text:
    Brown v. State.
    5131
    395 S. W. 2d 344
    Opinion delivered November 8, 1965.
    [Rehearing denied November 29, 1965.]

      E. V. Trimble, for appellant.

      Bruce Bennett, Atty. General, By: Beg. E. Wallin, Asst. Atty. General, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Walter Lonnie Brown, was convicted of murder in the first degree by a Jefferson County jury, which fixed his punishment at death in the electric chair. The information alleged that Brown killed Mrs. Hester Wares by shooting her with a pistol, while perpetrating the crime of robbery. Mrs. Wares was shot on July 15, 1964, and died the next day. From the judgment entered in accordance with the jury verdict, appellant brings this appeal. For reversal, appellant lists nine separate points, and the motion for new trial contains thirty-one assignments of error, though some of these overlap with the listed points. Pursuant to our procedure in capital cases, we have examined each point argued, and each assignment set out in the motion for new trial, as well as each objection made during the course of the trial.

We first proceed, to a discussion of the evidence upon which the conviction was based. Baymond Jones, Jr., testified that he, Walter Brown (appellant herein), Howard Brown, Jessie Anderson, and Joe Nathan Nelson, were together on the night of July 15, 1964. They had met as Geneva, Arkansas, and had planned to drive to Mississippi. The group was traveling in a 1956 two-tone Buick, owned by Howard Brown. According to Jones, they came to Pine Bluff about 11:30 that night, and appellant, together with Joe Nelson and Howard Brown, got out of the car for the purpose of robbing the Trio Liquor Store, located on Highway 65 in North Pine Bluff. All three were armed with 22 pistols. Nelson remained outside the store near a phone booth, and the two Browns went inside. When they returned to the automobile, Nelson asked appellant if he had shot the woman in the store, and the latter replied, “Yes.” Jones stated that money was taken in the robbery, but he did not know the amount. The men then drove to Walter Brown’s house in Little Rock, where they divided the money, and commenced gambling. The witness stated that he received $12.00, and that the others also received part of the money. Jones said that Walter Brown turned a short-barrel 22 pistol over to him the next day, and he in turn gave it to the officers at the time of his apprehension. The witness also testified that, though all were drinking, none were drunk.

Officer Edward Shipman of the Pine Bluff police, force testified that he and Officer' Holland passed the liquor store after midnight, during their patrol, and, noticing that the lights were still on in the building, went inside to investigate. They found Mrs. Wares lying on the floor behind the counter, and in the doorway of an adjoining room. She stated that two colored, men, one tall, and one short, had come into the store, and that she had been shot by the tall one. An ambulance was called, and Mrs. Wares was removed to the hospital.

Dr. Joseph Robinette testified that he examined Mrs. Wares, and, during surgery, found that she had been severely injured from a bullet wound; he stated that she subsequently died as a result of that wound.

Dr. Frank Reed, Jefferson Comity Coroner, testified that he removed a small bullet from the body, and that her death was the result of a gunshot wound through the abdomen.

Buddy Garner, an employee of a movie theater near the liquor store, testified that he left his work around 11:30 on the night of July 15, and, while passing the Trio Liquor Store, saw someone run and jump into a ’56 Buick, which was two-tone in color and which was occupied by several people.

Bulah Smithy, another employee of the liquor store, obtained Mrs. Wares’ clothing at the hospital, and turned same over to Night Chief William Howard of the Pine Bluff Police Department.

Appellant was arrested in Little Rock on July 19 by Henry Atkinson, an investigator with the Criminal Investigation Division of the Arkansas State Police. Brown was taken to the Little Rock Police Department, and turned over to Sergeant W. A. Tudor of the State Police. Tudor testified that he talked with Brown, first advising appellant that he had a right to have an attorney, and further advising that Brown did not have to make any statement whatsoever. Tudor said that he made no promises to appellant, and did not abuse, threaten, or intimidate him in any manner. Appellant denied any knowledge of the killing, but admitted traveling to Pine Bluff, and participating in a robbery of the liquor store. Appellant said that he was not armed, but was present “when the woman fell to the floor.” Brown stated that he had gone to Pine Bluff in Howard Jones’ two-tone Buick. The officer said that appellant had been in custody about an hour and a half when he talked with him. Subsequently, R. D. Bentley, a lieutenant of the Little Bock Police Department, together with Detective Goodwin, located two expended cartridge hulls at Brown’s home. These officers turned the cartridges over to Major Paul McDonald of the Arkansas State Police.

Officer William Howard, Assistant Chief of Police in Pine Bluff, talked with Brown on July 21. Chief Howard testified that Brown was .not intimidated or abused, nor made any promises of immunity from prosecution. Accompanied by Deputy Sheriff Buck Oliger, Officer Howard and Brown started to the liquor store. On the way, Brown said that he would like to change his statement; that he was the one who shot the lady in the store, and that he shot her with his short-barrel 22 pistol. The appellant pointed out the liquor store, and described where the car had been parked. The officers then went inside with Brown, and appellant detailed how the crime was committed. According to Officer Howard:

‘ < # * # £kat walked into the liquor store turned to the left, which would be the north side of the liquor store and someone in his group asked for a fifth or some kind of liquor and the lady turned to go to the shelf, shelves of liquor which would be at the right of the storeroom door on the top shelf and he said the lady reached up on that shelf as she was going to get the fifth of liquor and that’s when he went behind the counter and grabbed the lady from behind with his left hand over her mouth and he said that must have excited the lady because she jerked away from him as though she was excited and she had the bottle of liquor over her head and then he stepped back about two feet, he said, and pulled his gun, a short barrel gun, from his belt and shot the lady. * * * ”

Brown then asked where the money was, and Mrs. Wares first stated that the boss had taken it to Little Bock, but when asked again, she replied that all the money was in the cash register.

Major McDonald of the State Police, a ballistics expert, after explaining the manner of conducting tests, testified that he had made tests with the pistol turned over to him by Officers Atkinson and Crump, and that, in his opinion, the fatal bullet had been fired by this 22 caliber, short barrel gun. He also testified relative to the dress that Mrs. Wares had been wearing, and stated that an examination of the hole in the dress showed that the gun was fired at close range. Deputy Sheriff Buck Oliger of the Jefferson County Sheriff’s Office, testified that Brown had been advised of his constitutional rights, i.e., he did not have to tell the officers anything, and he did not have to go with the officers to the liquor store to show how the robbery took place.

Appellant took the stand in his own behalf, and admitted that he had shot Mrs. Wares, but stated that the gun “went off.”

From the testimony:

“A. * * * Howard went in first and when I came in she already had her back turned, she never did see my face, by the time I walked in the door Joe Nelson was right behind me and I walked in, walked right on to the left and walked right on behind the counter.
Q. In other words, you went around this counter behind the counter ?
A. Yes sir, right around the end.
Q. What did you go around there for %
A. I was going to hold her.
Q. You were going to hold her and then the other boy, Howard Brown was going to take the money out of the cash register?
A. Either Howard or Joe, I don’t know which one.
Q. Then what happened?
A. And when I reached her she had her right hand on a fifth of whiskey and was reaching around the door after the cigarettes. When I reached at her she turned around and when she turned around she started coming out with the fifth of whiskey and my hand went np like that and 1 pulled the gun out and when I pulled the gun out it went off.
Q. You didn’t pull the trigger to make it go off?
A. No sir.
Q. You mean, you are saying it was a total accident, is that right?
A. Well, I wouldn’t say it was an accident or not ’cause, (interrupted)
Q. You mean you were then shooting at her to kill her?
A. No, no, I wasn’t intending to shoot her. I was just going to pull her back, see, I knew she was a woman and I could handle her, but I had been drinking pretty heavy and when I pulled the gun out it went off. ’ ’

The evidence was clearly sufficient to sustain the conviction.

The first four points- raised by appellant all relate to the question of race prejudice, and are as follows:

1. Members of petitioner’s race were intentionally, deliberately and systematically limited in the selection of petit jury panels.

2. Petitioner is a Negro and members of his race were deliberately and intentionally discriminated against in the selection of petit jury panels.

3. The jury commissioners allowed race to be considered as a factor in the selection of the petit jury panels.

4. The jury commissioners made no special effort to acquaint themselves with Negroes who were quailified for jury service.

The allegations under these points are completely without any foundation in the record, and it is puzzling as to why counsel raises points without any semblance of proof to support his position. There is absolutely no evidence that Negroes were “intentionally, deliberately and systematically limited” in the selection of the panel. Again, there is absolutely no evidence that the jury commissioners allowed race to be considered in selecting the petit jury panel, nor any evidence that they made no effort to' acquaint themselves with Negroes qualified for jury service. The record reflects no objection to the manner in which the panel was selected, and no attempt to show that the jury commissioners practiced discrimination. None of the jury commissioners were called to testify on' this point, nor did appellant offer evidence from any other source relative to the allegations here made. The record does not even reflect the names of the jury commissioners, and further, does not disclose how many Negroes were on the jury panel. As stated, the transcript is completely barren of any evidence on these points, and they apparently were listed only as a matter of “form.”

Point No. 5 asserts that appellant’s confession was coerced and involuntary. Here, again, no argument is presented, nor reference made to any portion of the record which might substantiate this allegation. As a matter of fact, it is apparent that appellant was given every protection that the Constitution affords, and appellant himself, who took the stand and testified, does not charge that he was coerced into making any statement. In fact, his only testimony concerning any sort of intimidation was a reference to Officer Roy Lewis, of the North Little Rock Police Department. Brown, in his testimony, stated that Lewis asked him about some robberies that had occurred in North Little Rock, and he (Brown) told him that he did not know anything about them. According to appellant, Lewis said that he was lying, and the officer started threatening him:

“* # * j Mm that he wasn’t going to make me say anything that, tell a He on myself and he said that he would make me say I shot my mother if he wanted me to. I looked at him and gave him a. smile. He got upon the table to hit me and another detective walked in and then, both of them walked out.* * *
“Well, there was another officer that came in at the time he did he came back in and he had a long yellow sheet of paper and he read off some more robs and asked me did I do them and I told him ‘naw’ and he said it wouldn’t be no use in lying that he would find out whether I did or not and I told him ‘naw’ I didn’t do it and then Officer Tudor came in and asked me did I want to talk it over with him and he told me about everything I said would be held against me and all that.* * *”

Sergeant Tudor testified that he did not see anyone threaten appellant, but, at any rate, if threats were made as related by Brown, no prejudice resulted, for appellant stated that he did not tell Lewis anything. Admittedly, Brown was advised by Tudor that he did not have to make any statement; Tudor likewise said that he told Brown he had a right to an attorney, and that no promises nor threats, of any nature, were made. Officers Howard and Oliger, likewise, testified that no force or threats were employed as a matter of getting Brown to show them how the crime took place.

The evidence is uncontradicted that the statements were made free from duress. In addition, Brown admitted the killing, in open court, before the jury. It is true that he stated the gun “went off,” but he very readily testi- ■ fied that the killing took place while he and his companions were engaged in robbing the liquor store, and this, of course, under our statute, constitutes first degree murder. There were some variances in his testimony from the statements made to officers, but they were not material. For instance, he stated that he did not show the officers the route followed before the robbery; that he did not “grab her,” but only “reached to grab her;” that:

“* * * And when this fellow said that he had the bullet and the lead that came out of the gun, he was lying. Q. The officer was?
A. Whoever said that he had the shell that the lead came out of. I put that bullet in my mouth and chewed it up, that’s why I know he was lying. The gun had six shells in it, when I got to my house I took my little finger nail right here, pulled the shell out and put it in my mouth and chewed it up and spit it out into the bathroom, and the other two shells were found down by the cedar chest. ’ ’

It appears from the transcript that the holding in Jackson v. Denno [decided on June 22, 1964], 378 U. S. 368, was complied with. In that case, the United States Supreme Court said that, prior to submitting any confession to a jury, the court must first hold an evidentiary hearing, and determine for itself that the confession is voluntary. If the court finds that it was involuntary, then, of course, the confession is excluded; if, on the other hand, the court finds that the confession was voluntarily made, it is then submitted to the jury for their consideration, along with other evidence. Before the officers were allowed to testify before the jury as to statements made by appellant, the court first took evidence in chambers as a matter of determining if the confession was free and voluntary. "While the court did not flatly state, “I find the statements voluntary,” the transcript shows, at Page 150, that, after hearing evidence as to voluntariness, the court said, “Okay, the statement will be admitted.” This appears to be an independent determination by the court, and, at the conclusion of the case, the court instructed the jury in regard to statements made by Brown. Furthermore, as previously stated, appellant admitted the killing while testifying during the trial.

It is next asserted that the court erred in refusing to permit appellant to use all of his twelve peremptory challenges. Appellant had only used ten challenges when the jury was finally completed and selected. While the jury was being sworn, counsel for appellant suddenly announced that he desired to exhaust all of his challenges. No reason was given for this request, and it was denied, the court stating:

1 ‘ The entire jury panel had been selected before any •indication was made and while the Clerk was in the act of swearing in the jury the attorney interrupted the court with the statement that he wanted to exhaust all of his challenges without giving any reason and the jury having been selected the motion will be denied.”

This ruling is fully in accord with our prior holdings. In Jones v. State, 166 Ark. 290, 265 S. W. 974, decided in 1924, this court said:

“It is the opinion of the majority that no error was committed in refusing to allow appellant to challenge peremptorily the two jurors who had been accepted. This question was recently considered in the ease of Brust v. State, 153 Ark. 348, and we there quoted from the case of Allen v. State, 70 Ark. 337, as follows: ‘Under the statutes of this State persons summoned as jurors, when called to serve in criminal cases, may be examined under oath touching their qualifications. As each one is called, he is first examined by the State, and then by the defendant, and, after each examination is completed, if the juror is found by the court to be competent, the State shall challenge him peremptorily or accept him; if accepted by the State, the defendant shall challenge him peremptorily or accept him. Lackey v. State, 67 Ark. 416. Each party must challenge or accept in the order named when the court declares him competent. After he is accepted by both parties, he cannot be challenged peremptorily, without permission. The court, for good cause, may permit the challenge to be made at any time before the jury is completed. Sand. & H. Dig., 2202-2217.’
“It is the opinion of the majority that appellant should have stated to the court the reason why he desired to challenge the jurors, after having accepted them, and that it was not sufficient to state merely that he had discovered reasons for believing that the jurors would not be competent. The court has a discretion in these matters, and a reversal will be ordered only where an abuse of this discretion is shown, and no abuse is shown when the accused fails to apprise the court of some fact or circumstance which has caused him to believe that an accepted juror is not acceptable. Where this is not done the court cannot know that appellant is not acting capriciously. ’ ’

See also Cascio v. State, 213 Ark. 418, 210 S. W. 2d 897. This is in line with the general rule which is stated in 50 C. J. S., “Juries,” § 282, as follows:

“Ordinarily there is no right to challenge a juror peremptorily after the juror or jury as a whole has been sworn to try the case or after the ceremony of swearing is begun.”

Here, no reason at all was given for the sudden change of mind, and it may be that counsel made this motion in order that he might later attack the composition of the jury. There was no error in the court’s ruling.

It is contended that the trial court erred in permitting Dr. Robinette to testify as to the treatment he administered to Mrs. Wares after she was shot, and it is also asserted that the court erred in permitting Dr. Frank Reed, the Coroner, to testify relative to an autopsy that he had made on the body of Mrs. Wares. Appellant does not point out the particular testimony he objects to, nor are these points argued by appellant. Certainly evidence as to Mrs. Wares’ condition after the shooting, and the cause of death was material and pertinent to the ' charge, and both of these witnesses, medical physicians, were competent as experts to testify.

Under Point 8, of “Questions Presented,” and Assignment No. 14 in the motion for new trial, it is asserted that the court erred in permitting the witness, Buck Oliger, to testify as to oral statements made to him by the defendant. Assignment 11 also asserts error in permitting Chief Howard to so testify. As previously stated, appellant had already been advised of his constitutional rights, prior to making the statements, and there is no contention that he was mistreated in any manner. Our previous discussion as to the confession covers this point.

Under Point 9 of his motion for new trial, appellant contends that the court erred in permitting Raymond Jones, Jr., to testify that, when appellant returned to the. automobile after the robbery, he stated that he had shot the woman. We have held many times that statements and admissions by an accused, from which an inference of guilt may be drawn are admissible in evidence against him. This declaration against interest was ■ voluntarily made, and it is not contended otherwise. See Dearen v. State, 177 Ark. 448, 9 S. W. 2d 30.

It is contended that the court erred in permitting the state to introduce five photographs as exhibits. These are simply photographs of the exterior, and interior, of the Trio Liquor Store. These photographs could well have been an aid to a better understanding of some of the evidence, and we certainly cannot see how the pictures could have been prejudicial.

It is also asserted in the motion for new trial that the court erred in permitting the dress, shell case, bullet, and pistol to be introduced into evidence, appellant complaining that none of these items were taken off the person of Walter Brown. Counsel did, however, state, “No objection to the dress, Your Honor.” We do not agree that any error was committed. While the shell case, bullet and pistol were not taken from Brown, it was established that these items had been in the possession of defendant. Raymond Jones testified that appellant turned the pistol over to him the day after the killing. The bullet was removed from the body of Mrs. Wares, and the shell hull was found at Brown’s home, in the presence of appellant. The state’s testimony showed every link, step by step, in the chain of evidence from the possession by appellant to the possession'of the articles by Major McDonald of the State Police. Of course, all of these items were relevant to the murder charge, since the bullet was removed from the body, and, according to the evidence, had been fired from the gun introduced, it being established that this pistol was in the possession of appellant at the time of the homicide. It is also alleged that there was error in permitting Major McDonald to show the jury the bullet hole in the dress. This testimony was, however, pertinent to the case in that it corroborated the evidence that Mi-s. Wares was shot at close .range.

Point No. 15 in the motion for new trial alleges that the trial court erred in giving to the jury upon the court’s own motion, written instructions Numbers 1 through 15, inclusive. A general objection only was made to these instructions but all have been examined, and we find no prejudicial error.

Point No. 17 asserts that Ark. Stat. Ann. §§ 43-1921 and 43-1922 (Repl. 1964) are unconstitutional. This is a most unusual contention, in that on the one hand, appellant has stated that he was denied his twelve peremptory challenges to which he was lawfully entitled, and now on the other hand, he asserts that the statute is unconstitutional. Section 43-1921 allows the state ten peremptory challenges in capital cases, and 43-1922 allows the defendant twelve peremptory challenges in capital cases. The point is not argued, and it is difficult to comprehend what this assignment has reference to; apparently this is tied in with appellant’s Point 9, which asserts that ‘ ‘ The court erred in permitting an all-white jury to try the defendant on murder in the first degree, and not sustaining defendant’s motion for a mistrial, because no Negroes were permitted to serve on his jury.” Appellant is evidently contending that a Negro defendant is entitled to have a Negro serve-as one of the twelve members of the jury that hears the case. This contention was passed on adversely to appellant’s allegation in the case of Swain v. State of Alabama, 380 U. S. 202. It was there also asserted that appellant’s rights under the Fourteenth Amendment were violated, because the Negroes on the petit jury panel were stricken by the state through peremptory challenge. After stating, “The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry, and without-being subject to the court’s control,” the court, in an opinion by Mr. Justice White, went on to say:

“* * # jn q^st for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor’s judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.
“In the light of the purpose of the peremptory system and the function it serves in a pluralistic society in connection with the institution of jury trial, ,we cannot hold that the Constitution requires an examination of the prosecutor’s reasons for the exercise of his challenges in any given case. The presumption in any particular case must be that the prosecutor is using the State’s chailenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. Hence the motion to strike the trial jury was properly denied in this case.”

There are some other allegations of error, and various objections to rulings of the court during the trial; however, most of the objections have been covered in our discussion of the several assignments of error. At any rate, we have carefully reviewed and considered every assignment, and every objection, throughout the’ record, and find no merit in appellant’s contentions, nor any erroneous ruling.

Affirmed.

       The pistol is properly described as a 22 caliber German Rohm 6-shot revolver.

       On the same day that Brown was arrested, a hearing was held before the Judge of the Little Bock Municipal Court, Criminal Division, and following the hearing, Brown was turned over to Pine Bluff officers. Thereafter, still on the same day, Brown was charged with first degree murder in the Pine Bluff Municipal Court, and a hearing was held, the clerk testifying that the docket reflected, “Walter Lonnie Brown, first degree murder, the defendant advised of his constitutional rights, and attorney appointed for him, a preliminary hearing held and on the proof the defendant is bound over to the grand jury without bond.”

       Information had been given to the officers by Nelson, and Nelson and Brown accompanied the officers to the premises. Brown’s mother was told that they would like her permission to look for some expended cartridges, and she, along with her son, granted this permission.

       The court’s instruction No. 11 was as follows: “The Court has admitted in evidence confessions alleged to have been made by the defendant. If you believe from the evidence beyond a reasonable doubt that these confessions were made by the defendant, voluntarily, without any hope of reward or fear of punishment, you should consider them along with all the other evidence in the case in determining the guilt or innocence of the defendant. If you are not convinced from the evidence beyond a reasonable doubt that they, or any of them, were voluntarily made, then those confessions, or any of them, should not be considered by you for any purpose whatever.” Actually, this instruction went further than was necessary, under Jackson v. Denno, for the court, having determined that the confession was voluntary, left only the question of the weight or credibility of the confession to be passed on by the jury. However, defendant cannot complain that the jury was also in- t. structed to pass on the question of voluntariness, as this phase of the instruction, if having any effect at all, could only inure to his benefit. The failure to distinguish between the issue of voluntariness, and that of credibility, is discussed in Footnote 13, Jackson V. Denno, supra. “A finding that the confession is voluntary prior to admission no more affects the instructions on or the jury’s view of the reliability of the confession than a finding in a preliminary hearing that evidence was not obtained by an illegal search affects the instructions on or the jury’s view of the probativeness of this evidence.

        “The failure to distinguish between the discrete issues of voluntarines and credibility is frequently reflected in opinions which declare that it is the province of the court to resolve questions of admissibility of confessions, as with all other questions of admissibility of evidence, the province of the jury to determine issues of credibility, but which then approve the trial court’s submission of the voluntariness question to the jury.”

       Under our cases, a defendant cannot complain of the composition of the jury if he does not exhaust his challenges. In Benton v. State, 30 Ark. 328, decided in 1875, Chief Justice English pointed out that this rule had stood as a precept of criminal practice in this state for a period of over twenty-two years. A cursory examination of our cases reveals over thirty-five criminal cases in which this rule has been cited and adhered to. Wright v. State, 35 Ark. 639; Glenn v. State, 71 Ark. 86, 71 S. W. 254; Keese & Pilgreen v. State, 223 Ark. 261, 265 S. W. 2d 542; Johnson v. State, 97 Ark. 131, 133 S. W. 596; Morgan v. State, 169 Ark. 579, 275 S. W. 918; Rutledge v. State, 222 Ark. 504, 262 S. W. 2d 650; and Kurck v. State, 235 Ark. 688, 362 S. W. 2d 713.


source: Caselaw Access Project

author: Ed. F.McFaddin, Associate Justice.

license: Public Domain

text:
    Inc. Town of Bono v. Universal Tank & Iron Works.
    5-3647
    395 S. W. 2d 330
    Opinion delivered November 8, 1965.

      Bon McCourtney, Claude B. Brinton and Joe F. Atkins, Jr., for appellant.

      Barrett, Wheatley, Smith S Deacon, for appellee.
   Ed. F.McFaddin, Associate Justice.

Appellant, the Town of Bono (hereinafter called “Bono”), sought judgment against Universal Tank & Iron Works, Inc. (hereinafter called “Universal”) for $3000.00 as liquidated damages for breach of contract. Trial in the Circuit Court resulted in a finding and judgment for Universal; and Bono brings this appeal.

Some time in 1963 Bono decided to install a waterworks distribution system and retained Harold Smith & Associates of Hot Springs as architects and engineers. A large storage tank was an essential part of the water distribution system; and on August 26, 1963 Bono and Universal entered into a contract which provided that Universal would complete its entire contract by December 10, 1963. The contract was quite lengthy. One provision stated that time was of the essence; and another provision was for $50.00 per day as liquidated damages to be paid Bono should Universal fail to complete the contract by December 10, 1963. The provisions vital to this appeal relátelo the power of the architect/engineer.

Universal let a subcontract to Hedger to construct the concrete foundation of the storage tank; and on October 9, 1963 it was discovered by Universal that the foundation constructed by Hedger was defective. A new foundation was constructed and this was not completed until November 18, 1963. About the time Universal completed the construction of the storage tank on the foundation. bad weather conditions existed so that it was not until February 10, 1964 that Universal completed the painting of the tank inside and out, as required by the contract, and made tender to Bono of the completed work. This last mentioned date was 60 days after December 10, 1963, the contracted date for complete performance by Universal. Bono claimed its liquidated damages of $50.00 per day, or $3000.00 for the delay in delivery; and filed this action for said amount.

Among other defenses pleaded by. Universal were: (a) waiver of the time limit by the architect/engineer;

(b) bad weather conditions as an act of God excusing delay; and (c) absence of any damages suffered by Bono. The finding of the Circuit Court, .without a jury, was in favor of Universal on the first point; that is, that the architect/engineer had the power to waive and did waive Universal’s delay in completing the contract. We confine this Opinion to that issue.

The architect/engineer stated that the President of Universal called him on October 24,1963 and asked about the delay caused by the defective foundation for the tank. The architect testified: “Mr. Reese specifically inquired if it would be necessary for him to make a.formal written application for an extension of time to complete construction of the elevated storage tank, and, under Paragraph 35 of the Contract, I advised Mr. Reese that no formal written application would be necessary, that I would take care of the matter.” Mr. Reese, the President of Universal, testified: “I specifically inquired of Mr. Smith if it would be necessary for me to make a formal written application for extension of time to complete the construction of the elevated tank and Mr. Smith advised me that this would not be necessary, that he (Mr. Smith) would take care of the matter. I relied on Mr. Smith’s advice and took no further action to secure an extension of time; as far as I was concerned the extension had been secured from Mr. Smith.” On the other hand, the Mayor of Bono testified that he never received any formal written notice of or any application from Universal for any extension of time for the completion of the work; and it was also shown that Universal received $1200.00 extra money from Hedger Brothers because of the defective work, and tendered no part of that to Bono.

In Paragraph 19 of the contract it was provided, inter alia.

“If the said Contractor shall neglect, fail or refuse to complete the work within the time herein specified, or any proper extensions thereof granted by the Owner, then the contractor does hereby agree, as a part consideration for the awrading of this contract, to pay to the Owner the amount specified in the Contract, . . . .” (Emphasis supplied.')

Paragraph 35 of the contract between Bono and Universal contained this provision:

“ ARCHITECT’S/ENUINEER’S AUTHORITY. The Architect/Engineer shall give all orders and directions contemplated under this contract and specifications relative to the execution of the work. The Architect/ Engineer shall determine the amount, quality, acceptability, and fitness of the several kinds of work and materials which are to be paid for under this contract and shall decide all questions which may arise in relation to said work and the construction thereof. The Architect/Engi-' neer’s estimates and decisions shall be final and conclusive, except as herein otherwise expressly provided. In case any question shall arise between the parties hereto relative to said contract or specifications, the determination or decision of the Architect/Engineer shall be a condition precedent to the right of the Contractor to receive' any money or payment for work under this'contract affected in any manner or to any extent by such question. “The Architect/Engineer shall decide the meaning and intent of any portion of the specifications and of any plans or drawings where the same may be found obscure or be in dispute. Any differences or conflicts in regard to their work which may arise between the Contractor under this contract and other Contractors performing work for the Owner shall be adjusted and determined-by the Architect/Engineer. ”

The question here is whether, under Paragraphs 19 and 35, as above copied, the architect/engineer had the power and authority to waive, on behalf of Bono, the time specified for performance. Certainly there was no express provision in the contract that gave the architect/ engineer any such power; and we conclude that the arehitect/engineer possessed neither the express nor implied power to bind the Town of Bono to such waiver. In 6 C. J. S. p. 301, “Architects” § 7, in discussing the authority and powers of an architect generally, cases are cited from various jurisdictions to sustain this statement: “An architect is generally held to he an agent with limited authority and not a general agent..... Hence the powers and authority of an architect are limited by the general rules of agency.. .. Accordingly, in the absence of express authority, he cannot bind his employer by contracts for any work upon or materials furnished the structure for which he is employed____Likewise, in the absence of express authority, an architect is not authorized to. . . . accept notice. ...” In 5 Am. Jur. 2d, p. 668, “Architects” § 6, cases are cited to sustain this statement: “When engaged in supervising the construction of a building as an agent of an owner, an architect’s ordinary authority is a limited one. He has •no authority, .... to bind his principal by a contract respecting the erection of the building or the performance of work upon it, or to modify the existing contract between the owner and the builder. . .” The following cases support the quoted statements in Corpus Juris Secundum and American Jurisprudence . 2d: Adlard v. Muldoon, 45 Ill. 193; Starkweather v. Goodman, 48 Conn. 101; McIntosh v. Hastings (Mass.), 31 N. E. 288; Mallard v. Moody (Ga.), 31 S. E. 45; McNulty v. Keyser (Md.), 76 A. 1113; Guarantee Title v. Willis (Ariz.), 297 P. 445; Jungclaus v. Ratti (Ind.), 118 N. E. 966.

In Sanitary District v. McMahon, 110 Ill. App. 510, the Illinois Court of Appeals specifically held that a provision in a contract, giving an engineer power to direct and superintend the execution of the contract, did not give him a general power to change the terms of the contract, or to extend the time for completing the work beyond the time fixed by the contract. In Volquardsen v. Davenport, 141 N. W. 432, the Supreme Court of Iowa used this language:

“The architect’s authority is limited. He may not direct the work to be done otherwise than is provided by the plans and sepcifications, except as he has been given authority to do so therein or by the contract. Unless so authorized, he is powerless to relieve the contractor from complying with, his undertaking in order to make it easier for him or for any other purpose, if this be detrimental to the owner. ’ ’

Under the record before us, there was no provision in the contract that gave the architect the power to accept notice of delay and bind Bono to the architect’s agreement for extension; and the Trial Court was in-error in so holding. For that reason, the judgment must be reversed and the cause remanded for a new trial on the other issues presented in the case.

We forego any holding: (a) as to whether the contract provision for liquidated damages was reasonable, or was a penalty; (b) as to whether the weather conditions excused some delay; or (e) as to whether the $1200.00 which Universal received from its sub-contractor Hedger should, at all events, be the amount to which Bono is entitled. These questions were not decided by the Trial Court and the cause must be remanded for a new trial on these and all other issues, except as to the points decided in this Opinion.

Reversed and remanded fox a new trial.

       The Maryland Casualty Company, as surety on the performance bond of Universal, was also a defendant in the Court below, and is an appellee here, but we will state the case as though Universal was the sole defendant below and the sole appellee here.


author: Ed. F. McFaddin, Associate Justice.

text:
    Parker v. Rowan, Chancellor.
    5-3763
    395 S. W. 2d 338
    Opinion delivered November 8, 1965.

      Arnold & Hamilton, for appellant.

      N. L. Schoenfeld, for appellee.
   Ed. F. McFaddin, Associate Justice.

The present petition for a'writ of prohibition is another step in the legal battle between the “Wet” and the “Dry” forces in Ouachita County. To get the proper perspective it is well to list the various proceedings that have reached this Court in such battle in the past few years:

(a) Prior to November 6,1962 Ouachita County was “wet.” At the G-eneral Election on November 6, 1962 there was a local option election in Ouachita County, and the result of that election was certified in favor of the “Drys.”

(b) The “Wets” filed an election contest, which had the effect of keeping the County wet until the final determination of the contest. (Ark. Stat. Ann. § 48-827 et seq. [Repl. 1964].) This interpretation of the law was explained in our Opinion in Hendrick v. Hickman, 225 Ark. 273, 280 S. W. 2d 406.

(c) The Wets delayed the “final determination” of the election contest as long as possible. On October 12, 1964, in Case No. 3420 styled Hendriks v. Parker, we issued a per curiam order dismissing the appeal of the Wets. The petition for rehearing was denied on November 10 ,1964; and that was the “final determination” of the contest, as those words are used in Ark. Stat. Ann. § 48-827 et seq. (Repl. 1964). So really the liquor dealers in Ouachita County had only 60 days from and after November 10, 1964 in which to dispose of their liquor stocks; and then the further sale of liquor would have been illegal in Ouachita County by virtue of the 1962 local option election.

(d) However, on November 3, 1964 there was another local option election in Ouachita County, and the result of that election was certified in favor of the Wets. The Drys duly filed an election contest in the County Court; and the legal effect of that contest was to postpone the results of the November 3, 1964 election until the “final determination” of the contest. The

County Court dismissed the Drys’ contest on August 6, 1965; but under Ark. Stat. Ann. § 48-821 (Repl. 1964) and Ark. Stat. Ann. § 27-2001 (Repl. 1962) the Drys have sis months from that date to appeal to the Circuit Court in the matter of the 1964 election contest.

(e) After the 1964 local option election the Wets filed a “petition for declaratory judgment.” in the Ouachita Chancery Court, naming the Prosecuting Attorney as a defendant. The Drys intervened. The Wets claimed that the effect of the 1964 local option election in favor of the Wets wiped out all the results of the 1962 election in favor of the Drys, and that the sale of liquor was legal in Ouachita County because of the 1964 election, regardless of the case involving the 1962 election. The Chancery Court agreed with the Wets, and the Drys appealed to this Court in Case No. 3571, styled Parker v. Hendriks, on June 7, 1965. We decided that case: reversing the Chancery Court and ordering an immediate mandate. Since the liquor stores had continued in business in Ouachita County under the Chancery Court decree, we ordered that an immediate mandate would issue from this Court so that the liquor dealers would have only 60 days from June 7, 1965 to dispose of their stocks; and thereafter there could be no more legal sales of liquor in Ouachita County until the “final determination” of the contest on the 1964 local option election.

(f) It seems that our Opinion and holding in said Case No. 3571 should have settled all questions until the “final determination” of the contest of the 1964 election; but the Wets then filed, on August 11, 1965, another suit in the Ouachita Chancery Court, asking the Court to answer this question: ‘ ‘ The question is: what is the effect of the ruling of the Arkansas Supreme Court in Parker v. Hendriks June 6, 1965 with the ‘contest’ having been dismised August 6. 1965 in Case No. 178 in the Ouachita County Court — there now being no contest or other legal proceeding pending in any court challenging the effect of and the 713 margin vote for the sale of licensed beverages in Ouachita County November 3-, 1964. ” The basis of the Wets claim in the Chancery Court case filed on August 11,1965 was: that the County Court on August 6, 1965 had dismissed the Drys’ contest of the 1964 election; that no appeal had been filed in the Circuit Court from that order; so there was nothing to prevent the County Court order of August 6, 1965 from being a “final determination,” even though the Drys had and have six months from August 6, 1965 within which to appeal to the Circuit Court.

(g) When the Chancery Court entertained jurisdiction of the Wets’ petition, as filed on August 11, 1965, the Drys filed in this Court their present petition for a writ of prohibition to prohibit the Chancery Court from hearing the Wets’ petition for a declaratory judgment. This petition for writ of prohibition is the present Case No. 3763 in this Court. We granted a temporary writ of prohibition September 7, 1965, and now the matter is before us for final determination. In the meantime, sale of liquor in Ouachita County has been illegal since August 6, 1965 and this, because of our holding and judgment in Case No. 3571, decieded by us on June 7, 1965.

The foregoing and rather lengthy detailing of the legal battles between the Wets and Drys in Ouachita County brings us to our decision in the present controversy; and we now make permanent the temporary writ of prohibition issued by us in this case on September 7, 1965. There are several reasons for our decision, but ona is sufficient.

CHANCERY COURTS HAVE NO POWER TO INTERFERE WITH ELECTION CONTESTS. Beginning with Willeford v. State, 43 Ark. 62, and continuing to date, we have an unbroken line of cases, all holding that equity has no power to interfere with election contests. In Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C 980, Mr. Justice Kirby reviewed many cases and summarized the holdings: “From these authorities it is conclusive that the trial of election contests and the adjudication of political rights and the protection of persons in their enjoyment were not matters of cognizance by courts of equity when our Constitution was adopted, and the Legislature had power only to vest the chancery court with jurisdiction in matters of equity, and was without power to enlarge such jurisdiction beyond such matters as courts of equity at the common law exercised jurisdiction in, and such courts having no jurisdiction of election contests and the adjudication of political rights were given none by our said Constitution.”

In Sheffield v. Heslep, 206 Ark. 605, 177 S. W. 2d 412, we quoted from Rhodes v. Driver, 69 Ark. 606, 65 S. W. 106, 86 A. S. R. 215:

“ ‘A court of equity will not permit itself to be made the forum of determining the disputed questions of title to public offices, or for the trial of contested elections, but will in all such cases leave the claimant of the office to pursue the statutory remedy, if there be such, or the common law remedy by proceedings in the nature of á quo toarranto.’ ”

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

In many cases when a judgment is rendered it is considered as final until reversed; but our statute on local option liquor elections establishes an entirely different rule in such cases, Act No. 212 of 1957, as found in Ark. Stat. Ann. § 48-827 (Bepl. 1964) says of local option liquor election contests that if the election is contested there is no final determination until “the date of the issuance of the mandate by the court finally determining an election contest.” This Act No. 212, when fitted into our local option election law in liquor cases, applies to contests by Drys as well as to contests by Wets. The effect of our said- statute is that the status quo ante in liquor matters will not be changed until the “final determination” of the election contest.

The contest of the 1964 local option election in Ouachita County has not been finally determined. As we have previously pointed out (and because of Ark. Stat. An. § 48-821 [Repl. 1964] and Ark. Stat. Ann. § 27-2001 [Repl. 1962]), the Drys have six months from August 6, 1965 to prosecute their appeal in the Circuit Court; and under the plain wording of Ark. Stat. Ann. § 48-827 (Repl. 1964) there has been no “final determination” because there has been no “issuance of the mandate by the court finally determining an election contest.” The fact that the Drys have not yet filed their appeal in the Circuit Court only shows that they are taking all the possible time allowed in contesting the 1964 election, just as the Wets took all possible time allowed in contesting the 1962 election. It is a case of “sauce for the goose is sauce for the gander.” Until the 1964 election contest is finally determined, the status quo ante remains; and the Chancery Court has no jurisdiction to determine the effects of an election, the contest of which is still undetermined.

The Wets say that the result of such a holding, as we are now making, is to delay, if not to thwart, the will of the electors as expressed in the 1964 election. But the answer to that question is simple: it is for the Legislature of Arkansas to fix the time for filing a local election contest, and to shorten the time for appeals in such cases, provided the Legislature sees fit to enact such legislation. The Wets cannot accomplish such result by going into the Chancery Court under the guise of a declaratory judgment proceeding. We reaffirm our holdings in Hedrick v. Hickman, 225 Ark. 273, 280 S. W. 2d 406; and Parker v. Hendriks, 239 Ark. 667, 393 S. W. 2d 251.

The temporary writ of prohibition issued in this case is now made permanent.

' Johnson, J. dissents in Part.

       But see Paragraph (e) infra, wherein the date allowed liquor dealers to dispose of their stocks was fixed at August 6, 1965.

       Under Act No. 15 of 1955 (Ark. Stat. Ann. § 48-824 [Repl. 1964]) such local option election must be on the date of the General Election and therefore cannot be oftener than every two years; so the 1964 election was the first opportunity the Viets had to again test the vote of the electors.

       This contest has not been finally determined, as will be discussed subsequently.


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

text:
    Williams v. Gilbert.
    5-3652
    395 S. W. 2d 333
    Opinion Delivered November 8, 1965.

      Howell, Price & Worsham, for appellant.

      Cochrill, Laser, McGehee & Sharp, for appellee.
   George Rose Smith, J.

Larry Williams, a seven-year-old boy, was injured when the bicycle that he was riding was struck by a pick-up truck being driven by the appellee, John Gilbert. In this action for personal injuries, brought by Larry’s father as next friend, the jury returned a verdict for the defendant. Here the appellant, contends that the court erred in instructing the jury that Larry was to be held to the same standard of care as an adult.

The accident happened at 38th and Crutcher in North Little Rock. Thirty-eighth is a through street, protected by stop signs. As Gilbert, driving east on 38th, approached the intersection he observed a car to his right, traveling north on Crutcher, slow down and stop for the intersection. According to Gilbert’s testimony, which of course cannot be regarded as undisputed, Larry Williams, also going north, suddenly appeared on the far side of the other car and rode his bicycle into the intersection when it was too late for Gilbert to avoid hitting him. (Larry was too young to be allowed to testify. Ark. Stat. Ann. § 28-601 [Repl. 1962].)

There is no contention here that Gilbert was entitled to a directed verdict. To the contrary, there is an abundance of proof from which the jury might have found Gilbert to have been negligent. Gilbert testified that he first saw the bicycle when he was even with the west curbing on Crutcher Street. This version is contradicted by the testimony of a police officer, who fixed the impact at a point 12 feet 8 inches east of that curbing. Thus Gilbert’s skid marks, which were 32 feet long, began about 19 feet west of the point where Gilbert says he was when he first saw the child. Gilbert admitted that he knew he was driving near a school where children were usually present. He admitted that the sun was almost directly in. his eyes as he approached the intersection. On cross examination he had no satisfactory explanation for his failure to avoid the child by swerving either to the right or to the left. In view of all the testimony it is plain that we should have to weigh the evidence in order to hold that the plaintiff did not make a prima facie case. This is not our province.

The plaintiff offered an instruction, substantially in the language of AMI 304, which would have told the jury that ordinary care, with respect to a minor, means that degree of care which a reasonably careful minor of his age and intelligence would use in similar circumstances. This is ordinarily the correct rule. Garrison v. St. Louis, I.M. & S. Ry., 92 Ark. 437, 123 S. W. 657 (1909). Needless to say, this instruction has nothing whatever to do with Gilbert’s duty to use ordinary care. The trial court, in instructions that are not questioned, charged the jury with respect to Gilbert’s duty to keep a lookout, to keep his vehicle under control, and to drive at a reasonable speed. What counsel for Larry Williams sought, in requesting that he be held to the standard of care appropriate to a minor of his age and intelligence, was to supply the jury with a guide for determining whether Larry was negligent in disobeying a stop sign. Compare Smith v. Wittman, 227 Ark. 502, 300 S. W. 2d 600 (1957).

The court refused the requested instruction and instead told the jury in effect that Larry was to be held to the same standard of care as an adult. Doubtless the court relied vagón. Harrelson v. Whitehead, 236 Ark. 325, 365 S. W. 2d 868 (1963), where we held that a minor operator of a motor vehicle (there a motorcycle) is required to exercise an adult standard of care. But that situation is unlike the present one. To operate a motor vehicle by himself a minor must be at least sixteen years old and must have a driver’s license. Ark. Stat.Ann. §§ 75-302 and -309 (itepl. 1957). An automobile carelessly driven is of great potential danger to motorists and pedestrians upon the public streets. As we quoted in the Harrelson case; “To give legal sanction to the operation of automobiles by teen-agers with less than ordinary care for the safety of others is impractical today, to say the least. We may take judicial notice of the hazards of automobile traffic, the frequency of accidents, the often catastrophic results of accidents, and the fact that immature individuals are no less prone to, accidents than adults.”

There can be no serious comparison of a sixteen-year-old youth driving an automobile with a seven-year-old child riding a bicycle — as much a plaything as a means of transportation. The automobile poses-all the threats to human life that led to our decision in the Ilarrelson case, but the bicycle poses no threat of serious injury to anyone except the child himself.

Counsel for the appellee stress the fact that our motor vehicle statutes apply to persons riding bicycles, Ark. Stat. Ann. § 75-424-, and that therefore Larry should have obeyed the stop sign at the intersection. Ibid., § 75-645 (Supp. 1963). Even so, it does not follow that a violation of the statute must be treated in the same way whether the offender is an adult or a child. To the contrary, on the criminal side an adult who runs a stop sign is guilty of a misdemeanor, Ark. Stat. Ann. § 75-421, but not so in the case of a child under twelve. Ibid., § 41-112 (Repl. 1964).

There is a similar distinction on the civil side. An adult who violates a common law duty to another’s injury is negligent if his conduct involves a want of ordinary care. A minor violating the same duty may also be negligent, but his conduct is to be tested by the standard set by reasonably careful minors of his own age and intelligence. We can think of no reason for a different rationale when a statute is involved. An adult who disregards a stop sign is not negligent per se ■ his conduct is merely evidence of negligence, to be considered with the other proof in the case. Bridgforth v. Vandiver, 225 Ark. 702, 284 S. W. 2d 623 (1955). In like manner Larry Williams’s violation of the stop law was evidence of negligence; but there is not even a plausible reason, much less a sound reason, for refusing to test his conduct by the standard that applies in • other cases — that degree of care to be expected of other minors of his own age and intelligence.

Reversed.

Ward, J., dissents.

Paul Ward, Associate Justice

(dissenting). For two reasons, explained hereafter, I would affirm the trial court.

1. The majority say “there is an abundance of proof from which the jury might have found Gilbert to have been negligent”, yet the fact is the jury did not do so. If there was an abundance of proof it would have been immaterial whether Larry was seven or seventy-seven years old.

I think there is no substantial proof, but merely conjecture of appellee’s negligence. The majority appear to think the skid marks are evidence, of negligenc while I think they show positively Gilbert was .keeping a lookout and that he responded alertly. I wonder what the majority would think had there been no skidmarks. If driving on the streets with the sun in one’s face is evidence of negligence, then none can escape. Contrary to what the majority say, I think Gilbert gave a convincing explanation for not “swerving either to the right or the left”. He explained that if he turned right he would have hit the car stopped on Crutcher Street and he couldn’t turn left because the bicycle was going at an angle. There is no evidence Gilbert was speeding as he drove east on a non-stop street. By conjecture alone could I conclude Gilbert was negligent, but conjecture is not proof. In the case of Russell v. St. Louis Southwestern Railway Company, 113 Ark. 353 (p. 359), 168 S. W. 135, 136, the Court said:

“But conjecture and speculation, however plausible, cannot be permitted to supply the place of proof.”

Also, in my opinion the physical facts present in this case are indicative of a high degree of care on the part of Gilbert rather than of negligence. This Court has often recognized the high probative value of physical facts. In St. Louis Southwestern Railway Company v. Ellenwood, 123 Ark. 428 (p. 436) we said:

“Appellate courts take notice of the unquestioned laws of nature, of mathematics, of mechanics and of physics. So where ther are undisputed facts shown in the evidence, and by applying to them the well known laws of nature, of mathematics and the like, it is demonstrated beyond controversy that the verdict is based upon what is untrue and what cannot be true, this court will declare as a matter of law that the testimony is not legally sufficient to warrant the verdict.”

As previously stated, this case should also be affirmed because of our decision in the Harrelson case. Any material distinction between that case and this case is not apparent to me.

In affirming the trial court in the Harrelson case we relied upon certain sections of Ark. Stat. Ann., (all of these sections being a part of Act No. 300 of 1937) to conclude there is no distinction between a minor and an adult as to the degree of care to be exercised while riding a motorcycle on the public highway. However, the majority say the case now under consideration is different because the minor was riding a bicycle and because he was only seven years old. Yet the same Act (No. 300 of 1937) which applies to a minor on a motorcycle also, by virtue of § 24 of said Act (Ark. Stat. Ann. § 75-424 [Kepi. 1957], applies to a minor on a bicycle. It reads, in pertinent parts:

“Every person riding a bicycle . . . upon a roadway shall be subject to the provisions of this act. ...”

There is nothing in Act No. 300 that makes any distinction between a minor seven years old and one fifteen years old. The important thing is ,the Act recognizes that a minor (regardless of age) presents a threat to his own welfare and to the welfare of the public when he undertakes to ride a bicycle or a motorcycle on a street or highway.


author: Paul Ward, Associate Justice.

text:
    United-Bilt Homes v. Knapp.
    5-3589
    396 S. W. 2d 40
    Opinion delivered November 8, 1965.
    [Rehearing denied December 13, 1965.]

      Patton & Brown, Smith, Williams, Friday S B.owen, By: John T. Williams & Frank Warden, Jr., for appellant.

      Murphy & Arnold, Ivan Williamson, for appellee.
   Paul Ward, Associate Justice.

The principal issue on appeal involves the question of usury, but another issue is also raised. The statement of facts set out below will suffice to show how these issues arose.

Mr. and Mrs. O. H. Knapp (two of the appellees, hereafter sometimes referred to as purchasers) contracted with United-Bilt Homes, Inc. (appellant, sometimes referred to as builder) to erect a home on their land in Stone County. The printed building contract (dated March 27, 1962) obligated the builder to construct an “Alexander house expanded” according to “plans and specifications attached hereto” [but none are attached in the record], and it obligated the purchasers to pay the sum of $10 in cash and the balance of $.................. in “90 monthly installments of $48.69 each.” The purchasers, on March 27,1962, signed a note for the principal sum of $4382.10, payable $48.69 per month (beginning June 1, 1962) “until total indebtedness is paid.”

Pursuant to the above, a house was constructed. The Knapps moved in and made only two monthly paymants when a dispute and litigation ensued as set out below.

Litigation began in circuit court (later transferred to chancery court) when Hugh Younger and H. R. Bauerlein sued the Knapps and appellant to collect $560 due them for labor and to perfect a lien therefor on the property. They also asked for an attorneys’ fee. This claim was controverted by all the defendants. Appellant filed a cross-complaint against the Knapps alleging a default in payments and asking for judgment and a sale of the property. In answer to the cross-complaint the Knapps, among other things, alleged the note given by them to appellant was usurious.

A trial on the issues resulted in the following decree : that Younger and Bauerlein have judgment against appellant for $420 and a $75 attorneys’ fee, with a lien on the property to secure the same; that the said note is void for usury and all indebtedness evidenced thereby is cancelled and set aside.

Appellant here contends: One, the judgment and lien in favor of the laborers is not supported by the evidence; Two, the note is not usurious, and; Three, the Knapps are not entitled to retain the house even if the note is held to be usurious.

One. We cannot say the weight of the evidence does not support the chancellor in finding Younger and Bauerlein were entitled to receive $420 (less $194 placed in the registry of the court by appellant) for their labor in helping erect the house. There was some dispute over the quality and extent of their work but it is not disputed that they are entitled to some amount. Bauerlein testified they worked 280 hours and that their services were worth $2.00 an hour — the court allowed only $1.50 per hour. It is admitted there was no written contract specifying the hourly wage. The court was right in holding the judgment to be a lien bn the property, if it is not paid by appellant who is primarily liable.

Two. The principal dispute is over the question of whether the note is usurious. The question is presented to us in a somewhat novel way. Usually the note itself contains the questionable items constituting what is often referred to as “closing costs.” Here, the note contains no such items, so they must be gleaned from the record. As the question comes to us it could be exceedingly complicated were it not for the frank and able manner in which it was handled by the attorneys, for which they are to be congratulated.

Since we have reached the conclusion the trial court must be affirmed on this point, we will take the figures relied on by appellant, as set out below:

(a) Selling price of the home (being the basic cost of the home plus three extra items, and minus the $10 paid by the Knapps) $2,770.00
(b) Title Insurance 40.00
(c) Recording of Mortgage 2.25
(d) Attorneys Fee 5.00
(e) Appraisal Fee 24.00
(f) Fire Insurance 146.26
(g) Credit Life Insurance 131.46 $3,118.97

It is further conceded by appellant, with commendable candor, that if item (g) above is not a proper charge then the interest charged is over 10% and the note is therefore usurious, it also being conceded that the rate charged in the note amounts to 9.93%.

In our opinion the inclusion of said item (g) was erroneous. The undisputed proof shows that appellant did not pay for this item as it did for all the other items listed, and in fact such is conceded by appellant. The effect of the improper inclusion of item (g) was to allow appellant to collect interest on money which it did not pay out, i.e., did not advance to the Knapps.

The court is also of the opinion that item (e) was improperly charged as closing costs. The undisputed evidence shows that the house was never inspected, and that no attempt to inspect it was made until the buliding was completed. Under these circumstances it can hardly be said appellant paid the $24 for the benefit of Knapps.

So that this opinion will not be misconstrued, and so that appellant may not be unduly restricted in its operations hereafter, we wish to explain: (a) Appellant has a right to add to the price charged for the construction of a house proper “closing costs” items; (b) Appellant has the right to pay for these items, and treat them as a part of the principal debt on the total amount; (c) We do not mean to hold that appraisal fees and premiums for life insurance can not, under any circumstances, be charged as proper “closing costs.”

Three. Finally, we find no merit in appellants’ contention that, even if the note is found to be usurious, the Knapps should not be allowed to keep the house. This Court lias held contrary to that contention in Universal C. I. T. Credit Corp. v. Avery, 225 Ark. 190, 280 S. W. 2d 229; Universal C. I. T. Credit Corp. v. Stanley, 225 Ark. 96, 279 S. W. 2d 556, and; Sloan v. Sears, Roebuck & Co., 228 Ark. 464, 408 S. W. 2d 802. Appellant is aware of what our holdings in this respect have been heretofore, but asks us to now re-examine the same. For several reasons we do not feel inclined to do so. In the first place we think that for this Court to make the change suggested by appellant would be to violate the spirit, if not the letter, of Ark. Stat. Ann. § 68-609 (Repl. 1957). In the second place it would render the Constitutional provision against usury practically ineffective. If the seller of an article on a usurious contract knew he could, if caught, repossess the same, he obviously would be more inclined to take a chance.

Finding no error the decree of the trial court is affirmed.

Affirmed.


author: Sam Robinson, Associate Justice. Ed. F. McFaddin, Associate Justice Paul Ward, Associate Justice

text:
    Little Rock Abstract Co. v. Keaton
    5-3641
    395 S. W. 2d 327
    Opinion delivered November 8, 1965.

      Wright, Lindsey, Jennings, Lester d Shults, for appellant.

      H. B. Stubblefield, for appellee.
   Sam Robinson, Associate Justice.

The appellees herein, Martha Louise Keaton, ét al, filed suit in the Pulaski Circuit Court against appellant, Little Rock Abstract Company, alleging that the defendant company negligently, and in violation of its contractual obligation, failed to show in an abstract of title prepared for plaintiffs an easement over a street adjoining the property purchased by plaintiffs, and that as a result of the failure to show the easement plaintiffs were damaged in the sum of $1,638.21. There was a judgment for the plaintiffs for the alleged amount. The abstract company has appealed.

In the year 1946, the Arkansas Louisiana Gas Company was granted an easement over a certain 40 acre tract in Pulaski County. Later, Industrial Development Company of Little Rock, Inc., hereinafter called Industrial, obtained title to the 40 acres. On October 18, 1962, Industrial conveyed to the gas company a right-of-way easement within 65th Street, which adjoins the land here involved. The authority to grant the easement has not been put in issue. This easement in favor of the gas company is recorded in Deed Book 817, page 517, of the records of Pulaski County. Later, in February, 1963, the gas company and Industrial entered into an agreement whereby the gas company released the original easement over the 40 acres. Embodied in the release was a clarification of the easement which had been granted by Industrial to the gas company on October 18, 1962. The language in the February, 1963 release clarifying the October, 1962 easement is as follows :

“WHEREAS, The parties hereto have heretofore entered into a certain right-of-way agreement dated October 18, 1962, recorded December 6, 1962, in Deed Book 817, page 517, of the records of Pulaski County, Arkansas; reference thereto being hereby made, the terms- thereof are incorporated herein by reference.
“2. By way of clarification of the description of the right-of-way granted in the aforesaid agreement dated October 18, 1962, insofar as the same pertains to that certain area along the north side of that area designated as West 65th Street oh the plat attached to the aforesaid agreement, it is understood and agreed that the right-of-way therein granted is a strip of land 20 feet in width running from the West right-of-way line of Interstate highway 30 to the East right-of-way line of Scott Hamilton Drive, the north line of said 20 foot strip of land being the north line of that certain strip of land 110 feet in width designated as West 65th on the plat attached to the aforesaid right-of-way agreement and as more particularly shown on that certain plat of Little Rock Industrial District filed in Plat Book 11, at page 49, of the Records of Pulaski County, Arkansas, reference thereto being hereby made.
"3. Industrial, for itself and its successors and assigns,, does hereby covenant, the same to run with the land, that it will not cause to be erected or constructed any buildings, fences, walls, pavement, permanent structures or similar improvements within the area of said right-of-way, and will not cause to be planted any shrubbery or trees within such area.”

Later, appellees bought from Industrial about 1 acre of the aforesaid 40 acres and purchased an abstract of title from appellant, Little Rock Abstract Company. The abstract failed to show the release of the easement over the 40 acres, which contained the language clarifying the October, 1962 easement granted to the gas company by Industrial. Appellees’ attorney, who examined the abstract of title, called attention to the fact that the record showed an easement in favor of the gas company across the 40 acres, but that it did not show whether the easement was across the particular part boug’ht by appellees. The appellees made inquiry about the easement of an officer of Industrial, and he informed them that the easement across the 40 acres had been released. Nothing was said about the granting of an easement over a portion of 65th Street in October, 1962.

Under an agreement to lease to the Texaco Company, appellees built a service station on their newly acquired property. When they attempted to pave a portion of 65th Street which would extend from the then paved part of the 65th Street right-of-way over the north portion of that street onto the service station property, the gas company called their attention to the easement the company had along the north 20 feet of 65th Street. The gas company insisted on doing certain work in order to properly protect its pipeline in that part of the 65th Street right-of-way on which Industrial had given an easement. The gas company did do the paving and charged appellees $1,638.21 for the work.

The appellees then filed this suit against the abstract company for the amount charged by the gas company for the work done in protecting the pipeline. The plaintiffs alleged that it was the duty of the abstract company to show in the abstract the release by the gas company of the old easement across the 40 acres, and to show the new easement granted to the gas company by Industrial in the north 20 feet of 65th Street.

The real issue is whether it was the duty of the abstract company to show the condition of the title to property other than the property within the call of the particular land the abstract company was engaged to prepare an abstract of title. If it was the duty of the appellant abstract company to show in the abstract the easement granted to the gas company in 65th Street, then it breached its contract and was also negligent in not showing the easement in the abstract.

No case has been called to our attention, nor have we found any, where the courts have held that it is the duty of an abstract company to furnish information concerning the title to property other than the specific property under examination. On the other hand, American Trust Investment Co. v. Nashville Abstract Company, 39 S. W. 877, holds that it is not the duty of the abstract company to make such a showing. But appellees contend that it is the custom and practice of abstract companies in Pulaski County to show matters of record concerning adjoining property that might affect the property under consideration. We feel that the evidence falls far short of showing such custom and practice.

Two witnesses familiar with the abstract business testified. for appellees. First, Mr. E. A. Bowen, Jr. in his testimony does not mention the October, 1962 easement (in fact, no witness mentions it), and does not state he would have shown it in an abstract, although he does state that he would have shown the February, 1963 release which contained a clarification of the October, 1962 easement. He further testified that portions of records that do not apply to the particular property under consideration are frequently omitted. Bowen further testified that in the normal course of preparing an abstract, the release of an easement might be shown and another easement not located on the property under consideration would not be shown. Apparently, Mr. Bowen’s abstract company has subsequently brought the abstract in question up-to-date and showed the February, 1963 release of the easement over the 40 acres. But, Mr. Bowen did not testify, and it is not shown by any of the evidence, that the October, 1962 easement from Industrial to the gas company over a portion of 65th Street was shown in the abstract, and Mr. Bowen did not testify that in the normal course of the abstract business it would be shown.

Mr. Burton Dougan, another abstract man and a witness for appellees, testified to the same effect.

• It cannot be said that there is any substantial evidence in this case going to show that according to the local custom and practice it is the duty of an abstract company to show in an abstract an easement which has been granted in an adjoining street.

The judgment is reversed and the cause dismissed.

McFaddin, J., concurs; Ward & Johnson, J.J., dissent.

Ed. F. McFaddin, Associate Justice

(concurring). I concur in the result reached by the Majority. The showing of the original easement as unreleased was sufficient to put the appellees on notice of an easement. Their attorney in examining the abstract advised them in detail about the necessity of inquiry. I believe that such inquiry, if pursued to its logical conclusion, would have given them all the information that the record now contains. The appellees failed to make a full inquiry, and cannot hold the appellant liable for their own failure.

Paul Ward, Associate Justice

(dissenting)- For reasons hereafter set out I am unable to agree with the majority opinion.

It is admitted appellant did not place in the abstract the notation on the margin of the instrument creating the original easement in favor of the gas company. This notation reads:

“Partial RELEASE Filed for record February 18, 1963, Recorded in Mtg. record 929, page 515. Roger McNair, Circuit Clerk & Recorder. By O. Eggleston, D.E. 2-18-63” (Emphasis added.)

The word “partial” is the key to this case. Had appellee known of the notation, it certainly would have made inquiry as to the meaning of that word and, consequently could have avoided paying out the sum of $1,638.21.

It is important therefore to determine whether appellant was under an obligation to show this marginal notation. I think it was.

The abstract showed the original easement — that means appellant saw or should have seen the marginal notation. It is the duty of an abstractor to use skill and care. In the American Trust Investment Co. v. Nashville Abstract Co., (cited by the majority) there appears this statement at page 879:

“To furnish abstracts of title is a business. Parties undertaking it assume the responsibility of discharging its duties in a skillful and careful manner. Patience in the investigation of records is the main capacity required.” It is the duty of an abstractor to show every record (if he can reasonably find it) which might affect the title, and it is then up to the purchaser or his attorney to determine to what extent or degree it is affected. In 1 Am. Jur. 2nd, Abstracts of Title, page 230, § 5 it is stated “. . . the abstract should disclose everything material concerning the sources and conditions of the title to the property in question.”

Also, in § 6 there appears this statement:

“What is required is that the abstract disclose to an intended purchaser everything- pertaining- to the names and to the property in question, so far as appears from the record, that reasonably might affect such title, and thus put the purchaser on inquiry, in order that such purchaser may himself make the proper investigations as to the outside facts.”


author: Jim Johnson, Associate Justice.

text:
    Nelson v. Paron Consolidated School Dist. No. 17 of Saline County.
    5-3663
    395 S. W. 2d 337
    Opinion delivered November 8, 1965.
    L. A. Hardin, for appellant.

      Leslie Evitts, for appellee.
   Jim Johnson, Associate Justice.

This is a suit in ejectment. Appellants William H. Nelson and Kathleen Marie Nelson, his wife, filed a complaint in Saline Circuit Court on May 11,1964, against Paron Consolidated School District No. 17 of Saline County. The complaint and its amendment allege in essence that in 1960 Joe R. Wilburn and Jessie, his wife, conveyed to appellants a tract of land “containing 160 acres, more or less, . . . except six acres to Paron School District No. 17 of Saline County, Arkansas, . . .”; that as a result of a survey on January 18, 1964, appellants determined that appellee school district was claiming an extra one acre of land, and prayed that appellee he ejected from the one acre or, alternatively, that appellants be given judgment for damages against their predecessors in title. After trial on October 14, 1964, the court found for appellee school district. From judgment dismissing their complaint, appellants have prosecuted this appeal.

Appellants raise some interesting points for reversal, but we do not reach the points on appeal for its clear from a careful reading of the record that appellants wholly failed to prove the first requirement in ejectment, i.e., title to the property in dispute.

“One seeking to eject another must bring himself within the rule that, prima facie, a legal right to possession of the realty must be shown.” Moss v. Chandler, 209 Ark. 130, 189 S. W. 2d 715. Further, the complaint must describe the premises sought to be recovered. Flanagan v. Ray, 149 Ark. 411, 232 S. W. 600; 28 C. J. S., Ejectment, § 62. Appellants made no effort to particularly describe the so-called extra one acre in their complaint. The nearest we have to a description of the land in dispute is contained in appellant’s testimony (as abstracted by appellants) as follows:

“At the time I bought this tract of land the only knowledge I had that the Paron School District No. 17 owned any land was the six acres described in the deed as having been conveyed to the School District by the Hollands, as was shown in my deed from the Hollands. At the time I bought the land from the Wilburns I did not know whether or not the six acre tract conveyed to the School District was in a square or oblong or what. The deed I got from the Wilburns describes the land as a square. Evidently the School District is claiming more for they have some buildings on it. This particular piece of land in dispute adjoins the front and South part of the Paron School. It is a narrow strip of land taken off the front of my tract of land and is no longer than it is wide. This particular land that the appellees are claiming is a long strip of land and is not a part of the six acre tract described in the deed. ’ ’

This court has previously allowed premises sought to be recovered in ejectment to be described “with reasonable certainty,” Carden v. Montgomery, 171 Ark. 1000, 287 S. W. 183, instead of the great accuracy traditionally required. However, appellants’ testimony is not a sufficient description to meet even this relaxed rule. Certainly it is not such description as would enable a sheriff to know what land should be placed in a plaintiff’s possession in the event of his recovery. It should also be noted here that, apart from appellants’ one statement, there is no showing that the disputed property is not a part of the acreage which admittedly had been deeded to appellee by appellants’ predecessor in title long prior to appellants’ purchase.

Having reached the same result, although on different grounds, the judgment of the trial court is affirmed.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Sullivant v. Sullivant
    5-3662
    396 S. W. 2d 279
    Opinion delivered November 15, 1965.
    [Rehearing denied December 20, 1965.]

      J ohn Harris J ones, for appellant.

      Bridges, Young, Matthews & Davis and Cole d Scott, for appellee.
   Ed. F. MoFaddin, Associate Justice.

This appeal steins from an unsuccessful effort by appellant (Myrtle Hill Sullivant White) to set aside the divorce decree which she obtained in 1927 and the property settlement she made with her husband, Bud Sullivant, in the said divorce suit. The Chancery Court denied the prayed relief, and appellant prosecutes this appeal.

On January 1, 1915 Myrtle Hill and F. D. (Bud) Sullivant were married. For convenient identification ;ve will hereafter refer to them as “Myrtle” and “Bud.” On April 30, 1927 they were divorced by decree of the Jefferson Chancery Court. A property settlement was made by Myrtle and Bud in the 1927 divorce suit whereby Myrtle received $1200.00 cash in full settlement of all claim for dower, homestead, alimony, etc. Myrtle went her way and Bud went his. She moved to Oklahoma, married Mr. White, lived with him for 22 years, was divorced by him in Arizona in 1955, and received $11,000.00 as a property settlement in that divorce proceeding. Bud continued to live in or near Grant County, Arkansas, and by penurious living amassed property in excess of $100,000.00. Bud died September 14, 1961, leaving a will which made his brother* Birt Sullivant (present appellee), executor and chief beneficiary.

After the death of Bud, Myrtle filed the present proceeding on December 26, 1961, seeking to set aside the 1927 divorce decree and property settlement, and seeking to receive the share of the estate of Bud to which she would have been entitled as widow. She alleged that the 1927 property settlement was void because at all times she was under duress from Bud' Sullivant, and that such duress continued unabated until his death in 1961. The defendant, Birt Sullivant, denied all the claimed duress, and pleaded limitations, laches, estoppel, and unjust enrichment. With the issues thus joined the cause proceeded to trial.

The appellant testified — and was corroborated to some extent by some of her witnesses — that she was married to Bud for 12 years; that Bud beat her and otherwise mistreated her; that she was afraid of Bud from the day after slie married him continuously until his death; that she agreed to the $1200.00 property settlement in the 1927 divorce decree because Bud threatened to kill her if she did not so agree; that he told her that if she over tried to get anything more he would kill her; and that her fear of Bud continued at all times until his death. Thus, she testified that she was under duress until Bud died.

The Chancellor delivered a written Opinion which is in the record before us. He found that Myrtle was under duress when she made the 1927 property settlement, but that such duress ended long before Bud’s death in 1961, and that Myrtle was barred from recovery in the present suit. Conceding, without deciding, that the Chancery Court was correct as to duress in the 1927 property settlement, 'we nevertheless are thoroughly convinced that any such duress, as existed in 1927, ceased to exist long before this present suit was filed, and that Myrtle is barred from any relief in the present suit.

Myrtle admitted that after the 1927 decree she lived in Pine Bluff for two years; moved to New Orleans and lived there two years; then moved to Oklahoma and married J. A. White on April 28, 1933; that she and Mr. White moved to. Texas; then to Arizona, where they lived together as husband and wife until 1955; that Mr. White obtained a divorce from her in Arizona in 1955; and that she received $11,000.00 property settlement in the Arizona divorce proceedings. The record shows this:

“Q. During the time you were in Kilgore, Texas, during the time you were living in New Orleans, and during the time you were living in Oklahoma City and living in Kilgore, Texas, you didn’t come in contact with Bud Sullivant or any of the Sullivants did you?
“A. I did not.”

Thus for a long period of time she never came in contact with Bud or any of his people, and yet she claims she was under duress even though she was married to another man for 22 years and was living in Arizona for most of those years. We refuse to believe in such “long-distance” duress. Certainly the finding of the Chancellor, on the absence of continued duress, is not against the preponderance of the evidence.

The appellee herein pleaded limitation and laches. Appellant insists there could be no laches, because laches is delay with change of position; and appellant claims there was no change of position. The death of Bud and. the absence of his testimony would be a change adverse to the interests of his estate. But at all events in equity stale demand is a species of laches. In Shelly Oil Co. v. Johnson, 209 Ark. 1107, 194 S. W. 2d 425, we had occasion to consider the matter of stale demand; and we there said:

“In 21 C. J. 211 it is stated: ‘A stale demand or claim in its proper sense is one that has for a long time remained unasserted; one that is first asserted after an unexplained delay of such great length ... as to create a presumption . . . that it has been abandoned. ... It is an inherent doctrine of jurisprudence that nothing-less than conscience, good faith, or reasonable diligence can call courts of equity into activity, and they will not grant aid to a litigant who has negligently slept on his rights and suffered his demand to become stale, where injustice would be done by granting the relief asked.’ See Davis v. Harrell, 101 Ark. 230, 142 S. W. 156; and Hill v. Wade, 155 Ark. 490, 224 S. W. 743. See, also 30 C. J. S. 521.”

We are firmly of the opinion that even if there was any duress, it ceased to exist long before 1961 and that appellant is barred by stale demand from prosecuting the. present claim.

Affirmed.

Harris, C. J., not participating.

       The will was contested by other brothers and sisters but was sustained by this Court in the case of Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665.

       Myrtle Hill Sullivant White (present appellant) filed two pleadings: (a) she filed a petition in the original 1927 divorce case, which was Chancery Court Case No. 12,000; and when objection was made to that procedure she (b) filed a separate and independent suit (Chancery Court No. 13381), naming as defendants in the separate suit not-only Birt Sullivant as executor and individually, but also several other parties. The two pleadings filed by Myrtle were consolidated, so no procedural problems, from such duplicate filing, are now presented on this appeal. In each of the pleadings she sought relief against Birt Sullivant, as executor of the estate of Bud Sullivant individually, since he was the principal beneficiary under the will of Bud Sullivant. In both pleadings filed by her Myrtle prayed alternately that: (a) the divorce decree be vacated and she take as a widow; or (b) that the divorce decree be reopened to allow her to receive the just portion to which she was entitled by way of dower, homestead, alimony, etc.; or (c) that Bud Sullivant and his executor be held as fiduciaries as to that part of the Bud Sullivant estate to which Myrtle Sullivant claims she was entitled.

       There were also allegations as to fraud practiced by Bud Sullivant in the procurement of the divorce and the property settlement. We find it unnecessary to detail the allegations and evidence as to fraud, since any such fraud was known by her and would have been long since barred unless she continued under duress. Thus our holding regarding duress disposes of the issues of fraud.

       As previously mentioned, other persons were joined as defendants, but they are immaterial to the issues herein.

       It is hard for us to see how Myrtle was under duress in 1927 because she was represented by most able counsel in the entire proceeding.


author: George Rose Smith, J.

text:
    Slaughter v. Barrett.
    5-3627
    395 S. W. 2d 552
    Opinion delivered November 15, 1965.

      Bob Scott, for appellant.
    No brief filed for Appellee.
   George Rose Smith, J.

The appellant and the appellee were involved in a traffic collision on College Avenue in Fayetteville. Slaughter, alleging that the damage to his car amounted to $157.33, brought this action for double damages and an attorney’s fee under Act 283 of 1957. Arle. Stat. Ann. § 75-918 (Repl. 1957). The trial court directed a verdict for the defendant on the ground that the plaintiff’s proof failed to show the difference in the value of his car before and after the- collision, that being the correct measure of damages. Whether the court was right in directing a verdict is the only issue before us.

In the collision Slaughter’s car was struck from the rear while he was waiting for a traffic light to change. He testified that the frame was bent, that a new rear bumper had to be installed, and that two panels were damaged. Without objection a repair order was introduced in evidence, the total cost of the repairs being $157.33. Slaughter testified that that amount had been paid by him and his insurance carrier to the garage that repaired the car. . ■

We have frequently held that the difference in the market value of a vehicle before and after an accident may be established by proof of the amount paid in good faith for'repairs made necessary by the collision. Southern Bus Co. v. Simpson, 214 Ark. 323, 215 S. W. 2d 699 (1948); Golenternek v. Kurth, 213 Ark. 643, 212 S. W. 2d 14, 3 A. L. R. 2d 593 (1948); Payne v. Mosley, 204 Ark. 510, 162 S. W. 2d 889 (1942). “The effect of our holdings ... is that proof of repairs is sufficient if, when considered with the other evidence adduced, it is shown to fairly represent the difference in market value before and after the injury.” Watson v. White, 217 Ark. 853, 233 S. W. 2d 544 (1950).

In the case at bar Slaughter, who is himself an automobile mechanic, described the specific replacements and repair work that were necessitated by the collision. The repair bill reflects the labor and materials that went into the job. Under the rule approved by our cases Slaughter’s testimony and the répair bill itself were sufficient to justify the trial court in submitting the question of damages to the jury. Needless to say, the defendant was at liberty to go forward with rebutting proof if he thought that the cost of the repairs exceeded the difference in market value. We hold, however, that the plaintiff’s evidence made a prima, facie case for the jury.

Reversed.


text:
    Donaldson v. Holcomb.
    5-3667
    396 S. W. 2d 281
    Opinion delivered November 15, 1965.
    [Rehearing denied December 20, 1965.]

      TJlys A. Lovell, for appellant.

      Bass Trumbo, for appellee.
   Paul Ward, Associate Justice.

Mrs. Rosalie Donaldson, the wife of J. Earl Donaldson, died on June 27, 1962 in Tulsa, Oklahoma and was buried on June 30, 1962 in Washington County, Arkansas. On August 7, 1964 Janelle Holcomb, a daughter of the deceased by a prior marriage, filed a verified petition in the Circuit Court of Washington County asking to have the body of the deceased exhumed and to have an autopsy performed thereon. The petition was granted on the same day, without notice to anyone.

Following the above, several motions and orders were entered regarding the matter, but finally on December 15, 1964 the court directed the coroner of Washington County (Dr. Donald Baker) to, proceed with the exhumation of the body, and to provide for an autopsy thereon and also to report the pertinent finding into court. This order was objected to by the husband of the deceased and he accordingly prosecutes this appeal, relying on three separate grounds for a reversal.

One. It is first contended that:

“The Circuit Court’s orders were void since they were without notice; without proof, without jurisdictions, and on petitions filed by improper persons.”

Even if it be conceded, for the purpose of this opinion, that the order made on August 7,1964 was defective for the reasons mentioned, we think all such defects were later cured by the order dated December 15, 1964. This last order was made following a hearing at which appellant and the deputy prosecuting attorney (representing the state) were present and participated. At this hearing, by agreement of the parties, certain exhibits and affidavits were examined and considered by the court. Then it was that the trial court directed the coroner of Washington County (Dr. Donald Baker) to proceed with the exhumation of the body of Rosalie Donaldson located in Washington County, and to secure an autopsy on said body by the office of the State Medical Examiner, and to report back to the court all pertinent facts obtained. Then •the trial court directed the coroner to withhold action for ten days in order that appellant might decide if he desired to appeal.

The above procedure was in substantial compliance with the procedure set forth in Ark. Stat. Ann. § 42-604 . (Repl. 1964). In all parts material here that section reads:

“Upon the death of any person ... in apparent good health, or when unattended by a physician ... or in any suspicious . . . manner, the coroner . . . shall be notified ... by any law enforcement officer having knowledge of such death. ...”

The following section (42-605) in all parts pertinent here reads:

“In any case of sudden, violent or suspicious death and the body being buried without any autopsy being per-, formed, it shall be .the duty of the Coroner upon being-advised of such facts to notify the Prosecuting Attorney of his District who shall communicate the same to any Circuit Judge of said District and said Judge may, by appropriate order, require the body to be exhumed and an autopsy be perfonned thereon by the Director of the Office of State Medical Examiner or by a pathologist or toxicologist designated by the Director and the pertinent facts disclosed by the autopsy shall be communicated to the Judge who ordered it, for such action thereon as he deems proper.”

It is not denied that the affidavits presented at the hearing concerning the death of Mrs. Donaldson fully justified the action taken by the trial court. There was evidence that she was not attended by any doctor during her final sickness; that she was in good health a' week before her death; that she expressed fear “they are trying to kill me ’ ’; that she thought she should get a divorce from her husband, and; that appellant (the deceased’s husband) had expressed a strong desire not to have the body exhumed.

Two. Next, appellant says the court erred in granting only ten days for notice of appeal. As previously set out the court directed the coroner to withhold any action for ten days. While it is not clear just what the court had in mind by this part of the order, we are unable to say it constituted reversible error. We agree that appellant had thirty .days in which to file notice of appeal under the provisions of Ark. Stat. Ann. 27-2106.1 (Repl. 1962), but we do not think the court meant to, or actually did, deny him that right. Rather it appears the court may have intended to do appellant a favor by staying all action for ten days. Moreover, the record discloses that appellant did give notice of appeal on December 29, 1964 (14 days after the date of the order appealed from), and there is no contention that he has been prejudiced in any way.

Three. On March 26, 1965 a judge (on exchange) made an order extending the time until July 21, 1965 for appellant to perfect his appeal to this Court. Four days later the regular judge modified the order to allow appellant until May 1, 1965. It is now contended this constituted reversible error, but we do not agree. In the first place the trial court had a right, on its own motion, to cancel or modify any order before the term expired. Also, the appeal has been filed and accepted within the time allowed by the last mentioned order, and there is no showing by appellant that he has in any way been prejudiced because of lack of time.

Affirmed.