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

text:
    Jimmy W. GRIMMETT v. Tom F. DIGBY, Circuit Judge
    79-239
    589 S.W. 2d 579
    Opinion delivered November 26, 1979
    (In Banc)

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for petitioner.

      Lowe & Hamlin, by: Frank S. Hamlin, for respondent Home Insurance Co.
   Conley Byrd, Justice.

Petitioner Jimmy W. Grimmett, a state policeman, while patrolling the highways and while on regular duty as an Arkansas State Trooper, made a left turn in front of one of Home Insurance Company’s insureds causing damages in the amount of $996.67. When Home Insurance Company brought suit to recover the $996.67, petitioner moved to dismiss the action on the basis that it constituted an action against the State of Arkansas which was prohibited by Art. 5 § 20 of the Constitution of Arkansas and that the jurisdiction of such claims was exclusively with the Arkansas Claims Commission. After the trial court overruled petitioner’s motion to dismiss, he filed his petition here for a writ of prohibition raising the same issues.

Article V § 20 upon which petitioner relies provides:

“The State of Arkansas shall never be made defendant in any of her courts.”

We pointed out in Kelly v. Wood, Circuit Judge, 265 Ark. 337, 578 S.W. 2d 566 (1979), that an automobile negligence action for personal injuries brought against a state trooper for a violation of duty imposed upon him by law in common with all other people using the highways does not amount to an action against the State within the prohibition of Arkansas Constitution Art. V § 20supra. The same principle has been recognized by most of the authorities. See Belknap v. Schild, 161 U.S. 10, 16 S. Ct. 443, 40 L. ed. 599 (1896), where it is stated:

“But the exemption of the United States from judicial process does not protect their officers and agents, civil or military, in the time of peace, from being personally liable to an action of tort by a private person whose rights of property they have wrongfully invaded or injured, even by authority of the United States.”

Petitioner readily recognizes our decision in Kelly v. Wood, Judge, supra, but points out that other states with a provision similar to Art. V § 20, supra, have upheld tort-claim acts such as the Arkansas Claims Commission Act, Ark. Stat. Ann. § 13-1401 et seq. (Repl. 1968), and have construed such acts as giving exclusive jurisdiction of all personal injury actions against state employees to such commissions or adjudicatory agencies. In making this contention, the petitioner fails to take into consideration other provisions of the Arkansas Constitution such as Art. 2 § 7 and Art. 2 § 13.

Article 2 § 7 provides:

“The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; ...”

Article 2 § 13 provides:

“Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and. without denial, promptly and without delay, conformably to the laws.”

In St. L., I.M. & S. Ry. v. Williams, 49 Ark. 492, 5 S.W. 883 (1887), based upon the foregoing constitutional provisions, we said:

“Every one is entitled, under the Constitution, to have his rights enforced, his wrongs redressed, and his liabilities determined in the courts, whenever it becomes necessary to compel their enforcement, redress or adjustment, and, when he is liable for damages, as the appellant is in this case, to have the damages he shall pay assessed by a jury. The Legislature has no power to substitute boards of arbitration for the courts, without the consent of parties, and make their awards obligatory and the exercise of the right to seek the aid of the courts to obtain relief from a wrong, or impose upon any one a penalty for exercising such right. To make the action of such a board obligatory or impose such a penalty would be a denial of the right, or a purchase of justice, and a violation of the Constitution.”

The foregoing construction given to Art. 2 § 7 and Art. 2 § 13 made it necessary for the people of this State to amend the Constitution [Amendment #26] before a valid Workmen’s Compensation law could be enacted. Such provisions would also prevent the General Assembly from giving the Claims Commission exclusive jurisdiction of tort claims against state employees or officers for their unlawful acts.

Writ denied.

Harris ,. C. J., not participating.

Fogleman and Hickman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I must respectfully dissent from the holding in this case, although I concurred in the result in Kelly v. Wood, 265 Ark. 337, 578 S.W. 2d 566. There is a basic difference in that case and this which is not apparent from the face of the majority opinion in Kelly. It was not at all clear that Kelly was in the performance of any duty of his employment at the time of the occurrence which gave rise to the action, the trial of which he sought to prohibit. The writ of prohibition is an extraordinary and discretionary writ which should be used cautiously and never granted where the petitioner is not clearly entitled to that relief. Henderson v. Dudley, 264 Ark. 697, 574 S.W. 2d 658; Karraz v. Taylor, 259 Ark. 699, 535 S.W. 2d 840; Wade v. State, 264 Ark. 320, 571 S.W. 2d 231; Webb v. Harrison, 261 Ark. 279, 547 S.W. 2d 748. Since I did not feel that the petitioner Kelly was clearly entitled to that relief, I concurred in the result, as did the Chief Justice.

The question that concerned me in Kelly is not present here. We are squarely presented with the question of the liability of an Arkansas State policeman for an act done or omitted negligently while he is engaged in the performance of his duties. There can be no doubt that petitioner is a state officer. Downey v. Toler, 214 Ark. 334, 216 S.W. 2d 60. In Downey, we said:

In short, Arkansas State Police are under the control of the State; they represent the State government, and — within the limits of the said Act — they are Statewide law enforcement officials.

We pointed out the nature of the functions performed by the Arkansas State Police and the department in arriving at that conclusion. The purpose cannot be better stated than it was in the first section of that act, now digested as Ark. Stat. Ann. § 42-401 (Repl. 1977), which reads:

For the purpose of enforcing the motor vehicle laws, traffic laws and other state laws relating to protecting and properly maintaining the State Highway System of the State of Arkansas and to render more effective the apprehension of criminals and the enforcement of criminal law, there is hereby created the Department of Arkansas State Police. The police officers hereinafter provided for shall be known as “Arkansas State Police.”

The policemen are employed strictly upon an efficiency basis, along the lines of civil service; and, as pointed out in Downey, hold their offices until and unless removed for cause. Ark. Stat. Ann. § 42-406 (Repl. 1977). They are conservators of the peace and have the powers possessed by policemen in the cities and sheriffs in the counties, which they may exercise anywhere in the state, along with all the power and authority of the State Fire Marshal. They are required to cooperate with regularly constituted peace officers in the state in enforcement of the criminal laws and assist them in the apprehension of criminals. Ark. Stat. Ann. § 42-407 (Repl. 1977). They are furnished vehicles, equipment and supplies necessary for the performance of their duties, and wear insignia bearing the words ‘ ‘ Arkansas State Police.” Ark. Stat. Ann. § 42-409 (Repl. 1977). Any Arkansas State policeman has the authority, in case of emergency, to deputize any reputable citizen whenever it is deemed necessary for the proper enforcement of the law. Ark. Stat. Ann. § 42-413 (Repl. 1977). Each officer must take the oath required of public officials and furnish a surety bond. Ark. Stat. Ann. § 42-414 (Repl. 1977).

Among the important governmental functions performed by the Arkansas State Police are the following:

Patrolling the public highways, making arrests, enforcing the laws of this state relating to motor vehicles and the use of the highways; assisting in the collection of delinquent motor vehicle licenses and of gasoline tax and other taxes; determining when a person or persons are the cause of injury to the state highways and arresting persons responsible therefor and persons responsible for injury to other state property. Ark. Stat. Ann. § 42-407 (Repl. 1977).
Providing police protection benefitting any statewide function sponsored or conducted by a state agency, board or commission, state supported college or institution, or by a private non-profit association or organization on public property. Ark. Stat. Ann. § 42-407.1 (Repl. 1977).
Taking or summoning all persons arrested upon charges of violating any of the highway laws of the state or any rules and regulations of the Arkansas Highway Commission, Transportation Commission and the Revenue Department governing the highways and any other crime punishable as a misdemeanor before the judge having jurisdiction of the offense; placing persons arrested for felonies in a county jail. Ark. Stat. Ann. § 42-408 (Repl. 1977).
Assisting in the enforcement of all laws of the state prohibiting the unlawful sale or manufacture of intoxicating liquors. Ark. Stat. Ann. § 48-1101 (Repl. 1977).

No one in state government performs any more essential or important function of state government. It is apparent that the duties performed by a state policeman are duties owed the general public.

Only a few states have a constitutional provision like Art. 5, § 20 of our constitution. One of those is the State of Illinois. The language of their constitutional provision and that of Art. 5 § 20 are virtually identical. Illinois law, like our own, exempts a state agency from liability through court action because of this constitutional provision. See Minear v. State Board of Agriculture, 259 Ill. 549, 102 N.E. 1082, Ann. Cas. 1914B 1290 (1913); Tri-B Advertising, Inc. v. Arkansas State Highway Com’n., 260 Ark. 227, 539 S.W. 2d 430.

In Mower v. Williams, 402 Ill. 486, 84 N.E. 2d 435 (1949), the Illinois Supreme Court considered the question of liability of a highway maintenance man for ordinary negligence in light of the constitutional provision and of case law. The maintenance man was the operator of a state-owned truck with a snow plow and, while engaged in removing snow and ice from the highways, caused a collision between the truck and a privately owned automobile from which the occupants of the automobile suffered damages. The negligent act consisted of entering the intersection with the state-owned truck and snow plow, without looking in the direction from which the plaintiffs automobile was coming, and relying on the statement of a helper that it was safe to proceed. At the close of all the evidence, a verdict was directed, partly on the basis of common law and statutory immunity. The Appellate Court reversed this action, but the Supreme Court reversed the action of the Appellate Court and affirmed the judgment of the trial court. The Supreme Court rejected the argument that the snow plow operator was liable under Illinois law which held an employee acting in a ministerial capacity liable for negligent performance of his duties. The court explained the import of such decisions on the basis that liability exists where the duty is not a public one but is a duty to the plaintiff individually, not as a member of the general public, but there is no liability for negligence in the performance of a duty to the public so long as the employee exercises his judgment and discretion fairly and honestly.

The Illinois Supreme Court said that it was apparent that the duty being performed was a duty owed the general public. In holding the highway maintenance man immune from liability for ordinary negligence, the Illinois Supreme Court said:

In the instant case the evidence reveals that defendant was employed by the State Highway Department, that he was assigned by his superiors to be “maintenance man” on a designated strip of some 21 miles of highway. He was assigned other men as helpers and provided with equipment including the snow plow, with which to perform his various duties. He was, in general, left to his own judgment as to when and where he should perform his duties in his assigned territory and as to the manner in which he would use the State-owned equipment furnished him. Under such circumstances his duties were not within the definition of “ministerial’ ’ as announced in the Bartels case [People v. Bartels, 138 Ill. 322, 27 N.E. 1091 (1891)]. Defendant is conceded to be the agent of the State and there is no contention that the removing of the snow from the public highway at the place and time of the collision was not within the duties with which defendant was charged. The removal of snow and ice from one of the main traveled highways is absolutely essential to the welfare and safety of the traveling public. There are few, if any, functions of public responsibility which require more prompt and effective action on the part of those charged with such duty. That the removal of such snow and ice is a governmental as distinguished from a ministerial function appears as a reasonable proposition when circumscribed by conditions necessitating the overcoming of the hazard of snow and ice, with its attending danger to life and property, especially when it is of such magnitude that private means are not adequate to deal with the problem, and where the public welfare demands and the public relies on the State to meet the problem. The defendant, as an agent of the State, was charged with a duty that was in no way fixed as to time, mode or occasion and his duty was not ministerial in character.

In a later case, the Illinois Supreme Court held that a police officer, whose city police car collided with the truck of a third party, causing the death of a pedestrian who was struck by the truck, was performing a governmental function on behalf of the municipality by which he was employed and was not liable for the death. Taylor v. City of Berwyn, 372 Ill. 124, 22 N.E. 2d 930 (1939). The city police officer, Bartunek, was pursuing an automobile in which suspected criminals were riding at the time of the collision, which occured outside the limits of the city by which Bartunek was employed. The Illinois court held that, at the time of the collision, Bartunek was in the performance of his duty as a police officer of the city by which he was employed, and that, because of this fact, a judgment against him was erroneous.

. Upon similar reasoning, the Supreme Judicial Court of Massachusetts has held that a state farm officer, acting in the performance of his duty, was not liable for injuries suffered by two passengers, prisoners in the officer’s custody, in a collision between an automobile being driven by the officer and another automobile. Haberger v. Carver, 297 Mass. 435, 9 N.E. 2d 305 (1937). The defendant Carver was a prison officer at the state farm. He was directed by the prison farm superintendent to take the prisoners, who were the injured plaintiffs, to the Superior Court of Suffolk County at Boston to testify in cases pending there. Because the automobiles belonging to the commonwealth were otherwise engaged, the superintendent instructed Carver to use his own automobile; however, Carver was to be compensated for its use. It was found that Carver was negligent in the operation of his automobile. On that basis, the trial court held against Carver, and denied his motion for a favorable finding on the ground that he, at the time of the collision, was a state officer, acting in the performance of his duty, having the plaintiff in his official custody for transportation, and was not liable to the plaintiff, even though Carver may have been negligent in the operation of the automobile.

On appeal, the Massachusetts court pointed out that, by statute, Carver was a subordinate officer appointed by the superintendent subject to the approval of the commissioner of correction. Consequently, it was held that Carver was entitled to his request for the following rulings by the trial court:

“The defendant at the time of the accident was a state officer acting in the performance of his duty, having the plaintiff in his official custody for transportation, and therefore the defendant is not liable to the plaintiff even though the defendant may have been negligent in the operation of his automobile.”
“That on all the evidence the plaintiff is not entitled to recover.”

I am aware of the fact that there are decisions to the contrary in other jurisdictions. I am not aware of one in a jurisdiction having a constitutional provision such as ours.

We did say in Tri-B Advertising, Inc. v. Arkansas State Highway Com’n., supra, that the “State of Arkansas, its officers and its agencies” could not be made a defendant in any of its courts, and that “[t]his immunity extends to suits for torts.” Although, in the context of that opinion, the statement as to officers might be taken as dictum, I submit that it is a proper approach to the question. The holdings of the Illinois and Massachusetts courts are sound and well reasoned. The state can only act through such officers as Grimmett in enforcing its laws. Such officers are often required to respond in emergency situations, and they should be able to do so without being restrained by concern over their potential liability for ordinary negligence, for which, in the ordinary case, the employer would be liable under the doctrine of respondeat superior. As a result of this decision, the state will be compelled to provide protection to state officers against the payment of damages in such situations because there is no more important governmental function than that of the state police, in a society based upon the rule of law. Consequently, indirectly, though not directly, the purpose of Art. 5, § 20 will be subverted by requiring payment of damages because of the ordinary negligence of state officers in cases such as this. This action violates the spirit, if not the letter, of our constitutional provision.

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


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    FORD MOTOR CREDIT COMPANY v. George HERRING and Cecil GEISLER
    79-251
    589 S.W. 2d 584
    Opinion delivered November 26, 1979
    (In Banc)

      Griffin Smith & W. R. Nixon, Jr., by: W. R. Nixon, Jr., for appellant.

      Ray & Donovan, for appellees.
   Frank Holt, Justice.

The appellees were purchasers of two pickup trucks which were financed under retail installment contracts with the appellant. The contracts authorized repossession of the vehicles upon the buyer’s default. When each appellee became delinquent on his monthly payments, appellant repossessed the trucks in which various items of personal property were stored. Appellant brings this appeal from a judgment awarding appellees $2,000 in actual damages and $17,000 in punitive damages.

Appellant first contends that the trial court erred in submitting the issue of conversion to the jury since no element of force, threats of force, or breach of the peace accompanied repossession. In pre-code cases, we have sustained a finding of conversion only where force, or threats of force, or risk of invoking violence, accompanied the repossession. Manhattan Credit Co., Inc. v. Brewer, 232 Ark. 976, 341 S.W. 2d 765 (1961); Kensinger Acceptance Corp. v. Davis, 223 Ark. 942, 269 S.W. 2d 792 (1954).

Ark. Stat. Ann. § 85-9-503 (Supp. 1977) provides in pertinent part of the code:

Unless otherwise agreed, a secured party has on default the right to take possession of the collateral. In taking possession, a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action.

Here the contract recited that upon default by the appellee debtors, appellant creditor could invoke the remedies of the U.C.C. “including the right to repossess the property wherever the same may be found with free right of entry.” Clearly the appellant had the contractual and statutory authority to repossess the vehicles. Teeter Motor Co., Inc. v. First National Bank of Hot Springs, 260 Ark. 764, 543 S.W. 2d 938 (1976). In the case at bar there was no personal confrontation or contract between the repossession contractor and either of the appellees when the vehicles were repossessed. There was open access to the vehicles parked in a private driveway or adjacent to the houses. Both were removed during the evening hours without entry into, or damages to, any structure. Within a few minutes following repossession of Herring’s truck, he, in a telephone conversation with the repossessor, admittedly demanded only the right to retrieve his personal items, stating ‘ ‘they [Ford] can have the truck.” The next day he telephoned appellant Ford asking permission to “pick up” his payments which was refused. Appellee Geisler’s only contact with the appellant was in this same telephone conversation the next day following the repossession. In Teeter, supra, we upheld the right of the seller to repossess the vehicle upon default if it could be done without a breach of the peace as provided in § 85-9-503. Here the evidence is clearly insufficient to establish a fact question that the repossession of the trucks constituted a conversion.

Even though the repossession of the vehicles was proper, the question of whether appellant’s subsequent retention of certain personal property stored in the trucks constituted conversion was properly submitted to the jury. Conversion is the “exercise of dominion over the property in violation of the rights of the owner or person entitled to possession.” Thomas v. Westbrook, 206 Ark. 841, 177 S.W. 2d 931 (1944). We have also defined conversion as the wrongful taking or dominion over one’s property in subversion and denial of his rights irrespective of whether there was a demand and refusal for its return. Barnett Bros. Merc. Co. v. Jarrett, 133 Ark. 173, 202 S.W. 474 (1918); Plunkett-Jarrell Grocery Co., et al v. Terry, 222 Ark. 784, 263 S.W. 2d 229 (1953); Meyers v. Meyers, 214 Ark. 273, 216 S.W. 2d 54 (1948); and Westark Production Credit Association v. Shouse, 227 Ark. 1141, 305 S.W. 2d 127 (1957). Here, however, the contract specifically provided that “any personalty in or attached to the property when repossessed may be held by the seller without liability . . .” The property consisted mostly of various pieces of concrete equipment and tools jointly owned and stored in the trucks at the time of the repossession. The appellees were partners in the concrete business. The trucks and equipment were used in their means of livelihood. Although the appellant was authorized under the contract to hold the personal property, it could do so only as long as it was necessary to secure possession of the trucks. Jones v. General Motors Acceptance Corp. 565 P. 2d 9 (Okla. 1977); General Motors Acceptance Corp. v. Vincent, 183 Okla. 547, 83 P. 2d 539 (1938); and Ford Motor Credit Co. v. Waters, 273 So. 2d 96 (Fla. App. 1973).

As previously indicated, appellee Herring telephoned the repossession contractor shortly following the repossession and advised him that he “needed my [his] personal effects and tools out of my [his] trucks.” Herring requested that the contractor remain a few minutes at the local restaurant where the truck was parked until he, Herring, could arrive to discuss the return of the tools and equipment to him. Herring arrived approximately a minute later, and the truck and tools were gone. The morning after the repossession appellant’s employee, in a telephone conversation, denied any knowledge of the tools. A written report by the repossession contractor, dated two days after the repossession, advised appellant about the existence of the personalty in the repossessed trucks. Appellees filed a lawsuit four days after repossession. Appellant released possession of the property to appellees about two months later through arrangements by their attorney. Appellee Herring testified that he and Geisler had to abandon a project due to appellant’s retention of their jointly owned concrete equipment and tools. There is no evidence that the retention of the personal property, following a demand for its return, was necessary to the repossession of the trucks. In viewing the evidence most favorable to the appellees, as we must do on appeal, we hold that appellant is not absolutely shielded from liability by the contract terms when it can reasonably be inferred, as here, that it intentionally withheld the property after a demand had been made for it.

Appellant next asserts that there was insufficient evidence to support the jury’s award of $2,000 actual damages for the conversion of the trucks and personal property. We agree. As previously indicated, there was a submissible issue only as to conversion of the personalty. Appellant correctly states that the proper measure of damages for the conversion of the personal items was their market value at the time and place of the conversion. U.S. v. Bartholomew, 137 F. Supp. 700(D.C. Ark. 1956); Hardin v. Marshall, 176 Ark. 977, 5 S.W. 2d 325 (1928); American Soda Fountain Co. v. Futrall, 73 Ark. 464, 84 S.W. 505 (1905); and Parks v. Thomas, 138 Ark. 70, 210 S.W. 141 (1919). The fact that the majority of the items were eventually returned to the appellees does not bar recovery of damages for their conversion but may mitigate the damages. Norman v. Roberts, 29 Ark. 365 (1874); and Plummer v. Reeves, 83 Ark. 10, 102 S.W. 376 (1907). Here there was no evidence as to the value of various missing items. As to the items retrieved by appellees, the evidence, as to most items, was primarily based upon the purchase, replacement and rental price. Obviously, the evidence was deficient and did not comport with the recited standard.

Appellant next contends that the court erred in allowing the appellees to read to the jury a colloquy between counsel which took place during a discovery deposition in a different lawsuit between the parties to this action. The court admitted this verbal exchange between counsel as evidence of agency between appellant and its repossessor contractor. From the record before us, it is impossible to determine the precise issues in the prior lawsuit even though the same parties, lawfirms and incidents were involved. It is argued, however, by the appellees that the conversion of the personalty was in issue there and the same issue is presented here plus conversion of the trucks. Therefore, say appellees, the exchange between the parties’ counsel in the discovery proceeding is admissible. Even so, the parties, however, may modify or amend their pleadings resulting in additional issues upon a remand. Sanders v. Walden, 214 Ark. 523, 217 S.W. 2d 357 (1949); and Loyd v. Southwest Ark. Utilities Corp., 264 Ark. 818, 580 S.W. 2d 935 (1979). Furthermore, the issue of agency was not raised on this appeal.

Appellant next asserts that the court erred in instructing the jury regarding punitive damages since there was no evidence of force, oppression, or intimidation in connection with the repossession. In Clark et al v. Bales, 15 Ark. 452 (1854), we said the jury “had the right to take into consideration .... the vexation to [plaintiffs] feeling[s], the inconvenience to him arising from the deprivation of his property [hogs], as well as its value, and then to add something by way of ‘smart money,’ or exemplary damages.” Exemplary damages are proper where there is an intentional violation of another’s right to his property. Kelly v. McDonald, 39 Ark. 387 (1882); Ft. Smith I. & S. Mills v. So. R.B.P. Co., 139 Ark. 101, 213 S.W. 21 (1919); and Parks v. Thomas, supra. In view of the evidence previously recited, we hold that, although the taking was proper, the retention of the personalty after demand for its return constituted a submissible fact question on the issue of punitive damages.

Appellant’s last assertion for reversal is that AMI Civil 2d 2217 does not accurately state the law on punitive damages in a conversion action and, therefore, the court erred in reciting this instruction to the jury. That instruction provides in pertinent part:

Punitive damages may be imposed to punish a wrongdoer and to deter others from similar conduct. Before you can impose punitive damages you must find that -knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct [with malice or] in reckless disregard of the consequences from which malice may be inferred.

We agree with the appellant that this instruction was formulated for use in negligence cases. See Committee Comment AMI Civil 2d XXIX. It was not designed, as here, without modification to apply in a case of an intentional tort; i.e., conversion.

Reversed and remanded.

Harris, C.J., not participating.


author: John I. Purtle, Justice.

text:
    Dwight STERLING v. STATE of Arkansas
    CR 79-169
    590 S.W. 2d 254
    Opinion delivered November 26, 1979
    (In Banc)
    [Rehearing denied January 7, 1980.]

      John Patterson, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Molock, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

This is an interlocutory appeal from the order of the trial court denying appellant’s motion to introduce evidence of the alleged victim’s prior sexual conduct at the trial of the case on its merits. It was the holding of the trial court that the inflammatory and prejudicial nature of the evidence outweighed its probative vaiue. Although the court held there was some probative value, there was no holding of relevancy.

Appellant urges the trial court erred in ruling the evidence of the alleged victim’s prior sexual conduct would be inadmissible at the trial and further erred in unduly limiting direct examination of the alleged victim concerning her conduct on the night of the alleged rape. We do not find the court erred on either allegation.

Appellant is one of two men charged with the rape of a 13 year old girl on August 8, 1978, in White County, Arkansas, in violation of Ark. Stat. Ann. § 41-1803 (Repl. 1977). Appellant filed a motion to admit (at the trial) evidence of the victim’s prior sexual conduct pursuant to the provisions of Ark. Stat. Ann. § 41-1810.2 (Repl. 1977). During the course of the in camera hearing the appellant’s counsel inquired of the victim as to her motive in causing the charges of rape to be filed. The specific questions asked at the time were: (1) What did you tell your parents? (2) How much did you drink? The court sustained the state’s objection to these questions. The court further commented that appellant could not inquire about acts upon which the present prosecution was based. There was no proffer of the answers nor were other questions presented either as to the acts upon which the prosecution was based or questions relating to other acts of sexual conduct.

Ark. Stat. Ann. § 41-1810.1 (Repl. 1977) prohibits introduction of evidence of a victim’s prior sexual conduct. However, the next section of the Act (§ 41-1810.2) reads as follows:

Notwithstanding the prohibition contained in Section 1 (§ 41-1810.1), evidence directly pertaining to the act upon which the prosecution is based or evidence of the victim’s prior sexual conduct with the defendant or any other person may be admitted at the trial if the relevancy of such evidence is determined in the following manner: ***

This statute clearly allows evidence of the alleged victim’s prior sexual conduct, as well as evidence directly pertaining to the acts upon which the present prosecution is based, to be introduced or inquired about at the in camera hearing. The purpose of such hearing is to review the evidence to determine whether it is relevant for trial purposes. Unless the court hears such evidence, it cannot properly determine its relevancy. Such conduct, including conduct on the date or at the time of the alleged offense, is proper at the pretrial hearing. Any conduct which relates to consent of the alleged victim is proper, regardless of its time and place. Remoteness in time and absence of similar circumstances go to the relevancy of such conduct and are matters to be considered by the trial court in determining whether such evidence should be excluded at the trial.

Appellant should have been permitted to present any available evidence relating to the victim’s prior sexual conduct and any available evidence relating to the acts upon which the present prosecution is based. However, the in camera hearing is not designed to be used as a subterfuge to obtain a discovery deposition from the alleged victim. There is no requirement that the victim present herself for questioning by the accused. We disagree with appellant’s theory that all prior acts of sexual conduct are relevant as tending to show consent. To accept such contention would serve to completely defeat the intent of the General Assembly as evidenced by the enactment of Act 197 of 1977. The emergency clause of Act 197 (Ark. Stat. Ann. § 41-1810.1.2.3.4) specifically recites that evidence in such hearings is limited to that which directly pertains to the act upon which the prosecution is based. The obvious intent of the Act was to encourage victims to prosecute offenders without fear of being humiliated by public questions concerning any and all past acts of sexual conduct.

We agree with the trial court’s holding that what the victim told her father or what motivated her to cause the charges to be filed is not within the bounds of the statute or the motion as filed. The motion stated the appellant had information which he desired to present to the court for consideration. We are unable to rule on evidence not proffered or questions not asked. Duncan v. State, 263 Ark. 242, 565 S.W. 2d 1 (1978). Prior acts of sexual conduct are not within themselves evidence of consent in a subsequent sexual act. There must be some additional evidence connecting such prior acts to the alleged consent in the present case before the prior acts become relevant. The record before us does not show there is any additional connecting evidence which renders the prior admitted consensual acts of sexual conduct relevant in the present case. Had the appellant proffered additional questions and answers we might have been in a position to agree with his contentions. Appellant may cross-examine the alleged victim at the trial about events which may be relevant to his defense. It is possible that matters previously ruled inadmissible could become relevant. Any time before the defense rests he may present a written motion to the court relating to the victim’s prior sexual conduct. Ark. Stat. Ann. § 41-1810.2 (a), supra.

Affirmed.

Harris, C.J., not participating.

Byrd, J., dissents.


author: George Rose Smith, Justice.

text:
    Madelyn ATKINSON, County Clerk, et al v. EL DORADO SCHOOL DISTRICT NO. 15
    79-158
    590 S.W. 2d 5
    Opinion delivered December 3, 1979
    (In Banc)

      William A. McLean, Deputy Prosecuting Attorney, for appellants.

      Brown, Compton & Prewett, Ltd., for appellees.
   George Rose Smith, Justice.

When the annual school elections were held in Union county on March 14, 1978, the three school districts involved in this case were separate districts. The voters of the Lawson District approved a 40-mill school tax, those of the Urbana District approved a 45-mill tax, and those of the El Dorado District approved a 58-mill tax. Later in March the school boards of the Lawson and Urbana Districts, being unable to maintain the “A” rating required by the Quality Education Act, petitioned the County Board of Education to abolish those districts and annex their territory to “another district.” (Ark. Stat. Ann. § 80-4602 [Supp. 1979].) In April the county board approved the two petitions, dissolved the two districts, and annexed their territory to the El Dorado District. In November the county quorum court levied school taxes for each of the three districts at the rate approved in the preceding March school election.

When the time came for the county clerk to extend the taxes on the tax books, for collection in 1979, the clerk proposed to extend them at the millage rates approved in the school elections and levied by the quorum court; that is, 40 mills for the former Lawson District territory and 45 mills for the former Urbana District territory. The El Dorado District, insisting that its 58-mill tax be levied, brought this suit for an injunction and declaratory judgment requiring the county clerk and the collector to extend and collect the taxes in both the former districts at the El Dorado rate. This appeal is from a decree requiring that the 58-mill tax be levied.

There appears to be no constitutional provision or statute applicable to this particular situation. It is, however, fundamental in our law that the property owners within a school district have the right to vote on the millage rate every year at the school election. Const. Amendment 40; Ark. Stat. Ann. § 80-602 (Repl. 1960). In 1978, when the Lawson and Urbana School Districts still existed, their electors exercised that right and fixed the rate of taxation for all property within the districts. It was only later on that the two small districts were annexed to the El Dorado district, where other electors had voted for a somewhat higher millage rate. The quorum court’s decision to levy the school taxes at the rate approved by the electors in each district was reasonable and just. Needless to say, the tax rate for years subsequent to 1978 is to be determined at the annual El Dorado School District elections, in which all the property owners will be entitled to vote.

Reversed.


text:
    WORTH JAMES CONSTRUCTION COMPANY v. JACKSONVILLE WATER COMMISSION et al
    79-278
    590 S.W. 2d 256
    Opinion delivered December 3, 1979
    (In Banc)
    [Rehearing denied January 7, 1980.]

      Friday, Eldredge & Clark, for appellant.

      Paul D. Groce, for appellees.
   George Rose Smith, Justice.

This is a suit by the appellant, Worth James Construction Company, to enjoin the Jacksonville Water Commission from awarding a construction contract to S & S Construction Company (also a defendant). Worth James contends that it should be awarded the contract,, because it was admittedly the low bidder among the six contractors bidding for the job. The chancellor denied relief on several grounds, one of them being that Worth James has no standing to sue and another that the Commission was justified, in the city’s best interest, in not awarding the contract to the lowest bidder.

The letting of the contract was governed by Ark. Stat. Ann. § 14-612 (Repl. 1979). That statute, as we have said about a different law, does not provide “that the contract shall be let to the person whose bid is lowest in terms of money.” Street Improvement Dist. No. 130 of Hot Springs v. Crockett, 181 Ark. 869, 28 S.W. 2d 331 (1930). Instead, the present statute directs that the advertisement for bids contain a statement (as this one did) that the Commission reserves the right “to reject any or all bids.” The statute also provides that after the Commission has opened and compared the bids, it shall award the contract to the lowest responsible bidder, “provided that [the Commission] be of the opinion that the best interests of the taxing unit would be served thereby.” Here the advertisement for bids tracked that provision by reciting that the Commission reserved the right “to accept the proposal which will best serve the interest of the City of Jacksonville.”

The contract was for the construction of more than two miles of 24-inch water line and almost one mile of 12-inch water line. The specifications provided that the pipe to be furnished by the contractor might be ductile iron pipe, prestressed concrete pipe, or pretensioned concrete pipe. The Commission’s consulting engineers supplied the bidding forms, which contemplated that each bidder would insert in appropriate blanks a price per foot for at least one kind of pipe, extend the lowest unit price for the total footage, and include the resulting figure in the total bid. There were some 20 other items in addition to the pipe, but it is readily apparent that the bottom-line total was the important figure, since the constituent prices might be adjusted by the bidder pretty much at will.

The bids were opened on May 11, 1979. The figures were compiled in detail and certified by the Commission’s engineers. The Worth James bid of $707,586.17 was the lowest of the six bids. Worth James had selected pretensioned concrete pipe for the 24-inch line and ductile iron pipe for the 12-inch line. The appellee S & S’s bid of $714,755.10 was the third lowest bid, but it was the lowest bid specifying ductile iron pipe throughout. (The difference in the two bids lay in the other items, as the S & S bid was actually lower than that of Worth James for each of the three kinds of pipe. This is not really material, however, as it was the grand total that mattered. The only significance of the per-foot unit prices seems to stem from a clause stating that in the final settlement the total bid price will be adjusted for variations from the quantities listed on the form supplied to the bidders.)

After the opening of the bids on May 11, the three Commissioners met on May 16 to award the contract. The Commission’s manager presented a statement strongly recommending the use of ductile iron pipe, because (a) both management and maintenance personnel had working experience with it, (b) it is a proven material in Arkansas, and (c) there is about 40,000 feet of existing ductile iron pipe in the Jacksonville Water System, which was stated to be a very important consideration in view of there being ductile iron maintenance equipment already on hand. The statement recognized that pretensioned concrete pipe was acceptable and in conformity with the specifications, but the manager thought that the $7,186.93 difference between the two bids (about 1%) could be justified for the reasons he gave. Of course, as Worth James points out, all those matters could have been determined before the specifications and bidding forms were prepared. The manager testified at the hearing below that if the difference between the two bids had been $100,000 instead of about $7,000, he could not have justified the use of iron pipe.

At the Commission meeting on May 16, one of the three commissioners moved that the contract be awarded to S & S on the basis of its use of ductile iron pipe. The motion was seconded, but upon an objection by the Worth James attorney, the motion was tabled to permit the Commission’s counsel to research the law. A week later the commissioners met again and were advised by counsel that they could select any bid. They unanimously awarded the contract to S & S. This suit was filed two days later, on May 25.

The chancellor rested his decision in part upon a finding that Worth James has no standing to maintain the suit. The chancellor relied upon Arkansas Democrat Co. v. Press Printing Co., 57 Ark. 322, 21 S.W. 586 (1893), and Bank of Eastern Ark. v. Bank of Forrest City, 94 Ark. 311, 126 S.W. 837 (1910), both holding that the low bidder on a public contract has no standing to question an award to a higher bidder, because the laws requiring competitive bidding are passed for the benefit of the public and can be enforced only at the instance of a taxpayer (or here a ratepayer, as the water line is to be financed by revenue bonds).

We think it best not to explore the question of standing, because an affirmance on that ground might not preclude the maintenance of a rate payer’s suit, with attendant delay. The parties and their counsel have expedited this case, doubtless because incessant inflation is a threat both to the city and to the successful bidder. The entire litigation has taken less than seven months. We have no inclination to decide the case upon a ground that might result in delay.

The chancellor found, upon the merits, that “the proof fails to even suggest that in making this contract award to S & S, [the Commission] acted in bad faith, with favoritism, or for any reason except a determination that [the use of iron pipe] was in the best interest of the City. I conclude the statute gives it this discretion, and that this determination is neither unlawful or arbitrary. ’ ’ There is actually no evidence to the contrary; so the issue narrows down to one of law.

As we have seen, both the statute and the advertisement for bids gave notice that the Commission could reject any or all bids and that the Commission reserved the right to accept the bid that would best serve the interest of the city. There is much authority to support the view that the Commission acted within the limits contemplated by the statute. The following statement in an annotation on the subject in 27 A.L.R. 2d 917, 924 (1953), is supported by many citations:

Where the public officials have the right to reject any and all bids for a public contract, the view is generally taken that they may consider the differences or variations in the character or quality of the materials, articles, or work proposed to be furnished by the various bidders, in determining whether to accept any of the bids, or which bid to accept.

Of course the rejection of the lowest bid must be, as it was here, for good cause and in good faith.

Worth James’s real grievance, one that has given us much concern, is that the Commission should have asserted its preference for ductile iron pipe at the very beginning, by requiring truly alternate bids (as North Little Rock did in the letting of a companion contract for part of the same project). See McQuillin, Municipal Corporations, § 29.55 (3d ed., 1966 revision). Instead, the forms for bidding led the bidders to believe that the Commission had no preference among the three specified kinds of pipe. Had Worth James known about the preference for iron pipe, it might, it argues, have submitted an overall bid with a lower figure than the one it inserted as its unit price for 24-inch iron pipe.

Even so, we are unwilling to say as a matter of law that in the circumstances the Commission was without any choice except to accept the Worth James bid, which specified pretensioned concrete pipe. The fact remains that Worth James did insert in its bid a figure for ductile iron 24-inch pipe, which, if extended, would have made its bid $74,558.17 more than the one submitted by S & S. Moreover, Worth James has made no offer in its pleadings or testimony to supply iron pipe either for the amount of its own bid or for that of the S & S bid. Thus we cannot say with confidence that Worth James was actually misled to its detriment.

Affirmed.

Harris, C.J., not participating.

Byrd, J., dissents.


author: John A. Fogleman, Justice.

text:
    Gary KEENAN, Administrator of the Estate of Frances Ritcheson v. Paul D. PEEVY et al
    78-192
    590 S.W. 2d 259
    Opinion delivered December 3, 1979
    (In Banc)

      Crouch, Blair, Cypert & Waters, by: James M. Roy, Jr., for appellant.

      Davis, Douglas & Penix, P.A., and Kendall & Schnuntz, by: Donald B. Kendall and Williams & Williams, by: Claude M. Williams, Jr., for appellees.
   John A. Fogleman, Justice.

This appeal was taken from a decree of the chancery court sustaining a demurrer to the complaint of appellant Gary Keenan, as Administrator of the Estate of Frances Ritcheson, against appellee Paul D. Peevy and others and dismissing that complaint. Our review in this situation requires that we accept all facts well pleaded in the complaint as true, draw all reasonable inferences and indulge every reasonable intendment in favor of the pleader, and construe the complaint most favorably to the plaintiff. Tri-B Advertising, Inc. v. Arkansas State Highway Com’n., 260 Ark. 227, 539 S.W. 2d 430; Brewer v. Hawkins, 241 Ark. 460, 408 S.W. 2d 492; Howell v. Simon, 225 Ark. 535, 283 S.W. 2d 680; Simms v. Tingle, 232 Ark. 239, 335 S.W. 2d 449. In the light appropriate for review, we will state some allegations as facts.

C. R. Ritcheson died on July 19, 1971. Paul Peevy was appointed administrator of his estate on August 19, 1971, on Peevy’s petition. Peevy applied for his own appointment as guardian of Frances Ritcheson, on July 26, 1971 and he was appointed by W. H. Enfield, a circuit judge acting as probate judge on exchange, on the same day. Frances Ritcheson died on August 5, 1973. Gary Keenan was appointed administrator of her estate on July 12, 1976. The complaint in this action was filed on June 27, 1977. Oral arguments on the demurrers were heard on February 6,1978. The chancellor’s memorandum opinion on the demurrers to appellant’s complaint was rendered on April 12, 1978, and the order of the chancery court dismissing appellant’s complaint was entered April 24, 1978.

At the time of her death, Mrs. Ritcheson owned the following property in her own right:

Lot 6 in Block 2 of the Replat of Lots 3 and 14 in Block 2, Oakcrest Addition to the City of Rogers, which was conveyed to C. R. Ritcheson and Frances M. Ritcheson, husband and wife, by the entirety, by warranty deed dated March 7, 1964;
32 acres in the NE 1/4 NE 1/4 of Sec. 14, Township 20 N, R 29 W, which was conveyed to C R. Ritcheson and Frances Ritcheson, husband and wife, as tenants by the entirety, by warranty deed dated August 7, 1970;
344 shares of common stock of American Telephone & Telegraph Company, issued to Claude R. Ritcheson and Frances C. Ritcheson, as joint tenants, as joint tenants with right of survivorship or as joint tenants with right of survivorship and not as tenants in common;
Certain household goods and effects;
A 1968 Cadillac automobile; and
Two diamond rings.

Appellant alleged that the order appointing Peevy as guardian and all proceedings had in said guardianship of Frances Ritcheson were null and void for want of jurisdiction of the probate court to make the appointment. The following reasons, among others, were alleged:

The petition shows on its face that Frances Ritcheson was not an incompetent within the meaning of Ark. Stat. Ann. § 57-601 (c) (2) (Repl. 1971). It stated that she was unable to care for herself because of physical impairment, not that she was mentally incompetent;
No notice was ever given to Frances Ritcheson (who signed the petition for the appointment of Peevy) as required by Ark. Stat. Ann. § 57-601 (a) (1) (Repl. 1971), or to one of her nearest competent relatives by blood or marriage as required by Ark. Stat. Ann. § 57-611 (b) (5) (Repl. 1971);
There was no evidence of compliance with Ark. Stat. Ann. §§ 57-614 — 615 (Repl. 1971), by proof of incompetence of Frances Ritcheson and no evidence that a hearing was held on the petition after proper notice to any party, or that any hearing was held or affidavit submitted on the question of her incompetency;
The petition for sale dated October 7, 1971, states that the property will be sold at private sale, but the notice of sale published in a newspaper as required by Ark. Stat. Ann. § 62-2718 (Repl. 1971), stated that the property would be sold at public sale and there was no compliance with the requirements for a private sale;
An order entered on October 4, 1971, on the petition for sale filed October 7, 1971, set no date for hearing on the petition, but simply stated that a hearing would be held, and no hearing was every held;
No notice of the order of October 14, 1971, was ever given to Frances Ritcheson, Lilly Kerr or Golda O’Brien;
No order of sale was entered in compliance with Ark.
Stat. Ann. §§ 62-2714 — 2717 (Repl. 1977);
An amended order dated April 24,1972, and filed April 26, 1972, attempting to correct deficiencies in the sale was totally invalid because no petition for the order was ever filed, no notice to interested parties of any hearing on this order was ever given, no hearing date was set and no hearing was ever held;
One order of confirmation refers to an order dated September 3, 1972, a date subsequent to the order of confirmation; the other incorrectly refers to the order of October 14,1972, as an order of sale. There is no reference in either of two orders confirming the sale to the property purportedly affected by it.

Appellant alleged that deeds by Peevy, as administrator and guardian, purporting to convey the property were wholly null and void not only because of the invalidity of the sale and orders of confirmation and the invalidity of the guardianship itself, but because no petition was ever filed in the guardianship proceeding for the sale of the tract.

Appellant alleged that the petition for sale and the order confirming the sale of the 32-acre tract, entered in the guardianship proceeding, were also null and void, because: (1) the guardianship proceeding was invalid; (2) no notice of the proposed sale was given to Frances Ritcheson or to her nearest relative; (3) there was no notice that any publication was ever made of the order of the probate court setting May 18, 1972, as the date of hearing on a petition for sale; (4) the report of sale was not filed within ten days after the alleged sale; (5) the order confirming the sale was invalid because it was filed on June 8, 1972, two days after the filing of the report of sale.

Appellant also alleged that the sale of a 17-acre tract of land owned by C. R. Ritcheson, in which Mrs. Ritcheson had a right of dower, was invalid, not only for the reasons alleged as to the sale of the lands held by the Ritchesons as tenants by the entirety, but also for the following reasons:

The tract was incorrectly described;
The notice of sale was ineffective because it was dated November 13, 1971, but filed October 26, 1971;
The amended order of sale filed April 24, 1972, and the order confirming it on August 31, 1972, were null and void, because they approved a sale made more than six months after the initial appraisal of the lots.

It was also alleged that a petition for sale of the 17 acres executed on (in the guardianship proceedings) March 20, 1973 and filed on March 22, 1973, was null and void because no notice of the petition was ever given Frances Ritcheson or any interested party before the entry of an order for the sale on March 22, 1973, and any alleged notice to Gary Keenan, as guardian of Frances Ritcheson was invalid because of the invalidity of the guardianship proceeding.

Appellant asserted that an order of sale on April 12, 1973, a report of sale on the same date, and a confirmation of sale on April 19,1973, were null and void because there was no appraisal of the lands within six months of the date of the orders, no terms of sale were set out and no proper notice was given. Appellant also alleged that the confirmation of the sale was invalid for the same reason the sale of the lands held as an estate by the entirety were invalid.

Appellant then attacked the validity of the sale of the 344 shares of American Telephone & Telegraph Company stock for the following reasons:

The probate court had no jurisdiction over the stock;
The petition for sale filed October 7,1971, and the order entered October 14, 1971, were never furnished to any interested party;
No notice was given to the heirs;
No date was set for a hearing, no hearing was ever held and no order ever entered allowing the sale of the stock;
No appraisal was ever filed and no report of sale made.

Attacking the validity of the sale of Mrs. Ritcheson’s household goods and effects, the Cadillac automobile and the two diamond rings, appellant alleged:

No notice of the petition for sale of the personal property or the order thereon was ever given to Frances Ritcheson. There was a conflict of interest between Peevy in his capacity as administrator and in his capacity as guardian, so that he could not fulfill his fiduciary capacity in a manner to protect the interests of both Frances Ritcheson and C. R. Ritcheson’s estate in receiving notice of the proceedings;
The property was not appraised and no appraisal ever filed in the probate court;
There is no evidence of the identity of the purchaser, how the property was sold or the manner in which payment was to be made by either a report of sale or an order of confirmation.

Appellant alleged that Peevy and his attorney had been allowed fees for the guardianship proceedings and that Peevy should be held accountable for these fees and the bond premium paid. As a basis for recovery of punitive damages, appellant alleged that the acts of Peevy were done wilfully, wantonly, maliciously and with reckless disregard for the rights of Frances Ritcheson and her estate.

Appellant asked that a deed conveying the lot in Rogers to defendant-appellees, G. M. and Ruth S. Tubbs, a mortgage executed by them to defendant-appellee First Federal Savings & Loan Association of Rogers, a deed conveying the 32-acre tract to Charlie W. and Shirley J. Smith, and a deed conveying the 17-acre tract to defendantappellees Cranel F. Brewer and Clyta F. Brewer, be set aside and held null and void; that the dower interest of the widow and the widow’s allowance be recognized, imposed and foreclosed, or in the alternative, that judgment be rendered against Peevy for the fair market value of the dower interest of Frances Ritcheson in the property; that Peevy be required to restore the 344 shares of American Telephone & Telegraph Company stock, or in the alternative, the court render judgment against him for the fair market value of the stock; that judgment be rendered against Peevy for the fair market value of the household goods, two automobiles and two diamond rings; that Peevy be required to account for funds paid for his fees and those of the attorney employed by him, and the expenses of the guardianship; and that appellant have judgment for punitive damages of $150,000.

Peevy filed a demurrer. In part, it was a demurrer to the jurisdiction of the chancery court. The demurrer was based upon the following:

1. The chancery court had no jurisdiction under Amendment 24 to the Constitution of Arkansas and the probate court had exclusive original jurisdiction.
2. The complaint was a collateral attack upon the orders and judgments of the probate court.

Other grounds for demurrer were:

1. The right of Frances Ritcheson to dower terminated upon her death, it not having been laid off by the heirs, or assigned to her within one year after the death of her husband and that no demand for dower was made by her.
2. The complaint showed upon its face that the cause of action against them was barred by the statute of limitations and by the statutes of non-claim, and no ground of avoidance was alleged.
3. The chancery court had no jurisdiction of the person of Peevy.
4. Defect of parties plaintiff.

The Smiths, the Brewers, the Tubbses, the Snoderlys and First Federal Savings & Loan Association of Rogers filed general demurrers. They, in effect at least, joined in Peevy’s demurrer.

The Smiths, in a brief in the trial court in support of their demurrer, exhibited certain petitions and orders in the chancery and probate courts. We cannot consider these even if we should consider this to be an amendment to the demurrer because a speaking demurrer was not permissible. Watson v. Poindexter, 176 Ark. 1065, 5 S.W. 2d 299; Percifull v. Platt, 36 Ark. 456. These matters do not appear upon the face of the complaint, so they must be asserted by answer. Ark. Stat. Ann. §§ 27-1115, 1119 (Repl. 1962); Watson v. Poindexter, supra.

In sustaining the demurrers to allegations that the probate court had no jurisdiction to do what it did in the estate of C. R. Ritcheson, the chancery court held:

1. The complaint is a collateral attack upon previous orders of the Probate Court of Benton County in the Estate of C. R. Ritcheson and in the guardianship of Frances Ritcheson.
2. Such a collateral attack may not be maintained in the absence of allegations of fraud or lack of jurisdiction.
3. Lack of jurisdiction was raised by the complaint.
4. Chancery court has jurisdiction to afford relief if probate court did not have jurisdiction.
5. The guardian of Frances Ritcheson was not, with respect to the estate of C. R. Ritcheson, a third party so as to make it improper for the probate court to determine ownership of the property in question for the purpose of determining whether it was includable in the estate of C. R. Ritcheson.
6. Since the probate court had jurisdiction of the estate of C. R. Ritcheson and to determine the ownership of property as between the estate and the widow, errors committed by the probate court would not render rights judgments void, since they could have been corrected by that court or an appeal from it.

The chancellor treated the demurrers of the defendants as to alleged fraud on the probate court with respect to the administration of the estate of C. R. Ritcheson and the guardianship of Frances Ritcheson as a motion to make the allegations more definite and certain and granted the motion, but appellant elected to stand upon his complaint without pleading further, so the chancery court dismissed the complaint.

A proper treatment of the issues on this appeal has been rendered extremely difficult because appellees Peevy, Smith, Brewer, Schreiber and Snoderly elected not to follow the same sequence and arrangement of points as contained in appellant’s brief as required by Rule 9 (c) of the Rules of the Supreme Court and the Court of Appeals. We have not stricken any briefs for such violations, but counsel should give some logical and persuasive reason for not following this rule designed to expedite the disposition of appeals. Because of the deviation here, we will dispose of some contentions made by these appellees before treating the five points for reversal asserted by appellants.

The contention that the finding and determination of a chancery court will not be reversed unless it is clearly against the preponderance of the evidence has no application whatever in an appeal from the sustaining of a demurrer.

We are unable to find anything on the face of the complaint to show that the court has no jurisdiction of the person of any of the appellees. The demurrer on that ground is not well taken. Ark. Stat. Ann. §§ 27-1115, -1119 (Repl. 1962).

The failure of the appellant to exhibit the instruments he sought to have cancelled did not make the complaint demurrable, although a motion to require appellant to make his complaint more definite and certain might have been appropriate. We are baffled by the assertion that appellant advanced no legal theory for the ownership interest of Frances Ritcheson and only made the bare allegation that, at the time of her death, she owned the three separate tracts of real estate or had a dower interest in view of the fact that appellant attached, as exhibits to the complaint, deeds and stock certificates under which title to real property and corporate stock was claimed. The absence of titles, bills of sale, or other evidence of title to tangible personal property or explanation of the failure to produce them also might have been the basis for a motion to make the complaint more definite and certain, but did not make the complaint demurrable. See Driesbach v. Beckham, 178 Ark. 816, 12 S.W. 2d 408. An allegation of ownership of tangible personalty is more properly classified as an ultimate fact than as a conclusion, as appellee contends it to be. It is required that facts be stated and not as conclusions, but according to their legal effect, since the fact and not the mere evidence of it must be stated. Ellis v. First National Bank, 163 Ark. 471, 260 S.W. 714; Driesbach v. Beckham, supra. A complaint should allege substantive or issuable facts and it is not necessary that the evidence, or a history of the transactions leading up to the essential or issuable facts, be stated. Strange v. Bodcaw Lumber Co., 79 Ark. 490, 96 S.W. 152, 116 Am. St. Rep. 92.

Appellees’ contention that there is no allegation in the complaint as to the date C. R. and Frances Ritcheson were married and that we cannot assume that the parties had been married for as long as three years is meritless. A sufficient answer to this contention is that exhibits to the complaint show that property was conveyed to them as husband and wife at least as early as 1964. The exhibits to a complaint in an equity case control its allegations and are to be considered in testing the sufficiency of those allegations. Lavender v. City of Rogers, 232 Ark. 673, 339 S.W. 2d 598; Fisher v. Cowan, 205 Ark. 722, 170 S.W. 2d 603. Although the facts alleged might not be sufficient to meet appellant’s burden of proof if the issue were contested at trial, when we construe the complaint most favorably to the pleader, as we must, it sufficiently states that these parties were husband and wife in 1964, and were, until the death of C. R. Ritcheson. Once a status, such as marriage, is established, it is presumed to continue, until the contrary is shown, or a different and controlling presumption is advanced. Welch v. All persons, 78 Mont. 370, 254 P. 179 (1927); Walker v. Hall, 123 Ga. App. 457, 181 S.E. 2d 508 (1971). See also, Norris v. State, 22 Ark. 524. Appellant did allege that Frances was the wife of C. R. Ritcheson when he died. Thus we read the complaint as alleging that the two were married for at least seven years before Mr. Ritcheson died.

We need not dwell upon the distinction between direct and collateral attacks on probate court proceedings, as it is conceded that appellant’s attack is collateral and that it must fail, unless its allegations are sufficient to show that the probate court had no jurisdiction over the property of appellant or no jurisdiction to appoint a guardian for Frances Ritcheson.

Appellant’s first point for reversal is that the chancery court erred in holding that the probate court had authority to sell property to which Mrs. Ritcheson had sole title. In making this argument, appellant points out that under Art. 7 § 34 of our constitution, as amended by Amendment 24, the probate court has exclusive original jurisdiction in matters relative to the estates of deceased persons as then vested in the probate court or thereafter prescribed by law. He then asserts that the implementing statute is Ark. Stat. Ann. § 62-2004 (b) (Repl. 1971) and that it sets forth that jurisdiction. Insofar as the estates of deceased persons are concerned, that statute merely provides that the probate court shall have jurisdiction of the administration, settlement and distribution of estates of deceased persons and determination of heirship, construction of wills when incident to administration, establishment of lost wills and such other matters as were then or thereafter provided by law. He asserts that the probate court only had jurisdiction over assets of the decedent at the time of his death, and the probate court had no subject matter jurisdiction over property held by the Ritchesons as an estate by the entirety. He points out that under Ark. Stat. Ann. § 62-2301 (Repl. 1971) the administrator is required to make an inventory of all property owned by the decedent at the time of his death, except such interests as are terminated by reason of his death. He argues that the administrator of the estate of C. R. Ritcheson could not pass title to any such property, because title passed to Frances automatically upon her husband’s death.

Appellant’s reliance upon Farmers Cooperative Ass’n. v. Webb, 249 Ark. 277, 459 S.W. 2d 815, does not settle the issue. There we held that title to real estate of a decedent passed automatically to his heirs upon his death, subject to appropriate provisions for administration under the probate code and the widow’s dower and homestead right, if any. The decedent there left a will leaving his property to his wife, but did not mention any of his three children. The executrix treated the real property as an asset of the estate. We held that title vested in the pretermitted children as a matter of law and that it was not vested in the widow by an order of final distribution directing the executrix to deliver all assets of the estate to the widow, as provided by the decedent’s will, because the probate court had no power to do this and because the will was a nullity as to the pretermitted children. We clearly recognized that different questions would have been presented had the property been sold under the orders of the probate court for the purpose of paying debts or any other purpose over which the probate court would have jurisdiction. We also pointed out that title to the property was not in issue in the probate court. There is no allegation here that the property was not sold for a proper purpose under the probate code, so the question is actually whether such a sale is void for want of jurisdiction over the property.

Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81, 84 S.W. 1044, relied upon by appellant, is also distinguishable. There the sale of the lands involved was held to have been beyond the probate court’s jurisdiction, because the order of sale showed affirmatively that it was made to pay expenses of administration and not debts of the decedent or expenses incurred in the course of administration to pay debts due personally by the decedent. At the time, the probate court had no jurisdiction to make a sale for the purposes for which that sale was made.

In holding that the probate court had jurisdiction to determine the title to the property held as tenants by the entirety, the chancellor, relying principally upon Snow v. Martensen, 255 Ark. 1049, 505 S.W. 2d 20, after carefully reviewing Ellsworth v. Cornes, 204 Ark. 756, 165 S.W. 2d 57; Carlson v. Carlson, 224 Ark. 284, 273 S.W. 2d 542; Hartman v. Hartman, 228 Ark. 692, 309 S.W. 2d 737 and Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W. 2d 810, held that, since neither Frances Ritcheson or her guardian were third parties so far as the estate of C. R. Ritcheson was concerned, the Benton County Probate Court had jurisdiction to determine the ownership of the property. Accordingly, the chancellor held that any errors in the probate proceedings were correctible by the probate court, or on appeal from that court, and sustained the demurrer with respect to allegations that the probate court had no jurisdiction over Frances Ritcheson’s separate property which passed to her on the death of her husband.

There are several problems with this approach. The first one is that none of the cases reviewed by the chancellor except Hilburn involved real estate, and that case was decided upon the basis that the mother of the decedent was a third party, so far as the administration of his estate was concerned. As appellant has pointed out, Farmers Service Cooperative Ass’n. v. Webb, supra, does emphasize the fact that the probate court had never had jurisdiction over the real property there involved, but that holding is not controlling because real property has been sold in this case, presumably for a purpose over which the probate court had jurisdiction. The probate court has no jurisdiction over real property of a decedent, except for purposes set out in Ark. Stat. Ann. § 62-2704 (Repl. 1971). Under Ark. Stat. Ann. § 62-2401 real property is an asset in the hands of the administrator only when the court finds that it should be sold, mortgaged, leased or exchanged for purposes stated in the statute. Mrs. Ritcheson was an interested party and a distributee in the administration proceeding. Notice of the hearing stating the nature of the application for the sale of real property must be given only to such interested persons as the court may direct. Ark. Stat. Ann. § 62-2714 (Repl. 1971). No notices required by the probate code in the administration of estates of deceased persons are jurisdictional except as provided in Ark. Stat. Ann. §§ 62-2110 and 62-2902. Ark. Stat. Ann. § 62-2101 (Repl. 1972). § 62-2110 has to do with notice of hearing on a petition for the appointment of an administrator. If the petition is not opposed by an interested party, the court may hear and act on the petition without notice. Ark. Stat. Ann. § 62-2109 (Repl. 1971). There is no allegation in appellant’s complaint that Frances Ritcheson opposed the petition for appointment of Peevy. The probate of C. R. Ritcheson’s estate was a proceeding in rem. Ark. Stat. Ann. § 62-2101. Appellant does not contend that Mrs. Ritcheson was incompetent at that time. As a matter of fact the only fair inference to be drawn from the pleading is that she was not incompetent. If so, any waiver of notice of sale by her guardian is unimportant.

Appellant points out that it is the duty of the administrator to omit from his inventory those interests in property terminated by the decedent’s death. Ark. Stat. Ann. § 62-2301 (Repl. 1971). In the absence of any allegation in the complaint on the subject, we must assume that the administrator performed his duty properly.

Although we have never been confronted with the exact question, it seems that the probate court does have jurisdiction in a contest between an interested person and the personal representative over the title to real property whenever that property is treated as an asset of the decedent.

In Carlson v. Carlson, supra, the widow claimed ownership of tangible personalty by gift inter vivos. We held that the probate court had the power to decide the question of title. It is true that the property involved was listed in the inventory of that estate, which was an indication that the personal representative was treating that property as an asset of the estate. Here the petition for the sale of the property was an indication that it was being treated as an asset of the estate. It seems that Mrs. Ritcheson could have asserted her title when the petition for sale was filed or at any time thereafter, prior to confirmation.

In Snow v. Martensen, supra, interested persons challenged the omission of intangible personal property from the inventory, claiming that it was an asset of the estate being administered. We thought the better rule was that probate courts do have jurisdiction to determine the ownership of property as between personal representatives claiming for the estate and heirs or beneficiaries claiming adversely to the estate,. Although Mrs. Ritcheson was neither an heir nor a beneficiary, she was an interested person, as the spouse of the decedent, and a person having an interest in the estate being administered. No reason appears why the same rule should not apply to all interested persons.

We do not agree with the chancellor, however, that the demurrer must be sustained on the basis that the probate court’s jurisdiction to decide a contest between the widow and the decedent’s estate as to the title to property, which, so far as the record before us on demurrer is concerned, was the sole property of the widow, gave the court such jurisdiction over the property itself, in the absence of an adjudication favorable to the administrator in a contest with the widow. Res judicata cannot be raised by demurrer, unless all the essential facts appear upon the face of the complaint. May v. Edwards, 258 Ark. 871, 529 S.W. 2d 647; Adams v. Billingsley, 107 Ark. 38, 153 S.W. 1105. Even though all the essential facts do not so appear, there may well be such a defense. That question and the effect of Ark. Stat. Ann. §• 62-2710 (Repl. 1971) and the status of some of appellees, as bona fide purchasers for value, and other defenses, such as estoppel, which may be available to appellees are not now before us, and none of them are foreclosed upon remand.

Appellee contends that a waiver by Peevy, as guardian, of notice of sale of the property (which appears on the face of the complaint to have been that of his ward), by Peevy, as administrator of the estate of C. R. Ritcheson, is sufficient to justify sustaining the demurrer. Appellant alleged that this waiver was void. Putting aside the question of Peevy’s apparent conflicting fiduciary duties for the purposes of this decision, we move to appellant’s second point, which also concerns the validity of Peevy’s action as guardian.

Appellant contends that the guardianship and all proceedings therein are void, because the probate court had no jurisdiction to appoint a guardian for Mrs. Ritcheson. He alleged that the petition for guardianship shows on its face that she was not incompetent within the meaning of Ark. Stat. Ann. § 57-601 (Repl. 1971), which defines an incompetent for guardianship purposes. Except for those under age, an incompetent is one who is incapable by reason of insanity, mental illness, imbecility, idiocy, senility, habitual drunkenness, excessive use of drugs, or other mental incapacity, of managing his property or caring for himself. The jurisdiction of the probate court in guardianship matters is limited to guardians and persons of unsound mind and their estates as vested in courts of probate at the time of the adoption of Amendment 34 or as thereafter prescribed by law.

The power of the probate court to appoint a guardian in cases such as this, and at all times pertinent on this appeal, is set out in Ark. Stat. Ann. § 57-614 (Repl. 1971). Under that section of the statute, the court must be satisfied that the person for whom the guardian is sought is either a minor or otherwise incompetent. The petition for guardianship must state the nature of the alleged ward’s incapacity. Ark. Stat. Ann. § 57-609 (Repl. 1971). In determining incompetency of one other than a minor, the probate court must require that the evidence of incompetency include the testimony or the sworn written statement of one or more qualified medical witnesses. Ark. Stat. Ann. § 57-615 (Repl. 1971). Appellant alleged that the petition for appointment of the guardian merely stated that Frances Ritcheson was unable to care for herself because of physical impairment. The probate court had no jurisdiction to appoint a guardian for such a per son, at least under the law at the time of this guardianship proceeding. Any doubt about the matter may be resolved by reference to the comment of the committee which drafted the legislation. Its comment following Ark. Stat. Ann. § 57-601 states, in part:

Under subsection (2) the inability which would permit the appointment of a guardian is limited to some form of mental incapacity. This Code does not authorize the appointment of a guardian for a person who may be incapacitated physically as long as a person has mental faculties sufficient to understand the nature of his property and to protect it by agent even though he may be unable to do so in person. ***

Thus it is quite clear that the probate court had no jurisdiction to appoint a guardian for a person with an incapacity of the nature of that described in the petition. The argument that the legislature’s later adoption of Act 372 of 1974 providing for the appointment of a conservator for one who is unable to manage his property by reason of physical disability somehow validates this appointment is unconvincing. Appellees say that Mrs. Ritcheson signed the petition, but that fact is not shown by the complaint, so we do not consider it. She could not, however, confer subject matter jurisdiction by consent.

Appellant argues that the probate court had no jurisdiction to sell real property when the sale was not necessary to pay debts incurred by C. R. Ritcheson in his lifetime. He contends that immediately upon the death of the husband, title vested in his widow under Ark. Stat. Ann. § 61-149 (b) (Repl. 1971), since she had been married to him for more than three years. The complaint is silent as to the existence of any descendants of C. R. Ritcheson, so we cannot assume that this statute applies in this case. Appellant says, however, that she was entitled to dower and homestead. There is nothing in the complaint to indicate that this property was the homestead of C. R. Ritcheson.

Appellant argues that the administrator could sell the lands only if that were necessary to pay the debts of C. R. Ritcheson, relying upon Calmese v. Weinstein, 234 Ark. 237, 351 S.W. 2d 437; Cranna, Administrator v. Long, 225 Ark. 153, 279 S.W. 2d 828 and Dean v. Brown, 216 Ark. 761, 227 S.W. 2d 623. Appellant’s reliance upon quotations from these cases is unjustified because their effect has been nullified by Act 424 of 1961. Since the passage of that act, real estate vests in the heirs of a decedent, subject to the widow’s dower and to sale for the payment of debts, the preservation or protection of the assets of the estate, the distribution of the estate or any other purpose in the best interest of the estate. Ark. Stat. Ann. §§ 62-2401 (Repl. 1971), 62-2714 (Repl. 1961); Doss v. Taylor, 244 Ark. 252, 424 S.W. 2d 541; Price v. Price, 258 Ark. 363, 527 S.W. 2d 322.

The sale, however, is not necessarily free of the widow’s dower. Such a sale is not void for want of jurisdiction, but is simply inoperative as far as the widow’s dower is concerned. Shell v. Young, 78 Ark. 479, 95 S.W. 798; Livingston v. Cochran, 33 Ark. 294. See also, Regional Agricultural Credit Corp. v. Polk, 214 Ark. 285, 215 S.W. 2d 523.

There may be valid defenses as to this claim on behalf of the widow but they do not appear on the face of the complaint. Appellant points out that the sale did not include the tract for which the dower claim is made, but that another tract was erroneously described in that proceeding, so the sale may not have affected Mrs. Ritcheson’s rights.

The decree is reversed and the cause remanded for further proceedings consistent with this opinion.

Harris, C.J., not participating.

Byrd, J., dissents.