text:
    Aclin v. Caplener.
    5-1667
    318 S. W. 2d 141
    Opinion delivered December 1, 1958.

      L. E. Lightle & Cecil A. Tedder, Jr.-, for appellant.

      Tingling $ Tingling, for appellee.
   Carleton Harris, Chief Justice.

Appellees, prior to early spring of 1955, operated as a partnership in Searcy, Arkansas, being engaged in the processing, sale, ánd distribution of dressed chickens,- particularly broilers:. ;• Much ':of their Hucking.-.equipmenf ‘had- been purchased from appellants, d/b/a The Searcy Truck & Tractor Company, who held the Oldsmobile automobile and International truck agency. In February, 1955, it became evident that appellees’ business would have to be reorganized, or they would be faced with insolvency. At that time, they owed appellants, hereinafter called Aclin, $5,854.09. Appellees employed a Little Eock attorney, and he, together with Capleners’ auditor, J. B. Mcllroy, undertook to develop a reorganization plan. It was decided that if approval of customers and creditors could be obtained, the business would be incorporated and stock sold. A meeting was called of the chicken growers, largest creditors of the Capleners, and a specific proposition submitted to them, which included the payment in cash, of one-third of the indebtedness due them. Other creditors, unsecured, were contacted, with the request that they transfer their accounts from the partnership to the corporation (proposed to be organized) ; in other words, instead of looking to the partnership for payment of their debt, they were asked to agree to look to the corporation. The incentive to the creditors to consent to this arrangement was created by the fact that the partnership was unable to continue further, and would be unable to pay any indebtedness, while it was hoped that the proposed corporation, with the additional capital anticipated, could, within a short period of time, pay the debts which had been incurred by the partnership. According to the undisputed evidence, all other creditors agreed to the plan, and thenceforth looked to the corporation, rather than to the partnership, for payment of the indebtedness due them. Previously, certain equipment notes had been given appellants by appellees, and these had been endorsed by appellants with recourse, to the Searcy Bank. An effort was made by Capleners to borrow additional money for the reorganization from the Searcy Bank, which was refused, but the Security Bank agreed to advance money to the corporation if it was given a first mortgage on all equipment and other specific assets of the corporation. Articles of incorporation were filed on March 4th, and the equipment notes were paid off one week later, along with some other indebtedness due the Searcy Bank. The sum due and paid on the equipment notes was $11,042.10. The corporation operated unsuccessfully for a few months, and the Security Bank foreclosed on all corporate assets pledged to it. Aclin instituted this suit against the Capleners for the $5,854.09, and they answered, pleading accord and satisfaction. This plea was based upon the fact that the equipment notes had been paid. A jury was waived by the parties, and the court, after hearing the evidence, held that appellants were estopped to recover upon the account sued on. From such judgment, comes this appeal.

Let it first be said that we agree with appellants that appellees cannot prevail upon the theory of accord and satisfaction, and in fact, this defense is not argued in appellees’ brief.

Appellants contend that the equipment notes were paid by appellees without their knowledge, and that they would have vigorously opposed such payment, since, in their opinion, the equipment was worth more than the balance due on said notes; that they would have been glad to take the equipment back for the indebtedness. We do not consider the payment of these notes by the corporation, either with, or without, prior knowledge of appellants, to be determinative of this litigation. We rather conclude, as evidently did the trial court, that the issue is whether appellants, by word or deed, consented to the transfer of the indebtedness from the partnership to the corporation. Therefore, there are only two questions to be decided. First, was there substantial evidence to support the judgment rendered by the circuit court, and second, is the defense of estoppel available to appellees when they had not pleaded same? To the first question, we answer “yes.” Caplener testified that he personally contacted James Aclin ; that the entire plan of reorganization was explained to Aclin; the latter was advised that to perfect the plan, all creditors would have to “go along”; that future business with the Aclin partnership would be conducted on a cash basis, and “I told James that I thought by reorganizing the corporation and getting in more money to operate on, that he would receive his amount owing him a lot quicker and could realize all of it. I was sincere in telling him that. * * * ” He further testified that Aclin “ * * # was very cooperative and in agreement.” J. B. Mellroy testified by deposition that he had known the parties about three years, and had been employed by both appellants and appellees to handle their accounting work. He further stated that he furnished the necessary statements and data required for the reorganization, and likewise participated in such reorganization, to the extent of contacting several of the creditors and both banks in regard thereto. As to Aclin, the witness’ testimony was as follows:

“Q. * * * Did you in company with anyone else submit this proposition to the plaintiff in this lawsuit or any one other person?

A. Yes, sir, as was required by that initial stockholders meeting. In fact, I believe on the same day, Attorney Guy Reeves and I went to the office of James Aclin at the Searcy Truck & Tractor Company and both of us together outlined the entire program to him and requested of him at that time that he allow that indebtedness to be transferred to the corporation and we also requested that he take common stock for a cash consideration in the corporation. We were told at that time--

Q.. By him?

A. By Mr. Aclin, James Aclin, that he felt that there would be no difficulty in transferring the debt from the partnership to the corporation, however, in regards to the stock that he would not commit himself and desired to talk to his father in regards to both items. * * * ”

According to Mcllroy, Aclin was contacted on several other occasions with regards to the matter and

“* * * eventually he told us that they had decided not to take stock as we had requested, that they, at that time, were not in a position to purchase the stock. ”

Further,

“Q. Well, then, as I understand your testimony, Mr. Aclin’s statement was, in effect, that they would go along with you on everything except the purchase of stock?

A. That was my general opinion of the conversation.”

Mcllroy testified that the corporation assumed payment of the debt, the balance being transferred, and placed upon the records of the corporation. He likewise testifiéd that Aclin had been told any fntnre business would be handled on a cash basis, and stated that this was. done. According to his evidence, thfe new corporation would not have been formed, except that all creditors accepted the proposition submitted to them. This testimony ■ of these witnesses was denied by Aclin, who only admitted that he knew the Capleners’ business was being reorganized. He stated that he made no agreements whatsoever to transfer the, debt. Other evidence was offered in support of appellants’ position, such as the fact that the books of the Searcy Truck & Tractor Company were never changed to show a transfer of the indebtedness. It is noticeable, however, that no suit was instituted by Aclin until after the corporation had become insolvent, which lends some weight to appellees’ contention that appellants were looking to the corporation for payment. Be that as it may,- we are of the opinion that the evidence adduced by appellees constituted substantial evidence. According to the appellees’ evidence, the reorganization and incorporation was carried out in reliance upon the agreement with creditors. This, of course, meant that Capleners were put to the expense and trouble of employing counsel, and an accountant, and were required to expend time and effort in raising capital for the new venture, and other matters incident to perfecting the corporation. We are of the opinion that the doctrine of estoppel properly applies, even if the view be taken that the agreement was without consideration. In Peoples National Bank of Little Rock v. Linebarger Construction Company, 219 Ark. 11, 240 S. W. 2d 12, it was said:

“There are numerous cases in which an estoppel has been predicated on promises or assurances as to future conduct. Thus an estoppel may arise from the making of a promise, even though without consideration, if it was intended that the promise be relied upon and in fact, it was relied upon, * *

Estoppel in pais is as readily and fully recognized in courts of law as in courts of equity. Thomas v. Spires, 180 Ark. 671, 22 S. W. 2d 553.

It only remains to determine whether there was necessity that such defense be pleaded. While it is true that, as a general rule, estoppel must be pleaded as a defense to a claim, there is a well defined exception. As stated in Williams v. Davis, 211 Ark. 725, 202 S. W. 2d 205:

“Appellant argues here, however, that appellees could not avail themselves of the defense of estoppel for the reason that it was not specially pleaded. It is true that, as a general rule, estoppel must be pleaded to be available as a defense to a claim; however, there is a well defined exception that arises, as in the present case, when ‘the estoppel or waiver is admitted in evidence or becomes an issue without objection at the time that it was not pleaded, this objection that it was not pleaded is waived and the estoppel is as conclusive as if pleaded specially, whether it is an estoppel in pais, a waiver, etc.’ 19 Am. Jur., page 850, section 197.

In this case there were no objections to the evidence bearing on the question of estoppel, on the ground that it had not been pleaded, and therefore it was within the sound discretion of the trial court to treat the pleadings as amended to conform to such proof.”

To the same effect is the holding in Brotherhood of Railroad Trainmen v. Long, 186 Ark. 320, 53 S. W. 2d 433, and Keylon v. Arnold, 213 Ark. 130, 209 S. W. 2d 459.

Finding no reversible error, the judgment is affirmed.

Justice William J. Smith not participating.

       Whether Aclin agreed, is the question in this litigation.

       From the testimony of Mcllroy: “Q. Actually though, the funds came from the Security Bank, didn’t it, to pay it? A. No, not necessarily, because it was kept there, and I believe now, I will have to look at the record again, but I believe that there would have been sufficient dollars there to have made that much of a payment without any note having been issued by the bank. Now, in fact, I believe that if you will check the records that the deposit of the money from the note wasn’t made into the account of the corporation until after the payment of the —in fact, a day or so after, after the payment was made to the Searcy Bank.”

       From appellees’ “Response to Motion to Make More Definite”: “That prior to March 4, 1955, defendants operated as a partnership under the firm name and style of Caplener & Sons. On March 5, 1955, because of financial difficulties and their inability to pay their bills, they entered into an oral agreement and arrangement with all of their unsecured creditors, including plaintiffs, to reorganize and incorporate said business, said corporation to assume payment of all unsecured debts then owned by said partnership, which proposal was orally accepted and agreed to by said unsecured creditors, including plaintiffs, the agreement by plaintiffs, however, being conditioned that said corporation pay at once certain notes, four in number, given by defendants to plaintiffs and by plaintiffs endorsed with recourse to The Searcy Bank; and the balance due upon said notes in the sum of $11,042.10, was paid by said corporation on March 11, 1955, to The Searcy Bank in accordance with said agreement.
      “That plaintiffs, having entered into said oral agreement, any balance due them on the account sued on herein, is due and payable by Boyce Caplener & Sons, Incorporated, and not by the defendants herein.”

       Kenneth Caplener testified that he told James Aclin that the notes would he paid in the manner they were paid, and that Aclin raised no objection.

       There was no requirement under the plan of reorganization that creditors take stock; such purchase would be purely voluntary.


source: Caselaw Access Project

author: J. Seaborn Holt, Associate Justice.

license: Public Domain

text:
    Carty v. Ward Furn. Mfg. Co.
    5-1661
    318 S. W. 2d 148
    Opinion delivered December 1, 1958.

      D. L. Grace, for appellant.

      Harper, Harper, Young $ Durden, for appellee.
   J. Seaborn Holt, Associate Justice.

Properly proceeding under the provisions of our Workmen’s Compensation Statutes (Secs. 81-1301 — 1349, Ark. Stats. 1947), appellant, Carty, was awarded compensation, resulting from an injury, for permanent partial disability to the extent of 30 per cent of his body as a whole. His claim was first heard before a referee of the commission, who, on January 2, 1957, awarded Carty compensation on the basis of permanent partial disability to the extent of 25 per cent of his body as a whole. On appeal the full commission increased the amount of such disability allowed by the referee to 30 per cent. The Sebastian Circuit Court affirmed the action of the full commission and this appeal followed.

For reversal appellant says: “First: Appellant was injured while in the employment of the appellee on the 14th day of September, 1954 — a primary injury, traumatic in nature. (1). The award and opinion of the commission and order of the circuit judge were insufficient, and did not fairly recompense appellant for injury sustained as to healing period, (2). Did not fairly recompense appellant as- to total permanent disability, and/or the per cent thereof. Second: Appellant sus.tained a secondary injury, permanent in nature, which resulted from the use of iodized oil in the form of myelogram administered by the doctors in their efforts to diagnose and operate his injuries* for which he never was treated. That said injuries sustained by the use of iodized oil were never diagnosed and never rated as to disability by the Arkansas 'Workmen’s Compensation Commission nór the circuit court.”

"Since the enactment of our Workmen’s Compensation Law, we have consistently held that we do not try compensation cases here ele novo, we are, therefore, not concerned with where the weight of the evidence may lie. When we find any substantial evidence to support the findings of the commission, we must affirm. We said in the recent case of Grimsley, adm’x. v. Manufacturers Furniture Co., 224 Ark. 769, 276 S. W. 2d 64: ‘Findings of fact by the Workmen’s Compensation Commission are given the same verity as attach to the verdict of a jury and this applies on appeal to the circuit ’ court as well as to the supreme court from the judgment of the circuit court. . . On appeal, the supreme court must view testimony in its strongest light in favor of the commission’s findings . . . Where the commission acting upon sufficient evidence sustains or rejects an award, such findings will not be disturbed on appeal,’ ” McKamie v. Kern Trimble Drilling Co., 229 Ark. 86, 313 S. W. 2d 378.

After a careful review of the testimony presented, we think a fair summation thereof was made by the commission and that its conclusions were based on substantial evidence. The commission’s findings and conclusions contained these recitals: "On September 14, 1954, claimant sustained an accidental injury to his low back, and’in an opinion filed January 2, 1957, by a referee, it was found that claimant’s temporary total disability and/or healing terminated July 17, 1956; that the claimant- has a permanent partial disability of 25 per-cent-'to the body as a whole; that the payment of temporary total disability and permanent partial disability of 25 per cent to the body as a whole has not been controverted by respondents. The referee made an award in keeping with his findings and in addition thereto allowed claimant’s attorney an attorney’s fee of $200 to be deducted from the award.

“Upon review additional evidence was presented, it consisting of the following: testimony of Dr. Hoyt Kirkpatrick, Jr., Holt-Krock Clinic, Fort Smith, Arkansas, who specializes in orthopedics; testimony of Dr. Frank Padberg, Little Rock, who specializes in neurosurgery and who examined and operated on claimant for a herniated disc and who re-examined claimant on May 3, 1957, at the suggestion of this commission; additional testimony of claimant and his wife; reports of Dr. Frank Padberg dated May 4 and 27, 1957; report of Dr. John D. Christian, orthopedist of Little Rock, dated May 11, 1957; x-ray report of Dr. George Regnier dated May 22, 1957.

“We find from a study of the evidence of record presented before the referee that the ‘Statement of the Case’, as set forth ... is a fair statement of such evidence; therefore, in the interest of avoiding repetition, we herewith adopt said statement ás our own.

“Briefly stated, the additional evidence presented before the full commission is substantially to the following effect: Dr. Padberg re-examined claimant on May 3, 1957, at the suggestion of this commission, and after that examination it is his opinion claimant’s permanent partial disability is 25 per cent to the body as a whole, and he finds no evidence of any disability resulting from the myelographic examinations given the claimant. Claimant continues to assert that he is unable to do any work and is 100 per cent disabled, but he also continues to refuse any additional operative procedure. Dr. John D. Christian of the orthopedic firm of Drs. Thompson, Christian and Steele, examined claimant on May 3, 1957, and he concludes his report of May 11, 1957, with the statement that he would estimate claimant’s permanent partial disability in the neighborhood of 30 per cent to the body as a whole, and he does not feel that any further treatment is indicated, and it is his further opinion that claimant’s healing period ended prior to that time. Dr. George Regnier, radiologist of Little Rock, states in his report of May 22, 1957, that he reviewed films of claimant’s spine made May 13, 1957, July 11, 1955, and December 6, 1954, and there is no evidence of a destructive process in any of the films, nor is there evidence of acute injury and no appreciable change in disc interspace which can be seen in these films, and the sacroilee and hip joints are normal radio-graphically.

“Upon consideration of all of the évidence presented herein, the commission, in partially affirming and partially amending the opinion of the referee, makes the following — Findings — 1. That on September 24, 1954, claimant sustained an accidental injury to his low back that arose out of and during the course of his employment; 2. That on July 17, 1956, claimant’s period of maximum recovery or healing period from the aforesaid injury terminated, leaving him with a 30 per cent permanent partial disability to the body as a whole; 3. That 65 per cent of claimant’s average weekly wage exceeded $25; 4. That the payment of compensation for temporary total disability and for permanent partial disability as found above has not been controverted by respondents. — Conclusions —■ Concisely stated, the questions for decision herein are the duration and extent of disability. When did claimant achieve maximum recovery from his admitted compensable accidental injury to his back? There is some conflict in the evidence as to exactly when claimant reached such a physical state. We believe that there is competent evidence to establish that claimant’s maximum recovery, particularly in view of claimant’s refusal to submit to any further operative procedures, terminated on or before July 17, 1956. We, therefore, affirm the referee’s finding that claimant’s healing period terminated on the foregoing date.

“What is the extent of claimant’s permanent partial disability resulting from instant injury? As opposed to claimant’s assertion that he is unable to do any work, we have the medical opinions of three medical specialists that claimant is able to do certain types of work, and that in their opinions claimant’s permanent partial disability to the body as a whole is from 25 to 30 per cent. One orthopedist and a neurosurgeon expressed the opinion that claimant’s permanent disability is 25 per cent, while one orthopedist states claimant’s disability is about 30 per cent of the body as a whole. There is also other medical opinion on the part of two general practitioners that claimant’s disability is greater than that found by the medical specialists. When consideration is given, however, to the qualifications of the doctors and their opportunities to know claimant’s condition, we believe that the opinions of the specialists should be given more weight than that accorded the general practitioners in this case. At the time the referee made his findings of a 25 per cent permanent partial disability to the body as a whole, he did not have the benefit of the findings of Dr. John D. Christian as set forth in Dr. Christian’s report of May 11, 1957, which is now before the full commission.

“By the terms of this opinion, we, therefore, amend the referee’s finding as to permanent partial disability, and herein find same to be 30 per cent to the body as a whole ...

“Award — It appears that respondents have paid claimant for his periods of temporary total disability and/or temporary partial disability from the date of the injury at least down through July 17, 1956, and there is no dispute about payment of compensation for that period of time; therefore, beginning July 18, 1956, and continuing for a period of 135 weeks, respondents will pay to claimant compensation at the weekly rate of $25 for a 30 per cent permanent partial disability to the body as a whole. Respondents will take credit for any compensation paid to claimant since July 17, 1956, to apply on his award for permanent partial disability.”

Accordingly the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Firemen’s Relief and Pension Fund for the City of Pine Bluff, Ark. v. Hughes.
    5-1664
    318 S. W. 2d 145
    Opinion delivered December 1, 1958.

      Wilton E. Steed, for appellant.

      Joe Holmes, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question here presented is the correctness of the decision of the Circuit Court which-adjudged-that Appellee Hughes was entitled to a fireman’s pension because of physical disability. The appellant here is the Firemen’s Relief and Pension Fund for the City of Pine Bluff (hereinafter referred to as “Pension Board”); and the appellee is David C. Hughes, who claims that he was injured at a time and in a manner that entitles him to a pension.Both sides agree that the applicable law is found in §§ 19-2201 et seq. Ark. Stats., including the 1955 amendments. Pertinent statutory provisions will be mentioned later.

The present litigation began on August 29, 1957, when Hughes ’ attorney filed an oral claim with the Pension Board, which claim was denied. On September 6, 1957 Hughes filed Case No. 14521 in the Jefferson Circuit Court and his pleading was entitled, “Appeal”. In that pleading, Hughes alleged that he received an injury while a regular member of the Pine Bluff Fire Department and that the injury was not received while in or as a result of other gainful employment. He alleged the refusal of the Pension Board to award him a pension and prayed for a Circuit Court judgment awarding him a pension from July 1, 1956, which was apparently some time near the date of his injury. The Pension Board filed answer: (1) denying the allegations made by Hughes; (2) alleging that Hughes was discharged for cause on July 1, 1956; and (3) claiming that Hughes had failed to comply with the law in attempting to obtain a pension.

The cause was heard in the Circuit Court ore terms: part of the hearing was on the 22nd day of November, 1957 and the concluding portion of the hearing was on the 30th day of January, 1958. On the last mentioned date the Circuit Court entered judgment for Hughes for a pension to begin on July 1, 1956. From that judgment there is this appeal in which the appellant presents two points, to-wit:

“1. A Fireman is not entitled to a pension where he fails to file a certificate of disability with the pension board.

“2. Appellee is not entitled to a pension from the Firemen’s Relief and Pension Fund for the City of Pine Bluff, Arkansas, where his injury is caused by his own misconduct. ’ ’

I. Appellant’s First Point. Section 19-2205 Ark. Stats., insofar as concerns disabled firemen, says:

“Whenever a person serving as a fireman in such city or town shall become physically or mentally disabled, except while actually performing work in gainful employment outside of the Fire Department in said city or town, said Board may, upon his written request, . . . retire such person from active service, and, if so retired, shall order and direct that he be paid from said fund a monthly pension . . .”

Section 19-2206 Ark. Stats, says:

“No person shall be retired, as provided in the next preceding section, or receive any pension from said fund, unless there shall be filed with the said board certificates of his disability, which certificates shall be subscribed and sworn to by said person and by the city or town physician, if there be one, and the firemen’s relief and pension fund physician, and such board may require other evidence of disability before ordering such retirement and payment as aforesaid.”

Hughes never filed any written request with the Pension Board and never filed any certificate of disability with the Pension Board, as a basis for his request of August 29, 1957. When the case reached the Circuit Court the Pension Board claimed as a defense that Hughes had failed to comply with the Arkansas Statutes. On the trial, Hughes admitted that he had never appeared before the Pension Board; and no certificate of any kind was introduced in the trial. So the record here conclusively establishes that Hughes did not file a certificate as required by § 19-2206; and that the Pension Board has not waived such failure because it has all the time urged that Hughes had not complied with the law.

The Statute provides in § 19-2210 that appeals from the Board to the Circuit Court shall be, “. . . in the method now provided for appealing from decisions of the Justices of the Peace in civil cases”. The trial in the Circuit Court is de novo; but in the de novo trial in the Circuit Court there was no evidence that Hughes had complied with § 19-2206 Ark. Stats. The question, then, is how fatal is his said failure. The situation here is very much like the situation involving § 51-1101 Ark. Stats. That section provides that before any mortgagee shall proceed to foreclose a mortgage or to replevy under such mortgage any personal property, such mortgagee shall make and deliver to the mortgagor a verified statement of account showing each item, debit and credit, and the balance due. We have held that, unless waived, compliance with § 51-1101 is a prerequisite to the beginning of proceedings. (Lawhon v. Crow, infra.) Likewise, it is clear that, unless waived, compliance with § 19-2206 is prerequisite to the allowance of a disability claim.

The case of Lawhon v. Crow, 92 Ark. 313, 122 S. W. 999, points the way to our conclusions here. In that.case the mortgagee brought suit in the Justice of the Peace Court to replevy personal property described in the mortgage. The mortgagor pleaded in the Justice of the Peace Court that the mortgagee had failed to fully comply with the section that is now § 51-1101 Ark. Stats. The case reached the Circuit Court and the mortgagor renewed his plea. The Circuit Court sustained the defense and the mortgagee appealed. This Court cited the earlier cases of Atkinson v. Burt, 65 Ark. 316, 53 S. W. 404, and Perry County Bank v. Rankin, 73 Ark. 589, 84 S. W. 725, and reached the conclusion that: “. . . the mortgagee does not forfeit his debt by failing to comply with the statute. . . He may still have his remedy of foreclosure by complying with the statute . . So, here, the failure of Hughes to comply with the statute (§ 19-2206 Ark. Stats.) is fatal to his present suit; and the Circuit Court should have dismissed the case, but without prejudice to Hughes’ right to thereafter comply with the statute and have further proceedings. Such is the conclusion we reach' in this case.

II. Appellant’s Second Point. The appellant claims that the appellee is not entitled to a pension because his injury was caused by his own misconduct, and pleads § 19-2210 Ark. Stats, as a defense to any pension claim of appellee. Even though this present case is to be dismissed by the Circuit Court, we think it only proper for future guidance to point out that we are not passing on this second point. Thus, the Pension Board is still at liberty to make its claim, relying on the provisions of § 19-2210 Ark. Stats.

The judgment in the present case is reversed and the cause is remanded, with directions to the Circuit Court to dismiss the present case but without prejudice to Hughes to have further proceedings after he complies with the applicable law.

       The amendments made by the 1957 Legislature are found in the Pocket Parts of Arkansas Statutes Annotated, but the 1957 amendments are not applicable to this case insofar as concerns the substantial claim of the appellee, since his alleged injury occurred in 1956.

       All the minutes of the Pension Board of August 29, 1957, insofar as relate to this case, are as follows: “The Board of Trustees of the Firemen’s Relief and Pension Fund met in regular monthly session at 8 o’clock AM this date in the office of the Mayor. Mayor Lites presided and the following members of the Board were present: Chief Alford, Firemen Jones, Murdock, Phillips and McCallister. There was none absent.
      “Minutes of the meeting of July 31, 1957, were read and approved ...
      “Attorney Joe Holmes was present and requested the Board to grant an application for pension made by his client, David C. Hughes.
      “Mayor Lites read a court order signed by Circuit Judge Henry Smith decreeing that the appeal by Mr. Hughes to the court be dismissed with prejudice. After some discussion with reference to state laws that applied to the case, Mr. Jones moved that the application of Mr. Hughes to the Board for a pension be denied. His motion was seconded and, upon roll-call vote, carried unanimously.
      “Mayor Lites instructed the Secretary to furnish copies of these minutes to Mr. Holmes, to Fire Chief Alford and to the Civil Service Board.
      “There being no further business, the meeting adjourned.”

       In the appellee’s brief in this Court it is stated that a certificate of disability was filed with the Pension Board of February 12,1958; and what purports to be such certificate appears in the appellee’s abstract; but the judgment herein was on January 80, 1958 and subsequent attempted curative filings cannot improve a defective record.

       Some of the subsequent cases citing' Lawhon v. Crow (supra) are: Ford Hardwood Lumber Co. v. Bryant, 178 Ark. 807, 13 S. W. 2d 1; McCoy & Son v. Atkins, 167 Ark. 250, 267 S. W. 779; and Haffke v. Hempstead County Bank, 165 Ark 158, 263 S. W. 395.


author: George Rose Smith, J.

text:
    Conway v. Hudspeth.
    5-1698
    318 S. W. 2d 137
    Opinion delivered December 1, 1958.

      Gordon & Gordon, for appellant.

      Walker & Villines and N. J. Henley, for appellee.
   George Rose Smith, J.

This is a three-sided lawsuit arising from a traffic collision involving a car owned by the appellees Hudspeth, a truck owned by the appellee Steen, and a car owned by the appellant Conway and being driven by his employee, the appellant Bert Smith, Jr. By the pleadings each set of parties charged the other two with negligence and sought damages from the other two. The jury attributed the collision solely to the negligence of Conway’s employee, Smith, and judgments were accordingly entered in favor of the Hudspeths and in favor of Steen and his daughter, who was riding with him at the time. The appellants question the sufficiency of the proof, the court’s rulings upon the admissibility of evidence, and one of the instructions to the jury.

The accident happened on the afternoon of January 28,1957, at a point on Highway 65 near the western edge of the city of Marshall. Steen was traveling west in his truck and had slowed down with the intention of turning to his left across the highway to enter a service station. The Conway car was following Steen and the Hudspeth car was approaching from the opposite direction. The pivotal question of fact at the trial was the order in which Steen’s truck collided successively with the two cars. That is, did the Conway car strike the truck from behind and knock it into the path of the Hudspeth car, or did Steen himself drive slightly across the center line into the lefthand traffic lane, where his truck was hit by the Hudspeth car and thrown back into the path of the Conway vehicle? The jury evidently adopted the view first mentioned.

In questioning the sufficiency of the evidence the appellants insist that Steen’s testimony cannot be reconciled with the physical facts. Steen testified that he had not begun Ms turn when he was struck from behind, and from this statement the appellants argue that a blow from the rear would have thrust the truck straight ahead instead of leftward. This reasoning is sufficiently answered by the fact that the Conway car’s damage was to the left front end and the truck’s damage to the right rear end. The jury doubtless concluded that the truck received a glancing blow which caused it to swerve to the left.

Conway asked for a directed verdict, contending that his adversaries had not proved that Conway’s employee, Smith, was acting within the scope of his employment when the collision occurred. We thiMt the court was right in holding that the proof made this an issue for the jury’s determination.

Smith, a boy of seventeen, was employed from time to time to wash cars and do odd jobs at Conway’s used car lot. On the afternoon of the accident a man named Karns had become ill at Conway’s place of business. Conway and Smith drove Karns to a hospital, where he obtained medicine. After leaving the hospital Conway alighted from the car and instructed Smith to take Karns home “and come right back.” Smith says that he drove Karns to his home, and then “I started out to see about my granddad,” who lived perhaps a half mile west out Highway 65. Smith states that he was on his way to his grandfather’s house when the accident happened.

We are unable to say that the undisputed proof required the jury to find that Smith had left the course of his employment. In the first place, the geograpMcal setting is not clearly disclosed by the proof. Conway’s used car lot, to which Smith was to return, is in the downtown business district of Marshall, and the collision took place within the city limits, near the western edge of town. We are not told, however, where the Karns house is, except that it is in the north part of town, north of Highway 65. If the house were due north of the point of the accident Smith’s deviation from the most direct return route might have been so slight as to support a finding that there had been no departure from the master’s business. Cahill v. Bradford, 172 Ark. 69, 287 S. W. 595.

In the second place, Conway testified that he had another place of business on beyond the point of the accident and that he himself made numerous trips there every day. Since both Conway and Smith were interested parties, the jury was not required to accept Conway’s uncorroborated statement that he instructed Smith to come right back or to accept Smith’s unsupported testimony that he had started to see about his grandfather. Bullock v. Miner, 225 Ark. 897, 286 S. W. 2d 328. Inasmuch as the route that Smith was traveling led both to the object of his personal mission and to his employer’s second place of business, it was for the jury to say which destination Smith had in mind when he began the trip.

Several contentions relate to the admissibility of evidence. Thomas Martin, who was the driver of the Hudspeths’ car, testified on direct examination that after the accident he asked-Steen whether he had driven across the center line or had been knocked across, and Steen said he believed he was knocked across. No objection was made at the time, but at the close of Martin’s cross examination counsel for Conway and Smith asked that the testimony be excluded. The court instructed the jury that Martin’s statement of what Steen had said should not be considered as evidence against Conway and Smith, but it might be considered for any other purpose.

We perceive no error in the court’s ruling. Since the objection was not interposed in time to prevent the jury from hearing the statement, the court’s later admonition to the jury was as favorable a ruling as the appellants could then expect and in effect sustained their objection. Their present argument is that the statement should have been excluded altogether; but the statement was competent against Steen as an admission, for there is no requirement that the admissions of a party to the suit must also be declarations against his interest in order to be admissible. Wigmore on Evidence (3d Ed.), § 1048. What we have said also disposes of a similar objection that was made during the testimony of Gerald Bert Hudspeth.

The appellants called as a witness a trained state police officer, who had investigated the accident before the vehicles were moved, and attempted to elicit his opinion as to the order in which the collisions occurred. When the court sustained an objection to this testimony, counsel stated that the officer would have testified that in his opinion the Hudspeth car struck the Steen truck and knocked it backwards against the Conway car.

We do not agree with the appellants’ contention that the proffered testimony was admissible as the opinion of an expert. It has been said that the courts look with disfavor upon attempts to reconstruct traffic accidents by means of expert testimony, owing to the impossibility of establishing with certainty the many factors that must be taken into consideration. Moniz v. Bettencourt, 24 Cal. App. 2d 718, 76 P. 2d 535. In the case at hand the officer was not asked to describe every physical fact that he had seen and then to explain his deductions, in the manner that ballistic experts often explain their conclusion that a certain weapon fired a certain bullet. Here the officer was asked his opinion on the basis of the position of the vehicles, the damage to them, “and other physical evidence found at the scene.” In the absence of anything to indicate that it was beyond the jurors’ ability to.understand the facts and draw their own conclusions, there was no need to resort to expert opinion. Mo. Pac. R. Co. v. Barry, 172 Ark. 729, 290 S. W. 942.

The appellants sought to show that Steen, after the Hudspeths had filed suit, said to Conway: “I don’t want to get in a lawsuit over this; he said my pickup is a total wreck, and I am willing to sell the salvage and pay it on it, if we can get it stopped.” The trial court correctly ruled the statement to be inadmissible, for it indicates only a willingness to compromise and does not amount- to an unqualified confession of fault. Folsom v. Watson, 217 Ark. 158, 228 S. W. 2d 1006.

J. L. Hensley, a witness for the appellants, testified that he was following the Conway car and saw the collision. On cross examination he denied having told Steen that he had not seen the collision. On rebuttal Steen was permitted to testify that he had talked with Hensley and that Hensley had said that he did not see the accident happen.

It is now insisted that no proper foundation for Steen’s rebuttal was laid, in that Hensley was not informed of the exact time and place of his asserted statement to Steen. In fairness to the trial court this contention cannot be sustained. The only objection to Steen’s rebuttal was this: “If the court please, the statement to him by J. Lee Hensley is not admissible.” The court ruled that the evidence was competent for the sole purpose of going to Hensley’s credibility, and the objection was pursued no further. We think the court reasonably understood the objection as being based upon the hearsay rule, and upon that understanding the ruling was correct. If counsel thought that no proper foundation had been laid, the point should have been brought specifically to the court’s attention. Had that course been followed the omission now complained of might readily have been supplied in the trial court. See Degen v. Acme Brick Co., 228 Ark. 1054, 312 S. W. 2d 194.

Finally, it is contended that the court should not have given an instruction on the issue of Smith’s possible negligence in following too closely behind the Steen truck. It is true that no eyewitness testified that Smith was too close, as neither Martin nor Steen saw the Conway car before the accident. But Smith testified that he applied his brakes as soon as he saw the truck coming back toward him, and the proof is that his skid marks were only twelve feet in length. From this evidence the jury may have concluded that Smith was not keeping a reasonable distance behind the vehicle ahead of him.

Affirmed.

William J. Smith, J., not participating.


author: Paul Ward, Associate Justice.

text:
    Bellott v. Weatherly.
    5-1728
    318 S. W. 2d 152
    Opinion delivered December 1, 1958.

      John F. Gibson, for appellant.

      W. P. Switzer, for appellee.
   Paul Ward, Associate Justice.

On August 20 and 29, 1957, pursuant to Ark. Stats. § 20-701 et seq., certain property owners in the vicinity of Crossett filed petitions in the County Court of Ashley County to form two improvement districts. One was Fire Protection District No. 1 and the other was Natural Gas Improvement District No. 2.

On September 9, 1957, after proper notice, the County Court ordered the creation and establishment of the two districts mentioned above. The order states the following findings of fact: “. . . the proposed district includes lands lying adjacent to the City of Crossett, Arkansas, which has a population of more than 5,000 inhabitants . . .”; “. . . all of said lands are situated wholly outside the corporate limits of said city . . .”, and; “. . . said petition is signed by a majority in value and area of the owners of real property within the hereinafter described territory and said proposed district.” The court also appointed appellees as commissioners.

On December 6,1957 an appeal was taken to the Circuit Court, and a hearing was set for December 16, 1957. On the latter date an intervention was filed by two property owners who were given until January 13, 1958 to file pleadings and ask for legal relief.

On the date last mentioned a hearing was held at which time testimony was introduced by both sides. At the conclusion of this hearing the Circuit Court entered judgment affirming the order of the County Court creating the two districts.

For a reversal appellants rely on three grounds, to-wit: The court erred (a) in placing the burden of.proof on appellants, (b) in accepting the testimony of the Tax Assessor, and .(c) in considering the 1956 assessments.

Under the view which we have taken it will not be necessary to discuss all of the above points. The County Court, as has heretofore been noted, found that all statutory prerequisites had been complied with. On appeal it was the duty of the Circuit Court to approve the order of the County Court unless it was shown by the testimony that the County Court order was in error. The burden was on appellants to make this showing. This was not done.

The case of Henry v. Board of Improvement of Paving District No. 3, 170 Ark. 673, 280 S. W. 987 is, we think, conclusive of the above rule. In that case the City Council held that the signers of a petition for the creation of an improvement district constituted a majority in value of the property owners therein. An appeal was taken as provided by the statute, to the Chancery Court. On appeal to this court we held that ‘ ‘. . . in the very nature of things, the finding of the council must be treated as prima facie correct, and the burden rests upon the attacking party to show to the contrary.” The language in the appeal statute in the cited case and in the appeal statute here (§ 20-702) is the same. Precisely the same question was likewise decided in Dunbar v. Street Improvement District No. 1 of Dardanelles 172 Ark. 656, 290 S. W. 372, citing the Henry case with approval.

It would serve no useful purpose to set out the testimony introduced in the Circuit Court. Suffice to say we have read it carefully and find nothing to contradict the findings of the County Court. In fact appellants make no contention to the contrary.

We might add that the County Court and the Circuit Court were correct in using the 1956 assessment as a basis. The 1957 assessment list was not completed on September 9, 1957 when the order of the County Court was entered. See Arkansas Tax Commission v. Ashby, 217 Ark. 759, 233 S. W. 2d 361.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Nat’l Property Owners Assoc. v. Hogue.
    5-1692
    318 S. W. 2d 151
    Opinion delivered December 1, 1958.

      Willis V. Lewis, for appellant.

      Robert L. Rogers, II, for appellee.
   Sam Robinson, Associate Justice.

This is a suit to quiet title to Lot 7, Block 4, Sunset Heights Addition to the City of Little Rock. The issue is whether appellants have acquired title by adverse possession.

Appellant Roy Morrison testified that in 1946 he cleared the underbrush on the lot and posted a sign there as follows: “Private Property — Roy Morrison, Owner — Keep Off”. He says that he kept the sign up and kept the lot free of brush until 1955. He is corroborated by his wife. Morrison organized a corporation known as National Property Owners Association. In 1955 this corporation obtained from the State a tax deed to the lot, the property having been declared forfeited for the nonpayment of the 1951 taxes. It is conceded that the tax forfeiture is void because of an overcharge. It does not appear that appellants ever paid any taxes on the property. Morrison claims title by seven years’ adverse possession (Ark. Stat. § 37-101) and by two years’ adverse possession (Ark. Stat. § 34-1419).

The trial court held that he had not acquired title on either theory. We agree. Morrison does not claim to have had possession of the property in any manner except by clearing the brush and putting up the sign. The property was not enclosed and there is no showing that the sign conveyed any information as to the area of land which Morrison claimed. No one gave testimony regarding the sign except Morrison and his wife. There is no showing of the size of the sign or how well it could be seen or where it was located on the property. Prior to obtaining the tax deed, Morrison did not have color of title, and without color of title it was necessary that he have actual possession in order to claim the benefits of the seven years adverse possession statute (Ark. Stat. § 37-101). Montgomery v. Wallace, 216 Ark. 525, 226 S. W. 2d 551. Likewise, it was necessary that he have actual possession to claim the benefits of the two years adverse possession statute (Ark. Stat. § 34-1419). McMillen v. East Ark. Investment Co., 196 Ark. 367, 117 S. W. 2d 724. The evidence is not sufficient to show that he had such actual possession at any time. In Culver v. Gillian, 160 Ark. 397, 254 S. W. 681, the evidence was much stronger to show adverse possession than is the evidence in the case at bar. In that case Judge Hart said: “The defendant claims to have gone into possession of the lots in 1907 and to have held adverse possession ever since. He describes his adverse possession, however, and it is not of such a substantial character as to give him title to the lots. At one time he had the underbrush cleared and some of the larger trees cut down. One year he planted and cultivated a few garden seed. He did nothing from that time until the suit was brought, except that, in 1917, a part of the lots were inclosed and rented. It is true that, in the beginning, he put up a sign on the lots forbidding trespassers from coming there. This of itself would not be sufficient to show adverse possession of the lots against the true owner.”

Affirmed.


text:
    Blair v. Yancy.
    5-1694
    318 S. W. 2d 589
    Opinion delivered December 8, 1958.

      E. B. Stubblefield, for appellant.

      Gentry é Gentry, for appellee.
   J. Seaborn Holt, Associate Justice.

On March 28, 1958, appellant, Blair, purchased a piece of property at 1514 Maryland (West 9th Street) in Little Bock, for the purpose of establishing thereon an embalming business. This property was zoned for business and commercial purposes and following the issuance of a permit to him, by the city, to engage in the embalming business on the property, Blair began the construction of a building 14 feet wide, 22 feet long and about 9 feet high. After he had expended about $1,000 on the property a number of citizens residing in the area filed a petition seeking to enjoin appellant from establishing an embalming business on the property on the ground that it would be a nuisance. The trial court granted appellees the injunctive relief prayed and this appeal followed.

For reversal appellant earnestly contends that the business involved is located in a neighborhood which is predominately commercial now, and is growing as a business area — crowding out residences, and that such business would not be a nuisance, and that the chancellor erred in holding otherwise. After a careful review of the testimony, which is conflicting, we have concluded that the preponderance thereof supports appellant’s contention.

Equity will not prohibit the erection of a building on the ground that it would become a nuisance unless, as we said in Kimmons v. Benson, 220 Ark. 299, 247 S. W. 2d 468, “. . . the preponderance of the testimony shows that the activity is certain to be a nuisance. Murphy v. Cupp, 182 Ark. 334, 31 S. W. 2d 396; Buckner v. Tillman, 195 Ark. 149, 110 S. W. 2d 1060.” Our governing rule in cases such as the one presented here is stated in Fentress v. Sicard, 181 Ark. 173, 25 S. W. 2d 18, wherein this court reversed the Sebastian Chancery Court which had entered a decree enjoining the location and operation of a funeral home on a certain side in the City of Fort Smith and directed that the injunctive relief sought be denied. We there said: “The proof shows that there will be little, if any, noise from the ambulances and other vehicles used. No noise from funeral services will be heard without the building, and there will be no escape of odors or gases from the building, except through the roof to the open air. The district has long been a residential district, and fully developed, no new residences having been erected there for a long time. The testimony shows it is in a state of transition from an exclusively residential district to a business district, many places of business — drug stores, filling stations, pressing parlors and grocery stores — having already been established . . . The chancellor’s decree was based largely upon the common knowledge that the people residing in the vicinity would be affected in their feelings by the establishment of the mortuary, which, would bring discomfort to all because of the constant reminder of death and that on that account largely the establishment and operation of the institution upon the proposed site would interfere with the proper enjoyment of the homes of the residents in the vicinity already long established there. There is no zoning ordinance in the City of Fort Smith, but the city commission granted a permit for the construction of the mortuary upon the site selected . . . The authorities are well nigh uniform in holding that a mortuary or undertaking establishment of the kind complained of here is not a nuisance per se. It may become a nuisance, however, by reason of its location in a residential district or from the manner in which it is operated. In 46 C. J., p. 726, it is said: ‘An undertaking establishment or funeral parlor is not a nuisance per se, but by reason of surrounding circumstances it may become a nuisance. It may constitute a nuisance by reason of its location, as, for instance, under particular circumstances, when it is located in a residential district, notwithstanding, it has been held, it does not directly affect the health or grossly offend the physical senses; but it is more frequently held that the mere location in a residential section is not sufficient to make such an establishment a nuisance.’ If the district of the location was an exclusively residential one, its intrusion therein would ordinarily constitute a nuisance, and could be prevented by injunction. Change is the order of time however, that progress and development may not be hindered or obstructed, and the transition from a residential district into a business district is recognized and has been effected.”

Blair testified, in effect, that his operations on the property would be the same as he was operating at 5th and ‘Cross Streets in Little Bock; that Little Bock is a hospital center and numerous deaths here are taken care of by funeral directors out over the state who want the deceased removed from the hospital and embalmed so they can remove the body to their own establishment; that he owns and will use a Nash Bambler station wagon with no glass panels in the sides and that there is nothing about it suggesting death. He further testified that this building, where the embalming will actually take place, will have two windows on the west side, both above the height of the average person’s head, and while they permit light they will be blacked out so no one can see through them; that there would be a solid wooden door 3 feet in width in each end of the building which would be kept closed except the south door would be opened to receive or remove a body; that on the south side a fence about 6 feet in height would prevent anyone witnessing the loading or unloading of a body at the building. He further testified there was nothing offensive or objectionable in connection with his embalming business; that he averaged about three bodies a week; and there would be no ambulances with sirens going to or coming out of his place of business.

Mr. Spencer Plowman testified that he was with the real estate firm of "Weaver and Company in Little Bock and had been in the real estate business for about 28 years; that the proposed building for the embalming business would be situated adjoining a brick garage building having a cyclone fence with barbed wire top along the east side of the proposed building; across the street to the south is a building that is occupied by Finkbeiner Packing Company. In the next block west on the south side of Maryland is the Drummond Funeral Parlor ; on the southeast corner of Maryland and High is a row of stores, including a liquor store; there is a little variety store on the northeast corner and on the southwest corner of the block adjoining this property to the east there is a filling station. He further testified, that in his opinion, this particular area is undergoing the transition from residential to commercial which is very often accompanied by difficult situations. The property is becoming commercial, and in his opinion is losing whatever residential character it had. Property in such a locality lessens in value for residential purposes and has a tendency to increase for commercial or business purposes.

Mr. Howard Thom testified that he had been in the real estate business in this city for about 25 years; that the property involved at 1514 Maryland is next to Finkbeiner’s garage; that the driveway to this embalming building 14x22 feet is on the east side of the house at 1514 Maryland next to the garage and parking lot used by Finkbeiner’s trucks, and that in his opinion that the completion of that building on Mr. Blair’s property and the operation of an embalming business there would not affect the value of adjacent or nearby property one way or the other either from a residential standpoint or business.

A number of other witnesses appeared and their testimony tended to corroborate the above testimony. While appellees, as we have indicated, produced a number of witnesses which tended to contradict appellant’s evidence, however, on the whole record we are convinced that the preponderance thereof shows that this property is in a section of the City of Little Rock that is predominately commercial and growing as such.

The decree is reversed with the directions to deny injunctive relief prayed for by appellees.


text:
    The J. R. Watkins Company v. Martin.
    5-1685
    318 S. W. 2d 591
    Opinion delivered December 8, 1958.

      A. J. Russell and M. D. Anglin, for appellant.

      John H. Shouse, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal stems from the efforts of the appellant to recover on a surety agreement. The appellant — The J. R. Watkins Company (hereinafter called “Watkins”) — is a corporation engaged in selling merchandise in wholesale quantities to individuals who resell to the retail trade. On June 17, 1954 Watkins entered into a written contract with. William Albert Martin (hereinafter called “Martin”), agreeing to sell to him merchandise in wholesale quantities, under the provisions of their contract. To guarantee Martin’s payments to Watkins under the contract, Tom Martin, along with the appellees, Bailey Hall, Y. E. Smith, Roy Bell, and Clyde Deakins, signed a surety agreement with Watkins, which agreement was attached to the Martin contract, and read in part:

“In consideration of the execution of the foregoing agreement by The J. R. Watkins Company, which we . . . hereby agree and assent to, and its promise to sell, and the sale and delivery by it, to the Purchaser, as vendee, of goods and other articles, as therein provided, we, the undersigned sureties, . . . jointly, severally and unconditionally promise, agree and guarantee to pay for said goods and other articles, and the prepaid transportation charges thereon, at the time, and place, and in the manner in said agreement provided . . .”

' Pursuant to' the contract, Martin received merchandise from Watkins at various times and in various amounts. He did not pay for the merchandise; and he seems to have departed from the locality and was never served with summons in this case. His unpaid balance was $1,458.92 on April 18, 1955, when Watkins notified each of the appellees:

“In Re: Yonr surety for Mr. William Albert Martin. This is to notify you formally that the contract of the above for whom you are surety has been terminated, and in accordance with the provisions of the contract any balance owing is immediately due and payable. We wish to advise you that under the terms of the contract, unsold goods are returnable for credit, charges prepaid— credit will be allowed on condition of goods as received by us. If there is any information you desire or cooperation, please let us hear from you promptly.”

Appellees neither made payment nor returned merchandise ; and on May 31, 1956 Watkins filed the present , action, alleging the facts as above stated, all of which were established at the trial. In addition to a general denial, the appellees claimed that Martin had on hand merchandise which should have been returned to Watkins and which would have extinguished the account.

At the trial, the appellees admitted signing the contract, did not deny the correctness of the account, and admitted receiving the letters from Watkins dated April 18,1958; but the appellees contented themselves with testifying: (a) that they went to Martin’s house and saw through the window several truck loads of merchandise, although no one ever made any further examination as to the contents or condition of the merchandise; (b) that they wrote Watkins offering to return the merchandise and pay freight, but never received any reply to the letter; and (c) because they did not receive a reply to the letter, no merchandise was ever returned. These matters were claimed to be substantial compliance with the provisions of the contract as to the return of the merchandise. At the conclusion of the evidence, Watkins moved for an instructed verdict for the plaintiff, which was refused. The jury rendered a verdict for the defendant and this appeal ensued.

I. Instructed Verdict. We hold that the Trial Court should have directed a verdict for Watkins. The fact that the appellees received no detailed instructions from Watkins as to the method of returning the merchandise was no defense, because the contract gave the appellees the right to return the merchandise if they exercised the right within the time and in the manner stated in the contract, all of which they entirely failed to do. The appellees did not show: (1) that they tendered a return of the merchandise within the time fixed by the contract; (2) that the merchandise in Martin’s house was of the qualifications that could be returned; or (3) that the merchandise in Martin’s house had any determined value. According to the uncontradicted evidence, the defendants owed Watkins $1,458.92, together with interest, and the Trial Court should have directed a verdict for Watkins for said amount, since the appellees did not show that they had complied with the contract in regard to the return of merchandise.

II. Procedural Matter On Appeal. In this Court the appellees have filed a motion to dismiss the appeal: claiming that the appellant has failed to comply with a portion of Sec. 9 of Act 555 of 1953 (as now found in Sec. 27-2127.3 Cumulative Supplement to Ark. Stats.) The portion of the section relied on by the appellees reads:

“If there be designated for inclusion any evidence or proceedings at the trial or hearing which was steno-graphically reported, the appellant shall file, at the time of filing his designation or within a time to be fixed by the Court, a copy of the reporter’s transcript of the evidence or proceedings included in his designation. The said transcript shall be filed with the designation unless the appellant shows to the satisfaction of the Court the impossibility or impracticability of furnishing the transcript at the time of the filing of the designation of the record.”

The appellees urge that when the appellant furnished the designation of the record and the points to be relied on, the appellant failed — at that time — to furnish the stenographer’s transcribed notes of the testimony taken ore terms. The record reflects that the judgment was entered on April 5, 1958; that the notice of appeal and the designation of points were filed on April 9, 1958; that the transcribed testimony was certified by the Court Reporter on April 16, 1958; and that it was filed on April 23, 1958.

When the judgment was filed on April 5, 1958 the appellant had thirty days within which to file the notice of appeal; and was required to file the designation of points promptly thereafter. (See Sec. 2 of Act 555, as found in § 27-2106.1 Cumulative Supplement to Ark. Stats.) The notice and designation were filed in apt time. The statute says: “. . . failure of the appellant ... to take any of the further steps to secure the review shall not affect the validity of the appeal, . . . but shall be ground only for such action as the appellate court deems appropriate, which may include the dismissal of the appeal . . .” Section 20 of said Act 555 (as now found in § 27-2127.1 Cumulative Supplement to Ark. Stats.) says that the record on appeal shall be filed with the appellate court and the appeal docketed within 90 days from the date of the notice of the filing of the appeal unless an extension be granted, as provided by law. The record was filed in this Court within the 90-day period.

When we take into consideration the fact which we know — that it is only in the rarest of instances that a court reporter gets the testimony transcribed within four days after the trial — we think it would be putting the letter above the spirit to say that the transcribed testimony must be filed in all cases at the time the notice of appeal and the designation of the record are given. We, therefore, indulge a presumption that the Trial Court granted additional time for the filing of the transcribed testimony; and this presumption exists because appellees did not claim and establish either: (1) that they asked the lower Court to shorten the time for filing the transcribed testimony; or (2) that the appellees have been hurt by failure of earlier filing of the transcribed testimony. We exercise the discretion accorded us by Sec. 2 of the Act 555 and deny the motion to dismiss the appeal.

The judgment is reversed and the cause is remanded, with directions to enter a judgment for The J. R. Watkins Company for $1,458.92, together with interest from April 18, 1955 until paid, and together with all costs.

Justice William J. Smith not participating.

       Some of the contractual provisions were:
      1. The contract continued until April 1,1955 if Martin fulfilled all terms, but “. . . either of the parties hereto may terminate this agreement at any time, if desired, by giving the other party notice thereof in writing by mail.”
      2. “The purchaser further agrees to pay the Company its current wholesale prices for the goods and other articles sold to him, as herein provided . . .”
      3. “The purchaser may, within thirty days after the expiration or termination of this agreement, return, by prepaid freight, to the Company, at Winona, Minnesota, Memphis, Tennessee, Newark, New Jersey, or Oakland, California, in as good condition as when delivered to him at point of shipment, any goods purchased by him from the Company, which he may then have on hand; and the Company agrees to repurchase such goods, in the units and combinations purchased, if in such condition when received by it, and pay or credit the Purchaser therefor at the invoiced prices or at the Company’s prevailing wholesale prices whichever shall be lower . . .”


text:
    Northwest Motors, Inc. v. Creekmore, Judge.
    5-1711
    318 S. W. 2d 614
    Opinion delivered December 8, 1958.

      Shaw, Jones <& Shaw, for appellant.

      R. S. Dunn, Hardin, Barton, Hardin & Garner, for appellee.
   George Rose Smith, J.

This application for a writ of prohibition involves a jurisdictional conflict between: the Logan circuit court and the Sebastian circuit court, in cases arising from the same automobile accident. We are asked to prohibit the Logan circuit court from proceeding with two particular phases of the case pending in that court.

The petitioners, Northwest Motors, Inc., and its employee, Clyde Hammock, are domiciled in Sebastian county. On April 21, 1958, Hammock, in the course of his employment, went to Logan county to demonstrate and attempt to sell a car to Jack Goodson, a resident of Logan county. During a test ride, with Goodson driving, the car collided with a truck owned and being driven by Hoyt Bay Walker, a resident of Logan county. Goodson was killed, and there were personal injuries to the others and damage to the vehicles.

Northwest and its employee, Hammock, whom we shall refer to collectively as Northwest, filed separate suits in Sebastian county against Walker alone and obtained service of process. A day or two later Goodson’s administrator brought suit in Logan county against Walker and Northwest, alleging, among other things, that Walker was negligent in driving his truck on the wrong side of the road and that Northwest was negligent in permitting Goodson to drive a car with which he was unfamiliar and in distracting Goodson’s attention just before the collision. In the Logan county case Walker filed a cross-complaint, and an amendment thereto, by which he sought to recover his own damages from Goodson and Northwest. The Logan circuit court denied Northwest’s motion to dismiss this cross-complaint insofar as it pertained to Northwest, and this application for prohibition was then filed. During our summer recess a temporary writ was granted by Justice Ward, and on this phase of the case the question is whether the writ should be made permanent.

On this issue our prior decisions are conclusive. It was incumbent upon Walker to assert in the Sebastian county cases any cross-complaint he might have against Northwest. Ark. Stats. 1947, § 27-1121; Shrieves v. Yarbrough, 220 Ark. 256, 247 S. W. 2d 193. Northwest’s suits against Walker in Sebastian county fixed the venue of the controversy between Northwest and Walker and precluded Walker from bringing an independent suit against Northwest in Logan county. Kornegay v. Auten, 203 Ark. 687, 158 S. W. 2d 473; Carnes v. Strait, 223 Ark. 962, 270 S. W. 2d 920. If Walker could not maintain an independent action against Northwest in Logan county, we think it unavoidably follows that he could not achieve the same result by filing a cross-complaint (for damages rather than for contribution) against Northwest in the suit that Goodson’s administrator had brought in that county. On this part of the case the temporary writ is made permanent.

In the Logan county case Walker, as we have said, also cross-complained against the plaintiff, Goodson’s administrator. The administrator then filed a third party complaint against Northwest, under the Uniform Contribution Among Tortfeasors Act, asking for contribution from Northwest in the event that the administrator should be held liable to Walker on the latter’s cross-complaint. The court overruled Northwest’s motion to dismiss the administrator’s third party complaint, and Northwest amended the petition for prohibition to ask that the respondent be prohibited from proceeding further upon the administrator’s third party complaint.

On this second point we confine our decision to the narrow point of law argued by the petitioners in their brief; that is, that the Uniform Act does not permit a plaintiff to file a third party complaint against a defendant who is already in the case. This argument is based on § 7 (1) of the Act, Ark. Stats., § 34-1007 (1), which provides that a third party complaint may be served “upon a person not a party to the action.” But the petitioners overlook subsection (3) of § 7, which permits a party to state “as a cross-claim against a co-party” any claim of contribution that he may have. See the Commissioners’ Note to subsection (3), 9 U. L. A. 248. It might have been more accurate for Goodson’s administrator to entitle his pleading against Northwest a cross-claim rather than a third party complaint, but the difference is merely one of form and can have no effect upon the administrator’s statutory right to seek contribntion from Northwest. On this phase of the case the writ is denied.


text:
    Hogan v. Hill.
    5-1665
    318 S. W. 2d 580
    Opinion delivered December 8, 1958.

      Mann $ McCulloch, for appellant.

      Fletcher Long for Third party appellant.

      McMath, Leatherman & Woods and Willis V. Lewis, for appellees.
   Paul Ward, Associate Justice.

This is a personal injury suit, involving three parties, growing out of an automobile collision.

Appellee, Harold L. Hill, who was injured, was in an automobile driven by John W. Short in a westerly direction on a 5% down grade. This car collided with a pick-up truck owned by Louie Moffatt and driven in the opposite direction, by Louis Melton. The collision occurred just east of Forrest City on Highway No. 70 which, at that portion of the road, was being repaired by Ben M. Hogan & Company under contract with the Arkansas Highway Commission.

The complaint and amended complaint filed by Hill stated (as to all material portions) in substance: The defendants (hereafter called the Hogan Co.) are partners d/b/a Ben M. Hogan & Company. The Hogan Co. entered into a contract with the said Highwhy Commission to build and construct approximately 11.7 miles (including the portion where the accident occurred) of grading, minor drainage structures, gravel base, gravel or crushed stone shoulders, widening and resurfacing with asphaltic concrete hot mix, etc., having a crown of 32.4 feet and typical surface 24 feet in width, known as job No. 11563. The Hogan Co., for the protection of the traveling public, agreed to the following provisions in said contract:

“608.14 Public Safety. The Contractor shall schedule his operations in widening existing pavement under traffic so that in no case shall trenches be open on both sides of the existing pavement at one time; the base course for widening on the side first opened shall be completed to the specified grade and shoulder material pulled back against the outside edge off the base course and that side opened to traffic before the trench on the opposite side is opened.

“Appropriate signs, lights and barricades shall be furnished and installed by the contractor to protect public traffic where trenches for widening are open alongside existing pavement.”

It was further alleged that the Hogan Co., under the said contract, was obligated to the public and the plaintiff to perform said work in accordance with 608.14 copied above. The complaint after setting out in detail how the accident happened and how the cars collided, states that the accident was caused by the failure of the Hogan Co. to comply with the safety provisions of the contract, enumerating five such instances. In the amendment to the complaint it was also alleged that it was the common law duty of the Hogan Co. to use ordinary care to protect plaintiff from injury while using the reconstructed portion of the highway, as well as the duty to comply with safety provisions of the contract. The nature and extent of the injuries were set out, and the prayer was for judgment in the amount of $75,680.

The answer by the Hogan Co. was a general denial and contributory negligence on the part of Hill, and further, that Hill was on a joint enterprise with John W. Short who was the driver of the car and who was himself negligent. It was further alleged by the Hogan Co. that the accident was caused by the negligence of Louis Melton the driver of a pick-up truck owned by Louie Moffatt, which truck collided with the car driven by Short. The acts of negligence on the part of Melton were set out. The prayer ivas that Hill’s complaint be dismissed.

In addition to the above answer, the Hogan Co. filed what was termed a “Third Party Complaint” in which it was in substance stated: If it be found that the Hogan Co. and Melton were both negligent then the former was entitled to contribution against the latter. The prayer was that Hill’s complaint be dismissed or, in the alternative, that contribution be awarded.

In answer to the third party complaint, Melton and Moffatt entered a denial, and cross-complained against the Hogan Co. On interrogatories the jury found, after a trial, that: (a) The Hogan Co. was guilty of negligence (b) Hill suffered damages in the amount of $25,000; (c) Short was not guilty of contributory negligence; Hill was not guilty of contributory negligence; (d) Melton and Moffatt were guilty of negligence; (e) The Hogan Co.’s negligence contributed to the cause of damages 80% and Melton and Moffatt’s negligence 20% and; The Hogan Co. ’s negligence did not contribute to Melton and Moffatt’s damages. Judgments of the trial court were entered in accordance with the jury findings. The Hogan Co. and also Melton and Moffatt prosecute this appeal.

The Hogan Co. relies on three grounds for a reversal. One. Plaintiff introduced no substantial evidence of negligence. Two. It was error for the court to admit Part 6 of the contract in evidence. Three. It was error to give Hill’s instruction No. 7. In addition to the above it is insisted that the verdict is excessive.

One. Substantial evidence. At approximately 6:15 P. M. on March 15,1957 John W. Short, accompanied by Hill and one other passenger, was descending a hill on U. S. Highway No. 70, just east of Forrest City headed west for his home in Little Pock. At the same time Louis Melton was ascending the hill from the opposite direction in a pick-up truck owned by Louie Moffatt. As Melton approached the Short car and in an effort to pass it the right rear wheel of the pick-up truck ran off the edge of the pavement on its right side or the south side of the highway, and the truck swerved across the center line of the pavement into the path of the Short car. This forced the Short car onto the north shoulder of the highway where it turned over, killing Short and injuring Hill. At the time of the accident that portion of Highway 70 was being reconstructed by the Hogan Co. as a part of State Highway Job No. 11563. The work included repairing shoulders, and widening and resurfacing with hot asphalt mix. The highway, before repairs, was paved with concrete 20 feet wide. At the time of the collision the north shoulder had been excavated and refilled with a sandy material some two or three months previously. There was testimony that it had rained considerably in the mean time and that the shoulder had become somewhat rough and soft, that it was as much as 3 inches lower than the pavement, and that it had not been worked since first installed. There was testimony on the part of the Hogan Co. that adequate warning signs were installed on both sides of the road, but there was testimony by appellee’s witnesses from which the jury could have found otherwise.

The shoulder on the south side of the road* at the scene of the collision had been excavated to a depth of about 18 inches below the pavement. This excavation had just been completed a few hours before the accident and, of course, had not been filled. It is admitted that the portion of the highway in question bears heavy traffic — approximately 4,000 vehicles each day. There was a great deal more testimony, much of it conflicting, by a large number of witnesses but we feel it would serve no useful purpose to set it out, for we think it is clear from the above that there was substantial evidence to support the jury’s finding of negligence on the part of the Hogan Co.

' Two. Part 6 of the Contract. The Hogan Co. contends it was reversible error for the court to allow the introduction in evidence of Part 6 of the contract between it and the Highway Commission. For several reasons we think no such error appears in the record.

It will be noted that Hill’s complaint states a cause of action in tort based not only on the usual common law of negligence but based also on the Hogan Co.’s failure to comply with the regulations in the contract relative to public safety. This, we think he had a right to do. See: Prosser on The Law of Torts, 1955 Second Edition § 81 at page 478 and page 482; Annotated Cases 1913 (c) 217; Pugh v. Texarkana Light & Traction Co., 86 Ark. 36, 109 S. W. 1019; Hill v. Whitney, 213 Ark. 368, 210 S. W. 2d 800, and; Collison v. Curtner, 141 Ark. 122, 216 S. W. 1059.

When Hill offered in evidence, as Exhibit 5, the contract between the Hogan Co. and the Highway Commission, this proceeding occurred:

The. Court: “Is it necessary to put it all in there?”

Atty. for Hill: “We think the whole contract is pertinent.”

The Court: “Without objection let it be introduced. ’ ’

Atty. for the Hogan Co.: “We object to certain portions of it, that is set out in plaintiff’s complaint.”

The Court: “That is the part you are objecting to.?”

Atty. for the. Hogan Co.: “We object to all of what is known as ‘Part 6’ in there.”

. The Court: “Is that the part that is set out in plaintiff’s complaint?”

Atty. for Hill: “Yes, sir.”

The Court: “The objection is overruled and the plaintiff will be permitted to introduce the contract.”

We have already said that Hill had the right, to base a tort action on the failure of the Hogan Co. to comply with the safety provisions in the contract. This being true it must necessarily follow that the jury must know the contents of the contract and also know the safety provisions. It is conceivable of course that in many cases, or even in this case, some parts of the contract would not be relevant. ' In such event, when the entire contract is offered in evidence by the plaintiff as here, the burden would be on the defendant to make it clear to the court just what part of the contract is objectionable and the specific reasons therefor. In this instance Hogan did point out as objectionable that part of the contract “that is set out in plaintiff’s complaint.” The part referred to is shown as “608.14” and is set out in full, supra, in this opinion. Provision 608.14, it must be understood, is only a small portion of Part 6 which consists of 21 pages and Part 6 is only a portion of the entire contract which comprises more than a hundred pages. We think the court was correct in allowing this portion of the contract to be introduced. Hogan’s main objection is that § 608.14 would be relevant only if and when he was in the process of actually putting down black-top or concrete on the shoulders. We cannot agree with this interpretation upon a careful examination of the language in § 608.14 and upon considering it in context with the rest of the contract. The substance of the section is that “in no ease shall trenches be opened on both sides of the existing pavement at one time,” and that one side must be open for traffic before the other side is excavated. The jury could have found this was not done here. It seems to us that it makes no difference, from a safety standpoint, whether the topping is actually being applied or whether the shoulders are merely being prepared for that purpose. The “base course,” as shown by other parts of the contract, refers to the use of certain materials in building up the shoulders preparatory to a completed job.

Three. Finally it is ably contended that it was reversible error for the court to instruct the jury to find for Hill if the Hogan Co. failed to use ordinary care to comply with the contract provisions relating to the safety of the traveling public. This contention is based on Hill’s instruction No. 7, which reads as follows:

“You are instructed that in this case the defendant Ben Hogan entered into a contract with the State of Arkansas to widen and re-surface a portion of Highway No. 70 east and west of Forrest City, and under said contract defendant Hogan undertook to perform certain duties with respect to the safety of the traveling public, using said highway while the work was in progress. The law imposes upon defendant Ben Hogan the duty of using ordinary care to comply with the provisions of the contract inserted for the safety and protection of the traveling public. In determining whether defendant Hogan was negligent, as alleged in complaint of plaintiffs Nina Fay Short and Harold Hill, you may take into consideration the provisions of the contract between Hogan and the State of Arkansas, inserted for the protection of the traveling public and whether the defendant Hogan used ordinary care to comply with said provisions. If you find from a preponderance of the evidence that defendant Hogan failed to use ordinary care to comply with the provisions of said contract relating to the safety of the traveling public and said failure to use ordinary care contributed to proximately cause the death of J. W. Short and the injuries to Harold Hill, your verdict should be for the plaintiffs; unless you find for the defendants under other instructions given you.”

To the above instruction appellant objected generally and also specifically on the grounds that it was confusing to the jury and that it permitted the jury to consider whether or not the Hogan Co. complied with subsection 608.14 which is a portion of Part 6 discussed above, and which has already been set out as a part of the complaint.

It has not been pointed out to us, nor do we see, how the instruction confused the jury.

The objection with reference to § 608.14 has already been disposed under part “Two” above. Since, as before stated, this section was properly introduced in evidence the jury naturally had a right to consider it.

Amount of Judgment. This kind of a question always gives the court great concern because there is no definite satisfactory rule for guidance. Ordinarily the amount of damages fixed by a jury will not be disturbed unless based on erroneous instructions or unless it is shown to he the result of prejudice or passion, or unless it shocks the sense of justice, or unless it is not supported by substantial evidence. It is the latter alternative which is stressed by appellant in asking us to reduce the amount of the judgment in this instance. In brief it is pointed out that Hill suffered three facial cuts, spent one night in the hospital, and incurred only $353.00 in medical expenses; that he was unable to work for only about four months; that he earned approximately $5,000 a year, and; that he is now employed at the same salary.

However the record reveals other facts which the jury had a right to consider. Hill, wh@ was 36 years old, had been employed by the Western Electric Company for 16 years and for the past two years had earned around $7,000 each year. His duties required him to lift objects weighing from 50 to 100 pounds, but the temporary work which he is now doing requires no such physical exertion. It is not known that he will be retained, especially at the same salary, unless he is able to do heavy work. Doctor Gilbert O. Dean stated Hill suffered three severe lacerations of the face, an injury to his left eye, and trauma around the head, that he suffered severe pains through his chest and back, and had a piece out of the bridge of his nose. X-rays were taken shortly after the accident, which, according to Dr. Dean, revealed a compression type fracture of the 6th vertebra of the dorsal region of the back. He stated: “It is what is known as a compressed fracture. Here the disk sits here and it has 50% compression at the front of it, of the vertebra, it occurred when he was thrown forward, it squashed the front part together.” Dr. Dean further stated that there was curvature of the spine still present, and that the condition was permanent. There also appeared a whiplash injury in his neck according to the doctor who also referred to the spinal injury as a broken back. Hill stated he suffered severe pains as a result of the various injuries, that he could sleep only on his back with his knee over a big roll of blankets and a board under his kidneys, or, if he slept on his side, he had to keep his knees drawn up in a coil. He also stated that he was still in pain and never free of it, and that he couldn’t hope to hold his present job unless his condition improved. This view was supported by Hill’s supervisor.

With the above picture before us we cannot say there is no substantial evidence to support the jury’s verdict. We have examined the various cases cited by appellant where judgments were reduced by this court but do not consider them as controlling in this instance.

In view of what has been said it follows that the judgment in favor of Hill must be, and it is hereby affirmed.

On Cross-Appeal. Melton and Moffatt, the third party defendants, in seeking a reversal present an able argument on a very interesting question. They point out, and we must agree, that their interest was in conflict with the interest of the Hogan Co. On this basis they contend they were entitled to three peremptory challenges in the selection of the jury in addition to the three such challenges the court allowed' the Hogan Co. We can readily understand the justice and fairness of this view, but we think it is one that addresses itself to the legislature and not this court. Ark. Stats. § 39-229 which deals with peremptory challenges says “Each party shall have three (3) peremptory challenges.” Section 39-231, in part, provides: “Where there are several persons on the same side, the challenge of one shall be the challenge of all under this subdivision.” As was stated in the case of Crandall v. Puget Sound Traction, Light & Power Co., 77 Wash. 37, 137 P. 319, in dealing with this same question, “the right of peremptory challenge is wholly a creature of statute, and not of common law.”’ Looking solely to our statutes, referred to above, the answer still is not clear. The first section refers to each party without defining party. Likewise there is an element of uncertainty in the use of the words “on the same side” as used in the latter section. We have concluded, however, that the decisions of this court and other courts have resolved this uncertainty against the contention of Melton and Moffatt here. See: Waters-Pierce Oil Company v. Burrows, 77 Ark. 74, 96 S. W. 336; FidelityPhenix Fire Ins. Co. v. Friedman, 117 Ark. 71, 174 S. W. 215; Fort Smith Light & Tr. Co. v. Bailey, 153 Ark. 574, 241 S. W. 42, and; Crandall v. Puget Sound Light and Power Co., supra.

In the Burrow case in dealing with the question and the same statutes as here, we said: “All the defendants are not entitled in the aggregate to more than three peremptory challenges. The statutes do not provide that they shall, in any case, be entitled to more.” (our emphasis.) In the Friedman case where this question is discussed at some length it was held that after cases are consolidated only three challenges are allowed each side under our statute. It was further pointed out that if several defendants on one side of a law suit were allowed three challenges each then the plaintiff on the other side would be entitled to three challenges for each defendant.

The cause is therefore affirmed both on direct appeal and on cross-appeal.

Affirmed.

Holt and Robinson, JJ., dissent.

Justice William J. Smith not participating.


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    Arkansas State Highway Commission v. Addy.
    5-1677
    318 S. W. 2d 595
    Opinion delivered December 8, 1958.

      W. R. Thrasher, Dowell Anders, Wendell Hall, Jr., W. B. Brady, for appellant.

      C. M. Carden, for appellee.
   Sam Robinson, Associate Justice.

This is a proceeding for the condemnation of land for state highway-purposes. A little over four and one-half acres was taken. There was a jury verdict for $20,000, and the Highway Commission has appealed.

In 1955 appellees bought a tract consisting of nine and one-half acres on the southwest corner of the intersection of Highway 67-70 and the Saline County road known as “Alcoa Plant Road.” Appellees constructed on the property what is known as a speed bowl for the racing of stock cars and operated such track during the years 1956 and 1957. On appeal appellant contends that the trial court erred in admitting evidence of the profits derived from the operation of the speed bowl to prove the value of the land taken, and the damages to the remainder. Appellee Charles E. Addy was allowed to testify, over the objection of the appellant, that he made a net profit of $4,927.69 in 1956 from the operation of the track, and that in 1957 he made a net profit of $6-775.01. Other witnesses who testified as experts on the value of the property and the damages, stated that they considered the profit derived from the operation of the track in reaching the appraised value given in their testimony.

This case is controlled by the recent case of Hot Spring County, Arkansas v. Crawford, 229 Ark. 518, 316 S. W. 2d 834. There it was held that net profits from a business operated on the land cannot be considered as a factor in assessing damages for the taking or damaging of land. Many authorities are cited in the Hot Spring case, including Desha v. Independence County Bridge Dist., 176 Ark. 253, 3 S. W. 2d 969. There it was held that the trial court erred in permitting evidence to be introduced showing the profits from the operation of a ferry. Appellees cite Arkansas State Highway Comm. v. Dupree, 228 Ark. 1032, 311 S. W. 2d 792, as sustaining their contention that the evidence of profits is admissible ; but that case involved farm land and profits from the farming operation. This is an exception to the general rule. See 7 A. L. R. 163, Ann.; 1 Orgel on Valuation under Eminent Domain, § 167; 16 A. L. R. 2d 1113, Ann., 5 Nichols on Eminent Domain, p. 225.

For error in admitting evidence of profits from the business operated on the land, the judgment is reversed and the cause remanded for new trial.


author: William J. Smith, Associate Justice.

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    Cooper v. Cooper.
    5-1704
    318 S. W. 2d 587
    Opinion delivered December 8, 1958.

      C. A. Caldwell, W. E. Billingsley, for appellant.

      W- C. Wiley, Murphy <& Arnold, for appellee.
   William J. Smith, Associate Justice.

On February-27, 1957, Mary Ida Cooper; appellant, filed a petition in the Circuit Court of Izard County for a Writ of Habeas Corpus against Carl G-. Cooper and his parents, Leslie and Juanita Cooper, appellees, seeking possession of her minor son, Stephen Carl Cooper. In this proceeding she relied solely upon a California interlocutory decree awarding her a divorce from Carl Gr. Cooper and the custody of their minor son, Stephen. She contends that under the Federal Constitution, Article IY, Section 1, and the Federal Statute, 28 U. S. C., Section 1738, the California decree should be given full faith and credit by the Courts of Arkansas.

This is an appeal from an order dismissing the appellant’s petition after a hearing of the evidence.

The appellant and Carl G. Cooper were married in 1955. Their son, Stephen, was born in 1956. While these two young people were residing in Sacramento County, California, marital trouble developed between them and on the night of October 30,1957, the husband took Stephen from the couple’s home. On the next day he left California (with Stephen) by automobile and drove to Ms parents’ home in Izard County, Arkansas, where he arrived on November 2, 1957.

Stephen was living with his father and grandparents when his mother filed this action in the lower court.

On November 1, 1957, Mary Ida Cooper filed suit for divorce and custody of Stephen in Sacramento County, California. Service was had on her husband in Izard County, Arkansas, on November 18,1957. Carl G. Cooper did not appear (by answer or otherwise) in that suit and on December 19, 1957, the Superior Court of Sacramento County, California, granted ah interlocutory decree of divorce to Mary Ida Cooper wherein she was awarded the custody of Stephen. This is the decree upon which the appellant relies in this action.

Did the Circuit Court err in dismissing the appellant’s petition? We think not.

The evidence is undisputed that Carl G. Cooper and Stephen were not in the State of California when Mary Ida Cooper filed her suit for divorce. They were not in California when summons was issued, when service was had, nor when the interlocutory decree was granted.

A father’s right to custody of Ms cMld is a personal right, May v. Anderson, 345 U. S. 528, 97 L. Ed. 1221, 73 S. Ct. 840, and since the California Court did not have personal jurisdiction over Carl Gr. Cooper, it could not adjudicate his right to possession of Stephen.

In Frey & Horgan Corporation v. Superior Court, 5 Cal. 2d 401, 55 P. 2d 203, the Supreme Court of California said: ‘ ‘ The general rule has long been established that a court may not acquire jurisdiction in personam over the defendant in an action, by service of notice or other process outside the territory or state in which the forum exists. It was so decided in the case of Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565, and there are innumerable decisions in accordance with that authority.”

In the May case, supra, the Supreme Court of the United States, citing cases, quoted the following: “It is now too well settled to be open to further dispute that the ‘full faith and credit’ clause and the act of Congress passed pursuant to it do not entitle a judgment in personam to extra-territorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound.”

See also Halvey v. Halvey, 330 U. S. 610, 91 L. Ed. 1133, 67 S. Ct. 903 and Kovacs v. Brewer, 356 U. S. 604, 2 L. Ed. 2d 1008, 78 S. Ct. 963, in which the Supreme Court of the United States discusses the effect of the “full faith and credit” clause in child custody cases.

The order of the circuit court is affirmed.

It should be pointed out that this decision does not prejudice this mother’s right to file a habeas corpus action in the Chancery Court of Izard County to obtain custody of her child upon a proper showing that it is to his best interest and welfare that she have such custody. Waller v. Waller, 220 Ark. 19, 245 S. W. 2d 814.

Justice Sam Robinson dissents.