author: Conley Byrd, Justice. John A. Fogleman, Justice, J. Fred Jones, Justice,

text:
    MUTUAL LIFE INSURANCE COMPANY of NEW YORK v. Carey E. CLARK
    73-67
    502 S.W. 2d 110
    Opinion delivered December 17, 1973

      Chowning, Mitchell ¿r Hamilton, for appellant.

      Spencer ér Spencer, for appellee.
   Conley Byrd, Justice.

Appellant, Mutual Life Insurance Company of New York, issued a total disability policy to appellee, Carey E. Clark, in which the term total disability is defined to mean "... a disability which wholly and continuously disables the member so that he can perform no duty pertaining to his occupation and during which he is not engaged in any occupation for remuneration or profit. . . .” To reverse a judgment, entered on a jury verdict, in favor of appellee for total disability benefits, appellant contends:

“I. The court erred in overruling the defendant’s motion for directed verdict made at the conclusion of all of the evidence and in refusing to give defendant’s requested instructions Nos. 2 and 3.
II. The court erred in giving court’s instruction Mo. 6 (plaintiff’s No. 5) over the general and specific objections of appellant.
III. The Court erred in giving court’s instruction No. 8 (plaintiff’s No. 6) over the general and specific objections of appellant.”

The record shows that appellee, a veterinarian, was the sole owner and operator of Clark Animal Hospital in El Dorado from 1950 until April 12, 1968, when he suffered a heart attack. At that time he was placed in intensive care for nine days and remained in the hospital for an additional ten days before being permitted to go home. Upon being advised by his physician that he could not continue to operate the animal hospital and carry on his veterinarian practice, he employed a young veterinarian, Dr. Granville Wright, to take over the main load of his occupation. Dr. Wright stayed for two years before leaving. Appellee then employed Dr. Gene Dunn and later employed a second veterinarian to assist in the operation of the animal hospital and to help with the large animal practice. Appellee no longer does any large animal practice but does go by the hospital. Some days he spends no more than five minutes at the animal hospital. Other days he spends as much as five or six hours. It is estimated that he will average somewhere between 14 to 16 hours at the clinic each week. While there he may perform minor operations on small pets, such as spays or tonsillectomies. He is interested in the financial success of the hospital and likes to be consulted on the purchase of drugs and difficult cases. His gross receipts and net profits for the operation of the animal clinic for the years of 1966 through the first nine months of 1972 were as follows:

Year Gross Receipts Net Profit

1966 $54,596.00 $19,426.00

1967 57,930.00 20,803.00

1968 50,163.00 10,572.00

1969 66,980.00 13,771.00

1970 80,740.00 26,763.00

1971 95,279.00 29,252.00

1972 (9 mos.) 82,252.00 26,971.00

The foregoing figures for the years 1968 through 1972 have used the salaries of the two employed veterinarians as expenses before arriving at net profits.

Dr. Jacob Ellis testified that appellee suffered what is technically known as an infarction of the miocardiam which is sometimes referred to as coronary thrombosis or coronary occlusion. He considers appellee to be permanently and totally disabled. He consented to appellee working if he had proper assistance to where he would not negotiate physical or mental effort that would be stressful to him under any set of circumstances. While testifying that appellee was more disabled in 1972 because of the progressive nature of the disease than he had been since April of 1968, Dr. Ellis testified that it was necessary that a person, with appellee’s disease, be stimulated physically and mentally to the fullest extent possible to improve circulation. He described the situation as “walking a tightrope between activity and inactivity.”

Dr. Joseph B. Wharton, Jr. stated that in his opinion appellee was unable to perform his doctor of veterinary medicine work physically to any degree that would gain him a continuous livelihood.

Appellant paid the disability benefits for 1968. In 1969, after some investigation, appellant wrote appellee as follows:

“Dear Dr. Clark:
This is in reference to our conversation of May 27th.
As you are aware, we authorized payment of your Disability Benefits under this Policy. I would anticipate that by now you have received your benefit check from AVMA.
I would like to point out however that there was some doubt in our minds as to whether you currently qualified for these payments under the terms of the policy. However, at this time we have resolved the doubts in your favor.
Your request that we accept claim statements on a quarterly rather than a monthly basis cannot be complied with. While we are quite pleased to learn that your doctor indicates that he no longer needs to see you every month because of the progress you have made, we will, nevertheless, not be able to grant this request. However, we are willing to allow you to submit claim statements every other month.
I’m sorry for the delay which resulted however because of the circumstances of your particular situation it was necessary to conduct a thorough review of your file. If you have any questions, please feel free to call me.
Sincerely,
Milton W. Johnson
Senior Approver
Group A8cS Claims
Mail Drop 20-1”

In 1970 appellant had appellee examined by Dr. Wells in Little Rock, Ark. and continued the disability payments through December, 1971. On January 14, 1972, appellant wrote appellee as follows:

“Dear Dr. Clark:
Your file has been referred to me for review.
As you know your Policy defines total disability as ‘a disability which wholly and continuously disables the member so that he can perform no duty pertaining to his occupation and during which he is not engaged in any occupation for remuneration or profit.’
We no longer feel that you qualify for total disability benefits under this definition.
MONY is glad to have been of help to you during your period of total disability.
Sincerely,
(Miss) Anne McNamara
Senior Claims Approver
Group A&S Claims Section
Mail Drop 807”

POINT I. Appellant here argues that it was entitled to a directed verdict. In so doing it recognizes the effect of decisions such as Avemco Life Insurance Company v. Luebker, 240 Ark. 349, 399 S.W. 2d 265 (1966), and therefore does not seek a reversal on the grounds that there was insufficient testimony to go to the jury on the question of whether or not there were any substantial and material acts necessary to be done pertaining to appellee’s occupation that he could not perform in the usual and customary way.

On the other hand appellant contends that the definition means what its language says — i.e., that proof of physical disability or inability alone does not entitle appellee to recover, but that he must also prove by a preponderance of the evidence that during such period of disability he was not engaged in any occupation for remuneration or profit. In its reply brief appellant takes the view that the phrase “and during which he is not engaged in any occupation for remuneration or profit” should be treated as a condition precedent to recovery.

Most authorities recognize that “total disability” occurs where a professional is unable to perform any substantial part of his ordinary duties even though he can still perform some of them, Leibowitz v. Mutual of Omaha Ins. Co., 71 Misc. 2d 838, 337 N.Y.S. 2d 314 (1972), or that he may be able to perform some acts at intervals, Pacific Mutual Life Ins. Co. v. McCrary, 161 Tenn. 389, 32 S.W. 2d 1052 (1930). Our own cases have given similar constructions to policies such as is here involved. See Alexander v. Mutual Benefit Health & Accident Association, 232 Ark. 348, 336 S.W. 2d 64 (1960), and the cases therein discussed.

The definition of “total disability” here involved is not substantially different from the definition involved in New York Life Insurance Company v. Dandridge, 204 Ark. 1078, 166 S.W. 2d 1030 (1942), which provided that disability should be considered total when the insured is “wholly prevented from performing any work, from following any occupation, or from engaging in any job for remuneration or profit.” We there permitted a recovery on behalf of a deaf school teacher even though it was conceded she was not completely helpless. In Occidental Life Insurance Company of California v. Sammons, 224 Ark. 31, 271 S.W. 2d 922 (1954), we permitted a recovery for an insured suffering from a heart condition who had earned $180 as a part time salesman notwithstanding a house confinement clause. In each instance we have pointed out that we have refused to construe such clauses literally, for in that event the insured could recover only if he were continuously and helplessly confined to bed. We perceive no real distinction between the language of appellant’s policy and the clauses construed in our earlier decisions. Consequently, we hold that the trial court properly overruled appellant’s motion for a directed verdict.

POINT II. The instruction of which appellant complains provided:

“You are instructed that the provisions of the policy which I have quoted relating to total disability do not mean what a literal reading would require, that is, a state of absolute helplessness; but they mean that, if there are any substantial and material acts necessary to be done pertaining to Plaintiff’s occupation that he could not perform in the usual and. customary manner, he would be totally disabled within the meaning of this policy.”

Appellant objected on the basis that the instruction ignored the policy provision “and during which he is not engaged in any occupation for remuneration or profit.” We find no error. To accept appellant’s contention would require a literal construction of such policies which, as we have pointed out under Point No. I, supra, this and most other courts refuse to do.

POINT III. The instruction to which appellant here objects provided:

“You are instructed that insurance to compensate a total disability is not insurance upon one’s business but is a guarantee of continued personal fitness enabling one to employ and adapt not only his mental qualification and mental preparation for his business; but also the continued use of physical vigor and energy in the performance of manual pursuits connected with his business as well, to the extent that he may perform all the substantial and material acts necessary to be done in the conduct of his business in the usual way.”

The objection of appellant is that the instruction is abstract, reverses the burden of proof and ignores the requirement that appellee had to prove that he was not engaged in an occupation for remuneration or profit.

The contention that the instruction was abstract is not supported by the record. Appellant had introduced for comparison purposes appellee’s income tax records for the periods before and after the heart attack episode in April 1968.

The argument that the instruction ignored the requirement that appellee must prove that he was not engaged in an occupation for remuneration or profit is premised upon appellant’s theory that such a showing was a condition precedent to recovery. As we have pointed out under Point No. I, supra, policies such as this do not receive such a literal construction but are related to the definition of “total disability”. In fact the record would indicate that from April of 1968 through December, 1971, appellant must have interpreted the policy in accordance with our construction thereof since it made payments for those periods.

We do not understand how this instruction reversed the burden of proof that was clearly given to the jury under the other instructions.

Affirmed.

Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I join in the dissenting opinion of my brother Jones. I would add two comments.

1. Any danger that insurance companies may try to eliminate any chance of recovery for total disability in a policy by writing a definition could be controlled by the requirement that a policy be approved by the Insurance Commissioner, who may disapprove it if it contains misleading clauses or exceptions or conditions which deceptively affect the risk purported to be assumed in the general coverage of the contract. Ark. Stat. Ann. §§ 66-S209, 3210 (Repl. 1966).

2. It is high time that this court give attention to the notice given to the bar February 21, 1966, that cases tried after that date would be examined in the light of recommendations contained in the opinion in Avemco Life Insurance Company v. Luebker, 240 Ark. 349, 399 S.W. 2d 265, where the court, “with very considerable reluctance,” followed Mutual Benefit Health & Accident Association v. Murphy, 209 Ark. 945, 193 S.W. 2d 305, the fountainhead of our very extreme and unsound position from which this court dictates the terms of total disability policies.

J. Fred Jones, Justice,

dissenting. As I interpret the majority opinion in this case, it simply prohibits insurance companies from entering into contracts with a definition and meaningof “total disability” different from the general definition and meaning we have applied in prior cases where it has been necessary for this court to define total disability within the meaning of a particular contract.

The group policy involved in this case insured a veterinarian against total disability defined as "... a disability which wholly and continuously disables the member so that he can perform no duty pertaining to his occupation and during which he is not engaged in any occupation for remuneration or profit. . . .” The evidence as I read it indicates that Dr. Clark did have a heart attack which did wholly and continuously disable him so that he could perform no duty pertaining to his occupation for a period of time; that after his recovery from the initial attack he was still wholly and continuously disabled from performing the more rugged duties of his occupation such as vaccinating and operating on large unruly animals such as horses, cattle and large dogs, but was able to and did engage regularly in the routine duties pertaining to his occupation at his clinic to the extent of vaccinating and performing surgery on small dogs and other animals.

Had the policy in the case at bar simply insured against total disability without attempting to define what would constitute “total disability” for the purpose of payments under the terms of the policy contract, or even if the policy definition had been ambiguous, then certainly I would agree that general definitions and meanings we have announced and approved in prior cases should be applied. I would agree that “total disability” must be something less than a vegetable state but certainly it should be more than inability to perform a single one of many duties pertaining to an occupation. In any event, it is my view that insurance companies and individuals should be permitted to define “total disability” within the meaning of their contracts for the purpose of indemnity payments and premium rates, so long as the definition does not conflict with the term it defines, and so long as it does not go beyond the bounds of good conscience and common sense.

The policy in the case at bar was a group policy for the benefit of veterinarians, and I think we might reasonably assume that it was written on a premium rate commensurate with the loss ratio based on what constitutes total disability as defined in the policy. As I read the majority opinion, it would indicate that if the insurance company had simply referred to the disability as “disability” and had not referred to it as “total disability,” there would have been no limitation on the insurance company in defining the extent of disability it was insuring against. On the other hand, if the company had simply insured against “total disability” without attempting to define what it meant by total disability, then, of course, it would have been this court’s duty to have applied the general definition of total disability in which the instructions complained of would have been proper instructions.

It appears to me that the cases cited by the majority are clearly distinguished from the case at bar. A total and permanent disability policy was involved in New York Life Ins. Co. v. Dandridge, 204 Ark. 1078, 166 S.W. 2d 1030, and to be totally and permanently disabled under the terms of the policy, it provided that: “Disability shall be considered total whenever the insured is so disabled by bodily injury or disease that he is wholly prevented from performing any work, from following any occupation, or from engaging in any business for remuneration or profit. . . .” (Emphasis supplied). The insured in that case was a school teacher who had become deaf followed by a nervous condition resulting in indigestion, insomnia and other complications.

Occidental Life Ins. Co. of Calif. v. Sammons, 224 Ark. 31, 271 S.W.2d 922, involved a monthly indemnity policy under which it was provided that monthly indemnity would be paid for life and while the insured was wholly and continually disabled and necessarily and continuously confined and regularly visited and treated by a physician as defined in the policy. The policy then provided that the monthly indemnity shall be payable for such disability only if the insured is absolutely unable to leave the house and the yard situated immediately around the house; that in order to receive the monthly indemnity the insured must at all time remain within such confines without any exception but one, namely the insured, when deemed necessary and prescribed by the physician or surgeon, may be transported to the office of the physician or surgeon or to the hospital or sanitarium. The policy further provided that if at any time the insured should leave such confines except for such transportation to the office of the physician, hospital or sanitarium, the monthly indemnity should terminate and the rider would be of no force or effect. In that case this court adopted the “liberal” construction as to “house confinement clauses” and held that the trial court did not err in applying the liberal construction of the policy in that case. It was stipulated in the Sammons case that the insured had left the house and yard for the purpose of taking rides and walking for recreation and visiting friends at various business places, all under the advice of his physician.

In Avemco Life Ins. Co. v. Luebker, 240 Ark. 349, 399 S.W.2d 265, the policy definition is not set out but the case turned on whether the insured was disabled from performing all (rather than any) of the substantial and material acts necessary to the prosecution of his business.

In Alexander v. Mut. Benefit Health & Accident Ass’n., 232 Ark. 348, 336 S.W.2d 64, the provisions of the insurance policy are not set out in the opinion but the insurance company argued that the insured was not totally and permanently disabled if he was able to earn a livelihood. The insured relied on the cases applying the test as to whether the insured can perform all the substantial and material duties to his occupation. The trial court and jury agreed with the insured and we affirmed.

I am of the opinion that the contracting parties in an insurance contract have a right to agree on the extent of disability that is insured against, even under the term “total disability” when the definition is clear, reasonable and not misleading, and where ambiguities are not open to definition by courts of law. I would reverse.


source: Caselaw Access Project

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

license: Public Domain

text:
    G.A.C. TRANS-WORLD ACCEPTANCE CORPORATION v. JAYNES ENTERPRISES, Inc., d/b/a JAYNES MOBILE HOMES et al
    73-165
    502 S.W. 2d 651
    Opinion delivered December 17, 1973

      Fitton, Meadows «Sr Adams, for appellant.

      Bill F. Doshier, for appellees.
   Conley Byrd, Justice.

At issue here is the constitutional validity of Ark. Stat. Ann. § .31-501 (Repl. 1962), in so far as it authorizes a pre-judgment garnishment without notice. The trial court, relying upon Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969), held the statute void in so far as it authorized the issuance of a garnishment by a clerk without notice and prior to judgment. For reversal appellant, G.A.C. Trans-World Acceptance Corporation, points out that the garnishment here involved is against certain accounts receivable due to appellee, Jaynes Enterprises, Inc., a business corporation and contends that the holding in Sniadach v. Family Finance Corp., supra, is limited to wages.

In making its argument appellant recognizes that the United States Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), has construed the Sniadach case contrary to its contentions. However, it says that since the Fuentes case is only a four to three decision with two justices not participating, there is a question as to its effectiveness as a precedent. Cases from other jurisdictions have gone both ways upon the contentions made. Roofing Wholesale Co., Inc. v. Palmer, 108 Ariz. 508, 502 P. 2d 1327 (1973), would support appellant’s position. Etheredge v. Bradley, 502 P. 2d 146 (Alas. 1972), supports the trial court’s position. There are some dissenting opinions in both cases.

For a number of reasons, we are inclined and do accept the interpretation of the Sniadach ruling as set forth in the Fuentes case until such time as the United States Supreme Court rules to the contrary. Some of such reasons are:

1. Other decisions of the United States Supreme Court such as Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1969), and Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1970), have extended the same Due Process principle of notice and a fair hearing to welfare rights and the suspension of a driver’s license;
2. It is most illogical to say that the Due Process Clause of the Fourteenth Amendment requires notice and an opportunity to be heard only when dealing with wages, welfare rights and drivers licenses but that no such notice and an opportunity to be heard are prerequisites to depriving a citizen of any other property or rights that he may possess;
3. The statute in question is admittedly void as to wages and is not necessarily severable so as to remain valid to other assets; and
4. The General Assembly, following the Fuentes case, has by Act 144 of 1973, enacted a rather practical procedure for giving of notice to defendants against whom a writ of replevin is sought — inferentially it would not be impossible to make a similar provision with respect to garnishment proceedings.

Finally appellant argues that the appellees, Jaynes Enterprises Inc., d/b/a, Jaynes Mobile Homes, Bill Jaynes and Violet Jaynes, waived any right to a prejudgment hearing by signing a guaranty giving the appellant, in case of default, the right to take possession of contract rights and/or accounts or proceeds of the sale thereof wherever found and giving it the right to enter for such purposes without legal process. We find no merit to this contention. (1) The waiver contention under a somewhat similar contract was held not to preclude a preseizure hearing in the Fuentes case, supra. (2) This issue was not raised in the trial court and cannot be raised for the first time on appeal. (3) Furthermore, appellant did not rely upon the provision of its contract but invoked the aid of the court under the garnishment statute.

Affirmed.

George Rose Smith, Brown and Fogleman, JJ., concur.

John A. Fogleman, Justice,

concurring. I fully concur in the result reached by the majority, but for a totally different reason, which would avoid the necessity of ruling upon the constitutionality of Ark. Stat. Ann. § 31-501 (Repl. 1962) insofar as it provides for prejudgment garnishment. I shall first state my reasons for concurring in the result after which I will state my reasons for feeling it is extraordinarily important for this court to follow its usual rule in respect to considering constitutionality of statutes.

The writ of garnishment in this case was issued and served on March 13, 1973, the date of the filing of the complaint. The bond required by Ark. Stat. Ann. § 31-501 in cases of prejudgment garnishment was executed and filed on April 11, 1973, one day prior to a hearing in the Chancery Court of Boone County, in which the suit was originally filed. That hearing was on appel-lees’ demurrer, which was then treated as a motion to transfer the action to the circuit court, and, as such, granted. On April 16, appellees filed their demurrer and their motion to quash the writ of garnishment, both based, in part, upon the contendon that the writ was void because the bond was not filed until after the writ was issued and because its penalty was not double the amount for which the garnishment was issued.

We have never directly ruled that the failure to post a bond will require a writ of garnishment to be dissolved. We have, however, said the failure to give bond, standing alone, is not a ground of demurrer to the complaint in the principal action, but is sufficient cause for quashing an attachment upon motion to quash or set aside the order of attachment. Alexander v. Pardue, 30 Ark. 359. While the defect may be waived by the defendant in the action in which an attachment is issued, this court has clearly taken the position that an attachment issued without a bond having been made should be dissolved upon motion of the defendant, even though the court found it unnecessary to determine whether the failure to file the attachment bond was a mere irrgeularity or a jurisdictional error rendering a judgment in attachment void. Austin v. Goodbar Shoe Company, 60 Ark. 444, 30 S.W. 888. There we said:

Now, from what has been said, we are of the opinion that the want of a bond was such an error — “jurisdictional error,” if that is a better expression of it— as that, upon motion of the defendant during the pendency of the proceeding, and before judgment, the attachment would necessarily be dissolved; * * *.

The analogy between prejudgment attachment and prejudgment garnishment is great. See Comment, Garnishment Before Judgment in Arkansas, George B. Collins and J. W. Steinsiek, 8 Ark. L. Rev. 121; Case note, Constitutional Law-Prejudgment Garnishment of Wages, 23 Ark. L. Rev. 660, James E. Darr; Foster v. Pollack Company, 173 Ark. 48, 291 S.W. 989. We have denominated garnishment as a species of attachment. Lawrence v. Ford Motor Credit Company, 247 Ark. 1125, 449 S.W. 2d 695; Allen v. Stracener, 214 Ark. 688, 217 S.W. 2d 620. In Foster, we held garnishment to be a provisional remedy in the sense of the statute fixing the jurisdiction of such remedies by a justice of the peace upon the authority of our holdings that attachment was a provisional remedy, saying that the two remedies are so nearly alike that it would seem that there would be no reason for holding attachment to be a provisional remedy and garnishment of the sort resorted to in that case not a provisional remedy. In Lawrence, we found no difficulty in holding that the statute governing a dispute about the validity of an attachment and assertions of claims against attached property to be applicable to garnishment proceedings because the service of a writ of garnishment upon a debtor is an attachment of the debt or a form of levy thereon. Clearly, what we have said with reference to the failure to file any bond in an attachment action would govern prejudgment garnishment proceedings.

We have frequently, and without exception, held that garnishment is a statutory procedure and that strict compliance with garnishment statutes is essential to the validity of the proceeding. Hervey v. The Farms, Inc., 252 Ark. 881, 481 S.W. 2d 348; Roach v. Henry, 186 Ark. 884, 56 S.W. 2d 577; Missouri Pacific R. Co. v. McLendon, 185 Ark. 204, 46 S.W. 2d 626; Schiele v. Dillard, 94 Ark. 277, 126 S.W. 835; First National Bank of Huttig v. Rhode Island Insurance Company, 184 Ark. 812, 43 S.W. 2d 535. While the McLendon and First National Bank of Huttig cases turned upon the issuance of the writ of garnishment before the issuance of process for the defendant in the case, both stand for the proposition that a plaintiff has no right to have a writ of garnishment issued without complying with the statutory procedure. In the McLendon case, this court, citing First National Bank of Huttig v. Rhode Island Insurance Company, supra, said:

There is no claim in this case that the statute was complied with before the writ of garnishment was issued and served. The proceedings therefore were void.

Inasmuch as there is ample authority in our own cases for quashing this garnishment, it is not necessary to resort to authorities from other jurisdictions. I would add, however, that so holding would place us in line with the general rule supported by the vast weight of authority that, when a garnishment statute requires the posting of a bond, this action is a condition precedent to the issuance of the writ, and, if the bond is not filed, the writ is void and should be dissolved. See Van Moorhem v. Roche Harbor Lime & Cement Co., 169 Wash. 354, 13 P. 2d 496 (1932); Citizens National Bank v. Pollard, 31 S.W. 2d 508 (Tex. Civ. App. 1930); 6 Am. Jur. 2d 928, Attachments, § 518; 38 C.J.S. 361, Garnishment, § 145.

Even though this issue, raised in the trial court, was not argued on appeal, it is the long-standing rule of this court that, irrespective of the reasons set forth by the trial court as the basis for its decision, we will not reverse if the decision reached by the trial court is correct. Reamey v. Watt, 240 Ark. 893, 403 S.W. 2d 102; Reeves v. Arkansas Louisiana Gas Co., 239 Ark. 646, 391 S.W. 2d 13; Polk v. Stephens, 126 Ark. 159, 189 S.W. 837.

This court has said for more than 75 years that courts do not and should not pass upon constitutional questions unless the answers to those questions are so necessary to a determination of the case that it cannot otherwise be decided. Missouri Pacific Ry. Co. v. Smith, 60 Ark. 221, 29 S.W. 752; Porter v. Waterman, 77 Ark. 383, 91 S.W. 754; Smith v. Garretson, 176 Ark. 834, 4 S.W. 2d 520; Honea v. Federal Land Bank of St. Louis, 187 Ark. 619, 61 S.W. 2d 436; Satterfield v. State, 245 Ark. 337, 432 S.W. 2d 472; County of Searcy v. Stephenson, 244 Ark. 54, 424 S.W. 2d 369; Mobley v. Conway County Court, 236 Ark. 163, 365 S.W. 2d 122; Rome v. Ahlert, 231 Ark. 844, 332 S.W. 2d 809. We have even said that where the case can be disposed of without determining the constitutional question, it is our duty to do so (Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487); that constitutional questions are never decided unless necessary (Little Rock Road Machinery Co. v. Jackson County, 233 Ark. 53, 342 S.W. 2d 407); and that constitutional questions are not decided unless the case cannot be disposed of on any other ground (Bailey v. State, 229 Ark. 74, 313 S.W. 2d 388, cert. denied 358 U.S. 869, 79 S. Ct. 101, 3 L. Ed. 2d 101).

Our predominant rule was founded upon the language of Judge Cooley quoted in Missouri Pacific Ry. Co. v. Smith, supra. A part of that quotation follows:

In any case, therefore, where a constitutional question is raised, though it may be legitimately presented by the record, yet, if the record also presents some other and clear ground upon which the court may rest its judgment, and thereby render the constitutional question immaterial to the case, that course will be adopted, and the question of constitutional power will be left for consideration until a case arises which cannot be disposed of without considering it and when, consequendy, a decision upon such question will be unavoidable.

In Board of Equalization v. Evelyn Hills Shopping Center, 251 Ark. 1055, 476 S.W. 2d 211, we did not reach constitutional arguments there made “in accord with our long-standing rule that constitutional issues will not be determined unless their determination is essential to disposition of the case,” citing Martin v. State, 79 Ark. 236, 96 S.W. 372 and Bell v. Bell, 249 Ark. 959, 462 S.W. 2d 837.

The reasons for abiding by our well established rules in this regard are particularly compelling in this case. In Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S. Ct. 1820, 23 L.Ed. 2d 349 (1969), the Supreme Court of the United States went no further than to hold that the garnishment statute involved was void insofar as it authorized the issuance of a garnishment by a clerk of the court without notice and prior to judgment, when the subject of the garnishment was wages. Wages are not involved in this case. It is true the United States Supreme Court in Fuentes v. Shevin, 407 U.S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972), has extended the Sniadach principle to a replevin action. I do not feel the fact this case was decided by a 4-3 vote, with two justices not participating, renders it ineffective as a precedent in cases which are indistinguishable. It is true that several jurisdictions have applied Sniadach to invalidate statutes similar to ours, insofar as they provide for garnishment of other assets and property [see Etheredge v. Bradley 502 P. 2d 146 (Alaska 1972) and cases cited therein], but, on the other hand, the Supreme Court of Arizona in Roofing Wholesale Co., Inc. v. Palmer, 108 Ariz. 508, 502 P. 2d 1327 (1973), reached a completely contrary result. The Arizona Supreme Court, expressing the belief that it was not unreasonable to ask that the United States Supreme Court speak with a majority voice before the Arizona court should declare unconstitutional statutes enacted by the state legislature, said:

Admittedly, were we convinced that the four man majority of the United States Supreme Court in Fuentes, supra, would become at least a five man majority when the two judges who did not participate in the particular case are called up to participate in a similar question, we would then be inclined to follow the decision as set down in Fuentes, supra. When, however, we have doubts that once the full court hears the case that the opinion will stand, we are reluctant to declare unconstitutional Arizona statutes based upon a decision by less than a clear majority.

While I would not like to go as far as the Arizona court has gone, the reasons stated by that court should certainly give this court pause before it disregards its well established rule about avoidance of the decision of constitutional questions. In considering this matter, it is significant that the General Assembly, of 1973 saw fit to provide for procedures relating to prejudgment replevin but did not do so in regard to prejudgment garnishment. It is not unreasonable to assume that our legislative branch thought that Fuentes dictated a revision of procedures as to replevin actions but thought that it did not have the effect of extending Sniadach to prejudgment garnishment of anything other than wages. There is no reason to believe the legislature should have been less conscious of creditors’ rights in one instance than in the other. Furthermore, the dissenters in Fuentes assert that the four-judge majority has reached a result representing no more than ideological tinkering with state law. When a full court reaches a case such as this one, it may well hold that the rule of Fuentes has no application to a contract of the type here involved where the garnishment may well reach a debt which is covered by a security agreement given by the defendant to the garnishing plaintiff. The record here discloses that the security was given for a “floor plan” type of financing appellees’ business of selling mobile homes. It has been suggested that there is a clear indication that the court in Fuentes did not hold the statutes involved to be unconstitutional on their faces. The Supreme Court, 1971 Term, 86 Harvard Law Review, 1, 94. The majority in Fuentes specifically states that its holding was a narrow one. This has led to speculation that some attachment statutes will not be affected. Case note, Replevin — Prior Notice and Hearing — Due Process, 40 Tenn. Law Review 125, 133 (1972). In this same case note, the same uncertainty as to the ultimate effect of Fuentes, which caused the Arizona court to feel that it was not bound thereby, was expressed thus:

Perhaps the most interesting sidelight of the instant case is that it is a 4-3 decision, with Justices Powell and Rehnquist, who frequently are aligned with the three dissenters, Justices White, Burger and Blackmun, not participating. Therefore, an aura of doubt surrounds the further application of the instant holding to other state prejudgment remedies.

The limitations recognized in Sniadach certainly justify this doubt, for the majority in Sniadach said:

A procedural rule that may satisfy due process for attachments in general, see McKay v. McInnes, 279 US 820, 73 L Ed 975, 49 S Ct 344, does not necessarily satisfy procedural due process in every case. The fact that a procedure would pass muster under a feudal regime does not mean it gives necessary protection to all property in its modern forms. We deal here with wages — a specialized type of property presenting distinct problems in our economic system. We turn then to the nature of that property and problems of procedural due process.

I cannot subscribe to the position taken in the majority opinion that our statute could not be valid as to assets other than wages. But we should not really consider this possibility, because of the desirability of avoiding the constitutional question and because, if Sniadach is to be limited to prejudgment garnishment of wages, then the appellees in this case would have no standing to raise the constitutional issue. See May v. State, 254 Ark. 194, 492 S.W. 2d 888, where we held our abortion statute to be constitutional as to laymen, but recognized that the holdings of the United States Supreme Court in Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201, and Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, had the effect of striking down the prohibition in that statute as against physicians during the period preceding approximately the end of the first trimester of pregnancy.

I would affirm the order of the trial court, but reserve the question of constitutionality of the garnishment statute as to prejudgment garnishments in cases such as this until such time as we are directly confronted with that problem and cannot dispose of the case on any other basis in the hope that, by the time we are so confronted, the United States Supreme Court, by action of a full court, may have given the matter further treatment.

George Rose Smith and Brown, JJ., join in this opinion.

      Our holdings in such cases as Smith v. Howard, 23 Ark. 203, and Mandel v. Peet, 18 Ark. 236, that a party may amend a bond filed by it which is defective, are also in harmony with the weight of authority on the subject, but are in nowise inconsistent with the rule that a garnishment issued before the bond is filed is void and should be quashed.

      In a footnote to the opinion in Fuentes the majority pointed out that six different courts, in upholding summary prejudgment proceedings, had contrued Sniadach as closely confined to its own facts.


author: Conley Byrd, Justice.

text:
    M. D. THOMPSON & SON Company et al v. Robert L. McCUAN
    73-188
    502 S.W. 2d 93
    Opinion delivered December 17, 1973

      Riddick Riffel, for appellants.

      Hodges, Hodges if Hodges, by: David Hodges, for appellee.
   Conley Byrd, Justice.

The Workmen’s Compensation Commission awarded total disability benefits to ap-pellee Robert L. McCuan. The circuit court affirmed the order of the Commission and appellants, M. D. Thompson and Son Company, et al, appeal contending that there is no substantial evidence to support the Commission’s findings.

It is not disputed that Mr. McCuan was injured in the course of his employment nor that he has suffered some disability. Appellant’s real contention seems to be that if Mr. McCuan is totally disabled, the greater part thereof is due to his age instead of his injury.

The record shows that Mr. McCuan at the time of injury was drawing Social Security and that he attempted to keep his earnings within the prescribed limits for drawing the maximum available benefits. He was injured when a tree fell on him. One medical doctor placed his permanent functional disability at 20%, another at 33 1/3%. One of the doctors testified that when Mr. Mc-Cuan’s age, educational background and spinal fracture were msidered, one would not reasonably expect Mr. McCuan to go back to the work he was doing in a regular and unrestricted capacity at any time in the future.

Appellee testified that he was 68 years of age. He had a little schooling when he was a boy — maybe the third grade. He farmed with mules until 1949 and then with a one row tractor until '63. His work outside of his own farming or as a farm hand consisted of manual labor such as lcjging. Prior to the injury he had done any kind of manual labor he wanted to do. After the injury he was unable to help the wife with the house work. He could not walk a quarter of a mile without stopping to rest.

Other witnesses corroborated Mr. McCuan’s testimony that he was an able-bodied laborer before the injury and unable to do manual labor thereafter.

Mr. Leon Underwood with the Arkansas Rehabilitation Services testified that rehabilitation could provide no beneficial services to Mr. McCuan in view of his age and education.

Thus, from the foregoing, one can readily observe that there was ample evidence to show that Mr. McCuan was an able-bodied, manual worker prior to his injury and that thereafter he was unable to perform any remunerative services. As pointed out in Furlong v. Northwestern Casket Co., 190 Minn. 552, 252 N.W. 656 (1934), the fact that an employee is of failing physical powers and will probably be incapacitated for work in a few years as a result of such weakness does not bar the employee from Workmen’s Compensation benefits if his incapacity to work is the result of his injuries. We cannot here say that there is no substantial evidence to support the Commission’s finding that the injury created the disability. See also Meadowlake Nursing Home v. Sullivan, 253 Ark. 403, 486 S.W. 2d 82 (1972).

Affirmed.

Harris, C.J., not participating.


author: Frank Holt, Justice.

text:
    Leonard C. DUNN v. Christine DUNN
    73-182
    503 S.W. 2d 168
    Opinion delivered December 17, 1973
    [Rehearing denied January 28, 1974.]

      Shackleford fa Shackleford, for appellant.

      Haskins, Ward ir Rhodes and Bruce Bennett, for ap-pellee.
   Frank Holt, Justice.

Appellant brought this action for a divorce against the appellee and for a determination of their respective property rights. The issues were joined by appelee’s counter-claim by which she also sought a divorce and adjudication of her property rights. The chancellor found that the appellant husband did not prove grounds for a divorce and “the proof falls far short of establishing fraud or deceit” on the part of the appellee wife when her husband made her joint owner of all his personal and real property; that the appellee had established her alleged grounds for divorce based upon personal indignities; that the various instruments, which included passbook savings accounts, certificates of deposit and deeds which were changed by appellant husband to create tenancies by the entirety or joint ownership, were valid; and that the trial court was not divested of jurisdiction by the appeal from the divorce decree inasmuch as the court specifically reserved jurisdiction for thirty days in order for the parties to effect an agreement between themselves as to a division of their property rights. When this was not accomplished within the specified time limit, a final order was then rendered.

For reversal appellant first contends that the court erred in upholding the validity of a revocation by Leonard (appellant) of his revocable trust and subsequent transfer of his property to the joint ownership of himself and his wife, Christine (appellee), inasmuch as a confidential relationship existed between them with Christine being the dominant party which created a presumption of coercion or fraud, which presumption Christine did not rebut with sufficient evidence that the instruments were freely and voluntarily executed. Our cases hold that where a confidential relationship exists between a donor or grantor and a dominant donee or grantee, then that donee or grantee must produce evidence to show that the instruments were freely and voluntarily executed. Norton v. Norton, 227 Ark. 799, 302 S.W. 2d 78 (1957), involving a mother-grantor, son-grantee relationship; Gillespie v. Holland, 40 Ark. 28 (1882), involving a sister-grantor, brother-grantee relationship; Young v. Barde, 194 Ark. 416, 108 S.W. 2d 495 (1937), where the gift to the dominant daughter-grantee was referred to as prima facie void; and Jamison v. Duncan, 233 Ark. 780, 348 S.W. 2d 709 (1961), involving an aged and mentally weak uncle-grantor. Of course, the confidential relationship based on faith and repose as well as the dominant position must be supported by testimony before the presumption of coercion will arise. Donaldson v. Johnson, 235 Ark. 348, 359 S.W. 2d 810 (1962).

Leonard and Christine were married on July 31, 1971, when he was 68 and she was 47. It follows that a confidential relationship was therefore established by the marriage. Of course, it is recognized that no greater confidential relationship is known to the law than that which exists between a husband and wife. See Gillespie v. Holland, supra; 41 Am. Jur. 2d, Husband and Wife, § 272.

We now review the evidence with respect to the dominant party in this confidential relationship. In 1967 Leonard had suffered permanent brain damage from a stroke. A year later his wife died. On April 27, 1971, Leonard signed a will making numerous relatives of his and his deceased wife his beneficiaries of a substantial estate. On June 8, 1971, he executed a revocable trust to the same effect. These instruments were drafted by a Little Rock attorney after consultations with him. He was driven there from his home at Hampton by one or two of his relatives who were minor beneficiaries. During the first part of this year, he proposed marriage to three different women in the locality. Each refused his proposal. A widow testified “[H]e just didn’t know and he wasn’t capable of knowing what he wanted.” Another woman said that the first time he came to see her he said he was “looking for a wife” and “it kinda of stunned me.” This woman said he was unable to speak distinctly because of his stroke. The other woman testified that he surprised her by proposing marriage the first time she was with him and that on May 29, after several dates, she refused marriage. She also noticed he had a definite speech problem. He assured each of these women that they would never need to continue work since he was financailly well to do.

In the early part of 1971, through a mutual friend, Leonard was introduced to Christine, who had recently returned to her local community from out of state employment after several years’ absence. In June, he proposed marriage to her. About the middle of July she accepted his proposal and they were married on July 31. About a month following the marriage, he told her about the revocable trust and under the terms of it she would receive nothing. Within a few days, accompanied by him, she drove to El Dorado to consult with an attorney who had previously represented her father. As a result of the conference Leonard signed shortly thereafter (September 2, 1971) a revocation of his trust agreement and then conveyed all of his real property and various savings accounts to their joint ownership. In March, 1972, they moved into a new home at nearby Tinsman, Arkansas. The construction and furnishing approximated $36,000 and were paid for by the sale of some of Leonard’s timber. At the time they moved, she acquired possession of all his passbooks and certificates of deposit (totaling approximately $117,000) and kept them in her possession until this litigation arose in July, 1972, which was one year after their marriage. The week before Christine left Leonard she cashed one certificate of deposit for approximately $15,000 at Camden. She immediately drove to El Dorado and deposited $14,000 of the funds in a bank in her name.

A doctor, who treated Leonard in 1967 following his stroke, testified that he suffered permanent brain damage and as a result he became dependent and easily subjected to influence by others. A clinical psychologist examined and tested Leonard a short time before the trial and it was his opinion that his mental condition was below average; his judgment in his social affairs was in the mentally deficient range; and it would be difficult for him to function in some areas of life. Furthermore, that due to Leonard’s mental deficiency he would depend on any person in whom he had trust and confidence.

The attorney who drafted his revocable trust about two months before the marriage testified that, although he appeared to have testamentary capacity, Leonard wanted someone to assist him in making his decisions and he indicated that he needed greater assistance in making decisions than the average client. The purpose of the trust was to prevent a “prospective wife” from getting any of his property. However, if he “got along fine” upon remarriage he wanted to cancel the trust and “take care of his wife.” Other evidence was adduced by lifelong friends that before Leonard’s stroke he was mentally alert and above average and since then he was an entirely different individual; that he got things “backwards;” that he refers to a man as “she” and a woman as “he;” that he was no longer talkative and had a bad memory. Leonard’s relatives testified that he could not talk well and that someone had to write his rent receipts and he was unable to take care of his store and rent houses alone.

Leonard himself testified. During his testimony he referred to Christine as “him” or “he”. He would also refer to a man as “she” and if he referred to a woman he used the pronoun “he” or “him.” He was unable to remember the names of the various financial institutions in which he had his savings deposited. He could not recall the counties where he held real estate consisting of approximately 500 acres, other real estate and rental property. He was unable to remember his sister-in-law’s name who cared for him after his stroke and assisted him in his store. He had difficulty in remembering Christine’s unmarried name nor could he remember the name of his closet living relative, a sister. He was unable to give the date of his marriage to Christine and where they spent their honeymoon. When asked why he transferred his property to Christine as a joint owner, he said “I couldn’t tell you that. I reckon I was doing it because Christine wanted it that way.”

In our view this evidence is sufficient to establish that Christine was the dominant personality in this marriage relationship. This is true even though there was evidence that Leonard was physically able to drive a car, cultivate a garden, collect rent, hunt and cook. Since we hold that this evidence is sufficient to invoke the presumption of coercion or the instruments were not freely and voluntarily executed, the burden of producing evidence shifts to the party who must rebut the presumption. The presumption of coercion is a strong one. The presumption is not a “Thayer’s bubble” which bursts upon the production of any evidence of a flitting bat “disappearing in the sunshine of actual facts.” Mockowik v. Kansas City, St. J. & C.B.R. Co., 196 Mo. 550, 94 S.W. 256 (1906), quoted in McCormick, Evidence, § 345 (2nd. Ed. 1972). In Gillespie v. Holland, supra, we said:

.... contracts, and most especially gifts, will be scrutinized with the most zealous care when made between parties who occupy such a confidential relation as to make it the duty of the person benefited by the contract or bounty to guard and protect the interests of the other and give such advice as would promote those interests. . . .

One scholar has written:

Except as the court may be restrained by constitutional requirements of due process of law. . ., there would seem to be no reason in law or logic why there should not be accorded to any or all presumptions the weight which the court feels would best serve the interests of justice. If dissipation by a bare denial from an interested witness seems to accord too trifling an effect to a presumption, the court would seem justified to require more before the presumption is rebutted. Barnhart, Use of Presumptions in Arkansas, 4 Ark. L. Rev. 128, 141 (1950).

In Ball v. Hail, 196 Ark. 491, 118 S.W. 2d 668 (1938), the testimony of both the employer and the employee was held insufficient to overcome the presumption that the employee-driver was acting for his employer at the time of the accident, since both were interested witnesses.

The principal testimony, introduced to rebut the presumption of coercion or that the transactions when effected were not freely and voluntarily made, is Christine’s. She testified that the property was taken out of the revocable trust and placed in their joint names following an automobile accident about a month after their marriage. The evidence appears uncontroverted that this was the first time she knew of the antenuptial instrument precluding her from any statutory property rights. Christine testified that, as a result of the wreck, Leonard worried that she would receive nothing if he died and it was his own idea to revoke the trust and change the will to protect her. In the circumstances of this particular case, we hold that the testimony of Christine, an interested witness, was not sufficient to rebut the presumption that the transactions between her and Leonard were not freely and voluntarily made. Neither was the testimony of an abstractor, who notarized the two deeds the day following the revocation of the trust, the purchaser of the timber, nor the contractor, who constructed their new home, sufficient due to their very limited knowledge of the relationship between the parties and the conveyances. Therefore, the chancellor erred in upholding the trust revocation and property transfers.

Appellant next contends that the court erred in refusing to grant him a divorce on his complaint and that the divorce granted Christine on the counter-claim is not supported by a preponderance of the evidence. Suffice it to say that it appears that Leonard’s proof of alleged indignities is absolutely uncorroborated, as is required, even though the corroboration need only be slight. Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598 (1973). Christine was granted a divorce relying also on the personal indignities provisions of Ark. Stat. Ann. § 34-1202 (Repl. 1962). Christine testified that Leonard shoved her with a crutch in the chest or throat resulting in a broken collarbone. Leonard denied the attack stating she injured herself. One witness testified that when she saw Christine in the hospital she observed a very small bruise about her collarbone. No other witness corroborated Christine’s testimony about any incident or systematic mistreatment. Although only slight corroboration is required, the corroborating testimony must be directed towards specific acts and conduct and not an isolated incident. Welch v. Welch, supra. In our view neither party was entitled to a divorce.

Appellant next contends that his appeal from the April 5, 1973, decree divested the trial court of jurisdic-don and therefore the subsequent order on April 25, 1973, awarding an attorney’s fee and a division of the property was improperly rendered. By a formal decree dated April 5, 1973, the chancellor denied Leonard a divorce, refused to void the transactions in which Christine was made a joint owner of Leonard’s property and granted Christine a divorce on her cross-complaint. At the same time, the court stated that it was taking under advisement the disposition of their property rights for a period of thirty days in order to permit the parties to resolve this controversy between themselves. Further, “that in the event such property division is not agreed upon within the said thirty days, the Court will grant a hearing and determine that issue and enter an order either designating division in kind or sale of same and a division of the proceeds thereof.” Leonard promptly appealed.

On April 18, 1973, being unable to effect an agreement respecting the distribution of their asserted property rights, Christine petitioned the court for a supplemental attorney’s fee (a $500 temporary fee was initially awarded) and further petitioned the court that the cash assets be distributed equally and that the real property allegedly owned by Leonard and Christine jointly be appraised, sold and the assets divided equally. Also that the payment of $500 per month to each party from the impounded funds be continued. Leonard responded asserting that the court no longer had jurisdiction inasmuch as he had already appealed from the April 5 decree. On April 25, following a hearing, the chancellor decreed $5,000 as a supplemental attorney’s fee, ordered the real property appraised, sold and all cash assets divided euqally, and refused a continuance of the $500 monthly payment from the impounded funds to each party. The chancellor specifically found that “no final appealable order was entered by this court on the 5 th day of April, 1973, and the court does have jurisdiction . . . and IT IS FURTHER ORDERED, CONSIDERED AND ADJUDGED THAT the Decree of April 5, 1973, and this order comprise a Final Order in this case.” Appellant also appealed promptly from this decree.

In McConnell & Son, et al v. Saddle, 248 Ark. 1182, 455 S.W. 2d 880 (1970), we held that a judgment, to be final, must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. There we said:

Cases can not be tried by piecemeal, and one can not delay the final adjudication of a cause by appealing from the separate orders of the court as the cause progresses. When a final order or judgment has been entered in the court below determining the relative rights and liabilities of the respective parties, an appeal may be taken, but not before . . .

See also Piercy v. Baldwin, 205 Ark. 413, 168 S.W. 2d 1110 (1943).

Obviously in the case at bar, the chancellor was avoiding a piecemeal appeal since he limited their negotiations to thirty days which is the statutory time for an appeal. Ark. Stat. Ann. § 27-2106.1 (Repl. 1962). Well within that thirty days he adjudicated all issues between the parties. The chancellor also found that the latter order was intended to constitute the final order. In the circumstances, we find no merit in appellant’s contention. Certainly no prejudicial effect is demonstrated. We affirm that part of the decree allowing the supplemental attorney’s fee. Let it be remembered that the property in controversy consists of approximately $117,000 in cash assets and is in excess of 500 acres, together with other real estate, timber and rental property. In fact, the amount of the fee is not questioned on appeal.

The decree is reversed and the cause remanded for proceedings not inconsistent with this opinion. In doing so, it is without prejudice for the appellee to assert and establish any of her statutory rights as a result of this marriage, including maintenance.

Reversed in part — affirmed in part.

Harris, C.J., not participating.


text:
    J. T. ROACH v. STATE of Arkansas
    CR 73-128
    503 S.W. 2d 467
    Opinion delivered December 17, 1973

      Don Langston and Hubert Graves, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of robbery and sentenced to eleven years under the penal provision of Ark. Stat. Ann. § 41-3602 (Repl. 1964), and the habitual offender act, Ark. Stat. Ann. § 43-2328 (Supp. 1971). Appellant was also sentenced to an additional five and one-half years for the use of a firearm in commission of the felony. § 43-2336.

Appellant first contends for reversal that the trial court’s continuance of “this case on its own morion because of uncertainty as to how a witness subpoenaed by the defendant would testify prejudiced the defendant’s ability to defend hiynself and violated his right to a speedy trial under the U. S. Constitution, Amendments 6 and 14, and the Constitution of the State of Arkansas, Article 2, Section 10.”

The granting of a postponement of a criminal trial may be made upon a showing of “sufficient cause.” Ark. Stat. Ann. § 43-1705 (Repl. 1964). The granting of a continuance by the trial court is a matter within the court’s sound discretion and will be upheld absent a showing of abuse of discretion. Nowlin v. State, 252 Ark. 870, 481 S.W. 2d 320 (1972), Randall v. State, 249 Ark. 258, 458 S.W. 2d 743 (1970). Several days before trial the court was informed that in accordance with appellant’s demand his attorney had subpoenaed a fellow prisoner as a witness for his defense. A local attorney was appointed to represent the prospective witness who appellant expected would admit to the robbery and exonerate appellant. The witness’ appointed attorney, however, was in the hospital on the day of appellant’s scheduled trial. The attorney requested the right to be present when his client testified in order to fully advise him of his constitutional rights as a witness. The trial court, on his own motion, reset the case for trial about two months later. Appellant objected and maintained the trial court should proceed even though the witness’ attorney was ill. We note that the witness, subpoenaed by appellant, testified at a later trial date and disclaimed any participation in the alleged offense. In the circumstances, we find no abuse of discretion in the court’s postponement of the rial.

Neither do we find merit in appellant’s contention that his right to a speedy trial was violated. Our speedy trial statute, Ark. Stat. Ann. § 43-1708 (Repl. 1964), would have required appellant’s trial within two terms of court from the time charged. Ark. Stat. Ann. § 22-310 (Repl. 1962) indicates that the terms of court in Sebastian County, Fort Smith District, commence on the first Monday in February, June and October. Appellant was arrested in the third term and tried in the first or succeeding term, therefore, meeting the two term requirement. See also Givens v. State, 243 Ark. 16, 418 S.W. 2d 629 (1967), Randall v. State, supra, Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342 (1972).

Appellant’s second contention is that the court erred in allowing a pistol, seized in a warrantless search of his car, to be introduced into evidence. Warrantless car searches are permissible due to the mobility of the object to be searched where there exists probable cause to believe that the automobile contains articles the officer is entitled to seize. Carroll v. United States, 267 U.S. 132 (1924), Easley v. State, 255 Ark. 25, 498 S.W. 2d 664, and Cox v. State, 254 Ark. 1, 491 S.W. 2d 802 (1973). In. the instant case the deputy sheriff in Leflore County, Oklahoma, testified, based upon information about the robbery and a description of the appellant and his vehicle, that he and other officers found the appellant’s car parked and abandoned on the side of a highway. Appellant had run out of gas and left the car in search of a service station which, it appears, was unknown to the officer. The absence of the driver at the time of discovery of the car does not necessarily eliminate the mobility factor. There existed probable cause for the search. The officer had certain information which fit the description of the get away car. He testified that he saw the pistol when he shined his flashlight through the car window. Additionally, Okla. Stat. Ann. 21 § 1289.13 makes it unlawful to transport a loaded firearm over a public highway or roadway, subject to certain exceptions enumerated in 21 § 1289.6. Upon observing the weapon in the back seat of the car, the officer had probable cause to believe an offense had been committed and could validly seize the loaded pistol without a warrant under the standards of Carroll v. United States, supra.

Appellant’s third contention is that the trial court erred in denying appellant’s motion for a mistrial. When the deputy sheriff who seized the pistol was called to testify, the prosecuting attorney asked defendant ¿‘[H]ave you prior to this time testified in this court on a hearing on motion to suppress?” The question was never answered. Any possible prejudice was removed by the court admonishing the jury not to consider the question. Washington v. State, 227 Ark. 255, 297 S.W. 2d 930 (1957), and Howell v. State, 220 Ark. 278, 247 S.W. 2d 952 (1952).

Appellant next contends that the trial court erred in denying appellant’s motion for a directed verdict. Appellant’s only argument is that the testimony of a seventy-three year old woman, the victim of the robbery, was insufficient to sustain a verdict of guilty of robbery. This contention is absolutely meritless. The victim’s unequivocal identification of appellant constitutes ample substantial evidence to support the finding of the jury without detailing other corroborating evidence.

Appellant’s fifth contention is that the court erred in submitting the verdict forms to the jury. The jury was initially given three verdict forms: i.e., guilty of robbery, guilty of robbery with a firearm and not guilty. After finding the defendant guilty of robbery with a firearm, evidence was then introduced that defendant was previously convicted of other offenses or that he was a habitual offender. The jury was again instructed and sent out to deliberate with three verdict forms: (1) penalty verdict for robbery — no previous felony convictions (2) “Penalty Verdict For Robbery and Under Habitual Criminal Act” and (3) “Penalty Verdict For Use of Firearm.” The iury used the penalty verdict for robbery as a habitual criminal and imposed an eleven year sentence. On the separate penalty verdict form for the use of a firearm, the jury assessed an additional five and one-half years. Thus a total of sixteen and one-half years was imposed by both verdicts. Appellant contends that it was not the intention of the legislature that both statutes be applicable in the same case.

We perceive nothing contrary to legislative intent nor any violation of due process or double jeopardy in submitting both allegations: i.e., being a habitual offender (§ 43-2328) together with committing a felony with a firearm (§ 43-2336) to the jury. The former permits the jury to increase a minimum prescribed sentence when a previous conviction is properly shown. The latter provides an additional sentence of not to exceed seven years for one committing a felony by using a firearm. See also Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409 (1970). § 43-2337 provides that the period of confinement, if any, “shall be in addition to any fine or penalty provided by law as punishment for the felony itself, **** and shall run consecutively, and not concurrently, with any period of confinement imposed for conviction of the felony itself.” In the case at bar, the jury was permitted to consider evidence relating to the habitual offender act. As indicated, we find nothing inconsistent or unconstitutional in the jury separately considering and assessing the extra five and one-half years for committing the felony with a firearm. Based upon the separate verdicts, the court properly ordered the latter sentence to run consecutively to the first sentence as the legislature clearly directed.

Appellant next contends that the court erred in allowing the introduction of a South Carolina document to prove a previous felony conviction in that jurisdiction. § 43-2329 or our habitual criminal act provides that a properly authenticated certificate of conviction in another jurisdiction is admissible for purposes of increasing a minimum sentence in our state if that particular offense in the other jurisdiction would be punishable by imprisonment in the petitentiary in this state. Exhibit 2, which is in question, reads an “indictment for Larceny” to which appellant pled guilty and received eighteen months imprisonment in 1960 in South Carolina. The ambiguity about which appellant complains centers around whether appellant was indicted for grand or petit larceny. If the latter, then the conviction could not be used for habitual offender purposes in Arkansas. So. Car. Code § 15-352 (1962) provides that larceny of goods below $20 is a misdemeanor. The appropriate Arkansas statute [Ark. Stat. Ann. § 41-3907 (Repl. 1964)] breaks the felony misdemeanor distinction at $35.

Appellant was obviously charged under South Carolina’s grand larceny statute since he received eighteen months as punishment in the penitentiary. The South Carolina petit larceny statute contains a maximum imprisonment provision of thirty days in the county jail. However, it is impossible to determine from the indictment whether the crime appellant committed there would have been punishable by imprisonment in the Arkansas penitentiary. The South Carolina indictment does not reveal the value of the property stolen. For example, had appellant stolen property valued at $30, the crime would have been grand larceny in South Carolina and petit larceny in Arkansas. Therefore, since our statue is penal in nature and subject to a strict construction, the state did not meet its burden of adducing sufficient evidence that the South Carolina conviction would be punishable by imprisonment in the Arkansas penitentiary as our statute so clearly requires. We do not construe, as the state contends, that appellant did not sufficiently object to the admissibility of exhibit 2. Therefore, its introduction into evidence was manifestly prejudicial to appellant’s rights even though the jury in a colloquy with the court advised it had considered onlv exhibit 5 as constituting a felony, which appellant had admitted when he testified as to the correctness of the document. We cannot say with confidence and without speculation that áppellant’s eleven year sentence, based upon being a habitual criminal, and his additional sentence of five and one-half years for the use of a firearm were not enhanced or increased by the jury in its deliberations due to exhibit 2, which was inadmissible. We accordingly reduce both verdicts to a total of four years (three years minimum for robbery, plus one year for the admitted felony conviction) to remove all possibility of any prejudicial effect to the appellant. Should the state, through the attorney general, elect to accept this reduction within seventeen calendar days, the judgment is affirmed. Otherwise, it is reversed and the cause remanded. Richards v. State, 254 Ark. 760, 498 S.W. 2d 1.

We deem appellant’s objection as to exhibits 5 and 6 as being waived since the appellant does not favor us with a discussion of them in his argument.

Appellant next contends that the trial court erred in denying appellant’s motion for credit for approximately five months he was in jail awaiting trial. The appellant is an indigent and was unable to make bail. We deem it unnecessary to reach this issue in the case at bar inasmuch as by our per curiam order on November 13, 1973, we permitted this sole issue to be presented on two separate petitions pursuant to Criminal Procedure Rule No. 1. Should the appellant desire, he is permitted to file an amicus curiae brief on this issue. In the event we determine pre-trial incarceration credit is constituionally required for indigents, then he will be so entitled.

Affirmed upon acceptance of modification of judgment; otherwise, reversed and remanded.


author: Carleton Harris, Chief Justice.

text:
    Patricia Hall PETTIJOHN For Herself & Two Minor Children v. Wayne SMITH, Troy HOWELL and NATIONAL SURETY CORPORATION
    73-163
    502 S.W. 2d 618
    Opinion delivered December 24, 1973

      Lee Ward, for appellant.
    G. W. Knauts, for appellees.
   Carleton Harris, Chief Justice.

Patricia Hall Petti-john, appellant herein, and her former husband, Howard J. Hall, are the parents of two minor children, Wanda Lucille Hall, age 12 years, and James Howard Hall, age 10 years. The Halls were divorced in Clay County, Missouri, in November, 1970, appellant having been awarded the divorce. Two different versions of the custody order contained in the decree are in existence, a purported photostat held by appellant reflecting that she was awarded custody, and Hall having had possession of a purported decree, attested by the Clay County, Missouri Clerk as being signed by the judge, reflecting custody of the children in Mr. Hall. The evidence (at the trial, hereafter discussed) reflects that the children had, from time to time, stayed with both parents, and it is undisputed that at the time of the events hereinafter set out, the children, by common consent of the parents, were living with appellant in her home in Piggott, Arkansas. Wanda had been with her mother since sometime in 1971, and the little boy was brought to appellant by Mr. Hall in November, 1972, Hall remaining in Piggott at that time. Charges were brought by Mrs. Hall against her ex-husband wherein he was charged with grand larceny, it being asserted that he had taken a collection of Avon bottles, said to be of a value of more than $100.00. Hall was arrested and jailed. On December 19, 1972, appellant filed a suit in the Chancery Court at Piggott asking for official custody of the two minor children, and service of summons was personally served on Hall in Clay County, Arkansas by Deputy Sheriff Troy Howell on that same date. The next day, Hall was released from jail on bond and, while appellant was at work at her employment just over the Missouri line, went with Deputy Sheriff Howell in the latter’s car to the home of the grandmother and picked up Jimmy; thereafter, Hall and the deputy sheriff met an automobile in which Wanda was riding, Howell stopping such automobile and Wanda being transferred to the deputy sheriff’s car. The children were taken to the police department where they transferred to Hall’s automobile. Hall then, with the children, drove to the Pettijohn residence, followed by Officer Ralph Cavaness of the Piggott Police Department. Cavaness and Hall waited in the Cavaness car outside the home while the children went into the house to obtain their clothes. An older sister, Reta, came out of the house to talk to her father and Cavaness stated that he told her that she had better go back into the house. The children returned with their clothes, got in the car with their father and he drove them out of the state.

Thereafter, appellant instituted suit against Sheriff Wayne Smith, Deputy Sheriff Howell, and Officer Cavaness, asserting that those persons, acting jointly with Hall, used the authority of their offices to coerce and compel the two minors to leave the home of their mother, against their will, with the intent and purpose of aiding and abetting Hall in removing them from the State of Arkansas “without any process of any nature from any court”. Mrs. Pettijohn sought damages in her own behalf and on behalf of the two minor children, and further sought punitive damages. On trial, the jury returned a verdict for appellees after a request for directed verdict for appellant against the defendants at the close of all the evidence had been denied. From the judgment entered in accordance therewith, appellant brings this appeal. Eight points are asserted for reversal, but inasmuch as we agree with appellant that the motion for a directed verdict should have been granted, there is no necessity to discuss in detail the other points. First, let us determine the authority of an officer in general. Under the provisions of Ark. Stat. Ann. § 43-403 (Repl. 1964), an officer may make an arrest in obedience to a warrant of arrest delivered to him, and may arrest without a warrant where a public offense is committed in his presence, or where he has reasonable grounds for believing that the person arrested has committed a felony. See also Johnson v. State, 100 Ark. 139, 139 S.W. 1117, and Howard v. State, 137 Ark. 111, 208 S. W. 293. Ark. Stat. Ann. § 42-201 (Repl. 1964) authorizes the prevention of public offenses by proceedings for suppressing riots and resistance to lawful authority, for requiring security to keep the peace, or for good behavior, and for arresting and confining insane, drunken, and disorderly persons. Ark. Stat. Ann. § 41-1601 (Repl. 1964) defines false imprisonment as “the unlawful violation of the personal liberty of another, and consists in confinement or detention without sufficient legal authority.” In Watkins v. Oaklawn Jockey Club, 86 F. Supp. 1006, decided by the United States District Court for the Western District of Arkansas, Hot Springs Division, Judge John E. Miller said:

“Every confinement of the person is an imprisonment, and any express or implied threat or force whereby one is deprived of his liberty or compelled to go where he does not wish to go is an imprisonment.”

This was the holding of our court in the early case of Floyd v. State, 12 Ark. 43. In St. Louis I.M. & S. Railway v. Waters, 105 Ark. 619, 152 S.W. 137, we pointed out that in an action to recover damages for false imprisonment, where the arrest is without a warrant, if the imprisonment is proved or admitted, the burden of justification is on the defendant.

Other jurisdictions hold similarly. In the Maryland case of Mahan v. Adam, 124 A. 901, the Court of Appeals said:

“Any exercise of force, or threat of force, by which in fact the other person is deprived of his liberty, compelled to remain where he does not wish to remain, or to go where he does not wish to go, is an imprisonment; the essence of the tort consists in depriving the plaintiff of his liberty without lawful justification, and the good or evil intention of the defendant does not excuse or create the tort.”

In Griffin v. Clark, 42 P. 2d 297, the Supreme Court of Idaho stated:

“In false imprisonment or unlawful restraint, the primary right involved is the liberty of the citizen; the right of freedom of locomotion; the right to come and go or stay, when or where one may choose. In the main the authorities disclose that in order to constitute an unlawful restraint or false imprisonment the essential thing is the restraint of the person. *** The true test seems to be not the extent of the restraint, nor the means by which it is accomplished, but the lawfulness thereof. There need be no actual force or threats, nor injury done to the individual’s person, character, or reputation. Neither is it necessary that the wrongful act be committed with malice or ill will, or even with the slightest wrongful intention. Nor is it necessary that the act be under color of any legal or judicial proceeding. All that is necessary is that the individual be restrained of his liberty; compelled to remain or go where he does not wish to; prevented from moving from one place to another as he may deem proper and desire, without sufficient authority, either directly or indirectly in any manner or by any means, by words alone, by acts alone, or by both, by merely operating on the will of the individual, through reasonable fear of personal difficulty, by actual or apparent force, etc., and the detention must be against the will of the person detained.”

See also the Utah case of Hepworth v. Covey Bros. Amusement Co., 91 P. 2d 507, and the Missouri case of Titus v. Montgomery Ward & Co., 123 S.W. 2d 574.

Let us turn now to the facts in the instant case. Wanda, the twelve-year-old daughter, testified that on December 20, she was riding in a car with her aunt on the way to see her grandmother near Carryville. They were proceeding in that direction when a police car came up behind them with the lights flashing. She said that appellee, Troy Howell, was the driver of the car and that her little brother Jimmy, and her father were in the police car with him. Wanda stated that her father walked over and told her to get out of the car, which she refused to do, and Deputy Sheriff Howell said, “You are getting out of the car, young lady.” She knew that he was a police officer and she got out and entered his automobile. Howell then drove off with the others in his car and went to the establishment where her older sister, Reta, worked; Wanda was told by her father to go get the house key from her sister. After obtaining the key, they were then driven to the police station where she, her brother, and father, transferred to the father’s automobile and proceeded to the home of the mother where she and Jimmy were to get their personal clothing and articles. The witness said that Officer Ralph Cavaness followed them out to the home, and stood by his automobile while the children went into the house and obtained their belongings. She stated that her father then made her ahd the little brother get into his car and they were driven to Missouri.

Wanda testified that she first told her father that she would not go, and that she was unwilling to go with him, being afraid of him. She said that she did not get out of the automobile in which she was riding until Deputy Sheriff Howell ordered her to do so; that she obeyed because he was an officer; further, that she would not have gone with her father except for the presence of the officer. Wanda stated that she stayed in three different houses in Kansas and that finally, after her constantly repeating that she wanted to return, he permitted her to come back home. The little girl also testified that, in her presence, Jimmy stated that he wanted to stay in Piggott with “Mom”. The witness said that Deputy Sheriff Howell did not take hold of her but did say, “You are going”; that he didn’t offer to strike or harm her and that she did not recall him saying anything after telling her to get into her father’s car.

Joyce Nash, a sister of appellant, testified that she was with Wanda when they were stopped on December 20. She said that Mr. Hall and Howell walked over to their automobile and the father told Wanda to get out of the car. When she refused, the witness quoted Howell as saying, “You are going, young lady; get out of that car.” She stated Howell was wearing a “police uniform”, and that she knew that he was an officer; that when she asked Howell if he was not going to let the mother know about it, “he says he didn’t have to let her know anything.”

Cathey Nash, another sister, was at her mother’s home when Jimmy was picked up. She said Hall told Jimmy to get his things and that Troy Howell stated that Mr. Hall had a right to take Jimmy; that the latter cried and said he didn’t want to go. She testified that Howell did not take hold of Jimmy and that she read a “paper” Mr. Hall had with him, but that it didn’t mean anything to her. She added Jimmy was given his Christmas presents to take with him.

The Circuit and Chancery Clerk for Clay County, Arkansas testified that no order, or process, commanding an officer to do anything about the custody of Wanda or Jimmy had been issued by his office.

Ralph Cavaness, the city policeman, testified that acting under orders given to the radio operator by Sheriff Smith and Howell, he followed the Howard Hall car to the Pettijohn home; he was aware that Hall and appellant were having a “custody fight.” He said he waited in the car while the children obtained their wearing apparel and other items and said nothing except that he told Reta, when she came out of the house, that she had better go back to the house. He admitted that what he said to her was equivalent to an order. Cavaness stated that the radio operator had told him that he had a warrant, “the papers to pick the kids up.”

Deputy Sheriff Howell, a deputy for four and one-half years, testified that he took Hall to pick up the children. He said that his purpose was “to keep down the peace”, and that he had so acted in numerous “similar cases”; he admitted that on the occasion here in question he had been told by the sheriff to do so. Howell testified that he knew that under normal conditions he would need a process of some kind but stated, “not when the sheriff informs you to go, or tells you, sometimes you don’t— you take his word.” He said that he was given no process of any kind. Howell testified that the little boy cried when the father told him he was to leave with the father, and it appeared to him that Jimmy did not want to go. Howell denied that he made any statements, or did anything to force the children to leave. However, he did admit a fact which is very pertinent to this litigation, viz., that he stopped the automobile in which Wanda was riding. From the record:

“We met a car, a Chevrolet, '63 Chevrolet, and the little boy said, ‘My sis is in this car, that car’, and we turned around and I got them stopped just the other side of the Four-Mile-Turn, on the gravel road out there. I pulled up behind them and turned my light on.
Q. Uh-huh. Officer Howell, at that time was there any trouble out there?
A. There was no trouble.
Q. Did you or Mr. Howard J. Hall make the first— make any statements to the occupants of that other car?
A. I did not make no statements.
Q. Tell the jury, the best you remember it, what happened there.
A. Mr. Hall got out and got the girl out of the car; I got out of my car and went back and opened my left back door and let the girl sit down in my car.”
Sheriff Smith did not testify.

There is no contention on the part of appellees that the officers were serving a court order, or doing anything at the direction of any court. While Howell denied making any statements, or taking any active part in picking up the children as testified to by the witnesses, the admitted act of stopping the car was completely without authority and, in itself, establishes liability. No unlawful act was being committed, or thought by the officer to have been committed when the car was halted, and the flashing light would certainly indicate authoritative police participation to those being stopped. One needs no great imagination to visualize the effect upon the children, either at the car or at the house, of a uniformed officer apparently acting in concert with their father.

From a legal standpoint, it makes little or no difference what the officer thought, or that he was acting under the orders of his superior (though this might be considered in mitigation of damages). The act of stopping the automobile, and of taking Hall in the police car to pick up the. children, thus supporting the acts by Hall and lending an aura of official sanction by his presence, under the circumstances herein constituted false imprisonment of the children.

The failure of the sheriff to testify is interesting, and has some significance, in that no reason is ever given for the action taken. In Starnes v. Andre, 243 Ark. 712, 421 S.W. 2d 616, this court said:

“Failure of a party to an action to testify as to facts peculiarly within his knowledge is a circumstance which may be looked upon with suspicion by the trier of the facts. Fordyce v. McCants, 55 Ark. 384, 18 S.W. 371; Broomfield v. Broomfield, 242 Ark. 355, 413 S.W. 2d 657. His failure to testify gives rise to the presumption that his statements would have been against his interest. Cady v. Guess, 197 Ark. 611, 124 S.W. 2d 213.”

Certainly, the burden was on the sheriff to explain his actions, and no legal reason, or for that matter, reason at all, having been given, the court should have granted the directed verdict for appellants.

As stated earlier, this holding precludes any necessity to discuss other points in detail. However, we have held that on remand for trial of a law case, it is tried de novo. See Clark v. Ark. Democrat Co., Supplemental Opinion, 242 Ark. 497, 413 S.W. 2d 629. Aside from the directed verdict, four instructions were offered by appellant and refused by the court, but there is no reason to discuss these offered instructions since we have no way of knowing what the evidence will be on a second trial. Point VI is a contention that the court erred in refusing to let Mrs. Pettijohn tell the jury the reason given by the father in bringing Jimmy to her to make his home in Piggott. There was no tender of what this evidence would have been, and not knowing what she would have said, we cannot pass upon the point, though it is difficult to determine how the officers could have been liable for some statement made by Hall to his ex-wife.

It was also alleged that the trial court erred in refusing to let Mrs. Pettijohn testify that Mr. Hall was bound over by the Piggott Municipal Court for trial on the grand larceny charge. The court did not err as this would have been entirely hearsay testimony on the part of appellant. We are not here called upon to determine whether the clerk’s records could have been properly offered to that effect.

Finally, it is asserted that the court erred in refusing to allow Mrs. Pettijohn to tell the jury that she had been awarded full and exclusive custody of the minor children by the Clay County, Arkansas, Chancery Court pursuant to the suit which she had filed, and which we have earlier mentioned. Again, Mrs. Pettijohn testifying to this fact would not have been the best evidence, but we are of the view that any evidence relating to this custody court order would have been inadmissible because of the fact that the order was not entered until after the events had occurred which are here complained of.

In accord with the views herein expressed, the judgment is reversed, and the cause is remanded to the Clay County Circuit Court with instructions to proceed in a manner not inconsistent with this opinion.

It is so ordered.

      Wanda, about ten days later, was permitted to return to her mother’s home.

      The complaint against Cavaness was dismissed at the close of evidence.

       See also Ark. Stat. Ann. §§ 43-429 — 43-436 (Supp. 1971), sometimes called the “Stop and Frisk” Statute. This was passed by the General Assembly and became Act 378 of 1969.

      Hall was in the courthouse on the day of the custody hearing, appearing in the Municipal Court during the morning on the grand larceny charge. The custody hearing was held in the early afternoon, but Hall elected not to stay for this hearing.


author: George Rose Smith, Justice.

text:
    Troy C. HODGE v. CITY of MARMADUKE et al
    73-111
    503 S.W. 2d 174
    Opinion delivered December 24, 1973
    [Rehearing denied January 28, 1974.]

      W. B. Howard and Jack Segars, for appellant.

      Alfred J. Holland and Kirsch, Cathey, Brown é Goodwin, for appellees.
   George Rose Smith, Justice.

This case centers upon the asserted pollution of a drainage ditch and a water well. The appellant, as the owner oí the lands upon which the ditch and well are situated, brought suit to enjoin the city of Marmaduke from 'continuing to discharge into the ditch the effluent from the municipal sewage treatment plant. Sewer Improvement District No. 1 and certain taxpayers are also parties to the suit, but for convenience we will refer only to the city. The chancellor refused to issue the requested injunction, finding that the city had acquired a prescriptive right to the use of the ditch and that the plaintiff’s water well was not actually being affected by the city’s activity. The appellant questions the sufficiency of the evidence to support each of those findings.

Hodge owns extensive farm lands that are bounded on the south by State Highway 34. Along the north edge of the highway, and admittedly upon Hodge’s land, there is a large drainage ditch that varies from 3 to 18 feet in depth and from 21 to 65 feet in width. For forty years or more the city of Marmaduke has discharged the surface water from its streets into the ditch. The appellant concedes that the city has acquired a prescriptive right to use the ditch for the disposal of surface water.

In 1962 the city completed the construction of a settling basin, or lagoon, for the treatment of sewage. The lagoon is on the south side of Highway 34, approximately across the road from the western part of Hodge’s property. The city provided an outlet from the lagoon into the ditch by laying a tiled duct under the highway— a project that closed the highway to traffic for about ten days. The city had discharged the effluent from the lagoon into the ditch for almost ten years when this suit was brought in 1971.

Apparently the suit was precipitated by the fact that the lagoon finally filled up to such an extent that it no longer converted sewage into an acceptably harmless effluent. While the suit was pending the city constructed a second lagoon, which concededly corrected the deficiency that had developed. The chancellor’s final decree was entered after the second lagoon was in operation and had proved to be efficient.

We consider first the city’s asserted prescriptive right to use the drainage ditch as an outlet for its treatment plant. Although there are comparatively few cases involving the acquisition of a flowage easement by adverse use, the parties are not in disagreement about the law. The basic principles of adverse possession are applicable. As the Nebraska court said in Courter v. Maloley, 152 Neb. 476, 41 N.W. 2d 732 (1950); “That an easement may be acquired by prescription for the flow of waters there can be no doubt. Such an easement however cannot be acquired except by open, notorious, exclusive, and adverse use for a period of ten years.” (In Arkansas the period is only seven years.)

The appellant, in insisting that the city did not acquire an easement by prescription, relies upon LeCroy v. Sigman, 209 Ark. 469, 191 S.W. 2d 461 (1945), where we held that in order for a person to acquire a prescriptive easement across unenclosed and unoccupied property — in that case a vacant city lot — he must show some circumstance or act of hostility indicating that the use was not merely permissive. It is argued that here the city failed to make that showing.

We do not find the chancellor’s contrary conclusion to be clearly against the preponderance of the evidence, the issue being one of fact. Two circumstances support the chancellor’s decision. First, when the original lagoon was created in 1962 the public highwy was blocked for ten days while the conduit was being laid from the lagoon to the ditch. Not only that construction work but also the discharge of the effluent into the ditch were obvious to anyone using the highway. Hodge, whose land was just across the road, does not say that he was unaware of what was taking place. Thus he must have known that the city was incurring substantial expense in creating a new access to the ditch, for the discharge of something more than mere surface water. It is fair to say that Hodge was not justified in assuming that the city’s use of the ditch was merely permissive and therefore subject to his veto at any time.

In the second place, we are not convinced that Hodge’s land was unoccupied within the LeCroy rule. His cultivation of his fields stopped at the edge of the ditch. He now argues that, even so, the ditch itself was unoccupied land, since trees and other vegetation had grown up within it. That situation, however, cuts both ways. It is equally reasonable to say that the ditch was occupied by those who were asserting a flowage easement therein and that therefore the cessation of Hodge’s cultivation at the edge of the ditch amounted to a recognition of the adverse user. We conclude that the chancellor’s finding of a prescriptive right must be sustained.

The second point for reversal involves the water well near Hodge’s residence. Here the candor of Hodge himself and of his counsel lightens the difficulty of our decision. The water from the well has a slightly unpleasant odor, but that is admittedly due to iron and sulphur in the soil. It is also admitted that even if the effluent from the treatment plant percolates from the ditch into the well — an issue of fact upon which the evidence is in dispute — the resulting impurity of the water is physically harmless to the health of one who drinks it. Moreover, the testimony indicates that the State Department of Health found the expanded municipal sewage treatment plant to conform to ecological standards.

Hodge testified that when he discovered, just before this suit was filed in 1971, that there was at least some minimal percolation from the drainage ditch to his water well, he stopped using that water for household purposes and thereafter hauled in all the water needed for domestic use. The chancellor found that there was in fact no percolation of the effluent from the ditch to the well, but the appellant insists that the proof preponderates against that conclusion.

The factual issue is a close one, upon which we are not persuaded that the trial judge’s finding of no percolation is clearly against the weight of the proof. There is, however, another reason for affirming the decree. Hodge admits that the water, even if impure, is harmless to health; but he insists that the city’s maintenance of the treatment plant is a private nuisance, because as a reasonably sensitive person he is justified in his unwillingness to drink water that may be traced in part to a plant where human sewage is treated. He relies upon such cases as Powell v. Taylor, 222 Ark. 896, 263 S.W. 2d 906 (1954), where we held that the maintenance of a funeral home in a municipal residential district may be enjoined as a nuisance, simply because such an establishment, though not physically offensive, tends by its continuous suggestion of death and dead bodies to destroy the comfort and repose sought in home ownership. Hodge argues, upon the same premise, that the contamination of his well, even though not physically harmful, is so offensive as to amount to a nuisance that should be abated.

We think the force of that argument to have been blunted by the passage of more than seven years, during which the challenged condition existed continuously. In the Powell case the neighboring landowners brought their suit at once, not after the asserted nuisance had been tolerated for many years. That fact distinguishes that case from this one. We do not hold — we do not even imply — that one who pollutes a stream without objection for more than seven years acquires a prescriptive right to continue. We do hold, however, that when, as here, the discharge is regarded as lawful and harmless by the public authorities, one in Hodge’s present position cannot complain after having tolerated the situation for more than seven years. Of course our opinion does not foreclose Hodge’s right to relief if the second lagoon eventually fails, as the first one did, with the result that improperly treated sewage is piped into the ditch.

Affirmed.

Harris, C.J., not participating.