author: Jim Johnson, Associate Justice.

text:
    Scott v. Slaughter.
    5-3142
    373 S. W. 2d 577
    Opinion delivered December 16, 1963.
    [Rehearing denied Jan. 20, 1964.]

      Daggett $ Daggett, for appellant.

      John D. Tlnoeatt, Cooper Tlnoeatt, for appellee.
   Jim Johnson, Associate Justice.

This appeal involves the respective riparian rights of appellant L. W. Scott, the upper proprietor, and appellee H. H. Slaughter, the lower proprietor, in the waters of Roc Roe Bayou.

Appellant is the owner of approximately 1,440 acres of land lying immediately north of a tract of approximately 960 acres of land owned by appellee in Prairie and Monroe Counties.

Roc Roe Bayou heads at Roc Roe Lake near the north boundary of appellant’s land and courses in a southerly direction through the lands of both appellant and appellee. Except for its own fairly insignificant watershed, Roc Roe Bayou is fed by the waters of White River which fills Roc Roe Lake and from there enters Roe Roe Bayou. In addition to the White River waters, Roc Roe Bayou is fed by a tributary, Honey Creek, which enters Roc Roe Bayou from the northwest at a point on appellant’s land about a mile from the bayou’s head and about one-half mile north and upstream from appellee’s north property line. The bayou then meanders southerly some twenty miles to a point near the community of Roe, Arkansas, where it empties back into White River.

Without obstruction the waters of White River running through Roc Roe Lake would enter Roc Roe Bayou when the river reached a stage of 17 feet on the Clarendon gauge. Honey Creek has a rather large watershed of some 18,500 acres. The waters from this creek empty into Roc Roe Bayou.

Appellant has constructed three dams on the portion of Roc Roe Bayou which traverses his land. We here refer to them as the north, middle and south dams. The middle dam was constructed across the bayou at a point about 100 feet north of and upstream from the confluence of Honey Creek with Roc Roe Bayou. This dam was constructed with a spillway which permitted all river water above a stage of 19 feet on the Clarendon gauge to pass over the dam except the comparatively slight amount of water necessary to raise the level of the water behind the dam to the river level. The north dam is a low water dam and was constructed at the entrance of the White River waters into Roc Roe Bayou at the point where Roc Roe Bayou connects to Roc Roe Lake. This dam is also constructed to a height which permits the river waters to flow over it when a stage of 19 feet is reached on the Clarendon gauge. Its purpose is to trap and impound the river water between the north dam and the middle dam so as to prevent the northward drainage of the impounded waters when the water level of White River, and in turn Roc Roe Lake, is below 19 feet.

The south dam is several feet lower than the middle dam and was constructed across the bayou at a point on appellant’s land about one-half mile south and downstream from the confluence of Honey Creek and about 150 feet from the north boundary line of appellee’s lands.

Roc Roe Bayou as well as Honey Creek are somewhat intermittent streams and run dry during periods of little rainfall.

Both appellant and appellee operate commercial hunting and fishing facilities on their respective premises. Appellee does not now impound water on luis premises. This action was brought by appellee contending that appellant’s impoundments constitute an unreasonable use of the water, depriving him of waters which otherwise would have flowed through his lands, and prayed that a mandatory injunction issue requiring removal of the dams and that he be given judgment for damages.

Trial upon the merits resulted in a finding for appellee. This decree was vague as to specific relief but was clear as to the principal points in controversy. The court found that appellant’s use of the water was unreasonable and directed the removal or lowering of the dams. All claims for damages were denied. From such decree comes this appeal. Appellee does not cross appeal from that part of the decree denying damages.

For reversal appellant urges that the trial court erred in holding that appellant’s use of the water was unreasonable.

Prior to the decision of this court in Harris v. Brooks, 225 Ark. 436, 283 S. W. 2d 129, there was considerable confusion as to the law in this jurisdiction relative to the right to use water. In that case the court determined that the Reasonable TJse Theory should control. This theory was explained as follows:

“This theory appears to be based on the necessity and desirability of deriving greater benefits from the use of our abundant supply of water. It recognizes that there is no sound reason for maintaining our lakes and streams at a normal level -when the water can be beneficially used without causing unreasonable damage to other riparian owners. The progress of civilization, particularly in regard to manufacturing, irrigation, and recreation, has forced the realization that a strict adherence to the uninterrupted flow doctrine placed an unwarranted limitation on the use of water, and consequently the courts developed what we now call the reasonable use theory. This theory is of course subject to different interpretations and limitations. In 56 Am. Jur., page 728, it is stated that “The rights of riparian proprietors on both navigable and unnavigable streams are to a great extent mutual, common, or correlative. The use of the stream or water by each proprietor is therefore limited to what is reasonable, having due regard for the rights of others above, below, or on the opposite shore. In general, the special rights of a riparian owner are such as are necessary for the use and enjoyment of his abutting property and the business lawfully conducted thereon, qualified only by the correlative rights of other riparian owners, and by certain rights of the public, and they are to be so exercised as not to injure others in the enjoyment of their rights.’ It has been stated that each riparian owner has an equal right to make a reasonable use of waters subject to the equal rights of other owners to make the reasonable use (U. S. v. Willow River Power Co., 324 U. S. 499, 65 S. C. 761, 89 L. Ed. 1101). The purpose of the law is to secure to each riparian owner equality in the use of water as near as may be by requiring each to exercise his right reasonably and with due regard to the rights of others similarly situated. (Meng v. Coffey, 67 Neb. 500, 93 N. W. 713, 108 Am. St. Rep. 697).”

While this court unhesitating^ embraced the reasonable use theory in the Harris case, supra, it took occasion to caution “that we are not necessarily adopting all the interpretations given it [the reasonable use theory] by the decisions of other states, and that our own interpretation will be developed in the future as occasions arise.” However, the following general rules and principles were declared to be the law in this state:

“(a) The right to use water for strictly domestic purposes—such as for household use—is superior to many other uses of water—such as for fishing, recreation and irrigation.

“(b) Other than the use mentioned above, all other lawful uses of water are equal.

“Some of the lawful uses of water recognized by this state are: fishing, swimming, recreation, and irrigation.

“(c) When one lawful use of water is destroyed by another lawful use the latter must yield, or it may be enjoined.

“ (d) When one lawful use of water interferes with or detracts from another lawful use, then a question arises as to whether, under all the facts and circumstances of that particular case, the interfering use shall be declared unreasonable and as such enjoined, or whether a reasonable and equitable adjustment should be made, having due regard to the reasonable rights of each. ’ ’

From a careful review of the voluminous record presented in the present not uncomplicated case we have determined that an equitable application here of the rules set out above demands that appellant’s north and middle dams be lowered to a level which will permit the waters from White River and/or Roc Roe Lake, after filling the reservoir created by the dams, to pass over such dams or spillways when the Clarendon gauge shows a stage in excess of 17 feet. As to the south dam, it is virtually undisputed that it only requires a trace of rain to fill the reservoir behind this dam and that once full all water falling in the Honey Creek watershed passes over the spillway and through appellee’s land—add to this the increased flow which will result from lowering the north and middle dams—the conclusion cannot be escaped that the south dam need not be lowered.

To the extent here stated, it follows that the trial court’s decree is modified and affirmed. Accordingly the cause will be remanded for the entry of orders consistent with this opinion.

McFaddin, J., not participating.


source: Caselaw Access Project

author: Frank Holt, Associate Justice.

license: Public Domain

text:
    Cecil v. Headley.
    5-3097
    373 S. W. 2d 136
    Opinion delivered December 16, 1963.

      Shaver, Tackett & Jones, Larey & Larey, for appellant.

      Shaw & Shcm, Ben Core, for appellee.
   Frank Holt, Associate Justice.

The appellees brought this action against the appellant for the recovery of damages caused by a fire allegedly started by appellant on his property and permitted by him to get out of control and spread to appellees’ lands. There are several appellees owning the lands which together aggregate 475 acres. Liability was denied by the appellant and upon a jury trial the appellees were awarded damages totaling $5,-466.00. On appeal appellant relies for reversal upon five points.

The first point appellant urges for reversal is that Ark. Stat. Ann. § 50-104 (1947) is not applicable to the case at bar because it has been superseded by sub-section seven (7.) of Ark. Stat. Ann. § 41-507.

Appellant contends that from the interrogatories propounded to and as answered by the jury his liability was plainly fixed under the provisions of Ark. Stat. Ann. § 50-104, or a non-existent statute. It is appellees’ contention, however, that under their pleadings, the facts in the case, and the interrogatories submitted by agreement to the jury that the appellant was liable under Ark. Stat. Ann. § 50-104, the common law, and, also, Ark. Stat. Ann. § 41-507 et seq. Accepting as true the contention of appellant that his liability was fixed by the jury under the provisions of Ark. Stat. Ann. § 50-104, we do not agree with him that this 1875 Act was repealed or superseded by the 1935 Act [Ark. Stat. Ann. § 41-507-514], This later act deals primarily with the preservation of the forests of our state by virtue of its criminal liability provisions, although it provides for double damages by civil action. Armstrong v. Lloyd, 230 Ark. 226, 321 S. W. 2d 380; Lamb v. Hibbard, 228 Ark. 270, 306 S. W. 2d 859. This act contains numerous conditions which constitute misdemeanor or felony violations. Although the 1935 Act provides for criminal liabilities and double damages and the 1875 Act provides only for civil remedies, there is no conflict or repugnancy between these two acts. In 1946, or eleven years after the enactment of Ark. Stat. Ann. § 41-507-514, we recognized the 1875 Act [Ark. Stat. Ann. § 50-104] as being a valid and subsisting act. Swearengen v. Johns, 210 Ark. 119, 194 S. W. 2d 445.

The appellant next contends that the court erred in permitting appellant’s conviction under Ark. Stat. Ann. § 41-507 to be considered on the issue of liability to all the plaintiffs. The appellant had been charged and convicted of a misdemeanor under this statute with only appellee Gilley being the prosecuting witness. Cecil v. State, 234 Ark. 129, 350 S. W. 2d 614. Appellant contends that evidence of this undisputed conviction should be limited to appellee Gilley only and should not be considered on the issue of liability to the remaining appellees. Ark. Stat. Ann. § 41-511 provides:

“Conviction prima facie evidence in civil action.— Conviction for violation of [this act] * * * shall be prima facie evidence of responsibility in civil action to recover damages * *' V’

The court permitted evidence of appellant’s conviction to be admitted without restriction and gave the Court’s Instruction No. 9 which reads as follows:

“A conviction for violation of allowing fire to escape or to spread to tlie lands of any person other than ’the builder of the fire shall be prima facie evidence of responsibility to recover damages.”

Another portion of this act, Ark. Stat. Ann. § 41-510, provides:

“Damages to be recovered in civil action.—Persons, firms or corporations starting or being responsible for fires that occasion damage to any other person shall make satisfaction in double damage to the party injured. Damages are to be recovered by civil action. ’ ’ [Emphasis supplied.]

We think that it was the intention of the Legislature that where the same fire is the basis for a criminal conviction and then the basis for a later suit for civil damages, such conviction is admissible in civil actions not only in behalf of the prosecuting witness in the criminal case, but also in behalf of “any other person” suffering damages from the same fire. In this case the same fire was the basis for the criminal conviction as well as the multiple suits for civil damages.

The appellant further urges for reversal that the Court’s Instructions No. 12 and 12A erroneously deal with the joining and non-joining landowners as being in the same class. The 475 acres involved in this litigation form a block of lands located in four sections. It includes forested lands, cut-over lands, brush lands, and grass lands. Only a part of the damaged property adjoins appellant’s land, however, all of the property involved is contiguous. There is ample authority to the effect that it is not necessary that property abut or have a common boundary line to come within the meaning of a statute when the words “joining” or “adjoining” are used. We construed the word “adjoining” in the case of City of Little Rock v. Katzenstein, 52 Ark. 107, 12 S. W. 198 (1889). There it was contended that a lot was not “adjoining” because it did not abut upon or have a common boundary with a street. The court there said:

(¡is =» =::= property adjoining the locality to be affected is any property adjoining or near the improvement which is physically affected, or the value of which is commercially affected, directly by the improvement, to a degree in excess of the effect upon the property in the city generally.”

See, also, Matthews v. Kimball, 70 Ark. 451, 66 S. W. 651; Board of Improvement Dist. No. 5 v. Offenhauser, 84 Ark. 257, 105 S. W. 265; Freeze v. Improvement Dist. No. 16 of City of Jonesboro, 126 Ark. 172, 189 S. W. 660.

In the case at bar we are of the opinion that there was such a unity of the tracts of land, a part of which adjoins appellant’s land, that it could be reasonably foreseen such lands would be affected or damaged by this particular fire set by the appellant. Further, Ark. Stat. Ann. § 50-104 clearly provides in the first sentence that:

“If any person shall set on fire any grass or other combustible material within his inclosures, so as to damage any other person, such person shall make satisfaction in single damages to the party injured, * * [Emphasis supplied.]

It is the latter part of this statute which provides for notice to adjoining landowners and, by this language, we do not construe the statute to limit liability only to adjoining landowners. To hold otherwise would be an unreasonable construction of this statute.

Further, it appears that there was no specific objection on this point made to these instructions. It is well settled that where a specific objection is not made in the Trial Court to an instruction not inherently erroneous we cannot first consider it on appeal. Stockton v. Baker, 213 Ark. 918, 213 S. W. 2d 896; Vogler v. O’Neal, 226 Ark. 1007, 295 S. W. 2d 629; Holimon v. Rice, 208 Ark. 279, 185 S. W. 2d 927.

Appellant also contends that:

“It was error for the Court to rule on testimony and to formally instruct the jury that the damages for loss of personal property are to be based on the value of the use of the personal property to the owner.”

The appellant specifically complains about the admissibility of appellee Ward’s testimony as to the value of certain items of his personal property destroyed by the fire. Ward first placed their value at $1,000.00 to him and on cross-examination he could only justify their value at $145.00. The personal items were a radio, four bedsteads, ice box, table, heater, cook stove, phonograph, pants and shirts. Appellant contends that the market value or replacement cost is the true test. We find no merit in appellant’s contention. The measure of damages for marketable chattels possessed for purposes of sale is their value as determined by the market price, but the measure of damages for chattels possessed for the comfort and well-being of their owner is not based on value in a secondhand market but on the value of their use to the owner who suffers from their deprivation. Featherston v. Hartford Fire Ins. Co., (Ark. 1957) 146 F. Supp. 535; Kimball v. Goldman, 117 Ark. 446, 174 S. W. 1185; Phillips v. Graves, 219 Ark. 806, 245 S. W. 2d 394; Farm Bureau Mutual Ins. Co. of Ark., v. Cusick, 235 Ark. 27, 356 S. W. 2d 740.

There is, also, another answer to this contention. Appellee Ward sought recovery of $3,044.00 for his total damages. On appeal the appellant only questions the value as to the personal items. Since the jury awarded $1,500.00, or $1,544.00 less than sought, it cannot be said that the prejudicial error resulted. There was sufficient evidence of damages to items other than personal property to constitute the basis for the jury’s total award and, thus, any error was rendered harmless.

The appellant further urges for reversal that:

“The instructions, when read as a whole, are conflicting, confusing, and repetitious.”

We find no merit in this contention. The Court’s Instruction No. 1 provides in pertinent part as follows:

“If, in these instructions any rule, direction or idea be stated to you in varying ways, any emphasis thereon is not intended by me, and none must be inferred by you. For that reason you are not to single out any certain instruction against the others, but you are to consider all of the instructions, and regard each in the light of the other.”

We have carefully reviewed appellant’s contention and we are of the opinion that upon consideration of the instructions as a whole and each in the light of the other the instructions fairly and adequately enunciated the law in the case at bar. Wright v. Rochner, 233 Ark. 50, 342 S. W. 2d 483.

The appellees urge on cross-appeal that as a matter of law they were entitled to double damages and the Trial Court was in error in not awarding double damages notwithstanding the jury’s verdict. We cannot agree. Upon a review of this record we do not find that the appellees specifically sought double .damages in their pleadings. Oil Fields Corp. v. Cubage, 180 Ark. 1018, 24 S. W. 2d 328. This statute [Ark. Stat. Ann. § 41-510] providing for double damages, being penal in nature, must be strictly construed and no one can invoke its benefits who does not bring himself strictly within its terms. Missouri Pacific R. Co. et al v. Lester, 219 Ark. 413, 242 S. W. 2d 714; Lamb v. Hibbard, 228 Ark. 270, 306 S. W. 2d 859.

The judgment is affirmed both on direct and cross-appeal.

       “Actions for damages by fire—Notice of setting fire—Effect.— If any person shall set on fire any grass or other combustible material within his inclosures, so as to damage any other person, such person shall make satisfaction in single damages to the party injured, to be recovered by civil action, in any court having jurisdiction of the amount sued for; but if any such person shall, before setting out fire, notify those persons whose farms are joining said place which he proposes to burn that he is going to fire such grass or other combustible matter, and shall use all due caution to prevent such fire from getting out, to the injury of any other person, he shall not be liable to pay damages as provided in this section. [Act Feb. 3, 1875, No. 48, § 5, p. 128; C. & M. Dig., § 10323; Pope’s Dig. § 1298.]”

       “Forest fires—Allowing fire to escape—-Burning brush or debris—Camp fires—Destroying fire warning notices—Duties of state forestry commission — Burning new ground — Penalties.—* . * * 7. Anyone desiring to burn any new ground, field, grass lands or woodlands adjoining woodlands or grasslands of another, shall if such lands lie within the boundaries of a forest protection unit, a National Forest or any other area that has organized fire protection, report to the protection agency the time that he intends to burn his lands and the location of the same before he starts his fire. Failure to do this shall constitute a misdemeanor. [Acts 1935, No. 85, 8 1, p. 209; Pope’s Dig., § 3049.]”

       “You are instructed, if any person shall set on fire any grass or other combustible material within his enclosures, so as to damage any other person, such person shall make satisfaction in single damages to the party injured, to be recovered by civil action in any court having jurisdiction of the amount sued for; but if any such person shall, before setting out fire, notify those persons whose farms are joining said place which he proposes to burn that he is going to fire such grass or other combustible matter, and shall use all due caution to prevent such fire from getting out, to the injury of any other person, he shall not be liable to pay damages. So if you find from a preponderance of the evidence that the defendant, Belton Cecil, set on fire any grass or other combustible material within his enclosure without giving notice thereof, before setting the fire, to persons whose farms joined the defendant’s where he proposed to burn, that he, Belton Cecil, was going to fire such grass or other combustible material, or that Belton Cecil failed to use all due caution to prevent such fire from getting out, to the injury of these plaintiffs, and that either or both of such failures, if you so find, caused damages to one, some or all of these plaintiffs, then your verdict will be against the defendant Belton Cecil and in favor of such plaintiffs as you so find were damaged, if any.”

       “The statute requires both the giving of the notice and the use of due caution in preventing the fire from spreading. If the notice is not given as required by law, the use of due caution in preventing the fire from spreading becomes unavailing as a defense to the action.”

       Court’s Instruction No. 17: “Should you find for the plaintiffs, the Court instructs you that the values of the articles of personal property that were destroyed were the reasonable values of the use of the property to the plaintiffs, and you will not necessarily accept values as fixed by the owners of the property; and it will he proper for you to consider the reasonableness of the values as testified to by the plaintiffs, the purchase price of each article of property, when it was purchased, the use to which it has been put, and the condition of the property at the time it was destroyed.”


author: E. DeMatt Henderson, Special Associate Justice. George Bose Smith, J.,

text:
    American-Canadian Oil & Drilling Corp. v. Aldridge & Stroud.
    5-3059
    373 S. W. 2d 148
    Opinion delivered December 16, 1963.

      Joel B. Dickinson, Baton Rouge, La., Conley Byrd, for appellant.

      Mehaffy, Smith, Williams, Friday & Bowen, and D. D. Panich, for appellee.
   E. DeMatt Henderson, Special Associate Justice.

This appeal is a sequel to the case of Aldridge & Stroud, Inc. v. American-Canadian Oil & Drilling Corp., 235 Ark. 8, 357 S. W. 2d 8, and reference is made to such former opinion for certain of the basic facts involved in this appeal. Upon the remand required by that decision, Ur. D. D. Panich and the law firm of Mehaffy, Smith & Williams (who jointly will bo designated The Attorneys) petitioned the Chancery Court for allowance of attorneys’ fees and expenses incident to their representation of appellant, American-Canadian. William T. Foran and Mrs. Kay Van, the parties whose claims to the oil properties were sustained in onr former opinion, resisted such petition by respectively filing a Response and a Brief in Opposition; and appellant filed an extensive answer denying the propriety of any fee.

Following hearings held on July 9 and November 27, 1962, the Chancellor on December 13, 1962 entered a comprehensive decree which again fully adjudicated the rights of the nine separate parties to this complex litigation; and in addition granted The Attorneys’ petition and fixed their fee at $30,000.00 for services rendered appellant, and awarded Aldridge & Stroud judgment on its note (which our former decision held valid) in the sum of $89,842.50, based upon principal of $75,000 plus accrued interest and an award of $7,500 for attorneys’ fees. Only American-Canadian has appealed and for reversal urges that The Attorneys should be denied any fees because they represented conflicting interests in appearing as solicitors for both appellant, as the maker of the note, and Aldridge & Stroud, as its holder, and further that the award of attorneys ’ fees to Aldridge & Stroud was violative of public policy. Appellant does not now question the amount of either of the fees awarded, hut asserts it was error to award any fees.

The primary question for determination is whether The Attorneys did, either in fact or as a matter of law, represent conflicting interests by acting in their dual capacity as attorneys for appellant and Aldridge & Stroud, for if such were the case we would unhesitatingly hold that they thereby forfeited all rights to any compensation. No rule of law is more firmly established than that—“A fiduciary relationship exists between attorney and client, and the confidence which the relationship begets between the parties makes it necessary for the attorney to act in utmost good faith.” Norfleet v. Stewart, 180 Ark. 161, 20 S. W. (2) 868. This high fiduciary relationship positively precludes attorneys from representing conflicting interests as was well stated in Silbiger v. Prudence Bonds Corporation, 180 Fed. (2) 917, where Judge Learned Hand observed: ‘ ‘ Certainly by the beginning of the Seventeenth. Century it had become a commonplace that an attorney must not represent opposed interests; and the usual consequence has been that he is debarred from receiving any fee from either, no matter how successful his labors. Nor will the court hear him urge, or let him prove, that in fact the conflict of his loyalties has had no influence upon his conduct; the prohibition is absolute and the consequence is a forfeiture of all pay.”

This Court in Norfleet, supra, quoted with approval from Baker v. Humphrey, 101 U. S. 494, where it was said, “Courts of Justice can best serve both the public and the profession alike by applying firmly upon all proper occasions the salutary rules which have been established for their government in doing the business of their clients.” Being mindful of these commendable and indeed essential rules and the duty of courts firmly to enforce them we have reached the conclusion that in this case The Attorneys did not represent conflicting interests.

There áre undoubtedly situations where the active practicing attorney may properly appear for more than a single client without in any manner being placed in a position of divided loyalty, or be exposed to the temptation to conciliate rather than vigorously espouse the rights of the clients he represents. This is particularly true of litigation not strictly inter partes such as probate proceedings, corporate reorganizations, bills of inter-pleader, and indeed litigation of this very type which was so accurately characterized in our former opinion as a “free-for-all receivership.” In Deupree v. Garnett, 277 P. 2d 168 the Oklahoma court quoted with approval from 7 CJS, Attorney and Client, Section 47, as follows: ‘‘ However, it is not inconsistent with the status or office of attorney that he represents different interests which are not actually adverse in the sense that they conflict or are hostile. Mere possibility that different interests represented by an attorney might develop a conflict is not sufficient to disqualify him.”

This Court has twice recognized that in actions on notes an attorney does not, as a matter of law, represent conflicting interest by acting for both the holder and the maker of a note who admits the validity of the obligation. In the early case of Wassell v. Reardon, 11 Ark. 705, the defendant maker gave to plaintiff’s attorney a power to confess judgment and the resulting judgment was upheld. Again in Houpt v. Bohl, 71 Ark. 330, 75 S. W. 470. the defendants authorized plaintiffs’ attorney to waive service of summons and enter their appearance and consent to judgment which this Court then sustained. So it cannot be held, as a matter of law, that The Attorneys in this case had a conflict of interest simply because they represented both appellant as maker and Aldridge & Stroud as holder of the note.

In determining whether, in fact, there was a conflict of interest we have tested the dual representation against the conduct prescribed by the Canons of Professional Ethics of The American Bar Association, which we adopted April 24, 1939, the applicable Canon being No. 6 which specifies:

“It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.”

Adapting this Canon to the situation under review, the question is presented:

Did The Attorneys represent conflicting interests when as attorneys for Aldridge & Stroud it was their duty to' contend that the note it held was valid, while their duty as attorneys for American-Canadian required them to oppose such contention?

To decide this important question it is necessary to refer to certain facts reflected by the record filed herein on the former appeal. If we could not do so the present appeal would necessaidly have to be summarily dismissed without any consideration of the merits of appellant’s contentions. Aside from formal portions and matters not relating to the question of conflict of interest, the transcript filed with this present appeal contains only The Attorneys Petition for Pee, the appellant’s Answer denying liability, and the Response to said Answer, none of such pleadings being verified; and the decree of the learned Chancellor which recites that the lower court considered in reaching its decision not only the pleadings and trial briefs filed but also “the evidence adduced on behalf of the parties.” Appellant not having included such evidence in the present record before us, we would be required to affirm under the well established rule that requires affirmance in such a situation, unless there be error reflected on the face of the record, and, as we have determined, no such apparent error appears.

While routinely all appeals are assigned different numbers by our Clerk, the decree now appealed from was entered in the same numbered case below; that portion of the decrees allowing the Aldriclgo-Stroud intervention was in obedience to our mandate in the former appeal; and on this present appeal in this same cause we need not close our eyes to what was filed in this Court in the prior appeal since “the former transcript is still before us, and the Court takes notice of its contents.” Gans v. Holland 37 Ark. 483; Stueart Wholesale Grocery v. N. Sauer Milling Co. 201 Ark. 1185, reported only in 143 S. W. (2) 546. Rules of Supreme Court No. NV1.

"We thus can proceed to examine the true relationship which existed between appellant and Aldridge & Stroud in the proceeding below in which The Attorneys represented both these parties. The Attorneys representation of appellant continued even after Mr. Ranich received a letter of discharge dated July 9, 1960, which was promptly reported to the Court, and at the start of the actual trial of September 13, 1960, it was announced in open court, with appellant’s President present, that the late Mr. J. Hugh Wharton was also now associated with The Attorneys as counsel for appellant. It is interesting to note that Mr. Wharton filed briefs on the first appeal for both appellant and the intervenor, Mrs. Kay Van, who claimed and ivas awarded an interest in appellant’s properties and noting his dual employment in his brief stated: ‘ ‘ There ivas no conflict of interest between American-Canadian and Mrs. Kay Van, as a matter of fact it was understood that the corporation ivas justly indebted to Mrs. Van and wanted her to recover her moneys.” Mr. Wharton, appellant’s former attorney, succinctly stated The Attorneys position here.

It is clear that at all stages appellant has concurred in and actively supported the contention Aldridge & Stroud made in its Intervention that the note it held was a just claim. In a deposition taken February 25, 1960, when questioned by attorneys desiring to invalidate the note, appellant’s President, Mr. T. E. Robertson, testified that the execution of the note ivas duly authorized by appropriate corporate action, was supported by a true consideration, and constituted a valid, binding and enforceable obligation; and in this he was corroborated by the deposition of appellant’s Secretary. At the trial on October 25, 1960, when called to the stand and examined closely by several adversary attorneys also desiring to upset the note, Robertson reaffirmed his position that the note was valid in every respect.

The only persons who at any time asserted any contentions opposed to those of Aldridge & Stroud were the various other parties no longer involved in this litigation, such as Crabtree, Foran, Nielson, Mrs. Van and Mrs. Roberts, whose interests in defeating the note and thereby enhancing the value of their claims were real, and whose opposition ivas genuine and vigorous. These rival claimants to appellant’s property all asserted that the note ivas invalid; but they, and only they, opposed the allowance of -the Intervention of Aldridge & Stroud, while appellant supported it.

Indeed, these rival claimants even intimated that appellant’s President had joined forces with Mr. Stroud, a director of appellant, and President of Aldridge & Stroud, to create a fictitious indebtedness to their detriment. The Chancellor tacitly agreed and disallowed the note for want of consideration and on the former appeal we reversed on the basis of appellant’s own testimony “that the note and assignment were legal and valid in every respect” as contended by Aldridge & Stroud.

Appellant relies principally upon Strong v. International Building, Loan & Investment Union (1889) 183 Ill. 97, 55 N. E. 675, and asserts in its brief that such case deals “with this same problem;” but there is vital distinction between that case and the one at bar. In Strong the attorney for the court appointed receiver also represented the Union in receivership, and the Illinois court pointed out that Strong admitted in his testimony, “that the Union was antagonistic to the receivership.” This, of course, created a true case of conflicting 'interests and denial of any fee was proper.

In this case at no time since Aldridge & Stroud first presented their claim through an Intervention filed by The Attorneys on July 11, 1957, did appellant become antagonistic to the allowance of such claim; but in stark contrast The Attorneys bottomed their case upon appellant’s support of their contentions. As distinguished from the assertion of adverse contentions The Attorneys two clients testified in harmony. With such harmony, mutuality and unity characterizing the positions of their two clients we have no difficulty in deciding that The Attorneys never encountered any conflict in the duties owed to either.

The record further reveals sufficient facts to justify affirmance upon the ground that appellant by long acquiescence, with knowledge of the dual employment, waived any right to object (see 52 A.L.E. (2) at 1268) ; but we prefer to base our affirmance of the fee award for their representation of appellant upon the specific holding that The Attorneys did not represent conflicting interests since it never became their duty on behalf of Aldridge & Stroud to contend for that which duty to appellant required them to oppose.

Appellant also asserts that the trial court erred in awarding attorneys’ fee in favor of Aldridge & Stroud as authorized by the terms of its note. The basis for this contention as stated by appellant is that since the attorney represented conflicting interests it would be ‘ ‘ against public policy for them to be awarded a fee to be paid from the pocket of American-Canaclian. ”

What we have held with regard to the alleged conflict of interest leaves for consideration only the question as to whether the allowance of a fee to the note holder in this instance violates some “public policy.” In their brief appellant states: ‘ ‘ Counsel for appellant have been unable to find a case in point, but sound logic would dictate that the law should be such ...”

The maker was involved in a New York bankruptcy proceeding, had no assets other than the properties involved in this suit, and the only conceivable way the holder could hope to collect was to perfect its claim to a lien upon the properties in the “free-for-all receivership” in the Chancery Court. To clo this Aldridge & Stroud had to employ attorneys, and we have held that the selection of the attorneys involved was proper. Although the attorneys had the cooperation of the maker they did not have smooth sailing. Other claimants to the properties aggressively opposed their claim, the Chancellor denied it, and they finally prevailed only by successfully prosecuting an appeal to this Court.

Our holding in the first opinion that the note and its supporting assignment or mortgage were enforceable obligations becomes the law of the case. Meyers v. Meyers, 214 Ark., 273, 216 S. W. (2d) 54. The provision of the note for an award of attorneys ’ fees not exceeding ten per cent, cannot be seprated from its other provisions and is now enforceable in Arkansas. Ark. Stats. Ann. 68-910. We can perceive of no public policy which precludes Aldridge & Stroud from obtaining the benefit of this provision contained in a note which the law of the case holds valid, when the realities of the case required they be represented by attorneys to enforce their claim.

Appellant does not question the amount awarded; and in our opinion cannot on this appeal for the first time question the validity of the award. When the case was remanded with directions to allow the note as a valid claim the only action required of the Chancellor was to compute the amount of the Aldridge & Stroud judgment and then enter an appropriate decree. It is apparent that appellant did not question before the Chancellor the inclusion of an attorney's fee in such computations.

When following remand The Attorneys petitioned for a fee for services rendered to appellant it promptly filed a detailed and extensive answer and protest; but in such lengthy pleading no objection is made, even indirectly, to the inclusion of an attorney’s fee in the Aldridge & Stroud judgment. Nor was any pleading ever filed directly objecting to an attorney’s fee to Aldridge & Stroud. The proceedings at the two hearings held prior to the entrance of the questioned decree are not shown. All that the record before us contains relating to the Aldridge & Stroud judgment is (a) the intervention with its prayer for attorney’s fees, (b) the mandate which issued upon the former appeal, (c) and the decree now under review. The record is thus completely silent as to any objection to the $7,500.00 fee having been made at any time before the lower court.

Conversely the record does strongly indicate that appellant actually consented and initially agreed to. the attorney’s fee included in the Aldridge & Stroud judgment.

Appellant has designated as part of the record on appeal the Chancellor’s docket entry made contemporaneously with entrance of the decree, and such appears at page 26-A of the transcript and reads, “Decree as per precept filed this day by consent of all parties, except, American-Canadian Oil & Drilling Corp. excepts to any amount of attorney fee to Mohaffy, Smith & Williams and D. D. Panich over and above the amount of $15,-000.00. And notice of appeal given as to the balance of the fee in the sum of $15,000.00.” (Italics added). The first notice of appeal filed January 4, 1963 corroborates tlie docket, entry and did not question tlie Aldridge & Stroud judgment. By an amended notice of appeal, timely filed by different attorneys, appellant appealed generally from the decree of December 13, 1962 and in the designation of points to be relied upon for the first time assert error in the inclusion of attorneys’ fees in the Aldridge & Stroud judgment. In view of the cases concerning the efficacy of docket entries, we cannot conclusively say that the Aldridge & Stroud judgment was entered by consent, in which case it would not be appeal-able, since the decree itself does not so recite. Herrod v. Larkins, 183 Ark. 509, 36 S. W. (2d) 667; City of Monticello v. Kimbro, 206 Ark. 503, 176 S. W. (2d) 152; Pittsburg & St. Louis R.R. Co. v. Johnson, 93 N.E. 683.

We do conclude that there being nothing in the record filed in this Court to show that the issue of the allowance of attorneys’ fees to Aldridge & Stroud was raised in, or considered by, the trial court, this Court Constitutionally vested only with appellate and supervisory jurisdiction cannot consider such issue for the first time on appeal. Missouri Pacific R.R. Co. v. Myers Commission Co., 196 Ark. 976, 120 S. W. (2) 693.

The decree of the lower court is affirmed.

Ward, J. not participating.

George Bose Smith, J., dissents in part.

George Bose Smith, J.,

(dissenting in part). With respect to the main issue, the $30,000 fee, I agree that there was no conflict of interest in The Attorneys’ representation of both American-Canadian and Aldridge & Stroud in their common fight against third persons. But I do think that a conflict of interest was foreseeable, and in fact has arisen, with respect to the $7,500 fee that is being allowed for the services of The Attorneys in handling the claim of one of their clients, Aldridge & Stroud, against another client, American-Canadian.

It will he remembered that Aldridge & Stroud held American-Canadian’s note for $75,000. The note bound the maker to pay a 10 percent attorney’s fee if a suit for collection became necessary. Such a provision does not mean, however, that the court must award the full 10 percent in every instance. Only a reasonable fee is to be allowed. Citizens Nat. Bank v. Waugh, 4th Cir., 78 F. 2d 325, annotated in 100 A.L.R. 939. Our statute is in harmony with this rule, for it validates such a stipulation for an attorney’s fee, not to exceed 10 percent, “for services actually rendered.” Ark. Stat. Ann. § 68-910 (ftepl. 1957).

The requirement that the fee be reasonable creates a true dilemma in this case. One horn: If American-Canadian made no defense whatever to the claim of Aldridge & Stroud, so that there was actually no dispute between these parties, then American-Canadian may fairly question the reasonableness of a $7,500 attorney’s fee for taking what amounted to a default judgment in a friendly suit. The other horn: If American-Canadian resisted the claim, so that the fee was unquestionably earned, then that very resistance demonstrates that an actual controversy existed between the two litigants.

I do not mean that a fee of $7,500 was not earned. The claim of Aldridge & Stroud was contested by other creditors of American-Canadian, so that The Attorneys were confronted with a serious lawsuit. But American-Canadian is certainly in a position to assert that, after having made no resistance itself to the claim, it ought not to be compelled to pay a fee that was brought about only by the opposition of third persons. Hence the issue that has been dormant all along and now becomes active is this: Which of The Attorneys’ clients is to be compelled to pay this fee! I am unable to agree with the majority’s conclusion that in this situation no conflict between the clients is discernible.


author: Carleton Harris, Chief Justice.

text:
    Ark. Motor Club v. Ark. Employment Sec. Division.
    5-3151
    373 S. W. 2d 404
    Opinion delivered December 23, 1963.

      Riddick Riffel, for appellant.

      Luke Arnett, for appellee.
   Carleton Harris, Chief Justice.

The question presented on this appeal is whether appellant, Arkansas Motor Club, Inc., is liable for Unemployment Compensation Tax. Appellant is engaged in selling motor club memberships to the general public within this state. These sales are made through salesmen.. On June 13, 1960, after a hearing, the Arkansas Commissioner of Labor held that the salesmen of appellant were employed under an oral contract for a one-year term, which could be terminated by either party; that the only source of revenue for appellant was the sale of membership certificates ; that these salesmen are ‘ ‘ outside salesmen of the company, performing an integral and imperative part of the corporative business and are not independent contractors and are employees of the Arkansas Motor Club within the meaning and pursuant to the statutory provisions of the Arkansas Employment Security Act.” The Commissioner further found that the salesmen were not insurance salesmen, but sold, only automobile club memberships and “the fact that an insurance policy is issued in connection with the automobile association membership does not make them insurance agents within the meaning of Section 2 (i) (6) (P) of the Arkansas Employment Security Act.”

The Commissioner held that appellant was the employer of the salesmen involved, and was liable for Unemployment Compensation Tax on the commission paid to these employees.

An appeal was taken to the Board of Review, and that body affirmed the Determination of Coverage as entered by the Labor Commissioner. On appeal to the Circuit Court of Pulaski County (Third Division), the ruling of the Board of Review was affirmed. Thereafter, appellant has perfected its appeal to this court.

For reversal, appellant argues first, that the salesmen of Arkansas Motor Club, Inc., are free and clear of the control and direction of appellant, and are therefore independent contractors and exempt from the operation of the act. It is also contended that memberships in the club are contracts of insurance, and the salesmen are insurance agents whose services are performed for remuneration solely by way of commissions; the act, therefore, is not applicable.

Since we have concluded that the salesmen for appellant are insurance agents or solicitors, a discussion of the first alleged ground for reversal is unnecessary, and we by-pass the question of whether these salesmen are independent contractors.

The record reflects that the motor club has an office in Little Rock, with an office manager, who is under the control and direction of the club’s officers who live in Atlanta, Georgia. The club enters into oral agreements with individuals whereby the latter agrees to sell club memberships. Some of these agents work on a full time basis, and others sell the memberships in addition to regular employment held elsewhere. Each agent is assigned a particular territory to work, though he is also privileged to sell memberships in territory not assigned to him. In that event, the seller of the membership receives the initial commission, but the commission on the renewal premium is turned over to the agent to whom the territory had been assigned. Agents receive no salary, no travel expenses, and are paid entirely on a commission basis, i.e.f they receive a certain percentage of the premium for each membership' sold. The benefits provided by the purchase of a membership to the holder will be subsequently discussed. ■

Chapter 16, Ark. Stat. Ann. (Eepl. 1957) relates to “Automobile Clubs or Associations.” Section 75-1601 defines an “Automobile Club or Association” as:

“(a) any person, firm, association, copartnership, corporation, company or other organization, which from and after the effective date of this act undertakes for consideration paid by or on behalf of its members to defray all or a part of the expenses of such member or members with reference to motor club service as defined in Section 2 [§ 75-1602] of this act, or which issued a certificate which provides for the payment of such benefits to such member or members in services, cash, by furnishing bail, or otherwise, and (b) every person, firm, association, copartnership, corporation or company which prior to the effective date of this act has undertaken for a consideration to pay money or render services to its members, or which has issued any form of contract or certificate or membership card which, under the terms thereof, provides for the payment in money, service, or otherwise for motor club service as defined in Section 2 [§ 75-1602] of this act.”

Section 75-1602 defines the various services which may be included in membership. Section 75-1603 gives the Insurance Commissioner complete authority to grant certificates of authorization to automobile clubs; to revoke certificates, and to prescribe rules and regulations reasonably necessary for the conduct of the business of the clubs. Section 75-1604 places all automobile clubs and associations operating in this state under the authority, supervision, and control of the Insurance Commissioner. Section 75-1605 requires, inter alia, the posting of a bond with the Commissioner, the payment of an annual license fee by the club or association, appointment of an agent for service of process, or, in lieu thereof, the Insurance Commissioner, and the club is required to file a copy of the proposed form of membership application, membership certificate, bylaws, contracts for service and advertising material. Section 75-1606 reads as follows:

“Before any agent or representative shall or may represent any automobile club or association in this state, he or she shall first apply to the Insurance Commissioner for a license and the Insurance Commissioner shall have full power and authority to issue such license upon proof satisfactory to him that such person is capable of soliciting automobile club or association memberships, and is of good moral character and recommended by the club or association in behalf 'of which such membership solicitations are to be made. Provided no such license shall be issued by the Insurance Commissioner until the applicant has paid to the Insurance Commissioner two dollars ($2.00) as annual license fee. The Insurance Commissioner may reject the application of any person who does not meet the requirements herein set out.”

Section 75-1608 sets out that,

““ ® * such clubs and associations shall not be subject to any other laws respecting insurance companies of any class, kind or character, except as to the conduct of hearings by the Insurance Commissioner and appeals therefrom. ’ ’

Thus, we see that these motor clubs are under the supervision and regulation of the Commissioner of Insuranee. Of course, this fact, within itself, is not determinative of the status of the salesmen, hut is a pertinent circumstance to be considered.

The purchaser of a membership receives a card which sets forth, inter alia, the following benefits: The club agrees to provide an appearance bond up to $200.00 in certain types of motor vehicle violations; a bail bond up to $5,000.00 in the event of an automobile accident (excepting particular charges); attorneys’ fees up to $25.00 when a member is charged with violation of any motor vehicle law; attorneys’ fees up to $150.00 if a member is charged with manslaughter, and an additional attorneys fee up to $250.00 if the judgment is appealed to a court of last resort. In addition, the member receives a certificate of accident insurance, issued by the Inter-Ocean Insurance Company, which provides benefits of $10,000.00 for loss of life in a railroad accident, $2,500.00 for loss of life in a bus, street car, steamship, or subway accident, and $1,000.00 for the loss of life in “Automobile, Pedestrian, Taxi, School Bus, Truck, Airplane Accidents.” Benefits are also provided for loss of sight, both hands, both feet, one hand and one foot, one hand and sight of one eye, one foot and sight of one eye, either hand, either foot, or sight of either eye. Section 3 of the insurance contract provides certain hospital benefits, including operating room, x-ray pictures, oxygen tent, and other benefits of a similar nature. Section 4 provides certain benefits for non-disabling injuries. Actually, it appears that the payments set out in the certificate are among the main benefits obtained through the purchase of memberships.

While there is no definition of the term “insurance” in several states, our Arkansas Insurance Code provides a concise definition of that term. Ark. Stat. Ann. § 66-2002 (Supp. 1961) defines the term as follows:

‘ ‘ Insurance ’ is a contract whereby one undertakes to indemnify another or pay a specified amount or provide a designated benefit upon determinable contingencies.”

It is obvious that the benefits heretofore mentioned come clearly within this definition of insurance. Certainly, there is a contract, in which the Arkansas Motor Club, for a pecuniary consideration, promises to provide specific benefits previously set forth to the holder of the membership. Both the card and the certificate contain provisions wherein the club undertakes to indemnify the member, “or pay a specified amount,” or “provide a designated benefit upon determinable contingencies. ’ ’ Of course, the certificate is actually “straight-out” insurance, but even the services mentioned on the membership card, vie, bail bond service, legal service, etc., are benefits provided under the contract which accrue upon the happening of a determinable contingency, and are therefore insurance benefits. Other courts have so held. In National Auto Service Corp. v. State, 55 S. W. 2d 209, the Court of Civil Appeals of Texas held that a membership certificate which provided that, for annual dues, the corporation would repair accidental damage to a member’s automobile in a specified amount, was an insurance contract, even though the certificate contained the following clause:

“It must be clearly understood that this is not insurance, as the corporation never pays its members any money, as indemnity, except to repair any damage to member’s automobile at the corporation’s authorized repair shop as hereinabove provided.”

The court then said:

“What constitutes insurance has been defined by statute in many states, and has been frequently defined by the courts. Its essential elements as relate to property are that it provides, for a consideration, indemnity against loss or damage to property in which the assured has an interest which may result from some uncertain or unforeseen contingency. ’ ’

In Texas Association of Qualified Drivers, Inc. v. State, 361 S. W. 2d 580, the proof reflected that appellant was organized as an association of automobile drivers, and association memberships were solicited and sold. The benefit received by members was a reimbursement (up to specified amounts) for attorneys’ fees incurred by members when involved in certain moving traffic violations. The court said:

‘ ‘ The sole question for decision is whether the reimbursement to members for attorneys’ fees incurred by them as above set forth constitutes insurance. * * *

“There is no statutory general definition of the word ‘insurance’ in Texas. However, insurance has been defined by the Appellate Courts of Texas as ‘ “An undertaking by one party to protect the other party from loss arising from named risks, for the consideration and upon the terms and under the conditions recited. ’ ’ Whether or not a contract is one of insurance is to be determined by its purpose, effect, contents, and import, and not necessarily by the terminology used, and even though it contains declarations to the contrary.’ (Citing National Auto Service Corporation v. State, supra,.) It has also been defined as ‘a contract by which one party for a consideration assumes particular risks of the other party and promises to pay him or someone named by him a certain or ascertainable sum of money on a specified contingency. ’ (Citing case.)

“Here the purpose of the contract made by appellant with its members for a stated consideration was to indemnify or reimburse the holder of a membership certificate for payments incurred by the member for attorneys’ fees in the defense of a moving traffic violation in which the member was involved under certain conditions and within the limitations set forth in the certificate. Under the above definitions of insurance it is clear that the contract between appellant and its members constitutes an insurance contract. ’ ’

In Continental Auto Club, Inc. v. Navarre, Commissioner of Insurance 60 N. W. 2d 180, membership in an automobile club entitled members to attorneys’ services to the extent of dollar limitation designated for various types of service, and bail for club members under certain conditions was also provided. The Supreme Court of Michigan, though there was no statutory definition of insurance in that state, held “that by engaging in the business of furnishing its members under its contract, the benefits hereinbefore recited, the plaintiff club was and is in fact engaging in the business of insurance.” Other cases could be cited, but actually, our own statutory definition of “insurance” is sufficient to determine the matter.

In accordance with the views herein expressed, the judgment is reversed and the cause remanded to the Circuit Court with directions to enter an order which will result in the Commissioner of Labor setting aside his Determination of Coverage, and entering, in lieu thereof, an order not inconsistent with this opinion.

       Ark. Stat. Anno. § 81-1103 (Repl. 1960) (i) (2) (A) and (5) (C) éxempt independent contractors, (C) providing that independent contractors shall be deemed employers and not employees.

       Sub-section (i) (6) (P) exempts insurance agents or insurance solicitors “if all such services performed by such individual for such person, or employing unit, is performed for remuneration solely by way of commission.”

       The sole exception relates to special meetings, usually held twice a year, which are called for the purpose of explaining new matters, changes in contracts, etc. The agents are not required to attend, hut in case of attendance, are reimbursed for travel expense, including hotel and meals while attending the meetings.

         Act 377 of 1955.

       Towing service and emergency road service, not provided in the regular membership, are available if additional premium is paid.'

       Act 148 of 1959.


author: Ed. F. McFaddin, Associate Justice. George Rose Smith, J.,

text:
    Hastings v. Rose Courts.
    5-3074
    373 S. W. 2d 583
    Opinion delivered December 23, 1963.
    [Rehearing denied Jan. 20, 1964.]

      House, Holmes, Butler & Jeioell, by Philip E. Dixon, for appellant.

      Moses, McClellan, Arnold, Oiven S McDermott, by Wayne Otuen and Bonner, Mitchell & Hays, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a boundary line dispute involving property in Lots 1 and 2 of Eapley Estate in Pulaski County. Rose Courts, Inc., an Arkansas corporation, owns the east portion of Lot 2; and Harry L. Hastings and wife own the west portion of Lot 1. Eunning north and south between Lots 1 and 2 there ivas and is an unopened avenue 40 feet wide, east to west, and the lots of the litigants herein abut on said unopened avenue. Eose Courts brought this suit against Hastings to have the Chancery Court establish the true location of the unopened 40-foot avenue, and also to enjoin Hastings from alleged trespass on Eose Court’s property west of the unopened avenue. Rose Courts claimed that the unopened avenue was about 84 feet east of where Hastings claimed it to be. Hastings claimed: (a) that previous litigation was res judicata against Rose Courts; and (b) if res judicata were not sustained, the unopened avenue was 84 feet west of where Eose Courts claimed it to be. Neither side claimed title in any way to the unopened avenue.

The litigation has a considerable historic background. In 1872 the Pulaski Probate Court directed the administrator of the Estate of Charles Eapley to file a plat of portions of Sections 10, 11, and 14. This plat was filed and showed said Lots numbered 1 to 8 of Eapley Estate, each lot containing approximately 9 acres; and the plat showed an unopened (and unnamed) avenue 40 feet wide east to west, running north and south, and separating Lots 1, 4, 5, and 8 on the east side of the avenue from Lots 2, 3, 6, and 7 on the west side of the avenue. The plat did not show definitely whether the property line immediately west of the Rapley Estate was- the Quapaw Line or the line of Cox’s Quapaw Addition, which addition is 170 feet east to west and several hundred feet north and south. This failure of the plat to establish the said west line of Rapley Estate was probably the origin of the litigation herein to be mentioned. Except for the matter of res judicata, subsequently to be discussed in detail, the issue could be simply stated: if the west line of the Rapley Estate bordered the Qua-paw Line, then the 40-foot avenue here involved should be as contended by Hastings; but if the west line of the Rapley Estate bordered Cox’s Quapaw Addition, then the 40-foot avenue should be as contended by Rose. In other words, a strip of about 84 feet is involved in the present litigation, depending on who is right about the location of the unopened avenue.

A voluminous record was made in the Trial Court with scores of exhibits consisting of plats, surveys, court orders, deeds, and other instruments. A number of engineers and surveyors testified, and some even repudiated their own previously made plats as to location of the 40-foot avenue. Such repudiation tended to place the issue in grave doubt as to the actual location of the 40-foot strip. The Trial Court denied Hastings’ plea of res judicata and fixed the 40-foot avenue at the place urged by Rose Courts; and from that decree Hastings has appealed, urging two points:

“1. The Trial Court erred in not holding the present action barred by reason of Pulasld Chancery Cases No. 82474, No. 90142, and No. 101718, based on the law of res judicata.

“2. The Court erred in not locating the forty foot avenue as shown on the C. T. Brandt Survey of December 11, 1947.”

We do not reach appellants’ second point because we are convinced that Hastings’ plea of res judicata should have been sustained; and we now give the situations which show the applicability of such plea. First, we give the line of title of each litigant from the various deeds, all duly recorded:

(a) Rose Courts, the present appellee, received its deed from Arkansas Courts, dated June 27, 1950; Arkansas Courts received its deed from Arkansas Real Estate Company, Inc., dated December 9, 1949; and Arkansas Real Estate Company, Inc. received its deed from Little Rock Investment Company dated April 4, 1947.

(b) Harry L. Hastings and wife received their deed from C. C. McCord, dated May 10, 1955; and C. C. McCord received his deed from the State of Arkansas, dated December 27, 1935.

Certain cases in the Pulaski Chancery Court need to be identified:

(a) Case No. 82474 was by C. C. McCord, as plaintiff, against Arkansas Real Estate Company, Inc., as defendant. The decree rendered in February 1949 recited that McCord’s title to the west 156.3 feet of Lot 1 Rapley Estate (that would be along the unopened avenue) was quieted, and that the boundary line between Lot 1 and Lot 4 (to the south of Lot 1) Rapley Estate “is shown by Exhibit 8 herein, same being a plat of the survey made by C. T. Brandt December 11, 1947.” It will be observed that McCord owned his portion of Lot 1 until May 1955, and that Arkansas Real Estate Company, Inc. owned its portion of Lot 2 until December 1949, and that the parties to the present litigation claim through the respective parties in said Case No. 82474.

(b) Case No. 90142 in the Pulaski Chancery Court was dismissed by voluntary non-suit and is unimportant.

(c) Case No. 101718 in the Pulaski Chancery Court was styled, Arkansas Real Estate Company, Inc., as plaintiff, v. C. C. McCord and wife, defendants, and filed January 18, 1955. In that case the Arkansas Real Estate Company, Inc. claimed ownership of the west 84 feet of Block 1, Rapley Estate (same being a portion of the Hastings property). It will be observed that Arkansas Real Estate Company, Inc. conveyed its title to Lot 2 in 1949 to Arkansas Courts, yet in 1955 Arkansas Real Estate Company, Inc. was claiming against McCord 84 feet from Lot 1, Rapley Estate. Against such claim in Case No. 101718, McCord pleaded that the decree in Case No. 82474 was res judicata against Arkansas Real Estate Company, Inc.; and by decree of July 28, 1955, McCord’s plea of res judicata was sustained.

(d) Case No. 107579 in the Pulaski Chancery Court is the present case; and Hastings has pleaded the earlier cases as res jiodicata.

Mr. R. M. Traylor, President of Rose Courts, and also President of both of the predecessor corporations, Arkansas Courts, and Arkansas Real Estate Company, Inc., was called as a witness by Rose Courts in this case; and Mr. Traylor' admitted on cross examination that the 84 feet involved in the present suit was the same 84 feet that was involved in Case No. 101718. It is true that on re-direct examination Mr. Traylor claimed he did not know what his attorneys had alleged in the previous cases; but Mr. Traylor’s admission must stand against Rose Courts, of which he is President. Such admission by Mr. Traylor is sufficient extrinsic evidence to identify the land in the previous litigation with the land in the present litigation and to establish Hastings’ plea of res judicata. It is true that Arkansas Real Estate Company, Inc. had conveyed by deed to Arkansas Courts before the decree in Case No. 101718, but nevertheless the plea of res judicata was successfully used in Case No. 101718, with Case No. 82474 as the support for such plea; and Traylor’s admission that the land in Case No. 101718 was the same as that claimed by Rose Courts in the present ease establishes that the land in the present suit is the same as the land involved in Case No. 82474. Such extrinsic evidence supports the plea of res judicata.

The Latin words, “res judicata,” literally translated into English mean “a thing adjudged”; and freely translated into English mean “the matter has been decided.” In Mo. Pac. RR. Co. v. McGuire, 205 Ark. 658, 169 S. W. 2d 872, we quoted the language from American Jurisprudence to explain res judicata:

“ ‘Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.’ ”

In Robertson v. Evans, 180 Ark. 420, 21 S. W. 2d 610, Mr. Justice Humphreys, speaking for the Court, said:

“The test in determining a plea of res judicata is not alone whether the matters presented in a subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issues and might have been litigated in the former suit. Gosnell Special School Dist. No. 6 v. Baggett, 172 Ark. 681, 290 S. W. 577; Cole Furniture Co. v. Jackson, 174 Ark. 527, 295 S. W. 970; Prewett v. Waterworks Imp. Dist. No. 1, 176 Ark. 1166, 5 S. W. 2d 735.”

TVe have given the line of title of Hastings and Bose Court to show that Hastings is in privity with McCord, and Bose Court is in privity with Arkansas Beal Estate Company. In Mo. Pac. v. McGuire, supra, we said:

“And in 30 Am. Jur. 957, in discussing who are privies within the rule of res judicata, it is stated: ‘In general, it may be said that such privity involves a person so identified in interest with another that he represents the same legal right. It has been declared that privity within the meaning of the doctrine of res judicata is privity as it exists in relation to the subject-matter of the litigation, and that the rule is to be construed strictly to mean parties claiming under the same title.’ See Meyers v. Eichenbaum, 202 Ark. 438, 150 S. W. 2d 958, and eases and authorities there cited.”

In Cook v. American Cyanamid Co., 227 Ark. 268, 297 S. W. 2d 933, we said.:

“The contention that the parties are not identical under the doctrine of res judicata is without merit. See Collum v. Hervey, 176 Ark. 714, 3 S. W. 2d 993, to the effect that a grantee, under the doctrine of res judicata, stands in the relation of privy to the grantor.”

In Carrigan v. Carrigan, 218 Ark. 398, 236 S. W. 2d 579, we quoted the language of the United States Supreme Court in Russell v. Place, 94 U. S. 606, which language had been approved by Mr. Justice Battle in McCombs v. Wall, 66 Ark. 336, 50 S. W. 876, which language is:

“ ‘It is undoubtedly settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that question in another suit between the same parties. But to give this operation to the judgment it must appear either upon the face of the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record—as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered,—the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible.’ ”

Here, as we have previously shown, Mr. Traylor’s testimony was the extrinsic evidence which clearly showed that the 84-foot strip here in issue was the same strip in issue in Case No. 82474, and that in Case No. 101718 the plea of res judicata was successfully urged in favor of McCord (predecessor in title to Hastings) as to the said 84-foot strip. In Morrow v. Raper, 222 Ark. 414, 259 S. W. 2d 499, Mr. Justice Millwee said:

“There is no contention by plaintiff that the 1946 judgment was obtained by fraud or collusion. The only contention is that the surveyors made a mistake in establishing the boundary line in that suit. The fact, if true, that the question of the boundary line may have been erroneously determined in the former suit does not impair the conclusiveness of a valid judgment rendered by a court of competent jurisdiction, which has not been set aside or corrected on appeal. Tri-County Highway Improvement Dist. v. Vincennes Bridge Co., 170 Ark. 22, 278 S. W. 627; Strauss v. Missouri State Life Ins. Co., 188 Ark. 286, 66 S. W. 2d 299; 30 Am. Jur., Judgments, § 156; 50 C.J.S. Judgments, § 704.”

In Timmons v. Brannan, 225 Ark. 220, 280 S. W. 2d 393, there had been a previous case to establish the boundary line between the parties; then later Timmons attempted to show that there was a street (called Ridge Street) between the properties of Brannan and Timmons, but we held the first case to be res judicata, saying:

“ ‘The test in determining the plea of res judicata is not alone whether the matters presented in the subsequent suit were litigated in a former suit between the same parties, but whether such matters were necessarily within the issue and might have been litigated in the former suit. ’ The test is not whether the matters in the second suit were actually litigated in the former suit between the parties, hut whether such matters were necessarily within the issues and might have been litigated in the former suit.”

Appellee cites and strongly relies on Fawcett v. Rhyne, 187 Ark. 940, 63 S. W. 2d 349, and McCombs v. Wall, 66 Ark. 336, 50 S. W. 876; hut neither of these cases is ruling in the case at bar. In Fawcett v. Rhyne we held that the adjudication concerning one parcel in a larger tract was not res judicata in regard to another parcel, in the larger tract, not included in the previous case. In McCombs v. Wall we held that there was nothing, either in the record or in extrinsic evidence, to identify the land involved in the second case as having been in the original case, and thus res judicata was not established. The two cases relied on by the appellee are correct, hut the law enunciated in those cases is not applicable to the case at bar because, here, there is extrinsic evidence that the tract now involved was also involved in the previous litigation.

Finally, we mention Rose v. Jacobs, 231 Ark. 286, 329 S. W. 2d 170, wherein we quoted with approval from 50 C:J.S. 293, “Judgments” § 763:

‘ ‘ ‘ Since the identity of parties is not a mere matter of form, hut of substance, the rule of res judicata should not be defeated by minor differences of parties. Thus, where the issues in separate suits are the same, the fact that the parties are not precisely identical is not necessarily fatal to the conclusive effect of the prior judgment, and a substantial identity is sufficient. * * * This rule, that there must he a substantial identity of parties as well as of the subject matter, is based on the fundamental principle that no man can be deprived of his property except by due process of law, a principle which in the United States has been embodied in the Federal Constitution, and in the constitutions of the several states. It has also been held that the true reason for holding an issue res judicata is not necessarily the identity or privity of the parties, but the policy of the law to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into controversy, and that a plaintiff ivho deliberately selects his f onion is bound by cm adverse judgment therein ioi a secooicl suit involvioig the same issues, eveoi though defendant ioi the secooid suit ivas oiot a party, oior ioi privity with a party, ioi the first suit.’ ”

So we conclude that Hastings’ plea of res judicata should be sustained; and it follows that the Chancery decree is reversed and the cause remanded, with directions to sustain Hastings ’ plea of res judicata and to dismiss the complaint of Rose Courts.

George Rose Smith, Ward & Johnson, JJ., dissent.

George Rose Smith, J.,

(dissenting). Today’s decision is demonstrably unjust. In that the Hastings Realty Company is acquiring a strip of land to which it has no title whatever. On the merits only five witnesses with engineering or surveying experience testified. All five of them fixed the disputed boundary line in accordance with the contentions of the appellee and the findings of the chancellor. Not one syllable of testimony to the contrary was offered by Hastings. That the strip actually lies within the tract described in the appellee’s deed is, on the record before us, an undisputed fact.

Yet Hastings emerges as the owner of the land. This result comes about through an application of the doctrine of res judicata. Despite the majority’s protracted discussion of elementary principles of law, as far as I can see the rule of res judicata actually has nothing at all to do with this case.

Two earlier’ chancery cases are involved. The first, No. 82474, cannot possibly be conclusive of the present litigation and is not found to be so by the majority. That case did not concern the point now in controversy. There the only issue was the true location of the southern boundary of Lot 1. That issue had nothing to do with the true location of the western boundary of Lot 1, now in dispute. It happened that in Case No. 82474 there was filed a surveyor’s plat, prepared with reference to the southern boundary, that erroneously located the ivestern boundary in accordance with Hastings’ present contention. But that error was wholly extraneous to the controversy then before the chancery court, did not lead to a binding decision fixing the western boundary line, and is not so interpreted by the majority in the case at bar.

After the decision in the first chancery case Arkansas Eeal Estate Company conveyed its interest in Lot 2 to this appellee, Eose Courts. Thereafter the second chancery case, No. 101718, was decided. That litigation did involve the boundary now in dispute; but the point is that the appellee, Eose Courts, was not a party to the case nor was it represented by a party. The plaintiff was Arkansas Eeal Estate Company, which had already conveyed Lot 2 to Eose Courts. Yet that is the decision that the majority hold to be res judicata.

Even after having studied the majority opinion I do not understand how it is that a grantee is bound by litigation brought by its grantor after the property has been conveyed to the grantee. This bewildering result seems to be reached solely because Traylor, the president.of Eose Courts, happened to testify (inadvertently, as the majority seem to realize) that the land now in controversy is the same tract as that involved in the second chancery case.

Although this single statement in a record of several hundred pages is seized upon as the main support for today’s decision, as far as I can see not even this statement justifies the result that is being declared. If this scrap of Traylor’s testimony is treated as a statement of fact—an assertion of the true location of the western boundary—then it is not only clearly inadvertent but also flatly contrary to, and overcome by, the wealth of engineering testimony that establishes the location of the boundary beyond question. On the other hand, if Traylor’s statement is somehow looked upon as creating an estoppel against the corporation of which he is merely an officer, the short answer is that there can be no estoppel because there has been no reliance, no change of position, on the part of Hastings in consequence of this isolated bit of testimony.

I think the majority decision to be a serious miscarriage of justice.

Ward and Johnson, JJ., join in this dissent.

       The original defendants were Harry L. Hastings and wife, and in the course of the litigation they transferred their title to the Hastings Realty Company, an Arkansas corporation. We continue to refer to all of the defendants as “Hastings.”

       In some instances, they are referred to as “lots” and in others as “blocks”; but the interchange of these words is not a material matter in this litigation.

       On this see Raper v. Morrow, 222 Ark. 414, 259 S. W. 2d 499, subsequently discussed.

       Here is Mr. Traylor’s testimony:
      “Q. Mr. Traylor, you have testified in regard to a conversation had between you and Mr. Hastings subsequent or shortly after Mr. Hastings’ purchase of the west part of Lot 1 or Block i of Rapley Estate?
      “A. I did, sir.
      “Q. And you testified that shortly thereafter you filed a lawsuit against Mr. Hastings?
      “A. Well, I think it was after that. It was along about that same time. I don’t remember how many days or weeks or months it was, but it was leading up to it after Hastings bought the property and it came to a head about this 8U feet of ours that he is claiming. (Emphasis supplied.)
      “Q. Was not that 84 feet that you are talking about exactly the same 84 feet that is involved in this lawsuit here now?
      “A. That 84 feet that is involved in this lawsuit?
      “Q. Yes.
      “A. What is the number of this lawsuit? Do you mean the present lawsuit?
      “Q. Yes, sir.
      “A. What is the number of that lawsuit, not that 82474 that you had awhile ago, is it?
      “Q. No, No. 107579.

        “A. Of course, it woidd be. (Emphasis supplied.)
      “MR. MITCHELL: Wait a minute.
      “A. There is a suit about where this street goes and if you prevail you would come 84 feet over into our property, or 85, whatever it is.”

       In addition to the cases heretofore cited, we have a number of other cases on res judicata which are germane to the points here discussed. Some such cases are: Watson v. Suddoth, 218 Ark. 960, 239 S. W. 2d 602, certiorari denied U. S. Supreme Court, 342 U. S. 885, 96 L. Ed. 664, 72 S. Ct. 174; Langford v. Griffin, 179 Ark. 574, 17 S. W. 2d 296; Jones Lmbr. Co. v. Wisarkana Lmbr. Co., 125 Ark. 65, 187 S. W. 1068; Cleveland-McLeod v. McLeod, 96 Ark. 405, 131 S. W. 405; Sauls v. Sherrick, 121 Ark. 594, 182 S. W. 269; Gordon v. Clark, 149 Ark. 173, 232 S. W. 19; Lillie v. Nunnally, 211 Ark. 202, 199 S. W. 2d 751; and Barton v. Meeks, 209 Ark. 903, 193 S. W. 2d 138.


author: George Rose Smith, J.

text:
    Rogers v. State.
    5081
    373 S. W. 2d 705
    Opinion delivered December 23, 1963.
    [Rehearing denied Jan. 27, 1964.]

      Eugene W. Moore, for appellant.

      Bruce Bennett, Attorney General, by Jerry L. Patterson and Beryl F. Anthony, Jr., Assistant Attorneys General, for appellee.
   George Rose Smith, J.

This appeal is from a verdict and judgment finding the appellant guilty of rape and sentencing him to imprisonment for life.

We find the evidence sufficient to support the verdict. At the time of the offense, March 10, 1963, the prosecutrix was twelve years old. The accused, a mature divorced man, had been keeping company for several months with the child’s mother, a widow. On the day in question Rogers asked the child to stay with his own mother, who was ill, while he did some carpentry work at a house nearby. The two left the child’s home in his ear, but he did not drive to his mother’s house. Instead, he parked the car on a lonely side road and, according to the prosecuting witness, committed two acts of rape.

In the meantime the child’s mother had gone in her own car to bring her daughter home. After a short search the mother discovered the defendant’s parked car. The prosecutrix, crying, at once fled to her mother and related what had taken place. The child was taken to Dr. McCoy, whose examination disclosed that her private parts were inflamed and contained what “looked like a typical male ejectory excretion.” (The doctor was not asked whether he had prepared slides so that his findings might be confirmed by laboratory tests.) It was Dr. McCoy’s opinion that the prosecutrix had recently had sexual intercourse.

The evidence that we have narrated is substantially undisputed. Rogers testified that he had been drinking for three or four days before the Sunday in question. He remembered having driven away from the home of the prosecuting witness with the intention of going to his mother’s house, but he professed to have no recollection of anything that happened immediately thereafter.

Even without the persuasive testimony of Dr. McCoy the evidence given by the prosecuting witness is sufficient to support the conviction, there being no requirement that her testimony be corroborated. Hodges v. State, 210 Ark. 672, 197 S. W. 2d 52; Stevens v. State, 231 Ark. 734, 332 S. W. 2d 482. We find nothing in the record to indicate that the trial court was in error in holding this child to be a competent witness. Needham v. State, 215 Ark. 935, 224 S. W. 2d 785.

The principal argument made by the appellant’s present counsel, who did not try the case, concerns an objection made to certain testimony given by Dr. Kirby. This physician examined the child on the day following the offense and, like Dr. McCoy, found evidence of irritation. He also took saline washings for laboratory examination. His testimony then continues in this manner:

“Now, being coroner I was called on Monday morning at the laboratory at the Boone County Hospital where the saline solutions were taken and where they had a slide which they said was given to them by Dr. McCoy—

“[Defense counsel]: We object. Hearsay.

“The Court: Sustained.

“Q. From your examination there, and what you were able to wash out and find, in your opinion, there had been male sperm, or there was nothing but male sperm in her?

“A. These washings were sent to Mr. [sic] Mae Nettleship, and she .told me—

“[Defense counsel]: We object.

“The Court: Sustained.

“Q. From what you saw was there male sperm in there?

“A. I didn’t see any sperm, but that was a day later.

“Q. Did you see the slide left by Dr. McCoy?

“A. I did, the one Dr. McCoy identified as the slide.

“Q. In your opinion was that sperm?

“A. It was.

“ [Defense counsel]: We object.

‘1 The Court: Overruled.

" [Defense counsel]: Exceptions.”

It is now contended that -the State did not lay a proper foundation for Dr. Kirby’s comment, upon the slide prepared by Dr. McCoy. That is, inasmuch as Dr. McCoy did not testify that he prepared the slide and delivered it to the hospital laboratory, Dr. Kirby’s reference to the slide as "the one Dr. McCoy identified” necessarily involved a resort to hearsay.

There are two fatal weaknesses in this contention. First, there was no objection to the statement that Dr. McCoy had identified the slide. In fact, the only objection that the court overruled was to the next question and answer: "Q. In your opinion was that sperm? A. It was.” The objection was apparently based upon the fact that the doctor was being allowed to express an opinion. Upon that basis the objection was properly overruled, for the witness had qualified as an expert. If counsel intended to rely upon the hearsay rule as well, that rule should have been brought to the court’s attention.

We considered a similar argument in Conway v. Hudspeth, 229 Ark. 735, 318 S. W. 2d 137. There the objection in the trial court was apparently made in reliance upon the hearsay rule. On that basis it was correctly overruled. In rejecting the same contention that is now before us, that no proper foundation had been laid, we said:

"It is now insisted that no proper foundation for Steen’s rebuttal was laid ... In fairness to the trial court this contention cannot be sustained. The only objection to Steen’s rebuttal was this: ‘If the court please, the statement to him by J. Lee Hensley is not admissible. ’ The court ruled that the evidence was competent for the sole purpose of going to Hensley’s credibility, and the objection was pursued no further. We think the court reasonably understood the objection as being based upon the hearsay rule, and upon that understanding the ruling was correct. If counsel thought that no proper foundation bad been laid, tbe point sbonld bave been brought specifically to tbe court’s attention. Had tbat course been followed tbe omission now complained of might readily bave been supplied in the trial court. ’ ’

Secondly, tbe only pertinent assignment in tbe appellant’s motion for a new trial is this: ‘ ‘ Tbe court erred in permitting Dr. H. V. Kirby to interpose irrelevant answers to questions after tbe court bad ruled the same not admissible.” This objection goes only to the matter of relevancy; there is no complaint tbat part of Dr. Kirby’s testimony may have been based upon hearsay. When tbe motion for a new trial assigns only one specific reason for an objection to certain testimony a different reason cannot be urged upon appeal. Burrow v. Hot Springs, 85 Ark. 396, 108 S. W. 823.

We find no prejudicial error in tbe record.

Affirmed.


text:
    Ex parte Burton.
    5-3208
    373 S. W. 2d 409
    Opinion delivered December 23, 1963.

      G. Thomas Bisele, for Petitioner.
   George Rose Smith, J.

This is an original petition filed by Marion Burton, a practicing attorney, for a writ of certiorari to quash two orders entered by the Honorable Wiley W. Bean. The first order committed Burton to jail for an asserted contempt of court. The second order suspended Burton’s license to practice law in the Fifth Judicial District until he should exculpate himself from certain supposed wrongdoing.

Although this proceeding is in form ex parte, a copy of Burton’s petition was served upon Judge Bean, who has filed a response defending the validity of his orders. Thus the proceeding is not uncontested. The parties have filed, as exhibits to their pleadings, such parts of the record made at the trial level as they have thought necessary for an understanding of the case.

In October of 1963 there was pending in the Conway Circuit Court, presided over by Judge Bean, a libel suit brought by C. C. Brewer, the county clerk, against Gene Wirges, the editor of a newspaper at Morrilton. Apparently one of the issues concerned the manner in which the paper had reported the details of an election contest filed by Harding Byrd, an unsuccessful candidate for the office of school director.

At the trial of the libel suit Burton, who was not an attorney of record in the case, was called as a witness for the defendant Wirges. Burton had represented Byrd in the election contest. Burton testified at some length about his investigation of the case, the preparation and filing of the complaint, and the alleged irregularities in the election procedure. In the course of his testimony Burton indicated that Byrd was expected to pay the court costs in the case, but it was not anticipated that he would pay an attorney’s fee to Burton, who was employed by the Republican party and looked to that organization for his compensation.

Judge Bean seems to have concluded that Burton’s conduct in the election case may have amounted to champerty or maintenance. After the libel suit was submitted to the jury Judge Bean went to his chambers and sent for Burton. Also present were the attorneys for Brewer, the county sheriff, a deputy prosecuting attorney, and a few others not identified in the record before us. Burton was given no notice of any kind about the nature or purpose of the proceeding. At first he was wholly without counsel. Later on his present attorney, who had represented Wirges, was invited to come into the room, but Judge Bean refused to allow this lawyer to take part in the hearing, directing him ‘£ to sit there and listen.”

At the beginning of the interrogation Burton was sworn, without protest. Judge Bean stated that he wanted to ask a few questions to clarify his understanding of Burton’s testimony in the libel case.. After answering-some preliminary questions Burton requested that he be told the purpose of the proceeding. This request was repeated two or three times in the course of the hearing, but the only answer given by Judge Bean was that he was attempting to see- if his notes were accurate. Burton pointed out that his testimony was a matter of record and spoke for itself. At one point Judge Bean indicated that the deputy prosecuting attorney was present in an official capacity. Finally Burton, after his protests had proved to be unavailing, stated that in view of the nature of the proceeding he thought he should refuse to answer any further questions. The examination then closed in this manner:

“The Court: All right. For .the record, then, Mr. Sheriff, take him to jail and keep him there until, the Court orders you to release him or until he makes up his mind that he will answer the questions. Now, would you like to go further with the proceeding?

“Mr. Burton: No, sir.

“The Court: G-o on to jail.”

Burton seems to have remained in the county jail for several hours. He was then recalled by Judge Bean, who said that he had decided to let Burton go home. The judge added, however, that he could not let Burton continue to practice in his district until the matter was cleared up. A day or so later an order was entered suspending Burton’s license to practice in the district until ‘ ‘ such time as a hearing may be had exculpating the said Marion B. Burton from wrongdoing as an attorney at the Bar.”

We declare without hesitation that both the order committing Burton to jail and the order suspending him from practice were void for want of jurisdiction.

It is not contended, and' could not reasonably be contended, that the pendency of the libel suit justified the attempt to catechize Burton. The two proceedings were completely separate. In no event could information elicited from Burton have been of use in the libel case.

What took place in Judge Bean’s chambers was not in fact a judicial proceeding. No permissible judicial inquiry was before the court. Under our constitution and laws a judge cannot,, by virtue of his office, resolve himself into a court of inquiry for the investigation of real or supposed misconduct that may have come to his attention in his courtroom or upon the street. Ketcham v. Commonwealth, 204 Ky. 168, 263 S. W. 725; Manning v. Ketcham, 6th Cir., 58 P. 2d 948. No one’s liberty would be secure if our people might abruptly be called before a judge, as Burton was here, with the alternative of answering questions or going to jail.

A court’s power to punish for contempt does not exist in a vacuum. It cannot be exercised simply because a judge is on the bench or in chambers. The power is merely incidental and auxiliary to the judicial authority conferred by law upon the court. When there is a total lack of jurisdiction, as there was here, there can be no punishment for a refusal to submit to interrogation. Joyce v. Hickey, 337 Mass. 118, 147 N. E. 2d 187. There is no hint that Burton, even in trying circumstances, displayed any disrespect toward Judge Bean; to the contrary, lie seems to have acted with commendable dignity and composure.

The purported disbarment order is similarly void. A lawyer’s right to practice his profession is a valuable privilege, conferred in the first instance by this court and not to be taken from him without notice and a hearing as provided by law. Even when, a century ago, the circuit courts had the authority to admit attorneys to practice, such a court could not disbar a lawyer summarily. Beene v. State, 22 Ark. 149. There is still less justification for that procedure today.

The writ of certiorari is granted; both the orders are declared to have been unauthorized and void.