author: Paul Ward, Justice. John A. Fogleman, Justice,

text:
    The CITY OF SPRINGDALE, Arkansas v. Homer KEICHER and Eunice Keicher
    5-4277
    419 S. W. 2d 800
    Opinion delivered October 9, 1967
    [Rehearing denied November 13, 1967.]

      Crouch, Blair & Cypert, for appellant.

      Lewis D. Jones, for appellee.
   Paul Ward, Justice.

This is a condemnation suit brought by the City of Springdale to secure easements for the construction of a sewer line.

On February 2, 1964 the City (appellant) filed a complaint in circuit court against Homer and Eunice Keicher (appellees) to procure a temporary easement (over appellees’ land) fifty feet wide and approximately 1,000 feet long to be used while constructing the sewer line. Appellant also sought a permanent easement (over said land) fifteen feet wide and approximately 1,600 feet long where the line was to be placed. Appellant deposited $150 in the registry of the court to cover any damages to appellee for the taking and asked for the right of immediate entry for construction purposes.

On the same day the court entered an Order giving appellant the right of immediate entry. Thereupon appellant began construction operations.

On November 9, 1966 appellees filed an Answer and (hunter-Claim. In the Answer appellees stated they owned the land, and that they should recover the sum of $20,000 “for the taking of said lands and the damages caused to the remainder of their lands”. In their cross-complaint appellees sought. $10,000 damages caused by odors from a sewage disposal system which appellant had erected and maintained adjacent to their lands during the past three years.

In reply, appellant said any alleged damages asked for in the Counter-Claim was barred by the statute of limitations, and denied all allegations in the answer.

A jury trial on November 28, 1966 resulted in a verdict in favor of appellees in the amount of $7,000 for which judgment was entered.

On appeal appellant designates only one point, but argues two general grounds for a reversal; One, there is no “substantial evidence upon which to base the award of damages”, and; Two, incompetent testimony was admitted in evidence.

One. By-passing for the moment the matter of alleged incompetent testimony, we have concluded there is substantial evidence to support the $7,000 judgment.

Homer Keicher, appellee, testified: I am the owner of the land, consisting of 192 acres, am seventy three years old, was born on the land and have lived there ever since; I used the land for farming — such as melons and truck crops and raising cattle.; I know what property has sold for in that neighborhood; In my opinion the value of the land before the sewer line was put in was $70,000 and after that it was worth $50,000. He stated that due to the taking he had to repair a lot of fences to keep cattle “and I can’t even do that”, and the odor from the sewer is awful had.

Mrs. Keicher, the wife of Homer, has lived on the land for twenty-two years, testified: My family owns the property in the neighborhood, and I have an opinion as to the value of our farm. [Her opinion was the same as her husband.] She further stated that before the sewer line was put in we had no trouble with odors, hut now when the wind is from the north “it is just unbearable”, and she could easily tell the difference between the sewer line and the 'City dump.

Dale Killian testified: I have been a real estate broker in Washington County for fourteen years; have handled property “well over the entire county and am familiar with the value of real estate, the rural type, and of the urban type”; I know the land here in question and have inspected it; in my opinion ‘ ‘ the value of the subject farm prior to its taking was $55,000 . . . the value of the remainder of the farm after the taking by City is $45,000”.

King Wheeler, who has been a real estate broker in Washington County for twenty-four years and says he has been acquainted with the land in question all that time, testified, in effect, that the land was worth $54,000 before the taking and $41,000 after the taking.

The above testimony was presented to the jury under instructions of the court to which appellant made no objection, and it was, of course, up to the jury to believe or disbelieve any part thereof. We are therefore unable to say there was no substantial evidence to support the jury’s verdict for $7,000. In support of this conclusion we call attention to certain pertinent decisions of this Court.

In Housing Authority of Little Rock, Arkansas v. Winston, 226 Ark. 1037, 295 S. W. 2d 621, we said that a non-expert witness who is acquainted with the land in question and says he knows the market value is competent to express an opinion as to its market value. In Ark. State Hwy. Comm. v. Drennen, 241 Ark. 94, 406 S. W. 2d 327, we held that a land owner could give his opinion as to the before and after value of his land. See also: Ark. State. Highway Comm. v. Johns, 236 Ark. 585, 367 S. W. 2d 436.

Two. We now examine.appellant’s contention that the case should be reversed because inadmissible testimony was erroneously introduced.

(a) Appellant moved to strike “the entire testimony” of Dave Killian because it “involves a lot of elements that are not properly considered in this suit”. The motion was overruled, and, we think, properly so. It is true that references were made by Killian (and other witnesses) to odors from sewer installations other than the pipe line — this pursuant to appellees’ cross-complaint. However, the cróss-complaint was dismissed by the trial court. Also, in overruling appellant’s motion the court sustained it in part by striking testimony relating to the City dump and the land fill. Appellant did not object to this ruling.

(b) Appellant moved to strike the “entire testimony” of Wheeler. The trial court then made this statement: “He can testify as to the value of this farm but if you are going to bring in an element of damage from odor, I will sustain it as to that part” because “he didn’t know there was any there before or not”. No other objection was made by appellant. At any rate we think appellant failed to show the witness had no reasonable basis for his opinion as he had formerly stated and as modified. In the Johns, case, supra, we said:

“An expert witness, after having established his qualifications and his familiarity with the subject of the inquiry, is ordinarily in a position to state his opinion.”
# # • #
“It was incumbent upon counsel for the appellant to support their motion to strike by showing that the land owners’ expert witnesses had no reasonable basis for their opinions.”

In view of the fact that appellant did not object to any of the instructions given by the court, we hold a fact question was presented to the jury as to the amount of damages.

We also find no merit in appellant’s contention, backed by testimony of its witnesses, that the sewer line was a benefit, and not a detriment, to appellees’ property. There was, however, no showing by appellant that such benefit (if any) was peculiar to appellees and did not likewise benefit other property as well. McMahan v. Carroll County, 238 Ark. 812, 384 S. W. 2d 488, and Martin v. Raulston, Comity Judge, 239 Ark. 769, 394 S. W. 2d 133.

Affirmed.

Brown, Fogleman and Jones, JJ, dissent.

John A. Fogleman, Justice,

dissenting. I cannot agree that the judgment should be affirmed in this case. If indeed it can be said that there is any evidence to support the verdict, I do not see how it can be said that there was no prejudicial error in the admission of testimony in the case.

Appellees, the landowners, offered the testimony of Dale Killian, H. G. Brady, King Wheeler and Charles Schumake, in addition to their own testimony, to show the damages they were entitled to recover. Little, if any, of this testimony was competent and most of it should have been stricken. When the incompetent testimony is eliminated, it cannot be said that the jury verdict can be sustained on what remains.

Dale Killian, a Fayetteville real estate man, testified of adequate background to qualify Mm as an expert to testify as to property values in Washington County. However, he did not understand that this suit was not concerned with a sanitary landfill and city dump on the north edge of appellees’ property and he took these rather detracting factors into consideration, in determining the reduced value of the Keicher property after the taking. The difference in “before” and “after” val-' ues fixed by him amounted to $10,000.00. He said it would be hard for him to take just one consideration in determining how much of the $10,000.00 is caused by the city dump. He said that on the landfill he would place about 1/5 the damage value, about 3/5 on the sewer, and 1/5 on the “other damage.” This meant that only about $2,000.00 of the total damage was caused by the easement for the sewer line, the remainder apparently being due to the adjacent sewer plant and the city dump. It is not-clear as to how the remainder would be distributed. He testified that if it were not for the city dump and the treatment plant, the sewer line would have raised the value of the property probably $200.00 to $300.00 per acre. At the conclusion of his cross-examination, he repeated that the property was hurt by the dump right square against it and this was one of the things he had been taking into consideration in estimating the damages. I do not see' how it can be said that his testimony should not have been stricken.

At no time did the court instruct the jury that they were not to consider that portion of this testimony regarding the noncompensable and unrelated element of damages claimed by appellees, nor did the instructions specifically advise the jury that they should not consider any damages due to the sanitary landfill and city dump. While all the testimony of a witness should not be stricken when part of it is competent, it must be stricken when cross-examination reveals that the witness used an invalid basis in fixing values. Ark. Highway Comm. v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802. In the cited case the court reversed and remanded the case because of the failure of the court to strike the value testimony of one witness who used an improper basis, even though it was held that there was no error in failure to strike the value testimony of another. Basing the difference in valuation on an improper element of damage is erroneous and prejudicial; Ark. State Highway Comm. v. Ptak, 236 Ark. 105, 364 S. W. 2d 794.

Homer Keicher, the landowner, testified that the dump smells like rotten eggs and dead animals. Mr. Keicher did not know of recent real estate transactions immediately adjacent and near to appellees’ property, or what the sellers received or purchasers gave, saying that he did not know the price given for land around him for the past five years, never tried to find out, and considered it nothing to him. In saying that the value of his property after the taking was worth only $50,000.00, as against $70,000.00 before, he said that he was taking into consideration that the dump was right next to him, since he joined it for one-half mile. He said that this was one reason why he thought his 192-acre farm was reduced in value to the extent of $20,000.00. He gave no clue as to how he arrived at his values. I feel that his testimony should also have been stricken. Appellant moved to strike the testimony of Keicher on the grounds that he was not qualified to testify as to before and after value and that he took into consideration improper elements of damages. The court did not instruct the jury that they were not to consider the portion of the testimony of the owner relating* to the improper basis of damages and there would have been no way for the jury to separate the elements if he had.

As to the first ground, even a landowner witness may not be permitted to give an arbitrary valuation figure having no relation to the facts in the record where he makes no effort to say how he arrived at his valuation. Ark. State Highway Comm. v. Stanley, 234 Ark. 428, 353 S. W. 2d 173; 4 ALR 3d 749.

Mrs. Keicher frankly said that she did not know what the property in the neighborhood bought and sold for. When asked what the property valne was before the taking, she said that her opinion was what her husband said — $70,000.00. Objection to this testimony was overruled. She also thought the value after the taking was $50,000.00. She said there was an odor from the landfill and city dump, but would not be if they kept it properly covered. Unlike her husband, she didn’t figure much of the damage was done from the dump and landfill, but she said nobody would want that odor. Her testimony cannot be regarded as substantial. Arkansas State Highway Comm. v. Ptak, 236 Ark. 105, 364 S. W. 2d 794.

H. G. Brady lived on a neighboring farm and was also litigating with appellant about the sewer line and sewer plant as they affected his farm. He could smell the city dump as he want through the Keicher property. He described it as a very offensive odor. He gave no testimony as to values.

King Wheeler, also a Fayetteville realtor, was possessed of adequate professional qualifications. He also appraised the property upon the assumption that the city dump was a damaging factor, saying that the property was damaged to the extent of $13,000.00. He never stated, his opinion as to the value of the lands after the taking. Upon being, advised by appellees ’ attorney, during cross-examination, that the dump was not to be considered, he promptly advised that he would then take off 20% of the figure he gave. He had never heard of neighboring properties recently sold. He admitted that he based his appraisal on comparable sales in Fayetteville and Farmington, not ¡Springdale, because he did not definitely know of any property being sold in Springdale in the preceding few months. He also said that he did not check any Springdale sales because he did not know of any and did not have time, having been employed to make his appraisal only two days before trial. The sale he relied on as being most nearly like the subject tract was of a parcel near Farmington and three and one-half miles from Fayetteville. But the greatest vulnerability of his testimony is that he did not value the property as of the date of taking, but valued it as of the day he saw it, two days before the trial and nearly three years later. As an additional reason for doing so, he said he didn’t know the property too well before that date. Appropriate motions to strike were made and overruled.

It is well settled that the compensation to the landowner can be fixed only on the basis of values at the time of the taking. Ark. State Highway Comm. v. Brewer, 240 Ark. 390, 400 S. W. 2d 276; Arkansas State Highway Comm. v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495; Kansas City Southern Ry. Co. v. Boles, 88 Ark. 533, 115 S. W. 375.

While the court sustained an objection by appellant when the witness improperly assumed that there were no sewage disposal facilities north of the Keicher tract just prior to the taking of the sewer easement, appellees ’ counsel attempted to rehabilitate him with the result that his testimony was finally admitted over appellant’s objections. Wheeler recalled that he had handled the sale of an adjoining farm and knew what the city had north of that tract prior to 1964, but told the court that he did not know that any sewer facilities were there prior to 1964. After appellant’s objection, the court ruled that this witness’s testimony as to the city dump was excluded and his testimony as to the offensive odor was excluded, but his testimony with reference to damage because the sewer line zigzagged through the property was admitted. The witness had testified about offensive odors from both the sewer plant and the city dump and indicated that 60% of the total damage was due to the location of the sewer plant. I doubt if the jury was able to understand what they were to consider and what they were not to consider. Because of the various factors showing that there was no fair and reasonable basis for the testimony of this witness, it should have been stricken.

I submit that the testimony of these witnesses lacked a proper basis as a matter of law for the giving of their opinions or for the jury’s verdict. Appellant made proper objections, motions to strike, and motion for a directed verdict. Where error is committed in the admission of improper value testimony and proper objection is made, the error will be treated as prejudicial unless it be shown that appellant was not prejudiced thereby. Ark. State Highway Comm. v. Ptak, 236 Ark. 105, 364 S. W. 2d 794. I see no way that it could be said that error in the admission of the testimony in this case was not prejudicial. It leaves no substantial testimony of any nature to support the verdict. The testimony of neither the experts nor the landowners is substantial when cross-examination reveals that it is not based on a fair and reasonable basis. Malvern & Ouachita River R. Co. v. Smith, 181 Ark. 626, 26 S. W. 2d 1107; City of Harrison v. Moss, 213 Ark. 721, 212 S. W. 2d 334; State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738; Hot Spring County v. Prickett, 229 Ark. 941, 319 S. W. 2d 213; Arkansas State Highway Comm. v. Johns, 236 Ark. 585, 367 S. W. 2d 436.

The testimony of Charles Schumake had no bearing on values but related to offensive odors from the sewage plant only. Thus, it added nothing to this picture.

I would reverse and remand for a new trial.

I am authorized to state that Brown and Jones, JJ, join in this dissent.

      The date of taking was February 3, 1964. The date of trial was November 17, 1966.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Joseph A. GENTRY et al v. E. J. HOLLAND et ux
    5-4278
    419 S. W. 2d 130
    Opinion delivered October 9, 1967
    [Rehearing denied October 30, 1967]

      John W. Cloer, Walter Niblock and R. L. Womack, for appellants.

      Charles W. Atkinson, for appellee.
   Lyle Brown, Justice.

This suit was originated by E. J. Holland, appellee here, to quiet title in 111 acres of land in Madison County. The principal cloud on his title arose as a result of a prior executed lease covering forty acres. That lease has been in the hands of several parties, a number of whom here claim rights still subsist in them. Their claims were adverse to Holland and also as between themselves. The trial court declared the lease had been cancelled for default in monthly rental payments. Various counterclaims and cross-claims growing out of the operations under the lease were litigated and appeals have been taken from those findings. Appellants are John E. Yarbro, War Eagle Lime Co., Inc., and Joseph A. Gentry.

The forty-acre tract which was leased contained substantial limestone deposits. In 1952 Harwood and Will obtained a nineteen-year lease for the purpose of removing limestone and processing it at a quarry to he located on the lands. The fee owner was to receive five cents per ton for the products processed at the quarry, Avith this additional provision:

“And if . . . the royalty payable to lessor be less than an average of $25.00 per month for a period of 3 consecutive calendar months, then lessee must nevertheless begin paying lessor $25.00 per month minimum, and if this stipulation is not fulfilled then lessor may on 30 days written notice to lessee cancel this lease agreement and lessee be required to remove his property from the premises.”

In 1959 appellant Joseph A. Gentry came into possession of the lease by assignment. He was also assigned “the good will and name of the War Eagle Lime Company.” Within a few weeks Gentry assigned the lease to appellant John E. Yarbro. Gentry and Yarbro simultaneously executed a sale and purchase agreement. By that instrument Yarbro became the owner of the business operated under the name of War Eagle Lime Company. Gentry retained a lien on the lease and all the operating equipment to secure the installment payments.

Yarbro apparently incorporated the lime company under the name of War Eagle Lime 'Company, Inc. This was done within three months after the Gentry to Yar-bro transaction. Yarbro transferred his interest to the corporation “subject to the contrae! of sale and purchase” between Gentry and Yarbro.

Yarbro operated the company from 1959 until late in 1963, paying the mining royalties to the fee owner, Berry Denney, until December 1963. At that time Yarbro entered into an agreement with Denney to buy the forty leased acres on which War Eagle’s operation was located. An escrow agreement was executed. Yarbro agreed to make a cash payment of $10,000, half of the purchase price, and agreed to pay the balance on or before June 2, 1964. Appellee E. J. Holland actually advanced the down payment for Yarbro. The payment was delivered to Deñney. The escrow agreement, contract of sale, and warranty deed, Denney to Yarbro, were held by the escrow agent, First National Bank of Huntsville.

Shortly after the escrow deposit, Yarbro advised his benefactor and employee, Holland, that Yarbro would not be able to raise the purchase price. Appellee Holland testified that in order to protect his advancement, he agreed with Yarbro to buy the acreage. On December 23, 1963, which was ten days after the Denney-Yarbro transaction, Yarbro executed a warranty deed to Holland. The latter was aware of the outstanding mining lease and the escrow transaction. Holland either held his deed or left it with the Bank. On May 22, 1964, Holland and Denney went to the Bank. There Holland paid the balance of the purchase price, borrowing the money from the Bank. Forthwith three instruments were simultaneously recorded under the Bank’s direction. These were the Denney-to-Yarbro deed, the Yarbro-to-Holland deed, and Holland’s mortgage to the Bank.

Yarbro operated the business from 1959 to late in 1963. By that time War Eagle was heavily indebted. There was no production during the first few months of 1964. During that interim Holland was trying to raise capital to purchase new machinery which would be used in making new products. That endeavor was not successful. At this point Yarbro, acting in the name of the corporation, conveyed all rock and other merchandise on hand to Holland. Appellants claim Holland was to retain $2,910 owed him by War Eagle and to return the balance to the Company. Holland claimed $6,554.15 was due him for wages, commissions, and expenses.

We have summarized the salient facts touching on the status of the lease. For purposes of clarity we shall here digress from the many other contentions and discuss our holding with respect to the lease.

If the lease was extinguished it was because; no royalty or rental payments were made during the escrow period, that being from December 2, 1963, until May 22, 1964. On May 10, 1964, Yarbro tendered the April payment (the twenty-five dollar minimum) to Holland. It was refused. Yarbro testified that for several months thereafter he made continuous tenders. There is little dispute about those tenders. All were refused. Gentry sued Yarbro and on June 9, 1965, a judgment was entered in that case in the Madison Chancery Court. All rights of Yarbro in and to the lease were cancelled. The personal property was ordered sold to apply on Gentry’s judgment. Then on June 10, 1965, by money order “to Holland, Gentry tried to make the rental payment due on that day.

. If the lease was still in effect when Holland took the deeds out of escrow, the recited tenders were sufficient to keep the lease in effect. Continuous and unbroken tenders are unnecessary when it is evident they will not be accepted. Holloway v. Buck, 174 Ark. 497, 296 S. W. 74 (1927); Taylor v. Mutual Ben. Health & Accident Ass’n., 133 F. 2d 279 (1943).

Holland’s title did not vest until May 22, 1964. He made the down payment with full knowledge that the Denney-to-Yarbro deed would not be released until the balance of the purchase price was paid. And Holland agreed to, and did, timely pay the balance. Unquestionably, Holland knew he had no title until Denney was paid. The.chancellor took the view that Holland’s rights vested when the Yarbro-to-Holland deed was executed. The trial court also held that the tender of royalty payments was ineffective, theorizing that those payments could not be forced upon Holland. In these two respects the trial eourt erred.

During the escrow period title remained in the grantor, Denney. No waiver of rental payments was recited in the sales contract. Denney’s conveyance was on a, condition, namely, payment of the full purchase price. Mansfield Lumber Co. v. Gravette, 177 Ark. 315, S. W. 2d 726 (1928). Therefore Holland’s right to rents did not vest until his title vested. The right to rents was in Denney, but in this case he makes no demand. In fact he testified he did not expect any rents after he conveyed to Yarbro. This was perhaps due to Denney not knowing he had a legal right to them. Further, it would not be reasonable to presume that Denney intended to give Holland an absolute right to rental payments when Denney had only a contingent possibility of consummating the sale.

It is our conclusion that the bare lease is in force and the leasehold interest is vested in Gentry. We now consider the remaining contentions.

Yarbro and War Eagle Lime Co., Inc. raise these points in their combined brief:

Point 1. The court should have vested title to the lease in these appellants. Yarbro conveyed the lease to War Eagle subject to the lien in favor of Gentry. The Madison Chancery Court, in an action separate from the one before us, determined that Gentry was entitled to be reinvested with that which he conveyed to Yarbro. This point is therefore without merit.
Point 2. The court erred in dismissing these appellants’ prayer for an accounting and judgment against Holland. In that connection, these appellants argue the property was placed in trust with Holland. They contend Holland sold large quantities of raw materials and should account to them. On conflicting testimony the court held that no such trust had been created and that Holland was not so indebted. We affirm those findings.
Point 3. The court should not have cancelled the lease as to War Eagle Lime Co., Inc. because the notice to vacate which was purportedly served on War Eagle was ineffective. This is without merit. According to the sheriff’s certificate, a notice was served “on War Eagle Lime Company and John E. Yarbro by delivering a copy of the same to him individually and as President of said Corporation and stating the substance thereof this 27 day of June, 1964.” Below the signature of the sheriff appears handwriting indicating that a copy may have been delivered to Yarbro’s wife. The sheriff was not called to testify. The handwriting is unsigned. If a copy was delivered to Mrs. Yarbro, we can hut assume that was a copy in addition to the copy delivered to John E. Yarbro.

Aside from the lease, Gentry made two other contentions. He sought an accounting from Yarbro and that Avas denied. The simple answer is that Gentry proceeded against Yarbro in a separate action and was awarded judgment against Yarbro. In that action he foreclosed his lien on the lease and fixtures for the purchase price. If he did not there include a claim for other items involved in the same transaction, he is too late.

Finally, Gentry classifies himself as a creditor of War Eagle Lime Co., Inc. He seeks judgment against Holland because Gentry had no notice of the execution of the bill of sale from Yarbro to Holland. That instrument, dated March 3, 1964, transferred the stockpile of filter rock, concrete aggregate, chips, and lime to Holland. Those items were the property of War Eagle Lime Co., Inc. Gentry was not a creditor- of that corporation; he was a creditor of Yarbro.

We affirm the trial court’s findings in all respects except as to the lease in question, title to that instrument being vested in Gentry.


text:
    Leo WILLIAMS v. STATE of Arkansas
    5300
    419 S. W. 2d 615
    Opinion delivered October 9, 1967
    [Rehearing denied November 13, 1967.]

      Paul B. Gean, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant Leo Williams was convicted of possessing marijuana and on two counts of dispensing the drug. Williams filed a petition under our post-conviction procedure, Rule I. He alleged eight constitutional rights to have been violated in the process of arrest, arraignment, and trial. Additionally, he alleged denial of due process in that he was denied the right of appeal. The trial court found no merit in the allegations.

Only one point is argued on appeal: “The failure of the trial judge to appoint an attorney for appeal in effect denied Mr. Williams of his constitutional guarantee of due process.”

The right of an indigent defendant to appointment of appellate counsel was pronounced in the recent case of Swenson, Warden v. Bosler, 386 U. S. 258 (1967) :

“When a defendant whose indigency and desire to appeal are manifest does not have the services of his trial counsel on appeal, it simply cannot be inferred from the defendant’s failure specifically to request appointment of appellate counsel that he has knowingly and intelligently waived his right to the appointment of appellate counsel.”

At the post-conviction hearing, which is the basis of this appeal, Williams testified that he informed court-appointed trial counsel of his desire to appeal. He further asserted that trial counsel assured him the appeal would be taken. Trial counsel disputed those assertions and his testimony may be summarized as follows :

He had known Williams for a number of years and they were friends; he talked to Williams after the arrest but before he was appointed; when the verdict was returned “I told him at that time that if he wanted to take an appeal to let me hear from him.” On the day of sentencing “he asked me about appealing the case.” Williams did not indicate he wanted to appeal. The procedure for filing a motion for a new trial was explained to Williams and he was instructed to let the attorney know of his decision. In order to protect Williams’ right of appeal, counsel, on his own initiative, filed a motion for new trial. ('Sixteen days intervened bek veen the trial and the order denying a new trial.) Neither Williams nor his wife ever contacted the attorney.

Williams conceded that, although he was permitted to write seven letters each week, he did not write the attorney from the penitentiary. His explanation for that was that he was not permitted, according to trusties and inmates, to contact a lawyer. He instructed his wife to contact trial counsel. Williams’ wife did not testify and her absence is not explained.

The trial court believed the testimony of the attorney. The credibility of Williams’’ testimony is discounted when we examine his account of the original trial procedure. For example, he testified at the post-conviction hearing that the judge and prosecuting attorney selected the jurors who tried him. The painstaking procedure by which the jury was selected is in the transcript of that trial and is filed here with the post-conviction transcript. The same record refutation of most of Williams ’ eight points also appears in the trial transcript.

It is not contended that the trial judge had any reason to believe Williams desired an appeal. On sentencing day the trial judge inquired of Williams whether he had anything to say. Williams replied negatively.

The effect of the trial court’s adverse finding against Williams was to hold that Williams did not bring himself within the “rule of manifestation” in Swenson. We agree. Further, since Williams was advised of his right to appeal and instructed to contact the attorney, his failure to do so within sixteen days constituted a knowing and an intelligent waiver.

Although they are not argued here, the other eight points are listed in the abstract. The trial court properly made a specific finding in respect to each one. As to those findings, we hold there was no error.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Jeannine STARBIRD Adm’x, estate of Bryan J. Hilton v. Wade W. CHEATHAM
    5-4272
    419 S. W. 2d 114
    Opinion delivered October 9, 1967

      Murphy & Burch, for appellant.

      James R. Hale, for appellee.
   John A. Fogleman, Justice.

Appellant seeks to reverse the judgment of the probate court in favor of a claimant for an indebtedness for construction work done by appellee for appellant’s' decedent, Bryan J. Hilton, because of the failure of the probate judge to exclude certain testimony because of the “dead man’s statute*” The key issue was whether the claim had been barred by the statute of limitations. This depended on a determination whether the statute was tolled by payments made by the decedent in his lifetime. Appellee offered in support of his position his statement of account, admittedly prepared after the death of decedent, which was attached to his proof of claim. He also offered as his business record a small notebook with one page showing payments made by the decedent. He also testified about these alleged payments over the objection of appellant. Appellee contends that even if the “dead man’s statute” is applicable, appellant waived its application.

When claimant’s attorney was examining him with reference to payments made by Hilton, as shown by the statement attached to the claim, appellant based his objection on the statute of limitations only. Appellee had answered, after the objection was overruled, that the payments made on the account by Hilton were shown on this sheet.

When the question was reworded to ask if those payments were made during Hilton’s lifetime, appellant objected to any statement by the witness in regard to payments made by decedent. The objection was overruled. Appellee then identified and offered the small notebook which he said he kept in his own handwriting as a permanent record. Appellant’s objection that the alleged business record was “self-serving, irrelevant and immaterial ’ ’ was overruled. In addition to the items of the account, this showed the following:

“Payments on Bryan Hilton
Accts.
$100.00 54
$200.00 56
$200.00 58
$200.00 61
$ 75.00 62”

Thereafter appellant’s attorney cross-examined ap-pellee as follows:

“Q. You prepared this after Mr. Hilton’s death? (Cl. No. 1)
A. Yes.
Q. I also ask you to examine this sheet here that is alleged to he a copy of an account reflecting certain credits?
A. Yes.
Q. When was that prepared?
A. Well, at each year.
Q. You prepared this each year?
A. I put it in my book what I had received from him during that year on these contracts.
You prepared this each year? 6*
Each year, yes. <h
Q. I’m talking about this sheet of paper itself, this particular one?
A. That was prepared when I filed the claim.
Q. When you filed the claim?
A. Yes.
Q. I see.
A. Or shortly before.
And Mr. Cheatham, you allege here that Mr. Hilton paid you certain payments, did he pay you any payments by check, or how were these payments made? G>
All of them except one was by check. ¡>
Was by check? <p
By check.
Do you know what those checks, where they were drawn and on what hank? «O
No, I don’t know exactly. Some bank in Fay-etteville, but I don’t—
Did he pay them to you directly? <©
How? [>
Did he pay them to you directly? <©
I’m a little hard of hearing. f>
Did he pay those payments to you directly? <p
Sometimes — some by mail and some directly. I don’t know which is which. f>
He sent some of those in the mail? <©
Yes. f>
Now, do you recall which ones he sent by mail? <©
All of them except the last one he paid me cash, I believe it was all by mail, I’m not sure that they were all by mail, but part of them were. ¡>
The last1 one was made by cash? <D
Yes. t»
Q. Do you. remember, Mr. Cheatham, where this alleged cash payment was made1?
A. Where it was made?
Q. Yes.
A. It was made in Lincoln.
Q. There in Lincoln, Arkansas.”

Thereafter appellant renewed his objection to the sheet attached to the proof of claim only on the basis that it was prepared after Hilton’s death.

There can no longer be any question that the effect of this statute can be waived by the action of a party in whose favor it might be invoked. Lisko v. Hicks, 195 Ark. 705, 114 S. W. 2d 9; Harris v. Whitworth, 213 Ark. 480, 211 S. W. 2d 101. The incompetency of the witness is waived where timely objection is not made. Lisko v. Hicks, supra; Brickey v. Sullivan, 208 Ark. 590, 187 S. W. 2d 1; Carlson v. Carlson, 224 Ark. 284, 273 S. W. 2d 542. Appellee argues .that appellant’s objection was untimely. We find that, even if it can be said that appellant made sufficient objection to the testimony to raise this question, his subsequent actions constituted a waiver of the statute. The incompetency is also waived, even though timely objection was interposed, when the same testimony, in effect, to which objection was made is brought out on cross-examination. Harris v. Harris, 225 Ark. 958, 286 S. W. 2d 849. His failure to object to the notebook on the ground now asserted and his cross-examination on the same subject bringing out virtually the same information as elicited on direct examination, particularly as to the last payment alleged to have been made by the decedent, certainly constituted a waiver.

We are not unaware of such cases as Johnson v. Murphy, 204 Ark. 980, 166 S. W. 2d 9; Campbell v. Hammond, 203 Ark. 130, 156 S. W. 2d 75; Brittian v. McKim, 204 Ark. 647, 164 S. W. 2d 435; Smart v. Owen, 208 Ark. 662, 187 S. W. 2d 312. All of these cases were based on the then existing rule that no objection was necessary, in chancery practice, to preserve an objection on this ground since this court tried such cases de novo and would consider only competent testimony. This rule was abandoned in Umberger v. Westmoreland, 218 Ark. 632, 238 S. W. 2d 495. Although the rule had been applied in probate cases after the adoption of Amendment 24, it was held to be no longer applicable after the Umberger decision. Carlson v. Carlson, 224 Ark. 284, 273 S. W. 2d 542.

The judgment is affirmed.

Byrd, J., dissents.

      This was the statement and supporting document attached to his claim.


author: J. Fred Jones, Justice. John A. Fogleman, Justice,

text:
    R. J. O’BRIEN and DOWELL, Division of Dow Chemical v. Lester PRIMM and Edith PRIMM
    5-4261
    419 S. W. 2d 323
    Opinion delivered October 9, 1967
    [Rehearing denied November 6, 1967.]

      D. J. Honeycutt and Gaughan & Laney, for appellant.

      Melvin Chambers, for appellee.
   J. Fred Jones, Justice.

This is an appeal by R. J. O’Brien and Dowell, Division of Dow Chemical, from a judgment for damages in the amount of $4,000.00 rendered by the Ouachita County Circuit Court on a jury verdict in favor of the appellees, Lester and Edith Primm, who were plaintiffs in the trial court.

Appellants contend that verdicts should have been directed for them and designate four points relied on as follows:

“1. The Court erred in not directing verdicts for the defendants at the close of plaintiffs’ case and again after plaintiffs were permitted to produce additional testimony and again closed their case.
“2. The Court erred in not directing verdicts for the defendants at the close of all of the testimony and before instructing the jury, and in refusing to enter a verdict for the defendants notwithstanding the verdict of the jury.
“3. The Court erred in not directing verdicts for the defendants inasmuch as there was no substantial evidence of negligence on the part of appellants.
“4. The Court erred in not directing verdicts for the defendants inasmuch as there was no substantial evidence that appellants’ acts were the proximate cause of the injuries complained of.”

The record reveals the following facts:

In April 1964 appellees owned a forty-acre tract of land in Ouachita County with their home and a tenant house located thereon. Both houses had been supplied, for about eighteen years, with water from a well about thirty feet deep and containing twelve or fourteen feet of good soft water. The appellant, It. J. O’Brien, owned an oil well 550 feet from appellees’ water well. The oil well was 2,326 feet deep, and in April 1964, was providing 1.4 barrels of oil per day. Seven hundred feet and four hundred and eighty-five feet, respectively, from appellees ’ water well, there were two salt water disposal pits which had been in use for a number of years. The evidence is in conflict as to whether the pits were higher or lower in elevation than appellees’ water well.

In April 1964, appellants did what is known as a sand fract job on the oil well, and within a week or so following this operation, a change was noted in the quality of the water in appellees’ water well, and the quality of the water rapidly deteriorated until it soon became unfit for human consumption.

There was ample evidence presented by appellees that during the eighteen years prior to the sand fract operation, the water in their well had been palatable and wholesome and that within a month following the sand fract operation, the water became unfit for household use, even for bathing and laundry. Aside from the testimony of the appellees and their witnesses as to the change in the appearance and taste of the water, there was evidence that the water killed flowers watered with it; that new galvanized pipe fittings on hot water tanks had been eaten through with rust and acidic-like corrosion in a period of eighteen months. Undated reports of chemical analyses made after the sand fracting job, showed a variation in total dissolved salts from 60,800 ppm with a pH factor of 6.1 to 851 ppm dissolved salts with a pH factor of 4.9.

Chemical analyses presented by appellants from samples taken from the Primm well on December 7, 1964, and December 7, 1965, show changes as follows: chloride from 160 in 1964. to 340 in 1965; sodinm 80 to 190; total solids 305 to 613 and pH factors from 6.2 to 6.7.

Although the terms “dissolved salts,” “chloride ” “sodium,” and “total solids” are indefinite terms in relation to the problem here, appellees ’ undated reports of chemical analyses show a tremendous variation in the chemical contents and acidity of the water, and appellants ’ reports show that the named chemicals and solids more than doubled within the one year period from December 1964 to December 1965, and during the same period, the relative acidity of the water changed slightly toward alkalin (pH 7 being- neutral) from 6.2 to 6.7. The analyses reports introduced by appellees bear no date so we are unable to tell when the water attained its highest relative acidity, but appellants’ own expert witness testified that pH 4.9 is a strong acid for human consumption or use.

As a matter of fact, appellants offered expert testimony to the effect that the chemical content of the water in appellees’ well was consistent with the chemical content of the salt water disposal pits near his land, so certainly there was ample evidence of damage to appellees’ water well to go to the jury at the close of appellees’ proof, and there was ample evidence to support the jury verdict on this point.

Appellees’ witness, Mr. Hogg, testified that appellees’ land had a true market value of $20,000.00 with good usable water, and $8,000.00 or $10,000.00 without usable water. Mr. Honeycutt, a witness for appellants, placed the before and after value at $12,500.00 and $11,-000.00, or a difference of $1,500.00 based on the value of the two houses and one acre of ground with each house and $1,000.00 for drilling a new well.

From this testimony and the testimony of appellees as to their inconvenience in having to haul water for domestic use, together with the testimony of Mr. Hamlin as to the two water strata in the area; one 25 to 30 feet deep and the next 360 feet deep; we are of the opinion that appellees submitted ample competent evidence to go to the jury on the over-all damages, and that there was sufficient evidence to support a jury verdict of $4,000.00.

We now come to the most important issue; the negligence of appellants and the proximate cause of the damages to appellees.

The appellants produced considerable testimony while using charts or diagrams drawn to scale, apparently showing detailed diagrams of the oil well, including the location of oil bearing sands, perforations, and the location or locations of cement in or around the casing.

As we understand the testimony, the appellees were trying to prove, by circumstantial evidence, that because of the pressure forced into the oil well in the sand fracting operation, a channeling occurred from the oil well into the water strata of appellees’ well thus bringing impurities from the oil well to appellees’ water well, and that appellants were negligent in applying the pressure they did apply in bringing this about.

Appellants were attempting to disprove appellees’ theory by showing that even with a pressure of 3,500 pounds per square inch, a channeling did not occur as evidenced by no sudden drop in pressure on a pressure gauge at the well-head. And that as a matter of fact a channeling could not occur, because of the protective cement around the casing as indicated on the charts.

Apparently the charts were not offered in evidence since they do not appear in the record before us, but in their use before the jury Mr. Zwahlen, a petroleum engineer for appellant, testified as follows:

“Q. Mr. Zwahlen, I have some diagrams. Are yon familiar with that diagram?
A. Yes, I am.
Q. Would you explain it, please?
A. Yes, I will. May I move over here, so possibly the Judge can see?
Q. Mr. Zwahlen, was this drawn under your supervision?
A. This was drawn under my supervision, since I had all the records of what went on. This illustrates the well that we actually fracted up there, the Wesson No. 1, and according to our records the well, of course, was completed according to the State regulations. We had our surface casing set at this depth and cemented.
Q. What is that?
A. This blue line is cement. We explain down here. You may not be able to see it, but cement is solid through here, the surface casing. Of course, this is the outside of the hole and then we drilled on down to our projected depth, which this one was 2,326 was the total depth of our well. Then we ran our production casing, which is 5% inch casing, to below our producing sand. Then we — 'Some of you people, I know, being in the oil field know these terms, but I’d like to go on through this. We pumped cement on down around this casing and- it comes out around the outside and the top of the cement is shown here. It calculates out that it should be at 925 feet, from the surface to here, and we are perforated down here in the range of 2,150 feet and below, which gives us more than 1,000 foot of cemented casing which will protect anything up above us.
Q. Here’s another chart. Do you recognize this chart, Mr. Zwahlen?
A. Yes, I do. We were trying to draw to scale something that we could bring into the Court Room and show to everyone here exactly, as ice could, the situation toe had out there on the job when we were fraeting and, of course, over here, what we have labeled here, we’ve taken this information from what we call our electric log. It shows here, starting at the surface down to around 900 feet, we have clays, sand and shales interbedded and this is the upper part. Up in here is where you have, of course, your fresh water. This is our'surface casing that we have in here and it’s cemented.
Q. Is this the same blue that was on the other?
A. This is the same blue that was on the other. Of course, there’s another blue down here. Like I said before, we calculate the cement should come to about 950 feet, so we have all of the cement above this formation that is producing oil and that we did fract down here, where we-’re getting our oil from.” (Emphasis supplied.)

One of the links in the chain of circumstances appellees were attempting to forge in support of their theory, was that even though casing and cement were designed to protect against channeling in the oil well under ordinary pumping conditions, vibrations were negligently set in motion by the appellants in their sand fracting operation, and that the vibrations were of sufficient intensity to loosen the casing and cement in the oil well, thus permitting a channeling to occur under the pressure necessarily applied in the sand fracting of oil wells in general, and that was applied to appellants’ well in particular.

As to the vibrations, Mrs. Primm testified:

“We did feel the vibrations. It seemed like they were just going to blow the ground out from under us.”

Mrs. Primm testified that the noise and vibrations from appellants ’ operation were much worse than from other sand fracting operations previously done near, and even closer to her house, than appellants’ operation.

Appellants were using an old airplane engine without a muffler in their fracting operation and they admitted it Piade a lot of noise. Appellants did not deny vibrations in the air during their operation, but attempted to disprove vibrations in the ground by introducing pressure charts or graphs taken at the well-head during- the operations and by then demonstrating the sensitivitv of the machine mechanism to vibrations artificially induced in the court room. No objection was made to this bit of demonstrative evidence, but the jury had a right to recognize that the sensitive mechanism of the machine was not under 3,500 pounds of pressure per square inch when the demonstration was conducted in the court room.

As to directed verdicts, this court is fully committed to the rule restated as recently as June 5, 1967, when in the case of St. Louis Southwestern Railway Co. v. Frances W. Farrell, Adm’x, 242 Ark. 757, 416 S. W. 2d 334, we said:

“* * * A directed verdict for the defendant is proper only when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiff’s' evidence its highest probative value, taking into account all reasonable inferences that may sensibly bo deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury.”

The evidence in the record before us does not measure up to the requirements for a directed verdict.

Here the appellees’ water well had been producing an abundance of excellent soft and palatable water from a thirty foot depth for a period of eighteen years prior to April 1964. During April 1964, appellants sand fracted their oil well at a depth of 2,150 feet and in doing so they first introduced acid into the well, in an amount and of a kind not shown in the record, but for the purpose of cleaning out the perforations leading from the casing into the oil bearing sand. Appellants then forced an unknown quantity of oil, blended with sand, through the well out into the oil bearing sand under a pressure of 3,500 pounds per square inch. In carrying out this operation, the appellants created a noise with vibrations transmitted either through the air, through the ground, or through both the air and the ground, but in any event of such intensity to vibrate appellees’ house which was a distance of 550 feet from appellants ’ operation.

The record reveals that pH 7 in water analysis is the dividing line, or neutral area, between acidity and alkalin and that pH 4.9 is a strong acid for human use or consumption. The record further reveals that soon after appellants had finished their operation, the water in appellees’ well became unfit for consumption and use and showed an acidity content of pH 4.9, subsiding to almost neutral, 6.7 by December 1965, and that as the acidity of appellees’ well water diminished, the calcium and cholride contents more than doubled. There is am-pie evidence that appellees had good well water before the sand fract operation, and that it has been unfit for use since the sand fract operation.

Appellants’ oil well, only 550 feet from appellees’ water well, contained an undetermined amount of acid. It was the only known source of acid anywhere near appellees ’ well. This acid was forced out into the earth under tremendous pressure along with, or ahead of, an undetermined amount or volume of fracting material. There is evidence of tremendous vibrations in connection with this operation and some evidence that the ground under appellees’ house vibrated. So giving to the appellees’ evidence its highest probative value, and taking into account all reasonable inferences that may be deduced from it, the jury could have reasonably concluded that the high acid content of the water in appellees’ well, which had suddenly gone bad following the sand fract operation, was forced into appellees’ well along with other impurities, from the only known and nearest source, appellants’ oil well.

If the jury accepted appellants’ theory that the impurities in appellees’ water well came from the salt water disposal pits, the jury could have reasonably concluded that the vibrations from appellants’ fracting operations disturbed the surface of the ground to a depth sufficient to release seepage, from the disposal pits into the pure water strata of appellees’ well.

We conclude that the trial court did not err in not directing verdicts for the appellants at the close of appellees’case, (Hawkins v. Missouri Pac., 217 Ark. 42, 228 S. W. 2d 642) and we conclude that there was no error in the trial court’s failure to direct verdicts for the appellants on the other points relied on in their brief. (Arkansas State Highway Comm. v. Webster, 236 Ark. 491, 367 S. W. 2d 233; Arkansas Louisiana Gas Co. v. Robert C. Wood, 240 Ark. 948, 403 S. W. 2d 54.)

The judgment of the trial court is affirmed.

Brown and Fogleman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I respectfully dissent. The case was submitted to the jury on the basis of negligence and the majority opinion indicates that they believe that negligence is the appropriate basis for liability rather than liability without negligence. With this I can agree, as it is not shown that the use being made of appellants’ property or the method of operation was such as to invoke the doctrine of strict liability. I agree that the doctrine of res ipsa loquitar cannot be applied in a case such as this when injury might have been brought about by either of two speculative theories, for one of which the defendant is not responsible, and neither of which is included or excluded by affirmative evidence. Oklahoma Gas & Electric Co. v. Frisbie, 195 Ark. 210, 111 S. W. 2d 550; Martin v. Arkansas Power & Light Co., 204 Ark. 41, 161 S. W. 2d 383; Williams v. Lauderdale, 209 Ark. 418, 191 S. W. 2d 455. The evidence must have a substantial probative tendency to show that plaintiff’s injury was caused by defendant’s negligence to the exclusion of anything else. Saunders v. Lambert, 208 Ark. 990, 188 S. W. 2d 633.

As indicated, in the majority opinion, the evidence on behalf of appellees was all circumstantial both as to negligence and proximate cause. This is a proper basis for a jury verdict. Parker v. Marsh, 221 Ark. 229, 252 S. W. 2d 624; Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S. W. 2d 290. Conjecture cannot be permitted to supply the place of proof, however, and create a conclusive presumption, as this would exclude every other reasonable means which might have caused the injury. Missouri Pacific R. Co. v. Ross, 194 Ark. 877, 109 S. W. 2d 1246. The burden was on appellee to show an act of negligence on the part of appellant by substantial testimony and he cannot rely on inferences based on conjecture and speculation. Glidewell, Administrator v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4.

It seems to me that, as between the salt water pits and the “sand fracting” operation, the jury could only speculate as to the cause of damage to appellees. The circumstantial evidence certainly does, not exclude the salt water pits as a possible cause, nor do I think it shows negligence on the part of appellants. In Turner v. Hot Springs Street Railway Co., 189 Ark. 894, 75 S. W. 2d 675, a case involving a similar question, this court said:

“*”And where the testimony leaves the matter uncertain, and shows that any one of a half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion.”

The acts of negligence upon which appellees rely were (1) use of excessive pressure, (2) failure to place enough protective material above the pressure area, and (3) causing excessive vibrations of the oil well casing.

Evidence of excessive pressure is based almost entirely upon the testimony of appellee Edith Primm that there was more pressure than had been used in sand fracting other wells near their house. It appeared from cross-examination that she judged pressure by the noise made in the operation. There was no evidence that the apnount of pressure used was excessive, nor was there any evidence at all on behalf of appellees as to the second act of negligence. Mrs. Primm also testified that they felt vibrations at the house and it seemed as if they were going to have the ground blown right out from under them. There was expert testimony to show that the vibrations were only in the air.

Jack Robinson, a witness for appellees who has worked in the oil industry, stated that vibrations would loosen casing in an oil well. He also said that when you liave a loose casing, it was possible that fluids would pass up through the channeling and that channeling jobs have been known around pipe in an oil well. John Langley, another witness for appellees, said that vibrations would loosen casing and that channeling, or the movement of material from one formation to another, resulted from pressure. He also said that when the cement was not adequate to protect against such a possibility, the situation could be detected by salt water in the oil formation. Conrad Hamlin, offered as a water well expert by appellees, said that there was a chance that a slush pit 100 feet by 100 feet, 15 feet deep, within 500 feet of Primm’s shallow well which has salt water continually discharged into it would pollute the Primm well. There is nothing in the record to show that appellants had anything to do with these pits.

Tom Jordan, a petroleum engineer employed by B. J. O’Brien, stated that the oil well was in all respects in accord with industry standards before the sand fracting was done. He said the oil producing formation was at 2,150 to 2,200 feet.

Lee Zwahlen, O’Brien’s petroleum engineer who designed the sand fracting job on the well, said that they tested the lines and pump used under pressure and found no cracks or leaks. He also said that the work was done 2,150 feet down in the well. The pressure used was 2,500 pounds per square inch. He added that if the fracting material had not gone into the oil producing formation it would have come out the top valve. While he said the pump made a lot of noise, he said there was no vibration of the ground. Acid was spotted around the perforations to clean them up. He said that salt water increased from 7% or 8% to 10% after the fracting. Mr. Zwahlen had heard of channeling jobs and knew what they were, but testified that there was no channeling on this job. He said this would have been impossible without producing a lot of salt water and that this did not occur.

M. J. Olive, a chemical engineer, supervised the taking and analyzing of samples from the Primm well and the pits near the house. The chemical analysis in each sample was very nearly identical, hut the chloride content was naturally much higher in the pits. It was his opinion, based on an on-site inspection and analysis of the water samples, that the concentration of chloride in the Primm water came from the pits by seeping subsurface to the well.

In my opinion this testimony does not meet the requirement for circumstantial evidence to show that the well was affected by the sand fracting job or that appellant was guilty of any negligence. There was no evidence that there was channeling, no evidence of excessive salt water as a result thereof, and nothing to indicate that any of the material used came from a depth of 2,150 feet through various formations to the level of appellees ’ well which was 29 feet deep. The chloride content was shown by a letter from a chemist named Faulkner to Primm to be low enough on September 10, 1964, to indicate that no acid got into the well during the fracting job.

I think that the evidence, given the strongest probative force favoring appellees, only leads to speculation and conjecture as to both negligence and proximate cause which are improper bases for submission of the question to the jury. Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S. W. 2d 290. The burden was on appellees to show by substantial evidence, rather than inferences, speculation and conjecture, a basis upon which a jury might have found some act of negligence on the part of appellants. GUdewell, Administrator v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S. W. 2d 4. Nor may a jury capriciously disregard reasonable testimony of witnesses in order to give substance to a fanciful theory. Missouri Pac. R. Co. v. Ross, 194 Ark. 877, 109 S. W. 2d 1246. In tlie latter case tlie evidence showed that the battered body of appellee’s decedent was found on a straight railroad track on which it was customary for pedestrians to walk. There was blood at the scene. There were no footprints and no indication that the body had been dragged. It was shown that deceased had started walking to a destination along the railroad tracks five miles away on the night before his body was found. The railroad company’s testimony showed that a lookout was maintained on all trains at all times the deceased could have been on the tracks and that the headlights on the trains gave proper illumination. The language of the court is particularly applicable here:

“* * * If, with the lookout being maintained, physical surroundings and attending conditions were such as to negative any explanation of the tragedy other than the supposition that Ross was walking on or near the track, then we might say the jury was justified in disregarding testimony of appellant’s agents as to the measure of care, and such action would not be arbitrary. But no such case has been made out. To admit this would be to say that there is a conclusive presumption that Ross was walking on or near the track, in the glare of a brilliant headlight, and that negligence alone was responsible for the fact that his presence in such place of peril was not discovered. There is no such conclusive presumption. Such a rule would exclude every other reasonable means which might have caused the tragedy[Emphasis ours]

There are other means which might well have caused this damage in the case before us and the testimony does not exclude them.

I do not find the suggestion that ground vibrations may have caused seepage from the salt water disposal pits convincing. There was no evidence either that this happened or might have happened. Such a conclusion by the jury could only be speculation.

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

      The perforations are at the level of the oil producing strata.


author: J. Fred Jones, Justice. Conley Byrd, Justice,

text:
    Fred HOLLIS and Hollis Mobile Homes, Inc. v. Don F. CHAMBERLIN d/b/a Don’s Discount House
    5-4274
    419 S. W. 2d 116
    Opinion delivered October 9, 1967

      Gus R. Camp, for appellant.

      Randall W. Ishmael, for appellee.
   J. Fred Jones, Justice.

This appeal is from a judgment in replevin rendered in favor of the appellee (plaintiff in the trial court) by the Craighead Circuit Court, Jonesboro Division, with the judge sitting as a jury.

The appellee, Don F. Chamberlin, is an individual dealer in mobile homes in Poplar Bluff, Missouri. In the course of his business he sells new camper units designed for installation on pick-up trucks. The appellant, Fred Hollis, is a dealer in used mobile homes in Jonesboro, Arkansas, and also buys and sells camper units. He operates his business under its corporate name, “Mobile Homes, Inc.”

About 7:30 p.m. on July 12, 1966, appellee sold to one Joe Crowder a new camper unit for the retail price of $1,757.74. The appellee had purchased the unit from the factory for the wholesale price of $1,538.25. Crowder gave appellee a check on Citizens Bank in Springfield, Missouri, in full payment for the unit. 'Crowder loaded the unit onto a pick-up truck, which was too small to properly accommodate the camper unit, and he left ap-pellee’s place of business without obtaining a bill of sale, but with announced purpose and intention of returning later to pick up the tail gate of the truck which had been removed from the truck in loading the camper unit and which was left at appellee’s place of business. Crowder did not return for the tail gate, but instead, drove the truck with the camper thereon to Jonesboro, Arkansas, and on the following day, July 13, sold the camper unit to the appellants for $500.00. Crowder’s check to appel-lee was dishonored for insufficient funds and appellee instituted suit in replevin against appellants for possession of the camper unit and for damages.

The appellee filed his original complaint and affidavit to obtain delivery August 19, 1966. The complaint and affidavit alleged ownership- and right of possession. Appellant filed a motion to dismiss the complaint because appellee was not the owner of the property involved; that Crowder purchased the camper with a check which was dishonored by the bank and that appellant was an “innocent purchaser” of the property for $500.00. Appellee then filed an amended complaint also setting out the transaction between appellee and Chowder in some detail, and stating that appellant “was not an innocent or in good faith purchaser for value.”

Appellant filed a motion to strike the amended complaint as untimely after delivery of possession under bond, and this motion to strike contained an alternative plea of general denial and counterclaim for damages.

The trial court made findings and entered judgment as follows:

“(1) The defendant’s Answer, being Section 2 of the Motion to Strike Amended Complaint, was only a general denial and there were no pleadings as to an affirmative defense of the defendant being an innocent purchase:- for value.
“(2) (a) No title passed from plaintiff to Joe Crowder as title was conditional upon payment of the check tendered for the purchase price.
“(3) (b) Defendant was not an innocent purchaser for value.
“The plaintiff should have judgment for possession of the pickup camper which is the basis for this replevin suit, * * *
“IT IS THEREFORE BY THE COURT considered, ordered and adjudged that the plaintiff have possession of the above described pickup camper which is the basis of this replevin suit; that the plaintiff and the surety on his replevin bond be discharged from any and all further liability in connection with the said bond; and that the plaintiff recover from the defendant all his costs herein paid, laid out and expended, for which execution may issue.”

At first glance it would appear that the judgment of the trial court is inconsistent with the court’s findings. The record is not clear what action, if any, was finally taken on the appellants ’ motions to dismiss and to strike, hut the motion to dismiss does set up the affirmative defense of “innocent purchaser for value”; appellee’s amended complaint recognizes this defense as “good faith purchaser for value,” the case was apparently tried and decided on that point, and we conclude that the trial court was correct in the judgment rendered.

The parties seem to agree that this transaction is controlled by the Uniform Commercial Code in Missouri, as between appellee and Crowder, and in Arkansas, as between Crowder and appellant, and that Crowder obtained a voidable title by the delivery of the camper in exchange for the worthless check.

The appellant has cited the correct section of the Uniform Commercial Code applicable to this case. Ark. Stat. Ann. § 85-2-403 (Add. 1961), is as follows:

“A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though
* * # ^ Tbu delivery was in exchange for a check which is later dishonored.”

Under the above statute, this case presented a fact question to the trial court as to whether or not appellant was “a good faith purchaser for value,” and in this court on review, the question is whether or not there was any substantial evidence to support the trial court in finding that the appellant “was not an innocent purchaser for value.” We accept the terms “good faith purchaser for value” and “innocent purchaser or value,” as being synonymous as used in this case, and we conclude that there was substantial evidence to support the trial court’s finding on this point. Arkmo Lumber Co. v. Luckett, 201 Ark. 140, 143 S. W. 2d 1107.

Crowder advised appellants that he wanted to sell the camper because it did not properly fit on his truck and interfered with the safe and proper driving of the truck. “They said: ‘Our truck will not haul the camper’.” Appellant did not know Crowder nor any of the other three people with him when he purchased the camper unit from Crowder, but he did know that the camper unit looked new and was worth at least $1,000.00. Appellant knew that the unit was “purportedly” transported from Springfield, Missouri, when he purchased it, yet the camper unit did not fit the truck it was on, it was not tied down on the pickup and no explanation was made, and apparently no questions were asked, as to why it was not tied down. Crowder had no bill of sale, or other evidence of title from appellee, and apparently appellant asked no questions concerning Crowder’s title. He did, however, require and receive a bill of sale from Crowder.

The case of Gentry v. Alley, 228 Ark. 236, 306 S. W. 2d 695, involved the rightful use of microfilm and the defense of “innocent purchaser for value,” was interposed. In holding that the defendants were not innocent purchasers for value, this court said:

“The record discloses many facts and circumstances which were calculated to have aroused Gentry and Linton’s curiosity as to the history and ownership of the questioned film, and very little inquiry would have disclosed the true facts.”

In the Gentry case we quoted with approval from 77 C. J. S. at page 1092 under the title of Sales, Adequacy of Price, as follows':

“Inadequacy of price, when very great, is of itself evidence to a purchaser of infirmity in his seller’s title, and consideration is to be given it, in connection with other circumstances, in determining whether a buyer is a purchaser without notice.”

We also quoted from C. J. S., page 1099, same volume, as follows:

“The consideration, in order to be effective to bring a transfer within the doctrine of bona fide purchase, should be an adequate valuable consideration, or a fair consideration, but it need not be up to the full price of the goods.”

The trial court was sitting as a jury in this case and there was substantial evidence to support the finding that appellant was not a good faith purchaser of the camper unit for value.

The judgment of the trial court is affirmed.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. I would reverse and remand this case to the trial court because it does not appear from the trial court’s order that a finding was made on the facts involved here. The trial court’s order is as follows:

“. . . Now, upon this 29th day of October, 1966, upon reviewing the record herein, and a careful consideration of the briefs filed by the parties in the above matter, the 'Court is of the following opinion:
(1) The defendant’s Answer, being Section 2 of the Motion to 'Strike Amended Complaint, was only a general denial and there were no pleadings as to an affirmative defense of the defendant being as innocent purchaser for value.
(2) (a) No title passed from plaintiff to Joe Crowder as title was conditional upon payment of the check tendered for the purchase price.
(2) (b) Defendant was not an innocent purchaser for value. . .”

The Uniform Commercial Code in effect in both Arkansas and Missouri with respect to the acquisition of goods here involved provides as follows:

Ark. Stat. Ann. § 85-2-403 (Add. 1961)—
“ (1) A purchaser of goods acquires all title which his transferor had or had power to transfer ... A person with voidable title has power to transfer a good title to a good faith purchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though” (Emphasis supplied.)
# * #
“(b) the delivery was in exchange for a check which is later dishonored, or”
Ark. Stat. Ann. § 85-1-201 (Add. 1961)—
“General definitions. — ”
* * *
“(19) ‘Good faith’ means honesty in fact in the conduct or transaction concerned.”
# # #
“(44) ‘Value’. Except as otherwise provided with respect to negotiable instruments and bank collections ... a person gives ‘value’ for rights if he acquires them”
“(d) generally, in return for any consideration sufficient to support a simple contract.”

In referring to the order above set out, I agree with the majority opinion that appellant raised the issue of good faith purchaser for value. Item 2(a) is an incorrect statement of the law, for the reason that under the Uniform Commercial Code the court has to determine only whether the transferor, Joe Crowder, received voidable title from appellee, Don F. Chamberlin d/b/a Don’s Discount House. It appears to me that in Item 2(b) the court, as a matter of law, concluded that appellant was not an innocent purchaser for value because of its erroneous interpretation of the lavr with respect to Items 1 and 2(a).

I am persuaded that this is so because in the trial of the case appellee objected to any evidence showing that appellant was a bona fide purchaser of the trailer, and at that time the trial court indicated that appellant had not pleaded such, but permitted the testimony to be admitted, reserving his ruling thereon with the statement that “it may be this is strictly a matter of law.” Under these circumstances, I think appellant was entitled to have the fact issue of his good faith, as defined by the Uniform Commercial Code, determined by the trial court.

Therefore I respectfully dissent.


author: Carleton Harris, Chief Justice. Paul Ward, Justice,

text:
    OTTENHEIMER BROTHERS Manufacturing Co. v. Viva CASEY
    5-4273
    419 S. W. 2d 784
    Opinion delivered October 16, 1967
    [Rehearing denied November 20, 1967.]

      C. Richard Crockett, for appellant.

      George Pike, Jr., for appellee.
   Carleton Harris, Chief Justice.

This is a Workmen’s Compensation case. Appellee, Viva Casey, was employed by Ottenheimer Brothers Manufacturing Company, appellant herein, in its plant located in Little Rock. Mrs. Casey’s job was to hand pleat skirts, set collars, run a pinking machine, and put tape on dresses manufactured by the company. Appellee’s wages averaged about $57.90 per week, and her working hours were 7:30 A.M. to 4:00 P.M., five days per week, with morning and afternoon breaks of ten minutes each, and thirty minutes for lunch. On the night of May 6, 1965, Mrs, Casey became ill with what she described as “gas pains,” a hurting in the upper part of her stomach and chest. She stated upon awakening next morning, she did not feel good, but had no pains. She went on to work, but began to feel worse, and about 8:30 or 8:45, after lifting a heavy bundle, she felt a pain in her chest. She endeavored to continue work until about 9:30, when she was forced to stop. Mrs. Casey stated that the pain “left my chest, and went up into my arm and shoulder and it seeemd like it would run down my arm and it was just as if you had cut it off. ’ ’ She went to the first aid room and rested for a while. When th? lunch hour arrived, appellee was unable to eat, and a fellow employee took her home. That afternoon, she went to the office of Dr. E. J. Ritchie, and subsequently (on October 8, 1965) was examined by Dr. Alfred Kahn, Jr.; also, Drs. Ben Price and James Wilson, cardiologists, made an examination on July 12, 1965. In the meantime, on Monday, May 10, Mrs. Casey returned to work, and worked through Thursday, May 13; while at home that night, she suffered another attack, and has-not worked since that time. Another attack was also suffered in June. Appellee filed a claim for compensation benefits, and the matter was heard by a referee. At the conclusion of the hearing, an award was made, but on appeal to the full commission, same was denied. This action of the commission was appealed to the circuit court, which reversed the commission. From the judgment so entered, appellant brings -this appeal.

Here, of course, under our well established rule in compensation cases, we are only concerned with whether there was substantial evidence to support the findings of the commission. Mrs. Casey, in testifying, described her duties,, part of which consisted of holding a dress up while she guided it through the sewing machine. She stated that holding her hand up, during a day’s time, became very tiresome; that she lifted bundles during the day ranging from something less than 20 pounds up to 25 pounds; she had started work for Ottenheimer’s in February, 1963, and had lost weight from 189 pounds to 157 during the period of her employment. Mrs. Casey insisted that the pains that she experienced on the night of May 6 were not similar to the one she experienced at work on May 7, and she also stated that she was not in pain when she went to work on the latter date.

Eldon Casey, husband of appellant, said that his wife would complain of being completely exhausted when she returned from work, and would mention a “heaviness in her chest.” He stated that she mentioned hurting in her chest on the night of May 6, but that she went to work the next day, though complaining.

Dr. Ritchie testified by deposition on January 11, 1966, that he had been treating Mrs. Casey since May X, 1965, and last saw her on December 10 of that year. He stated that on May 7, he found she had an attack of angina pectoris, and he gave her an injection of opiate (Demerol) for relief; subsequently, an electrocardiogram was done, which revealed coronary insufficiency. The doctor testified that Mrs. Casey’s difficulty was due to arteriosclerotic heart disease, which results in coronary insufficiency; that this condition, from time to time, causes angina pectoris; however, he stated that there was no evidence of a thrombosis or infarction. The witness said that arteriosclerosis is a progressive disease, and it was his opinion that the work claimant was doing on May 7, though having nothing to do with the coronary insufficiency, did contribute to the angina attack which occurred on that date, i.e., the work did contribute to the pain that was suffered by appellee on that particular occasion. He stated that she also, on May 21, came into his office complaining of pain, and upon inquiry, Mrs. Oasey said that she had been hurting most of the day, though she had been doing her normal house work on that occasion. The doctor testified that she continued to have anginal pain nearly every day after the 21st. He stated that only the attack of pain which occurred on May 7 could be attributed to the work itself, but that her other attacks of pain were also due to her coronary insufficiency, the pain being occasioned by whatever she happened to be doing at the time. The ■cardiograph done by the doctor revealed no damage to the heart, and Dr. Ritchie sent Mrs. Casey to Drs. Wilson and Price, who examined her for heart trouble. They made a second cardiogram, and this was compared with the one done by Dr. Ritchie. Both were negative, i. e., there was no evidence of heart damage. It was the view of Ritchie that the work contributed to the attack on May 7, but he could not say that the work at the Otten-heimer Brothers plant caused the condition from which he found her suffering on December 10, 1965; he did state that he thought it might have contributed some to the attacks that she had. The testimony of Dr. Ritchie is the only evidence in the record which supports, in any measure, the view taken by claimant.

Dr. Kahn likewise testified that Mrs. Casey’s condition was due to coronary insufficiency, and he explained that this disease is an aging of the arteries. He stated that the aging process does not have any relation to the work the patient might be doing; in fact, the doctor said that physical activity (if controlled) is one of the few things that tend to retard the onset of coronary artery disease. As to the attack on May 7, the witness testified:

“* * * I think the most that one could say is that it’s conceivable that something that she did at work might precipitate the pain, which is just a symptom of the underlying disease, but I don’t think I could prove, if I tried to, that any important damage had been done to her, or in fact any detectable objective damage.”

He said that the pain was only a manifestation of coronary insufficiency and did not represent any physical damage to the heart:

“Well, we ran an electrocardiogram on this patient when she was completely at rest. Then she was given a specified amount of exercise, which was in relationship to her age and build. Then portions of the electrocardiograph were repeated. These tracings did not show evidence of — we call it anoxia, in the electrocardiograph. In other words, they were normal after exercise and before.
Q. Did yon find any evidence of heart disease from the electrocardiograph?
A. No.
Q. All right. Did yon find any evidence of a blood clot or infarction of the heart mnscles?
A. No, sir, I did not.”

In answer to the question as to whether it was at all possible that the exercise which she performed on May 7 had contributed to her present condition, Dr. Kahn replied that there are no “absolutes” in medicine, but that he certainly didn’t think that the 25 pound lifting was related to her present condition; he was rather emphatic in stating that it was his opinion that her activities did not speed up the degenerative disorder in her coronary arteries, and accordingly he did not think that the angina attacks, which Mrs. Casey had after she quit work, had any causal relation with the exertion of May 7. He also said that excessive fatigue is not good for a person, but that it could not relate to a progression of her disease.

Respondent’s Exhibit “A” to the testimony of Dr. Ritchie was a letter from Dr. Wilson lo RitchiexJn the letter, Dr. Wilson states that he is “not absolutely convinced she has arteriosclerotic heart disease with coronary insufficiency, but there are enough predisposing factors and her symptoms suggest angina strongly enough that I think the safest thing is to assume she has coronary disease until we can prove differently.” One item in the letter is of particular interest. After stating that Mrs. Casey came to the office for evaluation of her recent illness, Dr. "Wilson wrote:

“As you know she thought she was in pretty good health until May 6, 1965, when she had a retroeternal chest pain accompanied by aching in her left arm. This occurred about 9:30 at night after she had retired and following a supper which included some fried foods. The pain never did really subside, and after she went to work the next day it became much worse.”

Mrs. Casey denied that she told Dr. Wilson that the pain never did subside. She said she could not understand why Wilson placed that in his report. Of course, since the doctor was not acquainted with appellee until she went to his office, it is difficult to understand how he obtained that information unless she told him, and it would appear that Mrs. Casey has overlooked, or forgotten, that she gave this information. It will be remembered that her husband also stated that she was still complaining on the morning of May 7 when she was getting ready to go to work.

Appellee relies someAvhat upon our recent case of Dougan v. Booker, 241 Ark. 224, 407 S. W. 2d 369, but there are some distinctions in that case. There, a worker with a bad heart put forth unusual exertion in his work, collapsed on the job, and died. The family physician, who had known Dougan for a long period of time, testified in the case in support of the widow’s claim, and this doctor was the only doctor who personally had seen and examined Dougan. The other two doctors who testified only reviewed the transcript of the testimony, and from a reading of that testimony, answered a detailed hypothetical question, one of the doctors expressing the opinion that Dougan’s work did not contribute to his death. The claim for compensation benefits was mot allowed, and we reversed on appeal.

In the case before us, no family physician testified, :and no doctor who testified saw Mrs. Casey before the day of the attack complained of. However, all of the doctors mentioned iii this opinion personally observed Mrs. Casey; no one testified simply on the basis of having read the transcript. Of course, in the case cited, Dou-gan suffered his attack, and died before reaching the hospital; here, the weight of the evidence is to the effect that no heart damage was occasioned by the attack suffered on May 7.

As stated at the outset, we are only concerned with whether there was substantial evidence to support the finding of the commission. It is not within our province, irrespective of any sympathy that we might have for Mrs. Casey, to decide questions of fact. That is the function of the commission, and we are unable to say that the finding by the commission was not supported by substantial evidence.

Accordingly, the judgment of the Circuit Court is reversed, with directions to reinstate the order entered "by the Workmen’s Compensation Commission.

It is so ordered.

Ward, J., dissents.

Paul Ward, Justice,

dissenting. In dissenting to the majority opinion I shall try to make clear my views on two features of this case. One relates only to this particular case. Two relates to all cases of this nature.

One. While it is my opinion, after careful consideration, that there is no substantial evidence to support the findings of the Commission, I will endeavor to show only that there is definitely a doubt about there being such evidence.

Set out below are my reasons for the doubt.

(a) Before this case reached us five duly qualified judicial persons expressed their opinions on this matter. Two persons (two commissioners) thought there was no such evidence. Three persons (the referee, one commissioner, and the trial judge) thought there was such evidence.

(b) It is undisputed: that appellee was a healthy woman before she began working on the assembly line, which entailed constant, tedious application and lifting heavy bundles; that, while working, she began suffering pains and finally completely collapsed; that shortly thereafter she tried the same work again and was unable to continue, and; that she is still unable to work although she needs to do so because of a sick husband and financial demands.

(c) Dr. Ritchie testified, in essence, it was his opinion: that appellee was suffering from angina pec-toris; that her condition was aggravated by her work, and; that she would never be able to return to the same type of work.

(d) Ottenheimer’s own doctor admitted: “the most reasonable assumption was that the attack was precipitated by the work she was doing”. Again he said: “Well, I certainly would think that it would be aggravated by the type of lifting and the type of work she did”.

To refute the above the majority rely on the testimony of one doctor whose opinion was that there was no relation between appellee’s work and her attack or her present condition. Personally, I wonder if there was not some doubt in his mind since he used thirty three pages in appellants’ brief to express and substantiate is admitted that appellee’s claim was not based on a “heart” condition or injury, the doctor referred to the “heart” at least twelve times. In his testimony the doctor said: “The angina pectoris is simply a manifestation of a disease”, but Webster defines it as a “disease” —not a manifestation.

Two. If a doubt has been raised [and I cannot see how a reasonable person could say otherwise] then the doubt should have been resolved in favor of appellee.

In the case of Cummings v. United Motor Exchange, 236 Ark. 735, 368 S. W. 2d 82, where the Commission was reversed, we find this statement:

“. . . it is the intent and purpose of our Workmen’s Compensation laws that they should be liberally construed and, that doubtful cases are to be resolved in favor of the claimant”, (emphasis supplied.)

In the case of Dougan v. Booker, 241 Ark. 224, 407 S. W. 2d 369, we find the following language:

“The Workmen’s Compensation Law was adopted to give compensation to workers, not to allow insurance carriers to make fine distinctions to avoid liability. In this case the Commission did not give the liberal interpretation to the law which our cases require.” (emphasis supplied.)

In Clemons v. Bearden Lumber Company, 236 Ark. 636, 370 S. W. 2d 47, there is language which calls for serious and careful consideration in a case of this kind. It reads:

“The law imposes on us the duty to interpret the Workmen’s Compensation Law liberally to the end that the injured employees shall be remunerated for loss of earning power”, (emphasis supplied.)

In the spirit of the above holdings I would resolve -the doubt in favor of appellee.

      It anight be here stated that the medical evidence in this case points out that angina pectoris is not, in itself, a disease, or condition, but only a symptom of coronary insufficiency. Angina pectoris is sometimes a forerunner of coronary thrombosis.

      Dr. Ritchie commented on a Master’s test as one “wheré they put these people through the mill, hops, jumps, up and down stairs, just a terrific amount of severe exercise, * * * then they do a cardiogram.” He was then asked: “Now, if the patient has heart disease, coronary insufficiency or something like that or an infarct or a thrombosis, it will show up on that cardiogram, would it not?” A. “That’s right and they might show up dead too.”

      Other cases cited are not applicable to the facts herein.


author: George Rose Smith, Justice.

text:
    Evelyn McLENDON v. Dick JOHNSTON Jr. et ux
    5-4295
    419 S. W. 2d 309
    Opinion delivered October 16, 1967

      W. H. Daggett, for appellant.

      Harold Sharpe, for appellees.
   George Rose Smith, Justice.

The appellant, Mrs. McLendon, and the appellees, Johnston and his wife, own adjoining lands in Marianna. In 1965 Mrs. Me-Lendon began the construction of a house that eventually proved to encroach by about 3.4 feet upon the lot- and-a-half to which the Johnstons have record title. At about the time the house was completed the Johnstons brought this suit to compel Mrs. McLendon to remove the encroachment. This appeal is from a mandatory injunction granting the relief prayed. For reversal Mrs. McLendon relies upon adverse possession and estoppel.

There is hardly any dispute about the facts. Mrs. McLendon formerly owned all three of the contiguous lots now in question. In 1952, when all the lots were unimproved, she sold the north lot-and-a-half to a Mr. Bronson, whose title later passed to Ronald May. In 1954 May built the house that is now owned and occupied by the appellees.

The present controversy really stems from May’s having built a picket fence that lacked several feet of being on the true boundary line between his property and that of Mrs. McLendon. May’s fencing ran south along part of his back boundary line and then turned east and continued for about two thirds of the distance to the street in front of the house. The illusion that the fence marked the true boundary was doubtless compounded by the fact that the sidewalk in front of May’s house was paved only to the point at which it would have intersected the fence if the fence had been extended to the east line of May’s land.

When the Johnstons bought their house in 1962 they were told that the east-west fence was not on the line— that they were getting a strip on the other side. By then the east-west part of the fence had deteriorated, and Johnston removed it long before Mrs. McLendon began to build a house on her land. Mrs. McLendon testified that she “understood” that the fence had been on the boundary. Her contractor accordingly ran a string from the end of the Johnstons’ sidewalk to the end of the Johnstons’ back fence and positioned the new house with reference to that line. There is no dispute about the fact that the McLendon house does encroach upon the Johnstons’ property to a distance of 3.4 feet.

We may dispose quickly of the appellant’s claim of adverse possession. TJntil she began to improve her lots in 1965 they were vacant and unenclosed. Hence her assertion of title by adverse possession rests solely upon the fact that her neighbor placed his fence decidedly short of the common boundary. It is firmly settled, however, that “a landowner who puts his fence inside his boundary line does not thereby lose title to the strip on the other side. That loss would occur only if his neighbor should take possession of the strip and hold it for the required number of years.” Brown Paper Mill Co. v. Warnix, 222 Ark. 417, 259 S. W. 2d 495 (1953). Here there is no semblance of actual hostile possession on the part of the appellant.

Upon the remaining issue the evidence falls short of establishing an estoppel. There is no explicit or convincing proof that either the Johnstons or their predecessors in title ever represented to Mrs. McLendon that the lateral picket fence was actually on the boundary line. Johnston testified that when he first noticed that the McLendon house was being built he told the contractor about his own understanding of the boundary line. Johnston states that he got no satisfaction from the contractor, who said that the Cline & Frazier Company had surveyed the lot. Neither the contractor nor the surveyor was called to contradict Johnston’s testimony. Later on Johnston employed his own surveyor to determine the true line and promptly filed suit when it turned out that an encroachment existed. There was no want of diligence on his part.

On the other hand, Mrs. McLendon was not free from fault in the matter. She is an experienced builder, having erected and sold about ten houses in the neighborhood. Yet in this instance she made no apparent effort to determine the boundary line with accuracy. She admits that she paid $45 for a survey that was made by Cline & Frazier at the behest of her contractor, but the record contains neither the survey nor any testimony about what it disclosed. We must assume that the missing evidence would be unfavorable to Mrs. McLendon’s position. Mutual Relief Assn. v. Weatherly, 172 Ark. 991, 291 S. W. 74 (1927). Her contractor, according to Johnston’s uneontradicted testimony, was told about the possibility of an encroachment, but he apparently failed to pass the information on to Mrs. McLendon. Upon the record as a whole we find no sound basis for holding that the Johnstons should be estopped from complaining of a mistake that was primarily the result of Mrs. Mc-Lendon’s own oversight. In similar circumstances we have directed that a mandatory injunction issue for the removal of the purpresture. Jernigan v. Baker, 221 Ark. 54, 251 S. W. 2d 999 (1952); Leffingwell v. Glendenning, 218 Ark. 767, 238 S. W. 2d 942 (1951). Such cases control this one.

Affirmed.