author: Ed. F. McFaddin, Associate Justice.

text:
    National Oil Company v. Reeves.
    5-1378
    310 S. W. 2d 242
    Opinion delivered February 10, 1958.
    [Rehearing denied March 17, 1958]

      Rose, Meek, House, Barron & Nash, by A. F. House and John H. Haley, for appellant.

      Cooper Jacoway, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a suit by an attorney to recover for his services, and also to have his stock holdings recognized in the appellate corporation.

Appellee Cuy B. Reeves is an attorney and is hereafter referred to as “Reeves”. Appellant National Oil Company — hereinafter called “National” — is an Arkansas corporation, engaged in prospecting for oil and gas in Louisiana, and at the time of the trial below had one gas producing well. Reeves filed this suit against National, for judgment for his services, and also praying that his stock holdings in National he recognized. National (a) denied owing Reeves any substantial amount for services; (b) claimed that Reeves was indebted to National for a large amount; and (c) that Reeves was not entitled to any stock ownership in National.

National moved to have a Master appointed to hear the testimony and bring in recommendations; but this was denied. In refusing to appoint a Master, the Chancery Court did not abuse its sound discretion. See Drennan v. McCarthy, 213 Ark. 286, 210 S. W. 2d 791, and cases there cited. The evidence was heard by the Chancery Court and resulted in a decree which:

I. Rendered judgment in favor of Reeves for bis services to National in'the amount of.$15,000.00

II. Rendered judgment for Reeves for office rent and stenographic services supplied by his office to National in the amount of .1,300.00

$16,300.00

III. Deducted from Reeves’ judgment the amount he owed National.1,150.00

$15,150.00

IV. DeelaredReeves to be the owner of 2,483 shares of stock (par value $1.00 per share) in National by reason of original acquisition.

V. Declared Reeves the owner of 5,000 additional shares in National (par value $1.00 per share); but-credited the judgment against National with the par value of the said 5,000 shares .5,000.00

Leaving a net judgment in favor of Reeves against National of .$10,150.00

VI.Refused to award Reeves any preemptive stock rights on the shares awarded him as previously mentioned.

From that decree, there is this appeal and cross-appeal; and we will discuss the issues by convenient reference to the points in the decree as numbered and listed in the tabulation above.

I. Reeves’ Claim For Services. Beginning in August 1954, and continuing until May 1956, Reeves rendered services to National both as an attorney and as a business man. There was no agreement as to the amount or method of determining compensation; but it is not claimed that Reeves’ services were to be gratuitous.

National had been organized as an ■ Arkansas corporation in 1953, and had some oil and' gas leases on unproven bnt potentially productive property in Louisiana; and most of tlie original stockholders appear to have been residents of that State. By August 8, 1954 National found itself out of funds and with stock outstanding of the face value of $65,700.00. Two of the stockholders on that date were Messrs. Boucher and Shackelford, who, together, owned $19,900.00 of the National stock. These two gentlemen last named sold to Messrs. Erbacher, O’Bannon, Porter, Roberts, Jackson, and Reeves, the entire $19,900.00 of stock for $4,975.00 (being 25 cents on the dollar) on condition that the purchasers would buy from any other dissatisfied stockholders any tendered stock in National at the same basis of 25 cents on the dollar of face value.

This transaction of August 1954 (subsequently to be referred to in Section IV herein) was the beginning of Reeves’ connection with National. He became attorney for the Company, served as Vice-President, assisted materially in the sale of stock, and made numerous trips to Louisiana and other places. Sometimes he was accompanied by some of the other directors, and sometimes he was alone. Reeves advanced substantial amounts of his own money to National, and rendered a variety of services.

Two of the wells drilled by National were nonproductive ; but finally National brought in a good gas well on its holdings, so that the stock rose in value from 25 cents on the dollar to somewhat above par; and at the time of the trial below, National had a reasonably bright future. After the gas well became a producer, there arose dissatisfaction with Reeves’ efforts: his services were discontinued, and all of the stock issued to him was declared cancelled. Thereupon Reeves filed this suit in September 1956.

Reeves had a most efficient secretary, who had worked in his office for many years. She kept for Reeves a daybook showing who was in Reeves’ office in consultation with him every working hour of each working day. This book was offered in evidence, and the secretary testified to the correctness of the entries. From this daybook, and other evidence in the record, the Trial Court found that Reeves had devoted a total of at least six hundred hours to the business of National, and that the reasonable value of such services was $25.00 per hour, or a total of $15,000.00. A former Chancellor and three members of the local bar testified as to Reeves’ legal ability and the value of his time. Absent, as here, any contract concerning the method of determining compensation, the Trial Court adopted the “hours-spent” basis; and we find that this was fair and reasonable under the circumstances. See 7 C. J. S. page 1120 et seq.

Appellant argues that Reeves- was interested in three or four other oil companies and in several commercial ventures, and that part of the time he claims he devoted to National was, or might have been, devoted to some other company; and that the amount awarded was too large. The testimony for Reeves made out a case. The forces now opposed to him in the present suit were allied with him while he was rendering his services to National. These forces failed to show the Chancery Court that Reeves’ witnesses and daybook were in error; and on this appeal, appellant has failed to establish to us that the chancery decree is in error on this phase of the case: so we affirm the award of $15,000.00 to Reeves for services rendered to National.

II. The Bent and Stenographic Services. For thirteen months National’s other officers used Reeves’ offices and telephone, and availed themselves of the services of his secretaries; and for this the Chancery Court-allowed Reeves $100.00 per month, or a total of $1,300.00. The evidence supports this award.

III. The Amount Beeves Owed National. The Chancery Court found that Reeves owed National $1,-150.00; and Reeves concedes this to be correct; but National claims that the amount should have been $2,219.98. This difference of $1,069.98 arises because of some checks claimed by one party to be expenses and by the other to be advances. It would unduty lengthen this opinion to discuss the figures in detail. It is sufficient to say that we hold that the $1,150.00 fixed by the Chancery Court is correct.

IY. Reeves’ Right to 2,483 Shares of Stock By Claim of Original Acquisition. On this point, the Chancery Court was in error. We hold that Reeves is not entitled to the 2,483 shares. In Topic I, supra, we have heretofore recited (a) the incorporation of National in 1953, and (b) the August 1954 contract between Messrs. Boucher and Shackelford, as First Parties, and Messrs. Erbacher, O’Bannon, Roberts, Porter, Jackson, and Reeves, as Second Parties, concerning the sale of $19,-900.00 of stock in National from First Parties to Second Parties for $4,975.00 (25 cents on the dollar), provided Second Parties would also purchase the tendered stock of any other dissatisfied stockholders at the same price of 25 cents on the dollar. If the six Second Parties had sold 5,000 shares of this “Boucher-Shackelford Stock” at par (to repay the $4,975.00 original investment), they would have had still remaining 14,900 shares, which would have meant approximately 2,483 shares for each of the six Second Parties. It was on such basis of calculation that the Chancery Court awarded Reeves the 2,483 shares as an original acquisition.

Now, if the six Second Parties had carried out their contract with Messrs. Boucher and Shackelford as the contract was written — that is, used their own funds as separate and distinct from the corporate funds — then each of the Second Parties would have been entitled to 2483 shares as an original acquisition. But the said six Second Parties did not carry out the contract distinct from the corporation. Instead, they used the corporation funds to finance the entire Boucher-Shackelford transaction. The Second Parties had the corporation borrow $5,000.00 with which to pay Messrs. Boncher and Shackelford the original $4,975.00. Then the said Second Parties sold corporation stock at par to the general public and thereby the corporation received funds, some of which were available to be used in purchasing, at 25 cents on the dollar, stock of any other dissatisfied stockholders who acted under the option contained in the Boucher-Shackelford agreement of August 1954.

In short, the six Second Parties, after signing the Boucher-Shackelford agreement of August 1954, took over the directorship, management, and control of National, and used National and its funds with which to complete the Boucher-Shackelford agreement and acquire other stock at 25 cents on the dollar. Under such circumstances, the six Second Parties are considered in equity as having acted in the entire transaction for National, and not for themselves. In Fletcher’s Cyclopedia on Corporations (Permanent Edition) Yol. Ill, § 1108, the holdings are summarized: “Purchases of corporate stock by corporate officers with corporate assets makes such officers trustees of the stock for the benefit of the corporation”. While Erbacher, et al. were not directors at the inception of the Boucher-Shackelford contract, they appear to have taken over the directorships with the stock, and they caused National to borrow the money to pay for the purchased stock. The directors of a corporation occupy a fiduciary relationship to the corporation, and when they use the corporation’s funds for purchases and acquisitions, then the resulting benefits belong to' the corporation and not to the individual directors. Our own cases point to the rationale of this holding. Red Bud v. South, 96 Ark. 281, 131 S. W. 340; Bank of Commerce v. Goolsby, 129 Ark. 416, 196 S. W. 803; Horner v. New South Oil Mill, 130 Ark. 551, 197 S. W. 1163; Taylor v. Gordon, 180 Ark. 753, 22 S. W. 2d 561; Fagan v. Stuttgart Normal, 91 Ark. 141, 120 S. W. 404; and see also 19 C. J. S. 164.

There were six of the directors who received this Boucher-Shackelford stock. The other five (that is, Messrs. Erbacher, O’Bannon, Roberts, Porter, and Jackson) recognized at a stockholders’ meeting, on September 13, 1955, that the stock issned to them from the Boncher-Shackelford agreement should not be owned by them personally; and each of the five surrendered such stock to National; but Reeves refused to surrender his stock. We hold that he is bound by the same rules of law and equity that the other five recognized and followed; and that he should not be allowed to retain the 2,483 shares. Therefore, we reverse so much of the Chancery decree as .allowed Reeves to retain the 2,483 shares.

Y. Reeves’ Right■ to 5,000 Shares of Stock To Be Credited on His Judgment. The situation regarding the 5,000 shares is different from that regarding the 2,483 shares; and the Chancery Court was correct in awarding the 5,000 shares to Reeves. At a meeting of the directors on February 4, 1955, the six directors (Messrs. Erbacher, O’Bannon, Roberts, Porter, Jackson, and Reeves) voted 5,000 shares of stock to each of themselves. The resolution recites: “All members voted unanimously ‘aye’. Motion carried.” It is elementary that directors cannot reward themselves in any such manner. Oil Fields Corp. v. Hess, 186 Ark. 241, 53 S. W. 2d 444; Cook v. Malvern Brick Co., 194 Ark. 759, 109 S. W. 2d 451; and Mortensen v. Ballard, 218 Ark. 459, 236 S. W. 2d 1006. In the last cited case, we quoted from Yol. 14A of C. J. p. 143:

“ ‘An officer is without authority to fix or increase his own salary. Directors are precluded from fixing, increasing, or voting compensation to themselves for either past or future services by them as directors or officers, unless they are expressly authorized to do so by the charter or by the stockholders . . .’ ”

When the stockholders of National learned of the action of the directors and disapproved such action, then each of the other five directors — except Reeves — voluntarily surrendered the 5,000 shares so issued. Reeves placed his 5,000 shares; in escrow until his account with National could be settled; and all the time he contended that National owed him more than the value of the 5,000 shares.

Of course, Reeves could not be allowed to keep the 5,000 shares as “bonus stock” issued by directors to themselves; but in equity he should be allowed to credit the value of the stock on whatever National owed him; and the credit should be at par value, even though the stock probably did not have such value at the time of issuance. It is not unusual in “wildcat” oil companies (such as National was at that time) for an attorney to receive his fee for services part in cash and part in stock. The Chancery Court recognized this fact in the decree which awarded Reeves the 5,000 shares and credited the par value of $5,000.00 on the judgment of Reeves against National. We hold that the Chancery decree in this respect accomplished substantial equity.

VI. Reeves’ Preemptive Rights on Stock Owned By Him. This is one of the most perplexing phases of the case. At a stockholders’ meeting, National voted to allow each shareholder to purchase additional shares on a pro rata basis of stock owned. Reeves tendered his check for $1,600.00 for the purchase of such additional stock; and it is tacitly conceded that if Reeves owned 5,000 shares of stock on that date, then the $1,600.00 is within the rights of preemption. National refused to receive Reeves’ check for such purchase, claiming that all his stock had been cancelled. The Chancery Court awarded Reeves 5,000 shares of stock, as above recited, but held that Reeves was not entitled to exercise any preemptive rights; and on this issue Reeves has cross-appealed.

We hold that the Chancery Court was correct. Even though the 5,000 shares of stock had been originally issued to Reeves, it was in a “bonus stock” agreement by the directors and, as such, was void. It was not until the Chancery Court decree awarded Reeves 5,000 shares of stock and credited it on his fee that he became legally and equitably entitled to the stock; and by that time the period of exercising preemption for purchase of additional stock had long since expired. We cannot say that Beeves was entitled to the 5,000 shares of stock during the time of the exercise of preemptive rights. He became entitled to the stock only when the Chancery Court determined such to he an equitable settlement of his fee; so the Court was correct in refusing to allow Beeves to exercise preemptive rights for $1,600.00.

CONCLUSION

As herein stated, the decree is affirmed in part and reversed in part on direct appeal, and is affirmed on cross-appeal; and the cause is remanded to the Chancery Court, with directions to proceed in a manner not inconsistent with this opinion. All costs of both Courts are taxed against appellant.

Millwee and George Bose Smith, JJ., not participating.

       At one time the stock had a par value of $10.00 per share, but was later reduced to $1.00 per share; and that value of one dollar per share is used throughout this entire opinion. In issuing stock to the six Second Parties for the 14,900 shares, there was a mistake in calculation which could have been caused either by the change in par value or by the purchase of other dissatisfied stock on the basis of 25c on the dollar. At all events, originally, the amount of stock issued to each of the six Second Parties was 5,080 shares. This mistake in calculation was admitted by all parties; and in this opinion we have treated the stock issued as 2,483 shares to each of the Second Parties, which is conceded by all to be an approximately correct calculation.

       The same textual statement is in 19 C.J.S. page 199.


source: Caselaw Access Project

author: MiNOR W. Mill/wee, Associate Justice.

license: Public Domain

text:
    Sides v. McDonald.
    5-1456
    310 S. W. 2d 16
    Opinion delivered February 10, 1958.
    [Rehearing denied March 10, 1958]

      Rhine & Rhine and John G. Watkins, for appellant.

      Howard A. Mayes, for appellee.
   MiNOR W. Mill/wee, Associate Justice.

The sole question is whether a deed executed by H. C. Sides, deceased, on September 21, 1944, purporting to convey a 26-acre farm to appellees was ever delivered in the lifetime of the grantor so as to vest title in appellees.

IT. C. Sides was unmarried and living alone at Rector, Arkansas, where he died intestate July 14, 1956, survived by one brother, one sister and eleven nieces and nephews, six of whom are the appellees. At the time of his death Sides owned and was in possession of the 26-acre Clay county farm. After his death a committee selected by relatives to examine his effects found a small locked metal box in his trunk in which they found the unrecorded warranty deed conveying the 26 acres to appellees who had it placed of record and went into possession. Appellants, who are the surviving brother, sister and other five nieces and nephews brought this suit to cancel the deed on the ground of nondelivery. This appeal is from a decree finding the deed was properly delivered to appellees in the lifetime of the grantor and dismissing the complaint of appellants.

Since it was conceded in the answer that the deed in question was in the possession of H. C. Sides at the time of his death, the. chancellor correctly, held a presumption arose that it was never delivered, and that ap-pellees had the burden of proving delivery. Van Huss v. Wooten, 208 Ark. 332, 186 S. W. 2d 174.

Appellee, Flora Patrick, testified that she and her uncle were very close and lived in each other’s homes several times; that prior to the execution of the deed he told appellees he was giving them the farm; and that she visited in his home shortly after the deed was executed. When asked what transpired on that visit, she testified: A. “Uncle Henry gave me the deed and he said, ‘Flora, this is a deed to the land that I want you children to have at my death.’ He gave me the deed to the land and said, ‘This is the deed I am giving you girls and Glen. ’ That was my brother. I taken the deed and read it and I said, ‘Uncle Henry, I have no place to keep it. Will you keep it for us? And you will have the use of the land as long as yon live.’ And I thanked him for the deed and handed it hack to him. Qr When was the next time yon saw the deed? A. Since this lawsnit came np. Q. Yon were not present at the time it was found? A. No, I was not.” She also stated that appellees paid for the drafting- of the deed.

Appellee, Cecil Langhlin, testified her uncle was visiting in her home at Paragonld, Arkansas, in 1946 or 1947 when he told her to stop by his home the next time she was in Rector. Upon making the visit he gave her the deed saying: “Cecil, here is the deed that belongs to yon children.” She further stated she took the deed home with her and kept it two or three weeks but, after a discussion of the matter with her brother, another of the grantees, she returned the deed to her uncle for safe-keeping because he kept everything ‘ ‘ under lock and key” and she had no lock box in which to keep it. At the time the deed was found in her uncle’s lock box by the notary who had drafted it she and other relatives present heard her uncle, Hillard Sides, say: “That’s it, that’s it. If that is the way he wants it, all right.” Mrs, Langhlin’s testimony relative to the agreement to return the deed to her uncle for safe-keeping was corroborated by her brother, and the other appellees testified they had known of the execution of the deed for a longtime.

In opposition to the foregoing testimony Ray Fry-man, son of the appellant, Laura Fryman, decedent’s niece, stated he was present when the deed was found and heard Cecil Langhlin say: “I didn’t know that Uncle Henry had left us anything.” Appellant, Hillard Sides, testified that when the deed was found Cecil Langhlin and her mother, “held up their right hands and swore that they didn’t know a thing in the world about it (the deed).” He further stated that Cecil Langhlin and Zenith Shannon, another appellee, had previously gone through the same ceremony on the steps of the hospital on the night of the grantor’s death. On cross-examination he admitted his relationship with the grantor and their sister was bad for several years because he felt they had cheated him oat of his part of their father’s estate. Cecil Laughlin and others present contradicted Hillard Sides as to the making of these statements and said he advised them to have the deed recorded at the time it was fonnd.

This conrt has repeatedly approved the following statement from the early case of Miller v. Physick, 24 Ark. 244: “A deed to he operative must he delivered. The act of signing and sealing gives it no effect without delivery. The delivery is a substantive, specific, and independent act, which may be inferred from words alone, or from acts alone, or from both together, and though there is no particular form in which to make it, still enough must be done to show that the instrument was thereby considered to have passed beyond the legal control of the maker, or his power to revoke it.” We, have also said there is no delivery unless what is said and done by the grantor and grantee manifests their intention that the deed shall at once become operative to pass title, and that the grantor shall lose dominion over the deed. Woodruff v. Miller, 212 Ark. 191, 205 S. W. 2d 181.

It is also well settled that the presumption of nondelivery of a deed, arising from the finding of it among the grantor’s effects on his death, is rebuttable by proof of delivery. Cribbs v. Walker, 74 Ark. 104, 85 S. W. 244. Also, the mere return of a duly delivered deed by the grantee to the grantor does not ordinarily operate to re-vest the title in the grantor. Mauldin v. Howell, 212 Ark. 268, 205 S. W. 2d 446. Thus, where the grantor executes and delivers a deed to the grantee and after-wards receives it back merely for the performance of some act in connection therewith, the delivery is sufficient. Brooks v. Isbell, 22 Ark. 488. This rule has been applied in several jurisdictions and the prior delivery held not to have been invalidated where the deed is returned to the grantor for safe-keeping. See cases cited in 26 C. J. S., Deeds, Sec. 42 b.

Whether the deed in question was actually delivered to appellees by their uncle and subsequently returned to him merely for safe-keeping was a sharply disputed question. Most of the witnesses on this issue were interested in the outcome of the suit and the chancellor, who observed them as they testified, was in a much better position than are we to determine their credibility. We cannot say his finding in favor of appellees is against the preponderance of the evidence.

Affirmed.


author: George Rose Smith, J. Carleton Harris, Chief Justice,

text:
    Gentry v. Richardson.
    5-1443
    309 S. W. 2d 721
    Opinion delivered February 10, 1958.

      Tom Gentry and Thorp Thomas, pro se, and James L. Sloan, of counsel, for appellant.

      Kenneth Coffelt, Ben M. McCray and Fred Briner, for appellee.
   George Rose Smith, J.

This dispute centers upon the question of whether the appellant attorneys, Tom Gentry and Thorp Thomas, are entitled to act as counsel for tiie appellee administrator in an action for the wrongful death of Billy Warren Brod. The probate court, by the order now under review, approved the administrator’s employment of three other attorneys, Kenneth Coffelt, Ben McCray, and Fred Briner, and enjoined the appellants from acting further in the suit for wrongful death.

Billy Warren Brod, aged nineteen, was killed in a traffic collision on October 8, 1956. On October 15 the probate court appointed the decedent’s father, M. L. Brod, as administrator of the estate and approved a contract by which Brod employed G-entry and Thomas to bring the action for wrongful death.

Three days later the decedent’s nineteen-year-old widow, Linda Brod, filed a petition protesting the earlier appointment, which had been made without notice to her, and asserting her preferred right to nominate the personal representative. After a hearing on October 29 the court set aside its original order and appointed the widow’s nominee, Gordon Richardson, as administrator of the estate. On appeal we sustained the widow’s position in the matter and affirmed the order naming Richardson as personal representative. Brod v. Brod, 227 Ark. 723, 301 S. W. 2d 448.

A week after our decision on the first appeal Richardson, without notice to these appellants, presented to the probate court a motion asserting that two actions for wrongful death were pending in the circuit court — one brought by Gentry and Thomas and the other brought by the three attorneys whom Richardson had employed on the day of his appointment. In his motion Richardson asked that his contract with Coffelt, McCray, and Briner be approved, that he be authorized to dismiss the suit filed by Gentry and Thomas, and that the latter attorneys be prohibited from taking any further action for the administrator or for the estate. On the presentation of this motion the probate court entered an order granting the relief asked.

The appellants, in insisting upon the continuing validity of their contract with the original administrator, rely upon that section of the Probate Code which provides that the removal of a personal representative does not invalidate his prior official acts. Ark. Stats. 1947, § 62-2203. The appellee contends in tnrn that the appointment of M. L. Brod was void and conld not be the basis for a contract binding the estate.

We need not explore the merits of these contentions, for we are met at the ontset by the fact that an administrator in succession undoubtedly has the power to substitute attorneys of his own choice for those already engaged. It is a fundamental characteristic of the attorney-client relation that the client always has the right to control the litigation and the consequent power to discharge the attorney, with or without cause. Johnson v. Mo. Pac. R. Co., 149 Ark. 418, 233 S. W. 699. This principle should apply, and has in fact been applied, when the client happens to be the personal representative of an estate. In re Montgomery’s Estate, 272 N. Y. 323, 6 N. E. 2d 40; In re Dix’ Estate, 144 Misc. 494, 259 N. Y. S. 449. Hence it is clear enough that the contract between Brod and the appellants did hot confer upon these attorneys a vested right to carry the proposed litigation to its conclusion.

It is also asserted that the appellants were deprived of a property right without due process of law, in that their contract of employment was terminated without notice to them or an opportunity for them to be heard. This contention raises what is really a twofold issue, which must be considered in its separate aspects. By its language the court’s order is purely prospective in operation, restraining the appellants from taking further action as counsel for the estate. In this aspect the order, although entered without notice, does not involve a denial of due process. The administrator, as we have seen, had the power to discharge these lawyers, despite their protest. It may be doubted whether the probate court’s approval was essential to the exercise of that power. See In re Dix’ Estate, supra, and Ark. Stats., § 62-2208, with the appended Committee Comment. But in any event the appellants are not in a position to complain without first showing that the want of notice prevented them from asserting a defense to the court’s action. That showing has not been made.

On the other hand the court’s order, although it does not purport to touch this subject, might be relied upon as a bar to the appellants’ right to contend that a valid contract of employment had been wrongfully breached by the appellee. Upon this aspect of the case we agree that the appellants would be denied due process if the order were construed to deprive them of their rights without notice and without an opportunity for the assertion of their claim.

We therefore affirm the court’s order, in its prospective aspect, without prejudice to any claim for compensation or for damages that the appellants may think it proper to assert. Such a claim has not yet been presented, nor could it be decided on the record before us. The contract by which Brod employed the appellants is not in evidence; we know nothing of its terms. If that agreement should be found to be valid and to have been wrongfully breached, a question might arise whether the appellants’ damages should be measured by the value of their past services or by the net loss resulting from the breach. See Berry v. Nichols, 227 Ark. 297, 298 S. W. 2d 40. In this record there is no proof touching even remotely upon these issues, which are accordingly left open for future decision.

Affirmed.

Harris, C. J., and Ward and Robihson, JJ., dissent.

Carleton Harris, Chief Justice,

dissenting. I desire to emphatically dissent to the holding of the majority, which, in my opinion, upsets established law and custom.

While Section 62-2208, Ark. Stats. (1947) Anno., authorizes a personal representative to employ legal counsel, a careful reading of the section seems to denote that it only has reference to handling the “ordinary” affairs of an estate, and I find nothing therein which authorizes a personal representative to enter into a contract with an attorney for the prosecution of litigation on behalf of the estate. While it is true that a court will generally follow the preference of the personal representative in appointing an attorney to institute litigation, the actual appointment is the act of the court, and the attorney is without authority or protection when he proceeds to institute litigation on behalf of an estate without first having his employment approved by the court. I find nothing in the Probate Code contrary to Carpenter v. Hazel, 128 Ark. 416, 194 S. W. 225. There, Chief Justice McCulloch said:

“The contract between appellant and the administrator was not authorized nor approved by the probate court, nor did the probate court approve the issuance of letters of administration to Phillips. * * *
“The statute does not authorize an administrator, ivithout the consent of the probate court to enter into a contract so as to bind the estate, * *

Here, appellants obtained the approval by the court of their contract; they filed their suit, and, as far as the record shows, have diligently, and without fault or carelessness, discharged their duties as attorneys for said estate. The Probate court, without notice to the attorneys, or without a hearing, entered an order restraining appellants from further proceeding, apparently because an administrator in succession had been appointed, and this second administrator preferred different attorneys. There is probably not a lawyer in the state who, upon being asked by a personal representative to serve as attorney for an estate, or to institute litigation on behalf of the estate, does not immediately prepare a petition, and order approving his employment, go forthwith to the office of the probate judge, and obtain his approval. The reason, of course, is obvious. The probate court order is his protection, guaranteeing that he will not be capriciously “fired” by the personal representative, and he may thereafter confidently proceed with his duties, knowing that he will be compensated so long as he properly represents the estate. Under the holding by the majority in the instant cause, there is no longer any reason for an attorney to obtain the approval of the court; it adds not one bit to his security, for the same court may, without any reason, set such order aside and appoint someone else. I have no doubt but that if the original administrator had contracted, with the approval of the court, to buy or sell property, repair buildings belonging to the estate, dispose of personal property, etc., this Court would have approved such acts under Section 62-2203, Ark. Stats. (1947) Anno. “* * * The removal of a personal representative after letters have been duly issued to him does not invalidate his official acts performed prior to removal. * * *” Though it is a contract for personal services, I strongly feel that an attorney’s contract is equally worthy of protection.

"While the majority opinion comments that appellee insists that the appointment of the original administrator was void, the merit of such contention is not considered in the opinion. For that matter, the appointment, in my opinion, was not void; at most, it was voidable, for certainly the administrator in succession, had he so desired, could have continued with the same attorneys without the necessity of further approval by the court.

The majority simply says “that an administrator in succession undoubtedly has the power to substitute attorneys of his own choice for those already engaged” and cite Johnson v. Mo. Pac. Railroad Co., 149 Ark. 418, 233 S. W. 699. I do not see how this case is authority for the position taken in the opinion. Kathern King was adminis-tratrix of the estate of James E. King. She employed Jo Johnson as her attorney to institute suit against the Mo. Pae. Railroad Company to recover damages for the benefit of herself, as widow. The employment was admitted, but Mrs.-King later discharged Johnson, contending that he failed and neglected to diligently prosecute the claim. A different attorney was obtained, and the suit was settled for $8,500. Johnson intervened, claiming a lien for one-half of the settlement under his contract. Upon trial in the Circuit Court, the issue was whether Johnson had diligently prosecuted the claim, or had been discharged because of neglect and failure to diligently prosecute. The jury found for the defendant, and this Court concluded that the evidence was sufficient to sustain the verdict. In discussing Johnson’s cause of action, Chief Justice Mc-Culloch, speaking for the Court, said:

“Mrs. King had an unqualified right to control her own litigation and to discharge her attorney, but she could not displace the attorney’s lien by his wrongful discharge, after the action was instituted to recover on the claim. # *= =£ J 5

Further:

* # there can be no doubt of the right of a client to discharge an attorney who fails to prosecute the cause with reasonable diligence, for that is clearly the measure of an attorney’s duty to his client. Any other rule would require a client to retain an attorney who was neglecting the cause and failing to proceed with proper diligence. * * *”

The majority further cite two New York cases as authority for applying the principle that a client has a right to discharge his attorney without cause even though the client happens to be a personal representative. Let it be pointed out, however, that the New York Court clearly said that an attorney wrongfully discharged was entitled to compensation on a quantum meruit basis, and in the case referred to in the majority opinion, In Re Montgomery’s Estate, it was held that the attorney had been wrongfully discharged, and he was actually given more fee on a quantum meruit basis than he would have obtained under his contract. This matter was determined by the Surrogate Court because the New York statute did not give an attorney, wrongfully discharged, a right of action fox-damages.

I have no quarrel with the principle that a client has a right to discharge an attorney without cause; in fact, I entirely agree, provided, if such discharge be wrongful, the attorney has the right of recovery. The majority affirm “without prejudice to any claim for compensation or damages that appellants may think it proper to assert. ’ ’ This apparently means that they may file suit on their contract or seek damages for breach of same. 1 am unable to follow this reasoning; certainly these appellants would be without the protection of the attorney’s lien unless prior decisions are overruled or disregarded. This Court has previously said that the statute giving the attorney a lien upon his client’s cause of action (which attaches to the judgment or final order in his client’s favor) does not apply to suits by an administrator for the benefit of an estate. In Carpenter v. Hazel, supra, it was said:

“We are of the opinion that this statute has no application to suits by an administrator for the benefit of an estate of the decedent, for to give it that effect would constitute an invasion of the exclusive jurisdiction vested in probate courts by the Constitution. ’ ’

In addition, these attorneys, though having filed their suit, and, as far as the record discloses, having performed every duty incumbent upon them, are, in my opinion, by the Court’s action, precluded from any chance of recovery in that type of action. The attorneys were discharged by the court — not the personal representative — and it is ixot necessary to quote authority to the effect that a court cannot be sued for its official acts. In an action brought by these attorneys to enforce a lien, the administrator in succession would only have to present the order of the court discharging the attorneys, which order, it appears to me, would constitute a perfect defense.

It seems clear that any relief afforded must be obtained in the probate court, and I deem it entirely illogical to allow the court to discharge appellants, but to permit them, at some future time, to seek their compensation. It seems more logical to set the amount of their compensation before, or at the time of, tlreir discharge, which is our established and accepted procedure. It would also appear that this should be done in fairness to the new attorneys, who are entitled to know what portion, if any, of the recovery obtained by them, is to be turned over to appellants herein. As the matter stands, this question is left dangling.

Summarizing, I have pointed out that appellants, if previous decisions are followed, can have no claim for damages and no lien upon the proceeds of any recovery. Carpenter v. Hazel, supra; Gilleylen v. Hallman, 141 Ark. 52, 216 S. W. 15. They are limited to a claim for services which must be determined by the probate court. I am therefore of the opinion that, in the instant matter, the court should have conducted a hearing, and, dependent upon the evidence, either permitted appellants to continue with their employment under the contract, or permitted a quantum ‘meruit recovery for services rendered. I feel that the action of the majority takes away the protection that should be afforded every attorney who handles the affairs of his client in a diligent manner, and who is thus due just compensation.

       Emphasis supplied.

       The “Order Approving Attorneys Employment” is found in the transcript of Brod v. Brod, 227 Ark. 723, 301 S. W. 2d 448, and recites as follows:
      “On this day is presented to the court the oral petition of M. L. Brod, the duly appointed and acting administrator of the above estate, praying that the contract which he has entered into with Thorp Thomas and Tom Gentry for legal services be approved.
      “The court being well and sufficiently advised as to all matters of fact and law arising herein doth find that said contract is necessary and that the services of said attorneys are necessary and that said contract is fair and equitable and should be approved.
      “IT IS THEREFORE ORDERED AND ADJUDGED THAT the contract heretofore entered into by the Administrator of the above estate with Thorp Thomas and Tom Gentry is fair and (e)quitable, and that the fee to be paid said attorneys for the prosecution of the litigation upon behalf of the administrator is hereby approved.
      “F. D. GOZA, Judge”

       Oí course, if the evidence established that appellants had been derelict in their duties, they would not be entitled to compensation at all.


author: George Nose Smith, J.

text:
    Lowrey v. General Contract Corp.
    5-1344
    309 S. W. 2d 736
    Opinion delivered February 10, 1958.

      Q. Byrum Hurst and C. A. Stanfield, for appellant.

      Cockrill, Limerick and Laser, for appellee.
   George Nose Smith, J.

This is a suit by General Contract Corporation to enforce a conditional sales contract by which its assignor and coappellee, Prince Cook Motors, Inc., sold a car to the appellant, Ellon Lowrey. Mrs. Lowrey at first attacked the contract as usurious and later asserted that the plaintiff, by repossessing and selling the car while the case was pending, had elected to cancel the indebtedness. The chancellor rejected both defenses and awarded the plaintiff a judgment for the amount due upon the contract, less the proceeds from the sale of the vehicle and less the interest that had not accrued when the plaintiff declared the entire debt immediately due.

On the issue of usury the appellant contends that as a condition to the sale she was compelled to purchase credit life insurance and personal accident insurance. Her testimony to this effect is denied by the dealer’s salesman, and Mrs. Lowrey admits that she signed what purports to be a voluntary election to take the insurance. Thus the weight of the evidence is not contrary to the chancellor’s finding that the contract was valid. Universal C. I. T. Credit Corp. v. Lackey, 228 Ark. 101, 305 S. W. 2d 858.

With respect to the matter of repossession the facts are these ;■ General Contract Corporation, soon after the sale, deemed itself insecure and asserted the right to accelerate the maturity of the debt, which was originally payable in monthly installments. An action at law to recover possession of the car was filed by the creditor in July, 1955. The plaintiff executed an affidavit and bond to obtain possession, but the defendant retained possession by filing a cross bond. By answer and cross-complaint Mrs. Lowrey brought Prince Cook Motors into the case and asked, among other things, that the agreement be cancelled for usury. Tbe answer stated, however, that pending tbe determination of tbe case tbe defendant would pay tbe monthly installments into tbe registry of tbe court.

In August tbe case was transferred to equity. Mrs. Lowrey deposited her payments in court for nine months, but she became delinquent in May, 1956. In July of that year tbe plaintiff sent its agents to Mrs. Lowrey’s home to recover tbe car, which she voluntarily surrendered. A month later tbe car was sold by tbe plaintiff, through Prince Cook Motors, for $1,795. Tbe chancellor, as we have indicated, applied this sum on tbe debt, made up tbe deficiency from tbe money in tbe registry of tbe court, and directed that tbe surplus be returned to Mrs. Lowrey.

Tbe appellant, citing Noble Gill Pontiac, Inc. v. Bassett, 227 Ark. 211, 297 S. W. 2d 658, insists that tbe seller cannot maintain an action in replevin for tbe car and at tbe same time obtain what amounts to a deficiency judgment for tbe net loss. Ordinarily this is true, but tbe rule is different when tbe purchaser retains possession of tbe property by filing a cross bond. In this situation it is settled that the defendant cannot hold the chattel while it depreciates in value and then obtain a cancellation of tbe debt by eventually surrendering tbe property. Commercial Inv. Tr. v. Forman, 178 Ark. 695, 10 S. W. 2d 897; McCarty v. Cool, 189 Ark. 309, 71 S. W. 2d 1053. In tbe case at bar the trial court correctly applied our decisions on this point.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Adams v. Hart.
    5-1450
    309 S. W. 2d 719
    Opinion delivered February 10, 1958.

      Cooper Jacoway and Wood & Smith, for appellant.

      Parker Parker and Ben D. Rowland, for appellee.
   Paul Ward, Associate Justice.

This appeal challenges the jurisdiction of the Probate Court to try title to real estate under the facts of this case. The material facts are not in dispute.

Prior to 1929 J. C. Hart and his wife, Lillie J. Hart, owned and lived on a parcel of land located on Wolfe Street in the City of Little Rock. In the year mentioned J. C. Hart executed a deed conveying said land to Ethel J. Hart, the only child of him and his wife. Lillie J. Hart did not sign the deed. In 1933 J. C. Hart died intestate, and in 1940 Ethel J. Hart died intestate leaving no lineal heirs. Soon after her death Cooper Jacoway was appointed administrator of the estate of Ethel J. Hart.

On February 11, 1943 the administrator filed his first and final account showing that there was personal property amounting to approximately $1,500 after payment of all debts of the estate. The prayer was . . that an order be entered approving your petitioner’s action in turning over to Lillie J. Hart (Mrs. J. C. Hart) all of the assets of the said estate remaining after payment of the above claims, that administration of the estate of Ethel J. Hart, deceased, be terminated and your petitioner discharged as administrator and all liability of himself and his bondsman on his administrator’s bond be forever terminated and concluded. ’ ’ In due time the Probate Court ordered “. . '. that the first and final account current of Cooper Jacoway, Administrator in the captioned estate, is hereby approved and confirmed in all things; and the action of Cooper Jacoway, Administrator, in turning over to Lillie J. Hart (Mrs. J. C. Hart) the net assets of the captioned estate remaining after payment of the lawful claims against it were paid is approved and confirmed in all things; that administration on the estate of Ethel J. Hart, deceased, be and the same is hereby terminated and forever brought to an end; that Cooper Jacoway is discharged as administrator on said estate; and the obligation and liability on the bond is terminated forever, the bondsmen released, and the liability shall forever be held for naught. ’ ’

Mrs. Lillie J. Hart continued to live on the property in question after the death of her husband until she died testate on January 7, 1954. By her will she left (or attempted to leave) the property to Nina [Mrs. L. C.] Adams and Ethel Jacoway, appellants herein. At the time of Mrs. Hart’s death there was no living lineal heir of J. C. Hart and there was (apparently) no living collateral heir except one J. Eben Hart, a nephew — appellee herein.

On December 26, 1955, appellee filed a Demand for Notice in “The Matter of the Estate of Ethel J. Hart, Deceased”, and on April 27, 1956 appellee (by his attorneys) filed, under the same styled caption, a “Petition for Designation of Heirship”. This petition set forth, in addition to the facts heretofore related, that the deed from J. C. Hart to Ethel J. Hart was void because Mrs. Hart did not sign it; that appellee was the sole surviving heir of said Ethel J. Hart, and; that appellee is entitled to be adjudged the owner in fee of said lands. The petitioner’s prayer was that the order of February 11, 1943 above mentioned be set aside; that a day be set for a hearing on the petition, and; that upon a final determination appellee be adjudged the fee owner of the real estate involved.

Following the filing of the above petition, and after the court had fixed and continued a date for hearing and after the court had summarily set aside and held for naught the previously mentioned order of February 11, 1943, appellant, on September 9, 1956, filed a Motion to Dismiss the said petition. The reason assigned in the Motion was that the Probate Court had no jurisdiction to grant the relief prayed. Appellants’ motion to dismiss was denied, and the court proceeded to a trial on the merits. From a decree, finding the court had jurisdiction under Section 173 of Act 140 of 1949 (Ark. Stats. § 62-2914) and adjudging ap-pellee to be the owner as the sole heir of Ethel J. Hart in fee of the property in question, appellants prosecute this appeal.

Appellants make it clear in the beginning that “the question before this court does not involve the merits of the substantive question as to the ownership of the land”. Again appellants say they “recognize and readily concede that the title to the lands involved in this case can and should be tried out in an appropriate Circuit Court or Chancery Court”. We agree with the above, and we also agree with appellants that the Probate Court had no jurisdiction, under the facts above set forth, to determine the ownership of the land in controversy.

Aside from the fact that administration of the estate of Ethel J. Hart had been closed and the administrator discharged for approximately 13 years, the Probate Court had no jurisdiction under § 173 of Act 140 of 1949 (same as Ark. Stats. § 62-2914) even to determine heirship. It is not contended that under the law, as it existed at the time of the administration of the Ethel J. Hart estate, the Probate Court had any authority to determine heirship. It is clear, from subsections 2a. and 2 b. of Act 140 of 1949 (Ark. Stats. § 62-2002 a. and b.) that the said Act 140 is not retroactive. Therefore it must follow that the Probate Court, in the matter before ns, had no jurisdiction to entertain appellee’s petition.

Likewise, under the law obtaining at the time of the administration of the Ethel J. Hart estate, real property was not an asset in the hands of an administrator unless it was necessary for the payment of estate debts but passed immediately, upon death of the intestate, to the heirs. See: Dean v. Brown, 216 Ark. 761 (at page 769), 227 S. W. 2d 623.

The record before us shows unquestionably that the administrator, in the Ethel J. Hart estate, did not need the land in question in order to pay debts. Thus, at the time appellee filed his petition herein, the title to the property in litigation was in precisely the same situation as if there had been no administration of the Ethel J. Hart estate. The controversy here therefore is between appellants, who claim title under the will of Lillie J. Hart, and appellee, who claims title as the sole heir of Ethel J. Hart. The proper jurisdiction for the determination of that controversy is either in Chancery Court or Circuit Court, depending on how it arises. Appellee also seems to take the position that appellants have waived their right to prosecute this appeal because they did not object to or appeal from an order of the Probate Court, made on May 4, 1956, in which “the order under date of February 11, 1943” was set aside. This contention is not tenable because the May 4, 1956 order was not a final (or appealable) order. Moreover this order appears to have been made without notice to appellants and after a subsequent hearing date had been set.

In reversing the decree of the Probate Court it is not our intention to adjudicate the conflicting claims of the respective parties to title of the land in question.

Reversed.

Judge Millwee, not participating.


author: Sam Bobinson, Associate Justice.

text:
    Hartman v. Hartman, Admr.
    5-1442
    309 S. W. 2d 737
    Opinion delivered February 10, 1958.

      Jeta Taylor and Daily & Woods, for appellant.

      Dickson & Putman and Mark E. Woolsey, for ap-pellee.
   Sam Bobinson, Associate Justice.

Tbe appellant, Hadee Hartman, is tbe widow of H. H. Hartman, wbo died on tbe 17th day of January, 1956. In November preceding bis death, Mr. Hartman sold 255 acres of bis 280 acre farm, encompassing bis homestead, for tbe consideration of $13,500. Mrs. Hartman signed tbe deed, releasing her right of dower and homestead. A cash payment of $6,500 was made; for tbe balance, tbe purchaser executed ten notes in tbe amount of $700 each, due annually; tbe notes were made payable to H. H. Hartman and Hadee Hartman. On tbe 16th day of November, 1955, tbe remaining 25 acres of tbe farm was converted into an estate by tbe entirety between Hartman and his wife, Hadee, tbe appellant.

On tbe 23rd day of April, 1956, H. B. Hartman, son of H. H. Hartman and administrator of bis estate, filed in probate court a petition for discovery, asking that tbe widow, Hadee Hartman, be required to appear before tbe probate court to be examined under oath “for tbe discovery of all sucb property, records, papers and documents belonging to said decedent, or affecting bis title to, or rights in, any property owned by decedent at tbe time of death; and further prays that upon said discovery respondent be required to deliver to this petitioner, as sucb administrator, all property, records, papers or documents (to) which be may be found by the court to be entitled.” Tbe court issued an order of discovery requiring tbe widow to appear before tbe court to be examined under oath. In response thereto, Mrs. Hartman appeared in court with an attorney, who was a partner of her regular attorney. In Mrs. Hartman’s presence, the attorney entered into tbe following stipulation :

“It is stipulated that property belonging to H. H. Hartman was sold prior to bis death for tbe sum of $13,500.00.
‘ ‘ That tbe purchase price was paid as follows: $6,-500.00 in cash and tbe remaining portion of tbe purchase price was evidenced by 10 promissory notes in tbe sum of $700.00 each, maturing annually on tbe 1st day of December in each year, beginning in the year 1956. That the remaining unpaid balance of the purchase price is secured by a mortgage on the property sold and that tbe mortgage is of record in the office of the Circuit Clerk and Ex-Officio Recorder of Ozark District of Franklin County.
“That tbe notes were made payable jointly to Mr. and Mrs. H. H. Hartman and that Mrs. Hartman, subsequent to tbe execution of tbe notes and mortgages, entered into an agreement with H. H. Hartman whereby she assigned to H. H. Hartman $5,000.00 of said notes, being tbe notes maturing last and that the consideration for tbe assignment was that she was to have title to tbe 24 or 25 remaining acres and that tbe $5,000.00 unpaid purchase price was to go to H. H. Hartman free and clear of any claims which she might have as dower or homestead and in lieu thereof.
“That the contract between H. H. Hartman and Mrs. Hartman and all of the notes are in the private safe of Mr. Jeta Taylor, the attorney for Mrs. Hartman at Ozark, Arkansas, and that he is ont of the State because of illness of a relative, and that upon Mr. Taylor’s return that a copy of the contract and the notes to which the estate is entitled will be delivered to the administrator. ’ ’

Later a petition was filed by Mrs. Hartman, asking that the stipulation be amended. The petition alleges that the assignment of the notes of the value of $5,000 to Mr. Hartman Avas a unilateral agreement supported by no consideration and was void; that the assignment was induced by a fraudulent representation that Mr. Hartman had paid $5,000 for the land, when in fact he had paid only $2,000 for it; that the recited consideration that Mrs. Hartman was to get title to 25 acres is untrue. It was contended, also, that Mrs. Hartman only agreed to deliver a copy of the assignment and copies of the notes; that the stipulation did not mean that she would deliver the original notes. A hearing was held on the petition to amend the stipulation. The court made a finding that Mrs. Hartman agreed in open court to the stipulation, and that there was no merit to the contention that only copies of the notes were to be delivered to the administrator. The court did not consider that the validity of the assignment Avas an issue at that time. The order provides:

“And the court, Avithout passing on the question of the validity of the assignment, permits Hadee Hartman to AvithdraAV from the stipulation that portion stating that the consideration was 24 or 25 acres of land, the withdrawal of said portion of the stipulation being permissive only and without prejudice to the rights of any of the parties hereto to litigate said matter in a court of competent jurisdiction.” ■

Mrs.'Hartman had stipulated in open court that the notes had been assigned to the estate. The court did not pass on the validity of the assignment. In fact, the court specifically pointed out that the validity of the assignment was an open question, leaving the parties at liberty to litigate that question.

Appellant contends that the probate court did not have' jurisdiction to order Mrs. Hartman to deliver the notes to the administrator. This might be correct if Mrs. Hartman had asserted at the time of the discovery proceeding that she was entitled to the possession of the notes. But she agreed to turn possession of the notes over to the administrator. In these circumstances we think the probate court had jurisdiction to order that this be done. It does not appear to make much difference who has possession of the notes. The vital question is the validity of the assignment. The court made no attempt to decide that question.

This leads to a discussion of the jurisdiction of the probate court in a discovery proceeding. Ark. Stat. § 62-413 provides for a discovery proceeding by the probate court in regard to alleged assets of an estate. Section 62-415 (Rev. Stat., ch. 4, § 50) provided for an attachment of any property found in such proceeding to belong to the estate.

In Moss v. Sandefur, 15 Ark. 381, it appears that if the person in possession of the property in issue has color of title thereto, the probate court does not have jurisdiction to order the delivery of the property to the administrator. And in Ellsworth v. Cornes, 204 Ark. 756, 165 S. W. 2d 57 (1942), it is held that the probate court does not have jurisdiction to determine title to contested property, but it is pointed out that where the contest is between the executor or administrator and parties who claim as heirs or beneficiaries having some interest in the estate and who do not claim adversely or are strangers to it, the probate court has jurisdiction.

When the new probate court code was adopted in 1949, the old statute providing for discovery (Ark. Stat. $ 62-413) was reenacted (Ark. Stat. $ 62-2409). But § 62-415, providing for attachment, was not reenacted, the committee comment being “The right of the probate court to attach property belonging to the decedent is withdrawn since the committee feels that snch attachment may more properly be enforced in other courts.” (Note to § 62-2409).

Appellee cites Thomas v. Thomas, 150 Ark. 43, 233 S. W. 808 (1921), and Carlson v. Carlson, 224 Ark. 284, 273 S. W. 2d 542 (1954), as authority for the proposition that probate court has jurisdiction to determine the ownership of property between the widow and the estate of the deceased husband. It is hard to reconcile the Thomas and Carlson cases with the Moss case and the Ellsworth case and the statutes, when, as here, the widow is claiming the property, not because she is an heir or distributee of the estate, but is claiming it adversely to the estate. But be that as it may, in the case at bar the fact remains that Mrs. Hartman appeared in open court and stipulated that she had assigned the notes in controversy to the estate and agreed to turn them over to the administrator. We think such action on the part of the appellant gave the court jurisdiction to order that this be done.

At the time of the making of the stipulation to the effect that the notes had been assigned to Mr. Hartman, there did not appear to be any controversy about the validity of the assignment. Of course, if there was no controversy about the title, the court had the authority to order that the notes be turned over to the administrator. And the fact that later the widow claimed to be the owner of the notes would not divest the probate court of jurisdiction, once acquired. In 15 C. J. 822, it is said: “It is well established, as a general rule, that jurisdiction once acquired is not defeated by subsequent events, even though they are of such a character as would have prevented jurisdiction from attaching in the first instance.” And the Court said, in Estes v. Martin, 34 Ark. 410, 419: “It is the universal rule, so far as we know, in the courts of the various states, and in the United States courts, that where a court once rightfully acquires jurisdiction of a cause, it has a right to retain and decide (it).” See, also, Strawn v. Campbell, 226 Ark. 449, 291 S. W. 2d 508.

In the hearing on the discovery petition, it was conceded that the notes were assigned by Mrs: Hartman to Mr. Hartman. In the circumstances, the probate court had jurisdiction to order that the notes be turned over to the administrator of Mr. Hartman’s estate. The burden is on Mrs. Hartman to establish the alleged invalidity of the assignment. That issue has not been resolved.

Affirmed.


author: CarletoN Harris, Chief Justice.

text:
    White River Limestone Products Co. v. Mo.-Pac. Rd. Co.
    5-1453
    310 S. W. 2d 3
    Opinion delivered February 17, 1958.

      Spitzberg, Bonner, Mitchell & Hays, and Beresford L. Church, Jr., for appellant.

      Pat Mehaffy and W. A. Eldredge, Jr., for appel-lee.
   CarletoN Harris, Chief Justice.

This is an appeal from a judgment of the Circuit Court of Independence County, rendered summarily on the pleadings, certain stipulations of the parties, and upon the record, without the taking of any testimony.

White River Limestone Products Co., Inc., (hereinafter called White River), Arkansas Real Estate Co., Inc., and United Pacific Insurance Company are the appellants. Arkansas Real Estate owns certain mineral lands at Penter’s Bluff, upon which White River has conducted mining operations. United, as surety, executed its bond securing the performance of White River under a track materials lease executed between White River, lessee, and appellee, Missouri-Pacific Railroad Company, lessor. Appellants, White River and Arkansas Real Estate, instituted this suit against the Missouri-Pacific for damages allegedly suffered from a repossession by the railroad of the track materials covered by the lease, it being asserted that Missouri-Pacific had violated the terms of the lease, under which White River alleged it had been given an option to purchase said materials at the expiration of the lease period. Ap-pellee filed an answer and counterclaim against White River, and cross complained against the insurance company for the expense incurred in repossessing the track materials. Subsequent thereto, appellee filed a Motion for Judgment against White River and United Pacific on the cross complaint, and for judgment for Missouri-Pacific against the complaint of White River and Arkansas Real Estate upon the grounds hereinafter discussed. The trial court found in favor of appellee on the contentions raised, and sustained the Motion for Judgment. From the judgment of the court, comes this appeal.

For reversal, appellants rely upon three points, namely:

I.

The lower court erred in treating the response of the appellants to the appellee’s request for admissions as an admission on the part of the appellants that the appellee’s cost of repossessing the track materials was $1,350.53.

II.

The lower court erred in its holding that the appellants’ action in the filing and subsequent voluntary dismissal of the action in the Chancery Court of Independence County, Arkansas, constituted a waiver of the appellants’ right to exercise the option to purchase under the terms of the “Track Materials Lease”.

III.

The lower court erred in its holding that the measure of the appellants’ damages, in accordance with the prayer of the Complaint, could only result in a judgment for $0.00, and that the Complaint therefore failed to state a cause of action.

We proceed to a discussion of each point in the order listed.

I.

Appellee served appellants with a Request for Admission pursuant to Section 28-358 (Ark. Stats.) which provides, in part, as follows:

“After commencement of an action a party may serve upon any other party a written request for the admission hy the latter of the genuineness of any relevant documents described in and exhibited with the request or of the truth of any relevant matters of fact set forth in the request. * * * Each of the matters of which an admission is requested shall be deemed admitted unless, within a period designated in the request, not less than 10 days after service thereof or within such shorter or longer time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons wdiy he cannot truthfully admit or deny those matters or (2) written objections on the ground that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in -whole or in part, together with a notice of hearing the objections at the earliest practicable time. * * *”

The Bequest for Admission included eight different items, the first being as follows: ‘ That the total costs of defendant, Missouri-Pacific Bailroad Company’s repossession of the materials covered by Exhibit ‘A’ attached to the Complaint and Cross-Complaint was $1,-350.53, itemized as follows: * * *” Number 2, 3, 4, 5, 6, 7, and 8 were objected to on the grounds that they were wholly immaterial and irrelevant to the issue. To Number 1, appellant answered, “Plaintiffs are -without knowledge of the correctness or exactness of defendant’s request Number 1 as to costs of repossessing materials as per Exhibit ‘A’. We hold the court’s action in ruling that this response, in effect, amounted to an admission insofar as item one is concerned, was correct. The statute requires a sworn statement denying specifically the matters of which an admission is requested, or setting out in detail the reasons -why same cannot be admitted or denied, or -written objections thereto. The response was not sworn to, and we are of the opinion that this requirement is mandatory. Our own U. S. District Court for tlie Western District of Arkansas lias so held. In Sieb’s Hatcheries, Inc. v. Lindley, 13 F.R.D. 113, the court quotes from Barron & Holtzoff’s Federal Practice and Procedure, Volume II, page 542, as follows :

“Affirmative action is required to avoid the requested admissions and if no answer or response is made within the time prescribed by the request, the facts in the request are deemed admitted. To avoid an unintended admission there must be, therefore, either a sworn statement denying specifically the matters as to which an admission is requested or setting forth in detail why those matters cannot be truthfully admitted or denied, or timely written objections.”

In the case of Beasley v. United States, 81 F. Supp. 518, is found this language:

“To my mind the provision that the answers shall be verified is not a mere technicality and the failure to comply strictly with the requirement is not a mere oversight which can be waived or brushed aside. It is a very important and vital part of the procedure * *

Nor does it appear that the present failure to verify the response was an oversight, since appellants make mention in their brief of the provision found in Section 28-359, in which it is provided that if the respondent presents a sworn denial of the truth of a matter of fact, and the party making the request proves such truth, the respondent may be required to pay the expense incurred in the making of such proof, plus reasonable attorney’s fees. The action of the court did not constitute error.

II.

On November 17, 1955, White River and Arkansas Real Estate Company instituted a suit against appellee in the Independence County Chancery Court, alleging the option of White River to purchase the track materials and their desire to purchase said materials for the fair market value. It was alleged that appellee refused to sell the materials as agreed in the lease, and was threatening to repossess same. A temporary injunction, restraining Missouri-Pacific from repossessing said track materials until such time as the fair market value could be established by the court, was sought. The court orally granted the temporary restraining order, and directed that appellants file a bond, set the matter for final hearing for December 6, 1955, and directed counsel to prepare precedent. Instead of preparing precedent and providing the bond, appellants subsequently dismissed the suit without prejudice. Appellee thereafter repossessed the track materials, and appellants, in May, 1956, instituted the instant suit in the Circuit Court against appellee seeking damages for the alleged wrongful repossession. Appellee contends that appellants, by abandoning their opportunity to litigate the issues in the Chancery suit, waived their option. We do not agree. The action of appellants amounted to nothing more than the taking of a non-suit, which has been a permitted practice in this state for a long number of years. As stated in American Jurisprudence, Yol. 17, Sec. 95, page 164:

“It is a well-settled rule that a judgment or decree of dismissal not involving the merits, or without prejudice to the plaintiff is not a bar to a subsequent action or suit. * * *”

Also, on December 15th, counsel for appellants wrote the chief operating officer of the Missouri-Pacific, advising that appellants “are requesting that the Court dismiss without prejudice the suit which these companies filed against the trustee for the Missouri-Pacific Railroad Company in the Chancery Court for Independence County, Arkansas, being case No. 2014,” and enclosing a copy of precedent for such an order. The letter then reiterated that White River was ready and willing to purchase the track materials in accordance with the terms of the lease agreement, and further advised “in the event that trustee proceeds to remove these track materials, the White River Limestone Products Co., Inc., intends to file suit against him for damages.” Appel-lee was thus advised that White River was not abandoning its rights tinder the alleged option. Appellee also contends that White River waived any alleged option to purchase by its failure to tender performance in accordance with the terms of the lease. The lease provides “* * * upon conclusion of this agreement Lessee shall at Place of Delivery promptly deliver to Carrier all of Materials, with angle bars detached from rails, or pay to Carrier for any of Materials not so delivered their value determined pursuant to paragraph 1 hereof.” Paragraph 1 set up the figure of $3,060.93 as the agreed value to be used in computing quarterly rental. The lease further provided “For the purpose of paragraph 2 hereof, the value of any of Materials not returned by Lessee on conclusion of this agreement shall be the established market value, as of the date of such conclusion, or materials of like pattern and weight, or in the absence of an established market value, the then value as established by Carrier’s General Purchasing Agent for sale of similar materials, but not less than the agreed values shown above, for the use in computing rental.” White River offered to purchase the materials and tendered the sum of $3,060.93. Appellee refused to accept this amount, stated there was no market value for such materials, and that the value established by the carrier’s general purchasing agent was $7,-560.32. White River refused to pay this amount. While we agree that the figure of $3,060.93 was only to be used in computing rental and ivas not necessarily the market value at the time of the expiration of the lease, we are unable, from the record before us, to presently find that there was no market value for materials of this type. The value as established by carrier’s general purchasing agent, under the terms of the lease, was only to apply if no market value could be established. This is a question of fact, upon which neither side had opportunity to present any proof. We think appellants are entitled to the chance to show by competent testimony that there was an established market value, and that such value did not exceed the amount tendered by appellants.

They were only required to tender the amount of $7,-560.32 if there was no established market value.

Nor do we agree that the lease is void for uncertainty. The phrase “established market value as of the date of such conclusion” is specific and definite. It is not an “agreement to make an agreement” for the parties state clearly the basis for exercising the option. We conclude that the court erred in holding that the filing and subsequent voluntary dismissal of the action in the Chancery Court by appellants, constituted a waiver of White River’s right to exercise the alleged option.

III.

Appellee asserts that there could be no recovery under the prayer of the complaint, wherein appellants allege their measure of damage as the cost of replacement. Appellee points out that appellants’ cited cases refer to instances where the destroyed property was owned by the parties seeking recovery, while here the property was owned by appellee. Paragraph 10 of the complaint alleges “as a result of said wrongful repossession, the plaintiffs have suffered damages to the above described real property in the amount of $3,000. ’ ’ In the first place, the question of damages cannot be determined until it first be ascertained whether the tender made by appellants was sufficient to permit them to exercise their option and buy the materials. If it should develop that the tender represented the then market value, then it would seemingly follow that the tracks were wrongfully removed, and an action for damages might well lie. However, assuming that a cause of action was not properly stated, it would appear that the proper avenue of attack by appellee would have been by demurrer. Summary judgments are not generally favored by the courts, and a pleading should be liberally construed. Lytle v. Payette-Oregon Slope Irrigation District, 175 Ore. 276, 152 Pac. 2d 934; Metal Door and Trim Co. v. Hunt, 170 Okla. 240, 39 P. 2d 72, 101 A. L. R. 350. Prom American Jurisprudence, Yol. 41, Sec. 335, page 520: ‘ ‘ Moreover, a motion for judgment on the pleading may not be used as a substitute for a demurrer where the pleadings are amendable so as to state a cause of action or defense.”

Because of the errors herein set out, the judgment of the Circuit Court is reversed, and the cause remanded with directions to set aside the judgment rendered, and further proceed in a manner not inconsistent with this opinion.

       United Pacific Insurance Company was a cross defendant in the lower court.

       This requirement relates to answers, and not to objections. As to items 2 through 8, there were objections.

       According to Black’s Law Dictionary, (Fourth Edition) :
      “The market value of an article or piece of property is the price which it might be expected to bring if offered for sale in a fair market ; not the price which might be obtained on a sale at public auction or a sale forced by the necessities of the owner, but such a price as would be fixed by negotiation and mutual agreement, after ample time to find a purchaser, as between a vendor who is willing (but not compelled) to sell and a purchaser who desires to buy but is not compelled to take the particular article or piece of property.”


author: J. Seaborn Holt, Associate Justice.

text:
    Williamson v. Garrigus.
    5-1454
    310 S. W. 2d 8
    Opinion delivered February 17, 1958.

      John G. Rye, for appellant.

      Richard Motley and Williams & Gardner, for ap-pellee.
   J. Seaborn Holt, Associate Justice.

Appellee, G-arrigus, brought this suit to "recover damages for personal injuries which resulted when he was struck by an automobile driven by appellant, Williamson. Appellant denied any liability, alleging as a complete defense and bar, contributory negligence of appellee. By agreement a jury was waived and trial was had before the court, sitting as a jury, which resulted in a finding and judgment for appellee in the amount of $8,961.85. This appeal followed.

For reversal appellant contends that the evidence shows that he was free from any negligence, that ap-pellee was guilty of contributory negligence barring any recovery, and that the verdict was excessive.

The testimony shows that appellee was walking diagonally across Main Street in Russellville between street intersections, or “jaywalking” as it is-sometimes called, when he was struck by appellant’s car. A fair summation of the facts we think, is contained in the following findings and conclusions of law of the trial court: “. . . defendant (appellant) Williamson, in driving south on Arkansas Avenue, turned simultaneously with another car, not identified, being driven north from South Arkansas Avenue into Main Street. That according to defendant’s (appellant’s) testimony, the two cars traveling to the West, were at least at the point of the accident, almost abreast. Defendant (appellant) stated that his car was about half the distance of the other car to the rear, and that abont one yard separated the two cars, north and south. In response to question asked by his attorney, Mr. Williamson stated that his view to the left was obstructed. Other witnesses testified that just prior to the accident, the preceding car was about 10 or 15 feet in the front of the Williamson ear. Based upon the testimony of the defendant (appellant), who was in a better position to observe the true physical conditions and location of the two cars, assuming there were two cars, than that of other witnesses who were a considerable distance away, defendant (appellant) from the point of turning from Arkansas Avenue into Main Street, traveled a considerable portion of distance, just behind the second car he testified to, or almost parallel with the car driven to his left. Accepting this testimony as true, defendant continued to drive with his view to the left obstructed and at the rate of speed he was driving, 20 to 25 miles an hour, did not have his car under such control as to be able to avoid the accident.* * * He (appellant) placed his car to the right of the car just preceding him,' about a yard interval between the two cars ... ‘I would say that the front of my ear was about even with the middle of his (second car).’ Defendant (appellant) also stated in response to question by the court that plaintiff, Garrigus, stepped from in front of west bound car to his left in front of Williamson car . . . Mr. Garrigus was an old man, moved very slowly with a shuffling walk, and if the two cars were traveling parallel or partially parallel as described by defendant (appellant), without any decrease in speed of either car, to have moved into the lane traveled by defendant (appellant), plaintiff (appellee) would have (had) to jump or to say the least, moved rapidly from the front of the other car.

“Mr. Charles Wilson testified: ‘I didn’t see any cars until I saw this car down in front of the courthouse, the first I saw, and Uncle John (plaintiff-appel-lee) came out ... it seems like ... he walks kind like (indicating) and he was trying to get out of the way of the car, is the way it looked to me.’ From this testimony, as given, plaintiff (appellee) apparently saw the Williamson car and sought to avoid being struck. The ‘ other car ’ apparently was not seen by Mr. Wilson. The weight of the testimony, however, rather sustains the finding that there was a second car.

“Viewed from the whole of the testimony heard in the trial, it is the finding of the court that defendant was guilty of negligence in the manner of the operation of his automobile immediately prior to and at the scene of the accident. In examining the testimony of defendant (appellant), which has been transcribed for the benefit of the court, in no particular does he testify that he was keeping a constant lookout as required by law. It may be assumed of course that defendant was looking ahead, but apparently not laterally. While defendant (appellant) testified that he was not exceeding the speed limit, it would not necessarily follow that under the existing conditions he was justified in driving at the legal rate of speed. Cars were parked on the north side of Main Street. Sufficient room remained north of the center line to permit two lanes of travel, but the right portion of the street would be limited and would require careful, prudent driving. Motorist, under the existing conditions attendant on one of the main traveled streets would be required to anticipate the presence of pedestrians, and this would require a constant, continuous lookout.” It appears that due to loss of memory, appellee was unable to testify in this case.

The relative duties of the pedestrian and motorist, in circumstances such as are presented here, have many times been announced by this court, both have equal rights in the use of streets and highways. Motorist, in operating automobiles, must keep a constant lookout to avoid injury to pedestrians, see Northwestern Casualty & Surety Co. v. Rose, 185 Ark. 263, 46 S. W. 2d 796; and, must anticipate the presence of pedestrians on streets and exercise reasonable care to avoid injuring them, see Morel v. Lee, 182 Ark. 985, 33 S. W. 2d 1110; Self v. Kirkpatrick, 194 Ark. 1014, 110 S. W. 2d 13; Pate v. Fears, 223 Ark. 365, 265 S. W. 2d 954; Black & White, Inc. v. Fisher, 224 Ark. 688, 275 S. W. 2d 876. Pedestrians are required to exercise ordinary care for their own safety. As to the duties and care required of a pedestrian in crossing a street, Blashfield Vol. 2A, Sec. 1452, states the rule as follows: “A pedestrian has a right to cross a street diagonally in the middle of the block, or elsewhere than at a crossing, subject to the duty of making reasonable use of his senses in order to observe impending danger, though he may rely to some extent on the motorist exercising reasonable care, and whether he is in the exercise of ordinary care in so doing is usually for the jury ... A pedestrian so crossing the street is under no duty to anticipate any action on the part of the motorist that will imperil his safety ... or that the car is not being run at a controllable speed. In such situations, as in other cases, the right of the pedestrian to assume that the motorist will not violate traffic regulations may affect the question of his negligence.

“A person, crossing a street in a diagonal direction, at a place where there is no crosswalk, is not negligent as a matter of law in failing to look continually for automobiles approaching from behind, as there is no fixed rule that he must turn and look back, but whether he does so depends on the circumstances in the particular case, and, while he must be alert, where he should look depends upon the law of the road, the current or traffic, his means of observation and local conditions.”

In Am. Jur. Prud. Sec. 762 of Yol. 5A, the textwriter says: “Where a pedestrian is forbidden by law to cross a street or highway between intersections it is generally held that the mere violation of the statute or ordinance will not necessarily operate as a bar to recovery. Such question as the proximate cause of the accident .... may make the issue one of fact for the jury to decide in light of all surrounding circumstances.”

In a very recent case, Pate v. Fears, 223 Ark. 365, 265 S. W. 2d 954, we have set forth and defined the relative rights and duties of pedestrians and motorists in circumstances such as are presented here, where we said:. “There are many decisions of this conrt defining the relative rights and duties of pedestrians and drivers of automobiles using the public streets and highways. Both have a right to use the streets and are required to exercise ordinary care for their own safety and the prevention of injury to others . . . this court said in Northwestern Casualty & Surety Co. v. Rose, 185 Ark. 263, 46. S. W. 2d 796, ‘It is the well-settled rule that the duty rests, upon the driver of an automobile to exercise ordinary care in its operation, and in the exercise of such care it is his duty to keep a constant lookout to avoid injury to others. This is particularly incumbent upon him when driving on the street of a city in order to avoid injury to pedestrians, ■ as he should anticipate their presence, upon such streets and their .equal right to their use.’ In Morel v. Lee, 182 Ark. 985, 33 S. W. 2d 1110, the court said, ‘Ordinary care, however, is a relative term, its interpretation depending upon the facts and circumstances of each particular case; and, although drivers of automobiles and pedestrians both have the right to use the streets, the former must anticipate the presence of the latter and exercise reasonable care to avoid injuring them, care commensurate with the danger reasonably'to be anticipated’.” In the case of Black and White, Inc. v. Fisher, 224 Ark. 688, 275 S. W. 2d 876, we said: “The relative rights of pedestrians and motor vehicles in a public street are equal, and each is obliged to act with due regards to the other. Neither is called upon to anticipate negligence of the other.” As indicated, we think there was substantial evidence presented, when considered in the light most favorable to appellee, as we must, to support the findings of the trial court to the effect that the proximate cause of the collision and injuries to appellee was due to the negligence of appellant, and not to appellee’s negligence.

On the question of excessiveness of the verdict, little need be said. Of the amount of damages allowed appellee ($8,961.85) it appears that $1,961.85 was for medical care, hospitals, nursing, drugs, etc., $2,000 was for loss of earnings and $5,000 was for the permanent injury, pain suffered and mental anguish. It was undisputed that the life expectancy of appellee was five years. At the time of the injury he was 84 years of age and receiving $105 per month, $50 of this amount was retirement pay paid by the city and $55 paid to him as night watchman by the merchants of Russell-ville. It appears undisputed that-appellee was seriously injured in June 1953. Medical testimony shows that his injuries were painful and permanent. He suffered a fractured leg, a broken arm, abrasions and other bodily injuries. He was confined to a hospital about 2% months and at his home in bed for 5y2 months thereafter. His physician testified that he would continue to suffer in the future and that his injuries were permanent. In cases of this nature we are afforded no definite yardstick by which to measure damages and the amount awarded must, therefore, be left to the sound discretion and judgment of the jury, or the court sitting as a jury, based upon the evidence in the case. The amount so awarded cannot be disturbed by this court as excessive if we find any substantial evidence to support it. We reannounced the rule on measure of damages in Hot Springs Street Railway Co. v. Hill, 198 Ark. 319, 128 S. W. 2d 369: “The measure of damages for a physical injury to the person may be broadly stated to be such sum, so far as it is susceptible of,estimate in money, as will compensate plaintiff for all losses, subject to the limitations imposed by the doctrines of natural and proximate consequences and of certainty, which he has sustained by reason of the injury, including compensation for his pain and suffering, for his loss of time, for medical attendance and support during the period of his disablement, and for such permanent injury and continuing disability as he had sustained. Plaintiff is not limited in his recovery to specific pecuniary losses as to which there is direct proof, and it is obvious that certain of the results of a personal injury are insusceptible of pecuniary admeasurement, from which it follows that in this class of cases the amount of the award rests largely within the discretion of the jury, the exercise of which must be governed by the circumstances and be based on the evidence adduced, the controlling principle being that of securing to plaintiff a reasonable compensation for the injury which he has sustained. ’ ’ When we consider appellee’s reduced earning capacity, his permanent injuries with attendant pain and suffering, we do not find the verdict excessive. It is also significant to note that at the time of the trial in June 1957 appellee had already lived 4y2 years after his injuries, or about six months short of his life expectancy.

Affirmed.


author: Ed. P. McFaddih, Associate Justice.

text:
    Seward v. State.
    4889
    310 S. W. 2d 239
    Opinion delivered February 17, 1958.
    [Rehearing denied March 17, 1958]

      William J. Dung an and John D. Thweatt, for appellant.

      Bruce Bennett, Atty. General and Thorp Thomas, Asst. Atty. General, for appellee.
   Ed. P. McFaddih, Associate Justice.

Charley Seward killed his brother, James (Bud) Seward; and was convicted of first degree murder (§ 41-2205 Ark. Stats.) with sentence of life imprisonment. He brings this appeal. The motion for new trial contains fourteen assignments. We have studied all of them, but discuss in detail only those most seriously urged by appellant’s counsel.

I. Sufficiency Of The Evidence. The defendant admitted the homicide and claimed self defense. On appeal, we view the evidence in the light most favorable to the verdict, as is our rule in cases like this one. Eddington v. State, 225 Ark. 929, 286 S. W. 2d 473; Allgood v. State, 206 Ark. 699, 177 S. W. 2d 928. It appears that the defendant, Charley, entered a room in which his brother, Bud, was in bed. The brothers engaged in a conversation which started out in a friendly manner, but developed into some dispute about Bud having interfered with Charley’s rent collections and other matters. The conversation became acrimonious. An eye witness said that Bud never got out of bed, and that Charley shot Bud three times. Another brother, named Mike Seward, testified that a few days before the homicide, Charlie had told him that if Bud did not stay out of the way, Charley was going to hurt Bud. In short, there was sufficient evidence to establish a willful, deliberate, malicious, and premeditated killing, and to negative the claim of self defense.

II. Instructions. As aforesaid, the defendant claimed self defense. He testified that Bud was in bed at the beginning of the conversation; but that Bud got out of bed and stabbed him with a knife, inflicting severe injuries; and that Charley resisted as long as he could. Here is appellant’s abstract of his testimony:

. . Then he pushed me back to the chair. When I fell in the chair he had hold of me ... I kicked off of him with my feet, he fell on the bed. He still had the knife. When I pushed him back to the bed he started getting up with the knife when I come up with the gun. I shot him because I thought he was coming back to me with the knife. I thought I was bad cut. I was afraid. I was bleeding.”

Among other instructions, the defendant requested his Instruction No. 10 on self defense:

“You are instructed that one who is suddenly viciously assaulted by another is not required to retreat, but may stand his ground and repel force with force, and if necessary to protect himself, may slay his assailant, unless accused himself provoked the assault. ’ ’

In refusing the instruction, the Court said that the matter was covered in other instructions. The Court’s statement was true: two such instructions were defendant’s Instruction No. 12 and the Court’s Instruction No. S-7.

Furthermore, we also think the defendant’s Instruction No. 10 was properly refused because it did not use the words “murderous intent”. In Carpenter v. State, 62 Ark. 286, 36 S. W. 900, Justice Battle used this language:

“But the rule is different where a man is assaulted with a murderous intent. He is then under no obligation to retreat, but may stand his ground, and, if need be, kill his adversary.” (Italics our own.)

It will be observed that the defendant’s Instruction No. 10 was evidently framed from Justice Battle’s language as above quoted, but failed to use the necessarily essential words, “murderous intent”. The use of these words has been mentioned in some of our cases: Larue v. State, 64 Ark. 144, 41 S. W. 53; Bishop v. State, 73 Ark. 568, 84 S. W. 707; and Garrett v. State, 171 Ark. 297, 284 S. W. 734.

The Court gave, on its own' motion, Instruction No. S-7, which was correct. It reads:

“You are instructed that no one in resisting an assault made upon him in the course of a sudden brawl or quarrel, or upon a sudden encounter, or in a combat on a sudden quarrel, or from anger suddenly aroused at the time it is made, is justified in taking the life of the assailant, unless he is so endangered by such assault as to make it necessary to kill the assailant to save his own life, or to prevent a great bodily injury, and he employed all the means in his power, consistent with his safety, to avoid the danger and avert the necessity of the killing. The. danger must apparently be imminent and actual, and he must exhaust all means within his power, consistent with his safety, to protect himself, and the killing must be necessary to avoid the danger. If, however, the assault is so fierce as to make it, apparently, as dangerous for him to retreat as to stand, it is not his duty to retreat, but he may stand his ground, and, if necessary to save his own life; or to prevent a great bodily injury, slay his assailant.”

The defendant has all .the time insisted that the above instruction did not give the defendant the full benefit of his plea of self defense because it gave the positive right of self defense only in the last sentence, and then in an argumentative manner. We find no merit in defendant’s contention. This Instruction No. S-7 is identical with the one approved by this Court in Smith v. State, 194 Ark. 264, 106 S. W. 2d 1019. An examination of the transcript and briefs in the cited case discloses that the same objection against the instruction — i.e., that it was argumentative — was made in the Smith case, and the instruction was approved even in spite of such objection.

III. Cross-Examination Of Defendant. The defendant became a witness in his own behalf; and on cross-examination the Trial Court — over the objections of the defendant — permitted the Prosecuting Attorney to interrogate the defendant concerning (a) the death of his second wife; and (b) the homicide of Will Walker.

The defendant stated that his second wife died in 1953; that he and his wife were working in the field; that an oil can exploded; and that his wife was burned to death. The defendant’s attorneys objected most strenuously to such line of questioning, saying, inter alia: “Mr. Thweatt: Does he mean to make this jury believe this man did something' wrong? That is not the proper way to do that.” The Court ruled:

“The objection is overruled at the present time . . . The Prosecuting Attorney will be permitted- to ask the questions but he is informed now that he is bound by the answers of this witness because they are not matters covered on direct examination; and therefore he is bound by the answers.”

In regard to the homicide of Will Walker, the defendant stated that he killed Will Walker in a knife fight in St. Francis County, Arkansas in 1936. An additional objection was that the homicide in 1936 was too remote to have any bearing on the 1956 homicide for which defendant was then on trial. The Trial Court was correct in permitting the cross-examination of the defendant on both of the matters. The defendant voluntarily took the stand and became a witness. Willis v. State, 220 Ark. 965, 251 S. W. 2d 816. The questions as to defendant’s previous conduct were asked him on cross-examination. There was no effort to show by any other person the previous conduct of the defendant. See DuVal v. State, 171 Ark. 68, 283 S. W. 23. We have repeatedly held that when the defendant takes the witness stand the State may cross-examine him for the purpose of testing his credibility.

In Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41, we said:

“It has always been held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of the power. But, within this discretion, we think a witness may be asked concerning all antecedents which are really significant, and which will explain his credibility. ’ ’

In Bevis v. State, 209 Ark. 624, 192 S. W. 2d 113, Justice FraNk G. Smith, speaking for this Court, said:

“Over appellant’s objection and exception, the court permitted the prosecuting attorney to ask appellant if he had not shot his first wife. A similar question was held proper in the case of Gaines v. State, 208 Ark. 293, 186 S. W. 2d 154. The testimony could, of course, be considered for the purpose only of affecting the credibility of the witness. He answered that he had not, and that answer concluded the inquiry. Had he answered that he had, he should have been permitted to explain, without elaboration, the circumstances, as for instance that the shooting was accidental, or to explain briefly the circumstances showing lack of criminality, and as the matter was collateral, his answer could not have been shown to be false. McAlister v. State, 99 Ark. 604, 139 S. W. 684. No attempt was made to do so.”

In DuVal v. State, 171 Ark. 68, 283 S. W. 23, we said the cross-examination of the defendant could relate to his conduct “regardless of time”; and in Pope v. State, 172 Ark. 61, 287 S. W. 747, the cross-examination of the defendant related — as here — to a previous stabbing incident. See also Trotter v. State, 215 Ark. 121, 219 S. W. 2d 636; and Montague v. State, 213 Ark. 575, 211 S. W. 2d 879. No error was committed by the Trial Court in allowing the cross-examination of the defendant in the case at bar.

We have examined all the other assignments in the motion for new trial and find no error.

Affirmed.