author: Conley Byrd, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Dale SADLER et al
    5-5179
    454 S. W. 2d 325
    Opinion delivered June 1, 1970

      Thomas Keys and Kenneth Brock, for appellant.

      Wayland, Parker, for appellees.
   Conley Byrd, Justice.

In this eminent domain action questions of just compensation for three ownerships were consolidated for purposes of trial. Appellant Arkansas State Highway Commission raises a number of points directed to each tract or ownership involved plus one common alleged error in failing to quash the jury panel. Because each ownership in effect constitutes a separate cause of action with facts peculiar to each, we will treat each ownership separately in this opinion and reserve to the last the common issue concerning the jury panel.

THE SADLER TRACT

For reversal of the $35,200 verdict for the Sadlers, the Highway Department relies upon the following points:

“I. The trial court erred in not striking the testimony of Glenn West as to values and resulting damages on the Sadler property.
II. The verdict on the Sadler property was excessive and not supported by substantial evidence.”

Since both issues rest upon Mr. West’s testimony, appellant’s argument really boils down to a contention that sales used by Mr. West were not comparable to the Sadler property and thus his testimony did not constitute substantial evidence.

The record shows that West qualified as an expert to give an opinion on the fair market value of lands in the vicinity of Greenwood, Arkansas. It was his opinion that the fair market value of the Sadler tract before the taking was $170,370 and $121,215 immediately after the taking. His appraisal was made upon the basis that the highest and best use of the Sadler tract is a cattle ranch. In making his appraisal he relied upon the sales from Cook to McKee, Westbrook to Farrell, Needham to Shields and Woody to Brown.

The Cook-McKee sale was a 40 acre tract sold in 1966 for $25,000, lying about one quarter mile from the Sadler property. Mr. West considered the Cook-McKee sale in 1966 to be for agricultural usage. He pointed out that the land involved in the Cook-McKee sale was not as good as Sadlers’ and that he would not have appraised it for $625 for agricultural purposes in 1966. On cross-examination he stated that the property is now being used to raise nursery stock and that its location with reference to the City of Greenwood did not affect its value at the time of sale in 1966. On redirect he pointed out that his reason for comparing the Sadler tract downward from the Cook-McKee sale, et al, was the fact that the Sadler tract was divided by an existing county road.

Based upon Mr. West’s testimony the Highway Department argues that the sale price in Cook-McKee was not a sale for a cattle ranch or pasture land use but a sale enhanced because of its location with reference to U. S. Highway No. 71, and that it sold for a different, higher and better use. Upon this basis the Highway Department argues that Mr. West’s testimony is not based upon comparable sales and therefore his testimony is not substantial evidence. We can find no fact testified to by Mr. West to substantiate the Highway Department’s contentions. In the Department’s cross-examination of Mr. West it made the same contentions but in each instance Mr. West pointed out that the Cook-McKee sale was for an agricultural usage and that the sale price was not affected by its location near the city of Greenwood and Highway No. 71 at the time of its sale in 1966. In the absence of any fact conclusively showing the contrary we can find no error on the part of the trial court in refusing to strike Mr. West’s testimony. It follows that his testimony was sufficient to sustain the judgment rendered.

THE A. E. KESNER TRACT

For reversal of the jury verdict of $8,500 for A. E. Kesner appellant relies upon the following points:

“III. The trial court erred in not striking the testimony of Glenn West as to values and damages on the A. E. Kesner property.
IV. The trial court erred in not striking the testimony of A. E. Kesner with respect to value and resulting damages on his property.”

The objection to Mr. West’s testimony here again involves the Cook-McKee sale which Mr. West described as comparable and which the Highway Department argues is not comparable. For the reasons stated above, we find no merit in appellant’s argument that Mr. West’s testimony on the A. E. Kesner property should be struck.

Appellant’s argument about Mr. A. E. Kesner’s testimony is that there was no substantial evidence to support the $375 to $400 per acre land values that he placed on his property. Mr. A. E. Kesner placed a before value of $85,000 on his 181 acres and an after value of $56,390. His land values were based upon the Woody-Brown sale, the Needham-Shields sale and the McKee nursery sale. The major portion of the NeedhamShields sale was woodland comparable to his woodland and sold for something over $600 per acre. Mr. Kesner estimated that he had some 50 to 55 acres of woodland.

Much of the appellant’s cross-examination of Mr. A. E. Kesner dealt with whether his lands were comparable to the sales used by him. We can find nothing in the testimony of Mr. A. E. Kesner to support appellant’s argument that his testimony as to land values and resulting damages could not be considered substantial to support a verdict. The same is true with reference to the suggestion that Mr. Kesner made no attempt to determine the amount of woodland he had on his property for purposes of valuation.

THE JERRY KESNER TRACT

For reversal of the $4,500 judgment for Jerry Kesner, appellant argues that Mr. West’s testimony on values and damages was not substantial because his conclusion on the difference between the before and after value of the property varied so much that it was impossible to actually tell what figure he testified was just compensation. The objection made at the close of Mr. West’s testimony on the Jerry Kenser tract was as follows:

“We at this time move to strike the value testimony given by Mr. Glenn West in connection with Tract No. 7, on the basis that he has given no substantial evidence to support the values which he has placed, or the damages he has placed, on this property.”

The record shows that Mr. Glenn West first testified for Dale Sadler; that without leaving the witness stand he testified for A. E. Kesner and also for Jerry Kesner, the property owner here involved. During cross-examination Mr. West realized that he had used the wrong figures in testifying and attempted to make some correction. Thereafter the following occurred:

“Q. We possibly made another mistake but it’s not enough to make an issue over. We’ll skip over it. You say that the damage that you have placed on this house is $6,000 and how much dollars?
A. Two Hundred and Sixty-five Dollars.”

At the close of Mr. West’s testimony the question was asked, “Been up there too long, haven’t you?” To which Mr. West answered, “Yes, Sir.”

As we view the record, this argument about the speculative nature of Mr. West’s testimony is made for the first time on appeal. For this reason it will not be considered here. Had the same argument been made in the trial court while Mr. West was on the witness stand and had his three appraisals before him, the matter could certainly have been straightened out if any confusion did exist.

POINT VI

The Highway Department’s point VI goes to all three judgments. It was a motion to quash the jury panel because one of the jury commissioners is a brother of one of the landowners in this suit. The Highway Department included 13 tracts in one complaint and Foy H. and Patricia Brown were the owners of tract No. 12. The record further shows that Mr. Red Browri, one of the commissioners selecting the jury panel, .is a brother of Foy Brown. The trial court passed Mr. Foy Brown’s claim to another term of court for trial before a different jury panel but refused to quash the panel with respect to the defendants here involved.

Ark. Stat. Ann. § 39-201 (Repl. 1962) provides that, “The circuit courts, at their several terms, shall select three jury commissioners who shall not be related to one another by blood or marriage within the 4th degree, who possess the qualifications prescribed for petit jurymen and who have no suits in court requiring the intervention of a jury.”

The qualification for a petit juror is set forth in Ark. Stat. Ann. § 39-102 (Repl. 1962) as follows:

“No person shall serve as a petit juror who is related to either party to a suit within the fourth degree of consanguinity or affinity. Provided, further, that any prospective juror who qualifies generally for service in a cause, and is found to be related within the fourth degree of consanguinity or affinity to any attorney engaged in the trial of the case may be peremptorily challenged for cause by any attorney or attorneys representing the other side of the case.”

Based upon the foregoing statutes, the Highway Department argues that Commissioner Brown did not possess the qualifications of a petit juror as set forth under Ark. Stat. Ann. § 39-102. The Department also argues the “Appearance of evil” — i. e., Caesar’s wife should be above suspicion. We find this contention without merit.

As we read the provision in Ark. Stat. Ann. § 39-201 (Repl. 1962) that jury commissioners must “possess the qualifications prescribed for petit jurymen,” it refers to the fact that petit jurors must be qualified electors of the county and from the area constituting a division thereof as described in Ark. Stat. Ann. § 39-208 (Repl. 1962). In Bowie v. State, 185 Ark. 834, 49 S. W. 2d 1049 (1932), we had a motion to quash a petit jury on the ground that one of the jury commissioners was not a qualified petit juryman within the meaning of Act 135 of 1931, providing that no citizen in this state shall be eligible to serve on either grand or petit jury of tener than one regular term of the circuit court every two years. We there held that a jury commissioner was not disqualified by having served on a petit jury within the preceding two years. Furthermore, in Commonwealth, Department of Highways v. Garland, 394 S. W. 2d 450 (Ky. 1965), relied upon by the Highway Department, the court there pointed out that in disqualifying a jury selected by a jury commissioner who had litigation pending in court, that the Kentucky court was not to be understood as saying that the jury commissioner was so disqualified as to vitiate every jury trial in the court during that term. In doing so the court quoted dictum from Sullivan v. Commonwealth, 260 Ky. 471, 86 S. W. 2d 135, as follows:

“. . . Of course, such juries [selected by a jury commissioner having an action pending requiring jury intervention] could not sit in the actions against the particular jury commissioner, but as to other proceedings, we think some prejudice or fraud must be shown before we would be at liberty to reverse a case for this reason.”

Affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    Pascal T. LAW v. Patricia Rich LAW
    5-5257
    455 S. W. 2d 854
    Opinion delivered June 1, 1970
    [Rehearing denied June 29, 1970.]

      Arnold, Hamilton &r Streetman, for appellant.

      Lester Dole, for appellee.
   Conley Byrd, Justice.

The sole issue on this appeal is whether a recited agreement in a divorce decree with reference to alimony is subject to modification. Upon a petition for modification and a petition for contempt, the trial court held that the agreement was an independent contract entered into by the parties not subject to modification, but found that it would be inequitable for the court to hold the defendant in contempt for failure to comply with the contract entered into because of failure to pay the arrearages.

The matter comes here on a partial record, Ark. Stat. Ann. § 27-2127.6 (Repl. 1962), containing only the original pleadings and the decree, together with the petitions for modification and the order of the court as aboved outlined. The original decree, after awarding custody of the eldest son to appellant Pascal T. Law and the three other children to appellee Patricia Rich Law, dismissed appellant’s cross-complaint and awarded appellee a divorce upon her complaint. The decree further recites:

“THE COURT FURTHER FINDS that the parties have reached an agreement for the settlement of their property rights and for support, maintenance and alimony which is fair and equitable as between the parties and which should be approved. The terms of such agreement and settlement are as follows:
1. The residence of Plaintiff and Defendant is presently held by them as tenants by entirety. The parties have agreed that the Defendant will convey his interest in such property to the Plaintiff.
2. The Defendant shall pay to the Plaintiff the sum of $550.00 per month for support and maintenance of said children and as alimony to the Plaintiff, such sum being allocated as follows:
A: As alimony for Plaintiff, $250.00 per month.
B. For the support and maintenance of Donna Law, Jennifer Law, and Jefrey Law, $100.00 per month for each.
G. The Plaintiff has agreed that out of such sum to be paid by the Defendant, she will make the payments on the mortgage indebtedness on the residence; make the remaining payments on a 1964 Buick Special automobile, which automobile is awarded to the Plaintiff; and that she will make the remaining payments due on the purchase price of a piano.
3. The 1964 Buick Special, presently in the possession of the Plaintiff, is awarded to her, together with the household goods, furniture, and equipment in the residence.
4. The Plaintiff is awarded the right to continue to reside in the residence presently occupied by her.
5. Support and maintenance payments for each of the three children hereinabove named, in the custody of Plaintiff, shall be continued so long as such child shall be in school or college attendance. At the end of such time, the $100.00 per month support and maintenance payment allocated to such child shall be eliminated from the payments made . hereunder to the Plaintiff, and the sum of $50.00 per month shall be added to the alimony payment due Plaintiff.”

By Ark. Stat. Ann. § 34-1211 (Repl. 1962), it is provided that when a decree shall be entered, the court shall make such order touching the alimony of the wife and the care of the children, if there be any, as from the circumstances of the parties and the nature of the case shall be reasonable. Section 34-1213 authorizes the court upon application of either party to make such alterations from time to time as to the allowance of alimony and maintenance as may be proper. Section 34-1214 directs that in every final judgment for divorce the court shall make an order with reference to a division of property.

Our cases, McCue v. McCue, 210 Ark. 826, 197 S. W. 2d 938 (1946); Seaton v. Seaton, 221 Ark. 778, 255 S. W. 2d 954 (1953); and Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409 (1953), recognize that the parties do not always leave to the court the determination of the property rights upon proof but that they often reach an agreement with reference thereto. These same cases recognize that some of the contracts with reference to alimony amount to an independent contract or agreement between the parties that is not subject to modification by the court and that other such agreements amount to nothing more nor less than an agreement as to what the court should put in its decree to avoid the taking of proof. The matter was stated in Lively v. Lively, supra, as follows:

“. . . Our cases hold that where a decree for alimony or support is based on an independent contract between parties which is incorporated in the decree and approved by the court as an independent contract, it does not merge into the court’s award and is not subject to modification except by consent of the parties. Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700, 129 Am. St. Rep. 102; McCue v. McCue, 210 Ark. 826, 197 S. W. 2d 938; Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d 439. Although a court of equity may decline to enforce payments due under an independent agreement by contempt proceedings where changed circumstances render such payments inequitable, the wife retains her remedy at law on the contract. Pryor v. Pryor, supra.
There is a second type of agreement in which the parties merely agree upon the amount the court should fix by its decree as alimony or support, without intending to confer on the wife an independent cause of action. This type agreement becomes merged in the decree and loses its contractual nature so that the court may modify the decree. Holmes v. Holmes, 186 Ark. 251, 53 S. W. 2d 226; Wilson v. Wilson, 186 Ark. 415, 53 S. W. 2d 990; Seaton v. Seaton, 221 Ark. 778, 255 S. W. 2d 954.”

Appellee, to sustain the holding of the trial court that the agreement involved here is an independent agreement not subject to modification, relies upon McCue v. McCue, supra, and argues that Mr. Law here was so anxious to marry his present spouse that he met with the respective attorneys and entered into the alleged independent agreement.

We are unable to agree with appellee because in the first place there is nothing in the record to show the facts which she argues. Furthermore, since the appellee was relying upon an independent contract the burden of proving the existence thereof was upon appellee, 17A C. J. S. Contracts § 579.

So far as the record here shows the only agreement reached by the parties is the recitals in the decree— i. e., the agreement was not otherwise reduced to writing. We can find nothing in the decree to indicate that the agreement reached was intended to be anything other than a stipulation as to the amount the court should fix for alimony. If the parties had intended otherwise, it would have been a simple matter to have so stated as was done in Armstrong v. Armstrong, 248 Ark. 835, 454 S. W. 2d 660, handed down this date.

Reversed and remanded.

John A. Fogleman, Justice,

dissenting. Applications made of easily stated rules relating to the subject matter before this court in this case and in Armstrong v. Armstrong, 248 Ark. 835 , 454 S. W. 2d 660, have done little to minimize the apparent conflicts in our decisions which the court, speaking through the late Chief Justice Griffin Smith, found so greatly in need of harmonizing. I have a feeling that the decisions in these two cases do less to allay the confusion than they do to intensify it.

The cardinal point in making the distinction between the two types of agreement discussed in the majority opinion is the effect of the particular agreement either to retain an independent cause of action on the contract or to merge the agreement into the court’s decree to the extent that it loses its contractual nature. See Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409. The fact that the contract is oral is of no real significance and language that independent contracts are usually in writing in our opinions is merely a recognition of custom. An attempt to adopt a judicial “statute of frauds” cannot be gathered from them.

I am unable to distinguish this case from McCue v. McCue, 210 Ark. 826, 197 S. W. 2d 938. There the decree recited:

“* * # it appearing to the Court by agreement upon the part of the plaintiff and the defendant that a property settlement has been made, * * * it is ordered that $25 per week be made to Lida B. McCue as permanent alimony * * * This decree is based upon property settlement and is a consent decree.”

Here the decree states:

THE COURT FURTHER FINDS that the parties have reached an agreement for the settlement of their property rights and for support, maintenance and alimony which is fair and equitable as between the parties and which should be approved.

Here, as there, there was no real contest, the divorce having been granted on the “testimony” of appellant and her mother’s corroboration. In treating the significance of the word consent in the McCue decree, we said:

To what could “consent” refer except that McCue and his wife had agreed upon what the husband would pay, how it should be paid, and over what period of time? The two could not have the divorce granted in consequence of mutuality, because of statutory inhibition and public policy.

I submit that there is a stronger case here for the independent contract found to exist by the chancellor than there was in McCue. There the decree for alimony was, in its own words, a “consent decree.” No such language appears in the decree before the court. The court in this case merely approved the agreement by which it could not have been bound. See McCue v. McCue, supra. There the decree recited: “* * # it is ordered that $25 per week be made to Lida B. McCue as permanent alimony.” Here, there is a total absence of any language directing the payment of alimony or indicating that the parties relied upon the powers of the court for enforcement. Even those words too often mistakenly treated as having occult effect in this regard —“which agreement is hereby incorporated -in this decree” — are significantly missing.

While the transcript does not include the testimony of witnesses and evidence submitted (as recited in the court’s decree) we should not presume that it does not support the court’s findings in this respect.

Our language in the McCue opinion is just as appropriate here as it was there:

We think the decree reflects this situation: The Chancellor required the minimum proof necessary under divorce laws, and in granting the decree exercised appropriate discretion. But in dealing with property rights it appears that the parties themselves, and their attorneys, reached an understanding. The Court had nothing to do with the method by which that result was arrived at. The suggested provisions could have been rejected; but that was not the Court’s purpose of policy nor was it the desire of Dr. McCue. If he and his wife were satisfied, evidence affecting ability to pay was unnecessary; and their agreement became a part of the decree. As to that phase of the litigation the Court relied upon representations. To say that the commitment on Dr. McCue’s part to pay permanent alimony of $25 per week was not his contract, but was due to the Court’s exercise of judicial discretion, would be to warp words and conduct to suit an undisclosed plan — the plan of a husband who told his attorney to proceed with the hearing, procure immediate results, but to stand by for a relief call when the occasion seemed inviting.
That part of the decree modifying the former allowance is reversed, with directions that all delinquent payments be made.

It seems that the Arkansas rule is decidedly a minority rule. See 24 Am. Jur. 2d 787, Divorce and Separation § 670 (1966), Annots., 58 A. L. R. 639 (1929), 109 A. L. R. 1068 (1937), 166 A. L. R. 675 (1947). The general rule is stated at 24 Am. Jur. 2d 787:

Although there is some authority to the contrary, it is the almost universal rule that where a court has the general power to modify a decree for alimony, such power is not affected by the fact that such a decree for alimony refers to, or is' based upon, or even incorporates, an agreement entered into by the parties to the action.

It seems that we have read an exception into Ark. Stat. Ann. § 34-1213 (Repl. 1962) without justification. The judicial hairsplitting that takes place in applications of our rule, decried by the late Chief Justice Smith in McCue, demonstrates the fallacy of our position. It is high time that this state take appropriate legislative or judicial action to eliminate this confusion prospectively by allowing modification of any allowance of true alimony, regardless of its basis.

It is superfluous to add that I would affirm the decree.

      See McCue v. McCue, hereinafter cited.


text:
    Billy REEDER v. STATE of Arkansas
    5496
    455 S. W. 2d 92
    Opinion delivered June 1, 1970

      Garner & Parker, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

The sole issue on this appeal by Billy Reeder is whether the trial court could suspend for three years a one year sentence assessed by the jury.

The record shows that the jury found Reeder guilty of operating a gambling house contrary to Ark. Stat. Ann. § 41-2001 (Repl. 1964) and fixed his punishment at one year with a recommendation that it be suspended. The trial court suspended the one year sentence for a period of three years.

The action of the trial court is authorized by Ark. Stat. Ann. § 43-2331 (Supp. 1969). That statute, being a part of Acts 1965, No. 438, § 1, provides:

“Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, the circuit court in which such judgment is entered, when satisfied that the ends of justice and the best interest of the public, as well as the defendant, will be served thereby, in addition to procedure set out in Act 76 of 1923, as amended, and Act 158 of 1945 (Ark. Stats. (1947) 43-2324 — 43-2326), the court may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.
Probation may be granted whether the offense is punishable by fine or imprisonment or both. If any offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment. Probation may be limited to one or more counts or indictments or information, but in the absence of express limitation, shall extend to the entire sentence and judgment.
The court may revoke or modify any condition or probation, or may change the period of probation.
The period of probation, together with any extension thereof, shall not exceed five (5) years. . .

We upheld the validity of Ark. Stat. Ann. § 43-2306 (Repl. 1964), permitting the trial court to assess punishment under certain circumstances, in Froman v. State, 232 Ark. 697, 339 S. W. 2d 601 (1960). Appellant has cited no authority holding the statute here involved invalid, which is similar to that customarily used by the federal courts. See Driver v. United States, (4 Cir. 1956) 232 F. 2d 418.

Finding no error, the judgment is affirmed.


author: Frank Holt, Justice.

text:
    Thomas W. CARROLL v. A. C. ROBINSON, Executor; McIlroy Bank of Fayetteville, Ark., Trustee
    5-5255
    454 S. W. 2d 329
    Opinion delivered June 1, 1970

      Little if Lawrence, for appellant.

      Wade, McAllister, Wade ir Burke, for appellees.
   Frank Holt, Justice.

Appellant is the sole heir of his father. He brought this action to have his father’s testamentary trust declared invalid and to have the estate distributed as intestate property, contending that the trust violates the rule against perpetuities and unduly restrains the alienation of property. The probate court found that the trust does neither and ordered the executor of the testator’s estate to deliver to the trustee, the appellee Mcllroy Bank, the estate’s assets. From that order appellant brings this appeal, and for reversal, reasserts his contentions.

The pertinent provisions of the testator’s will are:

“* # # the income is to be paid to my son, Thomas Walton Carroll, in monthly installments, during his lifetime, provided however that said monthly installments shall not exceed the sum of $500 per month; * * *.
4. If at the time of my son’s death, he has married and has a child or children under the age of twenty-one, then the income of the trust is to be paid to said child or children or their guardian in monthly installments, to be used for support, maintenance and education, until the youngest child shall have reached his or her twenty-first birthday.
b. When the youngest child, as set out in sub-paragraph 4 preceding, shall have reached his or her twenty-first birthday, or if the youngest child is already twenty-one years of age at the time of my son’s death, then the trust hereby created shall be terminated, and the Trustee shall convey, transfer and assign over to such child or children, share and share alike if there be more than one, all the properties, moneys or other things of value then remaining in my said trust estate.
c. If at the time of my son’s death he has not married and has no children, then the trust hereby created shall be terminated, and the Trustee shall convey” the remainder of the trust estate to certain named charities.

Subsequent to his father’s death, appellant married; and from that union a daughter was born. Appellant contends that the trust corpus vests in interest at the birth of any children he may have, subject to complete divestment if the youngest of his children fails to reach the age of twenty-one. As we understand his position, appellant argues that “youngest” child means “last born” child and from this concludes that if the youngest child should in fact die prior to attaining majority, the rules against perpetuities and the suspension of the power of alienation are both violated since the vesting of the trust corpus could thereby be delayed until the death of all his (appellant’s) surviving children. In other words, the right to the future possession of the trust corpus in this instance would revert to the testator’s estate and there remain in abeyance until the death of all of appellant’s children (an event which may occur far beyond the limit prescribed by the rule against perpetuities), at which time the trust corpus would then descend by way of intestate distribution.

We do not agree with appellant’s reasoning. It is well settled that a will should be given that construction which accomplishes the purposes and objectives of the testator and, further, that consideration must be given to every Dart of the will in ascertaining the testator’s intentions. Walt v. Bevis, 242 Ark. 644, 414 S. W. 2d 863 (1967). In Cross v. Manning, 211 Ark. 803, 202 S. W. 2d 584 (1947), we enumerated certain rules to be followed in construing a will, among which are the following:

“1. The paramount principle in the construction of wills is that the general intention of the testator, if not in contravention of public policy or some rule of law, shall govern.
2. That intent must be ascertained from the whole will taken together; and no part thereof to which meaning and operation can be given, consistent with the general intention of the testator, shall be rejected. Where the words of one part of a will are capable of a two-fold construction, that should be adopted which is most consistent with the intention of the testator, as ascertained by other portions of the will. * * *
* * *
8. When the expression which a testator uses is really ambiguous, and is fairly capable of two constructions, one of which would produce a legal result, and the other a result which would be bad for remoteness, it is a fair presumption that the testator meant to create a legal rather than an illegal interest . . . and therefore the fact that a provision would be too remote, if construed in a certain way, is a reason for supposing that it was not intended to be construed in that way, which, although it cannot avail against a clear form of wording, may well be held to govern when the expression is ambiguous.”

The testator began subsection (b) of his will with the qualifying clause: “When the youngest child * * * shall have reached his or her twenty-first birthday * * * [emphasis added] Use of the definite term “when” rather than a conditional “if” indicates to us that the testator intended this provision to be effective in the event that appellant should have any child or children attaining majority. This is made perfectly clear by subsection (c) which provides that if the appellant dies and “has no children,” then the remainder vests in certain named charities. This dispels any ambiguity, if any exists, as to the testator’s intent.

Manifestly, the latest time the future interest created by the trust will vest is when the youngest living child of appellant reaches twenty-one years of age. This period of time does not violate the rule against perpetuities and does not unduly restrain the alienation of property.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    ARK. POWER & LIGHT CO. v. E. L. LANTRIP
    5-5266
    454 S. W. 2d 652
    Opinion delivered June 8, 1970

      House, Holmes ir Jewell, for appellant.
    No brief filed for appellee.
   Carleton Harris, Chief Justice.

Arkansas Power and Light Company, appellant herein, condemned a right-of-way 462.9 feet in length, and 40 feet in width running parallel to and near the South boundary line of a 40 acre tract owned by E. L. Lantrip, appellee herein. This right-of-way is situated in the Southwest comer of the tract, and, beginning at a point about 25 feet north of that corner, runs easterly 462.9 feet. The taking also includes two strips of right-of-way, one 75 feet in length and 16 feet in width and the other 40 feet in length and 16 feet in width abutting against the larger taking for purposes of locating guy wires. The entire taking for this distribution line consisted of slightly less than one-half acre. On trial, the jury returned a verdict in favor of Lantrip in the amount of $7,000.00, and from the judgment entered in accordance with said verdict, appellant brings this appeal. For reversal, two points are asserted, first, that the trial court erred by refusing to give appellant’s requested instruction No. 10, and second, the verdict was not supported by substantial evidence and was excessive. We proceed to a discussion of each point.

Appellant offered the following instruction, which was refused by the court:

“Evidence has been introduced with respect to sale of other lands made in the general vicinity of the lands involved in this case. That evidence should be accorded the weight, if any, which you think it should have in determining- the market value of the tract or tracts of land with which you are concerned, as of the date of taking.

“In weighing that evidence you should take into consideration the facts and circumstances of such sales, as shown by the evidence, the relationship of the parties to such sales, the location, accessibility and quality of the lands so sold as compared to the location, accessibility and quality of the lands involved in this case, and any other established factors of similarity or dissimilarity, as shown by the evidence.”

We do not agree that the refusal to give this instruction constituted error. It is argued that in Baker v. City of Little Rock, November 3, 1969, 446 S. W. 2d 253, this court approved the instruction offered; that assertion is correct, but the circumstances were different from the case at bar. Of course, in the first place, the contention there was that the giving of the instruction constituted error, and we held the instruction to be proper under the evidence offered. However, we pointed out that this instruction was offered relative to direct evidence of comparable sales, rather than hearsay evidence of comparables, and Mr. Block described in- detail a sale handled by him which, in his opinion, was highly comparable. We said,

“Evidence of comparable sales and comparable values given by those having firsthand information may be introduced as substantive evidence going to the value of the subject lands. * * * * (citing cases) Instructions 13 and 14 were proper, at least insofar as they applied to any comparables not based on hearsay; whether they are otherwise applicable is not before us because a specific objection was not made.”

The question is now before us, but we do not agree with appellant’s position. Let it be remembered that evidence of comparables given by an expert based on hearsay evidence, is not evidence of just compensation to be considered by the jury, but rather, such evidence is only to show the basis of the expert’s opinion, and to aid in enabling the jury to better determine the weight that should be given his evidence. In Volume 5, Nichols’ The Law of Eminent Domain, § 21.3, there is a discussion of this subject, including the following comment:

“Upon the question whether the price paid at voluntary sales of land similar to that taken at or about the time of the taking is admissible as independent evidence of the value of the land taken there is a conflict of authority. It is held in most jurisdictions that such evidence is admissible. * * * *

“Such evidence is capable of direct proof; it has considerable probative value. * * * *

“The price paid for similar land, when admitted as independent evidence of value, must be proved with as much formality as any other material fact, and witnesses are not permitted to testify in regard to sales unless they were parties thereto, or were the brokers who effected the sale, or in some other- manner knew the price paid of their own knowledge, and not as a matter of common rumor or hearsay.”

In the case now before us, there was na evidence by any person purporting to have firsthand knowledge of sales which were considered comparable.

It follows that there is no merit in this contention.

Nor do we agree that there is -no substantial evidence to support the verdict. Following the testimony of the landowner, Mr. D. Thomas Cox, a realtor for 22 years in Pulaski County, testified on behalf of the landowner. Mr. Cox stated that he was familiar with property values in that particular area prior to March 1967, (date of the taking) and the 40 acres owned by Lantrip fronted on the east on the expressway access road of Jacksonville, and he valued the property (before the taking) at $160,000.00. Cox, who was apparently looking at a map,, stated:

“* * * this would be an ideal road for the subdivision going over to the access road of the expressway and commercial could be used on the access road and this would be prime for a residential development. Of course, this has affected the property and damaged it. I would say that part affected by this — putting this easement through there, the right of way —has reduced the value of the over-all 40 acres, is that what you want?”

Appellant complains that Cox does not use the words “fair market value”, and that he testified to- the overall value of the entire 40 acres after the taking, rather than the value of the remainder after the taking. This, says appellant, renders his testimony in this regard completely incompetent. It is true that the witness did not use the exact phrase mentioned by appellant, but there is no magic in those particular words. The important consideration is whether Mr. Cox actually used the proper approach. For instance, when he said -that the entire forty was worth $160,000 before the taking, and the forty was worth $150,000 after the taking, he was certainly, in effect, giving that as the value of the “remainder”. After all, this was not a taking in fee simple, but was only the condemnation of a right-of-way easement. Lantrip still owned the entire forty. It might be added that the jury was properly instructed relatives to before and after values.

Mr. Cox stated that the best use of the property on Lantrip Road was residential, and that the best use for that on the access road would be as commercial property. He mentioned a subdivision directly west of the Lantrip tract and stated that the subdivision was served with all utilities except sewer. He said it had been cleared, contained streets, and that a new house, built within the last six months, was within 200 feet of the Lantrip acreage. He added:

“Well, I think by the idea of the guy wires or highlines being there it affects this property to that extent. Not only that half acre but I think it affects property within a hundred or two hundred feet of it. It depreciates the value of that whole strip of land. And on each side it will. . . on the north side it will affect the value of that particular property and then to put a 50 foot street which is the minimum requirement by the county and the city and the Planning Commission, to put a 50 foot street there, then he’s going to have to acquire 25 feet south of him to put in a road through there to the access road of the Jacksonville Highway, which would come over his property there.”

Appellant apparently questions the qualifications of Mr. Cox, stating that Cox was not a Senior Real Estate Appraiser, and that Cox was not a member of the American Institute of Real Estate Appraisers, while its own expert, William Payne, was a Real Estate Appraiser, President of a mortgage company, a graduate Civil Engineer from the University of Arkansas, a graduate of various reál estate appraiser’s courses, a graduate of the School of Mortgage Banking at Northwestern University, a Senior Member of the Society of Real Estate Appraisers, and a member of the American Institute of Real Estate Appraisers and held a MAI designation.

It may be that, educationally speaking, Mr. Payne was better qualified than Mr. Cox, but it is not our function to determine which witness was better qualified, or which better demonstrated his knowledge of the property under discussion. That is a jury function, and we have no right to set aside its opinion except for legal reasons.

Appellant mentions that Cox did not offer any comparable sales in support of his opinion, but this was a matter that could have been easily handled on cross-examiation. In Sunray DX Oil Co. v. Thurman, 238 Ark. 789, 384 S. W. 2d. 482, we said:

“Appellant contends that the witnesses should have testified more specifically, and in more detail, as to how they reached these figures, but these facts could have been ascertained on cross-examination. Counsel did not interrogate Thurman on this point, and did not cross-examine O’Bier at all.”

Likewise, in Urban Renewal Agency of Harrison v. Hefley, 237 Ark. 39, 371 S. W. 2d. 141, this court said:

“The testimony of Carr, another real estate dealer, is challenged on the ground that he gave no basis for his expert opinion. As we pointed out in Ark. State Highway Comm. v. Johns, 236 Ark. 585, 376 S. W. 2d. 436, that opinion was admissible on direct examination. Counsel might have attempted to discredit the witness by showing through cross examination that he had made no reasonable basis for his conclusions, but no such effort was made.”

In the case before us, on cross-examination, counsel for appellant suggested that Cox had not used the proper method in arriving at his conclusions. When the witness inquired of counsel what method he should have used, the attorney replied? “comparable sales method”. The record then reveals the following:

“A. I’ve got some comparable sales. If you want them. You haven’t asked me that.
Q. No, I didn’t ask you.
A. Do you want some?
Q. What I’d like to know is just the factors that you considered on this property?
A. I’ve got to go into some comparable sales now if you want me to.
COUNSEL FOR APPELLANT
I believe that’s all I have.”

Appellant is hardly in a position to complain about the lack of comparable sales used by Cox when we consider the testimony just quoted.

Nor can we agree that the verdict was excessive. In Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S. W. 2d. 381, the same conention was made, but this court said that if the testimony .had any reasonable basis, though it might have seemed questionable, the jury was entitled to accept the valuations, and we could not say that the verdict was excessive, “being well within the range of damages testified to by witnesses for appellees”.

Finding no reversible error, the judgment is affirmed.

It is so ordered.

       & 1a Emphasis supplied.

      The language used by the witness very clearly conveys this impression. For instance, he stated, “well, this part is only affected. It wouldn’t affect the whole 40 acres.”

      b, c The italicized words are confusing since the transcript contains no plat or map.

      Cox had attended an appraiser’s school.

      We do not discuss Payne’s testimony inasmuch as we are only concerned with whether there was substantial evidence offered by appellee.


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    Charles SKINNER v. CITY OF ELDORADO et al
    5-5269
    454 S. W. 2d 656
    Opinion delivered June 8, 1970
    [Rehearing denied June 29, 1970.]

      Brown, Compton, Prewett ¿r Dickens, for appellant.
    No brief for appellees.
   George Rose Smith, Justice.

The questions on this appeal are whether the three individual appellees, Briggs, Robertson, and McAteer, had sufficient standing to appeal to the circuit court from a county court order annexing certain territory to the city of El Dorado, and if so, whether their appeal was taken in a timely manner. The circuit court sustained the validity of the appeal and modified the county court’s annexation order in a manner that is not questioned on the merits.

The city, after an election, filed a petition in the county court for the annexation of certain territory. On January 29, 1968, the county court granted the city’s petition. The county court attempted to insert in its description of the annexed territory a clause that would have excepted from the annexation a lot, 330 by 110 feet, on which the appellant Skinner has a grocery store and a filling station; but the court’s description of Skinner’s lot was void for indefiniteness.

On April 19, 1968, the county court entered a nunc pro tunc order correcting the description of Skinner’s property. On May 15, 1968, Briggs, Robertson, and McAteer filed their affidavit for appeal from the nunc pro tunc order. Later, on June 7, 1968, they also filed an affidavit for appeal from the county court’s original order of January 29. The circuit court, as we have said, entertained the appeal and modified the county court order by including the Skinner lot in the area being annexed to the city.

We consider first the standing of the three individual appellees to appeal from the county court orders. Those men — or at least two of them — had personally appeared in the county court and orally objected to the annexation, without success. Skinner now contends that the protestants’ failure to file a written pleading in the county court deprived them of any standing to appeal from the annexation orders. Skinner, in making that contention, relies upon this quotation from our opinion in Barnwell v. Gravette, 87 Ark. 430, 112 S. W. 973 (1908): “These remonstrants became parties to the proceedings in the way in which they were authorized by the statute to become so — that is, by filing a petition against the annexation within the time prescribed by the statute. Under the repeated decisions of this court in analogous cases, this made them parties and entitled them to take an .appeal.” Skinner argues that, as a corollary to the court’s reasoning in that case, these three appellees could not appeal from the county court orders because they did not file a petition against the annexation.

We do not agree. When the Barnwell opinion is read in its entirety, we think it sustains the circuit court’s decision in the case at bar. In Barnwell the protestants’ petition simply stated, as a conclusion, that they did “most positively protest and remonstrate against the granting of said petition” for annexation. This court went on to say: “No reasons, legal or otherwise, are alleged in the remonstrance against the petition. It is mere protest.” The court nevertheless held that the petition was sufficient to entitle the protestants to a hearing in the county court and to an appeal to the circuit court.

Our reasoning was simple. The statute, which has not been changed in this respect, provides that “any person interested may appear and contest the granting the prayer of said petition.” Ark. Stat. Ann. § 19-102 (Repl. 1968), which by reference is made the controlling statute by Section 19-507. In Barnwell the protestants did appear in the county court and contest the annexation, just as the appellees did in the case at bar. In Barnwell we pointed out that the protestants do not have to have reasons for attacking the annexation proposal, because the annexation is to be granted only if it be deemed right and proper in the judgment and discretion of the county court.

We think it plain that the Barnwell decision turned not upon the fact that the protestants filed a written petition, which actually said nothing, but upon the fact that they exercised their statutory right to appear and contest the annexation. That, indeed, was a sound approach to the issue, for in a matter of public interest the citizen’s right to be heard ought not to be fettered by technical rules of pleading unless the legislature has seen fit to impose such a requirement. We conclude that the appellees had the right to appeal from the county court orders.

There remains the timeliness of the appellees’ appeal to the circuit court. The original county court order was entered on January 29. The nunc pro tunc amendment was entered on April 19. The first affidavit for appeal was filed on May 15. If we assume, without deciding, that the time for appeal was thirty days (see § 19-307, supra; cf. Pike v. City of Stuttgart, 200 Ark. 1010, 142 S. W. 2d 233 [1940]), the question is whether the time runs from the date of the original order or from the date of the nunc pro tunc amendment.

Here we have no difficulty in sustaining the trial court’s conclusion that the time for appeal began to run anew from the date of the nunc pro tunc order. The facts demand that conclusion. The- appellee Robertson also owns a grocery store that was taken into the city by the annexation. The county court’s exemption of the Skinner property had the effect of allowing Skinner to operate his business on Sunday, while grocers within the city limits do not have that privilege. Robertson, however, had no reason to appeal from the original county court order, because the void description, which did not describe the excepted 330-by-110-foot tract with sufficient definiteness even to identify it as the Skinner lot, gave Robertson no notice that he was being adversely affected by the exception, in the order. It was not until the nunc pro tunc order was placed of record that Robertson had any basis for knowing of, and objecting to, the preferential treatment being given to Skinner. In fairness, his time for appeal should not be held to have already run before he was put on notice that the court’s order worked to his detriment. Hence, in such a situation, the time for appeal begins to run with the entry of the order that works the injury. Freeman, Judgments, § 139 (5th ed., 1925); Adamson v. Brockbank, 112 Utah 52, 185 P. 2d 264 (1947). In a parallel situation we have often held that an amended complaint which merely restates the original cause of action relates back to the filing of the initial complaint, as far as the statute of limitations is concerned; but an amendment that states a new and different cause of action serves as a new point for the tolling of the statute. Warmack v. Askew, 97 Ark. 19, 132 S. W. 1013 (1910).

Affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I do not agree with the construction given Barnwell v. Gravette, 87 Ark. 430, 112 S. W. 973, by the majority. Nor do I agree that appellees Briggs, Robinson and McAteer had any standing to appeal the county court order if the question had been raised in the trial court in a manner to bring it before us.

In order to have a proper understanding of the governing statutes, it must be borne in mind that there are two distinct procedures for attacks upon county court judgments annexing territory to a municipality. Arkansas Statutes Annotated §§ 19-303 — 307 (Repl. 1968) provide an independent proceeding in the circuit court wholly unrelated to appeals from the judgment by aggrieved parties. Pike v. City of Stuttgart, 200 Ark. 1010, 142 S. W. 2d 233. In Pike, it was held that appeals from such orders are governed by general statutes covering appeals from the county court. See Ark. Stat. Ann. §§ 27-2001 — 2007 (Repl. 1962 and Supp. 1969).

It is generally held that, in order to appeal from an order of the county court, one must become a party to the proceedings in the county court, and that one who fails to do so has no right of appeal. Holmes v. Morgan, 52 Ark. 99, 12 S. W. 201; Holford v. Kirkland, 71 Ark. 84, 71 S. W. 264; Turner v. Williamson, 77 Ark. 586, 92 S. W. 867; Pearson v. Quinn, 120 Ark. 610, 180 S. W. 476. See also Bailey v. West, 104 Ark. 432, 149 S. W. 511. The mere making and filing of an affidavit for appeal will not suffice. Holmes v. Morgan, supra; Holford v. Kirkland, supra. There are certain qualifications of this rule, but none is helpful to Briggs, Robinson and McAteer. First, when an aggrieved party’s motion to be made a party is wrongfully denied by the county court, he may be considered a party for the purpose of appeal. Garner v. Greene County, 229 Ark. 174, 313 S. W. 2d 785. Then, one whose pecuniary rights are directly involved, who has had no notice of the proceeding, may be considered a party having a right to appeal. Arkansas State Highway Commission v. Perrin, 240 Ark. 302, 399 S. W. 2d 287.

In the case before us, the record reflects that these parties filed nothing in the county court except affidavits for appeal. Even though Briggs testified on appeal that he “filed” objections, the record does not bear him out. Although he claimed to have had a petition containing 1,000 signatures, he never offered, filed or exhibited it in either court. It seems that appellant may have been one of these “objectors.” The objection of Briggs and his associates appears to have gone to the annexation, not to exclusions made or proposed. The objection, as stated by Briggs on appeal, seems to have been directed primarily at the timing of the election on the proposal to coincide with deer season. According to Briggs the signatures to the petition he had requested a new election. Certainly, this testimony does not bring Briggs, Robinson and Mc-Ateer into the category of parties who moved to be permitted to become parties to the proceeding in the county court.

Testimony of the appellees indicates that Briggs, Robinson, McAteer and Skinner are all owners of stores and that Skinner’s store would be excluded from the annexed territory by an exception in the county court order. This does not mean that the pecuniary rights of the other store owners were directly involved, so they could appeal without becoming parties to the proceedings. This may be done only when the private rights of the appealing parties are directly involved, but not when they are incidentally affected, however seriously. Turner v. Williamson, 77 Ark. 586, 92 S. W. 867.

The case of Barnwell v. Gravette, 87 Ark. 430, 112 S. W. 973, is not in anywise contrary to the authorities above cited, but is in accord therewith. I do not see how it gives Briggs, Robinson and McAteer any standing. In that case a petition, protesting and remonstrating against the annexation, signed by 21 persons describing themselves as freeholders living in an area proposed to be annexed, was filed one month prior to the date set for hearing on the annexation petition. Even though no reference was made to the remonstrance in the judgment for annexation, there was reference to the submission of the case and its final hearing one week thereafter. This court held that the circuit court erred in dismissing the appeal of three of these signers from the county court judgment on the ground that the protest was not sufficient to make them parties to the proceeding. No such action was taken by appellees here.

Inasmuch as the general statutes governing appeals from the county court control, the appeals were not untimely, having been within six months of the original order. Ark. Stat. Ann. § 27-2001 (Supp. 1969); Pike v. City of Stuttgart, 200 Ark. 1010, 142 S. W. 2d 233.

Still, I conclude that the circuit court judgment must be affirmed. Skinner’s motion to dismiss the appeal in the circuit court was based upon his contention that it was not in time. He did not challenge the standing of appellees Briggs, Robinson or McAteer. Although the City of El Dorado did challenge their standing, only Skinner has appealed. He is now barred from raising this question in this court. J. R. Wulff v. Davis, 108 Ark. 291, 157 S. W. 384.

Skinner’s grounds for reversal of the circuit court judgment simply question the standing of the individual appellees to appeal to the circuit court and to the timeliness of their appeal. Consequently, the circuit court judgment of annexation including his property must stand.

      It should be noted that relief under §§ 19-303 — 307 is limited to cases wherein requirements for annexation have not been complied with or the territory is unreasonably huge or small or is improperly described.

      The only real exception to the rule is the right of a citizen and taxpayer to appeal from allowances against a city or county without becoming a party to the proceedings, a guarantee provided by Art. 7, § 51, Constitution of Arkansas. Ladd v. Stubblefield, 195 Ark. 261, 111 S. W. 2d 555.


author: Lyle Brown, Justice.

text:
    FIDELITY-PHENIX INS. Co. v. Paula LYNCH
    5-5280
    455 S. W. 2d 79
    Opinion delivered June 8, 1970

      Wright, Lindsey if Jennings, for appellant.

      Gordon, Gordon if Eddy, for appellee.
   Lyle Brown, Justice.

Appellee Paula Lynch was the plaintiff below and recovered judgment as the result of a fall down the stairway in St. Anthony’s Hospital in Morrilton. The judgment was against Fidelity-Phenix Insurance Company, which covered the charitable hospital with public liability insurance. Fidelity-Phenix moved, for a directed verdict at the close of plaintiff’s case in chief on the ground that while the proof showed the landing at the top of the stairway was not built according to regulations, that construction was not shown to have been a proximate cause of Mrs. Lynch’s fall. The motion, which was overruled, was renewed without success at the close of Fidelity-Phenix’s case. The propriety of those rulings is the only question on appeal.

Evidence introduced by appellee reflected that Mr. and Mrs. Lynch visited a sick friend on the second floor; that they left the hospital by the same route they entered, using a flight of stairs; and that appellee fell down the stairs after passing through a door which opened onto the stairs. As the couple started down the steps they were headed south, and the door was hinged to their right. Naturally the door had to be by them pushed forward and out over the stairs. There was no landing on the stairs side, or south side, of the door. As one stepped through the door, instead of stepping on a landing the same level as the- floor on the north side of the -door, he stepped down to the first step of the stairway. The riser of the first step was flush with the door opening. The described construction was in violation of state health department regulations which required the floor level of the corridor of the second floor to be maintained on the stairway side of the door for a descending distance equal to the width of the door.

Alton Lynch described his wife’s fall in these words:

And as I put my hand up on the door to push it open, I had my hand probably above the flash plate — or buffer plate — the push plate on the inside of the door, which would be the north side of the door. I pushed the door open, I would say at least 45 degrees. * * * Whether or not my wife had her hands on the door, I cannot say for certain, but the door was in the —open, and by her being ahead of me, I was at a standstill holding the door. She stepped —I believe she stepped with her left foot. She went down; and with one continuous movement as she stepped. * * *
Q. She started to take the step and started falling head long down the steps?
A. It was just in outer space. I didn’t have time. Of course, I-had one of-my hands on the door. I don’t know for sure which hand I had holding the door open, but she stepped, and she was gone; and I didn’t have an opportunity to grab. She was just there- in outer space, you might say, and went down the steps and -hit just once half way to the bottom, half way down those steps, and seemed like the next time she hit it was at the bottom of the steps, the landing.

Appellee’s description of the fall on direct examination was very brief. She testified that as they ascended the stairs to the second floor she did not observe the absence of a platform; that she had never before used this particular passageway; that she pushed the door and started to step and “I just fell”; that she started with her left foot but made no contact; that “I just fell and I landed at the bottom of the steps”; and that she had no recollection of catching her heel or slipping on any object.

On cross-examination appellee was questioned at length about her precise movements immediately preceding the fall:

Q. Did you place your left foot on the first step down?
A. I started to — if I — I fell, just like I started to step and fell in a hole.
Q. Mrs. Lynch, did you place your foot on the first step down?
A. I couldn’t tell you if it depended on my life.
Q. Did you tell me on August 25 in Mr. Gordon’s office, before a court reporter, . under oath, that you did step with your left foot on the first step down?
A. Yes. I said that.
* * *
Q. Were you confused at all about that?
A. Yes, I’m confused until this day what caused me to fall.
* * *
Q. I said, ‘And you could see a step down? And you put your left foot down one step, is that correct?’ And your answer was, ‘Yes.’ Now, is that your testimony?
A. If it’s down there, I said it. But something happened to that first step when I stepped down. I don’t — I mentioned I didn’t know whether it was a narrow step or what, but something happened with that first step.’
* * *
Q. My question is: Having seen the top step, did you take your left foot, as you said here [discovery], in answer to several questions, did you take your left foot and place it down on that top step and fall?
A. Well, I took a step with my left foot, and I fell, I don’t know what happened. I don’t know whether I hit the step, or the middle of the step, or where I hit it. I just don’t know.

Appllant emphasizes the difference in appellee’s statements made on discovery and in her courtroom testimony. The essential difference is apparent. On discovery she testified that she placed her left foot on the first step down and fell, the cause 'of the fall being unknown to her. At the trial she stated on cross-examination that she did not know whether her foot ever made contact with the first step. The discrepancy was a factor for the jury’s consideration in passing on appellee’s credibility and in its search for the truth. It creates no ground for our disturbing the verdict. Magnolia Petroleum Co. v. Saunders, 193 Ark. 1080, 104 S. W. 2d 1062 (1937).

Appellant contends that there is no established connection between the absence of a landing at the head of the stairs and the fall experienced by appellee. It is emphasized that appellee did not know what caused her to fall and hence the conclusion of the jury on that score must rest solely on guesswork.

A safety engineer testified as to the regulatory requirements concerning a landing on the stairway side of the door and level with the corridor on the other side. He described the safety feature of the requirement:

On the stairways, you never know, if you’ve a door that you can’t see through, what’s on the other side. When you go through a door the purpose of the landing is to give you room to go out of the door, handle the door, close it. You have room to look at the environment. It is a protection to get you beyond the door.

When one examines the testimony of appellee’s husband in the light most favorable to the jury conclusion, we think its finding of causation was reasonable. The jury could well have found from that testimony that appellee stepped into open space. “She went down and with one continuous movement as she stepped.” He testified that her first contact with the steps was half way down the stairs. Similarly, on direct examination, appellee insisted that when the door opened she put her left foot forward, made no contact, and started falling. “I started with my left foot and didn’t make contact.” From appellee’s testimony itself the jury could have concluded that the fall so frustrated her that she actually did not know the details of the incident. Still the jury had the testimony of the only other eyewitness who recounted the incident with apparent clarity. There was also evidence from which the jury could have concluded that appellee was walking at a normal gait, wearing low heels, and did not trip or slip on any object.

Had St. Anthony’s hospital conformed to the safety regulation it would have installed a platform extending the width of the door and south a distance also equal to the width of the door. A failure to install the platform was evidence of negligence. The jury simply concluded that a platform of those dimensions would more than likely have prevented appellee from stepping into open space and thus averted the fall. The regulation was designed, according to the engineer, to prevent the very incident that occurred in this instance.

If appellee’s evidence afforded a reasonable basis for the conclusion that it was more likely than not that the failure to install the platform was a substantial factor in causing her to fall, then she met her responsibility of proving causation. Prosser, Torts (3rd Ed. 1964), at page 245. Continuing on page 246 the same authority states:

He [plaintiff] need not negative entirely the possibility that the defendant’s conduct was not a cause, and it is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. * # * If as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists.

All of the evidence we have recounted was in the record when appellant moved for an instructed verdict at the close of plaintiff’s case. The only. evidence offered by appellant was a portion of appellee’s discovery deposition, which was cumulative because appellee had been cross-examined relative to the same questions and answers. What we have said is equally applicable to both of appellant’s motions — the motion for an instructed verdict when appellee rested her case and the same motion at the conclusion of the entire case.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Charles JOHNSTON et al v. Ruth Johnston SMITH
    5-5298
    454 S. W. 2d 649
    Opinion delivered June 8, 1970

      Henry Ginger, for. appellants.

      Barrett, Wheatley, Smith ér Deacon, for appellee.
   John A. Fogleman, Justice.

The question involved on this appeal is the propriety of allowance of attorney’s fees to a party seeking and obtaining partition of real estate.

Appellee Ruth Johnston Smith, the widow of A. J. Johnston, brought an action for partition of lands owned by him at the time of his death. Appellants, who were devisees and a widow and heirs of a deceased devisee under the will of A. J. Johnston, were named as defendants. The devise of the lands involved under which appellants claimed was made subject to the homestead and dower rights of appellee. In her complaint, appellee alleged that she was entitled to an undivided one-half interest in the lands as dower, because her late husband had no descendants, and to homestead rights in the remaining one-half. She alleged impossibility of partition in kind and prayed that the lands be sold for partition. She also asked payment of her counsel from the proceeds of sale.

Appellants filed answer denying that the devise of the lands was made subject to appellee’s rights of dower and homestead, that she was entitled to dower and homestead as claimed in her complaint and that partition in kind was impossible. They admitted that A. J. Johnston left no descendants. The answer of a guardian ad litem for one of the appellants, who was a minor, was a general denial.

A partition decree was rendered, in which the chancery court’s findings sustained the allegations of the complaint, but only one-half of the proceeds of sale were to be distributed to appellee and the remaining one-half to appellants. The court expressly reserved the matter of allowance of attorney’s fees.

After the sale, appellee filed her petition for allowance of attorney’s fees, alleging that after the filing of answers, she had elected to waive her homestead interest and that the partition decree entered was acceptable to all parties. In their response to this petition, appellants admitted that the devise was made subject to the dower and homestead rights of appellee (as the will clearly stated), but they alleged that no attorney’s fees were allowable because the proceedings were adversary to the extent that appellee’s interest in the land was disputed and the court’s decree fixed a lesser interest than she had claimed.

After a hearing the chancellor found that no controverted matter was submitted to the court for decision and that the decree was entered by consent of counsel. The court also found that all parties, after negotiations between them for private sale or purchase of divided interests, agreed to a public sale. The court held that appellants were benefitted by the proceeding, that Act 518 of 1963 applied, and that an attorney’s fee of $500 should be taxed as costs and paid pro rata by all parties.

For reversal of the decree allowing attorney’s fees, appellants argue that they were not chargeable with such fees for the reasons stated in their response, and because appellee’s claim of homestead was excessive making appellants’ employment of an attorney to resist the claim necessary.

Appellants rely upon Lewis v. Crawford, 175 Ark. 1012, 1 S. W. 2d 26, Ramey v. Bass, 210 Ark. 1097, 198 S. W. 2d 835, Warren v. Klappenbach, 213 Ark. 227, 209 S. W. 2d 468, Hendrickson v. Duncan, 236 Ark. 722, 370 S. W. 2d 131 and Guynn v. Guynn, 237 Ark. 668, 375 S. W. 2d 656, in all of which the proceedings were instituted at a time before Act 518 of 1963 was effective. For this reason their application in this case is limited. We recognized the possible effect of this later act now appearing as Ark. Stat. Ann. § 34-1825 (Supp. 1969) amending the act then digested as § 34-1825 (Repl. 1962) and applied in the above cases. In those cases, the earlier act’s language that “it shall be lawful” to allow such fees was held to vest the allowance of such fees in the discretion of the court, and that this discretion was abused by allowance of fees in proceedings which were actually, not just formally, adversary.

Appellee argues persuasively that the allowance in this case could be sustained, even under the old statute. This argument is based largely upon the holding in Guynn v. Guynn, 237 Ark. 668, 375 S. W. 2d 656, where the parties entered into a stipulation resolving an issue as to the respective interests of the parties after commencement of a trial upon the issue of susceptibility of the lands to partition in kind, and the latter issue was determined from a report of the court’s commissioners to- which no objection was made. The allowance there was sustained as a proper exercise of discretion upon the dual basis that the services rendered resulted in a benefit to the whole subject matter and that the objecting parties acquiesced in the proceedings, except as to the attorney’s fee.

We need not dwell upon the question whether the court’s action would have been proper under the statute treated in the cases cited by appellants, because the language of the act now makes the allowance of fees mandatory, taking the matter out of the trial court’s discretion. The statute now reads:

Hereafter in all suits in any of the courts of this State for partition of lands when a judgment is rendered for partition in kind, or a sale and a partition of the proceeds, the court rendering such judgment or decree shall allow a reasonable fee to the attorney bringing such suit, which attorney’s fee shall be taxed as part of the costs in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned.

It is generally recognized, in jurisdictions having statutes containing mandatory words similar to those in our present statute, that the adversary nature of the proceedings is no bar to the allowance of attorney’s fees for the services of the attorney bringing the suit, and that failure or refusal to allow such fees is error. Clement v. Ferguson, 287 P. 2d 207 (Okla. 1955); Sarbach v. Newell, 35 Kan. 180. 10 P. 529 (1886); Fibbe v. Poland, 240 Ohio App. 532, 157 N. E. 808 (1927); Foureman v. Foureman, 82 Ohio App. 380, 80 N. E. 2d 266 (1947); Donaldson v. Allen, 213 Mo. 293, 111 S. W. 1128 (1908); Jennings v. Jennings, 225 Mo. App. 1010, 33 S. W. 2d 165 (1930); Cappucio v. Caire, 207 Cal. 200, 277 P. 475 (1929), 215 Cal. 518, 11 P. 2d 1097 (1932); Randell v. Randell, 4 Cal. 2d 575, 50 P. 2d 806 (1935); Plant v. Fate, 114 Iowa 283, 86 N. W. 276 (1901); Murray v. Conlon, 19 Mont. 389, 48 P. 743 (1897). It is true that some jurisdictions have placed limitations upon the services for which compensation is to be allowed, usually because of variance in the wording of statutes. For example, some jurisdictions hold that fees are to be allowed only for those services which would have been rendered in a partition proper or in a non-contested suit. See Donaldson v. Allen, supra, and Jennings v. Jennings, supra. Others limit the services considered to those found to be for the common benefit of the parties in interest. See Watson v. Sutro, 103 Cal. 169, 37 P. 201 (1894); Cappucio v. Caire, supra; Randell v. Randell, supra; also Riley v. Turpin, 53 Cal. 2d 598, 349 P. 2d 63, 2 Cal. Rptr. 457 (1960), wherein it is indicated that services excepted by the statute apply only when controversial litigation arises between some but not all parties.

Justification for these statutes has been found in the importance of painstaking preparation before filing of the suit and the necessity for meticulous compliance with procedural requirements thereafter in order to assure that all parties in interest are before the court and that there are no unnecessary impediments to a proper conclusion of the proceeding. These measures obviously inure to the benefit of those owning any share of the property. To require the cotenant who institutes the action to bear more than his proportionate share of this burden is inequitable. The preamble to Act 518 of 1963 clearly indicates our General Assembly’s awareness of the inequitable burden risked by one initiating a partition suit and its intention to remedy the situation by amendment of the existing law. Dissatisfaction with the discretionary latitude of the trial courts in allowance of these expenses was expressed in the emergency clause. If there remains, after reading the text of the act, the slightest doubt of the legislative intention to make allowance of attorney’s fees in a partition suit mandatory, it is quickly dissipated by reading the introduction and conclusion of this legislative record.

In view of the finding of the chancellor as to common benefit and the reasonable amount of the allowance, we find it necessary to give a definitive answer only to the specific contention of appellants and do not reach the task of establishing the boundaries limiting such allowances in other cases.

The decree is affirmed.

Byrd, J., dissents.


text:
    ARK. STATE BOARD OF PHARMACY v. Aud Earl WHAYNE et al
    5-5284
    454 S. W. 2d 667
    Opinion delivered June 8, 1970

      Warren & Bullion, for appellant.

      Brown, Compton, Prewett ir Dickens, for appellees.
   Conley Byrd, Justice.

Appellant Arkansas State Board of Pharmacy, pursuant to Ark. Stat. Ann. § 72-1040 (Supp. 1969), revoked the pharmacist’s licenses of Aud Earl Whayne and Gene W. Porter, Sr., on the asserted grounds that they had aided and abetted the practice of pharmacy by a person not authorized to practice pharmacy by the Arkansas State Board of Pharmacy, such person being Suella Hull. On review pursuant to Ark. Stat. Ann. § 5-713 (Supp. 1969), the trial court held that the activities of Suella Hull did not constitute the practice of pharmacy and therefore reversed and dismissed the charges against appellees Aud Earl Whayne and Gene W. Porter, Sr. For reversal appellant in its statement says:

“The principal issue presented is whether one who interprets physicians prescriptions for dangerous drugs and types labels for prescription drugs which give the directions for taking the drug is performing one of the functions of a pharmacist contrary to Arkansas Statutes restricting to licensed pharmacists the right to ‘fill prescriptions, compound and dispense drugs and medicines or otherwise perform the duties and functions of a registered pharmacist.’ ”

Mrs. Hull’s activity behind the prescription counter with respect to refill prescriptions and new prescriptions is set forth in her affidavit as follows:

“[W]ith reference to any work done by me behind the prescription counter the following is my routine and is under the direction and supervision of either Mr. Porter or Mr. Whayne:

1. A customer requests from one of the pharmacists, one of the other ladies who work in the store or myself a refill of a prescription. This request may be received in person or by telephone. The person receiving the request obtains the prescription number and the name of the person for whom the medication is prescribed. This information is written in the appopriate spaces on the outside of a receipt bag by the person receiving the order.
2. The prescription receipt bag is then handed to me by the person in the store who took the order.
3. Our prescriptions are filed numerically and in stacks of one hundred (100). I remove from the prescription files the appropriate prescription file which contains the prescription number ordered.
4. I then take a Medic Pharmacy prescription label and type in the appropriate spaces the prescription number, the name of the prescribing physician, and the name of the patient, the prescribing physician’s directions, the initial of the pharmacist on duty and the date.
5. I then lay the prescription receipt bag, the prescription file opened to the appropriate prescription, and the label as typed by me on the prescription counter, stacked in the order herein recited, i. e., the typed label on top.
6. After the pharmacist fills the prescription, he places the label on or in the container, enters the price on the prescription receipt bag and places the container on the top of the prescription receipt bag. I enter the tax and total charges in the appropriate places on the prescription receipt bag and place the container in the prescription receipt bag.
7. I then hand the prescription receipt bag to one of the ladies in the front of the store and they, in turn, deliver the prescription receipt bag containing the order to the patient and collect the charges shown.
8. At no time do I ever place a label on a prescription container.
9. After the prescription has been filled by the pharmacist, I return the prescription file to the appropriate files.
10. As to new prescriptions, if such is handed to me by a customer or one of the ladies who work in the front of the store, I follow the following procedure:
(a) I stamp the assigned number on the new prescription; at the same time, I stamp the same number on a Medic Pharmacy label and a Medic Phamacy prescription receipt bag. This is done with a numbering machine which is set to stamp the same number three times.
(b) I then take the numbered Medic Pharmacy prescription label and type in the appropriate spaces the name of the prescribing physician, the name of the patient, the prescribing physician’s directions, the initial of the pharmacist on duty and the date.
(c) I then lay the prescription receipt bag, the new prescription and the label as typed by me on the prescription counter, stacked in the order herein recited, i. e. the typed label on top.
(d) I then follow the procedures outlined in paragraphs six; seven and nine of Section IV of this affidavit.
(e) At no time do I ever place a label on a prescription container. I do not count, compound or place in container any medications prescribed by a physician for a patient.

Appellant controverts Mrs. Hull’s affidavit in three respects — i. e., (1) It contends that the evidence of its inspector Mr. Woodrow Little constitutes substantial evidence that Mrs. Hull with the knowledge and consent of Whayne and Porter affixed labels to drug containers; (2) that Mrs. Hull would go back into the medicine department and obtain the bulk container of the drug called for in the prescription and set the drug container on the prescription, apparently for the convenience of the druggist; and (3) that Whayne and Porter both freely admitted that Mrs. Hull interpreted the directions on prescriptions and typed them on the label. Appellees argue that items 1 & 2 are not supported by substantial evidence under the record here involved and that item number 3 — i. <?., that Mrs. Hull interprets the direction on prescriptions — is not supported by the record.

For purposes of this decision and without determining whether the evidence is substantial, we will treat the record as establishing that with respect to refill prescriptions Mrs. Hull does affix or place in the container the prescription labels before the prescription is filled by the druggist. We also assume that the evidence shows that Mrs. Hull does go back into the medicine department and bring forth the bulk drug and set on the label prior to the filling of the container by the druggist.

However, the record does not sustain appellant’s contention that Mrs. Hull interprets the directions on the prescriptions. In this respect Mr. Whayne on cross-examination testified:

“Q. When you take a prescription in and she stamps it how do you determine whether that is a controlled drug or just an ordinary prescription?
A. I would do that.
Q. Who is going to determine on telephoned in prescriptions does she take those?
A. I take all of them over the telephone.
Q. Who is going to interpret the directions?
A. I write the prescription out and lay it down.
Q. She interprets the directions on the prescriptions and types them on the labels?
A. She reads them herself.
Q. She reads them herself and types the directions on labels?
A. Yes Sir.”

The only description of the duties of a pharmacist is that given in Ark. Stat. Ann. § 72-1011.8 (Repl. 1957), as follows:

Any person who is not an Arkansas registered pharmacist or a licensed ‘Practical Druggist,’ or a student serving internship, who shall fill a prescription, compound or dispense medicine or otherwise perform the functions of a pharmacist, shall be guilty of a misdemeanor punishable by a fine of not less than fifty ($50.00) dollars, nor more than one hundred ($100.00) dollars for the first offense and not less than one hundred ($100.00) dollars and/or thirty (50) days imprisonment for each succeeding offense thereafter. Each day that such person shall fill prescriptions, compound, dispense medicines or otherwise perform the functions of a pharmacist shall constitute a separate offense. Any registered pharmacist or licensed ‘Practical Druggist’ who shall aid, abet or encourage any person to violate the provision of this section shall have their certificate of registration or their permit revoked or suspended, within the discretion of the Board of pharmacy.” (Emphasis supplied)

Appellant here contends that Mrs. Hull’s activities come within the phrase “or otherwise perform the functions of a pharmacist.”

In Arkansas State Board of Pharmacy v. Patrick, 243 Ark. 967, 423 S. W. 2d 265 (1968), the evidence showed that a Mrs. Hughes not only filled a prescription, typed the name on the label but also placed the label on the filled package and handed it to the Pharmacy Board’s investigator. We there pointed out that in order to place the proper label on a filled container some knowledge of drugs was necessary and held that the affixing of the label to a filled container constituted the practice of pharmacy in violation of Ark. Stat. Ann. § 72-1040(5). However, it appears to us that the affixing of a label to an empy container for the proposed use by a licensed pharmacist is not subject to the same construction. In the latter case the clerk performs only a mechanical function and needs no knowledge whatever of the nature of the drugs involved or their effect upon a patient in the event the pharmacist himself makes an error in checking the label against the prescription placed there for his convenience as a time saving procedure.

Appellant has cited us no authority other than the Patrick case to sustain the position it here takes. Our research reveals no cases reaching as far as appellant argues and we certainly do not believe that the statute which applies only to persons “who shall fill a prescription, compound or dispense medicine or otherwise perform the functions of a pharmacist” can be so extended by judicial construction to make the conduct of Mrs. Hull a violation of the law under the statute above.

Affirmed.


text:
    Benny A. RINKE et ux v. John Woodrow SHACKLEFORD
    5-5231
    455 S. W. 2d 83
    Opinion delivered June 8, 1970
    [Rehearing denied June 29, 1970.]

      U. A. Gentry, for appellants.

      /. H. Carmichael, Jr., for appellee.
   Frank Holt, Justice.

This is a suit by the appellee to quiet title against any right, title, claim or interest of the appellants in certain lands and to confirm the title in appellee. The facts are not disputed.

Prior to 1915, the lands in question were owned by George E. Cockmon. In that year they were sold to the State of Arkansas for the nonpayment of taxes and subsequently conveyed, in 1918, by way of tax deeds, to Paul A. Birnbach. In 1919 Birnbach conveyed the property by quitclaim deed to F. A. Rinke and Bruno Rinke as tenants in common. On January 11, 1955, F. A. Rinke was adjudged mentally incompetent, committed to an institution, and remained incompetent continuously from that date until his death on January 28, 1965. He died intestate. Subsequently, Benny A. Rinke, appellant, acquired all the rights of the widow and heirs of F. A. Rinke.

Appellee bases one of his claims to title on various tax deeds which were issued either to John D. Shackle-ford, his uncle and predecessor in title to part of these lands, or to himself. Most of the lands claimed by appellee were acquired from the State consequent to the failure of the Rinlces to pay taxes in 1923 and 1931. Five of the constituent lots, however, were forfeited and sold for the delinquent taxes of 1937 — i. e.-, two years subsequent to the adjudication of F. A. Rinke as an incompetent.

John D. Shackleford, appellee’s uncle, instituted a suit in 1933 by an ex parte proceeding in the Pulaski Chancery Court resulting in a decree confirming title in him to all the lands constituting the subject matter of that suit and which now comprise most of the lands involved in the instant suit. (This confirmation of title did not, of course, include the five lots sold for taxes in 1937 and later purchased from the State by appellee.) Appellee acquired his uncle’s interest in 1937 through a devise from him. In 1938 appellee fenced all the property in question and since then has occupied, paid taxes upon, and improved the property, using it as a dairy farm.

In his initial pleadings and proof, appellee asserted title by virtue of the tax deeds purchased by his predecessor in title, John D. Shackleford, and reinforced by the 1933 confirmation of title; by virtue of the tax deeds which he, himself, purchased; and, also, on the theory of adverse possession coupled with payment of taxes and color of title therefrom. Appellee- also submitted a 1965 quitclaim deed from Annie Cockmon and Claudia L. Cockmon Berthe reciting the former to be the unremarried widow of George E. Cockmon (the record owner of these lands prior to 1915) and the latter to be his sole heir at law. Proof as to the invalidity of the 1915 tax sale, through which appellants claim title, was also adduced by the appellee.

Appellants responded and attacked the validity of appellee’s tax title. Appellants also asserted that, even though appellee’s tax title be valid, the appellants have the right to redeem those five lots which were forfeited for the 1937 taxes, subsequent to the incompetency of F. A. Rinke. After initial trial of the case, appellee, with leave of the court, reopened the case over appellants’ objections and introduced muniments of title, independent of the tax titles, prior to and including his recently acquired Cockmon quitclaim deed, in an effort to prove further deraignment of title from the United States Government.

From the evidence presented, the trial court found that appellee is the owner and in actual possession of said lands; that appellee had established good title in himself by deraignment from the United States Government; that the 1933 ex parte decree vested title to most of the lands in appellee’s uncle and that appellee has inherited these lands from his uncle; that no one occupies the lands adversely to appellee; that the deed from the State of Arkansas to Paul Birnbach executed for the delinquent taxes of 1915, from which deed appellants derive their claim of title, is void and a cloud on appellee’s title; that the entire property is fenced and that appellee has adversely occupied and possessed the lands in question and paid taxes thereon for more than seven (7) years last past and has built and maintained improvements thereon. The court denied appellants’ motion to strike appellee’s further proof of deraignment of title and quieted and confirmed title in appellee. From that decree comes this appeal.

Appellants contend that even though their tax title be considered void, the appellee can prevail only on the strength of his own title in a suit to quiet title. Corn v. Arkansas Warehouse Corp., 243 Ark. 130, 419 S. W. 2d 316 (1967); Griffin v. Isgrig, 227 Ark. 931, 302 S. W. 2d 777 (1957); Coulter v. O’Kelly, 226 Ark. 836, 295 S. W. 2d 753 (1956); Meyer v. Snell, 89 Ark. 298, 116 S. W. 208 (1909). Although this proposition is unquestionably correct, it is equally well recognized that a plaintiff in such a suit, having shown his- chain of title, may prove the invalidity of a tax sale which constitutes a cloud thereon. See Patterson v. McKay, 199 Ark. 140, 134 S. W. 2d 543 (1939). Furthermore, the invalidity of appellants’ title, if asserted and proved by the true owner of the lands (rather than simply a successive tax deed holder), would preclude redemption of the five lots forfeited for the 1937 delinquent taxes which was subsequent to F. A. Rinke’s adjudicated incompetency. Smith v. Thornton, 74 Ark. 572, 86 S. W. 1008 (1905). Appellants assert that even if appellee has proved his title to the lands in question by way of tax deeds or adverse possession, appellants nonetheless retain their right to redeem these five lots which appellee acquired during Rinke’s incompetency. In other words, appellee can only prevail with regard to all the lands here in issue by proving title in himself by deraignment from the United States Government.

We do not agree with appellants’ contention that the trial court erred in permitting the appellee to reopen the case for the purpose of introducing further proof of deraignment of title. Since the granting of a new trial, even though the law does not provide for such a motion in chancery cases, is within the sound discretion of the trial court [Barton-Mansfield Co. v. Richardson, 190 Ark. 612, 80 S. W. 2d 60 (1935); Hawkins v. Bradley, 178 Ark. 1073, 13 S. W. 2d 291 (1929)], a fortiori the simple re-opening of a case prior to judgment should not be declared error absent manifest abuse of discretion. None is here shown.

Appellants also contend that, upon re-opening of the case, the court erred in admitting into evidence the various deeds and other exhibits demonstrating deraignment of title. Appellants assert that this evidence was outside the scope of the pleadings. The trial court correctly answered such objection by stating that a plaintiff “can amend his complaint to conform to the proof.” Roberts v. Burgett, 209 Ark. 536, 191 S. W. 2d 579 (1946). Ark. Stat. Ann. § 27-1155 (Repl. 1962) authorizes such procedure as follows:

“No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.”

This statute proceeds to note that the párty claiming prejudice because of a variance in proof must demonstrate such prejudice to the satisfaction of the court; and it has long been established that, “unless there has been a manifest abuse of discretion and the complaining party has been materially prejudiced thereby,” this court will not disturb the ruling of the trial court. Rucker v. Martin, 94 Ark. 365, 126 S. W. 1062 (1910). In the case at bar, no abuse of discretion by the court' or prejudice to appellants is demonstrated. In fact, the appellants rejected, as will be discussed later, the court’s offer to permit them to further investigate the proffered evidence.

In considering whether appellee has sufficiently shown his title to the land, we note that the only real question involved is whether Annie Cockmon and Claudia L. Cockmon Berthe-were in fact the successors in title to George E. Cockmon, whose title appears largely undisputed. It is true that recitals in a deed (not an ancient document) are not competent evidence to prove that the persons named are heirs of the previous record title holder. Carter v. Thompson, 167 Ark. 272, 267 S. W. 790, 38 A. L. R. 1053 (1925). The reason that such recitals are not competent is because they are hearsay. Here there is no indication that the grantors in this quitclaim deed were not available to either party, if in fact the trustworthiness of the recitals in their deed was in question. Furthermore, it appears that the appellants did not consider any of the exhibits to be of a spurious nature, nor did they register any specific objections based upon the hearsay character of the facts recited in these exhibits.

It is almost uniformly established that, absent a specific objection, hearsay, if relevant, is also competent and entitled to consideration by an appellate court in support of the trial court’s findings. 29 Am. Jur. 2d, Evidence, § 494; 50 Am. Jur. 2d, Evidence, § 1105. Arkansas is in accord. New Empire Ins. Co. v. Taylor, 235 Ark. 758, 362 S. W. 2d 4 (1962). In Taylor the issue was whether he had lost the vision in one of his eyes. From the opinion: “* * * Taylor testified that [Dr.] Myers said -that his [Taylor’s] eye ‘was completely out, my vision was gone.’ While, as also herein mentioned, this was hearsay evidence, it was not objected to, and, therefore, became competent evidence, and due to be considered by the jury. Counsel had some time earlier objected to appellee’s reference to a statement purportedly made by the doctor, but this was not a continuing objection, and did not include the quoted testimony.” See McCormick on Evidence, § 54 (1954). We have held that a specified objection has the effect of waiving any other objection. Woods v. Pearce, 230 Ark. 859, 327 S. W. 2d 377 (1959).

In the case at bar, appellants, in the course of specifying their often repeated objections to the admission of the various deeds by which appellee demonstrad deraignment of title, contended only that they were misled, as noted earlier, by appellee’s variance of proof from the pleadings as demonstrated by the following statements:

COUNSEL: “Now at this point, if the court please, we would like to renew our objection to the introduction of this deed because we have not had any chance whatsoever to determine whether Cockmon was the original owner. It is not pleaded.
* * *
There was no allegation in the pleadings. I have not had an opportunity whatsoever to examine the title, now that he has deraigned from the Government on down. * * *
THE COURT: Do you want that opportunity now, with these new exhibits? If you do, you can do it. The case is not concluded.
* * *
I say I will give you the opportunity to further investigate those exhibits.”

Appellants’ counsel declined this offer, stating: “I am not saying there is anything spurious about the exhibits.”

It does not appear that appellants specifically objected to the hearsay character of the Cockmon-Berthe deed’s recitals. Further, since appellants refused the trial court’s offer to them of an opportunity to investigate the exhibits, which included the Cockmon-Berthe deed, both the trial court and the adverse party thereby had the right to assume that the veracity of the recitals in the Cockmon-Berthe deed was unquestioned and not in issue. In 5 Am. Jur. 2d, Appeal and Error, § 553, the general rule is that: “The function of an objection is to bring the matter complained of to the attention of the court for an appropriate ruling, to warn the adverse party, and to lay the foundation for an exception to an adverse ruling. Ordinarily errors to which no objections were made in the court below will not be considered by the appellate court.” Appellee, therefore, was entitled to rely upon the evidentiary value of the recitals in his quitclaim deed; and further proof as to the facts recited therein was, in the circumstances, not necessary.

Affirmed.

Jones, J., disqualified and not participating.