text:
    Sweetser Construction Co. v. Newman Brothers, Inc.
    5-3046
    371 S. W. 2d 515
    Opinion delivered September 30, 1963.
    [Rehearing denied November 4, 1963.]

      Franklin Wilder and E. J. Ball, for appellant.

      Qreenhaw £ Greenhaw, Pearson £ Pearson, for appellee.
   Paul Ward, Associate Justice.

In May 1960 the University of Arkansas entered into a written contract with B. Sweetser Construction Company (hereafter referred to as prime contractor) for the erection of a men’s residence hall at Fayetteville, the total contract price being $1,426,363. The United States Fidelity and Guaranty Company (hereafter referred to as surety) executed a bond, pursuant to Ark. Stat. Ann. §§ 51-632 and 51-635 (Supp. 1961), conditioned that the prime contractor “shall faithfully perform his contract, and shall pay all indebtedness for labor and materials furnished or performed ... in the erection” of the said building.

The building was to be constructed according to plans and specifications prepared by a named firm of architects. Among other things the plans and specifications called for a certain aluminum fabrication to be used in the installation of a certain stairway. This fabrication (hereafter called Item 7) was designated “Econo Rails and Posts”, manufactured by Newman Brothers, Inc. located in Ohio — hereafter called appellee. The plans and specifications called for Item 7 or its eqtial.

Item 7 was in fact fabricated by appellee and used in the construction of the building, the price of the item being $1,200. The issue to be decided by this litigation is whether appellee is entitled to recover the above amount from appellants or either of them. The real issue which we will consider is, as defined by the trial court, whether the surety is obligated under the above statutes to pay appellee.

In order to understand and discuss the issue it is necessary to set out below certain material facts which are not in dispute.

On May 20, 1960 the prime contractor entered into a written contract with the Fort Smith Structural Steel Company wherein the latter agreed to furnish $102,000 worth of structural steel and other metals (consisting of 27 items) to be used in the building. Included therein was Item 7. About a week later the prime contractor issued a purchase order for the above items. Thereupon the Fort Smith Company placed an order for Item 7 with the United Iron and Steel Company of Oklahoma City. Then the latter company placed an order for Item 7 with appellee. On January 13, 1961 appellee shipped Item 7 to “Men’s Residence Hall, University of Ark., Fayetteville, Ark.” The invoice (apparently) was sent to “United Iron and Steel Co., P. 0. Box 3885, Oklahoma City 6, Okla. ’ ’ The above quotations were taken from the invoice issued by appellee as shown in the record. Sometime in August, 1961 the prime contractor paid the Fort Smith Company $1,200 for Item 7 along with full payment for all other contract items. The Fort Smith Company paid the Oklahoma Company for Item 7, but the latter company has not paid appellee.

Appellee’s complaint, asking for $1,200 from appellants, and appellant’s general denial were presented to the trial court upon interrogatories and stipulations. Both sides moved for a summary judgment. The trial court sustained appellee’s motion and appellees would sustain the court on the grounds that the statutes previously mentioned impose an absolute obligation on the surety to pay for Item 7 and that the law requires no privity between appellee and the prime contractor— especially since the contract called for a named item— Item 7.

We are unable to agree with the contentions of appellee under the facts in this case. Section 51-632 mentioned previously merely provides that the prime contractor in this instance had to furnish a bond in an amount equal to the contract price—$1,426,363. Section 51-635, previously mentioned, reads:

“(a) The bond required or authorized in this act [§§ 51-632—51-638] shall be executed by a solvent corporate surety company authorized to do business in the State of Arkansas, and shall be conditioned that the contractor shall faithfully perform Ms contract, and shall pay all indebtedness for labor and materials furnished or performed in the repair, alteration or erection.
“(b) The bond required or authorized in the foregoing sections of this Act shall in itself be a full compliance with all other statutes of this State now or hereafter in effect relating to bond requirements on contracts for the repair, alteration or erection of any building structure or improvement, public or private, it being the intention of this Act to provide a uniform bonding procedure in conjunction with such contracts.” (Emphasis added.)

We are wholly unable to hold that the above statute in this instance imposes an absolute duty on the surety to pay appellee since there is no showing of any privity between appellee and the prime contractor. If the surety is liable to appellee then it would seem to follow logically that the surety would also be liable to any person who might have furnished labor or material for the fabrication of Item 7 but had not been paid by appellee, and ad infinitum. Under such a construction of the statute it would be difficult for any surety company to determine the extent of its liability or when it would end.

We are impressed with the reasoning used and the conclusions reached in the case of City of St. Louis, to Use of Stone Creek Brick Co., v. Kaplan-McGowan Co., et al., 233 Mo. App. 789, 108 S. W. 2d 987. In that case appellee was hired as the prime contractor to build a hospital for the City of St. Louis. A surety company executed its bond pursuant to statute. In the course of construction appellee sublet the brick work to Parker and Sloss; the latter purchased the brick from one Stocke; and, Stocke purchased the brick from appellant—Stone Greek Brick Co. The subcontractor was paid in full but the Stone Creek Brick Co. was not paid. The court held the surety was not liable to Stone Creek Brick Co. on the ground that it was not in privy with the prime contractor. In that case the statute was more liberal for the supplier of materials than the statute involved in this case. Mo. Stat. § 2890 (1929) [Mo. Stat. § 3277 (1939)] requires the surety to pay for all materials furnished “in such work whether by subcontractor or otherwise”. In holding as it did, the Missouri Court of Appeals used language which we think is applicable and controlling in the case under consideration.

“As a matter of fact, the actual test to be applied in determining the right of a party such as plaintiff in this case to have recourse to the contractor’s bond for the payment of his account is one of privity of contract between him and such contractor.”

Quoting from Board of Education of St. Louis v. Fidelity & Guaranty Co., 166 Mo. App. 410, 422, 149 S. W. 46, 49, the court further said:

“ ‘While the privity of contract is necessary it need not be directly with the original contract but it must spring out of it. That it is not derived directly from the original contractor does not destroy the privity. It may come through contract with the subcontractor, as, in mechanic’s lien cases it frequently does. The contract and bond require the principal and surety to respond for claims for labor and material furnished under the contract, and whether that claim for labor and material comes directly from the original contractor or from a subcontractor, or from a laborer or materialman under the subcontractor, is immaterial, so long as its origin is called for in the original contract and grows out of the original contract.’ ”

The court then said:

“But it is at this point that privity of contract ends, and one who supplies material to a materialman, who in turn supplies the subcontractor, is to be relegated to the status of a stranger to the original contract, since such person’s contract or undertaking is neither with the principal contractor, nor with one who, as in the case of a subcontractor, deals directly with the principal contractor. Such person’s contract is therefore but indirect and collateral to the original contract, and for want of privity does not serve to bring such party within the purview of the principal contractor’s bond.”

In this opinion we do not mean to hold that a person who furnishes material to a subcontractor is not in privy with the prime contractor, but just the contrary. In this connection the general rule is stated in 77 A.L.R. at page 148 as follows:

“It is generally held that persons supplying materials and labor to a subcontractor, rather than directly to the general contractor, may recover on a bond given pursuant to such a statute.”

The statute referred to above was one, similar to our own statute, required by contractors in constructing public buildings.

In the case under consideration it is clear from the above statements that appellee was not in privy with the prime contractor. It is contended by appellee that the Fort Smith Company was a subcontractor. Conceding, without deciding, this to be true, it avails appellee nothing because appellee did not deal with that company but with the Oklahoma Company which has been paid in full.

Appellee cites the ease, Stewart-McGehee Construction Co. v. Brewster and Riley Feed Manufacturing Company, 171 Ark. 197, 284 S. W. 53, in support of its contention that there need be no privity between the furnish-er and the prime contractor. In that case, however, the claimant furnished the material to a subcontractor. Therefore the Court was correct, as previously pointed out, in holding the surety liable. Neither does the case of Detroit Fidelity & Surety Company v. Yaffe Iron & Metal Co., Inc., 184 Ark. 1095, 44 S. W. 2d 1085, support appellee. There, the only issue to be decided by the Court was whether certain two and one-half inch water pipe furnished by claimant to the prime contractor should be classified as major equipment of the contractor or materials used in the construction. In holding in favor of the supplier of the pipe, the Court said the bond and the statute ‘ ‘ must be construed liberally in order to effectuate the purpose of the Legislature ...”

We find no merit in appellee’s contention to the effect that the peculiar nature of Item 7 was sufficient to put the prime contractor on notice that appellee furnished the same, and should therefore, in the interest of justice, be paid. It is pointed out the specifications did not call for an item to be made by appellee—it called for such item or its equal.

In view of what we have heretofore said, the judgment of the trial court is reversed and the cause of action is dismissed.

Reversed and dismissed.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Ark. Highway Commission v. Wilmans.
    5-3032
    370 S. W. 2d 802
    Opinion delivered September 30, 1963

      Dowell Anders and Thomas B. Keys, for appellant.

      Wayne Boyce and Fred M. Pickens, Jr., for appellee.
   Sam Robinson, Associate Justice.

In the exercise of the right of eminent domain, the Arkansas State Highway Commission condemned for highway purposes, a strip of land 13 feet wide across the front of two tracts of land owned by appellee, Charles H. Wilmans, in Jackson County. The damages estimated by appraisers for the Highway Commission amounted to $6,275.00. We will designate the separate parcels as the north and south tracts. In the north tract there are 132 feet facing the highway. On this property there were located two buildings, one containing a liquor store and the other a beer parlor. The south tract had no improvements. The jury returned a verdict for the property owner, appellee, in the sum of $19,500.00. The Highway Commission has appealed.

The principal issue on appeal is whether the trial court erred in refusing to strike the testimony of certain witnesses who testified for the property owner as to the value, the witnesses having testified that in arriving at an opinion of the damages suffered by the owner, they took into consideration the profits of about $10,000.00 annually the appellee earned from the operation of the liquor and beer business.

Testimony about the profits was developed in this manner: The attorney for the property owner questioned the witnesses about their knowledge of property values and then asked them the value of the property before the taking, the value after the taking, and the resulting damages.

One witness, Mr. Buffington, testified to a value of $2,000.00 on the south tract before the taking and a value of $1,500.00 after the taking, thereby showing damages by reason of the taking of the south tract of $500.00. He then testified that the value of the north tract was $40,000.00 before the taking and $9,367.60 after the taking, thereby showing damages of $30,632.40 by reason of the taking of the strip across the north tract. The witness was not asked any questions on direct examination about how he arrived at the valuation before and after the taking. On cross-examination, he was questioned about how he arrived at such valuations. It then developed that in reaching an opinion as to value he had taken into consideration the profits earned in the business located on the property. He also took into consideration the value of personal property located on the premises. Mr. Buffington testified:

“A. . . . In order to get a true value on that, actual value of the property, I went to Mr. Wilmans and got his figures on his volume of business for the last three years and according to that volume of business this property would make, bring back $40,000.00 in four years, which would make it in my opinion a fair value. Most investments would have to retire over a longer period of time but this particular type of business is hazardous in that the area could be voted dry and the value of this property, its best value was due to its location, it being the first business of this type on 67 Highway next to a dry area, a long stretch of dry area, so I felt like I would almost have to take that into consideration in valuing the property.
Q. Who operates this business?
A. Mr. Wilmans.
Q. And you say it would make a profit of $40,000.00 in four years?
A. It did an average for the last three years of a hundred and one thousand per year, three hundred and three thousand in a three year period through ’61; ten percent of that would be just a little over $10,000.00 a year net. I took ten percent of the gross; I don’t know what his profits were; but after talking to several people in this type of business they tell me that ten percent of your gross would be a mighty close figure to your net profit after taxes and insurance.
Q. Using this figure of a net profit of $10,000.00 you arrived at the value of $40,000.00 for the property?
A. No, I took that into consideration in evaluating the property. I took into consideration that, the profits made in this business, due to its good location would get a man’s investment back in four years; to stretch it any further than that wouldn’t be a good basis to figure it. I took that into consideration.”

The attorney for the Highway Commission promptly moved to strike all of this witness’ testimony because he had stated that he took into consideration the profits of the business in arriving at the $40,000.00 value of the property before the taking. The motion to strike was overruled. It will be noticed that the motion was to strike all of the witness’ testimony. His testimony regarding the valuation of the south tract did not take into consideration any profit. That property was unimproved; hence, the objection to using profits made in a business as a basis for the valuation of the property is not applicable to the south tract, and the witness’ testimony concerning the south tract was admissible. The court was therefore correct in overruling the motion to strike all the testimony of Mr. Buffington. “A motion to exclude all the testimony of a witness is properly overruled if a part of it is competent. ’ ’ Nichols v. State, 92 Ark. 421, 122 S. W. 1003.

The situation is different in connection with the testimony of James Parish, a witness for appellee property owner, on valuation. He gave his opinion that the north tract was worth $35,000.00 before the taking and was worth $3,500.00 after the taking, resulting in damages to the north tract of $31,500.00. He was not asked on direct examination how he arrived at the before valuation of $35,000.00. When it was developed on cross-examination that he had taken into consideration the profits from the business in reaching that valuation, the attorney for appellant moved to strike his testimony regarding the $35,000.00 value. The motion was overruled. It should have been granted.

In Arkansas State Highway Commission v. Addy, 229 Ark. 768, 318 S. W. 2d 595, it was pointed out that witnesses who testified as experts on the value of the property and the damages, stated that they considered the profit derived from the operation of a business in reaching their appraised value. This court held that it was improper to consider profits of the business in arriving at the value of the land. The judgment was, accordingly, reversed.

In Hot Spring County v. Crawford, 229 Ark. 518, 316 S. W. 2d 834, the court said: “. . . A real estate appraiser testified that in determining- damag-es to the Crawford land he capitalized this $4,000.00 net profit per annum and used the result as a factor in fixing the Crawfords’ damag-es . . .”. It was there held that the net profit of a business could not be considered as a factor in arriving- at the damages to the land. To the same effect is Hot Spring County v. Bowman, 229 Ark. 790, 318 S. W. 2d 603. This view is sustained by the great weight of authority. In a note in 16 A.L.R,. 2d 1113, the annotator says: “With remarkable unanimity the American jurisdictions hold that evidence of profits derived from a business conducted on property is too speculative, uncertain, and remote to be considered as a basis for computing or ascertaining the market value of the property in condemnation proceedings. The reason for this rule is that the profits of a business do not prove the value of the property upon which it is conducted, since they depend on other considerations, such as market conditions and the skill and knowledge of the proprietor of the business.”

But appellee argues that the fact that appraisers for appellee considered the profits of the business in arriving- at a valuation was brought out on cross-examination and that therefore the trial court did not err in overruling- the motions to strike.

Appellee relies on the case of Arkansas State Highway Commission v. Kennedy, 234 Ark. 89, 350 S. W. 2d 526. There, it was developed on cross-examination by the highway attorney that an appraiser, a witness for the landowner, had considered what the Commission had paid for other lands in the community. The price paid for other condemned lands is not proper basis for valuation in a condemnation proceeding. In that case, however, the court instructed the jury not to consider that part of the witness’ testimony regarding- price paid to others. Moreover, the Kennedy case is distinguished from the case at bar by the fact that the witness for Kennedy did not testify as to any price paid by the Highway Commission for other land. Such prices could have been a great deal less than the Highway Commission witness appraised the value of the land involved in the particular case on trial at the time. Certainly, in the case at bar, if the property owner had been operating his business at a loss of $10,000.00 per year instead of a profit in that amount, the fact that the appraisers took such loss into consideration would not have been prejudicial to appellant.

It is firmly established that profits from a business can not be used as a criterion for value of property in an action such as the one in the case at bar. Witnesses for appellant had not stated on direct examination how they arrived at the value they placed on the property. Appellant could not have complained because a witness gave no basis for his opinion as to value if there had been a failure to cross-examine on that point. The court said in Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S. W. 2d 436: ‘ ‘ Two of the witnesses, Bob Q-elly and Joe Snelly, were real estate dealers in Crawford county. After having first stated that they were familiar with land values in the vicinity of the Johns property and that they had inspected this property, both these witnesses expressed their opinion as to the fair market value of the appellees ’ property before and after the taking. The appellant made an unsuccessful attempt to have this testimony stricken, on the ground that neither witness had stated the facts and reasons forming the basis for his opinion. ... It was incumbent upon counsel for the appellant to support their motion to strike by showing that the landowner’s expert witnesses had no reasonable basis for their opinions. Counsel actually made no effort in that direction, the motion to strike Snelly’s testimony having been made without any cross-examination at all. Thus there was a complete failure to overcome the prima facie admissibility of the testimony that was challenged.”

In the case at bar, the attorney for appellant did cross-examine and show that the witness had used an invalid basis in fixing value.

Reversed and remanded.


author: Jim Johnson, Associate Justice.

text:
    Ben M. Hogan Co. v. Fletcher.
    5-3047
    370 S. W. 2d 801
    Opinion delivered September 30, 1963.

      Crouch, Blair and Cypert, for appellant.

      Murphy é Burch, for appellee.
   Jim Johnson, Associate Justice.

This appeal arises from a suit against a highway contractor for damage to real property. Appellees Adrian Fletcher and Marie Fletcher, his wife, sued appellant Ben M. Hogan & Company in Washington Circuit Court alleging that while appellant was reconstructing Highway 16 between Fayetteville and Elkins, appellant improperly constructed a ditch so that about two acres of appellees’ land failed to drain, making it impossible to maintain fences or pasture cattle, and sought $15,000 damages. After appellant’s answer, appellees filed an amendment to their complaint alleging that appellant was estopped to deny that it was appellant’s negligence in the highway construction which caused the damage to appellees’ land. Trial was held on December 17, 1962, and at the close of appellees ’ case, appellant moved for a directed verdict, which was denied. Appellant then rested, and the case was submitted to the jury, which returned a verdict for appellees and assessed damages at $2,500.00.

From the judgment on the verdict, appellant has appealed, contending that appellees’ suit was brought in negligence, and that there was no evidence to support the finding that appellant was negligent or that any negligence of appellant proximately caused appellees’ damages.

Negligence has been frequently defined. 65 C.J.S., Negl., § 1, p. 305. In Johnson v. Coleman, 179 Ark. 1087, 20 S. W. 2d 186, this court succinctly defined it as “failure to exercise ordinary care.” Proximate cause is defined as “cause from which a person of ordinary experience and sagacity could foresee that a given result would probably ensue.” Wisconsin & Arkansas Lumber Co. v. Scott, 153 Ark. 65, 239 S. W. 391; Alaska Lumber Co. v. Spurlin, 183 Ark. 576, 37 S. W. 2d 82; 65 C.J.S., Negl., § 103, p. 648. However, “very often the question of proximate cause is confused with the preliminary question of whether there is any negligence at all.” O’Neill v. City of Port Jervis, 253 N. Y. 423, 171 N. E. 694.

A careful review of the testimony adduced on behalf of appellees (all the testimony) reveals that prior to commencement of bridge and road construction, a big ditch lay between appellees ’ property and the highway; the ditch was usually or frequently full of water; either when bridge construction started or when appellant commenced the road reconstruction, which included raising the highway three to three and one-half feet, the ditch Avas apparently filled in the process of widening the road bed; after the ditch was filled, appellees ’ pasture would not drain and water began to stand there; after complaints from appellees, the State Highway Department Resident Engineer, as a favor to appellees, asked appellant or the bridge contractor to dig a ditch in front of appellees ’ property; the bridge contractor dug about 100 feet of ditch, as far as he could reach with a small drag-line, which lowered the water some; appellant later bulldozed out the remaining 200 feet; appellees’ property has failed to drain further.

There is no question about the fact that appellees have been damaged. In our view, the damage is the standing water, not the ditch appellant dug. Appellees were damaged when the original big ditch was filled in accordance with the State Highway Department’s plans and specifications. However, the preliminary question is whether there is any negligence at all. There is no evidence that appellant was negligent in the road construction. In fact, the Resident Engineer, appellees’ witness, testified that appellant constructed the highway in accordance with the plans and specifications of the State Highway Department, that appellant did everything the contract called for him to do, and he did it like it called for him to do. There is also no evidence in the record that appellant failed to exercise ordinary care (i.e., was negligent) in his gratuitous ditch-digging at the request and direction of the Resident Engineer. In Southeast Construction Co., Inc. v. Ellis, 233 Ark. 72, 342 S. W. 2d 485, this court held that in the absence of negligence a contractor who performs in accordance with the terms of his contract with the State Highway Department, and under the direct supervision of the Resident Engineer, is not liable for damages resulting from his performance. In the case at bar, the ditch appellant dug was not a part of his contract with the State Highway Department, but it was a gratuitous undertaking, undertaken at the behest of the Resident Engineer, in an attempt to alleviate appellees’ damage. Appellees failed to produce even a scintilla of evidence tending to show negligence on the part of appellant. Accordingly, appellant’s motion for a directed verdict should have been granted as a matter of law.

Reversed and dismissed.


author: Prank Holt, Associate Justice.

text:
    Snuffy Smith Motors v. Universal C.I.T.
    5-3051
    370 S. W. 2d 808
    Opinion delivered September 30, 1963.

      McMath, Leatherman, Woods & Youngdahl, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   Prank Holt, Associate Justice.

This case involves the question of title to two automobiles. Upon a trial before the Circuit Judge, sitting as a jury, this issue was determined in favor of the appellee, Universal C.I.T. Credit Corporation. The appellant, Snuffy Smith Motors, Inc., contends, in effect, that the appellee is not in a position to claim title as an innocent purchaser.

The appellant, a corporation domiciled in Houston, Texas, is a wholesaler of Volkswagen automobiles which it imports from Germany. On or about April 8 or 9, 1960, appellant had delivered by truck seven (7) Volkswagens to Pat Berry Auto Sales in Benton, Arkansas, a customer of approximately one (1) year. An invoice was delivered with the shipment. On April 11, 1960, the appellant drew seven (7) drafts for $1,600.00 each on its customer, Berry, and forwarded the “envelope drafts” with title documents enclosed in each to Berry’s Benton bank for collection. The drafts were returned uncollected by the bank several times and each time they were sent through again. They were never paid and finally returned by the bank to the appellant. Also, on April 11, 1960, the date of the drafts, Pat Berry “floor planned” with appellee these seven (7) cars, which included the two (2) in question, by giving a chattel mortgage therefor. This chattel mortgage was accepted by appellee under an arrangement between appellee and Berry whereby appellee financed Berry’s inventory of the seven (7) cars to the extent of $1,600.00 on each of these cars, or a total of $11,200.00. Appellee advanced a loan for this amount to Berry on this date. As each automobile was sold by Berry it was the custom for him to pay off the mortgage on the vehicle. This is known as a “floor plan” arrangement. It was customary for appellee to make a periodic check on its customers to determine if the inventory which they financed was in stock. On May 2, 1960 appellee discovered Berry had sold some cars without remitting, pursuant to their agreement. Thereupon appellee invoked the “jeopardy clause” in its chattel mortgage and picked up the balance of the cars it had “floor planned” for Berry, including the two Volkswagens in question, since Berry was unable to make payment for the vehicles he had sold. A few days later appellant learned of this and demanded, as owner, that appellee deliver up the two (2) cars in question, contending that since Berry had never paid appellant for the cars and the necessary title paper had never been delivered by appellant to Berry that appellant was the rightful owner and entitled to possession of these two (2) cars. Appellee refused to deliver possession, whereupon appellant instituted suit for conversion seeking $3,200.00 as the value of the two (2) ears.

In its answer appellee contended that appellant was estopped to assert title by its conduct in delivering possession of the cars to Berry with a written invoice or bill of sale and, further, appellee claimed that it was a bona fide purchaser. Upon a trial the appellant admitted den livering ail invoice with the cars but denied delivering to .Berry any bill of sale, title certificate, or certificate of origin. Claude Hill, a branch manager of appellee and an employee for thirteen (13) years, testified that he approved and initialed the chattel mortgage on the two (2) cars and the issuance of the loan thereon only after there being exhibited to him a bill of sale which he allowed Berry to retain as was the custom. He claimed it was his practice to require evidence of title before approving a loan.

Appellant insists that no bill of sale or evidence of title to the cars was ever delivered to anyone other than the forwarding of the title papers with the “envelope drafts” to the Benton bank. Berry corroborated appellant to the effect that he had never had in his possession a bill of sale or evidence of title to the cars and, therefore, none was ever exhibited to Hill by him or anyone else in connection with the loan. Further, that as a customer of appellee’s he was customarily extended credit by merely giving a chattel mortgage without any supporting evidence of title; that he had blank chattel mortgages furnished by appellee which he, or his nineteen (19) year old nephew, would complete and bring to the Little Rock Office of appellee for approval and if his supply was exhausted, he would come to the Little Rock Office with the necessary information and there execute the necessary chattel mortgage without any evidence of title in either event; he denied that he had signed the particular chattel mortgage in question, although $11,200.00 was advanced to him on this mortgage; he asserted that his nephew handled most of such transactions and he had not authorized him to sign this particular chattel mortgage; he admitted that on one occasion his nephew had borrowed temporarily from the bank a title which had accompanied a draft. He also admitted that he had sold two (2) of the seven (7) Volkswagens to customers without delivery of the necessary title papers, advising them that they would be forthcoming. Appellant, Smith, testified that he had finally collected from Berry on five (5) of the seven (7) cars in this shipment. No other witnesses appeared on behalf of either party.

We agree with the appellant that the only real question presented is whether appellee can claim as an innocent purchaser for value. This question was before the Trial Judge, sitting as a jury, and the evidence adduced was in hopeless conflict. He exercised his right and duty in rendering a decision in this controversy and approved the version of the appellee. We have many times held that on appeal the findings of the Trial Judge, sitting as a jury, must be upheld where there is any substantial evidence to support his decision. Peterson v. Garland County, 188 Ark. 1167, 65 S. W. 2d 18. We are of the opinion that the decision of the Trial Judge in the case at bar is supported by substantial evidence.

It is undisputed in this case that appellant delivered possession of its cars to Berry together with an invoice which contained the name and address of appellant, the price, serial and motor numbers of the seven (7) automobiles and also showed Pat Berry Auto Sales, Benton, Arkansas, as the purchaser. In addition, we find these words as a part of this instrument:

“* * * I hereby certify that no credit has been extended to me for the purchase of this motor vehicle except as appears on the face of this agreement.”

No extension of credit to Berry as a purchaser was indicated on this “invoice” which was prepared and furnished by appellant. The cars in question were in Berry’s possession for almost a month, during which time appellant’s drafts remained unpaid in spite of repeated efforts to collect them. The appellee had done business with Berry over a considerable length of time and this was the first time it had occasion to be wary of him. This was also the first trouble appellant had with Berry. Appellee acted promptly. Appellant did not. Berry admitted that thirty (30) or forty-five (45) days before repossession by appellee [or on a date previous to the chattel mortgage in question] he was informed that in the future evidence of title would have to be exhibited to appellee before approval of a loan. He maintained, however, that they finally excepted new cars and Yolkswagens from this requirement. Appellant admitted that he knew Berry and other such dealers in his position necessarily had to “floor plan” their cars with lending institutions. It was only after repossession that appellee had any knowledge of appellant’s retained interest in the cars. Where one of two innocent parties must suffer, we have held that the burden should be borne by the one whose conduct can be said to have induced the loss. Commercial Credit Co. v. Hardin, 175 Ark. 811, 300 S. W. 434. We think the appellee is least at fault as between it and appellant.

Also, we have held that a bill of sale is sufficient to pass title even in the absence of an assignment of the certificate of title. House v. Hodges, 227 Ark. 458, 299 8. W. 2d 201. There the Court said:

“* * * "We find nothing in the Motor Yehicle Act which states that a bona fide sale of a vehicle cannot be made except by an immediate assignment of certificate of title. It is true that the purchaser cannot obtain a license, nor legally operate the vehicle without obtaining such certificate, and one so doing would be guilty of a misdemeanor, ® * * The failure of appellee to obtain the certificate of title at the time he received the bill of sale does not deprive him of title, for the certificate of title is not title itself but only evidence of title. *' * * Let it simply be added that our statute does not purport to make void, sales which are accomplished without compliance with each provision, where such sale is bona fide.”

It follows, in the case at bar, that a bill of sale was sufficient evidence of title upon which to predicate a valid and enforceable chattel mortgage.

Affirmed.

       In this case we do not consider the Certificate of Title Act applicable since this was a transaction between dealers. Ark. Stat. Ann. §75-153 (Kepi. 1957); Ark. Stat. Ann. §75-132 (Repl. 1957).


author: Ed. F. McFaddin, Associate Justice.

text:
    Ark. Real Estate Co. v. Ark. State Hwy. Commission.
    5-3031
    371 S. W. 2d 1
    Opinion delivered October 7, 1963

      Moses, McClellan, Arnold, Owen <& McDermott, for appellant.

      Dowell Anders, H. Clay Robinson, Bill Demmer and Walter H. Laney, for appellee.
   Ed. F. McFaddin, Associate Justice.

Tbis appeal results from tbe fact that the Arkansas State Highway Commission named the wrong party as owner of a tract of land in an eminent domain proceeding. The said party erroneously named as landowner received the amount deposited in the Court, which amount the Highway Commission now seeks to recover. At the same- time, the true owner of the land seeks to recover from the Arkansas State Highway Commission the value of the land taken in the eminent domain proceedings. From a judgment on the issues there is this direct appeal and cross appeal.

Oh April 6, 1959 the Arkansas State Highway Commission (hereinafter called “Highway Commission”) filed this eminent domain proceeding involving a number of parcels, one of which was Tract No. 62 containing 31.7 acres. The complaint alleged that .the value of the said Tract No. 62 was $9,400.00; and that amount was deposited in the Registry of the Court so that immediate possession could be taken. The complaint of the Highway Commission named the appellant, Arkansas Real Estate Company, Inc. (hereinafter called “Real Estate Company”) as the owner of said tract; the Real Estate Company by answer admitted its ownership of the tract and claimed a greater amount as damages; and by order of the Circuit Court on August 3, 1959, the Real Estate Company received the said amount of $9,400.00 from the Registry of the Court.

' Then on August 10,1959, the appellees, W. H. Laney, et al., intervened in the said eminent domain proceedings, asserted their ownership and actual possession of the 31.7 acres, and claimed damages for said taking. With the status of affairs in the condition recited, this eminent domain case remained in abeyance in the Circuit Court until the Supreme Court decided the case of Laney v. Arkansas Real Estate Company, 234 Ark. 187, 350 S. W. 2d 911 (opinion of November 20, 1961), which held that the Laneys were the owners of the 31.7 acres here involved, as well as other lands. The Laneys called the said opinion of this Court to the attention of the Circuit Court in the present eminent domain proceedings and, as a result, recovered judgment against the Highway Commission for the $9,400.00, which was the amount the Highway Commission had stated to be the value of the 31.7 acres. From that judgment in favor of the Laneys, the Highway Commission brings the present appeal.

In this same eminent domain proceeding, the Highway Commission, after the judgment in favor of the Laneys, sought and obtained judgment against the Real Estate Company for the $9,400.00 which the Real Estate Company had withdrawn from the Registry of the Court on August 3,1959, as aforesaid; and from that judgment against it, the Real Estate Company prosecutes the present appeal.

I. The Judgment In Favor Of The Laneys And Against The Highway Commission. The affirmance of this judgment is a reasonably simple matter. The Arkansas Constitution (Art. 2 §22) says: “. . . private property shall not be taken, appropriated, or damaged for public use, without just compensation therefor.” The eminent domain statute under which the Highway Commission proceeded was Ark. Stat. Ann. §76-533 et seq. (Repl. 1957). But the Highway Commission did not list the Laneys as the owners of the said land; so we have a situation—insofar as the Laneys are concerned—in which the Highway Commission admits the taking of the Laney land and admits the damages to be $9,400.00. The Laneys cannot be held responsible for the failure of the Highway Commission to name the correct owner of the title and party in possession of the land. It was through no fault of the Laneys that an erroneously named owner received the money from the Highway Commission seven days before the Laneys intervened in the case. The Laneys have been guilty of no laches, negligence, or delay, and are entitled to the protection of the Constitution for the value of their land taken and damaged. There is nothing in Ark. State Highway Comm. v. Kincannon, 193 Ark. 450, 100 S. W. 2d 969, in conflict with our present holding. The Circuit Court was correct in awarding the Laneys the judgment rendered in their favor.

II. The Judgment In Favor Of The Highway Commission- Against The Beal Estate Company. The decision on this issue is not so easy, because the Highway Commission alleged in the original complaint that the Real Estate Company was the owner of the 31.7 acres, and the Highway Commission consented and agreed that the Real Estate Company could withdraw the $9,400.00 deposited in the Registry of the Court, and this withdrawal was done by Circuit Court Order. The Real Estate Company claims: (a) that the eminent domain proceeding was a matter in rem; (b) that the Highway Commission is bound by its allegations as to ownership; and (c) that the payment of the money from the Registry of the Court is res judicata. To support its arguments the Real Estate Company relies heavily on the language of this Court in Bentonville RR. Co. v. Stroud, 45 Ark. 278. In that ease, the Railroad Company instituted eminent domain proceedings and, on appeal, sought to make the belated claim that the named defendants had not established their title. In rejecting such belated claim of the Railroad Company we said:

“The company alone can start the proceeding, and when it does so it must proceed against the owner (Mansf. Dig., Sec. 5458), and it selects the parties to be proceeded against at its peril, because, by starting the proceeding against them, it admits that they are the owners. S. & M. R’y. v. Rhea, 44 Ark,. 264.”

Assuming, without deciding, that the quoted language in the Bentonville case would apply to a situation like the one here in which the deposit was withdrawn in advance of any trial, nevertheless there is another and complete distinction between the Bentonville case and the one at bar; and that distinction lies in the fact that the State and its agencies may recover voluntary payments when it is shown that they were made in error. See Vick School Dist. v. New, 208 Ark. 874, 187 S. W. 2d 948. See also 40 Am. Jur. p. 822, “Payment” §157; and 70 C.J.S. p. 346, “Payment” §139. When an individual or private corporation makes a voluntary payment, such cannot ordinarily be recovered. But that rule—-of inability to recover a voluntary payment—does not apply to the State and its agencies. Our holding in Vick School Dist. v. New, supra, is a complete answer to the Real Estate Company’s reliance on the holding in Bentonville RR. Co. v. Stroud, supra. Even if the $9,400.00 had been paid by tbe Highway Commission to the Real Estate Company without eminent domain proceedings, the Highway Commission could have recovered the payment when it was shown, as here, that the Real Estate Company was not the owner of the land involved at the time the money was received by it and that the State paid the money through error.

The judgment of the Circuit Court in favor of the Highway Commission against the Real Estate Company is in all things affirmed. As for the costs: the Laneys will recover their costs against the Highway Commission; and the Highway Commission will recover its costs against the Real Estate Company.

       The judgment in favor of the Laneys was signed and entered on September 7, 1962, and the record was filed in this Court well within the time allowed by the Circuit Court.

       In its brief the Real Estate Company has cited a number of cases sbd texts, some of which are: U.S. v. Dunnington, et al., 146 U.S. 338, 36 L. ed. 996, 13 S. Ct. 79; 18 Am. Jur. p. 1009; and Nichols on Eminent Domain, Vol. 2, p. 14, and Vol. 6, p. 7.

       The statute on withdrawal of deposit before final trial is Ark. Stat. Ann. § 76-537 (Repl. 1957). Some of our recent cases involving that statute are: Ark. Hy. Comm. v. Rich, 235 Ark. 858, 362 S. W. 2d 429; and Adams v. Ark. Hy. Comm., 235 Ark. 837, 363 S. W. 2d 134.


author: George Rose Smith, J.

text:
    Osborne v. State.
    5068
    371 S. W. 2. 518
    Opinion delivered October 7, 1963.

      Elton A. Rieves, III, for appellant.

      Bruce Bennett, Attorney General, by Leslie Evitts, Asst. Atty. General, for appellee.
   George Rose Smith, J.

The appellant was found guilty of forgery and uttering and was sentenced by the jury to ten years imprisonment upon each of the two counts. The court directed that the sentences be served consecutively.

There is no real issue about the sufficiency of the evidence. It was shown that the accused had used a forged check, purportedly drawn by a Louisiana lumber company, to buy clothing and liquor at a place of business in West Memphis. After Osborne left the store the proprietor became suspicious and succeeded in having Osborne arrested within an hour. Osborne confessed not only to this offense but also to a number of other forgeries committed in neighboring states.

That portion of the confession relating to the other offenses was objected to, but it was admissible. In a charge of forgery and uttering the State has the burden of proving guilty knowledge on the part of the accused, for it is not an offense for a person to pass a forged check in the belief that it is genuine. Upon the issue of guilty knowledge the fact that the defendant has uttered other forged checks is directly relevant. It tends to show that he knew the particular instrument in question to have been forged, since it is unlikely that an innocent person would come into possession of a number of bogus checks. Wilson v. State, 184 Ark. 119, 41 S. W. 2d 764. Hence proof of the other forgeries was competent, and it makes no difference that the evidence was in the form of a confession rather than of testimony by third persons.

The State was allowed to show that on the day of the offense in question Osborne also passed a similar check in another West Memphis store, purchasing a pistol and making a down payment upon a shotgun. Counsel properly and candidly admits that such proof of a similar transaction was admissible, but it is argued that the jury may have been inflamed by the fact that Osborne used the check in the purchase of lethal weapons. This argument is without merit. The State, in showing a similar offense, was entitled to prove that the accused had received value for the forged instrument. That value happened to be in the form of firearms, but the record does not indicate that the witness referred to the weapons in other than a matter-of-fact way. Firearms are for sale throughout the state, for use in hunting, trapshooting, and other lawful pursuits. The State was properly permitted to prove all the details of what was actually a fairly commonplace transaction.

Counsel vigorously maintains that the punishment is so severe that it should be reduced by this court. It is true that in a number of the older cases, including one as recent as Carson v. State, 206 Ark. 80, 173 S. W. 2d 122, we have assumed the power to mitigate the punishment imposed by the trial courts. The right to exercise clemency is, however, vested not in the courts but in the chief executive. Ark. Const., Art. 6, § 18. Our latest cases have uniformly followed the rule, which we think to be sound, that the sentence is to be fixed by the jury rather than by this court. If the testimony supports the conviction for the offense in question and if the sentence is within the limits set by the legislature, we are not at liberty to reduce it even though we may think it to be unduly harsh. Miller v. State, 230 Ark. 352, 322 S. W. 2d 685; McCall v. State, 230 Ark. 425, 323 S. W. 2d 421.

It is contended that one of the court’s instructions was not as specific as it might have been. We need not examine this contention in detail, for the only supporting assignment of error in the motion for a new trial is a blanket assertion that the jury were misinstructed. This was an assignment in gross, specifying no particular instruction as being incorrect. Inasmuch as a number of the instructions were unquestionably correct the assignment was insufficient to present any question for review. Black v. Hogsett, 145 Ark. 178, 224 S. W. 439; Armstrong v. State, 171 Ark. 1136, 287 S. W. 590.

Affirmed.

(Supplemental opinion on rehearing delivered Nov. 4,1963, p. 170.)


author: Paul Ward, Associate Justice.

text:
    Mann v. Potlatch Forests.
    5-3042
    371 S. W. 2d 9
    Opinion delivered October 7, 1963.

      Huey S Rothwell, for appellant.

      Williamson, Williamson & Ball, for appellee.
   Paul Ward, Associate Justice.

This is a Workmen’s Compensation case. Appellant, John T. Mann, appeals from a judgment of the circuit court which affirmed an order of the Commission. The Commission’s order affirmed a former order awarding claimant $25 per week for a 25% permanent partial disability to the body as a whole. A brief summary of the pertinent facts will suffice to understand the issue to be decided.

Appellant (claimant) is a married man, 48 years old, who farms part time and at other times works for appellee (Potlatch Forests, Inc.) in the timber and lumber business. While in the course of his employment with appellee on October 30, 1956, claimant suffered a compensable injury to his back and in due course was awarded $25 per week pending a determination of his healing period.

In an opinion dated July 1, 1959 the Commission, after a hearing, made the following findings and conclusions; (a) claimant’s healing period ended June 5, 1959, leaving him with a 25% permanent partial disability to the body as a whole; (b) claimant is entitled to $25 per week for 112% weeks dating from June 6, 1959; and (c) if claimant decides to undergo surgery and further medical attention it will be at his own expense because he has declined to accept such treatment from appellee, but has decided to accept the award above mentioned.

In August, 1961 appellee made the last payment to appellant pursuant to the above mentioned order. Shortly thereafter claimant initiated a claim for additional benefits, contending that he had developed a worsened condition and that he was temporarily totally disabled, or that his permanent partial disability was greater than 25% to the body as a whole. Appellee answering the claim, said (a) the Commission’s order of July 1, 1959 concluded the rights of the claimant; (b) the condition of claimant had not worsened; and (c) if it had worsened it was the result of claimant’s refusal to accept medical treatment.

At the hearing before the full Commission the only issue presented was whether appellant’s disability (as a result of his original injury) was greater than that found by the Commission in its order of July 1, 1959— 25 % permanent partial disability to the body as a whole. A determination of the above mentioned issue involved a fact question, depending on competent testimony. That the conclusion of the Commission must be upheld if it is supported by substantial evidence is too well established to require citations. As previously stated, the Commission found that there had been no increase in appellant’s disability.

We believe it would serve no useful purpose to set out fully the testimony of the several witnesses. It must be conceded that appellant and his wife and Dr. Carruthers — all — testified definitely that appellant’s disability was (at the time of the hearing) greater than it was on July 1, 1959. It must also be conceded that the testimony of all the other doctors was to the effect that appellant’s disability has increased since July 1, 1959. It is, however, undisputed that Drs. Padberg and Agar testified that appellant’s increased disability was due to pulmonary emphysema and not to his original injury. In the testimony of Dr. Carruthers pulmonary emphysema is not even mentioned. We gather from appellant’s argument that he does not dispute the facts just pointed out. He does, however, ably and forcefully rely for a reversal on the point presently discussed.

Appellant’s contention is to the effect that the testimony of Drs. Padberg and Agar should be discarded because they gave no consideration to claimant’s age, occupation,' etc. In support, appellant relies on what we recently said in Glass v. Edens, 233 Ark. 786, 346 S. W. 2d 685. There, in a somewhat similar situation, we said:

“. . . consideration should have been given, along with medical evidence, to the appellant’s age, education, experience, and other matters affecting wage loss.”

We believe appellant has misconstrued our holding in the Glass case or has misapplied it to the facts in this case. First, conceding for the purpose of this opinion that the testimony of Drs. Padberg and Agar does not positively show they took into consideration appellant’s age, occupation, etc., that fact would be of no avail to him. [It is noted, however, that Dr. Padberg did take into consideration claimant’s age, occupation, etc.] The Glass opinion places the duty on the Commission, and not the doctor, to consider the elements mentioned above. In the cited case we said: “Apparently, they also considered only medical evidence and this we consider error.” The word “they” obviously refers to the Commissioners and not the doctors. In the next place, appellant is in no position to contend the Commission failed to take into consideration his age, occupation, etc. The record shows that the Commission was made aware of our holding in the Glass case, and we cannot say it did not follow that holding here in arriving at appellant’s disability.

Finding substantial competent evidence to sustain the order of the Commission, we hereby affirm the same.

Affirmed.


author: Sam Bobinson, Associate Justice.

text:
    McMurtry v. Marshall Model Market.
    5-3043
    371 S. W. 2d 4
    Opinion delivered October 7, 1963

      Jack Holt, Sr. and John P. Streepey, for appellant.

      S. Hubert Mayes and S. Hubert Mayes, Jr., for appellee.
   Sam Bobinson, Associate Justice.

Appellant, J. N. McMurtry, a meat cutter, went to work for appellee, Marshall Model Market No. 48, on a trial basis. He was to work two weeks at a salary of $80.00 per week, and if at the expiration of that time his services were satisfactory to the appellee, and appellant wanted to continue on the job, the salary would be raised to $85.00 per week.

On Saturday, April 28, 1962, the last day of the two week period, appellant lifted a box containing about two dozen frying size chickens. He states that at that time he suffered a burning pain in his stomach, but that it never occurred to him that he was injured. He rubbed his side for a few minutes; the pain went away; he never gave it any more thought, and continued to work for about three hours, until closing time. He stated there was no bulge in his side and that he did not mention the incident to anyone. He further testified that the next day, Sunday, he just stayed around the house; when he would get up his side would hurt.

On Monday morning he did not return to work for appellee, but went to work for Mr. Blagg, who operates the Quality Meat House. He did, however, call appellee aud offer to go out and help that morning if he was needed. Mr. Marshall said that it was not necessary, that he had someone else coming. Appellant said nothing to appellee at that time about having received an injury.

Later in the day, at Mr. Blagg’s place of business, appellant attempted to lift a quarter of beef weighing between 100 and 120 pounds and felt a sharp pain in his side. He told Mr. Blagg about it and called his doctor; however, he could not get an appointment with the doctor until the following Thursday. When he did see the doctor the diagnosis was hernia. After the visit to the doctor’s office on Thursday, McMurtry went to Marshall’s place of business and claimed that he had been injured on the preceding Saturday afternoon while lifting the box of chickens.

Later appellant filed a claim with the Workmen’s Compensation Commission contending that he had received the rupture Saturday afternoon, April 28, 1962, while working for appellee. After a full hearing, the Commission denied compensation and McMurtry has appealed.

The Compensation Commission denied compensation on'tvio grounds. First, “The Commission is of the opinion that claimant has not sustained the burden of proof that-is upon him to establish that he was, in fact, injured while working fdr respondent employer.”

The Commission was also of the opinion that the claimant did not comply with the requirements of the statute regarding claims for disability due to hernia. The statute provides: “In all cases of claims for hernia it shall be shown to the satisfaction of the Commission: (1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall; (2) That there was severe pain in the hernial region; (3) That such pain caused the employee to cease work immediately; (4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter; (5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within forty-eight (48) hours after such occurrence; . . .”.

According to the undisputed evidence, two of the requirements were not met. First, there was not such pain that caused the employee to cease work immediately. He continued to work for three hours—to the end of the working day. Second, notice was not given to the employer within forty-eight hours after the injury is alleged to have occurred. Of course, an employee might receive an injury causing a hernia and not actually know that he had received the hernia until more than 48 hours after having been injured. In this kind of situation, although he might be required to report the injury, he would not be required to report the hernia within the 48 hour period. Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S. W. 2d 929; Williams Mfg. Co. v. Walker, 206 Ark. 392, 175 S. W. 2d 380.

But since the Commission found as a fact that the appellant failed to prove by a preponderance of the evidence that he received any injury at all while working for Marshall, we need not dispose of the case on the question of whether appellant met the requirements of the statute regarding a claim for compensation due to hernia.

The only evidence that he received an injury while working for Marshall is the testimony of appellant himself. There is no corroborating testimony, direct or circumstantial. Since he is a party, the Commission is not bound to accept his uncorroborated testimony. Cousins v. Cooper, 232 Ark. 605, 339 S. W. 2d 316; Horn v. Horn, 232 Ark. 723, 339 S. W. 2d 852. Appellant appeared before the Compensation Commission and testified on direct and cross examination; the Commission had an opportunity to observe him and his demeanor. In addition, there is circumstantial evidence that goes to the merits of the case. In the first place, although appellant claims that he received an injury that caused a rupture on Saturday afternoon, three hours before closing time, he said not a word about it to anyone, made no complaint about suffering any pain, and finished out the days work. Furthermore, he called appellee the following Monday and offered to go out and help if he was needed. At that time he said nothing about having been injured, and, in fact, went to work at another place still claiming no injury until such time that he attempted to lift the heavy quarter of beef at Mr. Blagg’s place. Mr. Blagg had no workmen’s compensation insurance and appellee does have it.

We cannot say that the Commission’s finding is not supported by substantial evidence, and according to many decisions of this court, the judgment will, therefore, be affirmed.


author:
Carretón Harris, Chief Justice.
      Ed. F. McFaddin, Associate Justice Sam Robinson, Associate Justice

text:
    Cody and Muse v. State.
    5091
    371 S. W. 2d 143
    Opinion delivered October 14, 1963.

      Penix & Penix, for appellant.

      Bruce Bennett, Attorney General, By Richard B. Adkisson, Asst. Atty. Gen., for appellee.
   Carretón Harris, Chief Justice.

This appeal results from the refusal of the Craighead Circuit Court to dismiss forgery charges against appellants on grounds of double jeopardy. The facts, briefly, are as follows:

Appellants, James D. Cody and Gardner Lee Muse, were arrested and incarcerated in the Craighead County Jail on November 17, 1962. An information charging them with forgery was filed ten days later in the Circuit Court. Neither defendant was able to make bond, •and they have remained in custody since their arrest. Five months later the court was advised that appellants were indigent and unable to retain counsel; the court, on April 17,1963, appointed counsel to defend appellants on the charge, and the next day, April 18, the trial began. The jury was selected, impaneled and sworn, and the state proceeded to call five witnesses, including merchants, whose testimony dealt with the claimed forgery, and officers, who testified to a confession by Muse and certain oral statements by Cody. Defense counsel moved for a mistrial after the Muse confession was read, because the confession included incriminating statements relative to Cody. The jury was instructed that the evidence should not be considered as to Cody, and the motion for mistrial was overruled. At the conclusion of the testimony of these five witnesses, the state rested. Charles Muse, a brother of defendant Muse, was placed on the stand, evidently for the purpose of testifying to mental incompetency on the part of his brother, dating back to a harrowing war experience, but when Charles was asked, “Where has your brother been in the years since World War II?” the Prosecuting Attorney objected, and the court sustained the objection. Appellant, Gardner Muse, then testified, stating, inter alia, that he was drunk and had been in that condition for two days at the time the checks were written; that he had no recollection of writing same, and subsequently mentioned that he had taken a number of shock treatments. At the conclusion of his testimony, the trial was- recessed over the weekend. When the court reconvened on Monday morning, the trial judge in chambers made the following statement :

“On Thursday, April 18, 1963, at about 4:45 P.M. this Court was recessed until this morning. At the time of the recess the defendant, Gardner Lee Muse was on the stand. The defendant Muse had entered a general plea of not guilty to the crime of forgery upon which he is being tried. Prior to the commencement of the trial no notice had been given or indication made that insanity would be a defense. During the course of examination of witnesses, the testimony drifted toward the defendant’s actions tending to lead to a showing of the possibility of insanity. Certain rulings were made by the Court relative to the issue of insanity and of the competency of testimony relating thereto. During the adjournment of this case, the Court has had an opportunity to further consider the matter and the law pertaining thereto and now makes this ruling: under the general plea of not guilty, this defendant has the right to avail himself of any defenses which the testimony adduced in this cause tends to establish including that of insanity. Any ruling heretofore made by the Court in conflict herewith shall be superseded by this ruling. If any of the parties wish to recall any of the witnesses for further examination in view of this ruling, they will be permitted to do so.”

--The state, through the Assistant Prosecuting Attorney, then moved the court to declare a mistrial in the case, and order Muse committed to the Arkansas State Hospital for observation and examination. This motion was made on the basis of; Ark. Stat. Ann. § 43-1301 (Supp. 1961), the pertinent portion of which provides:

“If the trial had already begun when the issue of insanity is raised, and the court deems it necessary for the proper administration of. justice that a mistrial be declared, it shall be the duty of the judge to declare such mistrial, and then to proceed as herein provided. * * *”

Defense counsel objected, and the court denied the motion, stating:

“If after proceeding with the evidence it is shown that there is a possibility of insanity, then the Court under the statute can exercise its discretion as to declaring a mistrial and have him sent to the State Hospital for observation, or in the alternative, may have him examined by two local doctors. At this time the Court finds nothing in the record to justify a mistrial for observation of the defendant.”

Charles Muse, the brother of appellant, was then recalled to the stand, and testified that, the mental condition of his brother had radically changed after the war. He related a number of incidents which tended to show a highly nervous and incompetent condition, and further testified that his brother had, in 1960, been a patient in the Psychiatric Ward at Kennedy Hospital, where he had received a number of shock treatments, and had also been committed to the Mississippi State Hospital twice. Following the testimony of this witness, the court called a short recess, and in chambers made the following statement to counsel:

“Gentlemen, in view of the trend of the testimony that has been adduced from this particular witness, the brother of the defendant, and a close associate, the court deems it necessary for the proper administration of justice to declare a mistrial and commit the defendant to the State Hospital for observation.”

Defense counsel strenuously objected, and likewise vigorously objected and noted exceptions when the court announced that it was declaring a mistrial also as to Cody, counsel announcing that he would plead double jeopardy as to both defendants. The court entered its order directing that Muse and Cody be delivered to the State Hospital for Nervous Diseases for the purpose of observation and examination, and directed that all proceedings in the case be held in abeyance pending the completion of such examinations. Appellants filed their motion seeking dismissal of the cause on grounds of ■former jeopardy, and the court entered its order overruling such motion, and granting an appeal.

Before discussing appellants’ contentions, we might first make mention of one of the arguments advanced by the state. In the instant case the Prosecuting Attorney, after the court had announced that it was declaring a mistrial as to Cody, called attention to the fact that this defendant had already moved for a mistrial himself, and the Prosecutor stated: “At this time the state joins in the motion * * * that a mistrial be granted in this case.” Counsel for appellants then asked to withdraw the -motion. It is difficult to determine from the record what action was taken by the court in this respect; in fact, the record does not reveal that any order or statement was made by the court relative to this request. It does not appear, however, that the court’s order declaring a mistrial was in any wise based on defendant’s earlier motion. Of course, this motion had already been passed upon and was not at issue when the insanity of Muse was suggested by the evidence.

The Attorney General argues that Cody, by his earlier request for mistrial, “waived his constitutional right of jeopardy notwithstanding the trial court originally denied the motion * * We do not agree with this argument. The situation is closely akin to the Florida case of State v. Himes, 15 So. 2d 613. In that case, the defendant moved for a mistrial on grounds of the admission of improper testimony (as was here done), and the motion was overruled by the trial judge. Thereafter, the state after it appeared that it would be unable to establish a case, joined in the motion, and the defendant attempted to withdraw his motion, which the court denied, such denial being based upon the fact that the-state had already acquiesced in the motion. The Supreme-Court of Florida reversed the trial court, holding that the defendant should have been permitted to withdraw his motion. Here, too, even if the court had based the mistrial on appellants’ earlier motion (which evidently was not the case), we would reverse, and hold that the motion for withdrawal should have been granted.

Appellants devote the- first point in their brief to the fact that the order overruling the motion to dismiss is appealable, and, among other cases, cite Jones v. State, 230 Ark. 18, 320 S. W. 2d 645. However, the appealability of the order is not at-issue since no motion has been made by the state to dismiss the appeal, the Attorney General apparently conceding that the order is appealable, and that Jones v. State is sufficient authority for that conclusion. While it is true that the second trial has not been set, and it is within the realm of possibility that a second trial would never be held, tbe proceedings need not advance to that extent before tbe issue of double jeopardy can be passed upon. In tbe Jones case, we said:

“When the jury is finally sworn to try tbe case (§43-2109 Ark. Stats.), jeopardy has attached to tbe accused; and when, without tbe consent of tbe defendant, express or implied, tbe jury is discharged before tbe case is completed, then , tbe constitutional right against double jeopardy may be invoked, except only in cases of ‘Overruling necessity.’ ”

Of course, it would be pointless to send a case back for re-trial, necessitating tbe additional expense to tbe county, and depriving tbe defendants of their freedom for months longer, if we feel that tbe contention of double jeopardy contains merit and would eventually be upheld under the facts presented. As stated in Jones v. State, supra:

“If tbe defendant’s claim against double jeopardy contains merit, then tbe Constitution requires that be should be freed; and tbe denial of bis freedom is tbe point at issue. Furthermore, having concluded—as we have—that tbe appellant’s plea of former jeopardy was well founded, it would certainly be putting form above substance for us to hold that he could not prevail at this time on bis motion to discharge; but that be would have to suffer a long and expensive trial before be could bring to this Court the issue of former jeopardy. Justice demands that an accused have bis rights tested and determined speedily. As the Constitution says in Article 2, §13: ‘Every person is entitled . . . to obtain justice . . . promptly and without delay.’ ”

Tbe quoted language is appropriate in tbe case before us since we have concluded that tbe appellants ’ plea of former jeopardy is well founded.

Appellants vigorously argue that Section 43-1301 (heretofore referred to) is unconstitutional in that it, in effect, subjects a defendant to double jeopardy and is thus in conflict with Article 2, Section 8, of the Constitution of the State of Arkansas. We do not agree with this contention. This court has rendered several opinions which hold that the defense of double jeopardy may not be invoked if the court has discharged the jury and declared a mistrial because of “overruling necessity.” McDaniel v. State, 228 Ark. 1122, 313 S. W. 2d 77; Franklin v. State, 149 Ark. 546, 233 S. W. 688, and cases cited therein. This is in line with the general rule which is found in 22 C.J.S., Section 259, Page 674.

“The manifest necessity permitting the discharge of a jury without rendering a verdict and without justifying a plea of double jeopardy may arise from various causes or circumstances; but the circumstances must be forceful and compelling, and must be in the nature of a cause or emergency over which neither court nor attorney has control, or which could not have been averted by diligence and care.”

In construing the statute under attack (43-1301) we must do so in view of, and in conformity with, the previous holdings of this court relative to “overruling necessity,” wherein we have stated, that, in such cases,, the constitutional prohibition is not violated. Under our decisions, we think the statute is perfectly valid, and the-court may declare a mistrial when the issue of insanity suddenly enters the case, provided that the circumstances, are compelling or give rise to an emergency over which neither court nor attorney could have any control or which could not have been averted by diligence and care. For instance, if a defendant first showed signs of insanity during the trial, or if background facts, which could not have been earlier determined, indicated insanity, or if the prisoner had been represented by counsel who had advised court officials that no issue of insanity would be raised, the court might well be justified in declaring a mistrial because of “overruling necessity.” But the facts in the present case do not conform to those examples.

As far as Cody is concerned, the record reflects neither a plea of insanity nor a single line of evidence that would suggest this appellant to be insane. Even if the mistrial had been justified as to Defendant Muse, there was nothing to prevent the continuation of the trial as to Cody. It is apparent that there was no compelling reason, nor emergency, which made necessary the order of mistrial as to this appellant.

Turning to Muse, the transcript reflects that prosecuting officials had been in possession of the record sheet from the Department of Justice for several months, and this sheet lists “S. H. Whitfield,. Miss., Gardner Lee Muse, February 6, 1961, patient.” From the colloquy between counsel, it appears that the sheet also reflected, “S. Hospital, Whitfield, Miss.” While it is true that the record does not reflect the nature of the illness, or the report made by the hospital, we think the mentioned notation was sufficient to suggest to law enforcement officials that further inquiry should be made, particularly since the Arkansas institution for nervous diseases is likewise known as the State Hospital. A letter, telegram, or phone call to the State Hospital at Whitfield would doubtless have enabled these officials to have obtained pertinent information.

As heretofore pointed out, these prisoners had been in jail for five months before an attorney was appointed to represent them. If the Circuit Court had been advised that two indigent prisoners were in the jail, and in need of counsel, that court could have appointed an attorney who would have then had an opportunity to confer with the clients, ascertain, their backgrounds, and apply for an appropriate order before the case was set. [Ark. Stat. Ann. § 43-1304 (Supp. 1961).]

Under the circumstances herein, there was but little opportunity for appointed counsel to acquaint himself with Muse’s past history, since he was appointed one day, and the trial commenced the next.

We hold that Section 43-1301 is valid, and when the issue of insanity is raised after the trial has commenced, the court may, where necessary for the proper administration of justice, declare a mistrial and commit a defendant to the State Hospital for observation. However, by “necessary,” we mean “overruling necessity,” as the term has been used herein.

In the instant case, we find no “overruling necessity, ’ ’ and this view is strengthened by the fact that the court’s action in declaring a mistrial meant that these defendants would remain in jail for a number of months longer, and it would now appear that they have been in custody for about ten months. Article 2, Section 10, of our State Constitution, provides that ‘ ‘ The accused shall enjoy the right to a speedy and public trial * * Appellants vigorously objected and excepted when the court entered its order. We think the objection was well taken, and the court should have granted the motion filed by appellants seeking dismissal of this case against them.

In accordance with the reasoning herein expressed, the court’s order overruling the motion to dismiss on grounds of double jeopardy is reversed, cancelled, and set aside, and this cause is remanded to the Circuit Court with directions to enter an order dismissing Case No. 8255 against these appellants.

It is so ordered.

McFaddin, J., dissents; Robinson, J., concurs.

Ed. F. McFaddin, Associate Justice

(dissenting). I respectfully but vigorously dissent from the Majority Opinion; and here, in headnote style, are the reasons for my dissent:

I. The plea of former jeopardy, or double jeopardy, is premature in this case and should not be sustained. Former jeopardy can only be pleaded when the State attempts to bring the defendants to trial again.

II. Since the plea of former jeopardy is premature in this case, there is no occasion for this Court to now consider any of the other matters urged by the appellants.

III. But, if the other matters are considered, I am firmly of the opinion that the Trial Court did not abuse its discretion in ordering a mistrial.

Now, I elaborate:

On April 18,1963, the defendants were jointly placed on trial for forgery. In the course of that trial one of the defendants introduced evidence of insanity; and there was evidence that the other defendant was intoxicated at the time of the alleged offense. On April 22, 1963, the second day of the trial, because the insanity matter was brought into the case, the Trial Court declared a mistrial and sent both of the defendants to the State Hospital for examination under the provisions of Ark. Stat. Ann. §43-1301 (Supp. 1961). Then on April 25, 1963, the defendants moved that the charges against them be dismissed on the grounds: (a) that Ark. Stat. Ann. §43-1301 was unconstitutional; and (b) that the defendants had been placed in jeopardy “and to subject them to another trial would cause them to be placed in double jeopardy. ”

The Court overruled the motion to dismiss; and from that order there is this appeal. The Majority is now holding that the Trial Court should have dismissed all charges against these defendants, for here is the concluding language of the Majority Opinion:

“In accordance with the reasoning herein expressed, the court’s order overruling the motion to dismiss on grounds of double jeopardy is reversed, cancelled, and set aside, and this cause is remanded to the Circuit Court with directions to enter an order dismissing Case No. 8255 against these appellants. It is so ordered.”

Just because the trial was not completed, the defendants are now to be discharged as free of the charged offense, when there is testimony that one of them was insane and that the other defendant was intoxicated. The Majority reasons to its said conclusion on the theory of former jeopardy, or double jeopardy, as it is sometimes called. I have always understood that the plea of former jeopardy was a plea that was made by a defendant when he was brought to trial the second time, and related to the fact that he had been placed in jeopardy in a previous trial.

The point I emphasize is, that it is not until an attempt may be made to bring these defendants to trial a second time that the plea of former jeopardy can be made. In the case at bar there is no definite showing that the State will ever endeavor to try either of these defendants on the charge for which this mistrial was declared. The result of the examination at the State Hospital, or any one of a number of subsequently occurring events, may convince the Prosecuting Attorney of the futility of further prosecution; but, at all events, former jeopardy cannot be pleaded until the State attempts a second trial; so I think the plea of former jeopardy is premature in the present staté of this record. I would dismiss the present appeal of the appellants.

The Majority seeks to justify the plea of double jeopardy in the present case by quoting some, but not all, of the language in Jones v. State, 230 Ark. 18, 320 S. W. 2d 645. A brief review of the Jones ease will show the great difference in the factual situation between that case and the case at bar. In the Jones case, Jones was placed on trial, and a mistrial declared on October 9, 1957, over Jones’ opposition. He did not attempt to appeal from such mistrial. Later, on April 1, 1958, when the Prosecuting Attorney called the case against Jones for setting for trial, Jones then (six months after the first trial and when he was about to be retried) pleaded former jeopardy. The Trial Court denied the plea of former jeopardy and Jones appealed from the refusal of that plea made in April 1958. We held that the refusal of the plea of former jeopardy in April 1958 was appealable, saying, as quoted in the Majority Opinion, that the plea of former jeopardy should be decided before the defendant was forced into a long trial. It was in regard to the appeal in April 1958, in advance of the complete retrial, that the language was used in the Jones case which is quoted in the Majority Opinion in the case at bar. The point that I am making is that it is not until an attempt is made to bring the defendant to trial a second time that the plea of former jeopardy can be made.

We have an Arkansas case that sheds considerable light on the situation. It is the case of Carson v. State, 198 Ark. 102, 128 S. W. 2d 373. In that case Carson was charged with first degree murder, and when brought to trial in September 1938 he pleaded insanity, and the jury returned a verdict that he was insane at the time of the trial. The Trial Court decided that the question should not have been submitted to the jury; so the Trial Court, on its own motion, declared a mistrial and sent the defendant to the State Hospital for examination. Now notice that even after the jury brought in its verdict, the Court set the verdict aside and declared a mistrial and sent the defendant to the State Hospital. Two months láter, when the hospital reported the defendant sane, the defendant was again brought to trial and he pleaded double jeopardy, and pointed out that a jury had been impanelled, a jury verdict rendered, the jury verdict set aside, the Court had declared a mistrial, and had committed the defendant. This Court said the plea of double jeopardy could not be sustained; and here is the wording of the Majority Opinion:

“ It is finally argued that the court erred in refusing his plea of former jeopardy. At the first trial, the court submitted three issues: (1) Whether appellant was guilty of some degree of murder; (2) whether he was insane at the time the crime, was alleged to have been committed; and (3) whether he was insane at the time of trial. The jury found him insane at the time of trial and nothing more, and thereafter the court declared a mistrial. This was not sufficient to support the plea of former jeopardy. The rule is stated in 15 Am. Jur., p. 51, as follows: ‘ One found by the jury to be insane at time of trial cannot plead former jeopardy when arraigned a second time on the same charge, although the jury at the same time returned a verdict of guilty which was set aside by the court.’ Our statute, §3881 of Pope’s Digest, is persuasive to this same effect.”

In keeping with the holding of this Court in the case of Carson v. State, supra, I maintain: (a) that not only could the plea of double jeopardy not be made at the time that it was made in the case at bar; but (b) that it would not be a good plea at any time under the facts in this case. I submit the Carson case as full authority for my position.

Finally, I maintain that the Trial Court did not abuse its discretion in the case at bar in declaring the mistrial and in ordering the defendants committed to the State Hospital for examination; and I entirely dissent from that part of the Majority Opinion which says that there was no “overruling necessity.”

For each and all of the reasons herein stated I respectfully but vigorously dissent from the Majority holding in the case at bar.

Sam Robinson, Associate Justice

(concurring). This is an appeal from an order of the trial court overruling a motion made by appellants to dismiss the charge against them. Appellants alleged in the motion that they had been put in jeopardy on a previous occasion and to put them on trial again would place them in jeopardy the second time in violation of Article 2, Sec. 10 of the Constitution of the State of Arkansas.

The principle announced in Jones v. State, 230 Ark. 18, 320 S. W. 2d 645, is squarely in point with the case at bar, and is authority for the proposition that an appeal will lie from an order overruling a motion to dismiss where it is alleged in the motion that if the defendant was again put on trial it would amount to double jeopardy.

On November 17, 1962, the appellants were arrested on a charge of forgery. They were placed in the county jail and have been there since that time. On November 27, 1962, the prosecuting attorney filed in circuit court a felony information charging the defendants with forgery. They were indigent and unable to employ a lawyer. Article 2, Sec. 10 of the Constitution provides: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial . . . ”. Ark. Stats. 43-1203 provides that if a defendant is unable to employ counsel, it shall be the duty of the trial court to appoint a lawyer to conduct the defense.

Article 2, Sec. 8 of the Constitution provides: “. . . No person, for the same offense, shall be twice put in jeopardy of life or liberty . . .”. Jeopardy attaches when a jury is sworn to try the case. In Whitmore v. State, 43 Ark. 271, the court said: “This court has, heretofore, drawn the line where jeopardy begins at the swearing in of the jury to try the issue. And this is in accordance with the overwhelming weight of authority and with the best considered cases. If, after that, the jury is discharged without an obvious necessity and without the defendant’s consent, express or implied, he cannot be again placed upon trial for the same offense, where life or liberty is involved.”

In construing the double jeopardy provision of the Constitution we have held, however, as pointed out by the majority, the constitutional interdiction against double jeopardy is not applicable where a jury has been discharged because of an “overruling necessity”. There does not appear to have been such a necessity in the case at bar. The same information that developed during the trial regarding the mental condition of the defendant could very easily have been obtained by the prosecution months before the case came on for trial.

       Referring to the original trial.

       Emphasis supplied.

       In U. S. v. Haskell, Pa., 26 F. Cas. No. 15, 321, the members of a jury reported to the court that one of their fellow jurors, from his actions and conduct, was apparently insane; the jury rendered a verdict of guilty, but when the jury was polled, this juryman, evidently quite agitated, and declaring that he was not “quite collected,” answered, “Not guilty.” From his personal observation of the juror and the reports made from other jurors, the court declared a mistrial and discharged the jury. The next day, the defense contended that the discharge of the jury amounted to an acquittal (raising the double jeopardy argument) which contention was denied. On appeal, the Circuit Court of Appeals held that this was a case of necessity, and that the trial court had not abused its discretion in discharging the jury-under the circumstances.

       This record, commonly called “rap sheet,” is compiled through finger-printing, and sets out all arrests, convictions, or entrance into any jail or institution where the finger-prints of a subject are taken upon admission.

      Muse, in his confession and in his testimony, stated both he and Cody were intoxicated. Cody did not testify.

       For a discussion of former or double jeopardy see 15 Am. Jur. p. 38 et seq., “Criminal Law” §359 et seq.; and see also 22 C.J.S. p. 614 et seq., “Criminal Law” §238 et seq.; and on when the plea of former jeopardy can be made, see 22 C.J.S. p. 1244 et seq., “Criminal Law” §440 et seq.

      The Jones opinion recites, on page 20 of the Arkansas Report: “The Court declared a mistrial on October 9. 1957; but did not rule on the jeopardy plea at that time. Then, on April 1, 1958, the following occurred in Court: ...”

      This was in accordance with the general rule, as contained in 14 Am. Jur. p. 958, “Criminal Law” §382: “The better practice seems to be to try and determine a plea of former jeopardy before commencing the trial on the merits for, if the plea, is sustained, the defendant goes free and there can be no trial.”


author: Carretón Harris, Chief Justice.

text:
    Fine v. City of Van Buren.
    5-3080
    371 S. W. 2d 132
    Opinion delivered October 14, 1963.

      Batchelor & Batchelor and Bains & Bains, for appellant.

      Conrad Ochenfels Pugh, Townsend <& Townsend, for appellee.
   Carretón Harris, Chief Justice.

Van Burén, Arkansas, is a city of the first class. On August 7, 1962, Ordinance No. 6-1962, authorizing an issue of $702,200.00 in sewer revenue bonds, was approved by the voters of Van Burén, and on November 12, 1962, Ordinance No. 11-1962 was passed, which established the rates to be charged for sewer service. On January 3, 1963, appellants filed with the City Clerk of Van Burén a petition to initiate an ordinance (No. 2A) which would have the effect, inter alia, of repealing Ordinance No. 6-1962 and Ordinance No. 11-1962. This initiated petition was filed more than 90 days prior to the next general or regular election in the City of Van Burén (which will be held November 5, 1963). No action was taken by the City Clerk or the city officials on the petition, and on February 5, 1963, appellee, the City of Van Burén, filed, in the Crawford County Chancery Court, a petition for a declaratory judgment, praying that the Court enter a judgment holding the initiated petition invalid. Appellants filed a demurrer, which was overruled, and thereafter, an answer was filed. On hearing, the court entered its declaratory judgment in which it found that the City of Van Burén had never passed an ordinance fixing the time in which initiative petitions might be filed, and further finding that the initiated petition herein discussed, was “invalid, in that it was filed more than 90 days before the next general or regular election in said city, contrary to the Constitution of the State of Arkansas; and the Initiated Petition and the Initiated Ordinance it contains are therefore set aside and held for naught, * * "While the question of whether the city had the right to invoke the declaratory judgment procedure as a matter of determining the validity of the initiated petition is argued pro and con by the parties hereto, under the view that we take, it becomes unnecessary to dispose of this matter. Bather, our discussion will be limited to the main issue set forth in Item 5 of the stipulation, which reads as follows:

“It is hereby stipulated and agreed that the sole and only question to be presented to the Court herein, other than said demurrer, is the question of whether a Petition to Initiate a City Ordinance in the City of Van Burén, Arkansas, can be filed more than 90 days prior to the General Election at which it is to be voted upon, the Petition to Initiate City Ordinance herein to be determined having been filed January 3, 1963, and the next City General Election in the City of Van Burén, Arkansas, after said filing being November 5, 1963, and more than 90 days after the filing of said Initiated Petition.”

The Arkansas Constitution, Amendment 7, Section 1, under the heading, “Local Petitions,” provides:

“Municipalities may provide for the exercise of the initiative and referendum as to their local legislation.

“General laws shall be enacted providing for the exercise of the initiative and referendum as to counties * * * In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty days nor more than ninety days before the election at which it is to be voted upon; for a referendum petition at not less than thirty days nor more than ninety days after the passage of such measure by a municipal council; * * *.”

With the exception of one case, all cases herein cited by counsel deal with the question of whether petitions were filed “too late” rather than “too early,” and in some cases, the point here raised was not at issue. The exception referred to is Southern Cities Distributing Co. v. Carter, 184 Ark. 4, 41 S. W. 2d 1085. This case was relied on in large measure in our most recent opinion on the subject herein discussed, which, incidentally, is not cited in the briefs. That case, decided October 22, 1962, is Armstrong, County Clerk v. Sturch, 235 Ark. 571, 361 S. W. 2d 77. There, petitions were filed with the clerk on July 23, 1962, which was more than 90 days before the general election (November 6, 1962). Appellant strongly argued the same contention that is relied upon by appellees in the instant litigation. In deciding that the petitions were timely filed we called attention to Southern Cities Distributing Co., supra, stating:

“Our holding in Southern Cities Distributing Company v. Carter, 184 Ark. 4, 41 S. W. 2d 1085, bears some similarity to the issue at hand. There, a referendum petition was filed to refer a municipal ordinance, and was filed less than 30 days after the enactment of the ordinance. This court held that the latter fact did not invalidate the petition, under the provisions of Amendment No. 7 to the Constitution, stating:

‘The amendment provides the time for filing a referendum petition at “not less than thirty (30) days nor more than ninety (90) days after the passage of such measure by a municipal council.” .This does not mean, of course, that the petition for a referendum cannot be filed less than 30 days after the passage of the measure sought to be referred, but only that the city must allow at least 30 days after the passage of the measure for the filing of a referendum petition thereon, and cannot allow more than 90 days. * * * It is true the referendum petitions were filed * * * less than 30 days after the adoption of such measure, but they remained on file and were on file after 30 days after the passage of the gas rate resolution, and were passed upon and certified by the city clerk on the thirty-first day after the passage of the resolution as containing sufficient signatures of qualified electors to authorize the referendum petitioned for. The referendum petitions, although they could not have been required to be filed in less than 30 days after the passage of the measure sought to be re-referred, were in no wise invalidated by having been sooner filed. ’

“We think the same reasoning applies to the filing of an initiative petition under Amendment No. 7, and the language ‘In municipalities and counties the time for filing an initiative petition shall not be fixed at less than sixty (60) days nor more than ninety (90) days before the election at which it is to be voted upon’ simply means that the legislature may not require that the petitions be filed earlier. It will be noted that the amendment itself does not definitely fix the time, but appears rather as a directive to the legislative body, circumscribing and limiting its authority in the matter.

“Of course, viewing the matter from a practical standpoint, appellants, or the general public, have not in any manner been misinformed or misled because the petitions were filed on July 23rd rather than August 8th. As stated in Southern Cities Distributing Company v. Carter, supra, the petitions remained on file with the proper officer.’ ”

We are committed to a liberal construction of this amendment, bearing in mind the purpose of its adoption and the object it sought to accomplish. Leigh and Thomas v. Hall, Secretary of State, 232 Ark. 558, 339 S. W. 2d 104. In other words, as held in that case (and cases cited therein), the acts of the electors “should not be thwarted by strict or technical construction.”

One other matter should be mentioned. In concluding their brief in this court, appellants pray that they “be permitted to correct typographical error in said initiative ordinance. ’ ’ This is the only mention made in appellant’s brief, and appellee does not mention it at all in its brief. The transcript reflects that, with their answers appellants filed Exhibit “A” which they stated “is a true and correct representation of the petitions herein filed, except that it is possible the date for final payment of said bond issue may show 1967 instead of 1987, but if so, this is a matter of clerical and typographical error correctable under the Constitution of the State of Arkansas, and deny that should said proposed initiated ordinance become an ordinance of the City of Van Burén, Arkansas, that it would, in any wise, be invalid, but that should any provision thereof be considered invalid that the severability clause therein would protect the remainder thereof.” There is no prayer asking the trial court to make this correction; however, in its judgment, the court made the following finding:

“That the copy of the Initiated Ordinance attached to the answer of the defendants as Exhibit A is not like the original, in that Section 3 of said ordinance as copied recites that the bonds should mature serially from 1963 to 1987, whereas the original petition through typographical error recited the maturity dates to be 1963 to 1967. ’ ’

The basis for the court’s finding is not shown since no evidence was taken, and the matter (of the error) is not included in the stipulation.

We are without authority to grant relief which was not sought in the court below. Porter v. Morris, 131 Ark. 382, 199 S. W. 106.

It follows, from what has been said that the declaratory judgment rendered by the court is reversed, set aside, and held for naught, and this cause is remanded to the Crawford County Chancery Court with directions to dismiss the complaint, and, for good cause shown, an immediate mandate is ordered.

      This ordinance was later approved at a referendum election.

       This refers to the question of whether the declaratory judgment law can properly be invoked.

       More properly, the city legislative authority.