text:
    Bert WHEELER et al v. Fred D. AYERS
    5-6062
    486 S.W. 2d 527
    Opinion delivered November 13, 1972

      John B. Driver, for appellants.

      Laverty & Fancher, for appellee.
   Lyle Brown, Justice.

Appellee Fred D. Ayers brought this suit against Bert Wheeler and others to quiet title to several acres of wild and unimproved land in Newton County. The appeal is from the confirmation by the court of one, forty acre tract. For reversal it is alleged that appellee had no color of title.

The facts are undisputed. Appellee acquired a state deed to the disputed forty acres. That deed was dated in 1950 and purported to be based on a forfeiture for nonpayment of the taxes for 1942. Four years after appellee recorded his state deed, the county clerk of Newton County prepared and recorded a certificate which reflected in substance that the forty acres should not have been sold for the 1942 taxes because those taxes had in fact been paid. The following month the state land commissiofter executed a document cancelling the state deed. That cancellation was not made a matter of record in Newton County. The trial court found that appellee had no notice, actual or constructive, of the cancellation.

The crucial facts were stipulated, namely, (1) that appellee has paid the taxes under a good description continuously since 1951, and (2) that the tract is wild, unimproved and unenclosed. Payment of taxes for fifteen consecutive years creates a legal presumption that the taxpayer had color of title prior to the first payment of taxes. Ark. Stat. Anno. § 57-103 (Repl. 1962). Under the stipulated facts that statute served to vest title in appellee. Coulter v. O’Kelley, 226 Ark. 836, 295 S.W. 2d 753; Schmeltzer v. Scheid, 203 Ark. 274, 157 S.W. 2d 193; Greif Bros. v. United States Gypsum Co., 341 F. 2d 167 (1965); Jones’ Arkansas Titles (Varn’s Supp. 1959) § 1528.

It is true that the trial court did not invoke the fifteen year statute; however, it is our policy to affirm the chancellor if the chancellor’s conclusion is correct on other grounds and is supported by the record.

Affirmed.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Elizabeth Yates HARMON v. Jim HARMON
    5-6079
    486 S.W. 2d 522

      Opinion delivered November 13, 1972

      Rasmussen if Hogue, for appellant.

      Robert D. Ridgeway, for appellee.
   Lyle Brown, Justice.

This is an appeal from an award of custody of two small children to appellee Jim Harmon. The substance of the single point for reversal is that the finding is not supported by a preponderance of the evidence. (Appellee was granted a divorce, from which award there is no appeal).

Two girls were born to the union and at the time of trial they were of the approximate ages of seven months and three and one-half years. With respect to custody the chancellor conducted two lengthy hearings and heard the testimony of more than twenty witnesses. The court entered a temporary custody order at the conclusion of the first hearing. The court said “there was sufficient testimony to indicate a possible unfitness on the part of defendant (mother) to have custody at this time in the evidence of adultery with the children in the house and in the general present instability shown by the defendant’s general attitude and demeanor”. At the conclusion of the second hearing the court reiterated its findings at the first hearing; in addition, it was ordered that the children should stay at the home of their paternal grandparents where appellee resides. It was also ordered that appellant mother have custody of the children on week-ends, with the father paying fifteen dollars per week for the week-end support.

Acts of infidelity committed by appellant and in the home of the parties were admitted. At least some of those acts were committed while the children were in the house. Since those acts were admitted we pass on to the other findings of fact by the chancellor — conduct on the part of appellant which reflects instability.

There was more than a shadow of suspicion that appellant was taking some • kind of "pep” pills. In addition to taking preludin endurets and darvon, appellant was taking two types of pills which she obtained from a friend. Of those two pills she testified on cross-examination that “I have no idea what the blue and yellow pills are”. Of one of the pills she was quoted as saying: "You can take one of these and melt it down and shoot it up with it”. There was evidence that appellant catered to pornography, with pictures on a bedroom wall and pamphlets in the house. Appellee testified that his wife was not a good housekeeper, relating that food was kept in the icebox until it spoiled and that used diapers remained unwashed until they molded. There was testimony that appellant imbibed too freely of alcohol on several occasions and became drunk. Appellee and other witnesses related that appellant constantly screamed at the children and would punish them for crying. Appellant conceded on cross-examination that she might have screamed at them as much as ten times a day. According to appellee and his witnesses, appellant was away from the children a considerable part of the time. The evidence was rather conclusive that appellant was a spendthrift. Appellee had a better than average income. He was a regular city fireman and operated, as a partner, a garage near his home. He testified that he turned most of his earnings over to appellant but that she apparently wasted much of the money. (The parties were heavily in debt at the time of trial). Appellant forged appellee’s name to a bank loan application. To support his contention that appellant was in the habit of "collecting souvenirs”, appellee produced a bedspread from a hospital and towels from two different motels. Appellee gave evidence that one or more of appellant’s associates were of questionable character. Appellant’s demeanor in court was some evidence of instability. On one occasion the court admonished her to be “not quite so flippant about some of these things — not quite so defiant”.

We are not saying that all of the recited evidence was uncontroverted. In fact much of it was countered with evidence to the contrary. In fact the picture is somewhat akin to the evidence in Davis v. Davis, 248 Ark. 195, 451 S.W. 2d 214 (1970). There we said:

Charges and countercharges were freely made by the witnesses for each,side. In such a situation the chancellor, having seen the parties and the witnesses as they testified, is in an immeasurably better position to decide the issues than are the members of this court.

With respect to the personal habits of appellee it is apparent that some of his activities border on being opprobrious. But it should be said to his credit that appellant conceded that he was not a bad father. It is also unquestioned that the paternal grandmother is of excellent character and is anxious to contribute to the upbringing of the children.

We are cited to a multitude of cases respecting child custody. They reiterate that the best interest of the children is paramount and that the mother is ordinarily favored with respect to the custody of infant children. Then too, we are reminded of the paramount position of the trial court to pass upon credibility. Other citations repeat the rule that we do not reverse the chancellor unless it appears that his findings are clearly against the preponderance of the evidence. We have given due consideration to those rules. In light thereof, and in view of the evidence in this case we are unable to say that the chancellor should be reversed.

Appellee asks that we tax against appellant the costs incurred in supplementing the abstract. We agree with appellee that appellant’s abstract left much to be desired. However, it is not shown that appellant has any estate or income; in fact it was shown that she was unemployed at the time of both hearings. In those situations we shall not tax any additional costs against the wife.

Affirmed.


author: Conley Byrd, Justice.

text:
    Joe Grady MURRAH v. STATE of Arkansas
    5723
    486 S.W. 2d 897
    Opinion delivered November 13, 1972
    [Rehearing denied December 18, 1972.]

      James E. Davis, for appellant.

      Ray Thornton, Atty. Gen., by: Robert H. Crank, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Joe Grady Murrah appeals his convictions for burglary and grand larceny.

The facts stated in the light most favorable to the verdict show that on May 31, 1971, the officers of Texarkana, Texas and Texarkana, Arkansas, had a tip that a series of burglaries would be committed at electrical supply houses. A stake-out was placed at the R.E.A. building located at the intersection of Highway No. 82 and Oats Street in Texarkana, Arkansas. At 11:00 p.m. appellant drove by in a pick-up truck at a slow rate of speed and made a circle on the R.E.A. parking lot. Curtis Wayne Swanger jumped out of the passenger side of the truck while it was rolling at a slow rate of speed. The truck then made its exit back onto Highway No. 82. The officers then watched Swanger break into the R.E.A. building and remove and stack a quantity of copper wire and three chain saws behind a shrub. At exactly 12:00 midnight, appellant returned and parked by the merchandise Swanger had piled up by the shrub. After a portion of the merchandise had been loaded into the truck, Swanger started back into the building and at that time officer Sewell stepped out into the open and yelled, “Both of you halt, this is the police.” Swanger started running and appellant attempted to drive off at a high rate of speed. The officers fired several shots from 30:06 rifles, shot guns and a machine gun. Appellant did not stop until both front tires on his truck were flat from the shots fired. When apprehended, appellant had a .38 caliber snub-nosed pistol between his feet on the floorboard of the truck as well as a loaded rifle behind the seat of the truck.

Appellant denied that he was at the building at 11:00 p.m. and furnished proof to the effect that he could not have been there at that time. His defense to the 12:00 midnight appearance was that everybody knew he was going to run for Sheriff of Bowie County, Texas, and that the Texarkana, Texas officers had conspired with Swanger to entrap him to prevent him from running for sheriff. Appellant contended that Swanger had lured him to the R.E.A. building by informing him that he could repossess at that place and time an automobile he had sold on time and on which the purchaser was in default on the payments.

POINT I. Appellant was not entitled to an instructed verdict of acquital. The proof with reference to the chain saws was that three chain saws were removed from the possession of the R.E.A. Two of the saws belonged to R.E.A. and were introduced as exhibits. The third one had been released to its rightful owner. In Powell v. State, 251 Ark. 46, 471 S.W. 2d 333, (1971), we held that in a case of larceny ownership of property may be laid either in the owner or the person who had possession at the time of theft.

In making the argument that the State failed to prove the requisite intent, appellant apparently overlooks the fact that by Ark. Stat. Ann. § 41-118 (Repl. 1964), an accessory before the fact is treated as a principal. When viewed in this light there is more than ample evidence.

POINT II. Appellant not having objected to the introduction of the photograph of the merchandise in the back of his truck is not in a position to complain.

The money bag of which he complains was merely identified as having been in the truck at the time of his arrest and was not introduced into evidence. Furthermore, appellant’s own testimony with reference to the money bag removed any prejudice in connection therewith.

Appellant in contending that the trial court erred in admitting the pistol and the rifle into evidence relies upon our cases such as Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954), and Searcy v. State, 245 Ark. 159, 431 S.W. 2d 477 (1968). Of course those cases have to do with the introduction of evidence to show other crimes committed at another place and time. The items here were not introduced to show the commission of another offense but only to show what the officers found when they stopped appellant’s fleeing truck. Consequently we find no merit in the contention.

POINT III. The trial court held a hearing on appellant’s motion for new trial. There appellant offered the ^testimony of two witnesses who testified that Swanger while in jail told them that he had set appellant up with the Texarkana, Texas police to get a better deal for himself on some pending charges. The trial court, while sustaining an objection to the testimony and two proffered affidavits as hearsay, made every effort to get the witnesses to testify as to the actual statements made by Swanger rather than as to their conclusions as to the essence of the conversation. On the record made, we cannot say that the trial court erred in overruling the motion for new trial.

POINT IV. Appellant in support of his contention that he was tried before a jury selected in a constitutionally impermissible manner relies upon Peters v. Kiff, 407 U.S. 493, 92 S. Ct. 2163, 33 L. Ed. 2d 83 (1972), Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970) and Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967). The record here shows that the trial court selected nine or ten jury commissioners from different sections of the county to reach a cross section of the county. At least two of the commissioners were of the Negro race. These commissioners were instructed to select jurors from a representative cross section of the county without discrimination as to race and that any such list should be as representative of the various townships as possible. The written instructions pointed out that: “As a practical matter, a wide distribution of jurors on each list makes it easier to form a trial panel since there is a probability that thereby jurors need not be trying his neighbor’s case, nor be disqualified by having knowledge of the incident which gave rise to the litigation.” The jury commissioners, thus selected from the different parts of the county, thereafter selected over 800 prospective jurors to be placed in the jury wheel. Eighty names were drawn from the wheel by chance. Of the eighty names so drawn, 52 were present on the day of trial and only two were of the Negro race. Other proof in the record showed that neither the voter registration list nor the jury wheel list contained a racial designation. The circuit court clerk estimated that the Negro population of the county comprised some 15% to 20% of the total population.

We do not believe that, under the facts here shown, appellant has made a prima facie case of racial discrimination. There is here no showing of a previous and persistent racial discrimination in the selection of jurors in the county. The odds against drawing only two Negroes out of 52 from a list of 800 comprising a cross section of the county containing from a 15% to 20% population are pretty great, but one occasionally draws a perfect hand in a card game even though the odds are greater than 6,000,000 to 1. Therefore, we conclude that, when the jury commissioners comprise a cross section of the county according to race, a showing only that a single panel does not correspond to the racial máke-up of the community, does not of itself make a prima facie case of racial discrimination.

POINT V. During the jury’s consideration of the case, they asked the trial court if they assessed a penalty on both charges, would the assessments run concurrently? The court at that time told them they had only two functions: (1) to determine guilt or innocence, and (2) if they found appellant guilty to fix the punishment. The jury returned a verdict of guilty on both charges fixing the punishment at eight years on the burglary and four years on the grand larceny. The trial court after the jury was discharged and in the absence of counsel conferred with some of the jurors individually as to their thoughts on whether the penalties should be concurrent or consecutive. In making the penalties run consecutive, the trial court stated:

“I did feel that I owed it to you and to society to question some of the jurors what their intent was with their — the manner in which they returned the verdict. It was their desire as expressed to me that the sentences to be run consecutively. I am not disposed to say that my judgment is better than twelve people sitting in the jury box. And when somebody goes to the jury box, then I feel that I should follow what they say.”

Under our procedure the determination of whether sentences are to run concurrent or consecutive is left to the discretion of the trial court. Some courts rely upon reports of probation officers or the local sheriffs in making such determinations. We cannot say that a trial court abuses his discretion in discussing such matters with individual jurors after their discharge from the jury box — after all the jurors in this instance had heard not only the witnesses against appellant but also appellant and those witnesses in his favor. Furthermore, appellant and his counsel were present in court when the trial judge informed them of the conversations with the jurors and no objection was made at that time.

POINT VI. Finally appellant contends that the trial court failed to provide him with a complete record of his trial thus denying him an appeal of all prejudicial errors occurring in his trial. We find no merit in this contention.

Appellant in oral argument failed to point out any portion of the record that was missing. Furthermore, we remanded the record to the trial court to determine the status of the record and he found no part of the record missing.

Affirmed.


author: Frank Holt, Justice.

text:
    Margaret A. PFEIFER v. Virginia M. RAPER
    5-6068
    486 S.W. 2d 524
    Opinion delivered November 13, 1972

      William W. Green, for appellant.

      Wootton, Land & Matthews, for appellee.
   Frank Holt, Justice.

This appeal results from the chancellor’s dismissal of appellant’s action for specific performance of an alleged oral contract for the sale of lands on which was situated a small store building. For reversal of the decree, appellant contends that the chancellor erred in finding that appellant did not make substantial improvements on the property in reliance upon the oral contract and, further, in finding that the appellant had failed to prove the contract specific and definite enough to entitle her to specific performance.

To remove an oral contract from the statute of frauds, Ark. Stat. Ann. (1962 Repl.) § 38-101, it is necessary that the quantum of proof be clear and convincing both as to the making of the oral contract and its performance. Hudspeth v. Thomas, 214 Ark. 347, 216 S. W. 2d 389 (1949), Benton v. Fultz, 241 Ark. 163, 406 S. W. 2d 699 (1966), French v. Castleberry, 238 Ark. 1038, 386 S. W. 2d 482 (1965), Rolfe v. Johnson, 217 Ark. 14, 228 S. W. 2d 482 (1950).

Appellant adduced evidence that after she was in possession of the premises as a tenant for approximately six months the appellee owner orally agreed to sell her the realty for $5,500 with the understanding that appellee would accept $200 as a down payment. The monthly rental of $50 per month would apply on the balance until paid. Appellee and her daughter testified there was no agreement as to terms such as the down payment, the closing date, rate of interest, taxes, insurance, and the type of security on the unpaid balance. Appellee, 69 years of age, testified appellant was told she would “have to work out the details” with her daughter who was employed in a local bank. This was never done and appellee subsequently agreed by a written memorandum to sell her property to another party at a higher sale price. It seems that the appellee and her daughter were concerned about the tax consequences on the sale of the property.

Also, the appellant and her husband testified that she made valuable improvements to the property in reliance upon the oral contract. The improvements primarily consisted of rewiring a motor ($10), purchasing new wires ($8) and installing them from a well pump to the house, replacing a light fixture ($5 for starters and $1.69 for fixture), purchasing kitchen floor linoleum ($17) and installing it, and replacing a screen door ($7), Incidental labor was performed by appellant and her husband. Appellant, also replaced an electric range ($60) and a refrigerator ($75), and increased her sales inventory of antiques by approximately $700. Of course, the refrigerator and stove are movable items and appellant can sell her increased inventory which was purchased for resale.

We agree with the chancellor that appellant did not discharge the burden of proof incumbent upon her to present clear and convincing evidence that she, as a tenant in possession, either established an oral contract of sufficient definiteness or made improvements of a valuably nature which were sufficient to remove the oral agreement from the statute of frauds. As to the repairs and expenditures made by the appellant subsequent to the alleged oral contract, it appears they were of the type normally and usually made by a tenant in possession and somewhat similar to those made by appellant and her husband during the few months preceding the alleged oral agreement. Improvements must be so valuable and substantial in nature that refusal of specific performance would be inequitable. French v. Castleberry, supra. Also, with respect to the definiteness of the oral contract, suffice it to say the “proof lacks the clarity and cogency that the law demands.”

Affirmed.


author: Carleton Harris, Justice.

text:
    GARRISON PROPERTIES, Inc. v. BRANTON CONSTRUCTION COMPANY, Inc.
    5-6071
    486 S.W. 2d 672
    Opinion delivered November 20, 1972

      Rose, Barron, Nash, Williamson, Carroll ir Clay, for appellant

      House, Holmes ir Jewell, for appellee.
   Carleton Harris, Justice.

Branton Construction Company, Inc., hereinafter called Branton, appellee herein, agreed to construct an asphalt parking lot and apron for a truck terminal which was being built by Garrison Properties, Inc., hereinafter called Garrison, appellant herein. The work was to be completed in 75 calendar days, and the contract provided that Branton would pay liquidated damages of $35.00 for each day it delayed completion. Work was commenced on August 19, 1968, but was not completed until June 6, 1969. Appellant began using the new terminal on June 27, 1969. A portion of the contract price was withheld by Garrison, and Branton instituted suit for the balance of the contract price and for the purpose of establishing materialman’s and laborer’s liens on the property. Garrison answered and counterclaimed, setting out that the contract required completion within 75 calendar days from commencement of the work and provided for liquidated damages as heretofore set out. It was asserted that Branton exceeded the time period allotted for completion by 239 days and that appellant had been damaged in the amount of $8,365.00. It was further alleged that Branton had been paid the sum of $32,087.82 and that the balance had been retained as liquidated damages. Garrison asserted that Branton had not performed in accordance with the plans and specifications' of the contract and that the work was defective; the cost of correcting defective work was sought. In its answer to the counterclaim, appellee denied that appellant was entitled to liquidated damages, and asserted that any delay in completion of the work was due to the orders of Mr. W. William Graham, Jr., Inc., Garrison’s consulting engineer and agent; further, that any delay in completion was due to inclement weather beyond the control of the plaintiff; still further, that appellant waived the time of performance stated in the contract and waived any right to liquidated damages. It also denied that it had been paid $32,087.82 under the contract, and likewise denied that any work was defective. The case proceeded to trial before the Pulaski County Circuit Court, sitting as a jury, and at the conclusion thereof, judgment was rendered in favor of Branton in the amount of $11,578.72, in favor of Garrison on its counterclaim in the amount of $3,000, and a lien was declared on Garrison’s property to secure payment on the net amount of Branton’s judgment of $8,578.72. From the judgment so entered, appellant brings this appeal. For reversal, two points are asserted, first, that there was no substantial evidence to support the court’s finding that $11,578.72 was due appellee on the contract, and second, that there was no substantial evidence of a waiver of appellant’s right to liquidated damages for delay in completion of the work. We first discuss the second point.

We are precluded from discussing the merits of this contention because of the fact that a judgment was entered in favor of Garrison on its counterclaim, without specific findings being made as to what the judgment covered. In other words, there is no way of knowing whether the $3,000 judgment to Garrison was given on the basis of liquidated damages or on the basis of the defective work, for no specific findings were made by the court. Appellant argues, with some degree of logic, that the $3,000 award was based on the defective work, not only because the testimony set that figure as the amount necessary to correct defects, but also because that amount of money is not anywhere close to the amount that it sought as liquidated damages (which could have run as high, under appellant’s contention as $8,365.00). Accordingly, says appellant, the court found that Garrison had waived his right to liquidated damages, and this is the principal point argued on appeal. Though we might agree with appellant that under the evidence, there was no waiver of delay in completing the job, still, this was a question of fact, just as the matter of defective work was a fact question.

In treating a jury verdict in Davis v. Ralston Purina Company, 248 Ark. 1128, 455 S.W. 2d 685, we used language peculiarly applicable here, saying:

It is mathematically demonstrable that the jury’s verdict for $45,349.96 is the exact sum of the first, fifth, and sixth items listed above and that the amount of the verdict cannot be arrived at by any other combination of pertinent figures in the record. Upon that premise the appellants insist that the jury necessarily found that both contracts had been breached and therefore acted arbitrarily in not awarding the plaintiffs the full amount of damages listed in the foregoing tabulation.The appellants conclude that the trial court abused its discretion in denying their motion for a new trial.
Such an argument is fully answered by our holding in Fulbright v. Phipps, 176 Ark. 356, 3 S.W. 2d 49 (1928), and similar cases. In the Fulbright case the suit was brought to enforce a salary claim for $10,000. Under the evidence the verdict should have been for the full $10,000 or for nothing. The jury, however, awarded the plaintiff only $5,000, which we recognized as a manifest compromise. Both parties filed motions for a new trial. We held that the trial court might properly have granted either motion if convinced that the verdict was contrary to the preponderance of the evidence, ‘or have overruled both motions for a new trial, if not so convinced.’

In Wawak v. Stewart, 247 Ark. 1093, 449 S.W. 2d 922, it was stated that under the rule of Fulbright v. Phipps, supra, the verdict need not correspond in amount to proof adduced by either party.

On appeal in a law case, we treat the holding of the trial court exactly as we would a jury verdict, and give it the same force and binding effect. In Southern Farm Bureau Cas. Ins. Co. v. McGibbony, 245 Ark. 1016, 436 S.W. 2d 824, the court was considering a judgment based upon a general finding by the circuit court, sitting without a jury. This court said:

Upon such a general finding the case stands as if a properly instructed jury had returned a verdict for the appellee. Blass v. Anderson, 57 Ark. 483, 22 S.W. 94 (1893). Hence the single question here is whether there is substantial evidence to support the trial court’s finding of fact.

Appellant’s other point deals with the contention that Garrison made a $3,000 payment to appellee for which it received no credit. Branton submitted two requests for final payment; the first was dated June 6, 1969, and the other was dated July 23, 1969. The first request reflects that appellee had received $29,087.82, leaving an amount due of $13,681.23. This request was presented to Robert C, Lowe, Office Supervisor for Graham, and supposedly covered materials and work performed on the job. Lowe said the statement did not conform to the contract in that there was a difference in amounts and quantities, and he told Branton to submit a second estimate. This was done, being the estimate of July 23. This second request reflected that appellee had received $29,087.72, with an amount still due of $11,578.72. In the meantime, Garrison had, on June 12, sent Branton a $3,000 payment. This $3,000 payment is not reflected in the previous payments column of either the first or second request. Branton testified that the $3,000 was for extra work, consisting mainly of excavation work and hauled in borrow fill. The witness said that this second statement was in compliance with Lowe’s request, and this is correct, but Lowe testified that he did not know about the $3,000 payment when he gave Branton the amount for the substituted request for payment. The testimony of appellee is somewhat conflicting. On direct examination he testified that the final statement was prepared on the advice of Lowe, who, according to Branton, indicated that he knew about the $3,000 payment. Subsequently, however, when asked if he mentioned to Lowe that he had received the $3,000 payment, the witness replied “I didn’t discuss it with Mr. Lowe”. Still again, when asked if Lowe knew that he had received the additional $3,000, Branton replied, “I have no way of knowing”.

Other evidence is somewhat confusing. For instance, the following occurred during the examination of Branton:

Q. All right. Now, can you tell us why that [difference between first and second requests for payment] was changed from the Thirteen Thousand some odd dollars to the Eleven Thousand Five Hundred Dollars as finally submitted with permission of Mr. Lowe?
A. Between the time that these two estimates were made, we received from Mr. Graham a payment in the amount of Three Thousand Dollars.
Q. And you had not sent out a request in the exact amount of Three Thousand Dollars?
A. No.
Q. All right. Now, was there anything that had happened, or any extra work that you did, in this interim period to which the Three Thousand Dollars was applied?
A. No.

Mr. Branton, on his final estimate, billed for 4,300 yards of unclassified excavation at 85 cents a yard, stating that the contract amount of unclassified excavation was 3,500 yards but he said, on cross-examination, that he was given credit by the engineers for additional unclassified excavation which he performed, being allowed 4,300 yards. This was submitted in the final estimate. The record then reveals the following:

Q. Any other extras?
A. The excavation and fill we made against the building.
Q. That’s not included in your first one?
A. I don’t. . .
Q. Isn’t that included in the original estimate that you submitted?
A. Yes.
Q. It is?
A. Yes. ***
Q. Now, this one [first request] requests payment for Forty One Hundred cubic yards of excavation?
A. Yes.
Q. Does that include the extra, all the extra excavation that you had to do?
A. Yes.
Q. It does?
A. To the best of my knowledge.
Q. Including the eight foot area and all that business?
A. Yes.

It will be remembered that Branton also stated that there was no extra work done between the time of the first and second requests to which the $3,000 payment was applied. It certainly appears that Branton was given credit on his final request for payment for extra excavation which was in excess of the contract amount and it does not appear that the $3,000 paid on June 12 was credited to extra work. It follows that we find no substantial evidence to support a finding that Branton gave credit to appellant for the payment of this $3,000.

In accordance with what has been said, the judgment is affirmed on the condition that remittitur is entered as indicated within 17 calendar days; otherwise the judgment will be reversed and the cause remanded for a new trial on all issues.

       This $3,000 is not to be confused with the $3,000 at issue in the counterclaim.

       From the record:
      Q. All right. You had made out your final statement for Thirteen Thousand some odd hundred dollars. This was changed at the advice, you told us, of Mr. Lowe...
      A. Yes.
      Q. The Engineer?
      A. Yes.
      Q. Why was the change made? He indicated you had received the three Thousand Dollar payment?
      A. Yes, the payments on his breakdown do not list the Three Thousand Dollars. He brought that breakdown to our office and told us that if we would submit this breakdown we would be paid that amount and since the amount didn’t vary in a major way from the amount we billed, we accepted his instructions and submitted our estimate.

       As herein shown, the testimony reflected that Lowe approved the second request, and in doing so, he allowed Branton 4300 cubic yards unclassified excavation instead of the contract amount set at 3500 cubic yards.


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

text:
    David WEBB v. STATE of Arkansas
    5776
    486 S.W. 2d 684
    Opinion delivered November 20, 1972

      William C. McArthur, for appellant.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, charged with the crime of robbery, was tried by the court without a jury, was found guilty, and was sentenced to imprisonment for 15 years. He relies upon two points for reversal.

First, at the beginning of the trial the deputy prosecutor, Frank Newell, stated to the court that the prosecuting witness, Paul R. Pierce, whose testimony was essential to the State’s case, was unable to come to court. Newell explained that he had talked to Pierce earlier that morning. Pierce had said that, as a consequence of the beating to which he had been subjected in the course of the robbery, he was bedridden and could not sit up without suffocating. Pierce declined Newell’s offer to send an ambulance for him, insisting that he was unable to leave his bed.

The trial judge, after an extended discussion of the matter with counsel, announced that if the attorneys could not arrive at a solution to the problem during a ten-minute recess, it would be necessary to go to the witness’s home to take his testimony. After that recess, and further discussion, the record recites that "the Court, Counsel for the State and defendant, the defendant, and other persons went to 3409 Tatum. Street, where the following proceedings occurred:

"The Court: The time is 11:14. Let the record show that the proceedings were adjourned to 3409 Tatum. . . and that the defendant is present and all the spectators in the courtroom, at the time, are also present. The reason for the procedure is that the witness is bedridden and unable to attend Court, either by furnished transportation, which was offered, or by ambulance, a service which was also offered. At this time the State will proceed with trying the case.”

Defense counsel then stated that he had a couple of motions. The first motion, granted by the court, was to place the witnesses under the rule. The second motion was "to enter my objections to this proceeding as being irregular, and I would like the objections to be shown.” The court replied, “All right.”

The testimony of the prosecuting witness was then taken, who described how he had been beaten and robbed by the accused and another man, after midnight, at a motel where the witness was on night duty. No questions were asked about Pierce’s physical condition at the time of the hearing, except that in response to a question whether Pierce had worked at the motel or elsewhere since the robbery, Pierce replied: “No, sir, I haven’t worked a day. I’m through, boy. I mean that.” The rest of the proceedings, after the taking of Pierce’s testimony, were completed in the courtroom.

The appellant insists that the court’s action in adjourning the trial to the witness’s home was reversible error. Upon that issue the case most nearly in point is Mell v. State, 133 Ark. 197, 202 S.W. 33, LRA 1918D, 480 (1918), which, though not cited by the appellant, has quite properly been brought to our attention by the Attorney General. There the trial court, over the defendant’s objection, granted the State’s motion to adjourn the case to a hotel to take the testimony of the prosecuting witness, who was too ill to leave the hotel. In finding reversible error we said:

“The manifold mischiefs that might arise from permitting a court to assume a migratory character and travel from place to place in the same locality or even in the same town are manifest. It is apparent that courts are held to determine the rights of all who are properly brought before them; and that numerous cases are pending in the same court at the same time. It would detract from the majesty of the law, lessen the dignity of courts and cause trouble and injustice to litigants if the courts should be held at any other time or place than that provided by law. It follows therefore that the court erred in adjourning to the hotel to take the testimony of the prosecuting witness against the objection of the defendant.”

We hold that the Mell case is not controlling in the case at bar, for there are two material points of distinction between the cases. First, in Mell the defense promptly objected to the proposed adjournment to the hotel. Such a timely objection would afford the State an opportunity to present medical proof of the witness’s condition, had such proof been deemed by the court to be necessary. In the case at bar, however, no objection was interposed until all those connected with the case, even including spectators, had arrived at the home of the witness. There defense counsel first succeeded in having other witnesses excluded from the room before making his second objection, that the proceeding was “irregular.” Irregular it may have been, but our study of the record discloses no fact indicating that the procedure was actually prejudicial to the accused.

Secondly, here, unlike the situation in the Mell case, it was the defendant himself who, according to the uncontradicted statements in the record, was responsible for Pierce’s inability to come to court. It is a fundamental principle of justice that one cannot take advantage of his own wrong. We have held that, even though the Constitution guarantees to the accused a speedy trial, he cannot complain when his own wrongful escape from custody prevents the State from bringing him to trial. Merritt v. State, 244 Ark. 921, 428 S.W. 2d 66 (1968). There the point at issue was the time of trial. Here it is the place of trial (or of some part of it). It would be an affront to justice for the law to allow a criminal, after having maimed, mutilated, and mangled his victim to the extent of disabling him from appearing at the courthouse, then to successfully contend that the victim’s testimony could not be taken elsewhere without a violation of the offender’s constitutional rights. (See also our opinion in Bradshaw v. State, 250 Ark. 135, 464 S.W. 2d 614 (1971), where we observed that a thief does not have a constitutional right to use the stolen funds to make bail when he is charged with the offense.;

The appellant’s second point for reversal has to do with the admissibility of a tape recording of a confession made to a deputy prosecutor, Robert J. Brown, on the day after the offense was committed. The appellant concedes that tape recordings are frequently admissible, but he makes two objections to the one that was heard by the trial judge in the court below.

First, it is insisted that the integrity of the tape was not established, because it was not kept under lock and key between the time it was made and the date of trial. We have held that great care must be shown in the preservation and identification of such exhibits as bullets, blood or urine samples, and the like. Jones v. Forrest City, 239 Ark. 211, 388 S.W. 2d 386 (1965). But the point here is that such exhibits are essentially so similar to other bullets, blood samples, etc., that the possibility of substitution is a real threat to the rights of the accused. No similar considerations exist with respect to the tape recording in the case at bar. Deputy prosecutor Brown listened to the tape and testified without contradiction that it was a true recording of his interview with the accused. That testimony established the admissibility of the tape recording.

Secondly, in the course of the taped interview the appellant, in response to questions, stated that he had been convicted of a felony — the possession of stolen property — and of unspecified misdemeanors. After the tape recording had been heard by the trial judge, the defense moved for its exclusion, on the ground that the references to other offenses were prejudicial. The court overruled the motion, stating that he could and would disregard that part of the confession.

We find no error. In jury cases we have frequently held that the introduction of improper evidence may be cured by a proper admonition to the jury to disregard it. Key v. State, 213 Ark. 978, 214 S.W. 2d 234 (1948); Cross v. State, 200 Ark. 1165, 143 S.W. 2d 530 (1940); Lane v. State, 171 Ark. 180, 283 S.W. 353 (1926). We are convinced that the trial judge, who is trained in the matter of weighing evidence impartially, is even better qualified than a juror to disregard incompetent testimony. Moreover, as a practical matter the exclusionary rule contended for by the appellant would be unworkable, for the trial judge must hear the evidence in the first place to determine its admissibility.

Affirmed.

Harris, C.J., and Fogleman and Byrd, JJ., concur.

John A. Fogleman, Justice,

Concurring. I concur in the result because a timely objection was not made. As I understand the record, no objection was registered until the court, parties, attorneys and witnesses had reached the residence of the witness. I agree that a criminal should not be permitted to take advantage of his own wrong. The real issue in this case was whether defendant was the criminal. The state’s attorney stated that the witness had identified the defendant in at least one judicial proceeding as the perpetrator of the crime, that the witness had been struck one time and, at the time of trial, was totally incapacitated and bedridden and seemed to think that his condition resulted from what had happened. Defendant’s attorney only expressed reluctance about going to the home of the witness at that time and made no offer to controvert any statement made by the prosecuting attorney.

We have from time immemorial said that one charged with a crime is presumed to be innocent — that this presumption attends him throughout the trial as evidence in his favor until overcome by evidence sufficient to convince the trier of facts of his guilt beyond a reasonable doubt. Kagen v. State, 232 Ark. 189, 334 S.W. 2d 865; Cranford v. State, 156 Ark. 39, 245 S.W. 189; Carlton v. State, 109 Ark. 516, 161 S.W. 145.

If the statements of the prosecutor had been controverted by appellant in a timely manner and a timely objection made, I do not see how the trier of the facts could properly hold, without an evidentiary hearing of some sort, that the accused was responsible for the witness’ inability to attend court without removing from the defendant the protective cloak of the presumption of innocence.

In any event, extreme care should be taken in these cases not to deprive a defendant of the right to a public trial guaranteed by Article 2, Section 10 of our Constitution. Since the record shows that “other persons” were present, the public trial requirements may have been met. See Commonwealth v. Trinkle, 279 Pa. 564, 124 A. 191 (1924). Appellant made no objection, indicating that the trial was not public, and the presence of these “other persons” may have been adequate. To say the least, removal of a trial from the regularly designated place for holding court should be discouraged and should never be done except in the case of extreme emergency.

I cannot accept the premises on which the majority relies on appellant’s first point. I agree fully with the majority opinion on appellant’s second point and would affirm the judgment.

I am authorized to state that Mr. Chief Justice Harris and Mr. Justice Byrd join in this opinion.


text:
    Walter L. CLARK v. STATE of Arkansas
    5780
    486 S.W. 2d 677
    Opinion delivered November 20, 1972

      Young h? Patton, for appellant.

      Ray Thornton, Atty. Gen., by: James A. Neal, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant Walter L. Clark was convicted of violating Ark. Stat. Anno., § 41-4501 (Repl. 1964). He was convicted under that part of the statute which makes it unlawful to carry a pistol as a weapon. The point for reversal is that there was no substantial evidence, as a matter of law, to convict appellant.

Sometime after 2:00 a.m. appellant, in company with a girl friend, drove to the outskirts of Texarkana, stopped at a motel and inquired of the clerk about some matches. He was informed that none were available. As appellant drove away the clerk called the sheriff’s office and reported the incident. The report was made because of certain peculiar actions of appellant and the suspicion that appellant was carrying a pistol (the officer testified to that report without objection). In response to the call the officers stopped appellant on the highway before he entered Texarkana. A loaded pistol was found under the front seat. Appellant testified that he was driving a borrowed car and had no knowledge of the presence of the pistol. His companion testified that she did not see the pistol. The owner of the car testified that the pistol belonged to her. She admitted that she had told the officers on the morning of appellant’s arrest that she did not own the pistol and knew nothing about it being in the car. She explained the inconsistency of that statement with her testimony by saying that she was fearful she would be placed in jail if she admitted ownership of the pistol. Appellant testified that his only purpose in stopping at the motel was to obtain some matches and that he was not successful. In rebuttal to that evidence the arresting officer testified that there was in plain view, between the “bucket” seats, a supply of matches.

There was a presumption of fact that the loaded pistol was placed under the seat as a weapon. Of course that presumption may be removed by, proof. Stephens v. City of Ft. Smith, 227 Ark. 609, 300 S.W. 2d 14 (1957). Appellant offered proof to overcome the presumption but since we are dealing with a question of fact and not of law it was for the jury (or the judge sitting as a jury) to resolve the truth. We have said that the question of whether a pistol is carried as a weapon is a question for the jury. Wylie v. State, 131 Ark. 572, 199 S.W. 905 (1917).

The trier of the facts was undoubtedly impressed with the suspicious actions of appellant at the motel; with the fact that appellant was inquiring for matches when in fact there was said to be a supply of matches in the car; and with the fact that the woman who owned the car first denied ownership of the pistol. When those inconsistencies are coupled with the presumption we have mentioned, and viewing the evidence in the light most favorable to the State, we conclude there was substantial evidence to support the verdict.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Wanda Woods HOLT v. Carl G. HOLT
    5-6076
    486 S.W. 2d 688
    Opinion delivered November 20, 1972

      S. Daniel George, Sallisaw, Okla., and Wiggins ir Christian, for appellant.

      Ball ir Gallman, for appellee.
   John A. Fogleman, Justice.

Appellant and appellee were divorced on the seventh day of April 1967. They had entered into a “Property Settlement Agreement,” which was incorporated into the divorce decree. It contained a provision for alimony until such time as the wife remarried. On November 9, 1971, appellant filed a petition for citation to appellee to show cause why he should not be adjudged in contempt of court because of his failure to make the alimony payments for the months of September and October 1971. Appellee admitted that he had not made these payments, but alleged that his obligation to pay had terminated by reason of the marriage of appellant to James C. Blakemore on or about September 1, 1971. Subsequently, appellee moved for summary judgment upon the ground that there was no genuine issue of material fact and that he was entitled to judgment as a matter of law. This appeal was taken from a decree granting the motion for summary judgment, dismissing appellant’s petition for a contempt citation and relieving appellee from any further payments of alimony.

The matter was presented to the court upon an agreed statement of facts, which are recited in the decree as follows:

(a) That the plaintiff and defendant were married on the 12th day of January, 1946, and were divorced by decree of this Court on the 7th day of April, 1967.
(b) That the plaintiff was remarried on the 12th day of August, 1971, to one James C. Blakemore in the state of Oklahoma.
(c) That paragraph 12 of the property settlement agreement entered into by the parties on the 6th day of April, 1967, provides as follows:
12. ALIMONY. Husband shall pay to Wife the sum of Three Hundred ($300.00) Dollars per month for alimony beginning the 7th day of April, 1967, and shall continue to pay such sum on the same day of each and every month until such time as Wife remarries.
(d) That plaintiff had her marriage with the said James C. Blakemore annulled on the 12th day of October, 1971, by decree of the District Court in and for Adair County, State of Oklahoma.
(e) That the copies of decree of divorce of the parties, the property settlement agreement, and the decree of annulment all filed herein are all true and correct copies of such instruments.
(f) That upon the remarriage of plaintiff, the defendant ceased making alimony payments pursuant to the terms of the property settlement agreement.

We have held that a divorced husband must make proper application to the court having jurisdiction to obtain relief from the payment of alimony provided in the decree of divorce from a former wife on account of her remarriage. Beasley v. Beasley, 247 Ark. 338, 445 S.W. 2d 500; Wear v. Boydstone, 230 Ark. 580, 324 S.W. 2d 337. No such application was made by appellee. Because of this, appellant contends that her right thereto was unaffected because the annulment of her Oklahoma marriage entitled her to no alimony on account of the annulled marriage. She states that the decree of annulment rendered the Oklahoma marriage without any binding force or effect and that it should be ignored in determining whether her right to alimony from appellee should be terminated.

In Oklahoma, both void and voidable marriages seem to be subject to annulment. Note, Void and Voidable Marriages, 14 Okla. L. Rev. 304 (1961). It seems, however, that the distinctions between void and voidable marriages observed by canonical and civil law have been abandoned there, and not every marriage void under those ancient principles is void ab initio under existing law. 14 Okla. L. Rev. 304, 305. Annulments of both void and voidable marriages may also be had in Arkansas, and the difference in the effects of such marriages is discussed in Huff, The Effect of Void and Voidable Marriages in Arkansas [10 Ark. L. Rev. 188 (1955)], where possible effects of such marriages on alimony from a previous marriage are mentioned. See also, Robb, The Cause of Action for Annulment of Marriage in Arkansas, 14 Ark. L. Rev. 85 (1959).

The reason for our rule requiring that application be made for relief from alimony payments was clearly stated in Wear v. Boydstone, supra, by the following quotation from 27 C.J.S., 994, Divorce § 239c:

Although there is contrary authority, in the absence of a mandatory statute to the contrary, a divorced wife’s remarriage to another does not necessarily of itself operate as a release of the former husband’s obligation to pay alimony. It does, however, afford a cogent reason for the court to modify or vacate the order, ***.

There is a clear implication we would not require the termination of alimony payments in every case when the wife remarried. Some of the factors which may be considered are suggested in Beasley v. Beasley, supra, where the alimony award was limited to five years by the terms of the divorce decree. We mentioned the modest salary and means of the divorced husband, his poor physical condition and high medical expense and the absence of evidence that the second husband was financially unable to support the wife. But in the case before us the decree provided fpr payment only until the wife remarried.

In some jurisdictions the right to alimony or its termination is governed by statute, when the divorce decree provides, as this one does, for termination upon remarriage. See A.L.R. 79, 90 (1924) 112 A.- L. R. 246, 259 (1938). In others, the right to alimony is terminated upon remarriage, even though the subsequent marriage is later nullified. See Annot. 155 A. L.R. 609, 619 (1945); Evans v. Evans, 212 So. 2d 107 (Fla. 1968). In still others, a nullified remarriage does not terminate alimony, particularly if the marriage is void ab initio. See Sutton v. Lieb, 199 F. 2d 163, 33 A.L.R. 2d 1451 (7th Cir. 1952) involving Illinois law; Sleicher v. Sleicher, 251 N.Y. 366, 167 N.E. 501 (1929), decided prior to enactment of the statute permitting allowance of alimony upon annulment of a marriage, now appearing as 14 McKinney’s Consolidated Laws of New York Annotated, § 236 (1964), but see Gaines v. Jacobsen, 308 N.Y. 218, 124 N.E. 2d 290, 148 A.L.R. 2d 312 (1954); Annot. 48 A.L.R. 2d 270, 296 (1956); Evans v. Evans, supra. The status of the second marriage after annulment in the state where it was performed and in the state where the divorced spouse has cohabited with the new mate may be pertinent considerations. • Johnson County National Bank & Trust Co. v. Bach, 189 Kan. 291, 369 P. 2d 231 (1962); Lehmann v. Lehmann, 225 Ill. App. 513 (1922).

Whether we apply the law of Oklahoma or the law of Arkansas in determining the effect of the annulment, we cannot say whether the “remarriage” in this case was void ab initio or voidable, because the record is totally silent in this respect. There is nothing in the abbreviated record before us upon which we could determine that alimony should not be terminated in this case except the bare fact that the subsequent marriage was annulled. Appellant only designated all pleadings, decree and orders made and entered in the case as the record herein. Consequently, the decree of the Oklahoma court annulling the marriage which constituted a part of the record in the trial court is not before us. Although appellee might have designated other parts of the record, he chose not to do so, leaving the matter for determination here on the partial record designated by appellant. Where a record is abbreviated without objection, we cannot presume that any portions of the record not designated support the trial court’s action. Beevers v. Miller, 242 Ark. 541, 414 S.W. 2d 603. At the same time, we cannot reverse the trial court unless the record demonstrates apparent error. Thompson v. Universal CIT Credit Corp., 234 Ark. 1056, 356 S.W. 2d 735; Kimery v. Shockley, 226 Ark. 437, 290 S.W. 2d 442. In other words, unless we can say that the record before us indicates that the trial court erred, we must affirm its judgment or decree. Appellant always bears the burden of demonstrating that the trial court was in error. Poindexter v. Cole, 239 Ark. 471, 389 S.W. 2d 869. We cannot say from this abbreviated record that the appellant’s marriage to Blakemore was void ab initio, and are unwilling to say that a marriage which is voidable only, at least on common law grounds, would not have afforded adequate grounds for the court’s termination of the wife’s right to alimony when the decree provided for termination upon remarriage. Thus we cannot say that the abbreviated record demonstrates apparent error. We could only speculate about the grounds for annulment, or whether the effect of the decree was to recognize that the marriage was void from the beginning or to declare it invalid as voidable.

For the reason stated, the decree is affirmed.

       In this opinion there is an excellent discussion of the effect of void and voidable "remarriages” upon alimony from a previous marriage.


text:
    Daniel Lon GRAHAM v. STATE of Arkansas
    5757
    486 S.W. 2d 678
    Opinion delivered November 20, 1972

      John Lineberger, Public Defender, for appellant.

      Ray Thornton, Atty. Gen., by: Henry Ginger, De

      puty Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Daniel Lon Graham escaped from the pentitentiary while serving a life sentence for kidnapping a banker’s wife. During that escape he robbed a Safeway Store at Springdale and at gun point directed the three store employees to accompany him to a lonely spot on Hickory Creek Road. After forcing the three young men to lie face down in the tall grass, he shot each of them in the back of the head. The jury found him guilty of murder in the first degree for the killing of Gene Allen Franco. Since the jury did not recommend a life sentence pursuant to Ark. Stat. Ann. § 43-2153 (Repl. 1964), his punishment was fixed at death by electrocution. Appellant’s only contention is that the death sentence coristitutes cruel and unusual punishment.

Both the Arkansas Constitution, Art. 2, § 9 and the U. S. Constitution, Eighth Amendment, prohibit “cruel and unusual punishment.” Under the Arkansas Constitution, the death penalty does not constitute “cruel and unusual punishment.” See Davis v. State, 246 Ark. 838, 440 S.W. 2d 344 (1969). However, the U.S. Supreme Court, as presently constituted, has recently decided that where a jury is permitted to decide between the punishments of life and death, the death penalty constitutes “cruel and unusual punishment” and that such interpretation is applicable to the several states through the Fourteenth Amendment. See Furman v. Georgia, 408 U.S. 238 (1972).

So long as the ruling in Furman v. Georgia, supra, is made applicable to this State, we are obliged to reduce appellant’s sentence from death to life imprisonment as being the next highest available penalty, Ark. Stat. Ann. § 43-2308 (Repl. 1964). In reducing the penalty, we must recognize that a second life sentence against appellant does not necessarily mean that his punishment will be greater or more severe, nor can we say with certainty that he will be any less likely to escape in the future.

Since the commitment to be issued by the trial court may effect the appellant’s status as a prisoner we are remanding to the trial court for consideration of consecutive or concurrent sentences.

Affirmed as modified and remanded.


author: Frank Holt, Justice. Conley Byrd, Justice,

text:
    Ruby NICHOLSON et al v. Sue SHIPP et al
    5-6084
    486 S.W. 2d 691
    Opinion delivered November 20, 1972

      Cambriano ¿r Cree, for appellants.

      Ike Allen Laws Jr., P. A., for appellees.
   Frank Holt, Justice.

The only issue on this appeal is the construction of a warranty deed. The chancellor found that the deed created a tenancy in common. The appellants contend the chancellor erred because the grantor intended that the deed create an estate by the entirety. We think the chancellor was correct.

The facts are not in dispute. Certain property was conveyed to Johnnie E. and Ruby Nicholson, as husband and wife, upon payment of the $11*000 purchase price. Ruby paid $7,500 of her own money and $3,500 was borrowed and subsequently repaid by them. Two years later, in 1968, Johnnie and Ruby separated and he deeded his interest to her for $3,000 in cash plus her $3,000 note. A few months later they became reconciled. Johnnie had spent the cash and it was agreed that Ruby’s note would be destroyed upon the condition the previous joint ownership would be reestablished. In an effort to recreate the agreed estate by the entirety, the services of an employee of an abstract company, rather than a practicing attorney, were used. A deed was drafted by which Ruby conveyed to Johnnie an undivided Vz interest in the lands in question and, also, expressed her intent to create an estate by the entirety. In pertinent part the warranty deed reads:

“***Ruby Nicholson, in my own right and — his wife for and in consideration of the sum of One and No/ 100 Dollars ($1.00) cash in hand paid, receipt of which is hereby acknowledged, do hereby grant, bargain, sell and convey unto the said Johnnie E. Nicholson and unto his heirs and assigns forever, the following lands lying in the County of Conway, and State of Arkansas, to-wit: An undivided Vz interest in and to: [description of lands]. This Deed is made for the purpose of creating an estate in the entirety. ***”

When Johnnie, the husband, died in 1971, Ruby, appellant, deeded the property to appellant, Delois Nicholson, her daughter by a previous marriage. A life estate was reserved. The appellees, Johnnie’s heirs by a former marriage, filed a complaint for partition of the lands, subject to Ruby’s dower and homestead rights, asserting they were tenants in common. By answer the appellants denied that appellees had any interest in the lands and asked that the title be quieted and confirmed in them.

Although recognizing the expressed intention in the warranty deed to create an estate by the entirety, the chancellor found and decreed that the deed from Ruby to her husband created a tenancy in common in an undivided % interest in the land and that Johnnie’s interest vested upon his death in his heirs, the appellees, subject to Ruby’s dower and homestead rights. The deed from Ruby to her daughter, insofar as it affected the appellees’ interest, was cancelled.

It is persuasively contended by appellants that the chancellor erred in the construction of the deed and should have reformed it to conform to the expressed intention of the parties. However, one of our basic legal principles, which has become a rule of property, is that an estate by the entirety cannot be created unless the four essential common law unities, namely, interest, title, time and possession, coexist. Stewart v. Tucker, 208 Ark. 612, 188 S.W. 2d 125 (1945), Weir v. Brigham, 218 Ark. 354, 236 S.W. 2d 435 (1951). An estate by the entirety, however, can be created by a wife when she directly conveys her interest to her husband and herself. Harmon v. Thompson, 223 Ark. 10, 263 S.W. 2d 903 (1954), Ebrite v. Brookhyser, 219 Ark. 676, 244 S.W. 2d 625 (1951), Ark. Stat. Ann. § 50-413 (1971 Repl.). In such a conveyance the four essential unities are deemed concurrently present. By virtue of the marriage relationship a husband and wife are deemed one person in law and a conveyance from one spouse to the other is, in legal effect, a conveyance to only one person. In Ebrite v. Brookhyser, supra, we specifically recognized that the marriage relationship is a consolidation of the husband and wife which constitutes a single legal entity. Therefore, we said an estate by the entirety can be created by one spouse’s direct conveyance of “the interest specified in the deed” to both spouses. Thus, the parties no longer need to resort to the device of a “straw man.”

In the case at bar, however, “the interest specified in the deed” or conveyed by Ruby was an undivided Vz interest to her husband, Johnnie, without making herself a co-grantee. In such a situation we have held that an estate by the entirety is not created regardless of the expressed intent to do so because neither the unity Of time nor title is observed and, also, that the estate was not created by one and the same act, nor did it vest in them at one and the same time. Weir v. Brigham, supra. Also, in Ebrite v. Brookhyser, supra, we said one spouse’s “undivided half interest could in no way be said to have been acquired at the same time as the half interest retained by” the other spouse. In Weir we cited and quoted with approval Pegg v. Pegg, 165 Mich. 228, 130 N. W. 617 (1911), which is similar to the case at bar. There it was said that where one spouse conveys an undivided Vz interest to the other spouse each holds a distinct title and both become tenants in common even though there is phraseology in the deed that it is intended that an estate by the entirety be created. Also, the deed must be read as though the clause referring to an estate by the entirety did not exist.

The chancellor’s interpretation of the disputed deed is clearly in accord with our well established rule of property. Again we observe, as in Mills Heirs v. Wylie, 250 Ark. 703, 466 S. W. 2d 937 (1971), “[M]any wills, and many deeds, have passed, and conveyed, property in a manner inconsistent with the desire that the testator, or grantor, might have had in mind, because the instrument was not prepared by one familiar with the legal effect of words used.” It follows that the legal effect of the deed in question created a tenancy in common instead of an estate by the entirety.

Affirmed.

Brown and Byrd, JJ., dissent.

Conley Byrd, Justice,

dissenting. Ark. Stat. Ann. § 50-413 (Repl. 1971), provides that deeds between husbands and wives “...shall be construed as conveying to the grantee named in such deed...the interest specified in the deed...” The deed here specified that: “This Deed is made for the purpose of creating an estate in the entirety.” I’m at a loss to understand how much more specific the deed could have been as to the estate that was conveyed.

Furthermore since the legislature permits the creation of estates by the entirety in bank accounts, Ark. Stat. Ann. § 67-552. (Repl. 1966), and savings accounts, Ark. Stat. Ann. § 67-1838 (Repl. 1966), without the requisites of the so-called four unities, it appears to me that we are being unduly slavish in applying those antiquated concepts to real property.

Therefore, I respectfully dissent.

Brown„ J., joins in this dissent.


text:
    EMPLOYERS MUTUAL of Wausau v. Raymond HALE
    5-6107
    486 S.W. 2d 680
    Opinion delivered November 27, 1972

      Terral, Rawlings, Matthews ¿r Purtle, for appellant

      Wright, Lindsey & Jennings, by: George E. Lusk, Jr., for appellee.
   Carleton Harris, Justice.

This is a workmen’s compensation case. Raymond C. Hale, an employee of Halstead Metal Products, received a back injury in the course of his employment on June 11, 1969. At this time American Motorists Insurance'Company carried the workmen’s compensation insurance; however, after November 1, 1969, Employers Mutual of Wausau, appellant herein, became the insurance carrier. After his injury, Hale subsequently returned to work and suffered another injury in March, 1971. This injury occasioned an operation for a ruptured disc. The question in this litigation is which insurance carrier is liable, appellant contending that the disability resulted from the June, 1969 injury and appellee contending otherwise. The commission held that the injury in March, 1971 was the cause of the ruptured disc and granted an award against appellant company. On appeal to the Cross County Circuit Court, this award was affirmed, and from the judgment so entered, appellant brings this appeal. For reversal, it is asserted that there is no substantial evidence that appellant sustained a ruptured disc on March 16, 1971.

No question of compensability exists in this case but appellant argues that the evidence is to the effect that the ruptured disc was sustained in June, 1969; the real argument of appellant is that medical testimony is necessary to establish a ruptured disc and, says appellant, there is no medical evidence that this injury occurred in 1971.

Hale testified that in June, 1969, while at work, he went to answer the telephone and slipped on a plate of steel which contained a spot of grease. He said that he did not fall but was jerked, and two or three days later his back started hurting. He made several visits to a Chiropractor but lost no time from work. However, in September, he was still bothered with pain and accordingly went to Dr. Willard G. Burks, an M.D. in Wynne. He visited Burks two or three times and that doctor told him to take off from work for one week, which he did, and this rest from the job seemed to help. Hale obtained a back brace on the advice of Burks, and also took muscle relaxers and anacin. Claimant testified that Burks told him it was either a strain or ruptured disc, and he was not sent to a specialist. Hale described the pain “like a catch” or a “crick in his back”. He said that it might hurt in the morning and not hurt in the afternoon, but he was in pain about three-fourths of the time from then until March, 1971; however, after taking off from work in September, 1969 for one week, he did not miss any time from work until the March accident. At that time, the witness said that he bent over, twisting his body while leaning toward two beams and suddenly felt as though he had “stuck a hot knife” in the lower part of his back; just above the tailbone. Hale described this pain as much more severe than he had undergone prior to that time, and about a week later he had to quit work. The pain was constant and he again visited Dr. Burks who placed him in the hospital for about a week; he was then sent to Dr. Matthew Wood, a specialist in Memphis. Wood examined him and scheduled surgery for the next day.

Dr. Burks testified that he was Hale’s family doctor and first saw him for back trouble on September 15, 1969. Burks said that he felt Hale had a ruptured disc, “He had positive straight leg raising which was simply a test that most physicians use to determine nerve irritability — he had pain down the right leg with positive straight leg raising and decreased but I felt he had a possibly disc — I gave him conservative treatment, bed board rest and heat treatment. The doctor subsequently stated that this was the same treatment he would give for a lumbar sprain. Burks testified that after seeing claimant on September 19, 1969, he discharged him as able to return to work, “Yes, sir — at this time his back appeared to be fine — he had no limitation of motion — he had lost his positive straight leg raising and he returned to work the following day.”

The doctor stated that in his opinion there was no permanent partial disability at that time and he did not see him again with regard to his back until March 25, 1971. Burks did not remember whether he was given a history of another accident at that time and did not make any such history a part of his clinical records; he placed Hale in the hospital, “put him on muscle relaxants, bed board and a heating pad and gave him ultra sound which is more or less physical therapy type of component and this is what I did at this time — he did not respond to it at this time — he was as bad or if not worse.” It was then recommended that Hale see a Neurosurgeon in Memphis.

Dr. Matthew Wood, a Neurosurgeon of Memphis testified that he was given a history of the accident of 1969; that Hale told him that radiating leg pain commenced about three months after his injury and he had recurrent and episodic pain after that. Wood said that a disc was subsequently removed from the area, and the doctor, subsequently by letter, gave an opinion that the back injury had been received about twelve to fifteen months prior to the surgery. He stated that Hale’s statement that he had pain three-fourths of the time since September, 1969, whether he was working or at home, would be consistent with the fact that he sustained a ruptured disc in 1969. Further, that the wearing of the brace and the taking of muscle relaxers and anacin would be consistent with the fact that he was hurting and also consistent with a ruptured disc.

Dr. Burks’ record on Hale reflected that in September, 1969, Hale had pain down his right leg. Wood stated:

“I might add that even though he was having right leg pain at that time, he was having bilateral pain when I saw him; that is, pain in both legs, greater on the left. This man’s disc was removed from the left side. We always remove it from the side of the greatest pain when it is a central disc, but it would be consistent with a ruptured disc.”

It developed that Wood had never received any information that Hale had a second injury in March of 1971, and he said that in examining a protruded or slipped disc there was no way of telling how long the condition had been present; that his findings were based primarily on the history given to him by Hale. Wood stated:

“If I had got a history he had been injured in 1969 and got over that attack in, say, two or three weeks and had back pain rather than leg pain, and went back to work and re-injured himself in 1971, a couple of years later, and, then, had radiating leg pain, then there would not be any question in my mind that this would be a new thing. The history we have is different. The history we have is he had recurring trouble with the injury in ’69.”

Appellant argues that there is no medical testimony in the record to the effect that the March, 1971 injury was the cause of the ruptured disc; that to the contrary, the medical evidence is that it occurred in June, 1969; that a ruptured disc is a type of injury that requires medical proof; there being no specific medical evidence that the rupture was occasioned by the accident in 1971, the commission had no evidence upon which to base its award against appellant.

We do not agree with the conclusion reached by appellant, though we do agree that whether one has a ruptured disc requires medical evidence. There, of course, is positive medical evidence that Hale suffered a ruptured disc. No one doubts that. The only question is when he suffered it and we are of the opinion that there was substantial evidence to support the finding of the commission. While Dr. Burks diagnosed the injury of June, 1969 as a ruptured disc (directing the same treatment however that he would authorize for a lumbar sprain), let it be remembered that Hale was only off from work for one week, and continued to work at his regular job thereafter for approximately twenty-one months. In this connection, Dr. Wood testified that it is unusual for one to continue work after suffering a ruptured disc. Accordingly, we have a man whose condition after his 1969 injury (following a week’s rest from work), was described as “fine”, with no sort of permanent disability. To the contrary, after the March, 1971 injury, surgery was necessary. Hale also said the pain was much more severe after the March incident, stating “Well yes sir it was just constant then my feet started getting numb, which I guess it was pressing against the nerve or something.” The witness testified that he had had no trouble with his feet prior to the March accident, and also stated that he had had no difficulty with his legs before that accident.

Summarizing, the medical testimony, particularly that of Dr. Wood, establishes that Hale suffered a ruptured disc; exactly when he suffered the injury is not established by thef medical evidence, but we think that the facts and circumstances attendant upon each injury were such as to justify the commission in reaching the conclusion that me . rupture occurred at the time of the second accident,'i.e.,..we are of the view that the commission’s finding was supported by substantial evidence.

Affirmed.

       Hale stated that he had worn the brace 50% to 75% of the time.


text:
    SAFEWAY STORES, Inc. v. Worthie WADDY
    5-6086
    486 S.W. 2d 683
    Opinion delivered November 27, 1972

      Gannaway, Darrow ir Hanshaw, for appellant.

      Martin, Dodds, Kidd, Hendricks if Ryan, for appellee.
   George Rose Smith, Justice.

This is a slip-and-fall case arising from the appellee’s having fallen while shopping in the appellant’s grocery store in Little Rock. The jury returned a verdict for the plaintiff for $10,000, which is not questioned as being excessive. The appellant’s only contention for reversal is that the trial judge should have directed a verdict in its favor.

The case is quite similar to J. Weingarten, Inc. v. Thompson, 251 Ark. 914, 475 S.W. 2d 697 (1972), where we adhered to our rule that in cases such as this one the plaintiff must show either that the presence of the object or substance which caused her fall was the result of the defendant’s negligence or that it had been on the floor for such a length of time that the defendant should have known of its presence and failed to use ordinary care to remove it. Here, as in Weingarten, the appellee argues that her proof showed that the object had been on the floor long enough to support a finding of a negligent failure to remove it.

Mrs. Waddy testified that she entered the store at about 12:30 p.m. and had shopped for about 20 minutes when she fell. She then looked around and saw that she had slipped on produce of some kind, which she thought to be a lettuce leaf. It was “green looking, been tramped over and wilted on the floor.” There was more than one piece; it was “up and down” near the vegetable end of the produce counter. It was dark in color and “bruised like.” Some of it was brown colored, or yellow, and appeared wilted. It looked as if it had been there for some time.

Here, as in Weingarten, the defendant’s proof failed to overcome the plaintiff’s prima facie case. C. H. Coleman, the first store employee to assist Mrs. Waddy after her fall, was somewhat indefinite about which of three employees had the duty of sweeping the floor.

The defendant relied primarily upon the testimony of R. L. Thomas, the employee who testified that he swept the floor on the day in question and was required to keep a monthly record of four daily sweepings. That record for the month in question was introduced, but the jury may well have been unimpressed by it. The form required the employee to write down “the exact time” of each sweeping. Thomas testified that he would write down the time when he finished each sweeping. He said that it took him about 20 minutes to sweep the store “if they don’t call me for something else.” He also said that the times would vary, for “they’ll call me to gather in the buggies or something like that.”

Despite the understandable variations in Thomas’s schedule, which he explained with candor, the monthly record relied upon contains entries so monotonously uniform with respect to time as to raise a doubt about the veracity of the record. For instance, with respect to the third daily sweeping, on 20 of the 26 business days in the month Thomas recorded his finishing time as “1 P M.” On four of the other days it was “1 30 P M.” On only one day in the entire month was that third sweeping recorded as having been before one o’clock. On that day, April 9, the finishing time was recorded as 12:45 P.M. As plaintiff’s counsel pointed out to the jury, that was the day on which Mrs. Waddy fell, at about 12:50. Merely from the appearance of the sweeping record itself the jury could justifiably have concluded that the entries did not reflect the truth. Furthermore, the jury could have considered the amount of debris on the floor, as described by Mrs. Waddy, in determining whether the store employees should have known of its presence. On the record as a whole we find substantial evidence to support the verdict.

Affirmed.

Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I dissented in J. Weingarten, Inc. v. Thompson, 251 Ark. 914 (1972), 475 S.W. 2d 697, and dissent here. I consider the evidence here at least as unsubstantial as it was in Weingarten. I still am unable to comprehend why the credibility or incredibility of the defendant’s witnesses has any place in our determining whether the defendant’s motion for a directed verdict should have been granted.

I would reverse the judgment in this case, too.

I am authorized to state that Mr. Justice Jones joins in this dissent.


author: Lyle Brown, Justice. John A. Fogleman, Justice,

text:
    Martha WHITE et al v. Carl L. LEWIS
    5-6092
    487 S.W. 2d 615
    Opinion delivered November 27, 1972
    [Rehearing denied January 8, 1973.]

      Martin, Dodds, Kidd, Hendricks <¿r Ryan, for appellants.

      Paul A. Schmidt, for appellee.
   Lyle Brown, Justice.

This suit was instituted by appellee Carl L. Lewis to enjoin appellants, the Whites, from converting a garage area into a beauty salon, allegedly in contravention of the terms of a bill of assurance. The court sustained appellee’s prayer, holding that the bill of assurance could not be amended for twenty-five years from March 16, 1956, the date of its recordation. On appeal it is contended that the bill of assurance could be amended prior to the twenty-five year period.

The parties are owners and occupiers of residences in Maryland Terrace, an addition to North Little Rock. The determinative portions of the bill of assurance are as follows:

All of the land described herein and any interest therein shall be held and owned subject to and in conformity with the following restrictions and covenants which subject to being amended or cancelled as provided hereinafter, shall be and remain in full force and effect for twenty-five years, to-wit:
No lot shall be used except for residential purposes. No building shall be erected, altered, placed, or permitted to remain on any lot other than one one-family or two-family dwelling not to exceed one and one-half stories in height and a private garage for not more than two cars.
These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of twenty-five years from the date these covenants are recorded, after which said covenants shall be automatically extended for successive periods of 10 years unless an instrument signed by a majority of the owners of the lots has been recorded, agreeing to change said covenants in whole or in part.

Appellants filed an agreement to alter in part the bill of assurance, which agreement was signed by more than one-half of the property owners in the subdivision. The twenty-five year period has not yet expired.

Appellants contend there is uncertainty in the language of the covenant and therefore freedom of restraint should be decreed, relying on Hays v. Watson, 250 Ark. 589, 466 S.W. 2d 272 (1971). The same case is authority for the proposition that the intention of the parties, as shown by the covenants, shall govern.

When the recited provisions of the bill of assurance are read in toto we think the restriction and the provisions for waiver are unambiguous. In simple terms it is provided that the covenants shall be binding for a period of twenty-five years from date of recordation, after which they are automatically, extended for successive periods of ten years, unless an instrument signed by a majority of the property owners is filed agreeing to a change in whole or in part.

It is clear to us that the chancellor correctly interpreted the bill of assurance.

Affirmed.

Fogleman, J., dissents

John A. Fogleman, Justice,

dissenting. I might readily agree with the construction given the bill of assurance by the chancery court and the majority if the last paragraph quoted stood alone. Since it does not, I cannot. Reading the introductory paragraph leads me to only one conclusion, i.e., that the restrictions and covenants can be amended by a majority within the initial 25-year period as well as thereafter. If this were not the intent the words “subject to being amended or cancelled as provided hereinafter” in the first paragraph would have been omitted and the bill would then have the exact meaning ascribed to it by the majority. But we are not at liberty to read words out of the instrument and should recognize that there was some purpose for inserting them. It should be noted that the first paragraph does not say, as it might if the majority’s construction is correct, that the restrictions and covenants shall be and remain in full force and effect for 25 years and thereafter be subject to change.

It seems to me that the word “as” is used in the conjunctive sense, that is, meaning in the same way or manner. Thus the introductory clause should be read as follows:

All of the land described herein and any interest therein shall be held and owned subject to and in conformity with the following restrictions and covenants which, subject to being amended or can-celled in the same manner provided hereinafter, shall be and remain in full force and effect for 25 years***.

Thus, the only restriction on the change relates to the manner in which it is to be accomplished and imposes no limitation on time. The manner provided is by an instrument signed by a majority of the owners of the lots.

I would reverse the decree.


author: John A. Foglemán, Justice.

text:
    Arkansas STATE HIGHWAY COMMISSION v. Melvin ROBINSON et ux
    5-6073
    486 S.W. 2d 676
    Opinion delivered November 27, 1972

      Thomas B. Keys and Philip N. Gowen, for appellant.

      James K. Young and Ray Blair, for appellees.
   John A. Foglemán, Justice.

Appellant contends that there was not substantial evidence to support the jury verdict awarding $4,800 to appellees as just compensation for the taking of 2.73 acres from a 155-acre tract. We do not agree.

Jackson Ross, a real estate broker and appraiser called as a witness by appellant, testified that the whole tract had a value of $46,809 prior to the taking of September 23, 1965. He fixed the value after the taking at $31,490, making the difference $15,319. Appellant argues that there was no reasonable basis for this testimony because he testified that 10 acres of appellees’ remaining lands were virtually destroyed by flooding as a result of the highway construction on the tract taken, but had never seen water on the land, and that this accounted for $1,500 of his estimate of the just compensation due the landowners. Ross stated that this area was lower than surrounding lands, and that the grass on it had been pretty and green prior to the taking, but afterwards the whole area was low and marshy and a part of it moss-covered. Melvin Robinson, one of the appellees, testified that four to six acres were damaged by flooding from highway culverts.

A further attack is made on the Ross testimony because the witness first stated that he had looked at the highway construction plans and later testified that he was not familiar with them. Appellant contends that this apparent contradiction indicates a degree of irresponsibility rendering the testimony improper and of no aid to the jury in arriving at a verdict. It is our understanding from the record that construction of the highway is complete, so lack of familiarity with the plans probably would not have any significance. Appellant’s arguments relating to the landowner’s testimony are that it was self-serving and that, in spite of his testimony as to damages, appellees subsequently improved the property by adding a bathroom to their residence and constructing a shed on the property. Melvin Robinson had fixed the amount of just compensation at $18,160. Appellant has not called our attention to any objection by it to any testimony by the witnesses or any motion to strike that testimony. In any event, arguments now advanced pertain to credibility of the witnesses and the weight to be given to their testimony. These determinations were made by the jury. Even if the element of damages as to the 10 acres is deducted from the Ross estimate, the remainder of $13,819 is still nearly three times the jury verdict. The jury obviously considered the frailties pointed out by appellant. Since we do not agree that the factors pointed out by appellant made the testimony insubstantial, we affirm the judgment.


author: J. Fred Jones, Justice.

text:
    James Quinten SMITH et ux v. Theta C. VILLARREAL
    5-6094
    486 S.W. 2d 671
    Opinion delivered November 27, 1972

      Smith, Williams, Friday, Eldredge ir Clark, by: Michael G. Thompson, for appellant.

      Kenneth Coffelt, for appellee.
   J. Fred Jones, Justice.

This is an appeal by James Quinten Smith and his wife from a judgment of the Pulaski County Circuit Court setting aside a jury verdict and granting a new trial in a suit for personal injuries and property damage.

The facts of record indicate that Mrs. Smith and Mrs. Villarreal sustained personal injuries and damage to the automobiles they were driving when the automobiles collided headon while traveling in opposite directions on state Highway 294. Mrs. Villarreal filed suit against Mr. and Mrs. Smith and the Smiths counterclaimed against Mrs. Villarreal, each alleging that their alleged damages were the proximate result of the other’s negligence. There was conflicting evidence on the primary issue before the trial court as to the relative position of the two automobiles on the highway in relation to their proper lanes for traffic at the time of impact.

The jury returned a verdict for Mr. and Mrs. Smith upon the complaint of Mrs. Villarreal and in favor of Mrs. Villarreal on the counterclaim of Mr. and Mrs. Smith. Mrs. Villarreal as well as Mr. and Mrs. Smith moved to set aside the respective verdicts against them as being not sustained by sufficient evidence (Ark. Stat. Ann. § 27T901 [Repl. 1962]), and both parties prayed for a new trial as to the issues against the other. The trial court granted both motions and entered an order setting aside the verdicts as to both parties and granting a new trial on all issues. Mr. and Mrs. Smith have appealed and designate the point upon which they rely as follows:

“The trial court invaded the province of the jury and abused its discretion in setting aside the verdicts in this case.”

Both sides argue that the preponderance of the evidence is in their favor in this case. The trial judge went to considerable length in reviewing the evidence and in stating his reasons for concluding that the jury verdicts were not sustained by sufficient evidence. We have examined the entire record and find no evidence that the trial court abused its discretion in setting aside the verdicts and granting a new trial in this case.

We have held that the granting of a new trial addresses itself to the sound discretion of the trial court and that this court will not reverse unless it appears that the trial court has abused its discretion. Our holdings on this point have been so often and consistent we consider it unnecessary to quote from former opinions. See, however, Richardson v. State, 47 Ark. 562; Blackwood v. Eads, 98 Ark. 304, 135 S. W. 922; Mo. Pac. Rd. Co. v. Brewer, 193 Ark. 754, 102 S. W. 2d 538; Worth James Constr. Co. v. Herring, 242 Ark. 156, 412 S. W. 2d 838; Mo. Pac. R.R. Co. v. Clark, 246 Ark. 824. 440 S. W. 2d 198: Dorev v. McCoy, 246 Ark. 1244, 422 S. W. 2d 202; Heil v. Roe, 253 Ark. 139, 484 S.W. 2d 889.

The judgment is affirmed.