text:
    Arlo CAMP v. Mabel E. NOKES et al
    5-5579
    467 S. W. 2d 730
    Opinion delivered May 31, 1971
    [Rehearing denied June 28, 1971.]

      Jeff Duty, for appellant.
    /. Wesley Sampler, for appellees.
   George Rose Smith, Justice.

In this action by the appellees to recover seven separate loans made by one or more of the appellees to the appellant in 1962, 1964, and 1965, the defendant pleaded the three-year statute of limitations applicable to oral promises. Ark. Stat. Ann. § 57-206 (Repl. 1962). The trial court, sitting without a jury, sustained the plea with respect to only two of the loans. For reversal the appellant contends that the other five loans were also barred when suit was filed on November 22, 1968.

The four oldest loans were made in 1962 and were already barred by the statute when Camp made, in 1967, what the trial court found to have been a part payment of $350. Mrs. Nokes, who had made all those loans, testified that she had applied $100 of the payment to each of three loans and $50 to the fourth. The trial court held that those payments interrupted the running of the statute.

The court’s finding cannot be sustained, for either of two reasons. First, the applications of the payment were apparently made only in Mrs. Nokes’s mind, for there is no testimony that she made any notation upon her canceled checks to Camp, which she had kept, or took any other outward action to indicate how the payment was being applied. Effect cannot be given to a mere secret intent to apply a payment in a certain way. Schoonover v. Osborne, 117 Iowa 427, 90 N. W. 844 (1902). Although the asserted applications were set forth in the complaint, that was too late, for the controversy had already arisen. Lazarus v. Freidheim, 51 Ark. 371, 11 S. W. 518 (1888). Secondly, when a creditor has two or more claims, one of which is barred by the statute, he may apply a payment to the older debt, but his action does not revive that debt. The reason is that a new promise to pay may be inferred from the debtor’s direction that a payment be applied to an outlawed obligation, but that inference cannot be drawn from the creditor’s decision to apply the payment to a debt already barred. Armistead v. Brooke, 18 Ark. 521 (1857); Williston, Contracts, § 178 (3d ed., 1957). Here there is no indication that Camp directed any application of the payment. To the contrary, Mrs. Nokes testified that “There was not anything said between Camp and I what it was to be applied on.”

The fifth loan in controversy was made on May 20, 1965, by all three of the appellees—Mrs. Nokes and her son and daughter-in-law. Mrs. Nokes and her son raised the money by borrowing it from a Missouri bank. Their note to the bank bore interest at 8% per annum and was payable on November 20, 1965, which proved to be three years and two days before the filing of this action. Mrs. Nokes was not able to repay the bank until November 19, 1966. The trial court fixed that date as the beginning point for the running of the statute of limitations. The court reasoned that since Camp had promised to repay whatever interest Mrs. Nokes might pay the bank, the statute was not set in motion until the amount of that interest payment was known.

We are unable to approve that conclusion. Camp was not a party to the bank loan. There is no testimony that he promised to repay the loan to him only when the appellees had repaid the bank. The only testimony upon the point is David Nokes’s statement that Camp said that “he would have the money in approximately thirty days” after the loan to Camp was made. Moreover, 8% interest upon the note to the bank could readily have been calculated to the penny at any time. We find no substantial evidence in the record to support the conclusion that the statute had not run upon the fifth loan when this action was filed.

It is with reluctance that we hold these loans to be uncollectible, for it is clear from the record that Mrs. Nokes was shamefully duped by Camp. Upon the proof, however, the statutes leave us with no choice in the matter.

Reversed and dismissed.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Michael MORROW v. Russell C. ROBERTS, Judge
    5-5569
    467 S. W. 2d 393
    Opinion delivered May 31, 1971

      Rose, Barron, Nash, Williamson, Carroll ér Clay, for petitioner.

      Ray Thornton, Attorney General; Milton R. Lueken, Asst. Atty. Gen., for respondent.
   Lyle Brown, Justice.

Petitioner Michael Morrow was found in contempt of the Faulkner Circuit Court on two separate counts. He was sentenced to fifteen days in jail and fined thirty dollars for failure to respond to a subpoena. When Morrow was brought before the court on that charge he was instructed to permit his hair to be cut. He declined and was sentenced to thirty days on the county penal farm. The sentences were to run consecutively and it was provided that he could purge himself of the second sentence if during the first fifteen day period he permitted his hair to be cut. The following day this court ordered Morrow released under bond based on his petition for a writ of habeas corpus. On appeal Morrow contends that he was not guilty of contempt on either charge and, alternatively, that the punishment was excessive.

We have before us a complete transcript of the record and proceedings incident to petitioner’s conviction. “Consequently, we must review the record to determine the propriety of the trial court’s action.” Widmer v. State, 243 Ark. 952, 422 S. W. 2d 881 (1968). In making that review we begin with the proposition that this is a procedure for criminal contempt and the proof of guilt must be shown beyond a reasonable doubt. Blackard v. State, 217 Ark. 661, 232 S. W. 2d 977 (1950). We examine the record for substantial evidence.

1. Response to the Subpoena. Morrow, a resident of Little Rock, was served with a subpoena on December 2, 1970, to appear in the Faulkner Circuit Court, Conway, on December 7 to testify on behalf of the plaintiff in the case of State v. Pruitt. Morrow did not report on the date ordered. He was brought before the court on December 10 and punishment was imposed. Morrow challenges the punishment for failure to report on two grounds. First, he says he called the office of the deputy prosecuting attorney on the morning of December 7 and advised his secretary that he, Morrow, had no transportation; that he was told by the prosecutor’s secretary to stand by for further instructions; and that he waited at home for some four hours and heard nothing. The first weakness in petitioner’s' position is that he waited some four days and until the day of court when he was to report at 9:00 a.m. before explaining his transportation problem. Additionally, the court may have correctly concluded that other modes of travel were available for the short distance of some twenty-five miles from Little Rock to Conway. Secondly, petitioner contends that because of a stipulation between the parties his testimony was not needed. We do not so interpret the record.

Mr. Pruitt was being tried for alleged embezzlement while employed in the business office of State College of Arkansas. Scores of students had been subpoenaed (Morrow was a former student) by the State to testify that they paid stated amounts as entrance fees, whether they paid in person or by mail, whether they received a receipt, and whether they could identify the college official with whom they dealt. Counsel for both parties interviewed all the students and former students who were present and stipulated what their answers would be to the enumerated questions. Thereupon those students were released. They could not stipulate as to petitioner’s testimony because he was not present. His absence was reported to the court and an officer was sent to Little Rock with an attachment. Shortly after noon counsel for the State and for Pruitt went to the jail where petitioner had in the meantime been incarcerated and obtained from him all information which answered the recited questions. It was at that time that a stipulation was made as to petitioner’s testimony which eliminated the necessity for his taking the witness stand. It must be noted that petitioner’s presence was needed on December 7, the opening day of the trial, and again on the morning of December 10. Furthermore, the prosecutor testified that petitioner’s presence was necessary to obtain the answers to enumerated questions before his presence on the witness stand could be waived. We are unable to say the court was in error in imposing punishment for failure to respond to the subpoena.

This brings us to a consideration of the amount of punishment imposed. It constitutes criminal contempt for one to willfully disobey any process or order of the court. Ark. Stat. Ann. § 34-901 (Repl. 1962). Section 34-902 fixes a maximum fine of fifty dollars and imprisonment not to exceed ten days. However, that section has been held not to be a limitation on the power of the court to inflict punishment for disobedience of process. Spight v. State, 155 Ark. 26, 243 S. W. 860 (1922). Be that as it may, petitioner was nineteen years of age at the time, and according to his unrefuted testimony, he did make some effort to notify the authorities of his transportation problem. Further, his failure to respond caused no delay in the trial. Under the circumstances we think a fine of thirty dollars and twenty-four hours in jail (which he has already served) constitute sufficient punishment.

2. Refusal to Have Hair Cut. When the court imposed penalty on the first count appellant was ordered committed and the sheriff was directed to get appellant a haircut. Later in the day petitioner was brought before the court for a hearing. With regard to failure to get a haircut this colloquy occurred:

COURT: And when you were brought before the court earlier in the day it was an order of this court that you have a haircut. It is my understanding that you refused, is that correct?
MORROW: Yes, sir. May I state the grounds, or would there be objections?
COURT: I care not. Go ahead.
MORROW: Your honor, I am employed as a musician, and I find it more or less a requirement to have my hair like I wear it.

Thereupon petitioner was found guilty of contempt and received a second sentence. The law of contempt is discussed at length in Freeman v. State, 188 Ark. 1058, 69 S. W. 2d 267 (1934). There, in a unanimous opinion, our court set out these principles as encompassing the rules of contempt:

(1) That the power of punishment for contempt is independent of statutory authority, being inherent in and an immemorial incident of judicial power, its conclusions to be reached and judgments found without the intervention of a jury; (2) that, because of this extraordinary and inherent power, the administration of which is entrusted to the conscience of the court alone, the power should never be exercised except in those cases where the necessity is plain and unavoidable if the authority of the courts is to continue; (3) that courts entertain proceedings for contempt for two purposes, one to preserve the power and dignity of the court and to punish for disobedience of orders, and the other to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found the parties to be entitled.

The record before us is devoid of any showing that the appearance of the petitioner created a “plain and unavoidable necessity” that he be punished in order to protect the authority of the court. Nor is there any evidence of an affront to the dignity of the court. If his appearance created any disturbance whatsoever it is not revealed in the record.

A court rule prohibiting the appearance of parties and witnesses appearing in court in other than the ordinary short haircuts has never been litigated in any of the appellate courts. At least no such case has come to our attention. However, there have been a number of so-called “haircut cases” in the inferior federal courts involving school attendance. Those cases, although not controlling here, are indicative of a definite legal trend. A typical case, and one much publicized, is that of Richards v. Thurston, 424 F. 2d 1281 (First Circuit, Mass. 1970). That case held that the suspension of a high school student whose hair fell “loosely about the shoulders” violated the student’s personal liberty guaranteed him by the due process clause of the Fourteenth Amendment. There we find this statement:

We do not say that the governance of the length and style of one’s hair is necessarily so fundamental as those substantive rights already found implicit in the “liberty” assurance of the Due Process Clause, requiring a “compelling” showing by the state before it may be impaired. Yet “liberty” seems to us an incomplete protection if it encompasses only the right to do momentous acts, leaving the state free to interfere with those personal aspects of our lives which have no direct bearing on the ability of others to enjoy their liberty. As the court stated in Union Pacific Railway Co. v. Botsford, 141 U. S. 250 (1891):
“No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley, ‘The right to one’s person may be said to be a right of complete immunity: to be let alone.’ ”
Indeed, a narrower view of liberty in a free society might, among other things, allow a state to require a conventional coiffure of all its citizens, a governmental power not unknown in European history.

The cause is affirmed in part and reversed in part with directions to modify the punishment for failure to respond to the subpoena and to quash the contempt finding on the second count we have discussed.

       A jury trial is now required in serious (as opposed to petty), criminal contempts. Bloom v. Illinois, 391 U. S. 194 (1968).


author: John A. Fogleman, Justice.

text:
    O. M. (Olin) HELMS and Dovie Helms v. Jack C. VAUGHN
    5-5599
    467 S. W. 2d 399
    Opinion delivered May 31, 1971

      Chambers ir Chambers, for appellants.

      W. D. McKay, for appellee.
   John A. Fogleman, Justice.

This is a suit to quiet title in the appellee, Jack C. Vaughn, against any right, title, claim or interest of appellants. O. M. Helms and Dovie Helms and others, in an undivided one-eighth interest in the oil, gas and mineral royalty in, upon and under a 40-acre tract of land in Lafayette County, Arkansas. The facts are not disputed.

On April 21, 1947, O. M. Helms and wife, Dovie Helms, owners in fee simple of the land, conveyed an undivided one-fourth royalty interest in and to all oil and gas and other minerals in the land to H. Steckol. Spartan Drilling Company, a partnership composed of G. H. Vaughn, Jr., and Jack C. Vaughn, purchased the interest of H. Steckol and his wife, Ethel Wheeler Steckol, on July 5, 1947. When the Spartan Drilling Company was dissolved on December 31, 1958, each of the partners was declared to be one-half owner of all the interest owned by the partnership. On December 27, 1963, Jack C. Vaughn and wife, Mary Josephine Mc-Corkle Vaughn, executed an instrument, describing the 40-:acre tract, which, in pertinent part, reads:

RELEASE

KNOW ALL MEN BY THESE PRESENTS:

THAT, JACK C. VAUGHN, for and in consideration of the sum of One Dollar ($1.00) and other good and valuable consideration, the receipt of which is hereby acknowledged, does hereby release, remise, relinquish and surrender all of his right, title and interest in and to the oil royalty, gas royalty and royalty in casipghead gas, gasoline and royalty mined from the following described lands in Lafayette County, Arkansas, to-wit: . . .

This appeal was taken by the Helmses only. Steckol and his wife filed a disclaimer and asked the court to dismiss the cause as to them.

The chancellor held the “release” void and of no effect for the reason that it did not have a grantee and was not a proper conveyance and that Vaughn was not estopped because there was no showing that any of the defendants relied on the “release” to their detriment. Title to the royalty interest in the land was quieted and confirmed in Jack C. Vaughn, appellee, as against the defendants.

The appellants contend that the release executed by the appellee is a valid conveyance that divested title from appellee and vested it in appellants, that the release constituted an abandonment of the royalty interest, and that a royalty estate once abandoned should merge with the surface estate and be considered as a single interest.

The law is well settled in this state that a conveyance of oil or gas in its natural state is a conveyance of an interest in land. Osborn v. Arkansas Territorial Oil & Gas Co., 103 Ark. 175, 146 S. W. 122; Watts v. England, 168 Ark. 213, 269 S. W. 585; Arrington v. United Royalty Company, 188 Ark. 270, 65 S. W. 2d 36, 90 A. L. R. 765; Hanson v. Ware, 224 Ark. 430, 274 S. W. 2d 359, 46 A. L. R. 2d 1262. Since an oil and gas deed conveys an interest in land, all the formalities of a conveyance of any other interest are required. Osborn v. Arkansas Territorial Oil if Gas Co., supra. The release executed by Jack Vaughn and his wife could not operate as a conveyance to anyone since no grantee was named or otherwise identified in the instrument. Adam-son v. Hartman, 40 Ark. 58; Williams v. Courton, 172 Ark. 129, 287 S. W. 745; Curlee v. Morris, 196 Ark. 779, 120 S. W. 2d 10. Thompson on Real Property, Perm. Ed., Vol. 6, 347, § 3006 states:

Unless a grantee is named in some part of the deed, title does not pass, and the deed is void; but this mle cannot be invoked to affect the equitable rights of the parties growing out of the transaction. The principle of implied authority to fill in blanks is not applicable to deeds. A deed which failed to name a grantee and was not acknowledged at the time of its execution was void in the absence of circumstances showing the application of the doctrine of estoppel.

In Nall v. Scott, 233 Ark. 21, 342 S. W. 2d 418, we said that no particular form was necessary to constitute a release, so long as the contract is complete, the intention to release manifest and the parties sufficiendy described to identify them. Here, elements of a complete contract are lacking, and the parties in whose favor the release should operate are not identified. This release could have been to Jack Vaughn’s partner or to Steckol as well as to the Helmses.

Appellants contend that appellee abandoned the property. Appellee asserts that this argument was not raised in the trial court and cannot be raised here for the first time. In their answer to the appellee’s complaint the appellants alleged among other things that the release executed by the appellee surrendered all his rights, title and interest and that the title to the royalty interest should be quieted in them. We construe pleadings liberally in favor of the pleader, and every reasonable inference and intendment are indulged in his favor. American Underwriters v. Shook, 247 Ark. 1082, 449 S. W. 2d 402; Dickerson v. Hamby & Haynie, 96 Ark. 163, 131 S. W. 674. See Ark. Stat. Ann. § 27-1150 (Repl. 1962). Since the appellants alleged that the appellee surrendered the land, we cannot say that abandonment was not an issue in the trial court.

We do not agree, however, that the elements necessary for abandonment are present in this case. One cannot divest himself of title to real property by abandonment alone. There must not only be an intent on the owner’s part to relinquish his claim, it must be accompanied by circumstances of estoppel and limitation, if the abandonment is not by a legal deed of conveyance. Carmical v. Ark. Lbr. Co., 105 Ark. 663, 152 S. W. 286; Sharpp v. Stodgill, 191 Ark. 500, 86 S. W. 2d 934, 87 S. W. 2d 577; C. W. Lewis Lumber Co. v. Fletcher, 224 Ark. 464, 274 S. W. 2d 472. There was no evidence of any reliance on Vaughn’s alleged abandonment or of any other condition which would create an estoppel or bring limitations into play.

Appellants’ third point is based upon a finding of abandonment. Since we find that an abandonment was not shown, we do not reach the question of a merger of royalty rights with the surface estate.

The decree is affirmed.


author: Frank Holt, Justice.

text:
    NINETEEN CORPORATION v. GUARANTY FINANCIAL CORP.
    5-5577
    467 S. W. 2d 728
    Opinion delivered May 31, 1971
    [Rehearing denied June 28, 1971.]

      John Harris Jones, for appellant.

      Coleman, Gantt, Ramsay ir Cox, for appellee.
   Frank Holt, Justice.

This is the second appeal in this action. The first appeal resulted from a breach of contract action brought by appellee, Guaranty Financial Corporation, against appellant, Nineteen Corporation. Nineteen Corporation v. Guaranty Financial Corp., (Ark. Mar. 17, 1969) 438 S. W. 2d 685. There we affirmed the chancellor’s findings that appellant had mortgaged to appellee 150,000 shares of Universal Insurance stock and certain real property located in Oklahoma as security for the purchase price of the 150,000 shares purchased from appellee; that appellant had defaulted on the sales contract; that it was not a usurious transaction; and that appellee was entitled to a judgment of $293,329.51. We reversed and remanded, however, because the chancellor’s decree ordered a judicial sale for cash of the 150,000 shares of stock contrary to Ark. Stat. Ann. § 51-1109 (1947). This statute requires a judicial sale to be on a three months’ credit basis. The decree also erroneously attempted to fix a lien on the Oklahoma lands, the additional collateral.

Upon remand, appellee was ordered to tender back to the commissioner the 150,000 shares of Universal Insurance Company stock which it, as the secured party, had purchased at the void cash sale in order that a sale on a three months’ credit basis could be properly effected. Appellee, however, was unable to deliver the shares of stock to the commissioner. During the pendency of the first appeal, it had purchased the stock at the void judicial sale for $230,000 cash and a month later sold the stock to a third party, Arkansas Best, for $251,574.07. Also, during the first appeal, appellee had obtained a foreclosure against the Oklahoma lands and had purchased these lands at a judicial sale.

In the present proceeding the chancellor found a $41,755.44 deficiency judgment (after applying the $251,-574.07 to the original $293,329.51 judgment) plus the interest and attorney’s fees. However, the chancellor ordered appellee to reconvey the Oklahoma property to appellant upon payment by appellant of this deficiency judgment plus the interest and attorney’s fees, all of which totaled $65,546.79. Appellant brings this second appeal asserting that the chancellor erred by refusing to apply the presumption that the stock sold at the void sale was worth at least the amount of the debt and erred further in accepting the testimony of Guaranty’s president as to the price received upon the resale of the stock as being the amount that should reasonably have been obtained through a sale conducted according to law.

In support of its contention, appellant relies upon Norton v. National Bank of Commerce, 240 Ark. 143, 398 S. W. 2d 538 (1966); Barker v. Horn, 245 Ark. 315, 432 S. W. 2d 21 (1968), and related cases. In Norton we said: “We think the just solution is to indulge the presumption in the first instance that the collateral was worth at least the amount of the debt, thereby shifting to the creditor the burden of proving the amount that should reasonably have been obtained through a sale conducted according to law.” In Barker the only evidence adduced to show the value of the collateral was the selling price and this court refused to accept that evidence as being sufficient to support a judgment in favor of the secured party. In both Norton and Barker, and related cases, the secured party brought an action for a deficiency judgment after the collateral had been sold at a private sale without any notice to the defaulting debtor.

In the case at bar there is no question of notice. The appellant was given notice and, in fact, made objections to the sale. Appellant merely relies upon the presumption established in Norton to prevent a deficiency judgment being rendered against him. Even if we agree with appellant’s contention that Norton is applicable, which we do not decide, we think appellee has sufficiently met the presumption.

We hold that Guaranty’s president was a competent witness to rebut the Norton presumption. He was president of the corporate organization during the entire litigation and testified that he had ten years’ experience in such business affairs and in acquiring and selling mortgages; and that he had placed ten million dollars in mortgage loans. He said that the partial liquidation of Universal plus the sale price of certain assets to Arkansas Best totaled $251,574.07. He testified as to the value of Universal’s assets as of the date of the sale transaction. He stated that the mortgages were valued at $139,841.65; that the total cash owned by the company was $45,732.42; that the company had $50,000 in certificates of deposit and the value of the company’s charter was $16,000. We think that his testimony about the resale to Arkansas Best shows that it was conducted similarly to the original sale nine months earlier to appellant and, therefore, establishes that the resale was a negotiated and an arms-length transaction. In our view this evidence, which is unrebutted, is sufficient to establish the reasonable value of the assets which “would have been obtained through a sale conducted according to law” as required by Norton.

Appellant further contends that the testimony of Guaranty’s president as to the price received upon resale of the stock was refuted by his earlier testimony. At the first trial the president testified as to the value of Universal’s assets in October 1967, the date of the sale to appellant who defaulted. He testified that as of this sale date appellee owned mortgages valued at $148,620.37; $72,663 in cash, $5^0,000 in saving’s accounts, and the charter was valued at $22,000. At the second trial, the same witness testified that in July 1968, the date of the resale, the mortgages were valued at $139,841.65; the company had $45,732 in cash, $50,000 in saving’s accounts, and its charter was valued at $16,000.

Appellant asserts that it only had control of Universal for four days during the nine-month period between the sale by appellee to appellant and the resale by appellee, after appellant’s default, to Arkansas Best, during which interim Universal’s assets diminished at least $41,000. Even though such a variance existed, the president of appellee testified without contradiction that no expenditures were paid from Universal to appellee or any of its management during this nine months or until the resale occurred. He also testified that withdrawals from Universal were used to pay obligations which appellant’s management had incurred during the time it had control of Universal. Other expenditures were for reinsurance and other normal expenses. From a review of his testimony and the entire record, we cannot say that the asserted discrepancies were not sufficiently explained.

Affirmed.

Fogleman, J., not participating.


author: Carleton Harris, Chief Justice.

text:
    Kenneth W. LAZENBY, D/B/a Ken Lazenby Real Estate Co. v. James H. NEWELL and Sally Raylene Newell, his wife
    5-5593
    467 S. W. 2d 734
    Opinion delivered June 7, 1971

      Estes <h Storey, for appellant.

      Murphy, Carlisle & Taylor, for appellees.
   Carleton Harris, Chief Justice.

This appeal relates to whether Kenneth W. Lazenby, appellant herein, is entitled to a commission for the sale of certain real estate in Washington County, Arkansas. Lazenby, d/b/a, Ken Lazenby Real Estate Company was contacted in September, 1968, by appellees, James H. Newell and wife, Sally Raylene Newell, for the purpose of employing appellant to sell their property located at Farming-ton, Arkansas. An “Exclusive Listing Contract” was executed by the parties, Lazenby retaining the original, and the Newells keeping a yellow copy. The contract provided for a 6% commission. Lazenby immediately went to the Newell property, inspected it, and placed a “For Sale” sign in the front yard, the sign reciting “For Sale, Ken Lazenby Real Estate Company, 927 North College Avenue, Fayetteville, Arkansas”. Appellant prepared an ad describing the property and placed it in the Northwest Arkansas Times. The testimony reflects that two parties were shown the property, but no sale was made; however, according to Lazenby, he talked with numerous people who responded to the ad, and also others by telephone who noticed the “For Sale” sign in the yárd. It appears that in October of 1968, on a Sunday night, after Lazenby had retired, a party called and said that he had been driving in Farmington and noticed the sign advertising the Newell property, was interested in it, and would like to have the details. The caller then identified himself as a man named Niccum. According to Lazenby, he had very recently had a problem with a man by the same name, and he thought he was talking with the same party. He was irritated—for two reasons, one because it was late at night, and the other, because he thought Niccum was the same person with whom he had had prior difficulties. Thereafter he discovered that the Niccum who called was an entirely different person, Mr. Newell coming to the office the last of November, and being quite upset about the possible loss of a sale of his property. Lazenby said he admitted that he was wrong, and apologized. Lazenby also called on the Niccums and apologized, and was told that in the event they could arrange to buy the property, he would be contacted. According to appellant, he reported this conversation to the Newells the first week in December, offering to cancel the listing in the event they thought he had rendered a disservice, but he said they told him to go ahead and continue to try to sell the realty. Newell testified however, that Lazenby said, “We could go ahead and continue with him and he would sell the house for us or if we sold the house, we didn’t owe him a commission”. Thereafter, the testimony reflects that on January 27, 1969, Newell went to Lazenby’s office, bringing his yellow copy with him; the evidence is in dispute as to what happened. Newell says that he told Lazenby “Your contract says you need a seven-day written notice” and he inquired if that was necessary, Lazenby replying “No, come in and I will cancel it out”. Newell said that he told appellant that appellees were going to apply for a loan to build a house on some property they had acquired, and if they could get a loan, they would keep the property as rental property. He also stated that they had applied twice for loans but had been unsuccessful. Lazenby gave the following version, “At the time Mr. Newell came into the office to—he brought his yellow copy in and he wanted me to cancel it because he didn’t want to go ahead and sell. It has been my policy that in the event there is illness or some tragedy in the family, or in the event they decided not to sell and to rent the property, then I forego charging a commission. * * * I assumed the man was going to rent his property but I subsequently found out he actually had it sold the day he came in and wanted me to cancel it.” Subsequently, Lazenby testified that “they wanted to build a house on this particular property and that they wanted to use their equity from this subject property to build the new one with. So, we discussed this matter when Mr. Newell came in to cancel the listing and, as I understand it, he told me that he found the cost of building was quite high now and he thought he would just sit back and maybe even rent the property that he had for a while until things settled down where he felt he could afford to build it. Had I known the man had already made a sale on the property, naturally I wouldn’t have entertained any thought of cancelling the listing because he and his wife employed me to make the sale and I used my best efforts to make this sale by spending money on advertising and time to introduce prospective purchasers to it.”

Lazenby then wrote on Newell’s yellow copy, “Owner requested a cancellation on this property so he may rent the property. Therefore, no broker’s fee is charged.” He signed it and handed the copy to Newell.

Tillman Tabor and his wife, Dora Lee Tabor, who live near Farmington, learned that the house was for sale in January, 1969, when passing by and observing the “For Sale Sign” that Lazenby had placed in the yard. They talked with the Newells, who priced it at $13,600, the price that Lazenby had listed. In early March, Tabor again met with the Newells offering to purchase the house for $12,400, and this offer was accepted. The purchase was made on March 13, 1969. Thereafter, Lazenby, learning of the sale, instituted suit for his commission. After the filing of an answer, and the denial of a motion for summary judgment, the case proceeded to trial, and at the conclusion of the evidence, the court, sitting as a jury, entered judgment finding that the contract between the parties had been cancelled after differences between the parties, and that in the month of January, 1969, Lazenby had, in writing, can-celled his contract. From the opinion:

“That the cancellation in writing of this exclusive listing contract by the plaintiff with the specific wording, ‘Therefore no broker’s fee is charged’ effectively ended any obligation on the part of the defendants to pay a broker’s fee to the plaintiff even though there was a subsequent sale of the pertinent property.”

Appellant’s complaint was dismissed, and from the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the trial court erred in permitting appellee to introduce oral testimony of an alleged cancellation of the written contract. It actually is not necessary to discuss this point since the court’s finding of cancellation was based on the written notation made by Lazenby on the copy of the contract, and we determine the litigation on that basis. It might be stated however that appellant’s assertation is in error. See Nance v. McDougald, 211 Ark. 800, 202 S. W. 2d 583, where we upheld the cancellation of a written contract by an oral revocation.

It is next contended that the trial court erred in failing to hold as a matter of law that appellant was entitled to a judgment for his real estate commission. This argument is largely based on the fact that the Tabors were made aware of the fact that the Newell property was for sale by virtue of having seen appellant’s sign in the front yard. We disagree with the contention. In Bodine v. Penn Lumber Co., 128 Ark. 347, 194 S. W. 226, a similar argument was made, but in holding contrary to such a contention, this court said:

“Now, the cases just cited declare the law to be that an owner who has given authority to a party to sell his property has a right to withdraw the offer if done in good faith, and the mere fact that the agent has been instrumental in the introduction of a proposed purchaser does not necessarily give him the right to a commission on a sale subsequently made by negotiations between the owner and the purchaser. Of course, the owner has no right to withdraw the authority for the purpose of preventing the agent from making a sale, but if a reasonable opportunity has been given to the agent to make a sale and he has failed to produce a purchaser who is ready, willing and able to purchase on the terms specified, then the owner has the right to withdraw, and if he subsequently makes a sale he is not liable for a commission, even though it be a purchaser who was originally introduced by the agent.”

Finally, it is asserted that there is no evidence of a substantial nature in the record to support the findings of the trial court. Again, we are unable to agree with appellant. As found by the trial court, the cancellation of the contract, with the words, “therefore no broker’s fee is charged” effectively severed the contractual relationship between the parties. From a legal standpoint, under the pleadings in this case, it makes no difference why Lazenby cancelled the contract, the pertinent fact being that it was unquestionably cancelled. Appellant seems to be arguing that a fraud was practiced upon him; that he was induced to cancel the agreement through false representations made by appellee, and that he would not have cancelled except for those false representations. But a careful search of the complaint reveals no such allegations; it is simply asserted that the sale from the Newells to the Tabors was made due to the efforts of Lazenby. If appellant felt that he had been overreached, and caused to cancel the contract through misrepresentations, he should have so alleged in the complaint that he instituted. While Lazenby stated he subsequently learned that the Newells had already sold the property on January 27, 1969, (date of the cancellation of the contract) there is no evidence in the record substantiating this statement. It will also be observed from the testimony of appellant, heretofore quoted, that he did not say Newell stated he wanted to cancel the listing so that he could rent the property; rather, appellant testified, “I assumed the man was going to rent his property . . .”; also “he thought he would just sit back and maybe even rent the property . . .”.

As stated, we cannot agree there was no substantial evidence to support the finding of the trial court.

Affirmed.


author: George Rose Smith, Justice.

text:
    Larry GRAY v. STATE of Arkansas
    5586
    469 S. W. 2d 123
    Opinion delivered June 7, 1971
    [Rehearing denied August 9, 1971.]

      Nance, Nance, Fleming ir Hatfield, for appellant.

      Ray Thornton, Attorney General; Garner L. Taylor, Jr., Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, aged nineteen, was convicted of having robbed a filling station operator, at pistol point, of $250. The jury fixed his punishment at confinement for eighteen years. He now asserts two points for reversal.

First, we find no merit in his contention that a confession which he made after his arrest was not voluntary. Two officers testified that Gray voluntarily signed a confession after he had first been properly informed of his constitutional rights. Gray, at an in-chambers hearing, contradicted the officers’ testimony by stating that he was not allowed to make a telephone call to arrange for the services of an attorney. We cannot say from the record that the trial judge was wrong in finding the confession to have been voluntarily made.

Secondly, the court erred, however, in allowing the State to introduce proof of other armed robberies committed by Gray, the offenses extending over a period of about three months. The other robberies were detailed by Gray in his confession and were also proved by the testimony of the persons whom Gray robbed, each of whom identified him in the courtroom as the guilty person. The court instructed the jury that the proof of similar crimes was introduced only to show guilty knowledge, criminal intent, and a common scheme. We discussed the matter of proving intent in Alford v. State, 223 Ark. 330, 266 S. W. 2d 804 (1954), and the matter of proving a scheme or design in Moore v. State, 227 Ark. 544, 299 S. W. 2d 838 (1957). For the reasons stated in those opinions the testimony introduced in the case at bar was clearly inadmissible and should not have been allowed to go to the jury.

Reversed.

Fogleman, J., not participating.


text:
    Eugene JARVIS and Noble Jarvis d/b/a Jarvis Liquor Store v. ALCOHOLIC BEVERAGE CONTROL BOARD and David Hodges
    5-5586
    467 S. W. 2d 733
    Opinion delivered June 7, 1971

      Pickens, Pickens ir Boyce, for appellant.

      David Hodges, Prosecuting Attorney, Third District, for appellees.
   Lyle Brown, Justice.

Appellants own and operate a retail liquor store and a beer outlet at Newport, Jackson County. Appellee, Alcoholic Beverage Control Board, issues retail licenses and polices the business establishments possessing those licenses. Appellee David Hodges is the prosecuting attorney and was granted leave to intervene in his official capacity. The director of ABC found appellants guilty of selling liquor and beer to minors and invoked a thirty day suspension of appellants’ licenses. That order was affirmed on appeal to the ABC. An appeal was lodged with the circuit court of Jackson County and the trial court ordered that a transcript of the evidence before the ABC be lodged with that court. Before the scheduled hearing date was reached appellants filed a motion asking for leave to “introduce new evidence before this court in said appeal.” That motion was denied and appellants immediately appealed to this court. The single issue advanced is that the court erred in not permitting the introduction of new evidence.

The order denying permission to introduce new evidence was interlocutory and therefore not appealable. We have no jurisdiction irrespective of whether this issue is raised by the parties. Johnson v. Johnson, 245 Ark. 656, 421 S. W. 2d 605 (1967); Allred v. National Old Line Ins. Co., 245 Ark. 893, 435 S. W. 2d 104 (1968); Gaines v. Patton, 8 Ark. 67 (1847).

Appeal dismissed.


text:
    Guy R. GRIFFITH et ux v. Mary K. GRIFFITH
    5-5595
    467 S. W. 2d 737
    Opinion delivered June 7, 1971

      N. J. Henley, for appellants.

      Ivan Williamson, for appellee.
   John A. Fogleman, Justice.

Appellee is the mother of appellant Guy R. Griffith. Appellant Charlene Griffith is his wife and cotenant by the entirety in a tract of land in Stone County. Their appeal comes from a decree holding that the mother was the assignee of a note executed by her son and daughter-in-law in favor of one P. S. Hunt. The chancery court, however, refused to declare appellants delinquent on their payments and refused acceleration, judgment and foreclosure. Appellee appealed from that part of the decree denying foreclosure. Appellants urge two points for reversal, namely: that the chancery court erred in holding that appellee held the note as assignee of Hunt, and that there is no legal basis upon which appellee can be said to have a lien on appellants’ lands. We find no merit in either contention.

The note for $2,163.92, payable to the order of P. S. Hunt, was dated July 16, 1969. It was payable in quarterly installments of $200 beginning October 16, 1969, and continuing until the entire principal and interest at 10% per annum had been paid. Appellants paid the first installment. The debt was secured by a mortgage on the lands. Appellants, appellee and a daughter of appellee went to the home of Hunt on February 3, 1970. They did not find Hunt at home, but his wife was there. Appellee wrote a check payable to Hunt for the balance then due him. Mrs. Hunt marked the note paid in full, signing her husband’s name.

Appellee’s complaint contained allegations that she was a holder in due course of the note, that the transaction amounted to an equitable assignment of the note and mortgage to her and that Hunt inadvertently failed to formally assign them to her. Appellants defended on the ground that the payment of the debt by appellee was a voluntary gift to them by her. The chancellor made a finding of fact that the transaction was, in effect, an assignment to appellee and that the “paid in full” endorsement was in reality an assignment of the debt carrying with it the lien of the mortgage. We agree.

There was the usual and expected conflict in the testimony of the parties. Appellee testified that she paid Hunt at the request of her son, who had told her on the day before they went to Hunt’s home that he would lose the place if he did not pay Hunt within two days. She said that appellants promised her, before she went to Hunt’s to pay the debt, that they would start paying her in monthly payments as soon as Mrs. Charlene Griffith went to work, but that they had failed to make any payment. Appellee testified that “they gave me all those papers.” She presented the note, mortgage and an abstract of title, and when she testified upon being examined as to whether her son promised to secure her by mortgage, she said that her son reiterated on the way home from Hunt’s that appellants would pay her as soon as his wife went to work, and she added that she had “everything else they had on it” naming the mortgage and abstract specifically. When asked if Mrs. Hunt did not turn the note and mortgage over to “you all,” appellee responded that she had every paper that the Hunts had possessed. She said that they were turned over to her the day she paid the debt and that Mr. Hunt had not complained about his wife delivering the note and mortgage to her. She denied that she made a gift to appellants by this transaction.

A 16-year-old son of appellee, brother of Guy, testified that Guy tried to borrow $500 from him to apply on the mortgage to Hunt and that he was present on one occasion when Guy asked their mother for money to pay Hunt. A daughter of appellee, sister of Guy, testified that she knew that Guy came and asked their mother to pay the debt to keep Hunt from taking the land and promised that appellants would repay her in monthly payments as soon as Charlene Griffith went back to work. This witness was present when the payment was made, and her car was used to transport the family to Hunt’s house. She quoted appellant Guy Griffith as having said that if he lost the place,, he would prefer his mother would get it rather than Hunt.

Guy Griffith testified that he had the money to make the second payment when his mother got some insurance money and volunteered to pay off the debt, without any agreement on the part of appellants to repay her. He also said that his mother never indicated that she expected repayment until other difficulties arose between them, after which she filed the present action. He denied that he had been having any financial difficulties. He also denied any attempt to borrow from his younger brother. He said that his wife was not working at the time of the payment but was employed at the time of the trial. He claimed that Mrs. Hunt had given him the note and mortgage and that he had left them on the dashboard of his mother’s car. He stated that he asked his mother for the instruments on the following Saturday night, but that she refused to give them to him, saying that they were in a safety deposit box in Louisiana. She responded to a later demand on his part, he said, by saying that a Little Rock attorney was holding the papers.

Charlene Griffith testified that she never agreed to pay any money to appellee on this debt. She said that her mother-in-law refused to let Guy have the papers when he decided to go into the hog business and wanted to borrow more money from Hunt. Another child of appellee testified that she went along when the payment was made but stayed in the car. She said that her mother had given her $825 of the insurance money and had said that she wanted to help her children pay their bills. One Lela Rushing testified that appellee told the witness that she had helped the children to the extent of $3,000 and was very sorry for Guy because he was so much in debt.

We are unable to say that the chancellor’s holding as to the agreement between the parties here was clearly against the preponderance of the evidence. That being the case, we agree with appellee that Ark. Stat. Ann. § 85-3-603 (2) (Add. 1961) controls. That section reads:

Payment or satisfaction may be made with the consent of the holder by any person including a stranger to the instrument. Surrender of the instrument to such a person gives him the rights of a transferee (Section 3-201 [§ 85-3-201]). [Acts 1961, No. 185, § 3-603.]

The committee comment on this subsection of the UCC makes its application to the facts here quite clear. See comments 4 and 5. Under Ark. Stat. Ann. § 85-3-201 (Add. 1961), appellee, as a transferee, became vested with all rights of Hunt in the note. She had accounted for her possession of the unendorsed note by proving the transaction through which she acquired it. Rights of the transferor (Hunt) which passed to appellee included the mortgage securing the note. Ragge v. Bryan, 249 Ark. 164, 458 S. W. 2d 403.

The chancellor refused to find appellants delinquent and extended their time for payment, giving them until October 16, 1970, to pay an installment of $200 with interest and requiring subsequent payments to be made as they came due under the note. This action was taken in spite of the fact that the chancellor found that at least two payments were past due. We feel the chancellor erred in denying foreclosure under the circumstances.

The decree is affirmed on appeal and reversed on cross-appeal. The cause is remanded with directions to enter a decree in favor of appellee giving judgment for all unpaid principal and interest on the debt and foreclosing the lien of the mortgage but allowing appellants a reasonable time to pay the judgment before sale of the lands may be had.


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

text:
    HUDSON CHEVROLET COMPANY, INC. v. Donald R. SPARROW
    5-5585
    467 S. W. 2d 751
    Opinion delivered June 7, 1971
    [Rehearing denied June 28, 1971.]

      Robinson & Robinson, for appellant.

      Smith, Stroud, McClerkin ir Conway, for appellee.
   John A. Fogleman, Justice.

Hudson Chevrolet Company, Inc., seeks reversal of a $7,500 judgment in favor of Donald Sparrow. It contends that this judgment was erroneous for want of a jury question on liability, because of erroneous admission of photographs into evidence, and because the amount of the jury verdict was excessive. We find that the judgment must be affirmed.

We will review the evidence favoring appellee in the light most favorable to him, as we must. Appellee Sparrow rented a garage apartment from appellant. His occupancy commenced on March 2, 1969, when he and his bride of a few days moved in. On the following day they returned after being away from the apartment and found their towels singed, and shower curtain and window shades burned as a result of a fire of some sort which had obviously occurred in the bathroom during their absence. The gas stove was burning in the bathroom both when the Sparrows left and when they returned. It was the only stove burning in the apartment on that day. Sparrow said that he reported the incident to his landlord on the next day and requested of the gas company that a check be made for gas leaks. Sparrow testified that he had smelled a “dirty” odor in the apartment prior to the first fire, which he had then thought was attributable to natural gas. Mrs. Sparrow had also detected an unpleasant odor while she was showering on that day. She said that it caused her eyes to burn and that she had told her husband she was not going to take further showers. Walter Hudson, president of appellant, testified he had suggested that the heaters might be bad and in need of adjusting when Sparrow told him of the odor in the apartment and that Sparrow replied that this was about what the gas company employees had indicated. After Sparrow discovered the results of fire in the apartment, he changed the gas heaters in the living room and in the bathroom using the gas outlets which he said were already provided. He installed the new heaters, which he had bought. After the installation was complete, Sparrow and his father, an employee of the Arkansas Power & Light Company, made a check for escaping gas, and found none.

According to Sparrow, he arose at 6:00 a.m. on the day after he installed the new heaters, went to the bathroom and returned to bed where he remained until 6:50. He stated that he had not smoked a cigarette or ignited a match on this trip to the bathroom. He testified that both he and his wife then arose and that she went into the kitchen to prepare a pot of coffee, and he went into the bathroom to light the heater. He was then wearing only his underwear. He said that he struck a match, lighted the heater and took a step toward the commode when the “whole room just blew up.” He related that his hair, the shower curtain and the contents of the waste basket caught fire. Mrs. Sparrow testified that she heard an explosion and ran to the bathroom where she found her husband standing in the doorway trying to extinguish the fire in his hair and calling for help. She left but returned with a neighbor, who helped extinguish the fire in the apartment and take Sparrow to the hospital. Appellee’s principal burns were on his left side, which would have been nearest the shower, according to his version of his position and movements between the time he entered the bathroom and the time of the fire or explosion. His wife described his left hand as badly burned.

Joe DeFatta, a licensed plumbing contractor, inspected all the gas lines in the building for a natural gas leak during March, at Hudson’s request, and found none. He went back to the building later the same day with a gas company representative. A pressure test they conducted revealed no leak, but DeFatta then detected the odor of sewer gas in the bathroom. After determining that the gas came from the shower, DeFatta found that the drain from the shower was not equipped with a trap to prevent the backup of sewer gas, but was a vertical line connecting directly with the city sewer system. He said that the shower plumbing was not in compliance with the Arkansas Code. He was familiar with the characteristics of sewer gas and had seen it burn on several occasions. He described it as highly explosive, and said that it would just “flare off,” make “one big flare” and then quit. He described this phenomenon as a “kind of an explosion.”

The city fire marshall and an Arkansas Power & Light Company employee also inspected the apartment after Sparrow was burned, and both detected sewer gas arising from the shower drain. Neither the power company employee nor a gas company employee, who also went to the apartment after the incident, found ■any gas leaks. A previous occupant, who testified on behalf of appellant, admitted that she kept a rubber stopper over the shower drain at all times.

Expert witnesses called by appellant admitted that natural gas will explode when mixed with air in sufficient concentration, that sewer gas may be of the same chemical composition as natural gas and that, if sewer gas is of sufficient concentration, it will burn, and within certain limits, explode.

Appellant argues that its motions for directed verdict should have been granted because this evidence left the jury to speculate as to the cause of the fire. It relies upon our opinions in Glidewell, Admr. v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4, and Williams, Admr. v. Lauderdale, 209 Ark. 418, 191 S. W. 2d 455. The opinion in the first case was principally predicated upon lack of evidence of negligence to remove the question from the realm of speculation. There was direct evidence of negligence here.

In Williams v. Lauderdale, the plaintiff sought to prove by the chief of the fire department that a fire which he reached shortly after the alarm was given, was caused by defective electrical wiring. Although he said that the “probable result” of the wiring “would cause a fire,” the chief named a number of things which might have caused that fire—such as a match, a lighted cigarette, a pilot light or a hot water heater. Although it was his opinion that the bad wiring caused the fire, he stated that he did not know what caused the fire and did not testify as to any physical condition found in the damaged building that would indicate that the fire was caused by bad wiring and eliminate other possible causes, without speculation. When the evidence here is viewed in the light most favorable to appellee, the jury was not left with as little evidentiary basis for exclusion of speculation as was the case in Williams. While no witness in this case expressed an opinion as to the cause of the fire, and Sparrow admitted he did not know what caused it, there was ample evidence that gas escaping into the room from the city sewer could have caused it and no evidence that anything else did. Appellant argues that appellee might have turned on the gas heater without lighting it when he first went into the bathroom so that enough gas escaped into the room to explode when he struck a match, and that this possibility is supported by the hospital emergency room report showing that the bathroom heater exploded. This result would depend upon sheer speculation. There is no evidence that the bathroom heater was turned on before Sparrow’s second expedition into the room, and there is no indication whatever as to the hospital employee’s source of information as to the cause of Sparrow’s injury. There is no evidence here, as there was in Williams, of any other possible cause of the fire. Furthermore, the physical conditions found on the two occasions when there were burned linens and burned curtains in the apartment tend to support appellee’s theory and supply an element which was lacking in Williams. Substantial support is further indicated by reason of the fact that there was testimony that the gas heater was burning both before and after the first fire and was not burning before the second.

We do not interpret Williams as requiring direct testimony as to the cause of the fire, or that the injured party state the cause. See Fidelity Phenix Ins. Co. v. Lynch, 248 Ark. 923, 455 S. W. 2d 79. Neither do we interpret Williams to require that in order to present a fact question a plaintiff must produce evidence to eliminate any possible cause which might be conceived, as distinguished from causes suggested by evidence in the case. In Hill v. Maxwell, 247 Ark. 811, 448 S. W. 2d 9, we recently said:

On the element of causation, the authorities, Prosser, Torts § 41 (3d ed. 1964), point out that the burden of proof is upon the plaintiff and that he must sustain his proof of causation by more than speculation and conjecture. However it is not necessary that the plaintiff negative entirely the possibility that the defendant’s conduct was not a cause. It is enough that the plaintiff introduce evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. Stated another way, it is not required that the proof eliminate every possible cause other than the one on which plaintiff relies, but only such other causes, if any, as fairly arise from the evidence. See Williams v. Reading Co. (3d Cir. 1949) 175 F. 2d 32.

Appellant says that since appellee lost only $345 in wages and had only a $75 doctor bill and $396.85 in hospital expense, the remaining $6,683.15 awarded by the jury is attributable to pain and suffering, and is grossly excessive. While we feel that the jury award of damages was very liberal, we cannot say that it was so excessive as to require reversal or reduction. Sparrow had first and second degree burns on his face and about 35% of his body. His hair, eyebrows and eyelashes were burned. The burns on his left hand were the worst. Butter which his wife applied to his body immediately after the incident- melted, and she said that he was black wherever the skin was burned. When his wife went to him- in the bathroom, she found him crying and shaking very badly and terrified that he would be scarred and marred like an acquaintance who had been burned. He was still shaking badly when he was in the emergency room at the hospital. He was kept in the hospital for 11 days on sterile sheets. During that time he was given intravenous fluids and pain medication, principally non-narcotic, and his body sprayed with medication at regular intervals. Hospital records indicated administration of pain medication at least 20 times. He rap fevér, and edema from the burns did not begin to subside until two days after he entered the hospital. Blebs on his hand had to be opened and blisters in several areas debrided. His physician gave him permission to return to work 10 days after his release from the hospital. Sparrow said he had a burned spot on his forehead and was burned on both hands and the left side of his body. He said the pain was like a burning for four or five days, when it lessened. He did return to his work as a rug and carpet dyer at the time the doctor advised, but was unable to perform his full duties for five or six weeks. He just supervised the weighing and application of the chemicals because of the danger of infection. He testified that he suffered pain intermittently for a week or ten days after he left the hospital, but only took aspirin for relief. Photographs (about which we will comment later) indicate that Sparrow’s burns were more than superficial.

Measurement of pain and suffering and translating it into dollar compensation is an exercise of extreme difficulty. Generally, it is best left to jurors who are called upon to apply their own observations, common knowledge and everyday experience in the affairs of life to the evidence. See AMI 102, Civil. No court has yet provided a yardstick for a jury’s use in meeting this portion of its responsibility. The human mind has not yet been able to devise any better gauge than the verdict of a jury based upon the collective judgment of its members. Appellate courts are naturally and appropriately extremely reluctant to reverse or reduce a jury’s verdict on such an element of damages. We do not feel that we would be justified in doing so here. We acknowledged in Breitenberg v. Parker, 237 Ark. 261, 372 S. W. 2d 828, that we could not constitutionally reduce a verdict if there was any substantial evidence, when given its highest probative force, to support it. We also reiterated the bases upon which a verdict will be set aside as excessive as: (1) the absence of any evidence on which the amount allowed could properly have been awarded; (2) where the verdict must of necessity be for a smaller sum than that awarded; (3) where the testimony most favorable to the successful party will not sustain the inference of fact on which the damages are estimated; (4) where the amount awarded is so excessive as to lead to the conclusion that the verdict was the result of passion and prejudice or of some error or mistake of principle, or to warrant the conclusion that the jury was not governed by the evidence. We could not, in good conscience, say that any of these bases existed in this case.

The most difficult question posed by appellant relates to the introduction of photographs offered by appellee to demonstrate the location and extent of the burns on his body. The pictures exhibited were apparently taken after Sparrow left the hospital. They appear in the record with rather vivid coloration on certain parts of Sparrow’s body, most of which is due to medication placed upon the burns for the purpose of more clearly delineating them for the camera. Their potential effect is best demonstrated by appellee’s concession that the pictures would have been such an unfair representation as to require their exclusion if they could have misled the jury to believe that the appearance of the medication reflected the true appearance of the burns. We agree and would not hesitate to hold that the circuit judge abused his discretion in admitting the pictures were it not for the fact that it was made perfectly clear at the time the pictures were offered and before they were exhibited to the jury that the burned portions of appellee’s body shown in the pictures were covered with medication used to help form a crust and develop scabs over the burns. With this fact made clear, we do not believe that the jury could have been misled, as appellee points out, and surely the jury observed that a picture taken to show the burned area on the back of appellee’s left hand discloses a burned area on his left leg without the medication. Yet when a picture showing only the outside of appellee’s left leg was taken, medication had been placed on the leg. There is no reversible error in the trial court’s admission of pictures showing injuries to a party into evidence, even though they are inflammatory, if the picture is an aid to make the testimony of witnesses more easily understood. Reed v. McGibboney, 243 Ark. 789, 422 S. W. 2d 115. We find no error in this respect.

The judgment is affirmed.

Harris, C. J. and Brown and Jones, JJ., dissent.

Carleton Harris, Chief Justice,

dissenting. I would reverse this case since it is my view that the trial court abused its discretion in permitting exhibits 5, 6, 7, and 8 to be offered into evidence. It is difficult for me to see any burns at all, though it is easy to see the reddish-orange medication on the body. This medication appears to be generously applied, and since the photographs are in natural color (rather than black and white) it is my opinion that the pictures are misleading in their portrayal of the extent of the burned portions. In fact, though not implying that it was done in the present situation, the photographs of the reddish medication are so striking to the eye, that I am of the opinion that a perfectly normal part of the body could be painted with this medication and the impression be left that serious injury had occurred.

I am also of the view that the verdict was excessive, Mr. Sparrow receiving an award, after the payment of all expenses, of $6,683.15. While I recognize that burns are very painful, it does not appear that there was unusual suffering in this instance since a nonnarcotic pain reliever was sufficient, and Sparrow only remained in the hospital for eleven days. Dr. Lee testified that no permanent disability was suffered, and Sparrow was permitted to return to work three weeks after the occurrence. This means that he received better than $2,200 per week for pain and suffering. It is my view that this amount was excessive; however, since I would reverse on the first point, there is no necessity to go into this last matter.

I respectfully dissent.

I am authorized to state that Brown, J., joins in this dissent.

Jones, J., joins in this dissent as to the reversal on the first point discussed.