author: Ed. F. McFaddin, Justice.

text:
    Cranna, Administrator v. Long.
    5-675
    279 S. W. 2d 828
    Opinion delivered June 6, 1955.
    [Rehearing denied June 27, 1955.]

      Herrn Northcutt, for appellant.

      Green £ Green and Oscar E. Ellis, for appellee.
   Ed. F. McFaddin, Justice.

Aside from a procedural matter, the question here presented is whether the Trial Court was correct in sustaining the demurrer to the complaint.

On May 27, 1954, appellant Cranna, as administrator of the estate of Chumley, deceased, filed complaint against appellees, Long and wife, alleging that in January, 1950, Chumley-(then 83 years of age) -was mentally incapable of transacting business; that the Longs, • by duress and undue influence, obtained a deed from Chumley for certain lands; and that the Longs also received and converted personal property (cattle, furniture and silverware)' belonging to Chumley of the value of $5,-000.00. The prayer of the complaint was for cancellation of the deed, and for judgment for the value of the converted personal property. The Trial Court sustained the Long’s demurrer to the entire complaint; and Cranna, administrator, brings this appeal.

I. Procedural Matter. The appellees have moved to dismiss the appeal, saying: . . that the notice of appeal, as required by § 2 of Act 555 of 1953, was not given within 30 days after the date of the decree of the Fulton Chancery Court on October 12, 1954.” The majority of this Court holds this motion to be without merit. The record shows: that on October 12, 1954, the Trial Court announced that the demurrer would be sustained; that on October 14, 1954, the attorneys agreed on the form of the decree which sustained the demurrer and dismissed the complaint; that, on October 16, 1954, this decroc was filed with, the Clerk for entry; and that the notice of appeal was filed on November 12, 1954, which was within thirty days from the date the judgment was filed with the Clerk for entry.

Section 2 of Act 555 of 1953 says: “When an appeal is permitted by law . . . any party to the action may appeal from a judgment or decree, by filing with the Court in which the case is tried a notice of appeal within 30 days from the entry of the judgment or decree appealed from. . . .” (Italics our own.) The filing of the judgment with the Clerk for entry is the decisive date under the above quoted Statute. A case indicating this conclusion is Norfleet v. Norfleet, 223 Ark. 751, 268 S. W. 2d 287.

II. Sufficiency of the Complaint to Cancel the Deed. The administrator was the only plaintiff; the deceased had died intestate; and there was no allegation that the land was necessary to pay debts or expenses of administration. Prior to Act 140 of 1949 (the Probate Code), § 66 of Pope’s Digest was the governing Statute and said: “Lands shall be assets in the hands of the executor or administrator, and shall be deemed in their possession and subject to their control for the payment of debts.” Sec. 94 of the Probate Code (as now found in § 62-2401, Ark. Stats.) says: “. . . real property shall be an asset in the hands of the personal representative when so directed by the will, or when and if necessary for the payment of debts, or expenses of administration. ’ ’ The quoted language of the Probate Code was not designed to make the administrator automatically entitled to the real estate of a deceased intestate. The quoted language of the Probate Code continues the rationale of our cases decided under § 66 of Pope’s Digest; and these cases hold that the legal title of an intestate’s land, upon his death, descends and vests in his heirs at law, subject to the widow’s dower and the payment of debts through his administrator. See Stewart v. Smiley, 46 Ark. 373; Jones v. Jones, 107 Ark. 402, 155 S. W. 117; and Mayo v. Bank of Marvell, 188 Ark. 330, 65 S. W. 2d 549. Sec. 62-2701, Ark. Stats., in abolishing the priority between personal property and real property for the payments of the debts of the deceased, applies after it has been determined that the lands are necessary for the payment of debts. That section does not change the long established rule of onr cases, as above cited.

Sec. 62-2401, Ark. Stats., says: “When real property has become an asset in the hands of the personal, representative, as hereinbefore provided . . . the personal representative may . . . maintain or defend an action for the possession thereof, or to determine or protect the title thereto until such real property is sold. . . . ’ ’ In the case at bar, there is no allegation that the real property had ever become an asset in the hands of the administrator, so the above quoted section does not support the appellant’s claim in this Court. The complaint contained no allegation so as to make applicable § 62-2402. Likewise, neither § 62-2409 nor § 62-2714 has been invoked. Therefore, we find no allegation in the complaint sufficient to support the administrator’s effort to recover the lands; and the Chancery Court was correct in sustaining the demurrer to the complaint insofar as the lands were concerned.

III. Sufficiency of the Complaint to Recover the Value of the Personal Property. The complaint alleged that the Longs had converted to their own use various items of personal property of Chumley’s of a value of $5,000.00, and there was prayer for judgment. The Trial Court was in error in sustaining the demurrer to that portion of the complaint concerning the personal property. Sec. 62-2401, Ark. Stats., says: “A personal representative shall have the right to and shall take possession of all of the personal property of the estate of the decedent. . . .” This section is in keeping with our Statutes and the cases theretofore existing. The administrator is empowered to sue for and recover the personal property of the estate, so the complaint stated a good cause of action insofar as the personal property is concerned.

If the defendants thought the complaint indefinite they should have filed a motion to make more definite and certain. A demurrer was not proper for that purpose. State v. Aetna Fire Ins. Co., 66 Ark. 480, 51 S. W. 638; Murrell v. Henry, 70 Ark. 161, 66 S. W. 647; and Ottinger v. Ferrell, 171 Ark. 1085, 287 S. W. 391. Limitations did not appear on the face of the complaint so the demurrer could not raise that issue. Driesbach v. Beckham, 178 Ark. 816, 12 S. W. 2d 408; and Cullins v. Webb, 207 Ark. 407, 180 S. W. 2d 835.

Therefore the decree is reversed insofar as it dismissed the complaint as to the personal property, and the cause is remanded as to the personal property.

       The section references herein are to those in the Cumulative Pocket Supplement to Ark. Stats.


source: Caselaw Access Project

author: Minor ~W. Millwee, Justice.

license: Public Domain

text:
    Reiter v. Reiter.
    5-699
    278 S. W. 2d 644
    Opinion delivered June 6, 1955.

      J. C. Dugan, for appellant.

      Wood <& Smith, for appellee.
   Minor ~W. Millwee, Justice.

This is an appeal from a decree denying appellant’s petition to require appellee, her former husband, to resume weekly payments for the support of their 12-year-old son in accordance with the original decree of divorce.

On March 3,1953, appellant procured a divorce from appellee on the ground of general indignities. In the decree appellant was awarded custody of the child except that appellee was given custody one day each week and during the month of July in accordance with a written property settlement and agreement of the parties which was incorporated in and made a part of the decree. This agreement further provided that appellee should pay appellant $20 weekly for the child’s support except during the month when appellee had custody. After a finding that the written agreement should be confirmed the decree further recites:

“For the purpose of clarity, the court finds that the property settlement binds the parties as to custody of Pat, their minor child, but that said child is not bound thereby and is subject to such future orders as may be necessary for his welfare. The defendant, S. J. Reiter, father of Pat, acknowledges that the award of custody is for the purpose of fixing rights between himself and May Bell Reiter, plaintiff, and further acknowledges that in the event the child does not desire to accompany him during the period or periods which he is entitled to custody such child will not be compelled to do so.”

On July 9, 1953, a hearing was held upon appellee’s application for an order directing delivery of the child to him for a month in compliance with the original decree. This hearing resulted in an order on the same date directing that the child should spend Saturday and Sunday of each week with appellee but that the.' previous provision that appellee also have custody for one month be held in abeyance.

On July 23, 1953, a hearing was had upon appellee’s petition for contempt citation against appellant for interfering with the weekly visitation order by alienating the child from appellee so that he preferred not to comply with the court’s order respecting said weekly visits. The court found that appellant had improperly influenced. the child and alienated him from appellee, and that the latter should he relieved of making the support payments during any week the child should fail to visit him in accordance with the court’s order. •

On October 20, 1954, appellant filed a petition alleging that circumstances were such as to require resumption of weekly support payments in accordance with the agreement of the parties incorporated in the original decree. When the parties appeared for a hearing November 9, 1953, counsel for appellant called the court’s attention to the provision in the original decree to the effect that the child would not be compelled to visit in appellee’s new home against his wishes. Appellant also offered the testimony of several witnesses, including the child, to prove the child’s present need for support. Upon being informed that the child was not then making the weekly visits permitted by previous orders, the court declined to hear any testimony- and entered the decree appealed from, which found there had been no changed conditions since the order of July 23, 1953; that the child’s refusal to visit appellee was being caused by the actions of appellant; and that the court declined “to take any action” against appellee or “permit its process to be used” to enforce payment of support money for the child in the circumstances.

Appellant contends the trial court Avas Avithout authority to modify the original decree as to the payments for child support because it was based upon an independent written contract between the parties which was incorporated in the decree and approved by the court. Appellant relies on such eases as Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700, and McCue v. McCue, 210 Ark. 826, 197 S. W. 2d 938, to the effect that the independent agreement of the parties in these circumstances does not merge into the court’s award and is not subject to modification except by consent of the parties.. As appellee points out, these eases involve agreements relating to payments of alimony Avhile we are here concerned with child support payments. It is true that the rule was also applied in Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d 439, where the agreement involved a monthly payment for both alimony and child support, but it was there pointed out that the court might subsequently decline to enforce by contempt proceedings the payment of a greater sum than changed circumstances would warrant, thereby remitting plaintiff to her remedy at law to collect the balance due under the contract. In this connection courts of equity are empowered by Ark. Stats., § 34-1212 to enforce separation agreements or orders for alimony and maintenance by sequestration, equitable garnishment, contempt proceedings or other lawful means.

In a ease where only payment for child support is involved, as here, we hold that a court of equity has the power to modify an award for child support when required by changed conditions and the best interests of the child even though the award is based on an agreement of the parties. This was the effect of our recent holding in Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409, where we said: ‘ ‘ The power of a court to modify a decree for the support of minor children cannot be defeated by an agreement between the parents even when the agreement is incorporated in the decree, 27 C. J. S., Divorce, § 322a. Although the court may adopt the agreement of the parents and incorporate it in the decree, it still has the power to modify the decree when it shall be made apparent that changed conditions make a modification necessary.” (Citing cases). While this statement was in the nature of clicta we think the principle is sound and salutory. It is in harmony with the following observation of the court in Daily v. Daily, 175 Ark. 161, 298 S. W. 1012: “In this connection it may be said that, whatever the result of the agreement between the husband and wife with respect to the custody and support of their minor child, such agreement does not affect the right of a court of equity to award the custody of the child to either parent and to make reasonable provision for its support and education. The reason is that the public has an interest in the matter, and that the interest of the child is the paramount consideration of the court.” See also, Penny v. Penny, 210 Ark. 16, 193 S. W. 2d 811.

The primary issue here is' whether the trial court correctly deprived the child of the right to his father’s continued support solely because of the mother’s misconduct in alienating the child from him. We have repeatedly held that the law makes it the duty of a.father to support his minor child even though its custody is awarded to the mother. The misconduct of appellant in teaching the child to entertain feelings of hatred toward appellee, whatever may be its effect as a consideration for withdrawing custody from her, should not be allowed to prejudice the child’s right to support. 17 Am. Jur., Divorce and Separation, § 70S. The misconduct of appellant, wrong as it is, and painful as it must be to appellee, should not be visited upon the child so as to deprive him of all aid from his father. See Buckminster v. Buckminster, 38 Vt. 248, 88 Am. Dec. 652. This rule is peculiarly applicable here since appellee expressly acknowledged and the original decree stipulated that the child should not be compelled against, his wishes to visit appellee in his new home nor be bound by the agreement between the parents in fixing future custodial rights.

It should be pointed out that there is no claim of inability to make the support payments. It should also be noted to appellee’s credit that he has never sought to be relieved of making the support payments nor has he been delinquent in any manner in complying with the court’s orders. Appellant’s contention that appellee should be required to make payments accruing since July 23, 1953, is without merit since she did not appeal from the July order which became res judicata of her right to enforce the original decree as to payments accruing prior to filing the instant petition. Seaton v. Seaton, 221 Ark. 778, 255 S. W. 2d 954.

The decree is reversed and the cause remanded with directions to enter a decree for appellant for support payments accruing since October 20, 1954, and for such proceedings as may be necessary to enforce due compliance with such order.


author: Ward, J.

text:
    House v. City of Texarkana.
    5-695
    279 S. W. 2d 831
    Opinion delivered June 6, 1955.

      Shaver, Tackett & Jones, for appellant.

      Charles Conway, Charles C. Wine and LeRoy Autrey, for appellee.
   Ward, J.

This action was originated by appellant to enjoin the City of Texarkana from enforcing an ordinance which purported to regulate heavy traffic on certain streets. The trial court held the ordinance valid, hence this appeal.

Complaint. Petitioner (appellant) is a resident and citizen of Miller County, residing on East 24th Street outside but near the city limits of Texarkana; he operates a wholesale and retail butane gas business adjoining his home; his business requires the use of trucks of more than one-half ton capacity on East 24th Street. The City Council of the City of Texarkana passed Ordinance B-866 which reads (insofar as material here) as follows:

“Section 1. Hereafter it shall be unlawful for any person, firm or corporation, or its agents, officers or employees, to operate any motor truck, truck-tractor with semi-trailer or any full trailer, either of which is of more than one-half ton capacity upon 24th Street, 12th Street or Jefferson Street in the City of Texarkana, Arkansas.

“Section 2. (a) This Ordinance shall not be construed to prohibit motor vehicle trucks from crossing said streets at their intersections with other streets, (b) nor apply to delivery trucks serving the residents in the immediate area, (c) nor shall this ordinance be construed so as to prevent any person living within the corporate limits of Texarkana, Arkansas, from operating such trucks upon said streets where it becomes necessary for them to reach their homes. ’ ’

(Separation of clauses and emphasis supplied for convenience.)

Section 3. Provides for appropriate street signs.

Section 4. Penalty for violation.

‘ ‘ Section 5. This Ordinance being necessary to protect the pavement upon said streets, and for the immediate preservation of the public health, peace and safety of said city, an emergency is hereby declared to exist and this Ordinance shall be in full force and effect from and after its passage, approval and publication.”

The enforcement of said ordinance will cause petitioner irreparable damage, in that it is reasonably necessary for petitioner to make use of said East 24th Street within the city in going to and proceeding from his place of business in connection with the delivery of butane gas to his customers residing within and at points beyond the city. The enforcement of the ordinance will cause petitioner further irreparable damage in that his customers are prohibited from -using East 24th Street within the city, compelling them to purchase butane gas from other distributors, and the enforcement of the ordinance will compel him to discontinue his business.

It was further alleged that said ordinance violates the 14th Amendment to the Constitution of the United States and Article 2, §§ 18 and 22 of the Constitution of Arkansas because it is discriminatory, provides unreasonable and inequitable class legislation, is confiscatory of his personal and property rights and deprives him of his property without due process of law. The answer was a general denial.

The testimony (in substance). Appellant’s home and place of business abuts East 24th Street on the north side and is about a block and a half east of Jefferson Street which runs north and south the full length of the City, 24th Street running east and west. About a mile west from appellant’s home 24th Street intersects Highway 71 (sometimes referred to as the State Line) which runs north and south, and it is about the same distance east from appellant’s home to where 24th Street intersects Highway 67 which (from the point of intersection) runs northeast toward Hope and southwest toward Dallas, intersecting Highway 71 on the south side of the City. In conducting his business appellant has several heavy trucks (more than one-half ton) which he uses to deliver gas to 8 or 9 wholesalers and to haul gas to his place of business from the refinery located on or near Highway 71 south of the City. Also as a part of his business he makes deliveries to individual customers and he sells gas to large trucks and other customers who come to his place of business. It is not disputed that the most convenient route for appellant to reach Highway 71 is 24th Street. (It is noted here that in his complaint appellant makes objection only to the regulation of 24th Street.) It is insisted by appellant that in order to reach the refinery or to travel south of the City on Highway 71 it is necessary for him to go approximately 4 to 6 miles farther than he would have to go by using 24th Street. One route, he says', would be to go east on 24th Street to Highway 67, thence southwest on 67 to where it intersects Highway 71 or a distance of approximately 4 or 5 miles. Evidence shows that the corporate line runs in the middle of 24th Street for a distance of about 400 feet from appellant’s home west to the intersection of 24th Street with Jefferson Street. It is also shown that north of 24th Street the corporate line runs in the middle of Jefferson Street from 28th Street to 32nd Street and thence west along the middle of 32nd Street (approximately a mile) to Highway 71 or State Line. It is conceded that appellant can drive his trucks from his home 400 feet west to Jefferson Street, thence north on Jefferson Street (approximately one-half mile) to 32nd Street, thence west on 32nd Street to Highway 71. From this point appellant can drive his trucks south on Highway 71 (approximately one-half mile) to the intersection with 24th Street. From this it- must be observed that by taking the last mentioned route appellant would have to go from one mile to a mile and a half farther to reach the intersection of 24th Street and Highway 71 than he would have to go by direct route west on 24th Street to reach the same point. It is admitted that trucks returning to appellant’s place of business could not follow the route detailed above for the reason that the west half of Jefferson Street (from 32nd Street south to 28th Street) is within the city limits. There is other testimony however to the effect that other return routes are available to appellant which would not be materially longer than the one along 24th Street. The testimony shows that at least a portion of 24th Street has a gravel base with a thin blacktop covering and that the street would be damaged by the use of heavy trucks.

Issues eliminated. Much argument on both sides is directed to the several exceptions contained in Section 2 of the ordinance. One exception is that delivery trucks may serve residents [of the City] living along or near the prohibited streets. Another exception is that the ordinance shall not prevent residents of the City from using the streets where it is necessary to reach their homes, even in trucks of more than one-half ton capacity. Appellant’s argument is that these exceptions provide a classification based on residence and is therefore invalid. ,We do not, in this opinion, reach this question for the reason that these exceptions are not attacked by the pleadings or supported by the evidence. It is not within the province of the duties of this court to declare an entire ordinance invalid merely because we might feel that some portion of it, not attacked, is invalid. In Ferguson Coal Co. v. Thompson, Mayor, et al., 343 Ill. 20, 174 N. E. 896, where a similar issue was raised, it was said:

“Under no circumstances will a court of equity entertain a bill to enjoin the enforcement of an ordinance oii the ground alone that it is void, but those seeking to restrain its enforcement must allege and prove facts showing that their interests are affected. They have no right to challenge provisions which do not affect them.”

The Issue. Therefore the only issue left for our consideration is the validity of Section 1 of the ordinance which prohibits the use of trucks [of over one-half ton capacity] on the named streets. While the pleadings refer only to 24th Street we will consider the pleadings as amended to include Jefferson Street also. There is no mention of 12th Street in the pleadings or testimony.

Appellant bases his argument for a reversal of the trial court on five grounds which we shall discuss in order.

1, 2. It is urged, first, that the ordinance violates the Federal and State Constitutions, and second, that the City of Texarkana has no power to enact such an ordinance, These two arguments, with which we do not agree, may be considered together.

There can be no doubt that cities such as Texarkana have the power, under our statutes and decisions, to pass ordinances of this nature. The exercise of similar powers on the part of cities'has been recognized in Sander v. Blytheville, 164 Ark. 434, 262 S. W. 23; City of Fort Smith v. Van Zandt, 197 Ark. 91, 122 S. W. 2d 187, and Goldman & Company, Inc. v. City of North Little Rock, 220 Ark. 792, 249 S. W. 2d 961.

This power has also been granted to the cities either directly or inferentially by statutes. Ark. Stats., § 19-2303, gives cities the right “to regulate the transportation of articles throughout the streets, and to prevent injury to the streets from overloaded vehicles.” Section 19-3801 gives cities “supervision and control of all the public highways, bridges, streets . . . within the city.” Section 19-2401 gives cities the general power to pass ordinances, not inconsistent with the laws of this state, as seem necessary and provide for the safety, preserve the health, and promote prosperity and convenience of the inhabitants.

Appellant practically concedes that cities had the power to enact ordinances such as the one under consideration prior to 1937, but says, in effect, that Act 300 of 1937 repealed or superseded the statutes above quoted. We see no merit in this argument. Portions of said Act 300 dealing with the regulation of the- size of trucks have been superseded or modified by Act 152 of 1953 which iñ turn has been likewise changed by Act 98 of 1955. Trucks weighing in excess of 56,000 pounds are prohibited from using the highways. None of these acts specifically rer peal the statutes above set out. After a careful reading of these acts we are convinced that they do not repeal them by implication. Moreover, repeal by implication is .not favored. See Moncus v. Raines, 210 Ark. 30, 194 S. W. 2d 1, and McDonald v. Wasson, 188 Ark. 782, 67 S. W. 2d 722. Appellant calls attention to § 25 of said Act 300 which states that the provision of the act shall be applicable and uniform throughout the state and. all municipalities, and states that no local authority slqall enact any regulation in conflict. The last sentence in this section however states that local authorities may adopt traffic regulations which are not in conflict with the act. We are unable to find where the provisions of the ordinance under consideration conflict with either the spirit or the letter of Act 300. In fact § 26 of said Act 300 provides that the act “ shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of police power from . . . restricting the use of highways as authorized in Article 16 of this act.” As we understand the provisions of said Article 16 they regulate the maximum weight of trucks allowed on the highways and in no way take away the right of cities to reasonably regulate the use of all heavy trucks on certain streets. Certainly cities would have no power to permit trucks weighing more than 55,000 pounds to use the streets and highway. So, if they can’t regulate lighter trucks, the language in § 26 is meaningless.

3, 4. It is next argued that the ordinance is invalid in that it sets forth unconstitutional class legislation. Many cases are cited to the effect that legislation based on residence or other unreasonable classifications is invalid. It is not necessary for us to consider this line of reasoning since the exceptions contained in Section 2 of the ordinance are the only portions based on classification and they have been eliminated. It is not contended by appellant that Section 1 of the ordinance in any way deals with classification.

5. Finally appellant insists he is entitled to injunctive relief because the enforcement of the ordinance would deprive him of his property without due process of law. In view of what we have already said it appears to us that the only issue left for consideration is whether or not the ordinance is unreasonable or arbitrary. In this connection we are confronted at once with a presumption that the ordinance is valid and that it is not unreasonable or arbitrary. "We have announced this rule in the Sander case, supra, City of Fort Smith case, supra, and, Goldman db Company, Inc., case, supra. A similar question involving the validity of an ordinance was considered in the Sander case, supra, where the court said:

“. . . notwithstanding these allegations, it was nevertheless within the option or discretion of the city council to determine whether the welfare of the city demanded the abatement of these structures; and, unless such discretion was exercised in an arbitrary, discriminatory and unreasonable manner, or in such manner as to invade the constitutional rights of property, the court will not interfere and declare the ordinance void.”

In the Thompson case, supra, it was stated that “where an ordinance is within.the grant of power conferred upon municipalities, the presumption is that it is reasonable.”

Under the facts and circumstances of this case as heretofore set out we cannot say that the ordinance was unreasonable or arbitrary, and we do not feel that we would be justified in holding that the chancellor’s finding on this point was against the weight of the evidence. While the testimony regarding the feasibility of the routes which the ordinance forces appellant to use in the conduct of his business is somewhat contradictory and uncertain, this only makes it more difficult for us to say the chancellor erred. It is not clear from the testimony that appellant does not have reasonably feasible routes of ingress and egress to his place of business. Conceding the testimony shows that appellant will be inconvenienced and that he will suffer some pecuniary loss, yet that alone is not sufficient ground for us to declare the ordinance unreasonable. It was so held in the Thompson case, supra, where it was also said “in order to justify a court in interfering on the ground that an ordinance is unreasonable the proof must be clear and strong, and the action of the city council is final, if there is room for reasonable difference of opinion upon the question. ’ ’

Although the argument is not specifically made by appellant, it might be said, with some reason, that his pleading and testimony entitles appellant to rely on the last exception in Section 2 of the ordinance. The argument would be that appellant [a non-resident of the City] is denied the use of 24th Street in returning to his home in a heavy truck — a privilege allowed those living within the corporate limits. On the face of it, this appears to be a discrimination based on residence alone, but we do not think it is in fact. Obviously the ordinance grants this privilege to those who merely want to return to their homos after work is finished, and not to those who intend, as appellant does, to use it for transaction of a business.

Having found no error, the decree of the trial court is affirmed.


author: Robinson, J.

text:
    Breedlove v. State.
    4801
    280 S. W. 2d 224
    Opinion delivered June 6, 1955.
    [Rehearing denied July 4, 1955.]

      Q. Byrum Hurst and G. A. Stanfield, for appellant.

      Tom Gentry, Attorney General, and Thorp Thomas, Assistant Attorney General, for appellee.
   Robinson, J.

This is an appeal from an order overruling defendant’s motion that the case be dismissed because he had not been brought to trial within three terms after the filing of the information. This is an appealable order. Ware v. State, 159 Ark. 540, 252 S. W. 934.

Ark. Stats., § 43-1709 provides: “If any person indicted for any offense, and held to bail, shall not be brought to trial before the end of the third term of the court in which such indictment is pending, which shall be held after the finding of such indictment, and such holding to bail on such indictment, he shall be discharged, so far as relates to such offense, unless the delay happened on his application. ’ ’

The record reflects that on the 8th day of May, 1953, the Prosecuting Attorney filed in the Circuit Court an information charging the defendant with murder in the first degree. On the 12th day of May, 1953, defendant was released on bond. The term during which the information was filed ended in September, 1953, with a new term beginning at that time. The case was set for trial for the 2nd day of November, 1953, which was during the September term, and which was the first term subsequent to the time that the information was filed. The record shows that the case was continued on the motion of the defendant. The next term of court began in March, 1954, and the case was not set for trial during that term. The case was again set for trial for December 3, 1954, which was during the September, 1954, term. Prior to December 3, 1954, the defendant filed a motion for continuance which was granted. He then filed a motion to dismiss. * \..

The leading case on the subject is Stewart v. State, 13 Ark. 720. There it was held that the term at which the defendant is indicted is to be counted as one of the three terms mentioned in the statute. In other words, the statute is applicable, where the defendant is not brought to trial at the end of "the second term held after the term during which the indictment was filed. Here, the case was set for trial at the first term following the term in which the information was filed. Although the record shows that the case was continued at that time on motion of the defendant, it is contended by the defendant that the Prosecuting Attorney actually did not intend to try the case because of insufficient evidence that; the case was not brought to trial because the State was not ready. In any event, the record clearly shows, according to the testimony of defendant’s counsel, that the defendant acquiesced in the continuance. The Prosecuting Attorney testified that, as he remembered it, the defense counsel moved for a continuance, and that the State did not oppose it. This motion was made during the first term subsequent to the filing of the' information.

The case was not set for trial during the March, 1954, term of court, but was set for December 3 during the September, 1954, term. In other words, the case was set for trial twice, and both times the defendant either moved for a continuance or acquiesced in a continuance. At no time did two terms of court following the filing of the information expire without the case being set for trial. The statute is not applicable where the delay is due to the application of the defendant, or where the defendant concurs in the delay. Stewart v. State, supra; Dillard v. State, 65 Ark. 404, 46 S. W. 533; Fox v. State, 102 Ark. 393, 144 S. W. 516; Williams v. State, 210 Ark. 402, 196 S. W. 2d 489.

Affirmed.


author: Lee Sbamstek, Chief Justice.

text:
    McArthur v. Campbell, County Judge.
    5-747
    280 S. W. 2d 219
    Opinion delivered June 13, 1955.

      S. Hubert Mayes, for appellant.

      Frank Holt and Mehaffy, Smith é Williams, for appellee.
   Lee Sbamstek, Chief Justice.

The appellant, a citizen of Pulaski County, has appealed this case from a judgment of the Chancery Court of the County sustaining a demurrer and dismissing a complaint filed by him in said court, against the appellee the County Judge of said County.

On February 4, 1955, the Pulaski County Court entered an order declaring the necessity for the construction of a county jail, for the handling, detention and rehabilitation of juveniles in said county. The court appointed architects who prepared and filed plans for the jail and estimated the cost thereof at $386,000.

The complaint sets ont the above facts and alleges that unless the appellee is enjoined he will proceed to call an election to see if the voters of the county will approve the proposed project and vote a tax to pay for the same. He further alleges that the county court is proceeding under the provisions of Amendment No. 17 to the Constitution of this State and that such amendment does not authorize the construction of such a building as proposed in the order; that the order is void and appellee has spent and is preparing to spend county funds illegally in carrying out the order so made by the county court.

Amendment No% 17 provides the only method by which a county without current funds, can construct a county jail. It’s admitted by both parties that the county is without current funds to construct the building.

The principal contention of the appellant is that the proposed building is not a county jail because it is proposed to house therein delinquent juveniles, dependent juveniles and the juvenile court administration together with other personnel. Amendment No. 17 makes it the business of the County Court to determine in the first place, the necessity for the construction of a county jail, before it can proceed with the, construction of the building the voters of the county have to approve, by their vote, the construction thereof and vote for a tax to pay therefor. The law prohibits the placing of juveniles with adult prisoners.

It is conceded that the county does not now have a suitable place for the detention of juveniles. The purpose to be served by the proposed building is a proper function of the county government. It is generally known that a county jail is a building where a person or persons may be legally detained for many different reasons, for investigation and observation to answer a charge of some offense, to serve out a fine, to await transfer to another state, or another prison and for many other reasons.

The jail buildings generally provide a place for the jailer, and other personnel to live, a place to prepare meals, and sanitary conditions are maintained therein. The proposed building according to the plans will provide áép'árate facilities for the juvenile court, the duties of such court are more administrative than judicial. It also provides a place to keep the administrative records and conference rooms; separate compartments for dependent children such as sleeping, and eating quarters and other facilities. The plans also provide for delinquent juveniles the same facilities on another floor level so that such children will not be housed together but kept separate as provided by law. No child will be detained in said building except for legal cause, just the same as in any county jail. They will be detained for processing in a legal manner, the dependent children will have shelter, food and clothing until suitable homes can be found for the homeless. For those who have homes until their homes can be improved and a proper home life provided for them. The delinquent children, whether because they are incorrigible or law violators will be held in the build-’ ing on a separate floor from any other department in the building until arrangement can be made with their parents, other relatives, or some suitable person or persons to provide for them a normal home life where they may have an opportunity to become useful citizens.

Our law requires that juveniles be kept separate from adult prisoners. The County Court found that the County now has no separate facilities for the care of juveniles. Amendment No. 17 authorizes the construction, reconstruction or extension of county jails. The contention of the appellant is that the proposed building is not a county jail. Webster’s Dictionary defines a jail (among other definitions) “as a building for the confinement of persons held in lawful custody. ’ ’ A county jail, whether for adults or juveniles, in the common acceptation of the term, is a place for the legal detention of all persons, who come within the provisions of our laws which authorizes our law enforcement officers to detain them. Many persons, who are not criminals, are taken by officers to the jail. They may never be charged with any offense and still be legally in the custody of some officer. They are sometimes held for investigation, as a witness or for any reason which would tend to protect society or the person detained.

A jail is no longer just a prison. It is rather a place also where persons in lawful custody are processed or handled and may be liberated, passed on to other legal entities, detained for a short or long time — So long as the detention thereof is legal.

We hold the proposed building comes within the provisions of amendment No. 17, which authorizes the construction, reconstruction and extension of county jails. The County Court to date has proceeded legally in this matter. The case is affirmed.

Justice McF addin thinks this suit is premature.

Justice George-Rose Smith-dissents.


author: Lee Seamster, Chief Justice.

text:
    McArthur v. Campbell, County Judge.
    5-748
    280 S. W. 2d 221
    Opinion delivered June 13, 1955.

      S. Hubert Mayes, for appellant.

      Frank Holt and Mehaffy, Smith & Williams, for appellee.
   Lee Seamster, Chief Justice.

On February 9, 1955, the County Court of Pulaski County entered an order finding' it necessary that certain improvements be made by remodeling and reconstruction of the County Court House, including the air conditioning thereof, and the making of other necessary repairs and improvements. The court found it was urgently necessary to make such improvements for the proper and efficient conduct of the county’s public business.

Architects were appointed and they filed plans for the remodeling of the court house and estimated the cost ■thereof at $175,000.

The appellant, a citizen of Pulaski County, filed a suit in the Chancery Court of the County, setting out the above facts and further alleged that the county court was preparing to call an' election, and ask the voters of the county to approve the making of such improvements and vote' a tax to pay therefor.

• He alleged that unless enjoined by the Chancery Court the County Court would call said election and expend the county funds for such purpose; and also that the action of the Court in entering said order was void for the reason that the only way the county could pay for the improvement would be under the provisions of Amendment No. 17 to the Constitution; that the amendment does not authorize the reconstruction or remodeling of a court house as provided in said order. The appellant alleged that in proceeding with said project the County Court was illegally expending the county’s funds.

A demurrer was filed by the county to the complaint, the demurrer was sustained by the Chancery Court and the complaint was dismissed. This appeal is from the action of the court therein.

Amendment No. 17 provides for the construction, reconstruction, or extension of any county court house— There is authority for the equipping and furnishing of buildings authorized by Amendment No. 17. See Atkinson v. Pine Bluff, 190 Ark. 65, 76 S. W. 2d 982; Lindsay v. White, 212 Ark. 541, 206 S. W. 2d 762; Railey v. City of Magnolia, 197 Ark. 1047, 126 S. W. 2d 273; Tunnah v. Moyer, Mayor, 202 Ark. 821, 152 S. W. 2d 1007.

It has been the usual thing to include telephones, heating, sower, water and lighting facilities in the construction of court houses. Such additional equipment lias been standard work in the construction of court bouses in the past.' Air conditioning units are fast becoming standard equipment in the borne, the office, business bouses and public buildings. It, no doubt, contributes to the comfort and efficiency of all the people who have occasion to utilize its benefits.

Authority is contained in the amendment for the County Court to proceed to reconstruct the Pulaski County Court House so as to include air conditioning therein. The County Court has proceeded in a legal manner, under the provisions of Amendment No. 17, to date in this matter. The case is affirmed.

Justice McF addin thinks this suit is premature.


author: Ed. F. McF addin, Justice.

text:
    McCord v. Robinson.
    5-693
    280 S. W. 2d 222
    Opinion delivered June 13, 1955.

      French & Camp, for appellant.

      Westbrooke é Westbrooke, for appellee.
   Ed. F. McF addin, Justice.

Appellants and appellees are, together, all the heirs of A. A. Armstrong, deceased. The appellants brought this suit to set aside a deed from A. A. Armstrong to appellee. At the close of the plaintiff’s case the Chancery Court sustained defendant’s motion for decree. See Act 470 of 1949; and Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225. The question here presented is whether the testimony for the plaintiffs was strong enough to present a question of fact for decision. If the plaintiffs made a case, then the decree must be reversed under the authority of Werbe v. Holt, supra, which was recognized by the Chancellor as stating the applicable test.

The complaint alleged, and there was evidence tending to show, that prior to July 21, 1934, A. A. Armstrong and his wife lived on the land here involved; that Mr. Armstrong was involved in litigation which he feared might result in a judgment against him; that an attorney advised him that any judgment rendered against him would not disturb his homestead during the lifetime of himself and wife, but would be a lien thereafter if the homestead had not been previously transferred; that Mr. Armstrong and his wife then executed and acknowledged a general warranty deed to the property in question which recited a good and valuable consideration and conveyed the property to Mildred Armstrong, who is now Mildred Robinson, the defendant below and the appellee here. The said deed had this provision: “. . . reserving, however,- the said A. A. Armstrong and Ella Armstrong, his wife, the use, benefits and right of occupancy of said lands for and during the natural life of either or both the said A. A. Armstrong and Ella Armstrong. . . .’■’

The trial in the Chancery Court involved the actual or constructive delivery of the deed to the grantee, as well as the acquiescence of Mr. Armstrong in the grantee having the deed recorded. That a deed was signed and acknowledged by Mr. Armstrong and his wife as grantors is an admitted fact; but the plaintiffs maintain that the deed was never delivered, either actually or presumptively. Our reports are replete with eases presenting various factual situations regarding delivery. The facts in the case at bar are not entirely identical with any one of our cases; so we state the applicable rules and then measure the facts in the case at bar by such rules. In Cavette v. Pettigrew, 182 Ark. 806, 32 S. W. 2d 808, Mr. Justice Frank Gr. Smith used this language:

“It is elementary law that delivery is essential to the validity of a deed, but it is frequently a mixed question of law and fact as to whether there has been a delivery, and the law on the subject has been declared in a number of our cases. Russell v. May, 77 Ark. 89, 90 S. W. 617; Maxwell v. Maxwell, 98 Ark. 466, 136 S. W. 172; Battle v. Anders, 100 Ark. 427, 140 S. W. 593; Stephens v. Stephens, 108 Ark. 53, 156 S. W. 837; Faulkner v. Feazel, 113 Ark. 289, 168 S. W. 568; Watson v. Hill, 123 Ark. 601, 186 S. W. 68; Fine v. Lasater, 110 Ark. 425, 161 S. W. 1147; Bray v. Bray, 132 Ark. 438, 201 S. W. 281; Davis v. Davis, 142 Ark. 311, 218 S. W. 827; Hardin v. Russell, 175 Ark. 30, 298 S. W. 481.

“In the case of Battle v. Anders, supra, it was said: ‘The important question in determining whether there has been a delivery is the intent of the grantor that the instrument should pass out of his control and operate as a conveyance. The intent of the grantor is to be inferred from all the facts and circumstances adduced in the evidence. His acts and conduct are to be regarded in ascertaining his intent.’ ”

In Battle v. Anders, supra, Mr. Justice Hart said:

“It is only where the acts or words unequivocally evince the purpose of the grantor that the question of delivery becomes one of law. Cribbs v. Walker, 74 Ark. 104; Russell v. May, 77 Ark. 89; Eastham v. Powell, 51 Ark. 530.”

In the case at bar the facts stated most favorably to the plaintiffs — as must be done in testing the motion-show that Mr. Armstrong never knowingly allowed the deed to pass from his possession; that the grantee acted surreptitiously in obtaining the deed and placing it of record; that the grantor discovered such fact shortly before his death and insisted that as soon as he was able he would have the grantee go with him to the courthouse to have the deed cancelled of record. There was evidence that the grantor kept the deed in a box in a trunk; there was no showing that the grantee had either the legal or moral right of access to the trunk or the box; and there was testimony that the grantee admitted she had “done wrong” in getting the deed and placing it of record.

Thus the testimony in the case at bar was sufficient to present factual issues as to whether there had been (1) actual delivery, (2) acquiescence, or (3) the overcoming of presumptive delivery. The fact questions could not be settled on a motion to dismiss; they required a weighing of the evidence and the exercise of fact finding-powers. The motion to dismiss should have been overruled, and the case should have proceeded to a final decision on the facts.

Reversed and remanded.

       Mrs. Armstrong is also deceased.

       Some of our cases not elsewhere listed in this opinion are: Graham v. Suddeth, 97 Ark. 283, 133 S. W. 1033; Taylor v. Calaway, 186 Ark. 947, 57 S. W. 2d 410; Johnson v. Young Men’s Bldg. & Loan Assn., 187 Ark. 430, 60 S. W. 2d 925; Ransom v. Ransom, 202 Ark. 123, 149 S. W. 2d 937; and Ellis v. Shuffield, 202 Ark. 723, 152 S. W. 2d 535.


author: Ed. F. MoFaddin, Justice.

text:
    Wood v. Henderson.
    5-744
    280 S. W. 2d 226
    Opinion delivered June 13, 1955.

      Rose, Meeh, House, Barron & Nash, for appellant.

      Robert G. Doivnie, for appellee.
   Ed. F. MoFaddin, Justice.

The question presented is whether Act 115 of 1955 applies to a suburban improvement district organized under the provisions of § 20-701, et seq., Ark. Stats. In considering the posed issue, we leave open any and all questions regarding the constitutionality of the Act 115. Constitutional questions are never decided unless necessary. Porter v. Waterman, 77 Ark. 383, 91 S. W. 754; Honea v. Federal Land Bank of St. Louis, 187 Ark. 619, 61 S. W. 2d 436; and Winston v. Personal Finance, 220 Ark. 580, 249 S. W. 2d 315.

The appellants are the Commissioners of Highway 67 Water Pipe Line Improvement District No. 25 (hereinafter called “District”), created by order of the Pulaski Chancery Court on January 3, 1955, pursuant to said § 20-701, et seq., Ark. Stats. The District was created —as its name implies — to lay a water pipe line for use of suburban property owners. On April 20, 1955, appellee filed his complaint in the Pulaski Chancery Court, alleging : (1) that he was a property owner in the District and sued for himself and all other property owners; (2) that the District originally intended to issue $175,000.00 in bonds, which was sufficient to make the contemplated improvement; and (3) that after the passage of Act 115 of 1955 the Commissioners decided to increase the bond issue to $185,000.00 because the provisions of the Act will add $10,000.00 to the labor cost of the improvement. The complaint also alleged:

“Said Act 115 of 1955 is not applicable to the construction work to be done by said District. It is not a ‘taxing agency’ within the meaning of that phrase as used in said Act 115. On the contrary, it pays for the cost of the improvement by special assessments levied against the lands of the property owners in the District. The improvement which is to be made by the District does not come within the meaning of ‘public buildings or public works’ as used in said Act 115. On the contrary, the funds used for the construction work come sole]y from the property owners in the District and the improvement is made, not for the benefit of the public but for the property owners who bear the cost thereof.”

The prayer of the complaint was that the Court find that the said Act 115 was not applicable to this improvement and that the District be empowered to issue only $175,000.00 of bonds. The answer stated that the Act 115 was' applicable to the District and prayed that the complaint be dismissed. The case was tried on facts stipulated substantially as hereinbefore stated; and resulted in a decree holding that the Act 115 was not applicable to the District. This appeal challenges that decree.

The Act 115 is captioned:

“An Act to provide for minimum prevailing wages lo be paid on certain state, county, municipal or taxing agency, public construction or works; to repeal conflicting laws; to declare an emergency; and for other purposes.”

Section 1 of the Act says:

‘ ‘ The advertised specifications for every contract to which the State of Arkansas, any county of this state, any city or town in this state, or any taxing agency of this state, or any of the agencies thereof, is a party, for construction ... of public buildings or public works of the State of Arkansas, any of its counties, cities or towns, or of any taxing agencies of this state except as herein provided . . . shall contain a provision stating the minimum wages. . . .”

Section 7 of the Act says;

“It is the purpose and intent of this Act to provide and prescribe and establish minimum prevailing wage scales on all public state, county, municipal or taxing agency buildings and -works, except as herein exempted. . . (Italics our own.)

If the suburban improvement district here involved is a “taxing agency,” then the Act applies. That is the point for decision.

Our method of making improvements, by the formation of districts which make assessments of benefits against the property for the improvement made, has long been recognized in legislative enactments and judicial decisions. A scholarly two-volume treatise was written by Honorable Horace Sloan of the Jonesboro Bar in 1928, entitled “The Law of Improvement Districts in Arkansas.” In § 69 of that treatise, Mr. Sloan quoted Art. II, § 23 of our Constitution:

“ ‘The State’s ancient right of eminent domain and of taxation is herein fully and expressly conceded; and the G-eneral Assembly may delegate the taxing power, with the necessary restriction, to the State’s subordinate political and municipal corporations to the extent of providing for their existence, maintenance and well being, but no further.’ ”

Immediately following the above quotation, and in § 70 of his work, Mr. Sloan states the following as the rationale of our holdings:

“The words ‘taxation’ and ‘the taxing power,’ as employed in the foregoing provision, refer to general taxation only and not to local assessments. The words ‘the State’s subordinate political and municipal corporations’ do not include districts (whether corporations or not) created for the special purpose of constructing or maintaining public improvements to be paid for by local assessments on the real property benefited, but do include counties and municipal corporations. Under these definitions there is no constitutional restriction to prevent the Legislature from delegating to' an improvement district the power to fix and levy local assessments upon property specially and peculiarly benefited; but it cannot delegate to an improvement district any powers of general taxation. ’ ’

Our cases hold that a local improvement district is not a taxing agency. In Whaley v. Northern Road Imp. Dist., 152 Ark. 573, 240 S. W. 1, 24 A. L. R. 934, we said:

“. . . a local improvement district is not a subordinate political agency of the State, but is merely a governmental agency created for the specific purpose of constructing or maintaining a local improvement. Altheimer v. Board of Directors of Plum Bayou Levee District, 79 Ark. 229. General powers of taxation cannot be delegated to such an agency, for, as we have already said, the only theory upon which taxation of any kind can be justified in the construction of local improvements is that benefits accrue corresponding in value with the cost of the improvement. ’ ’

Again, in State v. Berry, 158 Ark. 84, 249 S. W. 572, we said:

"Taking all of the provisions of this act together, it would be more appropriately classified as a delegation of power to improvement districts to lay a privilege tax than a delegation of power to the county. But it cannot be upheld as a delegation of power to improvement districts, for they do not constitute subordinate political agencies of the State for the purpose of taxation, under the Constitution, and are therefore not authorized to lay a tax of any kind. ’ ’

It is true that in some of our Statutes regarding improvement districts the Legislature has used the words "tax” and "taxes” in reference to annual payments of installments of benefits and interest ; but it is clear that in all such instances the words "tax” and "taxes” were intended to mean "matured assessment of benefits and interest due thereon.” It would do violence to our entire theory of assessment of benefits of local improvement districts to allow these isolated instances of the loose use of the words “tax” and “taxes” to be seized on to support a claim that an improvement district levied a tax, particularly in view of the cases heretofore cited and the many cases in which this Court has repeatedly held to the contrary, some of which are: Sanders v. Brown, 65 Ark. 498, 47 S. W. 461; Paving Dist. of Ft. Smith v. Sisters of Mercy, 86 Ark. 109, 109 S. W. 1165; Shibley v. Ft. Smith Dist., 96 Ark. 410, 132 S. W. 444; and Lewis v. Delinquent Lands, 182 Ark. 838, 33 S. W. 2d 379.

We therefore conclude that the Chancery Court was correct in holding that the district here involved is not a “taxing agency” within the purview of Act 115 of 1955.

Accordingly the decree is affirmed.

Justice George Rose Smith not participating.

       Originally the Commissioner of Labor of Arkansas intervened to defend the Act; but has been allowed to withdraw after both sides agreed that the question of the constitutionality of the Act could be eliminated from the decree.

       The Legislative records show that the emergency clause received sufficient affirmative votes in each branch of the Legislature to make the Act effective immediately upon approval.

       Section 3 of the Act says that it does not apply to any highway, state or bridge construction.

         A few such instances may be noticed: in §§ 20-710 to 712, inclusive, Ark. Stats, (the suburban improvement district law here involved) the word “taxes” occurs several times; likewise in §§ 20-1120-1128, inclusive, in speaking of various kinds of districts, the word “taxes” occurs several times; and also in § 20-412 and in § 20-420 (the municipal improvement district law) the word “tax” and the word “taxes” occur several times.


author: Minor W. Millwee, Justice.

text:
    Ware v. Benedikt.
    5-703
    280 S. W. 2d 234
    Opinion delivered June 13, 1955.

      H. A. Tucker and Bailey, Warren & Bullion, for appellant.

      Richard W. Hobbs, for appellee.
   Minor W. Millwee, Justice.

The question for determination is the validity of a by-law of a public hospital which requires the approval and recommendation of a county medical society as a condition precedent to the right of a duly licensed physician and surgeon to practice his profession in such hospital.

Appellee, Dr. Alex Benedikt, is a native of Germany and graduated from Heidelberg University School of Medicine in 1924. After 4 years training in city and county hospitals at Stuttgart, Germany, he practiced medicine there until 1936 when he immigrated to this country and established his residence at Hot Springs, Arkansas. After passing the examination and complying with other requirements in the state of Texas he was admitted and licensed to practice medicine there. Subsequently, he was duly licensed to practice in this state by the Arkansas Medical Board on the basis of reciprocity with Texas. Since 1937 he has practiced medicine in the city of Hot Springs and is duly licensed as a qualified physician by the United States Department of Interior. During the past fifteen years appellee has applied for membership in the Garland County Medical Society 12 times and each time his application has been rejected. Officials of the society have declined to give a reason for the systematic exclusion.

Appellants are the administrator and members of the Board of Governors of the Ouachita General Hospital, a county hospital constructed under the provisions of Amendment 32 to the Arkansas Constitution and sun-ported by public funds. All of tbe appellants are businessmen. Appellee’s application to the Board of Governors for admission to practice in the hospital and to have his patients admitted for treatment therein was denied on the ground that he was not a member of the Garland County Medical Society as required by Article 5 of the hospital by-laws. Thereupon he instituted this suit to enjoin appellants from further denying him staff privileges and use of the facilities of said hospital as a duly licensed physician and surgeon. After appellants had demurred to the complaint they were advised by the attorney general that Article 5 of said by-laws was invalid and unconstitutional. An answer was then filed alleging that Article 5 had been amended so as to make the approval and recommendation of the Garland County Medical Society a prerequisite to admission to use of the hospital facilities by a physician instead of the former requirement of membership in said society.

Trial resulted in a finding in appellee’s favor and entry of a decree restraining appellants from denying staff privileges in said hospital to appellee so long as he remained a duly qualified and licensed physician in this state and abided by all reasonable hospital rules and regulations applicable alike to all physicians on the medical staff. Hence the effect of the decree was to hold the amended by-law unreasonable and invalid and this is the sole issue presented.

The general rule is that a regular licensed physician and surgeon has the right to practice in the public hospitals of the state so long as he stays within the law and conforms to all reasonable rules and regulations of such institutions. 26 Am. Jur., Hospitals and Asylums, § 9; 41 C. J. S., Hospitals, § 5. While a duly licensed practitioner has no right per se to practice his profession in a public hospital and cannot complain of his exclusion therefrom by the operation of reasonable rules and regulations, it is equally well settled that he cannot be deprived of the right or privilege to such practice by rules, regulations, or acts of the institution’s governing authorities which are unreasonable, arbitrary, capricious or discriminatory. See Findlay v. Board of Supervisors, 72 Ariz. 58, 230 P. 2d 526, 24 A. L. R. 2d 841, and authorities cited in an exhaustive annotation of said case in 24 A. L. R. 2d 850.

It is undisputed that appellee was denied the right or privilege to practice in, or have his patients admitted to, the Ouachita General Hospital on the sole grounds (1) that he was not a member of the Garland County Medical Society and (2) that he did not have the approval and recommendation of said society. In Hamilton County Hospital v. Andrews, 227 Ind. 217, 84 N. E. 2d 469, a rule of a county hospital conditioning the right of a duly licensed physician to practice therein on his being a member of a county medical society was held unreasonable and invalid. In commenting on the rule as applied to said applicant the court sáid:

His admission to this society depends entirely upon the sole determination of the society. Medical Soc. of Mobile County v. Walker, 1944, 245 Ala. 135, 16 So. 2d 321; Harris v. Thomas, Tex. Civ. App. 1920, 217 S. W. 1068; McKane v. Adams, 1890, 123 N. Y. 609, 25 N. E. 1057, 20 Am. St. Rep. 785. 4 Am. Jur., Associations and Clubs, § 11, p. 462. Whether he could ever become a member depends upon conditions beyond his control. By this rule the hospital again delegates its power to determine what physicians may use its facilities. It amounts to a preference in favor of the society and a discrimination against those physicians who by choice or otherwise, are not members of same.”

Like other courts, we recognize it as a matter of general knowledge that medical societies have rendered a great and valuable public service over the years in-developing and maintaining high standards of professional conduct and practice, and no implication is intended that such organization may not adopt any reasonable methods to preserve such standards. Group Health Cooperative v. King County Medical Soc., 39 Wash. 2d 586, 237 P. 2d 737. However, we agree with the chancellor’s finding that the amended by-law in question is unreasonable and invalid. As affecting validity, we perceive no material difference between a rule that makes membership in a medical society a prerequisite to staff privileges and one that requires approval and recommendation by the membership of said society. An organization that has consistently refused a physician membership over a period of 15 years without any announced reason would hardly be expected to approve and recommend such a physician to staff privileges in the hospital. The membership of a society that would reject the application for membership in the first instance would in all probability withhold its approval in the second instance. It would be contrary to human nature to indulge in the supposition that they would do otherwise.

In holding the by-law unreasonable and discriminatory we do not mean to infer that a public hospital may not validly enact rules and regulations applicable to all physicians and surgeons alike and which bear a reasonable and fundamental relation to the safety, interest and welfare of patients and the general public. The by-law in question does not meet this test. In urging its reasonableness appellants assert the necessity of having some group to whom they can turn for advice in considering the qualifications of applicants for staff membership since appellants themselves are not medical men. But the fact that appellants are unlearned in medicine does not preclude them from procuring the assistance and advice of medical and hospital organizations and groups, including county societies, in the formulation of rules which bear a reasonable relationship to public safety and welfare. A medical society is a private organization whose membership conceivably may bestow or withhold approval of a fellow physician’s application for a valid reason, or for no reason at all, under the by-law in question. That appellee was not a member of their group might be reason enough for them to withhold approval of his application.

Appellants also argue that it was incumbent upon appellee to resubmit his application for admission to practice in the hospital after appellants amended Article 5 of the by-laws and that the instant suit is, therefore, premature. Reliance is had on the general rule to the effect that one must exhaust his administrative remedies before he is entitled to apply for injunctive relief. But it should be remembered that appellee had exhausted his administrative remedy when he filed this suit and any change in the status quo in that respect was occasioned by appellant’s action in changing the rules while the game was in progress. Thus equity had complete jurisdiction when the suit was filed and appellants should not be permitted to defeat it by a change of rules where the court could have justifiably concluded, in the circumstances, that a reassertion of the administrative remedy would have been a vain and fruitless undertaking.

The decree is affirmed.


author: George Rose Smith, J.

text:
    Universal C. I. T. Credit Corporation v. Avery.
    5-677
    280 S. W. 2d 229
    Opinion delivered June 13, 1955.

      M. P. Matheney and Wright, Harrison, Linclsey & Upton, for appellant.

      T. 0. Abbott, for appellee.
   George Rose Smith, J.

The principal question in this case is whether a certain conditional sales contract, now attacked by the appellee for usury, was executed before or after the decision became final in Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973. That decision overruled a series of earlier cases but stated that the new rule would apply only to transactions entered into “after this opinion becomes final.” The contract now before us would have been valid under the theory that formerly prevailed but would be usurious and void under the doctrine announced in the Hare case. The chancellor held the agreement to be' usurious and granted the plaintiff’s prayer for cancellation.

The opinion in the Hare case concededly became final when the petition for rehearing was denied on June 30,1952. "We know, without proof, that the court’s action was announced within a few minutes after nine o’clock on the morning of June 30. Supreme Court Eule 1. Late that afternoon the appellee bought a car on credit and executed the contract which he now contends to be void for usury. It is his position that since the purchase was made several hours after the court’s announcement of its action, the case falls within the new principle adopted by this court.

In answer to this argument the appellant relies upon the familiar rule that the law is not concerned with fractions of a day. Hence, it is said, the former opinion did not become final until the end of June 30. The flaw in this argument is that the appellant would have us disregard the wrong fraction of a day. When a change in the law becomes operative upon a certain day, the rule as to fractions of a day results in that entire day being included in, rather than excluded from, the operative effect of the new law. For example, a statute which contains a valid emergency clause is effective during the whole day on which it is approved by the governor. Lee Wilson & Co. v. Wm. R. Compton etc. Co., 103 Ark. 452, 146 S. W. 110. Again, where a city fireman died before eight o’clock in the morning it was held that his widow was entitled to a pension under an ordinance adopted later in the day, since the law was regarded as being in force for the entire day. McLaughlin, Trustee, v. Lovett, 204 Ark. 708, 163 S. W. 2d 826. Thus under the principle advanced by the appellant the Hare opinion became final at the first moment of June 30, not at the last moment of that day.

It is also insisted that to apply the new rule of the TIare ease to the activities of June 30 would in practical effect deprive the appellant and other lenders of any notice that the law had been changed. It is plain, however, that ample notice was actually given. The original Hare opinion was announced on May 26. Had no petition for rehearing been filed it would have become, final at the expiration of seventeen days. Supreme Court Rules 20 and 22. Hence if the appellant was deliberately relying upon the old law more than a month after this court had issued its warning, this lender must have known that a petition for rehearing was pending and must also be taken to have known that the opinion would be final during the entire day in which that petition was acted upon.

The remaining contention, that the appellee should not bo permitted to keep the car upon cancellation of the purchase agreement, was rejected in Universal C. I. T. Credit Corp. v. Stanley, 225 Ark. 96, 279 S. W. 2d 556, and heed not be reexamined.

Affirmed.


text:
    Fikes v. Lee.
    5-698
    280 S. W. 2d 230
    Opinion delivered June 13, 1955.

      Frank J. Wills, for appellant.

      George W. Shepherd and John W. Bailey, for appellee.
   Ward, J.

This suit was instituted to cancel a deed on the grounds that the grantor lacked the necessary mental capacity and that the grantee, having knowledge of the grantor’s mental condition, exercised over persuasion, fraud, duress and undue influence. The trial court decreed a cancellation on the ground of lack of mental capacity, hence this appeal.

Background, facts. Henry Hamilton, a negro 86 years of age at the time he made the deed in question, held legal title to real property in North Little Rock described as Lots 5, 6, 7 and 8, Block 5, Foraker Grove Addition which he had owned for several years. There was a seven room residence on one of the lots in which Hamilton lived and there was a small rent house on each of the other three lots. The value of this property is estimated at from $3,000 to $9,000. On June 14, 1954 Hamilton, for a consideration of $3,000 paid in cash, executed and delivered to appellant Dick Fikes [and his wife] a regular warranty deed to all of said property. On June 23, 1954 Croteal Lee, a daughter of Hamilton, was legally appointed his guardian and on the same day filed a complaint to have the said deed canceled.

Appellee’s testimony. The record reflects the following testimony, in substance, to establish Hamilton’s lack of mental capacity. Dr. N. T. Hollis, a licensed physician since 1935, served on the staff of the State Hospital until 1947 when he entered the private practice of psychiatry in which field he has specialized for 19 years. He examined Hamilton physically and psychiatrically on June 29 and July 1, 1954 when he also talked to tw'o of Hamilton’s daughters. He found Hamilton to be 86 years old, suffering from hypertension, almost blind, hearing affected, mentally confused, and senile, and it was his opinion that this condition developed gradually over a period of years. In his opinion Hamilton was mentally incompetent on June 14, 1954 to fully understand a transaction involving the sale of real estate, its value, or to execute a deed conveying the same. On cross examination he stated that his examination lasted about a half hour on each occasion; that Hamilton showed confusion and uncertainty on many scores although he knew the names of all of his children and where they were located; and he based his opinion partially on the ground that Hamilton is obviously senile and physically crippled.

Dr. A. C. Kolb, 68 has engaged in the practice of medicine and psychiatry since 1917 and has served as superintendent of the Arkansas State Hospital for several years. He has also been employed by the Veterans Administration in the department of psychiatry and was Chief of the Neuropsychiatric unit of the Medical Division until April 1, 1954, and is certified by the medical board of neurology and psychiatry. He examined Hamilton on October 7, 1954 when he obtained a thorough case history after talking to Hamilton and several members of his family. From this he learned that Hamilton had quit work in January 1954 because his eyesight was not good and because he could not work as efficiently as he had in the past; that his wife died in May 1954 since which time he had become depressed and had drunk considerable liquor — something- like one pint a day, and; his arteries were hard and tortuous with ringlike formations that could be felt, indicating very marked arteriosclerosis. He made a diagnosis of generalized arteriosclerosis which affected Hamilton’s brain and his judgment in conducting business affairs. The doctor also stated Hamilton had a marked mental enfeeblement, secondary only to arteriosclerosis and he didn’t think he had the capacity to make the deed on June 14. On cross examination the doctor stated that if you could see Hamilton’s brain it would be very much sunken due to lack of nourishment.

Some 8 or 10 witnesses, including the County Judge and contractors for whom Hamilton had worked on previous occasions, testified in substance that Hamilton began to fail rapidly about 18 months previously and that while he was working he.would often have to stop and sometimes he would forget to go to work; that he was forgetful and sometimes failed to recognize people whom he knew well; that for 4 or 5 years his wife had attended to most of the business; that since the death of his wife and up until the deed was executed he drank as much as a pint or more of liquor a day, and; that he was apparently worried and morose. Judge Campbell stated that Hamilton had worked for him for many years and that he had never known him to drink during that time but that he saw him about the first of June 1954 and knew he had been drinking and could see “his old friend was slipping”; and that he saw him later in June or July and his mental and physical condition was still about the same. Ben Hogan, a general contractor, for whom Hamilton had worked, saw him shortly before the trial and he noticed that he tottered and seemed very feeble and his statements were not coherent, certainly not comparable to what they were years ago. Two real estate men after carefully inspecting the property estimated it to be worth approximately $9,000.

Appellants’ testimony was substantially as follows: Dr. Elizabeth Fletcher, a graduate of Arkansas School of Medicine in 1934, and at present engaged in the private practice of psychiatry, examined Hamilton on September 20, 1954. She found evidence of generalized arteriosclerosis and a white ring about the eyeballs called arcus senilis; he weighed 123 pounds, shoulders stooped and bent, oral hygiene poor, and eyesight impaired, with no indication of cardiac decomposition. In her opinion his physical condition does not affect his mental capacity. He was quiet, agreeable and cooperative, she found no unusual mannerisms and no evidence of delusions or hallucinations and, in her opinion, he knew what he was doing when he signed the deed and knew the consequences of his act. On cross examination she stated that arcus senilis is indicative of hardening of the arteries. She also found a white ring completely around the iris of his eyes, his heart somewhat enlarged as was to be expected, a loud systolic murmur indicating an ortic insufficiency, but he gave no evidence of lack of blood supply to the brain. She found that he was bright and smart and could evaluate the sale of a piece of land as well as the average person. Hamilton left the impression on her that he had made a mistake in selling the land but since he had agreed to the transaction he ought to suffer the consequences.

Fikes stated that Hamilton first asked him $3,500 for the property and that later he agreed to take $3,000; that after his attorney had examined the abstract, which had not been brought up to date, he gave Hamilton three One Thousand Dollar bills and that Hamilton’s daughter gave him a receipt; and, that later on the same dajr he went back when Hamilton signed the deed. In his opinion the property was not worth more than $3,000 and there was nothing in Hamilton’s appearance to indicate that he had been drinking or that he did not fully understand what he was doing. Under their agreement Hamilton was to get one month’s free rent and after that he was to pay $30 a month rent to live in the main house. Two real estate men estimated the value of the property to be around $3,500. There was testimony that Hamilton did not drink after his wife’s death and that his mind was not affected.

It was shown by the testimony for both sides that at about the time the deed was executed Hamilton contracted for lumber to the extent of $178.95 in order to repair a house nearby which did not belong to him, and that a few days later the lumber was returned and he was refunded the $100 which he had made as a down payment.

In the words of appellants “the sole question (for us to decide) is the adequacy of the evidence to support the chancellor’s finding that Hamilton did not realize the effect, result or import of his acts in selling the property.” In the beginning, however, it is necessary to set forth the correct rule by which we are to be guided. Appellants start their argument with the statement that “the proof of incompetency must rise above a preponderance and must be clear, cogent and convincing to justify setting the deed aside”. In this statement of the rule appellants are in error, and they are not sustained by Braswell v. Brandon, 208 Ark. 174, 185 S. W. 2d 271, which they cite. There the “preponderance rule” was stated at page 176 [Arkansas Reports]. The Braswell opinion does however cite Stephens v. Keener, 199 Ark. 1051, 137 S. W. 2d 253, as sustaining the “clear, cogent, and convincing rule ’ ’, but in that case there was no question of mental capacity involved. The correct rule by which we are to be guided in this kind of a case is, as stated in McEvoy v. Tucker, 115 Ark. 430, 171 S. W. 888, and Oliphant v. Oliphant, 217 Ark. 446, 230 S. W. 2d 653, whether or not the chancellor’s finding is contrary to the preponderance of the evidence.

The definition of what constitutes mental capacity to execute a deed has been stated in varying language by many decisions of this court. Perhaps the language most uniformly approved by our decisions is that set forth in Seawel v. Dirst, 70 Ark. 166, 66 S. W. 1058, McEvoy v. Tucker, supra, and Beaty v. Swift, 123 Ark. 166, 184 S.W. 442, to the effect that proof which is designed to invalidate a person’s deed or contract on the ground of insanity must show inability to exercise reasonable judgment in regard to the transaction involved, and it must be such as to disqualify him from intelligently comprehending and acting upon the business affairs out of which the conveyance grew, and to prevent him from understanding the nature and consequences of his .act.

Guided by these rules we are unable to say that the trial court’s finding in this case was against the preponderance^ the evidence.

At the outset we cannot help but be impressed by the qualifications and testimony of the two psychiatrists who, after careful examinations, concluded that Hamilton lacked the necessary mental capacity to execute the deed to appellants. This specialized testimony was corroborated by the lay testimony of several individuals, some interested and some apparently disinterested, who had the opportunity to observe Hamilton and to compare his physical and mental condition at the time the deed was executed with his condition at prior times. We cannot say that the chancellor was wrong in being more impressed by this testimony than he was by the testimony of the one psychiatrist and other individuals who were of the opinion that Hamilton did have sufficient mental capacity at the time he executed the deed on June 14, 1954 to understand the nature and consequences of his act.

There are some other circumstances in the case which confirm the view we. take. Although the price paid for the property by appellants is not shown by the evidence to be so inadequate as to shock the conscience or to be conclusive of the lack of mental capacity on the part of Hamilton, yet the chancellor may well have found it was worth considerably more than $3,000, and, if so, was a circumstance which the chancellor had the right to take into consideration in his over-all view of the case. In McEvoy v. Tucker, supra, the court said: . .we think the evidence in this ease shows an inadequate consideration, and that is a circumstance to be considered in determining whether relief shall be granted in cases of this character, for if, in addition to mental incapacity, there is also inadequacy of consideration, equity will the more readily intervene to set aside a conveyance”.

While we agree with the chancellor that there is nothing in the testimony in this case to show that Fikes’ conduct in dealing with Hamilton amounted to fraud or deception, yet there is one incident of such significance as to evoke comment by Dr. Kolb which may properly be mentioned. The testimony shows that before the abstract of title had been brought up to date and before the deed in question had been executed appellant Fikes went to Hamilton’s home and offered him three One Thousand Dollar bills for the property, and that Hamilton accepted them with apparent relish. Not only was this procedure on the part of Fikes somewhat unusual, but Dr. Kolb thought it was calculated to produce a psychological effect on Hamilton. The doctor stated it was his frank opinion that Fikes recognized Hamilton’s mental enfeeblement and used the One Thousand Dollar bills as a psychological wedge, and that it worked. Mention is made of this merely because we think it might well have impressed the chancellor as it did the doctor.

Accordingly, the decree of the trial court is affirmed.


author:
Robinson, J.
      Ed. P. McFaddin, Justice,

text:
    Triebsch v. Athletic Mining & Smelting Company.
    5-621
    280 S. W. 2d 719
    Opinion delivered June 13, 1955.

      Ileartsill Bag on, for appellant.

      Daily <& Woods, for appellee.
   Robinson, J.

The appellant is the widow of Arnold G. Triebsch. Prior to his death, Triebsch had been awarded compensation for an injury received in the course of his employment, and for which he was being paid compensation at the time of his death. The issue is whether he died from the effects of the injury causing his disability or from some other cause. The Workmen’s Compensation Commission held that his death was not the result of the disability for which he had been awarded compensation and hence that the widow is not entitled to recover death benefits.

The law is settled in this State that if the employee dies as a result of the disability for which he had been awarded compensation, the cause of such disability is res judicata. We said in Bell v. Batesville White Lime Company, 217 Ark. 379, 280 S. W. 2d 643: “We think the Commission erred in retrying the issue of accidental injury. When the Commission’s finding upon an employee’s claim is res judicata as to his widow and children is a question of first impression in Arkansas. Several states have held that the rule of res judicata does not apply, but in most of them the peculiar wording of the compensation act permits the commission to modify its awards at any time. Our own provision for modification is not so broad. See § 81-1326. We believe the better reasoned cases to be those holding that a decision rendered during the employee’s lifetime upon his assertion of compensable disability is binding when his dependents raise the same issue after his death.”

This court has held previously that Triebsch’s disability was compensable. Triebsch v. Athletic Mining & Smelting Company, 218 Ark. 379, 237 S. W. 2d 26. Hence, there is only one issue in the case at bar and that is: Did Triebsch die from the same cause that brought about his disability?

For nineteen years, Triebsch had worked in the boiler room of the Athletic Mining & Smelting Company’s plant at Fort Smith. On the night of January 28, 1949, he became disabled. With reference to his disability, this court made the specific finding: “In the course of his work on that night appellant (Triebsch) collapsed and suffered a physically disabling attack, or breakdown, so that he is now totally and permanently disabled.”

The record in the first case was made a part of the record in the case at bar. There was evidence in the first case that Triebsch suffered with bronchial asthma, bronchiectasis, emphysema and chronic nephritis. Whether the nephritis was caused by the pulmonary trouble, which was in turn caused by his working conditions, was a sharply contested point. In the first case, the employer contended that Triebsch’s disability was due to a “combination of renal (pertaining to the kidney) and pulmonary factors, the primary cause being principally of renal origin”, and that “the renal disease was degenerative in character and in no way associated with the pulmonary condition”.

Whether the kidney condition resulted from the lung condition was an issue in the first case. In that case, Dr. Cull, who was a witness on behalf of the employer, said: “In my opinion, Mr. Triebsch’s disability is definitely due to a combination of both pulmonary emphysema and nephritis. ... I do not regard the pulmonary emphysema in this case as either a causative or contributory factor in the chronic nephritis.” On the other hand Dr. Iloge, who testified on behalf of the employee, stated: “I further disagree with Dr. Gull in his statement that the pulmonary emphysema is not a causative or contributory factor in the chronic nephritis. I disagree with this statement because his (Triebsch’s) previous records show that he had had an infection associated with emphysema, and there is no other factor to which one can attribute the etiology of this nephritis. It is a known fact that infection in any part of the body can and usually is the etiologic factor causing chronic glomerulonephritis.” Appellees’ principal contention in the case at bar is that Triebsch did not have glomerulonephritis; that glomerulonephritis can be due to an infection but that the kind of nephritis that Triebsch had could not be caused by an infection. This is one of the same issues that was present in the first case.

In the first case, it was shown that Triebsch was totally and permanently disabled due to lung and kidney trouble which was aggravated by his working conditions and was therefore compensable. According to the undisputed evidence in the case at bar, he died because of lung and kidney trouble, the very same lung and kidney trouble this court has previously held to be compensable. Therefore, the issue is res judicata and appellant is entitled to collect the death benefits provided by the Workmen’s Compensation Law.

Reversed.

Justices McF addin and George Rose Sm;ith dissent.

Justice Holt not participating.

Ed. P. McFaddin, Justice,

(dissenting). The first three paragraphs of the majority opinion give a succinct statement of this case; and these paragraphs conclude with this sentence: “Hence, there is only one issue in the case at bar, and that is: did Triebsch die from the same cause that brought about his disability?” That question is correctly stated; and, from the record in the present case, I am convinced that there was substantial evidence to support the Commission’s findings, which were that Mr. Triebsch died from kidney trouble and not from the bronchial ailment for which he received compensation.

A careful study of the opinion in the first case shows that Mr. Triebsch was allowed compensation solely because of his collapse from a bronchial ailment. The question now is whether he died from the bronchial ailment. Dr. Koenig was a pathologist who made an extensive postmortem examination of Mr. Triebsch; and it was Dr. Koenig’s view that Mr. Triebsch’s death was due to the kidney ailment. Dr. Chamberlain was asked this question and gave the answer as follows:

“Q. In your opinion, and based on Dr. Koenig’s findings from the evidence disclosed by the post-mortem •examination, and your own examination and treatment of Mr. Triebsch during his limetime and the other medical and laboratory evidence in the record before the commission, did Mr. Triebsch’s exposure to the dust, smoke and fumes and other environmental factors disclosed by the record at his working place at the Smelter prior to January 29, 1949, so affect any of his existing diseased conditions that his death occurred any sooner than it would have occurred had he never worked at the Smelter, but had engaged in other labor involving-equivalent exertion out of doors?

“A. In my opinion, no.”

The foregoing is the testimony of a doctor to the effect that Mr. Triebsch’s death was not hastened in any way by the bronchial trouble, and that his death came about by reason of the kidney trouble.

Dr. Hogue testified that Mr. Triebsch died because of the bronchial trouble. Dr. Koenig, the pathologist, admitted that Mr. Triebsch’s death might have been hastened 24 hours by reason of the bronchial trouble. If there were no testimony in the record except that of these two witnesses, I would have reversed the Commission, because if Mr. Triebsch’s death was hastened to any extent by reason of the bronchial trouble (the original injury for which he drew compensation), then his widow was entitled to compensation. But Dr. Chamberlain flatly stated, as quoted, that Mr. Triebsch’s death was not hastened one iota by the bronchial trouble for which he drew compensation. Dr. Chamberlain’s testimony is substantial and supports the Commission’s findings; and, under our cases, we must affirm the Commission’s findings when they are supported by substantial testimony.

It is not a question of what our views may be as between the conflicting opinions of the medical experts. I wish that we weighed these cases on the “preponderance of the evidence rule” rather than the “substantial evidence rule.” My views in this regard are contained in my dissenting opinion in the case of J. L. Williams & Son v. Smith, 205 Ark. 604, 170 S. W. 2d 82; but until the Legislature changes the rule for weighing the evidence, or until the Court adopts the views of said dissenting opinion, then I feel honor bound to decide these cases on the “substantial evidence rule”; and under that rule, I must dissent from the majority holding in the case at bar.

        Triebsch v. Athletic Mining & Smelting Co., 218 Ark. 379, 237 S. W. 2d 26.

       For a collection of the cases so holding see West’s Ark. Digest “Workmen’s Compensation,” § 1939 of Cumulative Pocket Supplement.