author: Carleton Harris, Chief Justice. Ed. F. McFaddin, Justice, Osro Cobb, Justice,

text:
    Fancher v. Baker
    5-3742
    399 S. W. 2d 280
    Opinion delivered February 21, 1966

      E. Paul Jackson, for appellant.

      Little & Enfielcl, for appellee.
   Carleton Harris, Chief Justice.

This is a case of first impression in this state. Haleen Fancher, appellant herein, and Chester Baker, appellee herein, were involved in an automobile accident in Carroll County on June 15, 1962. At the time of the mishap, Baker was acting in the course of his employment as a rural mail carrier, employed by the United States Government. On August 31. 1964, appellant instituted suit against appellee for damages, asserting that she was severely injured by the collision, and that her injuries were due to the negligence of Baker. Thereafter, appellee filed in the United States District Court for the Western District of Arkansas (Harrison Division) kis petition asking that the action be removed to that court because of the provisions of Title 28, U. S. C., Section 2679. Subsequently, Baker filed a motion in the District Court, stating that the United States Attorney for the Western District of Arkansas had refused to make the necessary certification, and appellee requested the court to substitute the United States Government as defendant in the place of petitioner. This motion was supported by Baker’s affidavit to the effect that, at the time of his accident with Haleen Fancher, he was engaged in delivering the United States mail on his route as a rural mail carrier. The United States of America, through the United States Attorney, appeared specially to assert that it had not been made a party to the action, and that Baker’s motion was not sufficient to state a claim upon which liability of the United States could be founded. Thereafter, the Federal court remanded the case to the Circuit Court of Carroll County. On December 15, 1964, Baker filed a similar affidavit in the Carroll County Circuit Court, together with motion for summary judgment, the basis of the motion being that appellant’s alleged cause of action against him was barred by reason of the provisions of 28 U. S. C., Sections 2401 and 2679. Following the filing of a response in opposition to the motion for summary judgment, the Circuit Court entered its order holding with appellee, and dismissing appellant’s complaint with prejudice. From such order, appellant brings this appeal.

At issue are certain provisions of Title 28, U. S. C. To briefly summarize pertinent portions, a government employee who has suit instituted against him for personal injuries or property damage, resulting from the employee’s operation of a motor vehicle while acting within the scope of his employment, is entitled to have the United States substituted as the defendant, provided the essential provisions of the Code are complied with. The employee is required to timely deliver all process served upon him to his immediate superior in his department (or to whoever is designated by the department bead to receive such, papers), and this person then promptly furnishes copies of the pleadings and process to the United States District Attorney (for the proper district), the Attorney General, and the head of the employing Federal agency. The Attorney General is then required to certify that the defendant employee was acting within the scope of his employment at the time of the occurrence out of which the cause of action arose,, and when this is done, the case is removed from the state court to the Federal district court for the district and division embracing the locale where the case is pending. The suit is then considered a tort action brought against the United States, and the employee is no longer a party.* * However, tort actions brought against the United States must be commenced within two years from the date the cause of action accrued, and it is this last fact which actually occasions the litigation’s making its way to this court.

At the outset it might he stated that the question of whether Baker was acting in the course of his employment is not at issue in this appeal. Not one line of the brief is devoted to that point; rather, appellant’s entire brief is predicated on the fact that she still has a cause of action, though Baker was acting in the course of his employment at the time of the collision. Under our rules, any question not argued is deemed waived. Johnson v. Gammill, 231 Ark. 1, 328 S. W. 2d 127, and Bost v. Masters, 235 Ark. 393, 361 S. W. 2d 272 (Rehearing). Of course, the governmental protection does not extend to a Federal employee who is involved in an accident not connected with his employment.

Appellant did not commence her action against Baker until more than two years had elapsed after the collision. Appellee apparently thereafter followed the procedure mentioned, but there is no certification by the Attorney General of the necessary facts. Of course, the suit was not commenced within two years, and accordingly, there could be no liability on the part of the government. Subsequently, Baker, through his attorney, filed a motion in the Federal District Court, setting out that the United States Attorney had refused certification, and asking the court to substitute the United States Government as the defendant in the action. In support of the motion, he also filed his affidavit. The government entered its special appearance, asserting that appellee’s motion was insufficient to state a claim upon which, liability of the government could be founded. The district court thereupon rendered its order remanding the case to the 'Circuit Court of Carroll County.

Thus far, there appears no disagreement, but appellant contends that she still has the right to pursue her claim against appellee in the state court, because there, the cause of action is not barred by limitations. Appellant states:

“I think it is apparent that the Congress intended for the legislation to be an exclusive remedy only when all its conditions had been complied with, which in effect means that the United States accepts responsibility for the action on a respondeat superior theory and declares the tort feasor immune. Since neither of these conditions have been complied with in the instant case, and because the federal court for this district has refused jurisdiction in this matter, it is our contention that the action is maintainable against the defendant on an individual basis in our state court.”

We do not agree. There are but few cases on this legislation (pertinent portions being enacted in 1961), and the cases cited are not too helpful, because the facts are considerably different, and the question here at issue was not directly presented; however, our research has revealed the recent case of Hoch v. Carter, 242 F. Supp. 863, decided on June 30, 1965. There, though the facts were a little different, the question now before us (failure to institute suit within two years) was squarely passed upon. The court, in determining the litigation, said:

“The fallacy of plaintiffs’ argument is that they never had rightful remedy in the state court or any other court against Francis Carter, the person against whom timely suit was instituted in the state court. Once plaintiffs concede, as they have here, that Francis Carter was acting within the scope of his federal employment at the time of the accident, then 28 IJ. S. C. § 2679(b) is dispositive:

“(b) The remedy by suit against the United States ds provided by section 1346 (b) of this title for damage to property or for personal injury, including death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.

“[4] Plaintiffs’ sole and exclusive remedy was one against the United States. See the comprehensive discussion of 28 U. S. C. § 2679 (b)-(e) by Judge Feinberg in Perez v. United States, 218 F. 571 (S.D.N.Y. 1963).

“[5] The party against whom this action was timely brought—Francis Carter—was immune from suit. Remedy against the only party amenable to suit—the United States—was concededly barred as untimely. * * * ”

As here, appellants argued that, having no remedy against the United States they should have their remedy in the state court.

The court stated:

“The obvious answer to plaintiffs’ last argument is that a remedy against the United States was available; plaintiffs merely failed to avail themselves of it.”

We think unquestionably that the remedy afforded by suit against the government is exclusive. Indeed, the legislative language, “exclusive of any other action or proceeding,” could hardly be more forcefully stated. As in Koch, there was a remedy available to appellant— but she did not avail herself of it.

Affirmed.

McFaddin and Cobb, J.J., dissent.

George Rose Smith and Ward, J.J., concur in the result.

Ed. F. McFaddin, Justice,

dissenting. I dissent. I admit the Federal Government is extremely powerful; hut if one citizen of Arkansas desires to sue another citizen of Arkansas in the State Courts of Arkansas in a private tort action, then I am not willing to hold that the Federal Congress can shorten the State statute of limitations in actions between individuals. Particularly is this true in this case in which the Federal Government was not, and is not, a party. In short, I deny the constitutionality of a Federal statute that is construed to accomplish such a result as is reached by the Majority in this case.

Osro Cobb, Justice,

dissenting. The majority has found it unnecessary, in considering this appeal, to pass upon the question, if any, as to the existence of a genuine factual issue between the parties as to the mission and scope of activities of appellee as an employee of the United States at the time of the collision. The majority has adopted the view that such an issue is not sufficiently raised by appellant for our review. I do not agree.

Appellant’s entire appeal is bottomed upon a single Point, and I quote:

“Court erred in granting Defendant-Appellees motion for summary judgment since 28 U. S. Code Section '2679 grants exclusive jurisdiction to the United States only when the United' States accepts responsibility for the tortious act and declares the tort feasor immune, neither of which were done in this case.”

This appellant suffered the dismissal of her entire cause of action in the trial court by the entry of a summary judgment. The propriety of the action of the trial court in doing so is the only issue here on appeal and it seems to me that anything in this record demonstrating or tending to demonstrate error by the trial court in granting summary judgment is now properly before us for review.

Appellee filed an affidavit in support of his motion for summary judgment stating that he was employed by the United States and was in performance of his duties of delivering mail at the time of the accident. However, within two days of the filing of said affidavit by appellee, appellant filed a formal response, paragraph 1 of same reading as follows:

“That there are genuine issues of material facts which plaintiff cannot present in affidavit form because same are outside plaintiffs’ knowledge at this time, and/or would have to be presented by proper testimony.”

Moreover, appellee had previously filed a request for admissions of fact by appellant as to appellee’s employment by the United States and as to his being engaged in delivering the mail at the time of the incident. Appellant formally responded refusing to make the admissions and stating in her response:

“ . . . She cannot, however, with certainty, say that the defendant was on this route delivering mail at the time of the collision. Plaintiff, therefore, states that she has insufficient information to admit or deny those items requested by defendant.”

Summary judgment is not available unless all questions as to dispositive facts have been removed.

‘ ‘ Motion for summary judgment is extreme remedy and should be granted only in absence of genuine material fact issue. Ark. Stat. Ann. Sec. 29-211. Fed. Rules Civil Procedure, Rule 56, 28 U. S. C. A.”

Wirges v. Hawkins, 238 Ark. 100, 378 S. W. 2d 646.

Our civil procedures as to summary judgment have been taken from Rule 56 of the Federal Rules of Civil Procedure. The federal courts have enjoyed a broad experience in the use of summary judgments and the federal courts have uniformly held that affidavits in support of a motion for summary judgment may be traversed by other affidavits or by the filing of an additional responsive pleading, which is what occurred in this case. Fletcher v. Norfolk Newspapers, Inc., 239 F. 2 169. In Hartford Accident and Ins. Co. v. Loyd, 173 F. Supp. 7, U. S. District Judge John E. Miller granted summary judgment when no factual issue was found to exist but stated on page 12:

“The affidavit was not disputed with counter affidavits or subsequent pleading of any kind, although the defendants have been given adequate time under the local rules to do so if they so desire.” (Underscoring ours.)
“Nothing less than most conclusive showing possible in defendants deposition that master and servant relationship existed between defendant and such owner and operator should be accepted as sufficient on defendant’s motion for summary judgment, as knowledge of controlling facts on such issue is almost exclusively in defendant’s possession.” Hoffman v. Lamb Knit Goods Co., 37 F. Supp. 188. In Subin v. Goldsmith, 224 F. 2d 753, the court held: “Opponents failure to file counter affidavit in answer to affidavit filed to support motion for summary judgment does not compel acceptance as true of facts alleged in movant’s affidavit.” Cert. denied, 350 U. S. 883.

In Fogelson v. American Woolen Company, 170 F. 2d 660, cited in Subin v. Goldsmith, supra, all of the directors of the corporation, including a former G-over-nor of Massachusetts, a former Governor of the Federal Reserve Board, and a former Assistant Secretary of the Treasury, gave affidavits of fact in support of motion for summary judgment. While no affidavits were filed traversing said affidavits, the appellate court reversed the summary judgment entered below, noting: •

“It may be unlikely that the plaintiffs can prove their allegation, for such proof must be drawn largely from the directors themselves by cross-examination; but we do not think that their affidavits must be accepted as conclusive and thus preclude any trial of that issue.”

In Bozant v. Bank of New York, 156 F. 2d 787, Judge Learned Hand set forth in the opinion:

“In conclusion we cannot avoid observing that the case is another mistaken effort to save time by an attempt to dispose of a complicated state of facts on motion for summary judgment. This is especially true when the plaintiff must rely for his case on what he can draw out of the defendant. Arnstein v. Porter, 2 Cir., 154 F. 2d 464. It appears to be somewhat difficult to persuade the district courts of this; but we are satisfied that it is true.”

The practice has generally been followed in the federal courts at all levels to decline summary judgment where the facts set forth in affidavits in support of motion for summary judgment are peculiarly in the knowledge of defendants. See Colby v. Klune, 178 F. 2d 872. Sartor v. Ark. Natural Gas Corporation Kansas Group, 321 U. S. 620. In Toebelman v. Missouri-Kansas Pipe Line Co., 130 F. 2d 1016, the court declared:

“ It is obvious that this evidence must come largely from the defendants. This case illustrates the danger of founding a judgment in favor of one party' upon his own version of facts within his sole knowledge as set forth in affidavits prepared ex parte. Cross-examination of the party and a reasonable examination of his records by the other party frequently bring forth further facts which place a very different light upon the picture.”

A leading case in interpreting the federal rules as to summary judgments in situations similar to the instant case is that of Cohen v. Curtis Publication Company, 31 F. R. D. 569, from which we quote:

“In considering this motion, the Court is fully aware that a summary judgment should be granted with caution and only where the movants have established the non-existence of any genuine issue of fact. The showing made likewise must be construed in the light most favorable to the plaintiff. Moreover, the plaintiff should be accorded any and all favorable inferences that may be deduced from the showing. It is with these principles in mind that the Court approaches the question as to whether or not these two movants are entitled to the relief which they seek.”

The Cohen case, supra, was affirmed 312 F. 2d 747, cert. denied 375 U. S. 850, and rehearing denied 375 U. S. 936.

Subsection (d) of Section 2679, Title 28 IT. S. C. A. expressly contemplates that the Department of Justice, through the Attorney General, will inquire into the case and make a certification as to whether the defendant employee was acting within the scope of his employment for the United States at the time of the incident.

On October 8, 1964, appellee filed a verified motion seeking to have the United States substituted as a defendant in the action brought by appellant against him, and paragraph 4 of said motion, at page 10 of the transcript of the record, sets forth:

“The U. S. Attorney for the Western District of Arkansas has refused to certify that appellant was acting within the scope of his employment at the time of the incident out of which this suit arises. ...”

Subsequently, on October 30, 1964, the U. S. Attorney for the Western District of Arkansas entered a special appearance opposing appellee’s motion to substitute the United States of America as a party defendant, paragraph 2 of said special appearance being as follows:

“That the defendant’s motion is not sufficient to state a claim from which liability of the United States can be founded.”

The Department of Justice had several weeks of time in which to inquire into the circumstances of this accident before filing its special appearance, and the language of the special appearance, in avoiding any statement as to the mission of appellee at time of accident, strongly infers an additional cloud over the unresolved fact issue as to whether appellee was acting within the scope of his duties as an employee of the United States at the time of the accident. I am convinced that multiple doubts and inferences of doubt existed as to this factual issue. Since it seems to me that this case never reached a posture wherein summary judgment could be appropriately entertained, I must respectfully dissent from the majority opinion in affirming the summary judgment entered in this case.

I, therefore, dissent.

      From the petition: “The above described action is one which may be removed to this Court by Petitioner pursuant to the provisions of Title 28, U. S. Code, Section 2679, in that it is a civil action brought against defendant, an employee of the United States Government, for personal injuries and property damage allegedly resulting from the operation by Petitioner of a motor vehicle while acting within the scope of his employment as an employee of the U. S. Post Office Department.”

      The pertinent sections, or subsections, are as follows:
      Section 1346 “(b) Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”
      Section 2679 “(b) The remedy by suit against the United States as provided by section 1346 (b) of this title for damage to property or for personal injury, including death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.
      “(c) The Attorney General shall defend any civil action or proceeding brought in any court against any employee of the Government or his estate for any such damage or injury. The employee against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon him or an attested true copy thereof to his immediate superior or to whomever was designated by the head of his department to receive such papers and such person shall promptly furnish copies of the pleadings and process therein to the United States attorney for the district embracing the place wherein the proceeding is brought, to the Attorney General, and to the head of his employing Federal agency.
      “(d) Upon a certification by the Attorney General that the defendant employee was acting within the scope of his employment at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States for the district and division embracing the place wherein it is pending and the proceedings deemed a tort action brought against the United States under the provisions of this title and all references thereto. Should a United States district court determine on a hearing on a motion to remand held before a trial on the merits that the case so removed is one in which a remedy by suit within the meaning of subsection (b) of this section is not available against the United States, the case shall be remanded to the State court.”
      However, under the provisions of 28 U.S.C., Section 2401(b), a tort claim against the United States is forever barred unless action is begun within two years after a claim accrues.

      The purpose of the legislation is set out in the case of Perez v. United States, 218 F. Supp. 571 (1963), where District Judge Feinberg quoted from House Report No. 297, as follows:
      “ ‘The provisions of H.R. 2883 áre intended to meet the existing problem of personal liability of U.S. employees who must drive motor vehicles as a part of their jobs. The Federal Tort Claims Act made it possible for individuals to bring tort actions against the Government in the Federal courts. However, the provisions of that act as now codified in Title 28 of the United States Code do not afford a Government employee relief in those instances where an action is brought against him alone. *' * * The result of the situation is that all of the persons who operate vehicles for the United States face the possibility of being sued as individuals for incidents which occur while they are performing duties in behalf of the Government.
      “ ‘This problem concerning the liability of its employees is a matter of direct concern to the United States. The threat of this sort of liability to all Government employees who must operate vehicles in the course of their employment has an adverse effect on the efficiency and morale of those employees.
      “ ‘Since the Government must continue to utilize motor vehicles to render its required services it must be recognized that those vehicles must be operated by competent and reliable drivers. The threat of personal liability hardly aids in attracting and holding the responsible sort of employee required for such work.’ ”

      No reason was given by the court for remanding the case. However, it is clear from Federal decisions, that the court was without jurisdiction, because of the expiration of the two-year period. In De Bonis v. United States, 103 F. Supp. 119, the United States District Court for the Western District of Pennsylvania said: “The Federal Tort Claims Act creates the right of action and fixes the period within which the enforcement action must be commenced. When that period expired here on May 19, 1950, the right of action, remedy, and the corresponding liability were extinguished and the Court has no jurisdiction to entertain the suit. (Citing authorities) In Humphreys v. United States, 272 F. 2d 411, the United States Court of Appeals for the Ninth Circuit, after holding that, in a suit against a sovereign, there must be a waiver of immunity, stated: “But no waiver exists under 28 U.S.C.A. § 1346 once the two-year period of limitations has run. Thus, after the two-year period the District Court has no jurisdiction over the action.” Likewise, in Slater v. Keleket X-Ray Corporation, 172 F. Supp. 715, the District Court for the District of Columbia, held that the Federal Tort Claims Act “is not merely a statute of limitations barring the remedy, but is jurisdictional and destroys and extinguishes the cause of action upon the expiration of the period.”

      Here, appellant filed a response to the motion for summary judgment, asserting: “That there are genuine issues of material facts which plaintiff cannot present in affidavit form because some are outside plaintiff’s knowledge at this time, and/or would have to be presented by proper testimony.” Our summary judgment act, Ark. Stat. Ann. § 29-211 (Repl. 1962), is a copy of Rule 56 of the Federal Rules of Civil Procedure, and it has been held (in interpreting this rule) that allegations, similar to those in appellant’s response, are insufficient to create issues of fact. In Hartmann v. Time, 64 F. Supp. 671 (vacated in part on issues not material to the present case), the District Court for the Eastern District of Pennsylvania said: “The affidavit referred to concludes with the statement ‘that he cannot, because some of these facts and other pertinent facts are particularly within the exclusive knowledge of the defendant, present by affidavit all of the facts essential to justify the plaintiff’s opposition to the defendant’s motion.’ Plainly, the plaintiff is banking on Rule 56 (f), Federal Rules of Civil Procedure. However, the mere averment of exclusive knowledge in the other party, it seems to me, is not adequate. Plaintiff has not attempted to show what facts are within defendant’s exclusive knowledge; rather, his statement is vague and indefinite. Moreover, he has not shown that any steps were taken to procure the desired information pursuant to the discovery procedure permitted by the rules. See 3 Moore’s Federal Practice (1938) Sec. 56.07; Seward v. Nissen, supra. Also, the plaintiff has not indicated that he is desirous of taking advantage of the discovery procedures.” In the instant case, appellant did not offer any affidavits at all, though the response states that “some are outside plaintiff’s knowledge at this time.”


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Ark. State Highway Comm. v. Perrin
    5-3774
    399 S. W. 2d 287
    Opinion delivered February 21, 1966

      Mark E. Woolsey, Phil Stratton and Norwood Phillips, for appellant.

      Murphy, Arnold & Pivrtle, for appellee.
   Carleton Harris, Chief Justice.

On November 9, 1927, the County Court of Independence County, upon petition of the Arkansas State Highway Commission, appellant herein, entered its order condemning certain lands in Independence County, including lands of appellees, for highway purposes. On October 12, 1964, pursuant to petitions filed by Austin E. Perrin and wife, Lee Larson and wife, and Conway B. Pearce and wife, appellees, the Independence County Chancery Court entered three separate decrees (one for each couple), enjoining the Highway Commission from entering upon lands belonging to these persons until the commission secured the payment of just compensation by depositing into the registry of the court the sums of $3,000.00, $2,-000.00 and $3,000.00, respectively, for the payment of compensation in event the appellees should be unable to enforce their claims against the county. In its decree, the court had found that neither appellees, nor their predecessors in title, had any notice of the taking of the lands by virtue of the 1927 County Court order, and further, that the appellees had never received any amount of compensation. The State Highway Commission made the required deposit, and thereafter, appellees respectively filed separate claims with the Independence County Court for the taking of the lands under the 1927 court order. On December 21, 1964, the County Court, without any notice to appellant, entered its orders on these claims, finding that the County Court of Independence County attempted to condemn the lands in 1927, but that the Chancery Court had held such condemnation invalid; that appellees were entitled to compensation. The decrees of the Chancery Court were made a part of the order by reference. The County Court found appellees had been damaged respectively in the amounts of $2,000.00, $1,000.00 and $2,000.00, and, though finding that these amounts represented just compensation, disallowed the claims because Independence County did not have funds available with which to pay them, and the payment of the claims would be in excess of the revenues of the county. “Specifically the Court finds that the County does not have any remaining 1927 County Revenues.” The court further found that the amounts allowed were “now held by the Clerk of the Chancery Court of Independence County, Arkansas, and is a fund available for the payment of claimants’ damages as found by this court.” On January 20, 1965, the County Court granted the commission an appeal from these orders to the Independence Circuit Court, and the appeals were filed in that court on the same day. Appellees filed a motion to dismiss the appeals, and on January 28,1965, the Independence Circuit Court granted the motion, and from the judgment entered, the Highway Commission brings this appeal. The sole question before us is whether appellant had the standing to appeal the orders of the County Court to the Circuit Court.

Appellees insist that the claims were against Independence County; that the Highway Commission was not a party, and since the claims were disallowed, they were not appealable by any party on behalf of the county, or by a stranger to the proceedings. Appellees assort that the commission was not a proper party, in other words, a stranger, and appellant could only have become a party by filing a petition to intervene in the County Court. It is vigorously argued by appellees that there is no statutory authority that will permit the Highway Department to appeal these claims, and the various statutes are mentioned and discussed. It is true that the commission did not intervene, but, in motions filed with the County Court on January 17, appellant alleged that it received no notice of the filing of the claims, and it asked the court to vacate and set aside its orders of December 31, 1964, in which the claims were allowed Of course, if the commission did not know that the claims had been filed, there was no opportunity to intervene before they were approved. The situation in this ease is rather unusual in that appellant’s liability is predicated on the fact that the claims were disallotved. Of course, the disallowance was as to Independence County, and as far as the Highway Department was concerned, the claims were alloived. There is no need to discuss the statutes argued by appellee, since the question here at issue was commented upon in the comparatively recent case of Arkansas State Highway Commission v. Bollinger, 230 Ark. 877, 327 S. W. 2d 381. The facts in that case were practically the same as in the case before us. In 1927, the Franklin County Court, upon the petition of the State Highway Commission, entered an order widening the highway, but the right of way, as it affected the Bollingers’ property, was never cleared, and the lands remained in the same status until 1956, when the commission endeavored to compel the Bollingers to remove certain obstructions from the right of way. The Chancery Court required the commission to deposit $2,500.00 to guarantee payment of any damages, and the Bollingers then filed in the County Court their claim for damages. That court found that the claim was just, and should be paid in the amount of $3,-241.00, but the court further found that the county did not have sufficient funds to make the payment. The order then made reference to the $2,500.00 deposit, and set out that that fund should be paid to Bollinger. On appeal to this court, we said:

“If the Highway Commission was dissatisfied with the allowance of the Bollinger claim in the County Court the Commission should have resisted the claim by appeal to the Circuit Cotort [emphasis supplied].”

The commission in the instant case is endeavoring to do just that. Of course, there is no reason for any taxpayer to appeal, for the claim was not allowed against the county. No one is aggrieved except the commission, and, whether technically a party or not in the County Court, appellant certainly is the one affected by the court order. This court has long recognized the right of one who feels aggrieved by an order of a court, to appeal to a higher tribunal. As far back as 1897, in the case of Ouachita Baptist College v. Scott, 64 Ark. 349, 42 S. W. 536, the Arkansas Supreme Court recognized the right of those interested, i.e., pecuniarily affected, to perfect an appeal where action had been taken without notice to the one complaining. There we said:

“If the will has been probated in the more solemn form (that is, upon notice to all interested to appear in the probate court at the probation), then, of course, this particular question does not arise. If, however, as in the present case, the probation is in the common form, and parties interested have not been summoned to appear and make objection, then we think it but a fair and reasonable construction to put on the statute that parties interested may file the affidavit provided in the statute within the twelve months allowed, and thus make themselves parties to the probate proceedings for the purpose of taking an appeal from the order of probation to the circuit court, wherein, in such case, the real contest of the will may be made on the grounds set forth in their petition, which of course, will necessarily show their relationship to the deceased. * * * Furthermore, since the decisions of this court have left no other remedy to the contestant, who has not been given a day in court,' this ruling meets the requirements of the constitutional provision which declares that ‘every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive, in his person, property or character.’ Const. Ark. Art. 2, § 13. The contestants having filed their affidavit within one year from the probation of the will, as required by statute, the circuit court properly exercised jurisdiction to hear and determine the appeal, which in such matters amounts to the contest of the will.”

In Brown v. Frenken, 87 Ark. 160, 112 S. W. 207, this court, quoting a case from Massachusetts, said:

“A party aggrieved is one whose pecuniary interest is directly affected by the decree or one whose right of property may be established or divested by the decree. ’ ’

The court said further:

“It is clearly established by the authorities supra that a party aggrieved by a judgment has a right of appeal, though he is not a party to the record.”

The Highway Commission certainly meets the definition of an “aggrieved party,” for it has a pecuniary interest. It stands to pay out $5,000.00 without having its opportunity to contest the issues. We think simple justice requires that the appeal be permitted.

There is no question with regard to whether the appeals were timely taken, and no defect in the form of the affidavits has been pointed out.

It follows from what has been said that the Circuit Court erred in dismissing these appeals.

Reversed with directions to reinstate said appeals in all three cases._______

      These motions were controverted by appellees, and appellant subsequently withdrew them, and filed its appeal instead.

      Of course, it will be recognized that, at the time of the decision in this case, the judge of the County Court also presided over the Probate Court, and appeals were taken from the Probate Court to the Circuit Court. This procedure was changed by Ark. Const. Amend. 24, adopted Nov. 8, 1938.


author: Ed. F. McFaddin, Justice.

text:
    Graham v. State
    5178
    399 S. W. 2d 272
    Opinion delivered February 21, 1966

      Brown, Compton & Prewett, for appellant.

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. General, for appellee.
   Ed. F. McFaddin, Justice.

The appellant, James Graham, was charged, tried and convicted of selling beer in a dry county (Ark. Stat. Ann. § 48-803 [Repl. 1964]), and he brings this appeal.

Appellant insists that when he made the beer sale in Ouachita County on October 8, 1965, he violated no law because, he claims, that at the General Election in 1964 Ouachita County had voted “wet,” and the result of such election is controlling, notwithstanding the. fact that the election was contested. Appellant concedes that what we said in Parker v. Rowan, 239 Ark. 929, 395 S. W. 2d 338, will result in an affirmance here; but we are urged to rescind our holding and language in that case. "VYe refuse to agree to appellant’s insistence.

In Parker v. Rowan, supra, the “Wets” brought a suit in the Chancery Court praying for a declaratory judgment to the effect that the result of the 1964 General Election on the Wet-Dry issue in Ouachita County was final, even pending the time that the “Drys” might appeal from the County Court to the Circuit Court. We stated and reiterated the well known rule that equity courts have no power to interfere with election contests, saying:

“Thus, as long as an election contest is pending, the Chancery Court has no jurisdiction to interfere in such controversy. Regardless of whether the proceeding filed hy the Wets in the Ouachita Chancery Court on August 11, 1965 be called a ‘petition for declaratory judgment,’ ‘petition for injunction,’ or some other pleading, the net effect is the same: the Chancery Court was being asked to declare that during the time allowed by law for the Drys to appeal to the Circuit Court there was no election contest pending.”

Such language brought us to the determinative issue in Parker v. Rowan, supra, as to whether a Wet-Dry election contest could he considered as pending during the time allowed for appeal from the County Court to the Circuit Court; and on that point we said:

“In many cases when a judgment is rendered it is considered as final until reversed; but our statute on local option liquor elections establishes an entirely different rule in such cases. Act No. 212 of 1957, as found in Ark. Stat. Ann. § 48-827 (Repl. 1964) says of local option liquor election contests that if the election is contested there is no final determination until ‘the date of the issuance of the mandate by the court finally determining an election contest.’ This Act No. 212, when fitted into our local option election law in liquor cases, applies to contests by Drys as well as. to contests by Wets. The effect of our said statute is that the statics qico ante in liquor matters will not be changed until the ‘final determination’ of the • election contest. The contest of the 1964 local option election in Ouachita 'County has not been finally determined. As we have previously pointed out (and because of Ark. Stat. Ann. § 48-821 [Repl. 1964] and Ark. Stat. Ann. ^ 27-2001 [Repl. 1962]), the Drys have six months from August 6, 1965, to prosecute their appeal in the Circuit Court; and under the plain wording of Ark. Stat. Ann. § 48-827 (Repl. 1964) there has been no ‘final determination’ because there has been no ‘issuance of the mandate by the court finally determining an election contest.’ ”

The quoted language in Parker v. Rowan was used after careful deliberation, and we have no intention of receding from such holding and language.

Affirmed.

Johnson, J., dissents.

      In the present case it is stipulated that the “Drys” have now filed their appeal in the Circuit Court from the County Court order.


text:
    Southwestern Transportation Co. v. King
    5-3777
    399 S. W. 2d 276
    Opinion delivered February 21, 1966

      William J. Smith, Ben Allen, Q. Byrum Hurst and Lloyd M. Roach, Tyler, Texas, for appellant.

      Louis Tarlowski, for appellee.
   Ed. F. McFaddin, Justice.

The Arkansas Commerce Commission granted appellees a certificate to operate as a common carrier of general commodities from Little Rock to Pine Bluff and return; and the appellants prosecute this appeal claiming only one point for reversal: “Appellees wholly failed to establish public convenience and necessity to support the order of the Arkansas Commerce Commission granting the certificate.”

The appellees are W. H. King and others, and also the corporation, Red Line Transfer & Storage Company. We will refer to the appellees as “Red Line.” The appellants are Southwestern Transportation Company, Missouri Pacific Railroad Company, Missouri Pacific Truck Lines, Inc., and Atlas Transit and Warehouse Company, Inc. We will refer to these parties as “appellants.”

Red Line has been operating as a carrier since 1917 with home office in Pine Bluff, Arkansas. For many years Red Line has been both an intra-state and interstate certificated carrier of general commodities from Little Rock through Pine Bluff to various points in southeast Arkansas, and is now seeking to have its Am kansas certificate enlarged to allow it to pick up in Little Rock, for Pine Bluff (and the Pine Bluff Arsenal), and return. This enlargement would bring Red Line in direct competition—as regards Little Rock to Pine Bluff and return—with the appellants, and also with Superior Forwarding Company and Arkansas Best Freight Company, who already have permits on the questioned trip.

On May 9, 1962 Red Line filed the present application with the Arkansas Commerce Commission. The present appellants opposed the application; a hearing was held in June and July of that year; and on October 23, 1962 the Commerce Commission found:

“After careful consideration of the matters and things involved herein and being well and sufficiently advised in the premises, we find:
“1. That applicant is fit, willing and able, financially and otherwise, properly to perform the proposed service, and to conform to the requirements of the act, and to the rules and regulations of the Commission promulgated thereunder.
“2. That present and future public convenience and necessity require the proposed service.
“3. That the application should be granted.”

The order of the Commerce Commission granting the application followed the above quoted findings. The appellants appealed to the Pulaski Circuit Court, which, by judgment of July 19, 1965, affirmed the order of the Commerce Commission; and appellants appealed to this Court. As aforesaid, no question as to the sufficiency of Red Line’s ability, equipment, and financial standing is raised- The sole point is that Red Line failed to show the public convenience and necessity required to justify the order of the Commerce Commission.

Red Line’s application was filed pursuant to the Arkansas Motor Carriers’ Act of 1955, as amended (Ark. Stat. Ann. §§ 73-1754 et seq. [Repl. 1957]). Ark. Stat. Ann. § 73-1762 (Repl. 1957) provides in part:

“(a) Subject to the provisions of this Act, a certificate shall be issued to any qualified applicant therefor, authorizing the whole or any part of the operations covered by the application if it is found that the applicant is fit, willing and able properly to perforin the service proposed and to conform to the provisions of this act and the requirements, rules, and regulations of the Commission thereunder, and that the proposed service, to the extent to be authorized by the certificate, is or will be required by the present or future public convenience and necessity; otherwise, such application shall be denied; and the burden of proof shall be upon the applicant; . . ”

The appellants bring the record to this Court for trial de novo. Ark. Best Frt. System, Inc. v. Mo. Pac. Transport Co., 233 Ark. 685, 348 S. W. 2d 694. We have several cases which give the guide lines in a situation like the one here. In Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907, we said, as regards public convenience and necessity:

“In Pond op. ‘Public Utilities,’ 4th Edition, % 913 the rule is stated: ‘In granting certificates, the public convenience and necessity should be the first consideration, and the interest of public utilities already serving the territory secondary, while the desire of a new applicant for a certificate is relatively a minor matter for the consideration of the commission. ’
“And in 42 C. J. 687, in discussing the determination of public convenience and necessity, the rule is stated: ‘The convenience and necessity which the law requires to support the public service commission’s order for the establishment or extension of motor vehicle transportation service is the convenience and necessity of the public as distinguished from that of an individual or any number of individuals, and this is the primary matter to be considered in determining wliat constitutes such public convenience and necessity in a particular case, and the propriety of granting a certificate to that effect. The necessity for the proposed service must be considered as well as the added convenience thereof,

In Santee v. Brady we also said:

‘ ‘ ‘ The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required.’ (Italics our own.) “The opportunity to the existing carriers is in the disjunctive sense of ‘or’ rather than the conjunctive ‘and.’ In other words, the certificate may issue if public convenience and necessity be shown, even if there be already existing service, provided the Commission finds either: (a) that the present service is inadequate; or (b) that additional service would benefit the general public; or (c) that the existing carrier has been given an opportunity to furnish additional service as may be required.
“In 37 Am. Juris. 530', in discussing the issuance of a certificate of public convenience and necessity where service is already in operation on the same route, the rule is stated disjunctively, as follows: ‘The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or the public desires a different means of transportation, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required.’ ”

With these quoted guidelines, we have carefully examined the evidence in the record before us and we find that it preponderates in favor of the conclusion reached by the Arkansas Commerce Commission as regards public convenience and necessity. Red Line is a carrier with certification from Little Rock through Pine Bluff to various cities and towns in southeast Arkansas. Thus, Red Line goes directly from Little Rock throug’h Pine Bluff and return, and yet Red Line has been unable to carry commodity shipments between these two points, a distance of approximately fifty miles. So at its Little Rock depot Red Line could accept commodity shipments to points outside the city limits of Pine Bluff, but not to points within the city limits of Pine Bluff.

Several shippers in Little Rock, and others outside the previous city limits of Pine Bluff, testified that the service of Red Line was far better than the service of other carriers. The County Judge of Jefferson County testified as to the population of Pine Bluff: that it had grown from 20,760 in 1930 to 44,037 in 1960; and that recently the city limits of Pine Bluff had been enlarged to bring in about 7,000 additional population. This enlargement of the city limits of Pine Bluff has meant that several shippers who previously had been outside the Pine Bluff city limits, and thus entitled to use Red Line in shipments to and from Little Rock, would now be compelled to use some other carrier unless Red Line received the certificate here sought by it. These shippers testified that they had found Red Line’s service over the years to be better than the service offered by other carriers, particularly as regards time of pick-up and delivery, and other matters.

The appellants, in resisting Red Line’s application, claimed that if given a chance they could equal Red Line’s service; but the record reflects that these appellants had information, for five years, of Red Line’s service to shippers outside the city limits of Pine Bluff, and yet the service of these appellants had not been improved to equal that offered by Red Line. In 1959, Red Line filed an application for a certificate for the hauling of general commodities between Little Rock and Pine Bluff, and the application was resisted by some of the same carriers that are resisting the application here. Some of the same witnesses who testified in this case stated that they had testified in the 1959 case. Thus, the appellants knew in 1959 that shippers considered Bed Line’s services to be better than that offered by appellants ; and yet after Red Line’s 1959 application was defeated, the appellants apparently made no further effort to improve their services.

As a matter of fact, the official of one of the appellants admitted that his service had become less efficient in recent years. Red Line had offered “same day service” from Little Rock to Pine Bluff. The official of one of the appellants testified:

“Q. Your company ever tried same day service?
“A. Oh yes, we had it in for some time years ago.
“Q. Can you tell us why it was discontinued?
“A, We found it to be impractical from the standpoint—while there was some demand for it the demand was an impossible situation in that the people who wanted it couldn’t get their freight ready in time to get it to the people in Pine Bluff at the time that they needed it and it fell flat from a standpoint of it just wasn’t practical except in isolated instances and there wasn’t enough traffic to continue it at that time.”

An official of another of the appellants admitted that it was the general custom of the carriers in Little Rock to be closed on Saturday; and an official of another of the appellants admitted that if his company picked up a shipment in Little Rock on Friday, that shipment would not be delivered in Pine Bluff until Monday; and that the same would be true of a shipment picked up in Pine Bluff on Friday. Red Line offered to make either the same day or overnight delivery on such shipments.

Thus, there is ample evidence that the present service is inadequate, that the additional service would benefit the general public, and that the existing carriers have been given an opportunity for more than five years to ■furnish such additional service and have failed to do so. In Santee v. Brady, supra, we held that the existence of either of these factors would be sufficient to show public convenience and necessity. Here, all three factors have been shown; so public convenience and necessity have been clearly established.

Affirmed.

      Red Line goes also to Memphis, Tennessee, Greenville, Mississippi, and other points in interstate commerce; but we are here concerned only with the question of a certificate from Little Rock to Pine Bluff and return.


author:
      George Bose Smith, Justice.
      Paul Ward, Justice,

text:
    Warfield, Administrator v. Burnside
    5-3768
    399 S. W. 2d 676
    Opinion delivered February 21, 1966
    [Rehearing denied March 28, 1966.]

      William II. Drew, for appellant.

      O. C. Biornside, Jr., Smith, Williams, Friday &■ Bowen and Boyce R. Love, for appellee.
   George Bose Smith, Justice.

Dr. A. G. Anderson died in 1960, after having signed a purported will by which he left $9,400 to various charities and the rest of his estate, about $110,000, to an old friend, Bobert Stephenson. The testator’s next of kin contested the will. The probate court upheld the instrument, but on appeal we set it aside for undue influence and testamentary incapacity. Short v. Stephenson, 238 Ark. 1048, 386 S. W. 2d 501 (1965).

The appellees, O. '0. Burnside, Sr., and W. K. G-rubbs, Sr., are the lawyers who unsuccessfully defended the will contest. After that litigation ended they filed claims against Dr. Anderson’s estate for compensation for their services in the defense of the will. Grubbs also asserted other claims for services rendered to the executor of the estate. This appeal, by the administrator in succession, is from an order allowing most of the appellees’ claims. By cross appeal Grubbs seeks a larger allowance with respect to two items in his claim.

By far the principal question is the appellees’ right to compensation for their work in the will contest. On this issue the record, which includes the probate judge’s interim findings, is voluminous; but the salient facts are not really in dispute.

Dr. Anderson died in 1960. Grubbs, representing Stephenson, who was the principal beneficiary, filed the will for probate and obtained an order appointing Stephenson as the executor. Dr. Anderson’s niece, Helen Short, contested the will. Before the proceeding came on for trial Grubbs and Burnside entered into a written contingent fee contract with Stephenson by which they were to receive a fee of $25,000 if .they won the case and nothing if the will should fail.

Stephenson died about nineteen months before the will contest was decided in this court. To protect their employment contract Burnside and Grubbs filed a contingent claim for $25,000 against Stephenson’s estate. Their contract does not appear to have been mentioned in any way in the course of the will contest. After the will was set aside Burnside and Grubbs filed claims for $3,500 and $6,000 respectively for their services in defending the will. After Burnside’s claim had been allowed, and while Grubbs’s claim was under .submission, the appellant learned of the contingent fee contract and on that basis resisted both claims for fees.

The trial jndge, in allowing the claims, pointed out that a personal representative’s contract with an attorney is not binding upon the probate court. Gilleylen v. Hallman, 141 Ark. 52, 216 S. W. 15 (1919). The trial judge reasoned that, despite the attorneys’ contract of employment, they were entitled to a reasonable fee for their services under this section of the Probate Code:

“When any person nominated in a will as executor or the administrator with the will annexed, in good faith defends it or prosecutes any proceedings for the purpose of having it admitted to probate, whether successful or not, he shall be allowed out of the estate his necessary expenses and disbursements including reasonable attorney’s fees in such proceedings.” Ark. Stat. Ann. § 62-2209 (Supp. 1965).

This section of the statute does not mean that in every instance an attorney who unsuccessfully defends a will contest is entitled to a fee from the estate. The section is substantially a re-enactment of § 104 of the Model Probate Code, about which the draftsmen made this comment: “This section is necessary only because, if probate is denied, it might be claimed that a personal representative named in the will or defending it is not entitled to expenses and attorney’s fees.” Model Probate Code, § 104 (1945).

We are of the opinion that these attorneys, by making the contractual arrangement with Stephenson, necessarily elected to forgo the alternative course of seeking a fee from Dr. Anderson’s estate on a quantum meruit basis. Owing to the risk that is involved in a contingent fee agreement the reward for success is ordinarily greater than would be a fee fixed without regard to the outcome of the litigation. That is true here. An experienced attorney testified for the claimants in the court below that their services were reasonably worth a fee of $10,000. The court allowed them $9,500. Yet, if the will had been upheld, they would have received $25,000 from Stephenson. It is of course not conceivable that they would then have also received a quantum meruit allowance from the estate.

Every circumstance indicates that Burnside and Grubbs were representing Stephenson as an individual beneficiary of the will rather than as the executor of that instrument. The contract was made with Stephenson personally. It was not authorized or approved by the probate court. Upon Stephenson’s death a precautionary claim was filed against his estate.

Under the Probate Code the appellees’ claim is essentially derivative. If they had represented Stephenson as the executor of the will, then he would have been in a position to incur a liability for a reasonable fee and seek reimbursement from the estate. But all three men chose to follow a different course—a course inconsistent with the one just mentioned. If Stephenson had been still living when the will was set aside he could not have paid his lawyers a fee of $9,500 and then shifted that burden to his adversary, Dr. Anderson’s next of kin, by recommending its allowance as a claim against the estate. Inasmuch as the claim is a derivative one the appellees are in no better position than the executor would have been. For decisions in similar situations see In re Estate of Blankenship, 136 So. 2d 21 (Fla. 1961), and In re Gleason’s Estate, 74 So. 2nd 360 (Fla. 1954).

The appellant also questions the trial court’s allowance of a fee of $2,000 to Grubbs for his preparation of the estate tax returns for the Anderson estate. This, too, is a matter that was covered by agreement. On July 16, 1961, Grubbs mailed the proposed contingent fee contract to Stephenson with an accompanying letter that explained in detail what Stephenson’s financial expectations would be under the contract. In the course of this explanation these statements were made: “One difference in the figures will be made by the Attorney’s fee for administration which I explained to you was separate and in addition to the fee on the Contest of the Will. This Attorney’s fee includes the costs of filing the Estate tax returns, both Federal and State, as well as all ordinary administrative and legal duties of the attorney. ’ ’

This arrangement appears to have been carried into effect. In Stephenson’s first annual executor’s report, which was prepared by Grubbs, Stephenson asked “that W. K. Grubbs, Sr., be allowed the sum of $1,500.00 as one-half of his fee as attorney’s fees.” The requested amount was paid. In March of 1964, ivhile the will contest was still pending, Grubbs filed a petition stating that he had “already done all the work that would be required of the regular statutory fee schedule and has earned the complete fee and is entitled to receive the approximate balance of $2,000.00 at this time.” That request ivas also granted, so that Grubbs received the amount allowed by the Probate Code. Ark. Stat. Ann. § 62-2208 (Supp. 1965). We realize that the statutory fee schedule is not an inflexible maximum, but in the circumstances of this case we do not think it should be exceeded. This conclusion also disposes of the contention on cross appeal that Grubbs is entitled to a slightly greater fee than the court awarded him.

We must reverse the judgment to the extent that it allows $9,500 in fees for the defense of the will contest and $2,000 as a fee for the preparation of estate tax returns. In other respects the judgment is affirmed.

Ward, J., dissents.

Paul Ward, Justice,

dissenting. In my opinion the trial court committed no error in allowing any of the claims. My views can he adequately demonstrated by reference to the fee of $3,500 allowed Mr. Burnside, Sr.

(1)

First, it should be made clear that the amount of the fee is not an issue. On page 6 of the record, the attorney for appellant, Mr. Drew, stated to the trial judge:

“Your Honor, if I understand, the amount of the services rendered in the amount of $3,500, is not an issue. We do not contest the amount of services rendered.”

(2)

The trial court was amply supported by the evidence in finding Mr. Burnside, Sr., rendered services in behalf of the Estate—not just to the executor (R. T. Stephenson) personally. The record (beginning at page 21 of vol. 2) shows the following: Mr. Burnside, at the hearing before the trial court, stated:

“I represented the A. G. Anderson Estate and not Mr. Stephenson.”
“I represented the Estate at all times.”

He quoted appellant as telling him:

“I certainly think you are entitled to this amount of money and I will hack you up in it.”

In reply to the above appellant stated:

“I just wanted to say that Mr. Burnside has stated correctly our conversation with reference to wheth- or not he had worked and earned a fee and whether he was entitled to a fee. But, I did make one reservation that if the law says that he is due a fee that there would be no contest on my part. I will be glad for him to have it if the law says that the Estate owes it. ’ ’

Also the appellant, who was the attorney for Mrs. Short on appeal to this Court, filed a brief containing this language:

“It is respectfully shown that in all particulars this appeal has been prosecuted by such administratrix since her appointment as such on June 28, 1963. The same attorneys now represent her as the administratrix of the Estate of A. G-. Anderson, Deceased, who had represented the Estate of A. Gr. Anderson, Deceased, when R. T. Stephenson was the Executor.”

One of the attorneys referred to above is Appellee Burnside.

(3)

(Does the Estate owe Mr. Burnside a fee in this case?)

In view of the facts and issues set out above there is no logical ground for reversing- this case. I find no justification for so doing in any of our statutes or decisions.

It is contended that Burnside could not receive remuneration for representing the Executrix (or the Estate) on appeal to this Court because his employment was not approved in advance by the trial court, and because he had contracted to represent the Executor personally. I find no authority for such contention. In order for a personal representative to provide himself with the services of an attorney to assist in probating an estate it is not necessary for the probate court to approve, in advance, the attorney’s contract. The approved procedure is for the personal representative to hire an attorney and later present a claim for his fee to the court —as was done in the case before ns, as was done in Kenyon, Executor v. Gregory, 127 Ark. 525, 192 S. W. 887, and as is set ont in Ark. Stat. Ann. § 57-641 and § 62-2208 d. (Snpp. 1965).

Our opinion in the case of Black v. Thompson, 235 Ark. 725, 361 S. W. 2d 753, does not hold that an attorney for a personal representative cannot receive compensation unless his contract of employment is approved in advance by the trial court. The majority in that case did hold however (over the protest of two dissenters) that it is immaterial if the said attorneys had also previously contracted to represent certain beneficiaries of the Estate involved.


author: George Rose Smith, Justice.

text:
    Finley v. Smith
    5-3794
    399 S. W. 2d 271
    Opinion delivered February 21, 1966

      Pope, Pratt & Shamburger, for appellant.

      Smith, Williams, Friday & Boiven and William F. Sherman, for appellee.
   George Rose Smith, Justice.

On April 10, 1963, the appellee, Myrtle A. Smith, a retired school teacher, was knocked down and seriously injured by a large dog owned by the appellant. In the court below Mrs. Smith recovered a verdict and judgment for $3,500.00. The appellant does not question the sufficiency of the evidence, which amply supports the view that the dog was known by its owner to be a vicious and dangerous animal that should not have been allowed to run at large in the neighborhood.

There was much proof that the dog had bitten or otherwise injured various persons on other occasions. It is contended that the court erred in allowing the plaintiff to prove incidents that occurred after she was injured, for the reason that such subsequent events would not tend to prove that the owner of the dog had prior notice of its dangerous propensities. Subsequent conduct is admissible, however, to prove the particular animal’s dangerous nature. Kennon v. Gilmer, 131 U. S. 22, 33 L. Ed. 110, 9 S. Ct. 696 (1889); Todd v. Rowley, 90 Mass. 51 (1864); Boatman v. Miles, 27 Wyo. 481, 199 Pac. 933, 26 A. L. R. 864 (1921). When testimony is competent for one purpose a general objection is unavailing. [There should be a request that the jury be instructed to consider the testimony only for its permissible purpose. Bodcaw Lbr. Co. v. Ford, 82 Ark. 555, 102 S. W. 896 (1907). No such request was made here.

It is argued that Dana Beyer, a thirteen-year-old boy, should not have been permitted to testify that the dog had bitten him, because he was not certain that the incident took place before the animal’s attack upon the plaintiff. This contention is answered by the authorities already cited, and, furthermore, the testimony of the child’s mother would have justified the jury in finding that the child’s encounter with the dog preceded the incident now complained of.

The only other objection being urged is to an instruction telling the jury that if the owner of a dog has notice of its propensity to injure people it is immaterial that the animal is not savage but acts in good nature and playfulness. That is a correct statement of law. Prosser, Torts, § 75 (3d ed. 1964); Restatement, Torts, § 509 (1938). The instruction was not a comment on the evidence, for it did not state that the defendant in fact had notice of the dog’s propensities. To the contrary, the instruction properly left the question to the jury.

Affirmed.


author: Paul Ward, Justice. George Rose Smith, Justice,

text:
    Whorton v. Gaspard
    5-3628 & 5-3629
    399 S. W. 2d 680
    Opinion delivered February 21, 1966
    [Rehearing denied March 28, 1966.]

      Leon Catlett and W. Q. Hall, for appellant.

      Bob Scott, for appellee.
   Paul Ward, Justice.

On October 21, 1965, Joseph B. Gaspard and Otto Smith (appellees and appellants respectively in the above numbered cases, and hereafter called “petitioners”) filed a Motion asking" this Court to require Charles Whorton, Jr., (County Clerk of Madison County and a party in the above numbered cases), Alton Johnson (chairman of the election commission of Madison County), and Doyle Faubus (secretary of said commission) to show cause why they should not be cited for contempt of this Court for failing to comply with the Order of this Court issued April 19, 1965. At times we will refer to Whorton, Johnson, and .Faubus as “respondents.”

A brief mention, in chronological order, of the several incidents leading up to this litigation will, we hope, help to a clarification and better understanding of the issues here involved.

On November 3, 1964 a general election was held in Madison County—hereafter often referred to as the “election.” Twenty days later petitioners asked Whorton for permission to copy certain records pertaining to the election. This request was denied.

On November 25, 1965, petitioners filed suit in chancery court requesting the court to compel Whorton to permit them to copy “the lists showing who had voted . . .” in the election. The request was granted by the trial court. On appeal to this Court by Whorton, the trial court was affirmed. That case may be referred to as No. 5-3628 (Whorton v. Gaspard, 239 Ark. 715, 393 S. W. 2d 773).

A short time after the above mentioned suit was filed in chancery court petitioners filed another suit in the same court to compel Whorton to let them copy “. . . the list of applications for absentee ballots, the individual applications for absentee ballots and the accompanying absentee voters statements . . . for the election.” This request was denied by the trial.court. Upon appeal by petitioners to this Court we reversed the case. That case may be referred to as No. 5-3629 (Gaspard v. Whorton, 239 Ark. 849, 394 S. W. 2d 621).

On March 3, 1965, and during pendency of appeal in cases No. 5-3628 and No. 5-3629, petitioners filed in this Court a “Motion to Consolidate and Advance” the above cases. In the alternative, petitioners asked that Whorton be required “to retain custody of all records pertaining to . . . .” the election, and that he be enjoined from destroying said records.

Pursuant to the above Motion, and on April 19, 1965, this Court entered the following order:

“To maintain the status quo, pending hearing of this case and Case No. 5-3629, Gaspard et al v. Whorton, it is ordered that no litigant will destroy, or allow to be destroyed, any ballots or records or papers in his possession, involved in any way in this litigation. The cases will be separately abstracted and briefed, but will be jointly submitted.”

The Order makes it clear that it applies also to case No. 5-3628.

In the Motion for Citation filed on October 21, 1965, the petitioners, in substance, made the following allegations :

(a) Whorton delivered all ballot boxes, “containing the ballots and copies of the persons voting, and all other records and papers relating to the General Election held November 3, 1964” to Johnson and Faubus.
(b) Said ballot boxes contained “the ballots and copies of the lists of persons voting . . .” in the General Election, and that said boxes were delivered to Johnson and Faubus to be destroyed by fire "in wilful disobedience” of said order of April 19, 1965.
(c) On June 21, 1965 the said ballot boxes wei*e destroyed by fire by Johnson and Faubus; that they were aware of said Order of April 19, 1965 at the time they burned the ballot boxes.

Attached to the Motion, as an exhibit, is what appears to be a photostatic copy of.a written instrument which reads:

"June 21, 1965
Huntsville, Arkansas
We the undersigned members of the Election Commission of Madison County Ark. do hereby agree to destroy the ballots of the last Election by burning them. Except I Dotson Collins vote against the destruction of ballots for this reason. I am afraid there might be a restraining order on said ballots. If I knew there was not a restraining order on ballots then I would vote for destroying said ballots.
Doyle Faubus
Dotson Collins
Alton Johnson”

To the above Motion Whorton, on December 13, 1965, filed his separate response stating, in substance:

Denies that the Order of April 19, 1965 was correctly described by petitioners—that it speaks for itself; denies that he delivered ballot boxes to Johnson and Faubus; but that they removed them in February, 1965, for which he has a receipt; he learned that the boxes were later destroyed, but doesn’t know when; that such action was beyond his control; that he had nothing to do with the destruction of any records in his office; that he now has ‘ ‘ all records, ballots and papers ’ ’ in his office which he had when our Order was issued on April 19,1965, and; he denies all other allegations in the Motion. The response is verified.

On January 3, 1966 Johnson and Faubus filed a separate demurrer to the Motion, together with briefs in support thereof, but we forego, consideration of the same in view of the decision we hereafter reach.

Motion for Summary Jticlgment.

On January 10,1966 Whorton, Johnson, and Faubus filed a Motion for Summary Judgment, with affidavits by each attached. On January 21, 1966 the petitioners filed a response together with an affidavit in support by Dotson Collins, who, for approximately four years, has been Chairman of the Madison County Republican Party, and a member of the election commission. The affidavits, in material parts, are set out below:

Whorton:
On the nights of 13th and 14th of January, 1965 my office was broken into by an unknown party or parties ; they removed all records pertaining to the absentee ballots, and the list of applications for absentee ballots, including voters’ statements; I had no control over the Election Commissioners as to destruction of ballot boxes, and; the ballot boxes were left in my office by the precinct officials, and I turned them over to the Election Commission on February 23, 1965.
Johnson:
On June 21, 1965 the Commission by a majority vote destroyed the ballot boxes, as required by Ark. Stat. Sec. 3-1013 (Repl. 1956); no contest involving the 1964 General Election had been filed at that time; I do not believe the Commission destroyed any envelopes containing the list of applications for absentee ballots, etc., as alleged in the Motion, which were never in the possession or control of the Commission, but they had been removed by theft from the County Clerk’s office.
Faubus: (Same as Johnson)

The affidavit by Dotson Collins (in support of the petitioners) was, in essence, as follows:

(a) As a member of the Election Commission I assisted in the General Election; the election officials “delivered their election paraphernalia to Whorton”; included therein were ballot boxes, stub boxes and summary sheets showing the results of said election .... “I know that some of the ballot boxes contained a copy of the list of persons voting . . . and I believe all boxes contained such a list . . .’’as was the custom:
(b) Late in the evening on June 21, 1965 I received a telephone call from Doyle Faubus, asking me to attend a meeting at the court house; I attended, and first learned Whorton had turned the ballot boxes over to Johnson and Faubus; I also learned they desired to destroy the boxes and election paraphernalia; I objected because I had heard there was a Court Order restraining such action; Att’y Hall, who was consulted over my objections said he didn’t believe there was any such order; I asked for a delay of 24 hours to consult Judge Butt, but the others would not agree; we all signed the statement showing my objections.
(e) I have never known before of the Clerk giving the ballot boxes or any election records to the Commission until they were to be destroyed.

After a careful review of the pleadings, exhibits, and the contents of the affidavits heretofore summarized, we have reached the conclusion set out and explained below.

Re: Charles Whorton, Jr. It clearly appears that this Court would not be justified in holding Whorton in contempt of the Order of this Court entered on April 19, 1965. The Order, beyond doubt, is prospective only. It provides “that no litigant will destroy, or allow to be destroyed ...” etc. We find nothing to justify a finding that Whorton did anything in violation of the Order after it was issued on April 19, 1965. To the contrary, it is uncontradicted that in January 1965 someone, unknown to him, took from his office all records pertaining to the absentee ballots and the list of applications, and; that on February 23, 1965 he turned over to the election commissioners the ballot boxes. We find nothing to show that Whorton had anything to do with destroying the ballots on June 21, 1965. If there does exist any real likelihood it could be proved that Whorton is mistaken, or that he has deliberately misrepresented the facts, we feel it was incumbent on the petitioners to so state. This they have not done. In fact no such allegation is in petitioners ’ affidavit. Regardless of any suspicion that may exist as to the impropriety of Whorton’s actions herein complained of, that fact alone does not justify this Court in finding him guilty of contempt. The rule which we think is applicable to this case is very well stated in 12 Am. Jur.—Contempt—§ 74 as follows:

“An adjudication of contempt is improper where there is no material evidence to connect the alleged contemner with the acts charged and he denies any connection, although there are circumstances affording reasonable grounds for suspecting his participation. ’ ’

Re: Johnson and Faubus. A careful consideration of the contents of the affidavits filed herein and a construction of the applicable statutes and decisions forces us to conclude that Johnson and Faubus cannot be held guilty of violating our Order of April 19, 1965. The reasons for this conclusion are set forth hereafter.

(a) The Avording of the Order'makes it unmistakeably clear that it was directed to the “litigants” in cases No. 5-3628 and 5-3629. It is just as clear that Johnson and Faubus were not “litigants” in either of said cases. It is true, as pointed out by petitioners, that, under some circumstances, not present here, a non-litigant can be held in contempt for violating a court order. However, when such contempt is allegedly committed outside the presence of the court (as here) it should be made clear to the court that the contemner was aware of the full import of the order which he is charged with violating. Again, in 12 Am. Jur.—Contempt—•§ 27 it is said that one not a party to the suit “cannot be charged with contempt unless a copy of the injunction [Order] was served upon him or it is proved that he had knowledge of its provisions. ...” By no stretch of the imagination can it be said here that these respondents were served with notice or that they were aware of the provisions of our Order of April 19, 1965. It is true that Collins says in his signed statement of June 21 that he was “afraid there might be a restraining order on said ballots,” but he did not profess to know there was such an order—much less its provisions. On the other hand Collins frankly states that (over his protest) Faubus called an attorney who informed him he didn’t think there was any such order. It is just as reasonable to say Collins’ statement indicates good faith on the part of the respondents as to say it shows bad faith on their part. It must also be remembered that Johnson and Faubus could have felt it was not only their right but their duty to destroy the ballot boxes—as shown below.

We find merit in respondents’ contention they merely followed the law when they destroyed the ballots. Ark. Stat. Ann. § 3-1013, in parts material here, reads:

“The County Election Commissioners shall retain the custody of and safely keep all ballots and certificates returned to them- . . . for a period of six (6) months, after which time the same shall be destroyed, unless the Commissioners shall be sooner notified in writing that the election of some person . . . has been contested, or that criminal prosecution has been begun against any officer of (the) election . . . .” (Emphasis added.)

It is of course undisputed here that more than six months had elapsed since the election was held on November 3,1964 before the ballot boxes were destroyed by the two respondents on June 21, 1965. It is likewise undisputed that the two respondents had not, before June 21, been notified in writing of a contest or a criminal prosecution.

We have had many occasions to construe or comment on said section 3-1013. See: Condren v. Gibbs, 94 Ark. 478, 127 S. W. 731; Bowden v. Webb, 116 Ark. 310, 173 S. W. 181, and; Benne v. Hutto, 194 Ark. 107, 105 S. W. 2d 530. In the Gibbs case we said:

“The ballots and certificates of said election returned to them from said Bass Little Township were retained by the county election commissioners for a period of six months after said election and the returns had been delivered to them, and until March 22, 1909, when they destroyed them in pursuance of the provisions of section 2838 of Kirby’s Digest.” (Same section as said § 3-1013.)

In the Webb case there is this statement:

“It will be observed from reading the terms of the statute, that the ballots are to be kept in separate packages and not opened until ordered by a court of competent jurisdiction in a contest or a criminal prosecution ....!’

In the Hutto case we reaffirmed that § 3838, Crawford & Moses Digest (same as said § 3-1013) “. . . requires these records to be destroyed, unless the election com■missioners have been notified within six months after the election to preserve them.”

It is readily understandable why public policy requires that the secrecy and sanctity of the ballot should be so zealously protected by statute.

The issue can be briefly stated in this way: Did these respondents knowingly destroy anything which this Court ordered them not to destroy? The answer is obvious and also brief. They did not.

Finding no material issue of the fact presented, the Motion for Summary Judgment is sustained, and the Motion for Citation is denied.

McFaddin and George Rose Smith, JJ., dissent.

Cobb, J., not participating.

George Rose Smith, Justice,

dissenting. I am unable to agree that this matter involves no disputed question of fact and that it should therefore be disposed of upon a motion for summary judgment.

In the principal cases Gaspard and others sought to copy among other documents, “the lists showing who had voted (including those who had applied for absentee ballots) in the general election ...” Whorton v. Gaspard, 239 Ark. 715, 393 S. W. 2d 773 (1965). We held that they were entitled to copy those documents.

Under the statute the election clerks must make four copies of the lists in question. Ark. Stat. Ann. § 3-919 (Repl. 1956). One copy is to be temporarily posted at the polling place and does not concern us here. A second copy is to be filed with the county clerk. Here that clerk has filed an affidavit stating, by implication only, that this second copy of the lists was stolen from his office in the courthouse.

With two copies of the lists missing the other two copies were of vital, importance in Gaspard’s attempt to investigate the purity' of the vote in Madison county. Those remaining two copies, under the law, should have been sealed up in the original and duplicate ballot boxes. Section 3-919, supra. According to the affidavit of Dotson Collins, the third member of the county board of election commissioners, the law in this respect has customarily been followed in the county; as far as he knows, the law was obeyed in the election now in issue.

The affidavits of Afton Johnson and Doyle Faubus, the other two members of the county board, do not deny the charge that they destroyed the lists. Their affidavits merely state that to the best of their knowledge they did not destroy envelopes containing certain other documents. On a motion for summary judgment we must construe the proof in the light most favorable to the party resisting the motion. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963). When the proof is so considered it stands as an uncontradicted fact that the board did destroy the lists.

I lay aside the suggestion that Johnson and Faubus were not bound by this court’s order because they were not “litigants” in the cases. It is settled too firmly for argument that one who knows of a court order, as these men did, can not flout it with impunity. Hickinbotham v. Williams, 228 Ark. 46, 305 S. W. 2d 841 (1957). I lay aside the last-ditch argument that perhaps, after all, the lists might not have been technically admissible in evidence if the cases had eventually been tried on their merits. Our order prohibited the destruction of papers “involved in any way in this litigation.” The lists in question, far from being only remotely involved, were the heart of the plaintiffs’ lawsuits. The election commissioners did not destroy the lists upon counsel’s advice that they were inadmissible or were not involved in the litigation.

On the record now before us whether the destruction of the lists was a contemptuous act is a disputed question of fact—a question that can be set at rest only if the members of the county board submit to cross-examination under oath. Apparently they are to escape the test of their sincerity. I would appoint a master to take testimony bringing the whole truth before the court, for whatever action might then prove to be appropriate.

McF addin, J., joins in this dissent.


author: Paul Waed, Justice.

text:
    Nance v. Cook
    5-3779
    399 S. W. 2d 262
    Opinion delivered February 21, 1966

      Keith, Clegg & Eckert, for appellant.

      Chambers & Chambers, for appellee.
   Paul Waed, Justice.

In this -case it is contended that appellants allowed saltwater to flow from their oil operations onto appellees’ land, causing injury thereto. One of the principal issues involved is whether appellees’ claim for damages is barred by the three years statute of limitations.

Appellees are the heirs of John C. Cook who died in 1951 seized of the 170 acres of land here involved. Appellants are B. J. Nance and A. W. Langston, partners, d/b/a L. & N. Drilling Co., engaged in exploring for oil and gas.

On February 1, 1962 appellees filed a complaint in circuit court alleging, in substance: appellants had been drilling oil wells near their land for several years; they have been producing saltwater and allow it to “seep and drain” onto appellees’ land, causing damage thereto; this condition began about five years ago, and it has continued up to the present, and; appellants have “negligently, knowingly, and intentionally, allowed the saltwater to seep and flow upon said lands, causing damage thereto.” The prayer was for $9,000 actual damages and $2,500 punitive damages. Appellants entered a general denial, and pleaded the statute of limitations.

After a rather extended hearing the matter was submitted to the jury upon instructions by the court (some requested by appellants and by appellees), and the jury awarded to appellees $2,500 actual damages and $2,500 punitive damages.

On appeal appellants do not challenge any of the instructions or the amounts of the judgments. For a reversal they rely on the four separate points hereafter separately discussed.

One. It is first insisted the trial court erred in refusing to grant appellants ’ motion for a summary judgment based on limitations. "We do not reach the merits of this point because of what is said below, and for the reason that the record does not disclose what disposition the court made of said motion.

Two. Here it is argued there is no substantial eviclence to support the verdict because the undisputed evidence shows the action is barred by the statute of limitations. We are unable to agree. While it is true the testimony is not entirely clear as to just when the statute began running against appellees’ claim, yet we are unwilling to say there is no substantial evidence to support the jury’s finding on this point.

It is in effect conceded by the parties that if appellees’ cause of action matured prior to February 1, 1959, then this case must be reversed.

In the case of Sunray DX Oil Co. v. Thurman, 238 Ark. 789, 384 S. W. 2d 482 this Court was confronted with much the same issue which is here considered, and under a similar factual situation. In that case we quoted with approval the language set out below as taken from H. F. Wilcox Oil & Gas Co. v. Juedeman, 101 P. 2d 1050:

“ ‘It seems well settled that in an action for damages for permanent injury to real estate caused by continuing saltwater pollution the limitation begins to run at the time when it becomes obvious that a permanent injury has been suffered.’ ”

In the case of Texas, Tennessee Gas Transportation Co. v. Fromme, 153 Tex. 352, 269 S. W. 2d 336, the Court said:

“Where there is a direct invasion of one’s property of a permanent character, and the original invasion and its continuance are necessarily injurious, the damage is original and may be at once fully compensated ... in such ease the statute begins to run from the date of the invasion.”

The testimony in the case under consideration concerning the issue of when it became obvious to appellees that their land was permanently damaged, is lengthy and conflicting, and it would serve no useful purpose to set it out at length. We have carefully read the testimony and are unable to say there is no substantial evidence to support the jury verdict. There was testimony: that no substantial part of the damage was done to appellees’ land before 1959; there was some damage evident in 1959 but grew worse in 1960; that some of the land was all right in 1958 but could not be cultivated in 1959 to 1962; the damage to the land was a continuing process—that the saltwater began to “creep” upon the land.

Three. We find no merit in the contention that appellees waived their right to punitive damages by suing appellants along with James D. Reynolds and Dan W. Reynolds, as joint tortfeasors. This contention is based on Avhat we said in the case of Dunaway v. Troutt, 232 Ark. 615, 339 S. W. 2d 613: “. . . the plaintiff waives the right to punitive damages when more than one party is made defendant. ...” There are, we think, several reasons for the position we take. First, Reynolds and Reynolds were dismissed by the trial court during the trial. Second, the trial court gave instructions to the jury relative to punitive damages without objections on the part of appellants. In fact appellants requested instruction no. 13 (given by the court) dealing with when punitive damages are allowable. Appellants cannot raise the question of punitive damages for the first time in this Court. Also, appellants here constitute a partnership (or a single unity) which was not the situation in the Troutt case, supra.

Fourth. Finally, appellants contend there is no substantial evidence to sustain the jury’s verdict for punitive damages, and we must agree.

We said in Miller v. Blanton, 213 Ark. 246, 210 S. W. 2d 293 that before punitive damages may be awarded “. . . it must be shown that there was on the part of the tortfeasor a ‘wanton disregard of the rights and safety of others’.”

To sustain the judgment for punitive damages appellees appear to rely most heavily upon the testimony of Mr. Ben Eddy who operated the wells for appellants as their employee. It is true that Eddy stated he knew the saltwater was seeping from the pits, that it was going down a natural drain toward the Cook land, and that he knew something had been said about pollution control, but even so this does not, in our opinion, show such “wanton disregard of the rights and safety” of appellees as to sustain a judgment for punitive damages.

In accord with what has been said, the judgment for actual damages is affirmed and the judgment for punitive damages is reversed.

Johnson, J., would affirm on both points.


author: Jim Johnson, Justice.

text:
    Miller v. State
    5165
    399 S. W. 2d 268
    Opinion delivered February 21, 1966

      W. B. Howard and Jack Segars, for appellant.

      Bruce Bennett, Attorney General, Clyde Calliotte, Asst. Atty. General, for appellee.
   Jim Johnson, Justice.

This appeal from a burglary conviction questions the admissibility of certain expert opinion testimony.

Appellant Leland Miller was charged by information in Greene Circuit Court with the crime of burglary, specifically with breaking into an office building on June 21,1964, with intent to commit larceny. Trial before a jury on May 18, 1965, resulted in a verdict of guilty of burglary as charged. From judgment on the verdict comes this appeal.

The state’s case was based on circumstantial evidence. During a routine patrol after midnight, police officers noticed that drapes which were supposed to be open in the office building had been closed. When the officers investigated, they found a door open and no one in the building. Appellant’s unoccupied car was parked about one-quarter mile away. There were footprints leading from the building to a ditch some distance away where someone had apparently fallen in the mud; appellee’s expert witness testified that a dirt sample taken from the ditch corresponded to dirt taken from appellant’s clothes, and that a piece of cloth found on a barbed wire fence some distance from the building corresponded with the cloth of a shirt in appellant’s possession at the time of his arrest.

For reversal appellant first urges that the trial court erred in admitting the testimony of Dr. Dan Matthews, speculating as to the probabilities that dirt from appellant’s clothing came from the scene of the burglary.

“An expert witness may be defined as a person who is so qualified, either by actual experience or by careful study, as to enable him to form a definite opinion of his own respecting any division of science, branch of art, or department of trade about which persons having no particular training or special study are incapable of forming accurate opinions or of deducing correct conclusions. Accordingly, therefore, one qualified by professional, scientific, or technical training or by practical experience, in regard to a particular subject or field of endeavor, which gives him special knowledge not shared by persons in the ordinary walks of life, may testify as an expert on questions coming within the field of his training and experience, subject, of course, to the broad exclusionary rules of evidence relative to pertinency and relevancy; but if he is not so qualified, his testimony is incompetent.” 29 Am. Jur., Evidence, § 783.

Dr. Matthews was called as an expert witness by the state. In the initial examination, he stated that his profession was ‘ ‘ chemist with the University of Arkansas with the Graduate Institute of Technology in Little Rock.” The next question about his background, training and experience elicited the following response:

“College training at University of Arkansas, major in chemistry. Received Bachelor’s Degree in 1952, at which time I took part time job doing research and the other part going to school. Received Master’s Degree from same place in 1955.1 was instructor at Georgia Tech the following year, ’55-’56. Came back to the University of Arkansas, same arrangement as before, part time research and worked on my Ph.D., and received Doctor’s Degree in 1959. Took a job with University of Arkansas Medical Center either late ’58 or early ’59, worked there two years, and then I transferred to University Graduate Institute of Technology as professor of chemistry there—actually assistant when teaching and studying—as professor there at the present time.”

After identifying certain exhibits (appellant’s sox, shoes and trousers and a fruit jar containing dirt from the ditch), Matthews was asked if he had run “any tests, comparative or otherwise, and if so, what your tests were?” Matthews answered that he was asked to compare the dirt from the shoes, sox and trousers to determine if the dirt was the same as the sample in the fruit jar. He said: “I ran the comparison of this dirt by microscopic observation and various methods and concluded the dirt was the same dirt.” On cross-examination he amplified this somewhat by explaining that the dirt samples were first dried, “and the first test merely microscopic comparison in which the color and the particle size and texture of the particles were compared.” He couldn’t remember how the dirt was extracted from the shoes, sox and trousers for the test. He also tested the soil for density and found it the same. On re-direct examination he was allowed to testify that the probability that two soil samples would have the same color was one in ten, the same texture, one in one hundred, and the same density, one in a thousand, and “On random basis when you get two samples to match all these, it would be one in one million.” On cross-examination, Dr. Matthews had testified that he had never done any work with the University of Arkansas with reference to soil testing, and when asked if he was familiar with the soil in G-reene 'County, he testified, “I am really not familiar with any soil in Arkansas.”

Appellant maintains that he is not urging that the witness “was incompetent or unqualified to make the comparison tests in question and to testify as to the points of similarity, but rather that in giving the objectionable testimony the witness departed from the field in which he was qualified as an expert and proceeded to engage in speculation and conjecture ...” Dr. Matthews had made no tests on which he could reasonably base his probabilities of one in ten on soil color, one in one hundred on soil texture, or one in one thousand on soil density (which he multiplied together to obtain his one-in-one-million figure), nor did he base his testimony on studies of such tests made by others. He admitted that his figures were-, predicated oil “estimates” and “assumptions.” In short, there is no foundation upon which to base his probabilities of one in a million.

“An expert witness’ view as to probabilities is often helpful in the determination of questions involving matters of science or technical or skilled knowledge .... It is necessary, however, that the facts upon which the expert bases his opinion or conclusion permit reasonably accurate conclusions as distinguished from mere guess or conjecture .... To admit expert testimony deduced from a scientific principle or discovery, the thing from which the deduction is to be made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.” 20 Am. Jur., Evidence, § 795, p. 668.

Admission of the unsubstantiated, speculative testimony on probabilities was clearly erroneous. See Little v. George Feed & Supply Co., 233 Ark. 78, 342 S. W. 2d 668; 2 Wharton’s Criminal Evidence, § 505, p. 328 (12th ed. 1955).

Appellant also contends that the trial court erred in admitting the testimony of the sheriff, “who had associated with the jurors to such an extent as to make the admission of his testimony a deprivation of appellant’s constitutional right to a fair and impartial trial and due process of law.” Appellant urges that the sheriff had been so closely associated with the jury panel during the term of court that the jurors would give the sheriff’s testimony undue weight. Examining the facts here in the light of Turner v. Louisiana, 379 U. S. 466, 13 L. Ed. 2d 424, 85 S. Ct. 546, on which appellant relies, we do not find the cases so closely analogous as to reflect the existence here of the evil sought to be corrected in Turner.

For the error in the admission of Dr. Matthews’ testimony concerning probabilities, the case is reversed and the cause remanded for a new trial.