text:
    Kingrey v. Wilson.
    5-1250
    301 S. W. 2d 23
    Opinion delivered April 15, 1957.
    [Rehearing denied May 13, 1957]

      Terral & Rawlings and John T. Haskins, for appellant.

      C. M. Garden, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee, Bernice Wilson, brought this suit against Homer Kingrey and his wife, appellants, to cancel a warranty deed dated December 13, 1955, which she gave to appellants. This deed for a consideration of $1,000 conveyed 4.4 acres of land, with the exception of a parcel 100 ft. x 110 ft. on which appellee’s home (or dwelling) was located. She alleged in her complaint that this deed was procured from her through misrepresentation and fraud and that she received no consideration whatever. She asked that this deed be cancelled and set aside. Appellants answered with a general denial and also filed a cross complaint alleging that the suit ivas brought by appellee “maliciously and without probable cause” and sought damages.

Trial was had and following an extended and patient hearing the court found: “That the aforementioned deed conveying the above described property should be set aside for two reasons; fraudulent misrepresentations and total lack of consideration. The court finds that there was a relationship of trust and confidence between the plaintiff and the defendants and that this confidential relationship was taken advantage of by the defendants through their misrepresentations and procured the execution of said deed by virtue of the misrepresentations; that in addition there was a complete lack of consideration for the execution of said deed. That said deed should be set aside for both reasons.”

For reversal appellants rely on the following points: “1. The evidence is not clear, unequivocal and decisive to warrant setting aside the solemn recitals of a deed, nor to warrant the court’s findings of fraudulent misrepresentation, lack of consideration and existence of confidential relationship between plaintiff and defendants. 2. The court erroneously varied the terms of a deed upon the finding of no consideration for a voluntary conveyance and in effect found a resulting trust to exist which findings were erroneously based upon parol testimony. 3. The court erred in failing to grant defendants’ motion to dismiss plaintiff’s complaint as a matter of law after plaintiff failed to answer the request for admissions under oath and in permitting plaintiff to answer such questions at the trial. 4. The court erred in failing to grant defendants a continuance at the close of plaintiff’s testimony and in failing to strike the testimony not in conformity with the plaintiff’s pleadings. 5. The court erred in not permitting appellee to be cross-examined on whether or not she and her ex-husband were living together in adultery.”

1 and 2

After a review of all the testimony we have concluded that it is sufficient to support the findings and decree of the trial court, however, on trial de novo here we have elected to affirm the decree on a different ground, that is, that the testimony shows that appellee was the beneficiary of a constructive trust which was shown to exist in the property described in the above deed, which she gave to appellants. We hold that appellee has met the burden of showing this by proof that is clear and convincing. See Walker v. Biddle, 225 Ark. 654, 284 S. W. 2d 840.

The record reflects that appellee and her husband were divorced November 10, 1955. Prior to the divorce her husband had on September 1, 1955, deeded the land here involved to her. The appellants lived across the road from appelleb and they became her very close personal friends and she relied strongly on Kingrey for advice. Appellee and her two children moved into appellants ’ home at their request, where they lived with them for about four months.

Appellee testified (appellants’ brief) : “There was talk my husband would resue and take the property. Mr. Kingrey said he could fix it where he couldn’t get the property. We talked over conveying the property to Mr. Kingrey to keep Mr. Wilson from getting the property . . . Ernest Briner made out the deed. Mr. Briner said just in case something went wrong he would make out the deed for $3,500 where I could have something for the land. I went to Mr. Briner’s office with Mr. Kingrey on Friday or Saturday and went back on Tuesday evening and signed it. I did not notice what kind of deed I signed. I did not receive anything for the deed. I held the deed for awhile before delivering it to Mr. Kingrey. I didn’t know until this year when my former husband came back and we were talking about it that the deed had been recorded. I gave Mr. Kingrey the money to pay the delinquent taxes. He redeemed the taxes in his name . . . There was talk all around that my husband was going to take the property from me and the children. We talked it over and they were going to hold the property until this was settled and then it would be given back to me . . . We were offered $7,500 for the whole place not long ago. That was about two or three years ago . . . Mr. Kingrey’s exact statement concerning M. J. Wilson taking the land away from me was to fix it in his name to keep for me and then he could not get it and when this was over I would have the land. This statement was made a week or so before December 13, 1955, the date the deed was signed. When this statement was made Aaron Johnson and wife, Mildred Johnson, Charlie Allen and Mrs. Allen and Bill LaGfue were present . . . My sole purpose in executing the deed was to hold the property where my husband couldn’t take it ... I never received one dime of the consideration stated in that deed. ’ ’

Mr. Wilson, appellee’s ex-husband, tended to corroborate appellee. “Q. He (Kingrey) did state that he was going to give the land back? A. He said “I am going to give it all back to Bernice (appellee).” Aaron Johnson, on behalf of appellee, testified (appellants’ abstract) : “I know the defendants (appellants) and plaintiff (appellee). I was present when they were discussing making ont a deed to Mr. Kingrey to keep M. J. from resning and getting the land, and I understood when the trouble was over he was going to turn it back over to her.” Charles Allen testified: “I visited in the Kingrey home while Mrs. Wilson lived with them. The conversation was she would convey to Mr. Kingrey until such time as they could settle their trouble, then Mr. Kingrey would give it back to her. ’ ’ Bill LaGfue testified: ‘ ‘ Mr. Kingrey told me he did not want to see Wilson get the land back from Bernice and thought they were going to have it fixed so he could not until their trouble was settled. This was after they were divorced. He said she was to get it back after the settlement and they were not going to charge Bernice for staying there; that she had worked hard and filled the deep freeze. ’ ’ Mrs. Aaron Johnson corroborated the testimony of the above witnesses for appellee.

Mr. Kingrey testified: “Q. As I understand you don’t contend that you paid her anything for this deed. A. No, I never paid her anything.” From appellants’ abstract: “When she told me she was going to give me the land I told Mr. Briner to enter $1,000 in it. She said I could have the property for what I had done for her. I kept her in my house for four months.” Kingrey denied ever having made the statements which appellee’s witnesses testified that he made. There was other evidence on the part of appellants tending to contradict that offered by appellee.

As indicated, we think that when all the evidence is considered and measured by the clear and convincing rule, it was sufficient to support the findings and decree of the trial court. We said in the Walker case above that: “When the grantee’s oral promise to hold for the grantor is fraudulently made, or when such a promise is given by a grantee who stands in a confidential relation to the grantor, equity will impose a constructive trust upon the grantee’s refusal to perform his promise. Armstrong v. Armstrong, 181 Ark. 597, 27 S. W. 2d 88; Rest., Restitution, § 182; Rest., Trusts, § 44.” A constructive trust may be shown by parol testimony. See Stacy v. Stacy, 175 Ark. 763, 300 S. W. 437 and Harbour v. Harbour, 207 Ark. 551, 181 S. W. 2d 805.

3.

On appellants’ third point it appears that appellants, — proceeding under § 28-358 Ark. Stats. 1947, —submitted certain questions to appellee to be answered under oath. Question 28 was: “Didn’t you execute a deed to Homer and Wilma Kingrey on December 13, 1955, conveying certain land to them because they had taken care of you and your children after your husband left you and your children for another woman?” The question was answered “No.” None of these questions answered by appellee was verified. On this point appellants say: “Appellants submitted a request for admissions on appellee, which admissions were answered within the time designated but not under oath. In failing to answer such request under oath they would also be answered in the affirmative as a matter of law. Ark. Stats. 1947 § 28-358.” The trial court, however, allowed appellee to verify her answers to the questions at the beginning of the trial and we think properly so. In so doing the court was clearly acting within its discretion. It is of strong significance that the above statute provides that the court may on motion or notice shorten or extend the time for answering. Obviously, the purpose and intent of the above section was to expedite the trial of litigation on its merits.

4 and 5.

Appellants’ fourth point, questioning the action of the court in refusing them a continuance, is wholly without merit. Upon examination of the record we find no error in this regard.

We also find untenable appellants’ fifth contention, that he was not permitted on cross-examination of appellee to inquire of her whether she and her ex-husband were living in adultery. Appellants frankly admit that the trial court “is properly allowed wide discretion in permitting or denying sucli cross-examination.” While we think that such cross-examination would have been proper as bearing upon her credibility, we hold, however, that had she admitted adultery, still on the basis of the testimony of the many other witnesses above, we would on trial cl& novo here affirm the case.

For yet another reason there was no error, for appellants did not offer to show what appellee’s answer would have been had she been allowed to answer. See St. Louis Southwestern Railway Co. v. Myzell, 87 Ark. 123, 112 S. W. 203 and Boland v. Stanley, 88 Ark. 562, 115 Ark. 163.

Affirmed.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Grissom v. Bunch.
    5-1148
    301 S. W. 2d 462
    Opinion delivered April 15, 1957.
    [Rehearing denied May 20, 1957]

      C. M. Buck and Claude F. Cooper, for appellant.

      Frank C. Douglas and Oscar Fendler, for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellee, Mrs. Mattie Moody Bunch, brought this suit seeking to be declared the sole owner of certain lands in Mississippi County. She claimed that her mother, Mrs. Florence Moody Crawford, held the title as a constructive trustee for Mattie Moody Bunch. The defendants — appellants here — were the beneficiaries under the will of Mrs. Florence Moody Crawford. From a decree, declaring and enforcing the trust as prayed by the plaintiff, there is this appeal.

Matt Moody, father of Mattie Moody Bunch, died in 1906, the owner of an undivided one-third interest in the entire NW14 of Section 1. He was survived by his wife, Florence. His child, Mattie (the appellee), was born a few months after his death. Mrs. Florence Moody married another man named Moody and had children by him. Later, when her second husband died, she married Mr. Crawford, and as Florence Moody Crawford made her will in February, 1952. She died on May 1, 1954, devising the lands here involved to certain grandchildren, who were the defendants below and are the appellants here.

The aforesaid Matt Moody owned an undivided one-third interest in the entire N"W% of Section 1. Mattie Moody Bunch was born in 1907 and was the sole heir of Matt Moody. The owners of the other two-thirds interest in the NW1^ of Section 1 (they being relatives of Mattie Moody Bunch) brought suit for partition in 1915; and the North third of the NWx/i of Section 1 was set apart to Mattie Moody Bunch as her property. This was approximately 53-1/3 acres. She was then about eight years of age and continued to live on her land with her mother and stepfather. They failed to pay the taxes and assessments, and Avere about to lose the land, when in 1925 they persuaded Mattie Moody Bunch to execute a mortgage to the Oklahoma Farm Mortgage Association to obtain money with which to pay the past due taxes and assessments. This mortgage Avas dated May 18, 1925, and Mattie Moody Bunch was then 18 years of age.

On June 17, 1925 Mattie Moody Bunch executed the first deed here involved, purporting to convey to her mother, the East half of the 53-1/3 acres OAvned by Mattie Moody Bunch. This deed will be discussed in Topic II, infra. On May 20, 1937, Mattie Moody Bunch executed to her mother a second deed, Avhich purported to be a quitclaim deed to the entire North third of the NW % of Section 1, and this deed Avill also be discussed in Topic II, infra. Mrs. Florence Moody Crawford continued to live on the land until her death on May 1, 1954. Shortly thereafter, Mattie Moody Bunch filed this suit against the persons to whom Mrs. Florence Moody Crawford had devised the lands.

I. Appellee’s Theory For Recovery. Appellee claimed beloAv and insists here that, even though she executed the two deeds to her mother, nevertheless the mother, Mrs. Florence Moody CraAArford, became a constructive trustee for the benefit of the appellee, and that the court of equity should enforce the trust in this case just as was done in such cases as Armstrong v. Armstrong, 181 Ark. 597, 27 S. W. 2d 88; Ladd v. Bones, 213 Ark. 1030, 214 S. W. 2d 353; and Walker v. Biddle, 225 Ark. 654, 284 S. W. 2d 840. Appellants claim that this case does not come within the holding of the foregoing-cases but comes within the holdings in snch cases as Ammonette v. Black, 73 Ark. 310, 83 S. W. 910; Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848; and O’Connor v. Patton, 171 Ark. 626, 286 S. W. 822.

The clearest statement of the rule contended for by the appellee is stated in the case of Bragg v. Hartney, 92 Ark. 55, 121 S. W. 1059, and is there quoted from Pomeroy on “Equity Jurisprudence”:

“In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one’s weakness or necessities, or through any other similar means or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property, either in the hands of the original wrongdoer or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes property relieved from the trust. The forms and varieties of these trusts, which are termed ex maleficio or ex delicto, are practically without limit. The principle is applied wherever it is necessary for the obtaining of complete justice, although the law may also give the remedy of damages against the wrong-doer.”

The foregoing rule is the basis of constructive trusts; and, with the rule thus recognized, we proceed to consider the evidence.

II. The Two Instruments Appellee Executed. Appellee admits executing the deed in 1925 and also the deed in 1937. As regards the 1925 deed, she points out that in that year she was only eighteen years of age and living with her mother and stepfather and was about to marry; that her mother (Mrs. Florence Moody Crawford) insisted that the mother’s dower had never been settled; that the mother claimed that she was entitled to one-half of the land for life as dower; and that the 1925 deed was represented to the appellee as conveying to the mother one-half of the land for life as dower. When we consider the age of Mattie Moody Bunch in 1925 and the influence of her mother and stepfather over her, the case at bar is strikingly similar in facts to that of Gillespie v. Holland, 40 Ark. 28.

As regards the 1937 deed, Mattie Moody Bunch testified that her mother and stepfather had failed to pay the taxes and assessments and were again about to lose the land just as had been the situation prior to 1925; and that the mother and stepfather told her that if she would sign the 1937 deed, Florence Moody Crawford would redeem the land and pay up all back taxes for the benefit of Mattie Moody Bunch, who would receive rents from time to time and would have the full title after the death of Florence Moody Crawford. The foregoing testimony bears a striking similarity to that contained in the cases of Armstrong v. Armstrong, supra; Ladd v. Bones, supra; and Walker v. Biddle, supra. So Mattie Moody Bunch’s testimony makes a case for the application of the doctrine of constructive trusts, if her testimony is supported by the quantum of evidence required in such cases.

III. The Quantum Of Evidence. Our cases hold that the evidence to establish a constructive trust must be clear, cogent, and convincing. See Bray v. Timms, 162 Ark. 247, 258 S. W. 338; and Ladd v. Bones, 213 Ark. 1030, 214 S. W. 2d 353. Appellants most seriously insist that appellee failed to offer such quantum of evidence; but a careful review of the record convinces us that the appellants are in error.

Mr. Crawford, husband of Mrs. Florence Moody Crawford and stepfather of Mattie Moody Bunch, testified that Mrs. Crawford always said that the land belonged to Mattie Moody Bunch and would go to her absolutely on the death of Mrs. Florence Moody Crawford. Mrs. Janie Moody, sister of Mrs. Florence Moody Crawford, testified that Mrs. Crawford repeatedly told her that the property belonged to Mattie Moody Bunch and would so revert on the death of Florence Moody Crawford. One disinterested witness was Mr. Sacrider. He said that Mrs. Florence Moody Crawford always referred to the land as being “Mattie’s place”, and that shortly before 1954 such statements were reiterated by Mrs. Florence Moody Crawford.

A number of other witnesses testified as to similar and stronger statements made all along by Mrs. Florence Moody Crawford. It was shown that in 1938 and in other years up to 1945 Mrs. Florence Moody Crawford paid Mattie Moody Bunch rent money from the place; and, that after 1945 Mattie Moody Bunch was in sufficient financial condition where she let her mother keep the rent money. Furthermore, it was shown that when people would go to Mrs. Florence Moody Crawford to try to buy a building site on the land, she would tell them that she could not sell them anything more than a life interest because the land belonged to Mattie Moody Bunch. At one time Mrs. Crawford wanted to sell a man a 5-acre tract and Mattie Moody Bunch told her that she couldn’t do it, so the sale was never made. It was only in two instances — both agreed to by Mattie Moody Bunch — that Mrs. Crawford actually sold one-acre parcels of the land. All of this evidence is overwhelming to the effect that Florence Moody Crawford always recognized that she was holding the title to this property only for her lifetime and that on her death it would go back to Mattie Moody Bunch.

The appellants’ witnesses attempted to contradict the appellee’s testimony as to facts surrounding the execution of the 1925 deed and the 1937 deed; but the testimony of appellants’ witnesses was largely contradicted and overcome by the testimony of other witnesses and by certain physical facts.

IY. Other Points Urged By Appellants. Appellants make three other contentions, all of which we find to be without merit.

In the first place, appellants insist that the various witnesses should not have been allowed to testify as to the statements made to them by Mrs. Florence Moody Crawford concerning the land and title. Appellants say that such statements were inadmissible under the case of Waldroop v. Ruddell, 96 Ark. 171, 131 S. W. 670. The holding in that case was that declarations of a decedent —to the effect that she owned the land — were not admissible because they were self serving. But, in the case at bar, the statements made by Mrs. Florence Moody Crawford and admitted in evidence were to the effect that she was not the fee simple owner. Therefore, the declarations were against interest and were admissible under our holdings in Smith v. Clark, 219 Ark. 751, 244 S. W. 2d 776; Sanders v. Baker, 217 Ark. 521, 231 S. W. 2d 106; and Norden v. Martin, 202 Ark. 180, 149 S. W. 2d 550. In the last cited case we quoted from Russell v. Webb, 96 Ark. 190, 131 S. W. 456:

“It is well settled that declarations and admissions of one in possession of land, relating to the title thereof and adverse to his interest, are admissible against him; and declarations and admissions of a person made while in possession, adverse to his title are admissible against his successors in interest and all who claim under him. ’ ’

Secondly, appellants insist that the Statute of Frauds prevents the maintaining of this action and prevents the admission of any oral testimony as to the trust. Appellants claim that § 38-106 Ark. Stats, is applicable. We find appellants’ contention in this regard to be without merit. We have repeatedly held that the statute does not apply to a constructive trust. See Armstrong v. Armstrong, 181 Ark. 597, 27 S. W. 2d 88; and Walker v. Biddle, 225 Ark. 654, 284 S. W. 2d 840.

Finally, appellants plead the five-year Statute of Limitations (§ 37-213 Ark. Stats.) and say that the deeds were executed by Mattie Moody Bunch in 1925 and 1937 respectively, and this suit was not Lied until 1954. This contention is without merit. The trust was not repudiated by Mrs. Florence Moody Crawford until her will was probated after her death in 1954; and limitations commenced at that time. See Walker v. Biddle, 225 Ark. 654, 284 S. W. 2d 840.

We conclude that the trust was proved by the quantum of evidence required and, accordingly, the decree is in all things affirmed.

       She was born Mattie Moody. She first married Mr. Reece, and later married Mr. Bunch; but for definite identification we will at all times refer to her as “Mattie Moody Bunch”.

       The opinion cites Vol. 3, page 2033 of Pomeroy. That was the then current edition in 1909. The present edition of Pomeroy is the Fifth Edition by Symons; and this quotation is found therein in § 1053.

       The titles of these persons are not questioned in this case.


author: Minor W. Millwee, Associate Justice.

text:
    Hollifield v. Bird & Son, Inc.
    5-1239
    301 S. W. 2d 27
    Opinion delivered April 15, 1957.
    [Rehearing denied May 13, 1957]

      J. Fred Jones, for appellant.

      Riddick Riff el, for appellee.
   Minor W. Millwee, Associate Justice.

Appellee, Bird & Son, Inc., operates a slate crushing mill and roofing granules processing plant near Grlenwood, Arkansas. Appellant, Luther Hollifield, was 40 years old and a strong, vigorous and apparently healthy individual when he started working for appellee. He worked at the plant at four different periods: February 1, 1944, to September 25, 1944; January 22, 1948 to December 21, 1948; May 27, 1949 to September 1, 1949; and February 14, 1951 to May 4, 1952.

During his entire employment at appellee’s plant the appellant was exposed to varying amounts of slate dust in the air containing from 24.10% to 44.27% free silica according to one analysis and from 32.35% to 41.27% according to another analysis. During most of the employment appellant worked either as a millright or a carpenter. On or about January 1, 1952, it became a part of appellant’s duties as an “extra man” to spend about two hours each day in an unventilated steel tank where very fine slate dust poured from a conveyor through a hole in the top of the tank. He was required to shovel and distribute the dust to the four corners of the tank until it was filled. The air would become so hot and heavy with the fine dust that he could not endure the conditions more than three to five minutes at a time and would have to leave'the tank to gather his breath. It was also a part of appellant’s duties to sweep out boxcars containing various grain and chemical dusts. Appellant continued to do this type work during the last four months of his employment when he developed a severe cough, was unable to breathe without sitting up at night, and became exhausted on slight exertion. He was forced to quit work on May 4, 1952, and, so far as the record discloses, has been unable to do any kind of work requiring strenuous physical activity since that date.

Appellant filed a claim with the Arkansas Workmen’s Compensation Commission contending he was totally disabled because of pulmonary emphysema which was either caused or aggravated to its disabling status by inhalation of the dust to which he was exposed in his employment by appellee, Bird & Son, Inc. After numerous tests and examinations by various doctors and three extensive hearings before three single commissioners an order and opinion were entered on March 3, 1955 by Commission Chairman Bayard Taylor, who conducted the last hearing, in which it was found: “That the concentrations of dust in which claimant was required to work constituted an unusual working condition and one of a hazardous nature from which claimant sustained an accidental injury resulting in disability.” Appellee and its insurance carrier were directed to pay reasonable medical expenses incurred by appellant and compensation at the rate of $25.00 per week beginning May 5, 1952, and continuing under the terms and provisions of the Arkansas Workmen’s Compensation Law.

Appellee requested and was granted a review of Commissioner Taylor’s order by the full Commission. In the meantime the appellant was hospitalized and a new series of medical examinations was begun and conducted by six specialists, three being selected by each party. Examinations or reports were made by these and other doctors in and out of Arkansas. After two hearings before the full Commission on September 6, 1955, and September 22, 1955, an opinion was entered on February 24,1956, finding: “That between January 1952 and April 1952, claimant sustained an accidental injury that arose out of and during the course of his employment with Bird & Son, Inc., said accident being an over-exposure to heavy concentrations of dust that resulted in a temporary aggravation of claimant’s pulmonary symptoms.

“That as a result of claimant’s accidental injury he was temporarily totally disabled from May 5, 1952 to September 25, 1952, inclusive, and on the latter date claimant’s disabilities resulting from said exposure to dust terminated without residual disability. ’ ’ The Commission found there was no serious conflict in the medical evidence to the effect that the heavy concentrations of dust to which appellant was exposed constituted an accidental injury that arose out of and in the course of his employment and “aggravated his pulmonary symptoms” to the point of disability. However, it concluded that the additional evidence required it to modify and amend the opinion by Commissioner Taylor rendered March 3,1955, to the extent that September 25, 1952, represented the termination period of such temporary total disability.

While the numerous doctors variously described the condition suffered by appellant, the medical evidence is overwhelming to the effect that he had pulmonary emphysema, the symptoms of which became apparent during the last four months of his employment. There is no appeal from the Commission’s finding that appellant suffered a compensable accidental injury by reason of employment conditions which aggravated the emphysema, or its symptoms, to the point of disability. However the appellant prosecuted an appeal to the Montgomery Circuit Court from that part of the order which found that his disability resulting from the exposure to dust terminated without residual disability on September 25, 1952. The circuit court affirmed the order of the Commission.

The sole issue is the sufficiency of the evidence to support the Commission’s finding that appellant’s work connected disabilities terminated on September 25, 1952, without residual disability. This question must be determined under the established rule that the findings of fact made by the Commission are entitled to the same force and effect as a jury verdict and will not be disturbed on appeal if supported by substantial evidence. J. L. Williams & Son v. Smith, 205 Ark. 604, 170 S. W. 2d 82. But the sufficiency of the testimony to support the Commission’s finding is a question of law which this court will review on appeal. Bales, Administratrix v. Service Club No. 1, Camp Chaffee, 208 Ark. 692, 187 S. W. 2d 321.

The “additional evidence” upon which the Commission based its finding that appellant’s disabilities from dust exposure terminated on September 25, 1952, consisted of the reports or testimony of the several doctors selected by the parties. This testimony followed much the same pattern as that adduced in the recent case of Boyd Excelsior Fuel Co. v. McKown, 226 Ark. 174, 288 S. W. 2d 614. In addition to the reports and testimony of the Arkansas doctors certain portions of the hearing transcripts together with X-ray films and other exhibits were sent by the insurance carrier to Dr. O. A. Sander at Milwaukee, Wisconsin. In his letter report to the carrier in reply, Dr. Sander, as in the Mc-Kown case, supra, found there was little, if anything, wrong with the claimant and based his definite opinion to that effect upon his examination of reports and transcripts of evidence which reflected facts directly to the contrary. However he did suggest that any bronchial irritation suffered by appellant might very well be attributed to his smoking habits. His further recommendation that such habits be considered was purportedly based on “the transcripts” which clearly revealed that appellant had never used tobacco in any form. As we pointed out in the McKown case, such reports hardly amount to substantial evidence.

Appellee candidly concedes that no witness testified that appellant’s disability caused by the dust aggravation terminated on September 25, 1952; and that the record reveals no circumstances, such as a return to gainful employment, which would indicate this date as being the date of termination of his disability. But appellee points to the testimony of Dr. Fred Gray to the effect that appellant did not have any signs of bronchial irritation when he examined him on February 24, 1954, and that a dust irritation should clear up in a matter of days or weeks. Aside from the fact that appellant’s condition on February 24, 1954, would scarcely prove a termination of his disability on September 25, 1952, it is difficult to reconcile the doctor’s opinion with his further testimony that appellant was quite obviously short of breath and fell far below normal in his ability to expire air at the time of the examination. It was upon the basis of these and other symptoms that Dr. Gray at that time made a diagnosis of “pulmonary emphysema, far advanced”.

In order to sustain the finding of the commission, reference is also made to a letter from Dr. Harvey Shipp to Dr. W. J. Jones dated November 11, 1952, regarding an examination of appellant by Dr. Sbipp on September 24, 1952, in which he found “no obstructive lesion in any of the bronchial orifices”, and that, “the mucosa itself was relatively normal in appearance and shows complete recovery from inhalation of dust.” This letter was introduced at the hearing before Commissioner Taylor and was not a part of the “additional evidence” upon which the full Commission based its determination that appellant’s disability terminated in September, 1952. It should also be noted that in the same letter Dr. Shipp stated he was unable to explain appellant’s “dyspnea on exertion” and recommended that “he continue on an expectorant cough syrup”.

Under the undisputed medical testimony the appellant developed well known and definite symptoms of pulmonary emphysema such as irritation of the bronchial tubes, a severe cough, shortness of breath and easy fatigue on slight exertion as a result of his exposure to the silica dust in the course of his employment. Even if it could be said there was substantial evidence to support a finding that the bronchial irritation had cleared up on September 25, 1952, there is no evidence that appellant’s shortness of breath or easy fatigue on the slightest exertion has improved since his removal from the dust. . Dr. John E. Greutter, one of the doctors selected by appellee, testified before the full Commission that appellant was still disabled from performing any work demanding exertion or strenuous activity and there was no substantial evidence to the contrary.

We conclude that the Commission’s finding that appellant’s temporary total disability terminated on September 25, 1952, is without substantial evidence to support it. The judgment of the circuit court is accordingly reversed and the cause remanded with directions to remand the case to the Commission with directions that appellee and its insurance carrier pay appellant compensation from May 4, 1952, to February 24, 1956, and continue such payments thereafter within the limits of the compensation act as long as appellant is disabled together with reasonable medical treatment for appellant within said limits.

Justice George Rose Smith dissents.


author: George Rose Smith, J.

text:
    Houston v. Griffin.
    5-1241
    300 S. W. 2d 931
    Opinion delivered April 15, 1957.

      Spitzberg, Bonner, Mitchell and Hays and Kaneaster Hodges, for appellant.

      Neill Reed, for appellee.
   George Rose Smith, J.

Dr. Troy Raney and his wife formerly owned eighty acres of land as tenants by the entirety. The appellant, G. P. Houston, claiming title under separate deeds from Dr. and Mrs. Raney, brought this suit to enjoin the sheriff from selling the land under a writ of execution issued upon a judgment which the appellee W. R. Griffin, had obtained against the Raneys. The sale was held, however, and Griffin was the purchaser. Houston then amended his complaint to ask that the execution proceedings be canceled as a cloud upon his title. Griffin countered with a request that the deeds from the Raneys to Houston be set aside as fraudulent conveyances.

Upon trial of the case the chancellor sustained the deed from Mrs. Raney to Houston, but the court held that Houston’s claim of title under two deeds from Dr. Raney was subordinate to the lien of Griffin’s judgment. The court concluded that Houston owns an undivided half interest in the land under his deed from Mrs. Raney and that Griffin owns the other undivided half interest by reason of his purchase at the sheriff’s sale. (This holding evidently means that Houston and Griffin became tenants in common. Since neither party contends that they should instead be treated as what might be called tenants by the entirety pur autres vies, we do not examine that issue.) In addition, the court granted to Houston a right of contribution with respect to a mortgage debt and certain taxes that he had paid. Both parties have appealed.

Most of the issues hinge on the basic question of whether the Raneys’ deeds to Houston were fraudulent. Griffin obtained his judgment against the Raneys on August 17, 1954; so his asserted lien against the land became effective on that date. Houston relies upon a quitclaim deed from Mrs. Raney, dated June 7, 1954, and upon two quitclaim deeds from Dr. Raney, the first dated July 15, 1954, and the second dated September 15, 1954. All three deeds to Houston were filed for record more than a year after the entry of Griffin’s judgment.

The evidence supports the chancellor’s finding that Mrs. Raney’s deed was not a fraudulent conveyance. Houston had acted as one of Mrs. Raney’s attorneys in a divorce suit against Dr. Raney and had obtained a divorce decree for her on April 20,1954. Both Houston and Mrs. Raney testified that during the pendency of the divorce proceedings Houston lent some $380 or more to Mrs. Raney, to pay living expenses for herself and her children. Mrs. Raney’s conveyance of her interest in the land was given to satisfy this debt. It is not shown whether the value of Mrs. Raney’s interest in the land was greater or less than the amount of her obligation to Houston. The deed is dated June 7, 1954, which was before the entry of Griffin’s judgment against the Raneys. Except for the delay in the recording of the instrument there is nothing to indicate that the deed was executed after the date on which it was ostensibly signed and acknowledged. We conclude that Griffin failed to meet the burden of proving Mrs. Raney’s deed to be fraudulent.

Houston contends that the chancellor should also have upheld his claim to Dr. Raney’s former interest in the land. The divorce decree in favor of Mrs. Raney, entered in April of 1954, had directed that Dr. Raney pay a fee of $400 to Mrs. Raney’s attorneys. Houston attempted to collect this fee in June by writing to Dr. Raney, who had moved to Nevada. In reply Dr. Raney expressed his willingness to pay the fee as soon as he could. Houston then prepared a quitclaim deed for Dr. Raney’s signature and mailed it on July 5. According to Houston’s recollection, he received the executed deed about August 1. He says that later on Raney’s father-in-law insisted that the deed expressly recite that it was in satisfaction of the $400 attorney’s fee. A second deed was therefore prepared and sent to Dr. Raney, who executed and acknowledged it on September 15, which was after the effective date of Griffin’s lien against the land. It is contended that the second deed was merely a' correction or amplification of the first, although it does not so recite. The chancellor held that the title was still in Dr. Raney when Griffin obtained his judgment.

Neither Dr. Raney nor the notary who purportedly took the acknowledgment on both deeds was called as a witness. The deed of September 15 is admittedly genuine, but the testimony about the authenticity of the July 15 conveyance is in conflict. A comparison of the original instruments indicates rather clearly that the handwriting on the July deed was copied from that on the genuine deed of September 15. It follows that tbe questioned instrument could not have been executed prior to Griffin’s judgment of August 17. Tbe following matters are readily apparent from a comparison of tbe genuine deed and the one subject to question:

(a) The signatures of Dr. Eaney and of the notary on the September deed are written smoothly with even strokes of the pen. Those on the July deed are jerky and, as Griffin testified, have the appearance of having been traced.

(b) On the genuine deed the notary made in the lower lefthand corner an unusual notation, which reads: “State of Nevada, County of Washoe. Leona A. Mosbaugh notary. My Commission Expires June 15, 1958.” The notary also completed the printed acknowledgment on the back of the deed, but there the heading refers to Churchill county instead of Washoe county. The July deed contains the same meaningless notation on its face and the same reference to a different county in the acknowledgment.

(c) The notary’s pointless notations on the two deeds are remarkably similar with respect to the position of the written lines, the spacing of the words, and certain characteristics by which the notary’s signature on the face of each deed differs from her signature on the back of each deed.

(d) On each deed a rubber stamp was used to show the expiration date of the notary’s commission. The stamped lines are of different length and could not have been made with the same rubber stamp.

(e) The embossed impressions left by the notary’s seal on the two deeds, although identical in wording, are dissimilar in numerous details and could not have been made with the same seal.

Upon these facts it is evident that the chancellor was warranted in sustaining the priority of Griffin’s claim to the half interest formerly owned by Dr. Eaney.

Houston contends that even if his assertion of title to Dr. Raney’s interest is rejected his judgment lien for an attorney’s fee is nevertheless valid as against the title subsequently acquired by Griffin at the sheriff’s sale. Houston testified, however, that he had satisfied the record of the judgment, and this had the effect of releasing the lien upon the land. Fields v. Jarnagin, 210 Ark. 1054, 199 S. W. 2d 961. It is also argued that the chancellor should not have taxed the costs against Houston. This matter rested in the chancellor’s discretion, and we cannot say that Houston’s equitable position is so markedly superior to Griffin’s that an abuse of discretion occurred. Fry v. White, 132 Ark. 606, 201 S. W. 1105.

Griffin in turn insists that the trial court erred in upholding Houston’s claim for contribution with respect to a purchase money mortgage (incurred by the Raneys) which Houston discharged and with respect to taxes which Houston paid. These obligations were encumbrances upon the land held by the parties as tenants in common; the chancellor was right in requiring Griffin to bear his fair share of the burden. Cocks v. Simmons, 55 Ark. 104, 17 S. W. 594, 29 A. S. R. 28.

Affirmed on direct and cross appeal, the parties to bear their own costs of appeal.


author: Paul Ward, Associate Justice.

text:
    Hickinbotham v. Corder.
    5-1253
    301 S. W. 2d 30
    Opinion delivered April 15, 1957.
    [Rehearing denied May 13, 1957]

      Kenneth Coffelt, for appellant.

      Bailey, Warren dt Bullion, for appellee.
   Paul Ward, Associate Justice.

Involved is this question: Under what circumstances will a chancery court enjoin the violation of the penal provision of a city ordinance?

On July 9, 1956 the City of Little Bock enacted Ordinance No. 10206 which contains, among other provisions, the following which are pertinent to this case: Section 1 says it shall be unlawful for any person within the corporate limits of the city, on the first day of the week, commonly called Sunday, to open to the public any grocery store. Section 2 provides that any person violating the above provision shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined not less than $25 nor more than $100 for each separate offense. It is not denied that appellant, H. Y. Hickinbotham, has repeatedly violated the above ordinance, or that he threatens to do so in the future.

On August 17, 1956 appellees, A. B. Corder and some 20 other residents of Little Bock filed a complaint against appellant, H. Y. Hickinbotham, making the City of Little Bock a party defendant also.

The essential allegations in said complaint are the following: The plaintiffs are engaged separately and individually in the retail grocery business in the City of Little Bock, being duly licensed, and they bring this action in their own behalf and on behalf of other citizens and residents of said City who are similarly situated or who desire to join therein; The defendant (Hickinbotham) is a résident of said City and is engaged in operating a retail grocery store; The plaintiffs have built up substantial property rights in their respective businesses; The City of Little Bock has passed the ordinance above mentioned; The plaintiffs, who are included in the terms of said ordinance, having no way to ascertain its constitutionality except to violate its provisions; Plaintiffs believe said ordinance is constitutional, but ask the court to enter a declaratory judgment construing its validity and constitutionality. The complaint further states: The defendant, Hickinbotham, has kept his place open on Sundays in plain and open defiance of the law, having done so over a period of years; Said defendant has indicated that he intends to continue to operate his grocery store on Sunday in the future; Said defendant is a competitor of the plaintiffs and other persons operating grocery stores within the City; That by his said conduct said defendant is causing the plaintiffs injury and damage and is unfairly competing with them in the conduct of their businesses, for which they have no adequate remedy at law. The complaint also states: That the penalty provided for the violation of said ordinance, which is limited by Ark. Stats. § 41-3802, is so small and inadequate as to render said statute ineffectual to protect the rights of the public, and to deter the defendant from openly and defiantly violating the aforementioned ordinance and statute. The prayer was for a declaratory judgment construing the validity and constitutionality of said Ordinance No. 10206, and for an order restraining and enjoining the defendant, Hickinbotham, from further conducting a grocery store within the City of Little Bock on Sunday.

To the above complaint appellant, Hickinbotham, entered a special demurrer on the grounds that the court was without jurisdiction over the subject matter and the parties either to issue a declaratory judgment as prayed for or to enjoin appellant from operating a grocery store on Sunday. After the court had overruled his demurrers appellant, Hickinbotham, answered with a general denial, and also stated that the court was without jurisdiction over the subject matter or the parties.

After hearing the testimony of witnesses on both sides the chancellor, on October 8, 1956, entered a decree in favor of appellees, finding that the conrt has jurisdiction, and that said Ordinance 10206 is constitutional, and ordering Hickinbotham permanently enjoined from violating the provision of the said ordinance.

Appellant urges a reversal of the chancellor’s decree on the grounds that (a) “The trial court was without jurisdiction over the parties or the subject matter”, and (b) “The evidence is not sufficient to justify the finding, and judgment of the trial court.”

(a) We have reviewed the authorities dealing with questions similar to the one here presented, and have come to the conclusion that the trial court had jurisdiction over both the parties and the subject matter. It is a general rule that chancery courts will not enjoin the commission of a criminal offense when such commission is the only thing involved. It is equally well settled that chancery courts have jurisdiction, in many instances, to enjoin the commission of a nuisance. This court on two different occasions, in State v. Vaughan, 81 Ark. 117, 98 S. W. 685, and Meyer v. Seifert, 216 Ark. 293, 225 S. W. 2d 4, has said: “The criminality of the act will neither give nor oust jurisdiction in chancery.”

From our analyses of the several decisions of this court it appears that when two elements are present or two conditions exist chancery court will assume jurisdiction to enjoin the commission of a criminal offense. One, when the enforcement of the criminal law will not deter violation. Two, the complaining party or parties must show an injury.

One. Inadequacy of the enforcement of criminal laws takes many forms and may be expressed in several different ways. In the Vaughan case, supra, it was noted that the criminal processes are inadequate to afford relief “from connivance of the officers or other persons.” Equity jurisdiction was justified in State Ex Rel. Attorney General v. Karston, 208 Ark. 703, 187 S. W. 2d 327, this way: “We sum up: by the weight of authority, equity may act to suppress a public nuisance, even though the maintenance of the nuisance is a crime, where there is alleged in addition to the public nuisance, some facts which show the remedy at law, by prosecution of the criminal, is inadequate and incomplete to effect relief. (emphasis supplied)”. The same idea was expressed in different words in the Seifert case, supra, where the court said: “It is characteristic of most instances in which injunctions against criminal acts are sustained that the threat of punishment after the event will not have a very strong deterrent effect upon the offender (emphasis supplied)”. 52 L. R. A. 79 contains annotations from numerous decisions of other jurisdictions which hold, in varying language, that equity jurisdiction may be invoked where the enforcement of criminal statutes does not afford adequate protection against injury to property rights. Typical of these holdings is the one set forth in United Traction Co. v. Smith, 187 N. Y. Supp. 377, where we find this language: “ ‘While the regular remedy for the prosecution of those who violate the penal laws of the state lies in arrest and punishment, the court will not compel parties whose rights are clear to rely on peace officers to protect them in their enjoyment of those rights. ‘There is a preventive as well as a remedial justice’.”

Two. In order to invoke injunctive relief in chancery court it is not enough, of course, to show merely that the criminal laws are not being properly enforced, for whatever reason, but it is also necessary to show that the complaining party has been injured in some way, either involving property rights or civil rights. In many cases of this nature coming before this court the complaining party was the State. In such instances it is held that there must be shown an injury of a public nature, such as a public health or public welfare. Such instances are the Vaughan case, supra, and the Lyric Theater v. State, 98 Ark. 437, 136 S. W. 174. In the former case the court said: “. . . if the public nuisance is one touching civil property rights or privileges of the public, or the public health is affected by a physical nuisance, 'or if any other ground of equity jurisdiction exists calling for an injunction, a chancery court will enjoin, notwithstanding the act enjoined may also be a crime.” In the Lyric Theater case, supra, it stated that “before an injunction could issue restraining acts constituting a public nuisance, it was necessary that the public nuisance should affect the civil or property rights or privileges of the public, or the public health; . . . ” It is of course easy to understand why the injury must be of a public nature where the State itself is seeking the injunction.

If however, as in the case under consideration, certain individuals are seeking injunctive relief it is necessary only that the injury be to their personal property rights. In the Vaughan case, supra, this court recognized the jurisdiction of chancery court to enjoin the violation of a criminal offense where an injury was threatened to the property rights of individuals. There the court quoted with approval: “The difference between a public nuisance and a private nuisance is that one affects the public at large and the other only the individual. The quality of the wrong is the same and the jurisdiction of the courts over them rests upon the same principle and to the same extent.” In the Seifert case, supra, Myer, on behalf of himself and other property owners, sought to enjoin Seifert from violating City Ordinances No. 277 and 386 of the City of Stuttgart which prohibited the erection of a frame building in a restricted district. The court upheld appellant’s right to injunctive relief on the ground that the plaintiff “made a substantial showing of probable damages to his own and other adjoining properties ...” even though it was urged “. . . that the ordinance prescribes criminal punishment, making violation a misdemeanor punishable by fine . . . ”

In the Karston case, supra, where injunctive relief was upheld to prevent the commission of a crime, there was present the element of lack of adequate law enforcement but not the element of injury to property. Thus, on first impression, that case might appear to contradict the “two elements” rule we have just announced above, but a closer study shows such is not the case. There the court recognized the general rule as we have stated it, and then said: “The question then, is, does the complaint here allege ‘some other ground of equity jurisdiction, calling for injunction’.” The court then found the “other ground” to be that, at common law, the maintenance of an open gambling house in violation of law was a public nuisance, and, as such, could be enjoined.

(b) We do not agree with appellant that the evidence is insufficient to support the findings and judgment of the trial court. Several witnesses stated that their businesses, as grocerymen, were adversely affected by reason of the fact that grocery stores were kept open on Sundays. One witness said his business was thus affected to the extent of $1,000. All of appellees had made large investments in the grocery business, varying from $20,000 to $150,000. There was introduced no evidence to the contrary.

During the trial appellant objected to the court’s rulings on several matters regarding the introduction and exclusion of testimony, but these matters are not listed in his “Points” nor are they discussed in his brief.

Affirmed.

Chief Justice Harris and Justice Mill wee concur.


author: Sam Robinson, Associate Justice.

text:
    Bland v. Windsor Audit Company.
    5-1238
    301 S. W. 2d 34
    Opinion delivered April 15, 1957.
    [Rehearing denied May 13, 1957]

      Luke Arnett, for appellant.

      Bailey, Warren & Bullion, for appellee.
   Sam Robinson, Associate Justice.

This case concerns a rule adopted by the Administrator of the Arkansas Employment Security Act. Appellees filed this suit to enjoin the enforcement of the rule. The Chancellor granted the injunction, and the Administrator has appealed. Appellee, Windsor Audit Company, represents about one hundred thirteen employers subject to the Arkansas Employment Security Act. Act 391 of 1941 provides :

“It shall be the duty of the Commissioner to administer this Act; and he shall have power and authority to adopt, amend or rescind such rules and regulations, ... as he deems necessary or suitable to that end. Such rules and regulations shall be effective upon publication in a manner not inconsistent with the provisions of this Act, which the Commissioner shall prescribe. ’ ’

For a period of about seventeen years prior to November 1, 1955, the Administrator had furnished to Windsor daily a list of all claims filed against the account of the employers represented by Windsor. On that date, the Administrator adopted a rule which is the subject of this litigation. The rule provides:

“Any claimant shall be supplied with information from the records of the Division to the extent necessary for the proper presentation of his claim in any proceeding under the Act. Any employer (or his authorized legal representative) shall have made available to him for examination affecting the account of said employer all information in the manner hereinafter provided, except forms, notices and records theretofore furnished said employer.

“Said claimant or employer (or his legal authorized representative) shall notify the Agency twenty-four (24) hours in advance that he will appear in the office of the Employment Security Division at a given hour and date to obtain the information; said notice shall show (1) the name of the employer or employing unit requesting* said information; (2) employer’s account number; and (3) claimant’s name and social security number, that he desires information with respect thereto. Notice to be in writing and received by the Agency twenty-four (24) hours in advance of the request for delivery.”

Appellees contend that the rule is unreasonable in requiring twenty-four hours notice to obtain the desired information; the principal complaint is that the employer has only seven days after a claim is filed in which to protest the allowance thereof, and it is claimed that, in many instances, it would be rather difficult, if not impossible, for the employer to file a protest in the required time if there must be a twenty-four hour notice in order to obtain desired information about the account. The employers further contend that their problem of keeping up with the claims that may be allowed against their respective accounts, and other information pertaining to the status of their account, is greatly facilitated by the method used in the past by their representative, Windsor, in keeping a daily record of claims that have been allowed.

The question is whether the rule requiring twenty-four hours notice is reasonable. The Chancellor held that it is unreasonable. Ark. Stats. § 81-1114 provides that the information must be made available at all times. Undoubtedly, the statute should be construed to mean “at all reasonable times.” No one would contend that the information should be available every minute of the twenty-four hour day. The Administrator does not have to take advantage of the full twenty-four hour period. He may, and in many instances, no doubt he will furnish the desired information immediately upon the request being made, but the rule merely allows the Administrator twenty-four hours in which to furnish the requested information. It appears that it is not so much the contention of appellee that the twenty-four hour period is unreasonable as it is that a rule allowing the Administrator any time would be unreasonable. But, there are 28,-500 employers and 245,000 employees in the State subject to the act; certainly, the Administrator should be allowed some reasonable time in which to furnish the required information. If twenty-four hours is unreasonable, what would be reasonable? Just where is the dividing line? We could safely say that requiring five minutes notice would not be unreasonable, and we could with certainty say that one week would be unreasonable ; but we cannot say that twenty-four hours is unreasonable.

Mr. J. L. Bland, the Administrator, testified that certain information contained in the files is confidential. Mr. Bland said: “I promulgated Regulation No. 24, which was simply to stop what had been a practice of searching through the files and obtaining all sorts of information, both confidential and non-confidential, which practice was making some of our employees subject to criminal prosecution . . . But I would want to eliminate the free searching of the files, not only by any representative of employers but any of my own people . . . And I might add another reason for promulgating the regulation is a complaint from other sources that we are giving preferred service for one agent which enabled him to obtain claims much easier ... I have been advised that the manner in which that was being handled was a violation of the law.” Mr. M. P. Filiatreau, Chief of Benefits of the Employment Security Division, testified that the files contain confidential information. He said: “Now, we are attempting to take the file of the employer down to a desk and give it to him (Windsor), leaving the confidential information in the file, and they can’t see that. Prior to this, he (Windsor) got the whole file and would go through the whole thing. I might add, not only was he allowed to look at the claims in which his clients were represented, but he was going through the entire list of claims having been received from everybody in the State. Under the regulation and our present operation, we are attempting to segregate that information he is entitled to see and deliver it to him outside of the files. And that is the only difference.”

Reversed.

McFaddin, J., dissents.


author: Carleton Harris, Chief Justice.

text:
    Brod v. Brod.
    5-1271
    301 S. W. 2d 448
    Opinion delivered April 22, 1957.

      Tom Gentry, Thorp Thomas and James L. Sloan, for appellant.

      Kenneth Coffelt, Ben M. McCray and Frecl Briner, for appellee.
   Carleton Harris, Chief Justice.

Billy Warren Brod, age 19, a resident of Saline County, Arkansas, died intestate in Saline County on October 8, 1956, leaving as survivors his widow, Linda Brod, age 19, his father, M. L. Brod, age 39, and his mother, Cleo Brod, age 38, all residents of Saline County, Arkansas. On October 15, 1956, M. L. Brod petitioned the Saline County Probate Court for appointment as administrator of the estate of his deceased son. The court approved the petition, and entered an order naming Brod (appellant herein) administrator; appellant qualified, and letters of administration were issued to him. Three days later, the widow, Linda Brod, appellee herein, filed her petition alleging that the appointment of appellant, her father-in-law, as administrator, was premature, without notice to her, and that as the surviving widow of Billy-Warren Brod, she desired to exercise her right of priority under the statute to nominate the administrator of the estate of her deceased husband; that the previous order appointing appellant as administrator was void and should be cancelled, set aside, and held for naught. Her petition was later amended by a prayer to designate her father, Gordon Richardson, as administrator of the estate of Billy Warren Brod. The petition further alleged that she expected to give birth to a child of her deceased husband about January 1, 1957. The matter was heard by the Probate Court on October 29th, and at the conclusion of the hearing, the court found that appellee, as widow of the deceased, had the right to nominate the administrator for her husband’s estate, and that Gordon Richardson, so nominated by appellee, was a fit and proper person to serve and should be appointed; that “the order of this court authorizing the appointment of M. L. Brod as administrator of the estate of Billy Warren Brod, deceased, be, and the same is hereby vacated, and superseded, and the letters of administration issued to M. L. Brod are hereby nullified, cancelled, set aside, and held for naught; it is further considered and ordered that Gordon Richardson, nominee of the widow, be, and he is hereby appointed administrator of the estate of the said Billy Warren Brod, deceased. * * *” From such order, appellant brings this appeal.

For grounds of reversal, appellant argues two points. First — “That appellee had no right under the law to nominate an administrator for she was herself disqualified as such. Thus the appointment of, and issuance of letters of administration to, the appellee’s nominee contravene the pertinent statutory provisions and are void.” It is next contended that “The order which ‘vacated and superseded’ the appellant’s appointment as administrator and ‘nullified, cancelled, set aside and held for naught’ his letters of administration, was completely unwarranted under the evidence and without justification of the law.” We proceed to a discussion of each contention as heretofore set out.

I.

Let it first be said that the right of persons to serve in the capacity of administrator is governed entirely by statute, and accordingly, cases cited from other jurisdictions are of no assistance unless the statute bears close similarity to our own. The Arkansas Statute reads as follows: § 62-2201. “ Persons entitled to domiciliary letters. — a. ORDER OF PERSONS ENTITLED. Domiciliary letters testamentary or of general administration may be granted to one or more of the persons hereinafter mentioned, natural or corporate, who are not disqualified, in the following order of priority: (1) To the executor or executors nominated in the will. (2) To the surviving spouse, or his or her nominee, upon petition filed during a period of thirty days after the death of the decedent. (3) To one or more of the persons entitled to a distributive share of the estate or his or her nominee, as the court may in its discretion determine, if application for letters be made within forty days after the death of the decedent, in case there is a surviving spouse, and if no surviving spouse, within thirty days after the death of the decedent. (4) To any other qualified person, b. — WHO IS DISQUALIFIED. No person is qualified to serve as domiciliary personal representative who is (1) Under twenty-one years of age, or (2) Of unsound mind, or (3) A convicted and unpardoned felon, either under the laws of the United States or of any state or territory of the United States, or (4) A corporation not authorized to act as fiduciary in this state, or (5) A person whom the court finds unsuitable, or (6) A non-resident of this state unless he meets all of the following conditions: * * *”

Appellant, in support of his contention, cites several cases from New York, but the New York statute is quite different from that quoted above. Under the New York statute, one under twenty-one years of age is disqualified from serving, and administration must be granted to persons entitled to share in the personal property, who are competent, with preference given the surviving husband or wife. The statute does not mention the right of the surviving spouse to nominate another, but does provide that if the person entitled to take the entire personal estate is an infant, his guardian shall have the right to letters in his place and stead. It further provides that “administration may be granted to a competent person not entitled, upon the consent of all the persons entitled to take or share in the estate whether within or without this state and competent. * * * ”

Appellant cites the North Carolina case of Boynton v. Heartt, Public Administrator, 158 N. C. 488, 74 S. E. 470, which contains this language: “* * * Generally, if a person entitled to the administration is incompetent for any cause, his right of nomination fails, and, except as above stated, no right of nomination exists. * * *” Let it first be said that this case dealt with the right of four children under 14 years of age, who were nonresidents, to nominate, through their guardian, also a non-resident, the administrator of their uncle’s estate. Thé North Carolina Supreme Court upheld the action of the lower court in refusing to grant letters to the nominee of said guardian. Petitioner (Boynton) argued that the disqualification of a non-resident to administer, was in the same category as one under 21 years of age, and that it had been previously held in Wallis v. Wallis, 60 N. C. 78, that an infant, who could not administer, might nominate. The court pointed out that an examina^ tion of the Wallis case showed that particular question was not raised, and the statement in the opinion to the effect that the lower court might have granted letters to the nominee of the widow was dictum. The court then added, “* * * If, however, the law is stated correctly in the Wallis case, there is a distinction between disqualification on account of non-age and non-residence, because, in the first, the right to administer continues to exist, while the exercise of the right is suspended during the minority, and in the case of a non-resident, he has never had the right to administer. * * * ” At any rate, let us examine the North Carolina Statute. It gives preference to the husband or widow, but makes no mention of the specific right of either to nominate another. One under the age of twenty-one years is disqualified from serving. The statute does not permit any person to nominate another until that person renounces his right to qualify as administrator, when he may “at the same time nominate in writing some other qualified person to be named as administrator. * * *” It would seem from this language that the statute of North Carolina only permits a qualified person to nominate an administrator to serve in his stead. It will be noted that the Arkansas statute makes no such distinction. Under subsection (b) of our statute, in setting out those who are disqualified to serve, it would have been simple enough, had the Legislature so intended, to have written the statute as follows: “No person is qualified to serve as domiciliary personal representative or to nominate another who is (1) under twenty-one years of age. * * *”

In the case of Rivers, et al. v. Alsup, 188 Ga. 75, 2 S. E. 2d 632, the Supreme Court of Georgia quoted from an earlier case dealing with the interpretation of a statute which provided that the widow, if qualified, is first entitled to the grant of letters of administration, and after her, “the next of kin at the time of the death.” From the opinion, “Under the ruling in Headman v. Rose, 63 Ga. 458 (2, 6) 465, ‘if the widow of an intestate is disqualified from taking letters of administration on his estate, she may nevertheless name some person who is qualified for that purpose,’ even as against contesting claimants, who after the widow were entitled to the administration or the selection of the administrator. * * *”

Cases from other jurisdictions have been noted which permit the guardian or next friend of a disqualified person to nominate.

Our statute is similar to those of Arizona and Montana. The Arizona statute gives preference to “the surviving husband or wife, or some competent person whom he or she may request to have appointed.” One is prohibited from serving who is under the age of majority. In re Graham’s Estate, 27 Ariz. 167, 231 Pac. 918, dealt with the right of the guardian of a surviving husband, who was insane, to nominate one to serve as administrator, as against the right of the deceased wife’s mother (who was also custodian of the minor child of the parties) to serve. The Arizona Supreme Court upheld the right of the mother, stating “ * * * if the person first entitled does not choose to qualify, or if the law makes him imcompetent, he cannot, nor can his guardian, nominate another as a substitute to the exclusion of the right which the statute gives to those next in order. * * *”

The Montana Statute provides that letters of administration must be granted first “to the surviving husband or wife or some competent person whom he or she may request to have appointed.” The statute likewise provides that no person is competent or entitled to serve as administrator who is “under the age of majority.”*

The case which appears to be nearest in point, from our research, is In re Stewart’s Estate, 18 Mont. 595, 46 Pac. 806. There, the widow was a minor, 16 years of age, and sought to nominate one Keith as administrator. The trial court denied her petition, and proceeded to grant letters to another. Upon appeal, and in reversing the trial court, the Supreme Court of Montana said: “* * * The respondent’s contention must be that, where the widow is a minor, she is necessarily incompetent to serve herself, and that, inasmuch as she is incompetent to serve herself, she is also incompetent to name some competent person whom she may request to have appointed. But we do not think this contention can be sustained. The first right to administer is granted to the surviving husband or wife; yet it might often happen that such survivor would be, * * * or other disqualification, incompetent to serve. But the statute, as if made especially to cover such a contingency, gives to the surviving husband or wife the right to name some competent person who can serve. This right of the surviving husband or wife to nominate is not made dependent upon the competency to serve of the person occupying such relationship. It is a right of nomination given by virtue of the fact that the person who exercises it stands in the relationship of surviving husband or wife. It is independent of the competency of such husband or wife himself or herself to serve. The person named for appointment by such surviving husband or wife must be legally qualified, as required by Section 59, above quoted. But we must not lose sight of the distinction between the right to name the one who shall serve, and the competency of the person who does serve, for the distinction makes the case simple. * * *”

We prefer the Montana construction, and the quoted language expresses our thought in the matter. Let it also be pointed out that appellee is nineteen years of age, and accordingly, under our statute, has attained her majority/ We conclude that even though appellee was disqualified from serving herself, such disqualification did not preclude her from nominating a person of her choice. It might be mentioned that our statute, while giving a right of priority to certain persons to serve as administrator (as set out in § 62-2201) does not make it compulsory for the court to make such appointment inasmuch as the statute says, “Letters testamentary * * may be granted to one or more of the persons hereinafter mentioned. * * * ” For sufficient cause, and unusual circumstances, the court might well refuse to appoint the person who is given preference under the law, or his or her nominee. In the instant cause, the qualifications of neither appellant nor Richardson are questioned.

II.

Appellant contends that the court had no authority under the law and evidence to set aside the letters of administration which had been issued to him, and in support of such, contention cites the statute. It reads in full as follows: “§ 62-2203. When personal representative may be removed. When the personal representative becomes mentally incompetent, disqualified, unsuitable or incapable of discharging his trust, has mismanaged the estate, failed to perform any duty imposed by law or by any lawful order of the court, or has ceased to be a resident of the state without filing the authorization of an agent to accept service as provided by §• 70 b (6) (b) (62-2201), then the coui-t may remove him. The court on its own motion may, or on the petition of an interested person shall, order the personal representative to appear and show cause why he should not be removed. The removal of a personal representative after letters have been duly issued to him does not invalidate his official acts performed prior to removal.”

It is not necessary that we discuss the provisions of this statute, as it is well established under decisions of this court that a trial court has the inherent right to set aside any orders made during the term, and may even do so on its own motion. American Building and Loan Association v. Memphis Furniture Manufacturing Company, 185 Ark. 762, 49 S. W. 2d 377. In the instant cause, the order appointing appellant was entered on October 15, 1956, and such order was vacated and set aside on October 29, 1956. The Saline County Chancery and Probate Court commences on the third Monday in May and the third Monday in November; accordingly the Saline Probate Court had full authority to set aside any orders made and entered prior to November 19,1956. We therefore conclude that appellant’s argument is without merit.

The cause is affirmed.

       New York Surrogate’s Court, Act of 1920.

       General Statutes of North Carolina, 1943

       Emphasis supplied.

       Italicized words supplied.

       Among others, Michigan and Iowa.

       Arizona Revised Statutes, 1956, 14-417-418

       Revised Code of Montana, 1947, Sec. 91-1401, 91-1405

       § 57-103 Ark. Stats. (1947) Anno.

       Act 25, 1951.
      See also Act 31, 1953.


author: J. Seaborn Holt, Associate Justice.

text:
    Parker v. Whistle.
    5-1254
    301 S. W. 2d 445
    Opinion delivered April 22, 1957.
    [Rehearing denied May 20, 1957]

      Barham <& Swift, for appellant.

      Marcus Evrard and James M. Gardner, for appellee.
   J. Seaborn Holt, Associate Justice.

On October 29, 1954, appellants, D. C. Parker and wife and Clem Whistle and wife, appellees, entered into a contract under the terms of which the Parkers agreed to sell and convey to the Whistles 1410 acres of land, more or less, for a consideration of $261,800. Of this amount the Whistles were to pay $51,000 in cash. Ten thousand dollars, as a part of this $51,000, was paid as earnest money, and the Whistles placed this $10,000 with an escrow agent for this purpose. The contract also provided that the Whistles were to assume “principal balance due on first mortgage as of December 1, 1954, in the amount of $140,000.00; . . . principal balance due on second mortgage as of December 1, 1954, in tbe amount of $70,-000.00; immediate possession of all lands clear of crops,” and the Whistles were to be given possession January 1, 1955. This contract further provided: “It is understood and agreed that if the title is not good and cannot be made good within a reasonable time after written notice is given that title is defective, specifically pointing out the defects, then this earnest money, which has been deposited with Seminole Title & Insurance Company, Agent, is to be returned to purchaser and the usual commission is to be paid the said Agent by the Seller. But if the title is good and the property not paid for as herein specified, this earnest money is to be forfeited to the seller and divided equally between the seller and Seminole Title & Insurance Company, agent. It is expressly understood and agreed, however, by both parties hereto that such forfeiture shall in no way affect the right of either party to enforce the specific performance of this contract. The seller hereby agrees to pay Seminole Title & Insurance Company, agent, $5,600.00 per cent of the total sale price on the real estate as commission.”

It appears that they actually took possession about December 1, 1954 and worked part of the farm for some ten days. On December 9, 1954, a warranty deed was prepared by the Parkers (to the Whistles) in accordance with the contract terms, and this deed with abstract of title was tendered to the Whistles and demand made on them for the purchase price. The Whistles refused to pay, whereupon the Parkers on February 8,1955, brought the present suit alleging the contract breached by the Whistles, claimed the $10,000 earnest money and additional damages. The Whistles answered with a general denial and in a cross complaint alleged that the number of acres in the farm had been misrepresented as containing 1,410 acres, when in fact it contained less than 1,370 acres, and they were not bound by the contract. They prayed that the contract be cancelled and that they recover the $10,000 earnest money.

A trial resulted in a decree for the Parkers for $1,148.24. This appeal followed.

For reversal appellants rely on these points: “1. The judgment is contrary to the evidence and contrary to the law. 2. Plaintiffs are entitled to damages from the defendants, Whistle, for the breach of contract by Whistle in excess of the sum allowed by the trial court . . . Plaintiffs are entitled to the sum of $10,000 deposited in escrow and in the registry of the court as earnest money and partial payment under the contract as a forfeiture under the terms of the contract; it being the intention of the parties from their actions to consider said sum of money as compensation to the plaintiffs for damages in the event of breach.”

After review of all the testimony and the record presented, we have concluded that appellants’ contention that they are entitled to the $10,000 earnest money as liquidated damages under the terms of the contract, must be sustained. As indicated, the Parkers sold and the Whistles bought the farm here referred to as the “Dutch Parker Farm”, containing 1410 acres more or less, in gross. Whistle went over this farm and noted its boundaries. We find no evidence that he bought by the acre, in fact, the evidence showed there was about 1401 acres in the farm. We find no evidence of any fraud or misrepresentation on the part of Parker, the seller. In Ryan v. Batchelor, 95 Ark. 375, 129 S. W. 787, we said: “When a vendor conveys for a specified price a tract of land which is described by metes and bounds or otherwise, with the words added, containing a specified number of acres, more or less, this is a contract not by the acre, but in gross, and does not by implication warrant the quantity.”

As indicated, the contract here provided: “But if the title is good and the property not paid for as herein specified, this earnest money is to be forfeited to the seller and divided equally between the seller and Seminole Title and Insurance Company, agent.” There is no evidence that the title was defective. This earnest money was either to be liquidated damages or a penalty. The evidence tended to show that the Parkers were damaged even more than $10,000. Parker enumerates them as follows: Interest payment on the mortgage debt past due from December 1 to January 1, $1,148.24, cost of labor and material in complying with Whistle’s request for possession — some $3,000, and also an estimated loss of $16,000 in selling at a sacrifice his farm equipment. There was involved here a purchase price of $261,800 and $10,000 obviously is little more than 4 % of this amount. We thinlc it clear in the circumstances that this earnest money, which had been paid by the Whistles on the purchase price and held in escrow, was intended by the parties as liquidated damages and to cover any substantial loss that might occur should the buyer fail to perform, and $10,000 was mutually fixed.

In the case of Hall v. Weeks, 214 Ark. 703, 217 S. W. 2d 828, a situation was presented similar, in effect, to that presented here. There it appears that earnest money in the amount of $4,000 was paid by the buyer, Weeks. We there said: “Penalty, or Liquidated Damages?— That part of the contract affecting the check is a printed form, concluding with an acknowledgment by Welch as agent that the earnest money had been received. Should the buyer default it would ‘forfeit’ to the seller,” and we held: Headnotes “1. Damages — Deposit to Guarantee Performance of Contract. — Check for $4,000 was given as earnest money when contract to purchase tourist court for $40,000 was signed. ' Purchaser repudiated the agreement by stopping payment on the check. Held, the amount represented by the dishonored check should be treated as liquidated damages, there having been a stipulation that proceeds should be divided between the seller and a named realtor ... 3. Damages — ■ Agreement to Pay Specified Sum. — The general rule governing liquidated damages is that a promise in advance of breach of contract will be enforced if the sum named is a reasonable forecast of just compensation for the injury, if the harm is difficult or incapable of accurate estimation. 4. Damages — Agreement That Initial Payment be ‘Divided’. — Language of a contract disclosing intention of the parties that check for $4,000 be cashed and proceeds ‘divided’ between designated persons; showing extent of the transaction contemplated, nature of, the-business offered for sale, (from which the difficulty of estimating in advance what loss would result from a breach) — these considerations were sufficient to warrant the conclusion that liquidated damages were contemplated when the contract was signed.” Also in 6 ALR 2d p. 1406, “. . . the amount stipulated to be paid or forfeited in case of a breach is an important consideration; if it bears a reasonable relationship to the probable actual damages, the construction, other things being equal, will be in favor of liquidated damages, . . . if the amount of such damages is . . . uncertain and difficult of estimation the disputed clause will prima facie be interpreted as one for liquidated damages.”

Having concluded that appellants were entitled to recover the full $10,000 as liquidated damages under the terms of the contract, the decree is reversed and the cause remanded with directions to enter a decree consistent with this opinion.


author: Ed F. McFaddin, Associate Justice.

text:
    McCollum v. McCollum.
    5-1219
    301 S. W. 2d 565
    Opinion delivered April 22, 1957.
    [Rehearing denied May 27, 1957]

      J. B. Reecl, for appellant.

      William G. Daviss, for appellee.
   Ed F. McFaddin, Associate Justice.

From a decree granting the wife a divorce, the husband prosecutes this appeal urging only the two points herein discussed.

I. Appellant’s First Point. “The appellee failed to prove and corroborate a cause of action against the appellant.” The parties were married in 1937 and lived together until May, 1955. They have two sons, aged 15 and 16 respectively. Mrs. McCollum filed this suit shortly after the separation and alleged:

“That prior to their separation, defendant for a long-period of time has pursued a course of rudeness, contempt, studied neglect, physical abuse and open insult toward plaintiff, in an habitual and systematic manner so as to make plaintiff’s condition in life intolerable. That plaintiff did at no time do anything to merit such treatment, and that, in fact, on several occasions, defendant has recognized or admitted his mistreatment of plaintiff and has promised to refrain from such treatment.”

The evidence sustained the quoted allegations. Mr. McCollum struck and beat his wife on numerous occasions, as shown by several witnesses. Not only were there repeated acts of physical violence committed by Mr. McCollum, but many other acts, shown and corroborated, sufficient to support a decree against him either on the ground of cruel and barbarous treatment or on the ground of indignities. To recount all of these would serve no useful purpose. It is sufficient to say that the appellant was guilty of acts sufficient to support the decree and that the wife’s testimony was corroborated by several witnesses.

II. Appellant’s Second Point. ‘‘Both parties were equally guilty of mistreatment of the other and the appellee should have been denied a decree in her favor.” Appellant cites § 34-1209 Ark. Stats., the germane portion of which reads: “If it shall appear to the Court that . . . both parties have been guilty of . . . such other offense or injury complained of in the bill, then no divorce shall be granted or decreed. ’ ’

Appellant says:

“For many years, it was consistently held by this Court that, in cases where the spouses were equally at fault, neither could obtain a divorce. Malone v. Malone, 76 Ark. 28, 88 S. W. 840; Healey v. Healey, 77 Ark. 94, 90 S. W. 845; Strickland v. Strickland, 80 Ark. 451, 97 S. W. 659; Wilson v. Wilson, 128 Ark. 110, 193 S. W. 504; Cate v. Cate, 53 Ark. 484, 14 S. W. 675.”

The language of our statute and cases — that where each of the parties is guilty of an act of divorce then the court denies relief to both of them — is known as the “Doctrine of Recrimination”. As applied to divorce cases, “recrimination” is defined in Black’s Law Dictionary as “a showing by the defendant of any cause of divorce against the plaintiff in bar of the plaintiff’s cause of divorce”.

In some of our cases we have affirmed a decree granting a divorce to a spouse of whom we have said, “she was not without fault”. The same can be said of the appellee in the case at bar. But “fault” does not mean “guilty of conduct which is a cause for divorce”; and before the rule of recrimination can be applied, it must be shown that the party has been guilty of conduct which is a cause for divorce. Hardly any human being is always and forever free of fault. In Franks v. Franks, 211 Ark. 919, 204 S. W. 2d 90, the lower court, in granting the wife a divorce, had said of the parties: “Both of them have done things that should not have been done, and neither of them was free from blame for their troubles . . .” On appeal, the appellant argued that such statement by the lower court prevented the wife from having a divorce. But Mr. Justice McIIaney, speaking for this Court, said of the language of the lower court as quoted:

‘1 In using the language above quoted, the court did not make any finding that appellee had been guilty of any indignities to appellant and none are claimed by him, and the court, no doubt, had reference to the fact, freely admitted by her, that she had on social occasions partaken of intoxicants in small quantities with her husband and others, but never to excess, and that she had played cards for small stakes, such as penny ante poker. We agree with the trial court that this kind of conduct should not have been indulged in by either of them, especially by appellee . . .We think the court Avas warranted in finding that appellee’s indiscretions and misdeeds in these respects were not sufficient to justify a denial of the decree, and that the rule relied on by appellant, stated in the Widders Case, and a number of others cited, is not here violated.”

Before the rule of recrimination could have been invoked to bar Mrs. McCollum from a divorce in the case at bar, Mr. McCollum had to prove that she had been guilty of conduct which is a cause for divorce. We find no such evidence. That she had at spasmodic intervals consumed intoxicants did not prove that she was “addicted to habitual drunkenness for a space of one year”, as is the statutory ground. That she had quarreled with Mr. McCollum when both were drinking does not shoAV “such cruel and barbarous treatment as to endanger”* his life, or that she had been guilty of ‘ ‘ such indignities to the person of the other as to render his condition intolerable”.* Mr. McCollum admitted that he was the greater drinker of the two. "While Mrs. McCollum’s conduct on a number of instances is subject to criticism, nevertheless Mr. McCollum failed to show that she had been guilty of conduct which is cause for divorce; so he cannot successfully claim the application of the rule of recrimination.

The decree is affirmed, with all costs against appellant, and also $100.00 additional to be taxed as attorney’s fees for services by Mrs. McCollum’s attorney in this Court.

Carleton Harris, Chief Justice, not participating.

       The decree- awarded the wife custody of the two children, alimony, attorney’s fees, and property rights. The correctness of the decree regarding these items is not an issue on this appeal.

       These are in the fifth sub-division of § 34-1202 Ark. Stats.

       In Young v. Young, 207 Ark. 36, 178 S. W. 2d 994, we discussed the history of recrimination. In 3 Ark. Law Review 132 there is an article on “Mutual Misconduct in Arkansas Divorce”, which discusses recrimination. Also in 17 Am. Jur. 267 et seq. there is a discussion of recrimination. For some of our recent cases involving recrimination see: Franks v. Franks, 211 Ark. 919, 204 S. W. 2d 90; and Evans v. Evans, 219 Ark. 325, 241 S. W. 2d 713.

       This is Widders v. Widders, 207 Ark. 596, 182 S. W. 2d 209.

       The statute referred to and quoted is § 34-1202 Ark. Stats.