author: Paul AVakd, Associate Justice.

text:
    Hamilton v. Pan American Southern Corp.
    5-3241
    378 S. W. 2d 652
    Opinion delivered April 27, 1964.
    [Rehearing denied June 1, 1964.]

      John Dale TJnveatt, Moses, McClellan, Arnold, Owen (& McDermott and James R. IJotvard, for appellant.

      Thorp Thomas and Roy Finch, Jr., for appellee.
   Paul AVakd, Associate Justice.

The principal question involved in this appeal relates to the liability of a sheriff for failing to make a statutory return on an execution. Most of the facts involved are not in dispute. The ones presently set out are not questioned.

Facts. In 1956 appellee, Pan American Southern Corporation, secured a judgment in the Pulaski County Circuit Court against one R. AN. Coyle in the sum of $2,782.42. The judgment not having been paid, appellee’s attorneys had an execution issued by the Pulaski County Circuit Clerk against Coyle, directed to the sheriff of Prairie County, in which county Coyle was living. The execution was dalod August 30, 1961 and was signed: “Roger McNair, Clerk, by Martha Deaton, Deputy Clerk”. It is agreed that the sheriff was obligated by statute, Ark. Stat. Ann. § 30-431 (Repl. 1962), to make a return within 60 days after the date of issuance. It is also agreed that the return must be made to the clerk of the issuing county — in this instance, Pulaski County. The sheriff of Prairie County (appellant) did not return the execution to Pulaski County until several months after it was due to be returned.

Ark. Stat. Ann. § 29-208 (Repl. 1962) in all material parts, provides that judgments shall be rendered for the plaintiff against the sheriff . . . “Por failing to return an execution; the amount of the judgment on which it was issued, including all the costs and ten [10] per centum thereon.”

Based on the above statute, appellee, in October, 1962, filed a Motion for Summary Judgment against appellant (E. 0. Hamilton, Sheriff of Prairie County) in the amount of the judgment (together with interest) previously rendered against Coyle, plus 10% penalty. Appellant, in answering, in substance, contended, among other things, that “. . . there was no indication on said execution showing from which county or court it was issued ...” and that, thinking the execution was issued by the clerk of Prairie County, he made proper return to said clerk within the time provided by law (60 days).

A jury trial resulted in a verdict and judgment against appellant in the amount of $4,696.27.

Appellant relies on three separate grounds for a reversal. We find no error based on the first and third grounds, and will therefore discuss them only briefly.

It was not error for appellee’s attorney, on voire dire examination of the jury, to ask if any juror worked for an insurance company, since the law requires a sheriff to provide a surety bond. The question here raised by appellant was decided against his contention in Brundrett v. Hargrove, 204 Ark. 258, 161 S. W. 2d 762. Neither do we find any merit in the third ground. There the court refused appellant’s requested Instruction No. 2, and properly so. The instruction permitted the jury to find appellee waived any rights it had under the statute. We have searched the record diligently and find no evidence to support such instruction.

The Issue. The decisive issue, and the one which we think calls for a reversal, arises out of the court’s refusal to give appellant’s requested Instruction No. 1. It reads as follows:

“You are. instructed that in this case it is undisputed that E. O. Hamilton, Sheriff of Prairie County, failed to make a return on the execution to the Clerk of Pulaski County, Arkansas, from which it was issued within the time prescribed by law. You are further told that it is %mdisimted that the sheriff did return the execu tion to the Glerh of Prairie County within the time prescribed by law. Yon are instructed that if you find from a preponderance of the evidence.in this case that the failure to make the return to the proper clerk (which was the Clerk of Pulaski County) was due to a mistake of existing facts on the part of the sheriff as to which clerk issued the execution and that such mistake was not made as a result of the sheriff’s own negligence or carelessness, then you are told that the sheriff is not responsible to the plaintiff and your verdict will be for the sheriff.” (Emphasis added.)

'First, appellee contends the court was justified in refusing to give the above instruction because of the words we have emphasized. That is, appellee says it is not undisputed that appellant returned the execution to the clerk of Prairie County before the 60 days had expired. We do not agree with appellee. The copy of the execution (in the record) shows it was returned on October 26, 1961, signed by the sheriff, stating no property was found in Prairie County. Foster, the deputy sheriff, said he delivered the execution (at the direction of appellant) to the office of the clerk of Prairie County, well within the 60 days limit. We find no testimony in the record which contradicts the above.

Therefore we proceed to consider appellant’s contention that he made the return to the clerk of Prairie County (instead of the clerk of Pulaski County) because he was led to do so by certain facts and circumstances over which he had no control. He says that the execution was handed to him by the clerk of Prairie County and that there was nothing on the execution to indicate it •was issued by the clerk of Pulaski County. On the other hand, appellee says the sheriff should have known there was no clerk in Prairie County named “McNair” and that the seal on the copy of the execution shows it was issued out of Pulaski County. We have carefully examined the photostatic copy of the execution in the record, and find the imprint of the seal wholly illegible, and we find nothing else on the copy (except perhaps the name of McNair) which in any way indicates the execution was issued from Pulaski County. Therefore, we feel that the record presents for the jury a question of fact as to whether appellant was excusable in failing to make a return of the execution on Pulaski County.

There can be no doubt that § 29-208 is highly penal. The fact that Coyle may have been insolvent would not release appellant from liability. Atkinson v. Heer & Co., 44 Ark. 174. In dealing with a statute of this kind it is well established by our decisions that it “must be strictly construed in favor of those upon whom the burden is sought to be imposed.” State v. International Harvester Co., 79 Ark. 517, 96 S. W. 119. To the same effect, see also, Fiser v. Clayton and Clayton v. McAmis, 221 Ark. 528, 254 S. W. 2d 315; Thompson v. Chadwick, 221 Ark. 720, 255 S. W. 2d 687; Davis v. Fowler et al, 230 Ark. 39, 320 S. W. 2d 938; and Smith v. Faubus, 230 Ark. 831, 327 S. W. 2d 562.

In the case of Bickham v. Kosminsky, 74 Ark. 413, 86 S. W. 292, where a similar issue was considered this Court said: [quoting from Simms v. Quinn, 58 Miss. 221] “ ‘Those who propose to invoke against officers the severe penalties of the statute upon which this motion is based must be careful to do nothing which directly or indirectly contributes to the omission of duty complained of’.” See also Hammons v. Pendleton, 96 Ark. 444, 133 S. W. 177; Wilkerson v. Mobley, 152 Ark. 124, 237 S. W. 726; and McIlroy Banking Company v. Mills, 178 Ark. 741, 11 S. W. 2d 481. This prompts us to suggest the advisability that, hereafter, the execution show the county in which it originates.

It follows from what we have said above that the trial court erred in refusing to give appellant’s requested Instruction No. 1. The judgment is therefore reversed, and the cause is remanded for a new trial.

Reversed and Remanded.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Flanagan v. Burden Construction Corp.
    5-3257
    377 S. W. 2d 870
    Opinion delivered April 27, 1964.

      Lookadoo, Gooch d Lookadoo, Hide d Hide, Shaver, Tackett d Jones, William Deer, D. H. Craivford, Autrey d Goodson, for appellant.

      Steel d Downey and House, Holmes, Butter d Jewell, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Natural Gas Pipeline Company of America, filed this suit under the U. S. Natural Gas Act to condemn an easement for a pipeline right-of-way across the property of appellants, the Flanagans and the Bartons. Immediate possession of the right-of-way was obtained. Appellant property owners filed an answer and cross-complaint against the pipeline company. The property owners, also filed a cross-complaint against appellee, O. R. Burden Construction Corporation, in which they sought compensation for damages alleged to have been caused by the construction of the pipeline.

The original plaintiff, the pipeline company, then filed a cross-complaint against the contractor, Burden, asking that it be reimbursed for the amount of any judgment that might be rendered against it due to any action on the part of the contractor. Burden filed an answer to both cross-complaints, but later filed motions to strike the cross-complaints. The motions were granted, and the pipeline company and the landowners have appealed.

Appellants, the pipeline company and the landowners, contend that they have the right to make appellee a party defendant under the provisions of Ark. Stat. Ann. § 27-1134 (Repl. 1962), which provides for bringing in other parties by way of a Cross-complaint, but this provision of the statute does not prevent the trial court from exercising discretion in deciding the question of whether a third party may. be brought into the case. It will be noticed that the statute provides: “A defendant may file a cross-complaint against- persons other than the plaintiff . . . when a judgment can be rendered therein that will not prejudice the rights of the parties to the cross-complaint.” It is for the trial court to determine, in advance of the trial on the merits, whether a judgment can be rendered that will not prejudice the rights of the parties to the cross-complaint.

After a hearing on the motions to strike the cross-complaints, the trial court said: “If Burden is forced to remain in this case it is readily seen that the proceedings will become infiltrated with the law of contracts, the law of negligence, contributions among joint tortfeasors, etc. I do not believe that Burden can be forced to remain in the case and at the same breath be denied the right to bring in other contractors in an effort to obtain any rightful offset. Furthermore, the contract between the pipeline company and Burden would necessarily become a factor in the case.”

It can easily be seen that if the motions to strike the cross-complaints had been overruled, the issues could have become so complicated that it would be very difficult for twelve jurors to keep from becoming utterly confused. In all probability, the appellee contractor would have wanted to file a cross-complaint against one or more subcontractors, and tbe subcontractors might want to bring in other subcontractors. The litigation between the pipeline company and the landowners would be a condemnation proceeding; the action between the landowners and the contractor would be in tort; the action against the contractor by the pipeline company would be ex contractu or ex delicto, or both; the actions by the contractor against subcontractors could be on a contract or in tort. There is no telling how many parties would finally be involved.

Ark. Stat. Ann. § 27-1124 (Repl. 1962) provides: “When it appears that a new party is necessary to a final decision upon the counterclaim, the court may either permit the new party to be made, by a summons, to reply to the counterclaim in the answer, or may direct that it be stricken out of the answer and made the subject of a separate action.”

Appellants suggest that the failure to bring the contractor into the case by way of cross-complaint could make available to the contractor a plea of res judicata in the event that suits were filed against the contractor at a later date. Without going into a discussion on when the doctrine of res judicata is applicable, suffice it to say that here, since the appellee was dismissed from the case on its own motion, it would be estopped to say that a judgment rendered in the cause would be an adjudication of its rights. 30 Am. Jur. 378; Virginia-Carolina Chemical Co. v. Kirven, 215 U. S. 252.

Appellants argue that by filing an answer prior to filing the motions to strike the cross-complaints appellee waived its right to be dismissed from the action. In support of their position on this point appellants cite Flanagan v. Drainage Dist. No. 17, 176 Ark. 31, 2 S. W. 2d 70; Drainage Dist. No. 7 v. Haverstick, 186 Ark. 374, 53 S. W. 2d 589; Teasley v. Thompson, 204 Ark. 959, 165 S. W. 2d 940; and Morris v. Varnell, 222 Ark. 294, 258 S. W. 2d 889. In none of the ¿foresaid cases was the question of a party’s right to be dismissed raised by a demurrer, in the answer, or by a motion prior to a trial on the merits.

In fact, the question was not raised until after both parties had rested, or until the case had reached the Supreme Court. Here, the question was raised before the case was reached on its merits, and appellants were in no way prejudiced by the question being raised by a motion to strike instead of it being raised in the answer.

Affirmed.

McFaddin, J., concurs.


author: Prank Holt, Associate Justice.

text:
    Pierce v. Pierce.
    5-3012
    377 S. W. 2d 868
    Opinion delivered April 27, 1964.

      Felver A. Rotoell, Jr., for appellant.

      Gordon c§ Gordon, for appellee.
   Prank Holt, Associate Justice.

This appeal arises from the allowance of a portion of a claim filed by the appellee, C. J. Pierce, d/b/a C. J. Pierce Lumber Company, against the estate of his father, M. H. Pierce, deceased. In September, 1960, a month following his father’s death, appellee filed his original claim for $10,371.28 seeking reimbursement for one-half of a salary paid by him to his employee, a timber' cruiser, for a period of three and one-half years [1955-58] and, also, the repayment of certain severance taxes allegedly paid by appellee. Subsequently this claim was amended and increased, to $25,490.00 alleging additional claims based upon the nse of appellee’s truck and the rendering of personal services in the purchase of timber lands by appellee for his father during this three and one-half year period. Upon appellee’s claim being denied by the executrix of his father’s estate, the issue was submitted to the Probate Judge who allowed appellee’s claim to the extent of $12,675.00. After deducting $12,491.41, which appellee admittedly owed his father’s estate, the court rendered judgment for appellee in the sum of $183.59 against the appellant estate.

On appeal appellant relies for reversal upon two points: (1) The court erred in finding there was a contract, expressed or implied, to compensate appellee for the “salary of his timber cruiser and truck expense,” and (2) that the court erred in finding there was a “mutual account” between appellee and his father’s business firm. On cross-appeal the appellee contends for reversal that the court erred in not allowing his claim to the extent of the proof offered for a total of $30,217.50. Appellee further urges that appellant’s appeal should be dismissed for failure to comply with Ark. Stat. § 27-2127.1 which requires that the transcript must be filed within seven months from the date of the entry of the judgment or decree. Since we think the appellee is correct in this latter contention, we first consider this point.

Pending the appeal the appellee filed a motion Avith the clerk of this court to dismiss the appeal for the reason that the transcript Avas not filed Avithin the required statutory period-of time. This motion was controverted by the appellant Avho argued that the transcript AAras filed within the required time and, furthermore, if not filed Avithin that time it Avas due to an unavoidable casualty resulting from an error made by the probate clerk. Pursuant to our per curiam order the Probate Judge proceeded to take evidence to determine the actual date of the filing in the probate clerk’s office of the questioned judgment upon which this appeal is based. Pursuant to this order the trial court has certified to us that:

“(2) Prom the evidence, it is found that the Judgment in question was 'filed with the Prohate Clerk on some date subsequent to June 27,1962, and not later than July 3, 1962, as shown by the testimony of Mr. Brewer, the clerk, * * *
(3) This finding is based on the showing that the Velma Catherine Mason and Mary Alice Cargile Order of July 2, 1962, was filed July 3, 1962, and appears of record immediately following the record of the Judgment in question.”

In the case at bar it is undisputed that the transcript was filed with the clerk of this court on February 8, 1963. Under the findings of the Probate Judge the transcript should have been lodged not later than February 3, 1963, to comply with Ark. Stat. Ann. § 27-2127.1 (Repl. 1962). It provides in pertinent part that:

“* * * the trial court shall not extend the time to a date more than seven [7] months from the date of the entry of the judgment or decree.”

We construed the meaning of the words “entry of the judgment or decree” in Cranna, Administrator v. Long, 225 Ark. 153, 279 S. W. 2d 828. There we held that if the judgment were not actually entered on the date rendered, then the date of the filing of the judgment with the clerk is the decisive date.

The appellant contends, however, that if the transcript was not timely filed it was due to an unavoidable casualty caused by an error of the clerk since the copy of the judgment contained in the transcript has typed thereon that it was filed on the 9th day of July, 1962. It is undisputed that the original judgment on file in the probate clerk’s office does not have any filing date noted thereon. Further, pursuant to our directions the trial court has determined that the judgment was actually filed not later than July 3, 1962.” The certificate of the probate clerk reveals that the entire transcript was completed on January 30, 1963, or in sufficient time to file it before the seven [7] months allowed by statute for the filing of this transcript had expired. In addition, it is undisputed that the appellant and the cross-appellant state in their notices of appeal that they are appealingfrom a judgment “entered” on the 27th day of June, 1962. There is no reference in either notice of appeal to any other date concerning the rendition or filing of the judgment in question. In other words, neither of the parties at that time made reference to the judgment actually being filed on July 9, 1962.

Under the facts in the case at bar we do not find that the delay in filing the transcript was occasioned by an unavoidable casualty and, therefore, we are impelled to hold that the appeals of the appellant and cross-appellant must be dismissed because the transcript was not filed within the required time. In the instant case the applicable provision of the statute is clear and mandatory. Although we do not reach a discussion of the other points raised by the appellant and the cross appellant is might be said, however, that upon doing so it is possible we could have reached substantially the same result.

The appeals are dismissed.


author: Carleton Harris, Chief Justice.

text:
    Southern Farm Bureau Casualty Ins. Co. v. Gaither.
    5-3265
    378 S. W. 2d 211
    Opinion delivered May 4, 1964.

      Barrett, Wheatley, Smith é Deacon, for appellant.

      D. Leonard Lingo, Harry L. Ponder, for appellee.
   Carleton Harris, Chief Justice.

“The limit of the company’s liability for loss is the-actual cash value of the automobile or its damaged parts at the time of loss. The company may pay any loss or repair or replace the automobile or its damaged parts * *:;• * ? 7

An estimate was made by Webb Body Shop of Walnut Ridge, and a repair estimate was made on June 10, 1963, in the amount of $1,426.35. The appellant company authorized repairs ou the basis of this estimate, but appellee insisted that he was entitled to a new cab, and he refused to authorize the repairing agency to proceed. The testimony reflected that subsequently additional damage to the truck was discovered, consisting of a bent frame, and two badly cut tires, which were not included in the Webb estimate. Appellee filed hi's complaint against appellant, and, after amendment, sought judgment in the amount of $2,618.07, together with penalty, attorney’s fee, and costs. The company answered, contending that it was liable only to the extent of $1,-326.35, and that it had promptly offered to pay this amount, which would fully comply with the policy, but appellee had refused to authorize the repairs. On the day of trial, Gaither reduced the prayer of his complaint to $2,075.00, but the company only tendered the aforementioned $1,326.35. At the conclusion of the evidence, appellant moved for a directed verdict, but the motion was denied. On trial, the jury returned a verdict for appellee in the amount sought, and the court thereupon entered its judgment for $2,075.00, plus a penalty of' $249.00 and an attorney’s fee of $350.00, together with costs. From such judgment comes this appeal.

Appellant contends that under the policy of insurance it had an absolute right to repair the damaged vehicle, provided it exercised its option to do so within a. reasonable time, and obtained a reputable repairing agency, located at a reasonable distance from Gaither’s home, to handle the repairs. It is asserted that when the company elected, under its option, to repair the vehicle, the original contract was converted into a contract to repair.-

Appellee contends that it was the duty of the company to repair the truck in a manner that would restore it to substantially the same value as at the time of the collision. We have held that the measure of damages is the difference in the market value of the vehicle immediately before and after the collision. Resolute Insurance Co. v. Mize, 221 Ark. 705, 255 S. W. 2d 682; Kane v. Carper-Dover Mercantile Co., 206 Ark. 674, 177 S. W. 2d 41; and Golenternek v. Kurth, 213 Ark. 643, 212 S. W. 2d 14, 3 A.L.R. 2d 593.

The company points out that a letter had been directed to Gaither in June, advising, “Repairs to your truck will be guaranteed, insofar as any damage to the vehicle sustained in the accident;” a similar letter was written in July, and the company agent also testified that he told appellee that the company would guarantee repairs and that if any item was overlooked or not properly repaired, same would be corrected at the expense of the company. However, it is admitted that the company would not agree to pay for a new cab, and .it is also undisputed that no offer was made to pay for the damage subsequently discovered (the bent frame and damaged tires).

We think a jury question was presented through the evidence offered. The proof reflected that the truck had been driven approximately 1,000 miles, i.e., it was practically new. Evidence was offered on behalf of appellee to the effect that the truck, with a repaired cab, would be less valuable than with a new cab. Wallace Jones, an implement salesman, testified that to repair the damaged cab, rather than to replace it with a new one, would ■decrease the value of the truck somewhere between $300.00 and $500.00. This witness also • stated that he ■had observed the bent frame with the naked eye, and that the two tires were badly damaged, and would have to be replaced to restore the truck to its prior value. He testified that, in his opinion, the truck had a value of $3,275.00 before the accident, and $1,100.00 after the . accident.

John Shaffer, shop manager of Lawrence County Implement Company, also testified that the frame of the •Gaither truck w;as bent.

Appellant company offered evidence to the effect that the frame was not bent, but this, of course, was a jury question.

Considering the rule governing this type of case, as stated in Resolute Insurance Co. v. Mize, supra, and the fact that a practically new truck was involved, we think there was sufficient evidence that appellant, though willing to repair the truck on the basis of the first estimate made by Webb Body Shop ($1,426.35), had not made an offer that would substantially restore the vehicle to its prior market value.

It follows that the court did not err in refusing to direct a verdict for appellant, and the judgment is therefore affirmed.

       The collision coverage provided that the first $100.00 must be paid by the insured.

       On August 29, an estimate was obtained from Lawrence County - Implement Company on the latter damage, which totaled $774.33.


author: Ed. F. McFaddin, Associate Justice. Paul Ward, Associate Justice,

text:
    Reather v. Ward Furniture Mfg. Co.
    5-3222
    378 S. W. 2d 201
    Opinion delivered May 4, 1964.

      Clinton R. Barry and D. L. Grace, for appellant.

      Harper, Harper, Young & Durden, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is the second time this case has been before us. The first appeal was Ward Furn. Mfg. Co. v. Reather, 234 Ark. 151, 350 S. W. 2d 691. The history of the litigation shows the care that the judicial system has taken in. dealing with this claim:

(a) For several years prior to 1956 Mr. Reather was employed by Ward Furniture Manufacturing Company (hereinafter sometimes called “employer”); and on September 26, 1956, while Mr. Reather was at work he suffered a collapse. Some time thereafter Mr. Reather filed a claim for workmen’s compensation alleging that he had suffered an accidental injury by breathing dust and that he had become disabled on September 26, 1956.

(b) The claim was controverted; and the Workmen’s Compensation Commission (hereinafter called “Commission”), in an opinion dated November 10, 1959, found that Mr. Reather was entitled to compensation; and the employer appealed to the Sebastian Circuit Court.

(c) The Circuit Court, by judgment of January 11, 1960, vacated and set aside the award and remanded the claim to the Commission for further testimony.

(d) Both sides offered additional evidence before the Commission; and on August 31, 1960, the Commission disallowed the claim of Mr. Reather; and he. appealed to the Circuit Court.

(e) On December 15,1960, the Circuit Court vacated the order of the Commission and directed that the case be returned to the Commission for further investigation and evidence. That judgment of the Circuit Court was appealed by the employer to this Court, and resulted in our Opinion in the said case of Ward Furn. Mfg. Co. v. Reather, 234 Ark. 151, 350 S. W. 2d 691, which affirmed the said judgment of the Circuit Court.

(f) The claim of Mr. Reather then went back to the Commission, which reopened the case for further evidence. In order to make full investigation, the Commission caused Mr. Heather to be examined by Dr. Grimsley Graham, who was asked by the Commission to answer certain propounded questions. Dr. Graham examined Mr. Heather and answered the questions propounded, and these will be subsequently discussed. Mr. Heather also had an examination by a doctor of his own selection, and offered other medical evidence.

(g) Based on the original record and all of the said supplemental evidence, including the report of Dr. Graham, the Commission, on July 26, 1963, made an order denying any compensation to Mr. Heather and stated that Mr. Heather had not sustained his burden of establishing a causal connection between his employment and his disability.

(li) Mr. Heather appealed to the Circuit Court which, on October 24, 1963, affirmed the order, of the Commission; and from the said Circuit Court judgment Mr. Heather prosecutes the present appeal to this Court.

So much for the brief history of the litigation, which extends over a number of years. The decisive question now before us is whether there is substantial evidence in the record to sustain the findings of the Commission in disallowing the claim of Mr. Heather. If so, the Circuit Court judgment was correct and must'be affirmed under our long recognized holdings, some of which are: Lemmer v. Chicopee Mfg. Co., 233 Ark. 523, 345 S. W. 2d 629; and Ft. Smith Couch & Bedding Co. v. Jones, 231 Ark. 790, 332 S. W. 2d 817.

It is undisputed that Mr. Heather collapsed while at work for appellee on September 26, 1956. He claimed that he collapsed because of breathing dust while in his place of employment. The’ question is, whether his work under the conditions existing caused or contributed to his collapse. If so, he is entitled to compensation; but the burden was on Mr. Heather to prove a causal connection between his disabled condition and his employment. Holland v. Malvern Sand & Gravel Co., 237 Ark. 635, 374 S. W. 2d 822. The Commission found that Mr. Heather had failed to prove said causal connection; and we examine now to see if there is substantial evidence in the record to sustain the said finding.

As aforesaid, the Commission caused Mr. Heather to be examined by Dr. Grimsley Graham, a specialist in the field of thoracic and cardio vascular diseases; and the Commission propounded certain questions to Dr. Graham to be answered "by him from his examination of Mr. Heather and the information furnished him by Mr. Heather. Dr. Graham made the examination and reported to the Commission in a four-page single spaced typewritten letter, dated June 5, 1962, and to that letter no objections were filed. In answer to one of the Commission’s questions, Dr. Graham stated that Mr. Heather was suffering from a pulmonary disease, being bronchiectasis, and that the chest x-ray showed some generalized emphysema and intersticial type fibrosis.

Here is the Commission’s second question to Dr. Graham:

“If the claimant is suffering from any pulmonary condition, is there, in your opinion, any causal connection between such pathology and the condition under which the claimant worked1?”

And here is Dr. Graham’s answer:

“It has been my feeling that bronchiectasis is not caused by any occupational exposure, but usually can be found to begin either in early childhood or during their younger years and may often have its onset at the time of whooping cough, which this man did have as a child, or with pneumonia; and once again this man’s condition is consistent with having had pneumonia in 1925 and 1928. I do not believe that his exposure to the dust in any way created any underlying pulmonary pathology. ’ ’ Dr. Graham went on to state that any aggravation of Mr. Heather’s condition that might have been caused by exposure to the dust would have ceased once Mr. Heather was removed from such exposure, and that the dust

did not create any change in his already pre-existing disability.

Thus, we have a case in which it was testified by Dr. Graham that there ivas no causal connection between Mi\ Reather’s work and his disability. In short, his work for appellee did not cause or aggravate his pre-existing disease or condition. Because of this testimony the Commission disallowed Mr. Reather’s claim. Dr. Graham’s report is substantial evidence and supports the decision of the Commission, so we have no choice except to affirm the judgment of the Circuit Court, which affirmed the decision of the Workmen’s Compensation Commission.

Affirmed.

Ward and Johnson, J.J., dissent.

Paul Ward, Associate Justice,

(dissenting). I am dissenting, somewhat reluctantly, in this case because I fear a great injustice is being done to the claimant — reluctantly because it is not easy to point out any plain or specific error that has been committed by the commission or the courts. Very briefly I will attempt to explain my reasons for dissenting.

One. First Hearing. The full commission on November 10, 1959 made, in substance, the following findings of. fact and law:

(a) Claimant had worked for many years in the presence of dust mixed with glue; he collapsed on September 25, 1956; and he has not been able to work since that time (up to the date of the hearing).

(b) Dr. H. B. Thompson testified: claimant had the most terrific case of asthma he had ever listened to and he sent claimant to Booneville; he was definitely assured that the occupation claimant was following was causing his trouble.

(c) The question is: does the testimony of claimant, his wife and Dr. Thompson constitute substantial proof that claimant sustained an injury arising out of and in the course of his employment; no one denies that claimant became disabled while at work; that he was treated by a physician for a long period of time and that he has never worked at anything since he left his employment on September 25, 1956; it is undisputed that he has a lung condition; and so we are of the opinion that claimant has established a compensable injury and that he should be paid.

Tivo. The above opinion by the commission was nullified by the circuit court on January 11, 1960 and the matter was remanded for further development. At the next hearing before the commission the claim was disallowed on August 30, 1960. Again the circuit court sent the matter back for still further development, telling the commission he agreed with them that the new testimony added nothing to the record. To my mind that simply means that the medical testimony was the same as at the time of the first hearing.

Three. This appeal comes from the third hearing before the commission when the commission, on the basis of testimony by Dr. G. G. Graham, disallowed the claim. This brings us to the point of considering the effect of Dr. Graham’s testimony. He was asked by the commission to answer four questions. The substance of the three pertinent questions and the doctor’s answers is set out below.

(1) Q. Is claimant suffering from any pulmonary disease or condition!

A. It is most likely that claimant has bronchiectasis —probably more extensive in the left lung than in the right lung field. To make a definite determination it would require one other examination not made.

(2) Q. If claimant is suffering from any pulmonary condition, is there any causal connection between that and his work!

A. It is my feeling that there is not; it usually begins in early childhood and it may result from whooping cougli (which this man had as a child) or it may result from pneumonia (which claimant had in 1925 and 1928); “I do not believe that his exposure to the dust in any way created any underlying pulmonary pathology at this time; I do feel, however, that there was an aggravation of this condition at the time of his exposure to the dust, however, it is my experience that once removed from the exposure that this subsides rather readily and would not create any permanent change in the pre-existing condition.” (Plmphasis supplied.)

(3) Q. If there is any causal relation between claimant’s lung pathology and his work, state whether claim-an thas any disability now and if so, the degree.

A. “I believe this is more or less answered with question two . . .” -

Four. I have carefully read all of the medical testimony pertaining to the question here involved and I cannot honestly say that I found any statement by any doctor which says plainly and positively that claimant’s condition was out caused or aggravated by the claimant’s working conditions. Under the facts and circumstances of this case I believe this would be necessary to comply with what we held in the case of Hall v. Pittman Construction Co., 235 Ark. 104, 357 S. W. 2d 263.

“If the claimant’s disability arises soon after the accident and is logically attributable to it, with nothing to suggest any other explanation for the employee’s condition, we may say without hesitation that there is no substantial evidence to sustain the commission’s refusal to make an award.”

In the case of Eddington v. City Electric Co., 237 Ark. 804, 376 S. W. 2d 550, we said:

“From the above it appears there is no positive medical evidence that claimant’s present physical condition was not caused or aggravated by his injury.”

The above language undoubtedly would apply with equal force if “working conditions” were substituted for the word “injury”.

Here we have an able bodied man who worked every day for many years in a thick dust of wood fiber mixed with glue; he suddenly collapses while at work and, after eight years, has been unable to work even one day; no doctor has said he knows for sure that claimant’s work did not cause or aggravate his condition. This almost leaves us with a choice between two theories: either claimant became disabled from working 13 years in thick dust or from having whooping cough some 40 years ago. I prefer the logic employed by the biblical blind man who was healed by Christ. When questioned as to how it happened, he replied, “. . . one thing I know, that whereas I was blind, now I see”. St. John, 9:25. After reading the two records in this case I feel like saying: whereas, claimant was a well man before September 26, 1956, now (and since that time) he is disabled.

Johnson, J., joins in this dissent.


author: George Rose Smith, J.

text:
    Dereuisseaux v. Bell.
    5-3229
    378 S. W. 2d 208
    Opinion delivered May 4, 1964.

      Kenneth Coffelt, for appellant.

      Gordon & Gordon, Felver A. Rotvell, Jr., for appellee.
   George Rose Smith, J.

Under the authority of Ark. Stat. Ann. § 62-2402 (Supp. 1963) the appellee, as administrator of the estate of Sam Bell, deceased, brought this suit to set aside certain assertedly fraudulent conveyances made by Sam Bell during the last year of his life. The chancellor, in accordance with an excellent memorandum opinion that he prepared, entered a decree granting the relief sought. For reversal the appellants, who were the immediate and ultimate recipients of the property conveyed, contend principally that there was no proof of actual fraud on the part of the parties to the various conveyances.

On November 16, 1961, Sam Bell, the decedent, shot and wounded his nephew, William Robert Bell. In February of 1962 Sam pleaded guilty to a charge of assault with intent to kill and was sentenced to fifteen years imprisonment. Sam was then suffering from a fatal disease and died in the penitentiary on November 28, 1962.

At the time of the shooting Sam Bell owned real and personal property worth about $25,000. In a series of transfers made during the first half of 1962 Sam Bell gave all his property (except a truck given to a nephew) to the appellant Leila Dereuisseaux, his favorite niece. In January, 1963, Mrs. Dereuisseaux, after having used part of the property to pay funeral expenses and other proper charges against the Bell estate, in turn gave the rest of the property to her daughter, the appellant Billie Jean Dereuisseaux. Billie Jean then delivered $12,000 in cash to her attorney, the appellant Kenneth Coffelt. This was her contribution under a contract by which she and Coffelt agreed to build and operate a motel. Coffelt had represented Sam Bell and Mrs. Dereuisseaux from the beginning. There is no question about his having been fully aware of the source of the funds paid to him by Billie Jean.

In May of 1962 William Robert Bell filed an action against Sam Bell for $121,000 as damages resulting from the shooting. After Sam’s death that case was revived in the name of his administrator, the appellee. The present suit was filed by the administrator in February of 1963, ihe complaint alleging that the conveyances were •executed with the fraudulent intention of placing Sam Bell’s property bcytmd the reach of his creditor, William Robert Bell.

It is first contended that William Robert Bell was not a creditor of Sam Bell or of his estate and that therefore the conveyances cannot be regarded as fraudulent with respect to his cause of action. This contention has been rejected in a number of cases, including Papan v. Nahay, 106 Ark. 230, 152 S. W. 107, and Horstmann v. LaFargue, 140 Ark. 558, 215 S. W. 729. Those cases hold that one having a cause of action in tort is a creditor with a right to question a fraudulent conveyance. In the Horstmaim case we recognized the fact that such a claimant becomes a creditor “upon receiving his injury.” Hence William Robert Bell was an existing creditor when the challenged conveyances were made; so we need not discuss a number of cases, cited by the appellants, that were concerned with subsequent creditors.

It was stipulated at the beginning of the trial that “Sam Bell gave all of his property, both real and personal, except the truck, to Leila Dereuisseaux.” Mrs. Dereuisseaux and others gave testimony indicating that Bell was motivated not by any desire to defraud William Robert Bell but by the wish to provide for this niece, for whom he had great affection. It is argued that in view of this proof the appellee failed to prove such ac-trial fraud as would justify the chancellor in setting aside the gifts.

This argument is unsound, for there is no requirement that conscious fraud be shown. We have repeatedly held that conveyances by an embarrassed debtor to his near relatives are presumptively fraudulent, and when the debtor’s condition proceeds, as here, to the point of insolvency such conveyances are, with respect to existing creditors, conclusively presumed to be fraudulent. Wilks v. Vaughan, 73 Ark. 174, 83 S. W. 913; Kaufman v. Citizens’ Bank, 189 Ark. 113, 70 S. W. 2d 572; Connelly v. Thomas, 234 Ark. 1024, 356 S. W. 2d 430. Since the presumption of fraud is conclusive it cannot be rebutted by proof that there was actually no intentional wrongdoing. There is no basis for any intimation of fraud on the part of Billy Jean Dereuisseaux or Mr. Coffelt, but since they took the property with knowledge of Boll’s gratuitous transfers to Mrs. Dereuisseaux they cannot be considered to be innocent purchasers. Ringgold v. Waggoner, 14 Ark. 69.

There is some suggestion in the appellants’ brief that the appellee is not in a position to attack the conveyance of one piece of real property, because it was Sam Bell’s homestead. This contention was not raised in the appellants’ pleadings nor, as far as we can discover, in any other manner in the trial court. There are a few casual statements indicating that Bell lived near Lake Conway, but there is no direct proof enabling us to say with confidence that the property was his homestead. This point is raised for the first time on appeal and therefore cannot be considered.

A final argument is that the appellee delayed so long in bringing this suit as to be guilty of laches. The record does not support this contention. Bell’s conveyances to Mrs. Dereuisseaux began in January, 1962, and ended in May of that year. Mrs. Dereuisseaux gave the property to her daughter in January, 1963. This suit was filed in February, 1963. We are of the opinion that the administrator acted with diligence in the matter. Moreover, even if the delay were considered to be prolonged, it does not appear that the rights of the appellants were prejudiced in any way.

In setting aside the transfers the chancellor directed that the funds and other property be retained in the control of the court until William Robert Bell’s personal injury action is finally decided. This procedure was proper. If there should ultimately be any assets in the estate not needed to satisfy the tort claim it will be necessary for the court to determine the proper distribution of the surplus.

Affirmed.

Robinson, J., not participating.


author: Paul Ward, Associate Justice.

text:
    Ball v. Spencer.
    5-3263
    378 S. W. 2d 205
    Opinion delivered May 4, 1964.

      Cecil Grooms, for appellant.
    Kirsch, Cathery and Brown, for appellee.
   Paul Ward, Associate Justice.

This suit was brought to reform certain deeds. The pleadings and testimony are rather long and tedious, but we believe a clear conception of the essential issues involved can be obtained from the following relatively brief statement.

Prior to 1959 appellee, Rellie Culp Smith (hereinafter called Rellie) obtained title to 80 acres of land described as the SW % of the NE % and the NW % of the SE 14, Section 31. Title to the SW 14 of the NW 14 is not in dispute on this appeal. On August 4, 1960 Rellie executed a deed to appellants conveying a portion of the NW 14 of the SE 14 (hereafter referred to as deed No. 1). The description in this deed was by metes and bounds and conveyed approximately 22 acres of land. On September 5, 1961 Rellie deeded Tom Ward all of the NW 14 of the SE 14 except 2 acres (not here involved) and except the 22 acres (described by the same description contained in deed No. 1). (We will refer to this deed as deed No. 2.) Later, Ward made a deed to appellee, R. E. Spencer, using the same description as in deed No. 2. (This is deed No. 3.)

Appellee, Rellie, contends she intended to convey (by deed No. 1) to appellants only 11.02 acres and that appellants knew they were to get only 11.02 acres. Later, when appellants indicated they were claiming all of the 22 acres, appellees filed suit (against appellants) to reform deed No. 1 to make it convey only 11.02 acres.

The Complaint. After referring to the deeds above mentioned, the complaint, among other things, contained (in essence), the following statements:

(a) Appellee (Rellie) and Gladys Ball (mother of appellants) and Gerald Ball all agreed on the description to the lands conveyed in deed No. 1; they all knew the established corners; and they all knew and agreed that the deed was to convey only 11.02 acres (as described by metes and bounds in the complaint).

(b) Appellants took possession of the 11.02 acres, but later (in late 1963) attempted to fence in the 22 acres.

(c) On April 1,1961 appellants executed a mortgage (by the same description contained in deed No. 1) to one C. B. Dearin covering the entire 22 acres.

The prayer was that deed No. 1 be reformed to convey 11.02 acres; that the deeds to Ward and Spencer be reformed to include all of the NW 14 of the SW 14 except the 11.02 acres (and the other land not involved); and, that the mortgage to Dearin be reformed to cover 11.02 acres only.

The Anstoer. Appellants entered a general denial and further alleged (in substance) that Rellie helped to measure the land described in deed No. 1; that she knew or should have known the deed conveyed 22 acres and not 11.02 acres; and that she is estopped to deny the 22 acre description because she used the identical description (used in deed No. 1) in the deed to Ward (deed No. 2).

The Decree. On September 4-, 1963, after a full hearing, the trial court found, in effect:

(a) The description in deed No. 1 should be reformed to convey 11.02 acres (setting out a metes and bounds description).

(b) The. descriptions in deeds No. 2 and No. 3 should be reformed so that 11.02 acres (instead of 22 acres) would be excepted (again set out by metes and bounds descriptions).

(c) That the description in the mortgage to Dearin should not be reformed.

For reasons hereafter set out we conclude the trial court was correct in all respects, and that the decree should be affirmed. The court was justified in finding from the evidence that when deed No. 1 was executed Rellie intended to convey and appellants expected to receive only 11.02 acres.

The north line of the 22 acres extends approximately 369 feet farther north than the north line of the 11.02 acres, and the west line of the 22 acres extends approximately 183 feet farther west than the west line of the 11.02 acres, thus resulting primarily in the difference in acreage. All of the 11.02 acres is in woods, but the land on the north side (in the 22 acres) is in cultivation. Nellie testified that she, together with Gerald and his mother, measured the land and that they didn’t go as far north as the cultivated land. She also stated that acreage was not discussed, but that they intended to go by the measurements. None of this was denied by appellants. Clarence Dawson testified he was familiar with the land in question; that he talked with appellant Gerald Ball about renting the land and that appellant told him he did not own any of the cultivated land, and that he (Dawson) would have to see Mr. Spencer (who at that time had received his deed).

There appears in-the record a reasonable explanation for the erroneous description in deed No. 1. Nellie and Gerald Ball (with his mother) went to an abstractor to have the deed written. The abstractor told them first to make measurements of the boundaries of the land and furnish the data to him. The parties procured a “chain”, made the measurements, established definite corners, and turned in the data from which the abstractor wrote the description. The trouble was that no one seemed to be sure just what kind of “chain” was used or how long it was. The abstractor testified he told them to measure the land with a chain but learned later it wasn’t a regular chain used for measuring land. He also said he made a notation to the effect that the land ran north to the cultivated land. He further testified that it was his understanding that the parties marked and agreed on all the corners. Mrs, Gladys Ball (mother of Gerald) testified that she boughtt he chain at a hardware store ; that it was of odd length — a light weight “cow” chain. She also admitted that there was a fence along the north edge of the woods and stated that they made no attempt to occupy or take charge of the cultivated land in 1961 or 1962. There is this additional significant circumstance. Appellants paid only $250 for the land, but it is obvious from the record that had the cultivated lands been included, the price would have-been considerably more.

We have carefully read the record and are convinced, that in a case of this type the evidence showing a mutual mistake meets the test as set out in Gastineau, et al. v. Crow. 222 Ark. 749, 262 S. W. 2d 654:

“In circumstances such as are presented here, the law is well established that in order to reform a deed or other written instrument ‘the evidence must be “clear convincing, unequivocal and decisive,” and must establish the right beyond a reasonable doubt. McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52. This rule does not require that the fact be established entirely beyond dispute. The only requirement is that there be more than a mere preponderance, and the evidence must be of sufficient weight to establish the issue beyond reasonable controversy or doubt.’ Adcox v. James, 168 Ark. 842, 271 S. W. 980.”

It is well settled by uniform decisions of this court that equity will reform a deed on the ground of mutual mistake. The rule was well stated in Goodrum v. Merchants & Planters Bank, 102 Ark. 326, 144 S. W. 198:

“. . . to entitle a party to reform a written instrument upon the grounds of mistake, it is essential that the mistake be mutual and common to both parties-; in other words, it must be found from the testimony that the instrument as written does not express the contract of either of the parties "thereto.”

If, as indicated above, the parties agreed on the actual boundary lines of a parcel of land consisting of 11.02 acres and the description in the deed (due to a defective “chain”) was written to describe 22 acres, it is of no avail to appellant (Gerald Ball) that he later claimed the larger acreage when he learned of the mistake. In other words, the important thing is what did appellants think they were getting at the time the measurements were made? In the case of Corey v. The Mercantile Insurance Company of America, 205 Ark. 546, 169 S. W. 2d 655, where the same issue arose, we said:

“In all such cases, the question is, not what the parties would have intended but for a misapprehension, not what the parties would have intended had they known better, but, rather, did the parties understandingly execute the instrument, and does it express their intention at the time, informed as they were?” (Emphasis added.)

Cross-Appeal. We see no merit in appellees’ contention that (since deed No. 1 has been formed) the mortgagee Dearin has a lien on only 11.2 acres. 'Appellees base this contention on the fact that Nellie testified she remained in possession of the cleared land up until the mortgage was executed, and that this constituted notice to Dearin — that is, Dearin was not an innocent mortgagee. Appellees cite no authority in support of this contention. We find, however, that in the case of Turman v. Bell, 54 Ark. 273, 15 S. W. 886, all phases of this question were ably and fully discussed. Among other things it was there stated:

“If the possession has continued after the making of the deed but a short time, it might be reasonably referred to the sufferance of the grantee; but where it was long continued, it would much more strongly imply a right in the occupant, and the implication would be sufficient to cast upon strangers the duty of inquiry.” As we read the Turman case, where a grantor remains in possession of land after he has deeded it away and the grantee later mortgages the land, notice to the mortgagee of any unrecorded interest the grantor might have in the land would depend on the facts of each particular case — such as the length of time the grantor remains in possession and the type of his possession, whether so open and notorious as would reasonably be calculated to attract the attention of a prospective purchaser or mortgagee. We find no such facts in this case. Nellie says she remained in possession of the disputed land but she does not say in what way. It does appear she did not live on the land. It is not contended she personally cultivated the land. Even if it could be said Nellie had possession, it cannot reasonably be said she retained possession long enough to arouse suspicion that she was claiming ownership. The mortgage to Dearin was executed on April 1, 1961, but it is not shown that anyone was working the cultivated land that early in the year.

In view of the above, we conclude the decree must be, and it is hereby, affirmed on direct appeal and cross appeal.


text:
    Taylor v. Samuel.
    5-3255
    378 S. W. 2d 200
    Opinion delivered May 4, 1964.

      L. V. Rhine, for appellant.

      Kirsch-, Cathey £ Broum and William B. Wharton, for appellee.
   Sam Robinson, Associate Justice.

This is a suit for damages to personal property. Appellee, Alvin B. Samuel, owned a TD-9 tractor which he left parked in the country near a house occupied by Mrs. Rosa Hyde. The tractor needed repairs, and the water was drained from the radiator and cooling system.

Later, two men delivered some lumber and unloaded it near the tractor. After the lumber was unloaded, they could not get the lumber truck started; they asked Mrs. Hyde for her permission to use the tractor to- pull the truck to get it started; she told them that the tractor did not belong to her, that it was being repaired and that no water was in it. Regardless of the warning given by Mrs. Hyde, the men started the tractor and used it .to pull the truck.

This action was filed by appellee, owner of the tractor, who alleged that the appellant, Taylor, his agents and employees, wrongfully and without permission used the tractor when the cooling system contained no water and as a result thereof the tractor was damaged in the sum of $713.39. There was a judgment for Samuel in the amount of $713.00, and Taylor, the defendant, has appealed.

There is substantial evidence that the two men who delivered the lumber used the tractor and damaged it in the stated amount. On the question of agency, Mrs. Hyde was permitted to testify that the men who delivered the lumber told her that they were delivering it for Taylor. Appellant objected on the ground that the testimony was hearsay.

Mrs. Hyde’s testimony regarding what the men told her was hearsay and inadmissible. In Rice v. Moudy, 217 Ark. 816, 233 S. W. 2d 378, this court quoted as follows from 31 C.J.S. 919: “Evidence is hearsay when its probative force depends on the competency and credibility of some person other than the witness. Subject to certain exceptions, the courts will not receive testimony of a witness as to what some other person told him, as evidence of the existence of the fact asserted.” None of the exceptions to the hearsay rule are applicable here.

Appellee argues that the fact of agency was clearly established by other evidence, and therefore, even if Mrs. Hyde’s testimony of what the men told her was not admissible, it was harmless error; but as we view the record, the agency was not clearly established by other evidence.

Reversed and remanded for new trial.


author: Jim Johnson, Associate Justice.

text:
    Rhine v. Haley.
    5-3194
    378 S. W. 2d 655
    Opinion delivered May 4, 1964.
    [Rehearing denied June 1, 1964.]

      Ward & Mooney, Iloivard A. Mayes, for appellant.
    TF. B. Hoioarcl and Jctch Segarse for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a judgment in favor of a client against an attorney on allegations of professional neglect or malpractice. The client, appellee Mildred Haley; retained appellant L. Y. Rhine, an attorney, to represent her in a suit for divorce and a settlement of her property rights. The appellant undertook the employment. A property settlement agreement was drafted and signed and, subsequently, appellee was granted a decree of divorce.

The property settlement bound appellee’s husband to pay appellee and for appellee’s benefit various sums of money totaling approximately $13,000.00, which appellee had advanced to her husband during the years when the parties enjoyed a more amicable relationship. At the time of its execution appellee’s husband, Dr. R. J. Haley, was the owner of several hundred acres of land in Greene and Lawrence Counties. The property settlement provided for no lien or tie on the lands and property of R. J. Haley to secure the amounts which 'he agreed to pay his wife.

Soon after the execution of the property settlement and the rendition of the decree of divorce, Dr. Haley defaulted and failed to make payments in accordance-with the property settlement. Appellee again consulted appellant, with reference to the default and the collection of the amounts due her. While there was strenuous denial on the part of appellant, appellee contended that appellant undertook to collect such amounts.

After a considerable lapse of time, during which Dr. Haley paid relatively little on the obligations due appellee, Haley sold all his real property, took the proceeds and all his personal property and absconded to Louisiana with his new wife. After fruitless efforts to collect from her former husband, appellee instituted the present suit in Greene Circuit Court. A jury trial was requested. Following a lengthy hearing, instructions and argument, the jury returned a verdict in favor of appellee in the sum of $12,898.27. Prom judgment on the verdict appellant prosecutes this appeal.

Appellant has filed a 292 page abstract and brief, urging eleven principal points for reversal. Several of the points are so interrelated as to allow their consolidation.

I.

In points 1, 2, 4 and 5 appellant asserts the trial court erred in the giving of Court’s Instruction No. 6. In each instance appellant contends that one or more features of the instruction were abstract for want of evidence, -and appellant further contends that the entire instruction was abstract in that there was no evidence to go to the jury on any aspect of the instruction. Instruction No. 6 is as follows:

“You are instructed that the plaintiff, Mrs. Haley, bases her right to recover in this action against the defendant, Mr. Bhine, upon two separate and alternative theories and in order to recover she must prove her contentions under either one or both of those theories, as hereinafter set out.
“It is Mrs. Haley’s contention that at or about the time she signed the property settlement agreement, Mr. Bhine was negligent in failing to speak or act in the performance of a duty that he owed to Mrs. Haley with reference to the legal effect and consequences of that document, or that under the circumstances, in violation of a professional obligation, failed to incorporate within the instrument referred to, or in some other instrument, provisions which would effect a lien upon the property of Dr. Haley, and that such failure was a failure to exercise ordinary skill and care in the exercise of his duty. If you find from a preponderance of the evidence that the defendant was negligent in performing his professional duties in these particulars you will find for the plaintiff, and unless you do so find there can be no recovery for the plaintiff under this theory.
“The plaintiff, Mrs. Haley, further contends that even though you may find that Mr. Rhine had discharged his professional obligations to Mrs. Haley with respect to the property settlement and that thereby his contract of employment was terminated by the entry of the divorce decree, that thereafter a contract was entered into by and between her and Mr. Rhine whereby he undertook to collect the indebtedness owing as a result of the property settlement and that he failed to exercise reasonable and ordinary care in effecting this collection. You are instructed that if you find from a preponderance of the evidence that a contract or agreement, either express or implied, was entered into by and between the plaintiff and defendant for the collection of the indebtedness owing by Dr. Haley and further that the defendant failed to exercise ordinary skill and care in effectuating that collection, then and in that event you will return a verdict for the plaintiff, and unless you do so find there can be no recovery for the plaintiff under this theory.”

Was the instruction abstract in any particular?

On appeals from circuit court it is not our function to re-try the case. We have examined the record for the sole purpose of ascertaining whether there was any evidence to sustain the giving of the instruction and support the resulting verdict and judgment. We think this question must be answered in the affirmative.

As indicated, the record is rather bulky and voluminous, and it would serve no useful purpose to detail the evidence at length. Suffice it to say there was ample evidence to justify the submission to the jury of the issues set forth in Instruction No. 6. When viewed in the light most favorable to appellee, as is our duty, there was evidence to show that the appellant was employed to draft the property settlement and procure the decree of divorce. In so drafting the property settlement, the appellant did not incorporate a lien to secure his client in the collection of the amounts due her, nor did he advise the client of the legal effect of her execution of the instrument. In particular, he did not advise the client that by her execution of the agreement in question she was placing it within the power of her husband to follow the very course which he subsequently pursued.

The testimony was adequate to sustain a finding that after appellee’s former husband made default appellant undertook to collect the amounts due her, and that at the time of such undertaking Dr. Haley was in possession of property having a value in excess of the amounts due appellee.' It was undisputed that appellant failed to collect these amounts.

Some of the most outstanding attorneys in northeast Arkansas gave testimony indicating -that appellant’s course of conduct in connection with the employment failed- to measure up to that which an ordinarily careful and prudent practitioner would have employed under the same or similar circumstances. The state of the record being thus, we cannot say that the trial court erred in giving Instruction No. 6 nor that the- verdict and judgment are not supported by the evidence.

II.

Appellant complains that in the course of her testimony and on re-direct examination, appellee was allowed to make a so-called “self-serving declaration,” stating her understanding of the legal meaning and effect of certain portions of the property settlement agreement. Assuming, without deciding, that such testimony would ordinarily be improper, it is clear from the record that any error in this respect was invited by appellant. Appellant cross-examined appellee at length with reference to her understanding and knowledge of the meaning of the meaning .of the various words and phrases used in the property settlement agreement. Having embarked on this line of inquiry, appellant cannot now complain because appellee accepted his invitation to give such testimony and because the matter was pursued further on re-direct examination.. Standard Life & Accident Ins. Co. v. Schmaltz, 66 Ark. 588, 53 S. W. 49.

III.

Appellant insists that he was entitled to a directed verdict on the ground that appellee had made no reasonable effort to collect directly .from her former husband the amounts due her under the property settlement. In our view, the reasonableness of appellee’s efforts to collect directly from her former husband was a question for the jury. Among other things, the record reflects that appellee brought an action against the holder of certain notes received by her ex-husband as part of the purchase price for the real property which he sold preparatory to absconding. In that action, to which her former husband was made a party by constructive service, appellee attempted to have her former husband declared to be the real and beneficial owner of the notes in question and to fasten a lien on such notes by equitable garnishment. This suit was unsuccessful at the trial level, and an appeal was prosecuted to this court, wherein we affirmed the action of the trial court in denying relief to appellee. See Haley v. Greenhaw, 235 Ark. 481, 360 S. W. 2d 753.

In addition to prosecution of the cited case, appellee testified to an unsuccessful search for property owned by her ex-husband in Arkansas and further testified that her attorneys had unsuccessfully attempted to collect the money from Dr. Haley in Louisiana.

Appellant suggests other steps which appellee might have pursued in attempting collection directly from the assets of her former husband. Without commenting upon the efficacy of such propositions advanced by appellant, it is sufficient to say that there was an issue of fact on this question and appellant was not entitled to a directed verdict on this theory.

IV.

In an apparent attempt to establish that Dr. Haley could still be compelled to pay appellee the amounts due her, appellant on cross-examination propounded a question to appellee about the amount which Dr. Haley earned each month while practicing in Paragonld. This question was objected to and the objection sustained on the ground of irrelevancy. When the objection was sustained appellant made no attempt to make an offer of proof or to show what the answer of the witness would have been, had she been permitted to answer. Under the long standing rule of this court, we cannot speculate as to what the answer would have been. Therefore, having failed to complete the record on this matter, appellant is now in no position to assert error on this point. City of Prescott v. Williamson, 108 Ark. 500, 158 S. W. 770.

Appellee interrogated the lawyers called by her as experts on the propriety of a lawyer devoting his efforts to the collection of a personal debt, rather than attempting to collect for the client, where the client’s debtor is also the lawyer’s debtor. The appellant objected to such interrogation on the ground that the hypothetical questions propounded to these witnesses failed to include the element that the lawyer was still employed by the client at the time he attempted to collect his own debt. It is appellant’s insistance that any such conduct on his part occurred only after the termination of the attorney-client relationship. In asserting that the admission of such testimony was erroneous, appellant apparently takes the position that any answer to the question would be irrelevant.

An examination of the record reveals that four witnesses were interrogated by hypothetical questions with reference to the duty of a lawyer to place the interests of his client above that of his own. The first witness questioned about the matter was attorney Maurice Cathey. When this witness was questioned on the subject, appellant interposed a general objection, without stating the ground therefor. This objection was sustained by the trial judge. Whereupon the appellee made an offer of proof out of the hearing of the jury. Upon resumption in Ihe presence of the jury, appellee re-phrased the question in the following language:

1 ‘ Q. Mr. Cathey, I am going to state a new question. Assume the relationship of attorney and client, wife who signed the property settlement and attorney still existed, assuming further that the husband who was a party to the property settlement owed a note signed by the attorney as surety, would a reasonable, prudent and careful practitioner in this community attempt to collect the note wherein he was personally liable while doing nothing about collecting the amount due the wife ? ’ ’

Appellee’s counsel then inquired, “Does that meet the objection?” In response to this inquiry the court said, “I will permit the. question to be answered.” Appellant made no objection whatever to the propounding of the quoted question, nor the ruling of the court permitting it to be answered. Neither did he object to the answer or move -that the answer be stricken.

The next witness to be interrogated on the subject was attorney Cecil Grooms. "When a question substantially similar to the question previously propounded to attorney Cathey was asked of attorney Grooms the appellant objected, “I object to that question, the hypothesis does not include the fact, state of employment.” Without a ruling by the court on the objection, appellee voluntarily modified the question propounded,' as follows: “With the further additional assumption, Mr. Grooms, assume further the attorney was still employed by the wife?” Thereupon the witness answered the question without any further objection by appellant or any ruling of the court. Later attorney Frank Sloan was questioned on the same issue, and appellant objected on the ground that the record showed that he made no attempt to collect his personal obligation until after termination of his employment by appellee. This last objection was apparently thdt the matter was irrelevant on the issue of appellant’s negligence. On cross-examination of witness Sloan, appellant propounded a hypothetical question on the same issue, with emphasis on the assumption that any efforts to collect his personal obligation occurred after termination of this employment. The witness answered that there would he no impropriety in attempting to collect or collecting personal obligations at that 'time.

Finally, attorney' G. D. Walker was questioned hy appellee hy hypothetical questions on the same subject and appellant objected on the ground that the hypothesis failed to encompass the fact that appellant’s efforts to collect his own obligation were after termination of his employment by appellee. This objection was overruled and the witness allowed to answer. Again appellant, on cross-examination of witness Walker, elicited testimony that there was nothing improper in collecting amounts due him, or for which he was liable, after termination of employment by appellee. By this cross-examination, appellant supplied the alleged missing element of the hypothesis and followed the procedure heretofore approved hy this court. Shaver v. Parsons Feed & Farm Supply, Inc., 230 Ark. 357, 322 S. W. 2d 690; New Empire Insurance Co. v. Taylor, 235 Ark. 758, 362 S. W. 2d 4.

We have gone into some detail to set forth the state of the record and the grounds of the objections interposed by appellant because this matter initially gave us some concern. However, with the record as indicated we are impelled to the conclusion that appellant waived all objections to the testimony in question.

Appellant’s objections fall into two classes: (1) The hypotheticals failed to incorporate all pertinent facts, and (2) the matter was irrelevant to the issue of negligence. Appellant was apparently satisfied with the modified questions propounded to witnesses Cathey and Grooms and did not reiterate or renew his objection to this testimony from these witnesses on any ground. Certainly the modifications of the questions to these two witnesses before they answered corrected the objections interposed by appellant. Thus when the witnesses Sloan and Walker were interrogated on this subject, there was already testimony, admitted without objection, establishing the same facts to which these witnesses testified. Further, appellant cross-examined these witnesses and proved by them that, there was nothing improper in protecting his own interests after cessation of his employment. The testimony of Cathey and Grooms established and proved the rule objected to in the testimony of Sloan and Walker.

In LaGrand v. Arkansas Oak Flooring Co., 155 Ark. 585, 245 S. W. 38, it was contended that a question propounded to an expert was improper. In that case the court said:

‘ ‘ Conceding, without deciding, that the question was an improper one, the appellant is not in an attitude to complain of the ruling of the court. For the error, if it bo an error, was waived by the appellant by not objecting to a precisely similar question propounded by appellee’s counsel on cross-examination to an expert witness which appellant had introduced to prove the nature of the injury to appellant’s eye.”

This court has never deviated from the rule of LaGrand on the many other occasions when the question has presented itself. Payne v. Thurston, 148 Ark. 456, 230 S. W. 561; Ward v. Ft. Smith Light & Traction Co., 123 Ark. 548, 185 S. W. 1085; Dierks Limber & Coal Co. v. Tollerson, 186 Ark. 429, 54 S. W. 2d 61; Schlosberg v. Doup, 187 Ark. 931, 63 S. W. 2d 337; Arkansas Power & Light Co. v. Boyd, 188 Ark. 254, 65 S. W. 2d 919. In some of the authorities it is said that when evidence of a similar-nature has been admitted without objection, the error is waived. In others it is said that the error is not prejudicial. However, the holding of all of the authorities may be summed up by saying that in a situation such as that shown by the record in the case at bar appellant is in no position to complain.

The fact that appellant objected on the ground of irrelevancy as to the testimony of witnesses Sloan and Walker, whereas his earlier objections to the testimony of Cathey and Grooms were as to the form of the hypothetical question, is of no moment, because the earlier objections were eorrécted, and the testimony of the first two witnesses, when admitted, came in without any objections. Therefore the admission of the testimony of Cathey and Grooms, without objection, was an effective waiver of the right to object to the testimony of Sloan and Walker on the ground of irrelevancy.

VI..

The witnesses mentioned in the discussion of the preceding point were called by appellee to testify as to what ordinarily careful and prudent practitioners in the Greene County area would have done under the same or similar circumstances. Appellant complains that such testimony is improper in that it allowed the witnesses to testify as to conclusions of law, and that no witness may be allowed to testify as to the law. It is said that 'when these witnesses gave their opinion as to the proper method of procedure, and when they explained the reasons for such procedure by reference to the governing law, they were usurping the function of the court. It is contended that the trial court has the sole and exclusive authority to advise the jury as to matter of law. Many authorities are cited by appellant in support of this proposition. However, the testimony in question was not proof as to conclusions of law, but, rather, it was evidence of standards of conduct for attorneys in the community in question, and references to the law were purely by way of explanation as to proper methods of procedure. The challenged testimony simply went to the issue of whether appellant was negligent in the performance of his professional employment.

In the early case of Pennington v. Yell, 11 Ark. 212, this court said:

“reasonable diligence and skill constitute the measure of an attorney’s engagement with his client. He is liable only for gross negligence or gross ignorance in the performance of his professional duties; and this is a question • of fact to be determined by the jury, and is sometimes to be ascertained by the evidence of those who are conversant with and skilled in' the same kind of business, (as the cases of Russell v. Palmer, 2 Wil. 325, and of Godfrey v. Dalton, 6 Bing. 460.) These doctrines are sustained by all the authorities with unanimity and distinctness. 4 Burr. 2060. 3 Camp. 17, 19. 2 Bos. & Pul. 357. 4 Ala. 594. 2 Porter 210. 2 How. (Miss.) 317. 2 Greenl. Ev., sec. 144, p. 137.”

In Hampel-Lawson Mercantile Co. v. Poe, 169 Ark. 840, 277 S. W. 29, this court had occasion to discuss and elaborate on the Pennington case as follows:

"Because the relationship between an attorney and client is one of trust and confidence, our own court, in Pennington v. Yell, supra, declared-that the failure to exercise ordinary care as above defined on the part of attorney is crassa negligentia — gross negligence. "When our court declared that an attorney is liable only for gross negligence or gross ignorance in the performance of his professional duties, it was but tantamount to saying that an attorney is liable to his client for a failure to exercise ordinary care’as above defined. 6 Corpus Juris, § 226; Holmes v. Peck, 1 R. I. 242; Goodman v. Walker, 30 Ala. 482, 495.”

The testimony in question was for the purpose of furnishing the jury with a guide and a standard by which to measure appellant’s conduct under the circumstances in determining the ultimate issue of whether appellant was or was not negligent. While as an abstract proposition, it is improper to call witnesses to testify as to conclusions of law, this was not the situation in the case at bar. As to the propriety of an attorney’s testimony as to negligence and standards of conduct in a malpractice action, the weight of authority is to the effect that such testimony is proper and permissible. In 5 Am. Jur., Attorneys at Law, §104, p. 342, it is said:. from is sometimes to be ascertained from the testimony of those who are conversant with, and skilled in, the same kind of business.” (Citing Pennington v. Yell, 11 Ark. 212, 52 Am. Dec. 262.)

"In actions against attorneys for negligence, want of skill, or disobedience to instructions, the ordinary rules of evidence are applicable . . . Whether an attorney has been negligent or has displayed such ignorance in the performance of his professional duties as to render him liable to his client for damages resulting there-

See also Automobile Underwriters, Incorporated v. Smith, 166 N. E. 2d 341 (Ind. 1960); Lynch v. Republic Pub. Co., 243 P. 2d 636 (Wash. 1952).

VII.

Appellant requested the following instruction:

“You are instructed that when Attorney L. V. Rhine was employed by Mrs. Mildred Haley to assist her and her husband in reducing a property settlement agreement to writing and to procure for her a decree of divorce from her husband, Mr. Rhine was not bound, in the absence of a special agreement, to file that written agreement for recordation or to see that it was made a public record. Such filing and recording of written instruments is no part of an.attorney’s duty, unless he has specially undertaken it.”

This instruction was properly refused by the trial court for the reason that it was abstract. No evidence was adduced by either party and no instruction was given by the court submitting any issue as to any negligence on the part of appellant in failing to file for record the property settlement in question. Although there were allegations in the complaint to the effect that such failure was negligent, appellee apparently abandoned this theory at trial, and there was no reason for instructing the jury on a matter which was extraneous to the issues to be determined.

VIII.

Appellant requested the following instruction:

“You are instructed that defendant L. V. Rhine entered this trial with the benefit of a legal presumption that he had fully and correctly discharged every obligation that he ever owed to Mrs. Haley, and you must give him the benefit of that presumption throughout the trial unless you become convinced by a preponderance of the evidence that he failed to perform some duty which you find that he owed to Mrs. Haley.”

This instruction was refused by the trial court. It will be observed that the instruction was, in the final analysis, a request to charge that the burden was on appellee to establish her case by a preponderance of the evidence. This matter had already been covered by Court’s Instruction No. 6 (supra, part I.). In a substantially similar situation this court held that there was no error in failing to give instructions as to legal presumptions which merely amounted to placing the burden of proof upon the plaintiff where such burden had been fairly placed upon the plaintiff in other instructions. Cockerham v. Barnes, 230 Ark. 197, 321 S. W. 2d 385. See also Moore v. Lawson, 210 Ark. 553, 196 S. W. 2d 908. Therefore there was no error in refusing appellant’s requested instruction set out above.

Appellee has cross-appealed, contending that since every item of her damage was liquidated and because the items which she was precluded from collecting from her ex-husband bore interest according to their terms, the trial court erred in failing to add interest to the jury verdict. It is argued that the trial court reserved the question of whether interest was allowable for determination after rendition of the jury’s verdict. However after rendition of the verdict, the trial court refused interest. There was no error in the action of the trial court in disallowing these items, of interest. Although appellee’s claim against her ex-husband was on contract, her claim against appellant was in tort on the theory that appellant was guilty of negligence.

In Southern Farm Bureau Cas. Ins. Co. v. Hardin, 233 Ark. 1011, 351 S. W. 2d 153, this court modified a judgment by deleting an amount added by the trial court to the jury verdict for interest. This modification was for the reason that the action was in tort and interest was allowable only from the date of judgment. Appellee recognizes the force of this holding, bnt in effect urges us to overrule the case. We see no valid reason for so doing. Accordingly, the cross-appeal is denied.

Finding no error in the proceedings, the case is affirmed on appeal and on cross-appeal.


text:
    Champion v. Champion.
    5-3216
    378 S. W. 2d 648
    Opinion delivered May 11, 1964.

      George E. Pike, for appellant.

      William G. Davis and Milton G. Robinson, for appellee.
   Carleton Harris, Chief Justice.

Appellee, Lucille K. Champion, was granted an absolute divorce from appellant, Walton T. Champion, and was given custody of the four minor children. The court directed that $350.00 per month should be paid by appellant for the support of these minors, granted an attorney’s fee of $1,200.00, and made the following findings relative to the personal and real property.

‘ ‘ That plaintiff shall pay the mortgage payments on the family residence located at 403 .West 6th Street, Stuttgart, Arkansas, out of said sum paid to her by defendant each month, and plaintiff is hereby granted the use and occupancy of said family residence so long as said property is used as a residence by plaintiff and/or the said minor children.

“That the household furnishings and equipment situated in the said family residence shall remain therein for the use of plaintiff and the said minor children.

“That the plaintiff is hereby awarded a one-third (%) interest absolutely in all personal property of defendant and said plaintiff is hereby awarded a one-third (V3) interest for life in all real property owned by defendant; that the said interests herein awarded shall apply to all of defendant’s property, both real and personal wherever situated. The estate by the entirety by which title to Lots 5 and 6, Block 1, Improvement Company’s Second Addition to the City of Stuttgart, Arkansas, is now held, is hereby dissolved, and legal title to said property is hereby vested in the parties hereto as tenants in common, each of said parties owning an undivided one-half (■%) thereof.

“If, within ninety (90) days from September 1, 1963, a proper and acceptable property settlement agreement has not been reached under the terms hereof, the Court hereby appoints, designates and constitutes Mr. John Gunnell as Commissioner of this Court, who, after due and proper notice as by law prescribed for judicial sales, shall proceed to take charge of all real and personal property belonging to the defendant, (wherever such property may be situated) and shall sell all of such real and personal property at the North Door of the Courthouse, Stuttgart, Arkansas, at public outcry to the highest bidder. From the proceeds of such sale, the said Commissioner shall pay all costs of such sale (including the cost of advertising in newspapers having a general circulation in the State of Arkansas, which advertising is hereby specifically authorized) from said proceeds of said sale, said Commissioner shall pay off and discharge all indebtedness' which constitutes a lien or an encumbrance on said property, and shall report and hold the balance of said proceeds subject to further orders of this Court. ’ ’

From the decree so entered, appellant brings this appeal.

The granting of the divorce and the order of custody are not at issue, as appellant only asserts one alleged error as follows:

££The Court erred in failing to designate and set out the specific property which plaintiff would receive and erred in not appointing commissioners to view and lay off to the plaintiff and defendant the specific lands to which they are entitled under the terms of the decree. ’ ’

It will be noted from the decree (heretofore quoted) that the court did not specify the particular property to be given appellee. On the day the decree was entered, John Gunnell, Circuit and Chancery Clerk, was appointed receiver pursuant to joint petition of the parties. The parties were unable to agree, on a division of the property, and appellant filed a petition to modify and amend the decree, praying that the court appoint three commissioners to divide both the personal and real property in accordance with the terms of the decree, appellant alleging that he believed that the property could be divided in kind. This petition was denied, the court finding:

£<:* * * no conditions have changed since the rendition of the original decree which would justify granting the prayer for relief prayed herein. The court further finds that ££the question of a division of the property in kind was properly ruled upon at the time of the rendition of the final decree and has become final. ’ ’

Accordingly, the only issue presented by this appeal is whether the court erred in ordering the sale of the properties, the proceeds to be divided as per the terms of the decree, instead of dividing the property in kind. The record is voluminous, but it would appear that the parties owned several lots in Stuttgart by the entirety, and Dr. Champion held title to the home place, the possession of which was awarded to Mrs. Champion and the children. Other holdings of appellant included five lots in Stuttgart, an apartment house, a farm of approximately 608 aeres, known as the “Brummitt” farm, the “Buckhorn” farm, consisting of 2,130 acres, and 120 acres of farmland in Monroe County. The farm operations have not been profitable, and the testimony reflects that some of the lands could hardly be characterized as productive farm property; for instance, all the roads surrounding the Buckhorn farm are dirt roads, the farm is stumpy, grassy land, and according to George Harr, contained 1,000 acres of swamp land.

Albert Halley testified:

“You don’t hardly get out; at one time you couldn’t even drive a tractor down the road. Last year before I got my soy beans out, the latter part of October or first week of November, it started raining and I lost 10 or 15 acres of soy beans, and the road got under water. ’ ’

According to Jim Shook, the land contained, “Pot holes, little sinks, low places and high places.”

One witness testified that the Brummitt farm was overflowed about 75% of the time that he would visit there, and Marion Harr testified that it was mostly “waste land and overflow land * * *

“The beans this year might be eight inches high and skimpy, last year a little better, not a whole lot, and I haven’t paid any attention to the cotton, and the rice, I have seen some good rice, and I have seen some you couldn’t pull a combine iii, you couldn’t hardly walk across.”

A great deal of similar testimony ivas offered, but probably the most pertinent fact to the issue involved is that practically all properties, real and personal, belonging to Dr. Champion, are under mortgage.

The court, in its findings, stated:

“A great deal of the testimony has concerned itself with the property rights of the parties, and the financial condition of the parties, and primarily the financial condition of the Defendant. One thing is fairly clear and isn’t subject to much dispute, if any dispute at all, and that is that the Defendant has his financial condition in an extremely unfortunate position. That is rather obvh ous from the testimony that has been given concerning his debts.
“The Defendant, while on the witness stand, testified at great lengths concerning the property that he owns and the amount of the indebtedness, both secured and unsecured, that he owes. There didn’t seem to be any serious dispute concerning the property that he owns,, and there doesn’t seem to be any serious dispute that' the indebtedness he testified about is correct. There possibly would be some controversy and some dispute why the debts came into being in the first place, but as to the amount of indebtedness there is no dispute or very little dispute.
‘ ‘ The Court will not list all of the items of indebtedness but I point up what the situation is: The Defendant testified that he owes the John Hancock Life Insurance Company in excess of $135,000.00, counting the interest that is due. He owes the Production Credit Association of Forrest City in the neighborhood of $55,000.00. He owes the First Federal Savings & Loan Association of Stuttgart, $16,000.00, and' owes many other items which the Defendant has testified about and about which there seems to be no serious dispute. Those items, along with othgr items of indebtedness, are secured by mortgages on the real property and in some instances, personal property of the Defendant. * * * Evidence clearly indicates a bad financial condition, and I emphasize bad.”

Of course, a Chancery Court has full authority to order a sale of property, provided the proof is satisfactory that no division in kind can be made, even though commissioners have not been appointed to make such a determination. See Briggs v. Jacobs, 228 Ark. 589, 309 S. W. 2d 201, and cases cited therein. As here pointed out by the court, a great deal of the evidence dealt with the various properties belonging to appellant. No specific proof was offered by appellant that these properties were susceptible to division in kind; in fact, in his argument, it is stated:

“ ‘If .there was an effort made to divide it in kind, there would be a chance that three good men could go on the ground, view the property and set aside to Mrs. Champion the part to which she is entitled. ’ ’ ’

'Appellant points out that the Chancellor made no finding in his decree that the lands could not be divided in kind, but it was not necessary that this specific finding be set out. Young, Admr., v. Wyatt, 130 Ark. 371, 197 S. W. 575. It is sufficient if the pleadings and proof justify the order made; actually, the court, in effect, did make the finding, for it denied appellant’s motion to appoint commissioners with this language:

“the question of a division of the property in kind was properly ruled upon at the time of the rendition of the final decree * * *”

The burden is on appellant to establish that the court erred, and from the record before us, we are unable to make such a finding.

Affirmed.

       262 acres of crop land; 78.8 acres rice allotment and 20.7 cotton allotment.

       1540 crop land; 492.7 acres rice allotment; 188.7 acres cotton allotment.

       Emphasis supplied.


author: Sam Bobinson, Associate Justice.

text:
    Teer v. Plant.
    5-3251
    378 S. W. 2d 663
    Opinion delivered May 11, 1964.

      Martin, Doclds <& Kidd, for appellant.

      Gannaioay & Darrow, for appellee.
   Sam Bobinson, Associate Justice.

This is an action in ejectment filed by appellee, Johnson Plant; from a judgment in favor of the plaintiff, the defendant, Harley Teer, has appealed. Three points are argued. First, that the court erred in holding that appellee was entitled to possession; second, that appellant had acquired the property by adverse possession; and third, that appellant was entitled to reimbursement for improvements.

The land involved contains 1.18 acres. On April 7, 1962, appellee, Plant, acquired the property by warranty deed from his'uncle, Tony Murph, who in turn had inherited the property from appellee’s grandfather. Plant’s predecessors in title had acquired the property by adverse possession extending continuously over a period of more than 40 years. The deed to Plant contained a valid and proper description of the property.

On March 21, 1955, appellant, Teer, obtained a tax deed from the State. The. description of the land in the tax deed was as follows:

Part of the NW 14, NW 14, Section 33, Township 2 South, Bange 11 West, containing 15 acres.

This is a part description which conveys nothing and is void. Clem v. Missouri Pacific R. Co. 223 Ark. 887, 269 S. W. 2d 306; Price v. Price, 207 Ark. 804, 182 S. W. 2d 879; Hershey v. Thompson, 50 Ark. 484, 8 S. W. 689. Neither is it sufficient to constitute color of title. Clem v. Missouri Pacific R. Co., supra, Thomason v. Abbott, 217 Ark. 281, 229 S. W. 2d 660. Teer, therefore, acquired no interest in the property by virtue of his tax deed.

The second question is did Teer obtain title by advérse possession,, notwithstanding the tax deed gives him no color of title? It appears that the first act done by Teer, according to his testimony, indicating that he was claiming title to the property was the setting out of some small trees in the fall of 1955. It cannot be said that the mere planting of some small trees is sufficient to constitute adverse possession. Later he built a chicken housé that extended a few feet over onto the property in controversy; he also dug a pond in 1956 or 1957 and built on the property a cow shed, a shed for hogs and one for dogs, but seven years had not expired from the time of such construction work until this action in ejectment was filed against him. The court said in Dials v. Bryant, 211 Ark. 212, 199 S. W. 2d 753: “Where actual possession is relied upon to support a plea of limitation or to establish title to land by limitation it must be shown that such possession was continuous, as well as notorious, adverse and exclusive. Mere fitful or intermittent possession is not sufficient. Greer v. Vaughn, 128 Ark. 331, 194 S. W. 232; Driver v. Martin, 68 Ark. 551, 60 S. W. 651; Scott v. Mills, 49 Ark .266, 4 S. W. 908; Brown v. Bocquin, 57 Ark. 97, 20 S. W. 813; Sanderson v. Thomas, 192 Ark. 302, 90 S. W. 2d 965; Norword v. Mayo, 153 Ark. 620, 241 S. W. 7; Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 2d 566, 1011, 91 S. W. 20.”

Next, appellant .contends that he expended about $2,000.00 in improvements on the property, and that even if it should be held that he has not. acquired good title to the property, he is entitled to be reimbursed for the' money he spent on improvements and in .payment of taxes. The record shows that for the years 1955 to 1961, inclusive, Teer paid taxes ■ on 15 acres in the quarter section in which the land in controversy is located, but there is no showing that he paid taxes on the particular land here involved. It is also shown that he paid taxes for 1961 on 15 acres and that the 1.18 acres here involved constitutes a part of that 15 acres, but there is no showing of the value of the 1.18 acres as compared to the balance of the 15 acre tract, and therefore, there is no showing as to the amount paid as taxes on the land in litigation here. Teer has a home on that part of the 15 acres not in litigation here.

• As pointed out in Wilkins v. Maggard, 190 Ark. 532, 79 S. W. 2d 1003, under the Revenue Act, Ark. Stat. Ann. § 84-1121 (Repl. 1960), Teer is entitled to recover the cash value of any improvements he placed on the property subsequent to two years after his purchase from the State; however, here there is no showing of the cash value of such improvements. Just because Teer may have spent $2,000.00 does not mean that he has improved the property to that extent or that the cash value of the improvements amounts to that sum. In fact, it does not appear that the property is worth $2,000.00. In 1955 the State Land Department valued it at $8.00 per acre, and in 1962 the same Department valued the 1.18 acres at $Í20.00. But be that as it may, the record does not show that any of the claimed improvements were made subsequent to two years after Teer received the tax deed.

The judgment of the trial court provides that Teer has the right to remove any buildings he has placed on the' property, and there is no cross-appeal.

Affirmed.