author: Ed. F. McFaddin, Associate Justice.

text:
    Phillips Co-Operative Gin Co. v. Goshen.
    5-1791
    322 S. W. 2d 68
    Opinion delivered March 23, 1959.

      Wood & Smith, for appellant.

      Thorp Thomas and Tom Gentry, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question is, whether a case was made for the jury. The Trial Court gave an instructed verdict for the plaintiff on the issue of liability, and the defendant has appealed.

The plaintiff, Dewey Goshen, was riding as a passenger in an automobile driven by Richard F. Toll, Sr. on September 27, 1955. There was a collision between the Toll automobile and a truck-trailer driven by W T. Jackson; and Goshen was injured. He sued both Jackson and the Phillips Co-operative Gin Company for damages, alleging that Jackson was, at the time and place of the accident, the “. . . agent and servant, or employee of the defendant, Phillips Co-operative Gin Company, and acting within the scope of his employment. . .”; and that Jackson was guilty of negligence which directly caused Goshen’s injuries.

Phillips Co-operative Gin Company (hereinafter called “Phillips”) and Jackson each separately filed a general denial; and the cause proceeded to trial. In order to hold Phillips liable for Jackson’s negligence, Goshen was, of course, required to show that Jackson was the agent and servant, or employee of Phillips and acting in the scope of his employment. To sustain that burden, Goshen offered two witnesses. He showed by Mr. Calhoun of the Southern Cotton Oil Company: (a) that on the day of the traffic mishap Jackson, driving a truck-trailer, had delivered a load of cottonseed from Phillips to the Southern Cotton Oil Company in Little Bock; (b) that Southern Cotton Company inquired of Phillips to whom to pay the amount for the hauling; (e) that the oil mill paid Phillips direct for the hauling of the load of cottonseed; (d) that on other loads of cottonseed so hauled, the oil mill had paid Phillips direct for the hauling of the cottonseed that had been hauled by Jackson; (e) that the witness did not know what arrangements Phillips had with Jackson for hauling the seed; and (f) that no one else except Jackson had ever delivered cottonseed to the oil mill from Phillips during that season.

Goshen then showed by State Trooper Louis Cone that after the accident Jackson told the officer that he had delivered a load of cottonseed to the oil mill and was going “back home”; that Jackson admitted that he had been drinking some beer with his dinner; that Jackson claimed the truck-trailer was his; and that he had been hauling the cottonseed for Phillips. On direct examination, Officer Cone said that Jackson said he was “working” for Phillips; but on cross-examination Officer Cone said that Jackson had said he was “hauling” for Phillips. Jackson was on Highway No. 30, the direct way both to Jackson’s home and to the Phillips Gin, when the mishap occurred. The testimony of the two witnesses, Calhoun and Cone, plus the exhibits as to checks and memoranda, constituted all the evidence offered by Goshen as to the liability of Phillips. When Goshen rested, Phillips also rested, without offering evidence. Goshen then moved for an instructed verdict, which the Court gave, over Phillips’ objection.

After a careful study, we conclude that the learned Trial Court was in error in giving the instructed verdict. Phillips’ general denial gave it the right to urge to the jury that Jackson was an independent contractor. Hutcheson v. Clapp, 216 Ark. 517, 226 S. W. 2d 546. Our rule is, that in testing the correctness of the Court’s action in giving an instructed verdict, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is directed; and if there is any conflict in the evidence, or if fair-minded men might draw different conclusions from the evidence, it is error to direct a verdict. St. Louis I. M. & S. R. Co. v. Fuqua, 114 Art. 112, 169 S. W. 786. Thus, viewing the evidence in the light most favorable to Phillips, a verdict should have been directed for Goshen only if there was no escape from the conclusion that Jackson was, at the time and place of the traffic mishap, the servant and agent, or employee of Phillips and in the scope of Phillips’ employment. The rule is well established that the drawing of inferences and conclusions from the facts, either controverted or uncontroverted, is for the jury. Wren v. D. F. Jones Co., 210 Ark. 40, 194 S. W. 2d 896; Morgan v. Norful, 222 Ark. 645, 262 S. W. 2d 139.

In giving the instructed verdict in the case at bar, the Trial Court relied on language that we used in the case of Phillips v. Toll, supra, in which we quoted from Warren v. Hale, 203 Ark. 608, 158 g. W. 2d 51, as follows :

“ ‘It is generally held by the courts, including our own, that if the employer claims that an employee is an independent contractor for whose acts he is not responsible, the burden is upon him to show that fact. It was so held in St. L. I. M. & S. Ry. Co. v. Davenport, 80 Ark. 244, 96 S. W. 994 ... In Dishman v. Whitney et al., 121 Wash. 157, 209 Pac. 12, 29 A. L. R. 460, it was held that “Where the facts presented are as consistent with the theory of agency as with that of independent contractor, the burden is on the one asserting the independency of the contractor to show the true relation of the parties.” Many other cases might be cited to the same effect, gee 27 Am. Jur., p. 538, § 59.’ ”

The quoted language related to the burden of establishing to the jury from the evidence offered, whether the person causing the injury was an employee or an independent contractor. The Court in suitable language could have so instructed the jury as to that burden. It was a question for the jury under the facts in the case at bar, because there was neither an express admission, nor direct testimony as to employment. The question was to be determined by drawing inferences and conclusions from the evidence offered. In Olin Mathieson Chemical Corp. v. Shirey, 226 Ark. 530, 291 S. W. 2d 250, in discussing the matter of independent contractor as against master-servant relationship, we said:

“The rule is well established that where fair-minded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question should go to the jury. St. L. I. M. & S. Ry. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786.”

In the case at bar, it was for the jury to find the facts by drawing the inferences and conclusions from the testimony; and the Trial Court erred in refusing to submit that issue to the jury.

The judgment is reversed and the cause remanded.

       In Phillips v. Toll, 228 Ark. 891, 311 S. W. 2d 171, there was involved the liability of Phillips to the estate of Toll, growing out of the same traffic mishap as here involved. In that case, we held that a jury question was made as to the liability of Phillips; but some of the language in that opinion caused the Trial Court to make the ruling here challenged.

       Goshen introduced evidence as to his injuries and damages and Jackson’s negligence; and the sufficiency of this proof is not disputed on this appeal.

       There was no showing as to the hour that the seed had been delivered or what Jackson did after the delivery, except he did admit to the officer that he had been to eat a noon meal and had some beer with it.

         The instruction read: “You are instructed to find for Dewey Goshen and against both defendants, W. T. Jackson and Phillips Cooperative Gin Company, and assess against them such damages, if any, as Dewey Goshen suffered. In determining the amount of damages, if any, to Dewey Goshen, you will take into consideration the conscious pain, suffering and mental anguish if any, endured by Dewey Goshen as a result of his injuries, if any, the medical expenses, if any, occasioned by the injuries to Dewey Goshen and his loss of earnings, if any.” There is a rule that where both sides request an instructed verdict and no other instruction, the instructed verdict given has the force and effect of a jury verdict. General Contract Purchase Corp. v. Row, 208 Ark. 951, 188 S. W. 2d 507; Cortiania v. Franco, 212 Ark. 930, 208 S. W. 2d 436; That rule cannot apply hei’e because; (a) Phillips did not request an instructed verdict; and (b) Phillips offered five other instructions, all of which were refused.

       In the case of Weatherford v. George, 229 Ark. 536, 317 S. W. 2d 147, we held that an instructed verdict was properly given where the employer had admitted that the person causing the injury was at that time and place in the employment of the defendant; but in the case at bar there was no such broad admission.

       In McCormick on “Evidence”, Page 635, the author discusses the different uses of the word, “burden”, and says: “Suppose the one who had the initial duty of offering evidence in support of the alleged fact, on pain of an adverse ruling, does produce evidence barely sufficient to satisfy that duty, so that the judge can just say, ‘a reasonable jury could infer that the fact is as alleged from the circumstances proved’. If the proponent then rests what is the situation? Has the duty of going forward shifted to the adversary? Not if we define that duty (as we did before) as the liability to a peremptory adverse ruling on failing to give evidence, for if at this juncture the original proponent rests and the adversary offers no proof, the proponent will not be entitled to the direction of a verdict in his favor on the issue, but rather the court will leave the issue to the decision of the jury.”


source: Caselaw Access Project

author: George Bose Smith, J.

license: Public Domain

text:
    Johnson v. Clark.
    5-1822
    322 S. W. 2d 72
    Opinion delivered March 23, 1959.

      Gannaway & Gannaway, for appellant.

      Arthur Franhel and J. Fred Jones, for appellee.
   George Bose Smith, J.

On the night of October 19, 1957, the appellee fell and fractured his leg a few minutes after leaving the liquor store at which he was working. His claim for workmen’s compensation was denied by the referee who heard the testimony. On appeal to the full commission the claim was allowed, with one commissioner dissenting, and the award was upheld by the circuit court. In seeking a reversal the employer contends that Clark’s injury did not arise out of and in the course of his employment. Ark. Stats. 1947, § 81-1305.

The issue is one of law, there being no dispute as to the material facts. Johnson owned two liquor stores in the western part of Little Rock. Clark, a seventy-seven year old resident of North Little Rock, was injured at the end of his first day’s work for Johnson. Clark reported for duty at the Hayes Street store at three o ’clock in the afternoon, but about two hours later he was taken by Johnson’s manager to the store on West Twelfth Street, to replace a clerk who had telephoned to say that he was ill. Clark worked for the rest of the shift under the supervision of A. W. Simpson, another of Johnson’s employees.

It was Saturday, and since liquor cannot be sold on Sunday the store was to be locked at midnight. A few minutes before twelve Clark telephoned for a taxicab to take him home. The store was closed at about midnight, and Clark and Simpson walked across the street to a vacant lot, owned by some third person, where Simpson had customarily parked his truck during the five years he had worked at the Twelfth Street store. Simpson testified that he had never been instructed to park across the street, but he did so to leave space in front of the store for customers.

Simpson did not want to leave the elderly man standing in the cold and invited him to sit in Simpson’s truck until the taxi arrived. The cab appeared almost immediately, but when Clark alighted from the truck he stepped into a hole and fell, injuring himself.

Counsel for the appellee of course recognize the basic principle that an employee is not ordinarily entitled to compensation for an injury suffered after he has left his employer’s premises and is returning to his home. Cerrato v. McGeorge Cont. Co., 206 Ark. 1045, 178 S. W. 2d 247; Penny v. Hudson Dairy, 218 Ark. 594, 237 S. W. 2d 893. It is insisted, however, that .this case falls within one of the many exceptions that the courts have properly and liberally recognized in the application of the coming and going rule.

We need not review in this opinion each of the many cases cited by the appellee, for they really involve only a few principles of law. One of these principles, typified by onr holding in Owens v. Southeast Ark. Transp. Co., 216 Ark. 950, 228 S. W. 2d 646, protects the employee when his transportation is to be furnished by the employer. In the case at bar there is no evidence that Johnson expressly or impliedly agreed to cariy Clark to or from his home in North Little Eock. Even though Johnson’s manager drove Clark from the Hayes Street store to the Twelfth Street store, a few blocks away, there is no implication in the record that anyone expected the employer to take Clark home at the end of the night shift.

Another of the principles relied upon is illustrated by the holding in Cudahy Packing Co. of Nebraska v. Parramore, 263 U. S. 418, 44 S. Ct. 153, 68 L. Ed. 366, 30 A. L. R. 532. There the only road leading to the employer’s plant passed over a hazardous railroad crossing about a hundred feet away. This was held to expose the plant’s workers to a risk beyond that to which the general public was subjected, so that an employee’s death in a crossing accident was compensable. That case hardly touches upon this one, for the uneven surface of a vacant lot cannot well be likened to a perilous grade crossing, and in any event the cause of this appellee’s accident did not lie unavoidably between his home and his place of employment. It was only by going out of his way to private property across the street that Clark happened to be at the spot where he was hurt.

Finally, the coming and going rule is modified by what is sometimes referred to as the premises exception, under which the workman is protected immediately before or after his scheduled working hours if he is still on his employer’s premises or on nearby property either under the employer’s control or so situated as to be regarded as actually or constructively a part of the employer’s premises. See Bales v. Service Club No. 1, 208 Ark. 692, 187 S. W. 2d 321; Youngdahl, Arkansas Workmen’s Compensation Act Interpretation — “Arising out of and in the Course of Employment, ’ ’ 11 Ark. L. Eev. 413, 417 et seq.; Schneider on Workmen’s Compensation (Perm. Ed.), § 1712, 1724-1731; Walker v. Lykes Brothers-Ripley S. S. Co., La. App., 166 So. 624.

This is the ground on which a majority of the commission made the award now before us. They reasoned, correctly, that Clark was entitled to a reasonable opportunity to leave the premises. But the opinion then goes on to say: “Now in the case at hand the employee had, at the time of injury, left the strict bounds of the premises on which his employer’s business was located. However, as the heretofore cited Law Review article [Youngdahl, supra] explains, for workmen’s compensation purposes, the bounds of such premises have been constructively extended to include adjacent property necessarily used by employees in gaining ingress and egress to the strict confines of the employer’s premises.”

The trouble is that, as far as we can find, no reported case has ever extended the employer’s premises to include private property (a) that is separated from the employer’s premises by a public street, (b) that is not in any respect subject to the employer’s control, (c) that involves no peril except that of tripping on ground that is not perfectly smooth, and (d) that the employee can reach only by departing from the ordinary route to his home. We could uphold this award only by saying flatly that any injury which an employee sustains within a few minutes after the end of his working hours and within a short distance from his employer’s place of business is compensable. As the court observed in Payne & Dolan v. Industrial Commission, 382 Ill. 177, 46 N. E. 2d 925: “It is not enough to say that he (the employee) would not have been at that place on the public highway if it had not been for his job, since the same can usually be said of the general public . . . When he went off this driveway and onto the slab of the highway, he departed from the place where danger to him could be said to have been of a greater degree because of his employment, and into a place where the public generally shared fully the dangers incident thereto. Unless this be true, where can the line be drawn? What reason or logic can be applied, which would draw the line at any point short of his doorway?”

Some stress is laid upon the fact that the liquor store had to he closed at midnight, so that Clark could not stay inside while waiting for his taxi. The argument is that since Clark might have been covered by the compensation law if he had been injured while waiting in the store, he should also be protected while being forced to wait elsewhere. The clear answer to this suggestion is that an injury suffered in the liquor store might well have had a causal connection with Clark’s employment, but the employer cannot be held responsible for purely accidental injuries that befall the employee at some other spot in the general neighborhood.

The coming and going rule is an affirmative one in the sense that the employee has the burden of showing that it does not apply, for otherwise any injury occurring between his departure from his home and his return would presumptively arise out of and in the course of his employment. The exceptions to the basic rule are perhaps too numerous to be readily listed, and new ones will arise, but each is founded upon a valid reason for bringing the situation within the protection that the legislature meant to afford the worker. We are unable to discover any sound principle by which the compensation law could be made applicable to the present case without thereby extending the statute to include every injury sustained by an employee traveling to or from his place of work.

Reversed.

Johnson, J., dissents.


author: Paul Ward, Associate Justice.

text:
    Roberts v. Pace.
    5-1812
    322 S. W. 2d 75
    Opinion delivered March 23, 1959.

      Gean, Gean & Gean, for appellant.

      Pettus Kincannon and Harper, Harper, Young <§ Durden, for appellee.
   Paul Ward, Associate Justice.

This litigation concerns the closing of an alley in the City of Fort Smith.

A clear picture of the location of the alley, the surrounding property, and the several ownerships will help to understand the issues and procedure involved.

The alley in question is 20 feet wide and approximately 300 feet long, and runs north and south. It is closed at the south end by abutting property, but is open at the north end. There are 7 lots of equal width abutting on the east side of the alley, all in Schuetzen’s Park Addition. These lots are numbered from 13 (beginning at the south end of the alley) to 7 inclusive. Lot 13 is owned by appellants, Roy C. Roberts and his wife, and the other lots are owned by Jack E. DeWitt and his wife Alice. The several lots abutting on the west side of the alley are in Block 4 of Foltz Addition No. 1, and are all owned by Jack E. DeWitt and his wife. Appellants bought said lot 13 on September 8, 1956.

On February 28, 1958, Jack E. DeWitt and his wife filed a petition with the Board of Commissioners of Fort Smith to vacate or close all of the alley except the south portion lying west of Lot 13. The petition stated that the portion of the alley sought to be vacated or closed had not been used by the public for a period of 5 yeax-s previous to filing the petition. The prayer was that the Board fix a date for a hearing, after notice, and that an ordinance be enacted vacating said portion of the alley. Attached to the petition were affidavits of non-usage of the alley for 5 years, and the written consent of Mr. and Mrs. West, who of course, owxxed all the property abutting on the portion of the alley sought to be closed. We point out here that while appellants’ owned property (Lot 13) abutting on the alley they did not own property abutting on the portion sought to be closed, and further that, since the south end of the alley was closed as before stated, the portion of the alley west of lot .13 would be ixxaccessible from either exid of the alley should appellees prevail in this litigation.

A hearing was had before the Board at which time appellants appeared and entered their objections.

Following the above, on April 8, 1958, Ordinance No. 2239 was adopted wherein it was stated, among other things, that the alley had been dedicated to the public use as an alley, that it had not been used by the public generally for a period of 5 years, that the owners of the property abutting such portion of the alley had filed their written consent to abandonment, and that the public interest and welfare would not be adversely affected by the abandonment of such portion of said alley.

On or about April 28, 1958, appellants filed a complaint in equity against the Board of Commissioners and Mr. and Mrs. DeWitt setting out the facts and procedure set out above, that they were the owners of said lot 13, that the City was closing the alley adjacent to their property without their written consent, that they were thus being deprived of their property rights, and that appellees were proceeding under Ark. Stats. Sections 19-3824 et seq. Their prayer was that Ordinance No. 2239 be declared void and that appellees be enjoined from closing the said portion of the alley.

In their answer appellees stated, in addition to certain denials, that the Board of Commissioners had authority to enact said ordinance either under Ark. Stats. Sections 19-3824 et seq. or under Section 19-2304.

Upon submission after the introduction of voluminous testimony, the most of which related to the usage and non-usage of the alley during the said five year period, the trial court found: The Board of Commissioners lawfully enacted said ordinance under either Section 19-2304 or Section 19-3825, Ark. Stats. The portion of said alley is no longer required for corporate purposes, and it has not actually been used by the public as an alley for a period of five years before the filing of De-Witts’ petition; All property owners abutting on the said portion of the alley had given their written consent to closing the same as required by Section 19-3827, Ark. Stats.; Appellants’ complaint is not supported by the weight of the evidence, and; Appellants’ complaint should be dismissed. Appellants have appealed from the order of dismissal.

After a careful analysis of the original petition filed with the Board of Commissioners by the DeWitts, the ordinance, and the nature of the hearing before the trial court, we are of the opinion that the proceeding here was initiated pursuant to Ark. Stats. Sections 19-3824 et seq. as contended by appellants, and not under the provisions of Section 19-2304 as suggested by appellees and the trial court. The latter section grants additional powers to cities of the first class to “alter or change the width or extent of streets, sidewalks, alleys” etc. “and to vacate and lease out such portions thereof” etc., in order to better provide for the public welfare, safety, comfort and convenience of the inhabitants of the city. This section has no provision about the consent of abutting property owners and none about a hearing before the city council or Board of Commissioners. In the hearing before the Chancellor appellees did not proceed on the theory that a portion of the alley should be closed in order to provide for the public welfare. On the other hand there are many convincing indications that this entire proceeding was instituted and tried pursuant to Sections 19-3824 et seq. DeWitts’ petitions to the Board of Commissioners was obviously based on Section 19-3825 which requires a non-usage for 5 years, based on Section 19-3826 which provided for a petition by abutting property owners, and based on Section 19-3827 which provides for notice of a hearing and also requires “the written consent of the owners of all lots abutting on the street or alley, or the portion thereof to be vacated.”

The' question presented then is whether, in closing the portion of alley involved, all of the requirements of Sections 19-3824 et seq. have been satisfied. The answer to this question is not clearly indicated by any decision pointed out to us or by any that our research has disclosed.

It is the contention of appellees that it was necessary only to have the written consent of all the property owners abutting the portion of the alley affected. For the purpose of this opinion it may be conceded that all other requirements of the pertinent statutes were satisfied in this case. This contention is based on the peculiar wording in Section 19-3827 which we have underscored above.

We think however appellees make the mistake of assuming that they have closed only a portion of the alley and not all of it. It is too obvious for argument that from a practical standpoint, and particularly as regards appellants’ right of ingress and egress, the entire alley will be closed if both ends are closed. We express no opinion as to what our holding would be if the south end of the alley was not closed.

If we consider, as we do, that the entire alley will be closed under Ordinance No. 2239 and the trial court’s ruling, then appellees must fail because all the abutting property owners have not given their written consent, a prerequisite required by the statute. We agree with appellees that Sections 19-3824 et seq. did not repeal Section 19-2304, and agree also that this action would not be res judicata of any future litigation between these parties instigated under Section 19-2304. See Cernauskas v. Fletcher, 211 Ark. 678, 201 S. W. 2d 999, and Risser v. Little Rock, 225 Ark. 318, 281 S. W. 2d 949.

For the reasons above stated, the decree of the trial court must be, and it is hereby, reversed.

Reversed.


author: Sam Robinson, Associate Justice.

text:
    Campbell v. Coldstream Fisheries, Inc.
    5-1811
    322 S. W. 2d 79
    Opinion delivered March 23, 1959.

      Max Robinson and Kirsh, Cathey & Brown, for appellant.

      Herbert H. McAdams, for appellee.
   Sam Robinson, Associate Justice.

This case was filed in circuit court. On motion of defendants, appellees, it was transferred to chancery, and the motion of plaintiff, appellant (Campbell) to transfer back to circuit court was overruled. In chancery court there was a decree for the plaintiff, but the amount awarded was much smaller than the amount plaintiff claims he should have.

On appeal there are two points: (1) The question of jurisdiction of the chancery court; and (2) the amount awarded appellant. Appellees have cross-appealed, contending that the court erred in allowing appellant to recover any sum. We reach only the jurisdictional question.

The complaint alleges that under the terms of a contract of employment plaintiff had earned wages in the sum of $18,875; that $10,116 had been paid on the amount earned, and there was a balance due of $8,759, and there was a prayer for judgment in that amount. Nothing is alleged in the complaint giving a court of equity jurisdiction. In the motion to transfer to equity the defendants allege that plaintiff had first filed a suit in chancery court in which the same subject matter was involved, and that the complaint in that case contained allegations giving equity jurisdiction. It is true that there were allegations in the complaint filed in chancery court which gave that court jurisdiction, but a voluntary nonsuit was taken in that case. Later, when the action was commenced in circuit court the complaint contained no allegations giving chancery court jurisdiction, and in the answer filed by appellee after the cause was transferred to chancery, there is no allegation giving chancery court jurisdiction. This is simply a suit on an alleged debt arising out of an alleged contract. The answer is a general denial and a specific denial of the contract as alleged in the complaint. There is a plea of payment of any debt that defendant might have owed to the plaintiff, and in addition there is a plea of the statute of limitations and the Statute of Frauds. But there is nothing alleged giving rise to equitable principles that would give chancery court jurisdiction.

Before chancery court can assume jurisdiction, in an alleged cause of action such as we have here, there must be something in the pleadings giving that court jurisdiction. Duncan v. Baxter, 222 Ark. 955, 264 S. W. 2d 395. The fact that there were allegations in the case previously filed in chancery giving that court jurisdiction, in which case a nonsuit was taken, is of no consequence. When a nonsuit is taken, the procedure which was adopted in that action has no bearing on a subsequent action. Ark. Stat. § 37-222 authorizes the dismissal of an action without prejudice to the right to bring another action for the same cause. Turrentine v. St. Louis S. W. Ry., 96 Ark. 181, 131 S. W. 337. Of course, a dismissal would not be without prejudice if the same procedure adopted in the first action had to be used in the second suit.

In view of the fact that the cause is being decided here on the issue of jurisdiction, we do not reach the question of damages.

Reversed, with directions to transfer to circuit court.


author: Jim Johnson, Associate Justice. Ed. F. MoFaddin, Associate Justice

text:
    Ark. State Highway Commission v. Fox.
    5-1792
    322 S. W. 2d 81
    Opinion delivered March 23, 1959.

      W. R. Thrasher and Bill Demmer, for appellant.

      Tingling é Tingling, for appellee.
   Jim Johnson, Associate Justice.

This appeal concerns a condemnation suit filed by the State Highway Commission on certain lands in White County for construction or reconstruction of a portion of U. S. Highway No. 67, northeast of the town of Bald Knob. The complaint was filed under authority of Act 419 of 1953. The Declaration of Taking was filed under authority of Act 383 of 1953, and a deposit in the amount of $3,-000.00 was made by the appellant. The title to said lands vested immediately in the appellant. In this case the Highway Department condemned .302 of an acre of land which was taken from a tract belonging to appellees which contained after the taking approximately 2.9 acres. The premises belonging to appellees are operated, as a cafe and service station, a motel, and also served as the home of appellees, C. E. and Katherine Fox.- The premises in question are owned by C. E. and Katherine Fox. However, the Foxes had leased the service station portion of the premises to appellee, White River Petroleum Company, and the fixtures used in the operation of the service station belonged to White River Petroleum Company.

The cause came on for hearing in the Circuit Court of White County. A jury having been waived, the court heard the evidence to determine the amount of' compensation to which the appellees, C. E. and Katherine Fox, and the White River Petroleum Company were entitled for the taking, and damages to their land and property interests for highway purposes. A decision was rendered in favor of appellees in the sum of $20,800.00; $16,000.00 to appellees, C. E. Fox and Katherine Fox; and $1,800.00 to appellee, White River Petroleum Company. • Judgment was entered thereon and this appeal followed.. .

For reversal, appellant urged:

I.

The appellee, landowner, having failed to place ANY competent evidence before the court pursuant to the proper method of determining “just compensation” the court erred in not directing a verdict in keeping with the evidence of just compensation presented by the plaintiff.

II.

The verdict is excessive in that there is no substantial evidence to support the verdict.

III.

The court committed reversible error in considering business profits in arriving at market value of the leasehold interest over the specific objection of the appellant.

IY.

The court committed reversible error in considering as an element of damage to the leasehold interest the temporary business interruption in relocating the property.

This is a case of first impression before this court involving “just compensation” when there is a divided ownership in property in a condemnation suit. The appellant, relying upon the axiom that the whole cannot exceed the sum of its parts, insists that the separate interests of the lessor and the lessee should be disregarded, with the physical property being valued as if it were singly owned. We do not consider this axiom to be applicable here, for it is plain that a lease may be so advantageous to both parties that the combined market value of their separate estates exceeds what the land would be worth if the lease had not been made. Thus the “whole” of single ownership is not necessarily the “whole” of separate ownerships. We agree with Justice Holmes, who, in rejecting the theory advanced by the appellant, said in Boston Chamber of Commerce v. Boston, 217 U. S. 189, 54 L. Ed. 725, 30 S. Ct. 459:

“The constitution does not require a disregard of the mode of ownership — of the state of the title. It does not require a parcel of land to be valued as an unencumbered whole when it is not held as an unencumbered whole. It merely requires that an owner of property taken should be paid for what is taken from him. It deals with persons, not with tracts of land. And the question is, what has the owner lost? not, what has the seeker gained?”

Since points one and two urged by the appellant have reference to the claim of the fee holders, appellees C. E. Fox and Katherine Fox, we here consider them together.

The first witness for the appellant was Mr. Phillip J. Pointer, an appraiser for the State Highway Department. After qualification, Mr. Pointer testified that the fair market value of the land and improvements, prior to the taking, was $58,520.00, and arrived at the fair market value after the taking as being $49,520.00. Therefore, it is his contention that there rs a difference of $9,-000.00 between the before and after appraisal which represents the fair market value of the land taken and the damages that were incurred.

The next witness for appellant was Mr. Walker Watson, an appraiser for the State Highway Department. After qualification Mr. Watson testified that he considered a fair market value of the land and improvements prior to the taking to be $59,400.00, and the remaining* value after the taking to be $49,150.00. The difference between the before and after value according to Mr. Watson would be $10,250.00.

The only witness testifying for the landowners as to the value of the property was Mr. John Q. Adams, a well qualified appraiser who had been familiar with the property for a number of years. Mr. Adams testified that the damage to the land and improvements was $20,350.00. However, he did not give a before and after figure as to the fair market value. On cross examination he testified as follows:

“Q. You didn’t appraise it as a total, before and after?
“A. No, I had to put it together.
“Q. You didn’t appraise it before and after?
“A. No, I appraised it at what it is today.”

In fact the Court, when queried by appellant as to-the rule used by him in arriving at his decision, testified as follows:

‘ ‘ Q. What was the before figure and the after figure?
“A. I am not going to answer that question.
“Q. All you did was find the damages?
“A. Yes, sir, in other words, I found the total amount of damages to be $20,800.00.”

The right of property is before and higher than any ■constitutional sanction; and private property shall not be taken, appropriated or damaged for public use without just compensation therefor. Ark. Const. Art. II, Section 22.

Unquestionably a landowner is entitled to be fully ■compensated for his loss under the processes of eminent domain, however we have established methods by which a determination of “just compensation” is to be made. In a situation as the case at bar where there is a partial taking of a landowner’s property we have established the rule that the measure of damages is the difference between the value of the whole land before the appropriation and the value of the portion remaining after the appropriation. Pulaski County v. Horton, 224 Ark. 864, 276 S. W. 2d 706 (1955); Herndon v. Pulaski County, 196 Ark. 284, 117 S. W. 2d 1051 (1938); Newport Levee District v. Price, 148 Ark. 122, 229 S. W. 12 (1921).

In spelling out this rule we said in Little Rock, Mississippi River and Texas Railway Co. v. Allen, 41 Ark. 431 (1883):

“The correct rule for measuring damages is to determine the value of the whole land without the railway at the time same was built, then find the value of the portion remaining after the railway is built, and the ■difference between the two estimates will be the true compensation to which the party owning the land is entitled.”

After a careful review of the record and the excellent briefs of the parties, we cannot say that this rule has been followed in the case at bar. Therefore, we have reached the conclusion that there is no substantial evidence in this record that would support a judgment to the fee holders, C. E. Pox and Katherine Pox, his wife, for more than $10,250.00. We will sustain a judgment in this amount if, within fifteen judicial days, appellees C. E. Pox and Katherine Pox, will file a remittitur of $5,750.00. Otherwise, it will be reversed and remanded for a new trial. Arkansas State Highway Commission v. P. W. Dupree, 228 Ark. 1032, 311 S. W. 2d 791.

Since points three and four urged by appellant have reference only to the claim of the leaseholder, appellee White River Petroleum Company, we here consider them together.

The leasehold interest in this action was created by a written instrument, dated October 22, 1956, under which lessors, C. E. Pox and Katherine Pox, leased the filling station site to Leland Cleghorn and Paul Bond. The original lessees later assigned the lease to White River Petroleum Company, hereinafter called the lessee. The lease was for a period of five years from November 10, 1956, and it is admitted that the lease was in full force and effect at the time of the order of taking and that the lease has no clauses therein which terminated the agreement in event of condemnation proceedings.

The leased property had been used as a filling station for twenty-five years prior to the current leasing on heavily traveled highway 67, and the lease involved is a renewal lease of an ealier lease, which had like rental provisions. The station was a conventional station in appearance, but had the outstanding advantage of being located at the junction of St. Louis and Memphis roads at Bald Knob. The lifts, filling station pumps, underground tanks and all equipment belonged to the lessee, who had the right to remove these items at the termination of the lease. The lessor received two cents a gallon on all fuel sold and it was provided that the lessee would collect one cent a gallon from the operator. The rental paid to the landowner then is, in effect, a rental based on gross sales and is standard in the trade. The only covenant on the part of the lessee that required any expenditure of funds was covenant to paint station inside and outside every two years. There was no option to renew, and the lease would remain in effect from year to year if sixty days notice was not given prior to the termination of the five year period. All evidence as to the value of the leasehold assumed that the lease would terminate on November 10, 1961.

The fixtures involved in the taking are three pumps on a concrete pump island, a diesel pump which is located about forty feet from the other pumps, three underground storage tanks, a filling station lift which was embedded in concrete, and all connecting pipe lines from the tanks to the pumps-.

The lessees are jobbers of gasoline products doing-business in White, Jackson and Independence County. In the gasoline business a jobber, as distinguished from a commission agent, owns his own equipment, trucks and in effect is an independent business man. The jobbers own in many cases the leases on stations that sell their products. The original records of the lessee were introduced showing the number of gallons of gasoline and diesel fuel sold during the entire period of the lease. This shows an average of 13,000 gallons per month. This evidence was not introduced to show gross sales in dollars and cents, nor net profit, but was introduced to show, along with other evidence, that the leasehold was a very valuable asset. The gasoline that is sold at this station is trucked to the Bald Knob station from Conway, Arkansas, and the trucker services this station direct from the tank truck, so the gasoline involved in the Bald Knob station sales never enters the bulk plant of the lessee at Batesville for re-delivery.

Appellants introduced no testimony as to the value of the unexpired leasehold nor did it offer evidence as to the value of the fixtures involved. One of the appellants’ witnesses had not seen the lease in question at the time he made his appraisal, the other testified as follows :

“Q. Then the value of the unexpired term of the lease, if any, is placed at nil in your estimate of $10,-200?
“A. I did consider the lease but I considered it at the value of the whole.
“Q. In arriving at that whole did you place any value at all on the lease in arriving at the whole?
“A. On the lease itself?
“Q. Yes, sir?
“A. No, I did not.”

This lease had no clause which terminated the agreement in event of condemnation proceedings, Capitol Monument Co. v. State Capitol Grounds Commission, 220 Ark. 946, 251 S. W. 2d 473. There was substantial evidence introduced by appellees by competent witnesses relative to the fair market value of the lease over and above rental to support the following part of the decision of the trial court: “I think the value of his lease if he were to discontinue it, over and above the stipulated amount, would be approximately $3,800.00 to $4,000.00, which would be on the basis of $100.00 for thirty-eight months to run.” However, when the court went further and allowed $1,000.00 damage to the equipment if the lease was discontinued or for relocating the equipment, we think it fell into error. We adopt the rule stated in Springfield Southwestern Ry. Co. v. Schweitzer, 173 Mo. App. 650, 158 S. W. 1058, wherein the court said: “The reasons for not allowing this damage are: 1. That the tenant would have to move anyhow, and this is one of the encumbrances attaching to the act of placing personal property on leased premises.” Therefore, we have reached the conclusion that a judgment in favor of the leaseholder, appellee White River Petroleum Company, in the amount of $3,800.00 can be sustained. If, within 15 judicial days this appellee will file a remittitur of $1,000.00, the judgment will be affirmed. Otherwise, it will be reversed and remanded for a new trial.

Mr. Justice McFaddin dissents in part.

Ed. F. MoFaddin, Associate Justice

(dissenting).

The majority opinion, in holding that there would have to be a remittitur, says that the record contains no evidence on behalf of the landowners, C. E. Fox and Katherine Fox, for any amount greater than $10,250.00 and that there would have to be a remittitur by them of $5,750.00. As I read the record, the witness, John Q. Adams, definitely testified that the total amount of the damage was $20,350.00; and this was based on a “before and after figure as to the fair market value”.

On Transcript 126 the following appears on re-direct examination:

“Q. You have stated the length of time which you have been personally acquainted with this property and its use. Notwithstanding the questions and answers as to specific items, is it still your statement that the difference in the market value of the property involved before and after the taking is $20,350.00?
A. It is.”

Now, the question and answer above copied clearly show that the witness, John Q. Adams, based his figures on the “market value of the property involved before and after the taking”.

"With the foregoing evidence in the record, I submit that the Court should not require a remittitur.


author: Carleton Harris, Chief Justice.

text:
    Clem v. Nelson.
    5-1757
    322 S. W. 2d 448
    Opinion delivered March 30, 1959.

      Talley & Owen and William L. Blair, for appellant.

      T. H. Mayer, for appellee.
   Carleton Harris, Chief Justice.

This litigation involves a transaction between appellee, Gilbert Nelson, and appellant, Delbert S. Clem, d/b/a Clem Motor Company. Nelson purchased a 1956 Plymouth automobile from appellant Clem, for, under his contention, $1,995, and appellee asserts that he was allowed $600 for his own automobile, a 1954 Buick, which he traded in on the purchase of the Plymouth, and that appellant was to pay off a balance due on the old car of $429.94. Clem insists that no sale price was ever agreed upon; that the parties traded on a ‘ ‘ difference ”; that he was to receive $1,150 and Nelson’s car, upon which Nelson would pay the balance due. Nelson signed a contract in blank, which was later filled in, and the contract was assigned to the Manhattan Credit Company, Inc. Payments were fixed at $69.71 per month for thirty months. The payments included collision insurance and life insurance. After making five payments, appellee instituted suit against appellants, alleging that the contract was usurious, praying that same be cancelled, and asking that title to the automobile be vested in him free of any lien or claim of appellants. On trial, the court held the contract to be usurious, cancelled the title retaining note, and quieted title in the Plymouth automobile in appellee; ordered that all sums paid into the registry of the court by Nelson during the pendency of the action be returned to appellee, but denied recovery for payments voluntarily made by Nelson to appellants prior to the institution of the suit. Prom such decree, comes this appeal.

Nelson testified that he went to the Clem Motor Company after seeing an advertisement in the Arkansas Democrat on August 30, 1957, advertising the car (later purchased) for $1,995. He talked with a salesman named Roy Spann. Nelson stated that he wanted $600 for his equity in the car which he was trading in, and after' such an agreement had been reached with the .salesman, signed a “get ready” or work sheet. Appellee returned next morning and signed a contract in blank, “and I was assured that this contract I signed in blank would be identical to the one I had signed the evening before.” This testimony was pretty well corroborated by Spann, who testified, ‘ ‘ The agreement was we were to allow him six hundred dollars for his Buick, and his wife made the statement as long as we kept the payments under $70 a month, aud like I said, it was definitely agreed he was to get $600 equity out of his car above the $429.00,1 believe it was, pay off on his Buick.” It is true that on cross-examination, Spann stated that he seemed to remember something about “a thousand dollars difference,” but in the main, his testimony pretty well substantiated Nelson’s version of the transaction. Mrs. Nelson likewise corroborated her husband’s evidence. In other words, appellee’s version of the agreement was as follows:

“Selling price of Plymouth $1995.00
Allowance on Buick $1029.94
Lien 429.94
Net Trade Allowance $ 600.00 600.00
Difference Owed by Nelson $1395.00
Hazard Insurance $ 219.50
Life Insurance 52.28
Total Insurance $ 271.78 271.78
Gross Loan $1666.78
Interest charges 10% for 30 months 223.15
Unpaid Balance $1889.93’

J. D. Smeadiey, who was manager of Clem Motor Company at the time of the transaction, testified that he told Spann that the lowest figure he could accept from Nelson was $1,150. ‘ ‘ That would mean if he had a clear automobile, he would owe me $1,150. If he did not have a clear automobile, he owed me $1,150 plus the net pay off on his automobile. Q. So if there was $429.95 owed on the car to someone else by Mr. Nelson, then your trade-in would be $1,150 plus that? A. Yes, plus whatever he owes. Q. Come to about $1,579.94? A. Yes.” In response to a question as to whether $1,995 was the amount that Nelson agreed to pay for the automobile, Smeadiey replied: “I don’t know what he agreed to pay other than he agreed to pay $1,150 difference. I know that. I know he agreed to that because the salesman was about two hours getting him to agree, and I was working with him, and I was trying to show him at that time he was getting a real good deal for the allowance on his car for the worth of the car.”

Clem testified that the deal was strictly on the basis of a difference.

“We traded on the basis of $1,150 difference between the two cars. * * * I would get the $1,150 difference. Now I would also have to pay off his car, which is $429.94. So, therefore, I had the unpaid balance on his car, I add the unpaid balance on his car to the difference between the two cars, and that is what I received from the finance company, which is $1,579.94.
“Q. That contract reads $2,091.30. How is that figure reached?
A. That is, of course, after you add insurance and finance charges.
Q. Is that where you get that $2,091.30?
A. That’s right.
Q. Now there is a figure of $600 there. Mr. Nelson testified he was to get $600 on his car. Has he been allowed $600 on that car?
A. Yes, he has been. He has been allowed $600 equity which I don’t think he knows what it means. Anyway, he was allowed $600 equity. He was allowed $1,029.94, and after you subtract his pay off, $429.94, he has $600 equity.”

This version of the transaction is set out in appellants’ brief as follows:

“1,150.00 Difference between Buick and Plymouth 429.94 Paid to GMAC for Nelson
$1,579.94 Received from Manhattan Credit Company 219.50 Collision Insurance purchased by Manhattan 52.28 Life Insurance purchased by Manhattan 239.58 Interest Charged by Manhattan
$2,091.30 Balance to be paid in 30 months at $69.71 600.00 Trade-in
$2,691.30 Time Price”

The “total time price” is shown in the title retaining note as $2,691.30.

We, like the trial court, find this “time price” to be confusing — but it does somewhat bear out appellee’s version, since it shows that a definite net trade-in figure of $600 was reached. Also, Exhibit No. 7, the work sheet, heretofore referred to, recites a total cash selling price of $1,995 for the Plymouth, though only showing a net trade-in of $415.06. Nelson testified that he endeavored on several occasions to obtain a copy of the contract from both Clem and Manhattan; finally, a purported copy of the contract was made up by someone in the Manhattan office and given to appellee. This copy (Exhibit No. 3) shows the net trade-in to be $415.06. Mr. Allen Noble, assistant vice-president of Manhattan Credit Company, testified that this amount was in error, and not in accord with the actual contract. From his testimony :

‘ ‘ The man that gave this statement gave it in error. He should not have given it. He is not familiar with it.
Q. You keep a copy of the original contract!
A. Yes. "VVe do not keep a copy in our files, in the bank.
Q. You keep that at the bank. If Mr. Nelson came by your office, would you have a copy of the actual contract that he signed!
A. No.
Q. Anything that was given to him would be someone’s idea of what the contract was!
A. Correct.”

Accordingly, three'different versions of the agreement between the parties are shown by Exhibit No. 7 (the work sheet), Exhibit No. 3 (purported copy of contract given to Nelson), and Exhibit No. 2 (copy of contract as contended by appellants).

Be that as it may, appellants argue that there is no usury in the case at bar because the testimony reflects that the Clem Motor Company received the sum of $1,-579.94 from Manhattan Credit Company, which represented the $1,150 “difference” plus the $429.94 which Clem paid off on the Buick. Manhattan’s computation is as follows:

'“Total Amount Paid to
Clem Motor Company $1579.94
Collision Insurance, paid by Manhattan 219.50
Life Insurance, paid by Manhattan 52.28
Total Advanced by Manhattan $1851.72
'Total Amount Contracted to be Received by Manhattan $2091.30
Less Total Advanced by Manhattan 1851.72
Total Interest Charged $ 239.58”

'Thus, appellants argue that the $1,579.94 actually was, In effect, a loan from Manhattan to Nelson; that the com■pany advanced that amount of money (plus amounts for .insurance); that the interest charged on the amount advanced is a legal amount, and accordingly, no usurious charge has been made. Appellants point out our language in Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S. W. 2d 973, as follows:

“Our cases disclose that finance companies have seized upon the ‘ credit price rule ’ as a means of obtaining more than a 10% return upon what is in form a sale, but is in substance, a loan. It is obvious that if a prospective purchaser of a car, radio, refrigerator, etc., should borrow $1,000 directly from a finance company, then buy the article with the money and execute a one-year note to the finance company for $1,200, such transaction would be usurious. But the finance companies are accomplishing the same result by having dealers in cars, radios, refrigerators, etc., handle the sale in the first instance, and under the guise of a credit price, add an excessive charge which inures to the finance company, because the dealer is reasonably confident in advance of the sale that he can transfer the papers to the finance company for his own cash price. Thus, the finance company is getting the benefit of the increase.”

We cannot see the application of that language to the present case. There we were talking about finance companies that, under a cloak, made usurious charges, but definitely we did not say that a usurious charge could not be made by the dealer before the assignment of the contract. Certainly it would not be logical to allow a dealer to illegally and usuriously charge a customer, and then find no usury was committed because the finance company had paid the full amount of such charges to the dealer upon being assigned the contract. In the instant case, Nelson’s transaction was with the Clem Motor Company, and the contract, which we clearly think usurious, was entered into with the dealer. The fact that Manhattan itself made no usurious charge is immaterial. In the Hare case, supra, reference was made to an earlier decision by this Court as follows:

“In the case of German Bank v. DeShon, 41 Ark. 331, this Court held that a note usurious in the hands of the payee is also usurious in the hands of a subsequent purchaser, though he purchased in good faith, before maturity of the note, and without any notice of the usury; and that the reason for such holding is that the Constitution makes a usurious note void, and therefore, it can gain no validity by circulation. The case of German Bank v. DeShon is an outstanding decision in our reports, and has been consistently followed. Under that holding — which we now reaffirm — the defense of bona fide holder, for value, without notice, is without merit against the plea of usury.”

The decree is affirmed.


text:
    Frier v. Terry.
    5-1684
    323 S. W. 2d 415
    Opinion delivered March 30, 1959.
    [Rehearing denied May 18,1959]

      Moses, McClellan & McDermott, for appellant.

      Owens, McHaney, Lofton S McHaney, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an action brought by a business broker (Gr. W. Frier), claiming a commission for his alleged efforts in consummating a transaction. From a judgment adverse to him, he brings this appeal.

Mr. Frier is a resident of Baton Rouge, Louisiana. Some time in November 1955 he called on Mr. Fred W. Terry, Sr. of the Terry Dairy Products Company, Inc. of Little Rock and Terryland of Forrest City (Inc.). Both companies are hereinafter referred to as “Terry Corporations.” Mr. Frier claims that during that visit Mr. Terry agreed, on behalf of himself and each of the other stockholder-defendants of Terry Corporations, that Frier would be paid an agreed fee if a disposition could be made of the business and properties of the said Terry Corporations to the Borden Company. On February 18, 1956 the stockholders of the Terry Corporations exchanged all of the common stock of said Terry Corporations for stock in the Borden Company. Included also were certain real estate and leasehold interests owned individually by some of the stockholders of the Terry Corporations. When all of the stockholder-defendants refused to pay Frier any commission, he filed this action, claiming that he was entitled to 2%% of the value of the Terry Corporations stock exchanged, which would amount to approximately $29,000.00. The stockholders in the Terry Corporations were Fred W. Terry, Sr., Mildred Terry Shea, Cornelia Terry, Ann Witsell Terry, and Fred Terry, Jr. As aforesaid, the judgment of the Circuit Court was adverse to Frier in all respects, and he brings this appeal, urging several points which we group and dispose of in convenient topic headings.

I. Frier Insists There Was Error in Quashing The Service On Fred Terry, Jr. Frier’s original complaint was filed on March 23, 1956 and Fred W. Terry, Jr. was not named as a defendant at that time. Later he was added as a defendant, and service had on his mother in Pulaski County, Arkansas. There is nothing to show that this service on Fred W. Terry, Jr.’s mother was valid service: he filed no answer. On November 21, 1957, at the time of the trial, Fred W. Terry, Jr. was in the courtroom attending the trial as a witness, and he was then and there served with summons. The Court instantly quashed the service, reciting:

“It being shown to the Court that Fred Terry, Jr. is not a resident of this State, and further, that he was served with process in the Court Boom, while appearing as a possible witness for the defendant in this matter, service on the said Fred Terry, Jr., is hereby quashed over the objections of the plaintiff.”

The Court found that Fred W. Terry, Jr. was not a resident of Arkansas, so the service on his mother was not valid service on him; and when he was served with summons in the course of the trial, he was there as a witness under subpoena and was immune from service. See § 28-521 Ark. Stats. We find no error in this ruling.

II. Instructed Verdicts In Favor Of Certain Defendants. Frier claims that the Trial Court committed error in instructing the jury to return verdicts in favor of each of the following five defendants, to-wit: (1) Mrs. H. T. (Will) Terry; (2) Mildred Terry Shea; (3) Cornelia Witsell Terry; (4) Ann Witsell Terry; and (5) Fred W. Terry, Trustee: thus leaving as the sole defendant, Fred W. Terry, Sr.

(1) As regards Mrs. H. T. (Will) Terry: it is clearly shown that she was never a stockholder in the Terry Corporations; so she could not be liable for the sale of her properties, which were not even alleged to be covered by the supposed contract between Fred W. Terry, Sr. and Frier.

(2) As regards Mildred Terry Shea: she admitted that before the Borden-Terry transaction was consummated, she read or heard that Mr. Frier was attempting to act for her in the disposition of her stock; and that she discussed it with her brother, Fred W. Terry, Sr. While this evidence is slight, it is sufficient to submit to the jury the question of whether or not she authorized or ratified the alleged contract between Fred W. Terry, Sr., and Frier; and we think her liability should have been submitted to the jury.

(3) As regards Cornelia Witsell Terry: the testimony fails to show that she ever heard of Mr. Frier or his claimed contract until much later, so there was no error in directing a verdict for her.

(4) As regards Ann Witsell Terry: we are unable to find any evidence in the record that indicates that she personally authorized or ratified anything, so we find no error in directing a verdict as to her personally. If she was a minor at the time of the alleged contract with Frier, and if Fred W. Terry, Sr. was acting as Trustee for her interest, then her interest would be liable if Fred W. Terry, Trustee, is liable.

(5) As regards Fred W. Terry, Trustee: he, of course, knew, as Trustee, what he knew as an individual. He had authority, as Trustee, to authorize himself to act, or to ratify his actions. So the instructed verdict in favor of Fred W. Terry, Trustee, should not have been given.

III. Frier Claims Errors In The Instructions As Regards Fred W. Terry, Individually. Mr. Frier testified that he was a business broker; that he called on Fred W. Terry and asked him if he represented the stockholders of the Terry Corporations; that Terry said he did; and then Frier stated:

“Well, he said as President of the Corporation he was negotiating a deal and didn’t want to discontinue these negotiations. I said, ‘Fred, that is OK probably working on two deals would be better than one’ and he agreed with me. I also stated as a business broker I worked on a percentage basis, the fee to be paid by the seller and in this case it would be 2%% of the gross sales less inventory, accounts receivables and cash; that it was customary to figure out the price you want for the business and to that price add my fee of 2which would be the total asking price for the business. He said he understood that. At that time, I stated that my prospect would be The Borden Company; that my contact would be with the President, Mr. Ben Putnam of Borden Company. I stated that Borden made different types of deals, cash deals, exchange of stock, lease deals or combination of those deals and Mr. Terry said the type of deal he wanted was a stock exchange deal. I asked Fred if it would be all right for me under those conditions for me to call Mr. Ben Putnam stating that he wanted to sell his business and that he had rather have a stock exchange deal and he said ‘under those conditions go ahead and call Mr. Putnam.’ We visited for a few minutes and I left the office.
‘ ‘ Q. Are you telling that jury that Mr. Terry definitely agreed you would be paid a commission if you procured a buyer?
“A. He did.”

Frier’s testimony made a case for the jury, if Frier conld legally collect a commission. He admitted that he had no real estate broker’s license in Arkansas, as required by § 71-1301 et seq. Ark. Stats., but claimed that he needed no such license because he was selling the corporate stock and assets of the Terry Corporations; and that a broker who sells the stock and assets of a corporation is not a real estate broker. Terry insisted that Frier could not recover because he did not have a real estate broker’s license. Frier requested these instructions :

“4. You are instructed that the Arkansas law did not require that Mr. Frier have a real estate license in the sale involved in this case.
“5. You are instructed that under the laws of Arkansas, the mere fact the corporation or corporations own buildings situated on realty did not necessitate the holding by Mr. Frier of a real estate license in order to claim a commission on the sale of corporate stock.”

The Court refused Frier’s instructions, and gave Terry’s Instruction No. 5, which reads:

“The Plaintiff, by disclaiming any commission on the consideration received by the Defendant for the sale of real estate or an interest therein, cannot make an otherwise invalid contract valid, therefore, if you find that the Plaintiff originally undertook to find a buyer for any real estate or interest therein used in connection with Defendant’s dairy operation, your verdict must be in favor of Defendant even though the plaintiff does not presently claim any commission thereon.”

This brings us to the question, whether Frier, as a business broker, was required to have a real estate broker ’s license in Arkansas before he could legally collect a commission in this case. A broker is one who is engaged for others, on a commission, to negotiate contracts relative to property with the custody of which he has no concern. The cases recognize that there are many kinds of brokers, according to the particular class of transactions involved, such as real estate brokers, stock brokers, business brokers, insurance brokers, etc. The Arkansas statutory provisions relied on by the appellee herein are §§ 71-1301 et seq. Ark. Stats. But these statutory provisions relate only to real estate brokers, and not to stock brokers, business brokers, and other kinds of brokers; and our statute (§ 71-1302) defines a real estate broker as: “. . . any person . . . who, for a compensation . . . sells or offers for sale, . . . or negotiate the purchase or sale or exchange of real estate, or who leases or offers to lease . . . leases or royalties of whatsoever character, or rents or offers to rent, any real estate or negotiates leases thereof . . . for others, as a whole or partial vocation.”

The Arkansas statute does not purport to cover anything except real estate brokers. Does Mr. Frier come within the purview of the Arkansas statute regulating real estate brokers¶ It is clear that he was not selling real estate, as such: he was selling the business of the Terry Corporations. Stock in the Terry Corporations was exchanged for stock in the Borden Company. The only real estate sold was that owned by the individual stockholders; and as to that, Mr. Frier claimed no contract or commission. So we conclude that as a business broker Mr. Frier was not engaged in the sale of real estate; and the Court erred in giving its Instruction No. 5, which has been previously copied. Rather, the Court should have given the plaintiff’s Instructions Nos. 4 and 5, as previously copied.

In 8 Am. Jur. 996 “Brokers” § 12, real estate brokers statutes similar to ours are discussed, and the text states: “Under such a statute there is strong support for the view that one engaged in buying or selling-businesses as going concerns, ... is not a real estate broker within the meaning thereof.” In 88 A. L. it. 1422 there is an annotation entitled: “Necessity for real estate broker’s license as affected by fact that sale is of both real and personal property”; and in that annotation are collected many cases involving the case of a business broker, as such. We particularly mention three cases: (1) Dubin v. Mohn, 247 Wis. 520, 19 N. W. 2d 880 (decided in 1945), wherein the Court said that a contract for the sale of corporate stock was not a contract for the sale of real estate; (2) Weingast v. Rialto, 243 N. Y. 113, 152 N. E. 693, wherein the Court of Appeals of New York held that a business broker who bought and sold businesses and goodwill was not a real estate broker; and (3) Glaser v. Shostack, 213 Md. 383, 131 A. 2d 724. In this case, the Maryland Court said:

“We think the provisions of the sub-title ‘Beal Estate Brokers ’ do not encompass the activities or rights of one who sells a business comprised of goodwill and personal property, and not real estate or an interest in real estate. The evidence in the instant case shows that there were discussions as to a lease for the premises which housed the tavern between Sandler and Milton Glaser at a time when Mannes was present, but that Mannes’ contract was only to sell the tavern business as such and not to procure the lease. No assignment of an existing lease was involved in the transaction. Indeed, the property in which the tavern was located was not owned by Milton and Doris Glaser but by the latter and her brothers, who were never in the picture as far as the parties to this case are concerned. We think that Mannes’ promises under his agreement, and his activities, did not bring him within the scope of the statute so as to require him to be licensed to do what he agreed to do, and did do, for the Glasers, that is, find a purchaser for the tavern, its goodwill, fixtures, equipment and stock. A number of decisions confirm this view. See Weingast v. Rialto Pastry Shop, 243 N. Y. 113, 152 N. E. 693; James v. Al derton Dock Yards, 225 App. Div. 675, 231 N. Y. S. 215; Claggett v. American Bowling & Billiard Corp., Sup. 48 N. Y. S. 2d 856; Pike v. Psihogios, 68 Cal. App. 145, 228 P. 722; Vander Sluys v. Finfrock, 158 La. 175, 103 So. 730; Salisbury v. Alskog, 144 Wash. 88, 256 P. 1030; Ireland v. Tomahawk Light, Telephone & Improvement Co., 185 Wis. 148, 200 N. W. 642. Cases on the subject are collected in the annotation in 88 A. L. R. 1422.”

For the reasons herein stated, the judgment is reversed to the extent stated, and the cause is remanded for further proceedings not inconsistent with this opinion.

Johnson, J., not participating.

       Mrs. H. T. (Will) Terry was also named as a defendant, although she owned no stock in the Terry Corporations. An instructed verdict was directed in her favor.

       Here is her testimony:
      “A. I don’t recall Mr. Terry mentioning the name of Mr. Frier. He probably did. I don’t remember. He told me someone was interested in purchasing Terry Dairy Products Company.
      Q. You don’t recall having heard anything about anybody attempting to act as agent for the stockholders in negotiating the sale?
      A. No.
      Q. When did you first hear anything about that?
      A. It was sometime after we started negotiations with Borden Company.”

       We have copied the definition found in 12 C.J.S. 5. Somewhat similar definitions may be found in 8 Am. Jur. 989 and Black’s Law Dictionary.

       The Arkansas statute is Act 148 of 1929. The Supreme Court of Michigan had decided in 1923 the case of Miller v. Stevens, 195 N. W. 481, in which was involved a Michigan statute which regulated not only real estate brokers, but “business chance brokers”. Since the definition of real estate broker in the Arkansas statute is very similar to the Michigan statute, and since “business chance brokers” are not within the purview of the Arkansas statute, we are driven to the conclusion that it was not the purpose of the Arkansas statute to regulate any form of brokers except real estate brokers. The cases hold that statutes regulating brokers are in derogation of the common law and must be strictly construed and cannot be extended by implication. 12 C.J.S. 14.


text:
    Hollaway v. Pocahontas Federal Savings and Loan Association.
    5-1809
    323 S. W. 2d 204
    Opinion delivered March 30, 1959.
    [Rehearing denied May 11,1959]

      Bryan J. McCallen and E. L. Hollaway, for appellant.

      Vernon J. King, for appellee.
   George Bose Smith, J.

This foreclosure suit was brought by the appellee to enforce a note and mortgage upon which a balance of $2,139.67 was assertedly due. The case was heard by a special chancellor, who entered the foreclosure decree that is now presented for review.

It is first contended by the appellants that the trial judge erred in not passing upon their motion to have the complaint made more definite, or, alternatively, that if the court treated the motion as a general denial then the court erred in granting a decree of foreclosure without requiring the plaintiff to prove its case. In the absence of a transcript of the evidence we are not in a position to sustain these contentions. The decree recites that the cause was heard upon the complaint with its exhibits, the answer, ‘ ‘ and other matters, things, and proof before the court.” Thus it affirmatively appears that proof was heard, but apparently the testimony was not reported, for it has not been brought into the record even though the appellants’ designation of the record called for the entire proceedings. In these circumstances we must assume that the missing evidence sustained the decree. Dierks Lbr. & Coal Co. v. Cunningham, 81 Ark. 427, 99 S. W. 693; Loy v. Stone, 127 Ark. 147, 191 S. W. 919; Kimery v. Shockley, 226 Ark. 437, 290 S. W. 2d 442.

A second argument is that the trial court should not have given the mortgagee a judgment for an attorney’s fee of $100. It is true that for many years such a stipulation in a promissory note was held to be against public policy and therefore unenforceable, Boozer v. Anderson, 42 Ark. 167, Arden Lbr. Co. v. Henderson, etc., Co., 83 Ark. 240, 103 S. W. 185; but in 1951 the legislature changed the rule by permitting the parties to a note to agree upon a reasonable attorney’s fee for the creditor. Ark. Stats. 1947, § 68-910. We have upheld other statutes authorizing the recovery of attorney’s fees, such as the act applicable to insurance cases, Ark. Ins. Co. v. McManus, 86 Ark. 115, 110 S. W. 797, and there is even less reason for saying that the constitution prohibits the legislature from authorizing the parties to make a voluntary agreement for such a fee.

It is also contended that the special chancellor did not have the authority to sign the foreclosure decree some six weeks after the case was tried and at a time when he was not physically within Clay county. The record does not positively establish the assertions of fact on which this argument is based; but even if that difficulty could be overcome the record is completely silent as to how or why the special chancellor came to be selected. Hence we would not in any event reach the point now argued. See Wall v. Looney, 52 Ark. 113, 12 S. W. 202; Jenkins v. Incorporated Town of Caraway, 219 Ark. 236, 242 S. W. 2d 348.

The appelL-e has filed a motion asking that the case be advanced and that the decree be affirmed under the statutes and court rule governing delay cases. Ark. Stats., §§ 27-2141 and 27-2149; Supreme Court Rule 4. We are affirming the decree, for the reasons already given; but the appellee has not complied with the requirement laid down both by the statute and by the rule, that there be endorsed on the record the assertion that the appeal is taken for delay. The statute is evidently penal, and in the absence of any attempt by the appellee to meet its requirements we do not feel called upon to explore the question of whether the appellants should be penalized for delay.

Affirmed.


text:
    Black v. Howard.
    5-1816
    322 S. W. 2d 459
    Opinion delivered March 30, 1959.

      Richard W. Hobbs, for appellant.

      Sam Montgomery, for appellee.
   Paul Ward, Associate Justice.

This litigation is over the divided custody of a child.

Appellant and appellee began living together in Tennessee about the middle of January, 1954, and continued to do so, without the benefit of any regular marriage ceremony, until October, 1956. In May of 1955, they left Tennessee and moved to Houston, Texas, where a child, named Harriett Darlene Howard, was born to them about the 15th of June of that year. A few days later they moved to Little Rock where they lived together until October, 1956, when appellant left appellee and married Aaron Black that same month.

On November 2, 1956, appellee filed an action in the Chancery Court of Pulaski County to obtain custody of Harriett Darlene. An answer was filed by appellant, and after hearing oral testimony (not brought forward in the record) the court rendered a decree on November 28, 1956. In this decree the court found: the parties were not lawfully married to each other hut Hariett Darlene is a legitimate child; the father of the child is obligated to support it, and is entitled to rights of visitation and companionship, and; it would be to the best interest of the child for the mother to have custody for nine months and the father to have custody for three months of each year. No appeal was taken from the above decree by either side.

In December, 1957, appellee filed a motion asking for a change in custody of the child and that he be given permanent and complete custody, and thereafter appellant filed a motion to amend the original decree of November 28, 1956, so as to deprive appellee of all rights of visitation and partial custody. After hearing oral testimony, the court, on September 5, 1958, dismissed both motions and ordered the original decree to remain in full force and effect, except that appellant’s custody of the child should begin on the first of September instead of on the first of March of each calendar year.

Appellant has appealed from the above order.

As stated before, appellant did not appeal from the original decree, made November 28, 1956, fixing custody of the child. On the second hearing more than a year later it was not insisted by appellant that a change in custody was justified by a change in circumstances.

The only ground relied on here is that the trial judge misconstrued the law in rendering the original decree. If this were true, appellant’s only remedy was by appeal and none was taken. It is not contended that the court, at the first hearing, did not have jurisdiction of the parties and the subject matter, and the original decree must stand.

Affirmed.


text:
    Concrete, Inc. v. Arkhola Sand and Gravel Co.
    5-1821
    322 S. W. 2d 452
    Opinion delivered March 30, 1959.

      Hardy W. Croxton, for appellant.

      Wade & McAllister and Daily & Woods, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Concrete, Inc., is a domestic corporation engaged in the ready-mixed concrete business, with offices at Rogers, Arkansas. Appellee, Arkhola Sand & Gravel Company, a domestic corporation, is also engaged in the ready-mixed concrete business and has offices located at Fort Smith, Fayetteville, and Lowell, Arkansas.

Appellant commenced this action against the appellee, for an injunction and treble damages, in the Benton County Circuit Court, under the “Unfair Practices Act,” Act 253 of 1937 (Ark. Stat. § 70-301). The trial court sustained appellee’s demurrer, holding in effect that the Act was unconstitutional, and dismissed the complaint.

The complaint, among other things, alleges that the prices charged by appellee for its ready-mixed concrete in the Eogers and Springdale territory are at lower rates than those charged in other sections and cities served by appellee, after making allowance for transportation, grade, quality and quantity, and that the sale of said ready-mixed concrete at such rates is made with the intent to destroy the competition of appellant, a regularly established dealer.

The “Unfair Practices Act” makes it unlawful for one engaged in the distribution of a commodity of general use or consumption to discriminate between different sections, communities or cities or portions thereof, with intent to destroy competition, by selling at a lower rate in one such section than in another after making allowance for difference in grade, quality or quantity, and the actual cost of transportation. The injured person is given the right to treble damages and an injunction (Ark. Stat. § 70-310).

Although appellee candidly points out that the “Unfair Practices Act” has been upheld against an attack on its constitutionality in Baratti v. Koser Gin Co., 206 Ark. 813, 177 S. W. 2d 750, and that similar acts have been upheld by the decisions of other states, it is argued that the doctrine embraced in the Act has never been and should never become a part of Arkansas law. The contention that the Act is not a proper exercise of the police power is without merit. In addition to the Baratti decision, our Constitution, Art. 2, § 19, provides: “Perpetuities and monopolies are contrary to the genius of a republic, and shall not be allowed; . . .”

The Supreme Court of Nebraska, in State v. Dray-ton, 82 Neb. 254, 260, 117 N. W. 768, 770, in upholding a similar statute regulating monopolies under the police power of the state, said: ‘ ‘. . . It is within the knowledge of all that in many instances persons engaged in the sale of commodities in general use by the people have depressed prices in one locality where there was competition and increased them in others where there was none, thus avoiding loss, until the competitor was driven out of business, when prices would be raised to an unreasonable and oppressive extent, and the people of the district or community supplied from that point would be the sufferers. It was evidently the intention of the legislature to prevent that course of conduct if resorted to for that purpose. The law afforded no protection from the injurious effects of such predatory course. If no protection could be furnished to the people who were compelled to purchase the commodities, it would be easily within the range of possibilities for one person or corporation to practically control the whole commerce of a community, a county, or even the state, exacting such prices as greed might dictate, and yet seeing to it that no others should be allowed to engage in a similar business as competitors . . .”

Appellee, citing such cases as Noble v. Davis, 204 Ark. 156, 161 S. W. 2d 189, and Union Carbide & Carbon Corp. v. White River Distributors, Inc., 224 Ark. 558, 275 S. W. 2d 455, contends that this Court has never upheld price fixing or other regulation of a business of common right in the absence of a finding that it was impressed with a public interest.

The appellee’s assumption that this is a price fixing statute is erroneous. Dunnell v. Shelley, 38 Cal. App. 2d 118, 100 P. 2d 830. The purpose of the Act, as stated in Ark. Stat. § 70-313, is to safeguard against the creation or perpetuation of monopolies and to foster and encourage competition by prohibiting unfair and discriminatory practices by which fair and honest competition is destroyed or prevented. We think the means adopted are reasonable and appropriate to promote the purposes mentioned.

It is true that this Court, in Baratti v. Koser Gin Co., went into tbe question of whether a cotton gin was impressed with a public interest and thus subject to regulation under the police power, but it was there pointed out that one who devotes his property to a use in which the public has an interest, in effect grants to the public an interest in that use and must submit to be controlled by the public, for the common good, to the extent of the interest thus created. Thus it logically follows that a commodity of general use or consumption, as regulated by the “Unfair Practices Act,” is impressed with a public interest for purposes of regulation under the police power.

Appellee says the Act is void, under Art. 2, § 8, of the Constitution of Arkansas, because it fails to define with reasonable certainty the acts that it declares unlawful. The particular language complained of as being vague and indefinite is “to discriminate between different sections, communities or cities or portions thereof, or between different locations in such sections, communities, cities or portions thereof in this State.” Statutes with somewhat similar language were held void for indefiniteness in State v. Standard Oil Co. of New Jersey, 195 S. C. 267, 10 S. E. 2d 778, and People v. Austin, 301 Mich. 456, 3 N. W. 2d 841.

In those cases we think the courts overlooked the evils to be remedied by the Act — i. e., to prevent a business from destroying competition by depressing prices in one locality where there is competition and offsetting the loss by raising the prices in another locality where there is no competition. The language in our Act sets forth as definite a standard as the evil to be regulated will permit. For, as was said in State v. Lanesboro Produce & Hatchery Co., 221 Minn. 246, 21 N. W. 2d 792, 163 A. L. R. 1108, the kind of activity here regulated is such that the use of general and flexible terms in fixing the standard is inescapable. That court upheld, as against the contention here made, a statute prohibiting discrimination between “different sections, localities, communities, cities, or villages ... by purchasing at a higher rate in one locality . . . than is paid . . . in another section, locality, community, city or village.” See annotations in 52 A. L. R. 169 and 163 A. L. R. 1124.

Reversed.


author: Jim Johnson, Associate Justice.

text:
    Save-A-Stop, Inc. v. Sav-A-Stop, Inc.
    5-1759
    322 S. W. 2d 454
    Opinion delivered March 30, 1959.

      Glenn F. Walther, for appellant.

      Arnold M. Adams and Garvin Fitton, for appellee.
   Jim Johnson, Associate Justice.

Appellants, Save-A-Stop, Inc., et al., with their principal place of business in Little Rock, and appellee, Sav-A-Stop, Inc. with its principal place of business in Harrison, are engaged in the sale of housewares, school supplies, health and beauty aids, and other miscellaneous merchandise at wholesale to grocery stores who sell such merchandise at retail off of racks supplied by the wholesaler.

Appellants brought this action to enjoin appellee from using the name, trademark or service mark of ‘ ‘ SavA-Stop” or other similar words which could deceive retail grocers or the public into believing that they were purchasing goods offered by appellant.

Appellee counterclaimed alleging ownership of the name “Sav-A-Stop” and asked that appellants be restrained from its use and prayed that the trademark of the appellants be cancelled.

From a decision dismissing the prayer of both the appellants and appellee, the appellants appeal. For reversal, three points are relied upon: 1. The use of the words “Save-A-Stop” in connection with the business of the Little Rock Wholesale Company and the adoption and use of such words as its corporate name by the Little Rock Company, prior to the use of such words by others, give rise to an exclusive trade name. 2. The prior use of a trade name, trademark or a corporate name entitles the user to the exclusive use of such name or mark within a reasonable expansion area, which is normally to the state line. 3. The use of the name or mark, which belongs to another by reason of prior use, constitutes unfair competition regardless of palming off, where copying or imitation exists or where such use is unethical or constitutes an infringement of property rights.

All three of these points are adequately covered in the excellent opinion of the trial court. Therefore, due to the conclusion hereinafter set out, the pertinent parts of that opinion are as follows:

“The facts involved are largely undisputed and the court does not here deem necessary a lengthy statement of the facts. It is established that plaintiff, ‘Save-A-Stop, Inc. ’ was incorporated October 3,1955, and is domiciled at Little Rock, Arkansas. That its officers and stockholders are substantially the same as the officers and stockholders of plaintiff, the Little Rock Wholesale Company, That the latter company first began using the words ‘Save-A-Stop’ on its merchandise racks furnished to its retail customers in the fall of 1953; and in April 1954, it obtained a trademark registration certificate from the Office of the Secretary of the State for the words ‘Save-A-Stop’ on a red disc for use of the trademark only upon merchandise classification No. 18 pharmaceutical preparations (See Ark. Stats. Sec. 70-534). That this red disc design has been used in advertising on delivery trucks, on letterheads, invoices, etc. When plaintiff ‘Save-A-Stop, Inc.,’ was organized plaintiff, Little Rock Wholesale Company, assigned to the new corporation its trademark rights. The new company has functioned only as a commission selling agent for Little Rock Wholesale Company. The latter company is the owner of the merchandise and bills the retail store customers for same, the merchandise handled consists of health and beauty aids and housewares. The Little Rock Wholesale Company had, prior to incorporation of ‘Save-A-Stop, Inc.,’ expanded its trade territories to the counties of Polk, Montgomery, G-arland, Saline, Pulaski, Pope, Conway, Faulkner, White, Jackson, Craighead, Mississippi, and other counties in Arkansas south thereof. After the new plaintiff corporation was formed both plaintiff corporations have continued to do business in all of said area with the new corporation acting as the exclusive selling agent for the Little Rock Wholesale Company, and said plaintiffs are presently also doing business in Louisiana, Texas and Mississippi, with the new corporation acting as the exclusive selling agent for Little Rock Wholesale Company. The slogan ‘Save-A-Stop’ has and is being used by plaintiffs in advertising their business.
“The defendant, ‘Sav-A-Stop, Inc.’ was incorporated in Arkansas on December 27, 1955, with its principal office and place of business in Harrison, Arkansas. It was a successor to the business of Merchants Supply Company, which was incorporated in 1950. The defendant and its predecessor have been engaged in selling health, and beanty aids and housewares, and the defendant operates in Arkansas and seven other states and has spent about $90,000 advertising its trade name and slogan. Both the plaintiff companies and the defendant deal in nationally advertised products and about the same general line of merchandise. The defendant’s predecessor corporation first started using ‘Sav-A-Stop’ in connection with the sale of its merchandise about July 1955, and the defendant has used this slogan, or part of its corporate name, in advertising since its incorporation. Its invoices and letterheads use the corporate name ‘ Sav-A-Stop, Inc. ’ and carry the address: Harrison, Arkansas. It distributes decals to be placed in windows of its customers’ stores which read: ‘Shop Our Sav-A-Stop Department.’ These decals are an irregular rectangle shape and have red and black letters on a yellow background. It also uses the words ‘Sav-A-Stop’ in news, radio and television advertising.
“Plaintiffs contend that the similarity of the defendant’s name and advertising slogan tends to bring about confusion in mail'and in the minds of manufacturers’ representatives and to mislead customers, and that defendant should be restrained from using the words ‘Sav-A-Stop, Inc.,’ with the name of the defendant. There is no substantial evidence indicating that any confusion on the part of customers of the parties has resulted, or that it will likely result in the future. Both plaintiffs and the defendant limit their business to wholesale operations and, therefore, their customers are business people who should be capable of a reasonable degree of discrimination. The rule in such cases appears to permit a greater degree of similarity in names than may be permitted where trade is with the public-at-large (Federal Securities Co. v. Federal Securities Corp., 129 Or. 375, 276 P. 1100, 66 A.L.R.; 947). Three different Little Rock grocers testified that they were customers of plaintiffs or defendant and in some instances of both, and that they were not at any time confused with which of the parties they were dealing. There is no evidence indicating that the defendant had any knowledge of the name, or slogan used by plaintiffs at the time it' incorporated under its present name. The evidence shows that the defendant decided upon the name ‘Sav-A-Stop, Inc.,’ for its business after learning of the use of the name by some similar merchandise concern in the State of Florida. The Court finds that there is no evidence of any intent on the part of the defendant in the adoption and use of its name or advertising slogan to mislead customers and thereby divert trade from plaintiffs.
“As to plaintiffs’ claim of exclusive trademark rights by virtue of prior use of the slogan ‘Save-A-Stop’ in its advertising and merchandising and in obtaining a trademark registration certificate, the Court is of the opinion that the evidence does not disclose that plaintiffs ever used such slogan as a trademark, inasmuch as the evidence indicates that plaintiffs have never actually affixed the slogan, or purported trademark, to items of merchandise. To establish a trademark it must be attached, or affixed to a vendable commodity itself, or its cover, case or wrapping. A word or phrase used in circulars, price lists and advertisements but not placed upon the article itself does not constitute a trademark (52 Am. J. p. 511, Sec. 6). The Arkansas Statute 70-526 (E) is in accord with this general rule.
“As pointed out in the Oregon case above cited, the ultimate question in cases of this type is always whether trade is being unfairly diverted and whether the customers are deceived into purchasing something they are not in fact getting; and the Court will ‘interfere solely to prevent deception, and where the deceptive tendency is not clear equity will withhold its hand until actual deception has resulted. Mere possibility of deception is not enough.’ The case of Liberty Cash Grocers, Inc. v. Adkins, et al., 190 Ark. 911, 82 S. W. 2d 28 is distinguishable from the case before the Court in that the businesses there involved were retail and the customers were the general public. Both plaintiffs’ and defendant’s businesses were in the city and entirely domiciled in Little Bock and North Little Bock. The plaintiffs had operated in the city for five years and the name had apparently become well-established. The defendant in that case was apparently well aware of plaintiff’s business name at the time he sought to open a retail store with a similar name. Also, the word ‘Liberty’ appeared to have no connection with the type of business or service involved. In the case at bar, testimony of defendant indicates that the slogan, or name, ‘Sav-AStop’ was intended to suggest the idea that by patronizing its merchandise counter in the retail grocery store additional trips to other types of stores might be avoided; therefore, it appears that the corporate name and the advertising slogan is descriptive of the merchandising service rendered and is not merely fanciful.
“It being the opinion of the Court that the evidence fails to show that trade is being unfairly diverted or their customers are being deceived, a decree shall be entered dismissing plaintiffs’ petition and defendant’s cross-petition . .

After a careful review of the record we cannot say that the Chancellor’s findings are contrary to the weight of the evidence. We do say, however, that this case presented some most provocative questions in a field of law that is almost a stranger to this Court. In seeking the common law application to the case at bar, we find a most comprehensive discussion of trade and service marks in the Arkansas Law Review, Volume 9, page 318. We agree that at common law the case at bar, due to the similarity of the names, borders on the class of cases wherein injunction Avould lie, but further search convinces us that in the use of words descriptive of a service, Avhere the person using them has not used them over a long period of time substantially to the exclusion of all others who perform the same or similar services, such descriptive words will not be protected by injunctive relief, because one man cannot appropriate as his mark the usual words in the common language which would be used to describe the service rendered. In this case neither party contends that their names are a result of their own wit, but instead both admit that they got the idea from others in the same business who use the same name. The name is certainly not unique enough to either litigant from the facts presented to enable one to have its nse to the exclusion of the other.

The conclusion which we have reached above is in harmony with the opinion of this Court in the case of Fine v. Lochwood, 179 Ark. 222, 14 S. W. 2d 1109.

Affirmed.

Smith and Robinson, JJ., dissent.