text:
    Harrison v. Terry Dairy Products, Inc.
    5-800 and 5-838 (consolidated)
    287 S. W. 2d 473
    Opinion delivered February 13, 1956.
    [Rehearing denied March 19, 1956.]

      John K. Shamburger and Richard L. Pratt, for appellant.

      Owens, McHaney, Lofton & McHaney, for appellee.
   Lee Seamster, Chief Justice.

This appeal by the appellants is from a temporary order of the Pulaski Chancery Court, first division, in restraining the appelHants from picketing the property of appellee. The appellants also seek, by writ of certiorari, to have this Court quash the Chancery Court order which found the appellants guilty of contempt and assessed punishment. The trial court found the appellants guilty of violating the terms of a temporary restraining order in which the appellants were restrained from committing acts of violence against the property and personnel of appellee; from intimidating the employees of appellee and from interfering with the orderly business of appellee.

On March 30, 1955, the appellant, a local of the International Teamsters Union, called a strike of employees of Terry Dairy Products Company, Inc., appellee herein. On March 31, 1955, appellee filed a verified petition in equity seeking an injunction against illegal picketing and other illegal conduct. The verified petition alleged (a) threats of physical harm to appellee’s employees at the picket line and elsewhere; (b) use of force and threats of force to prevent appellee’s employees from entering the plant premises; (c) use of “goon squads” to follow appellee’s employees, who, by threats, intimidation, and physical violence endeavored to cause the employees to discontinue working for appellee; (d) the malicious damaging of property of Terry employees; (e) assault and battery on Terry employees; and, (f) mass picketing to disrupt appellee’s business and to prevent ready access to and from the plant. No response was filed by the appellants.

Upon the verified petition the court, on April 2, 1955, entered a temporary order enjoining threats and acts of intimidation and violence against appellee’s property, officers, agents, employees, or others doing business with appellee, and further interfering with the activities of employees of appellee. Pickets were limited in number to two, and the union, its members and agents, were enjoined from congregating in the general vicinity of appellee’s plant.

On April 25, 1955, the appellee petitioned the court for an order adjudging the appellant union in contempt. Although, no response denying the verified petition was filed by appellants, the court heard evidence in support of the petition on April 28 and April 29 of 1955. The court found the appellant union in contempt of court and assessed a fine of $500 against the union. The court also found one of the union members, Dewey Burchfield, in contempt of court and assessed a $100 fine and a ten day jail sentence against Burchfield. The jail sentence was suspended pending good behavior. The court did not suspend the fines. Without setting out the evidence introduced, we find it was sufficient to justify the court’s order. There was no appeal by either party from the court’s order.

Thereafter, on July 14, 1955, the appellee filed a verified petition for order to show cause, alleging the following acts of violence:

“On the 14th day of July, 1955, at approximately two o’clock A. M., a heavy charge of dynamite was planted in the milk bottling room of plaintiff’s (appellee’s) plant and detonated, resulting in complete destruction of one bottling machine and extensive damage to other machinery and equipment in said room and to the building. On the same morning, a heavy charge of dynamite was placed in each of the boilers at plaintiff’s plant. At approximately five o’clock A. M., when one of said boilers- was turned on the dynamite planted therein was caused to explode, completely demolishing said boiler and seriously damaging other machinery and equipment in the boiler room and the building itself. The second boiler was not placed in operation, but was forthwith examined. Twenty-one sticks of dynamite, together with the necessary fuses and detonators to explode same were found inside said boiler, and said charge would have resulted in an explosion had the boiler been ignited. One of plaintiff’s employees was injured by the aforesaid explosions and might easily have been killed.”

“That on or about the 14th day of July, 1955, at an hour unknown to the plaintiff, some person or persons whose names are unknown to the plaintiff placed syrup or other foreign substances in the gasoline tanks and motors of the trucks operated by the plaintiff to the end that said foreign substances caused material damage to the motors of said trucks when they were started, and wholly prevented their operation in the prosecution of plaintiff’s business.”

On July 15, 1955, the court revoked the appellants’ authority to maintain any pickets, and directed that the fines previously levied, but unpaid, be paid forthwith, and that Burchfield be committed to jail. The court refused to take further testimony and the appellant thereupon filed its formal motion to vacate. The court overruled appellant’s motion to vacate and provided that the order of arrest and commitment of Dewey Burchfield should be stayed pending appeal and that the $500 fine against the union and the $100 fine against Dewey Burch-field should be held by the clerk of the Chancery Court pending final determination of the issues in this cause. This appeal follows. The appellants also seek, by writ of certiorari, to have this court quash the Chancery Court order which found the appellants guilty of contempt and assessed punishment. The cases were consolidated for briefing and hearing.

Initially, the appellants contend that the chancellor, having failed to enjoin all picketing at the hearings on April 2 and April 28 and 29, had no power or authority thereafter to enter such injunction. This contention is based on two premises: (1) the court, having made one order with reference to picketing, could not thereafter modify or change its order; and (2) there being no appeal from the first order, such order became final and unalterable, unless there be proof of a change of conditions.

The appellants further contend that the trial court erred in revoking the suspension of fines and jail sentence of Dewey Burchfield and the Union. This contention is based on three premises: (1) there is no proof or allegation of any misconduct on the part of Dewey Burchfield or the Union; (2) the court’s prior orders were a complete adjudication of the status and legal rights; and, (3) the court’s order was not authorized by law, i. e. the fines and the jail sentence.

The granting or refusing of injunctive relief rests within the judicial discretion of the trial court, and its action in the matter will be sustained on review, if that power has not been abused. This rule applies to the grant or denial of a temporary injunction, and to rulings on motion to dissolve the injunction. In the case of Riggs v. Hill, 201 Ark. 206, 144 S. W. 2d 26, this court said, “the granting or dissolution of a temporary restraining order is within the discretion of the trial court. He can, at any time, make such orders as appear necessary to protect the interest of the parties, and his action will not be disturbed by this court unless it appears that the Chancellor abused his discretion.”

Appellant seeks to attribute to a temporary order the final qualities of a decree or judgment for purposes of applying the doctrine of res adjudicata. An order pendente lite is always subject to the jurisdiction of the court until entry of a final decree. It may be rescinded or modified at the discretion of the court to meet the ends of justice. Its purpose is not to finally dispose of the litigation, but merely to serve the ends of justice until a final hearing can be held. The original order of April 2 specifically provides that it was made subject to the further order of the court. We do not think the Chancellor abused his discretion in this case.

Appellant earnestly contends that the order of the trial court of July 15, 1955, which revoked the suspended jail sentence (previously ordered by the court on April 29, 1955) and directed the sheriff to forthwith take into custody Dewey Burchfield and to commit him to jail for a period of ten days, was invalid. We think the trial court had no authority to revoke the suspended sentence at this later date.

In the case of Stewart, et al. v. State, 221 Ark. 496, 254 S. W. 2d 55, which was a case similar to the instant case, this court held, “We think it best to state explicitly that in these circumstances the suspension of the sentence is in effect its complete remission. In ordinary criminal cases a suspended sentence is a useful deterrent to later wrongdoing. The same considerations do not apply in cases of contempt, and we are aware of no authority for an indefinite suspension in a case of this kind.” So in the instant case, we think that the suspension of Dewey Burchfield’s jail sentence was in effect its complete remission. No additional proof was introduced or pleadings filed to show that.Burchfield had later violated the order of the court. Therefore, the court erred in revoking the suspended jail sentence.

The fines assessed were not suspended and the order issued July 15, 1955, to collect the fines already assessed against the appellants, was a proper order and is therefore approved.

The writ of certiorari will be denied, except as to the jail sentence of ten days assessed against Dewey Burchfield. The petition will be granted and the order sending him to jail will be quashed. With the modification mentioned the case is affirmed.


source: Caselaw Access Project

author: J. Seaborn Holt, Associate Justice. George Rose Smith, J.,

license: Public Domain

text:
    Harris v. Harris, Administratrix.
    5-812
    286 S. W. 2d 849
    Opinion delivered February 13, 1956.

      G. M. Martin, for appellant.

      L. B. Smeacl, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, Dewey Harris, and Bennie Harris were the parents of Birdie Harris, Avho was killed in an automobile collision July 11, 1954. Dewey Harris and Bennie Harris have been divorced for some eight (8) years. Their daughter, Birdie, had also been married, was divorced December 15, 1950, and was 24 years of age at the time of her death. She had no children. A damage suit following the automobile mishap, and filed by her administratrix [her mother], resulted in a recovery for Birdie’s estate of $4,000. Birdie died intestate and left no other estate. December 23, 1954, appellant [as Birdie’s father] filed a petition in the Probate Court asking that the assets of the estate be disbursed equally between him and Bennie, and that the administration be closed. January 24, 1955, on petition of appellee, a partial distribution was made, $1,000 being paid to Dewey Harris and $1,000 to Bennie Harris, leaving a balance of $2,000. On February 17, 1955, Bennie Harris filed a claim against her daughter’s estate for $3,000 and on a hearing the court allowed her $2,490. This appeal followed.

For reversal appellant relies on the following five points: 1, 2 and 3, in effect, question the sufficiency of the evidence and “4. Because the testimony of Bennie Harris, Administratrix, was incompetent and inadmissible for the purpose of establishing her claim against the estate of Birdie Harris, deceased. 5. Because the testimony of Frank Landers was not sufficient to establish the claim of Bennie Harris, Administratrix, against the estate of Birdie Harris, deceased.”

Appellee based her claim against her daughter’s estate on the following itemized account: ‘ ‘ For expenditures on behalf of the decedent during the period from September, 1951, to May, 1954, during the school year, only: Lunch — $10.00 per mo., Incidentals — $10.00 per mo., Pood & Lodging — $30.00 per mo., Clothing & Shoes —$20.00 per mo., Books — $5.00 per mo., Medical & Dental —$5.00 per mo., Total — $80.00 per month.

“Total expenditure for 27 months @ $80.00 per month — $2,160.00.

“Por expenditures on behalf of the decedent during the period September, 1951, to May, 1954, during vacation only: Incidentals — $10.00, Pood & Lodging — $30.00, Clothing & Shoes — $10.00, Medical & Dental — $5.00, Total $55.00.

“Total expenditure for 6 months @ $55.00 per month, $330.00.

Total Expenditure.....................$2,490.00. ’ ’

There was evidence to the effect that Birdie, following her divorce December 15, 1950, had lived with her mother continuously until her accidental death July 11, 1954. During this period she went to school and it does not appear that she earned anything. Her mother [67 years old] received $75 a month from the government and earned $40 per month working for Prank Landers. Her mother testified that Birdie promised to pay her [Bennie Harris] for her [Birdie Harris’] expenses while she lived with her mother. On direct examination Birdie’s mother testified:

“Q. Actually, Bennie, did Birdie finish school in May of 1954? A. Yes, sir, and she told me she was going to pay me — we made an agreement — • MR. MARTIN: We object to any agreement between the Administratrix and the deceased. MR. ROWAN (continuing): Q. During the time she went to school, from September, 1951, until May, 1954, when she finished, who paid her expenses? A. Me.”

Appellant’s contention that this evidence of Birdie’s mother was inadmissible as falling within the terms of Section 2 under “Schedule” to the Constitution of Arkansas, commonly referred to as the “Dead Man’s Statute,” must be sustained. It appears, however, that appellant brought out on his cross-examination of Bennie Harris the same testimony, in effect, that he complained about, as indicated, on her direct examination. He, therefore, waived the incompetency of this testimony, Smith, Administratrix v. Clark, 219 Ark. 751, 244 S. W. 2d 776. On Bennie Harris’ cross-examination she testified :

“Q. Did you get a note for any of this money you gave her? A. I didn’t have to because she told me she was going to give me back every cent. Q. How was she going to pay it back? A. Get a job and pay me back. . . . Q. Now why do you claim pay for Birdie after she is dead — why didn’t you make the claim while she was living? A. I did make it — and she told me she was going to pay it when I put her through high school and she could get a job and make some money.” . . .

In addition to the above testimony Prank Landers testified: . . . “That she [Bennie Harris] works for his wife in the house and has worked for her since 1951. That he knew her daughter, Birdie Harris. Q. Were you aware, or did you know any expenditures made by Bennie Harris for the purpose of educating Birdie Harris? A. Yes, sir. Q. How did you know of it? A. Well, a number of times Bennie would get money from me to take care of Birdie’s school bills. Q. Did you hear any conversation between Birdie Harris and Bennie Harris regarding this matter ? A. Yes, sir. Q. Tell the court what they were. A. Well, at one particular time, Birdie got off the bus and came in my house and asked her mother for some money for books, and her mother said she didn’t have the money, and that it was costing a lot to send her through school, and she said — she didn’t call her Mother, she called her Bennie,' — and she said: ‘Bennie, when I get through school I am going to pay every, bit of this money back. ’ ” . . .

The cause comes to us for trial de novo, just as in chancery appeals. The burden was on Birdie’s mother to establish her claim. “ It is incumbent upon the claimant to show that, at the time the services were rendered, it was expected by both parties that she should receive compensation, but she may show this by circumstantial as well as' by direct evidence. All the surrounding circumstances under which the services were performed may be proved, Meers v. Potter, 208 Ark. 965, 188 S. W. 2d 500.

After a careful review of all the testimony, some of which is contradicted by appellant, we have reached the conclusion that the preponderance of the testimony does not support a claim of appellee for more than $2,000. The claim will, therefore, be reduced to $2,000 and affirmed for this amount. All costs in the trial court and here to be paid out of the estate.

Justices Smith and Robinson dissent.

George Rose Smith, J.,

dissenting. Our law sensibly frowns upon attempts to recover compensation for services rendered to the claimant’s deceased parent or child. “Such services are enjoined by the reciprocal duties of the family relation, and are always presumed to have been prompted by natural love, rather than by the promise or hope of pecuniary reward.” Williams v. Walden, 82 Ark. 136, 100 S. W. 898. The law may imply a promise to pay if the services are so extraordinary that they cannot be attributed to filial or parental devotion and would be i endered only with the expectation of compensation. But in the case of ordinary services the burden is on the claimant to prove a contract for reimbursement. Lineback v. Smith, 140 Ark. 500, 215 S. W. 662.

In this case the decedent was a young girl who, after an unsuccessful marriage, returned to live with her mother while she finished her schooling. The mother’s claim is for board, room, clothing, and incidentals which she furnished during her daughter’s school days. There is nothing extraordinary about services such as these. Probably the commonest example of unselfishness to be found is the self-denial undergone by parents in order to give their children an education. Most parents would be affronted if the law implied an expectation of pecuniary reward on their part.

Hence the appellee’s claim must rest upon proof of an express contract for reimbursement. All that is shown is that on two occasions the daughter said that when she finished school she was going to get a job and pay back every cent. It seems clear to me that such a voluntary unilateral promise does not create a contract. It is not suggested that the appellee supplied her daughter with the necessaries of life only because repayment had been promised. To the contrary, the appellee admits that she brought up eight other children without asking compensation for their food and shelter. In my opinion the majority decision is contrary to many precedents in our Reports and will encourage the filing of fictitious claims. I should add that the equities as between the appellee and her divorced husband, the appellant, are not our responsibility. It is probably true in most cases that all who share equally under the law of descent and distribution are not equally deserving as a matter of abstract justice.

Robinson, J., joins in this dissent.


author: Ed. F. McFaddin, Associate Justice.

text:
    Davis, Administratrix v. Perryman.
    5-840
    286 S. W. 2d 844
    Opinion delivered February 13, 1956.

      Gerland P. Patten, for appellant.

      Wright, Harrison, Lindsey é TJpton, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question posed is whether the appellant is barred from maintaining the present action because of previous litigation. The Trial Court answered the question in the affirmative and dismissed the complaint. This appeal ensued.

On November 3, 1954, Mrs. Eea Howell Davis, as administratrix of the estate of her husband, James Henry Davis, filed this present action in the Pulaski Circuit Court against Jerry T. Perryman, as sole defendant. The complaint alleged, inter alia, that on November 11, 1952, the said James Henry Davis was killed in a traffic collision between his car and a truck of the East Texas Motor Freight Lines, then driven by the defendant, Perryman, as servant of said East Texas Motor Freight Lines; that James Henry Davis was free of all negligence and that the collision occurred entirely because of the fault and negligence of the defendant, Perryman, against whom damages were prayed. In due time, the defendant filed his motion to dismiss, as follows:

“. . . on January 30, 1954, Eea Howell Davis, Administratrix of the Estate of James Henry Davis, Deceased, filed suit against East Texas Motor Freight Lines, a corporation, in the United States District Court for the Eastern District of Arkansas, Western Division, which said suit bore civil No. 2743 and involved the same traffic accident involved here. ... In the said civil action No. 2743, the only grounds alleged for liability on the part of East Texas Motor Freight Lines, a corporation, were that Jerry T. Perryman was guilty of negligence which proximately caused the collision and that the said Jerry T. Perryman was an employee of East Texas Motor Freight Lines and acting within the scope of his employment at the time of the traffic accident. East Texas Motor Freight Lines, a corporation, in its answer in the District Court of the United States, Eastern District of Arkansas, Western Division, in Civil No. 2743, admitted that Jerry T. Perryman was an agent and employee of the East Texas Motor Freight Lines and acting within the scope of his employment at the time of the traffic accident. United States District Court Cause No. 2743 was tried before a jury on the issue of whether or not East Texas Motor Freight Lines, a corporation, was liable to Rea Howell Davis, Administratrix, because of negligence on the part of Jerry T. Perryman; and resulted in a verdict in favor of East Texas Motor Freight Lines on April 20, 1954. Judgment on the verdict in United States District Court was entered on April 20, 1954; Rea Howell Davis has never appealed from the said judgment in favor of East Texas Motor Freight Lines; and the said judgment has now become final. Defendant pleads the foregoing proceedings, orders and judgments . . . United States District Court No. 2743 as a bar to this cause of action.”

At a hearing on said motion it was stipulated in open court by the respective parties, through their attorneys, that all of the allegations, contained in said motion to dismiss, were true. Thereupon, the Trial Court sustained the motion and dismissed the complaint; and appellant, claiming error, argues the two assignments now to be discussed.

Assignment No. 1. The appellant says: “Res judicata does not apply, because in this ease the East Texas Motor Freight Lines is not privy to Perryman, nor Perryman to the East Texas Motor Freight Lines.” Among other authorities, appellant cites Eldred v. Johnson, 75 Ark. 1, 86 S. W. 670, to the effect that a judgment binds only parties to the action and those in privity with parties; and then appellant says that in the scope of such rule of res judicata a servant is not in privity with a master and an agent is not in privity with a principal; and to sustain such statement, appellant cites these Arkansas cases: Mo. Pac. RR. Co. v. McGuire, 205 Ark. 658, 169 S. W. 2d 872; Meyer v. Eichenbaum, 202 Ark. 438, 150 S. W. 2d 958; Gates v. Mortgage Loan, etc., 200 Ark. 276, 139 S. W. 2d 19; Berryman v. Cudahy Pack. Co., 191 Ark. 533, 87 S. W. 2d 21; and in the oral argument before the Court, appellant added the cases of Mo. Pac. RR. Co. v. Nelson, 195 Ark. 883, 115 S. W. 2d 872; Ark. P. & L. Co. v. Marsh, 195 Ark. 1135, 115 S. W. 2d 825; and Corder v. Norsworthy, 194 Ark. 564, 109 S. W. 2d 136.

We respect the cases cited by the appellant and nothing herein in any way overrules the real holding in any of the cited cases; but we have here a factual situation materially different from that in any of the cited cases. Focused down to the distinct issue, the question here is whether the plaintiff, after an unsuccessful damage action against the master for the alleged negligent act of the servant, is barred from maintaining a subsequent action against the servant involving the same mishap, when it was and is conceded in both actions that the servant was all the time acting within the scope of his employment and the only questions in the two actions are negligence and contributory negligence.

Learned counsel for appellant has not cited us to any Arkansas case with facts like the one here, and our search has failed to disclose any such case; but the cases from other jurisdictions are overwhelming in holding that an action like the present one cannot be maintained when a previous action by the same plaintiff against either the master or the servant for the same alleged act of negligence has been finally decided against the plaintiff in the Courts — State or Federal — of the same jurisdiction, and in which the scope of employment of the servant has been conceded at all times by the master and the only questions have been those of negligence and contributory negligence. The reason for the rule seems to be that the plaintiff has had a complete opportunity to have a court of competent jurisdiction in the forum pass on the questions of negligence and contributory negligence, and that the plaintiff is not entitled to have the same issue re-litigated.

A leading case is that of Giedrewicz v. Donovan, 277 Mass. 563, 179 N. E. 246, decided hy the Supreme Court of Massachusetts in 1932. There the facts disclose that the plaintiff brought an action against the master for injuries received because of the alleged negligence of the servant; that case was tried in -the United States Court in Massachusetts and the master conceded that the servant was acting in the scope of employment, and the only issues were negligence and contributory negligence. That case was finally decided against the plaintiff; and then the plaintiff brought suit in the State Court of Massachusetts against the servant based on the same traffic mishap. The Supreme Judicial Court of Massachusetts, in the reported decision, held that the second action was barred because of the stated outcome of the first action. After recognizing the general rule, that a judgment is a bar to a subsequent action only when the parties or their privies are the same in both actions, the Court nevertheless held that the result of the first action prohibits the maintaining of the second action.

The Massachusetts Court quoted from the case of Jenkins v. Atlantic Coast Line RR. Co., 89 S. C. 408, 71 S. E. 1010, as follows:

‘ ‘. . . the true ground upon which a former judgment, in a case like this, should be allowed to operate as a bar to a second action is not res judicata, or technical estoppel, because the parties are not the same, and there is no such privity between them as is necessary for the application of that doctrine; but that in such cases, on grounds of public policy, the principle of estoppel should be expanded, so as to embrace within the estoppel of a judgment persons who are not, strictly speaking, either parties or privies. It is rested upon the wholesome principle which allows every litigant one opportunity to try his case on the merits, but limits him, in the interest of the public, to one such opportunity.”

Another case with facts like the one at bar is Myhra v. Park, 193 Minn. 290, 258 N. W. 515, decided by the Supreme Court of Minnesota in 1935. In that case, Myhra and his wife received injuries in a traffic mishap involving a car and a truck driven by Johnson, who was the servant and employee of Park. In the first action, Myhra filed against Park as the sole defendant, and sought damages for his car and his personal injuries, but did not mention any injuries sustained by his wife. It was conceded that Johnson was all the time acting in the scope of his employment, and the sole questions in the case were negligence and contributory negligence. The first action resulted in a decision in favor of Park. Thereafter, Myhra brought action against both Johnson and Park for amounts that he expended for medicine and hospital treatment of his wife and the loss of her services. The question was whether the first action against Park was a bar to the second action against Johnson, the servant. The Supreme Court of Minnesota stated the question :

“In view of the facts appearing in the instant case, is estoppel by verdict or bar by judgment available to the defendant, Tim Johnson? Plaintiff asserts that, because Johnson was not a party to the former action, there can be no estoppel as to him. The liability of defendant Park necessarily depended upon whether there was negligence on the part of his servant at the time and place of the accident. There is no question but that Park assumed responsibility for his servant’s acts and conduct, even were that open to dispute. So the question presented is really this: Plaintiff having fully litigated the question of the servant’s negligence in his action against the master and, after an adverse determination of such issue upon the merits, having based his new cause of action upon the same facts, may he again litigate the same issue in an action against the servant1?”

The Supreme Court of Minnesota, after reviewing numerous authorities, held that, since Myhra had litigated the question of the servant’s negligence in his action against the master, he could not again litigate the same question in an action against the servant.

In 133 American Law Reports 181 there is an Annotation entitled: “Judgment in action growing out of accident as res judicata, as to negligence or contributory negligence, in later action growing out of the same accident by or against one not a party to the earlier action. ’ ’ On page 196 of that volume there is this statement:

“It is a prevailing rule that as regards actions growing out of an accident, in which liability is claimed on the ground of the alleged negligence of a servant or agent, a judgment in favor of either the master or principal on the one hand, or the servant or agent on the other, sued alone, is res judicata, or conclusive, as to such issue of negligence, in a subsequent action against the other, a derivative responsibility being present.”

In 23 American Law Reports 2d the Annotation on the same subject is supplemented, and cases adhering to the prevailing rule, as above quoted, are listed there and in supplemental volume, being: Wolf v. Kenyon, 273 N. Y. Supp. 170; Tighe v. Skillings, 297 Mass. 504, 9 N. E. 2d 532; Lasher v. McAdam, 211 N. Y. Supp. 395 and 215 N. Y. Supp. 876; Jones v. Young, 14 N. Y. Supp. 2d 84; Fightmaster v. Tauber, 43 Ohio App. 266, 183 N. E. 116; King v. Stuart Motor Co. (1943, DC Ga.), 52 F. Supp. 727; Spitz v. BeMac Transport Co. (1948), 334 Ill. App. 508, 79 N. E. 2d 859; Overstreet v. Thomas (1951), Ky., 239 S. W. 2d 939; Silva v. Brown (1946), 319 Mass. 466, 66 N. E. 2d 349; Thirty Pines, Inc. v. Bersaw (1942), 92 N. H. 69, 24 A. 2d 500; Canin v. Kesse (1942), 20 N. J. Misc. 371, 28 A. 2d 68; Jones v. Valisi (1941), 111 Vt. 481, 18 A. 2d 179; Laffoon v. Waterman S. S. Corp. (DC NY), 111 F. Supp. 923; Miller v. Simons, 239 Minn. 523, 59 N. W. 2d 837; Kelley v. Curtiss, 16 N. J. 265, 108 A. 2d 431; Templeton v. Scudder, 16 N. J. Super. 576, 85 A. 2d 292; Stone v. Carolina Coach Co., 238 N. C. 662, 78 S. E. 2d 605; and Mooney v. Central Motor Lines, Inc. (CA6th Ohio), 222 F. 2d 572.

At all events, we believe the rule of the Massachusetts and Minnesota cases is sound: and we hold that the plaintiff, after a prior unsuccessful damage action against the master or servant for alleged negligence of the servant, is barred from maintaining a subsequent action involving the same mishap when it was and is conceded in both actions that the servant was all the time acting within the scope of his employment and the only questions in the two actions are negligence and contributory negligence.

Assignment No. 2. The appellant says: “Estoppel by judgment does not apply because of lack of mutuality of estoppel.” And to support this statement appellant cites: Hogan v. Bright, 214 Ark. 691, 218 S. W. 2d 80; Treadwell v. Pitts, 64 Ark. 447, 43 S. W. 142; Avera v. Rice, 64 Ark. 330, 42 S. W. 409; and Berryman v. Cudahy Packing Co., 191 Ark. 533, 87 S. W. 2d 21. We admit that the general rule is that mutuality of estoppel is required. In the recent case of Hogan v. Bright, 214 Ark. 691, 218 S. W. 2d 80, we cited the earlier case of Treadwell v. Pitts, 64 Ark. 447, 43 S. W. 142, to sustain the statement: “Estoppels by judgment must be mutual.” But, even so, the authorities generally recognize that in a situation as the one here, in which the plaintiff has already had a full and complete trial of the cause of action against one party and the action against the second party is derivative from the first, then there is an exception to the general rnle requiring mutuality in estoppel.

In the Massachusetts case of Giedrewicz v. Donovan, 277 Mass. 563, 179 N. E. 246, previously discussed, this matter of the exception to mutuality of estoppel was discussed, and the Massachusetts Court said:

“As a matter of public policy and in the interest of accomplishing justice, the better rule would seem to be that, if it is clearly established, in the trial of an action either against the employee or against the principal for damages caused by the employee’s negligent conduct, that the employee is not negligent, the judgment in the ease first tried is a bar to a subsequent action by the same plaintiff for the same negligent act of the same employee. In principle it would seem to be immaterial whether the first judgment was obtained in an action against the employer provided the only ground for holding the employer is the negligence of the employee and it clearly appears that in the first trial the employee was found to be free from culpability.”

In 50 Corpus Juris Secundum 294, in discussing mutuality of estoppel in matters of judgment, the text, after stating the general rule that estoppels must be mutual, then says:

“A well recognized exception to the rule of mutuality exists where the liability of defendant is altogether dependent on the culpability of one exonerated in a prior suit on the same facts, when sued by the same plaintiff. In such cases the unilateral character of the estoppel is justified by the injustice which would result in allowing a recovery against a defendant for conduct of another, when that other has been exonerated in a direct action. It has also been held that the requirement of mutuality must yield to public policy, and that a plaintiff who deliberately selects his forum is bound by an adverse judgment therein in a second suit involving the same issues, even though defendant in the second suit was not a party, nor in privity with a party, in the first suit.”

We conclude that, in a situation like the one here, there is an exception as to the requirement of mutuality of estoppel. We, therefore, conclude that the trial court was correct in sustaining the motion to dismiss.

Affirmed.

       In oral argument appellant’s attorney, with becoming candor, conceded that trial in a Federal Court in the same State was equivalent to a trial in the State Court since the holding of the United States Supreme Court in Erie v. Tompkins, 304 U. S. 64, 82 L. Ed. 1188, 58 S. Ct. 817, 114 A. L. R. 1487, and the subsequent cases to the same effect.

       Such limited statement of the rule shows that a holding in favor of the plaintiff in the first action — whether against the master or the servant — is not res judicata on the questions of negligence and contributory negligence in a subsequent action, nor does the rule apply as long as the judgment obtained in the first action remains unsatisfied. It is only when the plaintiff has tried and lost that the rule applies; and then only where the only questions are negligence and/or contributory negligence.

       Apparently the case holding contrary to the quoted statements from American Law Reports is the Kentucky case of Myers v. Brown, 250 Ky. 64, 61 S. W. 2d 1052, decided in 1933. But the value of the holding in Myers v. Brown is considerably weakened by the later Kentucky cases of Blue Valley Creamery Co. v. Cronimus (1937), 270 Ky. 496, 110 S. W. 2d 286, decided in 1937; and the case of Overstreet v. Thomas, _ Ky _, 239 S. W. 2d 939, decided in 1951.

       We call attention to the fact that the cause of action here involved arose prior to our Comparative Negligence Statute, which is Act 191 of 1955. Therefore, neither side in the present litigation has mentioned that Act. Whether that Act might have any bearing in a case such as the one here is something that we have not considered; but we mention the point in an abundance of precaution because of some language contained in the case of Mo. Pac. v. Nelson, 195 Ark. 883, 115 S. W. 2d 872.

       The Massachusetts Court quoted from the opinion of Judge Van Devanter in Portland Gold Mining Co. v. Stratton’s Independence (CCA8th), 158 F. 63, 16 L. R. A., N. S. 677: “Thus it is settled by repeated decisions that the general rule that one may not have the benefit of a judgment as an estoppel unless he would have been hound by it had it been the other way is subject to recognized exceptions, one of which is that in actions of tort, such as trespass, if the defendant’s responsibility is necessarily dependent upon the culpability of another, who was the immediate actor, and who, in an action against him by the same plaintiff for the same act, has been adjudged not culpable, the defendant may have the benefit of that judgment as an estoppel, even though he would not have been bound by it had it been the other way.”

       See also 34 Corpus Juris 988, where similar language shows that the exception is of long standing.


author: Minor W. Millwee, Associate Justice.

text:
    Ladwig v. The Arlington Hotel Company.
    5-853
    286 S. W. 2d 853
    Opinion delivered February 13, 1956.

      Tom Gentry and Boy Finch, Jr., for appellant.

      House, Moses & Holmes; Wootton, Land & Matthews and Richard W. Hobbs, for appellee.
   Minor W. Millwee, Associate Justice.

Appellees are the owners of certain hotels and bathhouses located outside the boundaries of Hot Springs National Park but within the city of Hot Springs, Arkansas, and are engaged in the business of giving baths in the therapeutic waters of the government-owned hot springs. Appellants are the officers and members of the “Arkansas Board of Massage, ’ ’ created pursuant to Act 180 of 1951, which is known as the “Massage Registration Act.”

Appellants brought this suit alleging appellees were employing many persons as masseurs and masseuses who were unqualified to engage in the practice of massaging because of their failure to obtain a certificate of registration in compliance with Act 180, and that such employment was in violation of Section 3 of said act. None of said employees were made defendants to the suit, it being alleged that individual criminal action against them would be so numerous that adequate relief could not be obtained against the irreparable injury which it was further alleged the public would suffer by failure of appellees to comply with the act. Appellants asked that appellees be enjoined from further violation of Sec. 3 (b) of said act.

Appellees demurred to the complaint on the following grounds: 1. The complaint does not state facts sufficient to constitute a cause of action. 2. Plaintiffs have no legal capacity to sue. 3. There is a defect of parties plaintiff. 4. There is a defect of parties defendant. The chancellor sustained the demurrer on the ground that the complaint did not state facts sufficient to constitute a cause of action against appellees and overruled it as to other grounds urged. Upon appellants ’ failure to plead further, the complaint was dismissed. The appellant board members have appealed and part of the appellees have cross-appealed from the action of the court in refusing to sustain the demurrer on the additional grounds of,appellants’ incapacity to sue and a defect of parties defendant.

The question on direct appeal is whether the complaint stated a cause of action against appellees for violation of Section 3 (b) of Act 180 of 1951 [Ark. Stats., Sec. 72-1203 (b)] which reads:

“It shall be unlawful for any person or persons to operate or conduct any Massage Establishment which does not conform to the sanitary regulations herein contained, or which may be adopted by the Board created herein, or to employ any person or persons as an operator or instructor who does not hold a certificate of registration, or to open and conduct a Massage Establishment or School in a place of residence in the State of Arkansas.” (Italics supplied.)

It should be noted that the complaint does not charge that appellees failed to conform to sanitary regulations contained in the act, nor that they conducted a massage establishment or school in a “residence.” So the real issue is whether the only other prohibition in Sec. 3 (b) makes it unlawful for appellees to employ any person as a masseur or masseuse who does not hold a certificate of registration, as appellants contend, or whether it merely makes it unlawful for them to employ any person as an “operator” of a massage establishment or an “instructor” in a massage school if such person does not hold a certificate of registration, as appellees insist. We think the chancellor correctly adopted the latter view.

To adopt appellants’ contention, we must construe the word “operator” as having been used by the Legislature as synonymous with the words “masseur or masseuse. ’ ’ While it has various meanings, the Legislature obviously used the word “operator” in the subsection in the same sense that the word “operate” is used therein; and that is that an operator is “one who operates” a massage establishment, just as an “instructor” is one who instructs at a massage school. This is the first and general definition given the word in Webster’s New International Dictionary. This view is fortified by consideration of other sections of the act which define the terms, “masseur and masseuse,” “massage establishment,” “massage school” and “massage,” but do not define “operator” or “instructor.” Section 11 of the act makes it unlawful for any person “to own, manage or operate any massage school or establishment, ’ ’ unless certain sanitary requirements are met.

Even if there were some ambiguity in the meaning to be placed on the wording of Section 3 (b), we would reach the same conclusion. The act is in derogation of the common law and is highly penal with a maximum penalty of a jail sentence of six months and a fine of $500 upon conviction for violation of its provisions. Under our well settled rule it must be strictly construed in favor of those upon whom the burden is sought to be imposed, and nothing will be taken as intended that is not clearly expressed. State v. International Harvester Company, 79 Ark. 517, 96 S. W. 119. As this court said in Holford v. State, 173 Ark. 989, 294 S. W. 33: “There is no better settled rule in criminal jurisprudence than that criminal statutes must be strictly construed and pursued. The courts cannot, and should not, by construction or intendment, create offenses under statutes which are not in express terms created by the Legislature.” See also, Giles v. State, 190 Ark. 218, 78 S. W. 2d 70.

Since we have concluded that the trial court correctly dismissed the complaint against appellees on the ground that it did not state facts sufficient to constitute a cause of action against them, we find it unnecessary to determine the moot question as to whether the court erred in refusing to sustain the demurrer on other grounds as contended by some of the appellees on cross-appeal.

Affirmed.

Justice Ward dissents.

       In Ladwig v. Nance, 223 Ark. 559, 267 S. W. 2d 314, we held that Act 180 had no application to bathhouses located within the Hot Springs National Park.


author: Geoege Rose Smith, J.

text:
    Gipson v. Maner, Judge. Gipson v. Young, County Treasurer.
    5-757 and 5-758 Consolidated
    5-827
    287 S. W. 2d 467
    Opinion delivered February 13, 1956.
    [Rehearing* denied March 19, 1956.]

      Kenneth G. G of felt, for appellant.

      II. B. Means, for appellee.

      Kenneth C. Goff ell, for appellant.

      II. B. Means and J. M. Smalhvood, for appellee.

      Amici Curiae: Harry P. Daily; L. Weems Trussed; Arnold M. Adams; Emery D. Curlee; Fred M. Pickens; W. D. Murphy, Jr.; Tompkins, McKenzie & McRae; Shaver & Shaver; Ned Stewart; and Jay W. Dickey.
   Geoege Rose Smith, J.

The question in these cases is whether Acts 109 and 142 of 1955 are contrary to § 4 of Amendment 37 to the state constitution, which places a limitation upon the salary and expenses of circuit judges and chancellors.

It was provided by Amendment 15, approved in 1928, tliat tlie annual salary of these judges should be $3,600 each. Amendment 15 was superseded in 1946 by Amendment 37. Section 4 of the amendment now in force reads: ‘ ‘ The General Assembly of Arkansas shall by law determine the amount and method of payment of salaries and expenses of Circuit Judges and Chancellors of the various Circuit and Chancery districts; provided that the salary and expenses of any Circuit Judge or Chancellor shall not be less than $4,800.00, nor more than $7,200.00 per year.” At its first session after the adoption of the present amendment the legislature fixed the annual salary of these officers at the maximum figure of $7,200.00, and that amount is now being paid to each of them. Ark. Stats., 1947, § 22-348.

These cases involve the seventh judicial circuit, of which the appellee, Ernest Maner, is judge. By Act 109 of 1955 the legislature found that “the judge of the Seventh Judicial Circuit must provide the costs of travel and other costs incident to the holding of court in such district, and that such costs reduce the income of such judge to approximately $3,600 annually — a sum much less than that received by other public officials who fill less responsible positions.” The Act then directs the judge to relieve the burden of current business by holding pre-trial conferences and adjourned days of court. It is next ascertained and declared that the expenses occasioned by duties imposed since the adoption of Amendment 37 amount to $200 a month, which sum is declared to be a necessary expense of the counties within the circuit. The Act directs the counties to pay to the circuit judge the sum of $200 monthly, of which $85 is to be paid by Hot Spring County, a like amount by Saline County, and $30 by Grant County.

The other statute in question, Act 142 of 1955, is of more general application. It amends Ark. Stats., § 22-349, by authorizing any circuit judge or chancellor to determine mileage and other expense occasioned by duties imposed since the adoption of Amendment 37 and to direct that such expense he paid by the counties comprising the circuit or district.

On February 26, 1955, under the authority of Act 109, Judge Maner entered a circuit court order directing Saline County to pay $85 monthly to the circuit judge for necessary expenses. Two days later the appellant, as a citizen and taxpayer, filed his notice of appeal from that order; that appeal has been docketed here as Case No. 5-757. Later on Judge Maner set aside the brief order of February 26 and entered a more detailed order by which it was found that expenses attributable to duties imposed after the adoption of Amendment 37 amounted to $200 a month, which was apportioned among the three counties in the ratio specified by Act 109. Gipson’s appeal from that order is Case No. 5-758.

In addition to appealing from the above orders, neither of which seems to have been preceded by the taking of testimony, Gipson filed a separate suit in the chancery court to enjoin the county treasurer from making the payments in question and from providing a telephone for the circuit judge’s chambers. Trial of that case resulted in a decree denying all relief, it having been stipulated that the county should not pay for personal long-distance calls made by Judge Maner or anyone else. Gipson’s appeal from that decree is Case No. 5-827.

The appellee in the first two cases has filed a motion to dismiss the appeals, upon the ground that there was no litigation in the trial court from which an appeal could be taken. This position is not well taken, for if the orders direct an unconstitutional expenditure of public funds they can be set aside either upon appeal or by certiorari. We need not determine which method of review is technically correct, for the real questions at issue are equally well presented by the third case and must in any event be decided. The motion to dismiss is therefore denied.

The appellant’s objection to the county’s furnishing a telephone for the judge’s chambers can be answered quickly. This outlay does not constitute a personal expense for which, the judge is being reimbursed; it is a payment made to the telephone company for a service reasonably necessary to the transaction of the court’s official business. No one doubts the county’s authority to provide a courtroom and judge’s chambers, nor its duty to supply furniture, heat, light, stationery, and other ordinary requirements for the operation of a public office. Not long ago we approved the installation of air-conditioning as a proper county expenditure. McArthur v. Campbell, 225 Ark. 175, 280 S. W. 2d 221. There is no sound basis for drawing a distinction between telephone service and the many other facilities that are regarded as necessary to the conduct of a modern business office.

With respect to the principal question a number of able briefs have been filed in support of the validity of this legislation. We need not enumerate all the arguments that are advanced. The main contention is that the legislature is free to provide reimbursement for expenses incident to duties imposed since the adoption of Amendment 37. Most of the proof in the chancery case is directed to this issue. It is shown without dispute that the amount of travel necessary to the performance of a circuit judge’s duties has been greatly increased by the enactment of laws pertaining to pre-trial conferences, adjourned days of court, etc. There is no reason to doubt the accuracy of the legislature’s conclusion that as much as half of the salary authorized for circuit judges and chancellors may be consumed by hotel and travel expense. We know without proof that a trial judge’s conscientious discharge of the heavy responsibilities placed upon him by law involves financial hardships of which the general public is wholly unaware.

The question, however, is one not of expediency but of constitutional law. We find it impossible to hold that Acts 109 and 142 are not in direct conflict with the plain language of the constitution. It makes little difference by which principle of constitutional interpretation the issue is tested; in each instance the result is the same.

It is a fundamental rule that the words of the constitution should ordinarily he given their obvious and natural meaning. State ex rel. Norwood v. New York Life Ins. Co., 119 Ark. 314, 171 S. W. 871, 173 S. W. 1099. Amendment 37 bluntly declares that “the salary and expenses of any Circuit Judge or Chancellor shall not be less than $4,800.00, nor more than $7,200.00 per year.” This language is simple, direct, and unequivocal. It contains no hint that the limitation applies only to the expense of duties currently imposed. A statement as positive and explicit as this one is leaves no area of doubt that might call into play the exercise of judicial interpretation. If Amendment 37 does not have the effect of fixing a $7,200 maximum for salary and expenses, then, as far as we can see, the words have no meaning at all.

The basic spirit of the constitution is to be considered along with its literal meaning and may even prevail where a conflict exists. Bailey, Lieutenant Governor, v. Abington, 201 Ark. 1072, 148 S. W. 2d 176, 149 S. W. 2d 573. In this case there is no discernible conflict between the letter and the spirit. The broad purpose of § 4 of Amendment 37 was undoubtedly to set a definite limit, expressed in dollars and cents, upon the salary and expenses that can lawfully be paid to circuit judges and chancellors. It is perfectly clear that this purpose would be defeated if the present acts were upheld. The travel expense attributable to duties imposed since 1946 cannot be measured in dollars and cents or even be estimated with any degree of accuracy. If it should be held that Judge Maner’s present additional duties entitle him to an allowance of $200 there would obviously be no limit to the further increases that with equal plausibility would have to be sustained in the future. The limitation that was intended by the people would be as effectively destroyed as if the amendment had not been adopted. ■

Especially applicable to this case is the rule that in determining the intention of the framers of a constitutional amendment the court must keep in mind the situation that the amendment was meant to remedy. Matheny v. Independence County, 169 Ark. 925, 277 S. W. 22. By this test there can. remain no donbt that one of the purposes of Amendment 37 was the elimination of expense allowances snch as that now in dispute.

The original constitution, Art. 7, § 18, invested the legislature with almost unlimited authority to fix the compensation of circuit judges, the only restriction being that a judge’s pay could not be diminished during his term of office. While that provision was in force many acts were passed to require the various counties to contribute to the expenses of circuit judges and chancellors. Amendment 15 referred only to the annual salaries of judges, not to their expenses, and the legislature continued to authorize the payment of expenses that were undoubtedly incurred. Some twenty-five of these special acts are cited in the index to the 1947 Annotated Statutes, Yol. 8, pp. 1302-04. It was with this background of experience that the constitution was amended to refer expressly to both salary and expenses. We are compelled to believe that the deliberate change in wording was intended to terminate a practice that would be revived if the present statutes were sustained.

We have studied carefully the many cases cited in the briefs, but none is applicable to this situation. More nearly in point than any other is the holding in Ashton v. Ferguson, 164 Ark. 254, 261 S. W. 624. There the legislature attempted to authorize an allowance of $100 to each of its members, despite a constitutional amendment strictly limiting the legislators’ salary and mileage expense. The court unanimously held that the allowance was contrary to the constitution and void. A different rule cannot be applied to the judiciary.

Beversed.


author: Paul Ward, Associate Justice.

text:
    Wabbaseka School District No. 7 v. Johnson.
    5-847
    286 S. W. 2d 841
    Opinion delivered February 13, 1956.

      Coleman, Gantt & Ramsay, for appellant.

      Wiley A. Branton, for appellee.
   Paul Ward, Associate Justice.

Appellee, Rubye Johnson, sued the Wabbaseka School District No. 7, Jefferson County, for damages because of the District’s refusal to allow her to teach a term of school in accordance with an alleged contract. The Circuit Judge, sitting as a jury, found in favor of appellee, and in doing so he made several specific findings of fact. Since these findings need be supported only by substantial testimony we shall not deem it necessary to set out the voluminous testimony at any great length.

Appellee taught during the 1951-1952 term of school under a written contract, holding a Fourth grade emergency license which expired on or about the first of September, 1952. When the term of school ended the latter part of May, 1952, neither party notified the other that the contract would not be continued through the next succeeding school term as is provided for in Ark. Stats., § 80-1304(b). Appellee’s contract, which was on a regular printed form, contained a renewal' provision with practically the same wording as contained in the statute hereafter quoted.

Within ten days or two weeks after school had closed appellee enrolled at the A. M. & N. College in Pine Bluff and attended said school until August 8th or 9th, 1952, and on September 11, 1952, she was issued a five-year Junior High teacher’s license which she recorded in the County Supervisor’s office on September 22, 1952.

In answer to appellee’s complaint, appellant, in substance stated: (a) At the close of the 1951-1952 term it was understood by appellee that her selection as a teacher for the ensuing term was conditioned on a sufficient enrollment to justify retaining her as a teacher, and that it was ascertained that there was no such enrollment and that she was so notified; (b) Appellee’s contract could be and was cancelled by 30 days notice; (c) Appellee did not keep herself available to teach, and, if available, she could have secured other employment at equal compensation, and; (d) Appellee earned as much as she would have had she been allowed to teach.

Some of the above contentions may have been abandoned by appellant. At least its arguments for a reversal are based on somewhat different points which we shall examine in order, viz: 1. Appellee had no contract of employment; 2. Appellee was ineligible for employment, and; 3. Appellee was not available for employment.

1. Under the undisputed facts in this case together with the facts found by the trial judge to exist, it is our conclusion that appellee did have a contract with the school district to. teach during the 1952-1953 school term. The pertinent part of Ark. Stats., § 80-1304 (b) reads as follows:

“Every contract of employment hereafter made between a teacher and a board of school directors shall be renewed in writing on the same terms and for the same salary, unless increased or decreased under the provisions of the law, for the school year next succeeding the date of termination fixed therein; unless within ten (10) days after the date of the termination of said school term, the teacher shall be notified by the school board in writing ... or unless the teacher within ten (10) days after the close of school shall deliver or mail by registered mail to such school board his or her written resignation as such teacher, . . .”

It is not contended that appellant gave appellee notice of the kind or within the time mentioned in the above statute, nor is it contended that appellee notified appellant that she would not accept such employment. There was introduced some testimony on behalf of appellant that a member of the board attempted to give appellee notice that she would not be re-employed. It is not contended that notice was given to appellee but to her mother. Moreover the time of giving this notice does not appear to be definite and on the “whole the trial judge was justified in finding that the statutory notice had not been given. Introduced into the evidence was a letter dated May 19, 1952 [a few days before school closed] signed by the school superintendent and delivered to appellee. Portions of this letter read as follows: “The school board has asked me to inform yon that you have been re-employed . . . for the next school term (1952-1953). If you plan to leave us for work elsewhere I wish you would let me know as soon as possible; . . . ” It is not contended that appellee answered this letter. The first notice appellee actually had that she would not be allowed to teach was a telephone call she received on September the 8th or 9th before the school term -was to begin on the 15th of the same month. When these circumstances are considered in connection with the language of the above quoted statute we are forced to the conclusion that the school district cannot now be allowed to take the position that appellee had no contract to teach during the 1952-1953 term. It seems to us that the above statutory provision was intended to be a protection to teachers in the matter of employment in circumstances similar to these. As said in the case of Sirmon v. Roberts, 209 Ark. 586, 191 S. W. 2d 824, this statute tends to eliminate uncertainties and possible controversy.

There is no conflict, as contended by appellant, between the conclusion we have reached and the holding in Johnson v. Wert, 225 Ark. 91, 279 S. W. 2d 274. The cited case deals with the employment of a superintendent and that portion of Ark. Stats., § 80-1304 (b) relating to superintendents does not contain the protective language used in that portion of the statute referring to teachers.

2. Appellant ably argues that, regardless of whether or not appellee had a contract, she was ineligible to teach or contract to teach during the 1952-1953 term. This argument is based on the conceded fact that appellee had no teacher’s license from September 1, 1952, when her old license expired, until September 11, 1952, when she received a new license, and also because appellee’s new license was not filed with the county supervisor before the new term began. It will be noted that appellee secured her new license a few days before the new school term began on September 15th.

It would be a harsh rule and one to which we would not willingly subscribe to hold that appellee was ineligible to teach during the term of school beginning on September 15, 1952, merely because there was a period of ten days [from September 1st to September 11th] during which she had no valid teacher’s license. We can find nothing in the law that justifies any such interpretation and nothing that -would impose such a hardship on the teaching profession. The law does require a teacher’s license be filed with the county supervisor, and it is true that appellee’s license in this instance was not so filed until September 22, 1952, but it must be kept in mind that on September 8th or 9th appellant had notified appellee that she would not be allowed to teach. This fact may have caused appellee to delay filing her license with the county supervisor. Ark. Stats., § 80-1304, provides that warrants [issued for teaching] are void unless the teacher has a license but it clearly appears that had appellee been allowed to teach she would have had a license duly filed when the first warrant would have been issued to her.

In support of their contention on this point appellant cites Vick Consolidated School District No. 21 v. New, 208 Ark. 874, 187 S. W. 2d 948, but we do not think the cited case is in point here. The holding in that case was that a teacher could not retain the salary which he had received for teaching during the time when he held no teacher’s license.

3. The testimony does not justify appellant’s contention that appellee was not available to teach during the 1952-1953 term or that she did not attempt to secure other employment. The trial court specifically found contrary to appellant’s contention in this matter. The testimony shows that after appellee was notified on September 8th or 9th that she would not be allowed to teach, she got married on or about September 18, 1952. The trial judge was justified in finding that she did not decide to get married until after the September 8th or 9th notice. Appellee testified that she attempted to secure another teaching position in this state but that when she was unsuccessful she went with her husband to Chicago on October 10th. She stated she tried to get employment as a teacher in Chicago but was unable to do so because she did not have a college degree, and that she tried to get other employment but was successful only to a very limited degree. There is no testimony directly contradicting the above and we must conclude that there was substantial testimony to sustain the finding of the trial judge in this regard.

Affirmed.


author: Sam RobiNSON, Associate Justice.

text:
    Whitwell v. Henry.
    5-848
    286 S. W. 2d 852
    Opinion delivered February 13, 1956.

      Martin, Dodds $ Kidd, for appellant.

      James W. Gallman and Ben J. Harrison, for appellee.
   Sam RobiNSON, Associate Justice.

This case grows out of a controversy between stockholders of a small corporation engaged in the cleaning business. There are three points in issue: First, appellants, Earl D. Whit-well and his wife, Mary D., say they were induced by means of a fraudulent financial statement to purchase corporate stock from appellees, Carl J. Henry, Sr., and his wife, Virginia, and as a result thereof, they have been damaged and ask for a judgment against the Henrys for such alleged damages. Next, appellants contend that an increase in the capital stock of the corporation was contrary to law and void; lastly, it is maintained by appellants that the corporation had no authority to issue stock for debts owed by the corporation.

We cannot say the Chancellor’s failure to find that the Henrys furnished a fraudulent financial statement to the Whitwells is contrary to a preponderance of the evidence. In an effort to prove the financial statement fraudulent, the Whitwells introduced the testimony of two accountants, but we fail to see how the testimony proves fraud. It is true that there is a discrepancy in various financial statements made over a period of about a year, but, from the accountants’ testimony, it appears that the discrepancy is due to bookkeeping methods and not to fraud.

Appellants’ contention that the increase of capital stock is void is based on the assumption that the Board of Directors did not call the meeting of the stockholders at which the increase in stock was voted. Sixty days notice of the meeting for the purpose of increasing the capital stock was given to the stockholders. This notice was sent out by the Secretary and there is no showing that the Board of Directors did not authorize the calling of the stockholders’ meeting. All of the stockholders were present at the meeting at which the increase of capital stock was authorized.

The capital stock was increased from 300 shares of No Par Value to 5,000 shares of $1.00 Par Value. The corporation owed Henry about $3,000.00,- 2,250 shares having a par value of $1.00 per share were issued to Henry as part payment of the debt owed to him by the corporation. Appellants say the corporation could not legally issue stock in payment of a corporate debt. At the time the stock was issued to Henry the Whitwells owned 149 shares. They were given the opportunity to exercise their preemptive right of purchasing additional stock out of the new issue on a pro-rata basis with the stock they already owned; but they did not desire to exercise their preemptive right.

The question before us is not whether a corporation may pay a debt with a new issue of stock without giving those owning stock at the time an opportunity to purchase the new stock on a pro-rata basis with the stock then owned, it being undisputed that here appellants were given such opportunity. Article 12, § 8 of the Constitution of Arkansas provides: “No private corporation shall issue stocks or bonds, except for money or property actually received or labor done, . . .” Here, there is no showing that the corporation did not receive from the appellees money, property or labor for which the stock was issued.

Affirmed.


author: Lee Seamster, Chief Justice.

text:
    Sellers v. Brown.
    5-849
    287 S. W. 2d 471
    Opinion delivered February 20, 1956.
    [Rehearing denied March 19, 1956.]

      Langston & Walker, for appellant.

      8. L. White, for appellee.
   Lee Seamster, Chief Justice.

This is an appeal by the appellants and a cross-appeal by the appellees from a decree of the Pulaski Chancery Court, First Division. The appellants, Robert C. and Virginia Sellers, are a minister and his wife who formerly ministered to appellee church. The appellees are the official board members of the Central Assembly of God, a church and religious society located at 20th and Broadway Streets in the City of Little Rock, Arkansas.

The appellees instituted this action against appellants seeking to have a resulting trust established on the grounds that Sellers, as a regularly ordained minister of the Assemblies of God and acting in his official capacity as pastor for his congregation, had acquired title to certain property in his own name instead of procuring title to the property in the name of the church; that a portion of the payment for said property was made possible by using contributions made by members of the church; that thereafter Sellers sold the property for a profit and bought other property with the proceeds so that a church might he erected upon the latter property; that Sellers acquired title to the property in his own name whereby, appellees claim ownership and title through a resulting trust. The appellants filed an answer claiming that they owned the property outright and the church did not have any interest in the property at any time. The appellants further contended that appellees were indebted to them for certain sums expended for the benefit of the appellees and not repaid. Many suits for liens and materials, both secured and unsecured, were consolidated for trial.

Upon trial of the issues, the trial court found, among other things, that the property both real and personal located at 20th and Broadway Streets in Little Bock, Arkansas, belonged to appellee church and not to appellants. The church’s interest in the real property was held to be subject to a mortgage. The court vested title to all personal property and furnishings in the church. The title to the real estate was subject to certain materialman’s liens and mortgage, aggregating more than $21,000. The decree provided that if the mortgage and liens were not paid within 45 days, the receiver was ordered to sell the property. Thereafter, the receiver held the sale and the appellees purchased the property on a submitted bid of $60,000. In addition, the trial court awarded appellees judgment against appellants in the sum of $48.06. This appeal and cross-appeal follow.

For reversal, the appellants rely on the following points: (1) A trust did not arise under the law and under the undisputed proof in this cause; (2) appellees are estopped to assert a trust; (3) even under the trial court’s theory of the case, the trial court should have left the title to the property at 20th and Broadway in Sellers and entered judgment against appellees in the sum of $8,648.16; (4) the trial court adopted the wrong-theory of the case, that of a resulting trust. If the appellees had any interest at all, it should have been under an equitable or “investment lien” theory as appellees termed it, not that of a resulting trust; and (5) appellees had no legal authority or capacity to maintain this suit.

The evidence reveals that in the early part of 1944, the appellants purchased a parcel of ground at 9th and Louisiana Streets, described as Lots 10, 11 and 12, in Block 89, Little Bock, Arkansas, as a suitable location for a church. The appellants agreed to pay $12,000 for said property, $2,500 in cash, the balance in monthly installments of $100 each. Title to the property was procured in the name of appellant Sellers and his wife. Sellers at that time was employed as the pastor of the First Assembly of God, a church located at 14th and Peyton Streets in Little Bock. Shortly thereafter, the appellant Sellers organized a Central Assembly of God Church; said church occupied the property at 9th and Louisiana Streets and Sellers was its pastor. At first, meetings of the church were held in an apartment house located on said property. Later a cellar was excavated on one of the lots, and a one-story terracotta building was erected over same in which meetings of the church were held for nine years.

On February 5, 1953, the appellants sold the property located at 9th and Louisiana Streets to Arkansas Power and Light Company for a sum of $105,000. Since the church was located upon the property, the appellant, Sellers, had several members of the board sign a disclaimer to the effect that title to the property was in Sellers and the church had no interest therein. This disclaimer was signed by the board upon the condition that Sellers would utilize the net proceeds from the sale of the property at 9th and Louisiana Streets to purchase a new site at 20th and Broadway Streets and build a new church thereon. The church congregation approved this action.

Shortly thereafter, Sellers purchased this site at 20th and Broadway for a total sum of $40,000, of which $23,000 was paid in cash and a mortgage assumed for the balance, and began construction on the new church. Sellers made a contract with one Graham Harp to furnish the material and supervise the building of a church structure. This contract was approved by a meeting of the congregation. Harp proceeded with the construction of the church until the funds became exhausted. At the time of the trial, there were outstanding liens, including the mortgage, in excess of $21,000. Unsecured debts amounted to more than $35,000. Sellers has resigned as pastor of the church and the appellees, as the official board of the Central Assembly of God Church of Little Bock, brought this suit against Sellers and his wife to divest them from title to the property.

Section 6 of the Constitution and by-laws of the church provide the following:

“Section 6. Property. 1. The title to all local Church property shall be vested in the local Church body with the responsibility and benefits thereunto. 2. All property shall be directed and controlled through the Deacon Board or duly elected Board of Trustees and their successors in office, such property being held in trust by such Board and subject to the wishes of the Church body in all procedure affecting property interest. 3. All such property shall be deeded so as to make it safe for an Assembly of God Church organization in times of a crisis or division, and to prevent its being diverted by any portion of the Church body to other Church interests or organizations. In event of an affiliation with such interest, or should it for any reason fail to function as an Assembly of God Church, all property rights are to come under supervision and into the hands of the Executive Presbytery of the Arkansas District Council of the Assemblies of God with headquarters now at Hot Springs, Arkansas, until an Assembly of God Church can properly function or the property be disposed of by said Board and the proceeds be used to promote the Assembly of God Church interest elsewhere.”

The by-laws also provide:

“The General Council approves the holding of title to all church buildings, school or other institutions that are supported by funds solicited for the work of God through properly constituted corporations. It disapproves the holding title to such properties by the ministers of the Assemblies of God through private ownership, corporation of sole, closed corporation or any other type of ownership where initiative of action of final authority is not vested in a corporation or set in order by the District Council, title should be vested in properly qualified trustees.”

The evidence shows that the appellees are the duly elected and qualified trustees of the Central Assembly of God Church and were authorized under the rules of the church to maintain this suit. The Chancellor based his decree upon the finding that a resulting trust had been established by the evidence. We cannot say that the court’s decree was against the preponderance of the evidence.

On cross-appeal, the evidence shows that the appellee church had no interest in appellants’ property located on 5010 Midland Road in Little Rock, Arkansas. The ease is affirmed on cross-appeal.

Affirmed on appeal and on cross-appeal.


author: J. Seaborn Holt, Associate Justice.

text:
    Wells v. Derrick.
    5-850
    287 S. W. 2d 4
    Opinion delivered February 20, 1956.

      Dinning é> Dinning, for appellant.

      A. M. Goats, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellees, T. W. Derrick and Tunney Stinnett, leased from appellant, Arthur L. Wells, and operated for the years 1952 and 1953, two farms in Phillips County. Wells furnished appellees money with which to purchase equipment to operate these farms and with which to pay the costs of cultivating and harvesting the cotton crops grown thereon during these two years. According to Wells, and it appears to be conceded, there was a carry over indebtedness to him from appellees for the 1952 operations, and in February 1953 appellees executed their note, in the amount of $40,000 due December 15, 1953, to appellant which covered the above carry over from the 1952 crops and afforded a backlog of credit for funds to be furnished by Wells to appellees in producing the 1953 crop. To secure this note appellees executed a chattel mortgage covering not only all crops produced but also a large amount of valuable farm machinery such as tractors, cultivators, mowing and dusting machines, disks, plows and many large trucks and trailers. The facts disclose that during 1953, and before the above note became due, Wells, without the consent of appellees, went upon these farms, gathered up and took possession of the pledged chattels described in the mortgage and in effect converted them to his own use. This was done without complying with the terms of the mortgage, which required that the chattels be sold at public sale after notice upon default in payment of the secured debt. There was also no appraisement made of the property.

The present suit was filed by appellant to recover judgment for an alleged balance due him following the harvesting of the 1953 crops and after the proceeds from these crops had been applied on the above note. Appellant further prayed that the chattel mortgage lien above, which was given to secure the note, be foreclosed. On a trial the court found that the unpaid balance of the indebtedness of appellees to appellant as of March 22,1954, was $29,294.09 but that Wells by his actions, in taking the chattels in disregard of the terms of the chattel mortgage and converting them to his own use, thereby elected to and did extinguish the balance due on the debt of appellees. The decree in part recited: “7. That the said Arthur L. Wells in going upon the premises of the defendant on the 14th of December, 1953, and taking possession of the chattels aforesaid, and converting the same to his own use and benefit and using the same in and about his business in the manner that he did and not having the same appraised in the manner provided by law, effected the extinguishment of any amount of the debt owing the plaintiff by the defendants after crediting the amounts received by the plaintiff from the sale of certain equipment and the crops, for the year 1953. That the plaintiff, Arthur L. Wells, having elected to take said property in extinguishment of the balance of the debt after crediting certain equipment and the sale of the crops for 1953 he is entitled to have title to said equipment vested in Him.

“It is therefore ordered, adjudged and decreed by the court that title to the chattels described herein be and the same is hereby vested in Arthur L. Wells in complete satisfaction of any debt which the defendants may owe the said Arthur L. Wells growing out of the 1953 farm operation as set out herein.”

This appeal followed. For reversal appellant says : “. . . appellant is prosecuting this appeal from that part of the decree which adjudges that the vesting of the title of the property described in the deed of trust be a complete satisfaction of any debt which the appellees may owe him. ’ ’ In other words, appellant contends that the trial court erred in holding that appellant, by his actions, was required to accept the equipment and chattels so recovered in full satisfaction of the indebtedness of appellees to him. We agree with appellant that the court erred in so holding. It appears to be undisputed, as the court found, that the balance of appellees ’ indebtedness as of March 22, 1954, was $29,294.09. While it appears that appellant wrongfully converted the property in question and should have sold the property publicly under the power of sale provided in the chattel mortgage, however, we have many times held that the proper procedure, in circumstances such as are here presented, is to ascertain and charge appellant with the fair market value of the property at the time of its conversion by him and apply it on the debt and after this is done if there be any balance due appellant, he should have judgment for such amount. On the other hand, if the fair market value of the property was more than sufficient to extinguish the debt, then in this event appellees should be awarded this amount. Interest should be charged against appellant on the fair market value of the property from and after the date of its conversion. We held in Perryman v. Abston, Wynne & Co., 164 Ark. 290, 261 S. W. 622: “[Headnote 3.] Mortgages — Conversion of Property by Mortgagee. — Where mortgagees took possession of mortgaged chattels, but failed to sell them under the power of sale in the mortgage, they are chargeable with their market value at the time of their conversion.” We said in Anderson v. Joseph, 95 Ark. 573, 130 S. W. 165: “Where the defendant is a mortgagee, who was entitled to the possession, with power to sell at the time of the seizure or conversion, and who has become a wrongdoer by reason of the manner of acquiring possession, or in the irregularity of the sale, he is liable to the mortgagor (in the absence of proof of special damages) only for the value of the property at the time of the conversion, less the amount of mortgage debt. McClure v. Hill, 36 Ark. 268.”

Accordingly, the decree is reversed for further proceedings consistent with this opinion.


text:
    Union County v. Richardson.
    5-810
    287 S. W. 2d 1
    Opinion delivered February 20, 1956.

      Bruce Bennett and William I. Prewitt, for appellant.

      Walter L. Brown and Robert C. Compton, for appellee.
   Ed. F. McFaddin, Associate Justice.

Tbis appeal results from the condemnation of lands for the widening of a highway. The County Court of Union County made its order appropriating each of two parcels; and the landowners — Richardson and Harrell — filed their respective claims, which were denied. Appeals were perfected to the Union Circuit Court where the cases were consolidated and tried to a Jury. A verdict was rendered in favor of Mr. and Mrs. Richardson for $3,086.00, and in favor of Mr. and Mrs. Harrell for $4,000.00. Union County has appealed, urging the two assignments now to be discussed:

Assignment No. 1

The appellant says: “That the verdicts of the Jury were excessive; that there is no substantial evidence in the record to support these verdicts; that the verdicts are the result of bias and prejudice and that witnesses for plaintiffs failed to show any fair and reasonable basis for their opinion.” In testing the sufficiency of the evidence to sustain the verdicts as against the attacks made by appellant in this assignment, we consider separately the evidence in each claim.

(a) The Richardson Claim. Mr. and Mrs. Richardson’s property had a frontage of 740 feet on the highway and the County took a 30-foot strip from the entire frontage of the Richardson land. Here is Mr. Richardson’s testimony, as contained in appellant’s abstract:

“The taking required the moving of my fence back, the replanting of everything that I had there and the fixing of my driveway as it had been before. Union County moved my fence; they put the stakes up but that is as far as they went. I lost all of my fencing wire and the replacement value of it would be $140.00. The labor to put the fence wire on the stakes would cost $10.00 or $12.00. Along the front of my place, I had climbing roses placed 10 feet apart; I also had five pink dogwood trees, some bulbs and other things which were lost. My rose bushes were six years old. I believe the value of those rose bushes would be $4.00 each. I had about 10 crape myrtle trees there and about 2,000 bulbs. The value of the bulbs to me would be about $700.00. What they would be worth to somebody else would be a lot different. I would estimate the value of the pink dogwood trees at $200.00 each. I believe that I had between 35 and 50 oak trees and I would value them between $40.00 and $50.00 each.

‘ ‘ Before my land was taken I had a driveway which was blacktopped with cement side curbings. They have replaced my driveway with two cement slabs two feet wide. I believe it would cost $300.00 to $375.00 to put my driveway back like it was. In my opinion, tbe tract of land taken by Union County would be worth at least $4,000.00. In my opinion the reasonable cash value of my property before it was taken was $37,500.00 and it was $32,500.00 afterwards.”

The Eiehardsons introduced corroborative testimony; and the County introduced evidence tending to show that Mr. Eichardson’s ideas of his damages were tremendously magnified and that, in fact, he was benefited far more than he was damaged. But the problem of weighing the testimony of both sides was a matter for the Jury, as was also the question of determining the credibility of the witnesses. (Bridgman v. Baxter County, 202 Ark. 15, 148 S. W. 2d 673.) The Jury elected to adhere to the testimony of Eichardson and his witnesses rather than to that of appellant’s witnesses. We have detailed sufficient of Mr. Eichardson’s testimony to demonstrate that there was substantial evidence upon which to base the verdict of $3,086.00 for the Eichardsons. In addition, the Jury actually viewed the premises. We find nothing to indicate that the Jury was biased or prejudiced; and we find that the witnesses showed the basis for their opinions. In short, appellant’s first assignment is without merit insofar as concerns the Eichardsons’ claim, because Eichardson and his witnesses made a case which measured up to the requirements contained in the cases relied on by appellant, to-wit: Ark. State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738; Malvern & Ouachita River RR. Co. v. Smith, 181 Ark. 626, 26 S. W. 2d 1107; City of Harrison v. Moss, 213 Ark. 721, 212 S. W. 2d 334; and Texas Illinois Co. v. Lawhon, 220 Ark. 932, 251 S. W. 2d 477.

(b) The Harrell Claim. Mr. and Mrs. Harrell’s property had a frontage of 340 feet and a depth of only 150 feet; a twenty-foot strip was taken from the entire frontage, leaving a depth of only 130 feet and placing the Harrell home 20 feet closer to the highway. Here is a portion of Mr. Harrell’s testimony, as contained in the appellant’s abstract:

“Prior to the new Highway, my property was practically on a level with the road. It was a desirable place to live, but now it isn’t. They took a number of the trees when they put the new road in. Prior to the taking we had a good gravel driveway on a level with the road. Now, my place sits on an embankment fully six feet high from the middle of the highway. My yard is now much smaller than it used to be; to have it as it was before would require the moving of the house and the excavation of some dirt. It would cost $2,000.00 to move all that dirt.

“I have lived on my property for nine years and it is my home. Before the new Highway was put in, I could have sold the property for $15,000.00 to $18,000.00. Now I do not believe I could get more than $7,000.00 or $8,000.00 for it.”

Other witnesses for Harrell stated: that to grade down the Harrell lot and move back the house would cost $4,265.13; that the value of the Harrell property before the taking was $18,000.00 and the value after the taking was only $8,000.00; and that the value of the Harrell property was reduced 50% by the taking. According to appellant’s witnesses, the Harrells were really benefited by the taking; but, as heretofore stated, the matter of damages was for the Jury to decide on the conflicting testimony. It is sufficient for us to say that there is substantial evidence to support the verdict of $4,000.00 for the Harrells; and we conclude that the appellant’s first assignment is also without merit regarding the Harrell claim.

Assignment No. 2

In this assignment the appellant says: ‘ ‘ The Court erred in stating that assessed value was not proof of the value and in refusing to permit cross-examination of appellees relative to assessments, which error was not cured by subsequently permitting testimony by the assessor thereon.” In the cross-examination of Mr. Richardson, this occurred:

“ Q. How much do you have that property assessed for ?

“Mr. Brown (interrupting): Your honor, we object to the question.

“The Court: The objection is sustained.

“A. What I think it is worth, and what I have it assessed for is two different things.

“The Court: The objection is sustained; that is not proof of the value. I have ruled on that.

“Mr. Hart: Note our exceptions to the ruling of the Court.”

The appellant, in arguing this assignment, says:

“Ark. Stats. 76-521 provides that all Courts and juries in condemnation cases for Highways shall take in consideration the fact that lands are required to be assessed at 50% of their true value. Appellant recognizes that the assessed valuation is not a controlling factor in arriving at the value of condemned property; however, it is a factor to he considered. Montgomery County v. Cearley, 192 Ark. 868, 95 S. W. 2d 554 (1936); Washington County v. Day, 196 Ark. 147, 116 S. W. 2d 1051 (1940).”

We do not find anywhere in the record that the appellant sought to cross-examine either of the Harrells on the assessed valuation of their property. So this assignment goes only to the Richardson claim. But even as to it, we hold that the record shows the appellant has no just cause to complain.

The ruling in which the Court refused to allow Mr. Richardson to be cross-examined on the assessed value of his property appears on page 65 of the transcript. The next day in the course of the trial (and on page 210 of the transcript) the appellant was permitted to call the tax assessor of Union County, and he testified that the Richardson property was assessed at $1,535.00 and the Harrell property was assessed at $300.00; and on cross-examination the assessor testified as follows:

“Q. Mr. Jerry, property is assessed, yon have been there and you have looked over your books?

“A. Yes, sir.

“Q. That is no criterion for the valuing of property in this county is it?

“A. No, sir.

“Q. It is no test at all, is it?

“A. It’s their assessment, Mr. Brown, their valuation they put on their property.

‘‘Q. There is very valuable property in this county that is assessed at almost a nominal figure, is there?

“A. I imagine that is so.”

Furthermore, at the request of the appellant, the Court instructed the Jury:

“You are instructed that the law of this State provides that all lands are required to be assessed at fifty per cent of their true value, and it is proper for you to consider this, together with all other facts and circumstances in evidence before you in fixing the value of the lands taken.”

Since the appellant (1) never sought to recall Mr. Richardson for further cross-examination after the assessor testified; (2) never showed that Mr. Richardson personally knew for what amount the property was assessed; and (3) appellant’s own witness, the tax assessor, testified, without objection, that in Union County assessed valuation had practically no relation to value — • in view of all these matters and the instruction previously copied — we hold that the appellant is in no position to complain about the Court’s ruling in regard to the cross-examination of Richardson.

Affirmed.

       The Trial Court stated that this evidence was admitted only to be considered with the other circumstances to arrive at the correct measure of damages.


text:
    Cook v. State.
    4825
    287 S. W. 2d 6
    Opinion delivered February 20, 1956.

      Robert C. Compton and Walter L. Brown, for appellant.

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

Defendant, Ross Cook, was charged with assault with intent to kill in the shooting and critical wounding of Richard Nowlin at Hampton, Arkansas, on the night of July 27, 1954. At the trial held July 14, 1955, the jury found defendant guilty and fixed his punishment at 21 years in the penitentiary.

Evidence adduced by the State tended to show that Richard Nowlin drove from his home in the Long Lake community to Hampton on the night of the shooting to listen to the returns of the Democratic Primary Election held on that date. He went to Jodie’s Cafe where he drank some beer and then to the courthouse where he remained until about midnight. He then returned to the cafe and drank another bottle of beer. The defendant came in the cafe and drank some beer but left while Nowlin was still there. Nowlin purchased four cans of beer to take home and started to his jeep which was parked across the street when he saw defendant sitting on a car near the cafe. As Nowlin approached, the defendant said to him, “I thought you was my friend.” Nowlin replied, “I am. I try to be a friend to everybody.” Defendant then reminded Nowlin of an occurrence several months previously when defendant had tried unsuccessfully to persuade Nowlin and his brother to procure and give false testimony favorable to defendant in a hog-stealing case in which defendant was implicated. After telling Nowlin to wait just a minute so that he could talk to him further, defendant walked across the street where he procured a .38 caliber pistol from his truck. He then returned and, after cursing Nowlin, drew the gun and shot him four times before he fell and once more through the ear while Nowlin was lying on the ground. Nowlin was unarmed and had paid no attention to defendant when he left to get his gun.

The only defense interposed by defendant was that he was too drunk at the time of the shooting to form the specific intent to kill necessary to sustain the charge. It is argued that no motive was shown for the shooting which could have only amounted to an aggravated assault. While defendant testified that he was too drunk to remember anything that happened after his arrival at Hampton in the afternoon prior to the shooting, his testimony was disputed by the sheriff and several other witnesses who observed and talked with him shortly before and after the shooting. Dr. P. H. Pinson, a defense witness, also testified that one in the condition of the defendant, as disclosed by his own testimony and that of his wife, was capable of forming the intent to kill at the time of the shooting.

While we do not agree that a motive for the shooting was lacking, the State is not bound to prove a motive and its absence is only a circumstance to be considered with other facts and circumstances in determining guilt or innocence. Hogue v. State, 93 Ark. 316, 130 S. W. 167. The specific intent to kill need not have existed for any appreciable length of time and, in determining whether such intent existed, the jury may take into consideration the manner of assault, the nature of the weapon and the manner in which it was used and all other facts and circumstances tending to show the defendant’s state of mind. Clardy v. State, 96 Ark. 52, 131 S. W. 46; Tatum v. State, 172 Ark. 244, 288 S. W. 904. The evidence here, viewed in the light most favorable to the State, was sufficient to sustain the jury’s conclusion that defendant shot Nowlin with the specific intent to take his life.

In response to hypothetical questions based upon the testimony of defendant and his wife, Dr. Pinson stated that one in defendant’s condition was capable of forming the intent to kill at the time of the shooting. While there was no plea of surprise by defendant at this testimony of his own witness, it is now argued that the court erred in limiting further interrogation to the question of defendant’s ability to form an intent to kill. Since the shooting was admitted and there was no plea of insanity or any other defense except that of inability to form an intent to kill because of drunkenness, we hold there was no abuse of the trial court’s discretion in confining the testimony of the witness to that issue.

Nor do we concur in defendant’s contention that the evidence was insufficient to warrant the action of the jury in fixing his punishment at the maximum provided by law. The evidence is overwhelming that defendant committed a murderous assault upon Nowlin while he was unarmed and making no hostile demonstration of any kind toward defendant, and we find no abuse of discretion by the jury in fixing the punishment. We have examined other assignments and find no reversible error. The judgment is therefore affirmed.