adduced, the instructions of the Court and the argument of counsel, the jury retired to consider its verdict, and after deliberating thereon returned into Court reporting that no verdict could be reached, whereupon the Court read to the jury AMI instruction 2303 and ordered the jury to again retire to the jury room. After further deliberation the jury returned into the Court with the following verdict:
‘We, the jury, find for the plaintiff, Johnny L. Romes, as against the counterclaim of Grover L. Martin.
/s/ John O. Mclntire
Foreman
Mrs. Edwin Mendell
Ray Harris
G. F. Peceny
William F. Perry
Melba Presley
Edward Cobbs
Mary Nichols
Irene Webb.’
The jury advised the Court that it was unable to reach a verdict with reference to the other issues submitted to them.
IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that defendant, Grover L. Martin, take nothing by reason of his counterclaim and said counterclaim is hereby dismissed with prejudice as against the counter-defendant, Johnny L. Romes, and said Johnny L. Romes is hereby awarded his costs in connection with said counterclaim; that a mistrial be, and it is hereby declared as to the issues relating to the plaintiff’s Complaint against the defendant and this cause will be placed on the trial docket for a re-trial.”

Martin’s attorney on the counterclaim filed a motion to set aside and vacate the judgment and to declare a mistrial as to Martin. While the partial record contains no formal order pertaining to the motion, Romes does not question that it was denied. On appeal to this court Martin relies on the following points:

“The Trial Court erroneously accepted the verdict from the jury.
The Trial Court erred in entering judgment.
The Trial Court erred in overruling defendant’s motion to arrest judgment and grant a mistrial.
The Trial Court erred in overruling defendant’s motion to vacate and set aside the judgment.”

We agree with the jury foreman that only a part of a verdict was reached, we agree with the presiding judge that the jury apparently only resolved part of a complicated case, we agree with Rome’s attorney and the presiding judge that the verdict was incomplete, and we agree with the appellant Martin that a mistrial should have been declared on his counterclaim as well as on the complaint. As a matter of fact, it is apparent from the record before us that a mistrial was declared as to all the parties by the presiding judge for the reason that the verdict was incomplete. For emphasis we recopy the record on this point as follows:

“MR. HUCKABAY: Based on this, I think it’s an incomplete verdict.
THE COURT: I am inclined to think that. I will declare a mistrial. I have so done. And [to the jury] I thank you again.
MR. WHETSTONE: But you declared a mistrial. I’m not consenting. You’re doing it over our objection.
THE COURT: All right. Your objections are noted. Anything else from counsel? Thank you again, ladies and gentlemen.
THEREUPON, the jury was released for the day.” (Emphasis supplied).

Under Ark. Stat. Ann. § 27-1121 (Repl. 1962) providing for the form and contents of an answer and under the third and fourth provisions of what the answer should contain, the statute reads as follows:

“Third: A statement of any new matter constituting a defense, counter-claim or set off, in ordinary and concise language, without repetition.
Fourth: In addition to the general denial above provided for, the defendant must set out in his answer as many grounds of defense, counter-claim or set off, whether legal or equitable, as he shall have. Each shall be distinctly stated in a separate paragraph, and numbered. The several defenses must refer to the causes of action which they. are intended to answer in a manner by which they may be intelligibly distinguished.”

Ark. Stat. Ann. § 27-1123 (Repl. 1962) defines counterclaim in the following language:

“The counterclaim mentioned in this chapter [§§ 27-1121 — 27-1125, 27-1129, 27-1130] may be any cause of action in favor of the defendants, or some of them against the plaintiffs or some of them.”

Apparently, the appellee confuses the term “counterclaim” when used as a noun with the same term when used as a verb. He apparently considers the counterclaim defined in § 27-1123 as being “any cause of action in favor of the defendants, or some of them against the plaintiffs or some of them,” regardless of when and how it is asserted. But the- counterclaim defined in § 27-1123 plainly states that it is the counterclaim mentioned in §§ 27-1121 — 27-1125, 27-1129, 27-1130. It is true that any cause of action in favor of the defendants, or some of them against the plaintiffs or some of them, may constitute a counterclaim or be asserted in a counterclaim, but it must be pleaded in answer to the original complaint as permitted and as required in the third and fourth paragraphs of § 27-1121, supra. Shrieves. v. Yarbrough, 220 Ark. 256, 247 S. W. 2d 193; Olmstead v. Rosedale Bldg. & Supply, 229 Ark. 61, 313 S. W. 2d 235. If the law was otherwise, the asserted claim would become the original claim to be properly asserted in a complaint and would not be a counterclaim at all. The very purpose of the counterclaim is to settle all issues between the parties in one and the same lawsuit and thereby avoid multiplicity of actions. The Shrieves and Olmstead cases, supra.

In Coats v. Milner, 134 Ark. 311, 203 S. W. 701 (1918), in construing the effect of Act 267 of the Acts of 1917, this court said:

“Any suit which the defendant could maintain as an independent cause of action is by this amenda-tory act made a proper subject-matter for a counterclaim. In other words, the manifest purpose of the Legislature was to permit persons who have gone to law to settle, in a single suit, all matters in dispute between them, whether the respective causes of action grow out of the same, or different, contracts, or whether they arise upon contract or arise out of some tort.”

Later, in the 1925 case of Church v. Jones, 167 Ark. 326, 268 S. W. 7, this court reaffirmed the purpose of the counterclaim as laid down in Coats v. Milner, supra, in the following language:

“In that case the court said that the manifest purpose of the Legislature in defining a counterclaim was to permit persons who have gone to law to settle, in a single suit, all matters in dispute between them, whether the respective causes of action grow out of the same or different contracts or whether they arise upon contract or arise out of some tort.”

In 116 A. L. R. at page 829 is found the following statement:

“In an action in which a money judgment is sought, a verdict which fails to state specifically, or which is indefinite as to, the amount to which the jury deems the plaintiff to be entitled on his cause of action, or the amount which defendant should recover in the event that the verdict finds in his favor on his counterclaim or cross complaint, or a verdict which affirmatively states that the party in whose favor the verdict is rendered is entitled to no amount, is not one on which a valid judgment can be entered.”

The statutory counterclaim evolved from recoupment and setoff and its purpose is to permit, and in Arkansas to require, that the controversy between the parties be settled in one action and thus avoid the multiplicity of suits. 10 A. L. R. 2d 1168, “Tort Counterclaim in Tort Action”; Gillespie v. Hunt, 214 Ind. 229, 14 N. E. 2d 1015.

In the case at bar the parties have cited no case, and we have found none, in which a trial court has entered a judgment in conformity with part of a jury verdict such as we have in this case. Our own statute, Ark. Stat. Ann. § 29-101 (Repl. 1962), defines the judgment as “the final determination of the rights of the parties in an action,” and certainly the rights of the parties have not been finally determined in this case. We have no way of knowing whether the jury based its partial verdict on evidence that Martin sustained no damage; or that he was more negligent than Romes; or that Romes was not negligent at all; or that Romes’ negligence was not the proximate cause of Martin’s damages. It is entirely possible that the evidence favorable and unfavorable to both parties may be quite different on retrial. Certainly a defendant has the right to cross-examine the plaintiff’s witnesses at any trial, and we can conceive of such evidence, from the plaintiff’s own witnesses, that would permit, or even require, a verdict and judgment for the defendant on counterclaim. Especially is the issue of negligence vulnerable to such possibility.

We conclude, therefore, that the trial court erred in entering judgment on the partial verdict, and that the cause must be reversed to the end that all the issues between the parties may be disposed of in the same trial.

Reversed.


text:
    Phillip MOORE v. GLENN INSURANCE, Inc.
    5-5437
    462 S. W. 2d 456
    Opinion delivered February 1, 1971

      Tiner ir Henry, for appellant.

      Henry S. Wilson, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Phillip Moore from a decree of the Poinsett County Chancery Court wherein Mo.ore sought rescission of a contract and refund of amounts paid for the purchase of stock in the Glenn Insurance Company. Moore alleged failure of consideration as grounds for rescission. Glenn Insurance denied failure of consideration and alleged that stock certificates were delivered to Moore; that Moore returned the certificates with directions that the certificates be canceled and reissued to GlenMore Corporation, and that this was done. The chancellor, in effect, awarded specific performance. On appeal to this court Moore relies on the following point for reversal:

“It was error to refuse to rescind the contract and order restitution.”

The record reveals that Phillip Moore was engaged, with his brothers Jake and Earl, in the business of farming under a family corporation designated “Moore Farms, Inc.” The Moore brothers owned equal shares in the corporation. Glenn Insurance, Inc. apparently is a family insurance corporation, with the two. brothers, Howard Glenn, Burl Glenn, and their father Paul Glenn as the incorporators and principal stock holders.

On December 1, 1966, Phillip purchased 6,000 shares of Glenn Insurance Company stock from that company and paid $6,000 for it. On June 29, 1967, he purchased 10,000 additional shares and executed a note for $10,000 to the First National Bank of Wynne in payment of the stock. The note was payable in three equal annual payments and the amount of the note was paid to Glenn Insurance Company for the stock. Phillip contends that the stock was never issued and delivered to him and that he is entitled to restitution of the amounts he paid therefor. He testified that he made numerous requests that stock certificates be issued to him but that no certificates were ever delivered to him. He says that his brother, Jake, transacted business for him on some occasions and that Jake and Howard Glenn (president of Glenn Ins., Inc.) told him that stock certificate No. 99 (for the 10,000 shares) was pledged at the bank as additional security for payment of the note. He says that when the first 1968 annual installment on the note fell due, he refused to pay it because he had not received his stock. He says that the payment was made by someone and that the 1969 payment was made by Moore Farms, Inc. and charged back to him.

Forrest Smith testified that he was assistant secretary for Glenn Insurance Company when Phillip Moore purchased the stock, and that Jake Moore was secretary. He says that certificate No. 2, for 2,000 shares, was issued to Phillip Moore on January 23, 1967; that certificate No. 72, for 2,000 shares, was issued to Phillip Moore on January 23, 1967; and that certificate No. 99, for 6,667 shares, was issued to Phillip Moore on January 27, 1967. He testified that certificates Nos. 2 and 72 were kept in Philip Moore’s personal file in the insurance company office; that these certificates were offered to Moore but he remarked “that if that was all they were just to keep them.” Mr. Smith testified that he left the company in September, 1968, and that sometime after that date certificates Nos. 2, 72 and 99 (offered in evidence) were marked “void” on their face and that they had never been endorsed by Phillip Moore or anyone else. He testified that such procedure was usually followed when a certificate was canceled and the stock reissued under a new or different numbered certificate.

Burl Glenn testified to about the same facts as did Smith. He testified that when Phillip Moore demanded his stock at a board meeting, the two certificates in his file were shown and offered to him, and that he was advised that the other certificate (No. 99) was at the bank and that he could get it the following morning; that Moore replied if that was not all of it he didn’t want it.

Jake Moore testified that he is associated with his brother, Phillip, in several business enterprises, including Moore Farms, Inc.; and that he was, until recently, associated with Glenn Insurance as secretary with How-are Glenn as president. We gather from Jake’s testimony that he and Howard Glenn, while secretary and president respectively of Glenn Insurance Company, formed a “holding” corporation named “GlenMore.” Each of them put $500 into the GlenMore corporate treasury and issued to themselves five shares each of GlenMore stock. This stock was apparently cancelled and reissued or transferred, five shares to Moore Farms, Inc. and five shares to “Insurance Service” (apparently a corporate entity owned by the Glenns). The record is not clear as to the date, but in any event, about 147,000 shares of Glenn Insurance Company stock was either canceled and reissued; or in some manner, not clear to Jake Moore and not clear to us, transferred to GlenMore, Inc.

It is clear from the testimony that the stock in Glenn Insurance Company represented by the certificates originally issued to Phillip Moore, was transferred to GlenMore, Inc. by the simple process of writing “void” on the certificates as issued, and apparently reissuing certificates for the same number of shares to GlenMore, Inc. Jake Moore testified that he discussed this procedure with his brothers, including Phillip, and that he thought they “were in for it,” until after the transactions were completed. He says that a suit is now pending between himself and Howard Glenn for the dissolution of GlenMore, Inc.; that Howard Glenn refuses to retransfer any of the Glenn Insurance Company stock out of GlenMore to the original holders unless and until his own original stock in Glenn Insurance Company is retransferred from GlenMore to him, and Jake Moore says that he is unwilling to make such transfer.

From the state of the record it is apparent that Jake Moore and Howard Glenn became lost, or certainly Jake became confused, in a maze of corporate transactions involving other people’s stock and money as well as their own. He is vague and indefinite in his testimony and Howard did not testify.. Their attorneys were apparently able to unravel the situation well enough to establish to the satisfaction of the chancellor, through leading questions directed to Jake Moore, what happened to the stock in Glenn Insurance Company purchased by Phillip Moore.

There is nothing in the record concerning the solvency of Glenn Insurance Company or whether all of its authorized stock has ever been issued. The record is clear that Phillip Moore purchased $16,000 worth of stock in Glenn Insurance Company, and that three certificates, No. 2 for 2,000 shares; No. 72 for 2,000 shares, and No. 99 for 6,667 shares were issued to him but were never delivered into his actual possession. It is clear that these certificates were marked void and canceled before they came into his possession, and it is apparent that other certificates for this amount of stock were issued to GlenMore. There is no evidence that Phillip Moore ever directed or authorized anyone to cancel, transfer or reissue these stock certificates to Glen-More. The nearest the record comes to revealing such evidence is the testimony of Jake Moore, that he thought his brothers were “in for it.” There is nothing in the record to distinguish between the acts of the various corporate entities and various acts of individuals; and there is nothing in the record to indicate that the officers of the corporate entities knew or recognized that there was or should be any difference.

The appellee insurance company set out in its answer that it stands ready and willing to reissue the stock at any time to Phillip Moore if directed to do so, and the chancellor decreed as follows:

“That the Defendant, Glenn Insurance, Inc., within five days issue and deliver to the Plaintiff, Phillip More, stock certificates showing ownership of the number of shares of capital stock as represented by said certificates numbers 2, 72 and 99.”

Certainly we are unable to say that the decree of the chancellor is against the preponderance of the evidence.

The decree is affirmed.