author: J. Fred Jones, Justice.

text:
    ARKANSAS POWER & LIGHT COMPANY v. Dr. John W. HARPER et ux
    5-5341
    460 S. W. 2d 75
    Opinion delivered December 7, 1970

      Shackelford ir Shackelford; House, Holmes & Jewell and Robert L. Robertson, Jr., for appellant.

      Brown, Compton, Prewett ir Dixon, for appellees.
   J. Fred Jones, Justice.

This is an eminent domain case wherein the Arkansas Power & Light Company took an easement in a strip of land 180 feet wide and one and one-fourth mile long, consisting of 27.65 acres across a 636 acre tract of land belonging to Dr. John W. Harper and his wife near El Dorado in Union County. The land was purchased in smaller tracts by Dr. Harper for investment purposes but was being utilized by him for timber and grazing land at the time of the taking. The power company took the easement for high voltage transmission lines to be elevated on steel towers, six of which were within the easement taken. A jury trial resulted in a verdict and judgment thereon for $25,000 damages in favor of the Harpers. The power company has appealed and relies on the following points for reversal:

“The trial court erred in admitting appellees’ evidence of a right-of-way purchase by appellant as a comparable sale.
The trial court erred in admitting appellees’ evidence of unpleaded special damages to the remainder.
The verdict included severance damages and was excessive since there was no substantial evidence of severance damages.”

Dr. Harper testified that his land is one-fourth mile from the city limits of El Dorado and approximately two miles from the court house square. He testified that the highest and best use for his land is for industrial development on a part of it and for residential development on part. He testified that a blacktop road runs along the north side of his property; that an industrial area joins his land on the west, and that new residential development is to the east of his property. He testified that the fair market value of his land before the taking was $550,000 and that after the taking, with the transmission line in place, the fair market value of his land would be $460,000, and that because of the taking his land had been damaged $90,000.

On cross-examination, Dr. Harper testified that his home and a manager’s home are on the land and that the improvements contribute about $150,000 to the value, leaving the land alone with a market value of at least $400,000. The portion of the testimony to which the power company directs its assignment of error under its first point, was brought out on cross-examination of Dr. Harper, and the record pertaining thereto is as follows:

“Q. Do you know of any property that’s been sold that’s comparable to the price that you’re talking about?
A. Yes, sir, Utah Daniels was paid — right down at the bottom, joining my property there—
Q. All right, where is that?
A. Right down there.
Q. Where is that? Down here?
A. Yeah, right where your line comes across.
Q. Where the line comes across?
A. He was paid $1,700.00 for 1.475 acres of land on July 8, 1969.
Q. All right, have you been down there to inspect that property?
A. Yes, sir.
Q. Do you know that’s on the 1.475 acres of land?
A. Yes, sir.
Q. What?
A. Your high line.
Q. Well,—
A. I think it’s where your high line comes across there.
Q. This was purchased by whom to whom?
A. Purchased by Arkansas Power 8c Light.
Q. Your honor, we ask, and I’m sure Mr. Prewett will agree with this, to exclude the testimony simply on the grounds that it’s not admissible sale. It’s between a condemnor and a con-demnee.
William I. Prewett: It’s a sale by a warranty deed, so it’s a purchase just like any other purchase and sale. There’s no evidence here that this is a sale by a condemnor and a condemnee. It’s a warranty deed of record for it. We don’t feel that it is objectionable.”

Dr. Harper testified that his opinion as to the $90,000 damage to his land is based on his opinion that the actual right-of-way was worth at least $500 per acre and the remainder of the damage would be because no one would want a home or an industrial plant under a 500,000 volt transmission line. He testified that he had put his tract together by the purchase of small tracts from time to time, and that he owned considerable other land in Union County. Dr. Harper was the owner of the land involved and could testify as to its value without qualifying as an expert. (Ark. State Highway Commn. v. Russell, 240 Ark. 21, 398 S. W. 2d 210).

The company relies on Yonts v. Public Service Co. of Ark., 179 Ark. 695, 17 S. W. 2d 886, for the proposition that evidence of what the condemnor paid for other lands is inadmissible in establishing the market value of the lands taken. While we agree with the principle stated by appellant, we cannot say that this decision is applicable here. In the case at bar Dr. Harper had testified on direct examination as to the value of. the property he owned. He based his value primarily on its potential demand for industrial and residential development and his own experience in buying and selling land. He did not testify, either on direct or cross-examination, that he valued his land on the basis of what other comparable land was selling for in the vicinity. He never did testify that he based his evaluation to the sale from Daniels to the company or on any other sales in the community. The purpose of the cross-examination could only have been to test Dr. Harper’s basis for the valuation he placed on his property. Dr. Harper was simply asked on cross-examination “do you know of any property that’s been sold that’s comparable to the price that you’re talking about?” He answered in the affirmative and it was finally brought out, still on cross-examination, that the sale he knew about was from Utah Daniels to the Arkansas Power 8c Light Company.

The company moved that the testimony be stricken because it concerned a sale between a condemnor and condemnee. Dr. Harper contended that the sale was by deed and that there was no evidence that it was anything other than a regular open market sale. We are unable to say definitely from the record before us where the Daniels land lay or why it was sold. The record does not reveal whether the Daniels sale was for right-of-way purposes or not. Dr. Harper says it is where a high line comes across, but it fronts 100 feet on the Nicks Spring Road and is 660 feet deep. It would appear from the record that at least, this sale was not a continuation of the 180 foot easement across Dr. Harper’s land. Even if we should be able to say that the Daniels acquisition was for such a purpose as would come within the eminent domain powers of the company, there was still no reversible error.

We have held that the rule that sales to a condeming party are not a fair criterion of value is a prohibition against the introduction of such testimony and not a prohibition against the knowledge a witness may possess. Ark. State Highway Commn. v. Kennedy, 234 Ark. 89, 350 S. W. 2d 526. Here, as there, the testimony was elicited by cross-examination, not direct examination. The answer revealed that the witness had considered the amount paid for other land taken by the condemnor in arriving at his opinion as to the value of the Kennedy land. There the court gave an admonitory instruction as follows:

“You are instructed to disregard that portion of the testimony of the witness O. E. Guinn which was based on settlement payments by the State Highway Commission on certain property owners in this vicinity. The Court has instructed you on the proper measure of damages; and insofar as damages are concerned, that is the rule you will follow in the determinations in this case.”

Perhaps appellant would have been entitled to a similar instruction had it so requested. Instead of asking the court to advise the jury not to regard that part of the testimony of the witness based upon the Daniels sale, appellant’s counsel asked that answers directly responsive to his questions on cross-examination be excluded. The question that elicited the response was "Do you know of any property that has been sold that’s comparable to the price that you’re talking about?” The answer was honest and responsive and did not state that the opinion of the witness was based upon this knowledge.

While cross-examination is a valuable weapon in the arsenal of the trial lawyer, everyone who has passed the neophyte stage is aware of the hazards involved in firing it, not the least of which is elicitation of an unfavorable response, which may well be devastating to the examiner’s cause. For that reason, experience teaches that the weapon should be utilized with caution and restraint. The wide latitude permitted a cross-examiner increases the hazard and indicates the wisdom of restraint.

It is not error to refuse to exclude a responsive answer on cross-examination at the behest of the cross-examiner. Public Utilities Corp. v. Oliver, 64 F. 2d 60 (8th Cir. 1933); Brown v. Hebb, 167 Md. 535, 175 A. 602, 97 A. L. R. 366 (1934); Souza v. Becker, 302 Mass. 28, 18 N. E. 2d 350, 120 A. L. R. 1002 (1958); Reed v. Prudential Ins. Co., 229 No. App. 90, 73 S. W. 2d 1027 (1934); International Brotherhood, etc. v. Rodriguez, 193 S. W. 2d 835, (Tex. Ct. App. 1945); Durand v. Reeves, 217 Ga. 492, 123 S. E. 2d 552 (1962); Times-Guthrian Pub. Co. v. Guthrie County Vedette, 256 Iowa 302, 125 N. W. 2d 829 (1964); Arp v. Wolfe, 49 Tenn. App. 294, 354 S. W. 2d 799 (1956), cert. denied June 7, 1957. It has been held error to grant such a motion to exclude. Meske v. Wenzel, 247 Wis. 598, 20 N. W. 2d 654 (1945).

We have placed ourselves in the same posture as the Wisconsin court on this question in Halperin v. Hot Springs Street Ry. Co., 227 Ark. 910, 302 S. W. 2d 535, when we said:

“Several questions concerning the admissibility of evidence are discussed in the briefs. By stipulation, appellant took the deposition of Modine Grisham with appellee’s attorney present. On cross-examination, appellee’s attorney asked several questions which (in most instances) called for answers based on conclusions or hearsay. In some instances the trial court refused to admit the answers. We think this was error. The rule is, as stated in Professor Conrad’s work on Modern Trial Evidence, Vol. 2 at page 371, ‘A party litigant cannot object to evidence which he himself has solicited.’ Appellee recognizes this rule but thinks it does not apply to discovery depositions. It is unnecessary for us to decide whether the rule does or does not so apply because a discovery deposition is not involved here. We feel that the above comments will prevent any further disagreements over the admissibility of similar testimony.’’

One is not permitted to speculate by participating in the development of evidence and then demanding that it be stricken when it proves unfavorable. Lewis v. Shiffers, 67 A. 2d 269 (Mun. Ct. App. D. C. 1949). See also Poinsett Lumber & Mfg. Co. v. Traxler, 118 Ark. 128, 175 S. W. 522; Montgomery v. First Nat’l Bank of Newport, 246 Ark. 502, 439 S. W. 2d 299.

We have applied the pertinent principle in Ark. State Highway Commn. v. Russell, 240 Ark. 21, 398 S. W. 2d 201. Even though the motion there was to strike all the testimony of the value witness, the reason for holding its denial not erroneous is as applicable here as there. We said:

"It is true, as the appellant contends, that if cross-examination demonstrates that the witness has no reasonable basis whatever for his opinion, then his testimony should be stricken. Ark. State Highway Commn. v. Johns, 236 Ark. 585, 367 S. W. 2d 436 (1963). Furthermore, if cross-examination shows that the witness has a weak or questionable basis for his opinion, that fact has a bearing upon the weight to be given the witness’s testimony. The cross-examining attorney, however, is not entitled to embark upon a fishing expedition with immunity from any unfavorable information he may elicit. He acts at his peril in putting a question that may evoke an answer damaging to his own case.”

It has been held in an eminent domain case that the refusal of a cross-examiner’s motion to strike testimony elicited of a value witness on cross-examination was not error, where the jury was instructed, as it was here, as to the proper measure of damages. North Carolina Highway, etc. v. Privett, 246 N. C. 501, 99 S. E. 2d 61 (1957).

As to appellant’s second point, there was some testimony from Dr. Harper that some of the timber removed from the right-of-way was wind rowed along the outside edges of the easement right-of-way, and that some of the trees extended beyond the right-of-way. The appellant’s witnesses also testified as to the timber growing on and cut from the right-of-way, but they denied that any of it was pushed outside of the right-of-way. We conclude that any error in the admission of evidence as to this timber was cured in the court’s instruction Nos. 7A, 8 and 9, and the refusal of defendant’s requested instruction No. 3. These instructions are as follows:

“7A. You are instructed that the just compensation to which the landowners are entitled in this proceeding is the fair market value of the lands within the right of way plus the difference, if any, in the fair market value of the remainder of the lands immediately before the taking and immediately after the taking.
Now the date for your determination of such compensation is June 16, 1969.
8. Now the term ‘fair market value,’ as used in these instructions, means the price the land would bring on the market in a transaction between a buyer and seller with knowlédge of all the uses and purposes to which the land is adapted after they have had a reasonable time for negotiations, and the seller being willing but not forced to sell, and the buyer being willing, but not forced to buy.
9. You are instructed that the fact that the landowner is unwilling to sell his land or that he may wish to utilize the land in question in some particular manner has no effect upon the fair market value of the land. The fair market value is involved in the measure of just compensation and not its value to the owner or to the party who is condemning it.”

Defendant’s requested instruction No. 3 (refused):

“You may take into consideration the restoration costs, clean up expenses, and the cost of replacing fences, along with all of the evidence in determining just compensation for the defendants.”

Mr. R. E. Hosford testified as an expert for Dr. Harper. He placed a before value of $436,000 on all the property and the after value of the entire tract at $404,000, leaving a difference of $32,000 as damages. He estimated the before taking value at a maximum of $37.5 per acre. On cross-examination he testified to a comparable sale of 38 point something acres from Swilley to Anthony for $13,000; a sale of a 2.58 tract joining Dr. Harper’s property, from Molnaird to Cartwright for $3,500; a 120 acre sale from Gaddy to McCoy for $40,-000; a one acre sale from Molnaird to Goodwin for $1,800. Mr. Hosford testified that that property was being developed for residential purposes adjacent to Dr. Harper’s property, and that this property was selling from $800 to $1,500 per acre.

We do not agree with the appellant’s argument that there was no substantial evidence of severance damages. Dr. Harper testified that aside from the market value of the land actually taken, the high voltage transmission line running through the middle of five 40 acre tracts of his land would decrease the value of the land outside the right-of-way for residential and industrial development.

The judgment is affirmed.

Carleton Harris, C. J. and Brown, J., would reverse for the court’s refusal to exclude appellant’s testimony relative to the Daniels’ sale.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice. J. Fred Jones, Justice,

license: Public Domain

text:
    Lucille Mae TUTTLE v. Linda Sue PHILLIPS
    5-5388
    460 S. W. 2d 328
    Opinion delivered December 14, 1970

      Paul Jameson, for appellant

      Herbert L. Ray and Davis & Reed, for appellee.
   Carleton Harris, Chief Justice.

Henry Clay Thompson, a resident of Washington County, Arkansas, died intestate on June 5, 1967, seized and possessed of certain lands, approximately 64 acres, which are involved in this litigation. No administration was had on his estate, and he was not survived by a widow. A son, John L. Thompson, survived Henry, but there were no other children born in lawful wedlock. In November, 1968, John L. Thompson executed and delivered to Linda Sue Phillips, appellee herein, a warranty deed purporting to convey the aforementioned lands to her, the deed being subsequently recorded in Washington County. In this deed, John L. Thompson described himself as the “sole surviving heir of H. C. Thompson”. A life estate was reserved but it was extinguished by the death of Thompson on December 9, 1968. Lucille Mae ^Tuttle, appellant herein, was born on May 1, 1922, in Washington County, her mother being Lula Gibbs. On October 10, 1924, some two and one-half years after the birth of appellant, Henry Clay Thompson and Lula Gibbs were married in a lawful wedding ceremony in Washington County, though they had apparently already lived together for some period of time, along with the children, at least for a year and a half. Prior to that, Lula, and her children had lived in a Thompson rent house. During her childhood years and until the time of her marriage, appellant used the name of Lucille Mae Cook.

On July 9, 1965, Henry Clay Thompson executed an affidavit before J. E. Bunch, Notary Public, in which he acknowledged that Lucille Mae Tuttle was his daughter, and he recognized her as such. In January, 1969, Mrs. Tuttle instituted suit in the Washington Chancery Court alleging that she was the daughter and one of the two heirs at law surviving Henry Clay Thompson; that she was entitled to an undivided one-half interest in the real estate heretofore mentioned, appellant praying that the lands be ordered partitioned and that her interest be set aside to her. Her claim. as a legitimate child of Henry Clay Thompson was based upon Ark. Stat. Ann. § 61-103. The pertinent portion of that statute as follows:

“If a man have by a woman a child or children, and afterward shall intermarry with her, and shall recognize such children to be his, they' shall be deemed and considered as legitimate.”

After the filing of an answer by Linda Sue Phillips, denying the allegation of the complaint and alleging laches and estoppel, the case proceeded to. trial. After hearing a number of witnesses, the chancellor held that Mrs. Tuttle had not shown by a fair preponderance of the evidence that she was Henry Thompson’s daughter, and consequently had failed to prove that she was an heir at law of the deceased. From the decree entered in accordance with these findings, appellant brings this appeal. For reversal, it is asserted that the finding and decree of the chancellor were clearly against the preponderance of the evidence, and it is asserted that the affidavit of William A. Thompson (a brother of Henry C. Thompson) offered by appellee was inadmissible.

Let us review the testimony on behalf of the litigants. Appellant testified that she was 48 years of age and lived in Bois D’Arc, Missouri. She said that she was born on May 1, 1922, and that her mother was Lula Gibbs. . .her mother was married to Henry Clay Thompson on October 10, 1924. . . she remembered when she lived in the house located in the White House community with her mother, Henry Thompson, and the two older children of her mother, Jack Cook and Lorene Cook. . . Thompson had one child at the time, John Thompson, who was about 20 years older than the witness. She attended school at White House under the name of Lucille Cook, but' did not know why that name was used. She lived with her mother' and Thompson until she was 16 years of age, at which time she married. The witness said at that time she always considered John Thompson a step-brother and that shé had always had a good relationship with him. Mrs. Tuttle stated that after moving away from the family home, she kept in contact with John and Henry during their lifetimes and would visit as often as possible, even after her mother died in 1962. Appellant said that in 1965, Mrs. Lee Shelton called and told her that Mr. Henry Thompson had had a stroke and was in the hospital. Mrs. Tuttle made the trip to Arkansas the next morning. Thompson was in the' hospital for almost a month and when he was able to leave, the witness took him to her home while he recuperated. Appellant testified that the night before she took Henry Thompson to her home, she received a phone call from John Thompson, who advised her that she was a daughter of Henry Thompson, and was actually his (John’s) half-sister. John told her to get the birth certificate. This birth certificate reflected that the full name of the child was Lula Gibbs; that her mother was Lula Gibbs; and she was born on May 1, 1922. The certificate further reflects “putative father not given”. The certificate had been filed on June 16, 1922, and was signed by F. R. Morrow, the physician. Appellant showed this affidavit to Henry Thompson at the family home at White House, and asked if he could identify his handwriting on part of the blanks. He looked at it with his glasses on while using a magnifying glass, and replied that it looked like it, but he could not identify it because “Its been too long”. Henry then remarked to John Thompson, who was present, “Son, you’ve sure cut a gut this time”. On inquiry by appellant as to what he meant, Henry replied “ ‘You weren’t supposed to know anything about it, until I’m dead.’ He said, ‘I wanted your mother’s name to rest in peace as long as I lived.’ He said, ‘That she had enough trouble in her lifetime and I want her name to rest in peace while I live.’ Said, ‘When I die, there will be papers left for you explaining everything.’ ”

According to the witness, Henry Thompson looked at the birth certificate again, noticed that the name of the child was the same as the maiden name of the mother, and commented “That’s not right”. He asked what name she used in school and upon her replying “Lucille Cook” began to cry, stating “Baby, I never knew that, I never knew that you used the name of Cook in school”. Appellant said that Thompson did not want any papers drawn locally because he didn’t “want anyone to know until I am dead”, but at his suggestion, appellant went back to Missouri, had an attorney prepare an affidavit, subsequently returned, and presented the affidavit to Thompson at his home. The latter then called Mr. J. E. Bunch, a banker at Elkins, and made an appointment. Thompson was then taken to the bank where he executed the affidavit before Bunch, a notary public. The affidavit reads as follows:

“AFFIDAVIT
STATE OF ARKANSAS ) ) SS. COUNTY OF WASHINGTON )
I, Henry Clay Thompson, of Fayetteville, Arkansas, being duly sworn, upon my oath state that Lucille Mae Tuttle, wife of Hubert Tuttle, of Bois D’Arc, Missouri, was born on the first day of May, 1922, at Fayetteville, Arkansas; that her true name was Lucille Mae Thompson, but that through error her name was reported by the attending physician as Lula Gibbs, and Birth Certificate No. 2906 issued by the State of Arkansas gives her name as Lula Gibbs; I have seen a certified copy of said birth certificate, the certification bearing date of June 10, 1965; and that I have personal knowledge of the facts here stated, I having married the child’s mother and she is my daughter.”

Mrs. Tuttle said that Henry Thompson told her that he had her listed in his will as a step-daughter, but now that John had told her, he would have to change it. The last letter that she received from Henry Thompson, dated January 6, 1967, and entirely in his handwriting, was signed “By now, Dad”.

Appellant testified that at the time of his death, Henry Thompson was staying at the home of the Kenneth Bradleys, and Bradley said that he was the administrator of Thompson’s estate through verbal arrangement; that on the day of the funeral, Bradley told her that he would call her in about thirty days after everything was settled; that everything “was down in black and white and would be taken care of in accordance with Mr. Thompson’s wishes”. He subsequently called and told her that Thompson had left her $3,000.00 in bank certificates, and that he would send them to her. She stated however, that she wanted to visit there anyway and it would be a good time to read the will. Bradley then advised her that there was no will, “And he said there were no papers. And then I asked him what he meant by saying that everything was down in black and white; there was nothing for me to worry about. And at that time he said, ‘there is a paper but I am reluctant to disclose the contents because of hurting someone’s feelings.’ And that is the last I heard of any papers at all.”

Appellant said she took no further action to ascertain the status of her father’s estate because he had told her that the papers were fixed so that John could not do away with the property, but when she didn’t hear from anyone after John’s death, she asked an attorney to look into the matter.

Mrs. Tuttle testified that on the day she received the bank certificates from Bradley at the bank, she took a letter from her father telling her and her Sister to go to the bank together, after his death, “and there we would find his papers.” She said that she took the letter and the bank officer made a search for papers but could not find anything. The witness stated that Bradley told her that he (Bradley) was receiving $1,500.00 in bank certificates.

Six additional witnesses testified on behalf of appellant. Ellen Frost, a resident of Elkins, testified that prior to living in Elkins, she lived in the White House community and had known Lucille Tuttle since she was a “tiny baby”; she is not related to any of the parties. She had known all of the Thompsons, and knew Lula Gibbs, the mother of Lucille. According to the witness, Lula, with the two children by her marriage to Cook, Jack and Lorene Cook, together with appellant, was living in a rent house belonging to Henry Thompson, but later moved into his residence. She said that she visited in the Thompson home from time to time after he married Lula Gibbs; that she knew that Lucille was born prior to the marriage between Henry and Lucille, and that Lucille went by the name of Cook. According to the witness, in a conversation with the mother of Lucille in regard to the identity of Lucille’s father, she was told that Lucille was the child of Henry. She said that she heard her own father say that Lucille was Henry Thompson’s child. Martha Koprek, 71 years of age and an aunt of Lucille Tuttle, testified that her sister Lula had lived in a rent house belonging to Henry Thompson and that she met Thompson in that home. In fact, she stated that she would always find him there; that he had clothing there and she had seen her sister ironing his clothing. She had thought they were married. She said that several weeks after Lucille was born, she was in the home, and Henry picked up appellant and said “Look at our baby”.

Hubert Tuttle, husband of Lucille, testified that on the day before the funeral of Henry Thompson, his wife had a piece of paper (later shown to be an affidavit) which she showed to Will Thompson, brother of Henry, and grandfather of the appellee, asking Thompson “Would you know about this, Will?” and Thompson replied “I don’t know about this piece of paper. I have always known you were Henry’s daughter”. According to the witness, Thompson said that he had heard John Thompson say several times that Lucille was his half sister. Maxine Gano, whose sister in law is the sister of appellant testified that she had lived in the White House community until she was about 22 years of age, and that she knew Henry Thompson for about forty years. She said the discussion in the community was that Lucille was Henry Thompson’s child. Roy Gano, husband of Maxine, testified that he was present on the day before Henry Thompson’s funeral when Lucille Tuttle showed Will Thompson the paper stating that Henry Thompson was her father, and Will Thompson stated that he had always known that.

J. E. Bunch, a banker and notary public at Elkins, unrelated to any of the parties, testified that he had known Henry Thompson since 1928, and that on July 9, 1965, he acknowledged an affidavit presented to him by Henry Clay Thompson. He said that Henry came to the bank and signed the affidavit, no one assisting him in writing his name. The witness stated that after the affidavit had been acknowledged, Henry Thompson took it with him, and he said that, judging from Henry Thompson’s general appearance, he would consider Thompson in “fair health”. Bunch also testified that he acknowledged an affidavit executed by Will Thompson, the brother of Henry, on July 12, 1967. This affidavit, which will be subsequently mentioned under point two, inter alia stated that the sole and only heir at law of Henry Clay Thompson “to the best of my knowledge, information and belief, is John L. Thompson”.

Wilma Bradley, her husband, Kenneth Bradley, Gladys Cole, E. W. Price, Ruby Robbins, Frank Skel-ton, and the appellee herself, Linda Sue Phillips, testified on behalf of appellee. Mrs. Bradley, a practical nurse, said that she furnished nursing care in her home to Henry Clay Thompson; that he came to her home in March 1967, and stayed there until his death, some three months later. She said that he was first in a rest home in 1966, and she would go there and visit him; that his mental faculties were perfect; that on an occasion, she was resting on her bed in another room and heard a conversation wherein Mrs. Tuttle made an offer for the purchase of the property here involved. She said that she did not hear all of the conversation but was able to hear portions because Mr. Thompson didn’t hear too well and when talking with him, people had to talk loud. The witness stated that she provided board, room and nursing care to Thompson for $100.00 per month. Gladys Cole, 66 years of age, testified that she had known appellant since 1923 or 1924; that she didn’t know when Lucille was born, not knowing her until “she was a good sized girl”, but that she knew appellant’s mother, who lived in a house belonging to Henry Thompson. She mentioned a particular time when she and her sister, together with her father and two children, had made a visit to Lula Gibbs and there was a discussion as to why the name of Cook had been given to appellant. Mrs. Cole said that Lula Gibbs stated that she didn’t want all of her children’s names to be different, and that Lucille “belongs to Sam Bohannon”. The witness also said she had seen other men come and go from the house but she added that she was not implying misconduct on the part of Lula Gibbs. Mrs. Cole said that she was not related to appellee, but was a close friend.

E. W. Price testified that he had known Henry Thompson and his brother, Will Thompson, and had been a good friend of Henry’s; that he knew Lula Gibbs prior to the time she married Henry Thompson. He said that she had moved in with Henry and had three children, the youngest being the appellant. Price testified that Lula (Gibbs) Thompson told him that the father of the children was a man by the name of Ben Cook. The witness said that Henry Thompson referred to the children as “Lou’s children”. Price stated that when he first became acquainted with Lula Gibbs, she was not married (to his knowledge), and that she had two children when he first knew her; that the third child (appellant) was with her when she moved over into the neighborhood. When asked if he told Henry Thompson about Lula saying that the child belonged to Ben Cook, Price said “No, I didn’t tell Mr. Thompson about it. He knew as much about it or more than anybody else. I guess”.

Ruby Robbins testified that she knew a girl by the name of Lucille Cook during school days; that she had visited in the Henry Thompson home and that Lucille referred to Henry Thompson as “Mr. Thompson”. Kenneth Bradley, husband of Wilma, testified that he helped Henry Thompson with his business, affairs when Thompson would request him to look into matters. “Well, just to see about various things, maybe. I can’t recall any particular thing but such as maybe getting clothing or an item of some kind, some medicine, or just minor things. Then he did take me into his confidence concerning his financing, and he did give me this bank account, and had my name put on the checking account; gave me full authority to handle that.” He said that after Thompson’s death, he (Bradley) delivered some certificates of deposit, two of which were delivered to Lucille Tuttle in the amounts of $1,000.00 and $2,000.00. The witness stated that Lucille told him she wanted the farm and that he replied that “That would be up to John”. Frank Skelton, father of appellee, and son-in-law of Will Thompson, testified that he was at the Fayetteville hospital on an occasion when appellant visited Henry Thompson; that appellant told Henry that she was going to make him a toddy, and did give Henry Thompson the toddy, though the latter stated that he didn’t want it. He said that Henry remarked “ ‘I’d rather she wouldn’t do that,’ Said, ‘Every time she does it, she gives me too much.’ And said, ‘She will go out there and get him [referring to John Thompson] in the same shape.’ ” When asked if he knew the general repute and reputation as to the father of Lucille Tuttle in the community, he replied “Lord only knows, I’ve heard things from here to there; everything is hearsay. But I’ve heard so many rumors that I can’t remember any more, I don’t guess. * * * Well, Cook, is the only thing I ever knowed her to go by. * # * Well, it’s hearsay. I heard she was a Bohannon.”

Sue Phillips testified that Henry Clay Thompson was her great-uncle and that she was associated with him during the last five years of his life; that during the last two years of his life, his physical condition was bad. She testfied that he had a stroke. She said that he didn’t have the complete use of his right arm but she didn’t know if he could write after the stroke; that he couldn’t see to read when he was in the hospital but she didn’t know if his ability to read improved after he left the hospital. She testified there was a magnifying glass lying on his table.

It will thus be observed that, with the exception of one witness, all the rest testified actually only to circumstances, which more or less, supported the position of the party on whose side they testified. A number of the witnesses might be termed to have, at least some possible interest in the case, since they were related to the parties. Probably the most pertinent part of the testimony dealt with the statements of the parties relative to what Lula Gibbs had said about the identity of the father of the child. Of course, the statement of Will Thompson, brother of Henry Thompson, that the sole heir at law of Henry C. Thompson, “to the best of my knowledge, information and belief is John L. Thompson”, could not mean very much, even if the affidavit were admissible. We do not consider the affidavit admissible for reasons hereafter set out under point two, but it might be added that even if we considered that evidence admissible, we think the preponderance of the testimony lies with appellant. This conclusion is based upon the affidavit of Henry Clay Thompson, wherein he acknowledged that the name of appellant should have been Lucille Mae Thompson, and that she was his daughter. The witness, J. E. Bunch, the Elkins banker, seems to have been a totally disinterested witness, nor is this fact questioned by ap-pellee. This witness said that Mr. Thompson signed the affidavit, without aid, and this fact is not questioned. It seems likewise to have been established that when wearing his glasses, and using a magnifying glass, he was even able to read a newspaper. Several witnesses mentioned the magnifying glass. The testimony of Mr. Bunch, and the affidavit of Henry Thompson are, from the standpoint of evidence, far superior to any other evidence offered in the case. The trial court held that Mrs. Tuttle had not established by a clear preponderance of the evidence that she was the daughter of Henry Thompson. How does one establish such a fact? What proof could be offered that would be more significant, or more potent, than the statement from a purported father himself, recognizing one as his child? Not even a blood test establishes paternity; such a test can only establish that one could not be a parent. We know of no way that absolute paternity can be established, and it would appear that in the case before us, the strongest evidence possible (affidavit of Henry Thompson) has been offered.

A review of the cases on this subject reflects that the focal point in this type of case is whether a purported father recognized the child as his own. We find no Arkansas case in which such recognition was afforded through writing. The question was always whether the purported father had orally given such recognition. The Ohio case, Eichorn v. Zedaker, 144 N. E. 258, contains language which pretty well expresses our feelings in the litigation before us.

“It is urged by counsel for defendants in error that, even if it be admitted that there is evidence of J. F. Eichorn having acknowledged the paternity, there is no proof of the fact of the paternity itself. Counsel have not, however, pointed out to the court what degree or what character of proof should be required to establish the paternity. In the very nature of things such a proposition is not capable of demonstration. [Emphasis supplied] If the court should lay down a rule requiring resort to such technical niceties, it would be impossible to prove paternity in any case. Absolute proof could only be made by showing access of the alleged father and also proof of the impossibility of access of any other man. History only records one such illustration, viz, Cain and Abel. If a man and woman should be placed under guard for a natural period of gestation, there would still be a possibility of some suspicion attaching to the guard. Or if a man and woman were placed upon some lonely island, we could not disprove the presence of some lurking savage. [Our emphasis] It is against sound public policy to resort to such technicalities, and no valid reason is urged why an admission of this fact, if not otherwise disproved, should not be accepted as it would be in proof of any other fact.”

As to the second point, we think the evidence of Will Thompson was clearly inadmissible. See Southern Farm Bureau Casualty Ins. Company v. Anderson, 220 Ark. 573, 247 S. W. 2d 966. The affidavit is probably also inadmissible for yet another reason, but there is no need to discuss point two since, as earlier stated, even considering the statement made by Will Thompson, we are still of the view that the evidence preponderates in favor of the appellant. This is mainly true because, after all, Will Thompson could not possibly know whether Henry was the father of Lucille Tuttle.

Perhaps the whole contention was best summed up in a statement made by E. W. Price, a witness on behalf of appellee who, when asked if he had told Henry Thompson about Lula’s statement that the child belonged to Ben Cook, replied “No, I didn’t tell Mr. Thompson about it. He knew as much about it or more than anybody else, I guess”.

We agree.

In accordance with what has been said, the decree of the Washington Chancery Court is hereby reversed and set aside and the cause is remanded to that court with directions to enter a decree consistent with this opinion.

It is so ordered.

Fogleman and Jones, JJ., dissent.

J. Fred Jones, Justice,

dissenting. I cannot agree with the majority opinion in this case. While we do try equity cases de novo, we do so on the record before us and unless the chancellor’s decree is clearly against the preponderance of the evidence, we should affirm the decree.

It is my view that if there ever was a case in which the chancellor’s observation of the witnesses and their demeanor while testifying is worth anything to a just and proper decree, this is such case. Here the appellant, Lucille Mae Tuttle, after more than 40 years, and after the death of Henry Clay Thompson, as well as after the death of his only child born in lawful wedlock, sets out to prove that she is the child of Henry Clay Thompson who married her mother when the appellant was two and one-half years of age. The primary object of the effort is the undivided one-half interest in an 80 acre tract of land sold by John Thompson after the death of his father, Henry Clay Thompson.

The chancellor went to unusual lengths and did a commendable job in trying this case and the transcript reveals a keen perception on the part of the chancellor of the problem involved. The chancellor has favored this court with a detailed and well-reasoned finding of facts upon which he based his decree, and I agree with the chancellor.

The majority seem to lay great stress upon an affidavit signed by Henry Clay Thompson at a time when he used an extra magnifying glass with which to read a birth certificate filled out in a bold and legible hand; and after he had suffered a stroke and would cry when advised, apparently for the first time, that the appellant had used the name “Cook” all through her school years while she lived in the home with him. It is obvious that the language of the affidavit is not the language of Henry Clay Thompson but, as for that matter, the appellant does not contend that it is. The appellant had the affidavit prepared in Missouri after Henry Thompson had a stroke, and after she says she was told by John Thompson that she was his half sister. The appellant says that the reason she had the affidavit prepared by an attorney in Missouri, was that Mr. Thompson did not want anyone locally to know the facts until after his death. Nevertheless, she went with Mr. Thompson to the nearest notary public in Arkansas where the affidavit was signed. Aside from the affidavit and the appellant’s own testimony of what others had told her, the remaining testimony is hearsay and can be considered no more than evenly balanced and none of it lends a great deal of credence to the appellant’s own testimony.

I reluctantly agree with the chancellor that there was evidence that Thompson did recognize the appellant as his child, but he only did so after more than 40. years and did so then very reluctantly as indicated by the remark the appellant says he made to his son John, upon being advised that the appellant had finally learned of their relationship.

To me the appellant’s testimony is incredible as to what happened when she showed her birth certificate to Henry Thompson. She says that he asked her, apparently for the first time in 40 years, what name she went by in school, and when she told him “Lucille Cook,” he began to cry and said he never did know that. It is rather strange that Henry Thompson married the appellant’s mother when the appellant was less than three years of age; lived with and supported her in the home until she was grown and married, and never did know that she went by the name of Cook. Of course, it could be that Mr. Thompson had become senile and forgetful following his stroke, as such action would indicate, but the chancellor was in a much better position to evaluate the situation on this point from the testimony he heard, than we are from the record. If Mr. Thompson did recognize the appellant as his daughter and was not reluctant to do so, he was at least very. discreet in doing so, for according to appellant’s testimony he refused to even have the affidavit prepared in Arkansas for fear someone would find out before his death. I would be more impressed with the affidavit if it had simply said: “I hereby state on oath that I am the father of Lucille Mae Tuttle.”

It seems incredible to me that Mr. Thompson would register surprise after a period of more than 40 years that his child’s birth certificate gave her the same name as her mother with the father’s name not indicated.

Mrs. Koprek testified that soon after the appellant was born and before he married the appellant’s mother, he picked up the appellant and said: “Look at our baby.” If Mrs. Koprek is correct in her testimony, and appellant is correct also, Mr. Thompson underwent a tremendous change in attitude between the time he said “look at our baby,” and the time he- refused to have an affidavit prepared in Washington County, Arkansas, acknowledging that he was the father of that baby.

The most I can gather from the testimony relative to the statements made by the appellant’s mother, is that she was at least in doubt as to the identity of the appellant’s father; whether it was Henry Clay Thompson, Bill Bohannon or Ben Cook. In any event, the appellant was satisfied with the name Cook, did not question the name Gibbs on her birth certificate and apparently never even suspected that Thompson was her father until she was more than 40 years of age and Henry Thompson had suffered a stroke. She made no claim as an heir to the real property of Henry Thompson, until after the extinguishment by death of a life tenancy reserved in a deed from John Thompson as the sole surviving heir of Henry Clay Thompson.

Many men might probably say they are the father of a certain child when actually they are not, and many men might probably deny that they are the father of a certain child when actually they are, but as to proof of actual paternity, I would think the mother would perhaps be better informed than the putative father.

I would affirm the decree.

Fogleman, J., joins in this dissent.

       This statute was re-enacted in 1969 as a part of a more comprehensive statute, being Ark. Stat. Ann. § 61-141 (Supp. 1969).

       Though these defenses are alleged in the answer, they are not argued here, and apparently have been abandoned.

       Emphasis supplied.


author: George Rose Smith, Justice. Carleton Harris, Chief Justice, Conley Byrd, Justice,

text:
    Parker PARKER v. Ike Allen LAWS, Jr.
    5-5372
    460 S. W. 2d 337
    Opinion delivered December 14, 1970

      Williams ir Gardner, Irwin, Street ir Braden and James K. Young, for appellant.

      Wright, Lindsey ir Jennings, for appellee.
   George Rose Smith, Justice.

This is a taxpayer’s suit brought by the appellant to require the appellee to account for some $7,000 in assertedly illegal fees received by the appellee, as deputy prosecuting attorney, during a period beginning in 1963 and ending in 1969. The special chancellor dismissed the suit on the ground that the chancery court had no authority to review the actions of the circuit judge, at whose direction the fees were paid.

The facts, except for some details not yet fully developed, are not in dispute. The fees in question stem from a practice that has existed in the Fifth Judicial District, embracing five counties, by which defendants in criminal cases have been required by the circuit judge to make certain cash payments as a condition in some instances to obtaining suspended sentences and in others to obtaining a dismissal of the charges.

This practice, which we find to be indefensible, was apparently initiated in 1963 by Circuit Judge Wiley Bean. Judge Bean fixed the required payment at $37.50 in each case, which was divided in the ratio of $25 to the deputy prosecuting attorney, $10 to the sheriff, and $2.50 to the circuit clerk. When Judge Russell Roberts became the circuit judge he first increased the payment to $100, of which the deputy prosecutor received $50, the sheriff $20, the circuit clerk $20, and the court reporter $10. Later on Judge Roberts increased the payment to the present figure of $120, of which the deputy prosecutor receives $50, the sheriff $25, the clerk $25, and the reporter $20. In the case at bar only the fees paid to the deputy prosecutor are in issue.

In the court below the special chancellor was in error in dismissing the suit for want of jurisdiction. The case does not involve a review of circuit court judgments entered in the ordinary course of contested litigation. Instead, it involves the validity of an administrative practice by which sums are exacted from persons accused of criminal offenses and are then paid over in part to the deputy prosecutor. It is firmly established under our Constitution that unlawful payments of public funds to public officers constitute illegal exactions that may be recovered in a taxpayer’s suit such as this one. Ark. Const., Art. 16, § 13; Sitton v. Burnett, 216 Ark. 574, 226 S. W. 2d 544 (1960); Rose v. Brickhouse, 182 Ark. 1105, 34 S. W. 2d 472 (1931). It is immaterial that there may be an adequate remedy at law, for the Constitution confers upon the taxpayer a cause of action in chancery. Samples v. Grady, 207 Ark. 724, 182 S. W. 2d 875 (1944). In fact, even the legislature cannot take away the taxpayer’s equitable remedy. McCarroll v. Gregory-Robinson-Speas, 198 Ark. 235, 129 S. W. 2d 254, 122 A. L. R. 977 (1939).

The fees lawfully payable to public officers are fixed by statute, as they should be. The statute unmistakably declares that “the deputy prosecuting attorney shall not be entitled to fees for the prosecution of felony cases.” Ark. Stat. Ann. § 24-121 (Repl. 1962). The same section provides that the deputy prosecutor, in misdemeanor cases, shall receive the fees provided by law for the prosecution of such cases. That fee is ordinarily $10 for each conviction, but in gambling cases the allowance is $25. Ark. Stat. Ann. § 12-1707 (Repl. 1968). The appellee was accordingly entitled to the appropriate statutory fee for convictions in cases that began as misdemeanor charges or that were reduced to that level.

Judge Roberts, who testified at the trial below, relied upon his statutory power to fix the terms of a suspended sentence as authority for the exaction of the cash payments from accused persons. The statute in question provides that the court may suspend the sentence and place the defendant on probation “for such period and upon such terms and conditions as the court deems best.” Ark. Stat. Ann. § 43-2331 (Supp. 1969).

There are two short answers to the theory, argued here in the appellee’s brief, that the statute confers the suggested power upon the circuit court. First, the legislature obviously was not attempting to delegate to the circuit judge the power to fix the fees of court officials in criminal cases. Secondly, the cash payments were clearly and grossly improper if viewed as a term or condition of a suspended sentence. The amount of the payment was fixed in advance and therefore could not possibly have had the slightest relationship to the many factors that are rightly to be considered in determining whether the best interests of society and of the accused call for a suspension of the sentence. Judge Roberts’s own testimony leaves no possible doubt about the procedure that was followed:

Q. Judge Roberts, what happened in cases in which there was a plea of guilty entered and the man was sentenced? What costs or fees were assessed against the man?
A. Who entered a plea of guilty?
Q. Yes, sir, and you sentenced him to the penitentiary?
A. There were none assessed.
Q. There were none assessed?
A. Right.
Q. How about in the cases where they were told that a suspended sentence would be given? Did I understand you to say that was conditioned upon the payment of those fees?
A. Yes, sir.
Q. And in the event they failed to pay the fee they would either stand trial or be sentenced to the penitentiary?
A. Yes, sir.

Moreover, the appellee testified that he had received at least $1,583.33 as fees in cases in which the charge was dismissed upon payment of the assessment. In such instances not only was there no sentence being suspended, but also the exaction was contrary to the rule of law stated in Thomas v. State, 243 Ark. 147, 418 S. W. 2d 792 (1967), to the effect that an order assessing court costs against the defendant upon dismissal of the indictment is void and a denial of due process of law.

Lest it be thought that we have disregarded statements of counsel, we point out that in the briefs and especially in the oral arguments counsel on both sides have disclaimed any intention of questioning the “legality” of the circuit court practice now in issue. We cannot accept that disclaimer. In suits such as this one, where the plaintiff represents the public at large in a representative capacity, he cannot be permitted to nullify the rights of the public by an imprudent stipulation. Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72 (1950). We are unwilling to place the rights of the public in possible jeopardy by acquiescing in the supposed legality of the circuit court order.

The appellee pleaded, and asserts here, the defense of limitations with respect to fees received by him more than three years before the institution of this suit. In answer to that contention the appellant cites Brewer v. Hawkins, 241 Ark. 460, 408 S. W. 2d 492 (1966), where we sustained the sufficiency of a complaint asserting a fraudulent concealment of the misuse of public money. In the case at hand, however, we perceive no such concealment. The unlawful payments were openly made to the circuit clerk, who disbursed the money by check. The practice was certainly known to the lawyers in the district; in fact, it was a resolution of the Pope County-Yell County Bar Association that led to the filing of this representative suit. We are compelled to conclude that the plea of limitations with respect to the older payments is well taken.

The only issue that has given us any difficulty is that of directing the right procedure on remand. The appellee is not entitled to retain the illegal fees. The money sjhould properly be returned to the accused persons who paid it, the payments not being voluntary in the circumstances. Williford v. Eason, 110 Ark. 303, 161 S. W. 498 (1913). Any amounts that prove to be unclaimed would normally go to the county, under the principles well stated in Yuma County v. Wisener, 45 Ariz. 475, 46 P. 2d 115 (1935):

“There can be no question that if defendant by word or deed caused applicants for a marriage license to believe that in order to obtain such license the law required that the $2.50 in question be collected by him as clerk of the court, that he was securing such money under color of office, as the words are generally understood, and it is the usual rule that where a public officer obtains money under color of office, which he had no legal right to collect, that he is not permitted in a suit to recover such sums, either from himself, or his bondsmen, to contend that the state has no right to recover the money from him because it had not authorized him to collect it from the citizens whom he had deceived in regard to the law. City of Philipsburg v. Dengenhart et al, 30 Mont. 299, 76 P. 694; State v. Porter, 69 Neb. 203, 95 N. W. 769, 771; Kern County v. Fay et al, 131 Cal. 547, 63 P. 857; People v. Hamilton, 103 Cal. 488, 37 P. 627; People v. Van Ness et al, 79 Cal. 84, 21 P. 554, 12 Am. St. Rep. 134.”

Ordinarily we would simply remand the case with directions that the amount of the appellee’s restitution be determined and that the money be paid over to the county, subject to the claims of the persons entitled to it. There is, however, the possibility that the funds might be expended for county purposes within the fiscal year, making it impossible for the claimants to assert their rights effectively. To avoid that possible injustice, we direct that the sums be retained in the registry of the chancery court, as in the case of a bill of interpleader, until the rightful owners have had a reasonable notice and an opportunity to assert their claims. Any unclaimed balance will then be paid over to the county. In utilizing the equitable principles of interpleader we are merely following the settled rule by which a court of chancery devises a remedy to fit the need. Renn v. Renn, 207 Ark. 147, 179 S. W. 2d 657 (1944).

Reversed.

Harris, C. J. and Byrd, J., concur.

Carleton Harris, Chief Justice,

concurring. I cannot refrain from adding an additional word concerning the practice which this court is condemning and nullifying in this litigation. While I cannot conceive of this procedure, or similar procedures, being followed by other courts, I do hope that every judge and prosecuting attorney will read the opinions with care.

The imposition of costs, for the benefit of prosecuting officials, not only unauthorized by statute, but to the contrary, clearly in conflict with the statutes, is manifestly illegal; not only that, but to condition a suspended sentence, or a dismissal of the case, upon the payment of these costs by a defendant, audaciously offends the sense of justice.

Conley Byrd, Justice,

concurring in part. The charging and receiving of excessive fees by any officer is defined by Ark. Stat. Ann. § 12-1738 (Repl. 1968), as EXTORTION. Ark. Stat. Ann. § 41-3922 (Repl. 1964), makes it a felony for one to receive or to aid and abet in the receipt of fees belonging to the public for the purpose of converting them to one’s own use and benefit.

Our constitution provides:

“Art. 16, § 3. Making profit out of or misusing public funds — Penalty.—The making of profit out of public moneys, or using the same for any purpose not authorized by law, by any officer of the State or member or officer of the General Assembly, shall be punishable as may be provided by law; but part of such punishment shall be disqualification to hold office in this State for a period of five years.
Art. 16, § 4. Salaries and fees of state officers.— The General Assembly shall fix the salaries and fees of all officers in the State, and no greater salary or fee than that fixed by law shall be paid to any officer, employee or other person, or at any rate other than par value; and the number and salaries of the clerks and employees of the different departments of the State shall be fixed by law.”

In Thomas v. State, 243 Ark. 147, 418 S. W. 2d 792, on October 2, 1967, we pointed out that the Circuit Court of Conway County, which was presided over by the same judge' here involved, exceeded its authority in assessing court costs upon the dismissal of a charge. The record here shows that appellee Laws received substantial fees in 1968 and 1969 where costs were assessed upon dismissal of criminal charges.

The superintending control given this court over all inferior courts by Art. 7, § 4 of the Constitution is limited by its very phraseology to the relief accorded to a litigant on a case by case review — matters of discipline are left to the General Assembly under the article on impeachment.

My only difference with the majority goes to the remedy provided to persons who paid the costs. It is my opinion that Ark. Stat. Ann. § 27-2320 (Repl. 1962), provides an ample remedy for persons aggrieved by the overassessment of court costs. That statute provides:

“Any person aggrieved by the taxation of any bill of costs, may, upon application, have the same retaxed by the court in which the action or proceeding was had, and in such retaxation, all errors shall be corrected by the court; and if the party aggrieved shall have paid any unlawful charge by reason of the first taxation, the clerk shall forfeit all his fees, and shall also pay to the party aggrieved the whole amount which he may have paid by reason of allowing such unlawful charge.”


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

text:
    Leslie NIX v. W. B. DUNAVANT, Jr. d/b/a W. B. Dunavant & Company
    5-5403
    460 S. W. 2d 762
    Opinion delivered December 14, 1970

      Shaver Jr Shaver, for appellant.

      Armstrong, Allen, Brandon, Goodman, McBride Jr Prewitt, Memphis, Tenn., and Rieves Jr Rieves, for appellee.
   George Rose Smith, Justice.

This action was brought by the appellant, Leslie Nix, a resident of Cross County, Arkansas, to recover $9,976 as damages for breach of contract. The defendant, W. B. Dunavant, Jr., a resident of Memphis, Tennessee, appeared specially and moved to quash the service of process, on the ground that he is not subject to suit in Arkansas. The motion was submitted to the trial court upon an affidavit and a counter-affidavit. This appeal is from an order sustaining the motion to quash and dismissing the suit.

The Uniform Interstate and International Procedure Act provides that a court may exercise personal jurisdiction over a person as to a cause of action arising from that person’s “transacting any business in this State.” Ark. Stat. Ann. § 27-2502 (Supp. 1969). In construing the statute liberally we have pointed out that the “transaction of any business” is not synonymous with the earlier restrictive term, “doing business.” Wichman v. Hughes, 248 Ark. 121, 450 S. W. 2d 294 (1970). To the contrary, the purpose of the Uniform Act was to expand the state’s personal jurisdiction over nonresidents, within the limits permitted by due process of law. In Professor Leflar’s words: “Plaintiffs ought ordinarily to be entitled to try their cases where the facts occurred, where witnesses reside and the local law is to be applied. This is in keeping with the ‘fair play and substantial justice’ standard that the International Shoe case [International Shoe Co. v. Washington, 326 U. S. 310 (1945)] laid down.” Leflar, American Conflicts Law, § 41 (1968).

According to Nix’s complaint and counter-affidavit, Dunavant is engaged in the business of buying cotton. In December, 1967, Dunavant, acting through Brian Kelley, a resident of Earle, in Crittenden County, Arkansas, negotiated a contract for the purchase of Nix’s three-quarters share of the cotton to be produced by him on 475 acres in Cross County. All the negotiations took place in Arkansas. Kelley also obtained for Dunavant similar contracts from five other Cross County farmers. Kelley was paid by Dunavant for obtaining the contracts.

The contract itself was typed on Dunavant’s letterhead. Dunavant agrees in the contract to buy the cotton at a stated price per pound. The contract excludes some cotton, such as that below certain grades. It requires that all cotton eligible under the contract be hand or spindle picked. Nix agrees to practice good farming methods in producing and harvesting the crop, to defoliate before machine picking, and to harvest and gin the crop as fast as practicable after maturity. Dunavant has the privilege of controlling the heat and cleaning equipment used in ginning the cotton. The cotton is to be delivered to a specified compress warehouse in Cross County, with samples being sent to Dunavant.

The complaint alleges that Nix complied with the contract in producing, defoliating, spindle picking, and ginning the crop. Dunavant is charged with having wrongfully breached the contract by refusing to purchase and pay for the cotton in accordance with the agreement.

Dunavant’s brief affidavit in support of his motion to quash contradicts hardly any of the facts asserted by Nix. Dunavant asserts that neither he nor his company, a partnership, owns any property, maintains any office, or has any agents in Arkansas. We quote the pivotal paragraph in the affidavit:

That the contract which is the basis of this suit was executed in the City of Memphis, Tennessee, by W. B. Dunavant 8c Co. and was negotiated in the first instance by Brian Kelley, who was an independent cotton broker and merchant in Earle, Arkansas, and who did business as such with W. B. Dunavant & Co., and presumably with other persons and firms who were engaged in the same or similar businesses.

The motion to quash the service of course admits such assertions of fact in the complaint as are not controverted by the motion. Moreover, the burden is on the moving party to produce evidence to sustain the allegations of the motion. Running v. Southwest Freight Lines, 227 Ark. 839, 303 S. W. 2d 578 (1957). Tested by that rule, we find Dunavant’s affidavit insufficient to sustain his motion.

The only point of fact that might be said to be controverted is whether Brian Kelley acted as Duna-vant’s agent. Nix asserts positively that Kelley was in fact Dunavant’s agent or broker. He asserts that Kelley “met with Plaintiff and other cotton producers in Cross County and outlined the terms of the contract and whom it was with.” The contract, which was presented by Kelley for Nix’s signature, was typed on Dunavant’s stationery. Nix also states that Kelley was paid by Duna-vant for obtaining the contracts.

None of those statements are actually denied by Dunavant’s affidavit. He merely alleges, as a conclusion of law, that Kelley was “an independent cotton broker and merchant.” A broker, however, is ordinarily the agent of the person who pays him. Morrison v. Bland, 226 Ark. 514, 291 S. W. 2d 243 (1956); Bouvier’s Law Dictionary (8th ed., 1914). Kelley certainly was not representing both parties in negotiating the terms of the contract. Thus it is actually an undisputed fact that Dunavant, acting through his agent, negotiated the agreement in Arkansas. There is, as we have said, no other point of fact even ostensibly in controversy.

We have said that “a person who avails himself of the privilege of conducting activities in another state is subject to suit there if his contracts in -that state have been such that the maintenance of the suit would not offend traditional notions of fair play and substantial justice.” Wichman v. Hughes, supra. With specific reference to contracts, Leflar states: “A number of cases have presented the question whether the making of a contract in the state suffices to sustain the state’s jurisdiction in causes of action arising out of the contract. If local completion of the contract were by happenstance merely, as between parties who were airline passengers flying over the state, with no other local contacts in the transaction, the answer would be negative. The substantiality of contracts should not be so mechanically measured. But if the contract was made in F by deliberate choice as a place of contracting, or because that was where the contemplated transaction was centered, or because the contract was to be performed there, the contracts are substantial.” Leflar, supra, § 43. Moreover, even though, as here, the final execution of the agreement takes place outside the state, the necessary contracts may be found to exist if the contract is to be performed here. Woods, The Uniform Long-Arm Act in Arkansas, 22 Ark. L. Rev. 627, 633 (1969).

Here the necessary contacts with Arkansas were far beyond the minimum required by due process. Duna-vant negotiated the agreement through his paid agent in Arkansas. The contract involved an Arkansas crop to be produced on Arkansas land. The grower was required to conform to exact specifications in the production, harvesting, and ginning of the crop, all of which were to take place in Arkansas. Dunavant reserved the privilege of controlling the heat and cleaning equipment to be used in ginning — activities for his own protection that had to be performed in Arkansas. When ginned, the cotton was to be delivered to a warehouse in Arkansas.

By contrast, the contract has hardly any connection with the state of Tennessee. Dunavant lives there. He signed his name there. The samples and warehouse receipts are to be sent there. That is all. Upon the record we have no hesitancy in reaching the conclusion that Dunavant is fairly and lawfully subject to suit in this state for breach of contract.

Reversed.

Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I disagree with the majority because I think that there was substantial evidence to support the findings of the trial judge.

Appellee alleged that he did not, at any time material, transact any business in this state or contract to supply services or things in this state and was not subject to service of process.

Whenever the trial judge decides any fact question, in a law case, either interlocutory or preliminary to trial, his decision will be sustained on appeal if there is any substantial evidence to support it. Rome v. Ahlert, 231 Ark. 844, 332 S. W. 2d 809. Whenever the law makes a circuit judge the trier of the facts, the same presumption attends his finding as when a jury is waived by the parties, and when the finding is sustained by substantial evidence it is conclusive on appeal. Cady v. Pack, 135 Ark. 445, 205 S. W. 819; Creekmore v. Scott, 179 Ark. 1113, 20 S. W. 2d 177; Little River County v. Buron, 165 Ark. 535, 265 S. W. 61; Matthews v. Clay County, 125 Ark. 136, 188 S. W. 564.

The principal issue before the court was whether appellee was transacting business in the state in the sense of Ark. Stat. Ann. § 27-2502 C 1 (A) (Supp. 1969). The only evidence before the court was the affidavits of the respective parties. Neither party objected to this procedure or to the admissibility of any statement in the affidavit of the other. If conclusions were stated, they were entitled to be considered as evidence in the absence of objection. Nelson v. Busby, 246 Ark. 247, 437 S. W. 2d 799; Insured Lloyds v. Mayo, 244 Ark. 802, 427 S. W. 2d 164; Judy v. McDaniel, 247 Ark. 409, 445 S. W. 2d 722.

Pertinent parts of appellee’s affidavit were:

1. My name is W. B. Dunavant, Jr. I am an individual residing in Memphis, Shelby County, Tennessee, and I am a member of the firm of W. B. Dunavant & Co. which does a cotton business in the City of Memphis, Shelby County, Tennessee. Said firm is a partnership composed of W. B. Dunavant, Jr., and others and has been engaged in the business of buying and selling cotton in the City of Memphis, Tennessee, since the year 1960. That this defendant has no independent business of his own nor does he engage in the cotton business as a proprietor of W. B. Dunavant & Co.
2. That neither W. B. Dunavant, Jr., nor W. B. Dunavant & Co., a partnership, have an interest in, use, or possess real property in the State of Arkansas nor did they, during the times pertinent to the motion in question.
3. That the contract which is the basis of this suit was executed in the City of Memphis, Tennessee, by W. B. Dunavant & Co. and was negotiated in the first instance by Brian Kelley, who was an independent cotton broker and merchant in Earle, Arkansas, and who did business as such with W. B. Dunavant 8c Co. and presumably with other persons and firms who were engaged in the same or similar businesses.
4. That neither affiant nor W. B. Dunavant 8c Co., a partnership, maintain any offices in the State of Arkansas, nor do they have any agents in the State of Arkansas, nor did they have any offices or agents at any time or times material to this motion.

While the allegations of this affidavit were controverted by appellant’s affidavit, the trial judge was confronted with conflicting evidence as to the status of Kelley. If he accepted Dunavant’s version Kelley acted as an independent broker in negotiating with Arkansas farmers, and not as an agent of Dunavant, who said he had no agents in Arkansas at any time material to the motion. I consider this affidavit to be substantial evidence of the facts therein stated so that we cannot say that appellee was transacting any business in this state through Kelley. The facts that Kelley was compensated by Dunavant after the contracts were entered into ana that Kelley, after having negotiated with the Arkansas farmers, presented them with contracts on Dunavant’s stationery are merely evidence of agency, but not necessarily controlling on the fact question.

We made it quite clear in Tomlinson Chair Mf. Co. v. Jop-Pa Mattress Co., 122 Ark. 566, 184 S. W. 32, that a broker who was not an employee of a wholesaler of merchandise, but who negotiated sales between the wholesalers and merchants, receiving compensation from the wholesaler by way of commission, and who dealt with other wholesalers, giving orders to whichever one he deemed proper, was not the agent of the wholesaler.

I agree that the test for transacting business in the state under the Interstate and International Procedure Act is far different from the “doing business” test of earlier statutes. Yet, when the actions of Kelley are eliminated, I cannot see how it can be said that Dunavant was either transacting business in Arkansas or contracting to supply services or things in Arkansas. The contract was presented to and signed by Dunavant in Tennessee. It became a Tennessee contract. Goode v. Universal Plastics, Inc., 247 Ark. 442, 445 S. W. 2d 893. Dunavant did absolutely nothing in Arkansas and did not contract to do anything in Arkansas. Appellant relies upon the fact that the cotton to be bought by Dunavant was to be planted, produced, ginned and delivered in Arkansas. Yet none of this was to be done by Dunavant, and the “delivery” would be to the Federal Compress and Warehouse Company’s warehouse in Wynne, not to Dunavant. The samples were to be delivered to Dunavant in Memphis, Tennessee. Dunavant was to be billed upon warehouse receipts issued for this cotton.

The “long-arm” act should be liberally construed. The Commissioners’ note stated that it should be given the same expansive interpretation intended by the draftsman of the Illinois act and given by the courts of that state. I agree, but I do not believe that the courts of Illinois would give the act the same expansive application as the court is giving here. See Grobark v. Addo Machine Co., 18 Ill. App. 2d 10, 151 N. E. 2d 425, aff’d 16 Ill. 2d 426, 158 N. E. 2d 73 (1959); Orton v. Woods Oil & Gas Co., 249 F. 2d 198 (7th Cir. 1957); Saletko v. Willys Motors Co., Inc., 36 Ill. App. 2d 7, 183 N. E. 2d 569 (1962); Tommills Brokerage Company v. Loeb, Rhoades & Company, 411 F. 2d 764 (7th Cir. 1969). I also doubt the establishment of the requisite “minimal contacts.”

I would affirm the judgment.

I am authorized to state that Jones, J., joins in this dissent.

       The question was raised by the wholesaler by asserting that the broker had no authority to employ subagents.


author: Lyle Brown, Justice.

text:
    James LEVERICH v. STATE of Arkansas
    5522
    460 S. W. 2d 317
    Opinion delivered December 14, 1970

      Jeff Duty, for appellant.

      Joe Purcell, Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant James Leverich was convicted of the offenses of unlawful possession and sale of stimulant drugs. He seeks reversal on the grounds (1) that the evidence established his entrapment by a government agent, and (2) that his conviction was contrary to the evidence.

In April 1968, appellant was working at a truck stop in Rogers. Agent Bramwell of the Federal Bureau of Narcotics was on assignment to check the truck stop for possible illegal sale of tablets containing stimulant drugs. On that occasion he purchased from appellant a quantity of tablets which were purported to contain amphetamine. An analysis revealed the presence only of caffeine and no charges ensued. The agent returned to the station the following January and purchased from appellant two packages of pills, one dozen in each bag, paying $5.00 therefor. Bramwell said those pills were represented by appellant as being different from the ones previously sold and as containing “good stuff.” Laboratory tests revealed that the variety of tablets contained phenobarbital, amphetamine, and caffeine.

Agent Bramwell further testified that on neither occasion did he identify himself by a name, fictitious or real; that each time he was in the truck stop for only a few minutes; that on the January visit he inquired about buying some more pills and appellant responded in the affirmative; that appellant had the tablets in his shirt pocket; that the agent was directed to follow appellant to a back room in the service station; and that there the tablets and money were exchanged. Bramwell said he inquired if he could buy tablets in quantities of 1,000 and was informed that appellant would have to check his source.

Appellant testified as to the alleged sales. He admitted the first sale of the caffeine tablets but explained that he obtained them from Troy Duncan and that he delivered the sale price to Duncan. As to the second sale, which he also admitted, appellant recalled “I had somebody back at that time come in and ask me if I had some [pills], and two packages was all I had.” He said they were in the back room in an oil case; that some of the employees were “pushing them”; and that he made the sale and gave the money , to Troy. Duncan because appellant presumed they were Duncan’s pills. He conceded knowing that they were “pep pills.”

The pertinent evidence, which we have fairly summarized, is devoid of any of the essentials of entrapment. In Peters v. State, 248 Ark. 134, 450 S. W. 2d 276, we had this to say:

... As Judge Lemley said in the Hughey case, affording one the means and opportunity of doing that which he is otherwise ready, willing and able to do does not constitute entrapment. Entrapment does exist where the criminal designs originate not with the accused, but with the officers of the law, and the accused is lured into the Commission of an unlawful act by persuasion, deceitful representation or inducement by the officers.

In presenting his only other point for reversal— that the verdicts were contrary to the evidence — appellant argues that the tablets did not belong to him. The court would have been justified in finding that appellant did in fact own the tablets but ownership is beside the point. He possessed the drugs, if only for a short time, sold them, and took the money. Whether he was acting for himself or as an intermediary is immaterial.

Affirmed.