author: Sam Robinson, Associate Justice. Carleton Harris, Chief Justice Ed. F. MoFaddin, Associate Justice

text:
    Short v. Stephenson.
    4-3189
    386 S. W. 2d 501
    Opinion delivered February 8, 1965.
    [Rehearing denied April 12, 1965.]

      Corneal Warfield, for appellant.

      W. K. Grubbs, Sr. and O. C. Burnside, Sr., for appellee.
   Sam Robinson, Associate Justice.

Dr. A. G-. Anderson of Eudora, Arkansas, a bachelor, died on the 15th day of June, 1960. He had signed a purported will on July 3, 1959. The will was filed for probate in the Chicot County Probate Court. Mrs. Helen Short of Louisville, Kentucky, a niece and only relative of the deceased, filed a petition contesting the validity of the will alleging that the testator did not have testamentary capacity, and that the will was procured by undue influence. After an extensive hearing the Probate Court admitted the will to probate. Mrs. Short has appealed.

The case is tried here de novo. Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665. Undue influence is defined as “. . . not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property.” McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590. Shippen v. Shippen, 213 Ark. 517, 211 S.W. 2d 433.

Where a beneficiary, under the terms of a will, procures the making of the will there is a rebuttable presumption of undue influence, and “it is incumbent on those, who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and action as are requisite to render a will legally valid.” McDaniel, Adm. v. Crosby, et al., 19 Ark. 533; Orr v. Love, 225 Ark. 505, 283 S. W. 2d 667.

This court said in Phillips v. Jones, 179 Ark. 877, 18 S. W. 2d 352:“ . . . the questions of testamentary capacity and undue influence are so interwoven in any case where these questions are raised that the court necessarily considered them together (St. Joseph’s Convent v. Garner, 66 Ark. 623, 53 S. W. 398), for in one case where the mind of the testator is strong and alert the facts constituting undue influence would be required to be far stronger in their tendency to influence the mind unduly than in another, where the mind of the testator was impaired, either by some inherent defect or by the consequences of disease or advancing age.”

In the case at bar, when undue influence is considered in connection with the lack of mental capacity, undoubtedly probate of the will should be set aside.

Although we have reached the conclusion that the will was procured by undue influence, we do not dwell on that point because we find by a preponderance of the evidence that the testator did not have the necessary testamentary capacity to execute a valid will.

Testamentary capacity means that the testator must be able to retain in his mind, without prompting, the extent and condition of his property, to comprehend to whom he is giving it, and relations of those entitled to his bounty. Tatum v. Chandler, 229 Ark. 864, 319 S. W. 2d 513; Sullivant v. Sullivant, 236 Ark. 95, 364 S. W. 2d 665; O’Dell v. Newton, 228 Ark. 1069, 312 S. W. 2d 339.

The evidence must be examined in the light of the aforesaid principles of law.

Dr. Anderson, the testator, was born and reared in Kentucky, but he spent practically his profession as a physician until he retired from active practice several years ago. He was 89 years of age at the time he executed the alleged will.

Dr. Anderson left an estate valued at about $118,000. The purported will makes specific bequests totaling $9,-400.00. All the rest and residue of the estate, according to the terms of the alleged will, goes to Eobert Stephenson, one of the proponents of the will. Mr. Stephenson was not related to Dr. Anderson, but was an old friend. He was present with Dr. Anderson in a lawyer’s office in Lake Village (both Dr. Anderson and Mr. Stephenson lived at Eudora) when arrangements Avere made for the preparation of the will. He was also present at the home of Dr. Anderson in Eudora on July 3, 1959, when Dr. Anderson signed the alleged will. Mr. Stephenson called the ones Avith whom arrangements had been made to witness the Avill and reminded them to be at Dr. Anderson’s home on the morning of July 3, 1959 to sign as witnesses. Actually, he picked up one of the witnesses in his car and drove her to Dr. Anderson’s home where the doctor lived alone.

The record in this case is large, consisting of about 1,200 pages, but due- to the difference of opinion among the laAvyers for the parties as to Avhat constitutes a fair abstract of the evidence, Ave have examined the entire record and have reached the conclusion that a preponderance of the evidence proves that Dr. Anderson did not have the testmentary capacity required by laAV to execute a valid Avill.

Not only does the evidence support a hypothetical question propounded to an expert witness by counsel for the contestant, but practically all of the facts mentioned in the hypothetical question are proved by a preponderance of the evidence. This evidence, along’ with other evidence in the case, proves that at the time of the execution of the will Dr. Anderson was not mentally competent to make a valid Avill. To abstract here all the evidence in the case would unduly extend this opinion, but Ave point to the facts proved by the evidence and mentioned in the hypothetical question.

Early in 1956, Dr. Anderson bought three head of cattle from John Crabtree and forgot all about them; in the Spring of 1956, he bought a very expensive bull for which he had no need. There were several incidents during the years 1957 and 1958 showing complete loss of memory of various transactions. On April 25, 1958, he sold several hundred acres of land and on April 30, 1959 he was unable to remember any terms of the sale. For some 20 years Dr. Anderson was deathly afraid of snakes and always carried a hoe in his car and would never walk through grass or crops without this protection; in June, 1958, he forgot all about snakes and never carried his hoe again.

In the Fall of 1958, Dr. Anderson bought two loads of corn and when it was delivered, he had the man take it back. Shortly thereafter, he sent Joe Hardeman to the same person to buy the same corn at the same price. He made several loans to persons whose names he could not remember. The Saturday afternoon before Christmas, 1958, Dr. Anderson voided off the front porch of his office on Main Street, and gave no sign that he recognized Lee Scott, who had knocked on his porch and caused him to come out of his office. In 1956 and 1957, Edgel Burgess negotiated with Dr. Anderson for the purchase of a piece of property and he forgot about the transaction within a short period of time.

For several years prior to 1958, Dr. Anderson employed Charles Wade to farm and raise cattle for him with the agreement that he pay Wade a small salary, but Wade would share in the profits of the farm and cattle operations. In 1958 he sold cattle and land to Frank Pylate without consulting Wade and forgot all about their agreement that Wade was to share in the profits. In the Spring of 1959, he refused on one occasion to make a loan that he had promised to Lee Scott, and a short time later he met Scott on the street, took him to his office, made the loan, and didn’t remember having refused it less than an hour before.

On April 11, 1959, Dr. Anderson failed to recognize his only living relative, his niece, Mrs. Helen Short. He also failed to recognize several other people whom he had known well over a long period of years. During 1958 and 1959 he was continually forgetting where he left his automobile; he would also forget when he had eaten and return in a short time thinking he had not eaten, and would eat again. On at least two occasions in June, 1959, he went into a restaurant at 8:30 in the evening and asked for breakfast and could not be made to realize that it was not early in the morning.

During the last ten years of his life, Dr. Anderson talked more and more of events that happened in the remote past and seemed unable to remember recent and intermediate events. Late in 1958 and early in 1959, he forgot old events that he had so often recounted in the past; he forgot his birthday on January 25, 1959, although he had celebrated it at a special dinner each year for many years and had always enjoyed it. There was also considerable change in personal appearance and habits; his irrationality increased markedly, such as throwing coffee at a waitress, walking out and refusing to eat, and getting angry when someone would try to help him in other ways.

He lost interest in things in. general; his interest centered more and more on himself. He suffered from nocturnal restlessness; he became difficult and sometimes impossible to understand while talking. He appeared to be talking either to himself or some imaginary person; there was a definite change in his speech, it became slower and more difficult. He suffered more and more from tremors and agitation during the last few years of his life; his judgment became seriously impaired; his driving became hazardous; he failed to observe traffic signals or take reasonable precautions to protect his life or the lives of others; he unnecessarily drove his car into mud holes.

During the latter part of 1958 and the early part of 1959, Dr. Anderson’s physical condition became steadily worse. His appetite decreased and he became very weak and feeble; his posture became stooped. It was necessary for him to be hospitalized five times during the first four months of 1959; by July 3, 1959, he was 89 years of age and had become so weak and emaciated that he had to be helped up and down stairs and it was often necessary to feed him with a spoon.

On the morning of July 3, 1959, at 7:30 o ’clock, Dr. Anderson was unable to talk, and appeared to be disoriented to the extent that he didn’t realize where he was or what he was doing; he was unable to eat and unable to recognize people whom he had known for years.

Dr. W. P. Holman, a qualified neuro-psychiatrist at the Arkansas State Hospital, testified that, in his opinion, as far back as 1958 Dr. Anderson suffered with senile psychosis. He further testified that when a person is suffering- with senile psychosis his defect in judgment is permanent and is not transitory; that when one is afflicted with this condition he is out of contact -with his surroundings and there is a disturbance in a person’s relation to reality; that once he is incompetent from senile psychosis he remains that way; that Dr. Anderson would not be capable of realizing the nature and extent of his property or his obligation to those who were most entitled to his bounty, and would not be capable of carrying-on business and realizing the nature and consequence of his actions; that he would not be mentally competent to do those things; that his memory would be impaired so severely he would not know his natural heirs and his judgment would be impaired.

In addition to the foregoing facts, there are other facts supporting the conclusion that Dr. Anderson did not have testamentary capacity. The record is convincing that he was a good man, a fair-minded man; that before he became afflicted with senile psychosis he could be counted on to do the right thing.

Joe Hardeman, an old negro, 73 years of age at the time Dr. Anderson executed the purported will, had worked for the doctor for 32 years. The evidence is convincing that he had been loyal and faithful to Dr. Anderson. Many many nights, when Dr. Anderson was very sick, Old Joe sat up all night long in the room with the doctor to keep the fire burning and to help in any manner required. In fact, he sat up with the doctor so many nights that it was suggested that a cot be placed in the doctor’s room for the old negro to make it a little easier on him. Joe was never paid for this kind of service.

By the so-called will, Dr. Anderson left Joe only two old mules that are practically worthless, one of them being over 30 years old, and the so-called will also provides for the cancellation of any debts that the old negro might owe the doctor. Joe did not owe anything of any consequence. He ‘ ‘ paid out ’ ’ every year. From the record it does not appear that such ingratitude was the act of the just and fair-minded man that Dr. Anderson was before he became afflicted with senile psychosis.

The testator’s physical and mental condition for months immediately preceding- the execution of the so-called will supports the conclusion that he did not have testamentary capacity. On January 25, 1959, Dr. Anderson was admitted to the Greenville, Mississippi, hospital. Appellee made an objection to the admission in evidence of the hospital records, but from the record on appeal it is not clear as to just what portion of the hospital records appellee objected. The records were introduced by the attending physicians — the ones who made the diagnoses. The doctors had written out the diagnoses in the records in their own handwriting and had signed the records. The attending physicians were on the witness stand; they could have been cross examined on any phase of the records, and if it developed that the records contained matter of which the witnesses had no personal knowledge, a motion could have been made to strike that specific part, which motion may or may not have been granted, but there could be no valid objection to that part of the records made by the witnesses. Ark. Stat. Ann. § 28-928 (Repl. 1962).

The diagnosis on January 25, 1959, when Dr. Anderson was admitted to the Greenville Hospital was “general arteriosclerosis”. He was discharged from the hospital two days later on January 27, 1959. Less than a month later, on February 17, 1959, he was admitted to the hospital at Lake Village; the diagnosis was “arteriosclerosis and senility”. He was discharged five days later on February 22, 1959. Again, about a month later, on March 25, he was admitted to the Lake Village Hospital; the diagnosis was “myocarditis, senility . . . very feeble senile male”. He was discharged four days later on March 29, 1959. Again less than two weeks later, on April 9, 1959, he was admitted to the Lake Village Hospital; the diagnosis was “senility, frail, senile male— very weak”. He was discharged the next day, April 10. In less than two weeks, on April 19, he was again admitted to the Greenville Hospital; the diagnosis was “arteriosclerotic heart disease — digitalic intoxication”. He was discharged April 30, 1959. He signed the purported will about two months later on July 3, 1959.

Although appellee introduced evidence tending* to prove that Dr. Anderson was mentally capable of making* a valid will, we are of the opinion that the preponderance of the evidence is to the contrary. The judgment is, therefore, reversed with directions to set aside the probate of the will.

Harris, C. J., McFaddin & George Rose Smith, J. J., dissent.

Carleton Harris, Chief Justice

(dissenting). I am unable to agree with the result reached by the majority. To set out the testimony on either side would take many pages, and it is only my purpose to point out that there was much evidence to the effect that Dr. Anderson was mentally competent.

Dr. Lewis Farr of Greenville, Mississippi, attended Dr. Anderson in January and April of 1959, when the latter was a patient in the hospital in Greenville, and also saw him in April of 1960. Dr. Farr stated that he could not state, from his diagnosis, that Anderson was mentally incompetent in July of 1959. Of more significance, I think, is the testimony of Dr. B. Z. Binns of Eudora, who was Anderson’s doctor from 1952, and particularly treated him during 1958, 1959 and 1960. He testified that he never saw Dr. Anderson at any time when the latter was psychotic, and it was his opinion that the testator was mentally competent on July 3, 1959, the date of the execution of the will. To me, this testimony is much more pertinent and persuasive than that of Dr. W. P. Holman, the expert who answered the hypothetical question, for the reason that Dr. Binns was well acquainted with Anderson in his lifetime, seeing and treating Anderson on many occasions, while Dr. Holman never saw the testator at all.

L. B. Hunter, an employee of the Eudora Hardware Company, a friend of Anderson’s for a long number of years, and who had occasion to see him often, stated that he never once saw the doctor do or say anything that indicated mental incompetence, and he was of the opinion that Anderson was competent in July, 1959. Frank Pylate testified that the doctor told him that when he (Anderson) died, he was going to leave his affairs in the hands of Robert Stephenson. He was of the opinion that Anderson was mentally competent on July 3. Mrs. Edith Wilson testified to the same effect; W. R. Jones, executive officer of the Eudora bank (of which Dr. Anderson was a director) testified that during 1959, the doctor was at every directors’ meeting, and that he took part in the meetings, apparently fully aware of what was going on, asking questions, and making comments. He stated that Anderson did not say or do anything that indicated mental incompetence, and he was of the opinion that the doctor was mentally competent in July of 1959. In fact, the record reflects that Dr. Anderson attended a directors’ meeting on July 8, five days subsequent to execution of the will, here in question, and on that date made a loan to Mrs. Carlton, one of the appellant’s witnesses.

S. H. Ball, Constable at Eudora, R. C. Grubbs, Chief Clerk of the Post Office, Ralph Scott, another director of the Eudora bank, Reverend John T. Miles of Scott Memorial Methodist Church in Eudora, R. W. Parrish, former Crcuit Clerk of Chicot County, Mrs. Ruby Cain, who worked in a store close to Anderson’s office, Mrs. George Cochran, a clerk at the Catron-Gay Funeral Home, and several others, all testified that they had occasion to see Anderson several times during 1959, and it was their opinion that the doctor was competent on July 3 of that year. Rather than detail the testimony of the various witnesses, I set forth a part of the findings of the Chancery Court of Chicot County relative to the activities of the doctor. From the findings of the court:

“The business activity of the decedent from March 1958, to March 1960, shows the following: March 13, 1958, transferred some $70,000.00, the residue of his sister’s estate to contestant; April 25, 1958, sold his 349 acre farm and herd of cattle for $48,000.00, the deferred payments on the land represented by notes bearing interest at six per centum per annum; June 24, 1958, gave $100.00 to Mt. Carmel Cemetery; August 20, 1958, gave Mrs. Dovie Cashion, then Crabtree, $300.00; beginning in February 1959, correspondence and transactions relating to estate of Mrs. Belle Kahn; March 5, 1959, received and deposited in the Eudora Bank, $5,500.00, from insurance company for fire loss of the Carlton Cafe on which he had a mortgage; March 14, 1959, gave Mrs. Davie Crab-tree, now Cashion, $50.00; March 24, 1959, loaned Mrs. Jewell Carlton, $6,000.00 to reopen cafe — accepted note and mortgage as security on fixtures and real estate; June 16,1959, gave $50.00 to Hendrix College; latter part of June 1959, agreed to give the Kahn property in Louisville, Kentucky, which he had been devised by Mrs. Belle Kahn’s last Will and Testament, to Children’s Hospital of Louisville, Kentucky — value $25,000.00. This gift was consumated hy deed, dated July 21, 1959; procured, formulated and provided to his tax accountant detailed information for preparation of income tax report in March/June 1959; July 8, 1959, loaned Mrs. Carlton an additional $318.15, evidenced by a note and secured by the mortgage heretofore mentioned; on several occasions in several months before July 3, 1959, had conferred with Mr. Burnside; July 2, 1959, participated in drafting of his will; October 3, 1959, gave $250.00 to the Eudora Methodist Church; during the fall of 1959, collected a note from Pylate on the purchase price of the sale of his farm; attended and participated in Board of Directors Meetings of the Eudora Bank in March, April, May, June, July, August, November and December 1959, January, February and March 1960; in January 1960, was negotiating with U. S. Treasury Department concerning gift tax assessment on sister’s estate; February 27, 1960, loaned Mrs. Carlton an additional $800.00. During all of the above period he was regularly loaning money to Merritt Stephenson, apparently to buy cattle, and was collecting these loans; he was also loaning other persons money; mantained a bank account and was in the Eudora Bank almost every day; went to postoffice for mail; paid taxes at courthouse; checked at the Circuit Clerk’s office for records.”

It is inconceivable to me that one who engaged in these various business activities could be classed as mentally incompetent. Appellant, Mrs. Helen Short, apparently feels, because she was the only living relative, that Dr. Anderson was incompetent becau.se he chose to leave the bulk of his estate to a friend, rather than to her. To me, this in no wise indicates incompetence. As was stated in Bruere v. Mullins, 229 Ark. 904, 320 S. W. 2d 474:

‘ ‘ * * * The relationship of nephew and niece to uncle is not, within itself, a particularly close relationship, nor is there evidence that would establish an unusually close connection between the parties herein.”

Here, the niece lived in Louisville, Kentucky, while Dr. Anderson, of course, lived at Eudora, and, if I read the record correctly, Mrs. Short visited Eudora during the lifetime of Dr. Anderson only once (in April, 1959), and she testified that he did not recognize her' on that occasion. Nor does the record reflect that D , Anderson made many visits to see Mrs. Short in n.ouisville. The last time that he visited in her home was in 1951, and he also saw her in Louisville in December, 1957, when attending the funeral of his sister. This brings to mind an interesting fact which is not mentioned in the majority opinion. The sister, Liny C. Anderson, was Dr. Anderson’s only sister, and had lived in Louisville. As an heir, the doctor’s share of her estate amounted to approximately $80,000, something over $70,000 after deduction of taxes. In 1958, the doctor transferred his entire portion of the estate to Mrs. Short. In my sixteen years’ experience on the bench, I have never known any person to receive such an amount from an estate — and then during his or her lifetime, give the entire sum to somebody else, relative or otherwise. It is little wonder that Dr. Anderson, in his will, mentioned that he had already provided for his niece — for indeed, this had been done — and in a substantial manner.

Though, as previously pointed out, Mrs. Short testified that, on her one trip to Eudora, her uncle did not recognize her, she wrote letters or cards to him from home and from the Bahamas, the tone of which indicate that she considered herself writing to a perfectly normal person. For instance, she would comment about persons that Dr. Anderson knew, and events that he might be interested in. Only July 31, 1959, she wrote that she was going to Florida for a two weeks’ vacation, and “Have Mrs. Crabtree call me if you ever want me for anything. ’ ’ In sending a card from the Bahamas on August 10, Mrs. Short said, “Met Mrs. Crabtree and we are having such a good time. Hope you are feeling better. * * *” One also wonders (if Mrs. Short considered Dr. Anderson to be incompetent in April, 1959) wby there was no effort made to obtain the appointment of a gnardian. It wonld appear, if we accept completely the testimony of appellant’s witnesses as to Dr. Anderson’s actions in 1958, and even as far back as 1956, that he was in need of supervision — and it seems reasonable that Mrs. Short would have been advised of these facts by her friend, Mrs. Cashion (Crabtree). Yet no steps were taken to provide a guardian.

The majority say (referring to Anderson), “The record is convincing that he was a good man, a fair-minded man; that before he became afflicted with senile psychosis, he could be counted on to do the right thing. ’ ’ If indeed the doctor was senile, it does not seem to have affected his generosity or his inclination to do good. I have already mentioned that he turned over the entire portion of his share of his sister’s estate to Mrs. Short. The record also reflects that Mrs. Belle Kahn of Louisville, an old friend, devised her home (of the value of $25,000) in Louisville to Dr. Anderson. On July 21, 1959, the doctor conveyed this property, by deed, as a gift to the Children’s Hospital of Louisville, Kentucky. He also made many other contributions, and his will likewise follows the same pattern of generosity. In that will (declared by the majority to have been executed while he was mentally incompetent) the doctor made the following bequests : $1,000 to the Methodist Church of Eudora; $1,000 to the Baptist Church of Eudora; $1,000 to the Presbyterian Church of Eudora; $1,000 to the Assembly of God Church of Eudora; $500.00 to the A.M.E. Church (colored) of Eudora; $1,000 to the Methodist Orphanage at Little Rock; $1,000 to the Crippled Children’s Home of Little Rock; $1,000 to “Boys’ Town” of Nebraska, and $1,000 to the Bottoms Baptist Home at Montieello.

The majority have also found that the will was procured by undue influence, but the testimony upon which this finding is based is not mentioned. The majority couple the undue influence with the lack of mental capacity, stating:

‘ ‘ In the case at bar, when undue influence is considered in connection with the lack of mental capacity, undoubtedly probate of the will should be set aside.”

I find no testimony establishing undue influence, and evidently the majority are relying far more on the lack of mental capacity, since they do not set out testimony relied upon for the finding of duress or undue influence. Certainly, there is no sign of irrationality in the will itself. The instrument mentions friends and makes bequests to them, and contains some facts which probably only Anderson would know, and it is evident that it expresses his beneficence and philanthropic tendencies.

The Chancellor apparently listened intently to the testimony in this case, and wrote a lengthy opinion. He had the opportunity to view the witnesses, and observe their demeanor on the witness stand as they testified, an opportunity not afforded this court. I certainly cannot say that the Chancellor’s findings were against the preponderance of the evidence, and I would accordingly affirm the decree.

I, therefore respectfully dissent.

Ed. F. MoFaddin, Associate Justice

(dissenting).

In reversing the Chancery decree, the Majority of this Court is thereby holding that the Chancellor’s decision is against the preponderance of the evidence. I cannot agree with the Majority; and, therefore, I dissent.

Dr. Anderson executed his will on July 3, 1959. He died on June 15, 1960. The will was. admitted to probate on June 18, 1960; and on December 21, 1960, the appellant, Mrs. Helen A. Short, filed this contest. The will having been admitted to probate, the burden was on the contestant, Mrs. Short, to prove by the preponderance of the evidence that the testator, Dr. Anderson, did not have testamentary capacity at the time he executed the will. (Ross v. Edwards, 231 Ark. 902, 333 S. W. 2d 487.) I emphasize that the burden was on the contestant. If the testimony was equally balanced, then the Chancellor was correct in denying the contest. If the evidence did not preponderate in favor of the validity of the will, it certainly did not preponderate in favor of the invalidity of the 'will. With the evidence in such equal balance, we should not reverse the Chancellor, who saw the witnesses and heard them testify, whereas we see only the cold printed page.

I emphasize this point because the Majority Opinion attaches great importance to the testimony of Dr. W. P. Holman who answered a hypothetical question. It must be remembered that Dr. Holman never saw Dr. Anderson and only testified from facts detailed in the hypothetical question. I do not know how impressive Dr. Holman appeared on the witness stand: I only see the printed page. But, opposed to Dr. Holman’s testimony (who never saw Dr. Anderson), there is the testimony of Dr. B. Z. Binns, who was Dr. Anderson’s family physician and who saw him nearly every day; and Dr. Binns testified, based on his acquaintance and treatment, that Dr. Anderson was sane and of testamentary capacity on the day he executed the will. The Chancellor saw these two doctors testify and he took the testimony of Dr. Binns. I cannot, from the printed page, say that Dr. Binns was wrong and Dr. Holman was right.

The entire question in this case is testamentary capacity on July 3, 1959, the day of the execution of the will. The number of witnesses called by the respective sides was practically even; but I propose to review the testimony now of some (not all) of the witnesses who testified that Dr. Anderson had testamentary capacity.

1. Mr. O. C. Burnside, Sr. was the attorney who drew the will. He has been practicing law in Lake Village for over 45 years and knew Dr. Anderson all of these years, having represented him in numerous matters both before and after the execution of the will. Some time in the early part of 1959 Dr. Anderson explained to Mr. Burnside that Dr. Anderson had recently inherited some property in Kentucky worth approximately $100,000.00 and that he wanted to give the property to his niece (the contestant, Mrs. Helen Short). Dr. Anderson wanted to know the easiest way to transfer the property with the least expense; and Mr. Burnside advised him what to do, and it was done. Thus, six months before the execution of the will Dr. Anderson gave his niece this property. In January 1960 there was a deficiency claim of income tax by the United States government against Dr. Anderson in the amount of $821.51; and Dr. Anderson again consulted with Mr. Burnside about this matter. I mention these dates to show that Mr. Burnside was frequently consulted by Dr. Anderson: one such instance beng before the will, and one being after it. Mr. Burnside testified that some days before July 3, 1959, Dr. Anderson came to him and told him that he wanted to make a will with a combined power of attorney so that his friend, Mr. R. T. Stephenson, could sign Dr. Anderson’s name to checks on the bank to look after him if he should be sick for a long time; and then could be executor of his estate when he passed away. Mr. Burnside spent some time seeing if such a “double barrel” instrument could be properly drawn. After several days Dr. Anderson saw Mr. Burnside and asked him what was his conclusion. Mr. Burnside agreed to draw the instrument, which is the will in this case. Dr. Anderson went to Mr. Burnside’s office, with some notations on paper, and told him how he wanted the will drawn and just whom he wanted to be the attesting witnesses; and Mr. Burnside drew the will. Mr. Burnside testified:

“Q. At that time, and now were and are you of the opinion that the Will was an expression of Doctor Anderson’s own free will?
“A. It was, definitely.
‘ ‘ Q. From yonr — all during your contacts with him and observations of him, did you ever, during that time, see him do, or, hear him say anything that indicated to you that he was not mentally competent?
“A. No.
£ £ Q. From your associations, contacts and observations of Doctor Anderson during all of the time that you have known him in the last few years prior to the writing of this Will, do you have an opinion as to whether Dr. Anderson was mentally competent on July the 3rd, 1959 ?
££A. I do.
££Q. What is that opinion?
££A. That he was mentally competent.”

I attach great importance to this testimony. I find nothing in the record to weaken this testimony; and I attach great importance to it.

2. One of the attesting witnesses to the will was Mrs. Mary Thach. She testified that she had known Dr. Anderson for all of her life and that this was the second will she had witnessed for him; that she could see no change in his condition on the day he signed the will from what his condition had been in preceding years; that he was perfectly normal at the time he signed the will; that his memory was all right; and that he knew what he was doing. Mrs. Thach testified that Dr. Anderson was a Director in the Eudora Bank and hardly a day passed that he did not come into the bank and she saw him nearly every day; that Dr. Anderson had previously given her the combination to his safe and told her that if anything happened to him to give the combination either to Mr. Diehl or Robert Stephenson; that since Mr. Diehl was dead she gave the combination to Robert Stephenson after Dr. Anderson’s death. Now, here was a witness that had known Dr. Anderson all of her life; one who saw him nearly every day; one in whom he confided the combination to his safe. She witnessed his will and said he was of sound mind and firm memory at the time he executed the will. That is strong- testimony.

3. The next attesting- witness was Miss Segis Cheairs. She worked in the store on Main Street near the bank and had known Dr. Anderson all of her life. She testified that Dr. Anderson asked her to sign the will as a witness and she signed it; and that he was of sound mind at the time he signed it; that she saw no difference in him on that day than on any other day for the several years before.

4. Mr. Frank Pylate was a farmer and ginner in Eudora and 51 years of age. He had no interest whatsoever in this litigation. He testified that he was with Dr. Anderson both before and after July 3, 1959, and that in the fall of 1958 Dr. Anderson told him: “I am going to leave my affairs in the hands of Robert Stephenson. I think he is a mighty good man. ’ ’ Mr. Pylate testified that from all of his various contacts, associations, and observations of Dr. Anderson, he was of the opinion that Dr. Anderson was mentally competent to make a will on July 3, 1959.

5. Miss Edith Wilson testified that she had known Dr. Anderson since January 1900; that he had been her family doctor and she saw him during the years from 1957 to 1960; that he died in her home in 1960; and that from all of her observations, associations, and acquaintance with Dr. Anderson, she considered him mentally competent on July 3, 1959.

6. Mr. W. R. Jones was the Executive Officer of the Eudora Bank. Dr. Anderson was a Director in the bank until his death. Dr. Anderson attended all the Directors’ meetings in 1959 and through March 1960. In March 1959 Mr. Jones prepared papers for Dr. Anderson whereby he was making a loan of $6,000.00. Mr. Jones would see Dr. Anderson walking- down the street nearly every day, and there was never a time when he thought Dr. Anderson lacked mental competency. From his knowledge, acquaintance, and association with Dr. Anderson, Mr. Jones, the Executive Oficer of the Eudora Bank, who served on the Board of Directors with Dr. Anderson, testified that Dr. Anderson was mentally competent to make a will on July 3,1959.

7. Reverend John T. Miles was the Methodist minister in Eudora for two years up until June 1959. Dr. Anderson was a member of his church, and Dr. Anderson was always interested in needy cases. Reverend Miles said that Dr. Anderson was “as sharp as a tack,” and he considered him mentally competent in all matters.

8. Mr. S. H. Ball had lived in Eudora 41 years. He was a farmer and Constable of the township; and he testified that he saw Dr. Anderson nearly every day and from his observations and contacts he testified that Dr. Anderson was mentally competent on July 3, 1959.

9. Mr. R. C. Grubbs was a tax accountant and had lived in Eudora and known Dr. Anderson since 1922. He had handled Dr. Anderson’s income tax affairs since 1941. He prepared Dr. Anderson’s 1958 income tax return in 1959. Dr. Anderson had sold a farm and it took some time to refer back to his deeds and establish his cost basis; so Mr. Grubbs was with him continuously during that time. He testified that in all these transactions he never saw Dr. Anderson say or do anything that would indicate that he was mentally incompetent.

10. Mr. Ralph Scott was a business man, 52 years of age, had lived in Eudora 42 years, and was a member of the Board of Directors of the Eudora Bank, along with Dr. Anderson. He had known Dr. Anderson for over 40 years. He and Dr. Anderson regularly attended the meetings of the Board of Directors of the Bank. He testified that from all his acquaintance, contacts, and associations with Dr. Anderson, it was his opinion that Dr. Anderson was mentally competent on July 3,1959. We copy an excerpt from his testimony:

“ Q. In your opinion was he mentally competent on July the 3rd, 1959?
“A. I certainly think so, yes sir.
“Q. Was he mentally competent at that time to know the extent and nature of his property?
“A. Yes sir.
‘ ‘ Q. Was he mentally competent to know who might ordinarily expect to inherit from him?
“A. I am sure he was.
“Q. Was he mentally competent to know who he was putting in his will or cutting out of it?
“A. I don’t think there would be any danger of any argument about that, the Doctor was about the same all the way through as far as I could tell. ’ ’

11. Finally, I mention the testimony of Dr. B. Z. Binns, who had lived in Eudora since 1949, who had occasion to treat Dr. Anderson the last three years of his life, and was Dr. Anderson’s family physician. He testified that from all of his contacts, observations, treatments, and experiences with Dr. Anderson, it was his firm and abiding opinion that Dr. Anderson was mentally competent to make a will on July 3, 1959. Now, here was the doctor, who was Dr. Anderson’s family physician and treated him the last three years of his life, and he testified that Dr. Anderson was mentally competent to make a will on July 3, 1959.

There were other witnesses, but I have selected those who knew Dr. Anderson for a number of years and had dealings with him: the lawyer who drew the will; the two attesting witnesses; the family physician; business associates ; the preacher; the constable; other friends. They all testified that Dr. Anderson was mentally competent to make a will.

The fact that he was 90 years of age does not mean anything. I know several men 90 years of age who are as mentally alert as many men are at 45. I know one man past 90 who can repeat whole chapters of the Book of Acts and whole portions of Shakespeare’s plays. This Court, in Pernot v. King, 194 Ark. 896, 110 S. W. 2d 539, upheld the will of a man 92 years of age at the time of executing the will; and we said:

“Mere age is not necessarily inconsistent with testamentary capacity. ‘Indeed, the mental faculties may he weakened and impaired by old age without destroying such capacity. The mere fact that an aged testator’s memory is failing, or that his judgment is vacillating, or that he is becoming eccentric, or that his mind is not as active as formerly — these things do not invalidate his will if it was fairly made and he was free from undue influence. While age is not of itself a disqualification, yet it excites vigilance to see if it is accompanied with capacity. ’ — Thompson on Wills, § 62, pp. 88-89. ’ ’

The burden of proof was on the appellant, Mrs. Helen Short, to establish a lack of testamentary capacity. The Chancellor, who saw the witnesses, held that she had failed to meet the burden. I cannot say that the Chancellor was wrong, so I dissent from the Majority Opinion in this case.

       This visit was made by appellant after being advised by Mrs. Cashion (Crabtree) that the doctor was in the hospital.

       The Majority Opinion says: “. . . we find by a preponderance of the evidence that the testator did not have the necessary testamentary capacity to execute a will.” Again, the Majority Opinion says: “. . . a preponderance of the evidence proves that Dr. Anderson did not have the testamentary capacity required by law to execute a valid will.” And in the last paragraph the Majority Opinion says: “Although appellee introduced evidence tending to prove that Dr. Anderson was mentally capable of making a valid will, we are of the opinion that the preponderance of the evidence is to the contrary.”


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Mason v. Peterson.
    5-3494
    386 S. W. 2d 486
    Opinion delivered February 8, 1965.

      John F. Gibson and H. Murray Glaycomb, for appellant.

      Marion S. GUI and William H. Drew, for appellee.
   Sam Robinson, Associate Justice.

The appellant, Carl F. Mason, and appellee, Merle F. Peterson, were candidates in the 1964 Democratic Primary for the office of State Senator for the 21st Senatorial District composed of Desha and Drew Counties. The Desha County Democratic Central Committee certified that Peterson received 3,223 votes and that Mason received 1,872. Mason filed this action in Desha County contesting the result of the election in that county. Peterson demurred to the complaint. The trial court sustained the demurrer; Mason refused to plead further; the complaint was dismissed, and Mason has appealed.

In his complaint Mason alleges that a total of 380 votes had been illegally cast in the election, but there is no allegation that any illegal vote was.cast for Peterson. There is a general allegation that if the entire number of alleged illegal votes were discarded, Mason would receive the same number of votes as certified by the County Election Commisison, but Peterson would receive 220 votes less than the number certified. There is no allegation as to the status of the remaining 160 votes alleged to be invalid. Furthermore, there is no allegation that the result of the election would be changed by reducing Peterson’s vote by 220 in Desha County. The complaint alleges that if all alleged invalid votes in Desha County were discarded Peterson would receive 3,003 and Mason would receive 1,872 valid votes in that county, but there is no allegation of how this result would in any manner benefit Mason.

In addition to the demurrer, appellee filed an answer and cross-complaint to be considered in the event the demurrer was overruled. If the answer and cross-complaint were considered, perhaps it would appear that a reduction of appellee’s vote by 220 in Desha County would affect the result of the election, but the trial court did not reach a consideration of the answer because the demurrer was properly sustained. Appellant contends that appellee stipulated regarding the vote in Drew County, but the record clearly shows that there was no stipulation.

To support his contention that the complaint is good as against the demurrer, appellant relies to a large extent on Gunter v. Fletcher, 217 Ark. 800, 233 S. W. 2d 242, where the court held that the complaint is good if it gives the other party reasonable information regarding the grounds of the contest. But even so, the Gunter case does not hold that the complaint need not allege facts-sufficient to show that the plaintiff would derive some benefit from a judgment granting the prayer of his complaint.

In the Gunter case the complaint alleged that with the illegal votes discarded the correct vote would have been for Gunter 3,371, for Fletcher 3,160. Here, appellant does not claim that he received a majority of the votes cast in Desha County, and there is no allegation regarding the vote cast in Drew County, and no allegation of the total vote cast in the District. In McClendon v. McKeown, 230 Ark. 521, 323 S. W. 2d 542, the court quoted as follows from Hill v. Williams, 165 Ark. 421, 264 S. W. 964: ‘ ‘ There should have been an allegation in the complaint showing the number of votes received by each candidate, so that it would appear, after deducting the alleged fraudulent votes from the number accredited to appellee (contestee here) that appellant (contestant here) would have more votes than ... his opponent.” To the same effect is Wilson v. Ellis, 230 Ark. 775, 324 S. W. 2d 513.

As heretofore pointed out, the allegation is that if the questioned votes are discarded, Peterson would still have almost twice as many votes in Desha County as Mason, and there is no allegation regarding the total vote in the District or the number of votes received by the parties in Drew County.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Ark. State Highway Comm. v. Massengale.
    5-3397
    386 S. W. 2d 710
    Opinion delivered February 8, 1965.
    [Rehearing denied March 8, 1965.]

      Mark E. Woolsey, Don Gillaspie and Don Langston, for apellant.

      Sexton & Robinson for appellee.
   Jim Johnson, Associate Justice.

This is an eminent domain proceeding. Appellant Arkansas State Highway Commission filed a condemnation petition in Johnson Circuit Court on October 3, 1963, seeking to condemn 11.84 acres of land belonging to appellees Arkie Massengale and Delsie Massengale, his wife. The land condemned as part of the right of way of Interstate Highway 40 completely bisects appellees’ property, isolating 40 acres of improved property north of the highway from 132 acres of pasture and water supply to the south. As estimated just compensation the Commission deposited the sum of $13,700 into the registry of the court, which was withdrawn by appellees on December 3, 1963, after denial of their motion to increase the deposit. Trial was commenced on February 12, 1964, and the jury returned a verdict of $25,000 for appellees. From judgment on the verdict appellant has prosecuted this appeal.

For reversal appellant contends, first, that the trial court erred when it refused to permit appellant to cross examine the landowner relative to the assessed valuation of his property for tax purposes.

We do not reach the merits of this question. After the court sustained appellees’ objection to cross examination on the assessed valuation of his property, appellant made no offer of proof and thus failed to properly preserve the record on this point. Montgomery County v. Cearley, 192 Ark. 868, 95 S. W. 2d 554.

Appellant’s second contention is worthy of far more consideration and concern. It is: “the trial court committed reversible error when it permitted testimony relative to brokerage commissions, abstract costs and deed fees.”

This court has consistently adhered to the rule that, ‘ ‘ The true measure of damages is the difference between the market value of the whole tract before the taking and the market value of what remains to him after such..taking,” St. Louis, Arkansas & Texas Railroad v. Anderson, 39 Ark. 167, and has allowed a wide range of factors to be considered in determining fair market value. Ark. State Highway Comm v. Carpenter, 237 Ark. 46, 371 S. W. 2d 535. While we are not prepared, on the record here presented, to say that it is improper to ask an appraiser if he considered selling expenses in making his overall appraisal, we find no justification for allowing such selling costs, i.e. brokerage commissions, abstract costs and deed fees, to be introduced as sepaarte items of the landowner’s damage. The highest testimony admitted on selling expenses amounted to $3,710.00. Admission of this testimony was patently erroneous.

The judgment of the trial court is therefore affirmed upon condition that a remittitur in the sum of $3,710.00 be entered within seventeen calendar days; otherwise the judgment will be reversed and the cause remanded for a new trial.


author: Frank Holt, Associate Justice.

text:
    Whittaker v. Carter.
    5-3580
    386 S. W. 2d 498
    Opinion delivered February 8, 1965.

      Sam Sexton, for appellant.

      Ediuard E. Bedwell and Woodroiv Durden, for appellee.
   Frank Holt, Associate Justice.

The appellant brings this as a class suit against the appellees, the election and city officials of Fort Smith, Arkansas, to enjoin and restrain the appellees from holding a city election pursuant to the provisions of Act 3 of the 1965 General Assembly and, also, to test the validity of this recent enactment. This Act purports to change the date of municipal general elections in all cities having a Commission form of gov-eminent. A copy of the Act is made an appendix to this opinion. The case was submitted to the chancellor upon appellant’s verified petition and his testimony. The chancellor denied the temporary injunction on January 27, 1965 and held that the questioned Act “is general in its nature and is a valid Act and not in violation of Amendment Fourteen to the Constitution of the State of Arkansas”. From that decree appellant brings this appeal.

Appellant first contends that “Act 3 is an attempt to amend a local or special Act and as such is in conflict with Amendment Fourteen to the Constitution of Arkansas and is for this reason void.” We agree with the chancellor that Act 3 is valid legislation.

Before 1949 the election of city officials in cities of first and second class was held on the first Tuesday in April. Ark. Stat. Ann. § 19-902 (Repl. 1956). In 1949 the Legislature, by Act 307 [Ark. Stat. Ann. § 19-902.1], provided that the election of municipal officials in all cities and incorporated towns should henceforth be conducted on Tuesday following the first Monday in November. IIoAvever, Section 3 of that Act [Ark. Stat. Ann. § 19-902.3] provided that any city having a Commission form of government was excepted from the Act. Therefore, the general election date for such city officials continued to be on the first Tuesday in April. Noav, by Act 3 of 1965, the Legislature has changed the general election date for a city having a Commission form of government from the first Tuesday in April to the fourth Tuesday in February and has provided that the city officials so elected at such election shall take office on Monday following the first Tuesday in April. The Act also provides that a primary election shall be held tAvo Aveeks before the general election.

Local legislation is prohibited by Amendment Fourteen to our State Constitution. In support of his contention that Act 3 is local and special legislation, appellant cites to us such cases as Webb v. Adams, 180 Ark. 713, 23 S. W. 2d 617; Benton v. Thompson, 187 Ark. 208, 58 S. W. 2d 924; Mankin v. Dean, 228 Ark. 752, 310 S. W. 2d 477; and Laman v. Harrill, 233 Ark. 967, 349 S. W. 2d 814. We do not consider these cases applicable to the case at bar. It is well known that laws are general and not local or special when they apply uniformly throughout the State and, further, that our Constitution permits the Legislature to resort to classification where the differences in the effect of the statute are reasonably related to the purpose of the law. Jacks v. State, 219 Ark. 392, 242 S. W. 2d 704; McLaughlin v. Ford, 168 Ark. 1108, 273 S. W. 707. We have approved legislation classifying the cities which are subject to the City Manager form of government on the basis that the Legislature considers there exists a greater need for that type of government in larger cities than in the smaller ones. Knowlton v. Walton, 189 Ark. 901, 75 S. W. 2d 811.

In the case at bar the 1949 and 1965 Acts deal with the same subject: election dates in cities having a Commission form of government. Both Acts apply with equal impact upon all cities and towns having that form of government. It is true that now it applies only to the cities of Fort Smith and Eureka Springs since they are the only two cities having that type of government. However, it is prospective in nature since it includes any other city in the future that comes within the classification. We have recognized the validity of legislation by classification where it is prospective and reasonable. McLaughlin v. Ford, supra; Murphy v. Cook, 202 Ark. 1069, 155 S. W. 2d 330. There is a presumption of validity attending every legislative enactment. We perceive no reason why the Legislature does not have the authority to deem it necessary to select an election date for all cities having a Commission form of government that is different from the election date in those cities having other types of city government. We find no constitutional impediment to either of the questioned Acts.

Act 3 of 1965 expressly states that the change in election dates from April to February was necessary to avoid the confusion resulting from the adoption of the Voter Registration Amendment [now Amendment 511 known as the “Arkansas Amendment For Voter Registration Without Poll Tax Payment”, inasmuch as “the voters in such municipalities will not be allowed sufficient time to register prior to the present [April] date”. Thus, appellant next contends that ‘ ‘ Act 3 is an attempt by the Legislature to evade the clear mandate of the voter registration amendment and is for that reason void.” Appellant argues that the purpose and effect of Act 3 “is that all persons who do not possess a poll tax receipt, even though otherwise qualified within the contemplation of the Voter Registration Amendment, will be denied the right to vote and participate in this election”. In other words, appellant insists that Act 3 results in conferring upon those citizens [of the affected municipalities] who now possess a valid poll tax receipt the right to participate in the election of their municipal officials to the exclusion of those who do not now possess such a poll tax receipt since the latter would be qualified and eligible voters under provisions of Amendment 51 if the election were held after March 1, 1965. The complete answer to this argument, of course, is found in § 21 of Amendment 51 which reads:

“EFFECTIVE DATE. This Amendment shall be in full force and effect from and after January 1, 1965; provided, that for any elections held before March 1, 1965, those voters who are registered electors as of December 31, 1964, shall be permitted to vote in such election if otherwise qualified.”

It is obvious that the framers of this Amendment anticipated the very problem presented in the case at bar. Therefore, instead of Act 3 being an attempt by the Legislature to evade the provisions of the Voter Registration Amendment, No. 51, we think the Act is clearly compatible with the manifest purpose and intent of the Amendment.

Affirmed.

ACT 3 OF 1965

AN ACT to Establish the Date for Holding General Elections in Cities Having a Commission Form of Government; to Establish the Date on Which Officials Elected at Such General Elections Shall Take Office; and for Other Purposes.

Be It Enacted by the General Assembly of the State of Arkansas: "

SECTION 1. All general elections for officers of municipalities in this State having a Commission form of government under Act 13 of 1939 (Ark. Stats. (1947) 19-601 et seq.), as amended, shall hereafter be held on the fourth (4th) Tuesday in February of the year in which such an election is to be held, and the primary election in such municipalities shall be held two (2) weeks prior to the date of the general election as now provided by law.

SECTION 2. Officers elected at such general elections under this Act shall take office on the Monday following’ the first Tuesday in April following such general election.

SECTION 3. It is hereby found and determined by the General Assembly that the present law governing the time of elections in municipalities have a Commission form of government is in a state of confusion since the adoption of the Voter Registration Amendment to the Constitution of the State of Arkansas; that under such Amendment the voters in such municipalities will not be allowed adequate time to register prior to the present date established for holding municipal elections in such cities; that this Act is immediately necessary to ensure each voter in such municipalities his franchise; therefore an emergency is declared to exist and this Act being necessary for the preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.


author: Carleton Harris, Chief Justice.

text:
    Davis v. Hardaway Contracting Co.
    5-3468
    386 S. W. 2d 707
    Opinion Delivered February 15, 1965.

      Odell Pollard and W. R. Hastings, Jr., for appellant.

      Smith, Williams, Friday & Botven, By B. S. Clark, for appellee.
   Carleton Harris, Chief Justice.

On December 21, 1960, appellees, under the name of Midland Constructors, Inc., entered into a contract with the United States of America for the construction of ballistic missile launching- facilities in the State of Arkansas. Thereafter Midland entered into a subcontract with appellees, C. J.C. Corporation, and Caprock Material Company, Inc., subletting certain phases of its prime contract with the government. The contract between Midland and the government contained a schedule of wages for various classes and skills of laborers and mechanics, and the schedule set forth the rates of pay to be paid each such class or skill of laborers and mechanics as had been determined by the Secretary of Labor under the authority of the Davis-Bacon Act, Title 40, Section 276 (a), et seq, U. S. C. A. The provisions of the government contract with Midland were binding upon both the prime contractor and any subcontractors on the project.

Appellants performed labor and services for appellee sub-contractors during the calendar year of 1961 under the provisions of this contract. On January 4, 1962, appellants instituted suit in the Faulkner County Circuit Court against all appellees, contending that, under the wage schedule as determined by the Secretary of Labor for the contract, they were entitled to receive, and appellees were required to pay, the sum of $3.55 per hour for eight hours a day, with time and one-half paid for overtime. This was the rate set for the mechanics, and appellants assert that the subcontractors erroneously and gratuitously classified appellants as mechanics’ helpers, greaser-oilers, agitator, and transit mix operators. A schedule of wages is also included for these classifications, but at a lesser rate of pay. Appellants sought the difference between the pay they actually received, based on the classifications just mentioned, and the pay allowed mechanics. Appellees first filed a motion to dismiss, and subsequently filed their answer, asserting that full payment had been 'made to appellants, and asking that the,complaint be dismissed. After further motions and amendments, the cause was submitted to the court. No testimony was offered, the parties having stipulated as to pertinent facts. On March 23, 1964, the court rendered its opinion, holding that the complaint should be dismissed for want of jurisdiction “in that this is a suit as to the classification of the laborers (whether the mechanics or lower-paid employees),” and that under the Davis-Bacon Act, the matters at issue were to be determined solely by the Secretary of Labor. It was further found that the cover sheet of the wage schedule (introduced by stipulation), contained in the contract, required that matters of classification be referred to the Secretary of Labor for determination. From the judgment dismissing the complaint, appellants bring this appeal.

We think the answer to this litigation is found in the regulations of the Secretary of Labor, Title 29, Subtitle A, Part 5, Code of Federal Regulations. These regulations are based upon the Davis-Bacon Act, and other Federal legislation dealing with contracts in which the Federal government is interested. Part 5, Section 5, Subsection (1) (ii) of Title 29, Subtitle A, provides:

“The contracting officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the contract, shall be classified or reclassified conformably to the wage determination, and a report of the action taken shall be sent by the Federal agency to the Secretary of Labor. In the event the interested parties cannot agree on the proper classification or reclassification of a particular class of laborers and mechanics to be used, the question accompanied by the recommendation of the contracting officer shall be referred to the Secretary for final determination. ’ ’

In the litigation before us, appellants and appellees were unable to agree upon the proper classification of these appellants, i.e., they could not agree as to which classified the work performed by appellants. We are of the opinion that the quoted language requires that the dispute be referred to the Secretary of Labor for his determination. Appellants insist that the referral to the Secretary of Labor for final determination is made only in those instances where the contractor anticipates using laborers and mechanics whose classifications are not listed in the wage schedule theretofore established, and in the event that there is inability to agree upon the proper classification. Appellants assert that, here, classification of mechanics has already been set up and there is no further need to refer the controversy to the Secretary.

We do not entirely concur with appellants ’ interpretation. While we agree that the situation mentioned by them would have to be referred to the Secretary, we do not agree that the language employed only refers to instances where there has been no classification. Bather, we are of the view that the quoted language also has reference to the type of dispute here presented.

Title 29, Subtitle A, Part 5, Section 6, provides that the Federal agency (entering into the contract) shall make such examination of the payrolls and statements as may be necessary to assure compliance with labor standards required by regulations, and further sets out that particular attention shall be given to the correctness of classifications and disproportionate employment of laborers, helpers, or apprentices. There is a further provision that the agency shall preserve payrolls and statements for a period of three years after the contract is completed, and shall produce same at the request of the Secretary of Labor.

The section a]so requires that the Federal agency (that entered into the contract) shall cause such investigations to be made as will assure compliances with the labor standard stipulations, and provides that the investigation shall include interviews with employees, examination of payroll data for the purpose of determining the correctness of classifications and disproportionate employment of laborers and helpers. This section also sets out that alleged violations shall be given priority, and that statements made by an employee shall be treated as confidential and not disclosed to the employer without consent of the employee.

Section 7 provides for reports to the Secretary of Labor. Subsequent sections provide penalties for the contractors ’ failure to comply with labor standard stipulations, and Section 11, Subsection (b) provides the manner and procedure to be used by the Secretary of Labor in conducting hearings in making his determination.

It is apparent that these regulations are comprehensive, and are designed to afford relief to aggrieved laborers. The Davis-Bacon Act itself (Sections 276a to 276a-5 of Title 40, U.S.C.A.) also sets out remedies for laborers who have been paid less wages than the rate (of wages) required to be paid under a contract. We are persuaded that this act, together with the rules and regulations promulgated, and heretofore set out (Title 29, Subtitle A, Part 5), provides full and complete relief, and state courts are without jurisdiction to entertain the type of litigation here under discussion.

There seems to be a dearth of decisions from state courts in recent years on the issue involved, but the reported decisions appear to be in accord with the position here taken. Kelly v. Grimshaw, 167 P. 2d 627 (Kansas) and Northern States Contracting Co. v. Swope (Ky.), 111 S. W. 2d 610, support our interpretation. See also 163 A. L. R., pp. 1300 through 1307.

We have concluded that the court’s ruling was correct.

Affirmed.

       Under the Davis-Bacon Act, as amended, the minimum wages to be paid various classes of laborers and mechanics are based upon the wages that will be determined by the Secretary of Labor to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the city, town, village, or other civil subdivision of the state, in which the work is to be performed.

       Labor standards provisions applicable to contracts covering Federally financed and assisted construction.

       This is substantially the same language that is used on the cover sheet of the wage schedule, heretofore referred to, which is included in the contract. That language is as follows: “Under the Davis-Bacon Act (law code DB) the contracting officer shall require that any class of laborers and mechanics not listed in the Secretary’s decision, which will be employed on the contract, shall be classified or reclassified by the contractor or sub-contractor conformably to the Secretary’s decision and a report of the administrative action taken in such cases shall be transmitted by the agency to the Secretary of Labor. In the event the interested parties cannot agree on the proper classification of a particular class of laborers and mechanics to be used, the question, accompanied by the recommendation of the contracting officer, shall be referred to the Secretary of Labor for final determination.”


author: Ed. F. McFaddin, Associate Justice.

text:
    Hoobler v. Holder.
    5-3460
    386 S. W. 2d 699
    Opinion Delivered February 15, 1965.

      Gordon B. Carlton, for appellant.

      John B. Harnen, for appellee.
   Ed. F. McFaddin, Associate Justice.

This litigation arises because the parties did not have an attorney to prepare their contract for them or to advise them as to the effect of the papers prepared by a layman.

Mr. and Mrs. Holder, appellees, lived in California; they owned real property in Arkansas; Mrs. Holder’s brother acted as their agent in selling the property to Mr. and Mrs. Hoobler, appellants, for $6,000.00. Five hundred dollars was paid in cash and the balance was to be paid monthly. The Hooblers signed the note which Mrs. Holder’s brother had a well meaning laymen prepare, the germane portion of which note reads:

“$5,500.00 DeQueen, Arkansas, September 27, 1963
“We or either of us promise to pay to the order of Frank H. Holder and wife, Sally M. Holder, FIVE THOUSAND FIVE HUNDRED AND NO/100 DOLLARS with interest at the rate of six (6) per cent per annum from date until paid. The above sum shall be due and payable as follows: $30.00 plus accrued interest on or before November 1, 1963 and $30.00 plus accrued interest on or before the first day of each month thereafter until both principal and interest are paid in full.
‘ ‘ If any installment due upon this note becomes more than thirty days past due then the whole note shall, at the option of the legal holder hereof, without notice, at once become payable.”

When the Hooblers did not pay all of the interest payments each month which the Holders thought should be paid, this suit was filed by the Holders on the said note. The defense was that the Hooblers had made regular payments as they understood the note. The Chancery Court held against the Hooblers, and this appeal results. The only question is the amount of the monthly payments of interest. •

The Holders insist that on November 1, 1963, the Hooblers owed interest on $5,500.00 at 6% for one month, which amounts to $27.50, plus the principal payment of $30.00, or a total of $57.50 due on November 1st.

The Hooblers claim that on November 1, 1963, they owed the $30.00 principal payment, plus as interest on the said $30.00 for one month. In other words, the Hooblers claim each monthly payment was $30.00 with interest on the said $30.00 payment from September 27, 1963, until paid.

The Chancery Court held in favor of the Holders, and we are convinced that the Chancery Court was correct. There is no ambiguity in the language used. It says that the Hooblers agree to pay to the Holders $5,500.00 with interest at 6%. Then it says: “The above sum shall be due and payable ...” “The sum’’ is certainly the principal of $5,500.00; and how is it payable? “$30.00 [of the principal] plus accrued interest on or before November 1, 1963 ...” The accrued interest was on the principal of $5,500.00 and not on the payment of $30.00. The Chancery Court was correct in so holding. Ark. Stat. Ann. § 68-606 (Repl. 1957) provides:

“In calculating interest where partial payments may have been made, the interest shall be calculated to the time when the first payment shall have been made, and such payment shall be applied to the payment of such interest; and if such payment exceed the interest, the balance shall be applied to diminish the principal, and the same course shall be observed in all subsequent payments; but in no case when a payment shall fall short of paying the interest due at the time of making such payment, shall the balance of such interest be added to the principal.”

As a second point, the Hooblers claim that this matter, of how much each monthly payment of principal and interest would be, was discussed with Mrs. Holder’s brother, who was the agent of the Holders, before the note was signed; and that it was agreed that the amount of interest to be paid by the Hooblers each month would be interest only on the monthly payment. Thus, they in effect asked that the note be reformed to state the method of payment of interest as they claim. One seeking a reformation of a written instrument has the burden of offering evidence that is clear, cogent, and convincing. McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52, and other cases cited in West’s Arkansas Digest, “Reformation of Instruments” § 45. The Chancellor, after hearing the witnesses, found that the Hooblers had failed to offer such required quantum of evidence, saying:

That defendants introduced oral evidence that the agreement was that defendants should pay $30.00 per month plus the accrued interest on such monthly payment only; however, the sanctity of written instruments should not be modified or changed unless the evidence is clear, cogent, and convincing, which means almost beyond a reasonable doubt, that there was a mistake, error or ambiguity made in the drafting of such instruments ; that the evidence in this case is not sufficient to overthrow the clear meaning of the written instruments herein, and the Court does not find them to be ambiguous; ...”

Some question is raised as to alleged incompetent evidence; but after considering all the admittedly competent evidence, we affirm the Chancery decree.

       For convenience in calculation the parties have treated the time from September 27, 1963, to November 1, 1963, as being1 one month.

       Learned counsel for the respective parties to this litigation have filed excellent briefs. Their searches, and also ours, have shown a dearth of cases directly in point and with a note reading1 exactly like the one here. For those desirous of pursuing further study, we mention the following cases and texts: Busch v. Gecks, 209 Ark. 431, 190 S. W. 2d 625; Sosik v. Conlon (R. I.), 164 A. 2d 696; Colovas v. Allen (Ky)., 45 S. W. 2d 809; Heisel v. York (N. M.), 125 P. 2d 717; Runyan v. Runyan (Ind.), 126 N. E. 35; 30 Am. Jur. p. 12 et seq., “Interest" § 11 et seq.; 11 C. J. S. p. 260, “Bills and Notes” § 722; 47 C. J. S. p. 72, “Interest” § 66; and annotation in 10 A. L. R. 997.


author: Geokge Rose Smith, J.

text:
    City of Little Rock v. McKenzie.
    5-3436
    386 S. W. 2d 697
    Opinion Delivered February 15, 1965.

      Perry V. Whitmore, Wright, Lindsey, Jennings, Lester & Shults, for appellant.

      W. J. Walker, for appellee.
   Geokge Rose Smith, J.

John Harvey Baird, the principal appellant, owns Block 9 in Pleasant Hills Addition to the city of Little Rock. The block was formerly zoned for one-family residential use only. Upon Baird’s application the city’s Board of Directors, acting* upon the unanimous recommendation of nine members of the Planning Commission, rezoned the block to permit its east half to be used for quiet businesses, such as professional offices, beauty shops, libraries, and the like, and the west half for apartments not exceeding* three stories in height. This suit was brought by the appellees, neighboring property owners, to set aside the rezoning* ordinance. After an extended hearing the chancellor granted the relief sought, holding that the city had acted arbitrarily in changing the classification of the block.

The facts are as nearly undisputed as they are apt to be in a case of this kind. The block in question is about 300 feet square and is bordered on the east by University Avenue. University was formerly a quiet street, but in 1961 the city completed a renovation by which University became one of the three or four most heavily traveled thoroughfares in Little Rock. It is now a four-lane street, divided by a median strip. Its daily traffic count exceeds 11,000 vehicles, consisting of trucks as well as cars. At night the street is brightly illuminated by mercury-vapor lights.

Block 9 is completely vacant. Almost without dispute the testimony shows that its east half, since the widening of University Avenue, is no longer suited to residential use if the houses to be built are to face University. Several of the protesting landowners candidly admitted this to be true; there is hardly a line of testimony to the contrary.

In an effort to support their contention that the block should not have been rezoned the plaintiffs offered the testimony of Max Mehlburger, a civil engineer. This witness had prepared three proposals for the continued residential use of the block — all involving its re-platting. One plan need not be discussed, for it leaves some of the lots still fronting on University. Both the other proposals contemplate that Block 9 would be consolidated with Block 8 to the north, the intervening street being vacated. The owners would then dedicate a new street in the center of the tract, parallel to University, so that the homes would not have to face that busy thoroughfare.

Mehlburger’s proposals are not really practical. The defendant Baird does not own Block 8; so both proposals would depend upon the co-operation of the owner of that block. There is no assurance that the intervening street could be vacated, for that is a matter within the discretion of the city directors. Finally, Mehlburger’s suggestions would require the. owners of the two blocks to give up a forty-, or fifty-foot strip of their land for the dedication of a new and otherwise unnecessary street. It cannot be said that the city Planning Commission acted arbitrarily in concluding that Baird ought not to be driven to such dubious extremes in order to put his property to any practical use.

There is persuasivé proof that the challenged rezoning ordinance is an instance of sound city planning. What we have already said indicates that the reclassification of the east half of the block, bordering on University, was not a capricious step. According to the witness Barnes the accompanying rezoning of the west half of the block for apartment houses provides a desirable buffer in the transition from the commercial lots along University to the residential area lying west of this block.

Before the block now in controversy was rezoned the city had already rezoned, in exactly the same way, the block that borders Baird’s property on the south. At the time of the trial this adjoining block was the site of a new diagnostic clinic, which falls within' the “quiet business” classification. This fact alone is sufficient to show that the rezoning of Baird’s block was not unreasonable, for we have said that ‘ ‘ any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. When a business district has been rightly established, the right of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as 'business property.” Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883.

All the protesting plaintiffs who testified in the court below gave essentially the same reason for their opposition to the rezoning ordinance; namely, that it will depreciate the value of their homes (which were built before University Avenue was widened). We are not insensitive to this hardship. Yet in every case such as this one a similar loss in property values must be suffered by one side or the other. When the change in University Avenue rendered Baird’s property unfit for residential use the present conflict became unavoidable. In resolving this conflict we cannot substitute our judgment for that of the zoning authorities. We must uphold their decision unless we can say that it is arbitrary’ and capricious. Economy Wholesale Co. v. Rodgers, 232 Ark. 835, 340 S. W. 2d 583. In view of the undisputed facts before us we cannot conscientiously declare that the city’s decision to rezone this block is without any reasonable foundation.

Reversed.


author: Paul Ward, Associate Justice.

text:
    Widmer v. J. I. Case Credit Corp.
    5-3456
    386 S. W. 2d 702
    Opinion Delivered February 15, 1965.

      Carl Widmer, Pro Se, for appellant.

      Garner & Parker, for appellee.
   Paul Ward, Associate Justice.

The decisive question on this appeal is whether the defendant (appellant here) filed his answer in due time.

Appellee, J. I. Case Credit Corporation, filed suit against appellant on a note executed by appellant to the Fort Smith Tractor Company, Inc. and later assigned to appellee. A summons was served on appellant on June 12, 1963. Appellant’s answer was filed on July 3, 1963. On August 6, 1963 the trial court entered a default judgment against appellant in the sum of $5,645.84 together with interest on the ground that “said purported answer was not timely filed and was without the time allowed as required by law ...”

In due time appellant filed a motion to set aside the default judgment. This motion was overruled by the trial court, aud appellant now prosecutes this appeal for reversal.

We have concluded that the trial court was in error in holding- appellant’s answer was not timely filed. Not counting- June 12 as a day [according- to Ark. Stats. ■Ann. <§, 27-130 (Repl. 1962)] only 21 days elapsed between the date of service (June 12) and the date the answer was filed (July 3). Applying the above factual situation to Ark. Stat. Ann. § 27-1135 (Repl. 1962) we must conclude appellant’s answer was timely filed. The pertinent part of the above section reads as follows:

“A defendant to any complaint or cross-complaint must appear or plead either generally or specially the first day after expiration of the periods of time set forth below, as the case may be:
“First. Where the summons has been served twenty (20) days in any county in the state.”

So far as our research shows the exact issue above raised has never been directly passed on by this Court, but we think the statutes mentioned bear no other construction than the one indicated. Although this same issue was not before the Court in Fitzwater v. Harris, 231 Ark. 173, 328 S. W. 2d 501, we used this language:

“... it was mandatory on the Circuit Court to render a default against the defendant since he had failed to^ file an answer within twenty-one days after service . . .”' (Emphasis supplied.)

In view of what we have said it follows that the trial court erred in refusing- to set aside the default judgment, and the cause is remanded for a trial on the merits.


author: Sam Bobinson, Associate Justice.

text:
    Wilson v. Ozark Poultry Products, Inc.
    5-3458
    386 S. W. 2d 701
    Opinion Delivered February 15, 1965.

      Powell Woods, for appellant.

      John M. Lofton, Jr., for appellee.
   Sam Bobinson, Associate Justice.

This is a workmen’s compensation case. Appellant appeals from a judgment of the Circuit Court affirming an order of the Workmen’s Compensation Commission denying compensation to appellant additional to what he has been paid.

Appellant, Denver L. Wilson, was an employee of the Ozark Poultry Products, Inc. at Siloam Springs, Arkansas. On April 10, 1962, while in the due course of his employment, he slipped on a wet floor and fell on his back. About 30 days later he went to Dr. Stinnett of Siloam Springs, who made a diagnosis of “strained back muscles of the lumbar spine”. Wilson made a total of twelve visits to Dr. Stinnett, the last one on June 12, 1962. The treatment consisted of physical therapy, a prescription for B-12, and heat.

On May 15, Dr. Stinnett sent Wilson to Dr. Coy C. Kaylor for X-rays. Dr. Kaylor saw Wilson again on August 10. Wilson was paid workmen’s compensation of $165.00 for time lost during this period.

On August 12,1962, Dr. Wilfred W. Hurst of Joplin, Missouri, examined appellant at the request of Mr. Pinnell. On August 5, 1963, appellant was examined by Dr. Hundley of Little Bock. On September 18, he was again examined by Dr. Hurst, and on February 2, 1964, he was examined by Dr. Stanton of Ft. Smith. All the doctors, except Dr. Hurst, reported, in effect, that Wilson suffered no disabling injury.- Dr. Hurst felt that on August 12, 1962, Wilson was not able to do manual labor, and in his report of September 18, 1963, he felt that claimant had a 10-15 per cent disability to the body as a whole, considered to be of a permanent nature, and that he should not do heavy lifting.

Appellant testified that he is unable to do manual labor because of the alleged injury to his back, and, of course, Dr. Hurst’s report corroborates him to some extent. However, the reports of the other doctors are to the effect that claimant has recovered from whatever injury he may have suffered. We cannot say that the testimony of Dr. Hundley, Dr. Stanton, and Dr. Kaylor to the effect that claimant recovered from whatever injury he may have suffered, is not substantial evidence to support the finding of the Commission.

Affirmed.


text:
    Stipp v. Jenkins.
    5-3424
    386 S. W. 2d 695
    Opinion Delivered February 15, 1965.

      Crouch, Blair and Cypert, for appellant.
    No brief filed for appellee.
   Jim Johnson, Associate Justice.

This is a suit for double damages and attorneys ’ fees under the provisions of Ark. Stat. Ann. § 75-918 (Repl. 1957) on small property damage claims.

On September 4, 1963, an automobile driven by the wife of appellee Yester Jenkins collided with the rear of the car owned and driven by appellant Horace P. Stipp, who had pulled onto a slick highway ahead of her. Appellee filed suit on January 16, 1964, in Benton Circuit Court, alleging that appellee owned the car driven by his wife, that appellant’s negligence in failing to yield the right of way proximately caused damage to appellee’s car in the sum of $180.00, that sixty days had elapsed since demand was made for payment, and that' appellant had denied liability and refused to pay. The complaint prayed for double damages and attorneys’ fees under the provisions of § 75-918, supra.

The parties having waived a jury, the cause was tried before the court on April 15, 1964. The court found that appellant’s negligence was the proximate cause of the damage, that appellee’s automobile sustained damages in the reasonable sum of $130.80, formal demand for damages was made to appellant on October 31, 1963, which he failed and refused to pay within sixty days after written demand; and specifically found that appellant had no meritorious defense justifying his failure or refusal to pay the claim and appellee is entitled to judgment for double damages plus attorneys’ fee and costs. From the judgment appellant has prosecuted this appeal.

Before discussing the questions here involved, we wish to state that this court has been inflicted with a rash of violations of our Procedural Rule 12(d). In an effort to remedy this, we remind the Bar that: “Where evidence is offered by depositions, by requests for admissions, or by interrogatories: in making up the record, . the answers must follow immediately after the questions to which they are responsive.”

In the case at bar, appellant’s first point urged for reversal is that “there is no substantial evidence to sustain the trial court’s findings, and the trial court should have directed a verdict in favor of appellant, on the following grounds:

“(A) Appellee Yester Jenkins was not the proper party in this suit since his son was in fact the owner of the vehicle involved in the collision.”

Appellee and his wife in their testimony referred to the damaged ear as their son’s car, however they both testified that title was in appellee’s name and appellee testified that he had bought and paid for the car. With such uneontroverted testimony, ownership of the car properly became a question for determination by the trier of fact.

“(B) The measure of damages to the Jenkins vehicle was not sufficiently proved by the evidence.”

Appellee testified that the car was worth $2,400 before the accident and the value immediately after the accident was $2,220. He testified what damage was done to the car (i.e., what parts were damaged) and introduced into evidence without objection repair estimates from three garages. This testimony amounted to substantial evidence in compliance with Ark. Stat. Ann. § 75-919 (Repl. 1957). See Beggs v. Stalnaker, 237 Ark. 281, 372 S. W. 2d 600.

The next point urged by appellant is that the trial court erred in finding that appellant was liable for double damages and attorneys7 fees when there was no evidence that demand had been made upon appellant as required by Ark. Stat. Ann. § 75-918.

Appellee called appellant as a witness and on direct examination asked appellant to identify a paper as a carbon copy of a letter appellee had written appellant on October 30, 1963. Appellant identified it as such, and the carbon copy was introduced into evidence. The carbon copy was dated October 30, 1963, and contained all the information necessary to comply with the provisions of Ark. Stat. Ann. § 75-918 et seq. Appellant never denied its authenticity. We cannot say there is no substantial evidence from which the court could have found the requisite sixty day notice.

Appellant’s final contention is that the trial court erred in considering the lowest repair estimate introduced into evidence by appellee when, in fact, the Jenkins vehicle was never repaired. This contention is without merit. The question here is the damage or injury to appellee’s personal property. Repair of that damage or injury is immaterial.

The point saved in Ford v. Markham, 235 Ark. 1025, 363 S. W. 2d 926, on entitlement to double damages and attorneys’ fee in the case of a partial recovery, although initially raised, was stricken from the briefs in the case at bar and is therefore again not before us.

The findings of the trial court being supported by substantial evidence, the judgment is affirmed.


text:
    Hales & Hunter Co. v. Wyatt.
    5-3308
    386 S. W. 2d 704
    Opinion Delivered February 15, 1965.

      Pollard db Eastings, By: Odell Pollard, for appellant.

      Lightle db Tedder, By: J. E. Lightle, Jr., for appellee.
   Frank Holt, Associate Justice.

The appellant and appellees were in the business venture of raising turkeys. Pursuant to their written contract the appellant furnished appellees five thousand young turkeys, the necessary food products for them and insurance coverage for the year 1961. As these items were furnished by the appellant, the appellees signed delivery receipt notes, bearing 6% interest, payable to the appellant to cover the financiüg. This account was to be paid as the turkeys were marketed.

After all the turkeys were marketed the appellant brought suit alleging that a balance of $7,081.69 of the $18,818.04 open account was due and unpaid. Appellees answered alleging the affirmative defenses of fraud and breach of contract and that such resulted in $10,000.00 damages to the appellees.

, The trial court held there was no fraud in the procurement of the contract and treated appellees’ answer as a counterclaim for damages based upon the allegation that appellant wrongfully refused appellees’ request to sell the turkeys when the market was favorable. The court submitted to the jury as separate issues whether appellees were indebted to appellant on the account and, also, whether appellees were entitled to recover damages from the appellant upon the counterclaim. The jury returned its verdict in two forms, both being favorable to appellant. By one form the jury awarded $2,500.00 to appellant upon its complaint and by the other form, found for the appellant upon appellees’ counterclaim. From the judgment on these verdicts the appellant brings this appeal.

For reversal appellant contends that the lower court should have sustained its motion for judgment non obstante veredicto. After the verdict but before entry of the judgment, the appellant filed a motion for judgment non obstante veredicto. The court rejected the motion for a judgment of $7,598.14, which represents the amount of the account plus accrued interest, finding that there was substantial evidence to support the verdict of $2,500.00 and that the court was not empowered to take from the jury the right to determine the preponderance of evidence on this issue. Appellant argues that the court was in error in permitting the jury to consider as a fact question the correctness of appellant’s itemized and verified account, contending the appellees had never denied the correctness of the account by either their pleadings or evidence.

Appellees filed an answer verified by their attorney in which they denied ‘ ‘ each and every material allegation contained and set forth in the complaint”. In an. amended verified answer the appellees stated “further” denials. Thus, by their pleadings appellees denied the correctness of appellant’s verified account of the indebtedness. Appellant’s verified account is only prima facie evidence that it is correct and its accuracy was made a factual issue by appellees’ verified answer. Chicago Crayon Co. v. Choate, 102 Ark. 603, 145 S. W. 197. There we said that the prima facie accuracy of a verified account can be denied by an affidavit, a verified answer, or by the defendant under oath when he testifies as a witness. We also said:

“* * * When such denial of the correctness of the account is made by the defendant under oath in either of these ways, then the burden rests with the plaintiff to prove by other evidence the correctness of the account thus denied.” [Emphasis added.]

Further, in the case of Oil Fields Corp. v. Cubage, 180 Ark. 1018, 24 S. W. 2d 328, we recognized that:

“While the common law has been relaxed to the extent that a defendant may have a judgment notwithstanding the verdict in a proper case, still such a judgment can be rendered only when the pleadings entitled the party against whom the verdict is rendered to a judgment. ’ ’

Therefore, the court was correct in denying appellant’s motion for judgment non obstante veredicto since the account was denied by the pleadings. Furthermore, we construe appellees’ evidence to have the effect of denying the alleged account.

The appellant also contends for reversal that the trial court erred in not directing a verdict for the plaintiff. The burden of proof was upon the appellant to prove the open account. In Spink v. Mourton, 235 Ark. 919, 362 S. W. 2d 665, we said:

“ * m « tpg motion for judgment n.o.v. was properly denied unless it can be said that the trial court should have directed a verdict in favor of the plaintiffs. * * *

Owing to the fact that the plaintiff has the burden of proof — that is, the burden of persuading the jury that he is entitled to win the case — a directed verdict for the plaintiff is a rarity. As we said in Woodmen of the World Life Ins. Soc. v. Reese, 206 Ark. 530, 176 S. W. 2d 708: ‘A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested witnesses and different minds cannot reasonably draw different conclusions from such testimony.’ ”

As indicated, we think a disputed issue of fact was presented for the jury’s consideration by the pleadings, which included a counterclaim, and the evidence. Furthermore, the only witness offered to prove appellant’s verified account was the testimony of its District Manager; Leweke. It is a well settled rule that the testimony of a party to litigation is not to be regarded as undisputed when testing the legal sufficiency of the evidence. In the case of McDaniel v. Johnson, 225 Ark. 6, 278 S. W. 2d 657, we said:

® we have repeatedly held that the testimony of a party to a suit, or even one interested in the result of the litigation, is not to be treated as undisputed in testing the legal sufficiency of the evidence.” [Emphasis added.]

The trial court correctly denied appellant’s motion for a directed verdict in the case at bar.

Neither can it be said that the jury verdict of $2,-500.00 instead of the $7,598.14 sought is so inconsistent with the pleadings and proof that the verdict is subject to appellant’s motion for judgment non obstante veredicto. We have held that where the jury renders a verdict based upon substantial evidence for more than a nominal amount, although inconsistent with either theory of the case, then the trial court does not have authority to award a larger sum than that determined by the jury. Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49.

In the recent ease of Alexander v. Mutual Benefit Health & Accident Assn., 232 Ark. 348, 336 S. W. 2d 64, the court said:

* * In this situation we have recognized in Fulbright v. Phipps, 176 Ark. 356, 3 S. W. 2d 49, and similar cases, that the partial award may be the result of a compromise in the jury room. It is plain enough that if we undertook to tamper with such a verdict the arguments in favor of increasing it would be equally balanced by those in favor of decreasing it.”

Thus, the trial court was correct in refusing to disturb the jury award .

The appellant next urges for reversal that the court erred in refusing to permit the jury to consider certain' delivery receipt notes which the appellees signed and gave to the appellant. The court properly excluded these instruments when first offered for, as stated by the trial court, this was a suit upon an open account and not a suit upon the notes. Furthermore, we do not consider the exclusion as being prejudicial since the appellant was later permitted to introduce the notes into evidence for other purposes.

Appellees question the validity of the contract. We cannot consider this contention since appellees never filed any notice of appeal. A timely notice is a jurisdictional prerequisite' to the perfection of a cross-appeal. Ark. Stat. Ann. § 27-2106-1 (Repl. 1962); General Box Co. v. Scurlock, 223 Ark. 967, 271 S. W. 2d 40.

The judgment is affirmed.