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

text:
    Ayers v. Ayers.
    5-958
    290 S. W. 2d 24
    Opinion delivered May 14, 1956.

      Bethell & Pearce, for appellant.

      Jack Bose and Holland & Holland, for appellee.
   George Rose Smith, J.

This is an appeal by the husband from a decree which denied either spouse a divorce, for the reason that both were at fault, and which allowed the wife alimony of $100 a month in addition to the sum the husband had agreed to pay for the support of his wife and children. The appellee originally sought a divorce upon the ground of personal indignities. By cross-complaint the appellant asked for a divorce on the ground of adultery, and the chancellor remarked in an oral opinion that “he came pretty close to proving it.” In fact, the chancellor seems to have been convinced that adultery had occurred, for that was his reason for denying a divorce to the wife.

In our opinion the appellant did prove his charge by a preponderance of the evidence. We will not detail all the testimony indicating that the appellee entered into an adulterous relationship with J. S. Griffin. After some eight years of a not too happy marriage Mrs. Ayers met Griffin, who is a bus driver, during a trip to Florida in 1953. She readily admits that between that meeting and her separation from her husband, in February, 1955, she frequently met Griffin for coffee and talked to him repeatedly by telephone. She attributes to coincidence the fact that she seems to have encountered Griffin in or near Little Rock, Hot Springs, Houston, Omaha, and perhaps other cities. Mrs. Ayers says, for example,' that she flew to Houston to see a basketball ganie,' but it happened that Griffin was also there; they had dinner and breakfast together and stayed at the same hotel. There is also evidence that she visited Griffin at his apartment in Fort Smith and may have received him in her home during her husband’s absence. The chancellor feared that if he granted the divorce sought by both parties “Mrs. Ayers will immediately get married to her bus driver friend,” and the increase in alimony was awarded on the express condition that Mrs. Ayers not see Griffin in the future.

The appellant, it is true, is by no means free from fault. In the course of establishing a successful position in the business world he seems to have devoted very little time to his family. When his suspicions were aroused he had his wife spied on by paid investigators. Perhaps with some provocation he cursed and struck his wife when she asked if she might have Griffin in the home for coffee. On another occasion he lost his temper at a dance and injured his wife’s hand slightly. Had the plaintiff’s own conduct been guiltless the chancellor would have been justified in granting her a divorce for indignities.

Thus the question is whether both parties should be denied a divorce when the husband has been guilty of indignities and the wife of adultery. That same situation was presented in Longinotti v. Longinotti, 169 Ark. 1001, 277 S. W. 41, where the court concluded: “We concur in the finding of the court below that both parties were at fault, but we think appellee [the wife] was the greater and the first offender, and we have concluded, under the case made, that a decree of divorce should be awarded appellant, and it will be so ordered.” We think the same course should be followed in the present case, especially as there seems to be no possibility of a reconciliation. Indeed, a psychiatrist whom both parties consulted before their separation was of the opinion that their temperaments would continue to clash. (We do not mean to intimate that the present suit is a collusive one; the record shows clearly that it is not.)

We do not regard condonation as being an issue in the case, although it was mentioned during the court’s deliberations. In the course of her testimony the appel-lee stated that she and her husband had marital relations a day or two before they separated. This issue, however, was not raised by the pleadings, was not explored at the trial, and has not been argued in the briefs. A defense that was apparently waived by the appellee and that was certainly not fully developed should not be made the controlling point in the case.

By their written separation contract the parties agreed that the appellant would pay $300 a month for the support of Mrs. Ayers and the three children. Mrs. Ayers was represented by counsel during the protracted negotiations that preceded the execution of the separation agreement. The evidence does not persuade us that she was overreached in the matter or that there were misrepresentations about her husband’s financial condition. The chancellor’s award of an additional $100 a month for alimony, as distinguished from maintenance for the children, was based upon his finding that Ayers was not entitled to a divorce and was conditioned on Mrs. Ayers’ not seeing Griffin again. Since we hold that the appellant is entitled to an absolute divorce on account of his wife’s misconduct the premise for the trial court’s increase in alimony no longer exists, and the appellee should be bound by her agreement. We point out, however, that the agreement is not conclusive with respect to maintenance for the children and may be modified as in other cases. Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409.

The appellant’s complaint that the trial court allowed an attorney’s fee as a condition to the right of appeal is answered by the opinion in Roberts v. Roberts, .....Ark. ...., ....S. W. 2d ...., and in this case, as in that one, we do not consider the amount fixed to be excessive.

Reversed.

MoFaddiN and Ward, JJ., dissent.

Ed. F. MoF addin, Associate Justice

(Dissenting). The majority has reversed the Chancery decree and has awarded Mr. Ayers a divorce on the ground of Mrs. Ayers ’ misconduct. I dissent from such holding of this Court, because the evidence shows that Mr. Ayers condoned any misconduct on the part of his wife.

Their separation occurred in the fall of 1954; and they were negotiating concerning a property settlement until February 7, 1955. Mrs. Ayers testified that she had lived with her husband after the property settlement was signed on February 7, 1955. Here is her testimony :

“Q. You have lived with him as husband and wife since the date the property settlement was signed?

A. Yes, I have . . .

Q. To refresh your memory, I ask you if the property settlement was signed on the 7th day of February, 1955.

A. That’s right.

Q. But you have lived together as husband and wife since the date of that contract?

A. That’s right, he did not move that day.”

When Mr. Ayers was asked about this matter of condonation, he testified:

“Q. Mr. Ayers, the testimony has been throughout the trial that the last property settlement that you and your wife executed was on February. 7th, 1955. Is that true and correct?

A. Yes, sir.

Q. That’s true and correct. I’ll ask you on that night did you go to your home, where Mrs. Ayers was— I will ask you, did you all on that night sleep together as man and wife and have sexual relations as man and wife on the night that you signed the property settlement?

A. On the night that we signed the property settlement?

Q. Yes, sir. At 2120 Valley Lane.

A. I don’t remember.

Q. Would you say then that you did not or that you did?

THE COURT: He said he didn’t remember, Mr. Rose.

A. Jack, I can’t truthfully say yes and I can’t truthfully say no because I don’t remember that night.”

Mr. Ayers knew all about the alleged misconduct and infidelity of his wife at the time of the signing of the property settlement on February 7, 1955; yet he did not deny that they resumed marital relations that night after the property settlement had been signed. I maintain that such testimony makes a clear case of condonation and that Mr. Ayers should not be granted a divorce since he had condoned the very acts on which the majority of this court is granting him a divorce. The majority opinion says:

“We do not regard condonation as being an issue in the case, although it was mentioned during the court’s deliberations. In the course of her testimony the appellee stated that she and her husband had marital relations a day or two before they separated. This issue, however, was not raised by the pleadings, was not explored at the trial, and has not been argued in the briefs. A defense that was apparently waived by the appellee and that was certainly not fully developed should not be made the controlling point in the case.”

The Chancellor said that Mr. Ayers had “almost” established Mrs. Ayers’ infidelity; yet the Chancellor denied Mr. Ayers a divorce; and it could well have been on this ground of condonation. In the case of Buck v. Buck, 205 Ark. 918, 171 S. W. 2d 939, we discussed in considerable detail the matter of condonation:

“While appellant did not specifically plead con-donation as a defense in her answer, in the course of the trial, it developed, from the testimony, that there had been a condonation on the part of appellee, and we think the court should have treated, and did treat, the answer as amended to conform to this proof. As indicated, we think the preponderance of the testimony supports appellant’s contention that these parties resumed their marital relations voluntarily and in good faith; that ap-pellee, by his acts, condoned his wife’s misconduct, and that the court erred in awarding him a divorce.”

Thus when condonation is shown by the evidence, the pleadings are treated as amended; and apparently the Chancellor so understood. The Chancery Court evidently considered the matter of condonation because the Chancellor denied Mr. Ayers a divorce. On appeal here, Mrs. Ayers was defending the decree granted to her; and so there was no occasion for her to mention con-donation in her brief. Certainly the appellant, Mr. Ayers, was not going to spend a great deal of time calling the Court’s attention to his condonation. But the majority is in error in saying that the matter was “waived”. Condonation is always an issue, because the State is always a silent third party in every divorce case ; and when’ parties have cohabited, with knowledge of infidelity, the State is entitled to have them remain as husband and wife. (See 27 C. J. S. 703 “Divorce”, § 114.) On this point of condonation, I respectfully dissent from the majority holding in the case at bar.


source: Caselaw Access Project

author: Paul Ward, Associate Justice.

license: Public Domain

text:
    Gillenwater v. Johnson.
    5-549
    290 S. W. 2d 1
    Opinion delivered May 14, 1956.

      Norton & Norton and Harvey G. Simmons, for appellant.

      Daggett & Daggett and Ronald A. May, for appellee.
   Paul Ward, Associate Justice.

On March 24, 1955 appellee, James Johnson, was struck and injured by a pickup truck which was owned by appellant, Wallace Gillenwater, and driven by his employee, Cleophus Hicks. A suit for damages was filed by appellee alleging negligence on the part of appellant’s employee-driver, and also alleging a fracture of the left fibula, mangled and lacerated right ear, and contusions on chest, shoulders and back. In his answer appellant alleged contributory negligence on the part of appellee, and further, (a) that on March 30, 1955 appellee released appellant of all claims in consideration of the payment to him of $100 and a promise to pay up to $100 for medical expenses, and (b) appellee ratified and confirmed the above settlement by endorsing and cashing a draft for $100 on April 1, 1955. A .jury trial resulted in a judgment in favor of appellee, and appellant prosecutes this appeal.

The only grounds relied on by appellant for reversal are (a) the release executed by appellee on March 30, 1955 and (b) the ratification by appellee on April 1, 1955 when he endorsed and cashed the settlement check. Both of these grounds are covered by appellant’s assertion and appellee’s denial that James Johnson was mentally capable of understanding and executing the release on March 30th and the ratification on April 1st. Since appellant makes no objection to any of the court’s instructions, the question for our decision here may be stated in this way: Is there substantial evidence to sustain the jury’s finding that appellee did not have mental capacity to understand and appreciate the effect of the release and ratification. After a careful consideration of all the testimony we reach the conclusion that this question must be answered in the affirmative.

It is not denied that on March 30th appellee, after he was injured on March 24th, made a settlement for $100 in lieu of all injuries sustained and the like amount for medical expenses, or that on April 1st he endorsed and cashed the draft for $100. It is not contended by ap-pellee that the representative of the insurance company involved made any misrepresentation to or in any way over reached appellee to induce appellee to make the settlement or accept the draft. There are, however, other facts and circumstances disclosed by the record which we think justified the jury in reaching its verdict.

Appellee is a negro about 90 years old with scarcely any education. It is admitted by appellant that at the time the settlement was made appellee was injured more severely than he himself knew or the insurance company’s representative knew. Following the accident appellee was treated by a physician who prescribed, and appellee took, codeine tablets. One doctor testified that appellee could have had a slight concussion and that appellee, as a result of the accident and of taking the codeine tablets, could be incapable and incompetent to transact business at tbe time tbe settlement was made. Another doctor, in answer to a bypotbetical question, stated: “Taking into consideration bis age, and with cerebral arteriosclerosis, and never having been to a doctor before, and probably never having taken any codeine before, be could have probably got a ‘buz’ on— kind of a slight drunk with half a grain of codeine. I think all of that, that would affect bis mental processes some.”

Appellant makes tbe point that there is no testimony to show tbe mental condition of appellee at tbe exact time tbe settlement was made, and argues that be could have bad a lucid interval at that particular time in spite of tbe medical testimony referred to above. We think however that tbe question for tbe jury was whether appellee’s over all mental condition was such, during tbe period from March 30th to April 1st, that be fully understood and realized tbe implications and results of bis actions in attempting to release bis claim for injuries.

Affirmed.


author: Sam RobiNsost, Associate Justice.

text:
    Dedmon v. Thalheimer.
    5-937
    290 S. W. 2d 16
    Opinion delivered May 14, 1956.

      Richard W. Hobbs and B. W. Thomas, for appellant.

      Wootton, Land & Matthews, for appellee.
   Sam RobiNsost, Associate Justice.

This is a personal injury case growing out of an automobile collision. Appellant was the plaintiff in the Circuit Court, and there was a judgment for the defendant, appellee. The principal issue on appeal is the court’s ruling in refusing to permit the plaintiff to question the veniremen with reference to any connection with insurance companies.

Counsel for appellant asked permission to discuss a matter in chambers. Upon retiring, he stated to the court that he would like to ask the veniremen in a group the following question: “Have you ever been in the employ of any liability insurance company, or do you own any stock in any liability insurance company at the present time, or are you insured with any mutual benefit liability company where your premiums are determined upon the size of judgments given in personal injury actions for the previous year?” Appellee objected to the question being asked, and questioned the good faith of counsel for the plaintiff in seeking to ask the question. It developed that the defendant was insured by the St. Paul-Mercury Indemnity Company; and counsel for the plaintiff insisted that he, in good faith, wanted to propound the question. The court replied that it was understood that counsel was in good faith, but that the question of insurance had no place in the case, and sustained the objection. The court considered that counsel was in good faith in attempting to ask the question, and there is nothing in the record going to show otherwise.

In the trial of a civil action in circuit court in this State, each side' has the right to excuse three veniremen peremptorily. In cases where the defendant is covered by liability insurance, the plaintiff might want to excuse any one that he suspects may be either biased or prejudiced where insurance is involved; and he would have a perfect right to exercise a peremptory challenge for that reason, if he so desired. The test of whether counsel may ask questions of veniremen in regard to insurance is whether the questions are propounded in good faith. If counsel, in good faith, thinks that liability insurance is involved, then he may ask questions calculated to bring to light any bias or prejudice a venireman may have for or against insurance companies. The thing works both ways: A person may have connections with an insurance company that would cause him to be biased in favor of such companies. On the other hand, a venireman may be, for some reason, prejudiced against insurance companies. A lawyer trying a case would be rather careless if he failed to ascertain as well as possible if any one on the venire was biased or prejudiced on a question involved in the litigation, even though such question would be only indirectly involved. Very seldom do lawyers on both sides know the connections and background of all the veniremen or whether they would have an opinion as to the merits of the case. And the purpose of the voir dire examination is to enable counsel to ascertain whether there is ground for a challenge for cause, or for the exercise of a peremptory challenge. Of course, questions about insurance would be improper if counsel does not in good faith believe that some insurance company is interested in the outcome of the litigation. Gill v. Whiteside-Hemby Drug Co., 197 Ark. 425, 122 S. W. 2d 597. But here, it is admitted that insurance is involved, and there is no indication of bad faith.

In the Gill case, the plaintiff was not permitted to ask the veniremen about insurance, but there it was shown, in chambers, that at the time of the mishap involved in the litigation the defendant had no insurance and no insurance company was interested in the outcome of the case. In Derrick et al. v. Rock et al., 218 Ark. 339, 236 S. W. 2d 726, evidence of insurance was unnecessarily and gratuitously injected into the trial, and in holding that such evidence was inadmissible, Ward v. Haralson, 196 Ark. 785, 120 S. W. 2d 322, was cited. In that case, it was said: ‘ ‘ The statement of counsel for appellees, injecting into the case the fact, if it be a fact, that appellants had insurance coverage, was wholly inexcusable, uncalled for by anything that bad previously occurred in the case, and was highly prejudicial.” .In Rambo v. Rambo, 195 Ark. 832, 114 S. W. 2d 468, it was held that a reference, in the complaint, to insurance not pertinent to the issue involved should be stricken.

But the rule with regard to questioning a venireman about his connection with an insurance company is stated in an extensive annotation in 4 A. L. R. 2d 761, at page 793, as follows: “Provided counsel acts in good faith, he may, in one form or another, question prospective jurors on the voir dire respecting their interest in, or connection with, liability insurance companies.” A great number of cases from the federal courts and about 35 states are cited in support of the rule. Among our own cases cited which support the rule are: “Pekin Stave & Mfg. Co. v. Ramey (1912) 104 Ark. 1, 147 S. W. 83; Cooper v. Kelly (1917) 131 Ark. 6, 198 S. W. 94; Williams-Echols Dry Goods Co. v. Wallace (1920) 142 Ark. 363; 219 S. W. 732; Ellis v. Warner (1930) 182 Ark. 613, 32 S. W. 2d 167; Bourland v. Caraway (1931) 183 Ark. 848, 39 S. W. 2d 316; Sutton v. Webb (1931) 183 Ark. 865, 39 S. W. 2d 314; Lewis v. Cox (1933; Ark.) 58 S. W. 2d 215; Loda v. Raines (1937) 193 Ark. 513; 100 S. W. 2d 973; Missouri Pacific Transp. Co. v. Talley (1940) 199 Ark. 835, 136 S. W. 2d 688 (cert. dismd. (1940) 311 U. S. 722, 85 L. Ed. 470, 61 S. Ct. 5) (compulsory insurance).”

Appellant contends that the court erred in permitting the introduction of the repair bill of one of the automobiles involved in the collision. “It is contended by appellant that the question of the violence or force of such impact cannot be shown by the amount of the repair bill to one of the automobiles involved in the collision. ’ ’ If only slight damage was done to an automobile involved in a collision, as shown by the repairs which were necessary, such small damage would be a reasonable inference that the impact was not great, hence the evidence was admissible.

For the error in refusing to permit counsel for the plaintiff to question the veniremen with respect to insurance, as pointed out, the cause is reversed and remanded for new trial.


author: Sam Robinson, Associate Justice.

text:
    Southern Lumber Company v. Cash, Commissioner of Labor.
    5-961
    290 S. W. 2d 11
    Opinion delivered May 14, 1956.

      Williamson & Williamson and W. H. Howard, for appellant.

      Luke Arnett and Clifton Bond, for appellee.
   Sam Robinson, Associate Justice.

A local office of the Employment Security Division of the State Labor Department denied compensation to certain employees on strike. The issue here is whether there was a valid appeal to the Board of Review.

Prior to July 27, 1953, C. F. Douglas, W. 0. Moore, C. R. Wolfe, John L. Wolfe and Elmer Wolfe, hereinafter referred to as the appellees, were employees of the Southern Lumber Company. At that time, they went out on strike, along with about 175 other employees. A short time later, appellees and the others on strike applied to the local office of the Employment Security Division for unemployment benefits. Their application was denied on the ground that they were directly involved in a labor dispute, causing the work stoppage. On September 1, 1953, the appellees, with the other strikers, filed an appeal with, the Board of Review. On November 12, 1953, the strike was called off, but the appellees were not re-employed although they, repeatedly sought to return to work. The evidence is convincing that it was not because of any fault on their part that they were not re-employed. All of the original strikers withdrew their appeal to the Board of Review except the appellees in the case at bar. They continued to sign for unemployment compensation. Moore signed nineteen times.

In March 1954, the fact that these appellees were not being paid unemployment benefits was called to the attention of Mr. Robert B. Taylor, representative of labor. He inquired of the local office of the Employment Security Division as to the reason these men were not being paid benefits. Following this inquiry, in the early part of April 1954, the local board issued an order denying benefits to the appellees on the ground that they were disqualified because they had voluntarily quit their employment without just cause. On April 9, 1954, Mr. M. P. Filiatreau, Chief of Benefits of the Employment Security Division, wrote to Mr. Tayior, as follows: ‘‘ On March 31 you wrote this office requesting information regarding the denial of benefits to individuals who were involved in the labor dispute at the Southern Lumber Company of Warren, Arkansas. According to our records there are five individuals who were denied benefits under Section 5 (a) of the Arkansas Employment Security Law following the termination of the stoppage of work caused by the labor dispute. Each of these cases has been appealed to the Appeals Tribunal and is subject to review by that body.”

Following Mr. Filiatreau’s letter, the matter was set for a hearing before the Board of Review. The appellant, Southern Lumber Company, contended that, actually, there had been no appeal by the appellees from the order denying compensation on the ground that they voluntarily quit without just cause. No other reason was given in support of the contention that compensation should be denied. The Board of Review ruled in favor of the appellees; the lumber company appealed to Circuit Court, where the ruling of the Board of Review was affirmed, and the company has appealed to this court.

Appellant contends that, although the appellees appealed from the first order of the local office denying compensation on the ground that they had participated in a labor dispute causing work stoppage, there was no appeal from the order denying compensation on the ground that they had voluntarily quit their work without good cause. To say that appellees took no appeal to the Board of Review on the question involved would be disposing of the case on an extreme technicality. Soon after appellees stopped work, they applied for compensation; it was denied; they appealed; they never returned to work; they never withdrew their appeal. There is no sound reason why they should have to take a second appeal. At all times after the appeal, there was a controversy pending before the Board of Review between appellant, on the one hand, and appellees, on the other, as to whether compensation should be paid. The Board of Review had full authority to settle all controversies existing between the parties at the time of the hearing on appeal. It would be contrary to the spirit of the act to hold otherwise. Of course, if one of the parties pleads surprise and requests additional time to prepare on some issue he has not deemed as pending on appeal, his request should be given full consideration. But, in this case, there was no indication that there was any defense to the claims for compensation except the issue of whether there was a valid appeal. The Board of Review and the Circuit Court were correct in holding that the appeal which was pending and undisposed of, involving the question of whether appellees were entitled to benefits, was sufficient to give the Board of Review jurisdiction to determine whether the local office was correct in denying benefits for any cause.

Affirmed.


author: Lee Seamster, Chief Justice.

text:
    Padgett v. Arkansas Power & Light Co.
    5-960
    290 S. W. 2d 426
    Opinion delivered May 21, 1956.

      Frecl Newth and Kenneth G. Coffelt, for appellant.

      Neill Bohlinger, House, Moses & Holmes and William M. Clark, for appellee.
   Lee Seamster, Chief Justice.

This appeal is from the judgment of the Pulaski Circuit Court, Second Division, sustaining a demurrer to appellants’ complaint containing allegations to the following effect:

“The defendant is a private corporation organized and existing under the laws of the State of Arkansas. Its stock is owned by individuals as private personal property. It is a public utility corporation generating, transmitting and selling electric power in Little Rock, and various sections in Arkansas in connection with the operations of its enterprises. It constructs and maintains power lines for the transmission of electricity in the City of Little Rock, Arkansas, and elsewhere within the state.
‘ ‘ Within one year next before the filing of this suit, the defendant, its agents, servants and employees, with the consent and authority of the Public Service Commis-' sion of Arkansas, and the City Council of Little Rock, constructed a heavy voltage high power line across, over and upon certain portions of the said parcels of properties of each of the plaintiffs, as herein above described, to which they hold fee simple title, subject to street easements for construction of utility lines and street uses, thereby taking such portions of plaintiffs’ said properties without just compensation to them, and thereby damaging the remaining portions of each of the parcels of the plaintiffs’ said properties as herein alleged in this complaint, in that the said erection of said power line, including its posts, wires, cross arms, guy wires, dead men, and its entire construction which is located within the boundaries of the easements of the streets adjoining the said properties of the said plaintiffs has reduced the market value of each of the properties of the plaintiffs, herein described, at least (50%) fifty per cent.
“Each of the parcels of the properties of the plaintiffs, as herein described, borders certain streets within the City of Little Rock. It is within the boundaries of these streets that the said power line and its entire construction is located, but the plaintiffs allege that their fee simple title to their said parcels of properties herein described, extends to the center of -said streets wherein the said power line is located, and that, therefore, the erection of said power line by the defendant constitutes an additional servitude on each of the parcels of property of each of the plaintiffs, as herein described.
“The said power line was located by the defendant, its agents, servants and employees, for the purpose of distribution of said electricity for light and power within the City of Little Rock.
“Plaintiffs allege, that said power line is a high voltage line carrying 115,000; that the poles of the line ar.e approximately 80 feet high from the ground, and they have 17 foot cross-arms; that because of its very nature, as herein alleged, it has decreased the value of plaintiff’s properties at least 50%; that because of this fact the laying of said power line in the manner as herein set forth, not only has ■ taken the properties of the plaintiffs within the streets where the line is located, but it amounts to taking their entire properties in that its construction has damaged the entire lands of the plaintiffs herein described and as herein set forth.
“These plaintiffs, and the entire territory wherein said power line was constructed, have been supplied with electric power by defendant for many years. The franchise under which the defendant has the right to construct electric power lines within the street easements in the city of Little Rock, was executed and entered into in 1888. The streets adjacent to plaintiffs’ properties were dedicated as public streets subsequent to 1888 and prior to plaintiffs’ acquisition of their said properties herein described. The plaintiffs do not believe, and therefore allege, that at that time it was not contemplated by any person or government agency that such a power line as is involved in this suit, would ever be constructed within any residential district of the said City of Little Rock.
“Plaintiffs allege that they have no other remedy save this suit to recover the damages due them which has been done their property by the construction of said power line by the defendant, as herein set forth.”

For reversal of the trial court’s judgment, the appellants cite the following points:

“ (1) The construction of the power line constitutes additional servitude on the lands of the plaintiffs.
“(2) The construction of the line constitutes a taking of all of the lands of the plaintiffs inside and outside of the street easement, because the construction of the line has diminished in value the entire properties of the plaintiffs fifty per cent. Their lands, therefore, have been taken without just compensation in violation of Section.of the State Constitution.
“ (3) When the street was dedicated it was not contemplated that such a power line as is involved in this case, would be constructed in any residential area in Little Rock, and therefore, the easement agreement is not binding against these plaintiffs.”

The question thus presented in this case is whether the construction of a high voltage electrical line by the appellee, wholly within the street easement, amounted to the talcing of a portion of the appellants’ properties, and damaging the remaining portions of the said properties without just compensation to the appellants. The appellants earnestly insist that the construction of the power lines in the street easements adjacent to their lots is the imposition of an additional servitude on their lands, a talcing of a new and distinct easement without just compensation for resulting damages.

The appellants rely upon the authority cited in Southwestern Bell Telephone Company v. Biddle, 186 Ark. 294, 54 S. W. 2d 57. In this case the court referred to Section 3989, Crawford and Moses’ Digest (Section 73-1801, Arkansas Statutes, Anno., 1947), which follows:

“Any person or corporations organized by virtue of the laws of this State, or of any other State of the United States, or by virtue of the laws of the United States, for the purpose of transmitting intelligence by magnetic telegraph or telephone, or other system of transmitting intelligence, the equivalent thereof, which may be hereafter invented or discovered, may construct, operate and maintain such telegraph, telephone or other lines necessary for the speedy transmission of intelligence along and over the public highways and streets of the cities and towns of this State, or across and under the waters and over any lands or public works belonging to this State, and on and over the lands of private individuals, and upon, along, and parallel to any of the railroads or turnpikes of this State, and on and over the bridges, trestles or structures of said railroads; Provided, the ordinary use of such public highways, streets, works, railroads, bridges, trestles or structures and turnpikes be not thereby obstructed, or the navigation of said waters impeded, and that just damages shall be paid to the owners of such lands, railroads and turnpikes, by reason of the occupation of said lands, railroads and turnpikes by said telegraph or telephone corporations.” The holding of the court in this case was:
“We also think that the erection of a telephone line upon the public highway along lands of adjoining owners, in which the public only has an easement for nse as a highway, would not prevent the owner of the land from collecting damages for the new servitude to which his land is subjected, such use not having been in contemplation when the easement was taken or granted.”

In the case of Cathey v. Arkansas Power and Light Co., 193 Ark. 92, 97 S. W. 2d 624, the court held that where a power line was constructed along a state highway, the adjacent land owner over whose land the power line was constructed in the highway easement was entitled to nominal damages for the additional servitude not contemplated when the easement was originally acquired.

It would hear to note that the two cases cited above have reference to telephone and power lines constructed over highway easements in the country, i. e., rural property. There is a generally recognized distinction between a highway in the country and a street in a mu-dcipality, as to the mode and extent of the use and enjoyment, and, consequently, as to the extent of the servitude in the land upon which they are located, the urban servitude being much more comprehensive than the rural. Streets within the limits of municipal corporations are subject to many uses by the public to which highways in the country are not subject. Moreover, as a village grows into a town and the town grows into a city, the rights of the public in its streets are correspondingly broadened. As a rule, country highways are needed only for the purpose of passing and repassing, and, subject to some exceptions, the rights of the public and of the authorities in charge are confined to the use of the surface, with such rights incidental thereto as are essential to such use. Streets, however, may be used for many purposes other than travel, such as construction of sewers and drains, the laying of gas and water pipes, the erection of telegraph, telephone and electrical power lines, and a variety of other improvements, beneath, upon, and above the surface, to which in modern times they have been subjected. See Colegrove Water Co. v. Hollywood, 151 Cal. 425, 90 P. 1053, 13 L. R. A. (NS) 904; Lostutter v. Aurora, 126 Ind. 436, 26 N. E. 184, 12 L. R. A. 259; Henkel v. Detroit, 49 Mich. 249, 13 N. W. 611, 43 Am. Rep. 464; Allen v. Boston, 159 Mass. 324, 34 N. E. 519, 38 Am. St. Rep. 423; Ft. Wayne v. Coombs, 107 Ind. 75, 7 N. E. 743, 57 Am. Rep. 82; Smith v. Central Power Co., 103 Ohio St. 681, 137 N. E. 159.

The evolution of public utilities and the widespread and ever-increasing use of public utility service throughout the state have greatly varied the uses of the streets. It is doubtful whether this great variety of uses has really increased the burdens. The increased burdens upon the streets are caused primarily by the largely increased population, and the demands of the people for necessities, conveniences, and luxuries of modern living conditions. It has been found more economical as well as more speedy to transport merchandise and passengers by rail, to convey electrical energy for light, heat, and power and to transmit messages and information by wires, and to convey gas for fuel and lighting and water for municipal purposes by pipe lines, and other utilities by still other and different methods.

It is hardly correct to say that by such new adoptions the streets are subjected to uses not contemplated when streets were laid out many years ago. It would be more correct to say that present uses are the progression and modern development of the same uses and purposes.

The allegation of the appellants, in their complaint, is to the effect that the construction of the power lines in the street easement constitutes an additional servitude on the properties of the appellants. Their entire claim for damages is based on the theory that the construction of the power lines involved in this case is not a use of a street within that allowable under a public easement for utilities. The complaint concedes and states that the appellee “had the right to construct electric power lines within the street easements in the City of Little Rock.”

It is only when a street is subjected to a new servitude inconsistent with and subversive of its proper use as a street, that the abutting land owner can complain. In no event would compensation in such case be allowed for speculative or contingent damages. We find that the street easement carries with it the right to construct on the streets in cities and towns such reasonable facilities as may be needed to carry public utility service to the inhabitants of such municipalities. In the instant case no additional servitude is imposed upon the property of appellants by construction of such reasonable facilities in the abutting street easements.

Finding no error, the case is affirmed.


author: Lee Seamstee, Chief Justice.

text:
    Manley v. State.
    4840
    290 S. W. 2d 446
    Opinion delivered May 21, 1956.

      George F. Hartje, for appellant.

      Tom Gentry, Attorney General; Ben J. Harrison, Assistant Attorney General, for appellee.
   Lee Seamstee, Chief Justice.

The appellant, Richard Manley, Jr., was tried and convicted in the Faulkner Circuit Court of the crime of unlawfully possessing intoxicating liquor for sale in a prohibited area, after having been previously convicted of the same offense. The jury assessed Ms punishment at a fine of $750.00. This appeal follows.

The appellant contends for a reversal of the judgment the following: (1) the Court erred in failing to direct a verdict of acquittal for the reason that the evidence was not sufficient to convict the appellant of the crime charged; (2) that a mistrial should have been granted when the prosecuting attorney in his opening statement to the jury said, “the appellant was tried in the municipal court and convicted”; (3) because the prosecuting attorney in his opening statement to the jury said, ‘ ‘ officers and others will testify that this man (the appellant) is a known bootlegger — has a reputation of being a known bootlegger,” and, (4) that the Court erred in giving instruction No. 6, which is:

“Possession of personal property may be actual or constructive. Possession is such control of property that the person having it may legally enjoy it to the exclusion of others, and it means that which one occupies or controls.
“Actual possession is the detention and control of the manual or ideal custody of anything which is the subject of property.
“Constructive possession simply means that while the property is not actually in the physical control of the owner, it is assumed to exist where a person holds claim thereto.
“The defendant is charged with the unlawful possession of liquor for the purpose of sale. If, as the owner of the premises upon which it is charged intoxicating liquors were kept, if such occurred, defendant unlawfully-possessed intoxicating- liquors for the purpose of sale, either actually or constructively, and the jury finds such to have occurred by evidence convincing you of his guilt beyond a reasonable doubt, then defendant should he convicted.”

The record reveals that the appellant owns a building which faces on Markham Street in Conway, Arkansas. There is a parking lot situated at the rear of the building. There is also an outside door located at the rear of the building which opens into a hall. From this hall there are other doors which open to a cafe, closet, and to a room which is sub-let to a group or association of individuals who call their organization the Monarch Club. There is a one chair barbershop located in the northeast corner of the building; the cafe is situated just south of this barbershop. The two occupy all of the building facing on Markham Street. The appellant utilizes a room for his office in the southwest corner of the building.

The appellant testified that he rented the barbershop to Charlie Henry; the cafe to Gloria Stein Holloway; and, the club rooms to the Monarch Club. The Monarch Club consists of six members and Charlie Henry, the barber, was one of the members and acted as treasurer for the Club.

On March 4, 1955, the sheriff of Faulkner County and other duly authorized officers, who were armed with a search warrant, conducted a raid on appellant’s place of business. They found four half-pints of whiskey in the hall closet and nine half-pints of whiskey in the club room refrigerator. They also found one half-pint bottle of whiskey, about half full, on a table in the Club room. A search of a trash can in the hall produced thirteen empty half-pint whiskey bottles.

Other evidence was introduced to show that taxicabs would frequently drive to the back door of appellant’s building and discharge a passenger who would enter the building and return immediately to the waiting cab; that on two separate occasions persons emerging from the rear door of the building were searched and each of them had on his person a one-half pint bottle of whiskey; that appellant plead guilty, on May 5, 1952, to possessing more than one gallon of liquor in a dry county; that on December 15, 1954, the appellant was tried and convicted of the charge of possessing liquor for sale in a dry county.

The record also reveals that duly authorized officers had raided the appellant’s place of business no less than three times in the past three years, always finding whiskey in the building; that during the recent raid, officers found the hall closet locked and Charles Henry, the barber, told them he had no key to the door, whereby, the officers threatened to break the door and the appellant intervened and instructed Henry to open the door with his (Henry’s) key. The evidence also amply shows that appellant had the reputation in the community of being a liquor dealer.

The appellant testified that he did not have any control over the part of the building rented to other parties ; that he did not own the whiskey found in the building and that he had nothing whatsoever to do with the liquor.

The cafe operator testified that she was the owner of the four half-pints of whiskey found in the hall closet and all sis of the members of the Monarch Club testified that they owned the whiskey that was found in the Club room. These members also testified that at the previous trial of appellant, they had testified that they owned the whiskey found on the premises, at the time of the previous raid.

The jury heard the witnesses testify; they observed their demeanor while on the stand and if there is any substantial evidence introduced to sustain the jury’s verdict, the Court will not disturb their verdict. The evidence in this case is sufficient to sustain the jury’s verdict. The jury had the right to conclude, from the facts and circumstances introduced in this case, that appellant was engaged in the liquor traffic in a dry county; that the Monarch Club was only a device which appellant would use as a shield in ease he was caught with the illegal whiskey.

In regard to point number two, the court sustained the objection of appellant and admonished the jury as follows:

“I will repeat to you the admonition, to disregard the statement made by the Prosecuting Attorney as to the disposition of the case in the lower court, and it should not have any hearing on your determination of the guilt or innocence of the defendant in the trial of this ease, and you should determine his guilt or innocence today upon the evidence heard in the trial of the case and the instructions of the Court and not for any other reason or on any other basis.” This admonition cured the error by the prosecuting attorney. See Walker v. Fayetteville, 93 Ark. 443, 125 S. W. 412.

The objection to the prosecuting attorney’s statement that he expected to prove by the officers that “appellant was a known bootlegger — had a reputation of being a known bootlegger, ’ ’ was not reversible error for the reason that it is permissible to make proof of a defendant’s reputation in the trial of a person charged with violating the liquor law in a dry county. Ark. Stats. 1947, Sec. 48-940. See also Craig v. State, 204 Ark. 798, 164 S. W. 2d 1007; Hughes v. State, 209 Ark. 125, 189 S. W. 2d 713.

The contention of appellant that instruction No. 6 was error because there was no evidence to show that the liquor found was actually or constructively the property of appellant is similar to the request for an instructed verdict. The testimony indicated that appellant demonstrated his control over the premises when he directed Charlie Henry to open the door to the locked hall closet where a portion of the whiskey was discovered. We hold that the instruction was proper in view of all the facts and circumstances proven at the trial.

Finding no error, the judgment is affirmed.


author: J. SeaborN Holt, Associate Justice. George Rose Smith, J.,

text:
    Spradling v. Green.
    5-934
    290 S. W. 2d 430
    Opinion delivered May 21, 1956.

      Gus Causbie and 8. M. Bone, for appellant.

      George W. Booth, for appellee.
   J. SeaborN Holt, Associate Justice.

This litigation involves title to a 5 acre tract of land described as: “A part of the SE 1/4 of the NE 1/4, Section 13, Township 19 North, Range 4 West, lying west of Booth’s Creek containing 5 acres more or less and described by metes and bounds as follows: Beginning at the southwest corner of the SE 1/4 NE 1/4, Section 13, thence north on the half mile line to the point of intersection of Booth’s Creek; thence along the present bed of said creek to the point of intersection with the south line of the SE 1/4 NE 1/4 of Section 13; thence west to the point of beginning.” The facts appear not to be in dispute. As early as 1902 C. D. Foster conveyed this 5 acre tract to M. F. Booth and by mesne conveyances the land was conveyed to appellant, Otis Spradling in 1952. Appellants and their predecessors in title have been in actual possession and control of the said tract of land since 1902. This tract was never segregated and assessed separate from the 40 acre tract, but was included therein. Appellants and their predecessors paid the taxes on this 5 acre tract under an erroneous description as being in the NE 1/4 of the NE 1/4, Section 13, Township 19 North, Range 4 West, until 1945, when a correct description was made of this 5 acre tract on the tax books and, thereafter to the present, appellants háve paid taxes due on this 5 acre tract under the correct description of SE 1/4 of NE 1/4 Section 13, Township 19 North, Range 4 "West. The alleged owners of the SE 1/4 of NE 1/4 above, continued to pay the taxes on the entire 40 acre tract, which included the 5 acre tract, until 1935 when it forfeited to the State for the year 1935, was sold and title confirmed in the State on March 4, 1941. Thereafter, on October 26, 1954, the State Land Commissioner executed a deed to the SE 1/4 of the NE 1/4 Section 13, Township 19 North, Range 4 West (40 acres) to appellee, I. N. Green. The record reflects that appellee concedes the following: “Mr. Causbie: 'We desire to introduce the tax receipts from the year 1935 to the year 1954, inclusive, which show that the land was paid on as the Southwest Part of the Northeast of the Northeast until 1945, and from that time on was paid on as the Southwest Part of the Southeast of the Northeast.’Mr. Booth:‘That is correct’ . . . ‘I agree that in 1902 C. D. Foster deeded this fractional five acres to M. F. Booth and that there were about six transfers of the same land to other parties until Harvey Spradling acquired the land on August 10, 1949, and that on August 2, 1952, Harvey Spradling conveyed the land to Otis Spradling, and that this is the same land in controversy here.’ ”

From a decree declaring that appellee was the owner in fee simple of the SE 1/4 of NE 1/4 Section 13, Township 19 North, Range 4 West, containing 40 acres more or less, is this appeal. Appellee says: ‘ ‘ The only question before this court is: ‘did the State have power to sell in 1935, land that had not been separated from the forty acre tract?’ This five acre tract that was purchased in 1902. The owner of the forty acre tract, as far as the records show, continued to pay the taxes on the whole forty until 1935 when it went delinquent. Then the whole forty was sold for taxes and confirmation was had in 1941.”

Our rule is well settled that a tax sale is void when it appears that the taxes had been paid on the land at the time of the foreclosure tax sale. The power to sell requires that there must be a lawful tax due, and “the owner fairly in default,” (Lumsden v. Erstine, 205 Ark. 1004, 172 S. W. 2d 409, 147 A. L. R. 1132). Obviously, it appears to us here that the State was accepting and collecting taxes twice on this same 5 acre tract, in other words, taxes that had been paid in 1935, and it does not appear that this tract had ever forfeited for taxes. Act 423 of 1941 [now § 84-1325 Ark. Stats. 1947] relating to the force and effect of a confirmation decree of the sale by the State of tax forfeited lands provides: “Nothing in this Act shall prevent any person attacking such decree at any time on the grounds that taxes have actually been paid. ’ ’ Since appellee acquired this property on October 26, 1954, some 13 years after the effective date of Act 423 of 1941, it applies here, and as indicated, if the taxes had already been paid on this 5 acre tract for the year 1935, (and not only for that year but from 1902 to the date of the present trial) and we hold that they were, then the State lacked the power to sell and the sale was void. In Wallace v. Brown, 22 Ark. 118, 76 Am. Dec. 421, this court said: “It has been well said, that the delinquency of the owner to pay the taxes, is the essential fact upon which the power of sale rests. The right to sell is founded on the non-payment of the tax. If the tax be paid before the sale, the lien of the State is discharged, and the right to sell no longer exists. Where the owner has performed all of his duties to the government, no court will sanction, under any circumstances, the forfeiture of his rights of property. The law was intended to operate upon the unwilling and negligent citizen alone. The legislative power extends no further. The sale involves an assertion by the officer that the taxes are due and unpaid, and the purchaser relies upon this, or on his own investigations, and his title depends upon its truth . . .”

Accordingly, the decree is reversed and the cause remanded with directions to enter a decree consistent with this opinion.

Justices Millwee, George Rose Smith and Ward dissent.

George Rose Smith, J.,

dissenting. The appellants had the burden of proving that the 1935 tax sale was void and that the State’s deed to the appellee therefore conveyed no title. The meager record in this case contains, in my opinion, no evidence to sustain the appellants’ attack upon the appellee’s title.

The majority hold that the sale was void for the reason that the taxes had actually been paid. The facts are that the appellants and their predecessors in title had, for many years prior to 1935, paid the taxes on a five-acre tract in the northeast quarter of the northeast quarter, perhaps in the belief that they were paying on five acres in the southeast quarter of the northeast quarter. As far as the record shows the five acres now in dispute had never been separated on the tax books from the rest of the forty-acre tract. Apparently someone else paid the taxes on the entire forty acres until it forfeited for nonpayment of the 1935 taxes. It is quite plain that if there was in fact any double taxation it was with respect to the other five-acre tract, on which the appellants and their predecessors were paying by mistake, and of course that fact would not ordinarily affect the validity of the tax sale involving the forty acres noAv owned by the appellee.

The most that can be said from the record is that the owners paid taxes on the wrong five acres, by mistake. The sole question then becomes: by whose mistake ? If the error was made by the taxing officials the sale would be void. Schuman v. Person, 216 Ark. 732, 227 S. W. 2d 160, 21 A. L. R. 2d 1269. But if the mistake was that of the taxpayer it would not affect the validity of the sale. As we said in Schmeltzer v. Scheid, 203 Ark. 274, 157 S. W. 2d 193: “Appellants allege, and the allegation is not disputed, that they thought they had paid the taxes every year on the two blocks in question, but it will require no argument to show that one may not discharge his obligation to pay his taxes by showing that he thought he had paid them when his misapprehension was not induced by some officer charged with the duty of collecting the taxes, and no such contention is made here.”

Even a mistake by the taxing official does not invalidate the sale if the landowner is equally at fault. In Redfern v. Dalton, 201 Ark. 359, 144 S. W. 2d 713, the landowner paid his money to the county clerk and directed that officer to redeem the land from a 1933 forfeiture and also to satisfy the currently due taxes for 1934. The clerk effected the redemption but failed to pay the current taxes. In holding that the clerk’s error did not invalidate the sale we said: “If it be said that the clerk should have included the 1934 taxes in the 1933 redemption certificate, it may be answered that he did not do so, and any inspection of the certificate would have disclosed the fact that it did not purport to cover the 1934 taxes . . . Taxes cannot be discharged in this manner, and the court below properly held that they had not been paid.”

It is unnecessary to cite other decisions to the same effect. It is settled by many prior cases that a landowner cannot plead his own mistake as a basis for setting aside a tax sale unless that mistake was induced by the taxing officials. There is a presumption that those officers perform their duty. Since the burden of proof was on the appellants and they failed to offer any evidence whatever to show that they were misled by the public officers, the chancellor had no choice except to follow the decisions of this court and uphold the appellee’s title. His decree should be affirmed.

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


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

text:
    Eureka Springs Sales Company v. Ward.
    5-963
    290 S. W. 2d 434
    Opinion delivered May 21, 1956.

      J. E. Simpson, for appellant.

      J. B. Milham and H. G. Leathers, for appellee.
   Ed F. McFaddiN, Associate Justice.

This appeal involves an auctioneer’s liability arising from the sale of some stolen cattle.

The appellant, Eureka Springs Sales Company, is a domestic corporation and operates a sales barn in Eureka Springs. On August 28, 1954, a man, giving his name as Clyde Williams, transported six cows to the barn of appellant for sale at auction that day. Four of the cows, which he said belonged to Edgar Ray, were sold for a gross of $418.63; and, after deducting a commission of $13.56, appellant’s check — drawn on the Bank of Eureka Springs for the net of $405.07 and payable to Edgar Ray — was delivered to the said Clyde Williams. The other two cows, which Clyde Williams said belonged to Mm, were sold for $183.66; and, after deducting $6.01 commission, a check for $177.65 was delivered by appellant to the said Clyde Williams.

Later, in the conrse of the auction sale, Clyde Williams bought two cows for a total of $124.00; and, at his suggestion, he redelivered to the appellant its check for $177.65 and, in return, received appellant’s check for $53.65 drawn on the Bank of Eureka Springs, and also received the two purchased cows, which he loaded in his truck and took with him and proceeded — it later developed — from Eureka Springs to Harrison. At Ber-ryville, enroute, Clyde Williams stopped at the grocery store of Shirley Williams and endorsed the said $53.65 check and received therefor some groceries and the balance in cash. Shirley Williams deposited the check in his bank and it was duly paid by the Bank of Eureka Springs when presented.

, Clyde Williams prpceeded from Berryville to Harrison, and there dropped his alias and became Edgar Ray, which was his real name. He had some time previously purchased a truck from J. P. Williams, a used car dealer in Harrison, and owed a balance of $325.00 on it, for which title had been retained. On August 28, 1954, Edgar Ray tendered to J. P. Williams appellant’s said check of $405.07, and received therefor a receipt for the $325.00 balance due on the truck. J. P. Williams cleared the title to the truck and gave Ray $80.07 balance in cash. J. P. Williams deposited the $405.07 check in the Security Bank of Harrison; and, when it reached Eureka Springs in due banking channels, payment was stopped by the appellant.

The reason payment was stopped was because the six cows which Ray (alias Williams) had taken to the Eureka Springs Sales Company had been stolen from the appellee, Charles J. Ward, a farmer in Oklahoma.. Ward had discovered the theft on August 28, 1954, and had diligently traced the cattle to the appellant’s sales barn. Ray was apprehended and remained in jail in ■Harrison for some time; and.while there he delivered the two cows (for which he had bid $124.00 at appellant’s sale, as aforesaid) to Shelby Morris to apply on a past due grocery bill. In dne time, Eay was tried in Oklahoma and convicted for cattle theft and sentenced to the Oklahoma penitentiary, where he was a prisoner at the time of the trial below.

Ward, the owner of the six cows, sued appellant, Eureka Springs Sales Company, for $602.29, the amount for which appellant sold the six cows at auction. Appellant tendered $602.29 into court, and interpleaded Shirley Williams, J. P. Williams and Shelby Morris, and asked affirmative relief against each of them. The various parties set up their respective claims and defenses; and trial in the Chancery Court resulted in a decree adverse to the appellant and in favor of each of the other parties; and from that decree appellant brings this appeal.

I. Appellant’s Liability To Ward. The Trial Court was correct in rendering judgment of $602.29 for Ward. There was evidence that the six cows might have been worth more, but Ward claimed only the amount appellant had received from the sale of the cattle, which sale was an act of conversion.

The general rule — as regards all personal property except money and negotiable paper — is, that a purchaser from a thief acquires no title against the true owner, in the absence of limitations and estoppel (and neither of these is involved in this case). Section 68-1423 Ark. Stats., being a portion of the Uniform Sales Act, is recognition of such rule. In the early case of Phelan v. Dalson, 14 Ark. 79, this Court said:

“. . . it is clear that where property has been obtained from the owner by a felonious act, his unqualified ownership is not in the least changed, and he may peaceably take it, in whose hands soever he may find it.” To the same effect see Russell v. Brooks, 92 Ark. 509, 122 S. W. 649; and see also 46 Am. Jur. 622. In 42 Am. Jur. 227, in discussing theft of personal property as affecting the owner’s title and civil rights as against an innocent purchaser from the thief, the holdings are summarized :
“Even though such a purchaser may be treated as having title and the right to their possession as against everyone but the rightful owner, a sale by the thief or by any person claiming under the thief does not vest any title in the purchaser as against the owner, though the sale was made in the ordinary course of trade and the purchaser acted in good faith.”

Thus, Ward never lost title to his cows; and appellant, by selling them at auction, became liable to Ward since such sale was a conversion. In 5 Am. Jur. 489, in discussing the liability of an auctioneer, there are these statements:

“The authorities are practically unanimous in holding that an auctioneer who sells property in behalf of a principal having no title thereto is personally liable to the true owner for conversion, regardless of whether he had notice of the true owner’s title, or whether he acted with the utmost good faith in total ignorance thereof . . . The fact that the auctioneer has sold the goods and turned over the proceeds to his principal in innocence and good faith affords him no protection. The rule of liability on the part of the auctioneer applies where he innocently sells stolen property; . . .”

In an Annotation in 20 A. L. R. 135, many cases are cited to sustain this text:

“An auctioneer who makes sale of property which does not belong to the one employing him, and passes the title to the purchaser, is personally liable to the true owner for the conversion.”

Appellant, by selling Ward’s cattle, became liable to bim for $602.29 for the conversion; and the Chancery Court was correct in so holding.

II. Appellant’s Liability To J. P. Williams. The Chancery Court was correct in rendering judgment against appellant in favor of J. P. Williams for $405.07, being the amount of the check on which appellant had stopped payment. As heretofore stated, the rule — that a thief can convey no title to stolen personal property— has no application to a thief transferring money or negotiable paper to a bona fide purchaser for value without notice. In 42 Am. Jur. 227-228, the text reads:

“A different rule, however, applies in the case of stolen money and negotiable securities, including travelers ’ checks . . . The rule is well settled that a bona fide purchaser of a negotiable bill, bond, or note, although he buys from a thief, acquires a good title, if he pays value for it, without notice of the infirmity of his vendor’s title.”

And again in 8 Am. Jur. 331, the text reads:

“It is familiar law that one in possession of chattels by theft can convey no title to an innocent purchaser. Coin and bank bills are excepted from this rule, however. As to those, even if feloniously obtained, the holder can convey a good title to an innocent purchaser. From the highest considerations of public policy and of commercial necessity, the law also excepts from the rule negotiable instruments acquired for value in good faith before maturity and without notice.”

In Mo. Pac. Rd. Co. v. M. M. Cohn Co., 164 Ark. 335, 261 S. W. 895, the Railroad Company had delivered a check to an imposter, who endorsed the check in the name of the payee and delivered the check to M. M. Cohn Company in return for merchandise of value. This Court held that the Railroad Company was liable to Cohn Company for the amount of the check; and that case is ruling here. J. P. Williams, in good faith and without notice, parted with his retained title to the truck and with money, all on the faith of appellant’s check. Williams duly deposited the check, and appellant is liable to Williams for the amount of the check. See also Annotations in 22 A. L. R. 1228; 52 A. L. R. 1326; and 112 A. L. R. 1435.

III. Appellant’s Claim, Against Shirley Williams. The Chancery Court was correct in refusing to allow appellant to recover from Shirley Williams for the amount of the check of $53.65. What has been said regarding the J. P. Williams claim applies here also. Shirley Williams had cashed appellant’s check and received the money thereon; and appellant cannot recover from Shirley Williams.

IV. Appellant’s Claim Against Shelby Morris. The Chancery Court was in error in refusing to allow appellant to recover from Shelby Morris the two cows (valued at $124.00) which Morris had received from Edgar Bay to apply on a past due grocery bill while Ray was in jail charged with cattle theft. Ray — alias Williams— acquired these two cows from appellant by an act of fraud: i.e., he represented himself to be the owner of the two stolen cows that had been sold for $177.65; and then redelivered the check for that amount to appellant to pay for the two cows here involved, worth $124.00. Thus Ray had acquired possession of the two cows (valued at $124.00) by a fraudulent act. Our quotation from Phelan v. Dalson, 14 Ark. 79, applies here:

“. . . it is clear that where property has been obtained from the owner by a felonious act, his unqualified ownership is not in the least changed, and he may peaceably take it, in whose hands soever he may find it.” See Russell v. Brooks, 92 Ark. 509, 122 S. W. 649; and see also 46 Am. Jur. 622 and 42 Am. Jur. 227.

Appellant could have recovered these two cows from Ray, and certainly Ray could pass no good title to Shelby Morris. A recent case applying the aforesaid principle is Dobbins v. Martin Buick Co., 216 Ark. 861, 227 S. W. 2d 620. Therefore, we reverse so much of the Chancery decree as refused appellant recovery against Shelby Morris; and remand that angle of the case to the Chancery Court with directions to enter a decree in favor of appellant as against Shelby Morris. In alJ other respects, the decree of the Chancery Court is affirmed.

V. Costs. Ward complains of the order of the Chancery Court that required him to pay all the costs of that Court. The Chancery Court has discretion in adjudging costs. Penix v. Pumphrey, 125 Ark. 332, 188 S. W. 816; Lyle v. Latourette, 209 Ark. 721, 192 S. W. 2d 521; Thomas v. Smith, 215 Ark. 527, 221 S. W. 2d 408. Ward has not cross-appealed; so we cannot consider his argument that the Chancellor abused judicial discretion in the matter of costs.

As regards all of the costs accruing after the decree below, we adjudge the same one-fifth against Shelby Morris and four-fifths against the appellant.

Justices George Rose Smith and .RobihsoN concur.

George Rose Smith, J.,

concurring. With respect to the two cows transferred to Morris, Justice Robinson and I would rest the decision on a different ground from that adopted by the majority. It is true that one who steals a chattel acquires no title that he can transfer to another, but it is also true that one who obtains property merely by fraud or trick acquires a voidable title that he can pass to an innocent purchaser for value. Pingleton v. Shepherd, 219 Ark. 473, 242 S. W. 2d 971. Morris, however, is not such a purchaser, for he merely credited the value of the cattle upon a pre-existing debt, which does not constitute the giving of value. Hamilton v. Rankin, 108 Ark. 552, 158 S. W. 496. Hence Morris is not entitled to retain the animals in any event, and it becomes unnecessary to determine whether Ray’s manipulations amounted to larceny or simply to fraud..

       Act 206 of 1937 (now found in § 78-901 et seq., Ark. Stats.) is an attempt to regulate the -moving of animals. Then we have two recent cases involving sales of stolen animals: see Oliver v. Eureka Springs Sales Co., 222 Ark. 94, 257 S. W. 2d 367; and Stanley v. Eureka Springs Sales Co., 223 Ark. 877, 269 S. W. 2d 319.

       See also 53 Am. Jur. 837, “Trover and Conversion,” § 41.


author: MiNoe W. Millwee, Associate Justice.

text:
    Williams v. Martin.
    5-939
    290 S. W. 2d 442
    Opinion delivered May 21, 1956.

      Odell Pollard and Barter, Henry & Thurman, for appellant.

      Tingling & Tingling, for appellee.
   MiNoe W. Millwee, Associate Justice.

Appellee, F. M. Martin, brought this action for damages growing out of a collision on August 16,1954, in which his pick-up truck was struck by appellant’s trailer truck at a point on U. S. Highway 67 near Judsonia, Arkansas where said highway intersects a graveled road known as the old Plainview Road. Trial resulted in a verdict and judgment for appellee in the sum of $1,500.

According to the evidence on behalf of appellee, he approached the intersection in question on the graveled road which intersects the paved highway at right angles on the north and stopped at a stop sign which is located some distance from the pavement. After looking in both directions and observing a car that passed going toward Searcy, he drove to the opposite or right-hand side of the paved highway, going in a northeast direction. As lie drove on the pavement, appellee observed in bis outside rear view mirror tbe loaded cattle truck driven by appellant’s employee, Carl Smith, at a rapid rate of speed about 200 yards behind the pick-up truck. After appellee had traveled about 35 or 40 yards on bis right hand side of tbe highway, appellant’s truck struck tbe left rear of appellee’s vehicle, knocking it off tbe right band side of tbe road. Tbe impact threw ap-pellee’s bead against tbe rear glass window of tbe truck and “addled” him. As be slumped over tbe steering wheel with bis foot on tbe accelerator, bis truck traveled about 300 feet down the graveled shoulder and back on tbe highway where it was again struck by appellant’s truck.

Appellee sustained injuries which hospitalized him for 21 days and required 26 stitches in bis bead and nose. It was stipulated that damage to bis truck amounted to $500. A sign reading “Reduce Speed Ahead” was located on tbe appellant’s driver’s right band side of the highway about 175 yards from tbe intersection and signs indicating a speed limit of 35 miles per hour were located on both sides of tbe highway about 55 yards further east toward tbe intersection.

While tbe testimony to tbe effect that appellee stopped at the stop sign and entered the intersection first is undisputed, tbe evidence on behalf of appellant was that appellee drove bis truck on tbe highway when appellant’s driver was only 30 or 40 feet from the intersection and while two cars going in tbe opposite direction were approaching tbe intersection and bad stopped suddenly to permit appellee to drive on tbe paved highway. Under this sharp dispute in tbe evidence, tbe questions of tbe negligence of tbe appellant’s driver and tbe contributory negligence of appellee were matters properly to be determined by tbe jury. It follows that appellant’s motion for an instructed verdict on tbe ground that appellee was guilty of contributory negligence as a matter of law was properly denied by tbe trial court.

B. L. Knox, a deputy sheriff, was called as witness by appellee. He testified that he was in the sheriff’s office at Searcy, Arkansas when he and another deputy, in response to a telephone call, drove to the scene of the accident and made an investigation. In response to a question as to whether appellant’s driver, Carl Smith, made any statement as to any effort on his part to avoid the accident, Knox was permitted to answer as follows, over the objection of the appellant: “He said it looked like there were so many cars and trucks in there that he had to do something; that he had to hit somebody. He said he was afraid if he hit his brakes too hard it would jack-knife the truck and kill the cattle in the truck. ’ ’

We agree with appellant’s contention that this statement of the driver was not a part of the res gestae and should not have been admitted. It should be noted that this testimony was not elicited to contradict or impeach appellant’s driver, who had not then testified, but was admitted as substantive evidence of his negligence. While the exact time that had elapsed since the accident was not shown, we take judicial notice of the fact that Searcy is several miles from the scene of the collision and that several minutes had elapsed since the accident when Smith made the statement. In Itzkowitz v. P. H. Ruebel & Co., 158 Ark. 454, 250 S. W. 535, relied on by appellant, a much shorter period of time had elapsed between the collision and the appearance of the officer than in the case at bar. After quoting at length from the case of Carr v. State, 43 Ark. 99, this court there held that statements of the defendant’s driver about his brakes not holding were not a part of the res gestae, saying: “The statements do not come within the definition thus given, for, if the statements of the driver merely constituted a narrative of a past event, elicited by questions propounded by the officer in investigating the circumstances of the collision, this does not make them a part of the transaction itself, but a mere history or narrative of the transaction, given afterward. The investigation and inquiry of the officer necessarily broke the continuity between the main fact sought to be elicited and the narrative, given of it, and we think that, nnder these circumstances, the evidence cannot be received as a part of the res gestae. River, Rail & Harbor Cons. Co. v. Gooclwin, 105 Ark. 247; Webb v. Kansas City Southern Ry. Co., 137 Ark. 107.”

The principles applicable in determining whether particular statements are admissible as a part of the re's gestae were stated by Chief Justice Hart in the opinion in Public Utilities Corp. of Ark. v. Cordell, 184 Ark. 678, 43 S. W. 2d 746, as follows: “No hard and fast rule on the subject can be laid down, and each case, in the very nature of things, must depend upon the accompanying facts. Various elements for consideration must be looked into. The declaration need not be strictly coincident with the act which caused the injury, but it must stand in immediate causal relation to that act and be a part of it. The declaration must be so near in point of time as to grow out of and explain the character and quality of the main fact, and must be so closely connected with it as to practically constitute ■ but one entire transaction. The evidence offered as part of res gestae must not have the earmarks of a device, or an afterthought, or be merely a narrative of a past transaction. Clinton v. Estes, 20 Ark. 225; Carr v. State, 43 Ark. 104; Little Rock, Mississippi River & Texas Ry. Co. v. Leverett, 48 Ark. 333, 13 S. W. 50, 3 Am. St. Rep. 230; Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494, 52 S. W. 7; Itzkowitz v. P. H. Ruebel & Co., 158 Ark. 454, 250 S. W. 535, and Kansas City So. Ry. Co. v. Morris, 80 Ark. 528, 98 S. W. 363.”

Appellee insists that even though Smith’s statement to Knox was not a part of the res gestae, it was not sufficiently prejudicial to warrant a reversal under our holding in Coca Cola Bottling Co. of Southwest Arkansas v. Carter, 202 Ark. 1026, 154 S. W. 2d 824. It is true that we there held a driver’s statement inadmissible but not prejudicial because there was ample substantial evidence aside from the statement to establish liability against the defendant. Although the judgment was not reversed, the verdict was drastically reduced in that case because of the error in admitting the statement. There is no contention in the instant case that the verdict is excessive and a majority of the court is unwilling to say the statement here involved was not prejudicial in view of the implication that the jury might draw therefrom to the effect that appellant’s driver preferred to protect his employer’s cattle at the calculated risk of injuring appellee.

Appellant also complains the court erred in giving Instruction No. 3 requested by appellee over the specific objection that it affirmatively placed upon appellant’s driver an unqualified duty to yield the right of way to appellee at the intersection. The instruction reads: “You are instructed that while it was the duty of the plaintiff Martin to bring his truck to a stop at the stop sign on the highway upon which he was traveling before entering the main highway, No. 67, at the intersection of the two highways, and to proceed cautiously, yielding to vehicles not required to stop which were within the intersection or were approaching it so closely as to constitute an immediate hazard; it was likewise the duty of the driver of defendant’s truck to yield the right of way to plaintiff; and if you find from a preponderance of the evidence that plaintiff reached the intersection first and, acting as a reasonably prudent person should have acted under the circumstances and conditions as they appeared to him, had entered the intersection before the driver of defendant’s truck reached said intersection and that the driver of defendant’s truck negligently failed to yield the right of way to plaintiff, thus causing plaintiff’s damages and injuries, if any, your verdict should be in favor of the plaintiff, unless you further find the plaintiff was guilty of contributory negligence as that term is defined in these instructions.” (Italics supplied). Appellee concedes the instruction may have been awkwardly phrased and a majority of the court holds there is merit in appellant’s contention that the jury may have considered it as an unqualified assertion of an affirmative duty on the part of appellant’s driver to yield the right of way to appellee.

We have examined appellant’s other contentions for reversal and find them to.be without merit. It is the opinion of the majority, in which the Chief Justice and the writer do not concur, that the admission of the statement of the appellant’s driver to Knox after the collision and the giving of Instruction No. 3 as requested by appellee constituted prejudicial and reversible error. The judgment is accordingly reversed and the cause remanded for a new trial.


author: George Rose Smith, J.

text:
    Kimery v. Shockley.
    5-965
    290 S. W. 2d 442
    Opinion delivered May 21, 1956.

      Q. Byrum Hurst and C. A. Stanfield, for appellant.

      Wood, Chesnutt & Smith and Clayton P. Farrar, for appellee.
   George Rose Smith, J.

This is an action brought by the appellees, real estate brokers, to recover a commission of $1,050 under an exclusive listing contract by which the appellants employed the appellees to sell certain property. The jury returned a verdict for the plaintiffs.

The appellants concede that they would owe the commission if the property had been sold by the appellees or by any other broker, but they insist that under the particular wording of the contract they were entitled to sell the land themselves without liability to the brokers. The trouble with this argument is that the abbreviated record filed in this court contains nothing to show that the property was in fact sold by the owners themselves. When error appears in a record shortened without objection we are not to presume that the judgment is supported by the omitted matter, Ark. Stats. 1947, § 27-2127.6; but it goes without saying that when the abbreviated record is free from apparent error we cannot assume that the omitted matter would require a reversal of the judgment. .

Affirmed.


author: Geoege Rose Smith, J. J. SeaborN Holt, J.,

text:
    Smith v. Dean.
    5-935
    290 S. W. 2d 439
    Opinion delivered May 21, 1956.

      McGourtney, Brinton, Gibbons & Segars, for appellant.

      John S. Mosby, for appellee.
   Geoege Rose Smith, J.

In 1953 the appellant, Van-teen Dean Smith, was convicted of having murdered her former husband, Harold Dean. Smith v. State, 222 Ark. 650, 262 S. W. 2d 272. Thereafter she filed a petition in the probate court, asking (a) that Dean’s entire estate be vested in her as the surviving tenant by the entirety, and (b) that in the alternative she be allowed the widow’s statutory allowance of $1,000. Ark. Stats. 1947, § 62-2501. This is an appeal from an order denying both claims.

Dean’s estate consists of personal property that was ostensibly owned by him alone. This property was duly inventoried by the administrator, who is a necessary party to a proceeding involving the title. Jenson v. Housley, 207 Ark. 742, 182 S. W. 2d 758. In contending that an estate by the entirety really existed the appellant relies solely on her own testimony to the effect that she and her former husband contributed their respective earnings to the purchase of the property and intended to own it jointly. This testimony clearly relates to transactions with the decedent and was properly objected to as being inadmissible under the dead man’s statute. Ark. Const., Schedule, § 2. There is no other proof to show that the supposed tenancy by the entirety ever existed.

In resisting the claim for statutory allowances the appellees rely on Ark. Stats., § 61-230, which provides that when one spouse kills the other and is convicted of murder the one so convicted shall not be “endowed” in the estate of the decedent. The section in question is part of Act 313 of 1939, and a reading of that act as a whole shows that it was intended to apply only to dower and curtesy, not to the widow’s statutory allowance.

Apart from statute, however, it is a familiar principle of law that one who wrongfully kills another is not permitted to share in the other’s estate, to collect insurance on his life, or otherwise to profit by the crime. Horn v. Cole, 203 Ark. 361, 156 S. W. 2d 787; Rest., Restitution, § 187. That principle would control this case were it not for the fact that the record contains no legal proof that the appellant killed Harold Dean. We cannot take judicial notice of the facts disclosed by the record in the earlier criminal proceeding. Murphy v. Citizens’ Bank of Junction City, 82 Ark. 131, 100 S. W. 894, 11 L. R. A. N. S. 616.

At the trial below the appellees introduced a certified copy of the judgment of conviction, but it is the settled rule in this state that such a judgment is not admissible to prove the facts on which it was based. Horn v. Cole, supra; Washington Nat. Ins. Co. v. Clement, 192 Ark. 371, 91 S. W. 2d 265. We realize that the soundness of this rule is not universally conceded. The arguments for and against it were analyzed in detail by Dean Wigmore, who concluded that the application of the principle should be relaxed in certain “exceptional situations.” Wigmore on Evidence (3d Ed.), § 1671a. Even if the question were one of first impression we would hesitate long before declaring that the present majority view is wrong. Much more is involved than the mere formality of retrying an issue already decided, for even the critics of the rule do not contend that the prior ^ decision should be conclusive. All concede that the opportunity for a retrial should be afforded, and presumably that opportunity would be taken advantage of in most cases by the party dissatisfied with the outcome of the first trial. Thus the minority rule does not do away with the need for a reexamination of the issue previously determined. On the other hand, the practical advantage of the traditional view lies in its assurance that in every case the triers of the fact will have the testimony itself before them and not merely a written record of the conclusion reached by some other tribunal — a conclusion that may have been influenced by factors not relevant to the later case. Since we are not convinced that our own precedents are demonstrably wrong we think it best to preserve certainty in the law by declining to overrule our earlier decisions. It follows that there is no competent evidence to show that the appellant has forfeited her right to the statutory allowance. We express no opinion as to whether proof of the conviction alone would be sufficient to bar dower under Ark. Stats., § 61-230, supra, as the appellant did not claim dower in Dean’s estate.

Affirmed as to the asserted tenancy by the entirety, reversed as to the statutory allowance.

Holt, J., dissents.

J. SeaborN Holt, J.,

dissenting. I would affirm this ease in its entirety.

The appellant, Yanteen Dean Smith, was convicted of the crime of second degree murder, a felony, on evidence that showed she had lulled her husband, Harold Dean, by poisoning. She was sentenced to serve, and did serve, a term in our State Penitentiary. On appeal to this court we affirmed the judgment, Smith v. State, 222 Ark. 650, 262 S. W. 2d 272, and in that opinion said: . . the evidence was sufficient to have supported a conviction for first degree murder.”

The majority holds that the introduction of a certified copy of the judgment of appellant’s conviction of a felony, was not sufficient to prove the facts on which the judgment was based. In other words, that there was no competent proof that appellant actually killed her husband. I do not agree. It seems to me that we should here and now adopt the fair and common sense rule, sanctioned by sound reasoning, that the offer in evidence of a certified copy of the judgment of a felony conviction, in the trial of a later civil case is sufficient evidence of the facts on which it was based. This procedure appears now to be in accord with the modern trend of decisions in many of the courts of this nation. As I view it, to require the appellees here to prove over again that appellant killed her husband, in the teeth of a jury verdict and the solemn decision of this court that she did, would be little short of ridiculous. In support of my views McCormick on Evidence, Page 619, has this to say: “. . . a growing minority of courts . . . has insisted that common sense and consistency of adjudication require that a judgment of conviction, offered against the person convicted in a later civil case involving some of the same issues, be admitted as evidence of the facts on which the judgment was based. This view was embodied in the Model Code, and has been sanctioned by the Uniform Rules with the important limitation to convictions for felony. . . . Rule 63(20) makes admissible ‘evidence of a final judgment adjudging a person guilty of a felony, to prove any fact essential to sustain the judgment’.

Probably the trend of evolution will be toward the admission generally against a present party of any judgment or finding in a former civil or criminal case if the party had an opportunity to defend. The principles on which is founded the hearsay exception for official written statements would justify this extension.” We said in the Horn v. Cole Case, 203 Ark. 361, 156 S. W. 2d 787, “We think that the principle of sound public policy which demands that a sane, felonious killer should not profit by his crime should be applied as often as and whenever any claim is made by such killer, whether under contract, will, or statute. The decisions which we prefer to follow attain the result which everyone (and even the cases holding the contrary) admits ought to be attained if possible.” I think all will agree that appellant ought not to be allowed to profit by her own felonious act.


text:
    Lee, Executrix v. Erickson.
    5-971
    291 S. W. 2d 238
    Opinion delivered May 21, 1956.
    [Rehearing denied June 25, 1956.]

      Parker Parker, for appellant.

      Robert J. White, Bob Bailey and Bob Bailey, Jr., for appellee.
   Paul Ward, Associate Justice.

Appellees, Andrew Erickson, Ben George, and Ray Brown, entered into a partnership to farm certain lands belonging to George during the year 1951. In the early part of 1951, for the purpose above mentioned, appellees purchased from the D. W. Lee Implement Company certain farming equipment including a tractor, cultivators, row planters and middlebuster discs, hereafter referred to as equipment. These articles were paid for in cash. On May 15th of the same year appellees borrowed $1,000 from said Implement Company and executed a note therefor. After a two months illness D. W. Lee died on May 27, 1953 [after this suit was filed in January, 1953] and Nora Mae Lee was appointed executrix, and as such was substituted for the D. W. Lee Implement Company in the litigation. We will hereafter refer to appellant as the Implement Company.

On about September 15, 1951 appellees purchased a used combine from the Implement Company for which they made a part payment, leaving a balance due of $844.98. On December 17,1951 appellees refinanced their indebtedness to the Implement Company by executing another note in the amount of $1,854.47.

On January 21, 1953 D. W. Lee [for the Implement Company] filed suit against appellees on said note for $1,854.47. After a lengthy hearing the trial court held that the Implement Company, by repossessing the equipment and combine, waived its right to sue on the noté, holding that appellant could have its option of taking the equipment and the combine or accepting the sum of $405 which had been deposited in the court as the proceeds from a public sale under an attachment, which sale had not been approved by the court. We conclude that it was error for the trial court to hold that the Implement Company had waived its right to sue on the note for $1,854.47.

The material portions of the pleadings, facts, and circumstances we gather from the record, which is somewhat contradictory and confusing, are substantially as hereafter set out. It appears conclusively that ap-pellees were indebted to the Implement Company in the amount alleged. One of the partners did not sign the note but the testimony is clear that he was bound as a partner. The note sued on had been assigned by the Implement Company to a finance company and the evidence is not clear that the note had been returned to the Implement Company, and appellant was unable'to produce the original note. [However the trial court apparently was convinced that appellant was the owner of the note, and we cannot say it was wrong.] The record contains a purported copy of a conditional sales contract dated May 15, 1951 [the same day appellees borrowed the $1,000] in which the Implement Company purported to retain title to the equipment mentioned above. This instrument shows an unpaid balance of $1,038.80, and we assume that it was given to secure the loan for $1,000. The record contains the purported copy of a conditional sales contract dated September 17, 1951 [the date the used combine was purchased by appellees] in which the Implement Company retained title to said combine, showing a balance due of $844.98. The testimony shows that all of the indebtedness of appellees to the Implement Company was refinanced on December 14, 1951, and the record contains a purported copy of a conditional sales agreement as of that date in which the Implement Company purported to retain title to the combine and the equipment, showing a balance of $1,854.47.

When the Implement Company filed suit on January 21, 1953 on the $1,854.47 note it asked for an attachment against appellees for the equipment and the combine. The sheriff served the attachment and took the equipment and combine into his possession, and, under orders of the court, advertised and sold the same for $405. It is not shown to whom the sale was made, but the court did not approve the sale, but ordered the money paid into court. Later in the trial of the cause testimony was introduced showing that, after the suit was filed, appellant took charge of all of the equipment and the combine prior to the issuance of the attachment. To corroborate this, there was introduced into the record a chattel mortgage dated May 2, 1953 wherein the combine and equipment were mortgaged to the Merchants National Bank of' Ft. Smith, said chattel mortgage being signed “D. W. Lee Implement Company” (by) “Juanita Lee Edwards.” There is, however, nothing in the record to show what authority Juanita Lee Edwards had to sign the chattel mortgage.

As we view the above factual situation it appears to us that when the Implement Company, on December 14, 1951, together with the appellee partners, executed the purported conditional sales contract the Implement Company had no power to retain title to the equipment and combine. It is undisputed that all of the equipment was paid for in cash and of course the title passed from the Implement Company to the partners. The combine had been bought some 4 months previously, and the new note which was executed on December 15, 1951 included the $1,000 borrowed money. It is our opinion therefore that said purported conditional sales contract should be treated as an equitable mortgage. This being true it makes little difference in the result we reach in this case whether or not the Implement Company had in fact taken possession of the equipment and combine after suit was filed. Moreover, the contention on the part of appellees that the Implement Company took possession of the equipment and combine is hard to reconcile with the undisputed fact that the sheriff levied upon and took possession of same at a later date.

Treating the Implement Company as a mortgagee it did not, by talcing possession of . the equipment and combine, waive its right to recover on the note, and it can be charged only with the fair market value of said equipment and combine. The situation existing here is parallel to the situation set forth in the case of Wells v. Derrick, 225 Ark. 993, 287 S. W. 2d 4, where we quoted with approval: “ ‘Where mortgagees took possession of mortgaged chattels, but failed to sell them under the power of sale in the mortgage, they are chargeable with their market value at the time of their conversion.’ ” “ ‘Where the defendant is a mortgagee, who was entitled to the possession, with power to sell at the time of the seizure or conversion, and who has become a wrongdoer by reason of the manner of acquiring possession, or in the irregularity of the sale, he is liable to the mortgagor (in the absence of proof of special damages) only for the value of the property at the time of the conversion, less the amount of mortgage debt.’ ” There is no proof in this record of any special damages.

Upon remand, the trial court is directed to enter judgment against Andrew Erickson, Ben George, and Ray Brown for the full amount of the note sued on plus interest, and the said appellees to be given their option of crediting against said judgment the amount of $405 [the proceeds of the sale] or to have another sale and credit the proceeds thereof against said judgment, or the privilege of retaining said equipment and combine and paying the full amount of the judgment.

Reversed and remanded for further procedure in accordance with the conclusions above set out.