text:
    B. J. McADAMS, INC. v. BEST REFRIGERATED EXPRESS, INC., AMERICAN EQUIPMENT CO., INC. and TEX-AM CARRIERS, INC.
    78-312
    579 S.W. 2d 608
    Opinion delivered April 23, 1979
    (Division II)

      Paul J. Nicholson and James W. Woods, for appellant.

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellees.
   John A. Fogleman, Justice.

Each of the appellees, Best Refrigerated Express, Inc., American Equipment Co., Inc., and Tex-Am Carriers, Inc., filed a separate suit against appellant B. J. McAdams, Inc., seeking recovery of unpaid bills based upon trip leases of highway tractor and trailer rigs for the transportation of goods. The cases were consolidated for trial by agreement of the parties. Appellant defended on the ground that it was entitled to a set-off in the amount of $8,981.87, because that amount was owed it by American Beef Packers, Inc. Appellant contended that each of the appellees had acted as an agent for American Beef Packers, Inc., in the transactions on which the suits were based and that the leases inured to the benefit of American Beef Packers. The trial of the case to the court without a jury resulted in a judgment for each of the appellees in the amount sued for and a denial of the set-off.

Appellant’s first point for reversal is the assertion that the trial court erred in failing to grant its motion for a continuance because of the absence of a material witness. Appellant admits that the granting or refusal of a continuance lies in the sound judicial discretion of the trial court, and that, on first review, it would appear that the court did not act arbitrarily or capriciously and that the weight of precedents is against its present contentions. It seeks to show abuse of discretion, however, on the basis that the defense required the establishment of the relationship of four separate entities who had dealt with appellant; that the cases were not consolidated as early as the trial judge had indicated in denying the motion; and that, although this material witness was outside the jurisdiction of the court, he had previously consented to appear, but it had become apparent to appellant only two hours before trial that he would not appear, so it was impossible for it to prepare an affidavit setting out the materiality and truth of the witness’s potential testimony. Appellant further asserts that the absent witness was the “prime and possibly the only ‘material’ witness per se.”

It certainly is not possible to sustain appellant’s statement that the overall considerations in this case are such that denial of the continuance constituted a gross abuse of discretion. The oral motion by appellant’s attorney was:

Your Honor, I would like to move that this case be continued on the basis that we have located a witness who is material, who is unable to be here today and who is necessary for putting on the defendant’s case.

This is the complete record on the presentation of this motion to the trial judge. It would be arbitrary for this court to hold the trial court in abuse of discretion in denying the motion based upon the absence of a witness whose identity and whereabouts have never been disclosed, without the reason for his absence, the prospects of obtaining his testimony at a later date, the facts to be shown by his testimony, or appellant’s efforts to obtain his attendance at the trial ever having been revealed to the trial judge. It may well be that appellant was not afforded sufficient time for the preparation of an extensive motion or affidavit. There was nothing to prevent the critical information from having been communicated to the trial court orally. To say the least, a statement of these facts could have been proffered for the record. There was no abuse of the trial court’s discretion in this respect.

Appellant’s other point for reversal is that the court’s denial of a set-off was not supported by sufficient evidence and was against the clear preponderance of the evidence. Of course, we are not concerned with the question of preponderance. The scope of our review is to determine whether there was any substantial evidence to support the trial judge’s holding. Appellant admits that this is an established rule, but asserts that this court has held on many occasions that a trial court’s judgment will be set aside when the preponderance against it is great and it appears to be clearly wrong. Appellant cited only two cases as example. Not only do they fail to support its statements, both were chancery cases in which the review is de novo.

It was the contention of appellant that each of the appellees acted as an agent for American Beef Packers, Inc., in soliciting and negotiating the “trip lease” agreements for which these plaintiffs sought compensation in their separate actions, and that, for this reason, appellant was entitled to set off the indebtedness of American Beef Packers, Inc. against claims asserted in the suits brought by these agents in their own names. We need not pursue that question, because, assuming that appellant is correct, we find adequate evidentiary support for the judgment.

Appellant admits that there is no direct evidence of agency, but asserts that circumstances, such as the relationship of the parties, their conduct in reference to the subject matter of the contract, and previous instances of the alleged principal’s treatment of each of the purported agents as an agent constitute proof of agency. It must be remembered, however, that appellant bore the burden of proving agency. Bell v. State, 93 Ark. 600, 125 S.W. 1020. We also held in Bell that agency could be proved by circumstantial evidence, if the facts and circumstances introduced in evidence are sufficient to induce in the minds of the jury the belief that the relation did exist and that the agent was acting for the principal in the transaction involved. Obviously, the evidence did not induce that belief in the mind of the fact-finder here. Appellant seizes upon a statement of the trial judge at the conclusion of the trial that “we have absolutely no evidence in this record that would be considered substantial that would cause the court to make a finding that American Beef Packers had any connection or control over the leased equipment,” and argues that it was erroneous. We do not take this statement to mean that there was no evidence tending to establish agency. We do take it to mean that appellant had not met its burden of proof of agency when the test of circumstantial evidence was applied.

The normal practice in transactions of the sort involved here was established by the evidence. The lessor of tractor-trailer rigs for transportation of goods on the highways (appellees in this case) contacts the dispatcher of the lessee (appellant in this case) and negotiates a “trip lease” of equipment owned by the lessor, for one trip only. The dispatcher for the lessee records information given him by the lessor’s dispatcher to be used in the preparation of the lease. The lessee’s dispatcher prepares a lease from this information and mails it to the driver of the truck which is the subject of the lease, for signature by the driver.

Appellant’s dispatcher testified that he prepared the leases in question. He said that it was customary for the dispatcher or driver to take the copy of the vehicle registration and “copy down who the vehicle was registered to” and the “registration of the tractor and trailer numbers, the serial identification numbers and the respective states the trucks were licensed in. ” He said that this was done to ascertain the name of the true owner.

Appellant then argues that the agency was established by the leases on which the suits were brought. There were 17 leases in all. Appellant was the lessee in all of them. In one, American Beef Packers was named as lessor. The lease was signed by Marc Robinson on January 20, 1975, for American Beef Packers as lessor. Robinson was a truck driver. Another lease, dated February 7, 1975, showed American Beef Packers as lessor, but no one signed for the lessor. Douglas E. Harkalis, a truck driver, signed a certification as to the time he had previously been on duty and as to his familiarity with the safety regulations of the Interstate Commerce Commission. A third lease was signed by Dennis Buss for American Beef Packers as lessor on February 3, 1975. Still another was signed by Richard Sloat on January 25, 1975. This lease showed American Beef Packers as lessor in the introductory clause, but the signature line did not identify the lessor. These four leases were all prepared by Randy Day, appellant’s dispatcher.

Frank Myers, who testified for appellees, stated that he was closely associated with, and familiar with, the operations of all the appellees in the latter part of 1974 and the first part of 1975. When he testified, he was traffic and sales manager for Best Refrigerated Express, Inc. He stated that he had been employed by American Equipment Company for 14 months beginning on July 11, 1977, and by Tex-Am Carriers in 1976 for approximately one year. He stated that he had been an employee of American Beef Packers for approximately five years, prior to January 11, 1975. He testified that the drivers who signed these leases were employees of American Equipment Company at the time they signed, although they had previously been employees of American Beef Packers. All of these trip leases were entered into subsequent to January 11, 1974, when American Beef Packers filed a petition in bankruptcy. Myers testified that, after that date, there was no relationship between American Beef Packers and American Equipment Company, but that prior to that time, American Equipment Company had leased equipment to American Beef Packers. Myers stated that all of the four leases mentioned above had been negotiated by American Equipment Company and prepared by employees or agents of appellant. He said that all of the equipment listed in those leases belonged to American Equipment Company. He testified that putting the name of American Beef Packers on the leases was an error on the part of the preparer, and implied that it was done deliberately, with a set-off in view. He also testified that, although Tex-Am Carriers was no longer in business, it had been a contract carrier for American Beef Packers, as an independent contractor and that American Beef Packers had no control over it. According to Myers, there was only a shipper-carrier relationship between American Beef Packers and Best Refrigerated Express, a common carrier.

Robert E. Lee, vice-president of American Beef Packers in charge of production and cattle procurement since 1972, and a member of its board of directors from 1969 until its bankruptcy, testified that he was familiar with parent companies and subsidiaries of American Beef Packers and was familiar with Best Refrigerated Express, Inc. and American Equipment Company, but not Tex-Am Carriers. He testified that none of them were owned by, subsidiaries of, or agents of, American Beef Packers, that the only relationship between American Beef and appellees was a normal shipper-carrier relationship, and that none of them were authorized to represent themselves as a subsidiary or agent of American Beef Packers. He also said that the traffic manager of American Beef Packers had no such authority. He had no recollection of either the name Bob Badboys or Bob Stout.

William D. Shipley, operations manager of appellant, testified that he “checked out” the three appellees by talking with a man named Bob Gadforth. He believed Gadforth was traffic manager at the American Beef Packers’ “location” at Dumas, Texas.

Appellant argues that the evidence showed that appellees were representing themselves as agents of American Beef Packers, Inc. and that American Beef Packers was notified of these representations and ratified them by silence. There are obstacles to the acceptance of this testimony as establishing the alleged agency. One of them is the fact that, even though the statements and actions of an alleged agent may be admissible to corroborate other evidence tending to establish agency, neither agency nor the scope of agency can be established by declarations or actions of the purported agent. Mark v. Maberry, 222 Ark. 357, 260 S.W. 2d 455; Zullo v. Alcoatings, Inc., 237 Ark. 511, 374 S.W. 2d 188; Smith v. Hopf, 219 Ark. 127; 240 S.W. 2d 2. Another obstacle is the fact that the evidence appellant relies upon to show ratification is far from satisfactory. Shipley expressed a belief that Bob Gadforth was the gentleman he talked with at American Beef Packers. When asked what American Beef Packers said about the two carriers who had approached him, he said that Gadforth “advised us they had referred us to American Beef Packers whenever we talked to them or whenever I talked to them,” and that he believed Gadforth to be the traffic manager at the American Beef Packers’ “location.” Gadforth was not otherwise identified. His authority or connection with American Beef Packers was not shown.

On appellate review, all the evidence must be viewed, with every reasonable inference derived therefrom, in the light most favorable to appellees. Zullo v. Alcoatings, Inc., supra. When the evidence is circumstantial only, it is always very difficult to say that a finding adverse to the party offering it to prove a fact is erroneous, because a fact may be shown by circumstantial evidence when the circumstances are such that reasonable minds might draw different conclusions. Woodward v. Blythe, 246 Ark. 791, 439 S.W. 2d 919; Myers v. Hobbs, 195 Ark. 1026, 115 S.W. 2d 880; Arkmo Lumber Co. v. Luckett, 201 Ark. 140; 143 S.W. 2d 1107. Thus, when all reasonable inferences are drawn favorably to the finding of fact and the evidence is viewed in the light most favorable to that finding, it can hardly be said a reasonable mind could not reach the conclusion reached by the fact-finder.

It is only where there is no substantial evidence to support a verdict, where fair-minded men can only draw a contrary conclusion or where there is no reasonable probability that an incident involved occurred according to the version of the prevailing party, that a jury verdict will be disturbed. Blissett v. Frisby, 249 Ark. 235, 458 S.W. 2d 735. The judgment of a court sitting without a jury has the same binding force and effect on appeal as a jury verdict, even when the fact-finding consists only of drawing inferences and conclusions from the evidence. Garrison Properties, Inc. v. Branton Construction Co., 253 Ark. 441; 486 S.W. 2d 672; Mid-South Ins. Co. v. Dellinger, 239 Ark. 169, 388 S.W. 2d 6; Cox v. State Farm Fire & Casualty Co., 240 Ark. 60, 398 S.W. 2d 60, 17 ALR 3d 1376. There was direct evidence that there was no agency. We cannot say that the finding that appellant had failed to meet its burden of proof was erroneous.

The judgment is affirmed.

We agree. Harris, C.J., and Holt and Hickman, JJ.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Charles COBB v. STATE of Arkansas
    CR 78-207
    579 S.W. 2d 612
    Opinion delivered April 23, 1979
    [Rehearing denied May 21, 1979.]

      William B. Howard, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Charles Cobb was sentenced to two years in prison and fined $2,000 upon a jury verdict that he was guilty of selling a controlled substance to Jerry Leon Way, an “undercover” officer employed by the Lake City Police Department. Appellant raises six points for reversal. We find no reversible error and affirm.

Appellant first contends that the court erred in overruling his motion for new trial. It was based upon the allegation that Patricia Adams, the foreman of the jury, had concealed the fact that she had previously served on a jury that found another person guilty of a like charge in a case in which Way had testified, and thus prevented appellant from challenging her peremptorily. In his motion, appellant conceded that this juror had not told an untruth, but charged that she had deliberately concealed this fact.

Appellant raised this question after trial in May, 1978, but before he was sentenced. The juror was then questioned by the trial judge. She admitted that she had served as a juror in a case in which Way was a witness during the January, 1978, term of court in the Eastern District of Craighead County, the same district in which Cobb was tried.

During the voir dire examination of this juror by the trial judge, she had been asked if she was acquainted with, or related to, Way. She answered in the negative and added, “I know of him. I wouldn’t know him even to speak to him.” The matter was pursued by appellant’s attorney on voir dire. The questions and answers so far as material, were:

Q. Mrs. Adams, I believe you indicated that you know Jerry Way Sr. casually, is that correct?
A. I don’t know him to speak to him. I know who he is.
Q. You recognize him when you see him?
A. Yes.
Q. I take it there is nothing in that that would cause you to give his testimony —
A. No, sir.
Q. — any unusual weight? Now, of course, my client has been charged with having sold marijuana. I know there is a lot of feeling among most people with reference to the use of marijuana and the sale of marijuana. I don’t have any criticism of that. I fall in the same category. I don’t approve of either. In this particular case my client is charged with selling marijuana. Do you feel that you would have any difficulty in approaching this from an objective standpoint in being completely unbiased where the charge is selling marijuana as contrasted to say a situation of where the charge was burglary or larceny, something of that nature?
A. No, sir. It wouldn’t be any different.
$ jjt $ aft ijt
Q. Now, you have been interrogated by the Prosecuting Attorney about this matter of determining the credibility of the witnesses. Now, in this connection, a lot of people have this feeling. I don’t have any criticism of it, but I need to know it. A lot of people feel that if an individual is an official, connected with the law, a law enforcement officer, that is more likely that that person will tell the truth in a criminal trial than, that is for example, for the Defendant to tell the truth. Do you have any such feelings?
A. No, sir.
Q. You don’t believe then given this star and this gun makes everything an officer says the gospel truth?
A. Right. I can believe anybody else as much as I can an officer.
Q. In other words, do you think the Defendant ought to have to offer any evidence in order to prove his innocence?
A. No, he’s innocent until proven guilty.
Q. And he doesn’t have to do anything to prove that. Is that the way you feel?
A. Well, I mean, he can get up there and testify and I’ll take what he says as the truth like I would everyone else, but I will weigh the scales.
Q. What I am getting at — I guess it’s my own fault, but we really got away from what I originally asked you. Assume for the moment that the State says, all right, we’re through. We’ve offered all the proof we have. At that time, you sit there and say, well, I’ve got a reasonable doubt as to this man’s guilt. Now, if you were in that state of mind, would you feel like the Defendant ought to come forward and offer anything else about it to prove anything else about it?
A. Well, if I believe that he was innocent —
Q. When the State got through with its evidence?
A. — when the State got through — I believe in listening to both sides. I don’t know if I can answer your question.
*****
Q. Well, let me say this to you ma’am. I imagine it’s the first time you’ve ever served on a Jury, is it not?
A. No, it’s not.
Q. It’s not?
A. No.
*****
Q. Would you give any more weight to the testimony of witnesses called by the State of Arkansas as contrasted to witnesses called by the Defendant?
A. No, sir.

We do not agree that this record discloses a deliberate concealment of the juror’s previous service in a case in which Way testified. We do not consider that her statement that there was nothing that would cause her to give Way’s testimony any unusual weight was contradicted by the fact that she had joined in returning a guilty verdict in another case in which Way had testified for the state. At any rate, the granting or denial of a motion for a new trial lies within the sound judicial discretion of the trial judge, whose action will be reversed only upon a clear showing of an abuse of that discretion or manifest prejudice to the defendant. We are certainly unable to say that there was any abuse of discretion in this case, and prejudice is not manifest. Newberry v. State, 262 Ark. 334, 557 S.W. 2d 864; Hewell v. State, 261 Ark. 762, 552 S.W. 2d 213; Wright v. State, 35 Ark. 639.

Appellant next argues that the trial court erred in refusing his motion for mistrial or a stronger admonition than that given “after the court had erroneously admitted a collateral attack on the testimony of defendant’s witness, Joe Pardi.”

Pardi had testified that Cobb had not attempted to sell marijuana to Way, but that Way had actually attempted to sell it to Cobb, and that Way had the marijuana in question in his own possession at all times. On cross-examination, Pardi had denied that marijuana had been smoked in a house in which he had lived with Cobb, or in any house in which he had lived. He also denied that Officer Bill Hook had come to Cobb’s house while a marijuana party was in progress. Cobb’s attorney, on redirect examination of Cobb, asked him about the implication that Hook had come to Cobb’s house while a marijuana party was in progress. Cobb denied that Hook had ever come to his house and denied that marijuana had ever, to his knowledge, been in his house. On recross-examination by the prosecuting attorney, Cobb denied any knowledge of any such party and denied that Hook had ever had any occasion to remove a juvenile runaway from Cobb’s residence. Cobb also stated that he had never been present at a party anywhere at which such an activity had occurred.

Hook was then called as a witness by appellant, whose attorney asked whether Hook had ever gone to the home of Charles Cobb when a party was in progress. Hook gave a negative answer. On cross-examination, the prosecuting attorney asked whether Hook had made some statement to him during the preceding day regarding a party at which this officer had occasion to remove a juvenile from the appellant’s presence. Appellant’s attorney objected that the question related to a hearsay statement and that it did not tend to impeach the witness. There was no abuse of the trial court’s discretion in the overruling of appellant’s objection to this question, which was directed toward explaining the basis for the prosecuting attorney’s cross-examination of Cobb, invited by questions asked on direct examination of Hook on a collateral matter after Cobb had denied that any such incident had taken place. Hook then answered that he had stated to the prosecuting attorney that he had gone to Joe Pardi’s house prior to the time that Pardi and Cobb had lived together. A motion to strike this testimony and for an admonition to the jury to disregard it as an improper collateral matter was denied. When the prosecuting attorney asked Hook to relate the circumstances relative to the incident at Pardi’s house, appellant’s objection was at first sustained. When the prosecuting attorney reminded the trial judge that Pardi had testified that he did not use marijuana and that he could not remember Hook’s ever being at his house and argued that the testimony was relevant on the question of Pardi’s credibility, the trial judge reversed his rulling and allowed further inquiry by the prosecuting attorney, over appellant’s objection, on the ground that it constituted an attempt to impeach Pardi on a collateral matter. The witness then testified that he had gone to Pardi’s house and had removed a juvenile, but that Pardi was not present at the time. After the witness responded affirmatively to the prosecuting attorney’s inquiry whether Hook smelled marijuana on that occasion, appellant’s attorney asked the court to instruct the jury to disregard the testimony. The trial judge stated, “The motion will be granted. The jury will be told to disregard the testimony.”

Appellant’s attorney requested no further action until after the state called a rebuttal witness, whose testimony was excluded by the court, and the state had made a proffer of the testimony expected from this witness. For the first time, just prior to discussion of instructions to be given the jury, appellant’s attorney moved for a mistrial on account of the admission of Hook’s testimony on cross-examination with reference to Pardi, stating that, even though the trial judge had told the jury to disregard the testimony, the admonition was not sufficient to cure the prejudice that resulted from two or three separate objections, and the court’s overruling of them. When this motion was denied, appellant’s attorney asked the trial judge to admonish the jury that the “testimony was highly improper, it should not be considered for any purpose and it never should have been admitted.” The judge responded that he had already admonished the jury and no further admonition would be given.

We have said many times that the declaration of a mistrial is a drastic remedy to be resorted to only when the prejudice is so great that it cannot be removed by an admonition to the jury. Limber v. State, 264 Ark. 479, 572 S.W. 2d 402. The matter lies largely within the discretion of the trial judge. Cary v. State, 259 Ark. 510, 534 S.W. 2d 230. We find no abuse of discretion in the denial of appellant’s motion for mistrial.

When we consider the background from which the prosecuting attorney’s inquiry was initiated, the fact that Hook stated that Pardi was not present when the officer had gone to the house and had smelled marijuana, and the time at which the request was made we cannot say that the failure to give a further admonition to the jury was prejudicial error.

The court denied appellant’s request for an instruction that the jury should not show prejudice against defendant because his attorney made objections to evidence; that the trial judge’s allowing testimony over the objection of an attorney was no indication of an opinion as to its weight or effect; and that, when an objection to a question was sustained, the jury could neither draw an inference from the wording of the question or speculate as to what the answer of the witness might have been. We find no merit in appellant’s argument that failure to give one part of this instruction denied appellant effective assistance of counsel and failure to give another violated Art. 7, §23 of the Constitution of Arkansas/ prohibiting judges from charging juries with regard to matters of fact. Although there may be nothing in the instruction that was incorrect, it was only cautionary. The giving or refusal of such an instruction lies within the sound discretion of the trial court. Fields v. State, 255 Ark. 540, 502 S.W. 2d 480; Williams v. State, 254 Ark. 940, 497 S.W. 2d 11. There is no ground for reversal in the refusal to give such an instruction in the absence of gross abuse of discretion. Williams v. State, supra. We find none here. The trial judge did instruct the jury that it was the sole judge of the credibility of the witnesses and the weight to be given to the testimony of any and all witnesses and that these were matters with which the court had nothing to do. The instruction also stated that each juror must decide the case for himself, after impartial consideration of the evidence in the case, that the sole interest of the jury was to seek the truth from the evidence in the case and that it was the duty of the jury to return a verdict in accordance with the law declared by the court and the testimony.

Appellant also argues that there was error in the court’s failure to give his requested instructions on the effect of the filing of the information by the prosecuting attorney and the presumption of innocence. Appellant admits that his requested instruction as to the information was covered by the court’s instruction that the information did not constitute evidence against him. The instruction given actually went further. By it, the jury was told that the information was a mere formal charge or accusation, and that the state had the burden of making out its case to the satisfaction of the jury beyond a reasonable doubt. This instruction also defined reasonable doubt and informed the jury that appellant was presumed to be innocent until proven guilty and that it should acquit him if it had a reasonable doubt as to his guilt. We find no merit in appellant’s argument that more emphasis should have been given to the lack of evidentiary effect of the information.

Appellant admits that the substance of his requested instructions on the presumption of innocence was covered by instructions given. He complains, however, that one of his requested instructions should have been given in preference to the instruction given because the jury was not told that the presumption of innocence served appellant as evidence in his favor throughout the trial and entitled him to an acquittal unless the evidence adduced by the state convinced the jury, beyond a reasonable doubt, that he was guilty of the crime charged.

Appellant confesses that the only question is whether one or the other of his requested instructions should have been given in preference to that given. We think that the requested instructions were sufficiently covered by those given. In such a case, the trial court is not required to instruct the jury in every possible manner, even though a party’s offered instruction may not be incorrect. Butler v. State, 261 Ark. 369, 549 S.W. 2d 65; Cox v. State, 254 Ark. 1, 491 S.W. 2d 802, cert. den. 414 U.S. 923, 94 S. Ct. 230, 38 L. Ed. 2d 157.

The judgment is affirmed.

We agree. Harris, C.J., and Holt and Hickman, JJ.


author: Conley Byrd, Justice. John I. Purtle, Justice,

text:
    FARM BUREAU INSURANCE COMPANY v. Avery LUBIN
    78-201
    580 S.W. 2d 447
    Opinion delivered April 23, 1979
    (In Banc)
    [Rehearing denied May 29, 1979.]

      Hale, Fogleman & Rogers, for appellant.

      Kent J. Rubens and Jake Brick, for appellee.
   Conley Byrd, Justice.

Appellant Farm Bureau Insurance Company issued a comprehensive automobile insurance policy to Milton Lubin, M.D., providing automobile liability and collision coverage to Milton Lubin and the members of his household. Milton Lubin is the father of Avery Lubin and Nathan Lubin. Nathan Lubin lived approximately 200 to 300 yards from Milton Lubin. A limited partnership between Nathan Lubin and Zusman Bensky had purchased a jeep but had neglected to acquire insurance on the jeep. On July 22, 1973, Avery Lubin borrowed the jeep to go frog gigging. While the jeep was thus borrowed, Avery Lubin ran the jeep into a ditch, causing extensive damage. When Farm Bureau failed to pay for the damages, Nathan Lubin filed suit against Avery Lubin and recovered a judgment for $1600 damages to the jeep. Thereafter, Avery Lubin filed this action against Farm Bureau to recover a judgment for the $1600 plus an attorney’s fee of $500 for defending Nathan’s action against him and also for a 12% penalty and an attorney’s fee in this action. Farm Bureau defended on the basis that its liability under Coverage “B” was excluded by Exclusion “K” since Avery Lubin was in charge of the jeep at the time of the accident. The trial court held Farm Bureau liable for the $1600 judgment, for $500 attorney’s fee in defending Nathan’s action against Avery, for the statutory 12% penalty in the amount of $192.00 and for an additional attorney’s fee of $700 in this action. For reversal Farm Bureau contends:

“I. The trial court erred in failing to rule that Exclusion K was applicable to exclude liability coverage for property damage under Coverage “B” since Avery Lubin was in charge of or transporting the vehicle at the time the collision causing the damage occurred; and
II. The trial court erred in ruling that appellant had a duty to defend appellee and pay any judgment rendered therein.”

The policy issued by Farm Bureau, in so far as here applicable, provides:

“INSURING AGREEMENTS:
1. LIABILITY
COVERAGES A, BODILY INJURY AND B, PROPERTY DAMAGE.
1. To pay on behalf of the insured all sums except punitive damages, which the insured shall become legally obligated to pay as damages:
COVERAGE A — Because of bodily injury sustained by any person, and
COVERAGE B — Because of injury to or destruction of property, caused by accident and arising out of ownership, maintenance or use of any automobile, including loading and unloading thereof;
2. To defend any suit against the insured for such damages even if groundless, or fraudulent; * * * *
III. DAMAGE TO OWNED AUTOMOBILES
COVERAGE D, COMPREHENSIVE: E, COLLISION: AND F, FIRE THEFT AND C.A.C.
1. To pay for direct and accidental loss of or damage to the automobile, including its equipment and other equipment permanently attached thereto and described in the Declarations and indicated by a specific premium charge or charges and including reasonable expenses to protect it from further loss, all of which shall hereinafter be called loss.
COVERAGE E — COLLISION: By collision with another object or by upset of the automobile but only for the amount of each such loss in excess of the applicable deductible indicated in the Declarations. * * * *
IV. DEFINITION OF INSURED
The unqualified word “INSURED” includes the named insured and if the named insured is an individual, his spouse and dependent children residing in the household and also includes: * * * *
V. OTHER DEFINITIONS
(1) “OWNED AUTOMOBILE” — an automobile owned by the named insured.
(2) ‘HIRED AUTOMOBILE’ — means an automobile used under contract in behalf of, or loaned to the named insured provided such automobile is not owned by or registered in the name of (a) the Named Insured, (b) a partner or executive officer thereof, (c) * * * * *
(3) ‘NON-OWNED AUTOMOBILE’ means any automobile other than an owned automobile or hired automobile.
VI. USE OF OTHER AUTOMOBILES — COVERAGES D, E AND F.
A. If during the policy period this policy provides coverage D, E, or F to a private passenger or a noncommercial vehicle, such insurance applies to the use of any non-commercial vehicle used by the insured.
EXCLUSIONS
THIS POLICY DOES NOT APPLY:
* * *
(k) under Coverage B, to injury to or destruction of property (1) owned or transported by the insured; (2) rented to or in charge of the insured other than a residence or private garage damage or destroyed by a private passenger automobile covered by this policy; * * *>>

The front page of the policy shows that there is a $100 deductible on the 73 Ford “2DHDT” owned by Avery Lubin.

POINT I. When we zero in on this policy we find that Farm Bureau agrees:

“INSURING AGREEMENTS:
COVERAGES A, BODILY INJURY AND B, PROPERTY DAMAGE.
1. To pay on behalf of the insured all sums except punitive damages, which the insured shall become legally obligated to pay as damages:
COVERAGE B — because of injury to or destruction of property, caused by accident and arising out of ownership, maintenance or use of any automobile, including loading and unloading thereof;
2. To defend any suit against the insured for such damages even if groundless, or fraudulent; ...”
EXCLUSIONS
THIS POLICY DOES NOT APPLY:
(k) under Coverage B, to injury to or destruction of property (1) owned or transported by the insured; (2) rented to or in charge of the insured other than a residence or private garage damaged or destroyed by a private passenger automobile covered by this policy; . .

In contending that it had no liability under Coverage “B”, Farm Bureau relies upon Northwestern Mutual Insurance Company v. Haglund, (1965 Mo. App.) 387 S.W. 2d 230; Middlesex Mutual Fire Insurance Co. v. Ballard, (La. App. 1963) 148 So. 2d 865; and Wyatt v. Wyatt, 239 Minn. 434, 58 N.W. 2d 873 (1953). On page 8 of appellee’s brief we find the following statement:

“The failure of Appellant to acknowledge its liability and to pay for the damage to the Jeep caused the original litigation against the insured Avery Lubin by the partnership of Nathan G. Lubin and Zusman Bensky. The ingenious argument advanced by Farm Bureau is to the effect that the suit (Case No. 8938) (Tr. 4) was based on negligence and therefore came under Coverages B — Property Damage — Liability and therefore was subject to Exclusion K. If Liability Coverage Property Damage were the only coverage which existed by reason of Farm Bureau’s policy, the Appellee would be inclined to concede that the exclusion might apply. ” [Emphasis ours]

Again in his conclusion on pages 14 and 15 of appellee’s brief we find the following:

“CONCLUSION
Appellee contends that the Circuit Judge was correct in the Judgment awarded to him. That the ruling of the Court and its findings that neither Exclusion D or K applied were correct. That the theory of Farm Bureau contradicts the plain terms of the policy issued by it and attempts to ignore or render ineffective the collision coverage agreements contained therein.
As indicated, appellee has no argument with the law cited by appellant, were this a case where liability coverage alone is involved; but Appellee deems such law inapplicable where as an admitted insured he had collision coverage which Appellant refused to honor, thus causing him to incur expenses and a Judgment against him.
This matter having been fully developed, the Appellee respectfully submits that the decision of the Trial Court should be affirmed.”

We fail to see how the fact that the insured has Coverage E under “III DAMAGE TO OWNED AUTOMOBILES” should have any effect upon the construction that should be given to Exclusion (k). This Farm Bureau policy, like most comprehensive automobile policies, is designed so that the insured can pay only for liability coverage on his vehicle or, by the payment of an additional premium, also acquire collision coverage. In fact an owner of multiple vehicles can acquire liability on some of the vehicles and both liability and collision on other vehicles.

If we should accept appellee’s contention with reference to the Exclusion under subsection (K), then in a policy covering multiple vehicles some of which had only liability coverage and some of which had liability and collision coverage, subsection (K) would get two different interpretations in the same policy. We submit that such a result would be absurd. Thus it follows that the trial court erred in holding that Exclusion (K) did not apply to Coverage B under LIABILITY.

POINT II. As can be seen from the policy provisions set out above, Farm Bureau only owed a duty to defend a suit against its insured under the liability portion of its policy. Since Farm Bureau, because of Exclusion (K), provided no liability coverage to appellee for damage to a non-owned automobile being driven by appellee, it follows that the trial court erred in holding that Farm Bureau had a duty to defend.

Finally we note that Farm Bureau does not deny that it furnished Collision Coverage E to appellee and that it did not object to the proof as to the amount of the damages to the jeep or the introduction of the policy. Farm Bureau only asserts that appellee did not plead the application of Coverage E. However, we note that by an amended complaint appellee alleged that Farm Bureau issued its comprehensive automobile policy purporting to provide coverage “for various situations provided pursuant to the terms of the general policy to which this Form had reference. ” Accordingly if appellee, within 17 juridical days will enter a remittitur for all of its judgment in excess of $1500 — i.e. the $1600 damages less the $100 deductible — the judgment will be modified and affirmed. Otherwise the judgment will be reversed and remanded for further proceedings.

Modified and affirmed.

Fogleman, J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority opinion sets out the pertinent parts of the insurance policy and I will not restate them. It is undisputed that appellant’s policy covered the damaged vehicle under its collision coverage. Neither is it disputed that the loss was timely reported nor that appellant failed to pay for the loss.

Appellee could not force appellant to pay its legal and valid loss without filing suit. Apparently he did not want to be out the time and expense for services he was entitled to under his insurance policy and therefore simply waited until he was sued.

At no time did appellant offer to pay for the collision damages which it owed appellee or the owner of the damaged vehicle which was covered under the “use of other automobiles” clause in the policy. Appellee would not have incurred the attorneys’ fees and costs if appellant had paid the collision loss. Now the majority of this Court penalizes the insured for the failure of the insurer to do that which it was bound by contract to do.

As I view this case, it clearly falls within the category of cases where a claimant is entitled to collect penalty, interest and attorneys’ fees when he has to sue his own company and recovers the amount sued for. I do not believe in rewarding anyone for breach of contract, especially when it is to the detriment of an innocent party.

It makes no difference which clause of the policy should have covered the loss. It was covered and appellant failed to pay. This may be another case where the appropriate department should remedy such an unjust result.

I would affirm the judgment and allow an additional fee for the appeal. Appellant has, no doubt, expended much more money in defense of a just and valid claim than it would have cost to pay it out without all the trouble and expense. There is no saving to the appellant or its policyholders in this case. Neither is it a matter of principle. It is simply a case where appellant has successfully ducked behind a technical term in its ambiguous policy and caused its policyholder to suffer the results.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    William A. DUNKUM et al v. R. C. MOORE et al
    78-290
    580 S.W. 2d 183
    Opinion delivered April 23, 1979
    (In Banc)

      Purtle, Osterloh & Weber, by. John I. Purtle, for appellants.

      Patten, Brown, Leslie & Davidson, by: Robert B. Leslie, for appellees.
   Conley Byrd, Justice.

A petition containing the signatures of 227 registered voters was filed for the incorporation of Shannon Hills. The county court heard the matter and entered an order approving the proposed incorporation of the designated areas as Shannon Hills. Appellants William A. Dunkum, et al., pursuant to Ark. Stat. Ann. § 19-105 (Repl. 1968) and within the proper time, filed a petition for an injunction to prevent the incorporation, alleging that (1) the legal description was incorrect, (2) a majority of the inhabitants of the area proposed for incorporation did not sign the original petition and (3) the governing body of a town within three miles of Shannon Hills did not affirmatively consent to the incorporation. After hearing proof only with reference to the number of qualified voters and the number of inhabitants residing within the area, both appellants and appellees moved for a ruling in their favor. From a judgment of the trial court denying the petition for injunction, appellants appeal, contending:

POINT I. A majority of the inhabitants in the area proposed for incorporation did not sign the petition.
POINT II. The legal description and notice were incorrect thereby voiding the action for lack of notice.
POINT III. The city of Alexander did not legally consent to the incorporation.

The Saline County Clerk, George Ramsey, testified that he was familiar with the proposed area to be annexed, that it lay within two voting precincts — Otter “A” and Otter “B” — and that there would be no way of knowing for sure how many registered voters resided in the area. However, based upon his knowledge of the area, the people who came into his office from the area, the voter registration records kept in his office and his experience based upon the records, Mr. Ramsey estimated that there would be between 410 and 414 registered voters residing in the area proposed to be incorporated. Mr. Ramsey stated “that probably would be as close as you can get as far as an educated guess.”

The testimony of appellant Dunkum showed that he had actually counted 448 residences in the proposed area and that, based upon a census report showing 3.32 persons per household, he calculated there would be 1,466 inhabitants, including children and imbeciles, in the area. The testimony of Jean Higgins, an employee of Shannon Hills Water Company, showed that there were 444 water meters in operation when the petition was filed.

POINT I. Appellants contend that the term “inhabitants” in Ark. Stat. Ann. § 19-101 (Supp. 1977) and Ark. Stat. Ann. § 19-106 (Repl. 1968) must be construed to mean residents — i.e. include children and imbeciles. For the reasons hereinafter stated, we construe the term “inhabitants” as used in the subject statutes to mean qualified voters residing within the proposed town.

Ark. Stat. Ann. § 19-101 (Supp. 1977), in so far as pertinent, provides:

“When the inhabitants of a part of any county, not embraced within the limits of any city or incorporated town, shall desire to be organized into a city or town, they may apply by petition, in writing, signed by not less than one hundred fifty (150) qualified voters residing within the described territory, to the county court of the proper county, which petition shall describe the territory proposed to be embraced in such incorporated town, and have annexed thereto an accurate map or plat thereof shall state the name proposed for such incorporated town, and also name the person or persons authorized to act in behalf of the petitioners in prosecuting said petition. The county court shall not approve the incorporation of any municipality if any portion of the territory proposed to be embraced in such incorporated town shall lie within three (3) miles from the corporate limits of an existing municipal corporation unless the governing body of said municipal corporation has by written resolution affirmatively consented to said incorporation. ...”

Ark. Stat. Ann. § 19-103 (Repl. 1968), provides for a hearing to be held before the county court, and Ark. Stat. Ann. § 19-105 (Repl. 1968), gives anyone opposed to the incorporation the right to file a complaint in the circuit court for purpose of having the incorporation by the county court annulled. Ark. Stat. Ann. § 19-106 (Repl. 1968), provides:

“It shall be the duty of the court or judge to hear such complaint in a summary manner, receiving answers, affidavits and proofs, as may be deemed pertinent; and if it shall appear to the satisfaction of the court or judge that the proposed incorporated town does not contain the requisite number of inhabitants, or that a majority of them have not signed the original petition, or that the limits of said proposed incorporated town are unreasonably large or small, or are not properly and sufficiently described, then the said court or judge shall order the record of said incorporated town to be annulled; ...”

Acts 1975, No. 635 (Ark. Stat. Ann. § 19-101, supra), provides that, “When the inhabitants of a part of any county .. . shall desire to be organized into a city or town they may apply by petition in writing signed by not less than one hundred fifty (150) qualified voters residing within the described territory. . . .” Likewise, Ark. Stat. Ann. § 19-106, supra, provides that if it shall appear to the satisfaction of the court or judge that the proposed incorporated town does not contain “the requisite number of inhabitants or that a majority of them has not signed the petition,” then the judge shall annul the incorporation by the county court.

Simple sentence structure shows that the 1975 Act, supra, [Ark. Stat. Ann. § 19-101] qualified the term “inhabitants of a part of a county” to be qualified voters because it says that the inhabitants “may apply by petition . . . signed by not less than one hundred fifty (150) qualified voters residing within the described territory. . . .” Furthermore, the provision of Ark. Stat. Ann. § 19-106, supra, which authorizes the circuit court to annul the incorporation when it appears to the satisfaction of the court “that the proposed incorporated town does not contain the requisite number of inhabitants or that a majority of them have not signed the original petition. ..,” must refer back to the term “inhabitants” as used in Ark. Stat. Ann. § 19-101, supra. Since Ark. Stat. Ann. § 19-101, supra, authorizes the inhabitants to petition through qualified voters and Ark. Stat. Ann. § 19-106, supra, refers to “a majority of them [who] have not signed the original petition,” the term majority can only refer to the persons authorized to sign the petition — i.e. qualified voters.

In Town of Wrightsville v. Walton, 255 Ark. 523, 501 S.W. 2d 241 (1973), the argument made was that since Ark. Stat. Ann. § 19-101 then permitted the inhabitants to petition by 20 qualified voters, the proposed incorporators could incorporate by showing that of the 20 signers on the petition, only 11 had to be qualified voters. We were not there required to interpret what the term inhabitant meant.

In Town of Walnut v. Wade, 103 U.S. 683, 26 L. Ed. 526 (1880), there was before the court an Illinois Act which provided that a city or town could issue bonds for railroad stock when the amount thereof had been “first submitted to the inhabitants of such city . . . and approved by them; and upon application of any ten voters ... it shall be the duty of the clerk ... to immediately call an election. . . .’’In answer to the contention that the term inhabitants should include children and imbeciles the court stated: “To require the approval by a vote of the ‘inhabitants’ in this sense would be an absurdity. ”

In Brown v. Rushing, 70 Ark. 111, 66 S.W. 442 (1902), we had before us an act approved March 22, 1881, providing for the sale of school lands “whenever the inhabitants of any congressional township in this state shall desire the sale of the sixteenth section of such township . . . they may by petition, signed by a majority of the male inhabitants of such township, require the collector of taxes of the county wherein such school land is situated to sell the same,” and that “upon reception of such petition the collector shall ascertain that it is signed by a majority of the male inhabitants of such township.” In concluding that male inhabitants under the age of 21 years-should not be counted we said:

“The word ‘inhabitant’ has many meanings. It has been construed to mean an occupier of lands; a resident; a permanent resident; one having a domicil; a citizen; a qualified voter. Its construction has generally been governed by the connection in which it has been used. In Walnut v. Wade, 103 U.S. 683, the construction of an act was involved which authorized towns and cities to subscribe for stock in railroad companies, with the consent of the inhabitants of such city or town, to be ascertained by an election held for that purpose. The court held that the word ‘inhabitant,’ in that act, meant legal voters. In that case the meaning of the word was determined to some extent by the nature of the act to be done. In this case it should be determined in the same manner.
Under the statutes of this state a male person under the age of twenty-one years is incapable of managing his estate, or absolutely binding himself for the payment of money for anything except necessaries. He cannot devise his lands, nor participate in the annual school meetings nor vote in any election. As a general rule, he cannot do any act necessary to be done in the management and disposition of his lands, except subject to avoidance or ratification when he reaches the age of twenty-one years. In view of these laws, he was certainly not intended to be included in that class of inhabitants authorized to petition for the sale of a sixteenth section of land. The object of the act of 1881 in making a petition signed by a majority of the male inhabitants of a township necessary to procure such sales was doubtless for the purpose of enabling them to protect the interest of their township in such land; and this precludes the idea that any person the law presumes and pronounces, and is generally known to be, incompetent to perform such acts, should form any part of the majority. The act does not provide for its own defeat, and it would tend to do so if it included infants in the word ‘inhabitants.’ For in that event it would make the child in arms and male persons of all ages competent petitioners, and in some cases place it within the power of children to control such sales, and thereby rob the townships of the safeguards it intended to throw around them. If such was its intention, why were females, and especially adults, excluded? No such construction can reasonably be placed upon the act.”

The county clerk estimated that there were no more than 410 or 414 registered voters in the area proposed to be incorporated. If we follow appellants’ contention that the word “inhabitants” is equivalent to population, keeping in mind that only qualified voters are allowed to sign the petition, an anamolous result ensues. The circuit court in this case would have been required to annul the incorporation approved by the county court upon a petition signed by all 410 registered voters upon a mere showing that the total population — including children and imbeciles — was 1411 people. Even a showing of the proponents by calling all of the 1411 people in the area old enough to talk except appellant Dunkum to testify that they desired the area to be incorporated would not suffice, because the statute permits only qualified voters to sign the petition and then specifically requires that the petition be signed by a “majority” of the inhabitants. Appellants’ contention that the term “inhabitants” should be construed to include children and imbeciles is just as absurd as that proposed in Town of Walnut v. Wade, supra.

Appellants under this point also contend that appellees never proved that a majority of qualified voters in the proposed area signed the petition. We find no merit to this contention. In the first place, appellants in the trial court admitted that the burden of proof was upon them. In the second place the testimony of the county clerk as to the number of qualified voters in the area — i.e. 410 to 414 — was properly admitted, whether the testimony of the county clerk be considered opinion testimony of a lay witness, or an opinion of an expert. See Ark. Stat. Ann. § 28-1001, Rule 701 et seq.

POINT II. Appellants concede that there is evidence from which the trial court could conclude that the description in the petition was correct as filed. However, they contend that because the published notice used township 3 instead of township 1, the erroneous legal description in the published notice voids the incorporation. We disagree with appellants because Ark. Stat. Ann. § 19-101 (Supp. 1977) only requires the published notice to contain the substance of the petition and the time and place of the hearing thereof. The published notice here complied with those limited requirements.

POINT III. Finally, appellant contends that the City of Alexander did not legally consent to the incorporation — i.e. it did not affirmatively consent by written resolution as required by Ark. Stat. Ann. § 19-101 (Supp. 1977). Appellants did not ask the trial court to rule upon this issue, and of course we will not consider an issue raised for the first time on appeal. Furthermore, the burden of proof was admittedly upon appellants, and any failure of the record to contain any evidence on the issue is chargeable to the appellants rather than the appellees. In other words, the burden was upon appellants to show no consent by written resolution was obtained from the City of Alexander.

Affirmed.

Fogleman and Holt, JJ., dissent.

Purtle, J., not participating.

John A. Fogleman, Justice,

dissenting. I cannot agree with the majority’s construction of the governing statute. In my opinion, there is no substantial evidence that a majority of the inhabitants had signed the petition for incorporation. Under Ark. Stat. Ann. § 19-106 (Repl. 1968), the circuit court was required to annul the incorporation if it appeared to its satisfaction that a majority of the inhabitants had not signed the petition. Town of Wrightsville v. Walton, 255 Ark. 523, 501 S.W. 2d 241.

The trial judge’s decision does not indicate its basis or his interpretation of the statute. I do not agree with the majority’s sustaining the judgment on its interpretation that the word “inhabitants” in Ark. Stat. Ann. § 19-106 means “qualified electors.” An inhabitant is a person who resides or dwells permanently in a place, as distinguished from a transient lodger or visitor. Webster’s 3rd New International Dictionary; Webster’s New International Dictionary, 2d Edition. See also, Black’s Law Dictionary (DeLuxe 4th Ed.), p. 921. This was the meaning given this word in Wilson v. Lawrence, 70 Ark. 545, 69 S.W. 570. Many meanings have been given the word, such as, an occupier of lands, a resident, a permanent resident, one having a domicile, a citizen, a qualified voter; however, the word should be accorded its ordinary meaning unless the context in which it is used or the nature of the act to be done is such as to indicate that the legislature intended that it be given some other meaning. See Brown v. Rushing, 70 Ark. 111, 66 S.W. 442. We have excluded children when the word adult was used as a limiting adjective. Wilson v. Lawrence, supra. We have also said that children are ex-eluded when the act involved required the signatures of a majority of the male inhabitants, partly because the nature of the proceedings was such that it was illogical to include infant males and exclude females, especially those who were adults. Brown v. Rushing, supra. I find no indication that the General Assembly intended that the word inhabitants in this section of the statute be given anything other than its ordinarily accepted meaning, which requires that children and imbeciles be included, even assuming that their numbers are significant.

It is true that in some cases the word “inhabitants” is taken to mean qualified electors. Of course, the context demands that it be given that meaning when an election is involved. No election is involved here. I have already pointed out the contrast which dictated the result in Brown v. Rushing, supra, quoted in the majority opinion. It is also significant, however, that the “nature of the act” there was the sale of lands, and particular emphasis was given in the opinion in Brown to the fact that, generally, a minor male “cannot do any act necessary to be done in the management and disposition of his lands.”

Furthermore, I cannot agree with the interpretation given Town of Wrightsville v. Walton, supra. In order to attempt to distinguish this case, the majority resorts to information not available to the bench, bar and public who read the opinion. Nor do I agree with appellees’ argument that Act 635 of 1975 makes the case cited inapplicable. The amendment simply changed the language of § 19-101, so that, instead of requiring a minimum of 20 qualified voters of the area as petitioners for incorporation, regardless of the total number of inhabitants, a minimum of 150 qualified voters is now required. The requirement that the incorporation be annulled in the circuit court if a majority of the inhabitants did not sign the petition was not affected in any way by this act. In the Wrightsville case, we said:

We have no way of knowing why the legislature provided that articles of incorporation can be granted by the county court upon petition of twenty qualified electors and then provides that if complaint is timely filed in circuit court, the signatures of a majority of the inhabitants would have to be shown. Nevertheless, we are unable to arrive at any conclusion other than § 19-106 requires the signatures of a majority of the inhabitants. We would point out that the proceeding in circuit court is not an appeal from the county court. The jurisdiction of the circuit court is invoked by the filing of a complaint which, of course, constitutes an entirely new proceeding.

I point out that there is no statutory requirement that only qualified electors sign a petition for incorporation. It is only required that there be a minimum of 150 qualified electors included among the signers.

The meaning of a statute must be determined from the language used by the legislature, rather than by speculation as to its unexpressed intention. “ ‘The question for the interpreter is not what the Legislature meant, but what its language means.’ ” Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656.

If the General Assembly intended that inhabitants mean qualified electors, it should have said so. The very use of the different terms indicates to me that the legislature intended that they be given different meanings. This is a general rules of statutory construction. See 73 Am. Jur. 2d 417, Statutes, § 236; 82 CJS 638, Statutes, § 329.

Pertinent illustrations of the application of the rule are found in Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 199 N.E. 2d 769 (1964); Jackson State National Bank v. Merchants’ Bank & Trust Co., 177 La. 975, 149 So. 539 (1933); and Metropolitan Life Ins. Co. v. Mason, 21 F.S. 704 (E. D. Penn. 1937), rev’d. on other grounds, 98 F. 2d 668 (3 Cir., 1938). In the first case cited, the Illinois Supreme Court said:

Similarly, the use of the word “employer” in some sections of the act, while using the words “employer, or his insurer” in others, has significance under the rules of construction which state that words employed are to be given their plain meanings, and that the use by the legislature of certain language in one instance and wholly different language in another indicates that different results were intended. ***

In the second, the court approached the matter by applying the general rule that no sentence, word or clause should be constructed as without meaning and as surplusage, if a construction can be legitimately found which will give force and effect to, and preserve, all the words of the statute, and said:

*** In applying this rule, where possible, the same meaning should not be given to two distinct words, and thereby make one of them a useless repetition of the other, but the appropriate meaning should be given each word with the end in view of giving full effect to the legislative intent.

In the last, the court said:

*** Giving effect to the canon of statutory construction that each word in the statute must be given a distinct meaning if possible, we construe the word “value” to mean the present or cash surrender value of the policy and the word “amount” to mean the face amount or the amount payable in case of death. ***

By applying basic general rules of construction, the words “inhabitant” on the one hand, and “qualified electors” on the other, should be presumed to have different meanings. There is nothing in the language of the statutes to indicate any legislative intent to the contrary.

R. C. Moore, who had resided at 11208 Shannon Hills Drive for two years, was one of the petitioners for incorporation. He testified that he had no idea how many inhabitants lived in the area. He said that no one except registered voters over 18 years of age signed the petition and that the signers represented 177 households. William A. Dunkum, one of the appellants, who lives at 14103 Sardis Road, had made an actual count of the dwelling houses in the area. He found 458, some of which were mobile homes. He exhibited a document from the Bureau of Census showing that in its Tract 104, which includes the area proposed for incorporation, there were an average of 3.32 residents per household. Using only 3.2 residents per household, he concluded that there were 1466 inhabitants of the area. He showed the location of each house on a map he prepared in October, 1977. Jean Higgins, an employee of Shannon Hills Water Company, testified that in July, 1977, she sent water bills to 406 residences, and that the company did not serve all the area proposed for incorporation, but she knew of approximately 35 residences in the area to which water was furnished by “District 2,” which bought water from the company on a wholesale basis. George Reissman, a witness for the incorporators, “guessed” that there were less than 500 residents of the area, but admitted that there could be 600 and that he didn’t know how many there were.

Appellees seek to show that there was substantial evidence to support the circuit court’s judgment in several ways, none of which have merit. First, they multiply the number of households (177) represented by the signers by 3.2 residents per household and say that this shows that they represented 587.64 inhabitants which was more than a majority of the inhabitants according to the testimony of Reissman. As a matter of fact, this would exceed Reissman’s “guess” as to total population of the area. The fallacies in this approach are obvious. There is nothing whatever in the statutes on incorporation indicating that a single signer, or any number less than all those living in a household, represents or binds everyone in the household. This would be necessary in order for us to sustain this rather unusual theory, for which appellees cite no authority. Furthermore, I do not consider Reissman’s testimony to be substantial evidence of the number of households in the area. To be substantial, evidence must be valid, legal and persuasive. Arkansas Pollution Control Com’n. v. Coyne, 252 Ark. 792, 481 S.W. 2d 322. The conclusion of a witness is not substantial when he gives no satisfactory explanation how he arrived at it and leaves the fact finder to speculation and conjecture in arriving at its conclusion. Arkansas State Highway Com’n. v. Byars, 221 Ark. 845, 256 S.W. 2d 738. Reissman’s testimony on this point was speculative, at best.

The only substantial evidence as to the number of inhabitants in the Shannon Hills area is the testimony of Dunkum and Higgins. The lowest number of households which would be indicated by this testimony is 441. The census figures, or at least the figure used by Dunkum, would indicate that there were 1411 inhabitants of the area. If this were the case, then 706 signatures would have been required. Even if Reissman’s guess were considered, for 227 signers to constitute a majority, less than 500 would have to be translated to mean 453 or less.

I note'that the last portion of the petition necessary to the incorporation proceeding was filed June 8, 1977. The water company billings in July appear to have been the next billing after the filing of the petition. In spite of the fact that there was testimony that several houses are being built each month, there was no testimony that would indicate that the number of households in July, 1977, was more than double the number in that area as early as May 18, 1977, the first day any of the petitions were filed. This fantastic increase would have been necessary to a finding that 227 signers constituted a majority of the inhabitants calculated according to the only substantial evidence.

Appellees argue that appellants have no grounds for appeal to this court because they failed to ask that the trial court make specific findings of fact pursuant to Ark. Stat. Ann. § 27-1744 (Repl. 1962). None of the cases cited by appellees support that argument and I know of no authority that would.

I also disagree with the majority’s treatment of the testimony of the county clerk. This testimony \vas not admitted in the trial court. Most of it constituted a proffer only. I agree with the trial judge that when the whole of this testimony is considered, it was rank speculation or the expression of an opinion only. It was without any satsifactory explanation, and should not be considered substantial evidence.

I would reverse the judgment.

I am authorized to state that Mr. Justice Holt joins in. this opinion.

       The trial court in Wrightsville v. Walton, supra, with reference to the statute stated: “This simply means that upon its adjudication in Circuit Court, the court must be satisfied that a majority of the qualified voters inhabiting a proposed town must have indicated their preference for incorporation upon the initial petition filed in the County Court.” The appellee for affirmance also contended that inhabitant simply meant qualified voters. See brief filed on behalf of Fred Walton.


author: Conley Byrd, Justice. John A. Fogleman, Justice.

text:
    Carthal Deane HARPER and Loraine HARPER v. James Dennis CASKIN
    78-301
    580 S.W. 2d 176
    Opinion delivered April 23, 1979
    (In Banc)

      Henry & Graddy, for appellants.
    No brief for appellee.
   Conley Byrd, Justice.

Appellants, Carthal Deane Harper and Loraine Harper, the stepfather and mother of James Dennis Caskin, Jr., a minor, sought to adopt James Dennis Caskin, Jr. without the consent of the minor’s father, appellee James Dennis Caskin. In doing so appellants relied upon Ark. Stat. Ann. § 56-207(a)(2) (Supp. 1977), which provides:

“Consent to adoption is not required of a parent of a child in the custody of another, if the parent for a period of at least one [1] year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree, ...”

The trial court denied appellants’ petition finding that “it has not been shown that the Respondent. . . failed for a period of (1) year, significantly without justifiable cause to communicate with and/or provide care and support for James Dennis Gaskin, Jr.”

The record shows that appellee and appellant, Loraine Harper, were formerly husband and wife. James Dennis Gaskin, Jr. was born to that marriage. Appellee and Loraine were divorced in July, 1973, and Loraine was awarded custody of James Dennis Gaskin, Jr. Loraine married appellant Carthal Deane Harper in December, 1973. A prior petition for adoption was dropped in 1975.

Carthal Deane Harper testified that he had not communicated with appellee in the past two years. He did not remember receiving any support from appellee since January of 1977. He did not know of any communications his wife may have had with appellee.

Loraine Harper, the natural mother, testified that she did not recall communicating with appellee between Christmas of 1976 and the filing of the petition in March, 1978. The last child support she received from appellee was $100 in January, 1977. She remembered calling appellee once in North Carolina, but she did not remember the date. Appellee had visited with the child three or four times since April of 1978. She is presently under court orders to let appellee visit with the child.

Carolyn Caskin, the wife of appellee, testified that Mrs. Harper called her landlord in North Carolina in June of 1977 but that Mrs. Harper refused to talk to her when she called Mrs. Harper back. The Gaskins sent $50 in July, 1977, when appellee was in the hospital. Appellee, while in the Armed Services, developed epileptic seizures in October, 1976, and was in and out of the hospital during 1977. Appellee was severed from the Marines in October, 1977, with a lump sum payment of $19,000. Appellee is now an out patient at the V.A. Hospital in Little Rock. Mrs. Caskin says that she and appellee had visitation problems with Mrs. Harper. They did not contact her about visitation upon returning to Little Rock in November, 1977, because they thought it would do no good. When they did visit, Mrs. Harper required that the visiting be done in Mr. Harper’s home. Appellee is still having seizures and has been unable to obtain employment since his discharge.

Appellee testified that he made his child support payments in 1975 and 1976. He last visited the child Thanksgiving, 1975. Mrs. Harper has prevented him from seeing the child since that time. Mrs. Harper called him in June, 1977, and told him that she needed $300 because the child was sick. At the time he was in the hospital receiving only one-half pay; he sent $50 in July, 1977. He could only communicate with his child through Mrs. Harper. He did not ask to speak to the child because he thought it would do no good. He had had three seizures since returning to Little Rock in November 1977, and has been an out patient from the V.A. Hospital since returning to Little Rock. He is not presently working and has no income. He has visited the child four times since April, 1978. He says the child is entitled to V.A. benefits, but Mrs. Harper told him she was not interested in V.A. benefits.

On rebuttal Mrs. Harper said she had been reluctant to let the child visit with appellee over night because he was not properly cared for on one occasion when he was sick.

In arguing that the trial court erred, appellants accentuate the small amount of child support paid during the 12 months preceding the filing of the petition and the lack of communication and argue that under the statute, supra, they are entitled to adopt without the parent’s consent when the parent has “substantially” failed in his legal duty to be a parent for a period in excess of one year. In making their contentions, appellants overlook the provision of the statute which requires that the parent’s failure to support and communicate be “without justifiable cause. . . .’’They also overlook the heavy burden of proof placed upon one wishing to adopt a child without the consent of the parent, i.e., by clear and convincing evidence. See In re Cozza, 163 Cal. 514, 126 P. 161 (1912) and In Re Adoption of Porras, 13 App. Div. 2d 239, 215 N.Y.S. 2d 778 (1961).

With respect to the burden cast upon one wishing to adopt a child against the consent of a parent, 2 Am. Jur. 2d Adoption § 60 states:

“The judge before whom an application or petition for adoption is brought must determine from extrinsic evidence whether, under the circumstances of the case, the consent of the natural parent of the child is necessary to adoption, and if required whether that consent has been given. In order to grant an order or decree of adoption in opposition to the wishes and against the consent of the natural parent, the conditions prescribed by statute which make that consent unnecessary must be clearly proven and the statute construed in support of the right of the natural parent. Natural rights of parents should not be passed over lightly, even though the court is given power to enter decree of adoption without the consent of the parent or guardian when the judge considers that the best interests of the child will be promoted. The law is solicitous toward maintaining the integrity of the natural relation of parent and child, and where the absolute severance of the relation is sought without the consent and against the protest of the parent, the inclination of the courts is in favor of maintaining the natural relation.
Where the controversy is whether the parent has abandoned the child so as to dispense with the necessity of his consent, the burden of proof is on the petitioner to justify the adoption on that ground, and it is often said that the evidence to show abandonment must be clear and convincing. ...”

In 2 C.J.S. Adoption of Persons § 96 under the title “Weight and Sufficiency of Evidence” the matter is stated:

“In an adoption proceeding contested by a natural parent the facts justifying the adoption must be established by clear and convincing evidence.”

In People ex rel. Buell v. Bell, 20 Ill. App. 2d 82, 155 N.E. 2d 104, the burden is stated:

“. . . Adoption, which affects the course of inheritance, deprives the child of the place in which it was placed by nature, and by force of law thrusts the child into another relationship, while severing conclusively the rights and interests of the natural parents, is a very different, and more drastic matter than a change of custody; the rights of natural parents to their children must not be terminated unless a clear and convincing case is made in strict compliance with the adoption statute. ...”

In Re Cozza, 163 Cal. 514, 126 P. 161 (1912), the burden on one wishing to adopt a child without the consent of a parent is stated:

“The power of the court in adoption proceedings to deprive a parent of his child being in derogation of his natural right to it, and being a special power conferred by the statute, such statute must be strictly construed, and in order to warrant the exercise of the special power and sustain an order for adoption made in opposition to the wishes and against the consent of the natural parent on the ground that conditions prescribed by statute exist which make that consent unnecessary, the existence of such conditions must be clearly proven, and the evidence bring them within the terms and intent of the statute. The law is solicitous toward maintaining the integrity of the natural relation of parent and child, and in adversary proceedings in adoption, where the absolute severance of that relation is sought, without the consent and against the protest of the parent, the inclination of the courts, as the law contemplates it should be, is in favor of maintaining the natural relation. ...”

When we consider that the failure of the parent must be without justifiable cause, we cannot say that the trial court erred in holding that appellants had not sustained the heavy burden of proof placed upon them.

Affirmed.

Harris, C.J. and Fugleman, J., concur.

John A. Fogleman, Justice.

I concur in the affirmance of the judgment denying the petition for adoption, because I, cannot say that the finding that it had not been shown that the natural father’s failure to communicate or to provide care and support for the child was without justifiable cause is clearly against the preponderance of the evidence. I feel that the portion of the opinion relating to the quantum of proof required is not only unnecessary to the decision, it is also an issue raised by the court and decided without the benefit of adversary advocacy.

Ordinarily, when there is a division of authority and the majority of the court elects to follow a majority rule or the weight of authority, i feel that I should accept that position. In this case, I cannot accept the requirement that there must be clear and convincing evidence to show that the consent of a parent to an adoption may be dispensed with in considering a petition for the adoption of his child, although I can readily accept that rule a17 applicable where the consent is rendered unnecessary because there has been an abandonment. The very word “abandonment” requires such a construction. It has been defined to mean:

“To relinquish or give up with the intent of never again resuming or claiming one’s rights or interests in; to give up absolutely; to forsake entirely; to renounce utterly; to relinquish all connection with or concern in; to desert, as a person to whom one is bound by a special relation of allegiance or fidelity; to quit; to forsake.”

See, Walthall v. Hime, 236 Ark. 689, 368 S.W. 2d 77 (1963); Woodson v. Lee, 221 Ark. 517, 254 S.W. 2d 326. See also, Hyde, Ex’rs. v. Hyde, 240 Ark. 463, 400 S.W. 2d 288. Both Walthall and Woodson were adoption cases, based upon our adoption statute then in force. See Ark. Stat. Ann. § 56-106 (Repl. 1971). We have never quite reached the point of requiring proof of abandonment by a parent by clear and convincing evidence. In Woodson, we quoted from a California case [In re Cordy, 169 Cal. 150, 146 P. 532 (1940)], which also involved an abandonment statute similar to our statute then in effect. The effect of the holding by the California court was that every intendment should be in favor of the non-consenting parent in an adversary proceeding where absolute severance of the natural relation of parent and child is sought without the consent, and over the protest, of the parent, because the inclination of the courts is in favor of maintaining the natural relation. In treating “intendments” in pleadings, it has been said:

The meaning of intendment is that, allowing an averment to be true, but at the same time a case may be supposed consistent with it which would render the averment inoperative as a full defense, such case shall be presumed, unless specifically excluded by particular averments. ***

Detroit, L. & N. R. Co. v. McCammon, 108 Mich. 368, 66 N.W. 471 (1896).

Intendment has also been given definitions such as: inclination, disposition, meaning, signification, intention, design, purpose, significance; the true or correct meaning of something. Webster’s New International Dictionary, 2d Edition; Webster’s Third New international Dictionary; The Random House Dictionary of the English Language. Intendment of law has been defined as: the true meaning, the correct understanding, or intention of the law; a presumption or inference made by the courts. Bouvier’s Law Dictionary (Rawle’s 3rd Revision). Thus, the effect of Woodson would be no greater than the creation of a presumption favoring the parent or the requirement that all inferences deducible from the evidence be drawn favorably to the parent. This would do no more than require that the petitioner for adoption assume the burden of proof and that the court draw inferences favorable to the parent, much as the Workmen’s Compensation Commission does in favor of a claimant.

On the other hand, we have recognized that it is widely held that clear, unequivocal and decisive evidence is required to establish abandonment of property. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W. 2d 848. So, insofar as our statute still requires abandonment, I could readily accept the requirement of clear and convincing evidence under our previous statute, and on an allegation of abandonment under the present one, even though neither case cited by the majority really supports its position. The court neither said nor held that a petitioner for adoption must show that a parent’s consent is not necessary by clear and convincing evidence in In re Adoption of Porras, 13 A.D. 2d 239, 215 N.Y.S. 2d 778 (1961). All the court said was that the burden placed upon the petitioner to establish abandonment by the natural parent was a heavy one. In re Cozza, 163 Cal. 514, 126 P. 161 (1912), from which the majority quotes, is a case in which, unlike this one, abandonment was the principal ground relied upon for avoiding the necessity of parental consent. The California court said that it would be a waste of time to point out that the evidence did not show desertion and that it was so clearly shown that there was no abandonment that the matter ought not to be open for discussion. Thus, the portion of that opinion quoted by the majority, if not dictum, affords poor support for requiring that significant failure to communicate be shown by clear and convincing evidence.

A drastic change was made when the Revised Uniform Adoption Act [Ark. Stat. Ann. §§ 56-201 — 56-221 (Supp. 1977)] went into effect on July 5, 1977. See § 22, Act 135 of 1977. In the new act, the General Assembly added a ground for dispensing with the requirement of consent, although the provision as to abandonment was retained. This proceeding, however, does not involve Ark. Stat. Ann. § 56-207(a)(1), under which consent of a parent who has abandoned a child is not required. A much less stringent standard for dispensing with consent was added to our adoption iaw by Ark. Stat. Ann. § 56-207(a)(2). Under that subsection, consent of a parent of a child in the custody of another is not required if the parent, for a period of at least one year, has failed significantly without justifiable cause, either to communicate with the child or to provide for its care and support as required by law or judicial decree. It seems to me that the addition of this ground was a recognition of the fact that, while parental rights are important, they are not more important, or to be given more emphasis, than the rights of children.

The Commissioners’ note to the applicable section of the Revised Uniform Adoption Act certainly suggests that there was an intention to impose a less stringent standard than would be required to show abandonment. It is recognized in other jurisdictions that non-support and desertion are less drastic breaches of parental obligations than abandonment. Stalder v. Stone, 412 Ill. 488, 107 N.E. 2d 696, 35 ALR 2d 653 (1952); Smith v. Smith, 67 Idaho 349, 180 P. 2d 853 (1947); Lout v. Whitehead, 415 S.W. 2d 403 (1967). Under statutes similar to Ark. Stat. Ann. § 56-207 (a) (2) relating to the parent’s failure to support the child, there is quite respectable authority that the burden of the petitioner is met by proof by a preponderance of the evidence. Khafaji v. Meitzen, 429 S.W. 2d 174 (Tex. Civ. App., 1968); Jordan v. Hancock, 508 S.W. 2d 878 (Tex. Civ. App., 1974); In re Adoption of Wright, 15 Ohio Misc. 354, 240 N.E. 2d 923 (1968).

Requiring a greater quantum of proof than a preponderance of the evidence for showing that a parent has failed significantly and without justifiable cause to either communicate with his child or to provide for its care and support as a substitute for that parent’s consent does emphasize parental rights and deemphasize the child’s rights. The parent-child relationship involves reciprocal rights and obligations. They are not reciprocal when the rights of a parent are elevated above both his own obligations and his child’s rights.

Many other jurisdictions hold that the rights of the parent must yield to the rights and interests of others in view of the requirement that the welfare and best interests of the minor should at all times be controlling in adoption proceedings. Hamilton v. Rose, 99 So. 2d 234 (Fla. 1957); Stearns v. Allen, 183 Mass. 404, 67 N.E. 349 (1903). It is widely held that the welfare and best interests of the minor child are the dominant, primary and paramount consideration and the rights and wishes and feeling of the natural parents and the petitioners for adoption are secondary, subordinate and subservient thereto. In re Adoption of Morrison, 260 Wisc. 50, 49 N.W. 2d 759 (1951); In re Neusche, 398 S.W. 2d 453 (Mo. App., 1965); Palmisano v. Baltimore County Welfare Board, 249 Md. 94, 238 A. 2d 251 (1968); Rhodes v. Shirley, 234 Ind. 587, 129 N.E. 2d 60 (1955); Galloway v. Galloway, 249 S.C. 157, 153 S.E. 2d 326 (1967). In elaborating upon the duty of the courts, even appellate courts, to protect the rights of minor children, the South Carolina Court said:

It has been broadly stated that under adoption proceedings there are four interested parties: (1) The minor child; (2) the parents or those standing in place of the parents; (3) the party seeking to adopt; and (4) the state. Undoubtedly, the person standing highest in interest is the child, and when adopted its status for life is entirely changed.

The Massachusetts Supreme Court has said that the interest of natural parents, important as it is, must yield when it is in conflict with the best interest of the child. In re Adoption of a Minor, 343 Mass. 292, 178 N.E. 2d 264 (1961).

When the new statute provided a more liberal basis for dispensing with parental consent, the majority rule, the weight of authority and our previous holdings on the question of abandonment became much less significant. We should look to the decisions of those states which have adopted the uniform act.

In North Dakota, a state which has adopted the uniform act, the Supreme Court, speaking of parental rights in Kottsick v. Carlson, 241 N.W. 2d 842 (N.D., 1976)), stated:

*** The relationship of parent and child consisting of a bundle of essential human rights necessary for the preservation of society must be carefully balanced and jealously guarded.

The Supreme Court of Montana (where the original uniform act was substantially adopted) considered parental obligations in Conley v. Walden, 166 Mont. 369, 533 P. 2d 955 (1975) and reached the following conclusion:

The general obligations of parenthood include these minimum standards: 1) Express love and affection for the child. 2) Express personal concern over the health, education and general welfare of the child. 3) The duty to supply the necessary food, clothing and medical care. 4) The duty to provide an adequate home. 5) A duty to give social and religious guidance. ***

We have also recognized specific parental duties and obligations which are indicative of a correlative right of the minor child. The parent has a legal and moral duty to support and educate his child and to provide the necessities of life to it and to give it those advantages which are reasonable, considering the parent’s financial condition and position in society. Bostic v. Bostic, 229 Ark. 127, 313 S.W. 2d 553; Kuespert v. Roland, 222 Ark. 153; 257 S.W. 2d 562; Brown v. Brown, 233 Ark. 422, 345 S.W. 2d 27; Central Manufacturers’ Mut. Ins. Co., v. Friedman, 213 Ark. 9; 209 S.W. 2d 102, 1 ALR 2d 557; McDaniel v. Brandon & Baugh, 168 Ark. 1063, 272 S.W. 670; Bockman v. Bockman, 202 Ark. 585, 151 S.W. 2d 99; Alcorn v. Alcorn, 183 Ark. 342, 35 S.W. 2d 1027; Aaron v. Aaron, 228 Ark. 27, 305 S.W. 2d 550; Sain v. Smith, 254 Ark. 720, 495 S.W. 2d 865. The courts will zealously enforce these duties. Jordan v. Wright, 45 Ark. 237; Waller v. Waller, 220 Ark. 19, 245 S.W. 2d 814. They are derived from principles of natural law and are owed both to the child and to the public. Jordan v. Wright, supra; Johnson v. Mitchell, 164 Ark. 1, 260 S.W. 710.

In Oklahoma, where the original uniform act was adopted in 1957, the primary inquiry in adoption is whether it will promote the best interest of the child. In re Adoption of Greer, 463 P. 2d 677 (Okla. 1970). In Montana, the best interests of the child are of utmost concern in adoption cases. In re Adoption of Biery, 164 Mont. 353, 522 P. 2d 1377 (1974).

It is important that the “best interests of the child” in adoption cases take on a meaning different from that accorded it as a term of art in granting custody in a divorce action. In an adoption proceeding under the uniform act, the term includes among other things, the “total relationship between child and parent pertaining to, and involving heterogeneous values, rights, duties and concepts.” Kottsick v. Carlson, 241 N.W. 2d 842 (N.D. 1976). The North Dakota court indicated that the grounds for termination of parental rights “must rest upon the attitude, conduct, ability and such other matters relating to the parents’ duties, responsibilities and care for the child which may be, and frequently are, collectively referred to as ‘fitness.’ ” The best interest of the child does not require that it be placed in the wealthiest home, but it should be in the home which, all things considered, is available and will promote the welfare of the particular child. In re Neusche, 398 S.W. 2d 453 (Mo. App. 1965). The matter has been put in appropriate perspective in Florida, where in Jones v. Allen, 277 So. 2d 599 (Fla. App., 1973), the court said:

We hasten to add, however, that the mere fact that strangers might make better parents or that they might be in a better financial position than the natural parents is not in and of itself sufficient even where it is manifestly clear that the child might be better off in the proposed new environment. Were these the only tests to be employed it would be quite possible for absolute strangers to arbitrarily choose any child of any parents poorer and/or less moral than themselves and, simply by following the procedures in the adoption statute, walk away with the child.
Of course, circuit judges are not likely to let this happen absent an additional showing that the natural parents have failed to carry out their parental duties to the child in some substantial way and have neglected or shown disinterest in the welfare of the child. This is plainly as it should be as we perceive the law.

If the parents’ duties and obligations are so important and so zealously guarded by the courts, why should it be necessary to require that default by having “failed substantially” be proved by more than a preponderance of the evidence? On appeal, determination of the trial court in an adoption proceeding as to what is in the best interest of the child will stand where there has been no abuse of discretion. In re Neusche, supra. In Arkansas, in probate court procedures, the scope of review and all other matters relating to appellate review are controlled by the law and rules applicable to appeals in equity cases. Ark. Stat. Ann. § 62-2016 (g). A Missouri court has spoken on the significance of such a requirement in an adoption case, In re E.C.N., 517 S.W. 2d 709, viz:

In this case it is our duty to review the record, as in actions of equitable nature, upon the law and the evidence, and reach our own conclusions, giving due deference to the trial court on questions of credibility. Unless the judgment is clearly erroneous and in conflict with the clear preponderance of the evidence, it should not be lightly disturbed.

Even in Oklahoma, where the statute requires a wilful failure or refusal to support, the supreme court has held that it will not reverse the findings of the trial court applying the rule of preponderance of the evidence, unless they appear, after examination of the record to be clearly against the weight of the evidence. DeGolyer v. Chesney, 527 P. 2d 844 (Okla. 1974); Wade v. Mantooth, 417 P. 2d 313 (Okla. 1966); Davis v. Neely, 387 P. 2d 494 (Okla. 1963), cert. den. 379 U.S. 2, 85 S. Ct. 31, 13 L. Ed. 2d 21 (1964).

I find no sound basis for a “clear and convincing” evidence rule and no reason why the typical de novo review in equity cases is not adequate for protection of the rights of both parent and child.

I am authorized to state that the Chief Justice joins in this opinion.

       The rule of strict construction of the California adoption statute stated in Cordy was disapproved because it was inconsistent with the rationale of other decisions and because the court had declared that the purpose of later statutes was the promotion of the welfare of children, bereft of the home and care of their real parents. In re Barnett’s Adoption, 54 Cal. 2d 370, 354 P. 218, 6 Cal. Rptr. 562 (1960).

       It should be noted, however, that in Hendrix, we merely held that we could not say that the chancellor’s holding that there had been no abandonment of the real property involved was clearly against the preponderance of the evidence.

       In Smith, it was pointed out that an adjudication of abandonment cannot be based upon non-support. And, similarly, neglect is somewhat short of wilful neglect. In re E.C.N., 517 S.W. 2d 709 (Mo. App., 1974).