text:
    McPherson v. Hicks.
    5-2079
    338 S. W. 2d 201
    Opinion delivered September 19, 1960.

      Macom & Moorhead and James Ross, for appellant.

      D. A. Clarke, for appellee and cross-appellant; Smith & Smith, J. F. Wallace, Botts & Botts, J. B. Gillison, Robert B. Gibson, Bridges $ Young, Lloyd B. McCain, W. 3. Howard, for appellee intervenors.
   Ed. F. McFaddin, Associate Justice.

This litigation results from dealings between the appellant McPherson and the appellee Hicks involving a rice mill and also a farm. McPherson owned a rice mill in McGreh.ee, which he had operated under the name of “McPherson Bice Milling Company.” He also owned a farm in Desha County known as the “Hally Farm.” Under date of May 1, 1956 McPherson, as lessor, and Hicks, as lessee, entered into a contract involving the rice mill. Hicks took possession of the rice mill and all contents, and operated the plant under the name of ‘ ‘ Hicks Grain Elevator and Bice Milling Company”; and in the course of the operation he incurred debts to various creditors, hereinafter called “Interveners”. In addition to leasing the rice mill Hicks subsequently leased the Hally Farm from McPherson for 1956 under an oral contract, which is also involved in this litigation.

After December 31, 1956 Hicks remained in possession of the rice mill, but on July 23, 1957 McPherson filed in the Desha Circuit Court an action of unlawful detainer against Hicks to recover possession of the rice mill, the claim being that Hicks had failed and refused to pay the 1956 rent, had otherwise breached the lease, and had failed to vacate after due notice. The complaint prayed for possession and judgment for rent and damages. By specific attachment all the grain in the mill was attached. McPherson took possession of the plant and all contents; and then, on August 12, 1957, McPherson filed a second amendment to the unlawful detainer action, alleging:

‘ ‘ That during the periods of time mentioned in said Complaint, the plaintiff advanced from time to time large sums of money to defendant to be used by said defendant in the operation of said business mentioned in said complaint. That the defendant on many occasions made payments on said loans, but at this time is indebted to this plaintiff on said account for an undetermined amount of money.
“That said account, along with the account mentioned in said Complaint for rents due, is involved and includes numerous charges and credits and will require an accounting between said parties to determine the aetual amount due this plaintiff by the defendant. That said accounting should include the entire operation of said business operated as ‘Hicks Grain Elevator and Rice Milling Compan3^’ for the times mentioned in said Complaint.
“This plaintiff has been unable to obtain an accurate and just accounting of said operations, or of the open account between said parties set out above, and this Court should order an accounting of said accounts.”

This Amendment was accompanied by a Motion to transfer to equity on the ground that the cause, “. . . will involve a multiplicity of actions, and will also involve an accounting between the plaintiff and defendant for the operation of a large and complex business, and that said accounting will necessarily be made up of innumerable charges and credits and a Receiver will be needed to take charge of the assets of the business involved.” The entire cause was transferred to equity over Hicks’ objection; and he preserved his objections by Motion to re-transfer to law; and this point will be discussed in Topic I, infra, captioned: “Hicks’ Objection To Trial In Chancery. ’ ’

In the Chancery Court, various creditors of Hicks Grain Elevator and Rice Milling Company intervened and prayed for judgment against McPherson and Hicks individually and against the assets of the Hicks Grain Elevator and Rice Milling Company. On trial in the Chancery Court all of these interventions were allowed as against Hicks and the assets of the rice mill, and in addition the Chancery Court awarded the Arkansas Power & Light Company a judgment against McPherson individually for a part of the power account. McPherson claims that it was error to allow the parties to intervene, that it was error to subject the assets of the Hicks Grain Elevator and Rice Milling Company to the payment of judgments, and that it was error to render personal judgment against him in favor of the Arkansas Power & Light Company. These matters will be discussed in Topic II, infra, captioned: “The Interventions ’ ’.

In the Chancery trial there were also claims and counterclaims between McPherson and Hicks in regard to the operation of the Hally Farm, as well as the rice mill. In the final decree from which comes this appeal, there were certain allowances in favor of McPherson and certain allowances in favor of Hicks, and there is either an appeal or a cross appeal on these matters, which will be discussed in Topic III, infra, captioned: “The Accounting”.

I. Hicks’ Objection To Trial In Chancery. After Hicks surrendered possession of the rice mill McPherson filed a pleading asking for an accounting between himself and Hicks, and that the cause be transferred to equity. The Circuit Court transferred the entire case to Chancery; but the Chancery Court retransferred the unlawful detainer action to the Law Court, and retained the accounting angle of the case. The Chancery Court thereby gave Hicks his right to a jury trial in the unlawful detainer action. In Cortiania v. Franco, 212 Ark. 930, 208 S. W. 2d 436, we said that an unlawful detainer action should proceed in the Law Court independent of any other suits between the parties: “They could not, by interposing equitable claims, convert the unlawful detainer action into another form of proceeding, because other forums were open to them.” That an accounting was needed between McPherson and Hicks is shown by the enormous record in this case; and the accounting could, and did, proceed in Chancery, separate from the unlawful detainer action. We cannot see how Hicks’ right to jury trial in the unlawful detainer action has been prejudiced by the Chancery Court hearing the accounting suit; and we conclude that, in accordance with Cortiania v. Franco, supra, the unlawful detainer action was properly remanded to the Circuit Court, and that the allegations for the accounting gave the Chancery Court jurisdiction to proceed as it did.

II. The Interventions. In his operation of the Hicks Grain Elevator and Rice Milling Company, Hicks incurred indebtedness with various creditors who were allowed to intervene, prove their claims, and recover judgments against the proceeds of the rice, oats, and other products in the plant. McPherson denied that he was a partner with Hicks in the business and denied that the interveners had any claim on any of the assets of the Hicks Grain Elevator and Rice Milling Company so as to be superior to McPherson’s claim. He contends that his judgment against Hicks is prior and superior to the interventions because he had a special attachment.

We see no merit in McPherson’s contention. The evidence in this case probably would have supported a Chancery finding that McPherson was liable to all the creditors as a partner of Hicks; certainly as a partner by estoppel if not inter se. But the Chancellor took the view that when McPherson surrendered the grain elevator and its contents to Hicks on May 1, 1956, McPherson thereby allowed Hicks to receive credit on such assets, i.e., rice, oats, and other contents, and therefore McPherson could not defeat the claims of the creditors who had extended credit to Hicks on the faith of these assets in his possession. The Chancellor reached the correct conclusion. In Pearce v. Chas. J. Upton Co., 210 Ark. 524, 196 S. W. 2d 761, a mother had entrusted her business affairs to her son who had operated as though he were the real owner. He incurred personal indebtedness, and pledged assets of his mother’s business. She sought to recover these assets from a third party but such recovery was refused by this Court. We quoted from Judge Eakin’s opinion in Jowers v. Phelps, 33 Ark. 465, and the full text is more emphatic than the mere quotation:

“A party who by his acts, declarations, or admissions, or by failure to act or speak under circumstances where he should do so, either designedly, or with willful disregard of the interests of others, induces or misleads another to conduct or dealings which he would not have entered upon but for this misleading influence, will not be allowed, afterwards, to come in and assert his right, to the detriment of the person so mislead. That would be a fraud. But it is difficult to define special acts or conduct which in all cases would amount to an estoppel. Generally it is said that if the owner of the property, with a full knowledge of the facts, stands by, and per mits it to be sold to an innocent purchaser, without asserting his claim, he will be estopped.”

We have a number of cases applying the rule of estoppel against the owner of property who stands by and knowingly allows a third person to sell the property under claim of title and who neither asserts title nor gives the purchaser any notice. Danley v. Rector, 10 Ark. 211, 50 Am. Dec. 242; Haffke v. Hempstead County Bank, 165 Ark. 158, 263 S. W. 395. See also 19 Am. Jur. 667 et seq., “Estoppel” § 56; and 31 C.J.S. p. 310, “Estoppel” § 91. Such rule is applicable in the case at bar. The evidence shows that while Hicks was operating the rice mill McPherson was at the mill from one to ten times a day, gave orders around the plant, and on one occasion ordered supplies which were charged to him and which Hicks claims to have repaid. Certainly McPherson knew that Hicks’ creditors were looking to the assets of the rice mill. Under these facts, McPherson is estopped to assert his claims as superior to the claims of the creditors of the Hicks Grain Elevator and Rice Milling Company.

That portion of the account of the Arkansas Power & Light Company which was incurred while Hicks was in charge of the rice mill (before July 23, 1957), was allowed against the assets of the rice mill; and such holding was correct, in view of what we have just stated. That portion of the account of the Arkansas Power & Light Company which was incurred after McPherson took possession of the rice mill (on July 23, 1957) was allowed as a personal judgment against McPherson. The Chancery Court was correct in so doing: because after McPherson took possession of the plant and continued to allow electric service to be furnished to it, he certainly became individually liable for such account.

We affirm the decree of the Chancery Court in all the intervention matters.

III. The Accounting. The accounting between McPherson and Hicks involved both the rice mill and the Hally Farm; and the correctness of the Chancery decree in this accounting matter consumes the major portion of the testimony and argument. The transcript contains 1690 typewritten pages and the printed abstracts and briefs consume more than 500 pages. The Chancellor made written findings covering 20 typewritten pages, and the decree incorporates these findings. On the direct appeal McPherson claims many errors prejudicial to him; and on the cross appeal Hicks claims many errors prejudicial to him. To list each point and the arguments pro and con, and to review the evidence would extend this opinion to enormous lengths.

It is sufficient to say that we have carefully examined all the claims and counterclaims and find only one in which error has been shown. That one relates to a judgment of $1,509.75 against McPherson. In rendering such judgment the Chancellor said: “The 125,430 pounds of rice had a market value of $4.50 per hundredweight when the defendant could have sold it and applied the proceeds to the intervenors’ claims or become an asset of the business entity. The plaintiff is liable for the difference between the price the rice would have sold for and the price it did sell for, or a total of $1,509.75.” Hicks did sell some rice of $4.50 per hundred-weight but it was only a small lot and he admitted that at the time of such sale he was not prepared to sell the remaining rice on hand. Furthermore, we find no evidence that the 125,430 pounds of rice had a market value at any time of $4.50 per hundred-weight. There is testimony that some of this rice was of low grade and the value of the 125,430 pounds was not shown by evidence sufficient to make McPherson liable for damages for failure to sell, or allow the rice to be sold, at any particular time. The result is, that the $1,509.75 judgment against McPherson on this rice item is reversed and set aside. In all other respects the Chancery decree is affirmed, both on direct appeal and cross appeal; and the cause is remanded to the Chancery Court for further proceedings in accordance with this opinion. The costs of this appeal are assessed one-half against the appellant and one-half against the appellee Hicks.

       Some of the provisions of the contract were:
      “1. Lessor,... does hereby let, lease and demise unto the lessee, for the term beginning the 1st day of May, 1956 and ending the 31st day of December 1956, the following land and property in Desha County, Arkansas, to-wit:
      “That property known as the McPherson Rice Milling Company of McGehee, Arkansas, consisting of all land, buildings, machinery and equipment, used for storage, drying, cleaning, milling and any other services necessary and suitable to the operation of said milling company.
      “2. Lessee agrees to pay and lessor agrees to accept as rent, . . . the net income from drying, cleaning, storage, processing and milling. Net income for the purpose of this agreement is defined as the total income from said services less the expenses necessary and incidental to the production of said income and said expenses to include $500.00 per month fee to be paid lessee for management services. Major repairs, new construction and depreciation on buildings, machinery and equipment shall not be considered an operating expense for the purpose of this agreement. . .
      “9. If lessee shall fail or refuse to pay the rentals aforesaid at the times and in the manner set out or to do or perform any other of the covenants on his part herein contained or shall violate in any particular any of the conditions hereof or make an assignment for creditors, or a receiver be appointed for lessee, lessor may at his option declare the lease terminated, have the right to enter upon and take possession of said property and premises, either with or without notice, and evict and expel the lessee in any or all of his property, belongings and effects therefrom without process of law and without being guilty of any manner of trespass either at law or in equity, and without prejudice to any remedies or rights which he may for the collection of any delinquent rents, possession, damages, or otherwise. And no delay in the exercise of the option aforesaid by the lessor shall be deemed a waiver of his right to exercise the same at a later time.”
      Originally the parties contracted for the lease to end December 31, 1957; but by subsequent written contract between the parties the period was shortened so as to expire at all events on December 31, 1958. We have used the earlier date for purposes of clarity.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Gardner v. Farmers Electric Co-op. Corp.
    5-2125
    338 S. W. 2d 206
    Opinion delivered September 19, 1960.

      Hout Thaxton, for appellant.

      Kaneaster Hodges and John M. Lofton, Jr., for appellee.
   George Rose Smith, J.

This is an action by tbe appellant for personal injuries resulting from a severe electrical shock. At tbe close of tbe plaintiff’s proof tbe trial court directed a verdict for the defendant. Tbe principal question is whether tbe plaintiff’s evidence made a case for tbe jury.

At tbe outset tbe appellee asks that tbe judgment be affirmed on account of tbe appellant’s failure to abstract any of tbe testimony beard in tbe court below. Tbe appellee, however, has sufficiently supplied tbe defect to enable us to pass upon tbe principal issue, and consequently we determine the case upon its merits. See Supreme Court Rule 9 (e).

Gardner, the appellant, was employed by Allbright Brothers Construction Company, a firm of contractors. Allbright maintained a storage yard for heavy equipment in an open field near Newport. The storage yard was crossed by the appellee’s high-voltage distribution lines, the lowest line being 17 feet 8 inches above the ground.

On the day of the accident Allbright’s employees were using a winch truck, equipped with a boom, to pick up and move heavy objects on the storage yard. It was Gardner’s job to fasten the cable to the object being shifted about and to guide the article during its movement. As a heavy sledge was being moved in this fashion the upper five inches of the boom came in contact with the appellee’s line. An electric current traveled down the cable being held by Gardner and inflicted severe and extensive burns to his body.

The complaint alleged that the appellee was negligent in maintaining its line in violation of the minimum clearances fixed by Rule 232A of the National Electrical Safety Code, which seems to be a set of regulations adopted by the electrical industry. The rule cited in the complaint provides minimum clearances for overhead wires in five specific topographical situations, one of which is the crossing of “driveways to residence garages.” In that situation the minimum height for the lines is twenty feet. It is conceded that Allbright’s storage yard did not contain either a driveway or a garage and so did not fall within the literal language of the rule relied upon.

In this court the appellant argues that the safety code evidently could not enumerate all the countless varieties of terrain crossed by overhead lines. Hence, it is suggested, the five physical situations described in the code should be interpreted as representative types, each applying to all other situations most nearly similar to it. Upon this theory it is contended that a storage yard is more comparable to a residential driveway than to any of the other four situations; therefore such a yard calls for a minimum overhead clearance of twenty feet.

In view of the record before us we cannot justify a reversal of the trial court upon the appellant’s theory. The complaint contained a specific allegation of negligence, that the appellee maintained a high-voltage line in violation of the clearances set forth in Rule 232A of the code. The appellee, acting upon a reasonable construction of the complaint, was entitled to (and apparently did) prepare its defense upon the assumption that the plaintiff would attempt to bring the case within one of the five situations described in Rule 232A. These situations included the crossing of wires over railroad tracks, public streets and alleys, driveways to residential garages, and spaces accessible to pedestrians only. The plaintiff’s proof, as we have seen, did not bring the case within any of the specific situations covered by the rule.

The alternative theory now urged by the appellant is not covered by the allegations of the complaint, for this theory does not involve a violation of Rule 232A. Instead, it involves a violation of a common law duty of ordinary care, with the safety code provision as to residential driveways having evidentiary value by way of analogy. It appears from the appellee’s abstract of the testimony that the plaintiff offered some expert testimony tending to support his present theory. The court did not err in sustaining an objection to this proof, as ordinarily it is not error to exclude evidence relating to an issue not pleaded. Bluff City Lbr. Co. v. Hilson, 85 Ark. 39, 107 S. W. 161. The court might, in its discretion, have permitted a new issue to be introduced during the progress of the trial, Manufacturers’ Furn. Co. v. Read, 172 Ark. 642, 290 S. W. 353; but we perceive no abuse of the court’s discretion. See also Jonesboro Coca-Cola Bottling Co. v. Holt, 194 Ark. 992, 997, 110 S. W. 2d 535. At the end of the plaintiff’s case the court ruled that the code provision relating to wires crossing residential driveways was not applicable to this case. In response to the court’s inquiry about additional evidence the plaintiff’s counsel elected to stand upon their pleadings and proof. In these circumstances no reversible error has been shown.

Affirmed.


author: Paul Ward, Associate Justice. Carleton Harris, Chief Justice, Ed. F. McFaddin, Associate Justice,

text:
    Ark. Association of County Judges v. Green.
    5-2145
    338 S. W. 2d 672
    Opinion delivered September 19, 1960.
    [Rehearing denied October 24, 1960]

      A. James Linder and William 8. Arnold, for appellant.

      Reed Williamson, Roy Canaday, Charles R. Garner, for appellees.
   Paul Ward, Associate Justice.

This is a class action brought in the Chancery Court by citizens and taxpayers of Ashley County to enjoin the County Judge of said county from paying dues (and making other contributions) to the Arkansas Association of County Judges, and asking for a refund of such payments theretofore made. The trial court granted the injunctive relief and rendered judgment for the previous payments, but refused authorization of execution against the association. The association now prosecutes this appeal.

The pertinent facts are not in dispute.

The defendants in the class action, filed January 29, 1957, were: W. T. Higginbotham, County Judge of Ashley County (hereafter referred to as Judge); The Arkansas Association of County Judges (a non-profit corporation hereafter referred to as Association), and; Arthur Carter, Secretary of the Association (hereafter referred to as Secretary).

The complaint contains, in substance, the following essential allegations: (a) The Association is a nonprofit corporation organized February 10, 1948; (b) On January 29,1957, the Secretary (both individually and acting for the Association) conspired with the Judge to fraudulently,, willfully and maliciously deprive the taxpayers of Ashley County of county funds in that he presented a claim in the amount of $50, on behalf of the Association, for “Magazine Legislative Work”; (c) All said mentioned parties knew the claim was false, fraudulent and illegal, and that it constituted a fraud on the taxpayers of Ashley County; (d) The Judge (individually and as County Judge), knowing the claim to be false, approved the same and directed the issuance of a warrant in payment thereof; (e) As a direct and approximate result of the aforementioned transaction the Secretary, while acting on behalf of himself and the Association, unlawfully accepted and collected Warrant No. 101 in the amount of $50 from the Ashley County Clerk and thereafter presented said warrant to the County Treasurer, who paid the same contrary to law on January 31, 1957; (f) All the defendants knew at the time that the said $50 were to he used for them in the interest of said Association and were not to be used for any authorized or legitimate county purpose nor in payment of any goods furnished or service rendered to Ashley County; (g) The defendants will continue to conspire and to present illegal, false, and fraudulent claims in behalf of themselves and said Association, to Ashley County and the Judge will continue to allow said illegal claims unless enjoined by order of the court, and, therefore, plaintiff’s remedy at law is inadequate, and; (h) Plaintiffs believe and allege that the defendants, acting together, have allowed and paid other false, fraudulent and illegal claims of the Secretary and the Association, and all of said defendants should be ordered to account to these plaintiffs for the use and benefit of themselves and all other citizens, residents and taxpayers of Ashley County for all money previously received by the Secretary and the Association. The prayer of the plaintiffs was that this court enjoin the defendants from presenting, allowing, paying and accepting payment for any and all such false, fraudulent and illegal claims; that they be ordered and directed to account to these plaintiffs for all similar funds heretofore received; that judgment be entered against the defendants in the amount of $50 plus any other such false and illegal claims, and; for such equitable and proper relief to which the plaintiffs may he entitled. (Emphasis supplied.)

Appellants filed a demurrer to the above complaint on the ground that the Chancery Court had no jurisdiction. Upon the demurrer having been overruled appellants filed an answer in which they admitted presenting the said claim for $50 and also admitted the payment of said sum and receipt thereof. All other allegations in the complaint were specifically denied. The answer further stated that the Judge, in allowing said claim, acted in his judicial capacity and his action thereon is not subject to review by the Chancery Court. Thereafter, and before the decree was rendered, the defendants filed an Objection to Judgment under the provision of Ark. Stats. § 27-615.

On a hearing before the Chancellor it was shown that, in addition to the $50 item mentioned above other payments of a like nature, some of which were barred by the statutes of limitation, were also made to the Association. It appears that these payments were made for dues to the Association, for advertisement in the association’s magazine, and for “legislative work”.

For convenience and clarity the points relied on by appellants for reversal will be discussed under the following classification and in the order named: (a) The Chancery Court had no jurisdiction; (b) The Objection to Judgment should have been sustained, and; (c) The claims were legal and should have been allowed.

(a) Jurisdiction. It is here argued that the County Court, in passing on a claim presented to it, acts in a judicial capacity, citing Hutson v. States, 171 Ark. 1132, 287 S. W. 398, Farmer v. Franklin County, 179 Ark. 373, 16 S. W. 2d 10, and Logan County v. Anderson, 202 Ark. 244, 150 S. W. 2d 197. It was pointed out that, under Article 7, Section 51 of the Arkansas Constitution and Arkansas Statutes, § 27-2001, the proper remedy is to appeal to the Circuit Court, citing the Anderson case supra; Ladd v. Stubblefield, 195 Ark. 261, 111 S. W. 2d 555, and; Monroe County v. Brown, 118 Ark. 524, 117 S. W. 40. Appellants however concede some exceptions to the above rule particularly when an illegal exaction is involved and where the judgment of the County Court is procured through fraud, asserting that in this case there is no illegal exaction, or illegal tax involved and also that no fraud has been shown.

We must agree with appellants that there is nothing in the record to justify a finding that appellants acted with any fraudulent intent. On the other hand, the record reveals that they acted in accordance with legal advice and in accordance with the custom or usage followed in other counties. In other words, we find nothing to show that appellants were not acting in good faith for what they considered to be to the best interest of Ashley County. In our opinion, however, the complaint is based upon the theory of an illegal exaction, and that it is not necessary that an illegal tax be involved. In the case of Lee County v. Robertson, 66 Ark. 82, 48 S. W. 901, the court was dealing not with an illegal tax but with a question of an illegal use or appropriation of county funds. At page 87 of the Arkansas Reports, this statement was made: “The order of reappropriation was tantamount to an allowance and enforcement of an illegal exaction against every taxpayer of the county. Each taxpayer was therefore individually interested in such order.” Article 16, Section 13, of the Arkansas Constitution provides that: “Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.” (Emphasis supplied.) This court has many times construed the above constitutional provision but has never limited its application to an illegal tax but has uniformly construed it to apply to an illegal exaction as heretofore defined. In the case of Ward v. Farrell, 221 Ark. 363, 253 S. W. 2d 353, under facts somewhat analogous in principle to the facts of this case, in referring to the above mentioned constitutional provision, the court quoted with approval the following:

“This court has construed that provision to mean that a misapplication by a public official of funds arising from taxation constitutes an exaction from the taxpayers and empowers any citizen to maintain a suit to prevent such a misapplication of funds.”
“There is eminent authority for holding, even in the absence of an express provision of the Constitution, such as referred to above, that a remedy is afforded in equity to taxpayers to prevent misapplication of public funds on the theory that the taxpayers are the equitable owners of public funds and that their liability to replenish the funds exhausted by the misapplication entitle them to relief against such misapplication.”

Appellants’ contention that since appellees had a right to appeal to the Circuit Court which provided them an adequate remedy at law, the Chancery Court has no jurisdiction can not be sustained. Such an argument was presented and rejected in the Farrell case, supra. Equity jurisdiction may also be invoked to avoid a multiplicity of suits which would otherwise result. In the case under consideration it is not denied that several payments of the nature here complained of have been made over a period of years not only in Ashley County but in other counties, and the complaint alleges that many more such efforts will be attempted in the future.

Thus it is seen that jurisdiction in this case, as it relates to injunctive relief, may be open to doubt, but we do not believe it is necessary to resolve that exact issue here. The question of whether the several counties can expend public funds to support the Association is the prime issue. It is a matter that affects the general public and one that should be resolved for future guidance of all concerned. Therefore we feel justified in treating appellees’ petition (insofar as it relates to injunctive relief) as one for a declaratory judgment. We did this, and for much the same reason, in the case of Culp v. Scurlock, Commr. of Revenues, 225 Ark. 749, 284 S. W. 2d 851. It was there said:

‘ ‘ It is suggested by the appellee’s pleadings and brief that the issuance of a writ of mandamus would not terminate the dispute, since the form of retail permit used by the revenue department merely authorizes the holder to sell cigarettes, without reference to the matter of taxation. Even so, the complaint may equally well be treated as one for a declaratory judgment — a remedy peculiarly appropriate to controversies between private citizens and public officials about the meaning of statutes. ’’ (Citing authorities)

It was there also said:

“Since the effect of a declaratory judgment in this case will be to terminate an actual controversy in a matter of public interest, it is manifestly desirable that the case be decided on its merits. ’ ’

We will proceed, therefore, to examine the other points relied on by appellants.

(b) Objection to Judgment. It is pointed out by appellants that this action was brought in Ashley County against the County Judge, who of course was a resident of that county, but that the other defendants were nonresidents of the county. It is also stated that no judgment was rendered against Judge Higginbotham. Appellants’ Objection to Judgment was filed under Ark. Stats. § 27-615, which provides, generally, that there can be no judgment rendered against non-resident defendants if none is rendered against the resident defendant. We cannot sustain this contention. The statute referred to above states that “the person should not be entitled to judgment against any of them (defendants) on the service of summons in another county court . . .” (Emphasis supplied.) In the case under consideration the “other” defendants were not served with a summons but voluntarily came into court and filed a demurrer, an answer and a motion. Under these circumstances the appellants are not entitled to the protection of the statute. In the case of Federal Land Bank of St. Louis v. Gladish, 176 Ark. 267, 2 S. W. 2d 696, the court said:

“A court acquires jurisdiction over the person of a plaintiff whenever the plaintiff appears and invokes the power or action of the court in any manner, and when the defendant voluntarily appears in any case and, without objection, proceeds, the court thereby acquires jurisdiction over his person, whether any summons was issued or served or not.”

It is well established by the decisions of this court that although the parties to a suit cannot by agreement confer jurisdiction of the subject matter upon the court, they can by agreement waive improper venne. In the case of Arkansas State Racing Commission v. Southland Racing Corporation, 226 Ark. 995, 295 S. W. 2d 617, this court recognized “the settled rule that an objection to venue is waived by a defendant who enters his appearance by the filing of a demurrer . . .” Again the court in that case said: “The statute providing that suits against State officers and boards must be brought in Pulaski county relates only to venue, not jurisdiction, and falls within the general rule that the issue of improper venue may be waived.”

(c) Was the Claim Legal. The important question involved in this litigation concerns the legality of the claims filed by the Association for payment by Ashley County. Appellant makes the assertion that said claims were valid but cites no authorities and makes no extended argument to support that assertion. In this connection appellant relies principally on the proposition that Ashley County has received substantial benefits from the activities of the Association and that, therefore, said claims should be sustained upon a quantum meruit basis. This argument could apply only to payments already made but has no application to future claims of like nature. It is noted here (and will be referred to later) that appellees’ complaint covers two separate and distinct matters. One, it seeks to recover payments already made; and, two, that other claims will be filed and paid which should be enjoined.

Our own research, assisted by the briefs, reveals no constitutional or other legal ground for sustaining claims of the nature here involved.

In the case of Allen v. Barnett, 186 Ark. 494, 54 S. W. 2d 399, this court said: Here it is not contended that the Constitution or any statute gives the county court specific authority to pay dues to the Association. The only question then is: Is such authority implied? We think the answer must be in the negative. Former decisions of this court support this view. In Pressley v. Deal, County Judge, 192 Ark. 217, 90 S. W. 2d 757, the quorum court of Cleburne County appropriated $300 to pay the county judge’s expenses. The claim was filed and allowed by the county judge. A citizen and taxpayer intervened and appealed to the Circuit Court where it was also allowed. On appeal this court reversed the County Court on the ground that there was no statute authorizing such claim. Likewise in Johnson v. Donharn, 191 Ark. 192, 84 S. W. 2d 374, we held that there was no authority in the law for the county court to purchase a law library for the use of the prosecuting attorney.

‘ ‘ The county court is a creature of the Constitution, and it is not to be doubted that it has only such power as is expressly granted by the Constitution and statutes in aid thereof, or which are necessarily implied from the authority conferred.”

In the Pressley case, supra, this court, in construing subdivision No. 7 of Section 1982 of Crawford & Moses’ Digest (the same as Ark. Stats. § 17-409), said: “It will be noticed that the other expenses mentioned for which an appropriation may be made must be such ‘as are allowed by the laws of this State.’ ” The legislature has passed numerous statutes giving counties the authority to expend money for a variety of purposes, such as: To purchase a flag pole (Ark.- Stats. § 17-501); to publish reports of county officers (Ark. Stats. § 23-408); for a county planning board (Ark. Stats. § 17-1101); to pay county defense attorneys (Ark. Stats. § 43-2415) and to pay Municipal Court expenses (Ark. Stats. § 22-720). In none of these and many other instances was it considered that the expenditures were “necessarily implied.” In like manner we are unwilling to say now that the expense of financing a County Judges Association is a necessarily implied obligation of the counties — in this instance, of Ashley County. It is easy to see how it could lead to extreme abuse of the use of county funds to hold otherwise.

We agree with appellant that the Chancery Court had no jurisdiction to order repayment of claims already allowed. In the absence of fraud (and we think no fraud was shown here) the remedy was by appeal to the Circuit Court. See: Art. 7 § 33 Constitution, Ark. Stats. § 27-2001, and Jones v. Capers, 231 Ark. 870, 333 S. W. 2d 242.

Since, as before stated, we treat the petition as one for a declaratory judgment, and in view of what we have already said, it was not appropriate for the Chancellor to enjoin the Association from filing claims and the Judge from allowing the same. These are matters involving judicial procedure and should be decided on the peculiar facts of each case. The trial court did have authority to enter a declaratory decree, and it should have done so, in accordance with this opinion, thereby setting at rest the present controversy. Therefore the case is remanded for the entry of such a declaratory decree.

Modified and remanded with directions.

Johnson, J., not participating.

Harris, C. J., and MoFaddin, J., dissent.

Carleton Harris, Chief Justice,

dissenting.

In my opinion, the decree of the Chancery Court should be reversed.

We have repeatedly held that a county court, in allowing claims against the county, acts judicially, and its judgments are not open for collateral attack except for fraud or lack of jurisdiction. See Monroe County v. Brown, 118 Ark. 524, 117 S. W. 40. Certainly, the county court had jurisdiction. As stated in Ladd v. Stubblefield, 195 Ark. 261, 111 S. W. 2d 555:

‘ ‘ The county court, and that court only, has the power to allow claims against the various funds involved in this controversy. ’ ’

The court very clearly held in that opinion that the county court had jurisdiction of the subject matter, i.e., allowing claims.

Nor is there any finding by the Majority in this case that the claim was fraudulent. In fact, the Majority state:

“We must agree with appellants that there is nothing in the record to justify a finding that appellants acted with any fraudulent intent. ’ ’

Further, from the majority opinion:

“We find nothing to show that appellants were not acting in good faith for what they considered to be to the best interests of Ashley County.”

Therefore, in accordance with the language cited in Monroe County v. Brown, supra, since the county judge acted judicially in approving the claim here in question, and this Court has said there was no fraud, the judgment (allowance of claim) was not open to collateral attack. Rather, the correct remedy, by any taxpayer feeling aggrieved at the allowance of such claim, was by appeal to the Circuit Court. This is the remedy provided by our Constitution. Section 51, Article 7 of the Constitution of the State of Arkansas provides:

“In all cases of allowances made for or against counties, cities or towns, an appeal shall lie to the circuit court of the county, at the instance of the party aggrieved, or on the intervention of any citizen or resident and taxpayer of such county, city or town, on the same terms and conditions on which appeals may be granted to the circuit court in other cases; and the matter pertaining to any such allowance shall be tried in the circuit court de novo.”

In view of the citations herein set out, I am strongly of the opinion that the Chancery Court was without jurisdiction to hear this cause. This is the first point raised by appellants, and since I consider this argument well founded, a discussion of the merits of the cause is unnecessary. In my view, the Chancery Court was without power to issue an injunction in this case, and I deem it appropriate to add that the very fact that this Court has seen fit to change the nature of the proceeding, treating it as a petition for declaratory judgment, is evidence enough that appellees pursued an improper remedy.

Ed. F. McFaddin, Associate Justice,

dissenting.

My dissent is along the same line as that taken by Chief Justice Harris.

1. I am of the opinion that equity jurisdiction cannot be invoked by appellees since they should have resisted the claim in the County Court and appealed to the Circuit Court from any decision adverse to their views.

2. Furthermore, I am of the opinion that this Court should not “reform” the present case to treat it as a declaratory judgment proceeding. Sometimes it is permissible to so “reform” cases, but this is not such a case.

3. Finally, I do not understand the majority opinion as saying that a claim such as this $50 item can never be allowed if the Legislature should pass a law (like Act 331 of 1935 or Act 44 of 1927), authorizing County Courts to pay such a claim as the $50 item here involved. I make this observation because I am reasonably confident that the Legislature will pass such an act when its attention has been called to the holding of the majority in this case.


author: Carleton Harris, Chief Justice.

text:
    Raines v. Richter.
    5-2185
    338 S. W. 2d 331
    Opinion delivered September 26, 1960.

      W. M. Herndon and H. B. Stubblefield, for appellant.

      Spitzberg, Bonner, Mitchell é Hays, for appellee.
   Carleton Harris, Chief Justice.

This is a will contest. Mary Gavet, a resident of Little Rock, died on July 19, 1959, at the age of 82. Mrs. Gavet had executed a will on April 14,1953, wherein certain bequests were made to various institutions and individuals, the bulk of the estate, including real estate located at 806 Center Street in Little Rock, being bequeathed and devised to Theresa Korte Raines, appellant herein. Mrs. Raines was not related to Mrs. Gavet, but had been a good friend for a long number of years. This will was turned over to Mrs. Raines, named co-executrix in the instrument, by Mrs. Gavet, together with a codicil, executed in 1955, and remained in possession of appellant until after the death of Mary Gavet. On October 23,1956, Mrs. Gavet executed a second will, wherein all former wills were revoked, and some twenty-eight bequests were made to institutions and individuals, including a bequest to appellant in the amount of $4,000. C. H. Richter and Warren Baldwin of Little Rock were named executors. Item 12 of this will, which occasions the present litigation, provides:

“12. At the present time I own and reside in my home place, which contains rental units, located at 806 Center Street, Little Rock, Arkansas. If I am the owner of this property at the time of my death, I direct that the Roman Catholic Bishop of the Diocese of Little Rock be given the first opportunity to buy the property at its fair market value. If the Bishop elects to make an offer for the purchase of the property, the court having jurisdiction of my estate shall pass upon the reasonableness of the offer and shall direct the sale of the property to the Bishop if the court determines that the offer represents fair market value of the property at the time.”

Following the death of Mrs. Gavet, Mrs. Raines offered the 1953 will and the 1955 codicil for probate; subsequently, the 1956 will was offered for probate. Following a hearing, at which numerous witnesses testified, the Probate Court found that the testamentary dispositions executed by Mrs. Gavet on April 14, 1953, and December 14, 1955, “are not the last will and testament of the decedent”; and admitted to probate the will dated October 23, 1956. From the order refusing to admit to probate the earlier instruments, and admitting the latter will, Mrs. Raines brings this appeal. For reversal, appellant relies upon two points:

“I.
‘ ‘ The execution of the 1956 will was procured through undue influence at a time when deceased did not possess testamentary capacity.
“II.
‘ ‘ Deceased was mentally incompetent to execute a will on October 23, 1956.”

I.

The proof reflected that the title to property on either side of 806 Center Street was held by the Catholic Bishop of Little Rock, and the evidence reflected that the Bishop, through Richter, had endeavored on several occasions over the years, to purchase Mrs. Gavet’s property. Mrs. Gavet did not consent to sell the property. Mrs. Raines contends that undue influence was exercised over Mrs. Gavet by Harry Richter, as agent of the Bishop; next, by the attorney who prepared the 1956 will, as an agent of the Catholic Church ; and finally, by “somebody” — “I’m saying she was influenced to make this will by somebody, because she would not have done it.” When interrogated as to her reason for stating that the attorney who prepared the will exercised undue influence, and that such attorney represented Bishop Fletcher, appellant answered: “Just because I believe that is what it is. * * * I know that somebody influenced her.” She then mentioned several priests that she thought exercised undue influence over deceased, but when asked her basis for making this statement, said: “Well, those are the people it would be since she did it. Somebody influenced her, and those are the people it would be since she did it. Those are the people that are closest connected to it that I could put a finger on.”

Appellant admitted on cross-examination that she did not know whether Richter ever mentioned anything to Mrs. Gavet about the provisions of her will. The only other person testifying on behalf of appellant, whose testimony even remotely touched the issue of undue influence, was Beatrice Anthamatten. Mrs. Anthamatten testified that Mrs. Gavet did not want the Bishop to have her property, and told her (Mrs. Anthamatten) that she was leaving her place to “the one that has done the most for me. The Bishop has never raised his hand for me. ’ ’ The witness testified that Mrs. Gavet stated that her deceased husband would not have wanted the property sold to the Bishop. “They felt that they had done enough for the church.” She stated that Richter had tried to purchase the property several times from Mrs. Gavet, and that these conversations would always upset the latter. This is the sum total of the evidence offered by appellant on this point, and obviously falls far short of establishing undue influence. In fact, appellant was unable to point to any specific person who suggested the disposition of the property as made in the 1956 will — or any specific act of undue influence. Mrs. Raines simply feels that undue influence must have been exercised, because, in appellant’s view, Mrs. Gavet would not have otherwise thusly disposed of the property. In Dunklin v. Black, 224 Ark. 528, 275 S. W. 2d 447, this Court quoted with approval from the case of McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590, as follows:

“As we understand the rule, the fraud or undue influence, which is required to avoid a will, must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specially directed toward the object of procuring a will in favor of particular parties.”

We find no merit in this contention.

II.

The record reflects that Mrs. Gavet was declared incompetent on July 3,1957, some eight months after the 1956 will had been executed. Evidence on behalf of appellant discloses that she underwent an operation in the latter part of 1954, and another in the summer of 1955. She suffered a broken hip in December of 1955, and was hospitalized until the middle of the following January. From January 13th through May, Mrs. Gavet lived with Mrs. Raines. Six witnesses, in addition to the latter, testified at the hearing in behalf of appellant, namely, Beatrice Anthamatten, heretofore referred to, and her daughter, Margaret Rose Anthamatten, a registered nurse, both of whom were long time friends of Mrs. Gavet; Josephine Branscum, who took care of Mrs. Gavet from October, 1957, until May, 1958; Addie Thomason, a tenant of Mrs. Gavet’s; Fred Perry, an acquaintance of Mrs. Gavet for the last fifteen years of her life; and Dr. Elizabeth D. Fletcher, a physician of Little Rock specializing in psychiatry. Testimony from the lay witnesses was to the effect that during the year 1955, Mrs. Gavet became confused, disorientated (in that she did not seem to realize where she was living), was unable to carry on a coherent conversation, suffered a loss of memory, and did not recognize people she had known for a long period of time; several of the witnesses stated that Mrs. Gavet was of the opinion that her mother (who had been dead for many years) was living in the house with her. Further, according to some of the witnesses, though she had formerly been a quiet, kind, and religious person, Mrs. Gavet became loud, “almost wild”, would curse, and Margaret Rose Anthamatten testified that she called the Catholic priest a vile name; that she underwent a complete personality change. Dr. Fletcher testified that she saw Mrs. Gavet on October 12, 1957, December 26, 1957, and January 1,1958. The Doctor stated that she found the patient to be a very sick woman, physically and mentally; that she was psychotic, incompetent, suffering from arteriosclerosis, both generalized as well as the cerebral type. Dr. Fletcher was emphatically of the opinion that Mrs. Gavet was not mentally competent in October, 1956 (a year prior to the first visit of the doctor), to make a will, and that probably she had been incompetent for several years. However, on cross-examination, Dr. Fletcher admitted that the rate of progress of arteriosclerosis varies considerably in different patients.

Mrs. Raines testified that Mrs. Gavet was not mentally capable of making a will after she left appellant’s home in the latter part of May, 1956, and stated that the names of some of the legatees of the 1956 will were listed incorrectly by Mrs. Gavet, though the latter had known these legatees quite well.

In contrast to this testimony, Edward L. Wright, attorney of Little Rock, testified that his first professional contact with Mrs. Gavet was in 1953 when he prepared a will for her, covering her property in France; that in July of 1956, in response to her request, he went to her residence, and obtained the information for a will relating to her American property. Mrs. Gavet gave him complete information about her property and the bequests she desired to make, entirely from memory, without any sort of written memorandum. The witness stated that he had never represented Bishop Fletcher, nor any of his predecessors. Mr. Wright testified that Mrs. Gavet made it plain to him, that though she was grateful to Mrs. Raines for personal ministrations following the breaking of her hip, the testatrix was apprehensive that appellant was seeking to “get her property”; further, she did not want her will in the physical custody of Mrs. Raines. The Attorney stated that he had known Mrs. Gavet quite well, and there was no question in his mind as to her complete mental competence to make the will. Subsequently, on October 19th, Mrs. Gavet called Mr. Wright and desired to make some small changes in the July 27th will. Since he was scheduled to be away from the city the following day, his partner, Wayne Upton, was requested to draft the new will. These changes did not relate to the property at 806 Center Street, for the provisions of the July 27th instrument and the October 23d instrument, relative to that property, are identical. Mr. Upton, and James D. Storey, who witnessed both wills, testified that Mrs. Gavet was very alert, and apparently clearly understood what she was doing. This testimony was concurred in by Robert Schults and Alston Jennings, who witnessed the will of October 23d.

Daisy Pinkley, one of Mrs. G-avet’s tenants, testified that, in her opinion, deceased was competent throughout 1956, though she began to have hallucinations after returning from the hospital in 1957. Judge and Mrs. Audrey Strait of Morrilton, who had known Mrs. Gavet for a long number of years, and who visited with her a number of times throughout 1956, testifi ed that she appeared entirely rational, and discussed business matters on a clear basis. She always recognized both, and Judge Strait testified that Mrs. Gavet expressed the desire that the church acquire title to the 806 Center Street property. Mrs. Strait testified that during the visits in the latter part of 1956, Mrs. Gavet appeared as normal as ever.

Dr. Amail Chudy, engaged in general medical practice in North Little Rock, and Dr. Jerome S. Levy, a physician of Little Rock, specializing in Internal medicine, testified in behalf of appellee. Dr. Chudy expressed the opinion that Mrs. Gavet was competent in 1956, and stated that she seemed to be rather alert for a person of her age. Dr. Levy, likewise, commented as to her alertness in 1956, and observed no evidence of mental confusion until she entered a hospital in June, 1957.

The competency — or incompetency — of Mrs. Gavet was, of course, entirely a fact question, and the testimony was in irreconcilable conflict. We have frequently stated, —so frequently as to require no citation of authority,— that we will not disturb the findings of a Chancellor on a question of fact, unless such findings are clearly against the preponderance of the evidence. In the case before us, we think the evidence fully supports the findings of the trial court. This is not a case wherein a beloved and close relative is left destitute for the benefit of strangers. Rather, though Mrs. Raines was not a blood relative, she was left a substantial bequest of $4,000. For that matter, the property in question was not devised to the Bishop of the Catholic Church; instead, he was only given the opportunity to purchase it, and only then, after the Probate Court passed upon the reasonableness of his offer, and determined that it represented a fair market value of the property.

Summarizing, we are of the opinion that the weight of the evidence reflects that Mrs. Gravet was entirely competent to execute a will on October 23, 1956, and that the provisions of the will so executed on that date, were arrived at by her own mental processes, and entirely free from undue influence or duress.

Affirmed.


author: J. Seaborn Holt, Associate Justice.

text:
    Burford v. Upton.
    5-2112
    338 S. W. 2d 929
    Opinion delivered September 26, 1960.
    [Rehearing denied October 31, 1960]

      Spitzberg, Bonner, Mitchell & Hays, for appellants.

      Carl Langston, Paul B. Pendleton, and Moore, Ghowning, Mitchell, Hamilton é Burrow, for appellees.
   J. Seaborn Holt, Associate Justice.

This case comes to this court on appeal and cross-appeal from an award of $113,875.00 to appellees, P. C. Upton and wife for certain lands condemned hy the City of Little Bock for a dam site and water reservoir known as Lake Maumelle. The City acquired 15,000 acres in all for this project but only 975.4 acres, the property acquired from the Uptons, is involved in this litigation. The Uptons contend that the amount of damages awarded to them by the City was insufficient and the City, on the other hand, contends that, in effect, it paid them too much damages.

The record reflects that shortly after World War II, increased population and industrial growth in the Little Bock area made it apparent that an additional supply of water would be needed to supplement the City’s then supply of water from Lake Winona Beservoir. As early as 1947 this need became so apparent that the Little Bock Water Commission employed a firm of engineers to make a study of the possibilities of expanding existing facilities and to determine additional reservoir sites that might be available. Several sites were then considered and a tentative decision was made on another site (called the Congo site) and some land was acquired at that site. The Uptons, as early as 1942, purchased 351 acres in the Maumelle site and acquired additional acreage between 1942 and 1954, prior to the decision of the Waterworks Commission to locate a reservoir in the Maumelle area. In 1945 Upton drilled test holes for a dam position on both sides of the present dam and, during 1947, impounded about 12 to 15 acres of water by building an earthen dam, the purpose being to test the soil under actual reservoir conditions. In 1950 the Uptons employed Max Mehlburger to make a survey to determine the feasibility of creating a lake by a dam at the approximate location of the Commission’s present Maumelle Dam. Mehlburger made an extensive study of the site and concluded that the Maumelle site offered an opportunity to supply a large quantity of good quality water for either municipal or industrial purposes. Three dam sites were suggested in his report, one of which (the Maumelle site) the Commission later acquired through condemnation. After Mehlburger concluded his deductions, Upton began to canvass a number of potential water users, his idea being to build a reservoir and sell water to such users. No successful negotiations were made, however.

Mehlburger was so convinced that the Maumelle River site was the proper one for the City that he asked to be relieved of his employment by the Uptons to be able to present the Maumelle Project on his own to the Commission. Upton acquiesced in this matter and as a result, Mehlburger and Mr. LePever, another Little Rock engineer, offered to make a report on the Maumelle site for the Little Rock Waterworks Commission without charge. This offer was accepted by the Commission without a commitment, and the report of these two engineers to the Commission caused it to consider seriously for the first time the Maumelle site. Thereafter, after further consideration, the Commission employed an independent engineering firm to make a recommendation of the various sites involved, including the Maumelle site, and the report of this firm overwhelmingly recommended the Maumelle site. A bond issue was floated by the Waterworks Commission to finance the project. About the time construction of the Maumelle Dam was to be commenced, the property owners within the Maumelle area and the Commission had reached no agreement as to the value and extent of the land to be taken. At the request of the Commission, and in order not to delay the construction program, the Uptons, on July 5, 1956, granted the Commission permission to take possession of the lands needed for the dam’s construction and when further negotiations failed to bring about an agreement on the price of the land, the Commission filed suit to condemn the land. The trial court, after hearing voluminous testimony and being favored with extensive briefs by both parties, awarded a total of $113,875.00 to the Uptons for the 975.4 acres of land involved here and, as indicated, both parties have appealed from the decree. For convenience of discussion, the various contentions of the parties have been grouped under separate categories.

The Dam Site: It is the rule in this state that private property may not be damaged or appropriated for any public use by any agency, whether state or municipal, without just compensation to the individual. Ark. Const. Art. 2, § 22; Ark. State Highway Comm. v. Partain, 192 Ark. 127, 90 S. W. 2d 968. The generally accepted standard in arriving at just compensation is the fair market value of the property involved. See Orgel, Valuation under Eminent Domain, § 17; Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792. The market value is the value to which the property can best be put, or value for the best use of the property, and not necessarily the use to which the property is presently being put. See Little Rock & Ft. Smith Railway Co. v. McGehee, 41 Ark. 202; Orgel, Valuation Under Eminent Domain, § 30; Yonts v. Public Service Company of Ark., 179 Ark. 695, 17 S. W. 2d 886.

In the case at bar it is contended by the Uptons, and denied by the City of Little Bock, that the highest and best use of the land involved below the 290' elevation was for dam site purposes. The gist of the City’s argument is that an owner should not be allowed to value his land for the very purpose for which the City wishes to condemn the land. In Yonts v. Public Service Company of Arkansas, supra, a dam was to be built in the neck of a gorge. The defendant’s land extended some distance up the gorge and in the valley. This land was to be used for reservoir purposes. The land owned by the Yonts was adapted for a dam site across a creek. The gorge, having almost perpendicular sides, came to a narrow neck and a creek supplying ample water flowed through the gorge and through the lands owned by tbe Yonts. There was other evidence that this was the only suitable place for a dam or reservoir in the area of Booneville. We there said: “* * * the owner had the right to obtain the market value of the land, based upon its availability for the most valuable purposes for which it can be used, whether so used or not. In other words, while the testimony of these witnesses as to the value was admissible, the owners in this case had the right to a judgment for the market value of the land for a damsite and reservoir, and not for agricultural purposes. They had the right to have a judgment for its value based upon its availability as a damsite and reservoir.”

Another case is that of Gurdon & Fort Smith Railroad Co. v. Vaught, 97 Ark. 234, 133 S. W. 1019. The railroad built a roadbed through a gap owned by Vaught. The evidence showed that the defendant’s land was the only feasible place the railroad could lay its tracks for the proposed railroad line due to the mountainous terrain. On the measure of damages we said: “* * * The measure of the compensation which the landowner is entitled to recover from a railroad company which has appropriated same for its right-of-way is the market value of the land so taken. In estimating that market value it is perfectly competent to consider the availability and adaptability of the land for the very purpose for which it is taken by the railroad company as an element of value which would attract any buyer for that purpose.”

We conclude that it was proper in the present case to consider the value of the land as a dam site for the purposes of condemnation.

Bloating Clay Deposits: Up from the dam site and forming the bottom of part of the reservoir is a large acreage of bloating clay from which a lightweight aggregate can be processed and used in the making of building blocks. It is the contention of the Uptons that this clay is extremely valuable and the total award is inadequate because it does not reflect the value of these deposits. On the other hand the City of Little Bock maintains the deposits were comparatively worthless when viewed in the light of other deposits of a similar nature underlying nearly the entire county. Just a sampling of the testimony will show how hotly disputed the issue was.

Mr. Upton, owner of the property in question, stated that he thought the clay deposits were worth $2,055,-000.00 but gave no basis for his opinion. Mr. Bickel, a man of limited experience in the manufacture of lightweight aggregate, testifying for the owner, stated he thought the clay deposits were worth between $754,000.00 if he were representing the buyer and double that figure if he were representing the seller. Mr. Williams, a man engaged in the manufacture of lightweight aggregate in Texas, testifying for the owner, stated he valued the lands at $900,000.00 but on cross-examination revealed that he did not know of the presence of other clays in the county and conceded that the supply might have an effect upon the price paid for land. The last witness for the landowner was Mr. Vaughan, a professional appraiser of extremely wide experience, whose estimate on the value of the clay deposits was $473,000.00.

The following witnesses appeared for the City of Little Rock. Mr. McElwaine, a graduate geologist with many years of experience in locating clay and mineral materials in Arkansas, testified he had investigated the Pulaski County area to determine the availability and supply of bloating clays. On one exhibit alone he showed the presence of 500,000,000 cubic yards of clay, or a 4,444 year supply at the present rate of consumption in the State of Arkansas. A second witness, Mr. Willson, a highly qualified engineer-businessman who has been in the cement and aggregate business most of his life and an engineer acting as vice president of Texas Industries, the largest lightweight aggregate company in the world, whose company operates some 32 plants in the United States engaged in the manufacturing of heavy and lightweight aggregate, ready-mix concrete, concrete pipe, blocks and related concrete lines, testified that in all his experience he had never known of land being purchased for lightweight aggregate purposes other than on the basis of the going value of the land; meaning the price the land is being offered and sold for in the area without regard to the presence of the clay, — the reason being the abundance of such a clay in the mid-western area of the United States.

In view of the highly conflicting testimony which the chancellor had before him and further in view of the fact that the award was a lump sum so that we cannot tell how much consideration the chancellor gave to the clay deposits in arriving at its value, we cannot say that the award was against the preponderance of the evidence either as being excessive, as argued by the City, or as being inadequate as argued by the Uptons. Incidentally, for the same reason we cannot say the chancellor was wrong in fixing the value of the dam site.

Value of Land Taken Above 290' Mark: The Uptons also contend the trial court erred in rejecting certain evidence relative to the value of the land taken above the 290' level because of its alleged enhanced value the lake would create. Again we do not agree. The evidence does not show what amount was allowed for the land taken above the high water mark, or the 290' line. The Uptons further argue that the City condemned and took more land above the 290' elevation than was necessary. We think this contention is without merit. We will not set aside what constitutes an appropriate taking unless there has been an abuse of discretion. See State Game & Fish Comm. v. Hornaday, 219 Ark. 184, 242 S. W. 2d 342; Woollard v. State Highway Comm., 220 Ark. 731, 249 S. W. 2d 564 and Patterson Orchard Company v. Southwest Arkansas Utilities Corp., 179 Ark. 1029, 18 S. W. 2d 1028, 65 A.L.R. 1446. However, here there is an abundance of testimony to show there was a necessity to take acreage above the water mark and along the lake front to prevent pollution of the water from possible sewage affluent and contamination from any undesirable farming practices which might be carried on. Also, a preponderance of the evidence shows that the land taken below the dam is necessary for protection of the dam. We cannot say from a review of the evidence there was an abuse of discretion.

Finding no error, we affirm on both direct and cross-appeal.


author: Sam Robinson, Associate Justice.

text:
    Ark. State Highway Commission v. Covert.
    5-2176
    338 S. W. 2d 196
    Opinion delivered September 19, 1960.

      Dowell Anders, O. Wendell Hall, Jr., Thomas B. Keys, for appellant.

      Ben M. McCray, for appellees.
   Sam Robinson, Associate Justice.

This appeal arises from an action of eminent domain brought by the appellant, Arkansas State Highway Commission, to condemn about one-half acre of land in Saline County belonging to appellees, G. N. Covert and Fannie Covert, his wife. The land was condemned for the purpose of constructing an interchange on Highway 67-70 near Benton.

On January 24,1958, appellant filed a complaint and declaration of taking and deposited $9,500. as estimated just compensation for the land. Upon trial the jury returned a verdict in favor of appellees and fixed their damages at $16,500.

Appellant filed a motion for new trial on the ground that the jury verdict was not supported by substantial evidence. The lower court denied this motion and the sole issue on appeal is whether such denial was error.

Appellees offered the testimony of three witnesses as to the valne of the land. Mr. Covert, the landowner, testified the valne to be $17,500. Mr. John Huchingson, a real estate broker, testified the value to be $16,000 or $16,500. Mr. Fred Harville, a real estate salesman, testified the value to be $15,000. In contrast, appellant offered as evidence the testimony of Mr. Ernest P. Shumaker, the president of mortgage, real estate and appraisal firms, whose value was $9,200, and Mr. Herbert Hooten, an appraisal reviewer for the Highway Department, whose value was $9,500.

Whether there is substantial evidence to support the verdict is a question of law. Ark. State Highway Comm. v. Byars, 221 Ark. 845, 256 S. W. 2d 738; Ark. State Highway Comm. v. Dupree, 228 Ark. 1032, 311 S. W. 2d 791.

Only two of the five witnesses testified that the value of the land taken was as much as the award made by the jury. We must, therefore, examine their testimony to determine if it is of such force as to substantially support this award.

Mr. Covert, who was 78 years of age at the time of trial, testified that he acquired the land in 1945. It is a lot 315' x 80' on which were situated a house and a blacksmith shop. The house was 16' x 50' and contained three rooms and a bath. The blacksmith shop was 30' x 70', constructed of wood, with a paper and sheet roof and a dirt floor. Near the close of Mr. Covert’s testimony, the following occurred:

“Q. Taking into consideration, Mr. Covert, that if you were willing to sell that property and somebody came along willing and able to buy, what would you consider to be the fair market value of the property?
A. $17,500.00.”

As we said recently in Lazenby v. Ark. State Highway Comm., 231 Ark. 601, 331 S. W. 2d 705, the owner of the land being condemned may be allowed to testify regarding the market value of the land if the testimony shows he is familiar with such matters. The record does not reflect that appellee’s right to so testify was questioned.

On direct examination Mr. Huchingson related the location and dimensions of the land and described the improvements. He stated he was familiar with the term “fair market value” as meaning that value arrived at by a seller willing to sell and a buyer willing to buy. He stated the value of the property in his opinion was $16,000 or $16,500.

On cross-examination Mr. Huchingson testified that he arrived at the valuation by using his experience in buying, selling and listing property in Saline County over a period of twelve years. He said there were no sales of similar property with which he could compare appellee’s property. He classified the property as commercial rather than residential and said he figured the property as a unit and did not separate it as to land and improvements. He did not place individual values on the house or blacksmith shop.

This is the type of case that presents one of the most difficult problems this Court must face. It is well established that if there is any substantial evidence to support a verdict, it must be affirmed on appeal. However, whether there is substantial evidence to support the verdict is, as we said earlier, a question of law and not of fact. As we pointde out in the Byars case, supra, the problem becomes more complex in differentiating between any evidence and substantial evidence. Although appellant presents a strong argument to the contrary, we cannot say that the evidence of the two witnesses detailed above does not substantially support the verdict of the jury.

Affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Calvert Fire Insurance Co. v. Hardwicke.
    5-2136
    338 S. W. 2d 329
    Opinion delivered September 26, 1960.

      Gockrill, Laser & McGehee, by Jacob Sharp, Jr., for appellant.
    No brief filed for appellee.
   Ed. F. McFaddin, Associate Justice.

From a decree reforming an insurance policy and rendering judgment for loss claimed, the appellant prosecutes this appeal.

On July 27, 1953 appellee Hardwicke purchased a truck from King Motor Company in Clarksville. For the unpaid portion of the purchase money Hardwicke executed a title retaining note, payable monthly over a period of twenty-four months. The note, dated July 27, 1953 and providing for twenty-four monthly payments, was forthwith assigned by King Motor Company to Commercial Credit Corporation. Included in the note was $143.40 as the amount of the insurance premium which was paid by the holder of the note to the appellant, Calvert Fire Insurance Company. The insurance policy (covering collision damage) issued by appellant Calvert Fire Insurance Company, was dated July 27, 1953, and clearly stated that it expired on July 27, 1955. The policy was delivered to Hardwicke and was at all times in his possession.

On August 4, 1955, after the expiration date stated on the policy, Hardwicke’s truck was damaged beyond repair and he filed this suit in equity to reform the insurance policy so as to extend its expiration date beyond August 4, 1955, and to recover on the reformed policy for the loss he had sustained on August 4, 1955. Trial in the Chancery Court resulted in a decree granting Hardwicke the prayed relief; and this appeal challenges the correctness of such decree.

The appellant claims that the evidence is insufficient to support a reformation of the policy; and such claim requires a statement of the applicable law, and a determination whether the evidence was sufficient to justify reformation. Our cases recognize that an insurance policy, like any other contract, which by reason of mistake in its execution does not conform to the real agreement of the parties, may be reformed in a court of equity. See Phoenix Insurance Co. v. State, 76 Ark. 180, 88 S. W. 917, and cases there cited. But the party seeking to reform the insurance policy must offer testimony that is clear and convincing. See Moline Timber Co. v. Schaad, 181 Ark. 854, 28 S. W. 2d 336.

Under the rules thus stated, we examine the evidence to see if it is sufficient to support the decree rendered. Hardwicke did not establish that there was, in 1953, any mistake as to the date of the beginning and the date of the end of the insurance coverage, i.e., from July 27, 1953 to July 27, 1955. Rather, he claimed that he was subsequently led to believe that the insurance coverage would be extended beyond July 27, 1955 because the Commercial Credit Corporation had agreed to extend the final payment on the title retaining note. If there had been such subsequent agreement it would not have reformed the original policy, but it would be in the nature of an oral agreement to extend the period of the insurance coverage. Even the preponderance of the evidence is against Mr. Hardwicke on this extension theory:

1. The only persons with whom Mr. Hardwicke had any conversations were representatives of the Commercial Credit Corporation, and they were not representatives of the Calvert Fire Insurance Company. Both of these representatives testified unequivocally that they did not make, and could not have made, any agreement with Mr. Hardwicke about extension of the insurance coverage.

2. Mr. Hardwicke offered evidence that the Calvert Fire Insurance Company was owned by the Commercial Credit Company which also owned Commercial Credit Corporation, the holder of the title retaining note; but such evidence, standing alone as it did, was not sufficient to support a decree to pierce the fiction of the corporate entity and make the agents of the Commercial Credit Corporation, ipso facto, the agents of the Calvert Fire Insurance Company. It was definitely established that there was only one person in this State recognized by the Insurance Department of Arkansas as legally qualified to countersign insurance policies for the Calvert Fire Insurance Company; and Mr. Hardwicke did not claim to have even seen or heard of that person.

3. Mr. Hardwicke claimed that after July 27, 1953 the Insurance Department of Arkansas reduced the premiums to he paid on insurance policies like the kind Calvert Fire Insurance Company had issued to Hardwicke, and that, therefore, the reduced rate should apply here so as to extend the period of the Hardwicke policy. But the fallacy of this contention is found in the testimony of a deputy of the State Insurance Commissioner of Arkansas who stated, without contradiction, that the reduced premium applied only to policies issued after September 4, 1953, unless the old policies previously written were surrendered and new policies issued in lieu thereof. Mr. Hardwicke did not claim to have complied with such rule of the State Insurance Department.

After a careful study of all the evidence we are forced to the conclusion that Mr. Hardwicke made no case against appellant Calvert Fire Insurance Company. The Chancery decree is reversed and the cause remanded, with directions to set aside the decree and dismiss the complaint.


author: George Rose Smith, J. George Rose Smith, J.,

text:
    Wheeler v. Harris.
    5-2189
    339 S. W. 2d 99
    Opinion delivered September 26, 1960.
    [Rehearing denied October 31, 1960]

      Boyce Love and Lasley & Lovett, for appellants.

      Wiley A. Branton, for appellee.
   George Rose Smith, J.

This is a suit by the appellants for partition of a 77-acre tract which they assertedly own as tenants in common with the appellee Ernest Harris. Harris defended upon the ground that he had acquired title to the land by adverse possession, and the chancellor so found. The correctness of that ruling is the principal issue on appeal.

The land in question was owned by the parties’ ancestor, E. W. Wheeler, at his death in 1935. By the terms of Wheeler’s will the property was left to his only surviving child, Alberta Johnson, for life, with remainder in eleven equal parts to the testator’s ten grandchildren and to Dess Hampton, the husband of one of the granddaughters. The life tenant had possession of the property until her death in 1942. During her lifetime she purchased an outstanding drainage district tax title to the land, but of course this amounted only to a redemption, as it was her duty to pay the taxes and special assessments. Ark. Stats. 1947, § 84-925; Williams v. Anthony, 182 Ark. 810, 32 S. W. 2d 817; Higginbotham v. Harper, 206 Ark. 210, 174 S. W. 2d 668.

Upon the death of the life tenant in 1942 the right of possession passed to the eleven remaindermen, as tenants in common. As a matter of fact only one of the tenants in common, Ella Hampton, who was the life tenant’s only child, took possession of the property. Without objection from her cousins Ella Hampton held the land until her death, either farming it herself or renting it to others. In 1947 she conveyed twenty acres to her son, the appellee Ernest Harris, who thereafter received the rents from those twenty acres. It is not shown that any of the other cotenants had knowledge of Ella’s deed to the appellee nor of a later deed by which Ella and her son conveyed two acres to a church. Ella died in 1952, and the appellee had been in possession for slightly less than seven years when this suit was filed by the appellants, who are the other nine grandchildren or their successors in title. The other tenant in common, Dess Hampton, was joined as a defendant but made no defense.

In claiming title by adverse possession the appellee must rely upon his own possession and that of his mother, both of whom were tenants in common with the appellants. It is a familiar rule that mere possession by a tenant in common is insufficient to show the necessary element of hostility, for each cotenant has an equal right to occupy the property. For the possession of a tenant in common to be adverse it is necessary that knowledge of his hostile claim be brought home to his cotenants, either directly or by notorious acts of such an unequivocal character that notice may be presumed. Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809; Woolfolk v. Davis, 225 Ark. 722, 285 S. W. 2d 321. Even stronger evidence is required where, as here, a family relationship exists. Staggs v. Story, 220 Ark. 823, 250 S. W. 2d 125.

We consider the proof quite insufficient to establish the claim of title by adverse possession. There is no showing that either the appellee or his mother ever notified the other cotenants, or any of them, that a hostile claim of ownership was being asserted. Nor were there notorious acts of such an unequivocal character that notice must be presumed. Possession alone carries no implication of hostility to the cotenants. Harris and his mother paid the taxes, hut such payments were to be expected in view of their enjoyment of possession and their collection of the rents. The execution of the deeds that we have mentioned added nothing to their claim, as the appellants did not have knowledge of these conveyances and were not required to take notice of instruments outside their own chain of title. Etchison v. Dail, 182 Ark. 350, 31 S. W. 2d 426.

We do not regard as controlling the cases cited by the chancellor and relied upon by the appellee: Jones v. Morgan, 196 Ark. 1153, 121 S. W. 2d 96; Toomer v. Murphy, 198 Ark. 610, 129 S. W. 2d 937; and Hildreth v. Hildreth, 210 Ark. 342, 196 S. W. 2d 353. In those cases the cotenant’s assertion of a hostile claim was strongly supported by proof of positive acts of ownership, such as the making of costly improvements. Here the bare possession of the appellee and his mother stands almost alone, unsupported by affirmative acts that might be considered to be a tacit repudiation of the tenancy in common.

Reversed and remanded for further proceedings.

George Rose Smith, J.,

on rehearing. The appellee insists that we were in error in failing to recognize a distinction as between the twenty acres conveyed to the appellee in 1947 and the rest of the land. It is contended that, in view of the 1947 conveyance, the appellee’s possession thereafter should be considered to have been adverse to his contenants.

This contention is unsound. It is true that if Ella Hampton had executed a deed purporting to convey the entire fee simple in the twenty acres to a stranger to the title, and if the grantee had then openly taken possession, there might have been such an ouster of the other co-owners as to set the statute in motion. Parsons v. Sharpe, 102 Ark. 611, 145 S. W. 537. But that is not this case. During Ella Hampton’s lifetime there was no visible change in the possession of the twenty acres. The appellee testified that even after the 1947 deed his mother continued to collect the rents, accounting to him; he admits that until his mother’s death he did nothing to proclaim his assertion of ownership except pay the taxes. Hence there was no such outward evidence of a possessory change as to put the appellants on notice of a hostile claim.

Rehearing denied.


author: Paul Ward, Associate Justice.

text:
    Keathley v. Yates.
    5-2175
    338 S. W. 2d 335
    Opinion delivered September 26, 1960.

      M. V. Moocly, for appellants.

      Wright, Harrison, Lindsey <& Upton, for appellee.
   Paul Ward, Associate Justice.

This is an automobile collision case in which the appellants (plaintiffs below) secured a jury verdict and now appeal therefrom on the sole ground that the defendant’s attorney committed reversible error in asking a certain question on cross examination of the doctor who was their witness. No facts are in dispute.

On May 30, 1959 appellant, Lucy Keathley, attended by her ten year old daughter, Brenda, while driving her husband’s automobile on 3rd Street in North Little Rock, had a collision with a tractor-truck being driven by appellee, W. J. Yates, Jr. As a result, so it is alleged, Mrs. Keathley and Brenda were injured and the car was damaged. They filed suit in circuit court against Yates to recover for said injuries, and they were joined by Woodrow Keathley (husband of Lucy and father of Brenda) to recover for loss of consortium and for medical expenses. Yates filed an answer, and a trial resulted in the following jury verdicts; for Lucy, $225; for Brenda, $50, and; for Woodrow, $275.

Prom the judgments entered on the above verdicts the Keathleys prosecute this appeal. The Designation of the Record called for only the following; the judgments, the order overruling the Motion for a New Trial, the testimony of Doctor Carruthers (a witness for appellants), and the objections to the cross examination of the said doctor. Appellants’ only point relied on for a reversal reads:

" The lower court erred in not sustaining appellants ’ objections to a highly prejudicial question asked by appellee’s counsel to one of appellants’ witnesses, resulting in the assessment of grossly inadequate damages by the jury to each of the appellants.”

After Doctor Carruthers had testified concerning the extent of the injuries received by Lucy and Brenda and the treatment given therefor the following occurred on cross examination:

Q. “In other words, you mentioned tension in the muscles of the neck causing her continuing discomfort. Is it not the history of cases like this that when the lawsuit is over the patient is relieved and gets much better ?’’
MR. MOODY.
“Object to asking about her actions when the lawsuit is over.”
THE COURT.
“He has laid a foundation for it. Let’s see what the doctor has to say about it?”
Q. “Is it not the history and have not studies been made in injuries of this type that when the lawsuit is over that the patient is relieved and that the patient gets much better?”
MR. MOODY.
“Object to that. He don’t know anything about that. ’ ’
THE COURT.
" Overruled."
MR. MOODY.
“Save our exceptions.”
A. “I don’t know whether they would or not.”
Q. “Haven’t these competent medical studies been made?”
A. “I don’t know.”

Appellants contend that the above question was prejudicial and therefore calls for a reversal. Appellee cites medical authorities tending to show justification for the question, contending that it was a proper one. We do not deem it necessary here to decide the propriety of the challenged question for the reason that no prejudice is shown or appears from the record which justifies a reversal.

The general principle regarding harmless errors frequently announced by this and other courts is well stated in 5A C. J. S., Appeal & Error, page 677, § 1676, in this language: “ It is a fundamental principle of appellate procedure which is universally recognized and applied that a party cannot assign as error that which is not prejudicial to him; and harmless error, that is error unaccompanied by prejudice or injury, is not ground for reversal. ’ ’ The fact that no prejudice resulted here is shown by the negative answer given by Doctor Carruthers, as above set forth. The same contention made here by appellants for a reversal has many times been rejected by this court. In Bodcaw Lumber Co. v. Ford, 82 Ark. 555, 102 S. W. 896, where an admittedly improper question was asked, the court, at page 560 of the Arkansas Eeports, said:

“We see nothing prejudicial in the question, since it was answered in the negative. Though the question was improper, the answer removed all prejudice. Of course, we can imagine a case where an improper question might be repeated often enough to become prejudicial, even though each time it elicited a negative answer. But that was not done in this case.”

For similar announcements by this court see: St. Louis, Iron Mountain & Southern Railway Co. v. Freeman, 89 Ark. 326, 116 S. W. 678; Harrelson v. Eureka Springs Electric Company, 121 Ark. 269, 181 S. W. 922, and Zorub v. Missouri Pacific Railroad Company, 182 Ark. 232, 31 S. W. 2d 421.

It follows from what we have said above that the judgment of the trial court must be, and it is hereby, affirmed.

Affirmed.


text:
    Mason v. Barringer.
    5-2181
    338 S. W. 2d 337
    Opinion delivered September 26, 1960.

      W. W. Shepherd, for appellant.

      Dean R. Morley, for appellee.
   Sam Robinson, Associate Justice.

This appeal arises out of a suit in chancery court brought by appellee, Pearl Barringer by Izóla Ferguson, her next friend, against appellant, John T. Mason, asking that deeds to certain lands in Pulaski County be set aside. The chancellor found that at the time appellee executed same she was incompetent and therefore the deeds should be can-celled. From this ruling appellant has appealed.

In October, 1958, and April, 1959, appellee, an aged Negro woman, executed three warranty deeds conveying eight lots to appellant. She also revoked a power of attorney previously given to a daughter, Frances Smith. Each of the deeds was properly acknowledged and valid on its face.

The chancellor heard the testimony of a number of witnesses, some of whom were relatives and close friends of appellee and had known her for many years. It appears from the record that in 1955 appellee had deeded two of the lots to a third party and appellant had assisted in having that transaction set aside. A great number of incidents were related which support the allegation that at the time the deeds were executed appellee was incompetent. It would serve no useful purpose to recite this testimony here. We cannot say that the finding of the chancery court that the deeds should be can-celled because of appellee’s incompetency at the time they were executed is not supported by a preponderance of the evidence. Fikes v. Lee, 225 Ark. 192, 280 S. W. 2d 230; Oliphant v. Oliphant, 217 Ark. 446, 230 S. W. 2d 653.

Appellant urges, also, that the chancery court should have ordered the return of the consideration paid for the deeds. The chancellor found that this consideration, if any, was either returned to appellant or dissipated by appellee during her incompetency. We cannot say he erred in this finding. First National Bank v. Tribble, 155 Ark. 264, 244 S. W. 2d 33; Reaves v. Davidson, 129 Ark. 88, 195 S. W. 19.

Affirmed.