author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    Juanita COOPER et al v Troy COOPER et al
    5-5733
    476 S.W. 2d 223
    Opinion delivered February 21, 1972

      Murphy, Arnold ir Blair, for appellants.

      W. E. Billingsley; By: L. Gray Dellinger, for appellees.
   Carleton Harris, Chief Justice.

This litigation relates to the ownership of a 20 acre tract of land located in Izard County, Arkansas. Appellees are Tursey Cooper, widow of Robert J. Cooper, and all of the heirs at law of Robert J. Cooper except the appellants. Appellants are Juanita Cooper, widow of Leslie Cooper, and the heirs at law of Leslie Cooper. Leslie was a son of Robert Cooper, the latter dying intestate in 1951. Leslie Cooper died intestate in 1968. In their pleadings, appellees alleged that Leslie and Juanita Cooper, who had earlier purchased the 20 acres in question, conveyed said tract to Robert Cooper, but that the deed had never been recorded, and had been lost. It was asserted that Robert Cooper went into possession of the premises at the time of the conveyance, and maintained possession until his death in 1951; that since that time, Tursey Cooper had claimed dower and homestead in the lands, and had paid taxes on same. In their answer, appellants stated that the land was purchased by Leslie Cooper in 1929 and it was denied that Leslie and wife had conveyed the lands to Robert Cooper. Appellants likewise denied that Robert Cooper had acquired any title by adverse possession; to the contrary, it was asserted that Robert Cooper had permissive possession of the property while Leslie and Juanita were in California. At the conclusion of the evidence, both sides moved that the pleadings be considered amended to conform to the proof, including the plea of adverse possession on the part of appellants and appellees. This motion was granted. Thereafter, the trial court entered its decree finding that the greater weight of the evidence supported the contention of appellees, ■and that Robert Cooper was the owner of the twenty acre tract at the time of his death in 1951, the proof reflecting that during his lifetime, title had been perfected to the lands by adverse possession; that the children of Robert Cooper and their descendants became tenants in common of the lands owned by him at the time of his death, subject to the dower and homestead rights of Tursey Cooper. It was found that the contentions and claims of appellants were without merit, and should be denied. From the decree so entered, appellants bring this appeal. For reversal, appellants rely upon four points which we proceed to discuss in the order listed.

It is first asserted that appellees did not establish by competent evidence that Robert Cooper secured from Leslie Cooper, the son, a deed which was subsequently lost. We agree that no lost deed was established, but since the trial court’s decree was based upon a finding that Robert Cooper had acquired title by adverse possession, there is no need to discuss the question of the lost deed.

It is next asserted that the finding that Robert Cooper had obtained title by adverse possession to the 20 acre tract was against the preponderance of the evidence. Under this point, appellants first urge that the original use of the property by the father was permissive, and accordingly, it was necessary that notice of an adverse claim be given by unequivocal acts of hostility. In Bellamy v. Shryock, 211 Ark. 116, 199 S. W. 2d 580, this court pointed out that as between parties holding parental and filial relations, the possession of the land of the one by the other is presumptively permissive or amicable, and, for such a possession to become adverse, there must be some open assertion of hostile title (other than mere possession) and knowledge thereof brought home to the owner. We agree that appellants thus correctly state the law, and the question before us is whether the proof offered by appellees met this requirement. According to Juanita Cooper, in purchasing the land (together with other lands not here involved), Leslie and Juanita found it necessary to borrow $500.00 in order to complete the purchase. Juanita stated that Robert Cooper loaned $300.00 of this amount and her father loaned the other $200.00. She testified that Robert Cooper said that if Leslie and Juanita would let him use the field (located in the 20 acres in dispute) they could “hand the $300.00 back” (at no particular date) and this would be satisfactory, an arrangement to which they agreed.

“Well, Mr. [Robert] Cooper used the field. It didn’t include 20 acres; it was a field inside of this tract of land — just the field — and he planted it in first one thing and another in whatever he chose.”

This was, according to Juanita, the status of the matter until 1938 when Leslie and Juanita went to California. It appears from Juanita’s testimony that they were in and out of California for over 15 years.

“Well, the first time, we just stayed a few months, and then we came back, and we stayed at home for awhile. And then we went back and stayed awhile; then we came back again and stayed awhile; and then we went back later and stayed 15 years.”

She said that in 1940, Leslie’s nephew, Lowell Cooper, was serving as postmaster in the community and built a country store and postoffice, with living quarters, on the 20 acres. While this building was under construction, Lowell and wife lived with Leslie Cooper and his wife who had a home on lands not here involved. She stated that Robert Cooper told her not to execute any deed to Lowell for any part of the 20 acres because “he won’t stay here any time and, if he has got a deed to it, he would sell it to somebody, and we might have a beer joint right here under our nose, and we don’t want that”. Leslie and Juanita subsequently returned to California and resided there approximately 15 years, though the evidence reflects that Leslie returned several times through the years. During that time, Robert Cooper exercised various acts of ownership. Robert Cooper, commencing with the 1940 taxes, paid from that time until his death in 1951, and the taxes thereafter were paid in Robert Cooper’s name until 1969, when the original petition to quiet title was filed. Juanita Cooper testified that she paid the taxes for 1968 in 1969, but that she understood the taxes for that year had been paid twice. When she endeavored to pay the 1969 taxes, she learned that they had already been paid. Juanita testified that she authorized her son, Lonnie, to make the $300.00 payment due Robert Cooper, to Troy Cooper, Robert’s son, and one of the appellees herein, who, in 1957, was managing the properties of his father, but Troy would not take the money, and it has never been paid. Lonnie also testified that upon returning to Arkansas in approximately 1957, (after getting out of the service), he, at the request of his parents, went to the home of Troy Cooper and offered him the $300.00 that had not been paid to Robert Cooper, but he stated that Troy refused to accept it. As to this fact, Troy Cooper testified that Lonnie did come to see him, but not for the purpose of paying back any $300.00 due Robert Cooper. He said that, to the contrary, Lonnie stated that he had a letter from his father and wanted to buy the 20 acres.

A number of witnesses testified on each side, twelve for appellees, of which five were not related; seven witnesses testified for appellants, four of which were not related. The testimony of several of the witnesses offered by appellees was to the effect that Robert Cooper had complete charge of the 20 acres during his lifetime and was recognized as the owner. For intstance, Frank Page of Melbourne, apparently disinterested, testified that he lived on the place for about three years; he rented the building located on the 20 acres from Robert Cooper and paid rent to the latter; he also farmed the land for two years. Page said that for at least two years of the time he (Page) was renting the premises, Leslie lived just across the creek from the store, and that Leslie never indicated to him in any way that he (Leslie) was the owner of the lands, and further, that Leslie never tried to collect any rents from him. Evidence was also offered by both sides to the effect that while Leslie was in California, those renting Leslie’s lands also paid the rent to Robert, but there is no contention but that Robert remitted these rents to Leslie, and never made any claim to any of the son’s property other than the 20 acres. L. D. Lafferty, a disinterested witness, who did some “bush hogging” on the 20 acre tract in 1968, testified that Juanita Cooper told him that Mrs. Robert Cooper (Tursey) was the proper party to see about his plan to build a little park on the 20 acres.

Evidence was offered by appellees to the effect that taxes on a 20 acre tract which had previously been paid in the name of Leslie Cooper, w.ere, commencing in 1941, paid in the name of Robert Cooper, but they were paid under a part description, and this continued from 1941 until 1967. Appellants contend that taxes so paid are not evidence of ownership of the lands, the description being void. We agree with that contention, but we do think that the evidence was admissible as a matter of calling Leslie’s attention to the fact that his father was evidently making claim to this 20 acre tract. Let it be remembered that Leslie had other lands upon which Robert was paying taxes (while the son was in California) but these taxes were consistently paid in the name of the son. It has already been mentioned that Leslie was back in the community from time to time. The record does not disclose whether he went to the courthouse, but since it appears from the testimony that he was in Arkansas for as much as a couple of years, at least on one occasion, it is logical that he would have been paying taxes on his own property and would have noticed the fact that a 20 acre tract, formerly in his name, had been changed.

Several witnesses also testified that the general reputation in the community was that Robert Cooper owned this 20 acres, and appellants contend that this evidence was inadmissible. We agree that the testimony was not admissible as a matter of establishing title to the property, but we think it was admissible to show that Robert Cooper’s acts of ownership were so notorious as to leave the distinct impression that his possession was adverse.

As far as definite recognition by Leslie and Juanita Cooper of the claim of Robert Cooper to this 20 acres is concerned, one circumstance adds cogently to the contention of appellees. In December, 1929, Leslie and Juanita Cooper mortgaged their property to the Bank of Melbourne and the mortgage included the 20 acres here under discussion. In 1934, a mortgage was given to the Federal Land Bank by Leslie and Juanita, and this mortgage also included the 20 acres. However, in February, 1959, a deed of trust from Leslie and Juanita was given to the Bank of Melbourne and the 20 acres in question were not included in the deed of trust. Juanita Cooper was unable to explain why this tract was not included, “I don’t know the reason why”. It is also curious that over 15 years passed before Leslie and Juanita tendered the $300.00, which they said was due Robert Cooper; in fact, the latter had been dead for several years. Since the early part of the 15 year period covers a time of general prosperity, it would appear that this sum of money could have been earlier paid. We are of the view that appellees offered sufficient testimony to establish that the possession of Robert Cooper was open, hostile, and adverse to the title of Leslie and Juanita Cooper and was sufficient to bring that fact home to Leslie and Juanita.

Appellants assert, that even though this court finds that adverse possession was established by Robert Cooper, appellants in turn re-acquired title to the land in question by adverse possession. This claim is based on a contention that they used this 20 acres as pasture for their cattle. They assert that this use commenced in 1957, and that a fence on the east separated the tract from lands of Lonnie Cooper; on the north there was a fence along the south right of way of Knob Creek Road, with Lonnie Cooper’s lands being north of the road; on the south there was Knob Creek, separating other lands of Juanita Cooper from the 20 acre tract, there being no usable fence between Juanita’s lands and the 20 acres, apd on the west were the lands of Lonnie Cooper and R. J. Blankenship. Appellants state:

“Thus, the Creek forms an effective boundary of lands claimed by Appellants along with fence and road on the north and fence on the east.”

Various witnesses testified that they had seen cattle on the tract after 1957, and appellants say that since no appellee claims to have had cattle on this 20 acres since that time, it has been established that the land was used solely by them, but there is also testimony that the fences were “sorry” and not sufficient to keep cattle from roaming to the 20 acres from other properties. The grazing of the cattle on the 20 acres was by far the main fact testified about, and the principal one relied upon by appellants. Two persons testified that they obtained permission from Leslie to remove gravel from the 20 acres, one witness stating that this occurred in 1956 and 1969, the other stating that it occurred in 1964. Juanita also testified that she had mended fences around the acreage in dispute. This pretty well was the sum total of appellant’s evidence. However, the transcript reflects that appellees were also exercising acts of ownership during this period.

We do not think it was established that appellants used this land for more than seven consecutive years, or that their use was exclusive, or adverse to the interests of appellees and, in fact, the grazing of livestock over land, while it should be considered with other acts of dominion, is not of itself sufficient to establish adverse use. See Nall v. Phillips, 213 Ark. 92, 210 S. W. 2d 806; nor do we consider the other acts of asserted ownership to be sufficient to establish this claim. However, were it otherwise, appellants still could not prevail, for we have held on numerous occasions that the possession of one tenant in common is the possession of all tenants. Ueltzen, et al v. Roe, 242 Ark. 17, 411 S. W. 2d 894, and cases cited therein; it is also well established that in order for the possession of a tenant in common to be adverse, it is necessary for him to bring home to his co-tenant knowledge of his hostile claim by acts so notorious and unequivocal that notice must be presumed; Ueltzen, et al v. Roe, supra, and cases cited therein. Certainly, the quantum of proof was not sufficient to establish this fact. On the whole case, it would appear that appellees presented a much stronger and persuasive case in support of their contentions than did appellants. It must also be remembered that where witnesses outrightly contradict each other and testify to a totally different set of facts, the chancellor, who sees and hears the testimony, is in a much better position to determine which witnesses are telling the truth.

Finally, appellants state that in event the court should hold with appellees, the 20 acre tract should be partitioned since if is not adjacent to nor contiguous with the other acreage which was owned by Robert Cooper, was never used as a home by either Robert or Tursey, and is not a part of the widow’s homestead. We agree that the testimony reflects that the 142 acres which was owned by Robert Cooper, and the 20 acres are two separate and distinct farms, and it would certainly appear that the property is not susceptible of division into the minute interests of the numerous heirs. Accordingly, we agree that the 20 acres should be sold under order of the court with the widow’s dower interest determined by the court and awarded from the proceeds. In all other respects, the decree is affirmed.

It is so ordered.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. It seems to me that both the chancellor and the majority have overlooked the quantum of proof essential to the establishment of title in a father by adverse possession against a son who is the holder of the record title. Because I think that appellees failed to meet their burden of proof, I dissent. This burden requires more than a mere preponderance, but it is clear that the chancellor found no more. The treatment of the matter in the majority opinion also seems to rest upon that premise. Our review might be so limited, had the chancellor found that the burden actually imposed upon appellees had been met.

In such a case the parent must sustain his proof of adverse possession by stronger evidence than is required in ordinary cases. Bellamy v. Shryock, 211 Ark. 116, 199 S. W. 2d 580; Staggs v. Story, 220 Ark. 823, 250 S. W. 2d 125. It was described as a heavy burden in McGuire v. Wallis, 231 Ark. 506, 330 S. W. 2d 714. There we reversed the decree of the trial court because we found that this burden had not been met. I find it impossible to draw any real distinction between this case and that. There, the adverse claimant sought to establish that his father’s possession had been adverse to other heirs of the claimant’s grandfather. It was pointed out that the father was in charge of the farm, managing it for his own benefit, paying taxes, and paying the installment upon the mortgage debt. Such conduct was held insufficient to show adverse possession against a cotenant. I submit that it was likewise insufficient to show adverse possession against a son.

The majority correctly states that the possession as between those in parental and filial relationship is presumptively permissive and that before it becomes adverse, there must be open assertion of a hostile title, other than possession, which is brought home to the owner. The knowledge of intention to hold adversely, as between close relatives, seems to be “full knowledge.” Armstrong v. Armstrong, 181 Ark. 597, 27 S. W. 88. Until the adverse holding is declared and there is notice to the owner of the change in the character of the possession, it does not become adverse and the statute does not begin to run. Bailey v. Martin, 218 Ark. 513, 237 S. W. 2d 16. A hostile attitude must have first been brought to Leslie Cooper’s attention. Mayfield v. Smith, 201 Ark. 603, 146 S. W. 2d 715. I have tried in vain to ascertain from the record and from the majority, opinion just when it can be said that a presumptively permissive possession became adverse.

It must be remembered that in this case, the father not only collected rents on the particular 20 acres, he also collected rents on other lands, admittedly owned by the son, according to Frank Page, a tenant over a period from 1947 to 1951. The original possession was alleged to have originated on the day of the purchase by Leslie in December 1929 and continued until R. J. Cooper’s death in 1951. There seems to have been absolutely nothing different about its character during all these years.

At the time of the purchase Leslie Cooper and his wife undertook the payment of a debt to the Federal Land Bank upon which there was a balance of $762.84, secured by an existing mortgage which included this land, and gave a mortgage to the Bank of Melbourne on December 24, 1969. On February 1, 1934, they gave a mortgage including the land to the Land Bank Commissioner. Juanita Cooper’s testimony that R. J. Cooper endorsed the note at the Bank of Melbourne is not contradicted, and she testified that she and her husband paid this note in 1934 and she exhibited a release deed for that mortgage. Nor is there any attempt to contradict her testimony that she and her husband paid the debts secured by the Federal Land Bank and Land Bank Commissioner mortgages. There was really no attempt to contradict her testimony that at all times she and Leslie Cooper were in California, R. J. Cooper collected the rents from their tenants and paid their taxes. While I realize that the testimony of an interested party cannot be taken as uncontradicted, still I find no excuse for appellees not having sought to show otherwise or to offer some reason for being unable to do so, if these were not the facts. It also seems strange that no one ever asked Leslie to give a deed to this 20 acres either to his father or to his mother after the father’s death.

The majority places far too much emphasis on the change in land description on the tax books. Prior to the 1941 tax book, it is clear that the 20 acres were included in a valid description by government survey calls with other lands owned by Leslie. At a time when he was in California, someone penciled through the calls and listed in Pencil “Part NE SE, 20” acres, carried in the name of R. J. Cooper, and this entry was continued up until 1969. Just now and when this can be said to have come to Leslie’s attention, I do not know, and I submit that the majority is engaging in the rankest kind of speculation to say that it did. Appellees’ witness, Frank Page, put the interval when Leslie Cooper was in Arkansas for some extended period of time as being between 1947 and 1951, during which time Page paid rents on this 20 acres and other lands owned by Leslie to R. J. Cooper, not Leslie. It is reasonable to assume that if R. J. Cooper was collecting the rents, he was also paying the taxes.

Furthermore, Leslie Cooper certainly cannot be charged with notice, much less knowledge, of a patently void and indefinite description on the tax books. One of the purposes of requiring a proper description on the tax books is to inform the taxpayer what property is taxed and a description such as the one used here does not properly identify any land because the owner cannot know from this description what lands were assessed as his, nor whether the land of others might be included in the assessment. American Portland Cement Co. v. Certain Lands, 179 Ark. 553, 17 S. W. 2d 281. In this connection, there is no evidence that the tax book description on Leslie’s land was changed. An acreage change is the only change indicated on the description of Leslie’s land, which was according to government survey calls. This being the case, the number of acres set opposite the description is of no significance. Plant v. Sanders, 209 Ark. 108, 189 S. W. 2d 720. There is not even any evidence that the reduced acreage figure appeared opposite the description of Leslie’s land in tax books for year subsequent to 1941.

Because I think that appellees failed to meet their burden of proof, and because I think that the chancellor clearly did not require them to meet the burden imposed, I would reverse the decree.

      It is not clear which of the appellees paid these taxes, but they were paid in the name of Robert Cooper.

      From the testimony of Troy: “Fie come to my house and said he got a letter from Leslie wanting to come back and he wanted to buy that piece of land. I said, ‘Lonnie, the way that is set up, we made an agreement with Garland to move down there and take care of my mother for the use of this land.’ And I said, ‘I couldn’t afford to try to tear that up for she has got a home and as long as she is satisified and as long as Garland is satisfied, I am willing to let it go.’ But I said, ‘If, and it is not time to settle the estate, that would give somebody else a chance to buy the other.’ And I says, “You go on back home and when the time comes, I think Leslie should have a chance at this and I will be for him buying the land; if it is all right with the rest of them, I am for it, but it is not time to settle this now.’ I said, ‘Lonnie, it don’t make any difference, that is just the way it is. We made that agreement and, if we was to go in there and sell part of his land off, Garland wouldn’t be satisfied and it wouldn’t be right and he wouldn’t stay there with mother and. as long as they are satisfied, let them alone.’ ”

      There are some 20 different interests shown in the property ranging from a l/40th interest to a l/5th.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Emma ECKERT Heirs v. Hewitt C. HARLOW, Executor
    5-5793
    476 S.W. 2d 244
    Opinion delivered February 21, 1972

      Dan McCraw, for appellants.

      Wood, Smith ir Schnipper, for appellee.
   Carleton Harris, Chief Justice.

This litigation relates to the construction of the residuary clause of the will of Charles E. Hinz, who died in Garland County on March 8, 1970. The will was executed on December 24, 1956, and the clause in question leaves all property to Leo M. Hinz, a brother, and Emma Eckert, a sister, share and share alike, (except for 20 shares of common stock in Glenwood Minerals Co., which was left to Hewitt C. Harlow). Emma Eckert predeceased Charles E. Hinz, and on the death of the latter, Harlow, executor of the estate, petitioned the Probate Court of Garland County to construe the clause, particularly as to the effect of the demise of Emma Eckert prior to that of the testator. Interested parties, in addition to Leo Hinz, are two other sisters, two other brothers, three nephews, and two nieces. Thereafter, the probate court entered its order holding that the bequest of one-half of the residuum to Emma Eckert lapsed and the bequest passed as intestate property to be distributed to the heirs at law of Charles E. Hinz, one-fifth to the surviving brothers and sisters, and one-twenty fifth to each of the five children of Emma Eckert. From the order so entered, comes this appeal. For reversal, it is simply asserted that the court erred in holding that the devise to Emma Eckert lapsed.

In passing Act 303 of 1969 (Ark. Stat. Ann. § 61-151 [Repl. 1971]), known as the Inheritance Code of 1969, the General Assembly lifted two sections from the Uniform Property Act (never adopted in this state), which became Ark. Stat. Ann. §§ 61-151, 61-152 (Repl. 1971). Section 61-151 reads as follows:

"When any property is limited, mediately or immediately, in an otherwise effective testamentary conveyance, in form or in effect, to the heirs or next of kin of the conveyor, or to a person or persons who on the death of the conveyor are some or all of his heirs or next of kin, such conveyees acquire the property by purchase and not by descent.”

Act 303 abolished the doctrine of worthier title, and appellant says this action and these other provisions of this act (303) had the effect of preventing devises in a will to persons who thereafter predeceased the testator, from lapsing, and passing (under the laws of descent and distribution) as though the testator died intestate; that section 61-151 not only prohibits intestacy in situations where the doctrine of worthier title would apply, but also covers a wider range of wills.

It is not necessary that we discuss all of appellants’ arguments, for we do not even agree that the wording of § 61-151 would permit the interpretation sought by appellants. It will be noted that the provisions of the section do not take effect until the death of the testator, and, of course, Emma Eckert could not have been an heir of the testator at the time of his death — for she had already died. Of equal or greater importance is the fact that § 60-410 (Repl. 1971), a part of the Probate Code of 1949, was not repealed by Act 303, though numerous other statutes were repealed. Section 60-410 provides that, unless a contrary intent is indicated, a devise or bequest to a descendant who dies before the testator shall not lapse if that descendant leaves a child “natural or adopted”, but shall vest in such child or descendant of the deceased devisee. We think it is very significant that this section was left unchanged.

Of course, we have held dozens of times (except under the circumstances mentioned in § 60-410) that a legacy or devise lapses when a devisee or legatee dies before the testator. In Christy v. Smith, Adm’r, 226 Ark. 289, 289 S. W. 2d 885, this court said:

“Our rule appears well settled that a legacy or devise lapses when the legatee or devisee died before the testator. There is but one exception to this rule and that is where the legacy or devise is to a child or other descedent of the testator, § 60-410 Ark. Stats. 1947 Supp.”

This holding was again reiterated in Scholem v. Long, 246 Ark. 786, 439 S. W. 2d 929 (1969).

From what has been said, it follows that the Garland County Probate Court properly construed the section of the will under discussion.

Affirmed.

      The nephews and nieces, who gave notice of appeal, are the children of Emma Eckert.

      Sub-section b of § 60-410 reads as follows: “AVOIDANCE OF FAILURE OF DEVISE WHEN DEVISEE DIES BEFORE TESTATOR. Unless a contrary intent is indicated by the will, whenever property shall be devised to a child, natural or adopted, or other descendant of the testator, either by specific provision or as a member of a class, and such devisee shall die in the lifetime of the testator, leaving a child, natural or adopted, or other descendant who survives such testator, such devise shall not lapse, but the property shall vest in the surviving child or other descendant of such devisee, as if such devisee had survived the testator and died intestate.”


author: George Rose Smith, Justice.

text:
    Leonard H. MOONEY v. Anton J. SKOUMAL et ux
    5-5755
    476 S.W. 2d 237
    Opinion delivered February 21, 1972

      Patterson if Patterson, for appellant.

      Williams if Gardner, for appellees.
   George Rose Smith, Justice.

In 1969 the appellant, a contractor, built a dwelling house for the appellees for an agreed contract price of $24,000. Within less than a year after the completion of the house the appellees brought this suit to require the appellant to correct some twenty-nine defects in the structure. The trial eventually resulted in a decree for damages rather than in one for specific performance. Both parties have appealed from a decree awarding $2,500 damages to the appellees.

For reversal the appellant first contends that there was an accord and satisfaction, in that the appellees paid in full the last installment on the contract price, at a time when the sufficiency of the appellant’s performance was in dispute. Widmer v. Gibble Oil Co., 243 Ark. 735, 421 S. W. 2d 886 (1967). Upon this point Mr. Skoumal denied that the payment was intended to be a final settlement of the controversy. Moreover, the most serious defect in the construction — a weakness in the foundation which caused a wall to crack badly — did not manifest itself until some time after the asserted settlement. The appellant himself recognized the existence of a one-year warranty in favor of the owners; so it is evident that the settlement did not bar the plaintiffs’ cause of action.

Secondly, the appellant argues, on the basis of his own testimony, that houses frequently shift and settle without fault on the part of the builder, and consequently he should not be held responsible for that defect in this case. Here the specifications required the footings to be of designated dimensions and to be reinforced with steel. The chancellor was not required to accept the view that the serious crack which developed was not attributable to any fault on the part of the builder.

The remaining arguments on appeal and cross appeal are, on the one hand, that the award of $2,500 is too liberal and, on the other, that it is inadequate. There was competent proof on behalf of the plaintiffs that would have justified an allowance of about $3,300. That proof was disputed by the defendant. After studying the record we cannot say with confidence that the chancellor’s decision is contrary to the preponderance of the evidence.

Affirmed.


text:
    Carla Faye DOTY v. Sammy Lee MORRISON
    5-5768
    476 S.W. 2d 241
    Opinion delivered February 21, 1972

      Daily, West, Core ir Coffman, for appellant.

      Theron Agee, for appellee.
   George Rose Smith, Justice.

This is a child custody case involving the parties’ three-year-old son, Shohn Lee Morrison. When the divorce decree was rendered on May 20, 1969, the chancellor awarded custody of the child to the mother, now Mrs. Doty. The father was granted visitation rights “at reasonable times and places” and specifically for one day each weekend, from 9:00 a.m. to 5:00 p.m., on alternating Saturdays and Sundays. After both parties had remarried and acquired homes of their own the father filed the present petition, asking for additional and more specific visitation rights.

After an extended hearing, at which eleven witnesses testified, the chancellor entered a decree which, among other provisions, awarded the father the following rights of visitation: He is to have the child at his home from 5:00 p.m. on Friday to 5:00 p.m. on Sunday of the first weekend in every month. On other weekends the previous provision for nine-to-five visits on alternating Saturdays and Sundays is continued in effect. Morrison is also to have' the child during the first week in July and the first week in August and to have him on two of four specified holidays in each year.

In seeking a reversal the appellant mistakenly invokes the rule that the law does not favor divided custody of a very young child. Counsel cite Sindle v. Sindle, 229 Ark. 209, 315 S. W. 2d 893 (1958), and Aaron v. Aaron, 228 Ark. 27, 305 S. W. 2d 550 (1957). Those cases involved a true division of custody. In Sindle the father was awarded custody during the months of March, July, and November. In Aaron the father was awarded custody for more than four months during the year. It is impossible to lay down an inflexible distinction between visitation rights and a division of custody, both of which may take many forms, but we think it clear that the rights vested in the father in the case at bar properly fall'in the category of visitation rather than in that of a divided custody. See McFadden v. McFadden, 206 Ore. 253, 292 P. 2d 795 (1956); Patrick v. Patrick, 17 Wis. 2d 434, 117 N. W. 2d 256 (1962).

The appellant’s two points for reversal both assert that the decree is.against the preponderance of the.evidence. The testimony, mostly given by the parties themselves and by their relatives, is so frequently in irreconcilable conflict that the chancellor necessarily could accept only parts of it as being true. We did not have his invaluable opportunity to observe the witnesses as they testified. Moreover, as we said in Wilson v. Wilson, 228 Ark. 789, 310 S. W. 2d 500 (1958): “We know of no type of case wherein the personal observations of the court mean more than in a child custody case.” A detailed narration of the testimony in this case would, on the one hand, be of no value as a precedent and might, on the other hand, even be a disservice to all concerned by publicizing charges and countercharges that ought to be finally laid at rest. It must suffice for us to say that we are not convinced by our study of the proof that the decree is against the preponderance of the evidence.

The appellant’s request for an additional attorney’s fee is denied.

Affirmed.


author: Lyle Brown, Justice.

text:
    Bonnie MARTIN et al v. STATE of Arkansas
    5660
    476 S.W. 2d 235
    Opinion delivered February 21, 1972

      Donald Poe and Donald Goodner, for appellants.

      Ray Thornton, Attorney General; Jimmy Patton, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellants Bonnie Martin and Willard Boling were convicted of the felonious killing of a calf with intent to steal. Ark. Stat. Ann. § 41-3917 (Supp. 1971). Appellants advance five points for reversal, which will be enumerated and discussed in the order presented.

Point I. The trial court should have directed a verdict for insufficiency of the evidence. On November 22, 1970, John Watkins, a cattle raiser, went to his pasture to feed his herd around 4:00 p.m. Two calves did not come to the feeding area and upon investigation they were found fatally shot at close range with what appeared to be a 22-caliber gun. Sheriff Franchiseur was forthwith summoned to the scene, arriving around 6:30 p.m. He found a 22-caliber expended cartridge in the immediate vicinity of the calves. The calves were taken from the pasture to the home of a nearby resident. The sheriff placed the scene under surveillance, concealing himself and his car from view. By then it was dark. A pickup truck shortly parked on the road near the pasture fence. Appellant Boling entered the pasture and went directly to the spot where the calves were found. He searched the area with a flashlight. The sheriff approached Boling and the two men went to the pickup truck on the road. Appellant Martin was in the truck. There the sheriff obtained a 22-caliber rifle. From there the appellants, in company of the sheriff, went to the neighboring house where the calves had been taken by the prosecuting witness. In statements given to the sheriff by both appellants they said they had been in the area hunting fox and had shot one in that vicinity; and that they were searching for a fox which they were sure had been hit by their shots. The rifle, the cartridge case found at the scene, and other cartridges obtained for sample shooting by the sheriff, were turned over to Captain Paul McDonald, ballistics expert with the Arkansas State Police. He testified that the cartridge cases supplied him were fired by the evidence weapon. He further testified that a bullet removed from one of the calves was fired by the same weapon. It was also shown by the State that when a bullet is fired from the subject weapon the cartridge will expend itself on the ground just under the gun. There was also evidence that one of the calves sustained a powder burn.

Testing the State’s testimony above abstracted for sufficiency, we find it was more than ample to make a case for the jury. We shall shortly discuss the admissibility of the gun, the ballistic exhibits, and the statements of appellants.

Point II. The gun, shells, and statements introduced over appellants’ objections constituted reversible error, they having been obtained without a search warrant or waiver. As to the gun and shells, the testimony of appellant Boling corroborates the testimony of the sheriff. Sheriff Frachiseur’s testimony was that he inquired at the truck if the appellants had a gun; that the answer was in the affirmative; and that one of the appellants reached in the truck, got the gun, and gave it to the sheriff. Appellant Boling testified that the sheriff inquired about a gun and that Boling got the gun out of the truck and handed it to the sheriff. A voluntary invitation or consent to a search or seizure waives the well known immunity rule. Williams v. State, 237 Ark. 569, 375 S. W. 2d 375 (1964).

As to the signed statements made by appellants, the sheriff said he advised them of their rights before they made the statements. There was nothing incriminating in the statements; in fact they asserted an alibi. The appellants did not deny making the statements, nor did they say they were involuntary; in fact they said they gave them upon the invitation of the sheriff. They did not agree that the sheriff gave them all the Miranda warnings; however, that merely raised a question of fact for the trial court. Reviewing the record on the circumstances surrounding the statements we think the trial court committed no error in admitting them into evidence.

Point III. The trial court erred in permitting the prosecuting attorney to ask questions of a witness on rebuttal which had been covered in chief. Appellants do not point to any particular testimony which they think falls within the category of the recited objection. We do find where the court permitted the repetition of certain testimony on a point which one juror said was not clear to him. We find no abuse of the broad discretion in this respect which rests with the trial judge. Bobo v. State, 179 Ark. 207, 14 S. W. 2d 1115 (1929).

Point IV. The trial court erred in refusing to set aside the verdict and grant a new trial. At the hearing on the motion for a new trial the wife of appellant Boling testified that she saw the prosecuting witness talking to a juror during a recess in the trial. The juror testified that he did not know the prosecuting witness; that he did not recall having a conversation with the prosecuting witness; and that if perchance there was a passing conversation it had nothing to do with the trial. He stated emphatically that he had no conversation with anyone about any phase of the trial. Mrs. Boling did not pretend to have heard any of the conversation to which she referred. The prosecuting witness testified that he did not know the juror and that he did not discuss the case with him; in fact he said he did not recall having any conversation with the juror in question. In Rice v. State, 216 Ark. 817, 228 S. W. 2d 43 (1950), a bailiff was said to have made an improper remark to the jury while the jury was deliberating. In that case the trial court found the point had no merit and we affirmed. We said the trial court had a wide discretion in dealing with a situation of that nature. We cannot say the trial judge in the instant case abused his discretion.

Point V. The court erred in refusing in toto the instructions proffered by the defendants. It is not contended that any instruction given by the court was in error, nor is it asserted that the court failed to instruct the jury on any material point in the case. We have examined the court’s instructions and conclude that he covered every essential phase of the case. An examination of instructions offered by appellants reveals that some of them are slanted, some of them are not correct statements of the law, and some are repetitive.

Affirmed.


text:
    PLASTICS RESEARCH and DEVELOPMENT CO. et al v. Ruby Nell GOODPASTER
    5-5838
    476 S.W. 2d 242
    Opinion delivered February 21, 1972

      Dobbs, Pryor ir Hubbard, for appellants.

      Wiggins ir Christian, for appellee.
   Lyle Brown, Justice.

In this workmen’s compensation case claimant-appellee, Ruby Nell Goodpaster, was awarded eight months temporary total disability. The appeal of the employer, Plastics Research and Development Company, and the carrier, Houston General Insurance Company, is based on the single assertion that there was no substantial evidence to support the award.

According to claimant’s evidence she was, in February 1968, working on the “topcoat line” for Plastics Research. It was her job to take fishing lures from a box on the floor and clip each one on a revolving chain. The chain carried the lures into a paint container where the last coat of paint was applied. The attaching of the lures necessitated reaching forward and slightly above shoulder level. It was in February 1968 that she said she began to experience pain in her left shoulder blade each time she extended her arms to attach a lure. She obtained some medical treatment “off and on” for several months but continued with her job. She asserted that the pain struck her right shoulder in February 1969 and continued intermittently until the job played out in November of that year. During that time she was under the treatment of Dr. Hoge. On December 19, 1969, claimant was hospitalized, so the doctor testified, with a thoracic outlet syndrome. The top rib on her right side was removed. Dr. Hoge testified that the hanging of the lures on the line caused an aggravation of the preexisting condition and that the aggravation, which he said originated in February 1969, created the need for the surgery. The commission awarded temporary total disability from the time claimant entered the hospital and to continue for six months following the operation on February 19, 1970.

The claim was thoroughly contested and in fact there was medical testimony that the problem was not job related. However, the evidence we have abstracted was substantial and the commission elected to follow the testimony of Dr. Hoge. The burden of appellants is heavy — they must convince the court “that fair-minded men could not reach the conclusion arrived at by the commission.” Hall v. Pittman Construction Co., 235 Ark. 104, 357 S. W. 2d 263 (1962). On appeal we are concerned, not with the weight of the evidence or credibility of witnesses, but with whether there is any substantial evidence to support the commission. Reynolds Metal Co. v. Robbins, 231 Ark. 158, 328 S. W. 2d 489 (1959). We have also long been committed to the rule that doubtful cases are resolved in favor of the claimant. Boyd Excelsior Fuel Co. v. McKown, 226 Ark. 174, 288 S. W. 2d 614 (1956).

Affirmed.


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

text:
    J. H. MERRIOTT v. Earl WHITSELL
    5-5727
    476 S.W. 2d 230
    Opinion delivered February 21, 1972

      Hobbs é- Longinotti, for appellant.
    No brief for appellee.
   John A. Fogleman, Justice.

The circuit court dismissed appellant’s action against appellee, who was alleged to be a nonresident motorist involved in a collision in Arkansas with a motor vehicle owned by appellant. The order of dismissal for want of prosecution was based upon the circuit judge’s holding that appellant had failed to obtain service of process upon appellee. We find that this action constituted reversible error.

The allegations of the complaint, which was filed May 18, 1970, bring the action within the scope of Ark. Stat. Ann. § 27-2502Cl(c) (Supp. 1971). While the summons issued does not appear in the record, we find the affidavit of one of appellant’s attorneys reciting that, on or about the second day of July, 1970, he mailed a copy of the summons and complaint to appellee at 682 Westphal Avenue, Columbus, Ohio, by registered mail, but that appellee refused to accept the missive when delivered, and that it was returned to the affiant. An envelope, addressed to appellee at the address given in the affidavit and bearing the return address of appellant’s attorneys, postmarked July 2, 1970, was incorporated into the affidavit. It bore notations indicating that it was transmitted as registered airmail for delivery to the addressee only, with return receipt requested, and returned to the sender for the reason that it was refused.

Appellant relies upon our version of the Uniform Interstate and International Procedure Act, Act 101 of 1963 [Ark. Stat. Ann. §§ 27-2501 — 27-2507 (Supp. 1971)], to sustain the service in this case. He now contends that the service is in full compliance with § 27-2503, which in pertinent part provides:

A. Manner and proof of service.
1. When the law of this State authorizes service outside this State, the service, when reasonably calculated to give actual notice, may be made:
# # #
(c) by any form of mail addressed to the person to be served and requiring a signed receipt;
.y. .y. ,y. ^ W TT
2. Proof of service outside this State may be made by affidavit of the individual who made the service or in the manner prescribed by the law of this State, the order pursuant to which the service is made or the law of the place in which the service is made for proof of service in an action in any of its courts of general jurisdiction. When service is made by mail, proof of service shall include a receipt signed by the addressee or other evidence of personal delivery to the addressee satisfactory to the court.

We agree with appellant that one, who is subject to the jurisdiction of the courts of this state under the act, cannot defeat the jurisdiction by the simple expedient of refusing to accept a registered letter. The avoidance of authorized service of proper process by a wilful act or refusal to act on the part of the defendant would create an intolerable situation and should not be permitted. Creadick v. Keller, 35 Del. 169, 160 A. 909 (1932); Cherry v. Heffernan, 132 Fla. 386, 182 So. 427 (1938). See also, Lendsay v. Cotton, 123 So. 2d 745, 95 A. L. R. 2d 1029 (Fla. App. 1960); Paxson v. Crowson, 47 Del. 114, 87 A. 2d 881 (1952). Even so, there is a defect in the service of process that appellant cannot overcome. In order to be valid, service must be made by one duly authorized. Hughes v. Martin, 1 Ark. 386. The United States District Court for the Eastern District of Arkansas has held that the attorney for the plaintiff is not a proper person to serve process under the act. Davis v. Triumph Corp., 258 F. Supp. 418 (1966). We agree. The section of the statute involved contains the following provision:

B. Individuals eligible to make service. Service outside this State may be made by any individual permitted to make service of process under the law of this State or the law of the place in which the service is made or who is designated by a court of this State.

Generally, a summons is directed to the sheriff of the proper county. Ark. Stat. Ann. §§ 27-306, 312 (Repl. 1962). It is to be delivered to the sheriff or other officer authorized to execute it. Ark. Stat. Ann. § 27-319 (Repl. 1962). It is to be served in Arkansas in a tort action by the officer to whom directed, upon proper showing, by a jailer, coroner or constable or by a person appointed by the officer to whom directed by endorsement on the summons, or by the court. Ark. Stat. Ann. §§ 27-322— 324, 327 (Repl. 1962). The attorney for the plaintiff is not a person authorized by statute in this case, and there is nothing in the record to indicate that he was appointed to serve the summons. Therefore, the service is void. See Rutherford v. Moody, 59 Ark. 328, 27 S. W. 230; Hughes v. Martin, supra.

A personal judgment may be based upon service by the attorney for the plaintiff by registered mail when the defendant was a domiciliary of the state at the time the cause of action arose or at the time of the service of process. Ark. Stat. Ann. § 27-339 (Repl. 1962). See Harrison v. Matthews, 235 Ark. 915, 362 S. W. 2d 704. But this is not such a case. This case is also unlike those in which the attorney for the plaintiff notifies the nonresident defendant of the service of process upon the Secretary of State as statutory agent of the defendant for service. See, e. g., Ark. Stat. Ann. §§ 27-340, 27-342.1, 342.2 (Repl. 1962); Jenkins v. Hill, 240 Ark. 197, 398 S. W. 2d 679. The invalidity of the service, however, standing alone, does not render the summons itself void. Hughes v. Martin, supra; Davis v. Triumph Corp., supra.

The order of dismissal is based upon the court’s holding that the service was invalid, and it recites only that plaintiff has failed to obtain service of summons or process. Since the dismissal upon this ground would prevent the service of a properly issued summons by a duly authorized person, we set it aside as erroneous and remand the case for further proceedings consistent with this opinion.

Brown and Byrd, JJ., dissent.

Conley Byrd, Justice.

I would affirm this case. The record shows only the following information: (1) The complaint, alleging that the automobile collision occurred in Hot Spring County; (2) an affidavit by appellant’s counsel that he served a copy of the complaint and a copy of the summons upon Earl Whitsell by registered mail which was refused; and (3) the order of dismissal without prejudice by the trial court because, “. . . the plaintiff has failed to obtain service of summons or process on the defendant in the manner required by law. . .”

It is true that Ark. Stat. Ann. § 27-2503A(l)(c) (Supp. 1971), provides for service outside this State “by any form of mail addressed to the person to be served and requiring a signed receipt.” However, as pointed out by the majority opinion, plaintiff or plaintiff’s counsel is not such person to effect service of process in this manner. Thus it follows that there was no service of process had in this case even if we should agree with the appellant that the defendant cannot avoid service of process by refusing to accept a registered letter.

As I read the majority opinion, this court is reversing the trial court because, “we are unable to say that a proper summons was issued or placed in the hands of the proper officer on the record before us.” With this I disagree. To reach that decision we have to assume that there was some other or different process placed in the hands of the sheriff of Garland County where the action was filed or at Hot Spring County where the collision occurred. As pointed out in Clark v. Thompson, 47 Ill. 25 (1868), and Lonkey v. Keyes Silver Mining Co., 21 Nev. 312, 31 P. 57 (1892), we should not make this assumption because to do so imports a lack of verity in the record — in other words, no presumption should be indulged that there was some other or different service made in addition to that which appears in the record.

Therefore, I respectfully dissent.

Brown, J., joins.


author: John A. Fogleman, Justice.

text:
    Ray DODGE, INC. v. Orville F. MOORE
    5-5749
    479 S.W. 2d 518
    Opinion delivered February 21, 1972
    [Rehearing denied March 20, 1972.]

      Branscum, Schmidt ér Mazzanti, for appellant.

      Gentry ir Huckabay, for appellee.
   John A. Fogleman, Justice.

Appellee brought this action to recover compensatory and punitive damages for the alleged fraud and misrepresentation of appellant, an automobile dealer, in the sale of a used pickup truck. Appellant seeks reversal of a judgment for $350 compensatory damages and $5,000 punitive damages, asserting error in (1) the denial of its motion for a directed verdict, (2) instructing the jury that appellee had the burden of proving fraud by a mere preponderance of the evidence rather than by clear and convincing evidence, and (3) submitting the question of punitive damages to the jury and instructing the jury that a corporation could be held liable for exemplary or punitive damages based upon unauthorized and unratified acts of its agents. Appellant also argues that the jury verdict for punitive damages is excessive in that it bears no reasonable relationship to the actual damages and that it was based upon passion and prejudice. We find no error and affirm the judgment.

Insofar as the contention of appellant as to the denial of a directed verdict is concerned, we have carefully considered the evidence as abstracted and, giving it its strongest probative force and drawing all reasonable inferences in his favor, it is sufficient to present a jury question. See Greiner Motor Co. v. Sumpter, 244 Ark. 736, 427 S. W. 2d 8. Appellee based his cause of action upon allegations that the distance traveled by the pickup truck he purchased had been misrepresented to him by the officers and agents of appellant. Appellant’s argument in this regard is that appellee waived whatever cause of action he might have had by continuing to make monthly payments upon the installment sale contract, without protest, for a period of six weeks to four months after discovering that the odometer reading on the vehicle had been set back to reflect only 25,600 miles when the actual mileage was approximately 42,000.

Conflicting conclusions might be drawn from the evidence on this point. The vehicle was purchased by appellee Moore on November 8, 1969. He testified that he discovered the actual mileage sometime in the summer of 1970, in a conversation with William Lee Adams, who traded the truck to appellant. He said that Jim Ray, a salesman and one of the owners of Ray Dodge, Inc., had stated when the purchase was made that if anything was wrong with the truck he could bring it back for repairs, and that Ray also assured him that the odometer reading was correct. He did take the vehicle back for a tune-up and oil change, for rebuilding of the motor and carburetor and for problems with the heating and air conditioning systems. He was satisfied with the service on most items, but said that he was displeased with results on the heating and air conditioning control system and on the failure to replace shock absorbers as promised, and disgusted with the necessity for repeated returns of the truck for such services. Appellee said that he first learned of the mileage discrepancy not more than six weeks prior to the date of filing of the suit, which was August 3, 1970. He said that he and his wife were debating the steps to be taken during this interval. He admitted that payments on the contract were not discontinued and that he did not make any objection to appellant about the misrepresentation before filing suit.

Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that he shall forever be deprived of its benefits. It may occur when one, with full knowledge of the material facts, does something which is inconsistent with the right or his intention to rely upon it. Sirmon v. Roberts, 209 Ark. 586, 191 S. W. 2d 824. In the cited case, we said that conduct amounting to waiver should be carefully inspected and all evidence upon the subject impartially scrutinized. In Southark Trading Co. v. Pesses, 221 Ark. 612, 254 S. W. 2d 954, where a recoupment of damages was allowed, the appellant argued that the appellees had waived all rights for damages by making payments on a purchase price partially represented by notes on which the suit was brought. We held that in order to invoke the rule of waiver in such cases the affirmance of the contract must be equivalent to ratification and that it is essential that it be shown that the defrauded party intentionally condoned the fraud, affirmed the contract and abandoned his right to recover damages for the loss resulting from the fraud. See also, Cockrurn v. Pattillo, 246 Ark. 594, 439 S. W. 2d 632.

Appellant relies upon such cases as Advance Aluminum Casting Corp. v. Davenport, 224 Ark. 440, 274 S. W. 2d 649; Pate v. J. S. McWilliams Auto Company, 193 Ark. 620, 101 S. W. 2d 794; West v. Carter, 235 Ark. 970, 363 S. W. 2d 415. In the first case, although the purchaser made only one payment on the purchase contract, he made no complaint of any kind to the seller for seven months after discovery of the defects in the merchandise involved. In the second, monthly payments were made for at least six months after the discovery of the alleged fraud before any complaint was made. In West, rejection of the plea of waiver was sustained where the purchaser made repeated complaints and continued payments only after the seller promised to repair the allegedly defective merchandise. In virtually all such cases, the evidence concerning waiver was undisputed. Of course, when reasonable minds could not differ as to the inferences to be drawn from the conduct relied upon, a determination that there was or was not a waiver as a matter of law is proper. Otherwise, the question is one of fact to be determined by the jury. Lary v. Young, 13 Ark. 401, 58 Am. Dec. 332. See also, 31 C. J. S. 788, Estoppel § 163. According to the testimony of appellee and his wife, considered in the light most favorable to him, it may well be that only one payment was made between the discovery of the fraud and the filing of the suit, and during that interval Moore was debating his future course of action. These circumstances were sufficient to make the question of waiver one for the jury, so there was no error in the refusal of a directed verdict.

Appellant’s argument that the proof of fraud must be clear and convincing is based upon the premise that the fraud charged is contradictory of the written vehicle buyer’s order signed by appellee, citing Belew v. Griffis, 249 Ark. 589, 460 S. W. 2d 80. The order contains an acknowledgement that no warranties were made by the dealer. Appellant contends that the alleged representations as to the mileage traveled by this vehicle contradicted that instrument. In Belew, however, the alleged representation related to the total amount required to pay the deferred purchase price and was clearly contrary to the recited consideration in a deed. Clear and convincing evidence of fraud is required to cancel or reform a solemn writing, but not to establish fraud in ¿obtaining a contract by fraudulent misrepresentation. Clay v. Brand, 236 Ark. 236, 365 S. W. 2d 256; Parker v. Johnston, 244 Ark. 355, 426 S. W. 2d 155. The instruction given was correct since the written instrument involved contained no statement about the vehicle mileage.

The questions pertaining to the award of punitive damages are not presented as clearly as they might be as an instruction complained of by appellant is not abstracted. The major issue, however, pertains to the propriety of permitting the jury to consider the question of exemplary or punitive damages. Appellant argues that its conduct was not characterized by either wilfulness and malicious conduct or gross fraud required as a basis of such damages. Particular emphasis is given to the facts that appellant’s salesmen readily gave appellee the name of the owner of the vehicle from whom they acquired it and from whom appellee eventually learned that the mileage was considerably greater than that registered on the vehicle odometer and that appellee himself had once dealt in used cars.

We have said that before punitive damages may be awarded, it must be shown that there was a wanton disregard for the rights and safety of others on the part of the tortfeasor. Nance v. Cook, 240 Ark. 336, 399 S. W. 2d 262. According to one text a recovery of exemplary or punitive damages in an action based on a fraudulent sale, generally speaking, will be allowed only where the fraud is an aggravated one, as where it is malicious, deliberate, gross or wanton. 37 Am. Jur. 466, Fraud and Deceit § 347- It is also said that, in ordinary cases, recovery of exemplary damages will not be allowed in an action of deceit unless the wrong involves violation of a duty springing from a relation of trust and confidence, or the fraud is gross, or there are extraordinary or exceptional circumstances clearly indicating malice and wilfulness, as exists when it appears that the tortfeasor acted with a deliberate intent to injure the one defrauded. 37 C. J. S. 489, Fraud § 144. We denied the allowance of exemplary damages in C. R. I. & P. Ry. Co. v. Whitten, 90 Ark. 462, 119 S. W. 835, 21 Ann. Cas. 726, a negligence action, saying that before a verdict for exemplary damages is justified, the party to be charged must be guilty of wilfulness, wantonness, or conscious indifference to consequences from which malice will be inferred. We said:

Here the motive of the injuring party becomes material. Mere negligence, indifference, or careless disregard of the rights of others is not sufficient upon which to base a recovery for exemplary damages. The acts must be such as to evince malice. It is true that in law malice is not necessarily personal hate. It is rather an intent and disposition to do a wrongful act greatly injurious to another.

This posture with reference to the type of conduct upon which an award of punitive or exemplary damages may be founded is quite similar to that of the courts of other jurisdictions which have sustained verdicts for such damages founded upon representations based on false mileage readings resulting from a seller’s action in turning an odometer back. In Williams v. Miller Pontiac Co., 409 S. W. 2d 275 (Mo. App. 1966) and in District Motor Co. v. Rodill, 88 A. 2d 489 (D. C. Mun. App. 1952) it was held that by malice the courts simply had in mind the accepted theory of the intentional doing of a wrongful act without just cause or excuse. In J. Truett Payne Company v. Jackson, 281 Ala. 426, 203 So. 2d 443 (1967), it was held that if the misrepresentation is made with knowledge of its falsity or so recklessly as to amount to the same thing, or with the purpose of injuring the buyer, punitive damages could be awarded. Cf., Boise Dodge, Inc. v. Clark, 92 Idaho 902, 453 P. 2d 551 (1969); Lewis v. Worldwide Imports, Inc., 238 Or. 580, 395 P. 2d 922 (1964).

If, then, there was evidence tending to show that appellant intentionally performed a deliberate act with the intention of misleading a prospective purchaser about a material matter to his injury, it was proper to permit the jury to consider the award of exemplary or punitive damages. There is really no serious contention here that appellant or its employees did not turn the odometer back to reflect a reading several thousand miles less than the correct mileage. By so doing, appellee was led to believe, and says that he was actually told by appellant’s salesman, that this reading represented the actual mileage the truck had been driven. Furthermore, the evidence appears undisputed that the dealer’s salesman assured Moore that he would have the benefit of the balance of the manufacturer’s warranty which covers a period of either five years or 50,000 miles of travel, depending upon which causes the earlier termination. The transfer of warranty was approved. The former owner testified that appellant gave him a bad trade allowance for the truck because of the actual mileage. The only motive an automobile dealer could possibly have in turning back an odometer on a vehicle is to make it appear that the vehicle had only been driven the distance shown by the changed reading. It does not seem that any plausible argument could be advanced that such an act was not done in a deliberate attempt to deceive any prospective purchaser about a material matter to his injury and to the advantage of the seller. When such action is accompanied with an actual representation that the reading was correct, there can be no doubt that the trial court should properly permit the jury to consider the allowance of exemplary damages. We do not agree with appellant that tíre giving of the former owner’s name to appellee afforded him such an opportunity to obtain accurate information contrary to that given by appellant as would bar allowance of punitive damages, as a matter of law, even when the buyer had dealt in used cars some years ago, when appellant might have been expected to have possessed peculiar knowledge on the subject. Hutchinson v. Gorman, 71 Ark. 305, 73 S. W. 793; Clay v. Brand, 236 Ark. 236, 365 S. W. 2d 256. See also, Hunt v. Davis, 98 Ark. 44, 135 S. W. 458; Joe Lyons Machinery Co. v. Wiegel, 168 Ark. 572, 271 S. W. 333. The question whether the means of information as to the true facts were equally accessible to the parties was an issue of fact. See Cochran v. People’s Exchange Bank, 176 Ark. 830, 4 S. W 2d 515.

The argument that appellant should not be liable for punitive damages for acts of its agents and servants, unless ratified or authorized cannot be sustained. It was rejected in Miller v. Blanton, 213 Ark. 246, 210 S. W. 2d 293, 3 A. L. R. 2d 203. There, we held that a corporation may be held liable for exemplary or punitive damages for such acts of its agents or servants acting within the scope of their employment as would, if done by an individual acting for himself, render him liable for such damages.

We do not feel that the award in the amount of $5,000 was so great as to shock the conscience of the court or to indicate passion and prejudice upon the part of the jury, since there was sufficient evidence to support a finding of legal malice. While there is no doubt that the amount is liberal insofar as the individual buyer is concerned, compensation of a plaintiff is not the purpose of exemplary or punitive damages and an award may be somewhat of a windfall to him. Dunaway v. Troutt, 232 Ark. 615, 339 S. W. 2d 613. They are the penalty the law fixes for conduct which is malicious, wanton, in violation of a relationship of trust or confidence, or which is done with a deliberate intent to injure another. The penalty must be not only a punishment sufficient to deter similar conduct on the part of the particular tortfeasor, it must also be sufficient to deter others who might be inclined to engage in such conduct to the injury of others. Holmes v. Hollingsworth, 234 Ark. 347, 352 S. W. 2d 96; Vogler v. O’Neal, 226 Ark. 1007, 295 S. W. 2d 629, 62 A. L. R. 2d 832; Miller v. Blanton, supra.

In considering the amount awarded here, we recognize that there is no fixed standard for measurement of such damages and that their amount lies largely within the discretion of the jury on due consideration of the attendant circumstances. Vogler v. O’Neal, supra. The jury in this case apparently found that the circumstances were such as to indicate a deliberate wrong by a practice which, if followed by dealers generally, would lead to widespread commercial fraud through which literally thousands of purchasers of used cars, including many who could least afford a loss, could be victimized by extraction of excessive prices, without having adequate means of ascertaining correct information or of pursuing a remedy for actual damages, which might not even be large enough to justify the expenditure of the money and time involved in seeking their recovery. It seems to us that the jury verdict may be said to evidence a legitimate concern for the possible consequences of such a practice to the consuming public generally, rather than passion and prejudice.

In considering the amount of the award in the light of its function as a deterrent, we find appropriate the following language of Judge Fuld speaking for the New York Court of Appeals in Walker v. Sheldon, 10 N. Y. 2d 401, 223 N. Y. S. 2d 488, 179 N. E. 2d 497 (1961):

Exemplary damages are more likely to serve their desired purpose of deterring similar conduct in a fraud case, such as that before us, than in any other area of tort. One who acts out of anger or hate, for instance, in committing assault or libel, is not likely to be deterred by the fear of punitive damages. On the other hand, those who deliberately and coolly engage in a far-flung fraudulent scheme, systematically conducted for profit, are very much more likely to pause and consider the consequences if they have to pay more than the actual loss suffered by an individual plaintiff. An occasional award of compensatory damages against such parties would have little deterrent effect. A judgment simply for compensatory damages would require the offender to do no more than return the money which he had taken from the plaintiff. In the calculation of his expected profits, the wrongdoer is likely to allow for a certain amount of money which will have to be returned to those victims who object too vigorously, and he will be perfectly content to bear the additional cost of litigation as the price for continuing his illicit business. It stands to reason that the chances of deterring him are materially increased by subjecting him to the payment of punitive damages.

In considering the very argument advanced by appellant as to the apparently disproportionate award of actual and punitive damages, in a case involving a recovery based upon a false odometer reading, the Idaho Supreme Court had this to say in Boise Dodge, Inc. v. Clark, 92 Idaho 902, 453 P. 2d 551 (1969):

The amount of actual damages sustained by a plaintiff is one indication of the culpability of the defendant’s acts, but it cannot be the sole criterion for the assessment of punitive damages. Also relevant is the prospective deterrent effect of such an award upon persons situated similarly to the defendant, the motives actuating the defendant’s conduct, the degree of calculation involved in the defendant’s conduct, and the extent of the defendant’s disregard of the rights of others. These are legitimate concerns of the law, and the application of any fixed arithmetic ratio to all cases in which punitive damages are assessed would be arbitrary.

Even if we should declare that our law required a reasonable relationship between compensatory and exemplary damages, we agree that other considerations are of equal importance, and, in this case, must have been considered by the jury. Not only can we not say that the jury was motivated by passion and prejudice, we cannot say that this award is excessive when we consider the dual purpose of exemplary or punitive damages.

Appellee’s motion for taxing costs of abstracting is denied.

The judgment is affirmed.

Chief Justice Harris and Justices Brown and Jones would reduce the award of punitive damages to $2,500.

      See cases from other jurisdictions cited above.


author: J. Fred Jones, Justice.

text:
    John CROUCH et al v. Robert L. CROUCH et al
    5-5742
    476 S.W. 2d 248
    Opinion delivered February 21, 1972

      Rhine & Rhine, for appellants.

      Kirsch, Cathey, Brown & Goodwin, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Harold J. Conrad and his wife from a decree of the Greene County Chancery Court wherein they question the distribution of the proceeds from the sale of lands purchased by them at a partition sale. We have previously considered this case on two appeals and one rehearing, so for a detailed factual background see Crouch v. Crouch, 241 Ark. 447, 408 S. W. 2d 495; Crouch v. Crouch, 244 Ark. 823, 431 S. W. 2d 261, and Crouch v. Crouch, 245 Ark. 67, 431 S. W. 2d 261.

The seven heirs of W. M. Crouch owned 160 acres of land in Greene County as tenants in common. Two of the heirs owning an undivided 1/7 interest each, sold all the lands to the Conrads who went into peaceable possession under color of title, and believing themselves to be the owners of all the lands, the Conrads peaceably improved all of it by clearing away the trees and brush and placing it in a state of cultivation. The remaining five Crouch heirs commenced this action by filing their petition in the Greene County Chancery Court asserting their 5/7 undivided interests and praying for a partition of the lands. They alleged that the lands were not susceptible to division in kind and they prayed that the lands be sold and the proceeds divided. They recognized the Conrads’ undivided 2/7 interest in the lands.

After several hearings in the matter the chancellor found that the Crouches own a 5/7 undivided interest in the lands and that the Conrads own an undivided 2/7 interest as an estate by the entirety. The chancellor found that the value of the lands prior to improvements was $20,000; that its value after the improvements was $52,000, leaving $12,000 as the value of the improvements made by the Conrads. The chancellor further found that the Conrads are accountable for rents received by them on all the lands in the amount of $7,156.74 less taxes paid by them in the amount of $771.77, leaving a balance of the income in the amount of $6,384.97 and that 5/7 of this sum in the net amount of $4,560.69 belongs to the Crouches. After finding that the lands were not susceptible to division in kind, the chancellor ordered their sale. The lands were sold at public sale and the Conrads purchased for the highest and best bid of $28,100.

In considering the accounting for purposes of distribution, the chancellor apparently reasoned that since the Conrads had purchased all the property at the partition sale, they were not entitled to recover for the improvements they had made on their own 2/7 fee interest in the land. So the chancellor deducted from the $12,000 value of the improvements 2/7 of that sum in the amount of $3,428, and arrived at the sum of $8,572 as 5/7 of the value of the improvements recoverable by the Con-rads before adjustments for rents and taxes. The chancellor then found that by deducting from this sum the amount of $4,560.69 (representing 5/7 of the rents less taxes due the Crouches) there remained the sum of $4,011.31 due the Conrads for their clearing improvements and to which they were entitled to credit on the purchase price of the property. The chancellor then decreed that the proceeds from the sale be distributed as follows:

“1. First, to the payment of the costs in this court including an attorneys’ fee of $1,500.00 as allowed to Kirsch, Cathey, Brown and Goodwin, attorneys herein with respect to the partition aspects of this litigation and including the 1970 state and county taxes.
2. The next $20,000.00 shall be divided among the plaintiffs (who collectively own a 5/7th interest) and the defendants, Harold J. Conrad and Blanche Conrad, his wife, (who own an undivided 2/7 th interest therein as tenants by the entirety).
3. Out of the balance, next will be paid the net improvements due the Conrads to the extent of $4,011.31 as hereinabove provided in Paragraph 8 of this decree.
4. Any balance remaining from the proceeds of the sale after the payment of the items as hereinabove provided for shall be pro-rated among the owners of the land according to the ratio of their ownership/interest therein, i. e., 5/7th to plaintiffs and 2/7ths to the Conrads.”

The decree then provided for the adjustment of current rent and taxes and retention of jurisdiction for further orders relating thereto.

Under their designated points for reversal, the Con-rads contend that the chancellor erred in the above order of distribution and erred in making proper application of Ark. Stat. Ann. § 34-1423 (Repl. 1962) requiring an accounting of taxes by the successful party under our betterment statutes. As to the first item of distribution as made by the chancellor, this case originated in the form of a partition suit and it has maintained that status throughout the lengthy litigation. It appears that there was little, if any, controversy as to whether the lands should have been partitioned, or that they should have been sold in order to effect a partition, so we conclude that the chancellor did not err in awarding the attorneys’ fee and assessing it as cost. (Ark. Stat. Ann. § 34-1823 [Repl. 1962]). Consequently, out of the proceeds of the sale in this case we find no error in first deducting the court costs and attorneys’ fee from the proceeds.

As to the next item of distribution, we held in our supplemental opinion, 245 Ark. 67, supra, that the Con-rads were entitled to the “paramount right to be paid the value of the improvements made . . .” so we hold that the chancellor erred in not giving that item priority as the next item of distribution. We can see no logical reason for distributing $20,000 as a separate item at all.

We now consider the third item of distribution and in doing so, we dispose of the fourth. Time does not permit us to analyze and answer all the facets of the arguments advanced by the Conrads in their brief, but their arguments boil down to the contention that under the betterment statute they should first be paid $12,000 from the sale price of $28,100 before any other distribution or adjustment is made. The so-called “betterment statute” Ark. Stat. Ann. § 34-1423 (Repl. 1962) is as follows:

“Recovery for improvements and taxes paid on land of another. — In any person, believing himself to be the owner, either in law or equity, under color of title, has peaceably improved, or shall peaceably improve any land which upon judicial investigation shall be decided to belong to another, the value of the improvement made as aforesaid and the amount of all taxes which may have been paid on said land by such person, and those under whom he claims, shall be paid by the successful party to such occupant, or the person under whom or from whom he entered and holds, before the court rendering judgment in such proceedings shall cause possession to be delivered to such successful party.”

Perhaps there would be some validity to the Conrads’ argument that they should have first been paid $12,000 in cash out of the proceeds from the sale of the property had this been a simple ejectment suit where the occupant received no rents and profits to be offset” against taxes paid. We find that the chancellor did err, however, in awarding the betterments to the Conrads but not to the extent urged by the Conrads.

The chancellor in his decree recognized the fact that the Conrads owned 2/7 interest in the lands and that 2/7 of the improvements they made on the lands applied to their own 2/7 interest in the lands. As already stated, the chancellor apparently reasoned that since 2/7 of the improvements applied to the Conrads’ own 2/7 interest in the lands, they should not be permitted to charge the Crouches with this portion of the improvement value, it is in this, we conclude, that the chancellor erred.

Now if the partition of the lands had been in kind, the chancellor would have been correct in his calculation. In that event, the Conrads would have taken their 2/7 part of the lands with its part of the improvements thereon and would have been entitled to receive from the Crouches only 5/7 of the full value of the improvements amounting to $8,571.43, but this is not what happened. All of the lands were sold publicly at a partition sale and the Conrads bid like everyone else and were the successful bidders in the purchase of all the lands in their improved condition. If someone else had purchased the lands, there is no question that the Conrads would have been entitled to the full value of their improvements in the amount of $12,000 out of the proceeds of the sale, subject to adjustment on income and taxes. We have no way of knowing whether the Conrads bid more or less for the lands because of their 2/7 interest in it but that is immaterial to the point involved. The sale in this case was a public partition sale and the Conrads, as the highest and best bidders, stood in the same position as strangers to the title when they purchased the property at the partition sale. This does not mean that the Conrads lose the value of their improvements on their 2/7 interest in the lands, for they recoup their value on their 2/7 interest when they receive their 2/7 interest in the proceeds from the sale of all the lands in their improved condition.

On trial de novo we do not disturb the chancellor’s decree as to first paying the costs and the $1,500 attorneys’ fee out of the proceeds from the sale. Next should be paid to the Conrads $5,615.03 which represents the $12,000 for their improvements less the $6,384.97 they owe in rents less taxes. The remainder of the proceeds from the sale should then be paid to the parties according to their respective interests in the lands. Any income received and taxes paid and not already accounted for should be adjusted according to the interests of the parties.

The decree is reversed and this cause is remanded for the entry of a decree consistent with this opinion.

Reversed and remanded.


text:
    Charles ISELY, Jr., Executor of the Estate of Charles Isely, Sr. v. William Arthur ISELY and Morrilton Security Bank, a Corporation
    5-5748
    476 S.W. 2d 233
    Opinion delivered February 21, 1972

      Phillip H. Loh, for appellant.

      Gordon, Gordon ér Eddy, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Charles Isely, Jr. executor of the estate of his father, Charles Isely, Sr. from a decree of the Conway County Chancery Court finding that the appellee William Arthur Isely is the owner of funds from a bank account in the Morrilton Security Bank.

Mr. and Mrs. Charles Isely, Sr. had a checking account in the Morrilton Security Bank. Mrs. Isely died in 1965. Thereafter Charles Isely, Sr. and two of his children, William Arthur Isely and Syble Isely Long executed a “Joint Account — Payable to Either or Survivor” card, dated January 15, 1966. There was $2,72Í9.65 in the checking account when Charles Isely, Sr. died testate on July 31, 1970. He was survived by seven children including the appellant, Charles Isely, Jr., and the appellee, William Arthur Isely. Charles, Jr. was appointed executor under the will and all the children shared equally in the residue of their father’s estate under his will.

Soon after Mr. Isely, Sr. died, William Arthur withdrew $2,000 from the bank account, and on February 4, 1971, Charles, Jr., as executor, brought this action to require William Arthur to pay the $2,000 back into the executor’s account so that it could be distributed to the seven beneficiaries named in the residuary clause of their father’s will.

The trial court held that under Ark. Stat. Ann. § 67-552 (Repl. 1966) the account was a joint account with right of survivorship, and that William Arthur was therefore entitled to retain the $2,000. There were rights as to other items involved in the litigation and disposed of by the chancellor’s decree, but on appeal to this court the executor relies on one point for reversal, stated as follows:

“The decree of the chancery court in holding the bank account of $2,759.65 was a joint account with right of survivorship is contrary to the law and the evidence.”

No one questions the genuineness of the signatures on the "Joint Account — Payable to Either or Survivor” card containing the following language:

"We agree and declare that all funds now, or hereafter, deposited in this account are, and shall be, our joint property and owned by us as joint tenants with right of survivorship, and not as tenants in common; and upon the death of either of us any balance in said account shall become the absolute property of the survivor. The entire account or any part thereof may be withdrawn by, or upon the order of, either of us or the survivor.
It is especially agreed that withdrawals of funds by the survivor shall be binding upon us and upon our heirs, next of kin, legatees, assigns and personal representatives.”

Ark. Stat. Ann. § 67-552 (a) (Repl. 1966) provides as follows:

"If the person opening such account, or purchasing such certificate of deposit, designates in writing to the banking institution that the account or the certificate of deposit is to be held in ‘joint tenancy’ or in ‘joint tenancy with right of survivorship’, or that the account or certificate of deposit shall be payable to the survivor or survivors of the persons named in such account or certificate of deposit, then such account or certificate of deposit and all additions thereto shall be the property of such persons as joint tenants with right of survivorship. * * *”

Most of the testimony was directed to the intention of Mr. Isley and the parties concerned when the signature card was executed, but we agree with the chancellor that this case turns on the statute. See Cook v. Bevill, 246 Ark. 805, 440 S. W. 2d 570 (1969) and Willey v. Murphy, 247 Ark. 839, 448 S. W. 2d 341 (1969).

The decree is affirmed.


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

text:
    BOARD OF EQUALIZATION, Washington County v. EVELYN HILLS SHOPPING CENTER et al
    5-5821
    476 S.W. 2d 211
    Opinion delivered February 21, 1972

      Ray Thornton, Attorney General; By: Henry Ginger, Deputy Atty. Gen. and Mahlon Gibson, Prosecuting Attorney, for appellant.

      F. H. Martin and Ball ir Gallman, for appellees.
   Conley Byrd, Justice.

Appellees Evelyn Hills Shopping Center, Inc., and Plaza Shopping Center, Inc., being dissatisfied with their 1970 property assessments and having pursued their remedies through the Washington County Equalization Board and the County Court without relief, appealed to the Washington County Circuit Court. The matter was tried to the Circuit Court without a jury on April 13, 1971, during the October 1970 term of court.

B. A. Shamblin testified as an expert for the property owners. He fixed his valuations using the “income approach” at $448,974.00 for the Plaza Shopping Center and $1,302,866.16 for the Evelyn Hills Shopping Center. In support of the proposition that his income approach more nearly reflected the true or market value of property than the “cost less depreciation” approach used by the Equalization Board, Mr. Shamblin pointed out that some Safeway property assessed by the Board on the basis of a value of $175,000 sold on the open market for only $130,000.

Harold Duggar, director of appraisal and evaluation for the Equalization Board, testified for the County and took the position that by Act 153 of 1955, the Equalization Board is required to use the “cost less depreciation” method selected by the Public Service Commission and State Coordination Department. On this basis Mr. Duggar arrived at a value of $1,560,000 for Evelyn Hills Shopping Center and $512,100 for Plaza Shopping Center.

The trial court entered a júdgment on April 15, 1971, fixing the value of Evelyn Hills at $1,350,000 and Plaza Shopping Center at $475,000. In doing so the court accepted Mr. Shamblin’s “income” approach but made some adjustments for rental overrides not considered by Mr. Shamblin. After the Washington County Board of Equalization had filed notice of appeal and the October 1970 term of court had lapsed, the appellees on October 1, 1971, filed their “First Amendment to Petition” claiming for the first time that Act 153 of 1955 violated certain sections of the State and Federal Constitutions. On the same day the trial court amended the original judgments to hold that Act 153 of 1955 was unconstitutional.

We do not reach the constitutional arguments here made because the trial court after lapse of the October 1970 term of court had no jurisdiction to amend the judgment to grant any additional relief. In St. Louis & N. A. Rd. Co. v. Bratton, 93 Ark. 234, 124 S. W. 752 (1910), we pointed out that there is no authority after term time for a trial court, under the guise of an amendment, to revise a judgment to adjudicate a matter which might have been considered at the time of the trial or to grant an additional relief not in contemplation of the court at the time the judgment was entered. This is in accord with our long standing rule that constitutional issues will not be determined unless their determination is essential to disposition of the case, Martin v. State, 79 Ark. 236, 96 S. W. 372 (1906), and Bell v. Bell, 249 Ark. 959, 462 S. W. 2d 837 (1971).

Appellant also argues that the trial court erred in basing its decision upon values reflected by the capitalization of income method. There is no merit in this contention. In the first place, Ark. Stat. Ann. § 84-477 (Repl. 1960) specifies that property is to be assessed at 20% of its full or market value. In the next place, the Assessment Coordination Department manual specifically provides: “It is intended for this manual to be considered and used only as a guide in determination of actual values of real properties.” In Kitchens v. Arkansas Appraisal Service, 233 Ark. 384, 344 S. W. 2d 853 (1961), we held that the assessor’s manual prepared by the Assessment Coordination Department was not an iron clad rule to be followed with no deviation. Competent experts in the real estate field use three methods to arrive at true or market value — i. e., (1) comparable sales, (2) capitalization of income and (3) cost less depreciation. In the use of any one of the three methods there are certain inherent weaknesses. In the eminent domain cases that come before this court, the better appraisers often use a combination of two or more of the methods as a check on their final value opinions. As pointed out in the Kitchens case, “No element is more important in assessing than the good judgment of the assessor, irrespective of compiled standards.”

So much of the judgment as holds Act 153 of 1955 unconstitutional is set aside. As modified the judgment is affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I agree with the result and with most of the statements in the majority opinion. As I have previously pointed out, I do not feel that expert appraisers are restricted, as a matter of law, to only three methods of determining market value. See concurring opinion, Arkansas Highway Commission v. Roberts, 246 Ark. 1216, 441 S. W. 2d 808, 1224.

I would affirm for an additional reason not mentioned in the majority opinion. The language of Section 5, Act 153 of 1959, which appellee contends makes the use of the manual by boards of equalization and county courts mandatory, does not, in my opinion, do so. The pertinent part of the statute reads:

It shall also be the duty of the County Equalization Boards, in performing their duties, to recognize and follow such manuals and standards, and the County Equalization Boards shall not change an assessment made by the County Assessor unless such change is necessary to provide uniformity in the assessment of similar classes of property. It shall also be the duty of the County Judges, in hearing appeals from the County Equalization Boards, to recognize and follow such manuals and standards, and a County Judge shall not change an assessment unless such change is necessary to - provide uniformity in the assessment of similar classes of property.

This statute, in my opinion, does not bind either the equalization board or the county court to a rigid application of the manual, but permits resort to other evidence to determine whether a change in a particular assessment is necessary to provide uniformity in the assessment of similar classes of property. The use of the words “recognize and follow” should not be taken to require such a blind adherence as would give rise to an irrebuttable presumption that the assessment made according to the manual was an absolutely correct determination of the “true and full market or actual value” required by the act, in spite of evidence that such a slavish adherence brought about an assessment on the property which was not uniform with assessments of similar classes of property. In my opinion, this part of the statute does nothing more than make an assessment according to the manual prima facie evidence of “true and full market or actual value” and the burden of showing that the particular assessment is not uniform with similar classes of property lies upon one attacking it.

For the reason stated, I would hold that the same result would be reached if the manual did not contain the statement referred to in the majority opinion.