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

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. W. R. RICE, et ux
    75-138
    532 S.W. 2d 727
    Opinion delivered February 2, 1976
    [Rehearing denied March 8, 1976.]

      Thomas B. Keys and Kenneth R. Brock, for appellant.

      Dwain Hodge, William Wright, Hardin, Jesson & Dawson, H. Clay Robinson, Pearce, Robinson, McCord & Rotenberry, for appellees.
   John A. Fogleman, Justice.

In this case two actions are consolidated. In the first proceeding (1971), the appellant filed a petition in chancery court seeking to compel the appellees to consummate a contract for the sale of their land to the appellant. The appellee landowners answered denying appellant’s right to specific performance. They also filed a motion to transfer the case to the circuit court specifically asserting they were entitled to have a jury determine their damages for the acquisition of their lands by the appellant for highway purposes. The appellant resisted their motion to transfer. The chancellor denied the appellant’s petition for specific performance. Although it appears that neither party requested it, the chancellor ordered the property involved in the litigation condemned, granted the appellant immediate possession, and retained jurisdiction to assess damages for condemnation. The appellant, thereafter, proceeded with the construction of the highway.

About three years later, or in 1974, the appellant, through its contractor, had completed the highway across appellees’ lands except for the erection of a fence between appellees’ property and the highway. This fence would have affected appellees’ access. When the contractor attempted to complete the construction, appellees sought an injunction asserting that the 1971 decree was a nullity and that the condemnation provision in that decree was beyond the chancery court’s jurisdiction. The 1971 and 1974 cases were consolidated. The present chancellor issued a permanent injunction against the appellant and held that the 1971 decree was a nullity because the chancery court had no jurisdiction to condemn appellees’ lands and access rights. Appellant first contends that the chancellor erred in declaring its 1971 decree a nullity and dismissing the case.

Ark. Stat. Ann. § 76-532 (Repl. 1957) empowers the Arkansas State Highway Commission to condemn property. § 76-533 states with specificity the manner in which that authority is to be exercised. The commission exercises its power “by filing an appropriate petition and condemnation in the Circuit Court of the County in which the property sought to be taken is located,” then “it shall be the duty of the Circuit Court to impanel a jury of twelve (12) men, as in other civil cases, to ascertain the amount of compensation which the State Highway Department shall pay, and the matter shall proceed and be determined as in any other civil cases.” The legislature has authorized only the circuit courts to condemn property for the Arkansas State Highway Commission.

Appellant argues, however, that once the chancery court had jurisdiction, which it did in appellant’s action for specific performance in 1971, it has jurisdiction for all purposes and, therefore, had a right under the “clean up doctrine” to retain jurisdiction for eminent domain purposes and award damages for the taking of appellees’ land. There are cases where we have recognized that equity can retain jurisdiction for condemnation purposes under the “clean up doctrine.” For example are Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W. 2d 58; Burton v. Ward, Chancellor, 218 Ark. 253, 236 S.W. 2d 65; and Gregory v. Oklahoma Mississippi River, 223 Ark. 668, 267 S.W. 2d 953. In Gregory, suits were brought in the circuit court by the condemnor to condemn easements. However, the property owners requested the cause be transferred to chancery court. The owners later made an effort to have it transferred back to the circuit court. The request to remand was denied and on this issue, we said:

it is our View that equity was definitely selected [by the appellant landowners] as an appropriate forum and the appellants are not now entitled to lift the cause from the court they asserted to be the only one with sufficient jurisdiction to afford complete relief. **** [Wjhere equity jurisdiction exists in réspect of an essential element of the litigation and such jurisdiction is invoked, the process draws full power to determine all of the rights that are involved. (Emphasis ours.)

In the case at bar, the issue however is not whether the chancery court can award damages once it acquires jurisdiction but whether the chancery court had jurisdiction. The first action originated in chancery court when the appellant condemnor brought an action for specific performance. The appellee landowners then asked that the action be transferred to circuit court to give them their státutory right of a trial by jury for the award of their just compensation. The court, as indicated, after denying appellant’s motion for specific performance, held that the highway department needed the land, condemned it, and retained jurisdiction to determine damages. It does not appear that the appellee property owners or the appellant ever requested the chancery court at any time to Ijgar those aspects of the case. To the contrary, let it be remembered, they resisted it from the very beginning. The landowners neither selected not wanted equity jurisdiction. We are not favored with any citation where this court has held that the chancery court can use the “clean up doctrine” to assume jurisdiction in a condemnation case where the issue was not before the court, and the landowners, from the beginning, as here, resisted equity jurisdiction. We feel that it is the better rule of law to limit and not extend equity jurisdiction in condemnation cases. Cf. Spitzer v. Barnhill, 237 Ark. 525, 374 S.W. 2d 811. If the action of the court below in the first proceeding was sanctioned by this court, then a condemning authority could come into equity seeking some equitable relief and then by the “clean up doctrine” keep the unwilling landowner in equity, thereby depriving him of his right to a jury trial on the issue of just compensation. We do not feel this is the import of those cases, which have accorded jurisdiction, under the “clean up doctrine,” to equity on condemnation cases. As indicated, the legislature has given the landowner the right to have his damages ascertained by a jury of his peers only in a circuit court proceeding.

Therefore, we hold the chancery court lacked jurisdiction in this case to condemn the property and award damages. Since the court lacked jurisdiction in the first instance, the failure to appeal is of no consequence inasmuch as a lack of jurisdiction is open, as here, to collateral attack. Catlett v. Republican Party of Arkansas, 242 Ark. 283, 413 S.W. 2d 651.

Appellant next contends for reversal that the trial court erred in making the injunction issued in 1974 permanent. We conclude that this proceeding was prohibited as a suit against the state by Art. 5 § 20 of the Constitution of Arkansas and an attempt to accomplish indirectly what clearly could not have been done directly, just as much as was the prayer of the landowner for mandamus to require the highway department to institute condemnation proceedings in Bryant v. Arkansas State Highway Commission, 233 Ark. 41, 342 S.W. 2d 415.

The very fact that the decree held void was a nullity and that it was so treated by the landowners from the date of its entry is a critical background fact in evaluating the standing of the landowner to enjoin the highway department’s contractor from completing the construction. There can be no doubt that the landowners knew not only that the highway department had entered upon their land and done substantial construction, but that the highway department was engaged in the construction of a controlled access highway. The mere fact that the chancery court had no power to condemn the land in a specific performance suit does not eliminate the notice to the landowner of the purposes of the highway department disclosed in connection with tnat proceeding.

The complaint in the specific performance suit contained an allegation that the highway department was constructing a highway known as the Waldron Bypass, as job 4612, and that the lands to which the highway department sought a deed were needed for that purpose. The chancery court denied specific performance after a trial but made a finding that the part of the Rice tract described in the deed and rights of easement of access and ingress and egress to and from the lands remaining were needed for highway purposes. A plat supporting the highway department’s position and the proposed warranty deed were exhibited to the highway department’s complaint in the specific performance action. The decree in that action referred to the exceptions to the limitation of rights of ingress and egress shown on that plat.

The landowners sat idly by for 2 Vz years and watched construction without taking any steps whatever to protect their rights until the contractor undertook the very last part of the construction necessary to complete the job, i.e., building a fence to prevent ingress and egress to and from the Rice property at every point along the right-of-way boundary. The idea that the Rices did not know what the highway department was doing is unthinkable. To say the very least, they had knowledge of such facts sufficient to put them on inquiry and to charge them with knowledge of what that inquiry would unquestionably have disclosed. See Woods v. Wright, 254 Ark. 297, 493 S.W. 2d 129. There is not the slightest suggestion that there had been any deviation in the plans contemplated when the highway department filed the specific performance suit. As a matter of fact, at the very outset of the hearing which resulted in the decree now on appeal, while the parties were entering into certain stipulations, it was stated, in answer to an inquiry by the chancellor, that the plans for construction under job 4612 introduced by stipulation were the identical plans which were attached to the pleadings in the specific performance case, without any contradiction by the landowners.

Since the decision of Arkansas State Highway Commission v. Partain, 192 Ark. 127, 90 S.W. 2d 968, it has been clearly recognized that a landowner who acts before there has been a taking of his property or property rights may enjoin the taking until such time as just compensation has been paid or secured to him. In that case, however, it was stated:

The property owner has no cause of action which may be maintained to recover his damages against the State. Arkansas State Highway Commission v. Nelson Bros., [191 Ark. 629, 87 S.W. 2d 394]. If he permits an agency of the State, such as the Highway Commission to appropriate his property he is limited to such relief as the State may provide.

We were not long in applying this rule to other landowners affected by the same taking as that involved in Partain. In Arkansas State Highway Commission v. Kincannon, Judge, 193 Ark. 450, 100 S.W. 2d 969, we held that other landowners who suffered the same damage as Partain from the same highway construction could not intervene in the condemnation suit filed as a result of the decision in the Partain case, because the highway commission had taken no action in regard to condemnation of the property of the intervening landowners and their intervention was, in effect, a suit against the state. See also, Arkansas State Highway Commission v. Bush, 195 Ark. 920, 114 S.W. 2d 1061.

In Bryant v. Arkansas State Highway Commission, supra, we held that once there had been a taking, any action to coerce the state was a suit against the state. In sustaining a demurrer to a complaint for mandamus to require the highway department to file an eminent domain proceeding against the plaintiff landowners, we said:

***But where the landowner stood by and permitted the Commission to take, occupy, and damage his lands, he could not maintain an action against the Commission to recover his damages, for such a coercive proceeding would constitute a suit against the State. Federal Land Bank of St. Louis v. Arkansas State Highway Commission, 194 Ark. 616, 108 S.W. 2d 1077; Arkansas State Highway Commission v. Bush, 195 Ark. 920, 114 S.W. 2d 1061.

In Federal Land Bank of St. Louis v. Arkansas State Highway Commission, supra, the landowner sought to enjoin further trespass upon its lands and use and occupancy of a road, bridge, and viaduct across them, on the basis that, after an original taking for the construction of the bridge and its approaches, the highway commission, without compensating the landowner, again entered upon the land, dug out the remaining tillable land and constructed another and higher dump, completely destroying the value of the land. A dfemurrer to the complaint was sustained on the basis that the action was one against the state and that, in effect, the allegations of the complaint showed that the landowner stood by and permitted the state to appropriate, occupy and damage its land, in the second instance, without making compensation. We said:

The instant suit is one to coerce the State by taking from the possession of the State a portion of one of its highways. Under the allegations of the complaint the State has wrongfully appropriated appellant’s land, and the obligation to pay abides and in morals and good conscience should be discharged, but the State cannot be compelled to discharge this obligation through the coercion of being deprived of a portion of its highway. **** Appellant had, therefore, the right to prohibit the Highway Commission, or any other agency of government, from taking its property until compensation had been paid. It was so expressly held in the case of Arkansas State Highway Commission v. Partain, 192 Ark. 127, 90 S.W. 2d 968. But, if the property owner fails to assert this right and permits the State to take and occupy his property before compensating him, he may not thereafter coerce compensation by retaking the property from the possession of the State. He must thereafter trust the State to deal fairly with its citizens. He then has no other remedy.

Arkansas State Highway Commission v. Flake, 254 Ark. 624, 495 S.W. 2d 855, is analogous to the case before us. It applies and reinforces the previous decisions treated above. In Flake, the emphasis was upon the landowner’s standing by while substantial work was done. It was there pointed out that Miller County v. Beasley, 203 Ark. 370, 156 S.W. 2d 791, was an analogous case. In Miller where county court orders were involved and no notice of taking required, we held that an entry was necessary to complete the taking. In speaking of entry, we said:

***Such entry, being physical and visible, affords the proprietor an opportunity to exact payment or to require a guaranteeing deposit. If there is neither payment nor deposit, resort may be had to injunction; but should the proprietor stand by and permit the land to be occupied and the improvement to proceed until substantial road work has been done, he is then relegated to the county’s credit. [Emphasis ours.]

The only difference in that case and the others cited is that in one the landowner is relegated to the county’s credit and in the other to the state’s fairness in dealing with its citizens.

Our holding with reference to entry is in accord with the general rule. “Where an entry is made upon property by the condemnor and an act committed which indicates an intent to appropriate the property the taking is complete.” 2 Nichols on Eminent Domain (3rd Ed.) 6-17, § 6.1 [2]. (Miller County v. Beasley, supra, is one of many authorities cited in support.) The author makes this further statement on Page 6-44 in § 6.21:

Where an entity, vested with the power of eminent domain, enters into actual possession of land necessary for its purposes, with or without the consent of the owner, and the latter remains inactive while valuable improvements are being constructed thereon, the use of which require a continued use of the land, the appropriation is treated as equivalent to title by appropriation. It is open to some doubt whether one can be constitutionally deprived of his property without the recording of some definite statement of the extent of the taking; certainly he can stand in no worse position because the taking is in pais. Such taking is frequently referred to a “common law” taking or a “de facto” taking.

Here the owner clearly stood by until the taking was complete, even though the construction was not, so as to bar injunctive relief. This case cannot be equated with such cases as Arkansas State Highway Commission v. Coffelt, 257 Ark. 770, 520 S.W. 2d 294 and Arkansas State Highway Commission v. Union Planters National Bank, 231 Ark. 907, 333 S.W. 2d 904, where the taking of access rights and rights of ingress and egress could not have been contemplated by the landowner at the time of the original taking. Here the landowner was clearly notified of the contemplated extent of the taking at the time of entry by the highway department and its contractors. It was the very thing that gave rise to the specific performance suit.

The decree is affirmed insofar as the holding that the 1971 decree was a nullity but reversed as to the permanent injunction and the injunction suit is dismissed.

The Chief Justice dissents as to the affirmance and concurs in the reversal. Justices Byrd, Holt and Roy concur in the affirmance and dissent as to the reversal.

Carleton Harris, Chief Justice,

dissenting in part, concurring in part. Referring to Scott Chancery Case No. 4612, in my view, the chancery court, under the “clean-up” doctrine, had jurisdiction. In the case of Gregory v. Oklahoma Mississippi River Products Lines, Inc., 223 Ark. 668, 267 W. 2d 953, appellee filed two suits in Woodruff Circuit Court, seeking to condemn easements, the causes then being consolidated. The appellant landowner moved to transfer to chancery court, contending that too much land was being taken. This was done. The trial court held that the corporation had the right to condemn easements, did condemn, and the landowner appealed. This court held that equity was an appropriate forum and the court approached this problem as follows:

“The appeal presents two problems: (a) Was the Chancery Court’s order permitting entry appealable? (b) Did equity have jurisdiction to decree complete relief?
“We have consistently held that where private property is to be taken, any public agency seeking to exercise the high prerogative of eminent domain must bring itself clearly within the law’s contemplation. A corollary is that no more land may be taken than the public need requires.
“Another rule equally definite is that where equity jurisdiction exists in respect of an essential element of litigation and such jurisdiction is invoked, the process draws full power to determine all of the rights that are involved. [My emphasis]. Selle v. Fayetteville, 207 Ark. 966, 184 S.W. 2d 58. •**
“The evidence convincingly shows that the company’s purpose is to operate as a public service agency. It has no production of its own, but must transport commodities without discrimination. This being true, the Chancellor’s finding that the easements were necessary will not be disturbed.
“But inasmuch as there has been no judgment fixing the damages (a judgment Chancery has a right to render) the appeals are premature. The consolidated causes will therefore be remanded with directions to proceed in a manner not inconsistent with this opinion, t!ie sole question being the amount of damages.”

See also Burton v. Ward, Chancellor, 218 Ark. 253, 236 S.W. 2d 65, consolidated with Beedeville Special Dist. § 28 v. Bone, Judge.

Let it be noted that Gregory was not simply a matter of fixing damages, but rather the chancery court actually entered a condemnation order; in fact, as set out, the case was remanded back to chancery for the sole purpose of fixing damages.

This court says that in Case No. 4612, the Scott County Chancery Court had no jurisdiction to condemn, although I take it from the opinion that if the landowner had invoked the aid of the chancery court on equitable grounds, this court would hold differently. This presents, to me, an enigma, for if there was no jurisdiction of the subject matter, jurisdiction could not be conferred by consent or otherwise — “period. ” In other words, if a chancery court has no jurisdiction, as here, under the “clean-up” doctrine, to enter an order of condemnation, I cannot understand how it suddenly acquires jurisdiction of the subject matter (to condemn) simply because the landowner invokes the aid of that court.

Be that as it may, it is apparent that I consider that the chancery court, having originally properly acquired jurisdiction on the issue of specific performance, had jurisdiction to condemn and to determine the amount of damages, and under my view, the present decree should be reversed and the cause remanded to chancery court.

Referring now to Scott Chancery Case No. E7417, the injunction case, I concur in the result. Of course, since I feel that the chancery court, under the “clean-up” doctrine, had jurisdiction, it is my view that, if dissatisfied with the fact that the chancery court would determine damages, the Rices should have filed an appeal.

Admittedly, the decree under discussion (wherein the chancery court condemned the property) was entered in 1971. No appeal was ever taken by the landowner. To the contrary, appellees have sat by and permitted the highway department and its contractors to construct a new modern highway facility without any complaint; in fact, the highway has been completed across appellees’ lands except for the erection of a fence between their property and the highway. Then, at the late date of 1974, a collateral attack was made upon the 1971 decree.

It is apparent, that in my opinion, the 1971 decree not having been appealed from, and the court having jurisdiction, the present effort for injunctive relief comes too late, and I accordingly am of the view that the injunction was improperly granted.

Frank Holt, Justice, dissenting in part. I concur in that part of the majority opinion which holds that the chancery court lacked jurisdiction to condemn appellees’ property and award damages. Consequently, its 1971 decree was a nullity in that respect. However, I cannot agree it was error for the chancellor to issue a permanent injunction in 1974 in a related proceeding. The majority opinion recognizes that if a landowner acts before the taking of his property rights, he has the right to enjoin the taking until such time as just compensation is paid or secured to him. Arkansas State Highway Comm. v. Partain, 192 Ark. 127, 103 S.W. 2d 53 (1936). There we also said that if the landowner permits the highway department to appropriate his property, then he is limited to whatever relief the state provides. The rationale is that the landowner cannot sit idly by without any overt action and then institigate the litigation. This would be a coercive action and constitute a suit against the state. Here, however, the condemning authority instigated the litigation in 1971. The landowners, in response, sought and were denied adjudication of their property rights in the proper forum. The landowners were denied that right by a decree which today we hold a nullity. Manifestly, they were entitled, as they then asserted, to the right they sought. In the circumstances, I cannot say the appellee landowners sat idly by within the meaning of the cases cited in the majority opinion. Those cases are factually inapposite.

The appellees in their brief assert, and properly so, that “the core of this controversy is” about the taking of their access rights. As indicated, the 1971 litigation was instituted by the highway department when the appellee landowners refused to sign a deed giving the highway department controlled access rights to their property. The landowners had previously signed a contract to sell 2.24 acres to it. That agreement did not include controlled access rights. In the 1971 litigation the chancellor agreed that the landowners were not required under their agreement to sign a deed which conveyed their access rights to the highway department. It is undisputed that following this decree and during construction of the highway the appellees were exercising their rights of access. It is further undisputed that the landowners acted promptly whenever these rights were threatened by appellant through its contractor. From the very beginning and here, the appellee landowners have sought to have just compensation for their property rights determined by a jury in the circuit court. The appellant highway commission maintains the proper forum is a court of equity where the department initiated the litigation. Today’s opinion precludes either forum to the parties. No doubt, it will come as quite a surprise to the landowners and the condemning authority since neither has sought the claims commission as being the proper forum.

Again, I emphasize that the parent litigation was initiated by the state’s authority. It is, therefore, most difficult for me to perceive how the injunctive litigation which followed the state’s action can be construed as a coercive action against the state. I would affirm the decree.

Byrd and Roy, JJ., join in the dissent.

      Of course, had my view prevailed in Case No. 4612, the case would be remanded to the Scott County Chancery Court for determination of damages.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Nicholas W. RIEGLER Jr. v. Mary Miller RIEGLER
    75-180
    532 S.W. 2d 734
    Opinion delivered February 2, 1976
    [Rehearing denied March 8, 1976.]

      Howell, Price, Howell & Barron, for appellant.

      Stubblefield & Matthews, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Nicholas W. Riegler, Jr. from a chancery court order in which he contends that the chancellor erred in awarding child support payments and college education payments to an adult child where there was no contract. The appellee, Mary Miller Riegler, has cross-appealed contending that the chancellor erred in refusing to increase the amount of alimony and in ordering its termination after June 8, 1975, and in failing to increase the monthly child support. She also contends that the appellant should be required to pay her attorney’s fees in both the trial court and on appeal.

The parties to this proceeding were divorced in 1966 and this is the fourth appeal to this court growing out of the divorce litigation. See Riegler v. Riegler, 243 Ark. 113, 419 S.W. 2d 311 (1967); Riegler v. Riegler, 244 Ark. 483, 426 S.W. 2d 789 (1968); and Riegler v. Riegler, 246 Ark. 434, 438 S.W. 2d 468 (1969). The case reported in 244 Ark., supra, was an appeal from a circuit court judgment, but the other two appeals and the present one were from decrees of the chancery court presided over by the same chancellor who has had the parties before him from time to time over the past decade.

The parties had five daughters when the divorce was granted in 1966. Four of the daughters at that time were minors under 18 years of age. Their custody was awarded to the appellee Mrs. Riegler and the appellant was ordered to pay to the appellee alimony and support money for the four minor children. During the intervening years since the divorce three of the four minor children went to live with the appellant and have attained their majority. The youngest daughter remained with the appellee and also reached her majority on October 31, 1974.

The appellee was being paid $350 per month alimony and $250 per month child support when, on October 11, 1974, the appellant filed a petition to terminate the child support upon the youngest child becoming 18 years of age and to terminate the alimony payments because of change in conditions. The appellee filed a counter-petition praying for an increase in both alimony and child support. The chancellor ordered the child support continued at $250 per month until the daughter finished high school and entered college, at which time the child support payments would be increased to $350 per month until graduation from college or further orders of the court. Alimony payments were terminated as of June 8, 1975.

A part of what we said when this matter was first before us in 1967 (Riegler v. Riegler, 243 Ark. 113, 419 S.W. 2d 311) is pertinent to the decision we reach in the matter now. In the 1967 opinion we said:

“The matter of the children’s college education was deferred for a later decision. What we have to say in Part V of this opinion may be pertinent if that question comes up in the future.
* # *
V. The decree for separate maintenance awarded Mrs. Riegler $600 a month ‘for maintenance of herself and the four children now in her custody.’ In the interval between that decree and the one now being reviewed Mrs. Riegler spent a total of $3,187.68 for college educational expenses of her oldest daughter, who was of age when the separate maintenance decree was entered, and for similar expenses of her next daughter, who reached 18 before the rendition of the later decree. The chancellor directed Dr. Riegler to repay $2,749.00 of those outlays.
That direction was an error. Ordinarily a mother who spends more for child support than the court has allowed her cannot recover the excess, because an award of child support ought not be increased retroactively. She should apply in advance for a larger allowance. Gant v. Gant, 209 Ark. 576, 191 S.W. 2d 596 (1946). On the other hand, a father may by contract bind himself to go beyond the decree in supporting a daughter who has reached her majority. Worthington v. Worthington, 207 Ark. 185, 179 S.W. 2d 648 (1944). Mrs. Riegler insists that the proof establishes such a contract on Dr. Riegler’s part.
We do not so find. Dr. Riegler testified as most fathers would, that he wanted all his children to have a college education. We do not read his testimony, however, as embodying an agreement to pay the expenses now at issue. To the contrary, he said that if he paid for his daughters’ higher education he expected them to treat him with the respect due a father and to counsel with him about their college training. He complained, among other things, that his oldest daughter had told him to go to hell and had declared that the only thing he had to do with her education was to give her the money to spend as she chose. On the proof as a whole Mrs. Riegler did not sustain the burden of proving an agreement for support over and above the allowance made by the separate maintenance decree.”

Miss Katherine Elizabeth Riegler, the young lady involved in the case at bar, testified that she lives with her mother in Memphis, Tennessee, in a condominium her mother is purchasing. She said she was in the twelfth grade in high school; that she has a 1973 model Chevelle Malibu automobile which she uses for transportation to and from school and to and from her part-time employment two days per week at about $2.25 an hour. She said her earnings at part-time work amounted to about $20 per week. She testified that she was 18 years of age on October 31, 1974, and would graduate from high school in May, 1975. She said she planned to attend the University of Tennessee at Knoxville where she plans to major in accounting with a minor in computer science. She said she had a savings account of $140, but has no other money with which to defray her college expenses except what her father has given her. She testified that she had made an estimate of what her first year expenses in college would amount to and that it amounted to $526.67 per month. She said this estimate consisted of $158.33 per month for room, board and fees, and $166.67 per month for clothes. She said she would need $30 per month for gasoline, $60 per month for spending money and $66.67 per month for sorority expenses. She said the maintenance of her automobile would amount to $25 per month. She said she respected and admired her father greatly and that she would like for him to pay her expenses in college. She said she would be willing to counsel with her father about the things she would use the money for if he would pay her expenses. She said that if her father does not finance her college education, she will have to get a student loan or maybe go to school part-time and try to get on a student work program, or else she will have to stay in Memphis and go to a technical school for two years and see if she can get a job that way.

On cross-examination Miss Riegler testified that she purchased her Malibu automobile June 13, 1973, and did not discuss the purchase with her father, for the reason that he was not paying for it. She said she had decided to attend the University of Tennessee because a number of her friends were attending that university, and that she had not discussed those plans with her father. She said she simply had not had time to discuss her plans with her father; that he had his medical practice to attend to and she was not in town enough to discuss her plans with him.

“Q. You went ahead and made your plans without even finding out if he wanted to send you to the University of Tennessee?
A. It seems to me it would be up to my choice where I would like to go to college.”

Miss Riegler said she had a savings account at the time her mother and father were divorced, but that she drew it all out. She said that part of it went toward the payment of her automobile but that she couldn’t tell exactly how much. She said she was drawing out quite a bit from her savings account and supposed she applied $600 or $700 of it on her automobile. She said she did not know how she got her savings account; that she just “had it put in there.” She testified on cross-examination that one dress for college can run anywhere from $25 to $50 each; that she is not attempting to force her father to pay $166.67 per month for her clothes, but that she guesses she is asking the court to make him do so. She then testified as follows:

“Q. Can you tel! me again where you got this figure of $166.67? Do you spend that much money for clothing now?
A. Roughly, yes.
Q. What do you pay for your dresses ?
A. $25.00 to $50.00 on some dresses.
* * #
Q. Have you discussed with your father whether or not he wanted to send you to school in $50.00 dresses?
A. No.
Q. Don’t you think it would be a proper thing to take up with him?
A. I don’t mow. It seems like I could buy whatever I wanted to, you know, in clothing, which is whether it was $50.00 to $1,000.00 dress, if I wanted to wear it.
Q. You think that would be up to you rather than your father?
A. It would be up to both of us, but it would be more of my choice of what I like to wear.
Q. Now, have you discussed with your father whether or not he thinks you should have an automobile at the University of Tennessee?
A. No.
Q. Don’t you think that is a proper item for him to make some decisions about?
A. Not really.”

On redirect examination Katherine Elizabeth said her father was busy and out of town quite a bit and it was rather difficult for her to get in touch with him; that if he furnished her expenses while in college she would be willing to discuss matters with him and let him know exactly how she spent the money. She said she and her father had never corresponded by mail; that she had started to write letters to him several times but she didn’t know what to say to him. She said she just simply did not know her father.

It is obvious from the overall record that the appellant and his youngest daughter have become more or less estranged over the past nine years. While the daughter said she would be willing to discuss college with her father and would be willing to counsel with him about what she used the money for if he would support her while attending college, she testified that she had already arranged to attend the University of Tennessee at Knoxville and had already been accepted and had arranged for a place to stay while attending the university, and that if her father did not continue to support her it would be necessary to obtain a student loan or part-time work. She said it seemed to her that she could buy whatever she wanted to in the way of clothing whether a dress cost $50 or $1,000, if she wanted to wear it; that she did not really think an automobile, while attending the university, would be a proper item for her father to make some decision on.

Pertaining to his daughter’s continued college education, the appellant testified in part as follows:

“Q. Well, suppose that Kathy right now would come up to you and say, ‘Father, I want and need your help in going to college.’ What would be your attitude about it?
A. My attitude would be to accept her as a daughter and then we would begin to work out what would have to be done to accomplish the means.
Q. What do you mean by, accepting her as a daughter?
A. I have always accepted her as a daughter. I would take her in as I did any of my daughters. I would discuss this with her and we would decide and she if she can follow what my requirements would be and if I could follow what her requirements are.
Q. By taking her in, do you mean you would require her to come and live in your home?
A. I did not say that.
Q. What do you mean by taking her in? You said, ‘I would take her in.’ What did you mean by that?
A. I would sit down and discuss the thing with her and follow through with her and do anything I could to assist my daughter.”

Dr. Riegler testified that he was willing to pay Kathy’s expenses until she graduated from high school but was not agreeable to paying her expenses in college or contribute further to her unless she changed her attitude toward discussing matters with him.

The appellant in the case at bar gave his three older daughters a college education after they attained their majority, but they discussed with him the college of their choice and they complied with reasonable restrictions he prescribed for them while attending college. The question in the case at bar as to the youngest daughter is not whether appellant is morally obligated to assist her financially while attending college, but the question is whether he is legally obligated to do so under the evidence in this case. We approved the chancellor’s “slight extension of the appellant’s minimum duty to support the older child” in Matthews v. Matthews, 245 Ark. 1, 430 S.W. 2d 864, but that duty has not been extended to an entire college education in Arkansas under such facts as appear of record in this case. The chancellor found, as recited in paragraph three of his order, as follows:

“(3) That the youngest daughter of the parties reached her 18th birthday on October 31, 1974; that she is without physical or mental infirmities, and is not an abnormal child; that there has been no contract entered into on the part of defendant to pay for the college education expenses of his said daughter who is now a senior in high school, making good grades, due to graduate at the end of the current school year in May or June, 1975, desires and has definite plans to enter college upon graduating from high school and to continue and complete her college education without interruption.”

The chancellor further set out his reasoning in language as follows:

“I was referring to Jerry v. Jerry, 235 Ark. Well, of course, as you all know, years ago, fifty or more years ago, it was not considered of much importance to have a college education or a degree, but in recent years it is much more important. A child can hardly get started or even apply for a job without some college education. So, this is not clear here. It says in other cases, in 254 Ark. says, if the father is financially able the child is entitled to such support as will sustain the manner and type of living to which it is accustomed. It doesn’t say whether before or after it reaches a certain age, its majority. In addition to the actual needs of the child, the father has the legal duty to give the child those advantages which are reasonable contributions, etc., which seems to indicate that the child should have at least some college education.”

The case to which the chancellor was referring in 254 Ark. appears to have been Sain v. Smith, 254 Ark. 720, 495 S.W. 2d 865 (1973), or Thompson v. Thompson, 254 Ark. 881, 496 S.W. 2d 425 (1973). In Sain the child was 16 years of age and in Thompson the appellant-father stopped payment without court order and we approved the award of arrears which accumulated after one child married and another reached majority.

In Jerry v. Jerry, 235 Ark. 589, 361 S.W. 2d 92 (1962), the divorced parents of three minor children agreed upon $200 per month for the maintenance and education of the children. When the oldest child, a daughter, became 18, she had finished high school and desired to enter college. The father stopped one-third of the payment when she became 18. The chancellor held he was no longer obligated but continued payment for the other two at $200 per month. The chancellor ordered the payment of arrears for the support of the child who had reached her majority. In affirming the decree this court said:

“. . . Ark. Stats. § 57-103 makes it plain that ‘females of the age of eighteen (18) years shall be considered of full age for all purposes. . . . In Missouri Pacific Railroad Company et al v. Foreman, 196 Ark. 636, 119 S.W. 2d 747 (at page 651 of the Arkansas Reports) we said: ‘Ordinarily, there is no legal obligation on the part of a parent to contribute to the maintenance and support of his children after they become of age.’ A significant word in the above quotation is the word ‘ordinarily,’ showing that the Court realized there might be circumstances which could impose on a parent the duty to support a child after such child became of age. This fact was expressly recognized in Upchurch v. Upchurch, 196 Ark. 324, 117 S.W. 2d 339 (page 327 of the Arkansas Reports) where it was stated: ‘It is, of course, the duty of the father to contribute to the support of his children even after they are of age if the circumstances are such as to make it necessary.’ This court has uniformly held, based on Ark. Stats. § 34-1213, that the amount allowed for child support is subject to modification when required by changed conditions. See: Watnick v. Bookman, 209 Ark. 696, 192 S.W. 2d 131.”

In Petty v. Petty, 252 Ark. 1032, 482 S.W. 2d 119 (1972), this court reversed a chancellor’s decree terminating child support for an 18 year old child. But in that case we pointed out that the girl was “disabled and unable to earn a livelihood.” In Matthews v. Matthews, supra, we affirmed a chancellor’s order continuing child support for an 18 year old girl until she finished high school. The “circumstances of necessity” to justify the order were pointed out as follows:

“Had the chancellor terminated the appellant’s support payments for Dinah Gale as soon as she became of age, it may be assumed, as far as this record shows, that she would have been forced to drop out of high school to support herself, there being no obligation on the part of either of her parents for her continued maintenance. We know, by common knowledge, that a high school diploma is of almost inestimable value to a young person who seeks to make his or her own living. The appellant, as a result of having taken no appeal from the supplementary October decree and as a result of having offered no new testimony at the hearing with respect to the modification of that decree, is not in a position to contend that he has suffered an undue hardship by having to support his daughter during the six months between her coming of age and her graduation from high school. Upon the facts of this case — and our decision of course is limited to those facts — we sustain the chancellor’s slight extension of the appellant’s minimum duty to support the older child.”

The appellant’s daughter involved in the case at bar has reached her majority and is not physically or mentally handicapped. We conclude, on trial de novo, that the appellant should have been relieved of the legal obligation to support his youngest daughter after she attained her majority and graduated from high school.

Mrs. Riegler, the appellee and cross-appellant, testified that she now lives in Memphis, Tennessee, and that her daughter Katherine lives with her. She said that they live in a condominium she has purchased in Memphis. She said that the alimony of $350 per month was fixed by court order on July 5, 1968, and the child support for Katherine in the amount of $250 was fixed in May, 1969. She said there had been some pretty drastic changes since July, 1968, and May, 1969. She said one of the changes was the increased cost of clothing, feeding and maintaining a young adult as compared to a teenage child. She said that she purchased a condominium in Memphis in August, 1973, and that when she first went to Memphis, Katherine required special clothing at Laus Anne, a private school where she was enrolled. She said she herself went to school and put herself through the University of Arkansas at Little Rock. She said she applied for admission to the graduate school of social work but was rejected; that she applied to the University of Tennessee at the Memphis branch and was accepted, and that was the reason she moved to Memphis. She said that since the aforesaid dates she has had to drop her country club membership in Little Rock; that she does not still pay dues but that the membership has not been sold and she has received no money from it. She said that during her marriage she had a fulltime maid and a part-time maid and that she can no longer afford a maid. She said she used to be able to go to a beauty shop on a weekly basis but that she can no longer afford to do so. She said she had sold some of her stock, and that the stock she inherited from her aunt, which was valued at $113,220.68 in 1969, is now only worth $27,047.50. She said since selling some of the stock she does not receive the dividends that she did receive. She said she only has about $15 in savings and that the $6,900 she had in savings in 1968 or 1969 had gone for living expenses. She said on May 23, 1972, she sold 25 shares of General Telephone & Electronics and received $731; that on that same date she sold 100 shares of General Telephone & Electronics and received $2,938; and also sold 200 shares of Portland General Electric and received $4,275. She said that on November 17, 1972, she sold 50 shares of General Telephone & Electronics and received $1,506. She said on the same date she sold 200 shares of Portland General Electric from $4,374, and in April, 1972, she sold 106 shares of Bullock Fund for $1,738.40; that on August 8, 1973, she sold 100 shares of J. P. Morgan for $6,355; that on December 27, 1973, she sold an additional 100 shares of J. P. Morgan for $6,584.80, and on December 6, 1974, she sold an additional 50 shares for $2,640.

In answer to interrogatories Mrs. Riegler said her income from her employment in 1972 totaled $9,547; that in 1973 it amounted to $8,936 and for 1974 it amounted to $9,-435.16.

Mrs. Riegler testified on direct examination that in 1974 it took $22,581.76 for her and Katherine’s living expenses for that year. She said their living expenses for 1973 amounted to $21,021.69. She said she is now employed as a social worker at the Les Passees Rehabilitation Center in Memphis at $528 and some cents per month. She said that her work required her to be well dressed which would entail additional expenses in connection with her job. She said her standard of living is lower than it had been. She said she was no longer free to go into a store and buy any dress she saw at any price, and that money is simply no longer available to take vacations.

Mrs. Riegler testified as to her income and expenses partially from her income tax returns and on cross-examination she testified that under her Schedule D of income tax returns for 1973, she showed a net gain on the sale of J. P. Morgan stock of $8,846; that she showed on the same returns a long-term capital gain on these stocks of $8,800. Mrs. Riegler testified that she deposited the money from her sales of stock in the Pulaski Heights Bank, but on cross-examination she was at a loss to explain why her bank records did not show the deposits.

It is apparent from the overall record that Mrs. Riegler still has income in her own right from investments she had made; that she still has a substantial interest in trust property of considerable value and which is now in litigation; that the appellant has been paying alimony to the appellee as directed by the court over the past nine years, during which time the appellee has attended college and obtained a master’s degree in social work; that she is now employed in social work where she is capable of earning, and actually is earning, $9,574 per year. Consequently, we are unable to say that the chancellor erred in ordering alimony terminated after June 8, 1975, or that the chancellor’s order was against the preponderance of the evidence.

The appellee’s attorneys have been paid substantial fees over the history of this litigation and we are unable to say that the chancellor abused his discretion in refusing to award attorney’s fees against the appellant in this case.

The decree is reversed as to the $350 per month child support until graduation from college and in all other respects the decree is affirmed.

Reversed in part on appeal and affirmed on cross-appeal.

Byrd, J., not participating.


author: Conley Byrd, Justice.

text:
    WESTERN ARKANSAS TELEPHONE COMPANY v. Raymond COTTON et al
    75-228
    532 S.W. 2d 424
    Opinion delivered February 2, 1976
    ¡Rehearing denied March 8, 1976.]

      Wright, Lindsey & Jennings, for appellant.

      Hixson & Cleveland, for appellee.
   Conley Byrd, Justice.

Appellee Raymond Cotton, an employee of Darrell Hutcherson, d/b/a Hutcherson’s Tree Service, was injured in Waldron, Arkansas, on July 28, 1970, while taking down some outdated telephone cables. To recover for Cotton’s damages, Cotton and Hutcherson’s Workmen’s Compensation carrier, Employers Insurance of Wausau, brought an action against appellant Western Arkansas Telephone Company on the theory that appellant was negligent in selecting Hutcherson as a contractor to remove the telephone cables. The jury found the issues in favor of Cotton, et a!, and appellant appeals contending that it was entitled to a directed verdict.

Some of the proof is disputed, but when considered in the light most favorable to appellees, as we must on appeal, it shows that prior to July 28, 1970, Hutcherson had told his foreman, Kenneth Lewis, that he had had no experience in removing telephone cables.

The undisputed proof is that Hutcherson had farmed some 20 to 25 years before 1965. From 1965 to 1968 he worked in the construction industry driving a dirt mover. In 1968 he contacted an official of appellant whom he had known from 1946 and who had married one of Hutcherson’s relatives. As a result of that contact Hutcherson got a contract to trim the trees from appellant’s telephone right-of-ways. In early 1970 Hutcherson entered into an oral contract with appellant to take down some outdated telephone cables at Mountainburg at a rate of $20 per hour for a four-man crew. The Mountainburg job lasted four months and was completed satisfactorily to appellant. The second contract with appellant to take down and remove an outdated telephone system was at Waldron, Arkansas. That job was also based on an oral contract of $20 per hour per four-man crew and had been in progress for approximately two months before Cotton was injured. In selecting Hutcherson to remove telephone cables, appellant made no inquiries of Hutcherson nor any outside source to determine if Hutcherson was competent to perform the service.

A. O. Croxton, a retired Southwestern Bell employee, testified, without contradiction, that the type of work in which Hutcherson was involved required special knowledge and skill.

Hutcherson testified that he had four crews on the Waldron job and that three or four of the people he had hired had previous telephone company experience. This testimony was corroborated by his foreman, Kenneth Lewis, who testified on behalf of appellees.

Kenneth Lewis testified that Ray Merchants, appellant’s construction foreman, and Hutcherson gave him his instructions when he began the Waldron job. Mr. Merchants showed the crew what they had to do and told them how to do it. They successfully wrecked the telephone cables until July 28, 1970, when Hutcherson changed the procedure for removing the lead spliced cables. When the cables were cut on July 28, 1970, in the manner that Hutcherson had instructed, the pole that Cotton had climbed snapped causing Cotton’s injuries.

Our law with respect to the liability of a principal for the alleged negligent selection of an independent contractor is stated in Ozan Lumber Co. v. McNeely, 214 Ark. 657, 217 S.W. 2d 341 (1949), in this language:

“Although there is some authority to the contrary, it has generally been held that the duty rests on the employer to select a skilled and competent contractor, and the employer is liable to third persons for the negligent or wrongful acts of an independent contractor employed by him where he knew his character for negligence, recklessness, or incompetency at the time he employed him, or where the employer was negligent in failing to exercise reasonable care in the selection of a competent contractor. However, where the independent contractor is in fact a competent person to perform the work, it is of no consequence whether or not due care was used in the selection. The fact that a contractor is negligent in respect of the work in question raises no presumption that the employer was guilty of negligence in employing him.”

As can be seen from the foregoing statement, the fact that Hutcherson was negligent with respect to the work in question does not raise a presumption that Western Arkansas Telephone was negligent in employing him.

The cases also hold that the fact that a principal knows that in independent contractor is personally ignorant or untrained in the actual performance of the work does not, of itself, make the owner liable to the contractor’s employees. Many successful contractors who are thoroughly competent to estimate in advance the costs of construction are often ignorant of many of the construction operations. Such persons either sublet such work to other persons or employ a competent foreman. See Schip v. Pabst Brewing Co., 64 Minn. 22, 66 N.W. 3 (1896).

The cases also hold that an employer who has had previous successful experience with an independent contractor in the performance of his work cannot be held liable on the theory of the negligent selection of the contractor, Kueckel v. Ryder, 54 App. Div. 252, 66 N.Y.S. 522 (1900).

Thus, since the uncontradicted evidence shows that Hutcherson employed a competent and experienced foreman and that he had successfully completed other work for the appellant in a satisfactory manner and without incident, we hold that there was no substantial evidence to warrant the submission of this case to the jury on the theory that appellant was negligent in selecting Hutcherson as its contractor.

We note that there is a conflict among the authorities whether an employee of an independent contractor can maintain an action against his employer’s principal, see 41 Am. Jur. 2d Independent Contractors 26 (1968) and Annot., 44 ALR 932, 976 (1924), but since that issue was not raised in the trial court, we have left that issue for future determination.

Appellees also suggest that appellant was negligent in selecting Hutcherson in violation of the contractor’s licensing statute, Ark. Stat. Ann. § 71-701 through § 71-724 (Supp. 1975). We find no merit in this contention because the contractor’s licensing statute is not applicable to the contract here which involves only an hourly rate of pay and not a gross sum.

Reversed and dismissed.

Fogleman, J., dissents.


author: Frank Holt, Justice.

text:
    James JOHNSON v. STATE of Arkansas
    CR 75-182
    532 S.W. 2d 1
    Opinion delivered February 2, 1976

      John W. Achor, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by the court, sitting as a jury, of armed robbery and sentenced to 21 years pursuant to the provisions of the Habitual Criminal Act, Ark. Stat. Ann. § 43-2328 (Rep!. 1964). An additional two year sentence for the use of a firearm was also imposed. Appellant’s sole contention for reversal is that the prosecuting attorney improperly presented evidence that appellant had a gun in his possession when he was arrested. Appellant relies on Botany v. State, 258 Ark. 866, 529 S.W. 2d 149 (1975). There we said “that [the] weapon had nothing to do with the offense oq trial.” In the case at bar, however, the victim identified the appellant and testified that appellant used a .22 pistol during the robbery. One of the arresting officers testified that when he arrested the appellant he had a .22 pistol in his possession. We cannot say, in view of this evidence, that the weapon had nothing to do with the offense of robbery. Therefore, Botany is not controlling.

Furthermore, appellant did not object to the testimony that he had a gun in his possession when arrested. In the absence of an objection we are precluded from considering appellant’s contention for the first time on appeal. Ford v. State, 253 Ark. 5, 484 S.W. 2d 90 (1972); and Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974).

Affirmed.


author: Elsijane T. Roy, Justice.

text:
    Wayne STOWE d/b/a UNION TRUCK STOP v. Robert C. BOWLIN
    75-225
    531 S.W. 2d 955
    Opinion delivered February 2, 1976

      Smith, Williams, Friday, Eldredge & Clark, by: Overton S. Anderson, for appellant.

      Howell, Price, Howell & Barron, for appellee.
   Elsijane T. Roy, Justice.

This action was brought by appellee, Robert C. Bowlin, a long-haul household goods trucker, against appellant, Wayne Stowe d/b/a Union 76 Truck Stop, for damages to appellee’s truck. Appellee alleges that an employee of the truck stop in changing the oil in appellee’s truck left out the drain plug. Approximately 10 miles from the truck stop, the engine froze and welded itself together because of lack of oil. Appellee sought damages, including repairs to his truck, rental expense for a replacement truck and lost profits totaling 810,543.19. The jury returned a verdict in appellee’s favor for 81,491.50. On appellee’s motion the trial court set aside the verdict on the grounds that “the issue of contributory negligence should not have been submitted to the jury and that the verdict was against the preponderance of the evidence.”

For reversal appellant first contends the trial court erred in ordering a new trial on the basis that the contributory negligence of appellee should not have been submitted to the jury.

Several witnesses testified that a diesel engine makes a substantial amount of noise when it loses oil; that such an engine will lose all of its oil in a very short time due to high pressure; that such an engine will run just a minute or two at high speeds without emitting knocking sounds. Appellee testified that his truck had an oil gauge and a temperature gauge which would be affected in the event of loss of oil. Appellee’s own testimony was that he drove his truck about ten miles from the truck stop before he noticed his oil pressure was low and before he heard unusual sounds from his engine.

This court has held many times that the testimony of a party is not undisputed. Woodward v. Blythe, 246 Ark. 791, 439 S.W. 2d 919 (1969). Additionally, there was testimony that prior to the occurrences in this suit appellee had made a statement to the effect that his truck was about worn out and in need of replacement. Appellee admitted that he had expressed dissatisfaction with previous service from appellant.

We have consistently held that negligence and contributory negligence are questions for the jury unless the facts are undisputed. In Wood v. Combs, 237 Ark. 738, 375 S.W. 2d 800 (1964), we quoted from an earlier case as follows:

This court has consistently held that where fair-minded men might honestly differ as to conclusions to be drawn from facts, whether controverted or incontroverted, the question at issue should go to the jury. (Citations omitted) * * *

See also Ragon v. Day, 228 Ark. 215, 306 S.W. 2d 687 (1957).

From the facts and permissible inferences in this case, the jury could reasonably have concluded that had appellee exercised the proper degree of care he could have noticed much sooner that the oil pressure was low, or that the water temporature was high, or that noise from the engine was unusually loud, and thereby avoided extensive damage to the engine. The jury reasonably could have concluded that appellee was negligent in continuing to operate his truck and not heeding these warnings until the engine welded itself together from lack of oil. Therefore, we find that the trial court was correct in submitting to the jury the issue of contributory negligence; and consequently the verdict should not have been set aside for this reason.

Appellant next contends that the trial court erred in finding that the verdict was against the preponderance of the evidence. We recognize that the trial judge has the advantage of observing the demeanor of the witnesses, and in Garrett v. Puckett, 252 Ark. 233, 478 S.W. 2d 48 (1972), we said:

It is . . . well settled that we only reverse the ruling of the trial judge in setting aside a verdict he finds to be against the preponderance of the evidence when we find that the trial judge has abused his discretion. Houston v. Adams, supra [239 Ark. 346, 389 S.W. 2d 872]; Farmer v. Smith, 227 Ark. 638, 300 S.W. 2d 937; Worth James Construction Co. v. Fulk, 241 Ark. 444, 409 S.W. 2d 320; Bowman v. Gabel, 243 Ark. 728, 421 S.W. 2d 898; U.S.F. & G. Co. v. Hagan, 246 Ark. 629, 439 S.W. 2d 915.

We have carefully reviewed the record and find no abuse of the trial court’s discretion in setting the verdict aside on this basis.

Since on a new trial certain issues will again be presented to the court we review appellant’s contention that cross-examination of appellee “as to his undesirable discharge from the Navy and as to acts of sodomy committed by him” should have been allowed. We find merit in this contention.

Prior to the commencement of the trial, appellee made a motion in limine requesting the court to direct attorneys for appellant not to cross-examine plaintiff as to the basis for his undesirable discharge from the military service. The court granted the motion. Appellant made a proffer of proof, and appellee admitted that he had engaged in various acts of sodomy before his discharge from the Navy in 1968 as well as “a couple of times” since then, but not within the year preceding the trial date of March 26, 1975.

This proof was offered to impeach appellee’s credibility as a witness. Sodomy was a felony under Ark. Stat. Ann. §§ 41-813 and 41-814 (Repl. 1964) at the time of the occurrences involved herein. Bennett v. State, 252 Ark. 128, 477 S.W. 2d 497 (1972).

Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W. 2d 795 (1964) involved an action for personal injuries. The trial court refused to permit cross-examination of the plaintiff-police officer regarding his dismissal for misconduct from the police force. On appeal we held that:

Counsel should have been permitted to cross-examine Appellee Digby as suggested. Wide latitude is permissible in cross-examining a party, who is to be treated as any other witness, to elicit facts contradicting his testimony given on direct examination or impeaching his credibility as a witness. (Citation omitted). * * *

In Hale v. State, 252 Ark. 1040, 483 S.W. 2d 228 (1972), we held it was error for the trial court to refuse to permit cross-examination of a prosecution witness as to acts of sodomy committed by her.

In May v. State, 254 Ark. 194, 492 S.W. 2d 888 (1973), Cert. denied 414 U.S. 1024, 94 S. Ct. 448, 38 L. Ed. 2d 315 (1973), where the trial court had precluded cross-examination regarding acts of adultery and the use of drugs, we found the exclusion to be error.

In Bookman v. Rorex, 212 Ark. 948, 208 S.W. 2d 991 (1948), we held that the same rules apply to the scope of cross-examination in civil cases as apply in criminal cases when credibility of a witness is attacked.

In the case at bar the credibility of appellee was important as to whether he may have intentionally damaged his own property due to past disagreements with employees at appellant’s truck stop or due to his desire to replace a truck described by him as worn out. Credibility was also of importance with respect to whether appellee exercised due care to prevent damage before his truck engine was ruined, and also in mitigation of damages. The cross-examination on this point should have been allowed.

In its concluding point appellant requests that in the event of a new trial we instruct the trial court not to admit evidence of lost profits. It would be inappropriate for this court to take such action since we do not know what will arise in the way of proof on damages in a new trial.

This cause is affirmed as indicated.

Byrd, J., not participating.

      The subject of sexual offenses is now governed by Act 280 of 1975 (Ark. Stat. Ann. § 41-1801 et seq., effective January 1, 1976).


author: George Rose Smith, Justice.

text:
    G. E. HIRRILL v. CIVIL SERVICE COMMISSION of The City of Little Rock
    75-372
    Opinion delivered February 9, 1976

      Floyd Lofton, for appellant.

      Joseph Kemp, for appellee.
   George Rose Smith, Justice.

In the court below a transcript of testimony presented to the Civil Service Commission was introduced as an exhibit and is part of the record on appeal. The appellant has filed a motion asking the court to waive Rule 9 (d) and to permit counsel to abstract the exhibit instead of photographing it and attaching it to the abstract.

The motion is unnecessary; but since there have been other similar misconceptions of the purpose of the Rule, we take this opportunity to explain that the Rule is intended to refer only to exhibits that cannot readily be abstracted in words, such as maps, plats, and photographs. The pertinent sentence in the Rule is being amended today to clarify the court’s intention.

PER CURIAM. The last sentence of Supreme Court Rule 9 (d) is amended to read as follows: Whenever a map, plat, photograph, or other similar exhibit, which cannot be abstracted in words, must be examined for a clear understanding of the testimony, the appellant shall reproduce such exhibit by photography or other process and attach such reproduction to the copies of the abstract filed in this court and served upon the opposing counsel, unless this requirement is shown to be impracticable and is waived by the court upon motion.


author:
John A. Fogleman, Justice. Carleton Harris, Chief Justice,
      J. Fred Jones, Justice,

text:
    Bobby TOSH et al v. A.T.I., Inc. (BATESVILLE R & P CORP., INC.) and Dale CLINE, Director of Labor for the State of Arkansas
    75-234
    534 S.W. 2d 242
    Substituted Opinion on Rehearing delivered March 22, 1976

      Youngdahl & Larrison, for appellants.

      Herrn Northcutt, for appellees.
   John A. Fogleman, Justice.

This is an unemployment compensation case. The Appeals Referee and the Board of Review found appellants were not entitled to unemployment benefits because their unemployment was due to a labor dispute in which they were participating as active members of their union. Ark. Stat. Ann. § 81-1105 (f) (Repl. 1960) in pertinent part provides that an employee cannot “be paid benefits ... if he lost his employment or has left his employment by reason of a labor dispute ...” unless “ ... it is shown that he is not participating in or directly interested in the labor dispute ...” For reversal appellants contend that, since they were laid off for lack of work before the calling of a strike, they are entitled to draw unemployment benefits until notified by their employer to return to work and they refuse to do so, citing Harding Glass v. Crutcher, 244 Ark. 618, 426 S.W. 2d 403. The thrust of appellants’ argument is that appellants were on a layoff status and already out of work when the labor dispute arose and, consequently, did not leave or lose their employment “by reason of a labor dispute” within the meaning of § 81-1105 (f). Further, since they were not notified to return to work and given an opportunity to refuse, a fact issue does not exist and, therefore, it must be said, as a matter of law, that they have not lost their employment by reason of participation in a subsequent labor dispute.

Findings of fact by the Board of Review in Employment Security cases are conclusive on appeal if supported by substantial evidence. Terry Dairy Products Co., Inc. v. Cash, Commissioner of Labor, 224 Ark. 576, 275 S.W. 2d 12; Ark. Stat. Ann. § 81-1107 (d) (7) (Repl. 1960). On our review of such findings of fact to determine whether they are supported by substantial evidence, we consider the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee and affirm if there is any substantial evidence to support the finding of the fact finder. Campbell v. Athletic Mining & Smelting Co.; 215 Ark. 773, 223 S.W. 2d 499; Green v. Lion Oil Co., 215 Ark. 305, 220 S.W. 2d 409; Employers Casualty Co. v. United States Fidelity and Guaranty Co., 214 Ark. 40, 214 S.W. 2d 774; Thrifty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W. 2d 304; Yellow Cab Co. v. Sanders, 250 Ark. 418, 465 S.W. 2d 324. In Thrifty Rent-A-Car we reiterated that we consider only the evidence of the appellee or that portion of the evidence most favorable to appellee to determine the existence of substantial evidence. In the case at bar, we are of the view that the issue is one of fact and not a question of law and there is substantial evidence to support the Board’s finding.

On March 11, 1974, the appellants were told that a boiler had blown up and that they would be notified to return to work as soon as it was repaired, but that there would be no work until they were notified. Thereafter, the executive committee of the appellants’ union voted to strike effective at noon on March 12, 1974. The appellee’s personnel director testified that, at the time the strike was called, boiler repairmen were in the boiler room assembling the boiler and left after they were told by a union official that a strike was called. He said that work would have been available on March 12 at 11:30 p.m. had the strike not been called. The boiler was finally repaired by appellee’s maintenance personnel and it was back in operation at 5:00 p.m. on March 14, 1974. The personnel director stated that those on the picket line could see that the boiler was in operation due to the “steam coming out of the roof.” The president of the local union testified that he and all the appellants were members of the local union and were actively engaged in picketing the plant. The finding of fact critical to this appeal was that appellants’ unemployment was “because of a labor dispute in which they are participating as active members of the union. ”

In Harding Glass, supra, the employees were in a layoff status and collecting benefits when the labor dispute commenced. Some employees were requested to return to work at various times during the labor dispute and refused to do so. The employees involved in the case returned to work after the dispute ended. The Board of Review held that the employees who were in layoff status were not entitled to benefits from the date they were directed to report to work and failed to do so as they participated in the labor dispute by their refusal to report to work as directed. These employees were not notified that work was available or requested to return to work until after the labor dispute commenced. We concluded that “the appellees did not lose or leave their employment by reason of the labor dispute which arose on October 10, 1966; but that they remained on a lay-off status and did not participate in the labor dispute until they were notified to return to work and they failed to do so. For it was then, and only then, that they lost or left their employment by reason of the labor dispute.”

We distinguished the case from Fort Smith Chair Co. v. Laney, 238 Ark. 636, 383 S.W. 2d 666, but pointed out that we had there held that an employee who was notified to return to work and refused to do so because of a labor dispute thereby participated in and became a part of the dispute. In Harding Glass, the appellees were allowed to draw benefits for the period in question because they did not participate in the “labor dispute until they were notified to return to work following their layoff and they joined in the labor dispute by failing to return to work.” Thus, in both the Chair Company case and the Harding Glass case, the employees’ refusal to return to work, when notified work was available, constituted or was equivalent to joining in the labor dispute. These cases clearly stand for the principle that one drawing benefits in a layoff status is not entitled to continue to draw them after he joins in or participates in a labor dispute. We do not consider that the mere fact that the employees in Harding Glass were held to be entitled to benefits is controlling as a matter of law in this case. In Harding Glass, there was no evidence that the employees involved had ever done anything toward participation in the labor dispute prior to being notified to return to work. Here, the appellants were actively participating in and supporting the labor dispute by picketing the plant. This was very substantial evidence that appellants were participating in the labor dispute. In fact, the president of the union to which they belonged and in sympathy with which they were acting said that if he had been notified to return to work he would not have crossed the picket line to do so. There is no contrary evidence on the part of any of the appellants. The Board, as a fact finder, could reasonably infer that one who actively participated, as here, in the labor dispute would not have returned to work until the dispute was resolved and that a notice to return to work would have been futile. Thus there was substantial evidence to support the finding of fact made in this case.

The purpose of the enactment of the Unemployment Act was aptly enunciated in Harding Glass, supra, when we said:

The Employment Security Act was intended to withhold benefits from those who bring about their own unemployment by bringing about or participating in a labor dispute.

In 12 Ark. Law Rev. 123, it is said:

Not all unemployment is compensable, and recovery is conditioned by certain legislative policies which generally restrict benefits to cases of involuntary unemployment . . . Policy reasons given for the labor dispute clause include: (1) that the benefits payable to strikers might exhaust the insurance fund; (2) that unemployment due to strikes is not involuntary; and (3) that the state should not assist either side in a labor dispute. (Case Note, James E. Youngdahl)

In the case at bar, as indicated, there is substantial evidence to support the Board’s finding that the appellant employees were voluntarily unemployed due to a labor dispute and, therefore, are not entitled to unemployment compensation.

Affirmed.

The Chief Justice and Mr. Justice Jones dissent.

Carleton Harris, Chief Justice,

dissenting. This dissent is not based on any contention that, under the law, strikers are eligible for unemployment benefits. Rather, it is predicated on the belief that this court should not pervo'f o; distort a legislative statute, which, in my view, is what L being done in this case. It is undisputed that appellants were laid off from work before any strike was called; it is also undisputed that when laid off, they were told, as set out in the majority opinion, that a boiler had blown up and “that they would be notified to return to work as soon as it was repaired, but there would be no work until they were notified.” Again — it is undisputed that these employees were never advised that the boiler had been repaired and that they could return to work. Now — the burden was on somebody to determine when work could be resumed. To me, this burden was on the employer, and particularly so, since appellants had been told that they would be notified and ''''there would be no work until they were notified." [My emphasis].

In Harding Glass Co. v. Crutcher, 244 Ark. 618, 426 S.W. 2d 403, this court said:

“The question then, boils down to whether the employees who were laid off for lack of work and who were drawing unemployment benefits, were still entitled to draw unemployment benefits until they were notified to return to work and refused to do so. In other words, does notice to the employer by the union president that employees do not intend to work without a contract, suspend the right to continued compensation payments to those employees who are on a lay-off status and already out of work when the notice is given and a labor dispute arises, or is it necessary that such employees be notified to return to work and refuse to do so before their unemployment benefits are suspended?
“We are of the opinion that such employees should be notified to return to work and refuse to do so before the payment of their unemployment compensation benefits should be suspended.” [My emphasis].

I do not think that the fact that appellants could see “steam coming out of the roof” constitutes notice that these employees could return to their jobs. If the Unemployment Compensation Act needs amending to cover all facts mentioned in the majority opinion, then that is a matter for the legislature, and not for this court.

I, therefore, respectfully dissent.

J. Fred Jones, Justice,

dissenting. I am unable to see wherein the substituted opinion on rehearing adds any soundness to the reasoning employed by the majority in the original opinion. I still dissent.

The question in this case still remains whether the employees left their employment by reason of a labor dispute. I find no evidence at all that the appellants left their employment because of a labor dispute or that they were participating in, or were directly interested in, the labor dispute when they were required to leave their employment. The appellants were required to leave their employment until notified to return because a boiler blew up and there is not the slightest evidence in the record that the boiler blew up because of a labor dispute.

The reason for leaving the employment in the first place is the controlling factor as I see it and not what occurred after the employees left their employment and while they remained on a lay-off status. The appellants were on a lay-off status because of the disabled boiler and were told that they would be notified by their employer when to return to work. The mere fact that a strike was subsequently called and the appellants, or some of them, might have been on a picket line where they could have seen steam issuing from the boiler house and thereby should have known that the boiler was again in operation and work would be available if they cared to return to work, simply does not make sense to me.

Certainly there was a fact question as to whether the appellants subsequently participated in a labor dispute by appearing on a picket line, and as to whether they could have seen steam coming from the boiler house indicating that the boiler had been repaired and work was again available, but that is beside the issue in this case. Perhaps the law should be that rights to unemployment benefits should be denied an employee who has been laid off for other reasons if, and when, he subsequently participates in a labor dispute or strike while on a lay-off status, but I do not so interpret the law as it stood prior to the majority opinion in this case.

It is my opinion that this case falls squarely within the rule of Harding Glass v. Crutcher, 244 Ark. 618, 426 S.W. 2d 403.1 see no difference in the employees’ status when they are on a lay-off status and collecting benefits when the labor dispute arises as in Harding Glass, and when they are on a lay-off status and should be collecting benefits when the labor dispute commences as in the case at bar.

Certainly the employees in the case at bar should have been denied subsequent benefits if they had been notified to return to work and had failed to do so because of the labor dispute — that very thing probably would have occurred in this case, but the fact is, that it did not. Had the appellants been notified to return to work as the employer promised they would, and if they had then failed to return to work, it would have been then and only then that this court should agree they lost their employment by reason of a labor dispute.

I would still reverse.


author: John A. Fogleman, Justice.

text:
    Ed BARCLAY et ux v. Matt TUSSEY et ux
    75-248
    532 S.W. 2d 193
    Opinion delivered February 9, 1976

      Dodds, Kidd & Ryan, by: Donald S. Ryan, for appellants.

      Hardin & Rickard, for appellees.
   John A. Fogleman, Justice.

Appellants seek reversal of a judgment in an ejectment suit brought by appellees. Appellants assert two points for reversal, the first of which we find to be without merit. On the second, we find merit and reverse.

The first point is based upon appellees’ failure to comply with the requirement that a plaintiff in ejectment must rely upon the strength of his own title and not the weakness of that of his adversary. In their complaint, appellees merely alleged that they had title by virtue of a deed which they exhibited. Appellants raised no objection to this pleading but filed an answer in which they incorporated a separate general denial of each paragraph of the complaint and an affirmative defense in which they asserted that they were the owners of the lands involved either by deed or by adverse possession for more than 15 years. No objection was made to appellees’ pleading or deraignment of title prior to trial.

Matt Tussey testified that he purchased the 11-acre tract he claimed from Irene Kelly Lewis and that it had previously been owned by Lovie Harris. He knew when he purchased the property that appellant Ed Barclay claimed a tract lying within the boundaries of the land purchased from Ms. Lewis, and that Barclay was using a substantial part of the tract. Tussey had observed a garden and a chicken house thereon and saw some fences on the boundaries. Tussey immediately notified Barclay that some written agreement would have to be made for Barclay’s continued use of this tract, because Tussey had the legal title.

At the conclusion of Tussey’s testimony, appellants moved for a directed verdict because appellees had failed to deraign title from the United States or from a common owner. The circuit judge denied the motion for directed verdict, and then agreed with appellants’ attorney that they had the burden of proving adverse possession. This motion for directed verdict was renewed at the conclusion of all the evidence. Appellants now argue that the circuit court erred in denying the motion for directed verdict.

We agree with appellants that appellees must rely upon the strength of their own title, but the objection came too late. A general denial of a complaint in ejectment in which the plaintiff alleges that he derived title by a specifically described warranty deed is insufficient to raise any issue as to plaintiffs’ title. Davis v. Beauchamp, 99 Ark. 404, 138 S.W. 636. Going to trial without any objection to the plaintiffs’ failure to deraign title constituted a waiver of that requirement that justified the circuit judge’s holding on the first motion for directed verdict that appellees were entitled to prevail on the record title, unless, of course, appellants could show that appellees’ grantors did not have title or establish their rights by adverse possession. Gingles v. Rogers, 206 Ark. 915, 175 S.W. 2d 192. For the same reason, there was no error in denying the motion at the conclusion of all the evidence.

Appellants’ second point for reversal is the contention that the circuit judge, sitting without a jury, erred in finding that their possession was permissive and could not ripen into adverse possession because it was commenced after an attempt to contract for the property with a prior owner without any agreement having been reduced to writing. We do not agree with appellees that appellants ’ pleading barred them from claiming title by adverse possession. This is not a case where appellants were claiming title by virtue of a deed and then attempted to assert title adversely to that deed or the grantor as was the case in Vanndale Special School District v. Feltner, 210 Ark. 743, 197 S.W. 2d 731, relied upon by appellees. Although appellants pleaded alternatively in asserting affirmative defenses, no deed was exhibited with the complaint and none introduced. The statement of appellants’ attorney and of the trial judge when appellants’ motion for directed verdict was first made showed clearly that appellees were relying upon adverse possession.

Ed Barclay testified that he had used at least part of the disputed tract since 1948. He said that he went into possession pursuant to a swap of tracts he made with Lovie Harris, but, in spite of the intention of both parties to evidence the transaction by deed, they never did. On rebuttal, Matt Tussey testified that Mr. Barclay told him of this trade when Tussey confronted Barclay about continued possession of the disputed tract. This belies Tussey’s claim that Barclay did not assert an adverse claim to the property until Barclay, after consulting his attorney, had declined to sign a lease as requested by Tussey. Tussey said that Barclay then said that his attorney had told him that Tussey could not put Barclay off.

It was not necessary that the Barclays have color of title in order to establish adverse possession. Morgan v. Downs, 245 Ark. 328, 432 S.W. 2d 454. For possession to be adverse, as distinguished from permissive, it is only necessary that it be hostile in the sense that it is under a claim of right, title or ownership as distinguished from possession in conformity with, recognition of, or subservience to, the superior right of the owner, which is permissive. See Smart v. Murphy, 200 Ark. 406, 139 S.W. 2d 33; Martin v. Winston, 209 Ark. 464, 190 S.W. 2d 962; Stricker v. Britt, 203 Ark. 197, 157 S.W. 2d 18; Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W. 2d 569; Hull v. Hull, 212 Ark. 808, 205 S.W. 2d 211. The oft-repeated statement that adverse possession is a possession commenced in wrong but maintained in right, does not mean that the possessor must commence his possession with an intentional wrong, for the doctrine of adverse possession is intended to protect one who honestly enters into possession of land in the belief that the land is his own. McAllister v. Harzell, 60 Ohio St. 69, 53 N.E. 715 (1899); Landers v. Thompson, 356 Mo. 1169, 205 S.W. 2d 544 (1947). As a matter of fact, it has sometimes been said that title by adverse possession for a long period rests upon a presumed grant or conveyance or may give rise to a presumption that there was such a deed or grant. 3 Am. Jur. 2d 81, Adverse Possession, § 3; Butler v. Johnson, 180 Ark. 156, 20 S.W. 2d 639. See also, Koonce v. Woods, 211 Ark. 440, 201 S.W. 2d 748; Carter v. Goodson, 114 Ark. 62, 169 S.W. 806; State v. Taylor, 135 Ark. 232, 205 S.W. 104; Reed v. Money, 115 Ark. 1, 170 Ark. 478. The only evidence shows that appellants entered into possession claiming a right based upon an oral swap of lands with one purporting to be the true owner and referred to in the proceedings as a prior owner of the disputed tract.

It is of no consequence that the contract may not have been enforceable because of the statute of frauds. It is important that the only evidence clearly shows that appellants entered into possession of the disputed tract under a claim of right by reason of the swap. Claim of ownership, even under a mistaken belief, is nevertheless adverse. McNeely v. Ballard, 220 Ark. 736, 249 S.W. 2d 567. Entry by one claiming title under a parol grant or exchange is adverse and not permissive, and evidence as to the grant is immaterial except as it bears on the character of the entry and occupation of the possessor. Elam v. Alexander, 174 Ky. 39, 191 S.W. 666 (1917); Nevells v. Carter 122 Me. 81, 119 A. 62 (1922); Mitchell v. Chicago, B & Q. Ry. Co., 265 Ill. 300, 106 N.E. 833 (1914); Parrish v. Minturn, 234 Or. 475, 382 P. 2d 861 (1963); Serritt v. Johnson, 223 Ga. 620, 157 S.E. 2d 484 (1967); Southern Reynolds County School Dist. v. Callahan, 313 S.W. 2d 35 (Mo., 1958). It has been aptly said that although an entry under such a grant is permissive and friendly in the popular sense, it is nonetheless hostile and adverse to the paper title in the legal sense, because there is an assertion of ownership in the occupant. Harrelson v. Reaves, 219 S.C. 394, 65 S.E. 2d 478, 43 ALR 2d 1 (1951).

Since there was no evidence to support the finding that appellants’ possession was permissive in its inception, we must set aside the trial court’s finding in this respect.

The judgment is reversed and the cause remanded.