text:
    Jesse FORD et al v. Orean Ford KING et al
    79-237
    594 S.W. 2d 227
    Supreme Court of Arkansas
    Opinion delivered February 25, 1980

      John W. Walker, P.A., by: DavidE. Parker, Jr. and John W. Walker, for appellants.

      Spencer, Spencer & Shepherd and Shackleford, Shackle-ford & Phillips, P.A., for appellees.
   George Rose Smith, Justice.

The appellants intervened in this partition suit, contending they are heirs of Rafe Ford and are therefore entitled to share in proceeds arising from the sale of the land being partitioned. The chancellor dismissed the intervention, because the appellants had not proved their claim of heirship. The only point argued is that the decree is against the preponderance of the evidence.

Rafe Ford owned 200 acres of land in Union county at his death in 1928. Apparently the property remained in the possession of some of his descendants for 50 years. Finally, in March, 1978, nine of Ford’s descendants brought this suit for partition and determination of heirship. In May the court entered a decree determining heirship and ordering a partition sale. In June the appellants intervened, asserting that they too are descendants of Rafe Ford. The chancellor directed that an eighth of the proceeds of sale be retained until the disposition of the intervention, which was dismissed in February, 1979, after an extended hearing.

The appellants are descendants of Susie Ford, who, they contend, was a legitimate or illegitimate daughter of Rafe Ford. At the outset we must reject any claim based upon illegitimacy. In 1928 there could be no inheritance by an illegitimate child with respect to the estate of the father. Crawford & Moses Digest (1921), § 3473. A similar statute was held invalid in Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 (1977), but that decision was not retroactive except as to litigation pending on April 26,1977, the date of the decision. Compton v. White, 266 Ark. 648, 587 S.W. 2d 829 (1979); Frakes v. Hunt, 266 Ark. 171, 583 S.W. 2d 497 (1979). This case was not pending on the critical date.

There remains the claim that Susie Ford was Rafe Ford’s legitimate daughter. The appellants argue that Sylvia Furlough, Susie Ford’s mother, was married to Rafe Ford and that Sylvia lived with Rafe Ford for many years, “during which Rafe Ford fathered Susie and reared her in his house.” The trouble with that argument is simply that there is no proof to support the quoted assertion. Susie Ford was born not later than 1874. Her alleged father, Rafe, did not marry her alleged mother, Sylvia Furlough, until 1900. There is no testimony that Rafe even knew Sylvia in 1874, much less that he was then married to her and reared Susie in his house.

The remaining argument is that Susie was the illegitimate child of Rafe and Sylvia and that she became legitimate when Rafe acknowledged her as his child. C & M. Digest, § 3474, substantially re-enacted as Ark. Stat. Ann. § 61-141 (b) (Repl. 1971). That is the only theory having any substantial support in the testimony.

Only three witnesses — Fannie White, Buella Fuller, and Alex Dixon — testified that Rafe Ford ever said that Susie was his daughter. The first two were apparently not related to Rafe Ford and gave no persuasive details about his bare statement (which he might have made in referring to his stepdaughter). The third witness, Alex Dixon, is a grandson of Rafe Ford if Susie was Rafe’s daughter, but his testimony is offset by that of Ray Ford, unquestionably a grandson. The oral testimony narrows down to an issue of credibility, as to which the chancellor’s opportunity to weigh the testimony was greatly superior to ours.

The only documentary proof strongly supports the chancellor’s conclusion. Rafe Ford was probably married to three different women, but only one marriage license was introduced. It shows that he married Sylvia Furlough in 1900, when he was 41 and she was 39. Sylvia was therefore born about 1861. But the appellants introduced in evidence and rely upon a marriage license showing that Susie Ford was 18 when she married Alexander Dixon, 22, in 1892. Sylvia would therefore have been only 13 when Susie was born in 1874 — a possibility but certainly not a probability. Moreover, the appellees introduced another marriage license reciting the marriage of Susie Ford, 18, to Ben Howard in 1885. If that was the same Susie Ford, Sylvia would have been only six when Susie was born. The record leaves some doubt about whether Sylvia was Susie’s mother.

In another respect the appellants’ proof is decidedly deficient. That is, the statute is effective only if Susie Ford was actually Rafe’s illegitimate daughter. In most cases presenting a similar issue there is substantial proof of the putative father’s access to the mother or relationship with her, as by oral testimony, letters, birth certificates, death certificates, marriage licenses, or other evidence. See, for example, Lucas v. Handcock, 266 Ark. 142, 583 S.W. 2d 491 (1977); DeWeese v. Williams, 255 Ark. 728, 502 S.W. 2d 94 (1973); Daniels v. Johnson, 216 Ark. 374, 226 S.W. 2d 571, 15 A.L.R. 2d 1401 (1950); Martin v. Martin, 212 Ark. 204, 205 S.W. 2d 189 (1947). But here there is no proof whatever that Rafe Ford even knew Sylvia Furlough in 1874, 26 years before he married her, much less that at the age of 15 he fathered her child. We conclude that the appellants’ proof leaves the decisive issues too far in the field of speculation to warrant our saying that the chancellor’s decision is clearly against the preponderance of the evidence.

Affirmed.

Mays, J., not participating.


source: Caselaw Access Project

author: Frank Holt, Justice. John A. Fogleman, Chief Justice,

license: Public Domain

text:
    Glen HAWTHORNE, d/b/a GLEN HAWTHORNE WHOLESALE MEAT (REEDER MEAT COMPANY), Uninsured Employer v. Gloria DAVIS, Widow of James DAVIS, Deceased Employee
    79-336
    594 S.W. 2d 844
    Supreme Court of Arkansas
    Opinion delivered February 25, 1980

      Wood, Smith, Schnippert & White, for petitioner.

      W. H. "Dub” Arnold, for respondent.
   Frank Holt, Justice.

Appellee’s husband was employed at the appellant’s slaughterhouse operation. The commission agreed with the finding of the hearing judge that the deceased was acting within the scope of his employment at the time of his death and awarded death benefits to the appellee. The Court of Appeals affirmed the award on the ground that the findings of the commission were supported by substantial evidence. We granted certiorari to clarify two issues: (1) whether there are two evidentiary rules in Arkansas regarding the establishment of the agency relationship, and (2) whether hearsay evidence alone constitutes sufficient “competent evidence” to support an award under the Workmen’s Compensation Act. Ark. Stat. Ann. § 81-1325 (b) (4). See also Ark. Stat. Ann. Vol. 3A, Rules of the Supreme Court, Rule 29 (6) and (4b) (Repl. 1977).

We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the findings of the commission, and the commission’s findings will be upheld if there is any substantial evidence to support their action even if the preponderance of the evidence would indicate a different result. Barksdale Lumber Co. v. McAnally, 262 Ark. 379, 557 S.W. 2d 868 (1978); and Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979). Doubtful cases are resolved in favor of the claimant, and we are not concerned with the weight of the evidence nor the credibility of the witnesses since we do not review the case de novo. O. K. Processing, Inc., et al v. Servold, 265 Ark. 352, 578 S.W. 2d 224 (1979).

Appellant first contends that the commission erred in finding that the appellee’s decedent’s death arose out of and in the course of his employment because the finding was not supported by any substantial evidence. The appellant argues that the only evidence regarding whether the decedent was acting within the scope of his employment was hearsay testimony by a local attorney as to a conversation he had with appellant’s son the day following the accident. At the time of the conversation appellee had requested this attorney to investigate a possible wrongful death action arising out of her husband’s death. The attorney testified that the appellant’s son, and purported agent, told him that he was in charge of the appellant’s slaughterhouse that day; he had made the decision to close down early; the decedent worked for him at this plant; and he had said to decedent: “Why don’t we just take off because I need to go to Glenwood to look at some cattle at the sale barn.” The decedent transported him there on his motorcycle. Upon leaving on his motorcycle, the decedent was killed in a collision with a car. Appellant argues that there is no evidence that the deceased was acting within the scope of his employment inasmuch as neither agency nor the extent of an agent’s authority can be shown, as here, by his own declarations in the absence of the party to be affected. At the hearing, the son testified that he did not remember what he told the attorney; he was not the deceased’s boss; he had no authority to buy cattle and no authority at the plant; and he did not go to Glenwood to buy cattle or for any other business purpose.

It is true that we have held that neither agency nor the extent of an agent’s authority can be shown by his own declarations in the absence of the party to be affected. Zullo v. Alcoating, Inc., 237 Ark. 511, 374 SW. 2d 188 (1964). It is well settled, however, that the existence of the agency relationship may be established by the testimony of other witnesses who possess knowledge of the facts. See Boddy v. Thompson, 179 Ark. 71, 14 S.W. 2d 240 (1929); and Beekman Lumber Co. v. Kittrell, 80 Ark. 228, 96 S.W. 988 (1906). Circumstantial evidence may be sufficient to establish agency, and the declarations of the purported agent may be used to corroborate other evidence of agency. See Bell v. State, 93 Ark. 600, 125 S.W. 1020 (1910); Moore v. Ziba Bennitt & Co., 147 Ark. 216, 227 S.W. 753 (1921); Thompson v. Hollis & Co., 194 Ark. 1, 104 S.W. 2d 1065 (1937); and Richards v. State, 497 S.W. 2d 770 (Tex. Civ. App. 1973). It is undisputed that the son kept the keys to the plant in his possession and the deceased, as on the morning of the accident, would go by his home to pick up the keys. The son was paid higher wages than the deceased. They were the only two employees at this particular plant. The appellee’s widow testified that she had answered the telephone at her home when the purported agent told her to tell her husband “what to do.” Further, as we discuss later, the asserted “hearsay” evidence is now competent evidence.

We hold that the testimony of the attorney, the appellee and appellant’s son, together with the circumstantial evidence, is sufficient to establish the existence of an agency relationship between the appellant and his son. There are not, as argued in the petition for review, two separate evidentiary rules in Arkansas for the establishment of the agency relationship.

We now turn to appellant’s contentions that the commission erred in (1) finding that the deceased sustained an accidental death arising out of and in the course of his employment, because the record does not disclose that the accident grew out of or resulted from the employment, and (2) in basing its decision on certain hearsay testimony inasmuch as hearsay evidence in and of itself cannot support an award under the Workmen’s Compensation Act. The thrust of appellant’s next argument is that the testimony of the attorney was the only evidence demonstrating that the deceased was killed in an accident which arose out of a trip which was business connected. He asserted that the testimony of the attorney was clearly hearsay, and hearsay evidence does not constitute “competent evidence” sufficient to support an award. The Court of Appeals did not reach the issue on the ground that no objection was made to the admission of the hearsay testimony at the hearing; and, therefore, the issue cannot be considered for the first time on appeal. Jeffery Stone Co. v. Raulston, 242 Ark. 13, 412 S.W. 2d 275 (1967); and Clark v. Peabody Testing Service, supra.

Admittedly, the only evidence that the trip to Glenwood was business connected was the testimony of the attorney and the deceased’s brother as to prior statements made by the appellant’s son. They testified to the effect that the appellant’s son told the attorney that he had asked the decedent to take him to Glenwood to look at some cattle for his father’s slaughterhouse operations. We cannot agree with appellant’s contention that their testimony is hearsay, because under our new rules of evidence, the statements by the son fall within the definition of prior statement by a witness as set forth in Ark. Stat. Ann. § 28-1001, Rule 801 (d) (1) (i) (Repl. 1979) which provides:

A státement is not hearsay if: . . .(l)Prior statement by a witness. The declarant testifies at the trial or hearing, and is subject to cross examination concerning the statement, and the statement is (i) inconsistent with his testimony and, if offered in a criminal proceeding, was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a [deposition]. . .

At trial the son testified that he did not remember what he told the attorney, he was not the deceased’s supervisor, and he had not gone to Glenwood to look at some cattle. He was cross examined regarding his alleged statements to the attorney. These prior statements were clearly inconsistent with his testimony at trial.

When we consider all the recited evidence and the reasonable inferences deducible therefrom in the light most favorable to the appellee, as we must do on appeal, we are of the view that the commission’s finding is supported by substantial evidence.

Appellant finally contends that the commission erred in finding that the widow of the decedent, the appellee, is allowed benefits inasmuch as there was no proof of dependency as required by Ark. Stat. Ann. § 81-1315(c) (Repl. 1972). Suffice it to say, the issue was not raised below, and we will not consider it on appeal. Jeffery Stone Co. v. Raulston, supra.

The Court of Appeals’ decision is affirmed.

Fogleman, C.J., dissents.

John A. Fogleman, Chief Justice,

dissenting. There is one important element of proof that has been completely overlooked in arriving at the conclusion that James Davis was acting within the scope of his employment. It is all very well to say that the statements of Hawthorne’s son to Sanders were not hearsay and I agree that they were not. It is barely possible to say that there is sufficient evidence, outside the testimony relating to the statements of the son, to constitute substantial evidence that he was some kind of agent of Glen Hawthorne, but there is absolutely nothing outside the son’s statements and actions to show the extent of his authority or that this authority was sufficiently broad to bring the deceased employee within the scope of his employment at the time of his fatal injury.

Keeping the keys to the secondary plant operated by Glen Hawthorne certainly did not make his son a general agent. It did not even tend to show the extent of his authority, except to unlock the doors. The payment of a salary higher than that of the deceased employee may tend to show agency, but is has nothing whatever to do with the extent of the authority of the recipient of the higher salary. Telling the employee “what to do” has nothing whatever to do with the extent of the authority of the speaker, when we are not informed as to what he had told the employee to do, particularly when there is not a single word to even intimate that the principal had any idea what his son was telling the employee to do. There is not a word to indicate that Davis had ever taken or transported the son anywhere prior to the date of the fatal accident, either with or without Glen Hawthorne’s knowledge or consent, or that he had ever used his motorcycle for purposes of the business in which he was employed. There is absolutely no evidence other than the statement the son made to Sanders that comes anywhere near showing that the trip was connected with the business. The majority does not bother to say how the claimant met the burden of showing the extent of the son’s real or apparent authority or that Davis was acting within the scope of his employment.

I have a great deal of difficulty translating the statement, “I need to go to Glenwood to look at some cattle” into (1) an order to Davis to transport the speaker there or (2) a statement that the speaker was looking at cattle for his father’s slaughterhouse operations. There is not a word to show that the son had ever “scouted” for cattle to be purchased for the business, had ever purchased any cattle or had ever been given the authority to do either.

There may not be two rules of evidence relating to proof of agency, but I do not think any Arkansas case can be found where the extent of the agent’s authority has been determined upon the basis of evidence of this sort in any action in tort or contract. So there must be two rules as to the burden of proving the agent’s authority.

There is not a single circumstance to support the statement of the son as to the extent of his authority. There is nothing whatever to show that he had apparent authority in the premises. Statements and actions of an alleged agent may be admissible to corroborate other evidence to establish agency, but neither agency nor scope of the agency can be established by declarations or actions of the purported agent. B. J. McAdams, Inc. v. Best Refrigerated Express, Inc., 265 Ark. 519, 579 S.W. 2d 608.

If we apply the rules of law governing proof of agency, there is not a scintilla of evidence, much less substantial evidence, to show that the younger Hawthorne was acting within the scope of his real or apparent authority as the agent of his father or that Davis was acting within the scope of his employment when he suffered the fatal injury. We have said that, to be substantial, evidence must be persuasive. It must do more than create a suspicion of the existence of the fact to be established. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Pickens-Bond Const. Co. v. Case, 266 Ark. 323, 584 S.W. 2d 21. To find the evidence that Davis was acting within the scope of his employment to be substantial, one must be indeed very easily persuaded. I could do no more than suspect that Davis was in the scope of his employment.

I would reverse the decision of the Court of Appeals and dismiss the claim.


author: John F. Stroud, Justice.

text:
    Lloyd HOLCOMB v. STATE of Arkansas
    CR 80-11
    594 S.W. 2d 22
    Supreme Court of Arkansas
    Opinion delivered February 25, 1980

      R. A. Schneider, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   John F. Stroud, Justice.

Lloyd Holcomb was convicted of rape in Garland County and sentenced to five years imprisonment. On appeal he contends that the results of his polygraph examination should have been suppressed despite his stipulation to the contrary, that he should have been allowed to cross-examine the polygraph examiner more fully, and that it was error to refuse his proffered instruction concerning expert testimony. We agree with appellant’s first point and, accordingly, reverse the conviction.

On May 1, 1979, appellant went to trial on charges of rape and deviate sexual activity by forcible compulsion, wherein he asserted the defense of consent. Prior to his trial, appellant and his counsel entered into a written agreement with the prosecuting attorney which provided that both the appellant and the prosecutrix would submit to polygraph examinations, the results of which would be admissible at trial. The portion of the stipulation most pertinent to this appeal reads as follows:

. . . that said defendant and Carolyn Sue Magby shall submit to a polygraph examination to be conducted by officers and employees of the Arkansas State Police, who both parties admit have qualified polygraph examiners. The parties also agree that the results of the examinations, including the questions, answers, recordings, reactions, opinions of the examiner, and anything else pertaining to the examinations, shall, subject to proper exercise of discretion by the trial court, be admissible as substantive and/or impeachment evidence on behalf of either party at the trial of the defendant. . . .

The polygraph tests were conducted by Mr. Barney Phillips, an employee of the Arkansas State Police, on April 2, 1979, at the State Police Headquarters in Little Rock. Following the examination, but before trial, appellant withdrew his consent to the stipulation ánd filed a motion to suppress the results of the polygraph examination. The court overruled the motion and held that the appellant was bound by the stipulation. The examiner testified at trial that the prosecutrix was “substantially telling the truth,” while appellant was “not telling the complete truth” during his examination. The reports and opinions of the examiner were received into evidence over appellant’s renewed objection. Aside from the polygraph evidence, the jury was presented with only the conflicting testimony of the prosecutrix and appellant as direct evidence as to what transpired in the Holcomb home on August 21, 1978. The jury found appellant guilty of rape, but not guilty of deviate sexual activity. Following the recommendation of the jury, the trial court sentenced appellant to five years imprisonment. For reversal, appellant alleges three points of error.

Appellant’s first point for reversal is that the trial court erred in overruling appellant’s motion to suppress the introduction of the results of the polygraph examination. The results of polygraph examinations have been offered into evidence in only three cases that have reached this court. In Lang v. State, 258 Ark. 504, 527 S.W. 2d 900 (1975) and Foots v. State, 258 Ark. 507, 528 S.W. 2d 135 (1975), stipulations were entered into in criminal cases for the defendant to voluntarily submit to a polygraph examination and for those test results to be admitted at the trial. In both instances, polygraph examination results administered prior to the stipulations were offered, and in both instances this court held them inadmissible as they did not conform to the terms of the stipulation. In the Foots case, the testimony of a second examiner was refused by the trial court in that he was not a licensed examiner, and in the opinion of the trial court was not qualified as an expert witness. This court found that the trial court’s discretion was not abused. The last case submitted to this court concerning polygraph tests was State v. Bullock, 262 Ark. 394, 557 S.W. 2d 193 (1977), where we reversed the trial court and held that the test results should have been excluded as there was no valid stipulation for their admission.

We do not agree that an accused can enter into a valid written stipulation for the introduction of polygraph examination results at a trial and then renege on the stipulation when he learns the results are unfavorable. However, the stipulation of appellant in this case admitted that the state police had qualified examiners, but did not admit that Barney Phillips was a qualified polygraph examiner. It was admitted by Barney Phillips that he was not licensed by the state pursuant to the Polygraph Examiner’s Act adopted in 1967 by the Arkansas General Assembly, which provides, in part, in Ark. Stat. Ann. § 71-2206 (Repl. 1979):

It shall be unlawful for any person, including a city, county or state employee, to administer polygraph examinations or attempt to hold himself out as a polygraph examiner without a license approved by the board and issued by the board.

The terms of the stipulation entered into by appellant clearly imply that he intended the operator to be legally qualified. Since Barney Phillips was not licensed pursuant to the Polygraph Examiner’s Act and it would be unlawful to hold himself out as such, we felt the results of his examination were not contemplated by the stipulation. Although the provisions of Ark. Stat. Ann. § 42-901 (Repl. 1977), adopted by the Arkansas General Assembly in 1975, precluded Barney Phillips from committing a misdeamor by the giving of the polygraph examination to the appellant, that statute did not make him a qualified examiner. That statute provides:

Notwithstanding the provisions of Act 413 of 1967 all law enforcement agencies in this State are hereby authorized to use a Psychological Stress Evaluation instrument to test or question individuals for the purpose of determining and verifying the truth of statements.

The trial court erred in admitting the testimony of Barney Phillips over appellant’s objection, inasmuch as Barney Phillips was not a qualified polygraph examiner as contemplated by appellant’s stipulation.

Appellant’s second point for reversal is that the court erred in restricting the cross-examination of the polygraph examiner, and his third point for reversal is that the trial court erred in refusing the jury instruction concerning expert testimony. Our decision to suppress bn retrial the testimony of Barney Phillips, the polygraph examiner, makes it unnecessary to decide appellant’s second and third points for reversal.

Reversed and remanded.


author: John A. Fogleman, Chief Justice.

text:
    Glenn BARNUM v. STATE of Arkansas
    CR 79-190
    594 S.W. 2d 229
    Supreme Court of Arkansas
    Opinion delivered March 3, 1980

      John W. Walker, P.A., by: James P. Massie, for appellant.
    Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

Appellant Barnum was sentenced to a term of 20 years for aggravated robbery and a term of 24 years for attempt to commit capital murder after trial to a jury, which found him guilty of those offenses. He seeks reversal on the ground that the trial court erred in denying his motion for a mistrial. The motion was based upon the return of a verdict by the jury which appeared to be a finding of not guilty but which provided for a sentence to a term of years. After the motion of appellant’s attorney for a mistrial was denied, the trial judge directed the jury to return to the jury room and continue its deliberations and decide what it wanted to do or what it had done. Since we find no abuse of discretion in the denial of the motion, we affirm the judgment.

When the jury first returned to the courtroom, after more than an hour of deliberations, the trial judge asked the foreman if the jury had reached a verdict. When the judge recieved an affirmative answer and was told that this verdict was unanimous, the foreman, at the judge’s request, handed the written verdict to the clerk, who immediately handed it to the judge. The judge promptly stated that the verdict seemed ambiguous and unclear. Then, as he was directing the jury to return and reconsider, appellant’s attorney asked to see the verdict. It was after the attorneys were permitted to examine the written verdict that the judge directed the jury to take the verdict back, read it, give it to the foreman and make a decision as to what it wanted to do and what it had done. When he asked if there was any objection, appellant’s attorney moved for a mistrial. The judge denied the motion and directed the jury to return to the jury room and continue its deliberations. Three minutes later the jury returned to the courtroom with the verdict upon which the appellant was sentenced. Before the verdict was handed to the clerk, the judge asked the foreman if the jury had reached a verdict and received an affirmative answer. The judge then asked whether the verdict spoke what the jury originally had in mind and the foreman responded affirmatively. The verdict was then handed to the clerk and read by the clerk at the judge’s direction. It was in proper form but the judge, on his own motion, directed that the jury be polled. Each juror then stated his name and the words, “This is my verdict.” The judge then asked, “Anyone to the contrary?” When appellant’s attorney wanted the jury interrogated further, the judge asked the jury whether it was the intention of any member of the jury, when it first returned from the jury room, to return a verdict of not guilty as to either count. Each member of the jury then responded, “No,” or moved his head. The judge then asked if it was correct that the verdict returned reflected the jury’s verdict, and each juror moved his head or answered, “Yes.”

Of course, we do not have a reproduction of the verdict as it was first brought to the courtroom. It is obvious from the colloquy among the judge and the attorneys that the jury had been provided with a form of verdict with a statement that it found appellant guilty of one charge and fixed his punishment at a term to be determined by the jury and then a statement that the jury found the appellant not guilty of that charge followed by the same statements as to the other charge. It is also obvious that the jurors, or their foreman, had filled in the blanks following the statements that appellant was guilty of each offense with a term of years to be served but that the foreman had signed his name under the lines stating that appellant was not guilty. Although the state contends that the foreman signed both the form showing a finding of guilty and that indicating a finding of not guilty, we cannot be sure of that from the discussion. The judge properly found the verdict ambiguous.

A mistrial is a drastic remedy and resort is to be made to it only in cases where prejudice cannot otherwise be removed. Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612; Limber v. State, 264 Ark. 479, 572 S.W. 2d 402. The trial court has a broad latitude of discretion in deciding whether to grant a mistrial. Wright v. State, 243 Ark. 221, 419 S.W. 2d 320. See also, Alexander v. State, 264 Ark. 11, 569 S.W. 2d 106. The trial court’s exercise of discretion will not be disturbed on appeal in the absence of abuse or manifest prejudice. Cobb v. State, supra. The declaration of a mistrial is appropriate only if justice cannot be served by a continuation of the trial. Foots v. State, 258 Ark. 507, 528 S.W. 2d 135.

Not only do we fail to find any abuse of discretion, we feel that the trial judge acted with propriety in the premises. In Gilchrist v. State, 100 Ark. 330, 140 S.W. 260, we said:

*** All the cases concur that the jury have full power over their verdict, and may amend it, or recede from it, at any time before it has been received and recorded, and themselves have been discharged from the case. ***

Amendment of a verdict, made before it is entered of record, before the jury has separated, and after a poll of each juror reveals that each understands the effect of the verdict, is entirely proper. House v. State, 230 Ark. 622, 324 S.W. 2d 112. See also, Holden v. State, 156 Ark. 521, 247 S.W. 768. Over 75 years ago, we said that it was no longer questioned that a jury may amend its verdict to conform to its finding and to put it in proper form at any time before they have separated and before the verdict has been entered of record and the jury discharged. Hamer v. State, 104 Ark. 606, 150 S.W. 142. Even after a jury had been discharged, but before the jurors had dispersed, or mingled with bystanders at the trial, a recall of the jurors and a direction to them to retire and amend a defective verdict, over the objection of the accused, was held to be proper performance of the duty of the trial judge. Levells v. State, 32 Ark. 585. In the cited case, we relied upon a British case sustaining a verdict reached after the jurors had been directed to again retire three or four minutes after the original ambiguous verdict had been recorded following the trial judge’s statement in open court that it constituted an acquittal. We have said that to reverse a judgment because of the amendment of a verdict to conform to the intention of the jury, when it is clearly established by poll of the jury resulting in an answer by each individual juror that the amended verdict is his own, would put form above substance. Cain v. State, 183 Ark. 606, 37 S.W. 2d 108; Stinson v. State, 125 Ark. 339, 189 S.W. 49; Gilchrist v. State, supra. See also, Frick v. State, 177 Ark. 404, 6 S.W. 2d 514; Hamer v. State, supra; Byars v. State, 259 Ark. 158, 533 S.W. 2d 175.

The trial judge acted appropriately in the circumstances and to have declared a mistrial would have been an abuse of discretion. See United States v. Thomas, 521 F. 2d 76 (8 Cir., 1975).

The judgment is affirmed.

Mays, J., not participating.


author: George Rose Smith, Justice.

text:
    Billy BLAKEMORE et al v. STATE of Arkansas
    CR 80-21
    594 S.W. 2d 231
    Supreme Court of Arkansas
    Opinion delivered March 3, 1980

      McArthur & Lassiter, P.A., for appellants.

      Steve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The three appellants, tried jointly before a jury, were all found guilty of interference with a law enforcement officer. Ark. Stat. Ann. § 41-2804 (Repl. 1977). Of the four points for reversal only two need be discussed, it being unlikely that the other asserted errors will occur upon a retrial.

The State’s principal witness was Officer Fowlkes, who testified that the defendants forcibly prevented him from taking an intoxicated person into custody. At the beginning of the officer’s cross examination he said that on the day before the trial he had read his typewritten statement, but he did not have a copy with him. When defense counsel asked for a copy for purposes of cross examination, the court ruled that the request came too late, as the case had been pending for over a year. When the same request was made with respect to another witness’s statement, the court again denied the request, saying to defense counsel: “You’ve had months and months to discover the State’s case.” The prosecutor resisted the request, arguing that defense counsel was not entitled to the State’s work product.

The court’s rulings were wrong. Criminal Procedure Rule 17.1(b), governing discovery, merely requires the State to disclose the names and addresses of the State’s witnesses. It is provided by statute, however, that after a witness called by the State has testified on direct examination, the court “shall,” on motion of the defendant, order the State to produce any relevant statement of the witness in its possession. Ark. Stat. Ann. § 43-2011.3 (b) (Repl. 1977). Thus the requests for the statements were timely.

The Attorney General concedes that the statements were not work product and that the defense was entitled to them. It is argued, however, that the defense should have asked that the witnesses’ testimony be stricken. That remedy is available only when the State elects not to comply with an order of the court to deliver a statement to the defendant. § 43-2011.3 (d). Here there was no such order. Nor was any further objection by counsel necessary, because he had made known to the court the action he desired the court to take. § 43-2725.1. Finally, the Attorney General argues that the appellants have not shown that the statements contained helpful information, but obviously that showing cannot be made in view of the appellants’ inability to obtain copies.

Second, the appellants argue that they should have been allowed to offer proof of certain alleged incidents of prior misconduct on the part of Officer Fowlkes, in an effort to show that he may not have been engaged in official business at the time of the incident in question. We doubt if the proffered proof was actually relevant, but in any case the trial court did not abuse its discretion in concluding that the possible relevance of the earlier incidents was outweighed by the confusion of issues and the delay that would have resulted from the exploration of such collateral matters. Uniform Evidence Rule 403, Ark. Stat. Ann. § 28-1001 (Repl. 1979).

Reversed.


author: Frank Holt, Justice. John A. Fogleman, Chief Justice, John I. Purtle, Justice,

text:
    Ted R. McCUISTION and Robert M. McCUISTION v. CITY OF SILOAM SPRINGS, ARKANSAS et al
    78-231
    594 S.W. 2d 233
    Supreme Court of Arkansas
    Opinion delivered March 3, 1980

      Pearson & Woodruff, by: Ronald G. Woodruff & P. Karen Pope, for appellants.

      Kelly, Luffman & Matthews, P.A., by: Eugene Kelley and Mary Elizabeth Matthews, for appellees.
   Frank Holt, Justice.

Appellants financed and constructed a sewer line in Siloam Springs which they claim was pursuant to a contract whereby appellee city agreed to collect charges from individuals and businesses tying onto the line and remit those charged to appellants for fifteen years as reimbursement for appellants’ construction of the line. At the end of the fifteen year period, title to the line would vest in the city. When the city failed to remit these charges, appellants filed suit against it for breach of contract seeking judgment for all fees or charges collected from third parties or, in the alternative, recovery of $40,000 (cost of construction) on the basis of unjust enrichment. They also sought injunctive relief to prevent appellee Apartment House Builders, Inc., from connecting its units. Based on interrogatories, the jury found there was a written contract between appellants and the city, and the contract was approved by the city council. It awarded the appellants $25,000 on the breach of contract claim against the city and found that $2,500 was a reasonable charge for Builders tying onto the sewer line. The court sustained the city’s and Builders’ motions for judgment notwithstanding the verdict and set aside the jury verdict. Appellants seek reinstatement of the verdict as to the city only.

Appellants first contend that the trial court erred in finding there was no substantial evidence to support the jury’s finding that a written contract existed between the city and the appellants. It is well settled that the trial court may enter judgment notwithstanding the verdict only if there is no substantial evidence to support the jury verdict, and one party is entitled by law to a judgment in his favor. Westside Motors v. Curtis, 256 Ark. 237, 506 S.W. 2d 563 (1974); and Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665 (1962). On appeal we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party against whom the judgment notwithstanding the verdict was entered. See Westside Motors v. Curtis, supra; and Home Mutual Fire Insurance Co. v. Cartmell, 245 Ark. 45, 430 S.W. 2d 849 (1968).

We review the uncontradicted evidence concerning the existence of a contract. Appellant Ted McCuistion testified that the sewer line was constructed by the appellants in 1969. The 3,750’ sewer line terminated at and serviced property he owned for development purposes. According to the agreement, the city was to collect and pay the appellants for enumerated tie or tap-in charges for a period of fifteen years to apply on reimbursement of appellants’ costs. Apellants’ title to the line would revert to the city at the end of that period of time. He and his brother, Robert, had signed three copies of the contract in the office of the city attorney, who drafted the contract and also took it to the city hall for “signature[s].” He either saw the executed copies or the city attorney (his attorney also) told him they were approved. He was never furnished an executed copy. Robert corroborated Ted’s testimony that they had signed the asserted sewer project agreement although he could not remember seeing any other signature. It is not disputed that appellants constructed the sewer line according to the city’s specifications. The city clerk testified that she was to withhold certain sewer tie-on charges or tap fees in a separate account pending the outcome of the present litigation and, further, that sometimes the city paid tap fees to a construction contractor. The clerk and a member of the city council testified there was an agreement by the city to absorb the cost difference between an 8” pipe (agreed to during the initial negotiations) and a 10” pipe (later agreed to on advice of the city engineer). The city council’s minutes corroborated this agreed change. This same council member testified that he thought the original agreement was written up in contract form, and he was “sure” that he had seen it. He found no record of the contract or of a resolution by the council authorizing the mayor and city clerk or recorder to enter into the contract. A former mayor (not the mayor at the inception of the project when the conracts would have been signed) testified that he assumed that there was a signed contract. There is evidence that the city aided the appellants in the construction of the sewer line by procuring easements, furnishing manholes and paying for engineering services. There was no profit made (as the jury found) by the appellants. Normally the city would approve this type of contract. The city has been collecting and retaining the tap-on fees. It appears no one denies the existence of the asserted contract. When we view the evidence most favorably with all reasonable inferences deducible therefrom in favor of the appellants, we hold there is substantial evidence to support a finding that the asserted contract existed between the parties.

Even so, appellee city argues that the contract was not formally authorized or approved by the city council as required by Ark. Stat. Ann. § 19-2311 (Repl. 1968). Therefore recovery is barred on appellants’ theory of unjust enrichment or quantum meruit. Even though it is an unenforceable contract for lack of authorization, it does not preclude a recovery on these theories. Revis v. Harris, 219 Ark. 586, 243 S.W. 2d 747 (1951); Gladson v. Wilson, 196 Ark. 996, 120 S.W. 2d 732 (1938); International Harvester Co. v. Searcy County, 136 Ark. 209, 206 S.W. 312 (1918); Smith v. Dandridge, 98 Ark. 38, 135 S.W. 800 (1911); and Frick v. Brinkley, 61 Ark. 397, 33 S.W. 527 (1894). See also Day v. City of Malvern, 195 Ark. 804, 114 S.W. 2d 459 (1938). These cases, in effect, hold that a void or illegal contract does not necessarily prevent recovery. In other words, a party cannot retain the benefits of a defective contract and at the same time avoid paying for these benefits. Here, however, as we construe the interrogatories, the issue of unjust enrichment, which would have been based upon the value to the city and not the value to the appellants, was never presented to the jury. Also it appears the court refused to submit instructions on implied contract and quantum meruit.

However, as previously indicated, there is substantial evidence that a contract existed. We must, therefore, look to the terms of the contract for any measure of damages due the appellants. The contract provided that for fifteen years the city would collect and pay to appellants all charges from those connecting onto the sewer line. Appellant Ted McCuistion testified there was to be a $500 tie-on fee for each residential connection, $1,500 for each commercial installation and $2,500 for a laundry connection. An Exxon station, Scarbrough Ford and Tri-State Ford were tied on. It appears appellants would have received $4,500 for these connections. A fee of $500 was collected from Herford Manor Apartments as the total due on the multi-unit apartment complex. The jury found, however, the charge should have been $2,500 (an additional $2,000). Although the clerk testified that she was holding tap-on fees in the amount of $750 in a separate account, it is unclear as to what part of the above fees, if any, were included in that account. Clearly, under the terms of the contract, the $25,000 jury verdict in favor of the appellants is unsupported by the evidence as to tap-on charges collected by the city. Viewing the evidence most favorably, the total award would justify at the most $7,750.

If this amount is accepted within 17 calendar days, the verdict is reinstated to that extent. Otherwise the judgment is reversed and the cause remanded with the right of appellants, upon proper proof at a retrial, to submit the issue of unjust enrichment, implied or quasi contract, to the jury.

Reversed and remanded.

Fogleman, C.J., and Purtle, concur.

John A. Fogleman, Chief Justice,

concurring. This case has some rather unusual features which are perplexing and difficult to deal with on the abstracted record. Appellants alleged in their complaint that the contract between them and the city called for the city to collect and receive all monthly sewer fees or charges required to be paid by users of the sewer line which appellants agreed to construct, to collect and receive all charges made to others for connecting to the line and to remit all such fees and charges to appellants for 15 years, after the passage of which the sewer line would become the property of the city. They admit that the city had performed its obligations to provide the manholes on the line, to furnish and pay for engineering services, to obtain and furnish necessary easements from third parties, and to pay the difference in cost of the ten-inch line the city desired and the eight-inch line appellants had agreed to construct, but that the city had collected large sums of money for connection fees or charges and had refused to pay them to appellants. They asserted in their complaint that, if the contract for construction could not be established or enforced, they were entitled to judgment for $40,000 on the basis that the city had been unjustly enriched in that amount. According to the testimony of appellants, $40,000 was the amount it cost them to build the line, although it seems that some of the items included in arriving at this figure were questionable. Their prayer was to recover the amounts collected by the city, or, in the alternative, $40,000 for unjust enrichment. The city denied the existence of any contract with appellants concerning a sewer line, pleaded the statute of frauds and the statute of limitations and pleaded that the contract was ultra vires.

Helen Allum, the City Clerk of the City of Siloam Springs, testified that the only reference to a sewer line construction by the McCuistions was the city’s agreement to absorb the difference in the cost of the pipe for a ten-inch line and for an eight-inch line. She could find no record of a contract involving the city and the McCuistions. She had collected $750 in tap-on fees which she was holding in a separate account. She said that the city had collected $500 for a sewer connection for Hartford Manor. Not only did she find no record of a contract with the McCuistions, she found no record of any resolution authorizing the Mayor and City Clerk to enter into a contract with them.

Ted McCuistion testified that sometime between October, 1968 and February, 1969, he and his brother Robert signed three copies of a contract in the office of their attorney Carl Bonner, who was also the city attorney. Ted McCuistion never had a copy of the contract signed by the city officials. He thought he saw the executed contracts in Bonner’s office. He either saw them or Bonner told him they had been executed. He couldn’t say specifically that he did see the contracts. Even though Ted McCuistion was a member of the city council, and attended meetings regularly when he was in town, he recalled the approval of the change in the pipe size from eight to ten inches, but never became suspicious because the council never brought up the contract. He had never asked Bonner for a copy of the contract, but had asked Bonner for all his papers.

Robert McCuistion said that he and Ted had signed the contract in their own office and that Bonner had drafted it. He had not seen it since he signed it and did not know whether the city signed it. Bob Henry, Mayor of Siloam Springs in 1962 and in 1973, and at other times a councilman, never saw a written contract between appellants and the city. He said that there was no discussion of the McCuistion sewer construction before the council when he was mayor or was on the council, and, during that time, sewer contracts were in writing and approved by the council. William Jamison had been mayor from 1968-1970, when the sewer construction was supposed to have taken place. He had no recollection of any negotiations with appellants and could not recall ever seeing a signed contract. According to him, a project of that nature would normally be handled through the Water and Sewer Commission and then brought to the council for approval. He testified that it was not possible that the contract could have been signed without going through the council procedure while he was in office. He said that the project had already been started by the McCuistions when he came into office.

Charles Brown was on the city council during 1968 and 1969. He was aware of the construction of the sewer and, as chairman of the Water and Sewer Committee, discussed the arrangements with the McCuistions and the engineer employed by the city, which he said was the customary arrangement under which the developer paid for the line and installed it according to specifications provided by the city’s engineers, and recovered some or all of his money, depending on the connections made within the next ten or fifteen years. He said that these types of arrangements were submitted to the city council and stated that he would have sworn that this contract was in the council minutes, but that he had been unable to find anything in the minutes except the reference to a change in the size of the line. He felt sure the McCuistions were to receive connection fees for either ten or fifteen years, but he was not sure that “it was written up in contract form.”

All these witnesses were called by appellants. No witnesses were called by appellees. The jury answered interrogatories submitted by the court. The material ones were answered as follows:

INTERROGATORY NO. 1
Was there a written contract between an agent of the City of Siloam Springs and the McCuistion brothers?
Yes
INTERROGATORY NO. 2
If your answer to question one is yes, was that contract authorized or approved by the City Council?
Yes
INTERROGATORY NO. 4
If your answer to question three is yes, were the terms of the contract such that Ted McCuistion was to receive a profit?
No
INTERROGATORY NO. 5
If your answer to question four is no and to questions one, two and three is yes, what, by the terms of the agreement should the City of Siloam Springs have charged Apartment House Builders, Inc. for tying on the sewer line?
$2,500
INTERROGATORY NO. 6
If you find that there was an agreement between the City of Siloam Springs and the McCuistions, which agreement induced the McCuistions to construct a sewer line, and that the City did accept any benefits from the construction of said line, then you should determine the fair and reasonable value of the benefits which McCuistions would have received under the contract. What is that amount?
$25,000
“Sewer line and all tap fees reverted to the City of Siloam Springs.”

I would have to agree with the trial judge that there was no substantial evidence that the city had entered into a written contract with appellants. There certainly is no evidence that the contract was authorized or approved by the city council. Every material interrogatory submitted depended upon the existence of a written contract. Especially is this true of interrogatory No. 6. The issue of unjust enrichment was never submitted to the jury. Interrogatory No. 6 does not even approach unjust enrichment which would have been based upon the value to the city, not the value to the McCuistions. Actually, the trial judge refused to submit instructions on implied contracts and quantum meruit.

I have no quarrel with the majority’s position that the city should not be permitted to keep the benefits it received and not pay for them. But there is no question about the fact that the city was to have title to the sewer line in either ten or fifteen years. It has not received a benefit to which it was not entitled with one exception. It had complied with every obligation under the contract, except for paying over the “tie-on” charges.

The McCuistions had written a letter to Mayor Henry on February 16, 1973, stating that the line cost $25,000 to $30,000 and that it would belong to them for ten years or longer. Appellants had contracted to sell certain real estate along with their rights in the line “including the right to charge for connections until construction cost is recovered or the term of ten years, from the date of completion, whichever occurs first.”

There simply is no evidence to support the $25,000 verdict. It seems appellants should have some recovery on an implied or quasi-contract basis on the evidence in this record, but it cannot be carved out of the jury verdict.

I concur in the result reached but cannot join the majority in saying that there was substantial evidence to support the verdict that there was a written contract.

John I. Purtle, Justice,

concurring. I concur with the majority in reversing and remanding the case. However, on remand I would instruct the court to reinstate the jury verdict. This was a suit for breach of contract. In such cases the appellant is not limited to the tie-on fees which have already been paid. The usual pattern is for tie-ons to be slow at first and accelerate as the area develops. Had the appellee not breached the contract appellants may have eventually collected well in excess of $25,000.


author: Frank Holt, Justice. George Rose Smith, Justice, Darrell Hickman, Justice, Richard L. Mays, Justice,

text:
    Charles L. DANIELS, Director of Labor, STATE of Arkansas v. CITY OF FORT SMITH, et al
    79-285
    594 S.W. 2d 238
    Supreme Court of Arkansas
    Opinion delivered March 3, 1980

      James P. Clouette and Michael R. Jones, for appellant.

      Daily, West, Core, Coffman & Canfield; Warner & Smith, by: Gerald L. DeLung, and Hardin, Jesson & Dawson, by: Bradley D. Jesson, for appellees.

      Herschel H. Friday and Bill S. Clark, of Friday, Eldredge & Clark, for amicus curiae Associated General Contractors, Inc., Arkansas Chapter Associated Builders Contr. of Arkansas, Inc. and Industrial Developers of Arkansas.

      James E. Youngdahl, of Youngdahl, Larrison & Agee, for amicus curiae Arkansas State AFL-CIO.

      Gayle Windsor, Jr., for amicus curiae Arkansas State Chamber of Commerce and Associated Industries, Inc.
   Frank Holt, Justice.

In 1973 the voters of Fort Smith approved an industrial development bond issue for the financing of an industrial facility to be constructed and operated by the Unitog Corporation as authorized by Act 9 of 1960, as amended. (Ark. Stat. Ann. § 13-1601 et seq. [Repl. 1979]). After the construction was completed, appellant ordered appellees Unitog, B&B, Inc., the general contractor, and various subcontractors to insure that all workmen were paid minimum wages pursuant to the Arkansas Prevailing Wage Law, Act 74 of 1969, as amended. (Ark. Stat. Ann. § 14-630 et seq. [Repl. 1979]). Appellees immediately advised appellant that they would not comply with the order. Six months later, appellant filed suit in chancery court seeking a declaratory judgment that Act 74 of 1969, as amended, applied to the Unitog project. The chancellor held that the Unitog project was not constructed for “public use” as required and defined under Act 74 of 1969; and, further, that Act 74 did not apply to the Unitog project financed under Act 9 of 1960, because Act 74 is in irreconcilable conflict with Act 9 as amended by Act 208 of 1971. (Ark. Stat. Ann. § 13-1615 [Repl. 1979]). The primary issue here is whether the Arkansas Prevailing Wage Law applies to work on a commercial construction project which is financed pursuant to an Act 9 industrial development bond issue.

Appellant first contends that the chancellor erred in not considering the Unitog project a “public work,” and in not requiring the appellees to comply with Act 74 of 1969, as amended. The Act reads in pertinent part:

§ 14-631. It is hereby declared to be the policy of the State of Arkansas that a wage of not less than the prevailing hourly rate of wages for work of a similar character in the county in which the work is performed shall be paid to all workmen employed by or on behalf of any public body engaged in public works exclusive of maintenance work. . . . (Italics supplied.)
§14-632 (1) Not less than the minimum prevailing hourly rate of wages for work of a similar character in the county in which the work is performed and not less than the prevailing hourly rate of wages for holiday and overtime work, shall be paid to all workmen employed by or on behalf of any public body engaged in the construction of public works, exclusive of maintenance work. (Italics supplied).
§ 14-630 (7) ‘Public Works’ means all works constructed for public use whether or not done under public supervision or direction or paid for wholly or in part out of public funds; it does not include any work done for or by any drainage, improvement, or levee district; (Italics supplied.)

The thrust of appellant’s argument in that the project was constructed for a public purpose; i.e., to create jobs and to improve the general economic conditions of the area. Therefore, it falls within the purview of § 14-630(7) defining “public works” inasmuch as the terms “public purpose” and “public use” are synonomous. In support of its contention, appellant relies primarily on Wayland v. Snapp, 232 Ark. 57, 334 S.W. 2d 633 (1960), where we held that Act 9 projects were considered public property used exclusively for public purposes within the meaning of Art. 16, §§ 5 and 6 of the Arkansas Constitution. Consequently, the property was not subject to ad valorem taxation. We also stated that the only purpose behind the legislature’s passage of Act 9, and the voters’ approval of the bond issue, was the “public welfare. . . . obviously and undoubtedly a ‘public purpose.’ ” In view of this language, we agree that the Unitog project was constructed for a “public purpose.” Even so, we find no language in Wayland which indicates that the terms “public purpose” and “public use” are synonomous, or that Act 9 projects were constructed for the public use. Similarly, although in Hackler v. Baker, County Judge, 233 Ark. 690, 346 S.W. 2d 677 (1961), we stated that the purpose of the people in providing for Act 9 projects “was to create jobs and thus prevent unemployment and loss of population rather than to assure the erection of a building;” we did not hold that Act 9 projects were constructed for the public use.

Appellees respond that even though the project was constructed for a public purpose, the statute requires that the project be constructed for the “public use.” They argue that the terms are not synonomous, and that the project was clearly not constructed for the public’s use. In support of their position, appellees rely on the case of City of Little Rock v. Raines, 241 Ark. 1071, 411 S.W. 2d 486 (1967), an eminent domain case, where we stated that the fact “a project is one for which public funds may be expended is not a sufficient basis for finding that use of the property is a public use justifying the taking of private property.” We held that the taking of privately owned land (in connection with an Act 9 industrial park) for the purpose of selling the land to private industry was not a public use under the scope of eminent domain. Our holding provides, in effect, there is a distinction between the terms “public purpose” and “public use.” Even so, appellant argues that the distinction is necessary in eminent domain cases because a serious deprivation of one’s private property by the sovereign is at stake. We are convinced that the distinction set forth in City of Little Rock v. Raines, supra, also governs in other cases involving Act 9 projects. We must therefore determine whether the project was constructed for a “public use” as required under § 14-630 (7).

In determining whether a public use exists, certain factors must be considered. The voters of Fort Smith approved the industrial development bond issue for the financing of the construction of the Unitog facility. The city then issued tax free municipal bonds and entered into a trust indenture agreement with a local bank whereby the city pledged the title to the real and personal property leased to the appellee Unitog as security for the payment of the principal and interest on the bonds. Although Unitog representatives negotiated and actually purchased the land, the property was immediately deeded to the city which in turn leased the property to appellee Unitog. When the bonds are retired, the city will reconvey the property to Unitog for $100 consideration.

Under the lease agreement, Unitog retains control over all buildings, equipment and other personal property at the facility. As such the general public does not have open access to and use of the facility such as they would have to a public library, courthouse or other public facility. Also, as provided in the Act, the bonds do not constitute a general indebtedness of the city. Ark. Stat. Ann. § 13-1706 (Repl. 1979). Here they are retired solely from revenues derived from the Unitog facility and not by any public funds or any manner of taxation. A project need not be constructed under direct public supervision to be considered a public work. § 14-630(7). The controlling issue, by this statute, is whether the project is a public work which is defined as “works constructed for public use." (Italics supplied.)

Admittedly, the Unitog facility provides jobs for a substantial number of workers thereby reducing unemployment and indirectly improving the general economic conditions in the area. Any new factory or industrial facility, however, would provide these same incidental benefits to the general public. Although the public will indirectly benefit from the facility, we hold, as did the chancellor, that the project was not constructed for the public use as required by § 14-630 (7); therefore, the appellees are not required to comply with Act 74 of 1969 as amended.

Appellant also contends that the chancellor erred in “repealing” Act 74 of 1969 as amended insofar as it applied to projects funded by revenue bonds issued under the authority of Act 9 of 1960 as amended. The appellant argues that even though the legislative purposes behind the Acts are different, they are not in conflict and are compatible except in the most strained interpretations. We should therefore give effect to both Acts. Appellees respond that the provisions of the Acts are in irreconcilable conflict, and the 1971 amendment (Act 208) to Act 9 controls inasmuch as it is the latest expression of the legislature.

The legislative purposes are stated in each Act:

§ 14-631, supra. (Act 74 of 1969)
§ 13-1602. (Act 9 of 1960 as amended). Any municipality and any county is hereby authorized to own, acquire, construct, reconstruct, extend, equip, improve, operate, maintain, sell, lease, contract concerning, or otherwise, deal in or dispose of any land, buildings, or facilities of any and every nature whatever that can be used in securing or developing industry within or near the municipality or county.
(Italics supplied.)

The preamble to Act 9 reads:

‘Whereas, the people of the State of Arkansas have expressed themselves in favor of a more effective program of industrial development by their adoption of Amendment No. 49 to the Arkansas Constitution; and
‘Whereas, it is desirable to implement and supplement the provisions of said Amendment No. 49 to the end of carrying out the broadest and most aggressive possible industrial development program; now, therefore.’

We must however look beyond the stated purposes to determine whether the provisions of the statutes are conflicting. The key provision is § 13-1615, Act 208 of 1971, the amendment to Act 9, which provides:

Act 9 . . . . shall be liberally construed to accomplish the intent and purposes thereof and shall be the sole authority required for the accomplishment of such purposes. To this end, it shall not be necessary to comply with general provisions of other laws dealing with public facilities, their acquisition, construction, leasing, encumbering or disposition.

Although Act 74 of 1969 as amended is a fair labor standards type legislation, it is by definition narrow in scope and applies to a limited class of workers. See §§ 14-631 and 14-632. As appellant admits, it is “basically a method of providing a foundation wage for workers, on public works projects.” It requires only that the prevailing minimum wage be paid to those workers involved in projects constructed for the public use. § 14-630(7). It is one of many statutes contained in Chapter 6, Title 14 of Ark. Stat. Ann. entitled PUBLIC WORKS—CONSTRUCTION CONTRACTS.

Section 13-1615 specifically provides that Act 9 shall be liberally construed; that Act 9 shall be the sole authority required for the accomplishment of the stated purposes, i.e., the securing and developing of industry; and that Act 9 projects do not have to comply with “other laws dealing with public facilities, their acquisition, construction, leasing, encumbering and disposition.” We have interpreted the statute to mean that Act 9 projects need not comply with state laws concerning notice, bidding, and appraisal procedures. Dumas et al v. Jerry, Judge, 257 Ark. 1031, 521 S.W. 2d 539 (1975). See also §§ 17-304-17-309. In Dumas the property was deeded to the county by a private corporation; the county and the El Dorado Industrial Development Corporation (organized pursuant to Act 9) leased the property to an individual seeking to obtain industrial development of the property. We held that Act 193 of 1945 (§§ 17-304-17-309) and Act 9 of 1960 as amended were in irreconcilable conflict inasmuch as the former required compliance with certain procedures before any real property owned by the county could be sold or conveyed, and the latter exempted Act 9 projects from compliance with the “general provisions of other laws dealing with public facilities, their . . . leasing ... or disposition.”

Act 9 of 1960, as amended by Act 208 of 1971, is clearly the most recent expression of the legislature. In view of Dumas it is clear that it operates as a repeal of the provisions of §§ 14-630 et seq. insofar as they conflict. Therefore we hold, as did the chancellor, that the two Acts are in irreconcilable conflict and the latter repeals the earlier one insofar as they conflict.

Affirmed.

Smith, J., concurs.

Hickman, Purtle and Mays, JJ., dissent.

George Rose Smith, Justice,

concurring. I join in the majority opinion for the same reasons that I expressed in Wayland v. Snapp, 232 Ark. 57, 334 S.W. 2d 633 (1960).

Darrell Hickman, Justice,

dissenting. The majority has not, in my judgment, been able to distinguish the case of Wayland v. Snapp, 232 Ark. 57, 334 S.W. 2d 633 (1960).

Since I consider Wayland controlling and it is not overruled, I feel it should be followed.

I would reverse the judgment.

Richard L. Mays, Justice,

dissenting. In 1969, the State of Arkansas adopted as a public policy a minimum wage standard for employees engaged in the construction of public work projects. Today, the Court refuses to apply this policy for the benefit of employees engaged in the construction of a project which was voted on by the public, financed on public credit and constructed on public property in the public interest for a public purpose. Although the project is being used exclusively for the public purpose for which it was constructed, the Court holds that the project was not constructed for a public use and, therefore, is not a public work. The project is a manufacturing building for private enterprise which was developed under an act of the legislature designed to stimulate a strong industrial development program. The court strains to exclude employees engaged in the consruction of such public projects from any minimum wage protection implying that an aggressive industrial development program is incompatible with a minimum wage. I must strongly disagree.

The public effort to stimulate industrial development to provide employment for the unemployed does not require us to abandon legislation protecting the employed from substandard wages. The social objective of aiding the poor by attracting industry must accommodate the reality that a substantial number of those living on the threshold of poverty are not only unemployed but are employed at poverty wages. Therefore, no public effort to reduce poverty can be concerned with the unemployed to the exclusion of the underemployed.

Disregarding the social compatibility of minimum wage and industrial development legislation and implying to the contrary, the Court seizes upon provisions in the legislation promoting industrial developments which sanction noncompliance with general provisions of other laws affecting public facilities to repeal the minimum wage guarantee for employees working on public work projects. No public policy with the moral force of minimum wage legislation, should be repealed by implication, especially by an act which generally speaks to the same social objective as that of minimum wage. See Ward v. Harwood, 239 Ark. 71, 387 S.W. 2d 318 (1965); Mears v. City of Little Rock, 256 Ark. 359, 508 S.W. 2d 750 (1974).

Furthermore, in the instant case, the minimum wage requirement does not affect those workers who will be employed by the industry but only those employed in the construction of the public building which houses the industry. The wage required is simply the prevailing hourly wage for work of a similar character in the county in which the work is performed. Just as we do not abandon building codes simply because they might increase cost, we do not abandon wage standards because they might deter an overreaching employer.

No superficial distinction between “public purpose” and “public use” can justify this result. No taxpayer will understand this distinction when informed that such projects are exempt from ad valorem taxes because they are considered “public property used exclusively for public purposes.” Wayland v. Snapp, 232 Ark. 57, 334 S.W. 2d 633 (1960). No construction worker who is paid an indecent wage, or not paid at all for work on such projects, will understand this distinction when informed that the project is exempt from mechanic’s or materialman’s liens because it is considered a public building. Dow Chemical Co. v. Bruce Rogers Co., 255 Ark. 448, 501 S.W. 2d 235 (1973). Neither the integrity of minimum wage legislation nor a definition of public works should depend on such a fine distinction.

In Wayland, supra, these projects were exclusively public projects which only incidentally benefited private enterprise. Today these projects are exclusively private projects which only incidentally benefit the public. Why should the nature of these projects change when the subject shifts from tax exemption to minimum wage?

I would reverse the judgment of the court below.

Purtle, J., joins in this dissent.


author: Frank Holt, Justice.

text:
    DOYLE’S CONCRETE FINISHERS, et al v. Jo Ellen MOPPIN, Guardian, et al
    79-338
    594 S.W. 2d 243
    Supreme Court of Arkansas
    Opinion delivered March 3, 1980

      Laser, Sharp, Haley, Young & Huckabay, P.A., for petitioners.

      W. Q. Hall, for respondents.
   Frank Holt, Justice.

In this Workers’ Compensation case, we granted certiorari to resolve one issue—whether or not a minor child, not living with one of the parents and receiving only a part of his support therefrom, is subject to the partial dependency benefits of Ark. Stat. Ann. § 81-1315 (c)(i) (Repl. 1976). In other words, is the child entitled to maximum benefits as a matter of law?

At the time of the divorce in 1976, the respondent, Jo Ellen Moppin, was awarded custody of their minor child and the deceased was ordered to pay child support in the amount of $108 per month. Following the deceased’s death in an admittedly compensable accident, the Workers’ Compensation Commission affirmed the decision of the administrative law judge and awarded maximum death benefits to the six year old son in the amount of $77 per week. Although the Commission did not expressly hold that a minor child is, as a matter of law, a dependent of a deceased parent, the administrative law judge so held and the Commission affirmed his opinion in its entirety. In affirming the decision of the Commission to award the child maximum benefits, the Court of Appeals modified the decision by eliminating the phrase “as a matter of law” and held that the award was based on substantial evidence that the child was actually dependent on the deceased at the time of his death. Appellant argues that a, minor child is clearly subject to the partial dependency benefits of § 81-1315 (c) (i) and that the cause should be remanded with instructions for the Commission to make a factual determination as to the existence and, if necessary, the degree, of the child’s partial dependency on the deceased. Appellee responds that the dependency of the minor child is presumed and is conclusive as a matter of law citing Chicago Mill and Lumber Co. v. Smith, 228 Ark. 876, 310 S.W. 2d 803 (1958); and Holland Construction Co. v. Sullivan, 220 Ark. 895, 251 S.W. 2d 120 (1952).

Before the adoption of Act 1227 of 1976, we followed the rule enunciated in those cases; i.e., there was a conclusive presumption that a minor child is wholly dependent upon a decedent. The 1976 amendment to § 81-1315 (c) added these italicized words:

Subject to the limitations as set out in Section 10 [§ 81-1310] of this Act, compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon him in the following percentage of the average weekly wage of the employee, and in the following order of preference:
First. To the widow if there is no child, thirty-five per cent (35%), and such compensation shall be paid until her death or remarriage. Provided, however, the widow shall establish, in fact, some dependency upon the deceased employee before she will be entitled to benefits as provided herein.
To the widower if there is no child, thirty-five per cent (35%) and such compensation shall be paid during the continuance of his incapacity or until remarriage. Provided, however, the widower shall establish, in fact, some dependency upon the deceased employee before he will be entitled to benefits as provided herein. .

Summarizing, the Act was amended to require (1) the purported dependent to be wholly “and actually” dependent on the deceased, and (2) the widow to “establish, in fact, some dependency upon the deceased employee before she will be entitled to benefits as provided herein.”

We interpreted the effect of this amendment in Roach Manufacturing Co. v. Cole, 265 Ark. 908, 582 S.W. 2d 268 (1979), where we noted that, by inserting the phrase “and actually,” the legislature apparently intended to change the conclusive presumption of dependency established under prior case law. In Roach the couple had been separated for a period of eleven months before the husband’s death. There had been, no formal divorce and no effort by the wife to enforce her legal right to support. She had supported herself and their child without any financial assistance from the husband. We affirmed the Commission’s holding that the deceased’s widow was not entitled to death benefits for herself inasmuch as she was living apart and not actually dependent on the deceased at the time of his death. She could, however, recover benefits for the couple’s ten year old daughter as she was actually dependent on her father at the time of his death even though he had contributed no support. We noted that the lack of any action on the mother’s part as to the child did not demonstrate there was no longer “any reasonable expectation of support” by the father; that a “reasonable expectation of future support” by the father could be found since the child’s expenses would naturally increase as she grew older; and there was a possibility that the mother would not be able to maintain the child in her “accustomed mode of living.” In view of the 1976 amendment to the statute, we held that when the widow and the child, as here, are not living with the employee at the time of his death, “there must be some showing of actual dependency.” Dependency is a “fact question to be determined in light of surrounding circumstances.” Consequently, dependency of a child is no longer a conclusive presumption.

Here it is clear that the child was “actually” dependent on the deceased employee in two respects. First, it is undisputed that the father was obligated under the divorce decree to make monthly child support payments in the amount of $108. The appellee testified that the actual amount of financial assistance provided by the deceased was greater than $108 per month inasmuch as he would occasionally keep the child and buy clothes and gifts for him. He also gave the child a horse, paid for the child’s medical expenses, and paid for his babysitting on certain occasions. Second, as stated in Roach, it must be said there was a “reasonable expectation of future support” by the father. At present the child’s sole source of income is a monthly social security check in the amount of $362 which he started receiving two months after his father’s death. His necessary expenses will naturally increase as he grows older. The appellee, widow, who receives a similar social security payment, apparently has become unable to work due to severe health problems. Here there is clearly more evidence than was demonstrated in Roach as to a reasonable expectation of future support, and there is a strong possibility that the mother is unable to maintain the child in his “accustomed mode of living.” Certainly, if, as in Roach, the child who received no financial support was entitled to maximum benefits, it must be said that a child, as here, who receives some financial support, should be entitled to no less than the maximum benefits.

Ordinarily, we would remand the case to the Commission for a factual finding as to dependency. However, upon a review of the evidence, the Commission could make only one finding—the child was wholly and “actually” dependent on the deceased. In the circumstances we agree with the Court of Appeals to affirm, as modified, the decision of the Commission.