author: Frank Holt, Associate Justice.

text:
    Bohner v. Faught.
    5-3158
    374 S. W. 2d 825
    Opinion delivered February 3, 1964.
    No brief filed for Appellant.

      Floycl L. Rees, for appellee.
   Frank Holt, Associate Justice.

This is a garnishment proceeding. The appellee and cross-appellant, Cora S. Faught, served a writ of garnishment upon the appellant, Clyde Bohner, in an effort to collect a judgment of $2,112.50 which she had secured against her former husband. The garnishee filed an answer denying any indebtedness to her former husband. The answer was signed by his attorneys and was unverified. Thereupon the appellee and cross-appellant filed a verified denial by her attorney to the garnishee’s answer. The relevant part of the denial reads:

“That she has reason to believe the answer of the Garnishee in the above cause is untrue or insufficient and denies the correctness of said answer. Si *

^THEREFORE, the plaintiff denies the answer of the Garnishee, and prays judgment against the Garnishee, Clyde Bolmer, in the sum of $2,112.50.”

The issue, thus being joined, was submitted to the court sitting as a jury. The court found, inter alia, “that the true financial relationship between the garnishee and the defendant was not made known” until the date of the trial; that the defendant, Louis Faught, had been an employee of the garnishee for ten days when the garnishee’s answer was filed and continued as such until the date of the trial, or a tota] of 115 days at $5.33 per day. The court accordingly entered judgment for the cross-appellant against the garnishee-appellant in the sum of $612.95 together with costs.

The appellant has abandoned his appeal. The cross-appellant contends for reversal, on appeal, that the court erred in not rendering judgment against the appellant-garnishee for $2,112.50 because the garnishee’s answer to cross-appellant’s interrogations was not full, direct and truthful and, further, was not signed under oath by the garnishee himself but by the unverified signatures of his attorneys.

The cross-appellant contends that the garnishee did not file an answer as required by Ark. Stat. Ann. § 31-506 (Repl. 1962). This statute reads:

“Answers to interrogatories.—Such garnishee shall on the return day named in such writ exhibit and file, under his oath, full, direct and true answers to all such allegations and interrogatories as may have been exhibited against him by the plaintiff.”

It is undisputed that the garnishee’s answer was not signed by him under oath and, also, that the signatures of his attorneys were unverified.

Thus, it is the position of the cross-appellant that the failure to strictly comply with Ark. Stat. Ann. § 31-506 is the same as if the garnishee had filed nothing and, therefore, pursuant to Ark. Stat. Ann. § 31-512 (Repl. 1962) the court should have entered judgment against the garnishee for $2,112.50 as sought in the writ of garnishment. We do not agree. Ark. Stat. Ann. § 31-508 (Repl. 1962) reads:

“Insufficiency of answer—Trial.—If the garnishee shall file his answer to the interrogatories exhibited, and the plaintiff shall deem such answers untrue or insufficient, he may deny stich answer, and cause his denial to be entered on the record; and the court or justice, if neither party require a jury, shall proceed to try the facts put in issue by the answer of the garnishee and the denial of the plaintiff.” [Emphasis supplied]

The cross-appellant controverted the garnishee’s unverified answer and proceeded to try the facts put in issue by the garnishee’s answer and her denial of the answer. She did not question the lack of verification of the garnishee’s answer during any proceeding before the Trial Court. Consequently, she is deemed to have waived any such defect and it cannot now be raised on this appeal In Queen of Arkansas Insurance Co., v. Taylor, 100 Ark. 9, 138 S. W. 990, we said:

“It is too late for appellant to complain here that the complaint in the action was not signed by counsel nor verified, after having, without objection thereto on that account, filed an answer and gone to trial in the case. It should by proper motion have had the complaint stricken out or signed by counsel and verified.”

See, also, Mason v. Hatchett, 219 Ark. 631, 243 S. W. 2d 733.

In the case at bar there was no objection made to any defect as to the signature or verification of the garnishee’s answer. The cross-appellant filed a denial to the garnishee’s answer and put the issues before the court as a trier of the facts. Therefore, she is bound by the court’s findings and the judgment rendered thereon since such is based upon substantial evidence.

Affirmed.

       “Refusal of garnishee to answer — Effect. — If any garnishee, after having been served with a writ of garnishment ten [10] days before the return day thereof, shall neglect or refuse to answer the interrogatories exhibited against him on or before the return day of such writ, the court or justice before whom such matter is pending shall enter judgment against such garnishee for the full amount specified in the plainitff’s judgment against the original defendant, together with costs.”


source: Caselaw Access Project

author: Carretón Harris, Chief Justice.

license: Public Domain

text:
    Lofton v. Bryan.
    5-3049
    375 S. W. 2d 221
    Supplemental Opinion on rehearing delivered February 3, 1964.
    Original opinion delivered December 16, 1963, p. 376.
   Carretón Harris, Chief Justice.

In the petition for rehearing appellant insists that this case is controlled by Huffstettler v. Lion Oil Company, 208 F. 2d 549. There it was held that the operator of a bulk plant who distributed Lion products to retailers who had contracted with Lion to sell that company’s products, was not an independent contractor, but a subcontractor.

The decision in the Lion case was based on Hobbs Western Co. v. Craig, 209 Ark. 630, 192 S. W. 2d 116, and Brothers v. Dierks, 217 Ark. 632, 232 S. W. 2d 646. In the Hobbs Western case it was shown that Hobbs Western was getting out crossties for the Bock Island Bail-road under a contract, and its was therefore held that one Lea, who was in turn getting out ties for Hobbs Western, was a subcontractor, not an independent contractor.

In Brothers v. Dierks it was shown that Dierks was getting out timber under a contract with the Federal Government, and therefore, the one that Dierks employed to remove the timber from the government laud was a sub-contractor and not an independent contractor.

In the case at bar it is not shown that Dierks had any contract with a third person in connection with the timber, and therefore, it cannot be said that the one who is getting out the timber for Dierks is a subcontractor.

Petition for re-hearing is denied.


author: Cakleton Harris, Chief Justice.

text:
    Ross v. Equitable Life Assurance Society.
    5-3184
    375 S. W. 2d 222
    Opinion delivered February 10, 1964.

      Shaver, Tackett & Jones, for appellant.

      Keith, Clegg & Eckert, for appellee.
   Cakleton Harris, Chief Justice.

This case relates to an employment practice that has become widespread in recent times, and which is sometimes referred to as “moon-lighting.” Appellant, Elmer E. Ross, a resident of Little River County, has been employed regularly by Day & Zimmermann, Inc., Loan Star Ordnance Division, Texarkana, Texas, as an equipment mechanic, since November 15, 1951. In his employment, Ross worked eight hours per day. During the last eight years, his work day started at 7:00 o’clock A.M., and concluded at 3:30 o’clock P.M. About six years ago, he became a part-time night policeman for the City of Ashdown. Ross acted as a relief or substitute policeman for the regular employee, Chester Pruitt. For four of the last six years, he has served in such capacity for the City of Ashdown two nights each week.

On August 4, 1962, Ross, Avhile working as a night policeman for the city, stopped an automobile, in which five youths from Fort Smith were riding. The automobile was stopped because the driver had run a stop sign. During the investigation, appellant Avas shot by one of the occupants of the car, requiring medical and hospital expenditures, for which appellant seeks to recover from the appellee company. The City of AshdoAvn carried no Workmen’s Compensation coverage.

At the time Ross was injured, there were in full force and effect, group accident, health, hospital, and life insurance policies issued by the appellee, the Equitable Life Assurance Society of the United States, in favor of Day and Zimmennann, Inc., Loan Star Ordnance Division, affording non-occupational accidental bodily injury, or non-occupational sickness insurance benefits to the employees of Day and Zimmermann. The insurance company refused to make any payment to Ross, contending that his injuries arose out of his employment with the City of Ashdown; that, therefore, he had suffered an occupational accident, which precluded Ross from receiving any benefits under said policies. Appellant instituted suit against the company, seeking judgment in the amount of $791.39, together Avith statutory penalty and reasonable attorney’s fees. On hearing, the court, sitting as a jury, found that Ross’ injury arose out of and in the course of his employment Avith the City of Ashdown, and was not a non-occupational accident. From the judgment entered, denying recovery, appellant brings this appeal. Only one point is relied upon for reversal, vis,

“The trial court erred in ruling that the accidental bodily injury of appellant Avas ‘ occupational, ’ precluding recovery under the involved policies of insurance.”

The section relative to hospital expense, inter alia, provides:

“No payment shall Tbe made under the provision hereof entitled ‘Hospital Confinement Benefits.’ * * *

“(b) due to accidental bodily injuries arising out of and in the course of an employee’s employment.”

The accident and health sections also provide that no benefits are payable “for disability due to accidental bodily injuries arising out of and in the course of the employee’s employment. ’ ’

Appellant contends that the “employment” referred to concerns solely the employee’s employment with Day and Zimmermann, Inc., and the accident and health insurance coverage is due to be paid when the epxployee is injured at any time, except when injured on his job with Day and Zimmermann. Appellant states:

“Insurance benefits are afforded the employees of Day and Zimmermann, Inc., for non-occupational bodily injuries preventing the employee from performing any and all duties pertaining to his employment, precluding benefits due to disability arising out of and in the course of the employee’s employment. The employment, to which the policy refers, can only mean the employment of the named employee with the named employer, Day and Zimmermann, Inc.”

On the other hand, appellee asserts that the policies were intended to cover accidents or sickness arising from non-occupational sources, and that Ross, though not injured because of his employment with Day and Zimmermann, was injured by virtue of his employment with the City of Ashdown, and consequently, since such injury occurred during a time when he was carrying out the duties of employment, the policies do not afford coverage. That, then, is the question—what is meant by the phrase, ‘ ‘ due to accidental bodily injuries arising out of and in the course of an employee’s employment?” Does this refer to any employment engaged in by an insured, or does it only refer to the employee’s duties with the company which made the group insurance plan available for the benefit of its employees, vis, Day and Zimmermann ?

We are of the opinion that the phrase has reference to the employment with Day and Zimmermann, for the ■wording of the policies strongly supports that interpretation. Day and Zimmermann, Inc., are mentioned as ‘ ‘ the employer, ’ ’ and this company is given the right to terminate the policies on any premium due date, or, subject to appellee’s approval, to modify, amend or change the provisions, terms and conditions of the accident, health, or hospital insurance. The life insurance coverage gives the employee the privilege of changing the beneficiary from time to time by filing a written request with the employer (Day and Zimmermann), but the change of beneficiary is ineffective until Day and Zimmermann enter the change upon the insurance records.

An “Information Manual,” explaining the insurance plan, was prepared by Day and Zimmermann for distribution to the employees. This manual commences, “To our employees: as evidence of our interest in the welfare of you and your family, we have made available for your benefit a Contributory Group Insurance Plan, which consists of the following: * *

The various benefits to employees of the company are then explained in detail. At Page 14 of the manual, it is pointed out that “accidents” are not covered if intentionally self-inflicted, sustained while performing military service in time of war or riot, sustained while performing police duty as a member of any military or naval organization, or sustained outside of the United States or Canada. Certainly in setting out these exceptions to coverage under the policy, it would have been quite easy to have likewise provided that coverage was not afforded if bodily injuries were sustained while working at any employment, for any employer.

No helpful cases have been cited on the particular point involved, and we have found none dealing with the exact situation. Perhaps the case which comes closest to the instant litigation is Federal Life Insurance Company v. Hall, 11 P. 2d 215, which was decided by the Supreme Court of Colorado in 1932. There, Hall’s occupation was not mentioned in the policy, and no language used therein related to any given occupation. As here, the insurance did not cover death or loss while performing occupational duties. Hall was a rancher, had a herd of milch cows, sold cream, and butchered and sold his calves for veal. He raised chickens, and marketed from 350 to 500 turkeys per year. When not so occupied, he took such work as he could get. This included employment on the public highways, and acting as a salesman. For about fourteen months before his accident occurred, he had occasionally done rough carpenter work, actually acting as what might be termed a “carpenter’s helper.” He was killed while assisting in the erection of a shed for a neighbor, when the shed was hit by a tornado. In answer to the question contained in the proof of death, the occupation of the deceased, at the time of the injury, was listed as “carpenter and ranchman.” As here, the company refused to pay because it contended that Hall was performing occupational duties at the time of his death. The Supreme Court disagreed, stating,

“If the words, ‘occupational duties’ were to be applied to every casual and temporary employment in which Hall engaged, this policy would be thus construed into a mere instrument for the furthering of a confidence game. The phrase was doubtless intended to apply to the insured’s ordinary and usual occupation. There is nothing in this record to justify the conclusion that the carpenter trade was such. Hall’s work in that line was apparently nothing more than the roughest and most ordinary sawing and nailing of boards. It might have been performed, and is every day performed, by unskilled farm boys. It has been repeatedly held that the term ‘occupation,’ as used in accident policies and applications therefor, refers to the insured’s ordinary and usual business, neither to recreational activities nor to incidental nor temporary employment. * * *

“Hence ‘occupational duties’ refers to duties incident to insured’s ordinary and usual occupation, not to duties incident to an unusual and temporary employment.”

It is true that Hall had engaged in carpentry work for only fourteen months, while Ross had been holding the night policeman job (though only two nights per week) for several years, but that fact is hardly sufficient to distinguish the cases. Another difference is that Hall purchased the insurance himself, while Ross is contending for benefits under policies purchased by his regular employer—but this circumstance would seem to. make Ross’ position even stronger, since the policies definitely define his employer. The main similarity in the cases, and, we think, the most significant fact, is that neither Hall nor Ross was engaged in his “usual occupation” at the time of being injured. Hall’s usual occupation was rancher, and Ross’ usual occupation was equipment mechanic. For the reasons herein cited we are definitely of the view that the employment referred to by the policies can only have reference to the employment of Ross with Day and Zimmermann, Inc.

Even if it can be said that the policies are susceptible to the interpretation contended for by appellee, it must also be stated that they are certainly susceptible to the construction we have given. In such event, appellee still cannot prevail. As we stated in National Life and Accident Insurance Co. v. Horace, 206 Ark. 430, 175 S. W. 2d 984:

“ ‘If it be admitted that the policy is susceptible to this construction, it must also be admitted that this is not the only construction to which it is reasonably susceptible. The policy is ambiguous, to say the least of it, and the rule of construction followed by this court in many cases is to resolve ambiguous and doubtful language in favor of the insured, and against the insurer.’ ”

Likewise, in Firemen’s Insurance Company of Newark, N. J. v. Motley, 222 Ark. 968, 264 S. W. 2d 418:

“ ‘Under well-settled principles, where the provisions of a policy are susceptible of two equally reasonable constructions, one favorable to the insurer and the other to the insured, the latter will be adopted. This is because the language is chosen by the insurer with the aid of experts employed for the purpose of writing the policy, and the insured has no voice in the matter. Therefore, where either of the two constructions may be adopted, it is fair that that which will sustain the claim and cover the loss will be chosen.’ ”

The judgment is reversed, and the cause is remanded with directions to render judgment in favor of appellant, together with costs, statutory penalty, and a reasonable attorney’s fee.

       It was stipulated at the trial that if Ross was entitled to anything at all under the policies, he was entitled to the amount sought in his complaint.


author: Ed. F. McFaddin, Associate Justice.

text:
    Holland v. State.
    5100
    375 S. W. 2d 234
    Opinion delivered February 10, 1964.

      Carl Steiuart, Marh Woolsey, John Wm. Murphy and Hubert L. Burch, for appellant.

      Bruce Bennett, Attorney General, by Beryl Anthony, Jr., Asst. Atty. Gen., for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellant Bay Holland was charged, tried, and convicted of the offense of carnal abuse (Ark. Stat. Ann. § 41-3406 [1947]), and brings this appeal. The motion for new trial contains fourteen assignments, which we group and discuss in suitable topics.

I. Grouping Of Counts. On March 4, 1963, there were two informations filed against the appellant, both charging him with carnal abuse of Linda Kay Holland, a female under the age of 16 years. Information No. 1 contained two counts: one count charged that the offense of carnal abuse was committed by the defendant against the named prosecutrix “on or about the 15th day of November, A.D. 1962”; and the other count charged that the crime of carnal abuse was committed by the defendant against the named prosecutrix ‘ on or about the 18th day of November, 1962.” Information No. 2 contained one count and charged that the offense of carnal abuse was committed by the defendant against the named prosecutrix “on or about December 24, 1962.” On May 29, 1963, the defendant was brought to trial, and the record reflects, “. . . both sides having agreed that the three counts could be consolidated for trial in one proceeding.” At the beginning of the trial the defendant moved that the three acts charged be considered as one offense, “. . . since they all charge the commission of the same felony, to-wit, carnal abuse- against the same person, to-wit, Linda Kay Holland, and the time element being from the 15th of November, 1962, through December 24, 1962. Therefore, there could only be one trial and one conviction upon them.” The Trial Court overruled the said motion and held that each count charged a separate offense. When the prosecuting witness was asked the dates of the acts she could not give the calendar dates, and then the defendant’s counsel again insisted that there was only one offense.

We find no injury done to the appellant in the Court’s ruling on this point. The fact that a 14-year-old girl could not remember the calendar dates when she was abused does not destroy the fact that she was abused on three separate occasions. She fixed the dates by reference to other matters and clearly testified that there were three separate offenses. The jury found the defendant guilty on each count and fixed his punishment at eight years imprisonment on each count; and the Court directed that the sentences should run concurrently; so the defendant will only have to serve the length of one sentence.

II. Sufficiency Of The Evidence. The prosecuting witness was 14 years of age at the time of the trial. Before she was permitted to testify the Court examined her to see if she understood the nature and effect of an oath, and ruled that she was a competent witness. We find no error committed by the Court in such ruling. Crosby v. State, 93 Ark. 156, 124 S. W. 781, 137 A.S.R. 80; DeVoe v. State, 193 Ark. 3, 97 S. W. 2d 75; Reynolds v. State, 220 Ark. 188, 246 S. W. 2d 724.

The prosecuting witness testified that on the three occasions the defendant came to her room at night while she was in bed, reached his hand under the cover, rubbed her breasts and private parts, and inserted his finger in her vagina; and on one such occasion he attempted to use his male organ. A doctor examined the little girl and testified that her hymen was ruptured, and that the insertion of a finger into her vagina could have caused the rupture. We have repeatedly held that in carnal abuse cases the prosecuting witness is not an accomplice and her testimony does not have to be corroborated; and her testimony, standing alone, is sufficient to support a conviction. See Hawkins v. State, 223 Ark. 519, 267 S. W. 2d 1, and eases therein cited.

If the defendant did what the little girl testified that he did, then he was guilty of carnal abuse. Such was directly held in Watt v. State, 222 Ark. 483, 261 S. W. 2d 544. The testimony of the little girl was stoutly disputed by appellant, and he was corroborated on many points by other witnesses; but it was for the jury to decide the factual issues. Our duty is to ascertain whether there was sufficient substantial evidence to support the verdict; and the testimony of the little girl constituted such evidence.

III. Errors Claimed To Have Been Committed By The Trial Court. In his brief the appellant quotes, in extenso, some of the proceedings in the Trial Court, and claims error; but the appellant’s motion for new trial is not sufficiently definite to present such matters to us. Here are some of the assignments in the motion for new trial:

“6. Because of improper examination of the prosecuting witness.

“9. Because the Court erred in permitting hearsay evidence.

“12. Because of improper statements made by the Prosecuting Attorney.

“13. Because the record herein reflects and shows that the defendant did not receive a fair and impartial trial as provided by the Constitution of the United States and by the Constitution of the State of Arkansas. ’ ’

These assignments-—and they are typical of some others in the motion for new trial—are not sufficiently definite to present any matter to us. Payne v. State, 224 Ark. 309, 272 S. W. 2d 829. In Lomax v. State, 165 Ark. 386, 264 S. W. 823, in discussing the indefinite nature of the assignments in the motion for new trial, we said:

“This court has frequently held that a motion for a new trial on the ground that the court erred in admitting evidence on the part of the defendant, without naming the witnesses or pointing out the evidence, is too general, and does not present any question for review on appeal. Edmonds v. State, 34 Ark. 720; Western Union Tel. Co. v. Duke, 108 Ark. 8, and cases cited; and Black v. Hogsett, 145 Ark. 178.”

In Armstrong v. State, 171 Ark. 1136, 287 S. W. 590, we said of indefinite motions for new trial:

“These assignments are too general to properly raise the question as to the admissibility of the testimony pointed out in the exceptions made during the progress of the trial. Lomax v. State, 165 Ark. 386. It is not essential that the assignments in a motion for new trial be specific as to the grounds upon which the exceptions were based, but they must be sufficient to identify the particular witness and the testimony to which the assignment is directed. An assignment as general in its nature as those set forth in the motion for a new trial now before us does not apprise the trial court of the errors sought to be reviewed, and gives the court no opportunity to correct its errors, hence there can be no review here.”

IY. Other Assignments. We have carefully examined all the other assignments contained in the motion for new trial and we find no reversible error committed by the Trial Court and assigned in the motion for new trial.

Affirmed.


author: George Rose Smith, J.

text:
    Griffin v. Solomon, Executrix.
    5-3199
    375 S. W. 2d 232
    Opinion delivered February 10, 1964.

      A. M. Coates, for appellant.

      David Solomon, for appellee.
   George Rose Smith, J.

This suit was brought by B. M. Solomon (now deceased) and Michael Gradus to foreclose a real estate mortgage executed by Arthur Cotton, Jr. By intervention the four appellants, Arthur’s brothers and sisters, contended that they were tenants in common with him, that they had not joined in the mortgage, and that it was not a lien against their undivided four-fifths interest. The chancellor held that the appellants were bound by the mortgage. On appeal, however, we reversed that decree, finding that the mortgage lien was effective only as to Arthur’s one-fifth interest. Griffin v. Solomon, 235 Ark. 909, 362 S. W. 2d 707.

In taking their first appeal the appellants did not supersede the decree. The foreclosure sale was accordingly held while that appeal was pending. David Solomon, Jr., the attorney for the mortgagees, bid $4,300 for the land and directed that the commissioner’s deed be made to J. A. Hale, which was done. After the reversal of the original decree the appellants asked that the sale be set aside and that the land be resold. They contend that the purported sale to Hale was merely a colorable transaction for the real benefit of the mortgagees and, further, that the land is actually worth about $8,000. This appeal is from a decree refusing to disturb the sale.

When property is sold under a decree that is erroneous but not void, the sale will be set aside upon a reversal of the decree if the purchaser was a party to the suit, and this is true even though the decree was not superseded. Fishback v. Weaver, 34 Ark. 569. On the other hand, the reversal does not affect the sale if the purchaser was a stranger to the case, paying a valuable consideration. Ibid.; Moore v. Woodall, 40 Ark. 42. The only importance of a supersedeas is that it enables the losing party to prevent the land from being sold to a stranger pending the appeal. Orem v. Moore, 224 Ark. 146, 272 S. W. 2d 60.

We are of the opinion that the sale to J. A. Hale was a colorable transaction, designed to keep the land in the Solomon family. B. M. Solomon testified that he did not anticipate that Hale would reconvey the land to him and Gradus, the mortgagees. But B. M. Solomon admitted that he was in the position of preferring to receive $860 under the first sale rather than receive $1,600 as the true value of Arthur Cotton’s one-fifth interest. His only explanation for his position was that “you might say I’m hard-headed.”

Hale is an employee of Solomon & Goldsmith Cotton Company. He works under the direction and supervision of David Solomon, Jr., the attorney, who is the chief executive officer of the corporation. Solomon, who made the hid in Hale’s name, admitted with candor that he himself actually furnished the money for the purchase and that it was an open unsecured loan, not even evidenced by a note. Thus it does not appear that Hale, who did not see fit to testify, is in a position to insist that he paid value for the property.

In a well-reasoned opinion the Supreme Court of Florida held that when an attorney in the case purchases at the sale he must be treated in the same way as a party, so that a reversal avoids the sale. Johnson v. McKinnon, 54 Fla. 221, 45 So. 23, 127 Am. S. R. 135, 13 L.R.A. (n.s.) 874, 14 Ann. Cas. 180. Hence if David Solomon, Jr., was actually the purchaser, as the proof suggests, the land should be resold. This course of action is not unjust.

In fairness we should add that Mr. .Solomon, as counsel for the appellees, does not argue that the sale to Hale was genuine. He first contends that the chancellor could not set the sale aside after the lapse of the term. This argument is without merit, because the effectiveness of our mandate upon reversal is not dependent upon a continuation of the trial court’s term. His second contention, that the appellants lost their rights by failing to supersede the decree, has already been answered.

Beversed.


author: Paul Ward, Associate Justice.

text:
    Hendricks v. Parker.
    5-3205
    375 S. W. 2d 811
    Opinion delivered February 10, 1964.
    [Rehearing denied March 23, 1964.]

      N. L. Schoenfeld, for appellant.

      Arnold é Hamilton, for appellee.
   Paul Ward, Associate Justice.

This litigation stems from a local option election in Ouachita County relating to the manufacture and sale of intoxicating beverages. There is no dispute as to the pertinent facts and the record contains no testimony.

Facts. The election, held on November 6, 1962, resulted in 4,604 votes against and 4,330 in favor of the manufacture and sale of intoxicating beverages. A recount showed different figures but did show 184 more votes against than in favor of the manufacture and sale of alcoholic beverages. In due time appellants (represented by their attorney) filed in the Ouachita County Court a petition contesting the result of said election. Also, in due time, appellees filed a response to which were attached interrogatories directed to appellants regarding certain allegations contained in their petition.

Trial was set for January 7, 1963, but, since appellants’ attorney was a member of the legislature, the trial was reset [in accord with Ark. Stat. Ann. § 27-1401 (Repl. 1962)] for April 15, 1963. On April 14, 1963 appellants filed in the county court a motion for continuance on the ground that their attorney was in the hospital and would be unable to attend the trial.

On the 15th, in the absence of their attorney, appellants presented their motion for a continuance which motion appellees resisted and requested a trial on the merits. When appellants failed to proceed further, the County Judge, on April 15, 1963, (a) denied the motion for a continuance; (b) dismissed appellants’ contest petition; and (c) directed the court clerk to make and enter-his certificate certifying the result of the election in favor of appellees.

On May 16, 1963 appellants filed in circuit court a petition for a writ of certiorari alleging numerous reasons why that court should direct the county court to hear the contest petition on its merits. Attached to the petition for certiorari were copies of the pleadings and the order filed in the county court.

To appellants’ petition for a writ of certiorari appellees filed a demurrer based on the assertions (among others) (a) that the petition contains no allegation of want of jurisdiction in the county court, and (b) that certiorari cannot be used as a substitute for appeal. The circuit court, after oral arguments by both sides, sustained the demurrer and dismissed appellants’ petition. This appeal is from that order.

In our judgment the order of the trial court must be affirmed. Appellants’ proper remedy was by appeal from the order of the county court. Certiorari will not take the place of an appeal [unless the right of appeal has been lost by no fault of the aggrieved party—which is not the case here] and lies only when the inferior court acted without jurisdiction or beyond its jurisdiction. This rule of procedure was clearly announced in the early case of Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605, 33 S. W. 1064. Since the date of the above decision (1896) the rule has been affirmed by this Court no less than fourteen times including the recent case of Hyder v. Newcomb, 234 Ark. 486, 352 S. W. 2d 826.

In the case under consideration there can be no doubt that the county court had jurisdiction to hear the contest. Ward v. Boone, 231 Ark. 655, 331 S. W. 2d 875. In any event appellants are in no position to contend otherwise because they chose that forum. It follows therefore that the county court also had jurisdiction to deny their motion for continuance. 'Whether or not the county court abused its discretion could not be re-examined by the circuit court on certiorari. Hardin v. Norsworthy, 204 Ark. 943, 165 S. W. 2d 609.

In view of what we have said above, we cannot escape the conclusion that the circuit court acted properly, and its judgment is affirmed.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    City of Little Rock v. Andres.
    5-3187
    375 S. W. 2d 370
    Opinion delivered February 10, 1964.
    [Rehearing denied March 9, 1964.]

      Joseph C. Kemp, by John B. Plegge and Perry V. Whitmore, for appellant.

      Bose, Meelc, House, Barron, Nash & Williamson, for appellee.
   Sam Robinson, Associate Justice.

This is a zoning case. The action was filed by appellees, Frederick U. Andres and his wife, Grace, to enjoin the Board of Directors of the City of Little Rock, its employees, commissioners and agencies, from preventing the plaintiffs from using their property at 2115 Broadway, Little Rock, for purposes designated as “F Commercial” by the Little Rock zoning ordinances. The Chancellor granted the relief prayed and the City of Little Rock has appealed.

The property involved is the home of appellees and is located in an area designated in the zoning ordinances of Little Rock as ‘ ‘ C-2 Family District. ’ ’ Appellees contend that Broadway in general, and the block in which their property is located in particular, is no longer suitable as a family district. They, therefore, applied to the Little Rock Planning Commission to have the zoning on their property changed to commercial; the Planning Commission denied the request; appellees appealed to the Board of Directors of Little Rock and again the request was denied.

Appellees then filed this suit in the Pulaski Chancery Court, alleging that the refusal of the Little Rock authorities to rezone the property was arbitrary, and placed unreasonable limits on the use of the property; that a “C-2 Family District” bears no definite relation to the health, safety and general welfare of the inhabitants of the area; that the limitation placed on the use of the property deprives the plaintiffs of their property without due process of law in violation of the 14th Amendment to the Constitution of the United States and Article 2, Sec. 8 of the Constitution of Arkansas, and amounts to the taking of private property for public use without compensation in violation of Article 2, Sec. 2 of the Constitution of Arkansas.

The chancellor, in holding that the petition for rezoning should be granted, found as a fact that the action of the Planning Commission and the Board of Directors of Little Rock in refusing to change the zoning on the property was arbitrary. If tbe authorities acted arbitrarily in denying the change in zoning, such action is a sufficient reason to' grant the relief prayed. City of Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883; City of Little Rock v. Bentley, 204 Ark. 727, 165 S. W. 2d 890.

If the’ chancellor’s finding to the effect that the authorities were arbitrary in not changing the zoning is supported by a preponderance of the evidence, the decree must be affirmed.’ City of Little Rock v. Garner, 235 Ark. 362, 360 S. W. 2d 116; City of Little Rock v. Henson, 220 Ark. 663; 249 S. W. 2d 118; City of Little Rock v. Joyner, 212 Ark. 508, 206 S. W. 2d 446.

Zoning ordinances are valid only by reason of the police power. Yokley Zoning Law and Practice, Vol. 1, p. 1; City of Little Rock v. Sun Building & Developing Co., 199 Ark. 333, 134 S. W. 2d 582. Such ordinances are in derogation of common law and operate to deprive an owner of property of a use thereof which would otherwise ■be lawful, and should be strictly construed in favor of the property owner. City of Little Rock v. Williams, 206 Ark. 861, 177 S. W. 2d 924. On the theory and purposes of zoning the courts have said: “The proper purposes of zoning have been said to conserve the value of property and encourage the most appropriate use of land.” Griggs v. City of Paterson, 39 A. 2d 231. One of the main purposes of zoning is the stabilization of property values in a neighborhood. Libby v. Board of Zoning Appeals, 118 A. 2d 894.

Prior to the erection of the Broadway Bridge across the Arkansas River about 40 years ago, there was no through traffic on Broadway; it was just another residential street. Many of the finest homes in the city were located on Broadway. After the building of the Broadway Bridge and the great development of automobile and truck traffic, Broadway became one of the principal thoroughfares of the nation. It became a link in U. S. Highways 65, 67, 70, 167 and State Highway 5. A large portion of automobile traffic going from the eastern part of the United States to the west, and vice versa, necessarily used Broadway, especially so in the winter months. The traffic count reached 28,000 vehicles per day. (Since the construction of the freeway around Little Rock it is estimated that the count will drop to about 11,000 per day.)

Twenty-five blocks south of the Arkansas River Broadway intersects Roosevelt Road. All of the through highways of which Broadway is a part go either to the east or west on Roosevelt.

Years ago all of Broadway south of the river to about 13th Street became commercial property, and in all probability the commercial district would have continued south except for the case of City of Little Rock v. Connerly, 222 Ark. 196, 258 S. W. 2d 881. It now appears that we made a mistake in reversing the decree of the chancery court in granting Connerly the right to put a commercial establishment at 14th and Broadway. In that case, however, twenty property owners joined in an intervention protesting the change in zoning. In the case at bar no property owners have intervened.

For many years there has been a service station at the southeast corner of 14th and Broadway. A large shopping center has been established on the property between 24th and 25th Streets on the east side of Broadway, and there is a large service station on the northwest corner of 25th and Broadway.

As Broadway changed from a residential street to an important commercial thoroughfare, property adjoining the street became progressively undesirable as a family district. Those who built the fine homes originally have moved from the street to other sections of the city. Some of the old homes have become rooming houses; some of the owners of property on the street testified that they cannot get satisfactory tenants who will pay the rent; other houses are vacant and becoming uninhabitable; some have been condemned.

All of the property is worth very little as residential property compared with other property in other sections of the city. It appears that a large part of the property has been offered for sale, but only a few buyers have been found, and those who have bought a residence on the street in recent years have done so because a very fine house could be bought at a very cheap price because it was located on Broadway. Mr. W. T. Shelton, one of only three people living on the street who gave testimony in opposition to rezoning, testified that he bought a house on Broadway in 1960 for $18,500. He was asked to describe it and he stated: “Brick, two story, palatial residence, very old. We have 1, 2, 3, 4, 5 rooms downstairs, 5 bedrooms and 2 baths upstairs, ornate. It is a mansion, built about 1910.”

In 1959, Mr. Claibourne Patty, a lawyer, bought a very fine house at 2020 Broadway which had been kept in excellent repair. The former owner had moved to another section of the city, and most of his friends had likewise moved. Mr. Patty stated that the house was built in 1905 and was expensively constructed; that for a relatively modest price he bought a large and ornate house that is a better house than he could afford to buy in another section of the city.

It was shown by numerous witnesses, including Mr. Patty, that south Broadway is riot a suitable street to live on if one is rearing children. The street is dangerous due to the traffic; there are no playgrounds; and the only white school serving that end of town has been changed to a school for colored.

Appellees have offered their property at 2115 Broadway, which they seek to rezone, for sale at $15,000 and cannot find a buyer. Mr. A. C. Read, the third person living on Broadway who testified against rezoning, is in the real estate business. He testified that appellees’ lot would be worth $15,000 or $17,000 if rezoned, and that appellees were going to tear down a house located thereon that would cost $35,000 to replace. In other words, the appellees can not get $15,000 for the lot with the $35,000 house on it, but can get $15,000 or $17,000 for the lot without the house if it is zoned commercial.

No one can afford to build a house on a lot on Broadway because after construction the property would not be worth what it would cost to build a nice house. If a lot becomes vacant because the house is condemned or is destroyed by fire, it has no value unless the property can be rezoned as commercial. An apartment house could not be built and rented successfully because no parking is permitted on Broadway and one lot would not be large enough to take care of the required parking. According to the undisputed evidence property on Broadway would have a reasonable and satisfactory value as commercial property.

In the case of Fentress v. Sicard, 181 Ark. 173, 25 S. W. 2d 18, this court said that change is the order of the times and that progress and development should not be hindered or obstructed; that the transition from a residential district into a business district is recognized as appropriate where the value of surrounding property, as business property, would not detract from its value, for residential purposes for which it has long since fallen into disuse so far as new and further development is concerned.

In all the circumstances we cannot say the finding of the chancellor that the city authorities acted arbitrarily in refusing to rezone appellees’ property is contrary to the preponderance of the evidence.

Affirmed.

McFaddin and Ward, JJ., dissent.


author: Jim Johnson, Associate Justice.

text:
    Ark. State Highway Comm. v. Stanley.
    5-3146
    375 S. W. 2d 229
    Opinion delivered February 10, 1964.

      Dowell Anders, William H. Donham, for appellant.

      Milham & Cummins, Ben M. McCray and Kenneth Coffelt, for appellee.
   Jim Johnson, Associate Justice.

This appeal arises from a re-trial of eminent domain proceedings for highway purposes. On June 15, 1960, appellant Arkansas State Highway Commission filed a complaint and declaration of taking in Saline Circuit Court, condemning 18.03 acres of land belonging to appellees Marshall and Dorothy Stanley, along the right-of-way of Interstate Highway 30. Appellant Highway Commission deposited $5,000.00 in the registry of the court as estimated just compensation for the property, which was later withdrawn by appellees. Appellees filed an answer praying-judgment for the sum of $14,803,703.80. At trial, the jury returned a verdict of $150,000.00, which was reversed on appeal on grounds that “the verdict was not supported by substantial competent evidence,” and remanded for a new trial.

The cause was again tided before a jury on February 21, 1963, and the jury returned a verdict for $35,000.00. From the judgment on the verdict, the Highway Commission has prosecuted this appeal, contending that the trial court erred in refusing to exclude the value opinions of two of appellees’ witnesses. Appellees have cross-appealed, urging that the trial court erred in refusing to grant appellees’ request for a drawn and struck jury of 24 qualified jurors from which eighteen shall be drawn and struck. We shall consider this point first.

At the second trial, when the parties announced ready for trial, when appellees requested a drawn and struck jury the following discourse ensued:

Mr. McCray: “The claimant, Stanley, requests a drawn and struck jury and objects to the refusal of the court to grant such request by refusing to select 24 qualified jurors from which the 18 shall be drawn and struck.

The Court: “Tour request for a drawn and struck jury is granted, but I am saying that you are not prejudiced by not calling more than 18 at this time because there are more than 24 jurors present in the court room at this time.

Mr. Coffelt: “We want 24 qualified jurors from which to select the 18.

The Court: “They are qualified. This panel of jurors has been qualified since last September. Proceed.”

The statutes applicable to drawn and struck juries are Ark. Stat. Ann. § 39-229 and § 39-231 (Eepl. 1962) which read as follows:

“Each party shall have three [3] peremptory challenges, which may be made orally—but if either party shall desire a panel, the court shall cause the names, of twenty-four [24] competent jurors, written upon separate slips of paper, to be placed in a box to be kept for that purpose, from which the names of eighteen [18] shall be drawn and entered on a list in the order in which they are drawn, and numbered. Each party shall be furnished with a copy of said list, from which each may strike the names of three [3] jurors and return the list so struck to the judge, who shall strike from the original list the names so stricken from the copies, and the first twelve [12] names remaining on said original list shall constitute the jury.” [§ 39-229].

“Before the drawing of the list above mentioned, the court shall decide all challenges for cause which are presented, and if there are not twenty-four [24] competent jurors, bystanders shall be summoned as herein-before provided, until the requisite number of competent jurors is obtained, from which said list shall be drawn. Where there are several persons on the same side, the challenge of one [1] shall be the challenge of all under this subdivision.” [§ 39-231, amended in part by >§. 39-220 and § 39-220.1].

This court has had several occasions to consider these statutes since their original enactment as a part of the Civil Code of 1868. They were, however, first passed upon by the United States Supreme Court in 1895, in a case arising in the United States Court for the Indian Territory. (In 1890 Congress legislated that “certain general laws of the State of Arkansas which are not locally inapplicable or in conflict with this act or of any law of Congress . . . are hereby extended over and put in force in the Indian Territory until Congress shall otherwise provide”, including the above statutes.) The U. S. trial court refused to allow a drawn and struck jury. Speaking for the Supreme Court in Gulf, C. & S. F. Railway Co. v. Shane, 157 U. S. 348, 15 S. Ct. 641, 39 L.Ed. 727, Justice White stated, after quoting the statutes above:

“The action of the court below was in violation of this statute. It refused to make up the list of eighteen, as requested, and confined the right of peremptory challenge to the twelve jurymen called to be sworn, on the ground that such was the custom or rule of practice of the court. Manifestly, the ‘rule’ or custom of the court could not override the mandatory terms of the statute. That to thus empanel a jury in violation of law, and in such a way as to deprive a party of his right to peremptory challenge, constitutes reversible error is clear.”

In Young v. Morrison, 159 Ark. 270, 251 S. W. 869, after quoting from the Shane case, supra, this court said that, “We concur with the Supreme Court of the United States in this interpretation of our statute, ...” (but went on to hold that in that case there had been substantial compliance with the statute). Republic Mining & Mfg. Co. v. Elrod, 208 Ark. 150, 185 S. W. 2d 99, deals decisively with the point here under consideration in the following language:

“These provisions of the statutes are mandatory, the language used is plain and unambiguous and requires that all challenges for cause shall first be' disposed of and then the names of twenty-four competent jurors written upon separate pieces of paper and placed in the box, from which eighteen names shall be drawn, and from the list of these eighteen names furnished the parties, they shall strike their peremptory challenges. The trial court erred in refusing to place names of twenty-four competent jurors in the box in accordance with the plain statutory mandate.”

In the case at bar the error of the trial court is patent.

On direct appeal the Highway Commission contends that the trial court erred in refusing to exclude opinions of value given by appellee Stanley and one of his witnesses. It would be of no value to detail the testimony objected to, which is lengthy. Suffice it to say that there was not such comprehensive proof of a substantial nature so as to bring appellees’ evidence within the purview of City of Little Rock v. Moreland, 231 Ark. 996, 334 S. W. 2d 229. Moreover, much of the testimony here adduced is contrary to the standards set out in the first Stanley case, Ark. State Highway Comm. v. Stanley, 234 Ark. 428, 353 S. W. 2d 173. Owing to the necessity of a re-trial for the error previously indicated, we take this occasion to reiterate those principal standards:

“Even the opinion of an expert in the field of land valuation is not substantial evidence if he fails to show a fair or reasonable basis for his conclusion.”

...“‘Asa general rule, the market value of a tract of land cannot be determined simply by estimating the amount of stone or other mineral that it contains and then multiplying that estimate by a fixed price per unit.’ ”

, , “ The ultimate question for the jury is the market value of the land, the price that would be agreed upon by a willing buyer and a willing seller in a transaction at arm’s length. The mechanical process of assigning a retail value to every yard of mineral within the earth does not carry the jury beyond the realm of guesswork. That narrow formula fails to take into account vital considerations such as the cost of excavating the material, the cost of processing it, overhead expenses, the market for the finished product, and so on. In the case at bar the jury had almost no information about these matters. . . . The appellees’ proof left the jury without the facts needed for an answer to this question. ’ ’

For the trial court’s error in refusing appellees a full drawn and struck jury, the case is reversed and the cause is remanded for a new trial.

Bobinson, J., not participating.


text:
    Guynn v. Guynn.
    5-3146
    375 S. W. 2d 656
    Opinion delivered February 10, 1964.
    [Rehearing denied March 16, 1964.]

      House, Holmes, Butter c& Jewel, Paul K. Roberts, Philip E. Dixon, for appellant.

      Tom Haley, for appellee.
   Frank Holt, Associate Justice.

This is a partition proceeding in which the Chancellor awarded appellee’s attorney a fee, taxing it as part of the costs. On appeal appellants contend for reversal that this litigation is an adversary proceeding and, therefore, the court erred in assessing an attorney’s fee as costs.

The appellant, George Guynn, Sr., the appellee, Beth Guynn, and Hugh Guynn upon the death of their father in 1947 were his sole heirs at law. Thus, as tenants in common, each owned an undivided one-third interest in the five-acre homestead. In August, 1961, Hugh and his wife conveyed their one-third interest to appellee. In September, 1961, appellee conveyed to appellant, George Guynn, Sr., an undivided one-sixth interest in these lands. In June, 1962, the appellant, George Guynn, Sr., was judicially declared incompetent and committed to the Arkansas State Hospital. On August 13, 1962, the appellee filed this action for partition of these lands making the appellants, George Guynn, Sr., and his wife, Mabel, defendants.

Appellee alleged in her petition that said lands were not susceptible of division and should be sold and the proceeds divided as the appellants’ and appellees’ respective interests appeared; that appellee’s deed conveying a one-sixth interest in the lands to the appellant, her brother, George, Sr., was secured through undue influence and should be canceled. A Guardian Ad Litem was appointed to defend the interest of appellant, George Guynn, Sr., then a patient at the Arkansas State Hospital. Answers and amended answers were filed by the appellants denying that the lands were not susceptible of division and, also, denying the appellee’s contention as to their respective interests.

Upon trial the appellee presented one witness to the effect that the lands were not susceptible of division and should be sold. The appellants presented no witness and their proof -was limited to cross-examination of appellee’s witness. The appellee and appellants then stipulated that each owned an undivided one-half interest. Thus, the only issue remaining before the court was whether the lands were susceptible of division. The Clmncellor rendered his decree to the effect that appellants and appellee each owned a one-half undivided interest as stipulated and appointed commissioners to determine if the lands should be partitioned or sold. There were no objections by the appellants to this decree. The commissioners unanimously recommended in their report that the lands were not susceptible to an equitable division in kind and that the property should be sold. Thereupon the court entered an order granting the parties fifteen days from January 28, 1963 to file written objections to the report of the commissioners. On March 19, 1963 the court rendered its decree finding no objections had been filed to the commissioners’ report; that the lands should be sold as recommended and that the matter of assessing attorneys’ fees and court costs should be held in abeyance pending sale of the property.

The sale was duly perfected as required by statute. On May 15, 1963 the Chancellor rendered an order of distribution of the sale price of $6,100.00, dividing it equally between appellants and appellee after assessing the costs, including an allowance of $250.00 for attorney’s fee to appellee’s attorney, thus, making appellants responsible for $125.00 of this fee. The appellants filed no objections to any of these numerous proceedings nor to the final order of distribution except that part allowing appellee’s attorney a fee to be assessed as costs.

In urging that this allowance of an attorney’s fee as costs is error appellants rely upon Ark. Stat. Ann. § 31-1825 (Bepl. 1962) which is Act 386 of 1921. In construing this statute we have held that in a partition suit no attorney’s fee can be allowed as costs if it is an adversary proceeding. Lewis v. Crawford, 175 Ark. 1012, 1 S. W. 2d 26; Warren v. Klappenbach, 213 Ark. 227, 209 S. W. 2d 468; Beasley v. Beasley, 224 Ark. 1058, 278 S. W. 2d 100; Reagan v. Rivers, 233 Ark. 518, 345 S. W. 2d 601; Hendrickson v. Duncan, 236 Ark. 722, 370 S. W. 2d 131. We have, also, held that in a partition suit where the proceedings are not of an adversary nature a reasonable attorney’s fee for the plaintiff’s attorney should be assessed and taxed by the court as costs against all the parties according to their respective interest. Ramey v. Bass, 210 Ark. 1097, 198 S. W. 2d 835. There we held that “a contest over the payment of attorneys’ fees would not of itself be sufficient to make the partition proceedings adversary.” In the case at bar, after the stipulation, the allowance of the attorney’s fee is the only real issue.

Where the services of the plaintiff’s attorney in a partition suit result in a benefit to the whole subject matter of the litigation, or his services are accepted and acquiesced in by the parties benefiting therefrom, it is proper for the Chancellor to award an attorney’s fee and tax such as costs in the action. Ramey v. Bass, supra. We think that appellants have benefited from the result reached in the sale of this land and, further, they acquiesced in the partition proceeding except as to the attorney’s fee.

The appellants urge, however, that since a Guardian Ad Litem was appointed for George, Sr., and filed pleadings ill this cause, although they merely adopted the answers of the appellants, this made the proceeding adversary. We do not agree. The appointment of the Guardian Ad Litem and the pleadings filed by him in behalf of his incompetent ward met the minimum requirements of the statute. The Guardian Ad Litem, in requiring strict proof, was meeting the formalities required of him. In Ramey v. Bass, supra, where we approved an attorney’s fee, one of the interested parties was, also, an incompetent.

In the case at bar the court properly awarded an attorney’s fee to appellee’s attorney to be taxed as costs and paid by appellants and appellee according to their respective interests.

We are not unmindful that Act 386 of 1921 is now amended by Act 518 of 1963. However, it is unnecessary to reach a discussion of this amendatory Act under the facts in the instant case.

Affirmed.

       “Hereafter in all suits in any of the courts of this State for partition of lands when a judgment is rendered for partition, it shall he la%vful for the court rendering such judgment or decree to allow a reasonable fee to the attorney bringing such suit, which attorney’s fee shall be taxed as part of the costs in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned.” [Emphasis added.]

       On September 5, 1963 the Chancellor, upon petition of appellants, rendered an order finding appellant, George Guynn, Sr., was discharged from the Arkansas State Hospital on February 22, 1963 as being “mentally competent to manage his affairs.” The Chancellor then authorized and directed the delivery of appellants’ funds from the partition sale.


author: Carleton Harris, Chief Justice.

text:
    McMillin v. Bearden.
    5-3181
    376 S. W. 2d 665
    Opinion delivered February 17, 1964.
    [Rehearing denied April 13, 1964.]

      Smith, Sanderson, Stroud é McClerkin, and Loive, Moore & Webber, for appellant.

      G. W. Loohacloo, Shaver, Tackett & Jones, for appellee.
   Carleton Harris, Chief Justice.

Appellant, George Morehead, on May 1, 1962, was operating a caterpillar motor grader along a portion of what is known as the Boyd Boad, located in Miller County. The grader was the property of appellant, McMillin-Burkett Construction Company, by whom Morehead was employed. The part of the Boyd Boad pertinent to this cause was approximately ten or eleven miles in length, and was being used by gravel trucks to haul gravel from a pit near Genoa to O’. S. Highway 71, where construction work was in progress. Accordingly, this portion of the Boyd Boad was being subjected to heavy traffic, and Morehead was operating the motor grader up and down the heavily traveled portion as a matter of keeping the road in as good condition as possible. Some thirty or thirty-five gravel trucks were being operated on the day in question.

At about 8:00 o’clock A.M., appellee, Henry Bearden, twenty years of age, was driving a loaded gravel truck, and proceeding on the Boyd Road toward its intersection with Highwaj7' .71. The truck was owned by his stepfather, Roy Byrd. Morehead, with his grader traveling toward the pit, was blading the road on his (Morehead’s) left-hand side. Bearden, traveling on his right side of the road, collided almost head-on with the motor grader, the truck striking the right front part of the grader. Suit was instituted by Morehead and McMillin-Burkett, seeking to recover damages for alleged personal injuries, and damage to the grader, respectively. Bearden and Byrd answered, denying liability, and both likewise filed a cross-complaint against appellants, seeking, respectively, damages for alleged personal injuries, and damage to the truck. The parties waived trial by jury, and the cause was tried before the court, sitting as a jury. Thereafter, the court filed a memorandum .opinion, finding, as follows :

“The Court finds without hesitation that there was an abundance of negligence on the part of both George M. Morehead and Henry Ellis Bearden. The evidence preponderantly shows the involved road to have been winding, rolling, rough and very dusty. On this stretch of approximately ten miles, thirty to thirty-five gravel trucks were operating back and forth from the pit. One can reasonably assume that there was also some public traffic on this road, it being of course open to the public and habitated. It is undisputed that when the road was di'3r this batteiy of trucks threw up dense clouds of dust which were bound to seriously hamper the vision of the drivers for some distance ahead. Under these conditions George M. Morehead was operating the grader on the wrong side of the road, in clear violation of a well-known rule of the road. An operator of his 3rears experience should certainty be aware of the probable danger to himself and to others. This fact is especially true in view of Ms operating the grader on the side of the road which belonged to traffic approaching him.

“Sheriff Birtcher estimated the road to be 18 feet wide at the point of impact, and Morehead estimated it to be approximately 20 feet in width. With the grader consuming a¡)proximately 10 feet of the traveled portion, at least the larger trucks would have fairly tight squeeze in passing him at points similar to the point of impact.

“When all of the above recited facts are considered as a whole, it is clearly convincing that Morehead was negligent and that his negligence was certainly a proximate cause of the involved impact.

“Henry Ellis Bearden, by his own testimony establishes his negligence. He was an experienced driver and had been on this particular haul for several weeks. Approaching him was a 10-yard trailer truck and which he says stirred up a terrific amount of dust. As an experienced driver he was bound to know that for some little distance after meeting and passing the other truck he would, for all practical purposes, be blinded to any reasonable vision ahead. In fact he stated that in situations of this kind a driver could tell he was in the road only by the feel of the wheel. In the face of this approaching hazard known to him he estimates his speed to have been approximately 40 miles per hour. Such speed in the face of blinding conditions violated not only the reasonable maximum speed law of the road, it furthermore violated the law requiring drivers to keep their vehicle under such control as to be able to check the speed or stop the vehicle when danger is reasonably to be expected. His approximation of speed is verified by the distance his truck traveled with the wheel assembly knocked out and by the severe damage done the heavy maintainer.

“It is the finding of the Court that both operators were culpably negligent and there is no difference in degree of negligence committed by the two drivers.

“George M. Morehead was the agent, servant and employee of McMillin-Burkett Construction Company and acting within the course of his employment at the time of the impact. The same status existed between Buy Byrd and Henry Ellis Bearden. Therefore the negligence of each driver is chargeable respectively to their employer. None of the parties are entitled to recover in this case. Each of the litigants are chargeable with the Court costs initiated by them.

“Allegations of negligence are based on the facts that (1) the road ivas not kept watered by McMillin-Burkett, and (2) that no warning signs—such as flags, placards or lights—were utilized by the contractor to protect others against the operation of the road maintainer. These contentions are not helpful to Byrd and/or Bear-den. Both had been on the haul several weeks and Avere aware (1) that sprinkling operations had been confined to stretches of road in front of houses and (2) that the maintainer was being used up and doAvn the road to facilitate the haul. They are not in the category of some member of the traveling public Avho might traverse the road AAdiolly unaAvare of the operations then being carried out. The actionable negligence in this case is shown to liaise been confined to Morehead and Bearden.”

Judgment was then entered, denying recoAmry to all parties. Prom the judgment, appellants bring this appeal, and appellees have cross-appealed. Appellants content that the court erred in finding Morehead guilty of negligence, or, if guilty.of negligence, to the same degree as Bearden, and like contentions are presented by appellees.

It is certain that, in holding Morehead guilty of negligence, the court reached one erroneous conclusion, hereafter italicized, namely, that appellant driller “Avas operating the grader on the Avrong side of the road, and in clear violation of a well-known rule of the road.” Ark. Stat. Ann. § 75-423, Sub-section (d), Repl. 1957, proAddes as follows:

‘ ‘ The proAdsions of this act [Act 300 of 1937, regulating traffic on highways, including the so-called ‘Bailes of the Road’] shall not apply to persons, teams, motor ATe-hides and other equipment while actually engaged in work upon the surface of a highway but shall apply to such persons and vehicles when traveling to or from such work. ’ ’

Apparently this provision, or one substantially the same, is contained in the motor vehicle statutes of a large number of the states, and several cases are found relative to some phase of the provision. In McNabb v. De-Launay, 354 P. 2d 290, the Oregon Supreme Court had occasion to comment upon an almost identical statute, as follows:

“ORS 483.032(2) provides that certain enumerated sections of the motor vehicle code, including those generally referred to as the rules of the road, do not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work above, below, or upon a street or highway, but that they shall apply to such persons and vehicles when traveling to or from such work.

‘ ‘ Plaintiff contends that the above-mentioned statute does not apply to Perkins because he was, at the time of the accident, traveling from such work, and was not actually engaged therein.

“The uncontradicted evidence showed that Perkins had dumped a load of hot asphalt about 100 feet away from the point where he was making the turning maneuver. He testified that he moved down the road 100 feet to allow the roller and grader space in which to work. Turning his truck around was a necessary part of his work. * * * Perkins was well within the contemplated protection of the statute.”

In Sturgeon v. Clark, 364 P. 2d 757 (New Mexico), the statute was mentioned, but the exemption not allowed, because the court found that the defendant was not actually engaged in work upon the surface of the highway at the time of the mishap, but was only driving from one point to another. The court said:

“We are clear that the legislature incorporated § 64-15-4(b), N.M.S.A. 1953, into the statute in recognition of the fact that in constructing, repairing and maintaining highways there are circumstances under which men and equipment must be present on the surface of the highway without being held to comply with the rules of the road generally binding. However, while providing for performing necessary work without being in violation of statutes otherwise applicable, they were careful to restrict the exemption to situations where actual work was being performed on the surface. It is not for us to extend the application beyond the clear language used.

“Defendant relies on a number of cases from other jurisdictions, all of which we find easily distinguishable by virtue of the fact that they involved actual work on the surface of the highway. We make mention of only one. Johnson v. Bergquist, 184 Minn. 576, 239 N. W. 772, is a ease where the equipment was standing on the highway with its motor running while the workmen were adjusting the grader blade preparatory to using it on the surface of the highway, when the accident occurred. The court held that under the facts, this constituted work on the surface so as to bring the case within an exemption like that in § 64-15-4(b), N.M.S.A. 1953. This case is as easily distinguished under its facts from the case sub judiee as the others cited by defendant.”

Of course, here, Morehead was admittedly working on the surface of the road. In view of our statute, we think it clear that the mere fact that Morehead was operating his grader upon the left-hand side of the road, was not, in itself, sufficient to make this appellant guilty of negligence.

It is not entirety clear from the trial court’s opinion the extent to which Morehead’s operation of the grader on the left-hand side, in (as was held) violation of a rale of the road, influenced the court in its findings. Certainty, it would appear to have influenced the findings to some degree, for it is emphasized by being mentioned twice. Minus this erroneous conclusion, we do not know whether the court would have still found Morehead guilty of negligence, or whether, if such a finding had been made, appellant would have been found negligent to the same degree (equally negligent with Bearden).

It follows that the judgment on direct appeal must be reversed.

As to the cross-appeal, we think unquestionably that the trial court’s findings were supported by substantial evidence. Admittedly, in traveling toward Highway 71, Bearden, before striking the grader, met a trailer truck which threw up a big cloud of dust. Bearden stated:

“It throwed dust in my face, and the roads were dusty, and anyhow, I had to turn my windshield wipers on to clear the dust, and by the time the dust had cleared, I was right up on McMillin-Burkett’s road maintainor. And the only thing I could think of then was miss the maintainer, and my right rear caught his right front.”

Subsequently, he stated that he could not see to the front at all because ‘ ‘ the dust had blinded me. ” Bearden testified that he was operating his loaded gravel track at a speed of approximately 40 miles an hour when he met the other truck. From the testimonj7:

“Q. What did you do right after 3rou passed the truck!

“A. Well, I had slowed—I mean, in other words, I took my foot off the foot feed to let it slow down where I could see.

“Q. But you. didn’t touch the brake until you saw the maintainer, did you?

“A. I had my foot on the brake, sir, but I . . .

‘‘ Q. Did you apply the brakes—let’s put it this way. Did you apply your brakes before seeing the maintainer?

“A. No, sir, I did not.

“Q. I believe you testified here that it was so dusty that you couldn’t even tell which side of the road you were driving on?

“A. Well, that is true, sir.

“Q. Is that true?

“A. In other words, I mean—

“Q. Could you even see whether you were on the road or not?

“A. Well, there’s certain ways to tell by the feel of the wheel.

“Q. In other words, you were just as blind as though you were driving in the dark without lights, is that right?

“A. Yes, sir.

“Q. You couldn’t even see the shoulders of the road —the ditches?

“A. No sir, I couldn’t see them.

“Q. You took your foot off the gas and rested it on the brake pedal, but didn’t apply the brakes until you saw the maintainer, is that correct?

“A. That is correct.”

Of course, Bearden was familiar with the fact that the maintainer was being operated on the Boyd Road, and had earlier, on the morning of the collision, observed the grader somewhere between one and three miles from the scene of the collision.

As stated, we think there was substantial evidence to support the findings of the Circuit Court, and there is, accordingly, no merit in the cross-appeal.

The judgment is reversed, and the cause remanded for a new trial on all issues.

       Among others, Colorado, Delaware, Florida, Georgia, Idaho, Illinois-, Indiana, Iowa, Kansas, Louisiana, Michigan, Minnesota, Montana, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Carolina, Tennessee, Texas, Utah, and West Virginia.

       Actually, some courts, even before the adoption of such a statute, held that the mere fact that a drag machine engaged in working the road was on the left-hand side, did not constitute negligence. The Georgia Court of Appeals, in the case of Mathis v. Nelson, 54 S.E. 2d 710 (1949), stated:
      “It may often be necessary to work a road machine on the left side of the road, or even in such a position as to completely block the road and, if sufficient precautions were taken to warn approaching motorists, this act could not be deemed actionable. * * * While it might, as a necessary incident to the working of roads, be necessary to proceed otherwise than in the ordinary direction of traffic, there would be no such excuse for failing to have the tractor properly lighted at a time of day when it was still dark.”
      Subsequently, Georgia passed a statute similar to the Arkansas statute.


text:
    Wood v. City of El Dorado.
    5-3141
    375 S. W. 2d 363
    Opinion delivered February 17, 1964.

      Crumpler & O’Connor, Brown, Compton & Prewett, for appellant.

      J. V. Spencer, Jr., for appellee.
   Ed. F. McFaddin, Associate Justice.

This suit involves some of the streets and driveways in Parkview Subdivision to the City of El Dorado. The plaintiffs below, and appellants here, are the original dedicator, Mrs. Marguerite Trull McWilliams, and other parties holding deeds which described some of the property shown as being dedicated streets. The defendant below was the City of El Dorado. Various property owners claiming interests adverse to the plaintiffs intervened and resisted the complaint, claiming that intervenors’ vested property rights would be adversely affected by granting relief to the plaintiffs, and also pleading laches, estoppel, and stale demand. They are listed as appellees here, along with the City of El Dorado.

The plaintiffs sought to have cancelled a plat and dedication of streets and ways that had been filed in 1942. The Trial Court denied any relief to the plaintiffs and this appeal ensued. It was shown that in 1942 Mrs. Marguerite Trull McWilliams (one of the plaintiffs), and other parties, owned as acreage certain property in the City of El Dorado, and decided to plat the property into lots and blocks and offer it for sale as Parkview Subdivision. The plat filed in May 1942 was duly recorded in the Deed Records of Union County; and an instrument of dedication was likewise recorded, dedicating' to the public all the streets, alleys, and drives shown on the said plat. The City of El Dorado, by proper action, accepted the deed of dedication on September 24,1942. On October 25, 1943, an additional dedication was made by Marguerite Trull McWilliams, as the landowner, dedicating a street 40 feet wide through the center of Block “A”. The original plat, along with the dedication of the 40-foot street, was shown in the abstracts of various parties who purchased property in the subdivision; and the intervenors claim, either by direct or mesne conveyances, from the original owners who filed the plat and made the dedication.

In January 1959 there was decided by this Court the case of Wood v. Setliff, 229 Ark. 1007, 320 S. W. 2d 655, involving some of the same streets and driveways in the Parkview Subdivision to El Dorado as here involved. As a result of that case some of the present appellants realized that they were occupying property that was dedicated as public streets and ways according to the said plat of Parkview Subdivision. The present suit was filed on June 20, 1961, to have the original plat and also the so-called “corrected plat” of Parkview Subdivision, can-celled, as filed through mistake, so that the only dedication would be the 40-foot roadway through the center of Block “A”. The effect of a decree for the plaintiffs would be to take from the public and return to the plaintiffs, as their interests might appear, a strip of property 70 feet wide and several hundred feet long lying west of Block “A”, a strip of property 30 feet wide along the entire north side of Block “A”, and also a strip of property 30 feet wide along the entire south side of Block 11 A”

Whatever may have been the intentions, thoughts, and desires of the owners and dedicators in 1942, nevertheless the facts remain: (a) that a plat was filed in 1942 and a dedication made to the public of the streets and ways shown on the plat; (b) that there was an acceptance of the plat by the City of El Dorado; and (c) that there were sales of lots by the owners and dedicators by reference to the said plat. The law is well settled that, when a plat is filed and sale of lots made with reference to it, then the streets and ways shown on the plat become public property. Brewer v. City of Pine Bluff, 80 Ark. 489, 97 S. W. 1034; Mcbane v. City of Wynne, 127 Ark. 364, 192 S. W. 221; and Brown v. Land, Inc., 236 Ark. 15, 364 S. W. 2d 659.

Furthermore, there was a lapse of over eighteen years from the filing of the plat and deed of dedication in 1942 until the filing of the present suit in 1961, claiming a mistake to have been made by the owners and dedicators in 1942. In the meantime, many people had purchased property, relying on the filed plat and deed of dedication. Even if we assume to be true all of the claimed intentions, thoughts, and desires of the dedicators in 1942, still the fact remains that no one misled any of the dedicators. They filed the plat and deed of dedication in 1942, and third persons—the City, the intervenors, and others-—have relied on the plat and deed of dedication. The plaintiffs cannot now be heard in their effort to overcome a unilateral mistake after all these years have passed.

It is urged that the City of El Dorado has not opened all of the streets shown on the plat and deed of dedication, and has thereby allowed some of the appellants to encroach on the streets; hut, as stated in Wood v. Setliff, 229 Ark. 1007, 320 S. W. 2d 655: “. . . the title to the public streets and parkways was in the City of El Dorado and adverse possession could not be acquired against the City. City of Magnolia v. Burton, 213 Ark. 157, 209 S. W. 2d 684.”

Finding no error, the decree is affirmed.

       In September 1943 a plat identical with the one previously men- ' tioned was filed entitled, “Corrected Plat.”

       There was a second case between Wood and Setliff, 232 Ark. 233, 335 S.W. 2d 305, decided in 1960, and involving- this property.

       The plat shows dedication of a strip 50 feet wide, and lying- on the east side of Block “A”; but we understand that this is practically conceded by appellants to have become public property.


text:
    Pittman v. Pittman.
    5-3206
    375 S. W. 2d 361
    Opinion delivered February 17, 1964.

      George E. Pike, for appellant.

      Bridges, Young and Mattheios, for appellee.
   George Rose Smith, J.

It is a familiar rule that when a testator purports to leave A’s property to B and by the same will also leaves other property to A, A cannot claim both his own property and the testamentary gift. He must elect to take one and relinquish the other. McDonald v. Shaw, 92 Ark. 15, 121 S. W. 935, 28 L.R.A. (n.s.) 657; Collins v. Fincher, 235 Ark. 587, 361 S. W. 2d 86. This is a suit brought by the appellee for a construction of her husband’s will, the question being whether she is required to make such an election with respect to certain property mentioned in the fourth paragraph of the will. The chancellor held that no election was necessary.

The testator, Roy Pittman, had an interest in two tracts of land lying in LaGrue Bottoms in Arkansas county. Tract 1 was owned by Pittman and the appellee as tenants by the entirety, consisted of 440 acres, and was the site of a half-acre camp operated by Garland Simpson. Tract 2 was owned by Pittman and his brother Floyd as tenants in common, consisted of 80 acres, and was about three quarters of a mile west of Tract 1. Both tracts had formerly belonged to Storthz Brothers.

Paragraph 4 of the will is really two paragraphs, Avhich read as folloAvs:

“I give, devise and bequeath to my wife, Inona Pittman, for her life, my undivided one-half interest in lands OAvned by myself and my brother, Floyd Pittman, in LaGrue Bottoms, the lands Avere purchased from Storthz Brothers, and I give, devise and bequeath to my Avife, Inona Pittman, the right to cut and sell the merchantable timber from said lands and to retain the purchase price therefor for herself, except I give, devise and bequeath to my nepheAv, Garland Simpson, a half acre out of said lands Avhere the camp belonging to Garland Simpson is iioav located.

“I give, devise and bequeath my undivided one-lialf interest in and to the above described lands, being those lands purchased from Storthz Brothers and Avhich I oAvn together with my brother, Floyd Pittman, to my nephew, Floyd Lee Pittman and HoAvard Pittman [the appellants], share and share alike, in fee simple absolutely, subject to the life estate in my wife and the rights given here thereunder and except the half acre above bequeathed to my nephew, Garland Simpson.”

It is impossible to be certain whether the testator meant to refer to both tracts or only to Tract 2. On the one hand, he describes the land as being owned by him and his brother Floyd. This description applies only to Tract 2. If Paragraph 4 is construed to refer only to Tract 2 no election by the appellee is necessary, because the testator did not attempt to devise property that actually belonged to her.

On the other hand, the will recites that Garland Simpson’s camp is located upon the land in question. Here the reference is to Tract 1, which is the site of Simpson’s camp. If Paragraph 4 is construed td refer to both tracts the appellee must make her election, because in other paragraphs of the will she was given other property that was actually owned by her husband. She would have to decide whether to accept the other property and take only a life estate in Tract 1 or to give up the other property and claim Tract 1 as the surviving tenant by the entirety.

Where the will is susceptible of two interpretations the governing rule is to favor that construction which dispenses with the need for an election. “The first and fundamental rule, of which all the others are little more than corollaries, is: In order to create the necessity for an election, .there must appear upon the face of the will itself ... a clear, unmistakable intention, on the part of the testator ... to dispose of property -which is in fact not his own. This intention to dispose of property which in fact belongs to another, and is not within the donor’s power of disposition, must appear from language of the instrument -which is unequivocal, which leaves no doubt as to the donor’s design; the necessity of an election can never exist from an uncertain or dubious interpretation of the clause of donation. It is the settled rule that no case for an election arises unless the gift to one beneficiary is irreconcilable -with an estate, interest, or right which another donee is called upon to relinquish; if both gifts can, upon any interpretation of which the language is reasonably susceptible, stand together, then an election is unnecessary.” Pomeroy, Equity Jurisprudence (5th Ed.), § 472. “A will is not to be construed to dispose of property belonging to someone other than the testator if it is susceptible of any other construction.” Page on Wills (Rev. Ed., 1962), § 47.13.

Here the testator was mistaken either in saying that he and his brother owned the land or in saying that it was the site of G-arland Simpson’s camp. One mistake seems to be as likely as the other. Thus Paragraph 4 is reasonably subject to two interpretations. In this situation, under the authorities cited, the chancellor was right in construing the language to be a reference to Tract 2 only, for that interpretation makes an election unnecessary.

Affirmed.

Harris, C.J., not participating.


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

text:
    Harvey v. Peters.
    5-3213
    375 S. W. 2d 654
    Opinion delivered February 17, 1964.
    [Rehearing denied March 16, 1964.]

      Donald Poe, for appellant.

      Warren & Bullion, for appellee.
   Paul "Ward, Associate Justice.

This appeal challenges the right of the Arkansas State Board of Pharmacy to deny Maurice Harvey (appellant) a 1963 Pharmacy Permit to operate a drug store in Waldron. The action of the board was sustained by the Pulaski County Circuit Court, and this appeal follows.

Appellant is the owner of said drug store which has been in continuous operation for more than fifty years. Since 1955 he has been a “Licensed Practical Druggist” but he is not now and never has been a “Licensed Registered Pharmacist”. However, until recently appellant has employed a registered pharmacist in his store.

Appellant’s permit to operate his drug store was refused by the board because of his failure to comply with Ark. Stat. Ann. § 72-1017.1 (Repl. 1957). This section, in material part, reads as follows:

“Hereafter no person shall operate a drug store or pharmacy or be issued a Registered Pharmacy Permit unless an Arkansas registered pharmacist is on duty in such drug store or pharmacy a minimum of forty (40) hours per week.”

The facts are not in dispute, and the only issue involved (as stated by appellant) is the constitutionality of the above mentioned section.

Summarily stated, it is contended by appellant that § 72-1017.1 (§ 14 of Act 57 of 1955) is arbitrary and bears no .relation to the public welfare, that it grants a monopoly to. a select few, that it is unfair and discriminatory, and that it therefore violates the due process clauses of the United States and the State Constitutions. In support of the above it is ably and forcefully argued that appellant has had years of experience in running a drug store and filling prescriptions, that he is competent to do so without endangering the public welfare, and that the income from a small town drug store will not justify the expense of a licensed registered pharmacist. However, for reasons hereafter set out, we are unable to agree with appellant and must, therefore, affirm the judgment of the trial court.

Police Power. It has been universally and uniformly held that the legislature has the power, in the exercise of its police powers, to regulate the practice of Pharmacy for the health and general welfare of the public. 28 C.J.S. Druggists % 2 at page 500; 17A Am. Jur. Drugs and Druggists § 13 at page 517; and 54 A.L.R. 719. It is just as well established that such regulations must not be arbitrary, but must be reasonably necessary to protect the public health and welfare.

Legislative History. To properly appraise the issue here presented it will be helpful, we believe, to set out briefly what our own legislature has done to regulate the practice of Pharmacy, including its stated reasons therefor.

The first attempt by the legislature was Act 50 of 1891. The reason for regulation, as expressed in the first two paragraphs, is worthy of note:

“WHEREAS, In all civilized countries it has been found necessary to regulate the traffic in medicines and poisons, and to provide by law for the regulation of the delicate and responsible business of compounding and dispensing the powerful agents used in medicines and

“WHEREAS, The safety and welfare of the public are endangered by the sale of poisons by unqualified and ignorant persons. ...”

Section 1 of the above act, Ark. Stats. Ann. § 72-1014 (Repl. 1957), made it “unlawful for any person not a registered pharmacist ... to conduct any drug store, pharmacy or apothecary shop. ...” Said Section 1 was amended by Act 72 of 1929 (See § 72-1014) to pi’ovide “that, any person or persons not registered pharmacists may own or conduct such a store if he or they keep constantly in their store a registered pharmacist”. Although the legislature revised certain portions of the original Pharmacy Act by Act 535 of 1921, by Act 120 of 1939, and by Act 336 of 1949, it did not see fit to relax the requirement of a licensed registered pharmacist to operate a drug store until the passage of Act 57 of 1955, § 14 of which was hereinbefore quoted — § 72-1017.1. Neither did the legislature in 1959 by Act 92 see fit to modify § 14 of Act 57 of 1955.

Appellant is not a licensed registered pharmacist nor could he be under the terms of said Act 57 because he is not a graduate of “an accredited school or college of pharmacy . . .” as required by § 1 of said Act 57 (§ 72-1007.1).

Thus it appears that for sixty-four years (from 1891 to 1955) drugs could only be dispensed by a licensed registered pharmacist or by someone under his constant supervision. Since appellant does not question the constitutionality (the reasonableness) of the Acts of 1891 and 1929 which required the attendance of a registered pharmacist at all times, it is difficult to understand 'the logic of the contention that it is unreasonable and arbitrary to require his attendance only forty hours each week.

The argument is advanced that since appellant (a practical druggist) is qualified to fill prescriptions when the registered pharmacist (whose presence is required only forty hours each week) is not on duty, then he (appellant) is qualified to fill prescriptions at all times, and so does not need a registered pharmacist at any time. For several reasons we are not convinced by that argument. One, some amount of protection, of the public welfare is better than no protection. Two, it is common knowledge that there is a greater variety of drugs on the market, today than there was in 1891, and more skill and knowledge now are required to dispense them with safety. Three, although a registered pharmacist is not actually present in the store at all times, he could be accessible at all times. Fourth, the result of appellant’s contention, if accepted by us, bodes evil for both him and the public welfare. The legislature would be left with two alternatives. One, it could require the presence of a registered pharmacist (in a drug store) at all times, and this certainly would give appellant no relief. Two, it could allow all drugs to be compounded and dispensed by people with no technical training in a school or college of pharmacy. We do not believe this alternative would be in the best interest of the public welfare. Certainly, there is nothing in the record here to convince us otherwise. It is our conclusion, therefore, that the judgment of the trial court should be, and it is hereby affirmed.

Affirmed.

McFaddin, J., dissents.

Ed. F. McFaddin, Associate Justice

(dissenting). It is my considered conclusion that one of the main purposes of Act No. 57 of 1955 was to create the status of “Licensed Practical Druggists,” and to put them on an equality basis with Registered Pharmacists. In other words, the said Act No. 57 was a “blanketing-in” of long time practical druggists, similar to the so-called “grandfather clauses” in other matters of legislation. There is no need to lengthen this dissent by detailing the various matters that impel me to such conclusion and by pointing out why I think Act No. 57 brings about such result. But it is because I believe that the said Act No. 57 was to place a Licensed Practical Druggist on the same equality basis as that of a Registered Pharmacist that I dissent from the Majority in the present case.


text:
    Ark. State Highway Comm. v. Weir.
    5-3154
    376 S. W. 2d 257
    Opinion delivered February 17, 1964,
    as amended on denial of petition for rehearing March 30, 1964.

      Doioell Anders, Thomas B. Keys, for appellant.

      Jeff Mobley and William R. Bulloch, for appellee.
   Sam Robinson, Associate Justice.

The Arkansas State Highway Commission condemned for highway purposes 15.9 acres of appellees’ dairy farm consisting of about 210 acres. The strip for the highway was taken diagonally across the farm, leaving about 133 acres on the north with no improvements, and about 62 acres on the south with all the improvements, consisting of a nice brick home, a grade A dairy barn, and other buildings necessary for the operation of a grade A dairy. It will be wholly impractical to regularly move cattle from one side of the highway to the other for milking purposes. The facilities on either side are not sufficient in themselves to successfully operate a dairy farm. The usefulness of the farm as a grade A dairy has, therefore, been destroyed.

Appellees have lived on the property and have operated a dairy thereon for about 35 years; they have reared a family and have sent several of the children through college on the proceeds from the dairy. Appellees contend, and introduced evidence to the effect that they have been damaged in an amount ranging from an estimated low of $26,570 to over $88,000. The Highway Commission introduced evidence to the effect that appellees had boon damaged in a sum not exceeding $14,500. The jury returned a verdict in the sum of $30,000.

First, appellant contends that the court erred in not striking the testimony of Mr. Jackson Ross, an expert on real estate values, who testified for appellees. Mr. Ross first fixed a valuation of $94,205.70 on the farm before the taking by computing the profits over a seven year period. He testified to an after the taking value of $40,770, thus showing damages in the sum of $53,435.70; but on motion of appellant, Ross’ testimony on this method of showing damages was stricken.

But be that as it may, Mr. Ross further testified that the farm was worth $320 per acre for the 210 acres, or $67,200 before the taking’, and $40,770 after the taking, thus showing a difference in the before and after value of $26,130. The only testimony, admitted in evidence, showing damages equalling or exceeding the judgment of $30,000 is the testimony of appellees, who claim damages of $82,685. Appellant contends that the uncorroborated testimony of the owners is not sufficient to sustain the judgment, and as authority cites Hot Spring County v. Prickett, 229 Ark. 941, 319 S. W. 2d 213. But that case does not stand for the proposition that, as a matter of law, the .uncorroborated testimony of a landowner is not sufficient to sustain an award for damages. In the Prickett case it was pointed, out that the amount of damages claimed by the landowner, in that case, was a conclusion not supported by facts. It was also pointed out that because the landowner was an interested party, his testimony was not to be considered as being undisputed. Cousins v. Cooper, 232 Ark. 605, 339 S. W. 2d 316. This well known rule simply means that the courts do not have to accept as true the undisputed testimony of a party to the action. It does not mean that the courts must disregard the uncorroborated testimony of a party.

Here, the landowners testified in detail as to how they arrived at the amount of damages they claimed to have suffered—the long, successful operation of the farm as a grade A dairy, along with other details of the improvements, etc. According to that part of Mr. Ross’ testimony admitted in evidence by the court, the landowners had been damaged something over $26,000, and the jury returned a verdict for only $30,000 although the landowners had testified to a great deal larger sum as the damages sustained.

Mr. Ross’ testimony was competent; it is not absolutely necessary that the landowners’ testimony be corroborated; and the evidence is sufficient to sustain the judgment.

Affirmed.