text:
    Tech-Neeks, Inc., et al v. Kelton Francis and Juanita Poe, etc.
    5-4021
    107 S. W. 2d 938
    Opinion delivered November 14, 1966

      Gockrill, Laser, McGehee & Sharp for appellants.

      Rose, Meek, House, Barron, Nash & Williamson, for appellees.
   Carleton Harris, Chief Justice.

Appellant, TechNeeks, Inc., entered into a contract to construct a water system for the town of Biscoe, Arkansas. The company entered into a sub-contract with Kelton Francis and Juanita Poe, d/b/a Francis and Poe, for the latter to perform certain portions of the contract, consisting of trenching and laying pipe, payment to be made on the basis of a unit price according to certain plans and specifications, appellees to furnish tools, equipment, labor, trucks, etc. The contract further provided that if satisfactory performance was not rendered by the subcontractor, Tech-Neeks reserved the right to take over the job and complete same, “deducting expenses incurred from the above contract.” During the period from November 21, 1964, to January 30, 1965, appellees performed pursuant to the contract, and were due for that period an amount totaling $7,952.30. Appellees were entitled to be paid by the general contractor by the 5th day of each month for the previous month’s work, but during this entire period, only one payment (representing payment for the first week’s work) of $1,561.50 was received.

Sometime during the first week of February, TechNeeks became unable to pay the bills, and the job was shut down. Appellant General Insurance Company of America, surety for Tech-Neeks, was notified, and in April, 1965, assumed its obligation of finishing the project. In the meantime, appellees had moved their men and equipment, and were engaged in other work. L. L. Lounsbury of the Claim Department of the insurance company contacted appellee Francis by telephone on April 19 to determine whether appellees desired to finish their part of the work (under the sub-contract) at Biscoe. According to Francis, he informed Lounsbury that he could not go back on the job unless he received payment on the work already done. The amount of money due appellees (after crediting the $1,561.50) was $6,390.80, and appellant insurance company offered to pay the sum of $3,000.00 on that amount, but wanted to withhold the balance to cover the cost of any corrective work that might be required after the contract was completed. Appellees would not agree to this condition, and instituted suit for the entire amount due. Appellant insurance company employed Wooten Construction Oompany to complete the work called for in the sub-contract. On trial, it was admitted by appellants that the reasonable value of the work performed was $7,952.30, but appellants contended that there should be a charge-back of $644.08, that amount having been expended by the surety in repairing* leaks on that portion of the lines installed by appellees. After hearing evidence, the court held, inter alia, that the general contractor had breached its contract with appellees by failing to make payments, as agreed upon, and that this breach relieved appellees of the obligation to complete the subcontract, and justified them in ceasing performance. The court held that Francis and Poe were due the reasonable value of their work and labor, less any sum already paid, and accordingly entered judgment in the amount of $6,390.80, plus statutory penalty and an attorney’s fee in the amount of $1,500.00, making a total judgment of $8,657.69, together with interest at the rate of 6% per annum. From this judgment, appellants bring this appeal. Appellees cross-appeal from the trial court’s refusal to allow interest on their claim from the date of the filing of the complaint.

The principal question at issue can be succinctly stated: “Were appellees entitled to the full amount of monies due under their sub-contract with Tech-Neeks at the time of the general contractor’s breach, or were they only entitled to the amount of money due at that time, less any amount expended to correct alleged faulty work (repairing leaks) that had been performed by them?”

Appellant offered the evidence of R. K. Wooten, a general contractor who completed the sub-contract, and J. B. Jones, his foreman on the job, Wooten testifying that $644.08 was expended to correct appellee’s faulty work (water leakage), and Jones testifying that there were eight or nine leaks, all underground, one involving a bursted pipe, this occurring because the pipe “did not have proper sub foundation under it.” Wooten also offered to testify that the concrete was not poured to support the lines in certain instances, which caused the joints to separate, and that there were likewise other leaks due to the fact that valves and fittings were not tight. This offer of testimony was refused by the court, and this is asserted as error, which will be subsequently discussed. Both men, as well as Robert W. Thweatt, a registered civil engineer and witness for appellees, testified that it is common for leaks to be found when the line is tested after completion of the work; Thweatt stated that it would be most unusual to construct a system without leakage. We think it is clearly established by the evidence that the mere fact that there are leaks does not mean that the construction work is faulty, and, according to the preponderance of the evidence, it appears that this is “normal.” Of course, a line cannot be properly tested for leaks until the job has been completed, and it is customary to test a line, following completion, and then to make corrections.

Appellants rely on the cases of Thomas v. Jackson, 105 Ark. 353, 151 S. W. 521, Roseburr v. McDaniel, 147 Ark. 203, 227 S. W. 327, Hollingsworth v. Leachville Special School District, 157 Ark. 430, 249 S. W. 24, and Harris v. Holder, 217 Ark. 434, 230 S. W. 2d 645. We do not agree that these cases are in point for the reason that the contracts involved in each of those suits, except Hollingsworth, had been completed. It is likewise quite true in the instant case that, if appellees’ contract had been completed, they would also, under their agreement, have been required to correct the leaks, and would have been responsible for the cost in making such corrections, but this contract was not completed by appellees — and this was through no fault of their own.

Appellant, Tech-Neeks, breached the agreement when it failed to make the monthly payments as they became due; in fact, it is noteworthy that appellees stayed on the job for over two months, while only receiving payment for one week. As far back as 1899, this court held that one who enters into a contract with another to perform some service, payment to be received in installments, is entirely within his rights, after making partial performance, to abandon further execution of the contract where the other party has failed to pay the installments due, and one may also collect for the work already done at the contract price. Eastern Ark. Hedge Fence Co. v. Tanner, 67 Ark. 156, 53 S. W. 886. See also Abel of Arkansas v. Richards, 236 Ark. 281, 365 S. W. 2d 705. In instituting suit, appellees set out the provisions relating to payment under the contract, but this was done as a matter of establishing the reasonable value of the work done to the time of the breach, appellees seeking a recovery on the basis of quantum meruit.

To summarize this particular phase of the litigation, appellant, Tech-Neeks, breached its contract with appellees by its failure to make payments on the work performed as it had agreed to do. This breach relieved appellees of any further obligation; furthermore, appellees were entirely within their rights in refusing to continue the contract at the request of appellant, General Insurance Company of America, without first being paid amounts past due.

Appellant asserts that the court erred in not admitting the testimony of Mr. Wooten, but under our holding (that appellees were not required to perform after the contract was breached), this, is a matter of no importance. If we consider Mr. Wooten’s-proffered testimony at full value, it cannot change the controlling fact in this litigation — the breach. Not only that, but substantially the same testimony was given by the witness Jones. We have held that exclusion of testimony which is the same as that of other witnesses is harmless error. Fitzhugh v. Leonard, 179 Ark. 816, 19 S. W. 2d 1010.

. The court allowed a $1,500.00 attorney’s fee, and appellant contends that this amount is excessive. It is mentioned that no testimony was offered through other attorneys as to the amount that would constitute a reasonable fee, hut this was not necessary. In Phoenix Insurance Company of Hartford v. Fleenor, 104 Ark. 119, 148 S. W. 650, this court said:

“It is also true the record does not show that any proof was taken upon the question of a reasonable attorney’s fee before one was fixed by the court, but he had the whole matter before him, was familiar with the case, and the service done by the attorneys therein, and we cannot say that there was no evidence warranting his fixing the amount of the fee, which was a matter within the discretion of the court. Neither do we think the amount allowed is excessive.”

It is also pointed out in John Hancock Mutual Life Insurance Company v. Magers, 199 Ark. 104, 132 S. W. 2d 841, that testimony relating to a reasonable fee is only advisory and “by no means conclusive.” We do think, however, that the amount allowed in the instant case is adequate for both the work done at the trial level, and in this court, and the request for an additional $300.00 attorney’s fee in this court will be denied.

Appellees requested the 'Chancellor to allow interest on the amount sought by suit (which was recovered) from the date of the filing of the complaint. The Chancellor refused, and we think this was error. Interest at the rate of 6% should have been allowed. Loomis v. Loomis, 221 Ark. 743, 255 S. W. 2d 671.

In accordance with what has been said, the decree is affirmed on direct appeal, and reversed on cross appeal.

It is so ordered.

      Lounsbury testified that Francis also told him that his equipment was on another job, and it would be at least three weeks before he could return to the Biscoe project. Since time was of the essence in the original contract, and liquidated damages were accumulating at the rate of $50.00 per day, Mr. Lounsbury stated that the company needed to complete the job as quickly as possible.

      The factual situation in this case is entirely different, the contractor involved having breached his contract with the school district.


source: Caselaw Access Project

author: Ed. F. McFaddin, Justice.

license: Public Domain

text:
    Elmer Walker v. State of Arkansas
    5214
    408 S. W. 2d 474
    Opinion delivered November 14, 1966
    [Rehearing denied December 5, 1966.]

      S. C. Ferguson, for appellant.

      Bruce Bennett, Attorney General; James C. Wood, Asst. Atty. Gen., for appellee.
   Ed. F. McFaddin, Justice.

Appellant was convicted of driving while under the influence of intoxicating liquor (Ark. Stat. Ann. § 75-1027 [Repl. 1957]). There was evidence offered that this was the second offense within the year; and he was fined $250.00 and sentenced to ten days in jail (Ark. Stat. Ann. § 75-1029 [Repl. 1957]). From such judgment there is this appeal, urging the points which we will now discuss.

I. Location Of The Court. Appellant claims that the Circuit Court of Sharp County could legally be in session only at Ash Flat, and that his trial in Hardy was therefore void. We find no merit in this point. The same argument about the location of the Sharp Circuit Court was made and answered in the recent case of Don Warren v. State (No. 5219), 241 Ark. 264, 407 S. W. 2d 724 (opinion delivered October 24, 1966); and reference is hereby made to that opinion for a full answer of appellant’s contention.

II. Evidence Of Intoxication. Appellant was charged with violating Ark. Stat. Ann. § 75-1027, and that statute reads:

“It is unlawful and punishable . . . for any person who is under the influence of intoxicating liquor to drive or be in actual control of any vehicle within this State.”

The person must be “under the influence of intoxicating liquor”; but a person does not have to be maudlin drunk to be “under the influence.”

Officer Porter, a State policeman, testified as regards the condition of the appellant, Walker:

“Q. State to the jury what you found when you went up there?
“A. I found Mr. Walker behind the wheel and I asked him to get out of the car and he did.
“Q. Will you state to the jury, the manner in Avhich he acted?
“A. He Avas very slow to react to Avhat I told him. I told him to get out two or three times and he just sat there and looked at me.
“Q. All right, sir. Did you have a chance to observe his condition?
“A. Yes, I did.
“Q. State to the jury what facts you found?
“A. He had the odor of alcohol in his person and was very unsteady on his feet. It was quite obvious that he was drunk.
“Q. Did you have any conversation with him?
“A. Some, yes, sir.
“Q. Tell the jury what his manner of speech was —were his words coherent?
“A. No, it was incoherent. Nothing he said made any sense. He would start talking about one thing and break off in the middle of it and start on something else.”

The above quoted testimony made a jury question as to whether appellant was “under the influence of intoxicating liquor”; and we find no merit in appellant’s contention to the contrary.

III. Evidence Of Previous Conviction Within The Year. The offense for which appellant was on trial in this case occurred on September 12, 1965, and the State called Justice of the Peace Claude Huffmaster who testified that appellant had pleaded guilty to driving while under the influence of intoxicating liquor on August 13, 1965. The Justice of the Peace had the original of the court proceedings of August 13, 1965, written on a note paper and said that he had not yet transcribed the note paper into his docket. Appellant insists that a Justice of the Peace record on note paper is no record at all and that such testimony should have been totally disregarded. We find this contention to be without merit. In Price v. Shope, 212 Ark. 420, 206 S. W. 2d 752, we held that a Justice of the Peace judgment written on note paper was valid.

IV. Operation Of The Vehicle. It is inferentially claimed by the appellant that the evidence of the State was insufficient because the appellant was not driving a car with the motor running at the time of his arrest. The evidence shows that appellant was in the driver’s seat of the vehicle, that the motor was not running, and that the car was being pushed down the highway by another vehicle. The statute under which the appellant was being tried, as previously quoted, says that he must be “in actual control of any vehicle.” Certainly the appellant was in control of the car while he was in the driver’s seat and the car was being pushed on the highway. The Supreme Court of Missouri in State v. Edmondson, 371 S. W. 2d 273, held that one steering an automobile being pushed by another car on a public street was operating and controlling the vehicle.

Finding no error, the judgment is affirmed._

      The statute also requires the revocation of driving license for such second offense within one year. This point is not before us.

      In 142 A. L. R. 555 there is an annotation entitled: “Degree or nature of intoxication for purposes of statute or ordinance making it a criminal offense to operate an automobile while in that condition.”

       In 47 A. L. R. 2d 570 there is an annotation entitled: “What constitutes driving, being in control of, or operating a motor vehicle within statute making such act, while intoxicated, an offense.”


text:
    State Comm’r of Labor v. University of Arkansas Board of Trustees
    5-3939
    407 S. W. 2d 916
    Opinion delivered November 14, 1966

      Curtis E. Richard, for appellant.

      Owens, McHaney & McHaney, for appellee.
   Ed. F. McFaddin, Justice.

The decisive question is whether the 'Commissioner of Labor of the State of Arkansas can successfully sue the Board of Trustees of the University of Arkansas, in the teeth of the Constitutional Provision (Art. 5, Sec. 20, which reads: “The State of Arkansas shall never be made defendant in any of her courts.” The Chancery Court held that the suit could not be maintained; and we affirm that holding.

The University of Arkansas maintains a food service at Fayetteville and employs a number of persons, among whom are 68 women, for whose benefit the present suit was filed. In August 1965 Bill Laney, as Commissioner of Labor of the State of Arkansas, filed this suit, naming as defendant, “University of Arkansas Board of Trustees, d/b/a University of Arkansas and University Food Service.” The complaint alleged that the 68 named women, working for the University Food Service, had been required to work in excess of eight hours per day and had not received overtime pay, as required by Ark. Stat. Ann. § 81-613 etseq. (Repl. 1960). The prayer of the complaint was:

“Wherefore, plaintiff prays that said defendant, its agents, servants and employees, be temporarily restrained and enjoined from working plaintiffs in violation of the labor laws of Arkansas, and more particularly Ark. Stat. Ann. § 81-601 (Repl. 1960) ; that upon final hearing this injunction be made permanent in effect, that defendant be required to compensate plaintiffs for their labor and penalized according to law, for all cost and other proper relief.”

The defendant Board of Trustees of the University of Arkansas, after first unsuccessfully objecting to venue (and we do not pass on that issue), then pleaded that the suit against the Board of Trustees of the University of Arkansas was a suit against the State and could not be maintained because of the language of Art. 5, Sec. 20 of the Arkansas Constitution, as previously quoted. From the ruling of the Chancery Court sustaining such plea, the Commissioner of Labor brings this appeal.

In the light of the holding of the United States Supreme Court in Arkansas v. Texas, we hold that this suit against the University of Arkansas Board of Trustees is a suit against the State. In the cited case, Arkansas sued Texas in the United States Supreme Court. It was alleged that the ¥m. Buchanan Foundation had made a contract with the Board of Trustees of the University of Arkansas, and that the State of Texas was interfering with the contract. The basis of the jurisdiction was because of Art. 3, Sec. 2 of the United States Constitution, which gives the Supreme Court of the United States jurisdiction of suits between States. Texas denied the jurisdiction of the United States Supreme ■Court, claiming that the Board of Trustees of the University of Arkansas was a body politic and corporate entirely separate from the State of Arkansas. Thus, the status of the Board of Trustees of the University of Arkansas was the decisive point on the matter of jurisdiction. The United States Supreme Court sustained Arkansas’ claim of jurisdiction, saying:

“The contention that the controversy is between two States is challenged on the ground that the injured party is the University of Arkansas, which does not stand in the shoes of the State. Arkansas must, of course, represent an interest of her own and not merely that of her citizens or corporations. Oklahoma ex rel. Johnson v. Cook, 304 U. S. 387, 82 L Ed 1416, 58 S Ct 954. But as we read Arkansas law the University of Arkansas is an official state instrumentality; and we conclude that for purposes of our original jurisdiction any injury under the contract to the University is an injury to Arkansas.
“The University, which was created by the Arkansas legislature, is governed by a Board of Trustees appointed by the Governor with consent of the Senate. The Board, to he sure, is ‘a body politic and corporate’ with power to issue bonds which do not pledge the credit of the State. But the Board must report all of its expenditures to the legislature, and the State owns all the property used by the University. The Board of Trustees is denominated ‘ a public agency’ of the State, the University is referred to as ‘ an instrument of the state in the performance of a governmental work, ’ and a suit against the University is a suit against the State.”

Our own cases are to the same effect as is the said holding of the United States Supreme Court. The Allen Engineering Co. v. Kays, 106 Ark. 174, 152 S. W. 992; and Watson v. Dodge, 187 Ark. 1055, 63 S. W. 2d 993.

Since the present suit by the Commissioner of Labor against the “Board of Trustees of the University of kansas” is a suit against the State, it cannot be maintained ; and there is no necessity for us to consider any of the other questions presented.

The decree of the Chancery Court is affirmed.

       346 U. S. 368; 98 L. Ed. 80, 74 S. Ct. 109.


author: George Rose Smith, Justice.

text:
    Grover Edward Snuggs v. Board of Trustees of Ark. State Employees Retirement System et al
    5-4022
    407 S. W. 2d 933
    Opinion delivered November 14, 1966

      G. E. Snuggs, pro se.

      Bruce Bennett, Attorney General; Wm. Poivell Thompson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In 1957 the legislature adopted a comprehensive retirement system for public employees. Ark. Stat. Ann., Title 12, Ch. 25 (Supp. 1965). The appellant, as a former court reporter, was a member of the system until he retired on July 1,1963. In 1965 the legislature, by Act 153, increased the benefits provided by the retirement plan. The trustees in charge of the system refused to recognize the appellant’s right to share in the increased benefits. Snuggs then brought this suit for a writ of mandamus to compel the trustees to increase his retirement pay in conformity with the 1965 statute. The chancellor upheld the trustees’ position in the matter.

We agree with the chancellor, for there are two provisions in the 1965 act which make it clear that the increase in benefits was not meant to be available to employees who had already retired. First, the increase in benefits is authorized by Section 11 of the 1965 act, which applies to “ [a]ny member who retires.” Snuggs, however, was not a member of the system in 1965, because the original act, as amended in 1959, included this provision: “Upon a member’s retirement or death he shall thereupon cease to be a member of the System.” Ark. Stat. Ann. § 12-2507 (Supp. 1965). In a similar situation, in Cross v. Graham, 224 Ark. 277, 272 S. W. 2d 682 (1954), we held that a retired police officer was not a “member” of the police department and therefore was not eligible for a pension increase that applied to members of the department.

Second, under the original retirement plan the contributions made by each employee (and matched by his employer) are deposited in the “members deposit account” in the state treasury. .Sections 12-2504 and 12-2508. The latter section goes on to provide that upon the retirement of a member the accumulated contributions standing to his credit in the members deposit account shall be transferred to the retirement reserve account. Hence upon Snuggs’s retirement his individual members deposit account ceased to exist.

One effect of the 1965 act was to permit members of the system to enjoy greater benefits, the increase being based upon public employment that occurred before the effective date of the original retirement system. But to participate in the enhanced benefits each member is required to pay in cash an amount equal to the contributions that would have been deducted from his salary if the system had been in effect when he first became a public employee. These payments shall be credited to “the member’s individual account in the members deposit account.” Section 11 of Act 153 of 1965. Inasmuch as Snuggs and other retired employees no longer had individual members accounts when Act 153 became effective, the language of the statute is not applicable to them. We conclude that the usual presumption against retroactive legislation is reinforced in this case by the' express' language of the act.

Affirmed.


text:
    Bert Connor v. Audrey Beatrice Connor
    5-4029
    408 S.W. 2d 486
    Opinion delivered November 14, 1966
    [Rehearing denied December 5 1966.]

      Richard W. Hobbs, for appellant.

      Macon & Moorhead, for appellee.
   George Rose Smith, Justice.

The appellee, Audrey Beatrice Connor, brought this suit for a divorce upon the ground of personal indignities. Most of the friction that led to the couple’s separation involved Mrs. Con-nor’s children by an earlier marriage. Mrs. Connor finally left her husband because he refused to permit her children to live in the family home at Hot Springs. The chancellor granted the plaintiff’s prayer for a divorce. Connor contends that the proof is insufficient to establish a ground for divorce and, alternatively, that the plaintiff’s testimony was not corroborated.

There is really not much dispute about the salient facts. Connor was 68 and Mrs. Connor was 43 when they married in 1964. Mrs. Connor’s oldest child was married and living with her husband. Her other four children, whose ages ranged from 14 to 20 when the case was tried, were living with their mother in Stuttgart.

At the end of the 1964 school term Mr. and Mrs. Connor moved to Hot Springs. Some antagonism had already arisen between Connor and the four children. In an effort to avoid dissension Mrs. Connor sent three of the children to visit their father in Texas and the fourth to visit her married sister. This arrangement could not continue indefinitely. Eventually the children’s stepmother sent first one and then a second child back to their mother.

There is hardly any dispute about Connor’s unwillingness to allow the children to live with him and their mother. Mrs. Connor, whose testimony is amply corroborated by that of her children, returned to Stuttgart when her husband refused to take her son Michael back into the family home. She explained to Connor that 'she would have to go where she could be with her children. Connor himself admitted on cross examination that he had made no effort to persuade his wife to return and that he did not want the children in his home.

Under our decisions the chancellor was justified in granting a divorce to Mrs. Connor. In Rigsby v. Rigsby, 82 Ark. 278, 101 S. W. 727 (1707), the plaintiff-husband refused to allow his wife’s sixteen-year-old daughter to live in the family home. In the course of the opinion we said: “Besides, her sex and tender age required that she should be under the control and care of her mother. The conduct of the plaintiff in refusing to allow her to return was, as far as the evidence shows, utterly unreasonable. As the mother was entitled to the society and services of her young daughter, as she owed a duty to see that she was properly reared and protected during the period of her girlhood, this conduct of plaintiff would have gone far towards justifying the defendant in leaving his home in order to be with her child had she chosen to do so.”

The Rigsby case was followed, upon similar facts, in Rosenbaum v. Rosenbaum, 206 Ark. 865, 177 S. W. 2d 926 (1944). This language from that opinion is pertinent here: “Appellant married appellee knowing that she had this daughter and with a full realization that appellee owed her child the love and care that only a mother can give. . . Appellant, therefore, had no right to insist that his wife give up her daughter, and doubtless this insistence on his part led to the rupture of their married relations.” In the Rosenbaum case the wife asked and obtained separate maintenance only, hut such a decree must rest upon the same grounds that are required for an absolute divorce. Myers v. Williams, 225 Ark. 290, 281 S. W. 2d 944 (1955).

The decree must be affirmed, with an allowance of an additional $100 attorney’s fee to the appellee.


author: Paul Ward, Justice.

text:
    Billy Lawson v. Nina Mae Stephens
    5-3977
    407 S. W. 2d 917
    Opinion delivered November 14, 1966

      N. M. Norton, for appellant.

      Fletcher Long, for appellee.
   Paul Ward, Justice.

This litigation grows out of a collision between two cars at the intersection of Division Street with Washington Street (which is also Highway No. 1) in Forrest City. The pertinent facts presently set out appear not to be in dispute.

Facts. Washington Street (a through trafficway) runs approximately north and south. It is intersected by Division Street which runs approximately east and west. At this point there is a “stop” sign on the right (or south) side of Division Street and on the west side of Washington Street.

At about 1:30 p.m. on December 24, 1964 Billy Lawson (appellant herein) was driving his car easterly on Division Street, and, as he approached the intersection, a car driven by Nina Mae Stephens (appellee herein) on Washington Street also approached the same intersection from the north. Appellant entered upon Washington Street and, in doing so, was struck by the car being driven by appellee. There was a conflict of evidence as to whether appellant stopped at the “stop” sign. In any event appellee was injured and her car was damaged.

Suit was filed by appellee against appellant, and, in her complaint, she alleged negligence in that appellant failed to keep a proper lookout for vehicles on the public highway; he failed to “yield the superior right-of-way” to appellee in violation of the state law, and; he was driving at an excessive speed. A jury trial resulted in a judgment in favor of appellee for $75 damage to her car and $14,125 resulting from personal injuries.

On appeal to this Court appellant relies on only two general points for a reversal. One pertains to instructions and Tioo, the judgment was excessive.

One (a). Appellant says: “The rights of drivers entering an intersection were erroneously defined by Instruction No. 3.”

The above mentioned instruction, in pertinent parts, reads:

“The law requires that the driver of a vehicle approaching a stop sign shall stop, and, after having-stopped, shall yield the right of way to any vehicle on the through street which has entered the intersection or which is approaching so closely as to constitute an immediate hazard. When he has so yielded and has time to move safely across the entire intersection he may then proceed, and the drivers of all other vehicles approaching the intersection shall yield the right of way to him.” (Emphasis ours.)

This instruction is in accord with AMI 905.

Appellant’s objection to the above instruction relates to that portion of the instruction which we have emphasized. The burden of appellant’s argument is to the effect that these words are an addition to the “statute” and consequently place an unauthorized burden on him in this case. For reasons mentioned below we are unable to agree with appellant.

1. Appellant relies on language used in Ark. Stat. Ann. § 75-623 (a) (Repl. 1957), enacted in 1937, which reads:

“. . . but said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said highway shall yield . . . .”

However, appellant overlooks two important items. One, the above section does not seem to be dealing with a stop sign situation, and, two, the said section has been superseded by Ark. Stat. Ann. § 623 (a) (Supp. 1965), enacted in 1959. The pertinent statute now is Ark. Stat. Ann. § 623 (b) (Supp. 1965).

2. While the pertinent statute just mentioned does not contain the exact questioned language used in Instruction No. 3 (AMI 905) we think the meaning is essentially the same. The obvious purpose of both the statute and AMI 905 is to help the less favored driver to get completely across the intersection without having a wreck.

3. In our opinion Instruction No. 3 and AMI 905 are justified in view of wh'at we said in Shroeder v. Johnson, 234 Ark. 443 (p. 447), 352 S. W. 2d 570. Consequently it was not error for the trial court to give said Instruction No. 3.

One (b). We find no error in the trial court’s refusal to give appellant’s requested Instruction No. 1 which, in essence, would have put a duty on the favored driver (on the through highway) to keep a lookout and not to assume due care on the part of the unfavored driver. We think the requested instruction was superfluous because the trial court (as previously mentioned) gave AMI 905, a portion of which reads:

“A driver using a through street or highway has a right to assume, until the contrary is or reasonably should be apparent, that another driver will obey a stop sign.” (Emphasis ours).

To the same effect was Instruction No. 4 (AMI 907) which was also given to the jury.

One (c). The trial court gave, with conformatory modifications, AMI Instructions 2201, 2202, 2204, 2205, 2206, 2207, and 2210, dealing with extent and duration of injury, medical expenses, pain and suffering, loss of earnings, present value of future earnings, etc. We refrain from discussing the merits or demerits of any of the instructions because we fail to find (with one exception) any objection in the record.

One (d). The trial court instructed the jury (without objection or offer of a substitute instruction) regarding the present value of future earnings as follows:

“The value of any loss of earnings that have already been lost and the present value of any future earnings that may be reasonably certain to be lost. ’ ’

In a related instruction the trial court also told the jury that “the statute, section 50-705, provides that the average life expectancy of a person forty-two years of age is twenty-nine years.” (Our emphasis.) It is the contention of appellant that the court committed reversible error in giving this instruction.

While we are not commending the practice of the trial court in reading statutes to the jury, and while we are not holding that said statute was intended for a situation of this kind, we do not believe reversible error has been shown. In the first place it has not been shown by appellant that the information given to the jury was incorrect, or just how it could have affected the jury’s verdict. It was undoubtedly the kind of information which the jury needed to consider in order to arrive at a just verdict. Also, it appears the jury was given some discretion by the use of the word ‘ ‘ average ’ ’ used in the statute.

Two. Finally, appellant contends the jury verdict was excessive, hut again we are unable to agree.

It was up to the jury to weigh the testimony and, based thereon, to fix the amount of damages. In appellant’s brief it is pointed out: Medical expenses, $884.74; appellee was in the hospital for one week where she received medical treatment; she was knocked unconscious, with blood running down her face; her chest, head, legs and arms were injured; she suffered pain, and had trouble sleeping; she was unable to work because of pains in her head, chest and back; she had some broken ribs; she couldn’t stay on her feet long at a time, and; she had a cough and high blood pressure. Before her injury she worked regularly, earning $52 per week — not including overtime. There is evidence that her losses to date of trial amounted to about $3,525, and that the loss would continue in the future' — with a life expectancy of twenty-nine years.

In view of the above we cannot say the jury verdict is not supported by substantial evidence.

Affirmed.


author: Osro Cobb, Justice.

text:
    Chicago, R. I. & Pac. R. R. Co. v. Rachel Adair et al
    5-3962
    407 S.W. 2d 930
    Opinion delivered November 14, 1966

      Wright, Lindsey & Jennings, for appellant.

      McMath, Leatherman, Woods & Youngdahl, for appellee.
   INTRODUCTORY FACTS:

Osro Cobb, Justice.

Appellant railway company serves Wheatley, Arkansas, a point located between Little Rock, Arkansas, and Memphis, Tennessee. Williams Grain Company has a very large grain storage and processing facility at Wheatley, which is served by appellants ’ spur track. The spur accommodates two or three other manufacturing plants and crosses IJ. S. Highway No. 70, a heavily traveled main highway, although limited to a single lane in each direction in the Wheatley vicinity.

On October 23, 1963, at approximately 7:00 p.m., and well after sunset, appellants in the course of their switching operations on the Williams Grain Company section of the spur, improvidently moved and stopped its boxcars in a position crossing Highway No. 70 so as to completely block the flow of traffic in each direction. No flagman or warnings of any kind were provided by appellants. Indeed the train conductor testified that in the switching operation they unintentionally overshot their mark, blocking the highway. No other member of the train crew was called as a witness by either party.

E. B. Adair, plaintiff in the original action, was driving his 1963 Ford automobile eastwardly on Highway 70. The vehicle crashed into the boxcar which was blocking the highway. Suit was brought for his injuries. Prior to trial, Adair died and the case was revived and prosecuted by his widow, Rachel Adair, as administratrix. Upon trial the jury returned a verdict for substantial damages and judgment was entered thereon.

Appellants have prosecuted an appeal urging some six points for reversal. We limit our discussion to appellants’ Point IV, as our decision on this point is dis-positive of the case.

Appellants’ Point IV — The Court erred in commenting upon the weight of the evidence.

All of the record in this case relating to this point was made during the course of the testimony of eyewitness Daniel Heath. Appellants seasonably made objections to certain testimony of the witness and to remarks made by the court in the presence of the jury.

We quote the pertinent parts of the record:

"Q. Where was the boxcar?
"A. On the highway crossing and I almost hit it and my sister-in-law said—
"MR. JENNINGS: I object to what his sister-in-law said.
"THE COURT: The objection is sustained.
"Q. Was the freight car moving at the time?
"A. No, sir.
"Q. Did you hear the bell ringing?
"A. No, sir.
‘ ‘ Q. While you were sitting there did you hear the whistle blowing?
"A. No, sir.
"Q. Were there any lights at the crossing?
"A. No, sir.
"Q. Was there a watchman at the crossing?
"A. No, sir.
"Q. Then after it hit what happened?
"A. One door flew open on the car, on the driver’s side and the man’s legs came out and his feet was on the pavement and I thought they was maybe dead. * * * I went immediately to the closest phone and called for an ambulance and the police.
“Q. While you were down there did you see anybody representing the railroad!
“A. Not before I went to call.
“Q. After you came back!
“A. When I came back there was two men walking down the track from toward this grain dryer with lights in their hand and when they walked up one of them made the remark—
“MR. JENNINGS: I object to any unidentified person’s remarks.
“THE COURT: The objection is sustained.
“Q. How did you identify them as being with the railroad!
“A. They had lanterns in their hands.
“Q. What did they do!
“A. They came up and seen what had happened and they asked for the train to pull up and clear the highway.
“Q. At that time did they make a remark!
“A. One of them said—
“MR. JENNINGS: He may answer whether or not a remark was made but I object to what the remark was.
“THE COURT: Did they make a remark!
“A. Yes.
“THE 'COURT: Do you intend to ask him what the remark was!
‘ ‘ MR. McMATH: Yes, sir.
“THE COURT: Do you object to that?
“MR. JENNINGS: Yes, sir.
“THE COURT: The objection is overruled.
“MR. JENNINGS: There has been no identification of who the persons were,- and certainly not that they were in any position to speak for the railroad company or Mr. Rosell.
“THE COURT: The court holds that they were employees of the railroad company and that they ashed that the train be moved, (emphasis supplied)
“MR. JENNINGS: We object to that.
“MR. WOODS: We think it is a part of the res gestae, it was immediately after the accident happened and they were discussing the movement of the train.
“THE COURT: The objection is overruled.
“Q. Tell the jury what these people with the lantern said?
“A. One of them said, ‘It looks like I really messed up and good this time,’ and the other one said ‘we sure did’.”

It simply cannot be said that from the meager testimony concerning the two men with lanterns that their status as employees of appellant railroad had been conclusively established. Indeed this was a material fact question for the jury in determining the weight to be given to the statements of the men with the lanterns.

The statement of the court in the presence of the jury was not merely a comment on the evidence but constituted a disposition by the court of this material fact question. Appellants argue that the statement of the court removed from the jury’s consideration any issue of whether the men were in fact railroad employees, hut that it also placed the court’s stamp of truth upon the testimony of Daniel Heath concerning the employment of the persons and the actions taken by them, so that when Mr. Heath testified immediately theraefter one of the men said “it looks like I really messed up and good this time,” and the other one said “we sure did”; the jury was justified in concluding that Heath’s testimony in this regard was also true. Appellants insist that the practical effect of the remarks of the court was to instruct the jury that the appellant railroad had admitted that the collision was its fault.

We agree, in large measure, with appellants. The remarks of the court did tend to irrevocably fix in the minds of the jury that the railroad was at fault, causing or contributing to the accident and Adair’s injuries, but the question of equal or greater fault upon the part of others at interest in the litigation was left open. The damage to appellants was not cured by any subsequent action of the court.

§ 23, Article VII, Constitution of the State of Arkansas, provides:

“Charge to juries — Judges shall not charge juries with regard to matters of fact, but shall declare the law and in jury trials shall reduce their charge of instruction to writing on the request of either party.”

This court has consistently held, in a great many cases involving the constitutional injunction against comments by trial courts on questions of fact, that same constitutes clear reversible error. See Arkansas State Highway Commission v. Suddreth, 239 Ark. 359, 389 S. W. 2d 423 (1965); Cameron v. State, 214 Ark. 512, 216 S. W. 2d 881 (1949), from which we quote:

“Under our constitution (Art. 7 § 23) judges are forbidden to charge juries as to the facts; and we have held that for a trial judge to communicate to the jury in any way his opinion, as to the merits of the contention of either party on a fact question, is error. Hinson v. State, 133 Ark. 149, 201 S. W. 811; Williams v. State, 175 Ark. 752, 2 S. W. 2d 36.”

In Western Coal & Mining Company v. Kranz, 193 Ark..(426, 100 S. W. 2d 677 (1937), we said:

“No principle is better settled than that a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which might tend to influence the minds of the jury. By his words or conduct he may, on the one hand, support the character and weight of the testimony or may destroy it in the estimation of the jury. Because of his personal and official influence, uncalled for or impatient remarks, although not so intended by him, may give one of the parties an unfair advantage over the other.”

See also Roe Rice and Land Company, v. Strobhart, 123 Ark. 146, 184 S. W. 461 (1961).

In St. Louis Southwestern Railway Company v. Britton, 107 Ark. 158, 154 S. W. 215 (1913), we said:

“The requirement of Art. 7 § 23 of our Constitution, that 'judges shall not charge juries with regard to matters of fact, ’ applies as well to the credibility of witnesses and the weight to be given their testimony as to the outright truth or falsity of what they say.”

We have therefore concluded that this case must be reversed and remanded for a new trial, and it is so ordered.

Reversed and remanded.


text:
    Elmer D. Curry and Emma Jean Curry v. Commercial Loan and Trust Co. et al
    5-4036
    407 S. W. 2d 942
    Opinion delivered November 14, 1966

      Levine, Williams & Bryant and Edward M. Owens, for appellant.

      James A. Boss and James A. Boss Jr., for appellee.
   Osro Cobb, Justice.

On January 23, 1963, appellants executed their first mortgage installment note to appellee bank in the amount of $12,500.00, the note being secured by a real estate mortgage executed by appellants on the same day, and embracing certain lands which included appellants’ homestead. The mortgage recited that it was to secure all other advances up to and including the legal lending limit of appellee bank, which was set forth upon the mortgage at $42,000.00.

On September 27, 1963, appellants sought and obtained an additional advance of $8,500.00 from appellee bank for which they also executed a first mortgage installment note. On February 17, 1964, appellants sought and obtained a further advance in the sum of $7,500.00 for which another first mortgage installment note was executed. The installment notes of September 27, 1963 and February 17, 1964 were co-signed by Hulbert Crute, it being conceded by appellants that Crate was a paid accommodation endorser of the paper.

When the notes’ of September 27, 1963 and February 17, 1964 were offered in evidence, they contained a typed notation as follows: “This note is further secured by real estate mortgage dated January 23, 1963 and recorded in Book 142, Page 65.”

The controversy in this case involves appellants’ insistence that the additional advances of September 27, 1963 and February 17, 1964 were not secured by their mortgage dated January 23, 1963.

The controversy was tried by the Chancellor who, after hearing, found against appellants ’ contentions and the case is now before us for appellate review.

No evidence was introduced during the hearing before the trial court attacking the genuineness of the signatures on all of the executed instruments which were involved, nor was there any evidence suggesting that appellants did not in fact receive the benefit of the additional advances. Furthermore, the evidence does not suggest that there was any discussion between the parties prior to the two advances as to any collateral to secure same, except the mortgage of appellants executed on January 23, 1963. Moreover, the notes covering said advances had printed in bold type thereon: “First Mortgage Installment Note.” There was no evidence of any other mortgage than the one executed by appellants on January 23, 1963.

Appellants urge that the notations at the bottom of the notes for the advances were placed thereon after delivery to the bank. The witness for the bank could not pinpoint the exact time when the notations were placed upon the instruments. However, this was immaterial to the hank’s contention that the advances were secured by appellants’ mortgage. Benton State Bank v. Reed, 240 Ark. 704, 401 S. W. 2d 738 (1966); Holt v. Gregory, 219 Ark. 798, 244 S. W. 2d 951 (1952); State National Bank v. Temple Cotton Oil Company, 185 Ark. 1011, 50 S. W. 2d 980 (1932).

No contention has been made that the language of any of the instruments involved was ambiguous Our duty is to enforce valid agreements between parties and not to rewrite them. McLeod v. Meyer, 237 Ark. 173, 372 S. W. 2d 220 (1963); State Farm Mutual Insurance Company v. West, 181 F. Supp. 779 (W. D. Ark. 1960).

We have examined the record in this ease and the instruments relied upon by appellees and we have concluded, as did the trial court, that the advances of September 27, 1963 and February 17, 1964 were secured by appellants’ mortgage of January 23, 1963. Such a conclusion is supported by a clear preponderance of the evidence.

The decree of the trial court is affirmed.

Affirmed.


author: Guy Amsler, Justice.

text:
    C. H. Nolan Lumber Co. et al v. Mrs. Madie Manning, et al
    5-4012
    407 S. W. 2d 937
    Opinion delivered November 14, 1966

      J. Fred Jones and B. T. Jackson and Paul L. Barnard, for appellant.

      Bernard Whetstone, for appellee.
   Guy Amsler, Justice.

This is a workmen’s compensation case in which the commission decided against appellees, which decision was appealed to the circuit court. From an order by the trial court remanding the case to the commission for further development comes this appeal. Appellees suggest that the order remanding the controversy is not final and appealable and we agree.

A brief review of the background facts will serve to focalize the issue. On May 11, 1961, at 7:30 a.m., Boy Manning was driving toward Strong, Arkansas (where he worked for appellant Lumber Co.) in his panel truck. Some two miles south of Strong he was involved in a head-on collision with another vehicle. Four days later he died as a result of injuries sustained in the incident.

On January 14, 1963, his widow filed a claim for workmen’s compensation benefits for herself and two allegedly incompetent adult sons. Appellants resisted the claims by pleading the statute of limitations and alleging that the deceased was traveling from his home to work at the time he was injured and was not on business for his employer.

Following a hearing the referee decided against the widow and in favor of the two sons. On appeal the full commission heard additional testimony and ruled against all the claimants. An appeal was lodged in the Union County 'Circuit Court on October 25, 1963.

On March 23, 1966, the Circuit Court entered its order remanding the case to the commission for further development of the facts. From that order this appeal comes.

"We have had a number of cases involving remanding of workmen’s compensation litigation by the trial courts. The first that has been brought to our attention in Mason v. Lauck, 232 Ark. 891, 340 S. W. 2d 575. This case embraced a motion addressed to the Circuit Court for a remand to the Workmen’s Compensation Commission in order that newly discovered evidence might be presented. The trial court when ruling on the remand, request also ruled on the merits and affirmed the commission. This of course was a final and appealable order.

The next case is brought to our attention by appellees. Ward Furniture Mfg. Co. v. Reather, 234 Ark. 151, 350 S. W. 2d 691. In Ward Furniture the trial judge, on his own motion, remanded the case for further development of the medical testimony. In doing so however he spelled out with meticulous care deficiencies in the proof. In this case the appealability of the order was not questioned (only that it was a second remand) and we expressly reserved ruling on whether such orders were appealable.

A third case of a related nature is Dednam v. Amer. Machine & Foundry Co., 235 Ark. 962, 363 S. W. 2d 419. Here the court denied a motion to remand for further proof and movant appealed. Finality of the order was not questioned. The trial court was upheld and we stated the prerequisites for a remand:

"The ‘proper conditions’ referred to are, for example, that the movant has exercised due diligence, that the evidence is not cumulative, and that the new evidence would justify a different result.”

The authorities generally hold that trial courts have broad discretion in the matter of remanding proceedings from administrative boards and commissions and unless there is an abuse of discretion the court’s action will not be disturbed. The remanding tribunal should however set out with particularity the alleged deficiencies. 2 Am. Jur. 2d Administrative Law § 764; 4 C.J.S. Appeal and Error § 152.

The general rule in our state is that appeals lie only when and if there is a final judgment, decree or order. Foley, et al v. Whitaker, Ex’r, 26 Ark. 95; Batesville v. Ball, 100 Ark. 496, 140 S. W. 712; Ark. State Highway Comm. v. Ponder, Judge, 239 Ark. 744, 393 S. W. 2d 870; Ark. Stat. Ann. § 27-2101 (Supp. 1965).

Since the order entered by the trial court in this case is not appealable the appeal should be dismissed and it is so ordered.

Harris, C. J., and Smith, J., dissent.


text:
    Phelps-Powell Building Supply Co., Inc. v. Silver Dollar Homes, Inc., et al
    5-4019
    407 S. W. 2d 925
    Opinion delivered November 14, 1966

      Greenhorn & Greenhaw and Bob Scott, for appellant.

      Little & Enfield and Eli Leflar, for appellee.
   Guy Amsler, Justice.

Appellant Phelps-Powell Building Supply Company, Inc. (herein called Supply Co.) owns and operates a lumberyard and building materials supply business in Rogers, Arkansas. One of the appellees, Silver Dollar Homes, Inc., (called Homes) is a general contractor which for several years prior to this litigation purchased building materials from appellant.

Beginning May 19, 1964, and ending September 30, 1964, Supply 'Co. sold Homes, on an open account, materials having a value of $4,708.14 to be used in the construction of a condominium apartment in the city of Rogers, Arkansas.

According to the allegations contained in the first amendment to Supply Co.’s complaint sometime after September 30th Supply Co. assumed that construction on the apartments was completed and made inquiry of Homes as to when payment of the account might be expected. The President of Homes agreed verbally with Supply Co. to transfer to it what was known as the “Buckelew Property” located across the street from the condominium apartments in satisfaction of several delinquent accounts including the one for material used in the apartment building.

On January 23, 1965, Homes wrote Supply Co. that its attorney would prepare the conveyance that day and transfer of the “Buckelew Property” would be consummated when the deed was ready. According to its amended complaint, Supply Co. relied upon this agreement and did not file its lien against the condominium apartments within one hundred twenty days from the purchase on September 30th. Fraudulent conduct on the part of the president of Homes is claimed.

On April 15, 1964, Homes deeded the property upon which the condominium was to be constructed to Harold R. Clayton and his wife Evelyn (called Claytons). The deed was recorded on April 20, 1964. There was a separate agreement between the parties which provided that Claytons would convey the property back to Homes upon payment of a $60,000 loan.

' Appellees F;' Carlyle Jones and Debrow N. Jones purchased apartment “A” from Claytons on November 18, 1964, and appellee Hazel Buckelew purchased apartment “C” from the Claytons on February 18, 1965.

The First Federal Savings and Loan Association of Rogers, Arkansas, made loans, took and recorded mortgages on the individual units, on the dates and in the amounts indicated: Apartment “A”, December 3, 1964, $7,000; on March 11, 1965, apartment “B”, $9,000, apartments “D” and “E”, $8,000 each and apartment “F”, $5,300.

On March 19, 1965, Homes purchased from Supply Co. eight sets of weather stripping for $10.47. The stripping was installed in the condominium apartments. This amount was added to the open account which had been dormant since September 30, 1964.

Appellant filed suit on July 15, 1965 (which was within one hundred twenty days from the purchase of March 19, 1965). Supply Co. sought judgment on the account and imposition of a materialman’s lien, on the apartments for the cost of materials furnished from May 19, 1964 to March 19, 1965.

The original verified complaint of Supply Co. contained the following allegation:

“That the first materials furnished for the construction of said condominium apartments was on the 19th day of May, 1964, and continued through the 19th day of March, 1965, which was the last day of furnishing materials to defendant, Silver Dollar Homes, Inc. by the plaintiff.”

A further allegation was:

“That the final delivery of material in the construction of said condominium apartments was the 19th day of March, 1965, and that one hundred twenty (120) days will have expired on the 17th day of July, 1965. That the plaintiff desiring to avail itself of the benefits of Arkansas Statutes § 51-601 et seq brings this action within the one hundred twenty (120) days from the last date of delivery of materials pursuant to Arkansas Statutes 51-613.”

Separate demurrers were filed by all the defendants (appellees here) except First Federal Savings and Loan Association, which pleaded by answer.

The demurrer by Homes was sustained and the demurrers of the other defendants were treated as motions to make more definite and certain. Thereafter Supply Co., with, an express reservation of rights amended its complaint and alleged inter alia that the account covering materials for the construction of the condominium apartments covered the period from May 19, 1964, to March 19, 1965, and that Homes had acted fraudulently as aforementioned.

Again separate demurrers were filed and sustained. Supply Co. refused to plead further and orders dismissing the complaint and amendment thereto were entered, except as to the last item purchased, the cost of which was $10.47. This appeal followed.

Appellant contends that the trial court erred in sustaining the demurrers and appellees take a contrary position. No other points are raised. Appellant relies on Huffman Wholesale Company v. Terry, 240 Ark. 368, 399 S. W. 2d 658, for a reversal and 'appellees' contend Streuli v. Wallin-Dickey & Rich Lumber Co., 227 Ark. 885, 302 S. W. 2d 522, fully supports the chancellor’s ruling.

It is our feeling that the case was not sufficiently developed to enable an application of the criteria enunciated in either of the cases relied on by the parties.

In Howell v. Ark. Power and Light Co., 225 Ark. 535, 283 S. W. 2d 680, we said:

“In testing a complaint on demurrer we must assume that all allegations that are well pleaded, are true. Also our rule is well established that pleadings are to be liberally construed and every reasonable intendment is to be indulged on behalf of the pleader in determining whether a cause of action is stated. Rice v. King, 214 Ark. 813, 218 S. W. 2d 91; Story v. Cheatham, 217 Ark. 193, 229 S. W. 2d 121.”

When the foregoing rule is applied to the quoted extracts from the appellant’s complaint and amendment thereto it will readily be discerned that appellant is entitled to an opportunity to present proof in an effort to establish its contentions.

There is another reason why this cause must be remanded to the trial court. Supply Co., in addition to seeking a lien on the apartment property, prayed judgment against Homes for the total cost of all materials furnished for the job. As the record now stands Supply Co. would be entitled to a judgment in the trial court against Homes for the full amount due on its account.

Reversed and remanded.


author: Hugh M. Bland, Justice.

text:
    Arkansas State Highway Comm'n v. R. L. Lovegrove et al
    5-4013
    407 S. W. 2d 928
    Opinion delivered November 14, 1966
    [Rehearing denied December 12, 1966.]

      George 0. Green and Don Langston, for appellant

      Floyd G. Rogers, for appellee.
   Hugh M. Bland, Justice.

This is a condemnation suit in which the State Highway Commission condemned 20.5 acres of a 40-aere tract owned by appellees. The facility to be built is a segment of Interstate Highway 40, a controlled access highway.

On May 25, 1965 the appellant filed its declaration of taking in the Crawford Circuit Court and deposited into the registry of the court, as estimated just compensation for the taking, the sum of $9,000.00.

Appellees answered, alleging the insufficiency of the deposit and demanding a trial by jury. Trial was held on October 27, 1965 and resulted in a verdict in favor of appellees in the sum of $18,000.00 and judgment was entered for that amount.

Appellant does not contend that the judgment for appellees is excessive, nor does appellant question any instructions given by the trial court, but relies entirely on two points:

“I. The trial court erred in overruling appellant’s motion to strike appellee’s opinion as to the before value of the property because he gave no fair and reasonable basis for that opinion.
“II. The trial court erred in permitting appellees’ lay-witness, Jay Neal, to state his opinion as to the before value of the property without first stating the facts upon which the opinion was based.”

Motions were made to strike the testimony of R. L. Lovegrove and Jay Neal. Both motions were denied by the court.

We find no merit in the contention of appellant in either Point I or II.

In the recent case of Arkansas State Highway Commission v. Drennen, 241 Ark. 94, 406 S. W. 2d 327, opinion delivered September 26, 1966, we affirmed the Crawford Circuit Court on the same issues raised by appellant in this case-.

Appellant contends that the two witnesses'] R. L. Lovegrove and Jay Neal, had no basis for their testimony fixing the before value of the property. Appellees produced four witnesses and appellant two. The before, after and damage figures of all the witnesses were as follows:

Before After Damages
“R. L. Lovegrove $25,000 $2,000 $23,000
Mack Bolding 24.000 3,450 21,050
Robert Geliy 23.000 2,100 20,900
Jay Neal 25.000 1,725 23,275
Bryan McArthur 12,500 4,000 8,500
Harry Word 12.000 3,000 9,000”

Appellant does not question the qualifications or background basis of the testimony of Mack Bolding and Robert Geliy fixing the before value at $24,000 and $23,000 respectively.

The verdict was well within the range of the testimony and was submitted to the jury on instructions and guidelines unquestioned by appellant.

We have repeatedly held that this court will not disturb the jury’s findings of fact on conflicting evidence if there is any substantial evidence to support the jury’s verdict. Norman v. Gray, 238 Ark. 617, 383 S. W. 2d 489; Manhattan Factoring Corp. v. Orsburn, 238 Ark. 947, 385 S. W. 2d 785.

We conclude, therefore, that there was no proper basis for the motions to strike the testimony of R. L. Lovegrove and Jay Neal and that the trial court committed no reversible error in overruling the motions of appellant.

We also conclude that the issues were fairly presented to the jury on proper instructions and its verdict will not be disturbed on appeal.

Finding no merit in the contentions of appellant, the judgment of the trial court is affirmed.


text:
    Mrs. J. G. Burlingame v. Vernon J. Giss et al
    5-4032
    407 S. W. 2d 935
    Opinion delivered November 14, 1966

      Leon- B. Gattlett and Julius C. Acchione and U. A. Gentry, for appellant.

      Eerschel E. Friday, Jr. and Robert 8. Lindsey and J. W. Barron, for appellee.
   Hugh M. Bland, Justice.

The issues in this appeal grow out of and follow from our decision in Giss, et al v. Apple, et al, 239 Ark. 1124, 396 S. W. 2d 813. The background facts are that Pleasant Valley proposed that it would convey to Riverdale Country Club approximately 250 acres of land with an 18-hole golf course and a 9-hole golf course, constructed in accordance with plans and specifications submitted to Riverdale, including tees, fairways, and watering systems; that it would make available $1,150,000.00 to Riverdale for a club house, pro shops, youth center, tennis courts, parking areas and drives, and swimming pools; that it would make available to Riverdale an amount not to exceed $170,000.00 in order to pay off Riverdale’s existing mortgage indebtedness.

In return Riverdale would convey to Pleasant Valley its presently owned land and facilities and meanwhile not increase its mortgage indebtedness. Riverdale would change its name to Pleasant Valley Country Club.

After a study of the proposal by a committee appointed by Riverdale, a majority of tbe membership present voted in favor of the proposal. Mr. William Apple and another regular member obtained an injunction in the Pulaski Chancery Court restraining the Board of Governors of the Riverdale Country Club from entering into the proposed exchange agreement with Pleasant Valley. The lower court held that Riverdale had no authority under the constitution and by-laws to effectuate the proposed trade with Pleasant Valley, Inc., without proper authorization of the members of said club and that the vote of Riverdale Country Club on October 26, 1964, at which time 47.35% of the members of said club voted to authorize said exchange with Pleasant Valley, did not legally authorize or empower the board of said club to enter into said agreement with Pleasant Valley whereby all the assets of Riverdale Country Club would be sold or exchanged. The case was appealed to this court and decided in Giss v. Apple, supra.

The same contentions were made in the Giss case by opponents of the sale that are made in this case; that the consummation of the exchange would constitute a radical and fundamental change in the corporate purposes which may not be done against the wishes of the minority.

The decision in the Giss case, which was in the natur of a declaratory judgment, held:

“(1) The club itself did have the power to make the proposed sale and exchange with Pleasant Valley.
(2) Under the applicable statutes, the club having been granted the power to establish its own form of government, it had the right to establish its own rules and regulations governing the acceptance or rejection of the Pleasant Valley proposal, including and defining the number of votes necessary to approve the same. But it had not done so, and the Board itself had not been expressly granted this power by the Constitution or By-laws.
(3) The consummation of the proposed exchange would not have the effect of destroying the original purpose of the incorporators or dissolving the corporation or abandoning the purpose for which it was created. On the contrary, it would further the object and purposes of the club. Therefore, a majority of the members having voting rights could legally authorize the Board to enter into the Exchange Agreement, but less than such majority could not do so.”

Pending this court’s decision in the Giss ease, River-dale called and held a meeting on June 14, 1965 to vote upon the proposed amendment to the constitution now under attack in this case and did authorize the board to sell or exchange all of its properties upon the majority vote of the regular members at a proper meeting at which a majority of all the regular members were present in person or by proxy. At this time there were 550 regular members and the amendment carried by a vote of 314 for to 172 against.

Subsequently, at a meeting held on June 28, 1965, the board was authorized and empowered to consummate the proposed exchange by a vote of 347 regular members for and 133 regular members against.

The sole point relied upon by appellants is that the court erred in holding that the Riverdale Country Club had the power to amend its constitution to provide for the exchange of its entire assets against the will of a a minority of its members. The decision in Giss v. Apple, supra, is conclusive and determinative of this issue and we adopt that opinion as the law of this case.

The chancery court held, in the instant case, that by virtue of the action taken at special meetings of the Club held on June 14, 1965 and on June 28, 1965, the Board of Governors of Riverale Country Club was legally authorized and empowered to proceed and act with respect to the proposed sale and exchange with Pleasant Valley, Inc., and dismissed the petition for injunction with prejudice.

We find no error in the action of the chancery court and the decree is, therefore, affirmed.

Ward, Cobb, and Amsler, JJ., disqualified and not participating.


author: Carleton Harris, Chief Justice.

text:
    Walter Brooks v. Ballentine Trucking, Inc.
    5-4028
    408 S. W. 2d 497
    Opinion delivered November 21, 1966

      Gean, Gean & Gean, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Carleton Harris, Chief Justice.

Walter Brooks, anpellant herein, instituted suit against Ballentine Trucking, Inc., in the Circuit Court of Pulaski County, alleging that he was injured in North Little Rock on Highway 67-70, on February 28, 1962, while operating a tractor and trailer for Arkansas Best Freight Systems, Inc. Brooks stated that he drove over a truck tire and wheel in the middle of the highway, causing him to sustain injuries to his knee, back and spine, such injuries partially disabling him, and resulting in extreme pain, loss of wages, and doctor and hospital expenses. The complaint averred that the tire fell from a trailer being pulled by a tractor operated by the agent, servant, and employee of Ballentine, engaged in the employer’s business, and that the driver of appellee’s truck, Marvin F. Coffey, was negligent in permitting the truck tire to remain upon the highway, at nighttime, and during a rain, the driver sitting nearby in a truck, and failing to remove the tire. Ballentine answered, denying that any agent or employee of Ballentine was operating a tractor-trailer unit at the time and place alleged in the complaint ; further, it was asserted that the accident was an unavoidable mishap, and still further that whatever injuries were sustained by Brooks were directly and proximately caused by the driver’s own negligence and carelessness. On trial, the jury returned a verdict for Ballentine, and from the judgment so entered, appellant brings this appeal. For reversal, only one point is raised, vis, “The trial court erred in granting the appellees Instruction No. 2.”

The principal defense in this litigation was that Coffeey was not an agent, servant, or employee of appellee company, and was not engaged in the business of said company when the accident occurred. The proof reflected that Coffey, along with S. T. Lawson, who was also an alternate driver of the truck, and who was riding in the vehicle at the time the tire fell in the road, was employed by HLH Parade Company; neither man was employed by Ballentine. These men had been on a “run” from Alma, Arkansas, to Louisville, Kentucky, and were returning to Alma when the mishap occurred. HLH paid the salaries and expense accounts of these drivers, and both received directions relating to their duties from HLH. This company carried Workmen’s Compensation Insurance on these men, made the withholdings from their pay, reported the withholdings to the Federal Government, and made payments with respect to unemployment compensation, according to Ike Thomas, who handled the routing of the trucks. Thomas testified that HLH owned some trucking equipment, and leased other equipment from Ballentine, and that HLH employees operated both the owned units and the leased units. The witness stated that he had charge of the drivers, and the power to discharge employees, and that he did discharge Coffey sometime subsequent to February 28, 1962. Perry Newman, assistant manager of HLH products at Alma, concurred in the testimony given by Thomas, and John Ballentine, Secretary of the Ballentine Company, also testified that the particular truck involved was one which had been leased to HLH.

A lease agreement between Ballentine and HLH was offered into evidence, such lease being dated September 21, 1961, and executed by John P. Ballentine of the trucking company, and W. B. Beeman, Secretary Treasurer of HLH Parade Company. Included in its provisions are Sections 5 and 6, which read as follows:

“5. Lessee shall purchase and pay for any fuel necessary to operate said equipment during this period. Lessor warrants and represents that the leased equipment is, and that he will repair said equipment and maintain same at his own expense, in first-class condition and in every respect suitable for the transportation of Lessee’s products, except as to such repairs as may be necessitated by the sole negligence of Lessee, its agents, servants or employees; that the leased equipment is so constructed and equipped as to comply with all rules and regulations governing its operation over the highways of the United States; * # *

“6. Lessee, during the term of this lease, shall have absolute control over the use of said equipment in the same manner as though it were the absolute owner thereof and shall employ, pay and have absolute control supervision over the operators thereof.”

Appellant’s sole evidence of agency was his testimony that the name, “Ballentine Trucking Company,” appeared on the side of the vehicle, and that Coffey told him that the tire and wheel, heretofore mentioned, “belonged to Ballentine Trucking Company, that he worked for.”

Following the introduction of the lease agreement, appellant moved that the pleadings be treated as amended to conform to the proof, and this motion was granted by the court. At the conclusion of the evidence, instructions were given, which included Defendant’s Instruction No. 2. In that instruction the jury was first told that Brooks claimed that he had been damaged as a result of negligence on the part of Coffey, the allegation of negligence being that Coffey had knowingly permitted a truck tire to remain upon the highway during a rain, at night, though sitting by in a truck, knowing the tire was on the highway. The court then said:

“If you find and believe from a preponderance of the evidence that at the time and place of the occurrence, Marvin F. Coffey was not an employee of Ballentine Trucking, Inc., then it will not be necessary for you to consider or decide any other issues and your verdict should be returned in favor of defendant, Ballentine Trucking, Inc.”

Appellant made a general objection to the entire instruction, but made a specific objection to the quoted portion, stating that it “conflicted with the evidence and the granting of plaintiff’s motion to amend the pleadings to conform to the evidence.” It is the giving of the quoted portion of the instruction that appellant contends to be reversible error, entitling him to a new trial. This contention is based on appellant’s assertion that Ballentine, under Section 5 of the lease, was responsible for the maintenance of the truck in question, and that Ballentine was negligent by not furnishing “devices” that would fasten the spare tire to the rack (where the spare tire was housed under the truck).

This case is unusual in that appellant’s sole point for reversal relates to evidence that developed during the trial which was totally alien to the theory upon which appellant had instituted his suit. In filing his complaint, appellant contended that Coffey was an agent, servant and employee of Ballentine Trucking Company, and engaged in that company’s business at the time of the accident. It was not until the lease was offered in evidence that the new theory of negligence on the part of Ballentine arose, and the theory was not even fully pursued after the pleadings were amended to conform to the proof, i. e., no instructions relating to this alleged negligence were offered.

As far as agency is concerned, there is no question but that the proof overwhelmingly established that the two truck drivers, Coffey and Lawson, were employed solely by HLH. In fact, the question of agency is not argued in appellant’s brief.

"We do not agree that prejudicial error was committed. Appellant relies on Section 5, but it will be noted that Section 6 provides that HLH shall have “absolute control over the use of said equipment in the same manner as though it were the absolute owner thereof.” The evidence shows that the control was exercised over the equipment (tire and wheel) which is the subject of this litigation. Lawson testified that the tire was on the rack under the truck, and that he kept it tied in place. He stated that the last time he looked at it, “I guess at West Memphis somewhere along in there it was,” it was secure. "Lawson stated that the truck traveled through rather deep water in North Little Rock, and that this water “washed it [the tire] out.” Accordingly, the testimony reflects that the tire was in place in the earlier part of the day, and at a time when the vehicle was in complete charge of the employees of HLH. There was no testimony reflecting that the tire rack was inadeuate or defective at the time Ballentine last had the truck in its possession for maintenance work, nor does the evidence reflect when this truck last was seen or worked on by appellee. Also, there is no evidence that the method of carrying the tire and wheel on this truck was any different from the accepted practice among truckers with similar equipment. In other words, there is a complete absence of proof as to any negligence by Ballentine, and, on this aspect of the case, a jury would have been forced to guess and speculate in order to render a verdict for appellant. This, of course, is not permissible. Kapp v. Sullivan Chevrolet Company, 234 Ark. 395, 353 S. W. 2d 5. Actually, appellee was entitled to a directed verdict. This being true, any erroneous instructions to the jury are considered harmless. Carodine v. Southern National Insurance Company, 193 Ark. 376, 99 S. W. 2d 586.

Finding no reversible error, the judgment is affirmed.

       Appellee offered evidence that there was also lettering on the tractor, which stated, "Leased to HLH Parade Company." Likewise, painted on the side were fuel permits for Tennessee, Kentucky, and Colorado, which were HLH Parade Company permits.


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    Judith E. Danner Clifford v. Herman L. Danner
    5-3960
    409 S. W. 2d 314
    Opinion delivered November 21, 1966
    [Rehearing denied January 9, 1967.]

      Jach L. Lessenberry, for appellant.

      U. A. Gentry, for appellee.
   Ed. F. McFaddin, Justice.

This is a petition by the mother to require the father to provide child support for his three children. The Chancery Court denied the prayed relief and the mother prosecutes this appeal.

Judith and Herman Danner were married in Little Rock in June 1958; and three little boys were born of that marriage: David, born June 1959; Curtis, born September 1960; and Roger, born December 1961. The Danners separated in August 1964 and in November 1964 Judith Danner was awarded a divorce, the care and custody of the children, and $150.00 per month for support of the children; but she was restrained “from permanently removing the said minor children out of the State of Arkansas without the consent of the Court or the written consent” of Herman Danner.

In March 1965 Judith Danner petitioned the Pulaski Chancery Court for permission to allow her to permanently remove the children to another State. This petition was resisted; and on March 30, 1965 there was a hearing by the Court; and the order recites:

“The Court finds the parties have agreed that the plaintiff, Judith E. Danner, may take the children of the parties .. . from the jurisdiction of the Court and may establish a permanent residence in a foreign State .... The plaintiff [Judith E. Danner] agrees to support said children and the defendant is relieved from any further obligation for support thereof as long as the children remain out of the State. The Court finds that such agreement is reasonable under the circumstances, and that it is for the best interest of the children that said agreement be confirmed by order of the Court.”

The order of March 30th confirmed the agreement but had this further recitation:

“And the Court doth retain control and jurisdiction of this cause for such further orders and proceedings as may be necessary to enforce the rights of the parties and for the well-being of the said three minor children.”

Mrs. Judith Danner married Mr. Clifford on March 24, 1965, and removed the children to the State of Georgia, where they are now living with their mother and stepfather, Mr. Clifford; and there was a proceeding in Georgia in September 1965 to have the children’s last name changed to Clifford, but this was without notice to Mr. Danner.

On November 5, 1965 Mrs. Judith Danner-Clifford filed her present petition in the Pulaski Chancery Court, seeking an order to require Mr. Danner to contribute to the support of the children, even though they continued to live in Georgia with her and her new husband. She claimed: (a) that she did not fully understand the agreement on which the said consent order of March 1965 was based; and (b) that there had been a change in conditions in that the children were growing up and needed more financial support and that Mr. Danner was making more money than he had formerly made. The petition was resisted by Mr. Danner. The Chancery Court heard the evidence offered in support of and in resistance to the petition; and on December 1, 1965, entered an order denying the petition. From that order there is the present appeal.

Mr. Danner urges that the consent order of March 1965 is res judicata and final. We find no merit in this contention. No order for child support is ever final insofar as concerns the obligation of a father to support his own children. Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409; Robbins v. Robbins, 231 Ark. 184, 328 S. W. 2d 498; and McCall v. McCall, 205 Ark. 1123, 172 S. W. 2d 677. Furthermore, in the consent order of March 1965 the Chancery Court specifically retained jurisdiction of the case concerning the welfare of the children.

Mrs. Danner-Clifford says that she did not fully understand what was the force and effect of the consent order of 1965; but she has no corroboration for her present claim of misunderstanding, and we attach very little weight to such claim.

We come then to the real issue: do the children need support money from Mr. Danner, their father? Mr. Danner is a pipefitter by vocation and makes approximately $6,000.00 per year and is not shown to have any other assets. From this amount he could contribute to the support of the children if they needed it; but we find no such need shown. Mr. Clifford, the present stepfather (who has had the children’s name changed to Clifford), is a drug salesman in Atlanta, Georgia, and earns over $8,000.00 per year and is buying a home. When he married Mrs. Danner-Clifford he agreed to support and care for her and her children. He is doing it and does not seem to be complaining about it. There is no evidence that the three children are other than amply provided for; and we do not find any such evidence of change of circumstances as would justify a modification of the March 1965 order. In Haney v. Haney, 235 Ark. 60, 357 S. W. 2d 19, we said: “Any increase in allowance for the support of minor children must be based on a showing that conditions have changed since the entry of the divorce decree.”

After a careful review of the evidence we cannot say that the chancery decree is against the preponderance of the evidence.

Affirmed.


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    Worth James Const. Co. v. Catherine Fulk ex'x
    5-4023
    409 S.W. 2d 320
    Opinion delivered November 21, 1966
    [Rehearing denied January 9, 1967-4

      McMillen, Teague & Bramhall and John B. Plegge, for appellant.

      Fulk, Wood, Lovett, Parham, & Mayes, for appellee,
   George Rose Smith, Justice.

In April of 1964 the defendant, Worth James Construction Company, was engaged in the performance of a private contract by which it was to construct a storm-sewer system to serve the pleasant Valley Addition to the city of Little Rock. On the morning of April 23, after a night of heavy rainfall, the plaintiff Frank M. Fulk, who lived near that subdivision, discovered that the den and utility room in the basement of his home were flooded to a depth of fourteen inches or more. There was extensive water damage to the residence itself and to furniture and other personal property. Fulk and his wife brought this action against the Worth James company, asserting that its negligence had caused water from the uncompleted Pleasant Valley system to flood a manhole in front of the Fulks ’ house to such an extent that the water hacked up through a floor drain in their utility room and inundated the premises.

The Worth James company denied any negligence on its part, insisting that its construction methods conformed to the plans and specifications set out in its contract with Pleasant Valley, Inc. The jury verdict was for the defendant, but the trial judge found the verdict to be against the preponderance of the evidence and ordered a new trial. This appeal is from that order. In such a situation the question here is whether the preponderance of the evidence supports the verdict so clearr ly that we must find an abuse of the trial judge’s discretion. Koonce v. Owens, 236 Ark. 379, 366 S. W. 2d 196 (1963). (Frank M. Fulk died soon after the trial; the cause has been revived.)

Worth James, in the course of its construction, had connected the new Pleasant Valley 21-inch sewer line to the manhole in front of the Fulk home. That manhole was served by an existing 18-inch line that was part of the municipal storm-sewer system. When the Worth James employees quit work at the end of the day on April 22 they left an open unfinished manhole at a shoi't distance up the new line from the Fulks’ residence. Grassy 'Creek was only a few feet from that open manhole. According to the plaintiffs’ evidence the rainfall during the night was so heavy that the creek overflowed its banks and discharged so much water into the unfinished manhole that the new 21-ineh line was filled to capacity. Since that volume of water could not be carried away at once by the 18-inch municipal line, the water in the older manhole rose to a height above the Fulks’ floor drain and caused the damage complained of.

At the trial the key point of controversy was whether the Worth James company should have plugged the new line during construction by putting in a bulkhead or stopper below the unfinished manhole. Porter Pryor, an expert witness for the plaintiffs, testified that “in lines of this size normally bulkheads are installed.” Worth James himself, as a witness for his company, testified that it was not customary to use such bulkheads and that his contract with Pleasant Valley, Inc., did not call for them. He conceded on cross examination, however, that in the construction of sanitary sewers (as opposed to storm sewers) “normally we will plug up our lines at night ... to keep the surface water out of the drains if it happens to rain.”

In seeking a reversal counsel for the appellant rely upon our familiar rule that a verdict supported by any substantial evidence will be upheld in this court. That rule does not apply to a case such as this one, where the trial court has set aside the verdict as being against the weight of the testimony. Here the issue, as we have said, is whether the trial judge abused his discretion.

In the case at bar we find no such abuse. We cannot attach controlling weight to the fact that the Worth James contract did not require the use of bulkheads. Presumably the contractual plans and specifications described the proposed storm-sewer system in detail, to the end that Pleasant Valley, Inc., would be sure of getting the exact system that it wanted and was willing to pay for. But that does not mean that the Worth James company had no responsibility in deciding how the contract was to be performed. The company unquestionably had the duty of using reasonable care in the construction of the system. Restatement, Torts (2d), § 384 (1965). If, for example, a building contractor should leave a live electric wire dangerously exposed overnight, it could not defend an ensuing action for personal injuries on the ground that the plans and specifications did not require that such wires be made safe before the workmen quit for the day. In the same way the jury could have found that this contractor was careless in not taking any precautions against the overflow that actually occurred.

A salient fact, one that cannot be overlooked, is that the Fulks were plainly not at fault. They had no warning of the danger that threatened their house. Worth James, in his testimony, sought to disclaim responsibility by saying that his company had no way of anticipating such a heavy downpour. He admitted, however, that “we get rains like that occasionally, but they aren’t common.” We are not convinced that the clear préponderance of the evidence supports the view that the appellant was wholly free from negligence in failing to protect the Fulk home by installing a bulkhead or by temporarily reducing the output of the 21-inch main. It follows that there was no abuse of discretion in the court below.

Affirmed.


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    Robert L. Crouch et al v. John Crouch et al
    5-4024
    408 S. W. 2d 495
    Opinion delivered November 21, 1966

      Kirsch, Cathey & Brown, for appellant.

      Rhine & Rhme, for appellee.
   Paul Ward, Justice.

This litigation is between the heirs of W. M. Crouch, deceased, over certain lands, involving also certain grantees of two of said heirs. There appears to be no dispute over the pertinent facts, the only question for determination being one of law.

Facts. W. M. Crouch, a widower, procured a Donation Certificate in 1932 from the State for 160 acres of land. He made some improvements on the land but died in 1933 before a donation deed was made by the State. However, the donation undertaken was completed in 1935, and the State executed a deed conveying the land to “W. M. Crouch Estate”. W. M. Crouch left seven children, one having since died leaving six children.

In 1958 the lands forfeited for taxes. At the tax sale one of the sons (John) bought the north eighty acres for $13.97, and another son (Adolph) bought the south eighty acres for $11.40. Each one received a tax deed. Later these two sons conveyed the 160 acres to Harold J. Conrad and his wife.

Suit filed. On or about March 16, 1965 the heirs of the deceased (except, of course, John and Adolph) filed a complaint in chancery court against John and Adolph and their grantee, seeking a 5/7 interest in said lands and asking that the lands be sold (if they cannot be divided) and the proceeds divided among the several parties as their interests appeared.

After a trial, the court made, in essence, the following findings: (a) The plaintiffs are not barred by laches or adverse possession; (b) the heirs of the deceased received no interest in the said lands by reason of the donation deed because said deed was void, having been made to “W. M. Crouch Estate”. Accordingly the complaint was dismissed, and title to the land was quieted in Harold J. Conrad and his wife.

From the above decree appellants now prosecute this appeal for a reversal.

The decisive issue involved is whether the deed from the State to the “W. M. Crouch Estate” conveyed the 160 acres of land to the heirs of said W. M. Crouch, there being no dispute as to who the heirs are.

It is the contention of appellees that every valid deed must have a grantee, and that the words “W. M. Crouch Estate” do not constitute a “grantee” as contemplated by law, citing authorities which we deem it unnecessary to discuss in view of the conclusion we hereafter reach.

We think the deed in question was.valid for the following reasons. Ark. Stat. Ann. § 10-929 (Repl. 1956), in pertinent part, reads:

“In case the donee should die before the expiration of the time herein required to submit final proof of the right to perfect, the same shall extend, first to the widow of the donee, and if she be dead, then to the children of such donee . . . .”

In the early case of McCracken v. Sisk, 91 Ark. 452 (p. 457), 121 S. W. 725, the facts were very much the same as here, and the Court said:

“In the case at hand the donee died before the expiration of the time required by the statute to submit final proof of the right to a perfect donation. In that event the right to perfect the donation and submit final proof thereof was by the statute extended to the widow in her own right as an original donee, and to the exclusion of all children, if there had been any, and to the exclusion of all other persons. Upon making the final proof the widow was entitled to and did receive a deed to the land from the State in her own right and as her individual property, and which she could thereafter alienate as her separate estate.”

In the case under consideration it is not disputed that the State deeded the land as heretofore stated, and we will presume, in the absence of proof to the contrary, that all necessary prerequisites had been complied with by the heirs.

We are not convinced by appellees’ contention the deed was void because there was no legal grantee. In 23 Am. Jur. 2d., Deeds, § 50, we find this statement:

“. . . In short, where the instrument refers to someone in such terms that there is no doubt that he is the grantee, the deed will be effective although his name is not specifically stated as being the grantee.
“To pass title to the grantee intended, a deed need not describe him by name if it otherwise identifies him or makes him susceptible of identification by extrinsic evidence.”

The case of Black v. Brown, 129 Ark. 270, 195 S. W. 673, is also very much in point here to reverse the holding that the deed was void for lack of a proper grantee. The case deals with the legality of a tax deed made by the county clerk to “P. M. Black Estate”. In holding the grantee was sufficient the court, among other things, said:

“P. M. Black being dead at the time of the execution of the deed, his heirs were known with certainty and there could be no two parties claiming adversely as grantees under the deed. We are of the opinion that the validity of the deed should be upheld . . . .”

In the case under consideration here there is no dispute about who constituted the heirs of W. M. Crouch. It is certain that one of the appellees thought the deed was valid because he moved on the land and made improvements thereon.

We are not here holding that in all circumstances a deed to a person’s estate is valid, but do hold it is valid in this instance.

There appears to be no contention (nor could there be any valid contention) that John and Adolph Crouch acquired title to the land by virtue of the 1958-1959 tax deeds. Being co-tenants with the other heirs, the purchases amounted only to a redemption for all the heirs. In Jones, Ark. Titles, % 200 there appears this statement:

“Purchase by one co-tenant at a tax sale amounts merely to a redemption, and neither such tenant nor his grantee can acquire title through such purchase. ...”

The above stated rule has been approved many times by this Court. See: Zachery v. Warmack, 213 Ark. 808, 212 S. W. 2d 706, and Spikes v. Beloate, 206 Ark. 344, 175 S. W. 2d 579.

In view of what we have said above, the decree of the trial court is reversed, and the cause is remanded for any further necessary orders or proceedings consistent with this opinion.

Reversed.