text:
    Robert Arnett and Beatrice Arnett v. Nancy Lillard
    5-4708
    436 S.W. 2d 106
    Opinion Delivered January 13, 1969

      George K. Gracraft, Jr. for appellants.

      David Solomon for appellee.
   John A. Fogleman, Justice.

Appellants are the daughter and son-in-law of appellee, the plaintiff in a suit to cancel a deed by which she had conveyed certain lands to them. She alleged that the deed was made in order that appellants might arrange the refinancing of an indebtedness she had secured by a mortgage on the land, but that contrary to their agreement, appellants had refused to reconvey the lands. This refusal, she contended, amounted to fraud.

Appellee Nancy Lillard owned 120 acres of land on which she had lived since 1918. In 1964 it was subject to a mortgage indebtedness in excess of $8,000 bearing interest at the rate of 10% per annum on an original debt of $6,000. Her payments were in arrears, making the debt subject to acceleration, but she was not being pressed for payment. She was nearly 70 years of age and unable to farm the lands herself, so had rented them to a tenant for a year or more. She also owed $1,000 on a tractor she had used on the farm. Appellant Beatrice Arnett and one other daughter were the only ones of her nine living children who did not live in St. Louis. Robert Arnett was living in the vicinity, farming rented lands.

The parties do not agree on the preliminaries to the refinancing arrangement leading to the conveyance of the lands. Mr. Earl Wilson, the county supervisor of the Farmers Home Administration in Phillips County, testified that in October 1964, Nancy Lillard made an application to his agency for a loan. She listed debts of $9,200 on her application. She was not eligible for a loan because she did not operate the farm herself. This application was withdrawn. Appellants then made application to the FHA on November 2, 1964, to purchase the farm and to refinance an indebtedness of $416.64 on their home and the two acres of land on which it was situated. The application indicated that Robert Arnett would farm the land. On November 9, 1964, Nancy Lillard signed an option to appellants to purchase the land for $8,000. The FHA appraisal showed a normal, or loan value, of $8,600, but the loan actually made was $8,380. The objective of the appraisers was to arrive at a loan value amounting to about 70% of the market value. When the loan closing costs, land clearing costs, repair costs and the balance of the debt on the Arnett home had been paid, there remained $8,000 to pay on the mortgage on the land. The loan was closed on March 15, 1965, on which date Nancy Lillard conveyed the lands to the Arnetts by the warranty deed which she now seeks to cancel. The loan proceeds were not sufficient to pay the mortgage in full. On March 30, 1965, the FHA made a production loan of $3,000 to Robert Lillard, from which a $1,000 balance on this indebtedness was paid and the Lillard farm equipment was then transferred to him by a bill of sale signed by Nancy Lillard. The FHA mortgage loan was at 5% interest, payable in annual installments of $488 over a period of 40 years. All of the annual payments becoming due prior to the institution of this suit were made by Robert Arnett. Due to an illness suffered by him, he was granted permission by the FHA to rent the lands to a tenant in 1967. Mr. Wilson stated that Robert Arnett was present on one occasion when Nancy Lillard’s application was discussed. Although Mr. Wilson understood from conversation among the parties that appellee “would live out her days” in her home on the lands, no collateral agreement between the parties to the deed came to his attention. Nancy Lillard did continue to live on in her home and was living there at the time of the trial.

Nancy Lillard had a sixth-grade education and could read and write, but said that she could not now see well ■enough to read. She testified that she understood when the loan was closed that she was signing a contract for Robert to “work it out of debt,” get “Mm some money back,” and then “turn it back.” Sbe stated that be told ber sbe was signing a contract and that for over a year sbe knew nothing of tbe deed. Sbe denied that anyone in tbe FHA office told her sbe was signing a deed. Sbe said that sbe intended for Arnett to work tbe land long enough to pay it out of debt, make a living for himself, and make enough money to satisfy him. Nothing was said about tbe payment of any rent to ber.

Nancy Lillard admitted: making tbe application for tbe FHA loan; receiving $13 from tbe proceeds of timber sold by Robert Arnett; that Arnett bad made repairs to ber home; that be bad cleared about 3 acres of land with a bulldozer; that tbe $8,000 loan proceeds went to pay ber debt; that sbe never asked Arnett to pay her any rent.

Appellee’s version of tbe manner in which tbe proposal for refinancing arose is that Robert Arnett suggested tbe FHA application and took ber to tbe office. Sbe testified that he also proposed the arrangement to which sbe agreed after sbe was told that ber loan application would not be approved.

Sbe first expressed dissatisfaction when Arnett proposed to sell 80 acres of the land. Sbe stated that sbe learned of this from sources other than appellants.

Seanes Boyce, tbe husband of a step-daughter of appellee, testified that Robert Arnett bad told him that be was taking tbe place under a lease and was going to work it out of debt. He was unable to say whether this was before or after the deed was signed. Boyce’s wife admitted telling Arnett that sbe was glad for him to take tbe place and lease it for a number of years because of her inability to do anything. It was not until Arnett proposed to sell some of tbe land that sbe discovered that tbe transaction involved a deed, not a lease. Sbe testified that when all of tbe brothers and sisters objected to the sale, Arnett told her, appellee, and one of appellee’s daughters that if they would give him $3,000 he would relinquish all rights and that if he had realized that heirs were involved, he would never have ‘‘fooled” with it. She denied knowing that Arnett proposed the sale in order to pay off the debt.

Evie Mallett, a daughter who had lived in St. Louis since 1942, said that Arnett told her in August of 1966 that he was going to work the place out of debt and turn it back to appellee just like it was. She testified that when they protested the proposed sale, Arnett said that he would turn the land over to them for $3,800, $300 of which was for the tractor he had taken over.

Edmond Lillard, a son of appellee, recalled that Arnett called him before anything was done, advising of his proposal to take the place and work it out of debt. His version of the conversation was that Arnett was going to return the land and wanted nothing for himself. He admitted a dislike for Robert Arnett.

Robert Arnett’s version is somewhat different. He testified that he and appellee usually discussed their respective farming operations each fall. In the fall of 1964 he learned that Nancy Lillard did not know how much cotton she produced in 1963 and had no statement of her status. He said that he admonished her to attend to her business, and advised her to get a statement from her mortgagee, who apparently handled the disposition of her crops. He further stated that after she obtained one statement and lost it, he went with her to get another. According to him, appellee thought she could get help from the Forrest City Production Credit Association so appellants took her there, but she was told by them that the debt was at least $2,000 too great and that, in any event, they could only make a six- or seven-year loan to her. The parties also went to other lending agencies in Forrest City and in Marianna with the same result. Then, he said, appellee remarked that there was only one other place to go — the FHA. When they went there, he related, Mr. Wilson told them that they conld not make a loan to a non-operating owner and asked Nancy Lillard if there were not someone in the family she could let have the land. According to Arnett, she replied in the affirmative and said “Robert Arnett and Beatrice Arnett, my daughter and son-in-law.” Arnett testified that he protested, not wanting to become involved with her children whom he described as hard to get along with, and suggested appellee’s other daughter who lived in the vicinity. Appellee refused because of a lack of confidence in this daughter and son-in-law, saying that she would rather let the place go. Reluctantly, he says, he agreed to undertake to save the place if he could, because of his love for Nancy Lillard and the fact that his only child was a Lillard. He states that Wilson told appellee she would have to deed the property to appellants, but after the debt was paid, they could “fix it” however they wanted it; both Wilson and Ward at the FHA office told appellee she was signing a deed; appellee told him and his wife, “Now, you all take this land, work it out of debt, and work it as long as you want to and get you something out of it, and turn it back to me.” After the papers were signed, it was his intention to farm the land as long as he lived and was physically able. He had to go to the hospital for surgery in 1966, and was unable to work thereafter. He then proposed to appellee that he sell 80 acres of the land for $14,000, pay the debt, and give her one-half of the sale proceeds in excess of the debt, a home on the remaining 40 acres for the rest of her life, and a share in the income therefrom.

After this proposal, the whole family came to call on Arnett, saying: “We come to get the place,” and objecting to the sale. When appellee protested, he agreed not to sell the land and told the family if they wanted to get him out of the possession of the property, they would have to buy him out, but that he did not have to give up the land until the debt was paid out. It was then that he proposed that they relieve him of the debt, pay him $3,800 and take the farm, the tractor, and equipment. They refused, so he told them he would pay the debt somehow. Every time any of the family told him he had not bought the place, he responded that, even if he had not, he had a 40-year lease on it.

He bought some additional farming equipment at a cost of approximately $2,500, for which he would have no need unless he farmed this land, and which was of no use to him after he had to quit farming. He also had to pay $240 in drainage taxes and an attorney’s fee before the loan vías closed. 'The first year, he had $200 left from the crop proceeds after paying all operating costs and debt payments, including $500 for living expenses. He gave appellee $50 of this remainder. He cleared 6 acres of the land for cultivation at a cost to him of $578, but received the proceeds of the sale of the timber, which may have been $500.

The chancellor found that:

(1) Appellee vías unaware of the legal eonsesequences of the option, deed and bill of sale.

(2) Arnett’s motives were not ulterior and he did not intend to take the land from his mother-in-law, but had agreed to pay it out of debt.

(3) That appellee thought she was signing a contract and Arnett thought it was a lease.

(4) That Arnett’s action had resulted in a decrease of the interest rate from 10% to 5%, for which he should be compensated.

(5) That Arnett was the owner of the personal property formerly owned by appellee.

(6) That the 1968 rent contract entered into by appellants was valid, but they were accountable for $1,112 as the difference between the mortgage debt payment and the rent collected by them in advance.

(7) That neither appellants nor FHA were guilty of fraud, but there was a mistake of fact on the part of appellee and appellants.

The court’s decree contained a finding that the deed conveyed only legal title, and that appellee retained the equitable title, subject to the mortgage debt.

On trial de novo, we agree with the chancellor on findings 1, 2, 4, 5 and 7, but do not agree as to the other findings. The court’s decree leaves appellee with all the benefits of the action taken by the parties, to the detriment of appellants. We find that the evidence clearly shows an agreement between the parties that appellants take over the farm until the debt was paid and they made a profit, at the same time providing appellee with a home thereon as long as she lived, after which it would be reeonveyed to appellee or her heirs and assigns. Their only mistake was in the failure of the contract document to express their agreement. The fault for this should be borne equally.

Appellants had relieved appellee of any personal liability for any indebtedness on the land or responsibility for its operation, had cleared the lien on her farming equipment, which they did not need unless Arnett cultivated the land, bought additional equipment for which they now have no need, assumed appellee’s debts, for which they will remain personally liable, and encumbered their own home to secure them. Appellee did not offer to relieve appellants of any of these burdens, and the decree rendered did not do so.

We feel that the appropriate equitable remedy here is reformation of the deed to reflect the agreement of the parties, i.e.: to vest title in appellants as trustees of an express trust to cultivate the lands, or cause them to be cultivated., and collect the rents, income, and profits therefrom, paying therefrom all taxes, insurance premiums on improvements, and costs of repairs and maintenance and the annual installments of the mortgage debt, and retaining any excess for their own use and benefit, and to maintain the dwelling house occupied by appellee as a home for her as long as she lives. The title to the property shall vest in her heirs and assigns as soon as the mortgage indebtedness is retired.

Equity will reform written instruments in two cases: (1) "Where there is a mutual mistake — that is, where there has been a meeting of minds — an agreement actually entered into, but the contract, deed, settlement, or other instrument, in its written form, does not express what was really intended by the parties thereto, and (2) "Where there has been a mistake of one party accompanied by fraud or other inequitable conduct of the remaining parties. Welch v. Welch, 132 Ark. 227, 200 S.W. 139; American Alliance Ins. Co. v. Paul, 173 Ark. 960, 294 S.W. 58.

We are not unmindful of Ark. Stat. Ann. § 38-106 (Eepl. 1962), which requires all declarations or creations of trusts of any interest in land to be in writing. That statute is applicable where there is an express oral trust. Umberger v. Westmoreland, 218 Ark. 632, 238 S.W. 2d 495. However, it is not applicable here because neither party, in the trial below, pleaded or relied on the statute of frauds as a basis for affirmative relief or as a defense. In fact, on appeal, both asserted that the statute did not apply; the appellants for the reason that part performance took the trust out of the statute and the appellee for the reason that the statute of frauds does not apply to a constructive trust. Before a party may rely on the statute of frauds as a defense, it must be specifically pleaded. Smith v. Milam, 195 Ark. 157, 110 S.W. 2d 1062; Rushton v. Isom, 204 Ark. 804, 164 S.W. 2d 997. See Toung v. Paquette, 341 Mass. 67 (1960); 167 N.E. 2d 308, Bogart, Trusts & Trustees 2d ed. § 71, p.58. Further, in this case both parties, in their testimony, admitted the existence of the oral agreement which constituted the express trust. This fact has been held to prevent the application of the statute of frauds to an express oral trust of an interest in land. Trossbach . Trossbach, 185 Md. 47 (1945), 42 A. 2d 905.

The decree is reversed and the cause is remanded to the chancery court for entry of a decree consistent with this opinion.

Holt, J., not participating.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Herbert L. Thomas, Sr., et al v. Otha Foust, county clerk, et al
    5-4773
    435 S.W. 2d 793
    Opinion Delivered January 13, 1969

      John D. Eldridge for appellants.

      Fitton, Meadows & Adams and Earl Olmstead for appellees.
   John A. Fogleman, Justice.

This is an appeal from a judgment holding Act 407 of 1965 [Ark. Stat. Ann. § 80-455 (Supp. 1967)] unconstitutional as violative of Amendment No. Fourteen to the Arkansas Constitution. The suit below involved a three-party action with multiple issues; however, we deem it necessary only to consider the question of the constitutionality of Act 407 because our decision makes it determinative of the case. We agree with the trial court that Act 407 is a local or special law and is, therefore, unconstitutional.

Appellants are the owners and developers of a community known as Eden Isle which is located on the shores of Greers Ferry Reservoir in Cleburne County, Arkansas. If developed as planned, Eden Isle will be a high-standard resort and retirement area with a permanent population of some 1,500 to 2,500 people. Prior to the formation of Greers Ferry Reservoir in 1962, the Eden Isle area was located in the West Side School District in Cleburne County. With the formation of the reservoir, Eden Isle became separated from the main body of the district, although it remained contiguous to the Ileber Springs School District. In order to reach the West Side School District, a child living in Eden Isle would be required to travel a distance of approximately 75 miles round trip daily. The student making the trip travels completely through another school district in order to get to West Side. Therefore, arrangements were made with the Ileber Springs School District for the children of the Eden Isle area to attend there. Subsequently, appellants caused legislation to be introduced in the Legislature which culminated in the passage of Act No. 407 of 1965, the pertinent portions of which are as follows:

“Hereafter, any portion of a school district in this State which is a part of a school district from which such portion is completely separated by a reservoir formed by any flood control, power, or recreational project constructed, operated, developed, or maintained by the United States of America or any other person, and where to attend school in their own district the pupils of said portion are required to travel a distance of more than twenty (20) miles and pass through another school district or districts, and where the pupils living in such segment were not on January 1, 1964, attending school in the district to which they belong’, but by agreement and arrangement attended school in a school district adjoining such portion of such school district, may be formed into a separate school district or may be annexed to and become a part of said adjoining school district where the pupils have been attending school, upon the filing of a petition ...”

Upon passage several residents of Eden Isle petitioned the Cleburne County Board of Education, pursuant to the act, for the- formation of a separate school district. The petition was denied, and an appeal was taken to the Circuit Court of Cleburne County. Subsequently, a second petition was filed (during the pend-ency of the appeal) praying that Eden Isle be annexed to the Heber Springs School District. This petition was accepted by the Heber Springs School Board and filed with the County Board of Education. Thereafter, both the Heber Springs School District and the Eden Isle petitioners filed a petition for a writ of mandamus against the Cleburne County Clerk. The West Side School District intervened, and the cases were consolidated for trial which was held March 14, 1968. Judgment was entered May 20, 1968, holding, among other things, that Act 407 was unconstitutional.

Amendment 14 to the Arkansas Constitution prohibits the passage of any local or special acts. In Laman, Mayor v. Harrill, 233 Ark. 967, 349 S.W. 2d 814, this court said, “Legislation may be roughly classified as general, special or local. A general law is one that operates upon all counties, cities and towns alike. A law is special in a constitutional sense when by force of an inherent limitation it arbitrarily separates some person, place or thing from those upon which, but for such separation it would operate and a local law is one that applies to any subdivision or division of the state less the whole.”

The trial court, sitting as a fact finder, found that only one school district presently qualifies under the act — the West Side School District. The court’s finding on this point is supported by the testimony of Mr. Canady who is an employee of the State Board of Education.

The fact that a law is limited in effect to only one or a few classifications does not necessarily condemn it as special or local legislation if the classification is not arbitrary and bears a reasonable relation to the purpose of the act. For instance, in LeMaire v. Henderson, 174 Ark. 936, 298 S.W. 327, this court upheld an act which provided for the consolidation of school districts only in counties with 75,000 or more population although only four years before in Simpson v. Matthews, 184 Ark. 213, 40 S.W. 2d 991, we had declared unconstitutional an act which provided for the repair of roads damaged by flood water in those counties with 75,000 population. In both cases the court took judicial notice that only Pulaski County had 75,000 population. In the LeMaire case population was held to be a reasonable classification with regard to the formation of school districts, it being germane to the problems of when or whether to consolidate. But in Simpson we concluded that it was arbitrary and unreasonable to restrict the application of an act concerning the repair of roads to those counties with a certain population. The opinion stated that, “The amendment was intended to prevent arbitrary classification based on no reasonable relation between the subject matter of the limitation and classification made. In determining whether a law was general or local, the Legislature might still make the classification where it was appropriate and germane to the subject and was based upon substantial differences which make one situation different from another.”

In the case before us the applicability of Act 407 is limited in the first instance to those portions of school districts which become cut off from the body of the district by a reservoir and in cases where the students of the portion cut off must travel more than 20 miles through another school district to attend school in their own district. It may well be that such a classification would bear a reasonable relation to the purposes of the act, and not be arbitrary; however, application of the act is restricted to those districts only where students from the area cut off were attending school in an adjoining district on January 1, 1964. This, in effect, makes the application of the act nonprosp.ecti.ve. The limitation to situations arising before 1964, therefore, effectively limits the application of this act to the West Side School District. No reason is given, nor does any appear, why the remedies given by this act should not be applicable to relieve similar situations involving school districts where students began to attend school in an adjoining district after January 1, 1964; and it is our opinion that such a classification is inappropriate and arbitrary and constitutes special or local legislation. See Ark-Ash Lbr. Co. v. Pride & Fairley, 162 Ark. 235, 258 S.W. 335; Whittaker v. Carter, 238 Ark. 1074, 386 S.W. 2d 498; Anderson, Special & Local Acts in Arkansas, 3 Ark. L. Rev. 113.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    Arkansas Release Guidance Foundation v. James Hummel, et al
    5-4678
    435 S.W. 2d 774
    Opinion Delivered January 13, 1969

      Burl G. Rotenberry and Gene Worsham for appellant.

      U. A. Gentry and H. B. Stubblefield for appellees.
   J. Fred Jones, Justice.

This is an appeal by Arkansas Release Guidance Foundation from an adverse decree of the Pulaski County Chancery Court on a petition for a declaratory judgment filed by the appellant. The question presented is whether a “Halfway House” as proposed by the appellant, is an “institution of an educational, religions or philanthropic nature” permitted in a class “D” apartment district under the zoning ordinances of the City of Little Rock.

The appellant, Arkansas Release Guidance Foundation, was incorporated as a domestic nonprofit corporation on October 20, 1967, for the following corporate purposes:

“To acquire and operate one or more places of residence for ex-penitentiary inmates where they may reside temporarily after having been paroled, released or after having completed their sentences and during the difficult transition period from a penitentiary inmate to a completely independent free world citizen;
To provide for ex-prisoners during this transition period room and board, individual counseling, educational and vocational training, job placement services, physical and mental health services, and other rehabilitative services of like kind and nature;
To provide rehabilitative facilities and services in kind and nature as described above for offenders placed on probation.”

The appellant purchased two adjacent two and one-half story residential buildings at 2115 and 2121 Arch Street in the City of Little Rock, and on January 30, 1968, filed with the Department of Community Development for the City of Little Rock, applications for certificates of occupancy. The applications set out that the property was located in a residential zoning district “D” of the City of Little Rock. Both applications were practically the same, and the one for 2115 Arch Street stated as follows :

“The Arkansas Release Guidance Foundation is a non-profit organization incorporated under Arkansas law. It proposes to operate this and the adjacent property (2121 Arch Street) as a ‘group house’ for single, male, ex-prisoners paroled or discharged from prison. Probationers may also be eligible for residence. The property will serve as a temporary residence for these men until they are able to become fully self-sufficient. These men will live no more than two to an apartment unit and there will be no more than ten such house residents at this location at any given time. Breakfast and the evening meal will be served to the residents of both houses in a dining hall located in the house at the above address. The noon meal will be eaten out. This house will have resident, full-time, house parents, consisting initially of a man, his wife and their minor children. This person will be a paid staff employee of the ARGF. As nearly as possible, a family atmosphere will be created for the house residents. In addition to the house parents, the full-time, paid Executive Director of the ARGF will be on duty at the house much of the time. Inspections of the premises have already been made by municipal building, health and fire authorities and the ARGF intends to comply with all municipal code requirements in connection therewith prior to commencing operation as a ‘group house’ as above described.”

On February 2, 1968, the appellant was advised by the director of the Department of Community Development that certificates of occupancy would be issued as requested when the municipal code requirements as to inspections of the property were complied with. In the meantime thirteen property owners in the vicinity of appellant’s property filed petitions with the city remonstrating against the proposed use of appellant’s property, and the appellees threatened the appellant ■with legal action to prevent the operation of the proposed Halfway House at the proposed addresses.

On February 6, 1968, because of threatened litigation, the appellant filed its petition for a declaratory judgment in the Pulaski County Chancery Court naming the thirteen remonstrating individual property owners as defendants. The prayer of the petition was for a declaratory judgment and determination that £ ‘ said Halfway House may be properly and legally operated within said class £D’ zoning area” and that the court declare and determine the appropriate zoning classification of the plaintiff’s Halfway House facility under the zoning regulations and code of ordinances of the City of Little Bock, and that said Halfway House facility be declared appropriately located in said class “D” zoning district.

The appellees filed their answer praying a dismissal of the petition filed by the appellant, and in the alternative, that the appellant be permanently enjoined from the operation of the facility at the proposed site.

After hearing testimony on both sides of the issue, on April 24, 1968, the chancellor rendered a decree as follows:

“The Court, being well and sufficiently advised as to all matters of fact and law arising herein, and the premises being fully seen, finds that the use or proposed use to which the Halfway House facility is, among others, to be put is for the quartering, housing or keeping of convicts, including probationers and parolees, and that this is not a proper use to which the property located in Class £0’ or £H’ zoning district in the City of Little Bock, Arkansas may be put; and that the operators of the Halfway House facility should be enjoined and restrained from using said property for such purposes.
It is, therefore, by the Court considered, ordered and adjudged that the prayer of the Complaint insofar as it requests usage of said property for the above purposes be, and it is hereby denied. The Plaintiff, its agents, officers and ¡employees are hereby permanently enjoined and restrained from using the Halfway House facility on the property located at the Northeast corner of the intersection of 22nd and Arch streets in the City of Little Rock, Arkansas, designated as 2115 and 2121 Arch Street for the quartering, housing or keeping of convicts, including probationers and parolees. All costs herein are adjudged against the Plaintiff.”

On appeal to this court the appellant relies on the following points for reversal:

“The court erred in finding appellant’s proposed use of its property to be in violation of the applicable zoning classification.
To the extent that the court may have found appellant’s proposed use of its property to be a nuisance, if at all, the court erred.”

The City of Little Rock draws its zoning authority from Ark. Stat. Ann. § 19-2805 (Repl. 1968) which provides as follows:

“Cities of the first and second class are hereby authorized to establish zones limiting the character of buildings that may be erected therein. Such zones may be of three [3] classes: First, portions of the city where manufacturing establishments may be erected or conducted; Second, portions of the city where business other than manufacturing may be carried on; Third, portions of the city set apart for residence.”

Arkansas Statute Annotated § 19-2806 (Repl. 1968) provides as follows:

“When the city council shall have laid off such zones it shall not be lawful for anyone to construct or carry on within a given zone any business not authorized by the ordinance of such city establishing the same, unless with special permission granted by the council of said city, or by a commission which it may create for the purpose of determining whether an exception shall be made in the particular instance; and such exceptions shall be made only for good cause, and in ease of abuse the adjacent property owners shall have the right to appeal to the courts of chancery to protect their property from depreciation by reason of the setting up of such exceptional business within the zone.”

Little Rock Municipal Ordinance No. 5420, as amended, was passed under authority of the aforesaid statute, and § 43-4 “0” of the ordinance pertaining to “C” two-family districts provides as follows:

“In the ‘O’ two-family district no building or land shall be used and no building shall be hereafter erected, converted or structurally altered, unless otherwise provided in this chapter, except for one or more of the following uses:
(1) Any use permitted in the ‘A’ one-family district and the ‘B ’ residence district.
(2) Two-family dwellings.
(3) Reserved.
(4) Institutions of an educational, religious or philanthropic nature. * * *”

Appellant’s property is in a “D” zone district and § 43-5 of the ordinance provides:

“In the ‘D’ and ‘E’ apartment districts no building or land shall be used and no building shall be hereafter erected, converted or structurally altered, unless otherwise provided in this chapter, except for one of the following uses:
(1) Any use permitted in the ‘O’ two-family district.”

The appellant contends that its proposed use of its property as a Halfway House is permissible under the ordinance and the appellees contend that it is not. The parties seem to agree, however, that if appellant’s proposed use of its property is permissible under the ordinance, the permission is to be found under Subsection 4 of § 43-5 “C,” supra, applicable to “institutions of an educational, religious or philanthropic nature.”

Neither the appellant nor the appellees have cited any case, and our own research has revealed none, in which any state court has considered the use of property as a Halfway House for parolees and released convicts as institutions of an educational, religious or philanthropic nature within the terms of a zoning ordinance.

The ordinance involved here contains 63 definitions of the words and terms used therein, and “educational institution” is defined as follows:

“A public, parochial or private pre-primary, primary, grammar or high school; a private preparatory school or academy providing courses of instruction substantially equivalent to the courses offered by public high schools for preparation for admission to college or universities which award B.A. or B.S. degrees; a junior college, college or university either public or parochial or founded or conducted by or under the sponsorship of a religious or charitable organization, or private when such junior college, college or university is not conducted as a commercial enterprise for profit. Nothing in this definition shall be deemed to include trade or business schools or colleges.”

“Religious” and “philanthropic” are not defined by the ordinance, nor is an institution of a “religious or philanthropic nature” defined.

The appellees were all residents of the same “D” zone or district where appellant’s -property is located, so certainly the chancellor did not err in restricting his decree to the “D” zone in which the parties defendant lived. (See Ark. Stat. Ann. § 34-2510 [Repl. 1962]). So the question here is whether appellant’s proposed use of its property is permissible under the provisions of the zoning ordinance, in the “D” zone where the property is located.

The evidence in this case reveals that the appellant’s property is located in a quiet, older residential section of Little Rock, consisting primarily of large two story homes, some of which have been converted into apartment buildings and some still occupied by the original owners as single family dwellings. The appellent does not contend that the proposed use of its property would convert the property from family dwellings to an “ educational institution” as defined in the ordinance, and there is no serious contention that the proposed Halfway House would be an institution of an educational or religious nature. So the question boils down to whether appellant’s proposed use of its property as a Halfway House would constitute an institution of a “philanthropic nature” as contemplated in the passage, and as intended by the terms, of the ordinance.

Section 43-22 (4) of the zoning ordinance fixes the jurisdiction of the board of zoning adjustment and vests it with the power to hear requests for variances from the literal provisions of the ordinance, but courts have no such authority under the statutes or under the declaratory judgment procedure. We conclude, therefore, that in the absence of an ordained definition for institutions of “religions or philanthropic nature”, we must .■examine the ordinance in the light of its purpose, and the appellant’s petition in the light of the use to be made of the property.

McQniUian, Municipal Corporations, volume 8, 1965 revised, § 25,17, states:

“The ultimate and general purposes of zoning are those traditionally associated with the police power, to-wit: The public health, safety, morals and general welfare, peace and order, and public comfort and convenience.”
In 101 C.J.S., Zoning, § 16, we find the following:
“In order to be valid as a proper exercise of the police power, especially where their application will cause a destruction of property values, zoning laws, ordinances, by-laws, regulations, and restrictions must advance, promote, or tend to be designed to promote the public health, safety, morals, or general welfare or be reasonably necessary for the protection of the public health, safety, comfort, morals, or welfare, or have or bear a real and substantial relation to public health, safety, morals, or general welfare; and it has been held that such enactments must bear the required relation with respect to the particular premises to which they are applied. Citing Kessler v. Smith, 142 N.E. 2d 231, 104 Ohio App. 213, appeal dismissed Smith v. Village of Glenwillow, 146 N.E. 2d 308, 167 Ohio St. 91.”

The case of City of Little Rooh v. Sun Building & Developing Co., 199 Ark. 333, 134 S/W. 2d 583, had to do with a zoning ordinance where it was contended that the ordinance amounted to the taking of private property without just compensation, and in that connection, this court said:

“The theory is that the owner of such property is sufficiently compensated by sharing in the general benefits resulting from the exercise of the police power. Many cases to that effect are cited in the note appearing at page 905, 12 C.J., in the article on Constitutional Law, subhead Police Power. But these and all other cases appear to be in accord in holding that this power may not be arbitrarily used, and must in all cases bear a definite relation to the health, safety, morals and general welfare of the inhabitants of that part of the city where the property zoned is situated.” (Emphasis supplied.)

Now, as to the ordinance we are dealing with in the case at bar: “Educational institution” is specifically defined by the longest of the 63 definitions in the ordinance and “educational institution” is the only institution that is defined. It is noted that the definition specifically refers to school or academy, public or founded or owned or conducted by or under the sponsorship of a religious or charitable organization. The definition also includes “college or university, public or founded or conducted by or under the sponsorship of a religious or charitable organization.” Certainly it is reasonable to interpret an “institution of an educational nature”, as set out in § 43-4 “C” (4), supra, to simply mean an “educational institution” as defined in the ordinance. But the ordinance provides no such aid in defining “institutions of a religious or philanthropic nature.” The words “religious” and “philanthropic” are broad general terms and as was said of the terms “philanthropic” and “eleemosynary” in the 1942 case of Westchester County Soc. for Prevention of Cruelty to Animals, Inc. v. Mengel, et al., Zoning Board of Appeals, 54 N.E. 2d 329, they

“. . . are not technical words of art or words which have been defined by statute or which have acquired a rigid meaning by judicial construction.
They describe a field without established land marks. Often, perhaps ordinarily, these words denote a purpose to promote the welfare of mankind by works of charity. Sometimes they are used in broader sense to denote an unselfish purpose to advance the common good in any form or manner. Such words reflect the context in which they are used and change in color and in scope accordingly.”

In Yonkley, Zoning Law and Practice, (A 19-6 — 19-7, third edition, in connection with the interpretation of zoning ordinances, is found the following statements:

“Zoning ordinances should be given a fair and reasonable construction, in the light of their terminology, the objects sought to be attained, the natural import of the words used in common and accepted usage, the setting in which they are employed, and the general structure of the ordinance as a whole. A zoning ordinance must be construed reasonably and with a regard for the objects sought to be attained. * * *

An ordinance must be read to avoid, if possible, an arbitrary and capricious interpretation. The determination of the uses permitted in a zoning ordinance must be predicated on the wording thereof, and also on the context in which it occurs. In construing zoning ordinances what may be the most appropriate use of any particular property depends not only on all the conditions, physical, economic, and social, prevailing within the municipality and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may be put most advantageously. ”

Also in Yonldey, Zoning Law and Practice, §161, p. 320, first edition, is found the following:

• “. . . [I]n determining whether or not the use to which property is being used comes within the classification of use permitted in a zone under the particular facts of any case is a question of plain fact. The use conforms or it doesn’t and each case must rest on its own particular facts.”

The objects recited in appellant’s corporate charter, as well as the testimony and other evidence before the chancellor, indicate that a maximum number of twenty men, all of them convicted criminals and parolees, would be assigned two to a room, and would he housed and boarded at the Halfway House. The record reveals that there are other so-called “halfway houses” in Little Rock, but none of them have to do with the rehabilitation of convicted felons.

So in the absence of specifically ordained definitions of institutions of a religious or philanthropic nature, we conclude that the chancellor was entitled to consider the overall purpose of zoning ordinances in general in determining whether appellant’s proposed use of its property was permissible under the provisions of the ordinance. We conclude that the chancellor’s findings that appellant’s Halfway House is not an institution of an educational, religious or philanthropic nature, as contemplated by the ordinance, is not against the preponderance of the evidence and that the decree of the chancellor should be affirmed.

Affirmed.

Holt, J., not participating.


author: Conley Byrd, Justice.

text:
    F. H. Jackson v. Gordon Young, et al Co-executors
    5-4760
    435 S.W. 2d 801
    Opinion Delivered January 13, 1969

      Robert W. Faulkner for appellant.

      Wenclell O. Epperson and Bridges, Young, Matthews & Davis for appellees.
   Conley Byrd, Justice.

This appeal by Appellant F. H. Jackson is dismissed for failure to comply with our rule 9 (d). The only portion of the record here abstracted is the testimony of Dave Davenport and from this alone we are unable to know how the trial court-committed error in refusing a continuance or why the evidence is not sufficient to sustain the verdict.

Affirmed.


text:
    Mary G. Norton v. Roy Hindsley
    5-4658
    435 S.W. 2d 788
    Substituted Opinion on Rehearing January 13, 1969
    [Original opinion delivered October 7, 1968, p. 299.]

      David Solomon and W. G. Dinning, Jr. for appellant.

      John L. Anderson for appellee.
   John A. Fogleman, Justice.

On rehearing, the opinions delivered in this case on October 7, 1968, are withdrawn, and the following opinion is substituted therefor:

The first question to be determined on this appeal is whether the actions of Roy Hindsley, appellee here, were sufficient to take an oral lease out of the statute of frauds. We find that they were not.

Hindsley had been a tenant on farm lands owned by appellant Mary G-. Norton for a number of years prior to January 1, 1967. On February 13, 1967, appellant filed an action in unlawful detainer againsl Hindsley, who filed a cross bond to retain possession. His answer contained allegations that on or about the first day of November 1966, he “made a binding agreement for the rental of such lands with the plaintiff [appellant] and that plaintiff accepted his rent notes in the amount of $15,000 representing the rentals to be due upon such lands for the period 1967, 1968, and 1969.” (Emphasis ours.) Appellee also alleged that proper notice of termination had not been given him, even if a new agreement had not been made.

Mrs. Norton is nearly 80 years of age. She testified that she told Hindsley and his wife when they called upon her in late October 1966, that she was going to have to get the best rent she could for 1966 and that Hindsley should go to her son, whom she had authorized to act, about renting the land. According to her, Mrs. Hindsley returned and gave her a piece of paper, saying it was “the rent note.” Mrs. Norton stated that she was in bed, did not have her glasses, and did not even look at the paper, but reminded Mrs. Hindsley that she had told Hindsley to go to her son. Mrs. Norton did not know what she had done with the paper Mrs. Hindsley handed to her. She admitted having told Hindsley he could rent the land at her price.

Mrs. Norton’s son, Earl, testified that he negotiated the agreements with Hindsley for the renting of the lands for many years and specifically for the years 1964, 1965, and 1966. He stated that after Hindsley’s visit to Mrs. Norton, he took two notes he found on his mother’s dresser and told Hindsley that he conld not have the farm for $5,000 per year but that the rent would be $7,000. He further stated that Hindsley agreed, whereupon he took a note in that amount to Hindsley, who refused to sign it, saying that he would not pay that much rent.

There was evidence indicating that appellee was given written notice by appellant’s attorney that his right to possession would terminate December 31, 1966, and that appellant was insisting upon possession at that time. This was done by letter dated November 10,1966.

Hindsley testified that on the occasion of his visit to Mrs. Norton, she told him to prepare the rent notes for 1967, 1968, and 1969, saying that her son wanted to rent the land to some of his friends. According to him, the notes were prepared by one Davidson and taken by Mrs. Hindsley for delivery to Mrs. Norton. He denied having previously dealt with Earl Norton but admitted that Earl Norton had talked to him about the farm rental. He claimed that he caused the ‘ ‘ diverted acres ’ ’ on the land to be plowed, thinking he had rented it for three years.

Mrs. Hindsley corroborated her husband’s testimony about their visit to Mrs. Norton. She testified that she took rent notes for $5,000 each for 1967, 1968. and 1969 to Mrs. Norton, who stuck them under a towel spread across her lap, saying “all right.”

Mrs. Earl Norton testified that she typed the rent notes for 1964, 1965, and 1966. Mrs. Hindsley stated that Mr. Davidson had not previously prepared rent notes for the parties.

Our statute of frauds requires that a contract for lease of lands for a term longer than one year be in writing signed by or on behalf of the party to be bound. Ark. Stat. Ann. <^38-101 (Eepl. 1962). No such writing was offered in evidence. Unless the acceptance of the notes signed by appellee by appellant, or appellee’s action in plowing' some of the acreage involved, took the transaction outside the application of the statute of frauds, appellee could not be entitled to judgment.

Under our decisions, it is clearly established that the mere breaking of ground is not such a valuable and permanent improvement as to take the case out of the statute of frauds. French v. Castleberry, 238 Ark. 1038, 386 S.W. 2d 482; Ashcraft v. Tucker, 136 Ark. 447, 206 S.W. 896; Garner v. Starling, 137 Ark. 464, 208 S.W. 593. Furthermore, part performance as a defense is available in equity only, and cannot take any case at law out of the statute of frauds. Therefore, it cannot be a defense in an action in unlawful detainer, at least where there was no effort to transfer the cause to an equity court. Osan Lumber Co. v. Price, 219 Ark. 709, 244 S. W. 2d 486; Henry & Bros. v. Wells, 48 Ark. 485, 3 S.W. 637; Mitchell v. Hanley, 171 Ark. 456, 284 S.W. 535.

Mrs. Norton’s mere acceptance and retention of the notes signed by Hindsley will not suffice to take tire oral contract out of the statute of frauds. Bromley v. Ada-y, 70 Ark. 351, 68 S.W. 32. Even the advance payment of rent under a parol contract for a lease for more than one year cannot extend the tenancy beyond one year. Brockway v. Thomas, 36 Ark. 518. Even if the retention of the notes could be said to have constituted ratification of a verbal contract required by statute to be in writing, the contract would not be validated for its full term, but ratification would extend only to any xjeriod of actual performance under the contract. Bald Knob Special School District v. McDonald, 171 Ark. 72, 283 S.W. 22.

The statute requires that the written memorandum be signed by the party to be charged. Elm Springs State Bank v. Bradley, 179 Ark. 437, 16 S.W. 2d 585. The party to be charged is the one against whom the contract is sought to he enforced in the action. Lee v. Vaughan’s Seed Store, 101 Ark. 68, 141 S.W. 496, 37 L.R.A. (n.s.) 352; Jones v. School District No. 48, 137 Ark. 414, 208 SAY. 798; Chicago Mill & Lbr. Co. v. Matthews, 163 Ark. 571, 260 SAY. 963. The notes prepared by Hindsley could not constitute the writing required, not only because they were not signed by appellant, but also because the land involved is not in any way identified therein, as required by the statute. McCorkle v. H. K. Cochran Co., 144 Ark. 269, 222 S.W. 34; Faith v. Epperson, 213 Ark. 1002, 214 SAY. 2d 223; Eotopp v. Adair, 144 Ark. 629, 223 SAY. 393; Briggs v. Fraser, 157 Ark. 518, 249 S.W. 9.

No specific mention was made of the statute of frauds until the conclusion of all the evidence. Then, appellant’s attorney requested that the jury be instructed that appellee could not have a three-year lease on the property since it would be within the statute of frauds. He contended that, giving the evidence on behalf of appellee its strongest probative force, it only indicated that Mrs. Norton had orally consented to a three-year lease, and had not executed the notes presented as evidence of the rent contract.

This request was refused by the circuit judge, who stated that Mrs. Norton’s acceptance of rent notes prepared according to her instructions would constitute a valid three-year lease. Appellant’s attorney also objected to the giving of appellee’s requested instruction No. 1 as to the words sufficient to constitute a lease for the reason that neither it, nor any other instruction, covered the statute of frauds. Objection was also made, for the same reason, to appellee’s requested instruction No. 2 in which the circuit judge told the jury that acceptance of rent notes for 1967, 1968, and 1969 pursuant to an oral agreement between the parties would constitute a valid and binding lease contract for a three-year period. Appellant also requested an instruction stating the requirements of the statute of frauds, which would not have permitted the jury to consider whether any lease was entered'into except for the year 1967. This request was refused.

It was clearly error on the part of the trial judge to give appellee’s requested instructions 1 and 2 over the objection of appellant. Neither of them would have allowed consideration of the application of the statute of frauds to the dealings between the parties. In ef feet, the trial court held that the actions of the parties took the matter out of the statute of frauds. This was error.

It is urged, however, that the statute of frauds cannot be relied on by appellant because of her failure to plead it. It is generally held that reliance upon the statute of frauds as an affirmative defense is conditioned upon assertion, of the defense in a pleading. See S. E. Kress Co. v. Moscowitz & Zucker, 105 Ark. 638,152 S.W. 298. This rule is apparently based on the theory that an oral contract raises a moral obligation, at least, so that a party against whom it is asserted has the option of either pleading the statute of frauds as a defense or waiving it. Skinner v. Fisher, 120 Ark. 91, 178 S.W 922. While this is a sound rule, there are situations ti which it cannot and should not be strictly applied.

When an oral contract is pleaded by the adverse party or admitted by the pleader, the latter must specifically plead the statute of frauds in order to rely upon it. Stooksberry v. Pigg, 172 Ark. 763, 290 S.W. 355. It has often been held, however, that the denial of the existence of a contract asserted in a complaint is sufficient to raise the issue of the statute of frauds, even though the statute is not specifically mentioned. Elm Springs State Bank v. Bradley, 179 Ark. 437, 16 S.W. 2d 585. The denial in an answer is taken to be as broad as the allegation in the complaint. McCorkle v. H. K. Cochran Co., 144 Ark. 269, 222 S.W. 34.

Denial of the existence of a contract requires the party asserting the contract to prove one valid under the statute of frauds. Chicago Mill & Lbr. Co. v. Matthews, 163 Ark. 571, 260 S.W. 963.

Under rules of both common law and code pleading, the assertion of a claim or defense based upon a contract within the statute of frauds which is not alleged to be in parol will be taken as against the pleader as the allegation of a written contract. Duncan v. Clements, 17 Ark. 279; McDermott v. Cable, 23 Ark. 200; Allen v. Bank of Eureka Springs, 179 Ark. 334, 15 S.W. 2d 408; Elm Springs State Bank v. Bradley, 179 Ark. 437, 16 S.W. 2d 585; Gale v. Harp, 64 Ark. 462, 43 S.W. 144. When issue is joined upon an allegation of a contract required by a statute to be in writing, proof of a written contract, or of a contract valid under the statute, is required. Hurlburt v. W. & W. Mfg. Co., 38 Ark. 594; Elm Springs State Bank v. Bradley, supra; Stooksberry v. Pigg, 172 Ark. 763, 290 S.W. 355.

Under our system of code pleading, much of the volume of pleadings required under the rules of common law pleading was to have been eliminated. Although it may seem too restrictive at times such as this, our code permits a reply to an answer only when a counterclaim or set-off is asserted by a defendant. Ark. Stat. Ann. § 27-1131 (Repl. 1962). The code also provides that allegation of new matter in an answer not relating to a counterclaim or set-off is deemed to be controverted by the plaintiff as if he had made a direct denial or avoidance. Ark. Stat. Ann. § 27-1151 (Repl. 1962). These statutes have been applied, for example, to answers pleading contributory negligence (when it was a complete defense), releases, and ownership of a judgment by a defendant by right of subrogation. St. Louis, Iron Mountain and Southern Railway v. Higgins, 44 Ark. 293; George v. St. Louis, Iron Mountain and Southern Railway, 34 Ark. 613; Ward v. Sturdivant, 96 Ark. 434, 132 S.W. 204. In the first two cases cited, plaintiffs have even been permitted to show their own infancy and incompetence to avoid written instruments signed by them and relied upon in answers without any suggestion of the matter shown in any pleading. This court said in the Higgins case that the cause is at issue without any reply and that the trial judges should not permit the record to be cluttered with such improper pleadings.

We are aware of two decisions in which the filing of a reply raising the statute of frauds has been mentioned. See Dunn v. Turner Hardware Company, 166 Ark. 520, 266 S.W. 954, and Cook v. Cave, 163 Ark. 407, 260 S.W. 49. In the former there was a counterclaim for special damages asserted in the answer. In the latter the pleading merely denied the existence of a contract but did not specifically assert the statute of frauds. In neither case was the necessity of the pleading to raise the issue considered, nor was the propriety of the filing of the reply questioned. No rule that a reply was required to assert the statute of frauds against a contract first asserted in an answer was stated in either opinion. The opinion in Rogers v. Moss, 216 Ark. 838, 227 S.W. 2d 630, did state that a plaintiff could not rely on the statute of frauds where it was not pleaded. In that opinion, however, the court had already stated that any rights under the contract in question had been surrendered long before the action was brought. Thus, the same result would have been reached without ever considering the application of the statute. No authority requiring a plaintiff to raise the statute by a reply was cited in the opinion. This decision, in this respect, stands alone. It is not in harmony with our statutes governing pleadings or with other decisions of this court, and we decline to follow it.

When appellee alleged a binding contract in his answer, the existence of this contract became an issue in the case, and it was incumbent upon him to produce evidence to prove the existence of such a contract, i.e., one in writing or which was taken out of the application of the statute of frauds. This, he failed to do.

Appellant also complains of the failure of the trial court to instruct the jury on the right of appellant to recover double damages provided for by Ark. Stat. Ann. § 50-509 (1947), as requested. We find that this also was error. A jury might have found that the penal statute did not apply in this case if it found that there was a valid oral contract for the year 1967 as permitted under appellant’s requested instruction No. 2 [See Ark. Stat. Ann. § 38-104 (Eepl. 1962); Brockway v. Thomas, 36 Ark. 518] or if it found that appellee did not hold over willfully but under a belief in good faith that he had a right to do so (See Johnson v. Taylor, 220 Ark. 46, 246 S.W. 2d 121). The evidence was sufficient, however, to make a question for the jury’s determination on this issue.

The judgment is reversed and the cause remanded for a new trial.

Holt, J., not participating.

The Chief Justice dissents.


author: Carleton Harris, Chief Justice.

text:
    Daisy Lee Young v. Flanders Manufacturing Company, et al
    5-4766
    436 S.W. 2d 100
    Opinion Delivered January 20, 1969

      Garner & Parker for appellant.

      Bethell, Starks, Callaway & King for appellees.
   Carleton Harris, Chief Justice.

This is a Workmen’s Compensation case. Daisy Young, appellant herein, was employed by Flanders Manufacturing Company, a manufacturer of furniture, from 1956 until June 2, 1964. She was injured in 1962, contending that her shoulder and neck had been injured, was treated by Dr. Frank Lockwood, and returned to work without any loss of time. She again received an injury in 1963, this time to the lower back, but returned to work after approximately a week in the hospital. On June 2, 1964, Mrs. Young testified that she was working on the assembly 'line, lifting pieces of furniture, and moving them about on the conveyor belt, in order that the pieces could be sanded inside and out. By quitting time, pain was moving up and down her back, and she was hurting in her neck and shoulders, arms and legs. Mrs. Young never returned to work after the June 2, 1964, occurrence, and subsequently a claim for benefits was filed with tbe Workmen’s Compensation Commission. There was no dispute but that she had suffered a low back injury, but appellees denied that any cervical spine disability was occasioned by her work. The referee found to the contrary, and held that this was also the result of an injury arising out of and in the course of her employment; that she had suffered a 40% permanent partial disability to the body as a whole considering both the low back condition and cervical spine condition. The referee’s findings were appealed to the full commission, and that tribunal held that under the preponderance of the evidence, the condition experienced by claimant in the cervical area was not the result of the injury on June 2, 1984. This finding was affirmed by the Sebastian County Circuit Court, and from the judgment so entered, appellant brings this appeal. For reversal, it is simply contended that the commission erred in holding that Mrs. Young had failed to prove by a preponderance of the evidence that there was a causal relationship between the employment and the injury, i.e., the disability to the cervical spine.

Of course, we are only here interested in whether there was substantial evidence to support the finding of the commission. Mrs. Young; testified that after the injury in 1962, she was treated by Dr. Lockwood who advised that she had sprained a muscle; medicine was prescribed, and she returned to work. According to the deposition of Dr. Karl Lindquist, a chiropractor, who first examined appellant on March 26, 1962, and at various intervals thereafter until June 4, 1962, she had suffered a strain of the cervical spine area, and he treated her with chiropractic adjustments. Dr. Lindquist did not find a herniated disc in the cervical spine of Mrs. Young, but he stated that her complaints on consulting him were pain in the shoulders and neck.

In 1963, claimant received an injury to the low back, was placed in traction by Dr. William F. Knight of Fort Smith, but returned to work after approximately a week’s stay in the hospital. Following the June, 1964, injury, Mrs. Young was treated by Dr. Knight and Dr. Hoyt Kirkpatrick until about the middle of August, 1964, at which time, according to claimant, she was released by these doctors, and advised to return to work. However, the witness stated that, because of continuing pain, she went to Dr. Horace Murphy in Little Rock on October 1 of the same year. Dr. Murphy made the diagnosis of a herniated disk of the lumbar spine, and performed an operation during the month to correct this condition. Appellant made several return visits to Dr. Murphy, complaining that, following the operation, the pain was more apparent in the cervical region of her back. Murphy (or his partner, Dr. Kenneth Jones) referred her to Dr. Robert Watson, a neuro-surgeon of Little Rock, who saw her for the first time on March 15, 1965. Watson’s preliminary finding was to the effect that she was suffering from neuritis, but in June, this doctor diagnosed a herniated disk of the cervical spine, and operated to remove the ruptured disk. Mrs. Young was examined (March 7, 1966) by Dr. William &. Lock-hart of Fort Smith, Dr. Lockhart having been selected for the purpose of testifying in the compensation proceeding relative to her condition.

It should be made clear that claimant has undergone surgery for two ruptured disks, one in the low back, or lumbar area, and the other in the neck, or cervical area. Appellees have accepted liability for the lumbar condition, and this appeal places in issue only the cause of the cervical condition. While the husband, daughter, mother, son, and one neighbor, testified that Mrs. Young complained of her shoulders and neck hurting after the injury in June, 1964, the record does not disclose that this complaint was made to any of the physicians at that time. The only record of any complaint to a doctor about neck pains (prior to March, 1965) is found in the deposition of Dr. Lindquist who testified that she said she had, at the time of the 1962 injury, gotten “a catch in both shoulders and her neck.”

Dr. Murphy testified that his records did not reflect that Mrs. Young made any complaint concerning pain in the neck area in 1964, and he first saw Mrs. Young on the basis of that complaint in March, 1965. He said that the 1964 statement made to him by claimant reflected that the pain was in her low back and leg.

Dr. Watson, as previously set out, first saw Mrs. Young on March 15, 1965, and he stated that her primary complaint was with reference to her neck and upper extremities. Physiotherapy was first prescribed, but she was later placed in the hospital, Dr. Watson having concluded from myelographic studies that she had a ruptured disk. An operation was performed on June 10, 1965, and a ruptued cervical disk was found and removed. According to the doctor:

“This disk had the appearance of both a longstanding situation, such as we would see on the plain x-rays, then in addition to that there was a fresher, more recent protrusion of disk material so that I thought that we were dealing with a disk that possessed two phases, one phase being a longstanding change and the other a more recent development that had likely accounted for the more recent symptomatology this lady had.
# * *
“ * * * I can simply say that one part of it was maybe many months’, even a few years’, duration, whereas, the other part was of probably weeks’ duration. * * *
# * *
“I think that the more recent protrusion was definitely associated with the existence of the former trouble, and I think that the more recent change was simply a continuation or extension of earlier pathology in the neck.”

The most that Dr. Watson would say in support of claimant’s present contention was that it was possible that Mrs. Young could have sustained an aggravation of a pre-existing condition earlier than just a few weeks prior to his first interview, but he insisted that a 1964 injury would not have caused the complete picture that he observed in June, 1965. He would only say that the degenerative condition found could have been aggravated by trauma, though a study of his entire testimony clearly indicates that he did not consider this to have been the case.

Dr. Lockhart, who examined appellant at the request of her counsel, testified that he had an opinion, based upon the examination, the history taken from Mrs. Young, and a review of all medical records of Doctors Knight, Kirkpatrick, Murphy and Watson. He said:

“By history the trauma to the lumbar area seemed to be related to the incident that the patient relates of pulling the dressers and so back. I think the 2nd of June 1964. I cannot relate the neck aspects.”

The doctor said that he could find no causative connection between the existence of the lumbar condition and the cervical condition. He stated:

“* * * I cannot, at the present time, relate to the cervical problem, or cervical condition, to the injury of June 2, 1964. Certainly the lumbar injury would seem to be documentary to this time. * * *
* # #
“ * * * In summary, it seemed the acuteness of her symptomatology in the neck was related to a period of three to four weeks after first being seen by Dr. Watson, and no where, by questioning her, or going over this aspect of her neck complaints, was I able to find anything with the same magnitude in her past history.”

Dr. Lockhart continued that lifting, bending over, or moving a heavy object, does not usually cause neck injury. On cross-examination, he said that it was possible that if the degenerative condition existed prior to June 2, 1964 (and this is somewhat speculative), the injury could have aggravated this pre-existing condition. However, he concluded that the history of the case indicated that this was unlikely.

Summarizing, although several doctors treated or examined Mrs. Young after the 1964 injury (two of them, Murphy and Lockhart, being physicians of her own choice), not a single one expressed the opinion that the injury described by claimant on June 2, 1964, was the cause of the condition of the cervical spine. The strongest statement in support of appellant’s contention was that this injury could have aggravated the degeneration condition, provided such condition already existed at the time of the injury. Dr. Murphy was rather positive that no complaint about the neck was made by Mrs. Young in October, 1964, when he first examined her. Dr. Lockhart testified that in his opinion the condition complained of was not caused by the lifting of the furniture in June, 1964. There was substantial evidence to support the finding of the commission.

Affirmed.

      Dr. Lockhart testified that Dr. Knight’s records reflected that he (Knight) had treated Mrs. Young in June, 1964, with neck manipulation, but the chart reflected that this treatment was for headaches.


author: G-eorge Rose Smith, Justice. John A. Fogleman, Justice.

text:
    Jones Truck Lines, Inc., et al v. Mills O. Letsch
    5-4618
    436 S.W. 2d 282
    Opinion Delivered January 20, 1969
    [Rehearing denied February 17, 1969.]
    Crouch, Blair & Cypert for appellants.

      Putman, Davis & Bassett for appellee.
   G-eorge Rose Smith, Justice.

This is a workmen’s compensation case in which the appellants, the employer and insurer, unsuccessfully contended before the commission and in the circuit court that the employee’s claim should be denied because his injuries were “ solely occasioned by intoxication.” Ark. Stat. Ann. § 81-1305 (Repl. 1960). When the facts are viewed as we must view them, in the light most favorable to the commission’s decision, the principal issue emerges as one of law: What is meant by “intoxication,” in the controlling section of the statute?

Inasmuch as the ultimate issue is one of law we need narrate the controlling’ facts only, disregarding conflicts in the testimony. Letsch, a truckdriver employed by the appellant truck line, underwent surgery in January, 1966, for the removal of most of his stomach. During his convalescence his surgeon, Dr. Dorman, prescribed a course of treatment including mepergan fortis pills. Letsch testified that Dr. Dorman did not warn him against taking the pills while he was driving. (Dr. Dorman usually gave such a warning.)

On June 25,1966, after Letsch had returned to work, he drove one of his employer’s trucks from Springdale to Kansas City, arriving at about 8:30 a.m. He did not sleep during the day before leaving' Kansas City that evening for Springfield, Missouri. He did, however, take two of the mepergan fortis pills. The commission, despite Letsch’s denials, found that he also drank some liquor while he was in Kansas City. About thirty minutes after leaving Kansas City the claimant ran off the highway and suffered the injuries for which compensation was awarded. He testified that he did not remember anything that happened after about 3 -.00 that afternoon.

The claimant unquestionably made a prima facie case by his own testimony and that of Dr. Dorman, who stated that, “very definitely,” the medication and a head injury suffered by Letsch three days earlier could have had a bearing upon the truck accident. The pills, he said, tend to make some patients “kind of go out of their minds, confused.” On cross-examination Dr. Dorman testified that the pills would potentiate the effect of alcohol and might cause a person to drop off to sleep. He explained that the pills are a relatively strong narcotic, combining a synthetic morphine and a tranquilizer. His testimony about the effect of combining alcohol with mepergan fortis is not disputed.

Under the statute, the issue is whether the claimant’s injuries were solely occasioned by intoxication. There is an affirmative presumption, relied on by the commission, that the injury did not result from intoxication. Ark. Stat. Ann. § 81-1324. Reading the two statutory sections together, we have held that “if the employer seeks to defeat recovery because of intoxication of the employee, the employer must not only prove that the employee was intoxicated, but the employer must go further, and prove that the death [injury] of the employee ‘was solely occasioned by intoxication.’ ” Cox Bros. Lbr. Co. v. Jones, 220 Ark. 431, 248 S.W. 2d 91 (1952).

Here the appellants insist that the statutory reference to intoxication must he taken to mean intoxication from narcotics as well as intoxication from alcohol. We cannot approve such a broad interpretation. Perhaps the argument would he sound if the narcotics were taken voluntarily as such, as by a drug addict. But construing the act liberally in favor of the claimant, we think it clear that the lawmakers’ reference to injuries caused solely by intoxication was not intended to include the effects of medication innocently taken upon the orders of a physician. It happens that here the consumption of alcohol contributed to the narcotic effect of the pills, but there is an abundance of substantial evidence to show that the alcohol was not the sole cause of the claimant’s condition.

One of the eases cited by the appellants confirms our conclusion. In State v. Glynn, 20 N.J. Super. 20, 89 A. 2d 50 (1952), a truckdriver was convicted of driving under the influence of intoxicating liquor upon proof that his condition was caused by a combination of drinking beer and taking benadryl capsules. The statute applied to a person “who operates a motor vehicle under the influence of intoxicating liquor.” Counsel for the defendant argued that the statute contemplated that intoxicating liquor should be the only cause of the prohibited condition. In rejecting that argument the court said: “Defendant would have the statute read: ‘A person who operates a motor vehicle while exclusively under the influence of intoxicating liquor . . .’ The Legislature has not so phrased the provision.”

By contrast, our legislature has so phrased the compensation law by denying compensation for injuries solely occasioned by intoxication. We conclude that the appellants failed to meet their burden of proving that the claimant’s injuries were solely due to intoxication.

We cannot sustain the appellants’ second argument, that compensation should be denied because Letsch was slightly off the most direct route from Kansas City to Springfield when the accident happened. The commission found no material deviation, saying: “Claimant was driving respondent’s truck and was going in the general direction of Springfield, Missouri, where his first stop was to be made. There is no evidence that claimant was on a personal mission.” We cannot say that the commission’s conclusion is not supported by substantial proof.

There is another issue — a minor one. The commission found a compensable permanent partial disability, even though Letsch was earning the same wages at the time of the hearing as he was before his accident. Such an award was upheld in Dockery v. Thomas, 229 Ark. 984, 320 S.W. 2d 257 (1959). We reasoned that what the claimant had earned for a short period of time after his injury did not prove that the commission was wrong in compensating him for the permanent injury to his body as a whole. We regard that decision as sound and reject the appellants’ insistence that it be overruled.

Affirmed.

Fogleman, J., concurs.

Harris, C.J., and Byrd, J., dissent.

John A. Fogleman, Justice.

I concur in the result, but I fear that the language of the majority opinion can and will be taken to mean that intoxication, under our workmen’s compensation act can only result from the use of alcohol. I do not feel that this is the intention sought to be expressed in the act. To me, the word intoxication, in the compensation act, should be taken to denote a condition produced by the voluntary ingestion or use of a substance, or substances, which alone, or in combination, impair the mental and physical faculties of an employee to the extent that he is incapable of carrying on his accustomed work without danger to himself. See definitions of “intoxicant,” “intoxicate,” “intoxicated” and “intoxication” in Webster’s New International Dictionary, Second Edition and Webster’s Third New International Dictionary. See also Reeves v. Carolina Foundry & Machine, 194 S.C. 403, 9 S.E. 2d 919; Commonwealth v. Schuler, 157 Pa. Super. 442, 43 A. 2d 646.

I certainly agree that there is substantial evidence to show that the alcohol consumed by appellee was not the sole cause of his condition, but I do not agree that this alone eliminates intoxication as the sole cause of his injury. I agree that there is evidence upon which the Workmen’s Compensation Commission could base a finding that Letsch did not know or suspect that the pills lie was taking upon the doctor’s prescription would cause intoxication, or would intensify the effects of alcohol ingested by him. I do not think that one can be said to have taken the intoxicating substance voluntarily unless he knew, or should have known, its possible effects.


author: Lyle Brown, Justice. John A. Fogleman, Justice.

text:
    Mary Husted, Adm’x, v. Mike Richards, et al
    5-4770
    436 S.W. 2d 103
    Opinion Delivered January 20, 1969

      Hardin & Rickard for appellant.

      McMillen, Teague, Bramhall & Davis for appellees.
   Lyle Brown, Justice.

Leonard Husted suffered fatal injuries when a remaining portion of a burned building fell on him during razing operations. His administratrix brought this suit against the demolition contractor, Mike Richards, and his bulldozer operator, Curtis Willis. The jury verdict favored the defendants and the administratrix appeals, alleging error in the giving and refusing of four instructions.

The deceased, age 73, worked occasionally for Mike Richards. He was not employed on the day of the accident. There were three workers on the job of tearing down the two-story Desota Cafe in Benton, which had been gutted by fire. Curtis Willis was demolishing the structure and loading the trucks with the use of a bulldozer and attachments. As the debris accumulated, Willis would load it on trucks operated by Alfred Whitfield and an unidentified driver.

Mr. Husted had been on the cafe premises the day before the accident. Assisted by Mike Richards, Husted loaded some of the loose brick in his truck. The next day Husted came on the premises shortly before noon. While Willis was in the process of loading Whitfield’s truck, Husted entered the building. From Ms position in the truck, Whitfield could see Husted using a sledge hammer and attempting to knock loose some two-by-four supports. After loading- Whitfield’s truck, Willis caught hold of a portion of the roof with the bucket of Ms loader. 'That entire portion of the roof fell. Some part of the falling debris pinned Mr. Husted. He made an outcry and the two workers immediately attempted rescue. Husted was dying when the employees reached him.

The administratrix contended that Leonard Husted was an invitee. The defendants insisted that he was a trespasser or at most a licensee. The trial court eliminated from the jury’s consideration the question of whether Husted was an invitee. Then the court gave defendants’ instruction defining licensee and treaspasser. The substance of the contentions on appeal is that the court should have submitted to the jury the question of Husted’s alleged status of an invitee and should not have permitted the jury to consider Husted as a possible treaspasser. Those contentions require an analysis of the evidence which sheds light on Husted’s status while in the building.

If Husted went upon the premises by invitation, express or implied, for a purpose connected with Richards’ operation, or for a purpose mutually beneficial to Husted and Richards, then Husted would have been an invitee. See AMI 1106. If Husted could have been classed as an invitee it would have to have been from three fragments of evidence: (1) He had theretofore been permitted to pick up scrap materials, such as bricks, at the jobsite; (2) when notified of the accident, Richards was said to have expressed regret that he ever consented for Husted to “get anything off the job”; and (3) Mrs. Husted testified that for his labors her husband was paid by Richards either in cash or in materials.

The fragmentary evidence we have recited was offered by the administratrix. Richards testified that on the day before the accident, when they were putting brick in Husted’s truck, he instructed Husted not to return for any more brick; that Richards considered it too dangerous. The bulldozer operator testified that on the day of and shortly before the accident he had warned Mr. Husted not to go near the building. The truck driver, Whitfield, was called as a witness by the administratrix. On cross-examination he testified that he told Mr. Husted that he (the driver) would not go into the building “for a hundred dollars.” He also testified that he saw Husted trying to knock out a two-by-four and yelled to him that he was going to weaken the structure.

Let us say, arguendo, that Husted had an implied invitation to pick up scrap materials around the jobsite, for which Richards would take credit as against Husted’s earnings. It is inconceivable that his invitation extended to entrance inside the building at a time when it was apparent to all present that the supporting walls were being dismantled. It has been held that when one crossed the boundaries of the invitation, “he ceased to be an invitee. His status then changes to that of a licensee or ¡even a trespasser.” Steinberg v. Irwin Operating Co., 90 So. 2d 460 (Fla. 1956).

We cannot say the court erred in holding’ as a matter of law that Husted was not an invitee. We think there was ample evidence to submit the question of whether he was a trespasser.

Affirmed.

Fogleman, J., dissents.

John A. Fogleman, Justice.

I respectfully dissent. The only question raised by appellant relates to the status of the deceased, Leonard Husted. No other issue is raised by the appellant affecting the standard of care measuring the duty owed by appellees to the decedent. I respectfully submit that there is evidence in the record from which inferences indicating that Husted was an invitee may reasonably be drawn. When this •evidence is considered in the light most favorable to appellant and all reasonable inferences favorable to appellant drawn therefrom, there was a jury question as to the status of appellant’s decedent. In considering this question, only those statements of appellees Richards and Willis adverse to them should be considered because their testimony cannot be considered as undisputed, and a jury might choose not to believe it.

The testimony showed substantially the following: Leonard Husted was a dragline and backhoe operator, and had worked in that capacity for appellee Richards, after he had partially retired and qualified for Social Security benefits. Sometimes he worked a week at a time and sometimes two or three days a week. Richards paid him in cash but on some occasions gave him used building materials. Husted made as much as $600 a year in addition to the materials. He had worked practically all the year 1967 for Richards. Hasted had told Richards sometime before Christmas that he was dae $195 and owed Richards $75 for material. Richards paid Hasted a total of not more than $300 daring 1967.

Husted received a call from Richards on the night before his death. He was familiar with a machine belonging to Richards which had been damaged while rented to someone else. Richards asked Hasted to come to his office to talk to an insurance adjaster, daring the morning before his fatal injury, which he did. Although he remained there from 8:00 a.m. to 10:00 a.m. on the day of his death, the adjaster did not ask him any questions. Richards did not pay Hasted anything for the time thus spent or for his expense in coming there. He had told Hasted that he could take the machine and dig a ditch across a road where Richards wanted to put a pipe. Hasted left Richards’ office and reached the demolition site daring the morning.

Richards had previously given Hasted permission to go to the demolition site and get scrap lumber and materials. Hasted had gathered materials there for a day or two prior to the date he was killed. This was known to Richards, who had even helped load material on Husted’s truck on the day before.

After lunch on the day of fatal injury Husted came back onto the premises carrying a sledge hammer. He stood talking to appellant Curtis Willis, the loader operator, for about five minutes, while holding the sledge hammer. Willis then proceeded to a track driven by Whitfield some 20 feet from the building, and Hasted went into the building. Whitfield saw Hasted trying to knock out two-by-fours, and did not know what there could have been to prevent Willis from seeing him. Whitfield did not see Hasted come oat of the building. Daring the 15-minute period Hasted was in the building, he was seen throwing a two-by-four oat a second-story window by one Claude Sutton, who was watching from across the street. Willis told a police officer that he had told Husted to get down out of the building right before he ran into it.

It was certainly reasonable to infer that Richards wanted to have the services of Hnsted readily available and knew that permitting him to salvage building material would help to accomplish this purpose. This was certainly to the mutual benefit of the parties. It might well have been inferred that the permission to salvage these materials was compensation to Hnsted for the two hours spent at Richards’ office or for the dragline work Richards wanted done. An inference that Willis knew that Hnsted had gone into the bnilding after their post-lunch conversation would not be unreasonable. Certainly Whitfield knew that Hnsted was in the building.

It is not proper for us to consider testimony of either Richards or Willis in determining whether there was a limitation or termination of the invitation. We are to determine whether there was evidence from which a finding could have been made that Hnsted was an invitee, even though we might think there was a preponderance of contrary evidence.

I would reverse and remand for a new trial.