author: John A. Fogleman, Justice.

text:
    Leonard PONDER and WEST & Co., INC. v. Hazel WATERS
    74-252
    520 S.W. 2d 302
    Opinion delivered March 31, 1975

      Coleman, Gantt, Ramsay & Cox, for appellants.

      W. P. Switzer, for appellee.
   John A. Fogleman, Justice.

Appellee Hazel Waters brought this sut alleging that she was physically assaulted by Leonard Ponder, manager of the department store of West & Company at Crossett, at which she was an employee. This appeal was taken from an $18,000 judgment in her favor resulting from a jury trial. We reverse and remand for a new trial.

Dr. R. L. Sabb of Crossett had been Mrs. Waters ’ physician for a number of years. He treated her for injuries she alleged were inflicted by appellant Ponder. He expressed his opinion as to the cause of the condition he diagnosed and treated. On cross-examination appellant’s attorney asked to see a report Dr. Sabb had in his pocket. The witness replied that this report had not been subpoenaed and that it was hospital property. Even when the examiner insisted on seeing the doctor’s own records, the witness responded that they had not been subpoenaed. Throughout his direct examination the witness had refreshed his memory from his office records and a report from a Dr. Hartmann.

It seems to be generally accepted by respected writers and by the weight of authority that where a writing is used by a witness on the stand to refresh his memory while testifying, the cross-examiner is entitled, upon request, to inspect the writing as a protection against imposition, and as a means of detecting circumstances not appearing on the surface, of searching out discrepancies, and of detracting from the credibility of the witness and the weight of his testimony, through cross-examination. Ill Wigmore on Evidence (Chad-bourn Rev.) 136, § 762; 4 Jones on Evidence (6th Ed.) 258, § 27:4; McCormick on Evidence (2d Ed.) 17, § 9; Annot 82 ALR 2d 557 (1962).

We have recognized that it is error to refuse to allow the cross-examiner to inspect a writing used by a witness to refresh his memory while on the stand, although we have found that the refusal may not be reversible error where the right was waived or where it was manifestly not prejudicial. Collins v. State, 200 Ark. 1027, 143 S.W. 2d 1; McNutt v. State, 201 Ark. 313, 144 S.W. 2d 1094. We have also recognized that when the witness has, before testifying, refreshed his memory but an out-of-court inspection of memoranda or records but does not use or have the writings in court, the matter of requiring the witness to produce them for inspection lies within the sound judicial discretion of the trial judge whose action will not be reversed unless there has been an abuse of that discretion. Peters v. State, 248 Ark. 134, 450 S.W. 2d 276.

The trial judge in this case had no discretion in the matter and there was no waiver of the right. It is to be assumed that the error was prejudicial, unless it manifestly was not or is shown not to be. The lack of prejudice is neither manifest nor established.

Although the error on this score mandates reversal of the judgment, appellant has raised another point that merits discussion as one likely to arise on a new trial. During the course of the trial, and on direct examination, Mrs. Waters was asked if she was drawing disability social security and, when she answered in the affirmative, she was asked when she was declared totally disabled by the Social Security Administration. When objection was made, appellee’s attorney urged that the anticipated testimony was relevant to alleged loss of earning capacity resulting from the alleged assault on December 9, 1971, and to show that Mrs. Waters was totally disabled. The circuit judge permitted the inquiry to be pursued, stating that he would instruct the jury to disregard the testimony unless it was “tied in” with the complaint. After Mrs. Waters again testified that she was drawing disability social security and stated the amount, the objection was renewed but the testimony was permitted when appellee’s attorney stated that he did not care about the adjudication of disability but only wanted to show the difference in income from her salary with West and the amount she was receiving from social security at the time of trial.

Of course, appellee could show the difference in her income, but the question whether she was disabled as a result of the alleged assault was very much in issue. The testimony of the representative of the Social Security Administration making the determination of disability that such a finding had been made would probably have been inadmissible as hearsay. Either a statement of such a witness not based upon his own knowledge or the testimony of appellee that she had been found to be disabled by such an agency would derive its value, not from the credit to be given the witness testifying, but from the veracity, competency and knowledge of some other person or persons. Southern Farm Bureau Casualty Insurance Co. v. Reed, 231 Ark. 759, 332 S.W. 2d 615; Roberts v. Roberts, 216 Ark. 453, 226 S.W. 2d 579; Progressive Life Insurance Co. v. Hulbert, 196 Ark. 352, 118 S.W. 2d 268; Rice v. Moudy, 217 Ark. 816, 233 S.W. 2d 378; Lee Rubber & Tire Co. v. Camfield, 233 Ark. 543, 345 S.W. 2d 931; Southern Insurance Co. v. Floyd, 174 Ark. 372, 295 S.W. 715. Sloan v. Newman, 166 Ark. 259, 266 S.W. 257; Mason v. Mason, 167 Ark. 304, 267 S.W. 772. See also, Southern Farm Bureau Casualty Insurance Co. v. Pumphrey, 256 Ark. 818, 510 S.W. 2d 570 (1974); Farm Bureau Mutual Insurance Co. of Arkansas v. Horne, 256 Ark. 642 510 S.W. 2d 70 (1974); Barnes and York v. State, 215 Ark. 781, 223 S.W. 2d 503; New Empire Insurance Co. v. Taylor, 235 Ark. 758, 362 S.W. 2d 4; Higgins v. General Motors Corp., 250 Ark. 551, 465 S.W. 2d 898. Showing that Mrs. Waters had been found to be disabled for social security purposes is improper.

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


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    FORREST CITY MACHINE WORKS INC v. G. B. COLVIN, Jr., Judge of the Tenth Judicial Circuit, Ashley County, Arkansas
    74-342
    521 S.W. 2d 206
    Opinion delivered March 31, 1975
    [Rehearing denied May 5, 1975.]

      Shackleford, Shackleford & Phillips, for petitioner.

      Switzer & Switzer, for respondent.
   J. Fred Jones, Justice.

This is an original petition for a writ of prohibition filed by Forrest City Machine Works, Inc. to prohibit the trial of a suit filed against it in the Ashley County Circuit Court by Mr. and Mrs. Lawson because of improper venue.

The facts are as follows: The petitioner, Forrest City Machine Works, Inc., is an Arkansas corporation domiciled in St. Francis County and is engaged in the business of manufacturing soil pulverizing farm equipment in that county. Mr. J. L. McCain, an Ashley County farmer, purchased one of the pulverizing machines from the Chicot Implement Company and while it was being assembled on his Ashley County farm by one of his employees, Laven Lawson, one of the two-row wing units on the implement fell from its stabilized vertical position and injured Mr. Lawson.

Mr. and Mrs. Lawson filed their suit in Ashley County where they lived and where the accident occurred. They obtained service on the petitioner by service of summons issued out of the Ashley County Circuit Court, directed to, and served by, the sheriff of St. Francis County. The petitioner, Forrest City Machine Works, Inc., filed motion to quash service because of lack of venue in Ashley County; the motion was overruled, hence the present petition for prohibition.

The petitioner contends that the venue in this case is fixed by Ark. Stat. Ann. § 27-605 (Repl. 1962) and the respondents contend that Ark. Stat. Ann. § 27-610 (Repl. 1962) applies. Section 27-605 provides as follows:

“An action, other than those in sections 84, 85 and 90 [§§ 27-601 — 27-603], against a corporation created by the laws of this State may be brought in the county in which it is situated or has its principal office or place of business, or in which its chief officer resides; but if such corporation is a bank or insurance company, the action may be brought in the county in which there is a branch of the bank or agency of the company, where it arises out of a transaction of such branch or agency.”

Section 27-610 is the general venue statute for personal injury and death action cases and provides as follows:

“All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of injury, and provided further that in all such actions service of summons may be had upon any party to such action, in addition to other methods now provided by law, by service of summons upon any agent who is a regular employee of such party, and on duty at the time of such service.”

In the 1941 case of Ft. Smith Gas Co. v. Kincannon, Judge, 202 Ark. 216, 150 S.W. 2d 968, the plaintiff was a resident of Sebastian County where he sustained an injury occasioned by the alleged negligence of the Fort Smith Gas Company. He filed suit in Crawford County and obtained service on the gas company in Sebastian County on November 4, 1940, the injury having occurred on July 22, 1940. On petition for writ of prohibition in that case, we pointed out that Act 314 oí 1939 (§27-610) was a venue Act “and its purpose and effect is to localize personal injury action.” We pointed out in that case that the trial judge felt that the venue Act did not apply because the suit was filed and service had in accordance with the law as it existed prior to the passage of Act 314, and in that case we said:

“Here, the legislative will is that for one to recover damages to compensate a personal injury he must sue therefor either (a) in the county in which he was injured or (b) in the county in which he resided at the time of his injury; and there is no exception or saving clause in favor of pending suits.”

We concluded that the Crawford Circuit Court was without jurisdiction to proceed with the trial and the petition for writ of prohibition was granted.

In the case of Terminal Oil Co. v. Gautney, Judge, 202 Ark. 748, 152 S.W. 2d 309, we again granted a writ of prohibition to the Poinsett Circuit Court. In that case the Terminal Oil Company was a domestic corporation domiciled in Mississippi County, with a resident agent for service in Poinsett County. Two personal injury actions were brought against it in Poinsett County, service being had on the resident agent in that county. The plaintiffs alleged in their complaint that they were residents of Pulaski County, and that they were injured in an automobile collision with a Terminal Oil Company vehicle in Mississippi County. On the return day of the writ, the petitioner Terminal Oil Company appeared specially in each case and filed motions to dismiss because of improper venue under § 27-610, supra. The motions were overruled by the trial court and in granting petition for prohibition in this court, we said:

“We think the court erred, not in overruling the motions to dismiss, but in not treating them as motions to change the venue, and in not transferring them to either Pulaski county, where plaintiffs reside, or did reside at the date of the injury, or to Mississippi county, where the injury occurred. The fact that the injury occurred in 1937 and that the suit was brought in October, 1939, before said act 314 became effective . . . does not alter the situation.” Citing Fort Smith Gas Co. v. Kincannon, Judge, supra.

In Terminal Oil Co. we further said:

“In order to clarify the question of service under said act 314, the legislature of 1941 enacted act 21, entitled ‘An Act to provide for statewide service of process in local actions.’ Section 1 thereof reads as follows: ‘In any action which may lawfully be brought only in some one or more particular counties in this state, and not in any county of the state in which service may be had on the defendant, so that the venue of such action is local and not transitory in nature, summons may be served upon the defendant or defendants in such action in any county in this state.’
* * * [A] ct 314 changed the venue of existing actions, those already brought as well as those thereafter to be brought, and localized such actions to one or the other of the two counties named. It is not a question of service, but a question of venue, and the circuit court of Poinsett county is without jurisdiction to proceed with the trial of these cases.”

In the recent case of Evans Laboratories v Roberts, Judge, 243 Ark. 987, 423 S.W. 2d 271, we again granted the writ of prohibition in a case very similar to the one at bar. In that case a resident of Van Burén County filed suit in the Faulkner County Circuit Court alleging that the defendant, Elmer Pearson, was a resident of Faulkner County and an agent and employee of the defendant Evans Laboratories, an Arkansas corporation. The complaint then alleged that the defendant Evans Laboratories, through its said agent, sold some insect eradication pesticide for use in a plant in Van Burén County where the plaintiff lived and was employed. The complaint then alleged that the plaintiff came in contact with the pesticide fumes; that the defendant breached an implied warranty for the reason that the pesticide was not in fact fit for its intended use and purpose and that when it was put to its intended use, the plaintiff was injured thereby. The defendant Evans Laboratories appeared specially on a motion to quash the summons for lack of jurisdiction and the trial court denied the motion. The petition for prohibition was then filed in this court and although the respondent contended in that case that the suit was one sounding in contract rather than in tort, we said:

“Regardless of whether a suit for a breach of warranty is on contract or in tort, venue for an action is not controlled by such classification, but is controlled by venue statute.”

We then pointed out that Ark. Stat. Ann. § 27-613 (Repl. 1962) provides that all other actions not provided for by specific statute may be brought in the county in which the defendant or one of several defendants resides or is summoned, and in that case we then said:

“. . . the complaint alleged personal injuries in breach of contract, but the plaintiff brought her action for damages for personal injury by wrongful act in Faulkner County where she did not reside, and where the accident which caused her injury did not occur.
The venue for this action is in Van Burén County and the circuit court of Faulkner County is without jurisdiction. ”

The petitioner argues that this court has held that Ark. Stat. Ann. § 27-610 (Repl. 1962) neither repealed nor amended the venue for actions otherwise fixed and cites Moncus v. Raines, 210 Ark. 30, 194 S.W. 2d 1, in which we held that action for personal injury against a city marshal must be brought under Ark. Stat. Ann. § 27-602 (Repl. 1962) which provides that an action against a public officer for an act done by him by virtue or under color of his office for his neglect of official duty must be brought in the county where the cause, or some part thereof, arose. In so holding that Act 314 of 1939 did not repeal § 27-602, we said:

“There is no necessary or irreconcilable conflict between the two laws here involved.
In the first the Legislature was dealing with the venue of suits to enforce liability for official misconduct of officers. Such misconduct may consist of many things, such as (in case of peace officers) failure properly to serve legal writs, false imprisonment, and, as in the case at bar, the wrongful or excessive use of force in making an arrest. The Legislature determined that such actions against officers, for obvious reasons of public policy, ought to be brought in the county where the cause of action originated. There is no invincible repugnancy between the two laws. Both may stand and be permitted to operate within their respective orbits, as prescribed by the Legislature.”

The petitioner also cites Downey v. Toler, Judge, 214 Ark. 334, 216 S.W. 2d 60. That was an action brought against state police officers. The action was brought in Grant County where the plaintiffs alleged they received personal injuries when the officers used unnecessary force in arresting them. We granted prohibition upon the petition of the police officers and held that they were officers of the state and, therefore, came within the purview of Ark. Stat. Ann. § 34-201 (Repl. 1962) fixing venue in the county of their official residence. In addition to the reasoning set forth in Downey, it would not be practical or good public policy to permit state officials to be drawn away from their official duties and the place of their official residence by suits filed in distant counties arising in connection with their official acts.

Returning now to the case at bar, § 2 of the venue Act 314 provided: “This act shall not repeal any provision of venue for actions except such as are inconsistent therewith...” Section 27-605, supra, states where domestic corporations may be sued but § 27-610, supra, supersedes § 27-605 and refers only to particular kinds of actions. It provides that actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death, or in the county where the person injured or killed resided at the time of injury. If this section is inconsistent with the provisions of § 27-605, it is only inconsistent in so far as actions for personal injury or death caused by wrongful act are concerned and in that type of case § 27-610 applies.

The petition for writ of prohibition is denied.


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

text:
    Hoyle Bruce BEDELL v. STATE of Arkansas
    CR 74-150
    521 S.W. 2d 200
    Opinion delivered March 31, 1975
    [Rehearing denied May 5, 1975.]

      Bon McCourtney & Associates, by: Stephen R. Bigger, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert Newcomb, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

The appellant, Hoyle Bruce Bedell, was charged by information with the crime of manufacturing marijuana in that he “did unlawfully, wilfully, and feloniously grow and manufacture marijuana (Cannabis sativa L.).” Upon conviction at a jury trial he was sentenced to six years in the penitentiary and fined $3,000.

On appeal to this court Bedell has designated the following points he relies on for reversal:

“I. The initial warrantless and unconsented search by government authorities, or ranging, of the defendant’s farm lands beyond view from public roads was a trespass, constituting an illegal act which tainted all evidence flowing and resulting from this trespass as ‘fruit of the poisonous tree,’ and the court erred in overruling defendant’s motion to suppress evidence.
II. The subsequent search warrant issued pursuant to the initial warrantless searches was limited to search of the defendant’s curtilage and residence, and a warrantless contemporaneous search of the defendant’s three hundred six (306) acre farm was unauthorized, and the defendant’s fourth amendment right should be recognized to extend to adjacent fenced farm lands contiguous to one’s residence.
III. The court erred by fatally prejudicing the jury in admitting evidence regarding defendant’s possession and use of marijuana given the present circumstances of the defendant’s procedural severance of the charges of (1) manufacturing marijuana and (2) possession of marijuana with intent to deliver, and in view of the court’s refusal to give defendant’s jury instruction number ten (10).
IV. The court erred in refusing defendant’s proposed jury inslruetion number ten (10) which properly described the scope of the statutory definition of ‘manufacture’.”

The facts appear as follows: The appellant owned a 306 acre hill farm in Randolph County and lived in a house adjacent to the highway on the front or east side of the property. Much of the farm was in timber with small cleared areas near the middle of the west or back side of the tract of land. The fields or cleared areas were surrounded by timber with especially heavy timber and underbrush lying north of the cleared areas.

In September, 1973, the sheriff of Randolph County obtained information that marijuana might be growing on the appellant’s land so he and one of his deputies entered the tract through heavy timber at the northwest corner of the tract and first found what appeared to be a single marijuana plant growing in a cleared area, referred to in the testimony as field No. 1. The officers returned to the area a few days later and found 17 plants in a second area; 27 plants in a third area, and 76 plants growing in still another cleared area. All the plants were in a state of cultivation with sawdust and what appeared to be fertilizer having been placed around them. The growing plants were located by following plastic pipes running from what was described as a small holding pond near a newly drilled water well and running to the area where the marijuana plants were found. The officers found the 76 plants in field No. 4 by following a hose which was attached to a pump installed in a dug well or cistern at ari old house place on the property. A plastic line also ran from this well in an easterly direction past a sawdust pile at an old sawmill set and then on toward the house where Bedell lived. The sheriff and his deputy confiscated the growing marijuana and preserved it in a black plastic bag, later introduced into evidence as state’s exhibit No. 1. The sheriff testified that the marijuana plants were planted or set out in “hills” and that he observed hills in the four cleared areas where no plants were then growing.

On the basis of the information thus obtained, the sheriff obtained a search warrant and he and his deputies searched Mr. Bedell’s house where they found a pillowcase containing marijuana; a glass bottle or jar containing marijuana cigarette butts; a plastic box containing marijuana cigarette butts, and a paper bag containing marijuana. These items, together with the plants taken from the fields, were introduced into evidence.

POINTS I & II. We agree with the state that the Fourth Amendment to the Constitution only protects against unreasonable searches and seizures of persons, houses, papers and effects and does not extend to open fields and forested areas. See Hester v. United States, 265 U.S. 57, 68 L. Ed. 898, 44 S. Ct. 445 (1924). Consequently we find no merit in points I & II.

POINTS III & IV. The appellant’s third assignment, as designated, also includes his fourth assignment. We find no merit to the first part of the appellant’s third assignment. We gather from the argument in appellant’s brief that he may have been charged in a separate case with possession of marijuana with the intent to deliver, but there is no evidence that the jury was made aware of such additional charge. The appellant was being tried on the charge of manufacturing marijuana. The 121 growing marijuana plants were discovered in, and obtained from, fields on the appellant’s land some distance from the house where he lived and, there was testimony indicating that the fields contained numerous hills where plants had been set or grown. The marijuana plants were all surrounded by sawdust and a large sawdust pile was located near the center of appellant’s tract of land. A new well had been drilled on the back side of the appellant’s property with plastic pipe running to the area where marijuana plants were being cultivated. A gasoline pump with hose connected was found installed in a well or cistern on appellant’s property. The hose from the pump ran to the area where the 76 marijuana plants were located, and a hardware merchant from Missouri testified that he sold the pump to the appellant. A filling station operator and gasoline motor mechanic from Missouri testified that he repaired the pump for the appellant. The sheriff testified, under cross-examination by the appellant’s attorney, that it was his understanding the appellant had not lived on his property but a few months. So we conclude that the marijuana found in the appellant’s house was strong circumstantial evidence that it was he who was growing the marijuana being cultivated on his farm and that it was admissible in evidence for that purpose.

We now come to the trial court’s refusal to give appellant’s Instruction #10. The Uniform Controlled Substances Act, Ark. Stat. Ann. §§ 82-2602 — 82-2638 (Supp. 1973), is an overall Act pertaining to all of the many controlled substances including marijuana. Section 82-2601 (m) reads as follows:

“(m) ‘Manufacture’ means the production, preparation, propagation, compounding, conversion or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation or compounding of a controlled substance by an individual for his own use or the preparation, compounding, packaging, or labeling of a controlled substance:
(1) by a practitioner as an incident to his administering or dispensing of a controlled substance in the course of professional practice; or
(2) by a practitioner or by his authorized agent under his supervision for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale.” [Emphasis ours].

The trial court instructed the jury in part as follows:

“6. The law defines ‘manufacture’ to mean the production, including the planting, cultivating, growing or harvesting of a controlled substance, preparation, propagation, conversion or processing of a controlled substance.” [Emphasis ours].
“7. Manufacture means the production, preparation, propagation, conversion or processing of a controlled substance either directly or indirectly by extraction from substances of natural origin or depending by means of chemical synthesis, and■ includes any packaging or repackaging of the substance, or the labeling or relabeling of it, and it does include the growing or the cultivating of it.” [Emphasis ours].

The appellant’s requested Instruction No. 10 which was refused by the court reads as follows:

“10. You are hereby instructed that Manufacturing Marihuana means to grow, to produce, to cultivate, to propagate or to harvest marihuana, either directly by natural agricultural production or indirectly or independently, by means of chemical synthesis, and specifically excludes a practitioner or his agent preparing, compounding, packaging, prescribing, dispensing, ordering, or analyzing marihuana in the course of his professional practice, and also specifically excludes the preparation or compounding of the controlled substance of marihuana by an individual for his own use." [Emphasis ours].

Obviously the exception in the definition of manufacture as to “the preparation or compounding of a controlled substance by an individual for his own úse” was placed in the act because one’s use of a controlled substance is only a misdemeanor whereas possession for any other purpose is a felony.

The evidence from which a jury might have drawn an inference that Bedell had prepared or compounded marijuana for his own use came primarily from the sheriff and his deputy. They found: a pillowcase containing marijuana in the closet in the southwest bedroom of his home; a glass jar and a plastic box, both containing marijuana cigarette butts (the cigarettes had been smoked) under Bedell’s bed; and a paper sack containing marijuana on a bedroom closet shelf. The fact that there were cigarette butts in some containers along with the loose marijuana in others certainly constituted evidence that would justify a belief that Bedell had “prepared” marijuana. When considered in the light of the fact that the cigarettes had been smoked, the inference that Bedell had prepared marijuana for his own use was certainly reasonable.

The jury found Bedell guilty of manufacturing marijuana. It had been instructed that “manufacture” included “preparation” or “processing”. It had also been instructed that “manufacture” means production, preparation, propagation, conversion or processing and includes any packaging or repackaging of the substance. It was not told that preparation of the substance by an individual for his own use is specifically excluded.

Since there was evidence that Bedell had prepared marijuana for his own use, the jury should have been told that this did not constitute manufacture. Consequently, the trial court erred in refusing appellant’s requested Instruction #10.

Reversed and remanded for the error indicated.

Harris, C.J., and George Rose Smith and Jones, JJ., dissent.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case. It is my opinion the trial court did not err in refusing to give the appellant’s instruction No. 10.

As pointed out in the majority opinion, the Uniform Controlled Substances Act, Ark. Stat. Ann. §§ 82-2601 — 82-2638 (Supp. 1973), is an overall Act pertaining to all of the many controlled substances including marijuana. As I read § 82-2601 (m) its interpretation is plain. “Manufacture” means either the production, the preparation, the propagation, the compounding, the conversion or the processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction, etc. The controlled substance is the object of the manufacture by any one or combination of these processes.

I am unable to read from the evidence in this case that the appellant was engaged in the manufacture of a controlled substance through the process of preparation or compounding. The controlled substance, marijuana, is a plant and is simply not manufactured by preparation or compounding. It is manufactured by production and Ark. Stat. Ann. § 82-2601 (u) (Supp. 1973) states: “‘Production’ includes the manufacture, planting, cultivation, growing or harvesting of a controlled substance.” That was what the appellant was charged with and was convicted of. The exception set out in § 82-2601 (m) “except that the term [manufacture] does not include the preparation or compounding of a controlled substance by an individual for his own use. . . ” (emphasis added) simply does not apply to growing marijuana.

Bedell was not charged in this case with the possession of marijuana for any purpose. The evidence that he even possessed marijuana inside his home was offered for the purpose, and the sole purpose, of showing his connection with the marijuana that was still growing in, and had been harvested from his fields. My main reason for dissent in this case is stated by the majority as reason for their reversal. The majority opinion says:

“The evidence from which a jury might have drawn an inference that Bedell had prepared or compounded marijuana for his own use came primarily from the sheriff and his deputy. They found: a pillowcase containing marijuana in the closet in the southwest bedroom of his home; a glass jar and a plastic box, both containing marijuana cigarette butts (The cigarettes had been smoked) under Bedell’s bed; and a paper sack containing marijuana on a bedroom closet shelf.”

The majority then say that the fact there were cigarette butts in some containers along with loose marijuana in others, certainly constituted evidence that would justify a belief that Bedell had “prepared” marijuana. As I view this case, the mere fact that the jury might so find, as the majority indicate, was a better reason for not giving appellant’s instruction No. 10 than it was for giving it. The marijuana in this case had already been grown and harvested and the manufacturing process by production had been completed before it was placed in the pillowcase and paper bag and stored in the appellant’s home. All that was left for the appellant to do was lie in bed and enjoy the fruits of his labor. The cigarette butts found in the jar and the plastic container under appellant’s bed, to me, were simply evidence that he had been smoking in bed and had not emptied his ashtrays. Certainly it was no evidence he was manufacturing marijuana by preparation or compounding. It was only evidence that he had harvested some of his marijuana crop and had produced smoke from the marijuana he had grown and harvested.

Apparently the majority feel that unless the appellant smoked the entire marijuana plant, stalk, roots, leaves, seed and all, the jury could have reasonably found he prepared and compounded, and thereby manufactured, the leaves he did smoke. The harvesting of marijuana and stripping the leaves from the stalk could be considered preparation and compounding as easily as rolling a cigarette from the leaves or placing the leaves in a pillowcase or paper bag; consequently, under appellant’s instruction No. 10, he could have argued that he only prepared and compounded his entire marijuana crop for his own use.

Now if Bedell had been charged and tried for manufacr turing marijuana by the unusual, if(not impossible, process of preparation or compounding a controlled substance then, perhaps, he would have been entitled to the defense that he only prepared and compounded it for his individual use and had not manufactured it within the meaning of § 82-2601 (m), supra, but this was not the case. The trial court throughout the trial of this case admitted the marijuana found in the appellant’s home to show the chain of title from the fields to the appellant’s home and the evidence was limited to that purpose. The appellant did not testify and he offered no evidence as to his intended use of the marijuana found on his farm or in his home.

I would affirm the judgment.

Harris, C.J., and George Rose Smith, J., join this dissent.


author: Frank Holt, Justice.

text:
    THRIFTY RENT-A-CAR a/k/a COMMERCIAL LEASING SYSTEMS, INC. v. Charles Ricky JEFFREY
    74-319
    520 S.W. 2d 304
    Opinion delivered March 31, 1975

      Stubblefield & Matthews, for appellant.

      Richard J. Orintas, for appellee.
   Frank Holt, Justice.

Appellant’s manager caused appellee to be arrested for larceny by a bailee pursuant to Ark. Stat. Ann. § 41-3929 (Repl. 1964). The prosecutor later dismissed the charge. Appellee thereafter brought suit for malicious prosecution. A jury awarded appellee $1,500 compensatory and $1 punitive damages. Appellant was awarded $1,225 on its cross-complaint against appellee for damages to its automobile during the bailment. Appellant first asserts for reversal that the trial court erred in denying its motion for a directed verdict and argues there was insufficient evidence that the criminal action was instituted without probable cause.

In determining the sufficiency of the evidence on appeal, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee and affirm if there is any substantial evidence to support the finding of the jury. Green v. Harrington, 253 Ark. 496, 487 S.W.2d 612 (1972). There we said that upon appellate review it must appear “there is no reasonable probability that the incident occurred as found” by the factfinder. Furthermore, it is well established that upon appeal we consider only the evidence of the appellee or that portion of all the evidence which is most favorable to him. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W.2d 689 (1935); and Washington Natl. Ins. v. Meeks, 252 Ark. 1178, 482 S.W.2d 618 (1972).

The appellee was employed at a place of business near that of the appellant. The appellee became acquainted with appellant’s manager and expressed an interest in buying one of their rental cars. Appellee’s version of the bailment, which was contradicted by appellant, was that appellant permitted him, by a verbal agreement, to have the car on a Friday afternoon with the understanding that he would return or purchase the car on the following Monday. Appellee expressed a desire to show it to his wife, his insurance adjuster to determine the insurance rates, and have a mechanic inspect the brakes and front end alignment. He was told there was no restriction as to the mileage he could put on the car and neither was he limited to keeping it in Little Rock. It was appellee’s understanding that he “could drive it wherever [he] pleased”. He drove the car to Batesville where he spent Friday night and showed the car to his and his wife’s families. Saturday morning they went fishing. That evening they attended a show and then after putting the children to bed, he and his wife went “riding around in the car.” He accidentally lodged the car on an asphalt ramp at a dam site causing the damages. He was unable to locate appellant’s manager on Sunday and drove the car back to Little Rock. On Monday morning (not having seen his insurance agent or mechanic) he called appellant’s manager and advised him about the damaged car. As requested, appellee returned the car.

Appellant’s manager denied that the bailment existed longer than Friday or one day. He and appellee discussed settlement of the damages to the car. Appellee said that he would “try to work something out with him” and “give me a little time.” Several days later, appellee moved from Little Rock to Memphis to other employment. A few days later the appellant contacted the prosecuting attorney and had a warrant issued for the appellee upon a charge of larceny by a bailee. Appellee testified that appellant’s manager knew that he was in the process of moving. The manager did not secure a written estimate of the cost of the damages to the car until after the criminal action had been dismissed in criminal court. He acknowledged that he could have filed a civil suit. However, he thought the appellee was “judgment proof.” Also that he considered the appellee had “broken the law” and “should be punished.”

In an action for malicious prosecution, the burden is on the plaintiff to show that the defendant acted maliciously and without probable cause. Malvern Brick and Tile Co. v. Hill, 232 Ark. 1000, 342 S.W.2d 305 (1961). Only when the facts relied upon as constituting probable cause are undisputed, then the question becomes one of law and should not be submitted to the jury. Gazzola v. New, 191 Ark. 724, 87 S.W.2d 68 (1935); and Whipple v. Gorsuch, 82 Ark. 252, 101 S.W. 735 (1907). However, appellant recognizes that where a factual dispute exists “it is generally for the jury to determine the truth and whether a justification is established” for prosecution.

The crux of § 41-3929 is not the existence of an intent to convert the property to the use of the bailee but the use of the property contrary to the agreement. Sullivant v. Pennsylvania Fire Ins. Co., 223 Ark. 721, 268 S.W.2d 372 (1954). In the case at bar, the conditions of the verbal bailment are in dispute. As indicated, the appellee took the car to show to his insurance agent and mechanic and “try the automobile out and show it to my wife.” It is true that he did not confer with his insurance agent or mechanic about the car. However, there was no particular time agreed upon as to when appellee would return the car on Monday. The car, having been damaged on Saturday, was returned, as requested, Monday morning. According to appellee, appellant did not limit the mileage and he could drive the car wherever he pleased. In the circumstances, the question as to whether appellee had deviated from the agreement was properly submitted to the jury.

Appellant next argues that the court erred in refusing to direct a verdict on the ground that appellant acted upon the advice of counsel in prosecuting this case. Appellant recognizes our well established rule that matters raised for the first time on appeal will not be considered. Even if we agree with the appellant that its motion was sufficiently presented to the trial court, we cannot agree with its contention. This is so because, as appellant recognizes, a full and complete disclosure of the facts must be made. Hall v. Adams, 128 Ark. 116, 193 S.W. 520 (1917). As indicated, there was a factual issue between appellant’s and appellee’s version of the bailment.

Appellant finally asserts that appellee failed to prove that appellant acted with malice, which is a necessary element in a malicious prosecution cause of action. We have held that “. . . . malice may be inferred when there is lack of probable cause, even though there was no express showing of malice.” Malvern Brick and Tile Co. v. Hill, supra. Furthermore, as previously stated, in determining the sufficiency of the evidence, we must view the evidence in the light most favorable to appellee. Appellee testified that when appellant’s manager learned about the damaged car, the manager expressed a fear of losing his job. Then he attempted to get appellee to sign a postdated rental agreement in order to have appellant’s insurer pay for the damage. According to appellee, appellant’s manager knew that appellee was moving to Memphis and he contacted appellee only once before appellee moved. During that last conversation in Little Rock, the parties talked about the damage to the car and appellant again asked appellee to sign the postdated rental agreement. When asked why the criminal action was instituted, appellant’s manager answered “[B]ecause he had broken the law and as far as I could see he should be punished.” Appellant’s manager did not think that it was “in the best interest of the company” to file a civil suit because he thought “the man was judgment proof.” Appellee testified that appellant’s manager told him the charges would be dismissed if appellee would pay the damages. Certainly, there is substantial evidence from which the jury could find the necessary element of malice.

Affirmed.


author: Allan W. Horne, Special Chief Justice.

text:
    James R. MALLORY, Theola MALLORY and Carolyn MALLORY v. Nancy EDMONDSON, as Guardian of the Person and Estate of Nancy MALLORY, and Nancy EDMONDSON, Individually
    74-292
    521 S.W. 2d 215
    Opinion delivered March 31, 1975
    [Rehearing denied May 5, 1975.]

      Brockman, Brockman & Gunti by: E. W. Brockman, Jr., for appellant.

      James L. Hall, Jr., for appellee.
   Allan W. Horne, Special Chief Justice.

This is an appeal from an Order of the Jefferson County Chancery Court adjudicating custody of Nancy Mallory, an adult incompetent person, and ordering Appellants to return Nancy to Appellee, her grandmother and guardian of her estate and person, and from whose custody Appellants had forceably taken Nancy. Appellants James H. Mallory and Theola Mallory are Nancy’s parents and Carolyn Mallory is her sister. At issue here is whether the Chancery Court had jurisdiction over the Appellants and Nancy for the purpose of adjudicating custody and whether the Court’s Order in awarding custody to Appellee is supported by the evidence.

Nancy, who at the time of the trial of this case was approximately 31 years of age, was the unfortunate victim of two automobile accidents from which she received serious and permanent injuries. The first accident occurred in 1949 when she was 7 years old and the injuries she received therefrom resulted in crippling injuries and permanent, brain damage which left her retarded and mentally incompetent. The second accident occurred in 1963 and resulted in further permanent, crippling injuries. For many years she has been unable to feed or bathe herself, move about or otherwise care for her bodily needs.

Prior to the 1949 accident, Nancy had from time to time lived with her grandmother and during one period of time while her father was in the military service, resided with Appellee for a period of almost three years, part of which time Nancy’s mother also resided in Appellee’s home. After the first accident, Nancy was hospitalized in Memphis, Tennessee where she was treated by a brain specialist, and because of the close proximity of Appellee’s home in Pine Bluff, it was decided to leave her with Appellee to continue Nancy’s care and treatment by the Memphis physician. What was probably at the time thought by all parties to be a temporary arrangement became permanent for Nancy was destined to live the next 23 years with her grandmother who willingly and devotedly accepted the heavy responsibility of Nancy’s care and custody.

In 1963, in connection with the settlement of the second automobile accident in which Nancy was injured, Appellee was appointed guardian of the estate and person of Nancy by the Jefferson County Probate Court. Nancy’s parents consented to such appointment and, in writing, waived notice of the appointment of Appellee as Nancy’s guardian. (The Chancellor found that the parents had consented to the appointment of Appellee as Nancy’s guardian for all purposes and not just for the settlement of the accident case). Although there is some dispute as to the length and frequency of visits, it appears that Nancy’s parents visited her in Appellee’s home from time to time and that Nancy was taken to Appellants’ home in Kentucky for visitation for periods ranging from one to three months a year. However, it is undisputed that, with the exception of such visits, Nancy lived with Appellee from 1950 to June 16, 1973 when Nancy, over the objection of Appellee, was forceably removed from Appellee’s home by Appellants and taken by automobile to Appellants’ home in Russellville, Kentucky.

The Appellee filed this suit in her capacity as guardian of the estate and person of Nancy and individually praying that she be awarded compensatory and p unitive damages for bodily and mental injury allegedly inflicted upon her in the course of the taking of Nancy from her home and that Appellants be ordered to return Nancy back to her care and custody.

In response thereto Appellants, appearing specially to contest the Court’s jurisdiction, filed a Motion to Quash the Service of Process upon them on the ground that they were non-residents of the State of Arkansas and had not been served while in this State. Upon the Court’s overruling their Motion to Quash, Appellants, preserving the jurisdictional question, filed their Answer in which they denied: that they took Nancy by force and violence or that they had inflicted any bodily harm or injury to Appellee; that the Appellee is the legally appointed guardian of Nancy; that they consented to the appointment of Appellee as Nancy’s guardian; that Appellee is a proper person to have Nancy’s custody on the ground that Appellee is not physically able to care for and maintain Nancy. They affirmatively alleged that they and Nancy are non-residents of the State of Arkansas and are domiciled in and residents of Russellville, Kentucky and that the Court does not have jurisdiction of the Appellants or of Nancy; that the Complaint erroneously joins an individual tort action in a custody proceeding; that Appellant James R. Mallory, Nancy’s father, was appointed Nancy’s guardian in Kentucky in 1950 which guardianship is still in full force and effect; that James R. Mallory was also appointed Nancy’s guardian in Kentucky on August 31, 1974, which guardianship is in full force and effect; that Appellant James R. Mallory and Theola Mallory are entitled to Nancy’s custody and are physically and financially better able to care for her than Appellee. There were numerous other pleadings, motions, allegations, and charges but the above summarizes the essential facts and pleadings.

From an Order of the Chancery Court finding against Appellants on the jurisdictional question and awarding custody to Appellee with specified visitation privileges to Appellants, Appellants bring this appeal. (The Chancellor held that a cause of action brought by a fiduciary cannot be joined with a cause of action brought in an individual capacity and that the Chancery Court had no jurisdiction to hear and determine an unliquidated tort claim. Neither party raised either of these issues on appeal and, hence, they are not before the Court).

For reversal Appellants rely on the following points:

I. The Chancery Court of Jefferson County, Arkansas lacked jurisdiction of the Appellants, James R. Mallory, Theola Mallory and Carolyn Mallory, and of the person of the ward, Nancy Virginia Mallory.
II. There is no testimony to deprive the natural parents of the custody of their adult daughter and ward.

I. Service of process was had upon the Appellants in accordance with the provisions of Ark. Slat. Ann. § 27-339.1 which provides in pertinent part as follows: “Any cause of action arising out of acts done in this State by an individual in this State or by an agent or servant in this State of a foreign corporation may be sued upon in this State, although the defendant has left this State, by process served upon or mailed to the individual or corporation outside the State.”

Appellants argue that the statute applies only to tort actions and not to an action of the nature of the case at bar. We find no case where the statute has been previously construed by this Court. However, as we construe the statute it is not restricted to tort actions. We unhesitantly hold that the acts of Appellants coming into Arkansas, a state where Nancy has lived with their consent for over 20 years, and forcefully and against the will of her legal guardian, removing her from the state creates a cause of action in favor of Appellee as guardian. The statute is constitutional. See Wichman v. Hughes, 248 Ark. 121, 450 S.W. 2nd 294 (1970) and cases therein cited.

The Chancellor also held that the Court had jurisdiction of Nancy for the purpose of determining her custody even though she was not then present in this state and we agree. The Restatement of the Law states that there are three bases upon which jurisdiction may be laid in custody cases. Restatement, Second, Conflict of Laws, (1971), Sec. 79 reads as follows:

“A state has power to exercise judicial jurisdiction to determine custody, or to appoint a guardian, of the person of a child or adult
(a) who is domiciled in the state, or
(b) who is present in the state, or
(c) who is neither domiciled nor present in the state, if the controversy is between two or more persons who are personally subject to the jurisdiction of the state.”

In Shaw v. Shaw, 251 Ark. 665, 473 S.W. 2d 848, (1971), it was held that each of the above bases provides a reasonable basis for jurisdiction in a proper case. In the case at bar we find that the ward was domiciled in this state for the following reasons: she has resided in this state for over 20 years; her guardian who stands in loco parentis to her is domiciled in this state. It is further pointed out that the third basis of jurisdiction noted by the Restatement, i.e., if the controversy is between two or more persons who are personally subject to the jurisdiction of the state, is present in this case inasmuch as we have held that the Court had personal jurisdiction of Appellants as discussed above.

To hold that this state does not have jurisdiction to determine Nancy’s custody because she is no longer present in this state would be tantamount to approval of Appellants’ action in wrongfully removing her from her guardian’s custody and to encourage self-help in similar cases. This we decline to do.

II. The Chancellor’s award of custody to Appellee gives us more difficulty. We quote in part from the lengthy and well-reasoned opinion of the Chancellor.

“The facts of this case are different from any case that this Court has ever heard. There appears to be a paucity of cases with similar facts. Nancy has been in the plaintiff’s home for most of the time since 1950, visiting occasionally in the home of defendants. In December, 1963, with a waiver of notice having been properly executed by Defendants James R. Mallory and Theola Mallory, the plaintiff was appointed guardian of the person and estate of Nancy by the Probate Court of Jefferson County. She was the legal guardian of Nancy at the time that the defendants forceably removed the ward from plaintiff’s home.
“The Court, in striving to arrive at a just and equitable decision, has considered several relevant factors. Factors tending to support the defendants’ position are:
(1) They are the natural parents and sister of the incompetent.
(2) They are younger than plaintiff and would probably be more able to personally care for Nancy than the legal guardian.
(3) The family would be reunited.

“Factors tending to support plaintiff’s position are:

(1) The plaintiff has had the physical custody of Nancy for most of the time since 1950. The natural parents have consented to the arrangement whereby their daughter has made her home with plaintiff over twenty years.
(2) The plaintiff has been Nancy’s legal guardian since December, 1963, this appointment having been made with the knowledge and consent of Defendants James R. Mallory and Theola Mallory.
(3) The plaintiff appears to have given Nancy constant and attentive care during the entire time the incompetent has resided in the home of this party.
(4) As legal guardian and pursuant to Ark. Stats. 57-625, the plaintiff was ‘entitled to the custody of the ward.’ The defendants had several legal remedies available to them to obtain the custody of Nancy, but instead of pursuing one of these remedies, they took the law into their own hands and forceably removed this incompetent from the home of her legal guardian and fled the State.
(5) Even though certain physical infirmities of the plaintiff has made it more difficult for her to minister to the needs of Nancy as she once did, the evidence reflects that Mrs. Edmondson, as the legal guardian of Nancy, is holding assets in excess of $6,000.00 that belongs to her ward. This account could be used to hire someone to assist on a part-time or full time bases.”

There is evidence that the Appellee who with her husband is over 80 years of age, is deteriorating physically and has some trouble seeing. On the other hand, James R. Mallory is suffering from advanced stages of emphysema and asthmatic condition and there was some doubt as to whether he would be physically able to make the trip to Arkansas in order to attend the trial of this cause. There is evidence that Nancy’s mother, Theola, has herself been ill and was hospitalized for significant health reasons on several different occasions in 1965, 1967, 1969 and 1970. Other examples of balancing factors affecting a decision as to the proper person to have Nancy’s custody could be cited. While we may have decided the case differently had we been the Chancellor, our reasons for not substituting our judgment for the Chancellor’s in this case are well stated in Stevenson v. Stevenson, 237 Ark. 724, 375 S.W. 2d 659 (1964) where we said:

“During the hearing the perceptive Chancellor had the opportunity to fully appraise the witnesses and their testimony. Appellant vigorously contends that the Chancellor erred in awarding custody of the children to the father, but there was estimable evidence which supported the able Chancellor’s conclusion, and we have said, consistently and frequently, that we will not reverse the findings of the Chancellor unless such findings are against the preponderance of the evidence.”

In recognition of the finding by the Chancellor that “because of Plaintiff’s age, the time is not far removed when another custodial arrangment will, out of necessity, have to be worked out for Nancy,” the Court retained jurisdiction of the case for the purpose of entering appropriate orders in the future relative to Nancy’s welfare. We would echo the Chancellor’s statement and emphasize that the Appellants are always free to petition the Court for a modification of the custody decree upon a showing of changed circumstances. Stevenson v. Stevenson, supra.

Affirmed.

Byrd, J., Dissents.

Harris, C.J., not participating.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    MISSOURI CITY STONE, INC. and HARTFORD INSURANCE GROUP v. Jerry PETERS
    74-323
    521 S.W. 2d 58
    Opinion delivered April 7, 1975

      Daily, West, Core & Coffman, for appellants.

      Floyd G. Rogers and Hardin, Jesson & Dawson, for appellee.
   Carleton Harris, Chief Justice.

The question here presented is whether the finding of the Workmen’s Compensation Commission should be sustained, the commission finding that the compensation statutes of Arkansas apply to an injury sustained by Jerry Peters, appellee herein, in the State of Oklahoma. Appellants, Missouri City Stone, Inc. and Hartford Insurance Group, are paying claimant under provisions of the Oklahoma Workmen’s Compensation Act, but controvert any payments, under the Arkansas act. The question of percentage of disability is not involved, it being recognized that the disability is permanent and total, irrespective of which state act applies. Peters was injured in a rock quarry accident at Wilson’s Rock Oklahoma, located approximately 15 miles from Fort Smith, Arkansas. Peters suffered a crushed face and severed spine in the accident and is permanently paralyzed from the waist down. It might be here stated that payment of maximum benefits under the compensation law of one state does not bar an employee from asserting a subsequent claim under the Workmen’s Compensation Law of a sister state unless the law of the first state so declares. That situation does not exist in the claim at issue. McGehee Hatchery Co. v. Gunter, 234 Ark. 113, 350 S.W. 2d 608. Of course, there can be no double recovery; only the difference by which the second award is greater than the first may be recovered. McGehee Hatchery Co. v. Gunter, supra.

In International Paper Company v. Tidwell, 250 Ark. 623, 466 S.W. 2d 488, we pointed out, that whether the Arkansas Workmen’s Compensation Law can be applied where the claimant is injured in another state, is a mixed question of law and fact; that as to factual determinations, the findings of the commission are binding upon the courts if there is any substantial evidentiary support, and that we must accept that view of the facts which is most favorable to the commission’s findings. Still further, that where fair-minded men might honestly differ as to the conclusion to be drawn from facts, either controverted or uncontroverted, the drawing of inferences and reaching of conclusions are for the commission, and not the courts. In Tidwell, the commission found it had jurisdiction because appellee was a citizen and resident of Arkansas both prior to and at the time of his injuries, was paid in Arkansas under the supervision of appellant’s Arkansas office, and the contract of employment was entered into in this state._

The commission, in reaching its conclusions in the case now before us, quoted from Tidwell as follows:

“When we consider the interest that this state has in the welfare of its residents, in minimizing the likelihood of their becoming public charges or objects of local charity, in having a procedure for a remedy readily available to its residents, and in securing compensation to physicians and hospitals in Arkansas which might not otherwise be available to a claimant, we cannot say that reason and logic require a different approach to a liberal construction of our statute because of these limited dissimilarities, in spite of the fact that a different result has been reached in other jurisdictions, and the fact that the injury might be compensable under the laws of another state.”

The commission then proceeded to enumerate the facts upon which it predicated its decision and concluded:

“Arkansas has a legitimate interest in the welfare of the claimant and in minimizing the likelihood of his becoming a public charge or object of local charity, and in having a procedure for remedy readily available to him, and in securing compensation to physicians and hospitals in Arkansas which might not otherwise always be available to him.”

Peters was allowed compensation benefits at the rate of $49.00 per week, being the maximum benefit that he was eligible to receive under the Arkansas Workmen’s Compensation Law, appellants to receive credit for payments made under the Oklahoma Workmen’s Compensation Law. From such award, appellants appealed to the Circuit Court of Sebastian County, and that court affirming the commission award, appellants appealed to this court. For reversal, it is asserted that there is no substantial evidence to support the commission’s findings, and that the findings do not support the award, points of a similar nature which will be discussed together.

On August 28, 1970, Peters went to the Employment Security Office in Fort Smith, seeking employment and that office, having previously received an order from the Missouri City Stone Company for a truck driver on a river job at Wilson’s Rock in Oklahoma, referred Peters to the job. Peters went to the jobsite and was interviewed by Elmer Partain, Missouri Job Superintendent, who advised him that there were no jobs open at that time but to leave his name, address, and phone number with the head mechanic. A few days later, there was a vacancy for a water truck driver and Partain telephoned Peters that he had this job open. Peters received the telephone call in Alma around 8:00 P.M. at the home of a neighbor, accepted the employment, and reported to the job-site the next day. Thereafter, Peters continued to reside in Alma and commuted to and from the jobsite each day. In the meantime, Partain had made arrangements with Holt-Krock Clinic in Fort Smith to furnish ambulances and doctor services for anyone who might be injured on the job. After the explosion, and injury of Peters, the latter was taken to Sparks Hospital in Fort Smith, where, according to Partain, the company had “set up” with the doctors. Employees on the job were paid by check out of a Fort Smith bank.

Partain, a permanent resident of Little Rock, testified that upon completion of the Oklahoma job, the company had a job to do in Little Rock; that the services of Peters being satisfactory, the latter was offered a job when the crew moved to Arkansas. The company had no permanent offices in Oklahoma (only a portable field office being maintained at the jobsite), but does have an office at Sweet Home, Arkansas, near Little Rock, the company purchasing the property there in 1968. It does not appear that this office is maintained the year-round, and while there is an office phone, there is no answering service. A shop on the property is used to maintain equipment and trucks. Partain testified that there were three employees on the Oklahoma job from Arkansas. Some other findings considered favorable to appellee were made by the commission, but inasmuch as evidence is not entirely clear on such points, we omit them from this discussion.

Of course, the underlying question is whether the Arkansas Workmen’s Compensation Commission had jurisdiction to make any finding or award. Appellant company is foreign to both Oklahoma and Arkansas, being a Missouri corporation. The commission found that Arkansas did have sufficient contacts with the claimant in order to apply its compensation laws, and in accordance with the principles set out in Tidwell, it must be remembered that where fair-minded men may honestly differ as to the conclusion to be drawn from facts, the drawing of inferences and reaching of conclusions are within the province of the commission. When viewed in this light, we think the evidence substantial that there was a significant relationship with Arkansas.

Professor Arthur Larson presents an excellent discussion of Workmen’s Compensation Laws as they are involved in Conflicts of Laws in 6 Duke Law Journal 1037 (1971), the article being entitled “Constitutional Law Conflicts and Workmen’s Compensation.” Therein, Professor Larson states:

“The conflicts problem in compensation law, as stressed at the outset, is normally not a choice-of-law question at all, since the forum can apply only one statute, that of its own state, and there is thus no occasion or opportunity to engage in a choice of law. The only ‘choice’ the forum has is to grant relief under its own statute or to deny relief altogether. With that pair of alternatives, it is easy to see why some substantial interest should suffice, without worrying about its relative weight when compared with the interests of foreign states.”

He further points out that working uniformity could not be achieved without a simultaneous amendment of all state statutes so that each is a perfect complement of the other, and then says:

“The achievement of such statutory coordination is, of course, entirely improbable; but even if it were possible, there is serious doubt whether the states would find it desirable. The low-benefit states might fear that the operation of a uniform rule would put unpredictable high-benefit burdens on its employers, while the high-benefit states might fear that in certain combinations of facts employees in whom they have an interest would get an unacceptably low level of compensation.
“The only uniformity to be looked for, then, is the uniform right of all states having a legitimate interest in the injury to apply their own diverse rules and standards - separately, simultaneously or successively.”

While some of the items heretofore enumerated bear no particular weight, we think that the overall evidence reflected ample facts to support the award. Of course, there are factual differences between this case and Tidwell, but that itself is of no great moment since the factual background of this type of case will rarely be the same. The most important fact of all is that Peters was a resident of Alma, Arkansas at the time he became employed by Missouri City Stone, Inc. and is still a resident of this state. His ties to Arkansas were demonstrated by the fact that he daily commuted to and from the jobsite. It might also be mentioned that any unemployment benefit to which Peters might be entitled, prior to his injury, because of lack of employment, would have been administered in Arkansas. And, of course, this state is interested in minimizing the likelihood of one of its citizens becoming a public charge or an object of local charity. It is obvious, if Peters should become devoid of financial resources, which state, or its citizens would have the responsibility of taking care of him.

Affirmed.

Fogleman and Jones, JJ., concur.

Byrd, J., dissents.

John A. Fogleman, Justice,

concurring. I concur in the result, but I consider the language of the opinion to state a new concept of jurisdiction, differing from that upon which we based our finding that there was jurisdiction in International Paper Company v. Tidwell, 250 Ark. 623, 466 S.W. 2d 488. The policy reasons given there for construing the statute liberally in favor of jurisdiction did not become, either singly or collectively, a factual basis for the exercise of jurisdiction in Arkansas. They were nothing more than they purported to be — policy reasons for a liberal construction. I submit that the fact that Peters was at all times a resident of Arkansas cannot confer jurisdiction on our commission. Neither can the securing of compensation to Arkansas physicians and hospitals. Nor can the combination. We did not, and should not, under our statute, adopt the rule advocated by Prof. Larson, i.e. that some substantial interest should suffice. If it should, the General Assembly, not this court, should say so.

It was clearly established in Tidwell that there must be a statutory basis for the entertainment of a claim, and without it, a claimant is left either to a common law remedy or to the compensation laws of the state in which the injury took place. There was no coverage here or in Tidwell, insofar as the Arkansas law is concerned, except for employment carried on in this state. It cannot be otherwise. See Ark. Stat. Ann. § 81-1302 (c) (Repl. 1960). It is interesting to note, as we did in Tidwell, that Prof. Larson notes six grounds upon which applicability of a particular compensation act has been asserted. One of these is the place where the employee resides. But he was not sure that a state could apply its statute on that ground under federal constitutional limitation. He did feel sure that a state was free to apply its laws if it was the place where the injury occurred, where the contract was made or where the employment relation exists or is carried out.

Still, we approach this matter and the Workmen’s Compensation Commission did, with a prima facie presumption that the Commission had jurisdiction. Ark. Stat. Ann. § 81-1324 (Repl. 1960) and we did not, as appellant suggests, hold differently in Duke v. Pekin Wood Products Co., 223 Ark. 182, 264 S.W. 2d 834. This means to me that the mere filing of a claim makes out a prima facie case of jurisdiction, which is sufficient unless the respondent brings in evidence sufficient to rebut the presumption. Barnhart, Use of Presumptions in Arkansas, 4 Ark. L. Rev. 128, 132; Continental Gin Co. v. Benton, 104 Ark. 367, 149 S.W. 528; Nunez v. O.K. Processors, 238 Ark. 429, 382 S.W. 2d 384. See also, Hollenberg v. Lane, 47 Ark. 394; Cartwell v. Menifee, 2 Ark. 356; Craig v. Sims, 160 Ark. 269, 255 S.W. 1; IX Wigmore on Evidence (3d Ed.) 293, § 2494. The situation is not unlike that arising in a civil case where the burden of showing want of jurisdiction lies upon a party moving to dismiss for want of jurisdiction. Arkansas Land & Cattle Co. v. Anderson-Tully Co., 248 Ark. 495, 452 S.W. 2d 632.

As I see it, it was not shown by appellant that the commission did not have jurisdiction. The commission held that it did and reached the following pertinent conclusions:

As we review the facts in this case we find that the claimant is a resident of Alma, Arkansas, and was a resident of that city in August of 1970. On or about August 28, 1970, the claimant went to the Fort Smith, Arkansas, Employment Security Division Office seeking employment. This office had already been advised by the respondent of certain employee needs. The claimant was directed by the Fort Smith Employment Security Office to the job site in Oklahoma. The claimant met the Superintendent of the respondent at the site, was interviewed and an application taken, but the claimant was advised that there was no opening at that particular time. The respondent noted the claimant’s phone number and address in Alma, Arkansas, and a few days after the interview the Superintendent of the respondent called the claimant and asked him if he was still interested in the job. The claimant replied that he was and the claimant was told to report to work and that he would be put on the water truck. In response to this telephone call the claimant reported to the job site in Oklahoma and was employed by the respondent.
Claimant continued to reside in Alma, Arkansas, and commuted to and from the job site each day. When the claimant was injured he was taken from the job site to a Fort Smith hospital by a Fort Smith ambulance and treated exclusively by the Fort Smith, Arkansas, physicians.
Payroll checks to the claimant were drawn on a Fort Smith, Arkansas, bank. There was also testimony that the Workmen’s Compensation claim of the claimant is being serviced out of Little Rock, Arkansas, office of the respondent as opposed to an Oklahoma office.
The claimant accepted employment for a temporary job in Oklahoma and was later offered full time employment with the company in Arkansas.
The respondent, Missouri City Stone, is a Missouri corporation with its main office in Dallas, Texas, and its parent company, Markham and Brown, is a Texas corporation with its offices in Dallas. Missouri City Stone had only one project in Oklahoma and that was the project where the claimant was injured. Missouri City Stone maintained only a temporary trailer which served as an office at the site in Oklahoma, but maintains a permanent office in Sweet Home, Arkansas, near Little Rock, Arkansas, upon property owned by it. The respondent owns no property in Oklahoma.
The testimony in the case reveals that the Superintendent of the respondent on the Oklahoma job maintains his home both before and after the accident in Little Rock, Arkansas. The evidence further reveals that employees of the Missouri City Stone on the project in Oklahoma were Arkansas residents who worked in Arkansas before and after this accident for the respondent.

The commission might have added that most of the work of appellant which had been performed under its general superintendent had been done in Arkansas; that, in addition to being a shop, the field office in Little Rock affords a place where the company payrolls are made; the checks for the payroll on the Oklahoma job were made out in Fort Smith, Arkansas; and that appellant had been domesticated in Arkansas.

This case is similar to Tidwell in that the employer was localized as a resident and the employee was at all times a resident. The only possible distinction is the place where the contract was entered into. I do not believe that appellant introduced sufficient evidence to overcome the prima facie presumption. Peters testified that he accepted the job at his home, when he was called there by appellant’s general superintendent by telephone. The place of making of the contract was at least a question of fact. A contract is entered into at the place where the offer is accepted and when made by telephone, it is regarded as made at the place from which the accepting party speaks. 17A CJS 352, Contracts § 356; 17 Am. Jur. 2d 392, Contracts § 53.

There was not sufficient evidence to overcome the prima facie presumption of jurisdiction and, to say the least, there was substantial evidence to support the finding.

      At that time, the Arkansas act provided for a maximum weekly payment of 549.00, while the Oklahoma act only provided for payments of 543.00 per week; also, the Oklahoma act has a ceiling, while Arkansas has no ceiling in cases of permanent disability.

      It is not entirely clear whether Partain made this call from Wilson’s Rock or Fort Smith, but we do not consider this fact as being particularly pertinent to the issue at hand.

      Peters testified that he had intended to go to Little Rock on the job offered.


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    ORKIN EXTERMINATION COMPANY, INC. v. Albert R. WEAVER
    74-311
    521 S.W. 2d 69
    Opinion delivered April 7, 1975
    [As Amended April 21, 1975.)
    [Rehearing denied April 28, 1975.|

      Coleman, Gantt, Ramsay & Cox, for appellant.

      Bairn, Bairn & Mullís, for appellee.
   George Rose Smith, Justice.

The appellant Orkin is engaged in the pest control business in many states. The appellee Weaver worked for Orkin, as a sales and service representative, from 1965 until he was discharged in 1973 for having failed to file reports of his calls upon customers. Within a week Weaver re-entered the pest control business, in partnership with another former Orkin employee. Orkin then brought this suit to enforce, by injunction, a provision in Weaver’s contract of employment by which he agreed not to engage in the pest control business in certain areas for a period of two years after the termination of his employment by Orkin. The chancellor denied relief, finding the contractual provision to be invalid. We agree with his decision.

Inasmuch as Orkin relies upon our holding in Orkin Exterminating Co. v. Murrell, 212 Ark. 449, 206 S.W. 2d 185 (1947), we may conveniently use that opinion as a basis for our discussion of this case. There Murrell had resigned as the manager of Orkin’s Little Rock office and had gone into the pest control business for himself. Murrell’s contract, as compared to Weaver’s, was less restricted as to time — one year instead of two years — but was broader as to territory. We sustained the contract, upon proof that trade secrets, special training, confidential information, and access to lists of customers were involved. We need only compare the facts in the Murrell case to the facts in this case, which are practically undisputed.

First, trade secrets and confidential information. More than 25 years ago, when Murrell was decided, there may have been such esoteric data, but according to the present record that condition no longer prevails. Training in the field is available at the college level, in Arkansas. Technical manuals upon the subject can be purchased. The Arkansas Association of Pest Control is a source of information to its members. The pesticides used in the business are available upon the open market to the public in general. Federal law requires that directions for their use be set forth on the label. The witness Henry, who was Orkin’s manager when Weaver was discharged, testified:

Q. Now, in your opinion, while this man was an employee of yours at Orkin Exterminating Company, did he have access to any trade secrets?
A. Really, I don’t believe you would call them trade secrets. It was just information that the company felt should be kept confidential. But information that if you wanted to research all facilities that are available you could come up with it.
Q. Not information that Orkin and Orkin alone had, is that correct?
A. That’s right.

In Rector-Phillips-Morse v. Vroman, 253 Ark. 750, 489 S.W. 2d 1 (1973), we held that such information — “confidential” in the sense that no company voluntarily opens its records to its competitors — is not secret information in a case such as this.

Next, the matter of special training. Weaver worked for Orkin for more than seven years, during which he attended four or five training schools. He testified: “I wouldn’t call it special training. I mean, if you have been to one meeting you have been to all of them. ” That testimony is not contradicted. There is nothing to suggest that Orkin did anything more than train its own employees, as a matter of self-interest, to be proficient in their jobs. There is no proof that similar training was not readily obtainable elsewhere.

Finally, in Murrell we stressed the former employee’s “access to all records, customers’ lists and credit ratings.” Murrell, however, was a branch manager and as such had access to all records in the office. By contrast, Weaver was a route man who was familiar only with the list of some 250 customers that he serviced every month. That familiarity was essential to the performance of his duties. Orkin’s witness Richardson, its Pine Bluff manager at the time of the trial, readily admitted that he could not think of any salesman for any company in the United States who did not have contact with customers.

In Murrell we noted that Orkin’s former employee solicited and procured “a large number” of its best customers. In the case at bar Orkin proved that it had between 702 and 850 customers who subscribed to its monthly pesticide service, plus 4,000 subscribers to its annual termite service. In its case in chief Orkin proved that Weaver obtained exactly one of its customers after he left Orkin (but it was shown later in the case that the customer in question was not even in the area protected by the contract). Weaver readily admitted, in response to questions by his own attorney, that he was servicing 18 persons or firms that “might” have been Orkin’s customers. Thus the proof at the time of trial, almost a year after Weaver’s discharge, was that he had obtained at most 18 out of the 702 monthly customers that Orkin had. Orkin’s manager admitted, however, that the company lost about 40% of its customers every year, by normal attrition.

The basic flaw in Orkin’s position is that its contract, according to its own proof, is directed not against unfair competition but against competition of any kind on the part of its former employees. Upon this point Orkin introduced its current manager, Richardson, who explained the reason for the contract, in these words:

The main reason is, you take a man, you train him in the business, you send him out to service a customer, and they develop a personal contact with the customers, personal relationships, then should they leave for any reason and go in a business of their own they still have this personal contact which means that they have the ability, the opportunity to take a customer from us as their own.

Orkin’s other witness, its former manager, Henry, testified:

Q. And this agreement was strictly an agreement that was to, in your opinion, hold down competition by former salesmen and former employees, is that correct?
A. I believe that’s absolutely the only reason for it.
Q. It had nothing to do with the trade secrets and confidential information?
A. No, sir.

Precisely the same point of view is urged in Orkin’s brief in this court: “. . . preventing a former employee from competing against his employer and using the training, skills and information acquired from his employer is a valid reason for restriction.”

If Orkin’s position is sound, then any employer in any business devoted to selling — whether the sales be of insurance, real estate, clothing, groceries, hardware, or anything else — can validly prohibit its former salesmen from engaging in that business within the vicinity for as long as two years after the termination of employment. Needless to say, the law does not provide any such protection from ordinary competition. Vander Werf v. Zunica Realty Co., 59 Ill. App. 2d 173, 208 N.E. 2d 74 (1965); Renwood Food Products v. Schaefer, 223 S.W. 2d 144 (Mo. App., 1969); Grace v. Orkin Exterminating Co., 255 S.W. 2d 279 (Tex. Civ. App., 1953); Lakeside Oil Co. v. Slutsky, 8 Wis. 2d 157, 98 N.W. 2d 415 (1959); Herbert Morris, Ltd. v. Saxelby, [1916] A.C. 688, Ann. Cas. 1916D, 537.

Orkin also relies upon a paragraph in the contract which recites that if a court should find the territorial restrictions to be unreasonable, then the restrictions are to be limited to any portions of the entire territory that were worked by the employee during any period of 90 days or more within the last twelve months preceding the termination of the agreement. We need not discuss this point, because of the invalidity of this contract is not due only to the territorial restrictions. (And see Rector-Phillips-Morse v. Vroman, supra.)

Finally, after studying the language of the contract we cannot say that the chancellor was wrong either in awarding Weaver two weeks’ separation pay or in denying him two weeks’ vacation pay.

Affirmed on direct and cross appeal.

Harris, C.J., not participating.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. Since I feel that the majority has unduly limited the legitimate area of protection by a covenant not to compete, I must dissent. I do not consider the distinctions made between this case and Orkin Exterminating Co. v. Murrell, 212 Ark. 449, 206 S.W. 2d 185 to afford adequate basis to justify failure to apply its principles.

The “trade secrets” or confidential information involved here is far different from that in Rector-Phillips-Morse v. Vroman, 213 Ark. 750, 489 S.W. 2d 1. There this court said that a trade secret may be defined as a secret formula, method, or device that gives one an advantage over competitors. Admittedly, Orkin’s confidential technical manuals told its sales and service personnel how to service its customers. An Orkin employee taught Weaver procedures. Confidential technical bulletins prepared by Orkin’s research and development section disseminated among its employees disclose the latest ideas and recommendations of the employer in treating procedures and on chemicals that can or cannot be used in particular areas. The chemicals are not specifically found on the market, but since federal law requires that the ingredients be shown on a label, an employee could learn which chemicals to buy on the open market in order to provide service to a customer. Orkin has patent rights, not on the chemicals, but on the mixtures. One can buy the chemicals that go into Orkin’s mixtures but not the mixtures.

To operate successfully in the pest control business, one must have a working knowledge of the problems that could be encountered in a particular business being served, of the various insects that might be anticipated, how they multiply, where and how they hibernate, the areas to be searched, the particular chemical to be used to treat the specific infestations found, the strength to be achieved by mixing chemicals, and the types of areas in which applications should or should not be made. All these techniques, chemicals and application procedures are kept confidential. Weaver did have access to all Orkin’s mixtures of chemicals, methods of application and techniques, all of which were confidential.

Weaver attended four or five statewide school sessions. The information he received there was confidential. He admits that 90% of his training came from Orkin.

Weaver named 18 concerns as some of the customers he now services who were once customers of Orkin, but said that he was not completely sure about them. He was sure that he serviced customers that were once those of Orkin. His wife did actively solicit some of them. He testified that he did not solicit them “directly”. The strange coincidence of Orkin’s customers requesting service by Weaver might be explained by his across-the-coffee type method of saying that he was in business for himself, instead of just walking up to the customers and saying, “Can I have your business?”, which he said he did not do.

It seems to me that the competition against which Orkin sought to protect itself in this action was unfair. It also seems to me that the manner in which Weaver became a competitor is worthy of consideration. His present partner, Majors, was also a former Orkin employee who left Orkin shortly before Weaver was fired. Weaver, after having worked for Orkin for 7Vi years, and with full knowledge that his employer required the filing of daily reports, was terminated for failure to file them for a two week period. Within two or three days, he was associated with Majors, first with another company and then in a partnership. All his work was in Pine Bluff and southeast Arkansas. He was in direct competition with Orkin.

While Weaver had not had access to Or kin’s master customer list during the 7 Vi year period, he did become familiar with the customers on his own route list. The customers he did not “directly” solicit, but who contacted him “directly” knew him through Orkin. He simply professed to believe that his contract did not apply if he was fired.

Any information needed by a salesman could be obtained from the customer list. He could get the general customer list for the Pine Bluff area, by asking, at least about a specific individual. Pine Bluff, Rison, and from Sheridan to Helena and Stuttgart, constituted Weaver’s route. He received a list of customers on his route every day, consisting of 15 to 20 names each. Somehow he knew that Orkin had about 850 customers when he left.

I daresay this is the first such Orkin contract held invalid at the appellate level. See Grace v. Orkin Exterminating Co., 255 S.W. 2d 279 (Tex. Civ. App. 1953); Orkin Exterminating Co. v. Veal, 355 S.W. 2d 831 (Tex. Civ. App. 1962); Orkin Exterminating Co., Inc. v. Wilson, 501 S.W. 2d 408 (Tex. Civ. App. 1973); Orkin Exterminating Co. v. Wilson, 227 N.C. 96, 40 S.E. 2d 696 (1946); Orkin Exterminating Co. of Raleigh v. Griffin, 258 N.C. 179, 128 S.E. 2d 139 (1962); Orkin Exterminating Co. Inc. of South Georgia v. Mills, 218 Ga. 340, 127 S.E. 2d 796 (1962) See also, Thomas v. Orkin Termite Co., Inc., 222 Ga. 207, 149 S.E. 2d 85 (1966); Orkin Exterminating Co. v. Gill, 222 Ga. 760, 152 S.E. 2d 411 (1966); Rider v. Orkin Exterminating Co., 224 Ga. 145, 160 S.W. 2d 381 (1968).

While appellate review has been rendered more difficult because the contract is not abstracted, I do feel that Orkin had property rights in its mixtures, techniques, procedures, business secrets and research developments, and that they were entitled to have them protected. I cannot agree that only ordinary competition is involved here.

Insofar as the territorial restriction is concerned, I think ^ that, to say the least, the less restrictive area could easily be upheld, without the court making a contract for the parties. I do not think that the larger territory was unreasonable.

I would reverse the decree.


text:
    Ella Cox McELHANEY et al v. Virgil COX et al
    74-344
    521 S.W. 2d 66
    Opinion delivered April 7, 1975

      W. (¿. Hall, for appellants.

      Albertson and Boyd, by: Jim H. Boyd, for appellees.
   John A. Fogleman, Justice.

Appellants contend that the chancery court erred in allowing attorneys’ fees of $275.00 to appellees’ attorneys from the proceeds of a partition sale in this case. The action was commenced by a petition of appellees Virgil Cox and Clara Armstrong to quiet the title to the lands involved in them. Appellants Ella Cox McElhaney and Pearl Reeves answered and counterclaimed, alleging that they were tenants in common with appellees and that the property was not susceptible of division in kind, and asking that the lands be sold in partition, that the court award Ella Cox McElhaney taxes paid by her and interest thereon out of the proceeds of sale, and that, after payment of costs and a reasonable attorney’s fee, the balance be divided among the respective heirs according to their interests. Appellees responded, asserting that appellants had no interest in the property and asked that the counterclaim be dismissed. Appellants then filed a request for admissions. If these requests had been admitted, it would have been clearly established that appellees were tenants in common. Appellees, however, Filed an amended complaint alleging that it was amended by agreement of the attorneys for appellees and appellants, that the parties were tenants in common and that the property, not being divisible in kind, should be sold and the proceeds divided according to the interests of the respective parties. Appellees prayed that the court order a sale and divide the proceeds. No responsive pleading was thereafter filed by appellants.

On the 19th day of September, 1973, upon presentation of the amended complaint, the court entered an order directing the sale. No other pleading is mentioned in the decree. Prior to the entry of the decree, the attorney for appellants had advised one of the attorneys for the appellees that the proposed order was in proper form, except that it made no mention of reimbursement for taxes paid. The sale was held, reported and confirmed. The clerk of the court was its commissioner in making the sale. She filed a request for approval of her proposed distribution of the proceeds of sale, which included an item of $275 for attorneys’ fees.

The major thrust of appellants’ contention is that they, rather than appellees, instituted the suit and that Ark. Stat. Ann. § 34-1825 (Supp. 1973), the governing statute, requires that a reasonable fee be allowed to the attorney bringing the suit. They argue that since appellees first filed a petition to quiet title and appellants counterclaimed for partition, the allowance should have been to their attorney, not appellees’. They overlook the fact that the amended complaint stated a new and different cause of action and superseded the original petition to quiet title. Talkington v. Schmidt, 219 Ark. 333, 242 S.W. 2d 150; American Bonding Company v. Morris, 104 Ark. 276, 148 S.W. 519; Waters-Pierce Oil Co. v. Bridwell, 103 Ark. 345, 147 S.W. 64, Ann. Cas. 1914B 837. They also ignore the fact that the decree for partition was rendered on that amended complaint, without consideration of any other pleading. Under the circumstances there was no error in allowing a reasonable fee to the attorneys for appellees as the parties bringing the suit for partition.

Appellants also list, but do not argue, a point for reversal based upon the absence of a prayer by appellees for allowance of attorneys’ fees. Even if appellants have not waived this point for reversal by their failure to argue it, it is not well taken for at least two reasons. Appellants challenged the allowance by a motion, in which the lack of a specific prayer was not even mentioned, much less asserted as a ground. The issue cannot be raised for the first time on appeal. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W. 2d 848. Furthermore, the statute mandates the taxing of the fee as a part of the costs of the cause. Johnston v. Smith, 248 Ark. 929, 454 S.W. 2d 649. We have held that under the statute as presently written the fee should be assessed and taxed proportionately against all parties. Ramey v. Bass, 210 Ark. 1097, 198 S.W. 2d 835.

Costs are incident to all actions, and where the statute requires that they be awarded, and does not require a demand for their payment, the absence of a specific prayer for the allowance in any pleading filed by appellees is not fatal. See Jefferson County v. Philpott, 66 Ark. 243, 50 S.W. 453; Eddie v. Eddie, 138 Mo. 599, 39 S.W. 451; 20 CJS 261, Costs § 2; Arizona Cotton Ginning & Mfg. Co. v. Sims, 29 Ariz. 198, 240 P. 341 (1925). See also, Summerville v. North Platte Valley Weather Control District, 171 Neb. 695, 107 N.W. 2d 425 (1961).

The judgment is affirmed.

Byrd, J., concurs.