author: Paul Ward, Associate Justice. J. Seaborn Holt, J.,

text:
    Phillips Motor Co. v. U. S. Guarantee Co.
    5-808
    285 S. W. 2d 333
    Opinion delivered December 19, 1955.
    [Rehearing denied January 23, 1956.]

      Dinning & Dinning, for appellant.

      O. G. Brewer and George K. Cracraft, Jr., for appellee.
   Paul Ward, Associate Justice.

On this appeal we seek to distinguish between the meaning of the word “possession” as distinguished from the word “custody” as applied to an exclusion clause in a policy insuring against theft. The facts are undisputed.

Appellant, Phillips Motor Company, is a corporation engaged in the business of automobile dealer in the City of Helena. On November 4, 1952, late in the afternoon, a man named Edd Martin came to appellant’s place of business and began negotiations to purchase a 1950 Dodge automobile valued at $1,425.00. After E. 0. Phillips, manager of appellant, and Martin had taken a short drive in the automobile to try it out, Martin stated that he had about decided to buy and asked Phillips if he would take his check, stating that he would like to keep the automobile over night to further try it out. Phillips at first replied that he would under no conditions let him use the car over night. A short time later however, after Martin had given Phillips his check for $1,550.00 on the First National Bank of DeWitt [marked in the left hand corner “for 1950 Dodge”] and after Phillips’ insurance agent had issued a liability policy on the automobile to Martin, for which Martin paid $100.00, Phillips allowed Martin to take the automobile and drive it until the next morning. It was understood that Martin would return the automobile the next morning and, if he liked it, the check would be cashed and title papers to the automobile would be made out to him. Thereupon Martin drove away in the automobile and has not been heard from since. When his check was presented to the bank it was dishonored for lack of funds.

At all times mentioned herein, and in the ordinary course of business, appellant held an insurance policy [No. GWB 4905630] issued to it by appellee, insuring against any damage or loss by reason of theft of any automobile owned or held in connection with the operation of its business.

On the above state of facts appellant filed suit against appellee on said mentioned policy to recover the value of the Dodge automobile. For its answer appellee admitted the issuance of the policy but denied that plaintiff had suffered any loss insured against therein, affirmatively stating that said policy contains, among other provisions, the following exclusion:

“2. Exclusions — Such Policy Does Not Cover: (d) under the theft, larceny, Bobbery, or pilferage coverage (if such policy covers these perils) — loss suffered by the insured in case he voluntarily parts with title to, or possession of • any automobile at risk hereunder, whether or not induced so to do by any fraudulent scheme, trick, device or false pretense or otherwise.”

After the introduction in evidence of oral testimony, excerpts from the said policy and the above mentioned check, the trial judge directed a verdict in favor of appellee.

In its brief appellant very clearly states the issue presented to us in these words:

“The question now before the court is whether or not, under these circumstances, which are undenied and unquestioned, the appellant delivered the lawful possession of the car to Edd Martin or whether, on the other hand, ho delivered merely the custody of the car for the purpose of permitting him to try it out during the night.”

It is, of course, the contention of appellant that it merely delivered custody of the automobile to Martin, and that therefore the exclusion clause copied above does not apply. We agree with appellant that if it did merely deliver custody to Martin and did not deliver possession to him [as these words are later interpreted], then the judgment of the trial court should be reversed.

To sustain its contention that only custody of the automobile was delivered to Martin appellee refers us to several decisions from other jurisdictions which we will mention later. However after careful consideration of the numerous decisions dealing with the question here presented we have concluded that, under the factual situation above stated, appellant delivered possession of the Dodge automobile to Martin, and that, consequently, the judgment of the trial court must be sustained.

In the case of Galloway v. Marathon Insurance Company, 220 Ark. 548, 248 S. W. 2d 699, where the same exclusion clause mentioned above ivas considered under facts somewhat similar to the facts in the case at bar, this court made a clear distinction between possession and custody as applied to this kind of a case. It was there stated:

“Construing the clause against the insurer, the courts hold that for the exception to apply the insured must part with possession as distinguished from mere custody. Thus where the insured’s salesman entrusted the custody of the car to a hotel employee so that it could be driven to the hotel garage, it was held that possession had not been relinquished.” [Citing Bennett Chev. Co. v. Bankers and Shippers Ins. Co., 58 R. I. 16, 190 A. 863, 109 A. L. R. 1077.] “But when the dealer voluntarily parts with actual possession rather than mere custody, the loss is excluded from the coverage of the contract.” [Citing Jacobson v. Aetna Cas. & Surety Co., 233 Minn. 383, 46 N. W. 2d 868.]

In the Galloway case, supra, the court held that the exclusion clause prevented recovery, but that opinion is not decisive of the question we are considering here, first because in that case title as well as possession had passed to the purchaser which is not true here, and second because that case did not announce any rule by which to distinguish between possession and custody, as it was not necessary to do so. The decisions of other jurisdictions however have pointed out rather consistently the way to make such distinction, and they have construed facts analogous to the facts here as indicating a departure with possession and not with custody. We will now examine some of these cases.

In the Jacobson case, supra [cited in the Galloway case, previously discussed] the court dealt with the identical exclusion clause and essentially the same facts as are present in the case under consideration, and the court held that the dealer parted with possession and not merely with custody, relieving the insurance company of liability. In a well written opinion the court pointed out the features which distinguished possession from custody. In general terms it was stated that if the dealer turns the car over to another person so that that person may render some service or benefit for the dealer, then the dealer parts only with custody and the insurance company is liable, but if the dealer allows a person to take an automobile for his own use and benefit then the dealer has parted with possession and the insurance company is not liable. In making this distinction the court there used this language:

“In other words, a voluntary surrender of possession, within the meaning of the policy’s exclusionary clause, is effected only when the surrender of physical control is accompanied by an intent that the control so surrendered, though it be of only temporary duration, shall be exclusively vested in the recipient and shall by him be exercised, at his pleasure, for the immediate and direct accomplishment of a purpose or use belonging to such recipient. ’ ’

The same exclusion clause and essentially the same set of facts pertaining here were considered in McDowell Motor Company v. New York Underwriters Ins. Co., 233 N. C. 251, 63 S. E. 2d 538, and the court, in holding the insurance company not liable stated: “. . . we think the exclusion clause does relieve the insurer from liability for theft where the possession of the car was voluntarily surrendered to another with the right to exercise control thereof for a purpose of his own.” The purpose for which the automobile was turned over to the prospective customer in that case was to test it and show it to his wife for her approval or disapproval.

In the case of Boyd v. Travelers Fire Ins. Co. 147 Neb. 237, 22 N. W. 2d 700, the court held there was no liability on the insurance company under an exclusion clause exactly like the one in the case at bar and where the facts in all essentials were also the same. The same conclusion reached in the above case was reached in Nelson v. Pennsylvania Fire Ins. Co., 154 Neb. 199, 47 N. W. 2d 432. The exclusion clause was exactly the same and the facts were in all essentials the same as those in the case at bar, although the case was reversed against the insurance company for an entirely different reason. One of the most recent cases affirming the holding in the cases above referred to is Harry Dinkin, et al. v. The American Insurance Company, 268 Wis. 138, 66 N. W. 2d 681. Not only is this decision based on the same kind of an exclusion clause and on essentially the same set of facts as those under consideration here hut the opinion sets forth a clear statement of the reasons for the rule announced. In summing up these reasons the court said:

“We prefer the rule of the cases in which it has been held that if an owner voluntarily surrenders physical control of his automobile to a third party with the intent that the third party shall exercise exclusive dominion of the vehicle solely or primarily for the recipient’s direct use or purpose as distinguished from a use or purpose for the benefit of the owner, the insured has voluntarily surrendered possession within the meaning of the exclusionary clause of the policy and there is no coverage.”

Appellant relies very strongly on the case of Tripp v. United States Fire Ins. Co. of New York, 141 Kan. 897, 44 Pac. 2d 236. We agree with appellant that the exclusion clause and the facts in that case are practically and materially the same as those in the case at bar, and also agree that the holding in that case cannot be reconciled with the holdings above mentioned. However that case was decided in 1935 and it has been considered and rejected in many of the cases to which we have referred. Apparently the court reached the conclusion it did largely by a reliance on the general rule that language in insurance policies should be construed most favorably to the insured. While we recognize this rule as sound and well established we do not feel at liberty to apply it here. The reason is that the particular exclusion clause we are dealing with has been so many times uniformly interpreted [in connection with practically the same factual situation obtaining here] that all doubt as to its meaning has been eliminated. Since the policy under consideration is standard and since the exclusion clause is so widely used we think it better for all concerned to maintain a uniform interpretation than to inject confusion by holding contrary to the clear weight of authority.

Affirmed.

Justice Holt concurs.

Justice Millwee dissents.

J. Seaborn Holt, J.,

concurring. I agree that the primary and decisive question in this case is, whether the Phillips Motor Company parted with possession of the ear in question or just with its custody. I also agree that, on the facts presented in this record, the motor company parted with possession of the car in question and, therefore, cannot recover under the exclusion clause in the policy. Each case must turn, as I view it, on the particular facts therein. The majority opinion states that the exclusion clause and the facts in the principal case relied upon by the motor company, Tripp v. United States Fire Ins. Co. of New York, 141 Kan. 897, 44 Pac. 2d 236, are “practically and materially the same as those in the case at bar. ’ ’ I agree that the exclusion clause in the Tripp Case is the same as in the present case, but there is a material distinction in the facts in that case with those in the present case before us. It is undisputed that when appellant allowed Martin to take the car overnight to try it out, he told Martin, in effect, that he would part with the car in this fashion; only if Martin would take out liability insurance on the car. In this connection appellee says in his brief:

“The appellant agreed to let him use the car that night provided he would insure it. The appellant’s manager then called Mr. Charles Conditt of the James A. Hudson Insurance Company at his home and Mr. Conditt agreed to return to his office to write the policy. Mr. Hudson, Mr. Phillips, the manager of appellant, and the imposter met at the office of Mr. Conditt where Mr. Phillips identified the imposter as ‘Edd Martin,’ exhibiting an invoice of the sale. A policy of insurance was issued by Mr. Conditt showing ‘Edd Martin’ as sole and unconditional owner of the automobile. It was understood that on the following morning if the check was good and if the imposter was satisfied with the performance of the car and the engine was tuned the sale would be completed.” There were no such facts as above in the Tripp Case, as the statement of the facts in the opinion in that case shows. Quoting from the opinion:

“Plaintiff was engaged in the automobile business at Stockton. On May 24,1933, a man calling himself Hanson appeared at plaintiff’s place of business with a Chevrolet coupe in which he had a number of surveying instruments. Plaintiff suggested to Hanson that he needed a larger car and Hanson looked at cars, trying them to see how the instruments would fit into them. Hanson told plaintiff he had to go to Palco to do some work and would be back to consider buying a certain sedan. Later the same day Hanson called plaintiff and asked plaintiff to meet him at Plainville. Plaintiff took the sedan and met Hanson at Plainville where terms of trade were discussed. Before Hanson would make the trade he wanted to try the sedan, to which plaintiff agreed. Hanson stated he had no keys for his coupe and asked plaintiff to watch it while he tried out the sedan. Plaintiff agreed. Hanson got into the sedan, drove off and failed to come back. ’ ’

On facts, which as indicated do not appear in the Tripp Case, I think that the appellant, Phillips Motor Company, parted with possession and not custody and, therefore, concur in the result reached by the majority.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Thomas v. Thomas.
    5-802
    284 S. W. 2d 853
    Opinion delivered December 19, 1955.

      McKay, Anderson & Crumpler, for appellant.

      A. B. Cheatham, for appellee.
   Sam Robinson, Associate Justice.

Appellee, Mrs. Stella Thomas, filed this suit attempting to establish a resulting trust in her favor in property previously conveyed to her husband, now deceased. The suit was filed on February 27, 1953. Appellants, non-residents of Arkansas, were named as defendants and were constructively summoned, but did not appear. On April 29, 1953, there was a decree sustaining Mrs. Thomas’ contention as to a resulting trust in the property in question. On November 17, 1954, appellants filed a motion for a new trial on authority of Ark. Stats., § 27-1907. The motion was overruled by the Chancellor and this appeal results.

Ark. Stats., § 27-1907, provides: “Where a judgment has been rendered against a defendant or defendants constructively summoned and who did not appear, such defendants or any one or more of them may at any time within two [2] years, and not thereafter, after the rendition of the judgment appear in open court and move to have the action retried,- and, security for the costs being given, such defendant or defendants shall be permitted to make defense, and thereupon the action shall be tried anew as to such defendant or defendants as if there had been no judgment, and upon the new trial the court may confirm, modify or set aside the former judgment and may order the plaintiff in the action to restore to any such defendant or defendants any money of such defendant or defendants paid to them under such judgment, or any property of such defendants obtained by the plaintiff under it and yet remaining in his possession and pay to the defendant the value of any property which may have been taken under an attachment in the action or under the judgment and not restored.”

Appellee, Mrs. Thomas, argues that the statute in question has no application here because the judgment is against the land. But, if the appellee does not own the land by reason of the trust she seeks to establish, appellants may own an interest therein. Therefore the decree in favor of the trust is, in effect, a judgment against appellants because they may have lost an interest in the land as a result of the decree which they seek to set aside.

Appellee relies on Wilson v. Sadler, 136 Ark. 415, 206 S. W. 754, but this case is not in point as it deals with confirmation of tax titles, a special statutory proceeding governed by the act itself. Gleason v. Boone, 123 Ark. 523, 185 S. W. 1093, holds that a foreclosure sale will not be set aside where the defendant has been constructively summoned, but that decision is based on the proposition that the judgment will not be set aside pending a hearing on the motion for a hew trial, and there is no redemption' from the sale under the order of foreclosure.

Howard v. Howard, 152 Ark. 387, 238 S. W. 604, was a suit by a AvidoAV to establish a resulting trust. The- defendants were non-residents constructively summoned, and a new trial was granted without question. There is no reason Avhy the statute should not apply to the case at bar.

Reversed.


author: Lee Seamster, Chief Justice.

text:
    Grimes v. Evans.
    5-801
    285 S. W. 2d 510
    Opinion delivered January 9, 1956.

      B. H. Peace, for appellant.

      Claude E. Love, for appellee.
   Lee Seamster, Chief Justice.

The appellants prosecute this appeal from a decree of the Union Chancery Court, Second Division, which refused to declare certain deeds, absolute in form, to be mortgages and also refused to declare certain tracts of real estate to be held in trust by appellee for appellants.

The undisputed facts reveal that Hope Traylor, the father of appellants, purchased the south 92 feet of Lot 4, Block 1 of Simpson Addition to the City of El Dorado, Arkansas, from S. R. Morgan in 1925. On June 5, 1928, Hope Traylor obtained a loan in the amount of $500 from B. Davis. In consideration for this loan, Traylor entered into an agreement with Davis, whereby, repayment of tlie loan would be made at the rate of $10 monthly, until the indebtedness was liquidated. As security for this loan, Davis required Traylor to execute and deliver to him, a mortgage on the above described property. Hope Traylor died, thereafter, without fully satisfying the amount of his indebtedness to Davis. On February 26, 1934, Davis filed a suit to foreclose the mortgage on the property, and shortly thereafter, the chancery court ordered the property to be sold on June I, 1934, to satisfy the amount of the outstanding indebtedness on the mortgage. B. Davis submitted the highest bid for said property, whereby, the property was sold to him and a commissioner’s deed was issued to him on June 11, 1934. The deed was recorded on June 12, 1934.

In order that Myra Traylor might save the homestead, B. Davis entered into a contract with Myra Traylor on September 17, 1935, whereby, she would pay him the sum of $400 for said property, of which $10 was paid in cash and a series of 39 notes were executed for the balance of $390, payable $10 monthly until the debt was liquidated. On the same date, B. Davis executed to Myra Traylor a sales contract or bond for title, binding himself to convey said property to her, upon payment of the above described indebtedness. Myra Traylor died in 2937, without fully satisfying the amount of the indebtedness.

On August 12, 1939, B. Davis conveyed the above mentioned lands by warranty deed to J. B. Evans, in consideration for the sum of $300. On the same day, August 12, 1939, the appellants herein, who were the occupants of the premises, executed a quitclaim deed to J. B. Evans relinquishing any interest that they might have in the property. The appellants continued to occupy the premises and made monthly payments of $10 each to J. B. Evans, until his death in 1949. Thereafter, the appellants made these monthly payments to Mrs. J. B. Evans, who was the sole beneficiary under J. B. Evans will until October of 1952, at which time Mrs. Evans served notice upon appellants to vacate the premises.

The appellants filed the instant suit on November 12, 1954, claiming that J. B. Evans was holding the above described property in trust for them and they were entitled to have title declared in them; that the deeds executed by them in 1939 were given as a mortgage to secure a debt of $300, which debt has been fully satisfied. Upon trial of this cause, the chancellor dismissed the appellants’ complaint for want of equity and quieted and confirmed title to the property in the appellee. On the appellee’s cross-complaint, the chancellor found that appellants were tenants at will of appellee, whereby, judgment in the sum of $260 was awarded appellee, such amount representing 26 months rent owed by appellants. This appeal follows.

According to the testimony of the appellants, they entered into an oral contract with J. B. Evans, whereby, Evans loaned the appellants the sum of $300, with which to pay off an indebtedness on the property to B. Davis, in return for appellants promise to repay this amount in monthly installments of $10 each, with 10% interest until debt was liquidated. Appellants insist that J. B. Evans required them to execute to him a quitclaim deed to the property herein above described, said deed being dated August 12, 1939, and was given as security for repayment of the $300 loan. On the same date, B. Davis instead of executing the deed to appellants, did execute and deliver a deed to the property to J. B. Evans, who acquired title to the property for the specific purpose of holding this property in trust for appellants, until the $300 loan was repaid, at which time appellants allege that Evans agreed to reeonvey the property to them. The appellants insist that payment was made in accordance with this oral agreement, until October of 1952, at which time they decided that an overpayment had been made on this loan and they refused to make any further payments and sought title to the property.

The testimony of the appellee Mrs. J. B. Evans was to the effect that J. B. Evans acquired title to the above described property by an absolute sale of the property to him by B. Davis, on August 12,1939. Appellee denied that J. B. Evans entered into an oral contract to reconvey the property to appellants and further testified that Evans did not loan the appellants the sum of $300. It is earnestly insisted that had Evans made this purported loan to appellants, they (appellants) would have personally liquidated their indebtedness to B. Davis and also would have procured title to the property in their own name, executing a mortgage to Evans to secure the loan.

The appellee further testified that appellants rented the property for $10 per month, and such payments were made from 1939 to September, 1952, a period of 13 years. In September of 1952, the appellants refused to make further rent payments, at which time the appellee served notice upon appellants to vacate the premises.

The testimony of Floyd Stein, an attorney who prepared all the deeds in question, corroborates the testimony that was adduced by appellee. Mr. Stein testified that he examined the title to the property for Mr. Evans, whereby, the examination revealed that said property was owned by B. Davis under and by virtue of a commissioner’s deed executed on June 11, 1934. Stein further testified that he prepared a warranty deed to said property, which deed was executed before him as a notary public, conveying the property from B. Davis to J. B. Evans; that before he would approve the title to the property, he procured a quitclaim deed from appellants, since they were occupants of the premises; that the only reason for procuring a quitclaim deed from appellants, was to prevent any question being later raised by them that they were anything other than tenants at will of B. Davis. Mr. Stein also stated that the whole transaction was fully explained to all parties.

Appellants seek to reverse the decree of the trial court on the ground that this case calls for an application of the established rule in this State that a court of equity will treat a deed, absolute in form, as a mortgage, whenever executed for the loan of money or as security for a debt. The general doctrine prevails in this State that the grantor may show that a deed absolute on its face was only intended to be a security for the payment of a debt and thus is a mortgage. Since the equity upon which the court acts arises from the real character of the transaction, any evidence, written or oral, tending to show this, is admissible. If there is a debt existing with a loan of money in advance, and the conveyance was intended by the parties to secure its payment, equity will-regard and treat an absolute deed as a mortgage. However, the presumption arises that the instrument is what it purports to be; and, to establish its character as a mortgage, the evidence must be clear, unequivocal, and convincing. By this is meant that the evidence tending to show that the transaction was intended as security for debt, and thus to be a mortgage, must be sufficient to satisfy every reasonable mind without hesitation. See Bailey v. Frank, 170 Ark. 610, 280 S. W. 663; Landers v. Denton, 213 Ark. 87, 209 S. W. 2d 300; Kerby v. Feild, 183 Ark. 714, 38 S. W. 2d 308.

We do not think that the evidence is of that certain, unequivocal and convincing character that would authorize or justify a court of equity to treat the instruments as a mortgage instead of deeds. The oral testimony, when taken in consideration with the written instruments, renders it reasonably certain that it was the intention of the parties'that the deeds should be absolute in fact, as well as in form.

After a careful consideration of the evidence, we are of the opinion that the decree of the chancery court was correct, and it will therefore be affirmed.


author: J. Seaborn Holt, Associate Justice.

text:
    Gabbard v. State.
    4821
    285 S. W. 2d 515
    Opinion delivered January 9, 1956.
    No brief for appellant.

      Tom Gentry, Attorney General, and Thorp Thomas, Asst. Atty. General, for appellee.
   J. Seaborn Holt, Associate Justice.

May 16, 1955 a jury found appellant, John Gabbard, guilty of the crime of indecent exposure of the person under § 41-1127 Ark. Stats. 1947-Supplement, and fixed his punishment at a term of six months in prison. From the judgment comes this appeal. Only one brief, that of the State, has been filed here.

Appellant’s motion for a new trial contains nine alleged assignments of errors. Under the first five he, in effect, contends that the evidence was not sufficient to support the verdict. We do not agree. Section 41-1127 above provides: “It shall be unlawful for any person with lascivious intent to knowingly and intentionally expose his or her private parts or genital organs to any other person, male or female, under the age of sixteen (16) years. [Acts 1953, No. 94, § 2, p. 281.] ”

I

R. E. Griffin, a witness for the State, testified that appellant came to his home on Mitchell Strqet in Fayetteville and inquired for the mother of the little 14 year old girl involved here. Quoting from his testimony: “A. Well, he just come down there, said he wanted to talk with me awhile and this little girl and me was out in the yard there and he kept throwin’ his gab at her and directly they went off to see her mother . . . Q. Now, did you hear him talking to the little girl? A. I sure did. Q. Do you remember what he said to her? A. I couldn’t remember it all. He just said that he wanted to see her mother, it had been a long time since he had seen her. Q. Did she go with him in the ear? A. She went with him in the car. Q. Which way did they leave from your house? A. They went east to the fair ground where the new street is. Q. Went east? A. Yes, east on Mitchell Street in front of my door. Q. When did you next see these two people that afternoon, if you did see them? A. Well, they come from the north and when he got even with this street, he stopped and let her out and she didn’t much more than hit the ground until he put the gas to it and left. Q. Now, will you tell the jury or describe to the jury the condition of the little girl when she got out? A. Well, sir, she was a cryin’ and she didn’t get much further than that table there, she said, ‘He mistreated me.’ ”

The little girl testified that Gabbard asked her where her mother was and she told him her mother was working at the Home Town Cafe. Gabbard asked her to go with him and she did. Gabbard drove out by the University farm and on out by the lime kiln and then stopped on the top of a mountain, then came around and opened the car door, shoved her down in the seat. He had his personal parts out and asked her to zip up his breeches but she refused to do so. A car then came along and he acted like something was wrong with the car. After the car passed he got on top of her. She was crying at the time. She saw his private parts when he got off her and that he tried to have sexual intercourse with her. As indicated, this evidence was ample to support the verdict.

II

Appellant next contends that the court erred in allowing R. E. Griffin to testify over his objections, that the prosecutrix told him [Griffin] on her return that the appellant had mistreated her. This evidence was properly admitted in the circumstances. It was proper evidence to show that this little girl accused appellant of the offense charged. It was proper for Griffin to state that the accusation of the prosecutrix was made to him, but he was not permitted to state any of the details as stated to him by the little girl. “The true rule would seem to be that while evidence may be admitted to show that the prosecutrix, within a reasonable time, reported the crime to an appropriate person and told what occurred, and the person receiving the information may testify that an accusation was made, yet it is not competent for such witness to support testimony of the prosecutrix by repeating in detail what was said by the prosecutrix.” Lindsey v. State, 213 Ark. 136, 209 S. W. 2d 462.

III

Next, appellant says that the court erred in allowing the following question to be propounded to the mother of the prosecutrix and her answer :

“Q. As her mother, do you know whether or not she has menstruated yet?

A. No sir, she hasn’t.”

The record reflects there was no objection made to this question and answer. It is now too late to raise this question for the first time here. See Yarbrough v. State, 206 Ark. 549, 176 S. W. 2d 702.

We have carefully examined the remaining assignments of alleged errors and find each to he wholly without merit. The judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Baker v. Hedrick.
    5-785
    285 S. W. 2d 910
    Opinion delivered January 9, 1956.
    [Rehearing denied February 6, 1956.]

      John F. Gibson, for appellant.

      Clifton Bond, for appellee.
   Ed. F. McFaddin, Associate Justice.

We have before us on this appeal the validity of a local option election. Pursuant to Initiated Act No. 1 of 1942 (§ 48-801 et seq. Ark. Stats.), a local option election was held in Bradley County on August 7, 1954. The Board of Election Commissioners duly certified the result of the election to be:

2001 votes against the sale or manufacture of intoxicating liquors;

1673 votes for the sale or manufacture of intoxicating liquors.

In other words, on the face of the returns, the “Drys” (appellees here) won the election by 328 votes. In due time the “Wets” (appellants here) filed a contest proceeding in the County Court Avhich decided in favor of the contestees; and the contestants appealed to the Circuit Court. There, after an extended trial, the Court found that the contestees won the election by the aforesaid vote of 2001 to 1673. The contestants bring this appeal; and in effect present here one issue — that is, that the conduct and methods employed by the contestees before and during the election constituted such fraud, intimidation and coercion as to void the entire election.

Usually in an election contest the contestant challenges certain designated ballots or the returns from certain designated voting places; but the present election contest is not of that kind. Here,.there is no attack on any specified ballots; rather the attack is on the entire election. This is the language of the contestants’ petition :

“Come the undersigned contestants, . . . and for their contest of the local option election held in Bradley County, Arkansas, on August 7, 1954, under provisions of Initiated Act No. 1 of 1942, allege:

“1. That prior to and during the conduct of said election, there Avas such manifestation of intimidation exerted by the Bradley County Drys that many voters Avere actually prevented from voting as desired to such an extent that the results of the election do not reflect a true sentiment of the electors. That by reason of the intimidation exerted by the Bradley County Drys, the true result of the election cannot be ascertained with certainty.

“2. That fraud, intimidation, or coercion of Amters in a system of illegal voting was permitted to such an extent that the result of the election would have been different if such practices had not been engaged in by the Bradley County Drys and certain election officials.”

To support the foregoing allegations, the contestants, in Paragraphs 3 to 11 of their petition, alleged specific acts claimed to have been fraud, irregularities or intimidation committed by contestees or their leaders. The record here is voluminous, being approximately 700 pages of pleadings and testimony besides separate exhibits. At the conclusion of the trial, the Circuit Judge delivered his opinion. He named in order nearly every one of the more than forty witnesses who testified; discussed the extent and effect of the testimony of each such witness; and then discussed the combined effect of the testimony offered by each side. Prom all of the evidence the Circuit Judge found and declared that, even though there had been irregularities and illegalities (definitely named by him) in the election, nevertheless these were not sufficient to void the entire election. Prom a judgment rendered in accordance with that opinion and dismissing the contest, the contestants bring this appeal.

At the outset we mention that the findings of the Circuit Judge in an election contest have the force and effect that a jury verdict has in the ordinary circuit court case. Williams v. Buchanan, 86 Ark. 259, 110 S. W. 1024; Schuman v. Sanderson, 73 Ark. 187, 83 S. W. 940; Logan v. Moody, 219 Ark. 697, 244 S. W. 2d 499; and Phillips v. Melton, 222 Ark. 162, 257 S. W. 2d 931.

The appellants claim that the case at bar is ruled by the case of Patton v. Coates, 41 Ark. 111. That was a landmark case. There, in the days immediately following the Eeeonstruction, an election was held for County Judge of Pulaski County, and the then recently enfranchised Negro voters attempted to see that every Negro voted for the same candidate: to insure the entire absence of opposition votes, armed bands paraded before some of the election places; various acts of force and intimidation are discussed in the opinion. The result was, that this Court reversed a finding, that there had been a valid election, and remanded the case for further proceedings. Mr. Justice Bakin, the author of that opinion, gave this test as to when an election should be set aside:

“The wrong should appear to have been clear and flagrant; and in its nature, diffusive in its influences; calculated to effect more than can be traced; and sufficiently potent to render the result really uncertain. If it be such, it defeats a free election, . . . If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected.”

The appellant quotes the above as the test by which to judge this local option election in Bradley County held August 7, 1954; and for the purposes of this appeal, we accept the quotation as the standard by which to test this case, in order to see if the findings of the Circuit Court are without substantial evidence to sustain them.

Here we have these five as the principal irregularities or illegalities in this case:

(1) Letters were sent by the contestees to men in the Armed Services saying that if the recipient had voted “wet” in an absentee ballot and desired to change the ballot, the recipient could request a new ballot and vote again. Of course, such statement as to second voting, was entirely erroneous and in violation of § 3-1509 Ark. Stats. Within a very few days after mailing the said letters, the contestees learned of the illegality that had been proposed, and promptly dispatched a second letter to each recipient correcting the first one. There is absolutely no showing that the first letters resulted in any illegal voting. Their sending was unwarranted, unwise and illegal: but there is no showing that they resulted in a single duplicate ballot being cast in the election.

(2) The contestees heard that the contestants were trying to get the Negro voters to vote “wet” in the absentee box and then vote “wet” again in person at the August 7th election; and so the contestees sent mimeographed letters to about 1100 Negro voters urging them to vote “dry” at all- times, and enclosing a circular which stated that it was a fine of $100.00 to vote more than once in the same election. A portion of § 3-1121 Ark. Stats, was copied in the circular. It is claimed that this “$100.00 fine circular” was intimidation. The mimeographed letter (contestees’ Exhibit No. 4) is in the most polite language, contains no threats or suggestions of intimidation, and explains that the circular is not a threat but a mere statement of a portion of the law. There were five witnesses who testified that they decided not to vote after seeing this circular because it “scared them.” Let us assume that the circular, worded as it was, should not have been sent; nevertheless there is no proof that it affected more than five voters. Certainly such evidence is not sufficient to void an entire election.

(3) There is testimony that two ardent ‘ ‘ drys ’ ’ met with Negro voters individually and collectively and urged them to vote “dry.” These meetings and conferences Avere not illegal: open and free discussion is always proper. Campaigning is one of the practices in our democratic system of society. One Negro said that he Ayas “threatened” by such conversation; yet he admitted that he voted “wet,” and the evidence shoAved that he worked for the “Avets” all through the election period. Certainly he Avas not prevented or intimidated from voting or working Avith others for the side that he espoused. The testimony, that the white man “threatened” him, is without corroboration. These items (2) and (3) are the only portions of the testimony that bear on the matter of intimidation.

(4) It Avas shown that in two precincts the voting-box on the August 7th local option election Avas located at a place 100 to 450 feet distant from where it had been located at the previous July 28th primary election; but in neither precinct was it shown that anyone Avas deterred or hindered from voting. In each precinct the voting box Avas at a place theretofore or thereafter used in other elections; and it Avas shoAvn that it Avas not unusual to have the voting box either at the store or at the church a short distance away. Certainly there Avas nothing in these two claims — involving only two boxes out of twenty-seven — to void an entire county-wide election.

(5) The greatest irregularity occurred in the absentee box in which the certified vote was 101 against the manufacture or sale of intoxicating liquors and 260 for the manufacture or sale of intoxicating liquors. It was shown that there were 94 requests for absentee ballots which were never honored because the notation on each envelope indicated it to be a ballot instead of a request for a ballot. These envelopes were made exhibits : each was addressed to the County Clerk at Warren, Arkansas, and bears on the face of the envelope these words: “Ballot, Local Option”; and in most instances the words, “Ballot, Local Option,” are in the same handwriting as that of the address. The County Clerk testified that he thought these were ballots, instead of requests for ballots; and so he placed them in the receptacle for ballots; and it was not discovered until after the election that these were mere requests. If we should say that each one of the 94 requests was from a person who intended to vote “wet,” and if we added these 94 to the 1673 ballots received by the contestants, still the result would not be sufficient to change the election. The Circuit Judge found as a fact that there was no fraud in regard to the absentee ballot box, and there is substantial evidence to sustain his findings.

There were other charges of illegalities and irregularities, but they lacked any substantial proof to support them. In Velvin v. Kent, 198 Ark. 267, 128 S. W. 2d 686, in speaking of charges of fraud and improper conduct of electors and officers of the election, this Court said:

‘ ‘ These charges were serious and grave, but they did not prove themselves. Forceful and emphatic denunciation at this time does not supply proof wholly lacking upon the trial.”

The quoted statement finds application in the case at bar. Furthermore, in Jones v. Glidewell, 53 Ark. 161, 13 S. W. 723, Chief Justice Cockrill said:

“It is a serious thing to cast out the votes of innocent electors for acts done by others, and it is the province of the Courts to see that every legal vote cast is counted when the possibility exists.”

Without prolonging this opinion to discuss each of the other claimed irregularities, it is sufficient to say that the Circuit Court did not condone any illegalities or irregularities that occurred in this election. Neither do we condone them, but we do say that there is substantial evidence to sustain the findings of the Circuit Court to the effect that all of the specific items of irregularities and illegalities, when totalled, were not sufficient to void the entire election within the test stated in Patton v. Coates, as heretofore quoted. It is a serious matter to throw out an entire election; and that result should not be reached unless the contestant has offered proof sufficient to satisfy the test in Patton v. Coates. The Circuit Judge found that the test had not been met in the ease at bar; and there is substantial evidence to sustain his findings.

One other matter appears most significant. The poll tax list of Bradley County for the year of this election showed that there were 5053 poll taxes issued. There ivere a total of 3674 votes cast in this August 7th local option election, which total is more than 72% of the total poll tax receipts. Of course, maiden voters and “move-ins” might have increased the total voting capacity of 5053; but deaths and removals might have equalled the maiden voters and “move-ins.” The point is, that the vote in this election of August 7th was 72% of the total poll tax receipts issued. It is not claimed that any of the 3674 votes were illegal. Only five people testified that they failed to vote because of the “$100.00 fine circular,” and 94 requests for absentee ballots failed to be honored. There was no showing that any one of the remaining voters of Bradley County was deterred from voting or coerced to vote against his wishes. Furthermore the evidence discloses that in the primary election of July 28, 1954 — in which there was a most spirited race for nomination for United States Senator and for Governor — there were only 3595 votes cast in all of Bradley County. So in the local option election of August 7th there were 79 more votes cast than in the primary election. This seems a most cogent argument against the contestants’ allegation that “many voters were actually prevented from voting.”

The Circuit Court found that the contestants’ evidence failed to meet the test stated in Patton v. Coates; and we find substantial evidence to support the Circuit Court’s finding.

The judgment is affirmed.

Mr. Justice Robinson not participating.

         In Denniston v. Riddle, 210 Ark. 1039, 199 S. W. 2d 308, we considered this Initiated Act No. 1 of 1942; and in Tollett v. Knod, 210 Ark. 781, 197 S. W. 2d 744, we listed some of our cases involving the said Act.

       On the point here involved, the ease of Patton v. Coates has been cited in the following cases: Jones v. Glidewell, 53 Ark. 161, 13 S. W. 723; Freeman v. Lazarus, 61 Ark. 247, 32 S. W. 680; Schuman v. Sanderson, 73 Ark. 187, 83 S. W. 940; and see also Sumpter v. Duffie, 80 Ark. 369, 97 S. W. 435; Williams v. Buchanan, 86 Ark. 259, 110 S. W. 1024; Crissman v. Shaver, 191 Ark. 692, 87 S. W. 2d 404; Velvin v. Kent, 198 Ark. 267, 128 S. W. 2d 686; and Wilson v. Luck, 203 Ark. 377, 156 S. W. 2d 795.


author: Minor W. Millwee, Associate Justice.

text:
    Maples v. State.
    4824
    286 S. W. 2d 15
    Opinion delivered January 9, 1956.
    [Rehearing denied February 13, 1956.]

      Frederick A. Newth, Jr., for appellant.

      Tom Gentry, Attorney General, and Thorp Thomas, Asst. Atty. General, for appellee.
   Minor W. Millwee, Associate Justice.

Appellant, Marvin Maples, ivas charged with second degree murder in the killing of Hugh Craighead. Upon a trial before the court sitting as a jury, under Ark. Stats. See. 43-2108, appellant was found guilty of manslaughter and his punishment fixed at 3 years in the penitentiary.

The killing occurred at the home of appellant at 1005 Allis Street in Little Rock, Ai'kansas, about 7 p. m. on July 31, 1954. According to three of appellant’s close neighbors, who testified for the State, the deceased drove in front of appellant’s home, walked upon the porch and knocked on the front door. Appellant came out on the porch for a short period and then went back in the house. A somewhat lengthy and noisy argument took place. Deceased started to leave and then walked back and was opening the outside front screen door when he was shot in the right side of the head with a shotgun at close range and fell backwards on the porch with his feet near the threshold and the open screen door resting against his left leg. Deceased was unarmed and the State’s eyewitnesses observed no overt act on his part to do bodily harm to appellant or other inmates of the residence.

Several photographs made immediately after the shooting were introduced by the State without objection. They show blood, brain tissue and other particles of flesh from deceased’s skull and scalp on both the floor and ceiling of the porch and in the front yard. The major portion of deceased’s brain was lying in the front yard about 15 feet from the body. According to one of the photographs and the testimony of the deputy coroner and police officers, no blood or human tissue appeared on the inside of the house nor was there any other evidence of a. struggle there.

Appellant and his wife testified that deceased cursed and threatened to kill both of them when appellant went out on the porch; and that appellant jerked away from deceased, reentered the house and fastened the screen door. When appellant started to a back room to get his gun, deceased started choking and beating Mrs. Maples and had her head between his legs choking her when appellant returned with the loaded shotgun and shot deceased while the latter was standing about 2 or 3 feet inside the house still choking Mrs. Maples. Although they testified that deceased was a stranger to them, appellant identified deceased as the step-father of Betty Jean Moore, a girl who lived with appellant seven or eight years. Appellant further stated that deceased told him he had come, “to get revenge for Betty Jean Moore.” Neither the State nor appellant sought to further develop the nature of the relationship of the parties or the cause of the apparent had feeling existing between them. While Mrs. Maples testified that deceased inflicted scratches and bruises on her face, she admitted that a photograph taken immediately after the killing failed to reveal such injuries.

The sole contention for reversal is that the judgment is not supported by any substantial evidence. It is argued that the undisputed evidence shows, as a matter of law, that the killing was justified on the ground of self defense and more particularly in the necessary defense of appellant’s home under Ark. Stats. Sec. 41-2234. This statute provides: “A manifest attempt and endeavor, in a violent, riotous, or tumultuous manner, to enter the habitation of another, for the purpose of assaulting or offering personal violence to any person, dwelling or being therein, shall be a justification of homicide.”

In reference to this statute in Brown v. State, 55 Ark. 593, 18 S. W. 1051, the court said: “Following the doctrine of the common law, the statute regards the violent attempt to enter the house as equivalent to an assault upon the person to be injured; and when it is obviously about to be made, he may at once put himself in an attitude to repel the aggressor. It was not practicable to give a rule applicable to all cases for determining what acts or conduct will constitute the actual attempt to enter a house. But it must be a “manifest” attempt; and we take this to mean one so plainly made that no reasonable doubt will exist as to the purpose of the aggressor. At what point the effort to enter the house has begun, and how far it may be permitted to proceed with safety to the life or person of the individual assailed^ must be determined by the circumstances of each case. And these are questions more of fact than of law.”

In commenting on the Brown case in the opinion in Hall v. State, 113 Ark. 454, 168 S. W. 1122, Judge Hart, speaking for the court, said: “In the case of Brown v. State, supra, the court held that an attack upon a man’s dwelling is regarded in law as equivalent to an assault upon his person, and that in order to justify a killing in defense of one’s house, or of the inmates thereof, it is not necessary that there should he actual danger, provided the defendant acts upon a reasonable apprehension of danger. But the court further said that it is the duty of the householder to prevent the entry by means not fatal, if he can do so consistently with his own safety. So it may be said that if the defendant kills where there are no reasonable grounds of apprehension of danger it is manslaughter; and if the killing is done with malice, express or implied, it is murder. Even though the deceased is attempting at the time unlawfully to enter the defendant’s dwelling house, if the killing is with malice and ill will, and not for self-protection or the protection of the house, it is murder. See State v. Scheele, 57 Conn. 307, 14 Am. St. Rep. 106. For, as it is there said, ‘the law of self-defense, or the defense of one’s domicile, does not require the giving to evil-minded persons an opportunity to take the life of another on such easy terms.’ ”

Under our settled rule the trial court, sitting as a jury, is the sole judge of the credibility of the witnesses, and in determining the sufficiency of the evidence to support a verdict or judgment of conviction on appeal, we view it in the light most favorable to the State. Cook v. State, 196 Ark. 1133, 121 S. W. 2d 87. Of course, if the trial court was bound to accept the testimony of appellant and his wife as true, the killing was in necessary defense of both person and habitation. On the other hand, if the court believed the testimony of appellant’s neighbors, as corroborated by that of the officers and the physical facts so vividly portrayed by the photographs, then the evidence was substantial and sufficient to sustain a conviction for a higher degree of homicide' than manslaughter. In cases involving similar conflicts in the evidence, we have held that the fact finders were fully warranted in finding that the killing or assault was done with, malice or ill will and not in defense of the defendant’s person or place of residence. Bealmear v. State, 104 Ark. 616, 150 S. W. 129; Davis v. State, 206 Ark. 726, 177 S. W. 2d 190.

Affirmed.


author: George Rose Smith, J.

text:
    Harris v. Harris.
    5-824
    285 S. W. 2d 513
    Opinion delivered January 9, 1956.

      Bailey, Warren é Bullion, for appellant.

      John L. Hughes, for appellee.
   George Rose Smith, J.

By this suit the appellant, Tom Harris, who has record title to an undivided seven-eighths interest in the forty-acre tract in controversy, seeks to quiet his title to the whole as against his brother John, the appellee, who is the apparent owner of the other one-eighth interest. The chancellor rejected Tom’s claim of complete ownership and granted John’s request for partition, the decree correctly directing that John’s share be allotted to him from the unimproved portion of the property.

These litigants and the other six children of R. P. Harris, inherited this tract, then unimproved, from their father. In 1933 Tom obtained from his seven brothers and sisters a written contract by which he agreed to purchase their interest in the land for $140, the money to be paid a year later. Tom immediately took possession of the land, built a house and other improvements thereon, and has lived on the property ever since. In 1937 the other six children executed a deed to Tom, but John refused to join in the conveyance and told Tom that he was claiming his interest as an heir.

In the trial court the appellant seems to have contended that he had acquired John’s one-eighth interest by adverse possession. The proof does not support this contention. In order for the possession of a tenant in common to be adverse to his cotenant knowledge of the hostile claim must be brought home to the cotenant, either directly or by acts so notorious that notice may be presumed. Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809. Here it is doubtful if Tom intended to hold adversely to John, but even if he did the evidence falls short of showing that the required notice of a hostile claim was ever brought home to John.

In this court the appellant has abandoned his assertion of adverse possession and insists instead that the chancellor should have granted specific performance of the contract that John signed in 1933. Assuming that the record permits this question to be raised by the appellant, we find the contention to be without merit.

It is argued in the brief that Tom paid John his share of the purchase money, but the weight of the evidence is to the contrary. Tom did not testify that the money was ever paid to John; he merely says in substance that he was willing to offset the purchase money against a debt which he testified was owed to him by his brother. But John says that the debt had already been paid and that his reason for not signing the deed was Tom’s failure to make payment. In our opinion John’s point-blank refusal to execute the deed persuasively corroborates his version of the transaction.

In these circumstances the appellant has been guilty of laches in delaying the assertion of his claim for some seventeen years. He relies strongly upon cases like Hargis v. Edrington, 113 Ark. 433, 168 S. W. 1095, where it was said that “a vendee in possession is not barred from suing for specific performance by delay for any period in bringing his action, his possession being the continuous assertion of his claim. He may rest in security until his title or right of possession is attacked.” In the cases cited, however, the vendee’s only claim to the land lay in his contract of purchase; his possession was therefore unequivocally referable to that contract.

Here the situation is different. Inasmuch as Tom has been through the years a tenant in common owning a seven-eighths interest in the land his possession cannot be attributed solely to his executory agreement to buy J ohn’s one-eighth. More nearly in point than the cases cited by the appellant is the holding in Haines v. McGlone, 44 Ark. 79, where a tenant in common relied upon his possession as part performance of an oral contract for the purchase of his cotenant’s interest. "We held that since the possession could not be referred exclusively to the contract it failed to satisfy the statute of frauds. For the same reason Tom’s possession, already rightful, cannot be regarded as such an assertion of his rights under the contract as to absolve him from the charge of laches. It was incumbent upon Tom to assert his claim promptly when his brother unqualifiedly refused to honor the agreement in 1937.

Affirmed.


author: Paul Ward, Associate Justice. Sam BobiNSON, J.,

text:
    Burgess v. Daniel Plumbing & Gas Co., Inc.
    5-771
    285 S. W. 2d 517
    Opinion delivered January 9, 1956.
    P. II. Hardin, for appellant.

      Harper, Harper <0 Young, for appellee.
   Paul Ward, Associate Justice.

This appeal challenges the permanent order of the Chancery Court of Sebastian County, Fort Smith District, which restrained Local Union No. 29 of Fort Smith from picketing the place of business of the Daniel Plumbing & Gas Company, Inc., while it was engaged, as a sub-contractor, in installing plumbing and pipe fittings for a new factory building being erected in Fort Smith for the Eastern Metal Products Corporation.

On March 16, 1955 the Daniel Company filed a complaint containing, in substance, the following material allegations: The Daniel Company is a corporation duly organized and existing under the laws of this state with its principal place of business at Beebe, Arkansas; The appellants are officers and representatives of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local Union No. 29; On or about February 8, 1955 the Daniel Company was awarded the contract for the installation of the necessary plumbing in the factory building above mentioned; On March 10, 1955 one of appellants, W. C. Atwell, placed a picket at said building site and continues to picket said site; On said date the Daniel Company was employing both union and nonunion employees, and there is and has been no dispute between the Daniel Company and any of its employees over wages, hours or working conditions; The Daniel Company has not refused to negotiate with the union and has not discriminated against organized labor or said union; Said picketing is unlawful and is intended to obtain a closed shop, either contractually or non-eontractually, in violation of the constitution of this state, and is intended to coerce the Daniel Company into unlawful discrimination against its employees who are not members of said union; As a result of the picketing all union employees of the Daniel Company and other contractors engaged in erecting said factory building have ceased working, and; Unless said picketing is restrained the Daniel Company will suffer irreparable damage. The prayer was for a temporary restraining order.

After a temporary restraining order -was issued on March 18, 1955, the union, on April 9, 1955, answered that said temporary restraining order denies to them their right of free speech as guaranteed by the Federal Constitution; and the issuance of a permanent restraining order would likewise deprive them of the right of free speech.

The general factual background out of which this controversy arises is, summarily stated, as follows: The Daniel Company is a corporation located at Beebe. Its president is John B. Thurman of Little Rock and its active manager or superintendent is E. B. Daniel who lives at Beebe. Merl Daniel, the 28 year old son of E. B. Daniel, acts as superintendent on specific jobs. The Daniel Company obtained a contract from J. S. Davis & Sons who in turn had the general contract for building a new factory building for the Eastern Metal Products Corporation at Fort Smith. The latter part of February 1955 young Daniel, as field superintendent of the Daniel Company, went to Fort Smith for the purpose of installing the plumbing equipment in said building, and had unloaded some material at the construction site. He got the job under way about the first of March 1955 and soon thereafter employed a Mr. Rice who was a union plumber living in Fort Smith and one other non-union plumber who lived at Beebe. Young Daniel was himself a plumber and did manual labor on the job as such.

After Rice had been working on the job for two days an agent of the union, Mr. Atwell, came on the job and stated to young Daniel that he wanted to negotiate to have Rice’s Avages raised to the extent of $1.00 an hour. While Rice had been working he Avas paid at the rate of $2.75 per hour which was the prevailing union Avage scale for plumbers in Fort Smith, and Rice had made no demand for a wage increase. When Young Daniel told Atwell that he had no authority to negotiate for wage raises, AtAvell immediately left and Rice walked off the job promptly thereafter. About an hour and twenty minutes later Rice Avas back picketing Daniel’s place of operation. As a result of this all union men working for appellee and the general contractor Avalked off the job.

Set out below is a summary of the pertinent testimony of the witnesses.

Felix Vosel, a witness for appellee, is an employee of the J. S. Davis & Sons Construction Company which has the general contract for erecting the building in question. I have been such employee for 17 years. The Daniel Company started assembling its material about the 23rd or 24th of February 1955 but had not at that time started work on the job. About that time I saw Mr. Atwell, an agent for Local 29, at the construction site and he asked me who had unloaded the materials for the Daniel Company, and I told him I did not know. I asked him what he was going to do about it and he replied that they were going to close the job down for 90 days.

Lee Davis a witness for appellee. I have lived in Port Smith for 50 years and am a member and senior partner of the J. S. Davis Lumber Company, Construction Division, and we have a contract to erect the factory building in question. Our contract amounting to approximately $400,000 was awarded last fall. I am a member of and a contributor to the Port Smith Industrial Foundation which promoted the securing of the Eastern Metal plant for Port Smith, and as such attended a meeting of the Foundation Committee at the Chamber of Commerce building the latter part of February 1955. This meeting was called at the request of Mr. Folsom and Mr. Atwell [members of Local 29]. Besides those men at this meeting there were presidents of three local banks, Mr. Frank Shaw [an attorney] and Mr. Jack Rose [attorney for the union], and possibly some others. When Mr. Folsom was asked to state the purpose of the meeting he objected to my having a lawyer and a stenographer present. Mr. Folsom was informed that I had as much right to have an attorney there as he and his friend had, hut he refused to talk because the stenographer was there to take notes on the meeting. I finally agreed to dismiss the stenographer. He then stated that “they were there in the interest of securing the work for Fort Smith Men.” Mr. Atwell stated that he wanted to see Fort Smith men get the work, and I said you mean union men and, he said no, I don’t mean union men; Mr. At-well made a sign (pointing with his thumb) and said “Well we will take care of him over there.” I inferred that he was pointing to the court house since things have happened as they did and because all of the men Daniel brought in here were turned down on getting a license. Daniel had 11 men take the examination for license and all of them failed. Mr. Atwell is the business manager of Local 29 of the Plumbers and Steam Fitters Union. Mr: Daniel was not present at the meeting and had not come on the job at that time, and neither was any representative of the Daniel Company present. Under our general contract we have been employing nnion common labor and paying the nnion scale of wages. When the picketing started all my union men quit work and walked out. As far as I know the Daniel Company was employing both union and non-union plumbers and common laborers. None of our union employees have returned to work since the picket line was established, and our work is down and has been down since the 10th of March. The Daniel Company’s contract amounts to about 10% of the entire construction cost of the building.

Merl Daniel, field superintendent of the Daniel Company. I am 28 years old and live at Beebe, Arkansas and am a stockholder in the Daniel Plumbing and Gas Company, Inc. Avhich is a corporation; my father is secretary and treasurer of the company and John B. Thurman of Little Rock is the president. I am the field superintendent for our corporation in charge of the work at Fort Smith, but I had nothing to do with negotiating the contract with the corporation which it has with Eastern Metal Products Company. I am a licensed plumber and I work as such on these jobs including the one at Fort Smith. I unloaded a car load of soil pipe on February 23, 1955 — just took one day, and it was about a week after that before I got started work — around the first of March. I knew nothing of the meeting which has been described by Mr. Davis but learned about it later. Our firm usually employs both union and non-union men and I had both union and non-union journeymen plumbers on this job. I worked along trying to get the job started when the weather permitted until March 10th, and had both union and non-union journeymen plumbers on this job. I worked along trying to get the job started when the weather permitted until March 10th, and had been receiving material for the job. On that date Mr. Atwell came out on the job in the morning — it was the second time in my life that I had seen him. He said that all union contracts had been cancelled in town and that he was opening negotiations for new contracts and wanted to know if I would negotiate a contract with him; he said that he wanted a raise in pay from $2.75 an hour to $3.75 an hour. I had been paying the men on my job $2.75 an hour which was the prevailing union scale in Port Smith at that time. In employing men I made no distinction between union men and non-union men. Since coming to Port Smith I had the local newspaper carry an ad for help wanted. [A copy of the ad reads as follows: “Journeymen plumbers, $2.75 hour. Apply Daniel Plumbing and Gas Company. Eastern Metal Products job.”] This ad has run more or less continuously ever since I got to town. When I get the job fully going I will need about 8 or 10 men, but right now I need only 4, considering the weather and material. When anyone answered the ad I took their names and numbers so I could contact them later, and if local competent union or non-union plumbers apply I will employ them when I can and pay prevailing wages. I pay the same wages and have the same hours and conditions as prevail for union plumbers in Port Smith.

When Atwell came to see me and wanted a dollar an hour raise and I told him that I wasn’t in a position to negotiate until I saw my father and other members of the firm, Mr. Atwell said that would bring on more talk and immediately left. At the same time Mr. Rice (union employee) walked off with him — he had worked 2 days and one hour •— and in an hour and twenty minutes Rice was back carrying a picket sign, and, alternating with others, continued to do so. When I started to work I had working for me Mr. McEwing and Mr. Smith who lived in Beebe and a little later I employed Jack Rice the union plumber who lives in Port Smith. I also had a common laborer, Mr. Weese, who lives in Port Smith and since the picket has been up I have hired two others, and this is all the help I needed as my material was fouled up. I still have the ad running in the paper asking for applicants. Recently I haven’t called anyone to work for me because I haven’t needed them and I thought that others (union men) wouldn’t work anyway. I also have a Mr. Hamm and a Mr. Chambers working for me and they do not live in Port Smith. One or two men are working for me as plumbers pending an examination in Port Smith — they have a state license. I have made no investigation to find out if applicants were union or non-union men. I think Mr. Hamm has a nnion card. This is March 18th and the picket sign has been up since March 10th, and Mr. Atwell has made no overture to me and has not talked to me any further — I am willing to negotiate. I asked the employment office for some men — 2 or 3 came down (Rice was one of them and he had a union card). The employment office has not sent me any more men and won’t while the picket sign is up. I have never refused to negotiate v— I just had no authority to negotiate. Rice did not complain about wages.

Harvey Hopper, witness for Daniel. I have lived in Fort Smith 24 years — my business is plumbing and heating. The prevailing wage for journeymen plumbers is $2.75 an hour. The present contracts with Fort Smith contractors expire July 1, 1955. No one in Fort Smith pays more than $2.75 an hour which is the prevailing wage. The union is picketing no other place in Fort Smith.

W. C.' Ahvell, witness for union. I am business agent for Journeymen and Apprentices Local 29. Rice called me March 10th and said contracts had been can-celled and said he wanted me to represent him. I told Daniel all contracts had been cancelled. Daniel said “I am in no position to negotiate anything now.” I turned to Rice and said “Mr. Rice what do you want- to do” and he said “Well I asked you to represent me.” Although I am the negotiating agent for Local 29 I have not tried to bargain with Daniel since March 10th. All contracts with Fort Smith contractors have been can-celled. I did not ask for a closed shop. The purpose of the meeting -at the Chamber of Commerce was to get Fort Smith men on the job. If non-union men do work on a job the union men must get off or be subject to fining. We have cancelled no contracts in Fort Smith since March 9th, but are negotiating. None of our men get $3.75 per hour. All contracts in Fort Smith were can-celled March 9th by agreement. We couldn’t have can-celled the contracts before July 1, 1955, except by agreement. We' are not picketing any one else in Fort Smith. “Q. And now you mean to say that everybody in town that has a union contract has agreed for it to be can-celled? A. Yes, sir.” “We have contracts with Lutz Bros., L. D. Burris, Hayes Bros., G. O. Bell, John Rupp, Ralph O’Brien and George H. Donnas.” “Q. By this cancellation you are talking about, that is all have been by agreement with these other fellows, so you said?” “A. Yes sir — We are not picketing any one else in Fort Smith.”

After the temporary order was issued the following-testimony was later introduced.

Lester Burgess, for appellants, lives in Oklahoma— employed with Burris Heating and Plumbing Company. I am President of Union 29. Our union men take a secret oath which I am unable to recall. When the union needs men they call the “hiring hall” and Mr. Atwell and he sends out the men. He does not send out non-union men. There are no non-union men up there. Members of the union support the “hiring hall.” “Q. Therefore you are not interested in getting non-union plumbers any work? A. We are not interested because they do not belong to our organization.” The purpose of the picket line is usually a protest against some condition or wage. We picketed in this instance because we felt that Daniel was discriminating against our members because he wasn’t hiring the men we sent to him. The purpose of the picket line was to try to get some of our men to work. “Q. In other words, you are saying, in a round about way, that the purpose of it was to shut the job down, isn’t it? A. Well it worked that way, I suppose, Yes.” Daniel was bringing men in from over the state but didn’t hire our men. All Fort Smith contracts were can-celled by mutual agreement. “Q. You mean to say that you contacted each of these union contractors and he agreed that his contract would be cancelled? A. Yes, sir. Q. Do you remember who they were? A. Well I believe that it was Burris Heating and Plumbing Co., Herb Andrews Plumbing Co., Hayés Bros., and Joe Bender.” I know that contracts were cancelled with Lutz, Burris, Hayes Bros., Bell, Rupp, O’Brien and George Donnas, Atwell was authorized to send out the letter of March 9th cancelling the contracts.

G. 0. Bell — Lived in Port Smith since 1922, 64 years old, is in the plumbing business and has been for 24 years, operates G. 0. Bell Plumbing Co. — known as “union contractor” and has a contract with Local 29. I have been an officer in the union, president and on the board 30 years ago. I don’t remember ever getting a letter from Mr. Atwell attempting to cancel contract (after looking at the letter) this is the first I have heard about it. I have had no notice of cancellation. “Q. State whether or not by mutual agreement with Mr. Atwell, or the union, you agreed to the cancellation of the contract1? I haven’t talked to the man in a year — I have had no conversation with Atwell or the union about negotiating a new contract. ’ ’

Fred Luts, member of Lutz Bros. Plumbing Co. I have been in business 10 years in Fort Smith — 50 years old — am a union contractor —■ contract with Local Union. I received the letter in question. “Q. Is that the first notice you had that it was cancelled? A. The first notice that it was cancelled, yes sir. Q. Since that have you had any negotiations with reference to a new contract with Mr. Atwell or any member of the union? A. Not so far.”

John Thurman, president of Daniel Plumbing Co. I told Mr. Daniel to tell Mr. Atwell that if he wanted to negotiate to drop me a line and I would meet with him at any convenient time and be glad to talk with him.

W. G. Atwell, recalled. Since the temporary injunction I asked Merl Daniel if he would sit down and talk to us, he said he would let me know as soon as he got in touch with Mr. Thurman. I have never heard from him, he was in Florida.

After careful consideration of the record and also the arguments and citations presented by both sides we have concluded that this case presents to us a factual situation only. Stated another way, the question for consideration relates to the weight and sufficiency of the evidence to support the Chancellor’s finding. So considered, it is onr further conclusion that the decision of the trial court is not against the weight of the evidence and that it must therefore be affirmed.

For clarity and convenience we classify appellants’ alleged excuses or reasons for picketing appellee’s place of operation as follows: (a) To secure work for Fort Smith labor both union and non-union; (b) To secure higher wages for Bice and perhaps other union employees of appellee; (c) Because appellee refused to employ union men, and; (d) Because appellee refused to negotiate.

It is onr opinion that the weight of the testimony accords with the Chancellor’s finding that appellants’ alleged excuses or reasons for picketing were not sustained or that they were non-existent.

(a) It was not a permissible objective for Local 29 to picket in order to force appellee to employ Fort Smith labor (including non-union labor) in preference to labor from other sections of the state. Such objective would tend to retard rather than promote the welfare of the union. In the case of Hughes, et al. v. Superior Court of California, 339 U. S. 460, 70 S. Ct. 718, 94 L. Ed. 985, it was held unlawful to peacefully picket the owner of a store to force him to hire negro employees in proportion to their patronage. The reasoning employed there is, we think, applicable here. Moreover appellants’ witnesses admitted that the union was not interested in securing jobs for any one except its own members.

(b) We are not convinced by the testimony that the real purpose of the picketing was to secure higher wages for Rice. Rice was already receiving the prevailing union wages and had not expressed any dissatisfaction to appellee. All other union employees in Fort Smith were working for the same wage scale, although no other job was being picketed and although (as the testimony shows) the union was not negotiating for higher wages with at least some of the union contractors. In fact it was not shown by any union contractor that it was negotiating with appellant union. Statements were made that the union was negotiating with all Fort Smith contractors, but these uncorroborated statements were contradicted by two of the named contractors.

(c) We think the testimony justified the Chancellor’s finding that appellee did not discriminate against union laborers. When the picket was established on March 10th, appellee was just getting the job under way and needed, at that time, very few employees and particularly plumbers. It is not clear from the record just how many employees appellee had on the job at the stated time, but it does appear that they were divided fairly equal between union and non-union men. It is clear that appellee was employing two union men. It was stated that appellee did not call for any union men after March 10th, and that those who did apply for work were refused. In the first place the testimony does not disclose any specific instance where any union man so applied. Appellee admits it has not asked the (union controlled) “hiring hall” for any union workers since March 10th, but, as is clearly evident, it would have been a futile gesture. Not being able to know what Merl Daniel’s future plans were, it is possible that had the union waited a few days it might have been able to show discrimination but, in our opinion, none was shown to exist at the time the picket line was established.

(d) Likewise, we think, the testimony supports the finding that appellee did not refuse to arbitrate. Not only was it made clear that Merl Daniel had no authority to arbitrate, but he was given no reasonable chance to do so. It is not contended by appellants that Merl Daniel said he Avould not negotiate or that he was unwilling to do so. This was merely a hasty conclusion which Atwell drew and hastily acted upon. This conclusion, we think, was unjustified. It would not be justified in ordinary business relations and we know of no special reason why it should be here.

The remaining question is: Does the evidence sustain the Chancellor’s conclusion that Local 29 was picketing for a closed shop in violation of Amendment 34 of the Arkansas Constitution? We think it does.

It must be assumed that the able and experienced representatives of the union had some definite objective in establishing the picket line, otherwise their actions must be considered senseless. If, therefore, appellánts were unable to establish any other reason for picketing in this instance, then it is not unreasonable to deduce that the real purpose was to obtain a closed shop. Portions of the testimony lend support to this deduction.

It is not disputed that Atwell stated, approximately a week before appellee’s job actually began, that it would be closed down for 90 days. The incident at the Chamber of Commerce Hall is some indication that the union was planning to exert some kind of pressure or influence in behalf of its members. One union officer stated union members took a secret oath, the violation of which could subject them to penalties. Appellee made an unsuccessful effort to obtain the contents of this oath. Appellants’ testimony was evasive and unsatisfactory concerning when and how contracts with Port Smith contractors had been cancelled. Appellee’s testimony in that connection raises a suspicion that appellants’ whole contention in this regard may have been a subterfuge to justify the action they took. The testimony of appellant’s witness, Burgess, may have significance relative to the real objective of the picket line. At least the Chancellor had a right to so consider it in connection with all the other facts and circumstances.

“Q. Does your constitution and rules discipline a union man who works with a non-union man.

A. Quite possibly does.

Q. Well I believe you also stated that the other main purpose was to obtain union labor throughout?

A. Well that kindly follows along with it.

Q. The whole idea of your union and your reason for existence is to obtain contracts where only union people will be employed, isn’t it?

A. That is true but you will find in there a statement that any violation of state law cancels any portion of that.

Q. But your principal objective is to use every means you can to have the employers employ your members isn’t it?

A. Well certainly.

Q. No others.

A. (No answer)”

Appellants stoutly maintained throughout that they were not picketing for a closed union shop, but this entire record is a reminder of the old adage that offtimes actions speak louder than words.

Without relying entirely or especially on any one fact or circumstance mentioned above, it is our opinion that the record as a whole justifies the Chancellor’s decision that Local No. 29 established the picket line in question to force appellee to employ only union men, contrary to Amendment 34 of the Arkansas Constitution.

Affirmed.

Justices George Bose Smith and BobiNsoh dissent.

Sam BobiNSON, J.,

dissenting. There is only one issue and that is whether the plumbers were picketing for the purpose of coercing Daniel into making a contract for a “closed shop” in violation of Amendment No. 34 to the Constitution of this State prohibiting discrimination for or against union labor. It is the contention of Daniel that the union was seeking a contract for a closed shop whereby Daniel would employ union labor only. There is an abundance of evidence to the effect that the union did not want to be discriminated against,, but there is absolutely no evidence showing that the union wanted to bring about a violation of the constitutional amendment. The majority have not pointed out any substantial evidence to that effect and to say that the union men were seeking a closed shop is pure speculation.

It is conceded by all that picketing is unlawful in this State if it is for the purpose of forcing a closed shop; hut the point here is that the evidence does not justify a conclusion that the union men were seeking an unlawful contract. It is practically undisputed that the union men felt that they were being discriminated against; they had a right to peacefully picket and thereby give publicity to such discrimination. Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093. The picket sign put up by the union read: “E. B. Daniel Plumbing & Butane Company is discriminating against organized labor and Local No. 29 Plumbers and Steam Fitters.”

Daniel had a good-sized job; ten or twelve journeymen plumbers would be needed. There does not appear to have been a shortage of qualified plumbers in the city of Fort Smith. The union plumbers of that city, anticipating that Daniel would avoid giving them employment, brought about a meeting of members of the Chamber of Commerce and the contractor, Davis, in an effort to get work for the local men. Certainly these men were acting within their rights in trying to obtain employment. Daniel was running an ad daily in the local paper seeking to employ plumbers; the local union employment office which could have furnished the needed men was not contacted and only one union plumber was employed. Daniel caused about twelve applicants to take the examination for a plumber’s license in Fort Smith, all of whom failed to pass the examination except Merl Daniel; he took the examination and passed it; there is absolutely no evidence that the examination was unfair or that the men who took it and failed were in fact qualified plumbers. The fact that Daniel was having these unqualified men take the examination, when local licensed union plumbers were available and wanted work, shows rather conclusively that Daniel was discriminating against the union members, especially so when Daniel continued to run the ad for plumbers. The evidence is convincing that Daniel did not want to employ union men and was doing everything possible to avoid it. Of course, the members of the union wanted employment and, in an effort to obtain work, they attempted to bring economic pressure on Daniel by establishing a picket line to prevent discrimination against the union. This State has no law from any source which prohibits peaceful picketing in a situation such as is presented here.

The majority appear to stress the point that at the time of commencement of the picketing only one union man was employed by Daniel. The picketing would have been lawful if no union men had been in the employ of Daniel. Senn v. Tile Layers Union, 301 U. S. 468, 57 S. Ct. 857, 81 L. Ed. 1229; Cafeteria Union v. Angelos, 320 U. S. 392, 64 S. Ct. 126, 88 L. Ed. 58; A. F. of L. v. Swing, 312 U. S. 321, 61 S. Ct. 568, 85 L. Ed. 855.

I am thoroughly convinced from the record in this case that the union men were not picketing for the purpose of coercing Daniel into entering into a contract for a closed shop in violation of the law of this State, but were picketing for the purpose of preventing discrimination against the union men.

Therefore, I respectfully dissent.

Mr. Justice George Bose Smith joins in this dissent.


author: Sam RobiNsoN, J.

text:
    Tyler v. Boucher.
    5-816
    285 S. W. 2d 524
    Opinion delivered January 9, 1956.

      W. H. Kitchens, Jr., for appellant.

      Melvin T. Chambers, for appellee.
   Sam RobiNsoN, J.

This case concerns the title to minerals and royalty on a small acreage. Appellants, Addison L. Tyler, and his wife, Annie Tyler, purchased as an estate by the entirety 20 acres of land. The grantor reserved three-fourths of the minerals. In language of the oil business, the Tylers acquired “5 acres of minerals.” Later, they sold 2% acres of minerals. This case involves the remaining 2% acres. Tyler conveyed to appellee, Melvin Boucher, this remaining 2y2 acres. Mrs. Tyler did not join in the deed but steadfastly refused to do so, and, at the time Boucher received the deed from Tyler, he was aware of the fact that Mrs. Tyler had refused to sign it. However, he thought she owned only a dower interest and paid Tyler $1,875.00, the full purchase price agreed upon. When it was understood that Mrs. Tyler was part owner, Tyler refunded to Boucher $937.50, one-half the purchase price. Boucher then proceeded in an effort to prevail upon Mrs. Tyler to sell her interest in the minerals or royalty. Finally, she conveyed to Boucher certain royalty for which she was paid $50.00 in addition to the amount theretofore refunded to Boucher by Tyler, making a total of $987.50. The Tylers claim that, as part of the consideration for the royalty deed, Boucher was to destroy the mineral deed he had theretofore obtained and which Tyler alone had signed. The Chancellor held that Boucher had acquired in fee 1% acres in minerals by the mineral deed from Tyler and 1% acres of royalty by the deed executed by both Mr. and Mrs. Tyler.

There are two questions: First, is the evidence sufficient to set aside the mineral deed from Tyler to Boucher? "We do not think so, although both the Tylers testified that the setting aside of the mineral deed was part of the consideration for the royalty deed. The royalty deed on its face recognizes the validity of the mineral deed. The royalty deed provides: ‘ ‘ This conveyance considered with mineral deed Addison Lee Tyler to Melvin Boucher dated Oct. 18, 1952 conveys 144 acres Minerals and 144 acres royalty.”

Next, just what interest did Boucher acquire by both deeds? The mineral deed was signed by Tyler alone. By this deed, Boucher acquired all of Tyler’s interest in the minerals. But the mineral deed signed by Tyler alone would not affect Mrs. Tyler’s right of survivorship or her rights to one-half of the rents and profits. Roulston v. Hall, 66 Ark. 305, 50 S. W. 690; Pope v. McBride, 207 Ark. 940, 184 S. W. 2d 259. Hence, after Tyler gave the mineral deed and before Mrs. Tyler executed the royalty deed, she and Boucher were each entitled to one-half of the royalty income from the minerals. Two and one-half acres of minerals were owned. Mrs. Tyler would be entitled to all of the income from 1% acres of minerals and this royalty is exactly what she conveyed to Boucher by her deed. Although there is some ambiguity in the deed, it is clearly a deed to royalty. The deed provides “AN UNDIVIDED one/one hundred twenty eighth (l/128th) interest in and to all of the oil, gas and other minerals.” Actually, as one of the owners by the entirety of 2% acres of minerals out of 20 acres, Mrs. Tyler was entitled to a l/128th royalty in the 20 acres. The deed further provides: “This conveyance is of 144 oil, gas and other minerals royalty acres over the entire spread of the hereinabove described lands.” The land described is the 20 acres. The royalty from 144 acres is all Mrs. Tyler was entitled to as a tenant by the entirety.

Further, the deed provides: “It is the intention of the parties hereto that the grantee herein, his heirs or assigns, shall be entitled to receive hereunder one sixteenth (1/16) of all oil and/or gas run to the credit of the royalty interest reserved under and by virtue of any oil and gas mining lease” and again: “In any event the grantee herein, his heirs or assigns, shall be deemed the owner of and shall be entitled to receive one one twenty eighth (1/128) part of all oil and gas produced and saved from said land, or any part thereof. ’ ’

It is our conclusion that, by the mineral deed from Tyler, Boucher acquired 2% mineral acres subject to Mrs. Tyler’s right of survivorship; that before Mrs. Tyler executed the royalty deed she was entitled to one-half the royalty income from the 2y2 acres, but by her deed she transferred her rights in 1% acres of royalty to Boucher. But she still has the right of survivorship in the 2% acres of minerals and in the event she survives her husband she would be entitled to the royalty on 1)4 acres of minerals, as she only sold the royalty on 1XA acres.

Reversed, with directions to enter a decree not inconsistent herewith.


text:
    Oliver v. State.
    4823
    286 S. W. 2d 17
    Opinion delivered January 16, 1956.
    [Rehearing denied February IS, 1956.]

      Stein & Stein, for appellant.

      Tom Gentry, Attorney General, and Thorp Thomas, Ass’t Atty. Gen., for appellee.
   Lee Seamster, Chief Justice.

The appellant, Harold Oliver, was tried in Union Circuit Court, 1st division, under an information charging him with the crime of murder in the first degree, alleged to have been committed by shooting and killing one H. H. Parks. A verdict was returned finding him guilty of murder in the second degree, and fixing his punishment at twenty-one years in the penitentiary, and from the judgment pronounced on that verdict is this appeal.

For reversal of the judgment, the appellant lists the following points: (1) the evidence is insufficient to support the verdict; (2) the court erred in giving State’s instruction No. 7%; and, (3) the court erred in permitting the State to introduce the State’s exhibit No. 7; also State’s exhibits Nos. 8, 9, 3, 2, 12 and 10.

The evidence was to the following effect: On March 26, 1955, Harold Oliver, the appellant, along with Gene Jerry, Paul Martin and Harry Stevenson, were playing-dominoes and drinking beer in the store of PI. H. Parks, the victim. After playing four games, Martin had to leave, breaking up the domino game. Gene Jerry then bought a beer for himself, Oliver and Stevenson. Oliver then sat down at the counter directly in front of the stores cash register. Plarry Stevenson was sitting on the next stool beside Oliver while Parks was standing behind the counter. J. C. Ward then entered the store and after inquiry Ward told Oliver that he would sell him some fish for twenty-five (25) cents per pound. Parks then said, “That is a devil of a note, me trying to sell them for fifty (50) cents dressed and you selling them (fish) for twenty-five (25) cents in tlie rough..” Oliver said, “Well, you don’t blame me for trying to buy them as cheap as I can, do you?’’ Parks answered, ‘‘No.’’ Shortly thereafter, Felton Haynes entered the store and Parks made an inquiry as to why his son-in-law had not brought him some fish as he had promised and Oliver interjected, ‘ ‘ A man can’t always do what he says about fish. ’ ’ Parks told Oliver, “I wasn’t talking to you, and it is not any of your business.” After Haynes left, Parks told Oliver that he should tend to his own business and not butt into his conversations with other people. Oliver then cursed Parks, who replied, “there was not but one man that ever called me that and got away with it and that was my daddy and he held a gun on me.” Oliver reached up and removed a “no credit” sign from the top of the cash register. Parks then reached for a drawer behind the cash register and Oliver stood up, pulled a pistol and fired twice at Parks. Parks then ran to the end of the counter and Oliver moved in the same direction and emptied his gun into Parks. The evidence does not reflect whether Parks died immediately or a few minutes thereafter. Two witnesses, Harry F. Stevenson and Grene Jerry, testified that they did not see a gun in-Parks’ hand at anytime. Deputy Sheriff Kinard found only one pistol in the store and that one was on the floor under the counter, behind a five-gallon can.

Appellant, Harold Oliver, testified in his own beha.ll. He admitted that he shot and killed H. H. Parks but earnestly insists that he acted in self-defense, since he was under the belief that the deceased was going to either kill him or do him great bodily harm and injury. The appellant insists that the deceased removed a pistol from the drawer under the counter.

We do not attempt to detail all of the evidence. It suffices to say that after considering all of the evidence, and when we give to it, as we must, its strongest probative force in favor of the State, the evidence was ample to warrant the jury’s verdict of murder in the second degree. This Court has many times held that it would give the testimony tending to support the verdict its highest probative value. See Powell v. State, 213 Ark. 442, 210 S. W. 2d 909; Everett v. State, 213 Ark. 470, 210 S. W. 2d 918.

In his brief, the appellant alleges that the court erred in giving State’s instruction No. 7%. The appellant fails to list this assignment in his motion for a new trial, therefore, this court will not take this assignment under consideration.

Finally, the appellant alleges that the court erred in permitting the State to introduce State’s exhibits Nos. 2, 3, 7, 8; 9, 10 and 12. These exhibits were photographs of the body of the deceased, the scene of the shooting and a color picture showing the spot where the deceased fell, after he was mortally wounded.

A careful review of the record reveals that State’s exhibits Nos. 3 and 10 were ruled out by the trial court. The State withdrew its exhibit No. 9. Therefore, there is no merit as to appellant’s objection to these three exhibits.

Exhibits 7 and 12 are photographs of the scene of the killing. These pictures were introduced only after proper foundation was laid showing that they were properly taken after the killing and accurately show the condition of the premises with reference to the cash register, the “no credit” sign and the blood stains showing where the deceased fell after the shooting. Exhibit No. 8 is a picture showing two wounds in the back of the deceased’s body; this picture was taken at the morgue. Exhibit No. 2 is a picture of the front of the deceased’s body, which was taken at the scene of the shooting, after the body had been placed on a stretcher. The photographs of the deceased’s body showing the bullet wounds are admissible to show the area of injury to the deceased.

The admission and relevancy of photographs must necessarily rest largely in the discretion of the trial judge. We find no abuse of discretion in the admission of photographs in the instant case. Admissibility of photographs does not depend upon whether the objects they portray could be described in words, but rather on whether it would be useful to enable tbe witness better to describe and tbe jury better to understand, tbe testimony concerned. Where they are otherwise properly admitted, it is not a valid objection to tbe admissibility of photographs that they tend to prejudice the jury. Competent and material evidence should not be excluded merely because it may have a tendency to cause an influence beyond the strict limits for which it is admissible.

At the conclusion of all the testimony in the case, the trial court gave a number of instructions which we have carefully examined and find to be proper declarations of law as applicable to the facts presented. Appellant made no specific objections to any of the instructions; but rather made a general objection to all the instructions. Appellant’s objection to the instructions at most was a general objection en masse to all of the instructions and cannot be sustained if any one of the instructions is good. Owen v. State, 86 Ark. 317, 111 S. W. 466; Tiner v. State, 109 Ark. 138, 158 S. W. 1087; Massey v. State, 207 Ark. 675, 182 S. W. 2d 671. As indicated, we think none of the instructions given by the trial court were erroneous.

We have examined other assignments in the motion for a new trial and find no prejudicial error in the record. The judgment is, therefore, affirmed.