author: Carleton Harris, Chief Justice.

text:
    Bryant v. Bryant.
    5-2904
    365 S. W. 2d 140
    Opinion delivered February 25, 1963.

      Richard W. Hobbs, for appellant.

      Holt-, Park & Holt, for appellee.
   Carleton Harris, Chief Justice.

This is a divorce action. Appellee, Charles W. Bryant, a conductor on the Missouri Pacific Railroad, owns his home, and resides in Little Rock. Appellant, Rachel Bryant, owns her home in Hot Springs, and was living there on the date of the marriage (November 4,1960). The parties lived together in the home of appellant until March 6, 1961. On March 8, 1961, Mrs. Bryant instituted suit for divorce against appellee in the G-arland Chancery Court. On April 12, the parties agreed to a temporary support order which provided that appellee should pay the sum of $100.00 per month support, court costs, and a $100.00 fee to appellant’s attorney. This order was complied with until September 6, 1961, at which time, according to the evidence, the case was to be heard finally; however, Mrs. Bryant took a nonsuit, and the court dismissed her complaint without prejudice. On March 7, 1962, Mr. Bryant instituted the present action for divorce in the Pulaski County Chancery Court, alleging that Mrs. Bryant had willfully deserted him for the period of one year without reasonable cause. Appellant filed an answer and cross-complaint wherein she denied appellee’s allegation, and sought a divorce on grounds of desertion and general indignities. She further prayed that she be given her statutory rights in all properties owned by Bryant, for an award of permanent alimony, and a reasonable sum for attorney’s fee and suit money.

On hearing, the court granted Mr. Bryant an absolute divorce, dismissed the cross-complaint of Mrs. Bryant, directed appellee to pay to appellant the sum of $100.00 per month as alimony and maintenance for a period of nine months, and awarded Mrs. Bryant’s attorney a fee of $100.00. Prom the decree so entered, appellant brings this appeal. It is here contended that the court erred in granting Mr. Bryant a divorce, rather than granting the divorce to Mrs. Bryant and awarding her property rights as provided by statute.

The contentions of each of the parties are as follows:

Mr. Bryant, 58 years of age, whose first wife had died, testified he and appellant had agreed, that upon their marriage, they would temporarily live in her home in Hot Springs until she could make arrangements to sell the property, at which time she would move to Little Bock with appellee. Mr. Bryant’s job headquarters with Missouri Pacific is Little Bock, as he stated, “Union Station in Little Bock.” It was, of course, necessary, in order to live with his wife, that he drive back and forth from Little Bock to Hot Springs. The witness stated that after a month, he told appellant that it was time for them to move to Little Bock; that he was getting tired of driving back and forth. He testified that he constantly asked her about selling the property, and she replied, that she wanted to sell her home and move; however, she took no steps to do so. Mrs. Bryant finally, around the middle of February, listed the property with a real estate dealer. Mr. Bryant stated that on two or three occasions, prospective purchasers came by to look at the property, but upon asking the sale price, received the reply from his wife that “she had not decided.” He said that he made up his mind to move back to Little Rock on March 6, and so informed his wife. She inquired, “was I coming back payday and I said yes. ‘I will be back payday and I want you to make up your mind by then, what you are going to do.’ ” Payday, as reflected by the evidence, was on March 14. Appellee stated that he never did go back for the reason that when he returned from his railroad trip “a deputy sheriff met me and subpoenaed me that I had been sued for divorce.” That suit was instituted by Mrs. Bryant on March 8.

Appellant testified that she did not want to get married until her property was sold, but that appellee said that he would give her all the time she needed. She stated that, inasmuch as all of her furnishings would not be needed in the Little Rock home, she planned to give part to her daughter and son, but that her daughter, who lived in Denver, had a nine-months-old baby, was also six months pregnant, and was not able to make the trip to Hot Springs at the time. She said that her son did get a dining room suite. Mrs. Bryant testified that appellee had told her before the marriage that he “would not gripe about driving back and forth,” and she stated that he did not make any complaint after the marriage about the inconvenience of the systematic or regular journeys from Little Rock to Hot Springs.

According to appellant, on March 6 at her home in Hot Springs, Mr. Bryant “told me he could not live with me any longer for thinking about his deceased wife, and he called her Nora.” She testified that he then packed and left, stating, “I will send you money on the 15th.” She mentioned two other complaints. On one occasion Mr. Bryant had called from Little Rock and informed her that he had to stay overnight in that city to see about renting an apartment, but he did not return to Hot Springs until the next night; upon being asked as to what he had been doing during that period, he answered, “It’s not any of your darn business and I don’t want to be asked questions or fussed at.” She also testified that the following week he did not come in until 2:00 o’clock in the morning, and, when questioned as to his activities, replied that he had been out “playing.”

Mrs. Callie Jones, a close friend of Mrs. Bryant’s, testified that she never heard Mr. Bryant make any complaints about his wife, or the fact that appellant had not sold her property. She also testified that she was in the home a few days before March 6 (when appellee left appellant’s home), and heard Mrs. Bryant state that she was ready to go to Little Rock, but Mr. Bryant refused the offer.

We think the chancellor was correct in denying a divorce to appellant. In the first place, her testimony relative to the purported statement of appellee as to his reason for leaving, is entirely without corroboration; nor is there corroboration of her testimony in regard to the two occasions when appellee did not return to the home at the proper time. Of course, even if the occurrences had been corroborated, it could hardly be said that these three isolated instances of alleged misconduct constituted such indignities as to entitle appellant to a divorce. She did not testify that her husband constantly talked about his deceased wife, but only that he mentioned it on the occasion of his leaving.

Appellee’s contention of desertion would likewise be uncorroborated except for one very pertinent fact. That fact is undisputed and admitted; two days after Mr. Bryant left the home in Hot Springs, appellant instituted suit for divorce. It seems strange, if Mrs. Bryant really intended to move to Little Rock with her husband, that she would have filed suit almost immediately, particularly inasmuch as the recited evidence shows that the difficulties between the parties were of a minor nature. It would certainly appear that if appellant had a genuine desire to live with appellee, she would not have instituted the suit so quickly.

Nor does she cite compelling reasons for failure to accompany her husband to his home. After all, the sale of the property could have been adequately handled by a real estate dealer while Mrs. Bryant was in Little Rock with her husband; upon being advised that a sale was ready for consummation, or that her daughter was ready to make the trip from Denver, appellant could have returned to her home to complete details. It is, of course, noticeable that the property was not even listed for sale until more than three months after the marriage.

The transcript contains a copy of the order entered by the Garland Chancery Court on September 6. That order reads as follows:

“On this day comes the plaintiff, by her Solicitor, Richard W. Hobbs, Esq., and moves the Court to dismiss this cause of action without prejudice;
“And the Court being well and sufficiently advised in this matter doth order, adjudge and decree that this cause of action be, and same is hereby dismissed without prejudice; and the restraining order issued on March 8th, 1961, be, and the same is hereby vacated. ”

While the record does not contain the original order, and the italicized portion could possibly have reference to restraining appellee from disposing of property, or withdrawing funds from a bank, etc., it more likely appears (since specific property or money is not mentioned in the testimony) that the purpose of the restraining order was to prevent Mr. Bryant from going about appellant. Under such circumstances, he could not, of course, have returned to the home without risk of a contempt citation. Be that as it may, we think that Mrs. Bryant could not have more forcefully demonstrated her intention to remain in her own home in Hot Springs (instead of going to Little Bock with appellee), than by instituting the suit for divorce within two days after Mr. Bryant left the house.

In Dobson v. Dobson (not in Arkansas Reports) 89 S. W. (2d) 932, this court stated,

“It is true, of course, that the husband has the right to establish a home in such place as his business necessities may require and that the wife, if she willfully refuses to make her home with him at such place, is guilty of desertion.”

See also Bateman v. Bateman, (Ill.) 85 N. E. 2d 196. Certainly, “business necessities” dictated that Mr. Bryant maintain his residence in Little Rock, and we are unable to say that the Chancellor’s finding that Mrs. Bryant deserted her husband is against the preponderance of the evidence.

It likewise follows that the .court’s action in dismissing the cross-complaint was proper.

The decree is accordingly affirmed.

Appellant asks for a reasonable attorney’s fee as compensation for services rendered in taking this appeal, together with an amount sufficient to cover costs. In accordance with the holding- in numerous cases, though the wife has not prevailed in this litigation, the request is granted. See Gardner v. Gardner, 225 Ark. 828, 286 S. W. 2d 23. We think, under the circumstances, that an additional fee for appellant’s attorney should be allowed in the amount of $100.00, together with her costs.

It is so ordered.

Mr. Justice Holt not participating.

       The complaint does not appear in the record, and accordingly the grounds for divorce are not shown.

       According to a stipulation entered into between the parties, appellant listed the property with J. N. Leeson of Hot Springs on February 15,1961, for the sale price of $20,000.00. Mrs. Bryant also testified that she listed the property for sale about a week earlier with another real estate dealer.

       Mrs. Bryant’s home contained 7 rooms, while the apartment in Little Rock, owned and occupied by Mr. Bryant, only contained 4 rooms.

         Mrs. Bryant had been married previously, but was divorced from that husband in 1945.

       Emphasis supplied.


source: Caselaw Access Project

author: Ed. F. MoFaddin, Associate Justice.

license: Public Domain

text:
    Mobley v. Scott, County Judge.
    5-2905
    365 S. W. 2d 122
    Opinion delivered February 25, 1963.
    [Rehearing denied March 18, 1963.]

      Phillip H. Loh, for appellant.

      Nathan Gordon and Felver A. Roioell, Jr., for appellee.
   Ed. F. MoFaddin, Associate Justice.

The appellant, as a citizen and taxpayer, filed á petition in the Conway Circuit Court praying for a writ of mandamus against “The Conway County Court and its Judge, Tom Scott,” as sole defendant.

The petition for mandamus, along with the amendment thereto, alleged: that the Collector of Conway County in transcribing and certifying the list of persons who paid poll tax, failed to include with the name of the poll tax payer his residence, post office address, voting precinct, and school district, all of which information is required by § 3-227 Ark. Stats.; that the County Clerk likewise failed in the same particulars; and that the Morrilton Headlight, in printing the list of poll tax payers, likewise failed in the same particulars. The petition alleged that § 3-227 Ark. Stats, “makes it mandatory upon the County Court to enforce the provision of said Act by deducting sums from the Collector for errors made in transcribing and certifying poll tax receipts . . . and the defendant refuses to assess and withhold penalties from sums due the collector of Conway County.” The prayer of the petition was: “Plaintiff prays a writ of mandamus from this Court to require the defendant to comply with the laws of Arkansas § 3-227 Ark. Stats. ’ ’ ; and the prayer of the amendment was for an order “to compel the defendant to enforce such statute (% 3-227 Ark. Stats.) by collecting the penalties owed by the Collector, Clerk, and printer for the errors committed by them.”

To the petition and amendment the defendant filed a demurrer, and also a motion to dismiss. The Court reserved decision on these two defensive pleadings until the plaintiff had offered all desired evidence; and then the Court overruled the defensive pleadings, held that the plaintiff’s proof was insufficient to grant the prayed relief, and dismissed the complaint.

From that adverse judgment the plaintiff, as appellant, brings this appeal, and urges a threshold question, which is that the defendant did not file an answer within the time provided by § 33-107 Ark. Stats., and the Trial Court should have granted the plaintiff the prayed injunction because of defendant’s default. There are several answers to this threshold question. In the first place, § 33-107 Ark. Stats, says that if no answer be filed, then “upon a proper showing suitable relief shall be speedily granted.” Even in the absence of an answer, the burden was on the plaintiff to make a “proper showing”; and that presented the question of the sufficiency of the plaintiff’s evidence. In the second place, this question of a claimed default was never mentioned in the Trial Court and cannot be raised here for the first time. See Lambert v. Lambert, 229 Ark. 533, 316 S. W. 2d 822. A third and equally conclusive answer to the appellant ’s contention on this default matter is that defendant was not in default. The original petition for mandamus was filed on June 12, 1962, and the amendment a few days later; on June 20, 1962, the defendant filed the demurrer and also the motion to dismiss. These defensive pleadings were filed in ample time and were not disposed of until the final judgment herein, so the defendant was never in default as regards defensive pleadings.

The main insistence of the appellant is that he introduced the printed list containing the names of the poll tax payers of Conway County for the year 1961 (legal voters from October 1, 1961 to September 30, 1962); that such list shows only the name and color of the voter and the township in which he resides; and that the list does not even purport to give the other information required by § 3-227 Ark. Stats., that is, it does not give the residence, post office address, and school district of each voter. In the course of the trial the appellant undertook to show errors and duplications in the printed list as filed, but was prevented from doing so by the ruling of the Trial Court that the proffered evidence was hearsay. We find no error in the Trial Court’s ruling in the hearsay matter.

We come, then, to the real insistence of the appellant, which is that the County Court and Judge thereof should be required by mandamus to enforce the provisions of § 3-227 Ark. Stats. To this issue the appellee presents here a series of answers:

(1) The appellee claims that the provisions of § 3-227 Ark. Stats, are contrary to Amendment No. 8 of the Arkansas Constitution, as construed in such cases as Wilson v. Danley, 165 Ark. 565, 265 S. W. 358; Henderson v. Gladish, 198 Ark. 217, 128 S. W. 2d 257; and Wilson v. Luck, 201 Ark. 594, 146 S. W. 2d 696. We forego any discussion of the appellee’s contention on this point because a case is not to be decided on constitutional issues if it can be decided on any other issue, as this one can. Holt v. Howard, 206 Ark. 337, 175 S. W. 2d 384; Smith v. Smith, 223 Ark. 627, 267 S. W. 2d 771.

(2) The appellee urges that § 3-227 Ark. Stats, was repealed by § 3-118 Ark. Stats. Likewise, we forego any discussion of this second point urged by appellee because there is no need to consider the question of repeal of statutes, since this case can be decided on the remaining issue.

(3) The third point urged by the appellee is that the Trial Court should have sustained the defendant’s demurrer to the complaint because the complaint did not state facts sufficient to constitute a cause of action; and it is on this point that we rest our affirmance of the Trial Court’s decree, even considering all the evidence that was introduced in the case. This is because the Trial Court reached the correct result, even on an erroneous theory. When the decision of the Trial Court is correct, it will be sustained when supported by principles of law thought by the Trial Court not to obtain. State v. Gus Blass Co., 193 Ark. 1159, 105 S. W. 2d 853; Gage v. Arh. Central, 160 Ark. 402, 254 S. W. 665; and Polk v. Stephens, 126 Ark. 159, 189 S. W. 837.

The plaintiff’s entire case was based on the provisions of § 3-227 Ark. Stats., which relates to the certified list of poll tax payers. That statute says that such list shall contain, inter alia, the name of the poll tax payer, and also the 44. . . residence, post office address, school district, and voting precinct”; and the § 3-227 further says: 4 4 For each error rendering void the poll tax receipt in the transcribing, certification, or printing of the names, color, residence, post office address, school district, or voting precinct. .. the collector, clerk, or printer making the same shall be assessed the sum of $1.00, which sum or sums shall be deducted from any sums due such officer or printer from the County when settlements are made with such officer or printer, and the enforcement hereof is made mandatory upon the County Court.” (Emphasis supplied.) It is solely because of the italicized language that the plaintiff filed this mandamus action in the Circuit Court; and we hold that the plaintiff misconceived his remedy.

The fact that the statute said that it was mandatory upon the County Court” does not mean that mandamus from the Circuit Court is the proper remedy. “Mandatory” means “obligatory”, as opposed to “directory.” Tbe plaintiff, as a citizen and taxpayer, should have appealed from any order of the County Court wherein the County Court failed to follow the statute relied on by the plaintiff. Mandamus cannot be used to correct an erroneous decision already made. Jackson v. Collins, 193 Ark. 737, 102 S. W. 2d 548. Mandamus does not issue where there is any other adequate remedy. Snapp v. Coffman, 145 Ark. 1, 223 S. W. 360; and Ghent v. State, 189 Ark. 747, 75 S. W. 2d 67. Mandamus will not be granted where there is a remedy by appeal. Cantley v. Irby, 186 Ark. 492, 54 S. W. 2d 286; Mance v. Mundt, 199 Ark. 729, 135 S. W. 2d 848; and Karoley v. Reed, 233 Ark. 538, 345 S. W. 2d 626. Mandamus is not a writ to control the discretion of an inferior tribunal. Nixon v. Grace, 98 Ark. 505, 136 S. W. 670; Cantley v. Irby, 186 Ark. 492, 54 8. W. 2d 286; Karoley v. Reed, 233 Ark. 538, 345 S. W. 2d 626; Jackson v. Collins, 193 Ark. 737, 102 S. W. 2d 548.

Since mandamus was not proper in this case, we affirm the judgment of the Trial Court dismissing the plaintiff’s complaint.

       The demurrer claimed: (1) the complaint and amendment failed to state a cause of action; (2) an absence of jurisdiction; and (3) a defect of parties.

       It is apparent that the printed list as filed was prepared in conformity with § 3-118 Ark. Stats., rather than in conformity with § 3-227 Ark. Stats.


author: George Rose Smith, J.

text:
    Hartsock v. Forsgren, Inc.
    5-2918
    365 S. W. 2d 117
    Opinion delivered February 25, 1963.

      Sexton é Morgan, for appellant.

      Shaiv, Jones & Shaio, for appellee.
   George Rose Smith, J.

This is an action brought by the appellant, individually and as the next friend of her minor son, Billy Avery Faulkner, to recover damages for personal injuries suffered by the child. The circuit court sustained a demurrer to the complaint and dismissed the suit. The only question is whether the plaintiff’s pleading states a cause of action for negligence.

The complaint avers that the defendant, in the course of its business, maintained a large tank for the storage of tar. Despite repeated protests (presumably by the plaintiff or other neighbors), the defendant allowed the tar to spill over, so that it flowed from the defendant’s premises into an area where the plaintiff’s son and other members of the public were accustomed to walk and play.

On July 7, 1961, Billy Avery, then nine years old, walked into the tar to such a depth that Ms feet were covered up to his ankles. When the child reached his home his parents, “upon seeing the tar on his feet and recognizing the necessity that all of the same promptly be removed therefrom, did attempt to remove the same in the most prudent and careful manner possible by taking said child into the middle of their back yard to remove said tar by the use of gasoline, the only effective cleaning-substance available at the time.” While the parents were so engaged a second child ran into the yard and unexpectedly exploded a cap-pistol cap, creating a spark that ignited the gasoline fumes and resulted in serious burns to Billy Avery’s legs.

The circuit court was right in sustaining- the demurrer, for the facts do not show that the child’s injuries were proximately caused by negligence on the part of the defendant. We reach this conclusion whether we devote our attention primarily to the question of negligence or to that of proximate cause. The two things, as we observed in Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797, shade into each other. We need not now attempt to draw fine lines of distinction.

To be negligent a person must be in a position to realize that his conduct involves a hazard to others. In the Hill case we described a negligent act as “one from which an ordinary prudent person in the actor’s position —in the same or similar circumstances — would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.” Later, in Collier v. Citizens Coach Co., 231 Ark. 489, 330 S. W. 2d 74, we added: “Foreseeability is an element in the determination of whether a person is guilty of negligence and has nothing whatever to do with proximate cause.” Moreover, when the voluntary acts of human beings intervene between the defendant’s act and the plaintiff’s injury, the problem of foreseeability is still the same: Was the third person’s conduct sufficiently foreseeable to have the effect of making the defendant’s act a negligent one? Harper & James, The Law of Torts, § 20.5; Rest., Torts, § 447.

This defendant, in allowing tar to overflow into an area used as a playground, could be charged with the duty of anticipating the likelihood that a child might get pitch upon his feet. But this possibility does not involve, in the language of the Hill case, such an appreciable risk of harm as to cause an ordinarily prudent person either not to do the act or to do it in a more careful manner. It is a commonplace everyday occurrence for children to get tar or other harmless viscous substances upon their skin. Such matter may be, and ordinarily is, washed off without any danger whatever to the child. To hold that this defendant was under a duty to guard against the remote chance of what actually occurred in this case would be in effect to strike the element of foreseeability from the concept of negligence in such a situation and thus to impose an absolute liability upon persons handling tar and similar innocuous substances.

With respect to proximate cause the term is usually defined as a cause which, “in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” Collier v. Citizens Coach Co., supra; Ben M. Hogan & Co. v. Krug, 234 Ark. 280, 351 S. W. 2d 451. Testing the case by this definition, it is apparent that proof of every fact alleged in the complaint would not present an issue for the jury, since the overflow of the tar did not lead in a natural and continuous sequence, unbroken by any efficient intervening cause, to the accidental igniting of gasoline fumes in the Hartsocks’ backyard.

A much stronger case than this one for the imposition of liability was considered in Pittsburgh Reduction Co. v. Horton, 87 Ark. 576, 113 S. W. 647, 18 L.R.A., N.S. 905. There the defendant carelessly discarded dangerous dynamite caps in a place where they were picked up by a child. By contrast, the present appellee created a condition that was essentially harmless. In the Horton case we held that the action of the child’s parents, in permitting.him to keep the dynamite caps for a week, exempted the defendant from liability when one of the caps later exploded and injured another child. There the parents’ intervening conduct was merely a passive failure to correct a hazardous situation. Here it was the appellant and her husband who actively introduced the highly dangerous and inflammable liquid that caused the injury. (Needless to say, the allegation that the parents acted in the most prudent and careful manner is a conclusion of law not admitted by demurrer. Seubold v. Fort Smith Spec. Sch. Hist., 218 Ark. 560, 237 S. W. 2d 884.) Upon the authority of the Horton case we must conclude that the appellee’s conduct was not the proximate cause of the accident giving rise to this suit.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Adams v. Tackett, County Judge.
    5-2934
    365 S. W. 2d 125
    Opinion delivered February 25, 1963.

      James H. Pilkinton, for appellant.

      R. T. Bouhvare, H. L. Wilkinson, Boyce Weisenherger, John W. Goodson, Bose, Meek, House, Barron, Nash & Williamson, for appellee.
   Paul Ward, Associate Justice.

In separate memorandum opinions (dated June 2 and July 25, 1962) the circuit court approved certain steps taken by the County Judge and County Court of Lafayette County to procure and develop industry in said county under the provisions of Amendment No. 49 of the State Constitution. Appellants, as taxpayers, now prosecute this appeal for a reversal on grounds hereafter set out and discussed. Because of the limited issues raised it is not necessary to copy or fully abstract much of the testimony or the numerous exhibits contained in the record.

On March 7, 1962 appellee, the County Judge of Lafayette County, signed an order consisting of four pages, detailing a proposed bond issue in the amount of $210,000 under the provisions of Amendment No. 49 to the Constitution of Arkansas for the purpose of securing and developing industry within the county. The order calls for an election to be held April 10, 1962, sets forth the form of ballot to be used, and specifies four weeks notice in a newspaper — all in regular and approved form. The notice was given, the election was held, and the vote was 1,205 for and 888 against the bond issue.

On April 11, 1962 the county judge signed an order (four pages) directing that notice be given of the sale of $210,000 of bonds “for the purpose of aiding in securing and developing industry within Lafayette County” —to be held May 10, 1962. The procedural steps and the form and contents of the orders are not challenged.

Certain taxpayers took an appeal from the above mentioned orders to the circuit court, and other taxpayers asked the circuit court to review the orders on a petition for a writ of certiorari. Pending a hearing on the above, White and Company, Inc. (the company purporting to establish an upholstery business under a memorandum agreement with the county judge, dated February 26, 1962) filed an intervention, claiming it was interested in the pending litigation. To this pleading the taxpayers filed an answer and cross-complaint stating, among other things, that Amendment No. 49 requires a final contract before bonds can be legally issued. To the above cross-complaint White and Company, Inc. filed a demurrer which the trial court sustained.

Certified copies of the orders previously mentioned, together with other exhibits were filed in the circuit eourt, and testimony was introduced. Thereupon the trial court found all issues against the appellants (taxpayers), and this appeal follows.

Appellants make the following contentions: One, the two orders signed by the county judge are not valid; and, Two, the trial court erred in sustaining the demurrer filed by White and Company, Inc.

One. It is the contention of the taxpayers that the order dated March 7, 1962, calling the election, and the order dated April 11, 1962, directing notice of the bond sale, are invalid because the county court was not legally in session when the orders were entered. There is no merit in this contention, considering the applicable law and the facts of the case as shown by the record. Ark. Stats. § 22-115 reads:

“If any court shall not be held on the first day of the term, such court shall stand adjourned from day to day, until the evening of the third day.”

Section 22-116 reads:

“If at that time the court shall not be opened such court shall stand adjourned until the next regular term, and all cases, civil, penal and criminal shall stand adjourned over until the next term of such court.”

A reference to the Revised Statutes, Chapter 43, and Ark. Stats. 7 22-101 leaves no doubt that the above quoted statutes deal with county courts.

There is ample testimony in the record to support the trial judge’s finding that Judge Tackett (the County Judge) transacted county court business within the first three days of the January Term and the April Term, 1962. The county clerk testified the records showed court was held on January 3, 1962 and on April 2, 1962. Judge Tackett testified likewise, and the circuit court entered its finding in accord therewith. Appellants also point out there is no showing that the sheriff was present as required by Ark. Stats. § 22-614 or that court was held with open doors as required by Ark. Stats. § 22-608. In our opinion the last section simply means the doors shall not be locked or that people shall not be prevented from attending court. There is nothing in the record to show either of these situations obtained in this ease. We interpret the other section to mean the sheriff can be forced to attend a session of the county court, but not that he could prevent a session from being legally held merely by staying away. Any other interpretation would be most unreasonable.

Two. In the cross-complaint (to the intervention) filed by the taxpayers it was in substance alleged: The memorandum agreement dated February 26, 1962 was never approved by the county court, and is not legally binding on the county; The bond issue is not for the best interest of the county; Amendment No. 49 requires a final contract containing all details before any bonds are sold; and, no tax can be voted without the county court’s approval.

In our opinion the trial court properly sustained the demurrer to the above cross-complaint. If, as alleged, the memorandum agreement is invalid, that is no legal defense to the procedure followed by the county judge for he was in no way relying on it. Under the provisions of Amendment No. 49, the people, by their votes, decide whether a project of this kind is or is not for their best interest. The trial court was correct in finding that Amendment No. 49 does not require a final contract before bonds can be issued. Insofar as the amendment requires, the contract can be (and perhaps should be) executed after the bonds are sold. It is only then that the parties are in a position to make definite commitments. Most of appellants’ professed fears should be allayed by the language found in Section 5 of the amendment which insures that

“. . . the County Court of the county shall exer cise jurisdiction over the sale or exchange of any such bonds voted by the electors at an election held for that purpose and shall expend economically the funds so provided. ’ ’

As stated in the case of Hackler v. Baker, County Judge, 233 Ark. 690, 346 S. W. 2d 677, we see no reason why money derived from the sale of bonds in this case “. . . should not be subject to the same safeguards as any other revenues,” under the general law. Any taxpayer of Lafayette County will have the same right to challenge any future order of the county court relative to this undertaking that he had to challenge the previous orders, or to challenge any order affecting his interest.

Finding no error, the judgment of the trial court is affirmed.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Seabourn v. State.
    5063
    365 S. W. 2d 133
    Opinion delivered February 25, 1963.

      Martin L. Green, Edward E. Bedwell and J. Sam Wood, for appellant.

      Jack Holt, Jr., Attorney General, by Jack L. Lessen-berry, Chief Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Billy Seabourn, was charged in Sebastian County with murder in the first degree in the killing of George Schuh, a soldier. He was convicted of murder in the second degree, sentenced to 21 years in the penitentiary, and has appealed.

Appellant owned and operated the Hi Boy Bar in Ft. Smith. There are two rooms. In the front room there are booths, a bar where beer is dispensed, and a music machine. In the back room there are booths, a small dance floor, and a speaker connected with the music machine.

About 1 a. m. on June 28, 1962, appellant, while in his place of business, shot and killed George Schuh, a private in the Army. Schuh was shot in the back of the head with a .38 caliber pistol held in the hands of appellant, who claims that the shooting was accidental while acting in self defense.

The principal contention of appellant on appeal is that the evidence is not sufficient to sustain a conviction of murder in the second degree.

Ark. Stats. 41-2201 provides: “Murder is the unlawful killing of a human being, in the peace of the State, with malice aforethought, either express or implied”. 41-2205 defines murder in the first degree as: “All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree. ’ ’ All other murder is murder in the second degree. Ark. Stats. 41-2206.

Oil appeal, the evidence must be viewed in the light most favorable to the State. Wooten v. State, 220 Ark. 750, 249 S. W. 2d 964.

Appellant did not work at the Hi Boy Bar on the day of the killing. There were two employees on duty, Jack Jones, the bartender, and Ellen Rink, a waitress. Appellant was in and out of the place two or three times that day. The last time he went there was shortly after 10 p.m. and he stayed until after the killing, which occurred about 1 a.m. He drank several beers.

Beer was not served after 12:45 a.m. and the place closed at 1 a.m. Between 12:30 and 1 a.m., George Schuh, who was killed a very short time after he entered the bar, came into the place and went into the back room looking for a couple of friends. There were six or eight soldiers in the back room who had been there for some time drinking beer. Some of them had tried to date the waitress, Ellen Rink, and had “made passes” at her. She complained about the soldiers’ conduct in that respect and stated that she did not want to serve them any more beer; the last round of drinks was, therefore, taken to the soldiers by the bartender, Jones. The soldiers were laughing and drinking.

The appellant, Seabourn, who had been sitting at the bar since some time after 10 o’clock, went into the back room a few minutes before 1 o’clock and told the-soldiers that it was about time to close and time for them to leave. According to appellant, one little fellow got up and took his glass of beer back to a booth in the rear of the room, and Schuh placed his hand on Seabourn’s shoulder and told him that they would leave in a few minutes. Seabourn testified that he went back to the bar and got his .38 revolver that he kept in a drawer and went again to the back room for the purpose of getting the soldiers to leave, carrying the pistol as a bluff, thinking that the sight of the weapon would hurry the soldiers along.

The soldiers did leave and Seabourn claims that he followed them out to near the front of the building; that after all the soldiers were out except Schuh, and perhaps one other, Schuh turned around and Seabourn claims that he struck Schuh with the .38 pistol thinking that Schuh was about to attack him, and that the gun went off accidentally.

But Ellen Rink, the waitress, testified that it was when the soldiers were actually leaving, and were in the front room on the way out the door that Seabourn got the pistol and followed them. In any event, Schuh was-shot in the back of the head, and appellant was unable to explain to the satisfaction of the jury just how he could have been shot in that manner if he was facing appellant.

Appellant’s version of the killing is not corroborated by the circumstances. In the first place, he claims that at the time he struck Schuh with the revolver it was in a holster. The holster — one with a closed end — was found on a table in the bar, and there was no bullet hole in it. After .the shooting there remained in the barroom one soldier, a Sgt. Redmond; the bartender, Jack Jones; the waitress,. Ellen Rink; and appellant, with the body of Schuh, who apparently was killed instantly.

■ A few minutes after the shooting, appellant’s wife arrived and she, appellant, and Redmond took Schuh to the hospital in appellant’s car. While at the hospital, appellant called the bartender, Jack Jones, and told him to get rid. of the .38 pistol; that he had hidden it behind the speaker. ■ However, Jones found the pistol on the floor where it must have fallen from behind the speaker. He and the waitress, Ellen Rink, put the pistol in Ellen’s purse, where it was found by officers the next day.

Appellant is married, but he had been dating the waitress, Ellen Rink. He had been drinking over a period of several hours, and although he contends that he consumed only a few beers, he could have been angry with the soldiers for having tried to date Ellen and having made passes at her. The soldiers had done or said nothing that justified appellant in getting his pistol and following them to the door. They were his customers, laughing and having a good time and drinking what he had to sell. If they sought to date the waitress it was nothing more than the natural result of having imbibed of appellant’s stock in trade. Moreover, since appellant is a married man, the soldiers were probably at greater liberty to date Ellen than was appellant.

There is not a scintilla of evidence that would lead any reasonable person to believe that Schuh was about to make an attack on appellant. But appellant did make a murderous attack on Schuh with a deadly weapon, if only used as a club. Ark. Stats. 41-2202 provides : ‘ ‘ The manner of the killing is not material, further than it may show the disposition of mind, or of the intent with which the act was committed”. 41-2204 provides: “Malice shall be implied when no considerable provocation appears or when all the circumstances of the lolling manifest an abandoned and wicked disposition”.

Ark. Stats. 41-2246 provides: “The killing being proved, the burden of proving circumstances of mitigation, that justify or excuse the homicide, shall devolve on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest, that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide. ’ ’

No witness testified that he actually saw the shooting; the defendant is the only person who knows how it, occurred, and the jury did not believe his unreasonable version of it. It was proved beyond any doubt that appellant killed the deceased with a deadly weapon by shooting him in the back of the head.

In Higdon v. State, 213 Ark. 881, 213 S. W. 2d 621, the Court quoted from Townsend v. State, 174 Ark. 1180, 298 S. W. 2 as follows: “The law implies malice where there is a killing with a deadly weapon and no circumstances of mitigation, justification, or excuse appear at the time of the killing. Inasmuch as no one can look into the mind of another, much latitude is allowed in the introduction of testimony on the question of motive, and the only way to decide upon the mental condition of the accused at the time of the killing is to judge it from the attendant circumstances.”

The intent to kill is not necessary to constitute murder in the second degree. Wooten v. State, 220 Ark. 750, 149 S. W. 2d 964.

Appellant objected to the failure of the Court to instruct the jury that the intent to kill was a necessary element of voluntary manslaughter. We fail to see how this could have been prejudicial to the appellant since he was convicted to second degree murder, but be that as it may, the intent to kill is not a necessary element in the crime of voluntary manslaughter. Robertson v. State, 212 Ark. 301, 206 S. W. 2d 748.

Appellant complains of the Court refusing to give a requested instruction telling the jury that in the event they found the defendant guilty of homicide and had a reasonable doubt as to the degree, they should give him the benefit of the doubt and find him guilty of the lower degree. The Court, on its own motion, gave a complete instruction fully and correctly explaining this point to the jury.

Finding no error, the judgment is affirmed.


author: Jim Johnson, Associate Justice. Sam Robinson, Associate Justice

text:
    Jeffery v. Gordon.
    5-2900
    365 S. W. 2d 128
    Opinion delivered February 25, 1963.

      Holt, Park & Holt, for appellant.

      Shelby B. Blackmon, Wm. A. Eldredge, Jr., and George E. Pike, Jr., Mehaffy, Smith, Williams, Friday dt Bowen, for appellee.
   Jim Johnson, Associate Justice.

This action was brought by appellant, Elmer Jeffery and John W. Mc-Cracken, d/b/a J. W. McCracken, Contractor, against appellees Norman N. Graves and Warren L. Graves, d/b/a Graves Brothers, Contractors, and C. D. Gordon, Contractor, to recover damages to a highway overpass which appellant alleged was proximately caused by the negligence of appellees in parking a truck-load of baled hay beneath the steel and concrete span. A fire from unknown origin burned the hay and the heat thus generated, warped and damaged the overpass. Appellant was required to repair the damaged portion of the overpass before it could be accepted by the Arkansas Highway Department.

At the close of appellant’s evidence, appellees’ motion for a directed verdict was granted by the trial court. From that verdict comes this appeal.

By way of prelude, we find ourselves in agreement with Professor William Prosser who commented on the causation factor in his learned treatise on the law of tort: “There is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which opinions are in such a welter of confusion. ’ ’ Prosser, Torts 218 (2d ed.). Our own reported cases are full of attempts to fix and define within certain limits a comprehensible meaning to the term ‘ ‘ proximate cause ’ ’, but in the final analysis the term is so elusive that we are compelled in each case which reaches us to consider it upon its own merits in the light of all the attending circumstances it presents. This case is no different.

The law is well settled in this state that before one can be held liable for an alleged negligent act, that act must be the proximate cause of the injury complained of, and also be of such a nature that the consequent injury should be one which, in the light of attending circumstances, a person of ordinary foresight and prudence would have anticipated. Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 133 S. W. 816, 31 L.R.A., N.S. 1020.

The first question we are asked to resolve is: did appellant offer evidence that the act of parking the truck of baled hay beneath a steel and concrete structure constituted negligence, and if so, was that act the proximate cause of appellant’s injury? The lav? is equally well settled that proximate cause must be shown. Meeks v. Graysonia, N. & A. R. Co., 168 Ark. 966, 272 S. W. 360. Assuming without deciding that the act of parking the hay was an act of negligence we must consider the second portion of the question. Did appellant offer proof of any nature that this act was the proximate cause of the injury? We think the answer is found in appellant’s entire offer of proof on causation, which we set out in full from the record:

“Direct Examination
Q. State your full name to the jury.
A. Bill Struebing.
Q. By whom are you employed?
A. Arkansas State Police. •
Q. What division are you in?
A. Fire Marshal Section.
Q. How long have you been in that section?
A. Since it was transferred to the State Police in 1955.
Q. You are head of that section?
A. Yes.
Q. Have you received any particular training in that field as fire marshal work?
A. I have attended schools in Oklahoma, A & M now Oklahoma University and I have attended Purdue University and University of Texas.
Q. During these courses of studies have you had occasion to study the sources of heat and fire potential of hay and straw?
A. Yes sir.
Q. During the five years you have been chief of the fire marshal section have you had occasion to make investigations and studies of fires and fire with relationship to burning of buildings?
A. Yes we have investigated fires in hay barns and structures of that type.
Q. Can you state from your studies and from your experience whether or not hay is said to be highly inflammable substance?
A. Yes it is classified as such.
Q. "Will you state whether or not straw is classified as such?
A. General classification would be vegetation such as hay and straw, broom corn, tobacco and crops of that nature.
Q. They all fall under the same general category?
A. Yes.
Q. Will you state whether or not under certain given conditions straw might be combustible?
A. You are talking about spontaneous ignition. If the moisture content is over thirty there is a possibility of fermentation which causes heat and if allowed to generate over a period of time it can generate enough heat to where fire will occur.
Q. This can happen under certain given situations as far as straw is concerned?
A. Hay and straw that classification with the moisture content.
Q. You can not make a determination on investigation unless you make an extensive study of the product at a given time?
A. Yes as to humidity and things of that nature.
Q. With reference to the discussion we had concerning this fire, you were not called in to investigate this matter?
A. No sir. That was not brought to our attention.
Cross Examination
Q. Will you explain what is hay?
A. Hay, in my opinion, would be a crop that could be fed to cattle.
Q. What is straw?
A. Straw is a byproduct of a grain crop after the grain has been removed.
Q. Is there any difference in your opinion whether hay or straw as to the combustibility?
A. After the heat is built up they both burn with rapid combustion.
Q. What do you mean by rapid combustion?
A. Well rapid, rapid oxygenation after a certain temperature is reached the fuel involved in this area will rapidly ignite and a rapid fire spread will be the result.
Q. Is there any difference in the combustibility of hay and straw?
A. Again the moisture content would have some bearing, that and humidity.
Q. As far as the two, when the moisture content is the same is there any difference in the combustibility?
A. It would take less heat to ignite this leaf than straw if the heat temperature were raised to that degree both would ignite possibly at the same rate.
Witness excused.”

From the foregoing testimony, which was the only offer by appellant as to causation, all the court and jury were told is that under certain circumstances and conditions hay is subject to spontaneous combustion, or, as the witness said, spontaneous ignition. The court and jury were not told that these same or similar circumstances existed at the place and time the hay became ignited from a cause appellant concedes is unknown and which appellant argues must be left to conjecture.

Causation is a fact as much as negligence is a fact. It must be proved. Meeks v. Graysonia N & A R Co., supra. We unhesitatingly reject any suggestion that conjecture and fact are on an equal plane. Biddle v. Jacobs, 116 Ark. 82, 172 S. W. 258. To avoid conjecture in the instant case, appellant should have offered some substantial evidence, however slight, that the same or similar circumstances and conditions within the hay itself (such factors as suggested by appellant’s expert witness, i.e., moisture content, humidity, etc.) constituted such a hazard that appellees could have or should have foreseen the consequences of the act of parking that load of hay at that place and at that time, or some other causation traceable to appellees.

It is within common knowledge of mankind that hay is combustible. But it is not within common knowledge of mankind what circumstances and conditions must exist to cause hay to burst into flame from heat it has generated. Appellant produced adequate evidence to show the necessary circumstances and conditions which could cause hay to ignite spontaneously. But after giving appellant’s evidence its strongest probative force and every legitimate inference that may be adduced from the testimony and exhibits, St. Louis S. R. Co. v. Britton, 107 Ark. 158, 154 S. W. 215; Cousins v. Cooper, 232 Ark. 605, 339 S. W. 2d 316, there is a total failure of evidence to show that these circumstances existed or that appellee knew or should have known that these existed at the time and place of the act for which appellant complains.

It therefore follows that failure by appellant to submit evidence to place the fact of causation into dispute created no question of fact for a jury to decide. The trial court properly ordered a directed verdict. To hold otherwise could make hay handlers insurers as a matter of law.

The second question, which involves the relationship of master and servant between the appellees, has now become moot.

Affirmed.

Robinson, J., dissents; Holt, J., not participating.

Sam Robinson, Associate Justice

(dissenting). The Court instructed the jury to find for the defendants, appellees.

On appeal there are two questions to be decided. First, was the evidence sufficient to take the case to the jury on the question of whether appellees were negligent in leaving a load of hay in such proximity to the bridge that the bridge was damaged when the hay caught fire. The majority has assumed that the evidence is sufficient to prove negligence in that respect.

The second question is whether the evidence is sufficient to take the case to the jury on the question of proximate cause. The majority has held as a matter of law that the conceded negligence was not the proximate cause of the damage to the bridge. I maintain that it was a question'for the jury as to whether appellees’ negligence was the proximate cause of the damage.

In discussing proximate cause, Professor Prosser says: “In cases where reasonable men might differ— which will include all but a few of the cases in which the issue is in dispute at all — the question is one for the jury.” Prosser on Torts, Second Ed., P. 281.

This Court said in Federal Compress & Warehouse Co. v. Free, 190 Ark. 969, 82 S. W. 2d 253: “The question of proximate cause, as this court has already said, is not one of science or legal knowledge, and is a question ordinarily for the jury, to be determined as a fact from the particular situation, in view of the facts and circumstances surrounding it. The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments . . . Several incidents may occur in regular or natural sequence, but it is not necessarily true that the primary cause thereof is, on that account, not the proximate cause of the injury suffered.” (Emphasis ours.) To the same effect is Pulaski Gas Light Co. v. McClintock, 97 Ark. 576, 134 S. W. 1199.

In Dixie Furniture Co. v. Deason, 226 Ark. 742, 293 S. W. 2d 706, the furniture company moved a stove and failed to cap a gas pipe. One of the issues in the case was whether the failure to cap the pipe was the proximate cause of an explosion. This Court said: “Whether the failure to put a cap on the pipe was the proximate cause of the injuries was a question for the jury.”

In Booth & Flynn v. Price, 183 Ark. 975, 39 S. W. 2d 717, this Court said: “ It is claimed, however, by counsel for appellants that this was not the proximate cause of the injury of appellee. They insist that his own conduct in going into the flames to turn off the stopcock near the main tank was an intervening cause, and that therefore appellants are not liable. The general rule is that what is the proximate cause of an injury is a question for the jury. It is to be determined as a fact in view of the circumstances attending it.” A judgment for the plaintiff was affirmed.

If reasonable men might differ as to whether an act or omission is the proximate cause of damages sustained, that question should be submitted to a jury. It is said in Coca Cola Bottling Co. v. Shipp, 173 Ark. 130, 297 S. W. 856; “In every case where fair-minded men would honestly differ about a question, that fact makes it a question for the jury and not for the court.”

It being shown beyond any possibility of doubt that proximate cause is a jury question where the minds of reasonable men might differ, it only remains to be pointed out that the evidence in this case is such that reasonable men might differ on that question.

In tlie majority opinion it is stated: “It is within common knowledge of mankind that hay is combustible. ’ ’ Mr. Bill Struebing of the State Fire Marshal’s office, testified that hay is highly inflammable and classified as such. In fact, it is so inflammable that it will spontaneously ignite under certain conditions.

In Gibson Oil Co. v. Sherry, 172 Ark. 947, 291 S. W. 66, an employee of the oil company negligently allowed a mixture of gasoline and water to run down a gutter in the street. Sherry, standing on the curb, lit his pipe and threw the match into the gutter, igniting the gasoline and the resulting fire destroyed Sherry’s automobile. A judgment for Sherry was affirmed. Of course, before the jury could find for the plaintiff, they had to find that the act of allowing the gasoline to run into the street was a proximate cause of the damages.

In Eisenkramer v. Eck, 162 Ark. 501, 258 S. W. 368, a judgment for Eck was affirmed. Eisenkramer had permitted trash and weeds to accumulate on property adjoining Eck; such matter caught fire and destroyed Eck’s barn. Of course, it was a jury question of whether Eisenkramer’s act of allowing the weeds and trash to accumulate was the proximate cause of the burning of Eck’s barn.

In the case at bar, a truck load of highly inflammable material was placed directly under the bridge where a carelessly dropped match or cigarette, or lightning for that matter, could set it on fire. It is conceded that the evidence is sufficient to show that appellees were negligent in leaving the hay at that point. It was a question for the jury whether such negligence was the proximate cause of the damage to the bridge.

In my opinion the trial court erred in directing a verdict for appellees. For this reason I respectfully dissent.


author: Frank Holt, Associate Justice.

text:
    Darsow v. Landreth.
    5-2901
    365 S. W. 2d 136
    Opinion delivered February 25, 1963.

      Huey & Rothwell, by William D. Rothwell, for appellant.

      Mahony db Yocum, Broivn db Compton, Tom Haley, for appellee.
   Frank Holt, Associate Justice.

This action began by the Cameron Crude Oil Corporation filing a Bill of Inter-pleader for the purpose of determining the true owners of certain oil royalties it holds so that Cameron would know to whom the royalties legally should be paid. The interpleader, Cameron, is the owner and operator of a pipe line and purchases and runs crude oil from oil wells which include two wells on the property in question. Cameron has accumulated and paid the funds into the registry of the court.

The appellant, Marie E. Darsow, claims she is the sole owner of these funds. The appellees, Letha K. Landreth and numerous other parties hereinafter named, claim they, and not Marie E. Darsow, are the owners thereof. Darsow asserts that her claim arises from a deed dated May 4,1923, executed by Ben and Minnie Fife.

The primary issue involved in this case is the construction and interpretation of this deed which is a “Mineral Deed and Royalty Contract” conveying an undivided one-half interest “in and to all of the oil, gas and other minerals” that might be produced from certain described lands in Bradley County, Arkansas.

The deed recites that the consideration of $200.00 was paid by V. C. Wall; the granting clause designates Susie C. Eikner as the grantee of an undivided one-half interest in the property in question; the granting clause recites further that the deed is subject to an oil and gas lease [same date as deed] from Fife to Wall, the delay rentals clause is in favor of “V. C. Wall or her heirs or assigns,” that in the event the lease is allowed to become ineffective for any reason “the lease interest and all future rentals on said land, for oil, gas and mineral mining privileges shall be owned jointly by Ben Fife and V. C. Wall;” the habendum clause is in favor of “Y. C. Wall and unto his heirs and assigns forever”; the deed recites the grantors are “to warrant and forever defend” said property “unto the said V. C. Wall and unto her heirs and assigns; ’ ’ the release of dower and homestead rights by Minnie Fife was “unto and in favor of the said Y. C. Wall.” This deed was recorded as of May 19, 1923 and is hereinafter referred to as the ‘ ‘ Eikner Deed.” [Emphasis added]

As stated, this deed was dated May 4,1923. On June 26, 1923, V. C. Wall and Maggie B. Wall, his wife, reconveyed this same property by quitclaim or release deed to the Fifes. This quitclaim or release deed is recorded as of September 19, 1923. Hereafter it is referred to as the “Wall Deed.”

Ben Fife died intestate prior to 1929. Beginning in 1929, Ms widow and heirs made several conveyances through which the undivided one-half interest in question was conveyed to and is now claimed by the following persons: Letha K. Landreth, 1/8; Sue Turley Montgomery, 1/16; W. Shannon Goodwin, Olive L. Goodwin and Mary G. Meinert, 1/64; Wong Wingshear, 1/32; Wong Sam 1/32; First Presbyterian Church of El Dorado, Arkansas, 1/64; Roy Fife, 7/192 and Dr. J. G. Ferguson, 35/192. These parties are the appellees.'

The proportions claimed by the appellees add up to an undivided one-half interest which is the same undivided one-half interest claimed by the appellant, Marie E. Darsow, through the “Eikner Deed.”

Marie E. Darsow, the appellant, is the daughter of Susie C. Eikner, now deceased. On July 5, 1953, Susie C. Eikner conveyed the undivided one-half interest in question to her said daughter. This deed is recorded as of September 4, 1953. We shall refer to it as the “Darsow Deed.”

The trial court held that the “Eikner Deed” created a resulting trust in favor of V. C. Wall; that Wall, as such cestui que trust, reconveyed to the Fifes by the “Wall Deed” all the interest the Fifes had conveyed by the “Eikner Deed;” that the execution of the “Darsow Deed” was a violation of the trust by the trustee, Mrs. Eikner, under the ‘ ‘ Eikner Deed ’ ’; that Darsow is not a bona fide purchaser; and ordered Darsow, as successor to the trustee, to execute a deed to the appellees.

From this decree the appellant, Darsow, brings this appeal and for reversal relies on five points which, for purposes of discussion, will be merged into two major points:

1. The court erred in finding a resulting trust in favor of V. C. Wall.

2. Even if a resulting trust were created, the court erred in not finding Darsow to be a bona fide purchaser who took free of the trust.

We agree with the trial court’s interpretation and construction of the “Eikner Deed” that a resulting trust was created. In this case the consideration was paid by Y. C. Wall and the title taken in the name of Mrs. Susie C. Eikner.

“Resulting trusts arise where the legal estate is disposed of or acquired, not fraudulently or in the violation of any fiduciary duty, but the intent, in theory of equity, appears or is inferred or assumed from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go with the legal title. In such case a trust results in favor of the person for whom the equitable interest is thus assumed to have been intended, and whom equity deems to be the real owner.” Stacy v. Stacy, 175 Ark. 763, 300 S. W. 437, quoting from Bray v. Timms, 162 Ark. 247, 271 and 272, 258 S. W. 338.

“* * * In Murchison v. Murchison, 156 Ark. 403-407, 246 S. W. 499, 500, we said: ‘while it is necessary that the proof to establish a resulting trust should be clear, satisfactory and convincing, it is not essential that it be undisputed.’ In Reeves v. Reeves, 165 Ark. 505, 264 S. W. 979, we held, quoting syllabus: ‘In order to constitute a resulting trust, the purchase money or a specified part of it must be paid by another, or secured by another at the same time or previously to the purchase, and must be a part of that transaction.’ ” Stacy v. Stacy, supra.

The deed itself is the best evidence that a resulting trust was intended. In this deed there is a solemn recital that V. C. Wall paid the consideration of $200.00 and took the title in the name of Mrs. Susie C. Eikner. Mrs. Eikner’s name does not appear again anywhere in this deed, although the name of Y. G. Wall, as previously stated, appears several times in other vital portions of the deed. This court has held that a resulting trust can arise by implication of law and by the circumstance that the money of the real purchaser [Wall] and not that of the grantee [Eikner] in the deed forms the consideration. Stacy v. Stacy, supra; Wilson v. Wilson, 211 Ark. 1030, 204 S. W. 2d 479.

A resulting trust must be established by evidence that is clear, convincing and satisfactory. Wilson v. Wilson, supra; Keith v. Wheeler, 105 Ark. 318, 151 S. W. 284. We think the evidence in this case meets these requirements. Not only does the “Eikner Deed” reflect proof of a resulting trust, the subsequent quitclaim deed shortly thereafter from Wall to the Fifes reaffirms such intent of the parties.

However, where the purchase price is paid by one party, such as Wall in this case, and the title is taken in the name of another, such as Mrs. Eikner, this presumption of a resulting trust is rebuttable. Dobbs v. Dobbs, 225 Ark. 397, 282 S. W. 2d 812. On this issue the court found that Mrs. Eikner was never in possession of the “Eikner Deed”; that Mrs. Eikner did not recognize that she had any interest in the disputed property until 1953 when an agent for an oil company approached her about securing an oil and gas lease on the property in question, after which she deeded it to her daughter, Mrs. Darsow. There was no proof that Mrs. Eikner furnished the money for the consideration. According †«< Mrs. Darsow, Mrs. Eikner’s brother was in El Dorado, Arkansas during 1923 and was using some of Mrs. Eikner ’s money to lease and purchase mineral interests in Arkansas. There is no proof that the brother knew Wall, but according to Mrs. Darsow, her mother was acquainted with Wall. The court also found there is no evidence or proof that Wall was the agent for the grantee, Mrs. Eikner, in this transaction.

We agree with the trial court that this proof is insufficient to rebut the proof of a resulting trust when considered in the light of the solemn recitals of the “Eikner” and “Wall” deeds.

Appellant contends that there was no consideration paid by Wall to the Fifes for the May 4, 1923 deed and, therefore, there can be no resulting trust in favor of Wall who did not pay any consideration. The answer to this argument is simple and brief. The deed from the Fifes to Wall recites:

“* * * for and in consideration of the sum of Two Hundred Dollars ($200.00) to ns cash in hand paid by Y. C. Wall of El Dorado, Arkansas, the receipt whereof is hereby acknowledged, * * *.”

We have held that: “* * * Parol testimony is admissible to show the true consideration upon which a deed rests, but may not be used to show there was no consideration.” Mitchell v. Smith, Adm., 206 Ark. 936, 175 S. W. 2d 201. [Emphasis added] See also Toney v. Raines, 224 Ark. 692, 275 S. W. 2d 771. The testimony of Mrs. Minnie Fife Shinpoch, widow of Ben Fife, that Wall did not pay the $200.00 as recited in the deed was inadmissible to destroy this resulting trust. Therefore, appellant offers no valid objection on this point.

A beneficiary of a resulting trust, such as Wall, may transfer his interest. Honnett v. Williams, 66 Ark. 148, 49 S. W. 495; Restatement of Trusts, 2d, § 407; Scott on Trusts, § 407. V. C. Wall had a right to reconvey to the Fifes all his beneficial interest that had been conveyed under the “Eikner Deed”. This quitclaim deed terminated the interest of Wall and left Mrs. Eikner, who had the naked legal title, with no further interest in the disputed property. This reinvested in the Fifes title to the questioned property and made it subject to valid transfers by them to the appellees.

The appellant contends that even if the “Eikner Deed” created a resulting trust, Marie Darsow is still entitled to the one-half undivided interest as she is a bona fide purchaser of the interest from the trustee. It is true that a bona fide purchaser from the trustee takes the property free of the trust. Ellis v. Nickle, 193 Ark. 657, 101 S. W. 2d 958. The essential elements of a bona fide purchase are: (1) valuable consideration, (2) the absence of notice, and (3) the presence of good faith. Manchester v. Goeswich, 95 Ark. 582, 130 S. W. 526.

As stated by the trial court, the transaction was between the mother and daughter; the consideration was nominal with no independent evidence of payment of the consideration; the daughter had actual knowledge that the mother did not have possession of the “Eikner Deed”; and Mrs. Darsow had record notice of the resulting trust in the “Eikner Deed” since such deed and the “Wall Deed” were recorded in 1923. Therefore, it cannot be said under the proof in this case that Mrs. Darsow is a bona fide purchaser.

Having carefully reviewed all the points relied upon by appellant, we are of the view that the trial court is correct and its decree is accordingly affirmed.


text:
    Victor Broadcasting Co., Inc. v. Mahurin.
    5-2914
    365 S. W. 2d 265
    Opinion delivered March 4, 1963.

      Moses, McClellan, Arnold, Owen & McDermott, for appellant.

      Catlett & Henderson, Griffin Smith, for appellee.
   Carleton Harris, Chief Justice.

Southwestern Broadcasting Company, an Arkansas corporation, owned and operated Radio Station KVLC in Little Rock. Lake Broadcasting Company, an Arkansas Corporation, operated Radio Station KIKS at Sulphur, Louisiana. Southern National Insurance Company, likewise an Arkansas corporation, owned most of the stock in both broadcasting companies. Robert M. Saxon was the principal stockholder in this company. Dale Mahurin, appellee herein, was manager of the two stations, and was a minority stockholder in each of the broadcasting corporations, as well as a member of the Board of Directors of each.

In October, 1960, Albert Stegall, representing persons desiring to buy a majority of the stock in each of the broadcasting corporations, commenced negotiations with Saxon for the purchase of such stock from the Southern National Insurance Company. Negotiations culminated in the execution of a contract on February 27, 1961. The prospective purchasers thereupon applied to the Federal Communications Commission for authority to operate the stations, and the applications were approved and the transfer of the stock made, together with the surrendering of the management of the companies, oh June 1,1961. In the meantime, Mahurin continued with his duties as manager, and remained on the Board of Directors of each company.

Following the applications to the Federal Communications Commission, Victor Broadcasting Company, Inc., was incorporated under the laws of this state, and at approximately the same time Victor Radio Company, Inc., was likewise organized under the laws of Arkansas, it being contemplated that the Southwestern Broadcasting Company stock (purchased by Stegall’s principals) would be transferred to Victor Broadcasting Company, and the Lake Broadcasting Company stock (likewise purchased by Stegall’s principals) would be transferred to Victor Radio Company. On June 15, 1961, a joint stockholders meeting was held between stockholders of Southwestern and Victor Broadcasting Company, at which time said stockholders voted to merge the two companies. On the same day, a similar stockholders’ meeting ivas held between Lake and Victor Radio Company, at which time resolutions were passed authorizing the merger of those two companies. Mahurin was present at both meetings, and voted the shares that he owned in Southwestern, and 14 shares by proxy, for the merger of the first two mentioned companies; he voted the 6,000 shares that he owned in Lake Broadcasting Company and 2,800 shares by proxy in favor of the merger of the last two mentioned corporations. The merger has never been completely perfected.

The services of Mahurin were terminated on June 20, and twenty days later, appellee asserted to Lake and Victor Radio Company that the attempted mergers were void, and demand was made upon Victor for the fair market cash value of the stock which Mahurin held in the Lake Company. On August 4, 1961, Southwestern instituted suit against appellee, alleging that the latter had converted various items belonging to the broadcasting company to his individual use. Mahurin answered, denied any wrongful acts, and asserted matters justifying the taking; a cross complaint was filed alleging that his vote in favor of the merger was obtained by the fraudulent acts of Southwestern and Victor Broadcasting Company; that representations had been made to him that there would be no changes in the management or policies of the company ; that he had relied upon such material representations, and would have voted against the merger except for same, and have demanded payment in cash for his stock interest or provided by the laws of this state. Relief sought concluded with the prayer that he be awarded the fair cash value of his minority stock interest in Southwestern. On August 7, Lake Broadcasting Company filed a suit containing substantially the same allegations, and Mahurin filed an answer and cross-complaint similar to that mentioned above.

After the filing of various substituted pleadings and various amendments, and the substitution of some parties, the cases were consolidated and heard by the Chancery Court. On trial, that court dismissed the complaints of the complaining companies as being without equity, except for amounts admittedly owed the companies by Mahurin. As to the cross-complaint, the court found that the evidence clearly established that Mahurin was induced by fraud and misrepresentations to “part with the valuable right he had to require the payment to him of the cash value of his stock” as a condition to the mergers and “except for such fraud, misrepresentation and concealment the cross-complainant would have been entitled to receive the fair value of his stock in cash, and that such fair value is the appropriate measure of cross-complainant’s damages for the fraud which was perpetrated upon cross-complainant. ’ ’ Judgment was rendered for appellee against Victor Radio Company in the sum of $27,927.00 and against Victor Broadcasting Company in the amount of $622.67. The decree further provides that upon payment of the judgments, appellee’s stock interest in Lake Broadcasting Company and Southwestern Broadcasting Company “shall be terminated and cease, and cross-complainant, Dale D. Mahurin, is ordered and directed to deliver all of his stock in said corporations to their respective successors for the purpose of cancellations.”

From the decree so entered, comes this appeal. Appellants have abandoned their appeal insofar as it relates to the court’s dismissal of the complaints filed against Mahurin, and the only question presented here is whether appellee was entitled to recover on his cross-complaints. While the facts as hereinbefore set out, appear somewhat complicated, the issue is actually quite simple and poses only the question, “Is appellee entitled to receive the fair cash value of his minority stock and, if so, did the chancellor properly determine that value?”

Mahurin testified that when he learned Stegall’s group intended to buy the majority interest in the radio stations, he talked to Stegall and a Mr. Tiberris about selling his stock to them, but was advised they did not want to buy his stock because they did not know anything about the radio business, were only buying as an investment, and it was their desire that he stay on and operate the stations. Appellee stated that Stegall assured him that he would have the same privileges, same salary, and same arrangements as previously. He exhibited a letter from Stegall, dated December 27, 1960, which welcomed Mahurin and other employees into the organization, and inter alia stated:

“We hope that each of you will remain in your present position and continue to render the dedicated and efficient service that you have in the past.
“I feel that some of your associates may be disturbed at the change of ownership of this stock, however, you may assure them that we plan no change in the management, staff or policy of either station and are looking-forward to a long and happy association with each of you. ’ ’

Mahurin obtained an attorney to prepare a contract of employment, which was done, but appellee stated that Stegall, when shown the contract, though commenting that it appeared to essentially contain the agreement reached, said that it would have to be sent on to a Mr. Muscat, who was out of this country at the time, for approval. The witness testified that, relying upon Stegall’s assurances that he would be retained by the company, and that a contract would be entered into, embracing the terms of the one presented to Stegall by Mahurin, the latter voted for the merger. Appellee testified that except for Stegall’s assurance, he would not have voted for the merger.

R. M. Saxon, substantially the owner of Southern National Insurance Company, testified that his company purchased KVLC in 1950 and NIKS in 1956, and that Mahurin had been employed as engineer and manager for a period of 13 years. Saxon stated that he, along with Mahurin and Charles "VV. Davis, constituted the directors of the two companies. He corroborated Mahurin’s testimony that the purchasers assured appellee that he would be continued in his employment as manager, at the same salary, and under the same conditions of his (then) present employment. Saxon said that these assurances were given by Stegall and Tiberris.

Charles W. Davis, secretary-treasurer of Lake and Southwestern, likewise testified that the purchasers stated that they would not have bought the stations without being sure Mr. Mahurin would stay; that these statements were made in Mahurin’s presence. He added that he saw the contract which Mahurin had caused to be prepared, and the contract embraced essentially the terms that had been offered to Mahurin by the purchasers. Davis testified that he learned about 15 days after the new owners took over operations that Mahnrin had been discharged and he (Davis) was shocked to hear of it. The witness was complimentary of Mahnrin’s management policies with the stations that he had operated.

Mr. Albert Stegall, secretary of Southwestern, Lake, Victor Broadcasting, and Victor Radio (subsequent to the purchase of the stock), testified that he made no representations whatever to Mahurin relative to the latter’s voting for or against the merger. He stated he told Mahurin that the contract which the latter submitted was ridiculous but that he would submit it to the proper people who had authority to sign it. Relative to the letter that he had written to appellee, the witness stated that the purpose of the letter was to allay any apprehension that employees of the staff might have as to their future status under the new management. He testified that Mahurin was removed from his position because a partial audit uncovered additional accounts payable that the purchasers had not theretofore known about; that unpaid accounts in the amount of approximately $15,-000.00 were found, and employees that the purchasers had no prior knowledge of, were listed on the books.

Appellants first contend that the evidence does not justify the court’s finding that appellee should be awarded compensation for his minority stock interest. It is argued that there was no fraud, because at the time the promise of continued employment to Mahurin was made, appellants actually were sincere in their representations, and intended to retain Mahurin as manager; that the change of mind occurred because of the alleged irregularities appearing after the audit. Furthermore, appellants assert that the promise related to an event to occur in the future, rather than relating to a present or preexisting fact, and that under our cases, any representations and promises as to future conduct, are merely statements of opinion as to what the promissor intends to do, and the party to whom they are made has no legal right to rely on such representations. We do not agree with either of these contentions. Discussing the last first, appellants ’ argument that fraud cannot be predicated upon representations of events to occur in the future is, generally speaking, sound. But this rule of law does not apply if one makes a false promise, knowing at the time that it will not be kept, and injury results to the person relying on same. In Coleman v. Volentine, 211 Ark. 591, 201 S. W. 2d 592, this court said, “Ordinarily an action for fraud and deceit may arise only from false representation as to a past or existing situation, but there is authority for the holding that where one makes a false promise, knowing at the time that it will not be kept, the person injured thereby may have relief in action for fraud.”

In Wilson v. Southwestern Casualty Ins. Co., 228 Ark. 59, 305 S. W. 2d 677, it is likewise stated:

“A promissory representation may be the basis of fraud in procuring a release if the promissor never intended to fulfill the promise and made it for the purpose of obtaining the release. ’ ’

Our most recent holding to this effect was Thomason v. Hester Mobile Home Mfg., 235 Ark. 529, 361 S. W. 2d 91. As to the contention that the representation of continued employment was originally made in good faith, we are of the opinion that the weight of the evidence is to the contrary. Proof reflects that approximately a week after appellee voted for the merger, appellants offered to purchase Mahurin’s stock at approximately 50% ($12,996) of the value finally allowed by the chancellor. Mahurin asserts that the representations were made to him in order to obtain his favorable vote for the merger, and then to purchase his stock for less than half its value. Appellee states in his brief:

“Is it not also logical that such assurances which induced his cooperative vote were made with absolutely no intention of performance when only six days later he peremptorily received an offer to purchase, which in truth was a demand that he sell his stock, and upon declining, was discharged for sham reasons.”

Be that as it may, we think the circumstances justified the chancellor in reaching his conclusion. It is quite noticeable that though appellants apparently were most anxious to retain Mahurin at the outset, his services were terminated within two weeks after he had cast his vote in favor of the merger. To say the least, this was most unusual, particularly when it would appear that the new owners had a prior opportunity to examine the records; in fact, several months intervened during the period of negotiations, and the final consummation of the purchase. Apparently, the purchasers had every opportunity to investigate appellee for they had repeatedly told him that they desired to retain his services. During the trial, Stegall was asked, “What did you know about Mr. Mahurin on June 21 you did not know on June 15,1961?” The witness answered, “I clo not knoio what I tvould have known specifically

Also, there is some significance in the fact that, while appellants contended that Mahurin had misappropriated funds, suit was not instituted by the corporations until after receiving appellee’s notice of July 20, wherein Mahurin asserted that the attempted mergers were void, and made demand for the fair market cash value of the stock which he held in the Lake Company. It might be added that, although this litigation was commenced by the filing of the complaints against Mahurin, and though the chancellor found such complaints were without equity and dismissed them, that ruling has not been appealed to this court, which possibly is indicative of the strength (or lack of it) of appellants’ allegations in the first place. At any rate, (we hold that the chancellor’s finding that fraud was practiced upon Mahurin, and that appellee relied upon the fraudulent representations to his detriment, is not against the preponderance of the evidence.)

Appellants further urge that appellee is not entitled to recovery because he did not comply with the statutory provisions relative to receiving payment for his stock. This argument has reference to Section 64-703, Ark. Stats. 1957 Replacement, which provides the procedure for payment of the fair cash value of the stock of any stockholder voting against the merger. We do not deem a discussion of this contention necessary, inasmuch as, in onr view, the provisions of that section, and remedies therein granted, are not exclusive where fraud is present. Minority stockholders can maintain a suit for relief if fraud is practiced. Johnson v. Baldwin, (S. C.), 69 S. E. 2d 585; Alabama Fidelity Mortgage & Bond Co. v. Dubberly, et al, (Ala.), 73 So. 911; May v. Midwest Refining Co., (Me.), 121 F. 2d 431.

It is further asserted that the merger has never been consummated and Mahurin still has all of the stock in Lake and Southwestern that he ever had. This argument can be of no aid to appellants. For one thing, the record reflects that everything necessary to effect the merger has been done except for the technical filing with the Secretary of State; Mr. Joseph Peter Trantino testified that the merger took place on June 15,1961, but, “Due to the fact that the actual book merger did not take place until August 18, I was elected President of all four corporations on July 3,1961.” He stated that he was the custodian of the records of all four companies. For that matter, it would appear that appellants are estopped by the pleadings to assert that the merger was not completed, for the record reflects that Southwestern Broadcasting Company amended its complaint as follows:

“That the original plaintiff in this action Southwestern Broadcasting Company was merged into plaintiff corporation on or about the 18th day of August, 1961.
“That the style of this action be changed to reflect the plaintiff to be Victor Broadcasting Company, Inc., and that Victor Broadcasting Company, Inc. be substituted for Southwestern Broadcasting Company as plaintiff. That the amended complaint be amended only in this particular and in accordance -with the style of this pleading. ’ ’

An identical amendment to the complaint was filed relative to Lake Broadcasting Company and Victor Radio Company. Having asserted the merger of the corporations, appellants cannot now be heard to deny that fact.

Finally, it is contended that the chancellor used an erroneous method in arriving' at the fair cash value of Mahurin’s stock. The stock is not regularly traded, and there appears no set formula to determine the “fair cash value.” The court reached the figure allotted on the basis of the testimony of Charles W. Davis. The record reflects that Davis was asked the following question, relative to the Lake stock: “Based on the adjusted purchase price of the contractual purchase price of the majority stockholders, in KIKS, what is the fair cash value of that stock?” The answer was, “Four point eight, five space two.” The witness then stated that Mahurin owned 6,000 shares and that the value of his stock, based upon the Saxon sale (as adjusted) to Stegall and his principals, was $29,112. He likewise stated that, using the same formula, Mahurin’s three shares of stock in Southwestern had a value of $1,644.00.

We think, since there is no specified formula for determining the “fair cash value” of the stock in question, that the chancellor, under the facts in this case, was justified in basing this value on the testimony of Davis.

Finding no error, the decree is affirmed.

      This, according to appellee’s brief (and which is not disputed by appellants) has reference to a compromise figure reached by the appellants and the Saxon interests. From the brief:
      * ** * “appellants after first entering into a written contract establishing the per share value subsequently filed a law suit alleging misrepresentations by the Saxon interest and that per share value was then adjusted and compromised by a lower figure. Since appellants, of necessity, acquiesced in the compromise of the suit against Saxon which reduced the contractual value per share they certainly are in no position to complain of the adoption by the Chancellor of the same value they acquiesced in after the Saxon dispute.” * * *


author: Ed. F. McFaddin, Associate Justice.

text:
    Campbell v. Bastian.
    5-2916
    365 S. W. 2d 249
    Opinion delivered March 4, 1963.

      E. G. Partlow, Jr., for appellant.

      Reid & Burge, Gardner & Steinsiek, for appellee.
   Ed. F. McFaddin, Associate Justice.

This case arises from a traffic mishap between two trucks: one was owned by Appellant Campbell and driven by James Ellis; and the other was owned by appellees, Bastian Truck Service (hereinafter called “Bastian”), and driven by Dallas Peters. Both vehicles were proceeding in the same direction. The Campbell truck being in front, undertook to turn left to enter the driveway of the Campbell home; and the Bastian truck, undertaking to pass the Campbell vehicle, struck it and caused damage to both vehicles. Bastian filed action for damages; Campbell denied liability and cross complained for his damages. From a jury verdict and judgment for Bastian, Campbell brings this appeal, urging the points now to be discussed.

I. Continuance. The traffic mishap occurred in April 1960; the action was filed in September, 1960; and the case was continued in both the January 1961 term, and the June 1961 term. In the January 1962 term Campbell filed motion for continuance because of the absence of James Ellis, who was the driver of the Campbell vehicle in the traffic mishap; and the cause was continued for the term. When the new term started in June 1962, Campbell again moved for continuance because of the absence of James Ellis; the motion was denied; and the cause was tried on June 18, 1962. The denial of the motion for continuance in June 1962 is the point here argued.

We find no error committed by the Trial Court in denying the motion for continuance. The record shows that Campbell did not know the present whereabouts of Ellis and could give no assurance that he would be present if a further continuance should be granted. Campbell had obtained one or more continuances because of the absence of Ellis; yet Campbell, even in June 1962, had never located Ellis and could not say when, if ever, Ellis would be present. The Trial Court did not abuse its discretion in overruling the motion. See Black & White Cab Co. v. Doville, 221 Ark. 66, 251 S. W. 2d 1005, and cases there cited.

II. Campbell’s Motion For Instructed Verdict. At the close of the plaintiffs’ case, Campbell moved for an instructed verdict. This motion was denied and such ruling is assigned as error. We find no merit in this assignment. "When the Court denied Campbell’s motion for an instructed verdict at the close of Bastian’s case, Campbell proceeded to introduce his evidence, but did not renew his motion for an instructed verdict at the close of the entire case. In such a situation, Campbell’s original motion was waived. Grooms v. Neff, 79 Ark. 401, 96 S. W. 135; Ft. Smith Cotton Oil Co. v. Swift, 197 Ark. 594, 124 S. W. 2d 1; and Granite Mt. Rest Home v. Schwarz, 236 Ark. 46, 364 S. W. 2d 306 (Case No. 2840, Opn. February 4, 1963). We add, however, that even if the motion had been made at the end of the entire case, it should have been overruled.

III. Refusal of Requested Instruction. Campbell presented to the Court his requested Instruction No. 6, which contained this language:

“(B) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable or prudent having dne regard for the speed of such vehicles and the traffic upon and the condition of the highway. ’ ’

The refusal of the Court to give the above instruction is assigned as error; but we find this assignment to be without merit. The evidence showed that the Bastian truck was undertaking to pass the Campbell truck when the Campbell truck turned to the left; and the Court gave a series of instructions on the duty of a vehicle overtaking and undertaking to pass another vehicle proceeding in the same direction. This was not a case of a vehicle following behind another vehicle, but rather, a case of passing a vehicle; and it would have confused the issues for the Court to have given the “following too close” instruction in a case where all the testimony showed that it was an “overtaking and passing” situation.

IV. Agency Of James Ellis. The Trial Court instructed the jury that James Ellis was the agent of Camp-hell in driving the Campbell truck at the time of the collision; and Campbell insists that such agency was a question for the jury. In other words, Campbell claims that the question of agency should have been submitted to the jury rather than declared as a matter of law. It is true that, ordinarily, agency is a question of fact to he determined by the jury; but agency becomes a question of law for the court when the material facts concerning it are not disputed and only one reasonable conclusion can be drawn therefrom. 3 C.J.S. p. 325, “Agency” § 330. As the Court of Appeals of Kentucky said in Wolford v. Scott, 257 S. W. 2d 594:

“Where the facts are in dispute and the evidence is contradictory or conflicting the question of agency, like other questions of fact, is to be determined by a jury. However, where the facts are undisputed, the question becomes one of law for the court. Horne v. Hall (Ky.), 246 S. W. 2d 441.”

The Supreme Court of Vermont, in Luce v. Chandler, 195 A. 246, an automobile case, used this language:

‘ ‘ ‘Where the facts are undisputed and only one inference can reasonably be drawn from them, the court must determine whether they create an agency. ’ 1 Meacham on Agency (2d ed.) § 295. Clearly the evidence above admits of no opposing inference and is so conclusive in character that this question became one of law for the court rather than one of fact for the jury. ’ ’ ’

With the rule thus stated, we now examine the evidence to see if there are any material facts in dispute regarding agency; and we find that the admission made by Campbell when he was testifying destroys the foundation of his argument on this point. Here is Mr. Campbell’s testimony as to how Ellis happened to be driving the Campbell truck at the time of the traffic mishap:

Q. “What was the purpose of Mr. Ellis driving your truck?
A. “He didn’t have any account to drive it for me. It was parked by his house and I asked would he mind driving it out there for me and I would pick him up. ’ ’

This testimony by Campbell made Ellis his agent. In the American Law Institute’s Restatement of the Law of Agency, § 1 Comment A, this appears:

“The relation of agency is created as the result of conduct by two parties manifesting that one of them is willing for the other to act for him subject to his control, and that the other consents so to act. The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on the principal’s behalf and subject to his control.”

In 2 Am. Jur. p. 13, “Agency” § 2, this appears:

“An agency may be defined as a contract, either express or implied, upon a consideration, for a gratuitous undertaking, by which one of the parties confides to the other the management of some business to be transacted in his name or on his account, and by which that other assumes to do the business and render an account of it.”

In Black’s Law Dictionary an agent is defined as:

“A person authorized by another to act for him, one entrusted with another’s business.”

Campbell testified that he asked Ellis to drive his truck from Ellis’ house to Campbell’s house. Ellis was in the process of driving the truck on the prescribed route and was turning into Campbell’s driveway when the traffic mishap occurred. When an owner asks another person to drive a vehicle for him to a certain place and such requested person undertakes to comply with the request and is on the prescribed route, it is clear, as a matter of law, that the driver in such situation is acting as the agent of the owner and not as a bailee of the vehicle. Because of Campbell’s testimony as herein quoted, we find no error committed by the Trial Court in declaring as a matter of law that Ellis was the agent of Campbell.

Affirmed.

      The terms of the court are fixed by § 22-310 Ark. Stats. In referring to these as the “June” and “January” terms, we are using convenient words for identification.

       Among other instructions, there was theCourt’s Instruction No. 8 (given without objection), which contained this language:
      “ (A) The operator of the vehicle in front has the superior right to use of the highway and the driver of the rear vehicle in handling of his vehicle must recognize the superior right of the vehicle in front although the forward vehicle operator is not relieved from the duty of exercising ordinary care for his own safety and the safety of others.
      “(B) No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the righthand side of the roadway before coming within 100 feet of any vehicle approaching from the opposite direction.
      “(C) No person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety and then only after giving an appropriate signal in the manner hereinafter provided in the event any other vehicle may be affected by such movement.
      “A signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.”