author: Minor "W. Millwee, Associate Justice.

text:
    Mo. Pac. R. R. Co., Thompson, Trustee v. Ben M. Hogan.
    5-1002
    292 S. W. 2d 263
    Opinion delivered July 2, 1956.

      Pat Mehaffy and 8. Hubert Mayes, for appellant.

      Neill Bohlinger, for appellee.
   Minor "W. Millwee, Associate Justice.

Appellant, Missouri Pacific Railroad Company, brought this action against appellee, Ben M. Hogan, to recover certain de-murrage charges alleged to he due on freight cars delivered to appellee as a subcontractor in the construction of a government arsenal near Pine Bluff, Arkansas. The case was tried before the circuit court without a jury, upon certain stipulations and exhibits resulting in a judgment for appellant in the sum of $1,715.98 with interest at 6% from the date of institution of the suit. The principal issue on this appeal is whether appellant ■was entitled to judgment for $2,195.96, the amount sued for, or the sum found due by the trial court.

According to the stipulations, the U. S. Government was engaged in the construction of the arsenal in 1952 and 1953 when appellee was a subcontractor in the project under contracts with prime contractors for the government requiring the use of large quantities of cement, lime and gravel within the arsenal area. The area was rather extensive and considerations of security required that ingress and egress be highly restricted. Appellant already has a switching point known as Baldwin, Arkansas which was located within the area. In order that carlot freight shipments might be delivered to the several contractors and subcontractors, the government constructed and operated a system of tracks within the area which connected with the lines of appellant and another railway company at Baldwin. ■

The government also constructed five sidetracks at Baldwin, which connected with the two railway lines and with the main line trackage of the government within the area. These sidetracks were known as “interchange tracks” and appellant’s train crews were permitted to penetrate the arsenal area only as far as Baldwin for the purpose of placing loaded freight cars upon the interchange tracks and picking up empty ears which had been placed back on said tracks after being unloaded and returned from spur tracks assigned to the various contractors within the area. All switching, hauling and car spotting within the arsenal beyond Baldwin was done by the government over its tracks and with its equipment operated by the Corps of Engineers of the U. S. Army. Appellee paid the Corps of Engineers at the rate of seven dollars per car for its services in switching, spotting and transporting the cars between the interchange tracks and an unloading facility within the arsenal area assigned to appellee and known as Hogan Spur. This arrangement was in effect when both intrastate and interstate shipments were made to appellee and upon which the demurrage charges were made.

It was stipulated that Demurrage Eules and Charges, I. C. C. No. 4227, Freight Tariff N. 4-Z, issued January 10, 1950 were in effect during the time of the shipments involved herein. These.tariffs had been duly published and filed with the Arkansas Public Service Commission. Eule 3, Sec. E of Tariff 4-Z, and a note thereto, provide: “Except as otherwise provided in Section B, Paragraph 1, of this rule, on cars to be delivered on interchange tracks of industrial plants performing the switching service for themselves or other parties, time will be computed from the first 7:00 A. M. after actual or constructive placement on such interchange tracks until return to the same or another interchange track. Time computed from actual placement on cars placed at exactly 7:00 A. M. will begin at the same 7:00 A. M.; actual placement to be determined by the precise time the engine cuts loose. (See Eule 2, Section A, Paragraph 2, Page 40, Eule 4, Section C, page 43, Eule 5, page 44 and Eule 6, page 45.) Cars returned loaded will not be recorded released until necessary billing instructions are furnished.

“NOTE. Where two or more parties each with its own power take delivery from the same interchange track, or where this railroad company uses the interchange track for other cars, or where the interchange track is not adjacent to the plant and the industry uses this railroad’s tracks to reach same, a notice of placement shall be sent or given to the consignee and time will be computed from the first 7:00 A. M. thereafter. ’ ’

Eule 4, Sec. C. of said Tariff 4-Z reads: “Delivery of cars upon other than public delivery tracks or upon industrial interchange tracks (except as provided in Note in Eule 3, Section E., page 42), or written notice sent or given to consignee or party entitled to receive same, of readiness to so deliver, will constitute notification to consignee. (See Eule 5, Section A, Paragraph 1, page 44 and Eule 8, Section D, Paragraph 1 (b), page 47.)”

There is no dispute as to the number of shipments involved or the correctness of the tariff rates and taxes charged to appellee. The primary issue here relates only to the proper basis for computing demurrage charge on the several shipments. Appellee contends, and the trial court found, that in computing the charges the detention time should have been computed from the time of the delivery of each car by the government to the Hogan Spur to be unloaded by appellee until such time as the car was unloaded and the government crew was notified that the cars were available to be returned to the interchange track. The charges of $2,195.96 alleged to be due by the appellant were computed from the time of delivery of the cars and their placement on the interchange tracks at Baldwin until such time as the cars were returned to the interchange tracks by the Corps of Engineers and made available to appellant.

This question has been before the Interstate Commerce Commission and the federal courts in several cases. It was before the U.S. District Court for the Eastern District of Arkansas in St. Louis-Southwestern Ry. Co. v. Farrell, 114 F. Supp. 486, under a state of facts identical with those in the instant case except that different parties and only intrastate shipments were involved. In that case, the other railroad serving the same government arsenal area was held entitled to recover demur-rage charges from consignee subcontractors computed on the same basis used by appellant in the instant case. In a well considered opinion the court held that the arsenal was an “industrial plant” within the meaning of Rule 3, Sec. G., supra; that delivery on the interchange tracks at Baldwin was delivery to the subcontractors; that the interchange tracks were “industrial interchange tracks” and not “public delivery tracks” within the meaning of Rule 4, Sec. G., supra; and that no notice of delivery upon said tracks was required by the tariffs. The court made certain “Conclusions of Law” which include the following: “3. Under the tariffs delivery of the several freight cars involved in this case to the interchange tracks at Baldwin was delivery to the defendants, and no notice of the placement of such cars on said tracks was required to complete the delivery. Said cars were not re-delivered to the plaintiff until they were placed upon the outgoing interchange track by the Corps of Engineers.

“4. The fact that defendants were unable to deliver the empty outgoing cars to the plaintiff except through the medium of switching facilities of the G-ov-ernment does not relieve the defendants of the obligation to pay demurrage, nor the plaintiff of the requirement to collect it . . .
“6. Even if it be assumed that to hold the defendants liable for demurrage, in this case will work a hardship on them or will be to some extent inequitable, such hardship or inequity under the law applicable to demur-rage charges is insufficient alone to excuse the defendants from liability.
“7. Plaintiff is entitled to judgment for the amount sued for, plus interest and costs.” Other cases to the same effect are: Madsen Construction Co. v. Great Northern Ry. Co., 231 I. C. C. 283; Federal Roofing & Siding Co. v. Southern Pac. Co., 269 I. C. C. 445; and Chicago B. &. Q. R. Co. v. Blunk, 101 F. Supp. 219.

In view of a stipulation to the effect that the government railroad served not only the contractors engaged in the construction of the arsenal hut also all rail shipment demands of “independent enterprises” within the area, appellee contends he was entitled to written notice of placement of the cars on the interchange tracks under that part of the Note to Eule 3, Sec. E, supra, which provides that notice is required, “where this railroad company uses the interchange tracks for other cars . . .” It is clear from the entire stipulations that no cars were placed on the interchange tracks except cars to he delivered thereon. The fact that such tracks were owned by the government and located in a highly restricted area precluded the use of such tracks for “other cars” as that term is used in the note. We agree with appellant’s contention that the obvious intent of the provision relied upon is to require written notice in those instances where cars other than those to be delivered on the interchange tracks are placed thereon. That condition is not present in the instant case, bnt it did exist in Union Gas and Electric Co. v. C. & O. Ry. Co., 136 I. C. C. 275, relied on by appellee. As reflected in a prior decision of the same case in 126 I. C. C. 566, the tracks there involved were indiscriminately used “for public delivery and for various other carrier purposes.”

In disposing of the question of notice in the Farrell case, the court said: “The contention is made that the plaintiff cannot prevail because no notice was given the defendants of the arrival of cars at the interchange tracks. Rule 4, Section C, of the tariffs provides, subject to an exception not applicable here, that delivery ‘upon other than public delivery tracks or upon industrial interchange tracks . . . will constitute notification to consignee.’ We are satisfied that the interchange tracks at Baldwin were not ‘public delivery tracks’ and that they were ‘industrial interchange tracks’ within the meaning of the aforementioned rule; hence, no notice of delivery upon said tracks was required.” We concur in this view.

Appellant also contends that interest should have been allowed from the date the various charges accrued instead of from the date of the institution of the suit as the trial court found. The complaint did not expressly pray for interest and there is no showing of any demand by appellant for payment of the charges prior to institution of the suit on May 27, 1954. There also appears to be considerable merit in appellee’s assertion that ascertainment of the correct amount of the charges involved a complicated accounting matter which was difficult to resolve without a comparison of appellee’s records with those of appellant, which records were not made available until the suit was brought. The term “demurrage” is derived from the maritime law under which the question of the allowance of interest on sums found due on demurrage is held to be within the discretion of- the trial court. 48 Am. Jnr., Shipping, Sec. 616. Many cases are collected in an annotation on the question in 96 A. L. R. 35. In the exercise of such discretion, the courts have allowed interest from various periods including the date of accrual of the charges as well as the date of commencement of suit. In some bases, as where there was an unreasonable delay by plaintiff in prosecution of the suit, interest before judgment has been disallowed altogether. Under the circumstances presented here, we do not think the trial court erred in refusing to allow interest from the date of the accrual of each of the charges.

Since we conclude that appellant correctly computed the demurrage charges, that part of the judgment finding it entitled to recover only $1,715.98 is reversed, and the cause is remanded with directions to enter judgment for appellant in the sum of $2,195.96 with interest at six per cent from May 27, 1954.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Smock v. Corpier.
    5-1022
    292 S. W. 2d 260
    Opinion delivered July 2, 1956.

      Charles A. Wade, for appellant.

      Wood & Smith, for appellee.
   George Rose Smith, J.

This is a suit by the ap-pellee, who is the appellant’s tenant, for specific performance of an option to purchase the land covered by the written lease. The defense is that the option was available to the tenant only during the first two years of the original five-year term and cannot be exercised during the five-year renewal term that is now in force. The chancellor, finding the lease to be ambiguous, allowed the appellee to introduce parol evidence to explain the document. Upon the basis of that proof the court held that the option to purchase could be exercised during the renewal term.

We are unable to determine from the appellant’s abstract of the record, which the appellee has not supplemented, whether the chancellor’s decree is erroneous. Parol evidence is frequently admissible to explain the meaning of a written instrument. The appellant asserts that this lease is free from ambiguity, but she has not quoted its language or even summarized it adequately. She also asserts that the oral proof was inadmissible, but she declines to abstract any of the testimony. It is manifestly impossible for us to sustain her contention without having either the lease or the testimony before us.

In reply to the appellee’s criticism of the abstract the appellant insists that it is unnecessary to abstract the testimony in a chancery case, for the reason that this court tries the case de novo. The appellant is mistaken in her understanding of our practice. The case is tried de novo, it is true, but the trial is upon the evidence as abstracted by the parties and not upon the original record. We have repeatedly required compliance with Rule 9 in equity cases. Davis v. Spann, 92 Ark. 213, 122 S. W. 495; Norden v. DeVore, 207 Ark. 1105, 184 S. W. 2d 585; Reep v. Reep, 219 Ark. 270, 241 S. W. 2d 262.

Affirmed.


text:
    Fairbanks v. Sheffield.
    5-1045
    292 S. W. 2d 82
    Opinion delivered July 2, 1956.

      Spitzberg, Mitchell & Hays, for appellant.

      Tom Gentry, Attorney General, Roy Finch, Jr., Assistant Attorney General, for appellee.
   George Rose Smith, J.

The appellees, as the members of the State Publicity and Parks Commission, have adopted a resolution providing for the issuance of $900,-000 of revenue bonds to finance the construction of a new lodge, twenty-five cottages, and other improvements at Lake Catherine State Park. The bonds are to be issued under the authority of Act 399 of 1953. Ark. Stats. 1947, § § 9-617 — 9-626. By this taxpayer’s suit the appellant seeks (a) a declaratory judgment holding that in five particulars Act 399 is unconstitutional or has been repealed, and (b) an injunction against the proposed action of the Commission. The chancellor entered a declaratory decree upholding the statute in all five respects and dismissing the complaint.

I. It is first contended that Act 399 embodies an unconstitutional delegation of legislative power, in that the Commission is authorized to determine what improvements to the state park system are needed, what their cost will be, what rentals and service charges should be imposed, and other details in connection with the proposed development of Lake Catherine State Park.

This contention is not well taken. The General Assembly has exercised its legislative function by creating the state park system, committing its management to the appellee Commission, authorizing the Commission to maintain “suitable public services and conveniences” and to make ‘ ‘ reasonable charges ’ ’ for their use, and empowering the Commission to extend, develop, and improve the park system. Ark. Stats. §§ 9-601 and 9-617. The vesting of all legislative power in the General Assembly does not require its members to examine the plans for each cabin, to determine what each building should cost, or to fix the rentals and fees charged at the various state parks. These administrative details pertain merely to the execution of the law and may properly be left to the discretion of a subordinate agency. Hogue v. Housing Authority of North Little Rock, 201 Ark. 263, 144 S. W. 2d 49.

II. Section 10 of Act 399 requires that the revenues securing the payment of the bonds he deposited in a bank instead of being covered into the state treasury. The contention that this procedure is forbidden by the constitution was rejected in Gipson v. Ingram, 215 Ark. 812, 223 S. W. 2d 595, and need not be re-examined.

It is also insisted that the provisions of § 10 were impliedly repealed by Act 330 of 1955, which directs the Commission to deposit in the state treasury all moneys received from the park system. Ark. Stats., § 9-206. The legislative background of the 1955 statute refutes the suggestion of an implied repeal. It was provided by Act 170 of 1937 that all money received from the operation of the state parks should be paid into the state treasury. Ark. Stats., § 9-601 (6). With that general law on the books the legislature adopted Act 399 of 1953, which deals only with the issuance of revenue bonds and which expressly directs that the pledged revenue be placed in a bank. This special directive is evidently intended to facilitate the sale of the bonds and represents an exception to the general policy adopted in 1937. By Act 330 of 1955 the legislature abolished the State Forestry and Parks Commission and transferred its powers and duties to the appellee Commission. Among the powers so transferred is that of issuing revenue bonds under the authority of Act 399 of 1953. It is true that in Act 330 of 1955 the legislature repeated its 1937 directive that all park funds be paid into the treasury, but there is no reason to think that the restatement of the general principle was intended to do away with the specific exception that the legislature had already brought into existence.

III. The appellant maintains that Amendment 20 to the state constitution prohibits the issuance of these bonds without their first' having been approved by a popular Vote. Act 399 provides, however, that the bonds shall not constitute an indebtedness of the State within the meaning of any constitutional limitation. It is settled that Amendment 20 does not apply to bonds for which the State’s faith and credit are not pledged. Davis v. Phipps, 191 Ark. 298, 85 S. W. 2d 1020, 100 A. L. R. 1110; McArthur v. Smallwood, 225 Ark. 328, 281 S. W. 2d 428.

IV. Pursuant to § 4 of Act 399 the bond resolution provides that in the event of default in the payment of the bonds any bondholder may apply for the appointment of a. receiver, who may take possession of the properties and facilities of Lake Catherine State Park and operate them. The receiver is authorized to fix and collect fees and charges sufficient to provide revenues for the payment of the bonds and the costs of the receivership.

The appellant is correct in his contention that this section of Act 399 is an unconstitutional attempt on the part of the legislature to consent to a suit against the State. The constitution provides that the State shall never be made defendant in any of her courts. Art. 5, § 20. This provision is mandatory and cannot be waived by the G-eneral Assembly. Ark. State Highway Com’n. v. Nelson Bros., 191 Ark. 629, 87 S. W. 2d 394. It is immaterial that the petition for a receivership would not involve a money judgment against the State. An action for the recovery of property sold to the State under a title-retaining contract cannot be maintained. Allen Engineering Co. v. Kays, 106 Ark. 174, 152 S. W. 992. Specifically, we have held that bondholders cannot obtain the appointment of a receiver to take charge of State property, for “any suit, whether in law or in equity, which has the purpose and effect, directly or indirectly, of coercing the State is one against the State.” Watson v. Dodge, 187 Ark. 1055, 63 S. W. 2d 993. It cannot be doubted that the State would be coerced by having one of its parks taken from it and operated by a receiver for an indefinite period of time.

We conelnde that those provisions of Act 399 which purport to authorize the bondholders to bring suit upon the bonds and to apply for the appointment of a receiver are invalid. These provisions, however, are clearly separable; their invalidity does not affect the rest of the Act nor impair any remedy- that the bondholder may have in the form of an action for a writ of mandamus to compel the Commission to perform ministerial duties imposed by law. Whether such a remedy exists is not an issue in this case and is not determined by this opinion.

V. Finally, the appellant attacks § 7 of the Act, which reads: “All of the property controlled and operated by the Commission and the interest on all bonds issued hereunder shall be exempt from taxation by the State of Arkansas or by any municipal corporation, county, or other political subdivision or taxing district of the State, except that the bonds shall be subject to the payment of inheritance taxes.” It is insisted that this language permits an exemption from property taxation, contrary to Article 16, § 6, of the constitution.

We do not so construe the language of the Act. The exemption of the Commission’s own property from ad valorem taxation is clearly valid, since it is public property used for a public purpose. Art. 16, § 5. The reference to the bonds and interest thereon is somewhat ambiguous, and of course it is our duty to interpret the language, if possible, in such a way as to sustain the validity of the statute. We do not construe the Act as an attempt to exempt the bonds or their interest from ad valorem taxation, for such exemption would be invalid. Jernigan v. Harris, 187 Ark. 705, 62 S. W. 2d 5; Ward v. Bailey, 198 Ark. 27, 127 S. W. 2d 272. Rather, the only specific reference is to interest on the bonds, which indicates a legislative intention to exempt such interest from the.state income tax. So construed, the exemption is valid. Ward v. Bailey, supra.

A declaratory judgment will be entered here, holding subsections (c) and (d) of § 4 of Act 399 to be unconstitutional. With this modification the decree is affirmed.


author: Paul Ward, Associate Justice.

text:
    KerviN v. Hillman, County Judge.
    5-1074
    292 S. W. 2d 559
    Opinion delivered July 2, 1956.

      Franh W. Wynne, for appellant.

      Thomas E. Sparks, for appellee.
   Paul Ward, Associate Justice.

By procedure not here questioned a special election was held in Dallas County on November 22, 1955, on the questions of acquisition of sites for and the construction of a hospital unit, and on the question of a tax of three mills to pay for the same. The main hospital was to be located in Pordyce, the county seat, “with emergency units thereof in Sparkman and Carthage. ’ ’ It was estimated that the tax would support a bond issue in the amount of approximately $204,000 which was to be supplemented by federal funds in approximately the amount of $266,666, making a total of $470,666. The ballots furnished to the voters contained the above information. The results of the election were 1,680 votes in favor of the hospital and emergency units and 452 votes against them, and 1,665 votes in favor of the tax and 459 votes against the tax.

After the Quorum Court had levied the special tax on the assessed value of all taxable property in Dallas County for the years 1956 to 1976 inclusive, appellant, M. B. Kervin, a property owner and taxpayer in Dallas County, filed this suit in chancery court to restrain the County Judge from proceeding further in the sale of said bonds and to restrain the collector from proceeding further with the collection of said tax. It was alleged that “said emergency units are not complete hospitals but are small units each providing two beds designed for and intended to meet immediate and emergency temporary needs only for first aid treatment for their respective geographical areas, these geographical areas being some distance from the hospital at Fordyce, and that said patients receiving first aid treatment in these small units will either be discharged or prepared by such treatment for admission to the hospital at Fordyce.,”

The only ground alleged in the complaint, or relied on here by appellant, for the relief sought is that Amendment 17 to the Constitution of the State of Arkansas (as amended by Amendment 25) “contemplates the construction of a single hospital unit to be located at the county seat and does not contemplate or authorize the construction of such emergency units” located at points other than the county seat.

To the above noted complaint appellees filed a demurrer which was sustained by the trial court. Upon appellant’s failure to plead further his complaint was dismissed.

We hold that the trial court was correct in sustaining appellees’ demurrer and in dismissing appellant’s complaint. The first section of Amendment 17 (as amended) vests in the qualified electors of each county the authority, by a majority vote, to construct a county hospital in the manner here undertaken. Ark. Stats. §17-905 provides that: “The court shall designate the place whereon to erect any county building on any land belonging to the connty at the established seat of justice thereof.” As a guide for the construction of a constitutional amendment, appellant refers us to 16 C. J. S. 56, Constitutional Law, Sec. 19. The gist of the stated rule is: “If the language is clear and unambiguous its meaning and intent are to he ascertained from the instrument itself by construing the language as it is written.

Based upon the above rules of construction, and applying a rather strict interpretation, appellant argues that by the language used in Amendment 17 (as amended) the framers did not intend that several hospitals or several partial hospitals, would be built in different parts of a county, but that only one county hospital was intended.

We think appellant’s argument is not supported by reason or by the former decisions of this court, and we think his conclusion cannot be logically drawn from the language used in said amendment.

It is obvious that the real purpose of Amendment 17 (as amended) was to make it possible for a county to provide hospital facilities for its citizens. It is not to' be expected that the amendment would go further and specify in detail how this purpose was to be achieved. In the case of Garner v. Lowery, 221 Ark. 571, 254 S. W. 2d 680, this court, in deciding that G-arland County had the power to purchase an existing hospital even though Amendment 17 only provides for the construction of a hospital, said: “The legislative intent was evidently directed to the fact of acquisition rather than to the method by which that result might be reached. ’ ’ In the case of Bond, County Judge v. Kennedy, 213 Ark. 758, 212 S. W. 2d 336, this court construed Ark. Stats. § 17-905 mentioned above in its relation to Amendment 17 (as amended) and held that a hospital need not be located at the seat of justice.

■Likewise, and based on the above reasoning, we do not think a proper interpretation of Amendment 17 (as amended) forbids the construction of the two. emergency units. Again this is the method selected by popular vote to carry out the purpose of furnishing hospital facilities, and it constitutes a detail not expected to be provided for in a constitutional amendment. Moreover Section 4 of said amendment provides that “more than one building or improvement may be embodied in such proceeding . . .’’In the case of Jeffery v. Fry, 220 Ark. 738, 249 S. W. 2d 850, we construed Amendment 17 (as amended) to authorize an election for the construction of a new county jail and an extension to the courthouse.

The construction which we here give to Amendment 17 (as amended) is we think, fully supported by other decisions of this court. In Bailey, Lieutenant-Governor v. Abington, 201 Ark. 1072, 148 S. W. 2d 176, we said: “The fundamental purpose in construing a constitutional provision is to ascertain and give effect to the intent of the framers and of the people who adopted it. The court, therefore, should constantly keep in mind the object sought to be accomplished by its adoption . . .” We also said, in Walton v. Ark. Construction Commission, 190 Ark. 775, 80 S. W. 2d 927, that: “It must always be the purpose to construe or apply any provision of the Constitution to effectuate, as nearly as possible, the intent of the people as it may be interpreted from the measure, and, when necessary for that purpose, a liberal interpretation will be warranted.”

In our opinion, not only does the construction of the hospital and emergency units in this case fall within the-: intent and purpose of said constitutional amendment but' this arrangement apparently effectuates this intent and' purpose in an excellent manner..

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Arkansas State Highway Commission v. Clayton, State Treasurer.
    5-1075
    292 S. W. 2d 77
    Opinion delivered July 2, 1956.

      W. B. Thrasher and Dowell Anders, for appellant.

      Tom Gentry, Attorney General, James L. Sloan, Chief Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

Act No. 248 of the Acts of the General Assembly of Arkansas for 1951 provides for participation by employees of the State and its political subdivisions in the benefits provided by the federal Social Security Act. Employees of the State Highway Department, in accordance with Act No. 427 of 1955, elected to participate in the social security program. The State Comptroller fixed January 1, 1955 as the effective date of coverage of the employees by the Social Security Act. The Highway Commission did not agree with the 1955 date, and fixed the date on January 1, 1956. The Comptroller insisted on January 1, 1955, and the Commissioners filed this action to enjoin the State Treasurer and State Comptroller from using Highway funds in connection with participating in social security coverage.

The facts are stipulated as follows: “It is hereby agreed by the parties hereto that: (1) That under the authority of Act 427, Ark. Acts of 1955, the employees of the State Highway Department did on November 14, 1955 hold a referendum on the question of whether they should be excluded or included under an agreement between the State and the Federal G-overnment authorized by Act 248 Ark. Acts of 1951 which extended to State Employees Social Security coverage. The result of the referendum was that the employees favored Social Security coverage.

“(2) On December 29, 1955, the Governor executed his certificate to the Secretary of Health, Education and Welfare as to the results of the election as provided by Sec. 2(b) of Act 427 of 1955.
“(3) On January 3, 1956 a printed form, dated December 30, 1955, called ‘Agreement’ and executed by the State Comptroller as the ‘State Agency’ was received by the Highway Department from the State Comptroller with instructions that said agreement was to be executed by the Contracting Officer for the Arkansas State Highway Department for the purpose of extending Social Security coverage to the Highway Department employees. Item ‘ J’ on said agreement fixed the effective date of the agreement and was received by the Highway Department with the effective date typed thereon as ‘January 1, 1955.’
“ (4) On January 4, 1956, the Director of the Highway Department replied to the State Comptroller’s letter saying that the subject of the agreement would be submitted to the Highway Commission at its next meeting on January 25, 1956, and indicating that the January 1, 1955, effective date might not be acceptable.
“(5) On January 5, 1956 Modification No. 124 to the Arkansas State Social Security Agreement was approved for the State of Arkansas by the State Comptroller and then submitted to the Secretary of Health, Education and Welfare to extend Social Security Coverage to the Arkansas State Highway Department employees with the effective date thereon as January 1, 1955. This modification is shown as approved by the Federal Agency on January 27, 1956.
“ (6) On January 25, 1956, the State Highway Commission, by Minute Order No. 1257, authorized the State Highway Director to enter into an agreement with the State Comptroller to extend Social Security coverage to Highway Department employees and fixed the "effective date as January 1, 1956.
“(7) On January 26, 1956 the ‘Agreement’ was returned to the State Comptroller with Item ‘ J’ the effective date thereon ‘January 1, 1955’ being struck out and the date ‘January 1, 1956’ inserted.”

The defendants demurred; the demurrer was sustained, and the Highway Commissioners have appealed.

Act No. 248 of 1951 designates the State Comptroller as the “state agency,” and Section 3(a) of the act provides: ‘ ‘ The State Agency, with the approval of the Governor, is hereby authorized to enter on behalf of the State into an agreement with the Federal Security Administrator, consistent with the terms and provisions of this Act, for the purpose of extending the benefits of the Federal old-age and survivors insurance system to employees of the State or any political subdivision thereof with respect to services specified in such agreement which constitute ‘employment’ as defined in Section 2 of this Act. Such agreement may contain such provisions relating to coverage, benefits, contributions, effective date, modification and termination of the agreement, administration, and other appropriate provisions as the State Agency and Federal Security Administrator shall agree upon, but, except as may be otherwise required by or under the Social Security Act as to the services to be 'covered, such agreement' shall provide in effect that: . . . ” It is clear that Act 248 gives the Comptroller authority, with approval of the Governor, to enter into an agreement with the federal ■ security administrator as to the effective date of coverage of the employees of the State or any of its political subdivisions.

Appellants contend that the Highway Department is a political subdivision of the State, and that, under Section 5(a) of Act 248, the Comptroller is compelled to approve the- date submitted by the political subdivision, and, further, that the Comptroller, under Section 5 (6b), has no authority to change the date selected by the Highway Commissioners. Section 2(f) of-Act 248 defines a political subdivision as follows: “The term ‘political subdivision’ includes an instrumentality of a State, or one or more of its political subdivisions, or of a State and one or more of its political subdivisions, but only if such-instrumentality is a juristic entity which is legally separate and distinct from the State or subdivision and only if its employees are not by virtue of their relation to such juristic entity employees of the State or subdivision.” The Highway Department is not a juristic entity, and, furthermore, Highway Department employees are employees of the State. Moreover, political subdivisions have been defined as that “they embrace a certain territory and its inhabitants, organized for the public advantage, and not in the interest of particular individuals or classes; that their chief design is the exercise of governmental functions; and that to the electors residing within each is, to some extent, committed the power of local government, to be wielded either mediately or immediately within their territory for the pecuniary benefit of the people there residing.” Allison v. Corker, 67 N. J. L. 596, 52 A. 362, 60 L. R. A. 564.

It is also contended by appellants that Amendment No. 42 to the Constitution of Arkansas makes the Highway Department a political subdivision. The amendment creates the Highway Commission and provides for the appointment of Commissioners by the Governor. It-defines the duties of the Commissioners and fixes their terms of office. But in no way does the amendment make the Highway Department a political subdivision of the State. Employees of the Highway Department are employees of the State of Arkansas, as distinguished from employees of a political subdivision of the State; their salaries are paid by the State Treasurer on warrants prepared and signed by the State Auditor.

Appellants further contend that the coverage for the employees cannot be made retroactive to January 1, 1955 for the reason that to do so would require the payment by the State, of an obligation from a prior biennium, from the current biennium appropriation. The appropriation that is being spent at present is for the 1955-57 biennium. The State’s obligation to the federal government did not become due until January 27, 1956. By Act 220 of 1955 the General Assembly appropriated $1,500,000 to carry out requirements of the federal Social Security Act. Hence, the payment which became due January 27, 1956 was in the present biennium.

The court’s decree sustaining the demurrer is correct, and is therefore affirmed.


author: Per Curiam:

text:
    McLaughlin v. Coffey.
    1041
    293 S. W. 2d 455
    Opinion delivered July 2, 1956.

      Lloyd Darnell, for appellant.

      Earl J. Lane, for appellee.
   Per Curiam:

The appellant did not file the assent required by Sub-section 2 of Section 27-2101 Ark. Stats., and it is too late to file it now. (See Osborn v. LeMaire, 82 Ark. 490, 102 S. W. 372.) The appeal is dismissed for lack of final judgment; and the case is still pending in the Garland Circuit Court for new trial on all issues. Mr. Justice Robinson dissents because he thinks that the appellant should be allowed to file the assent at this time in this Court.


author: Per Curiam :

text:
    Simmons v. Klemme.
    5-1060
    291 S. W. 2d 801
    Opinion delivered July 2, 1956.

      Barrett, Wheatley, Smith & Deacon, G. M. Buck and Oscar Fendler, for appellant.

      Marcus Evrard, L. V. Rhine, E. J. Butler, John Watkins, James M. Gardner and Taylor & Sudbury, for appellee.
   Per Curiam :

B. S. Simmons filed suit in the Chancery Court, Chickasawba District, of Mississippi County to obtain possession of 30 shares of stock in the Dell Compress Company. The material allegations in his complaint, together with numerous exhibits attached thereto, are to this effect: Mrs. Virginia K. Klemme sold and delivered 30 shares of stock in said compress company to H. Noble Gill for $7,500, which amount was paid by Gill; Mrs. Klemme filed a suit in the said chan-eery'court against Gill, et al. to set aside said sale and to recover possession of her stock; After said suit was filed Mrs. Klemme entered into a contract with him (Simmons) in which she agreed to prosecute her suit to a final determination and, if she was successful in regaining the stock, to sell the stock to him (Simmons) for $15,000; Mrs. Klemme dismissed, with prejudice, her cause of action against Gill and accepted from Gill an additional $7,500 for her stock; Gill, as an officer in the compress company, made false representations to Mrs. Klemme in procuring the sale of her stock to him, and; Gill holds said stock as trustee for Simmons. The prayer was for specific performance by Klemme and to have Gill declared a trustee for Simmons.

The chancellor issued a Temporary Order restraining Gill and others from disposing of the stock pending the final outcome of the litigation. Later Gill filed a motion to dissolve said Temporary Order and to dismiss Simmons’ complaint for failure to state a cause of action. The chancellor treated this motion as a demurrer to Simmons’ complaint, dissolving the Temporary Order and dismissing the complaint. Upon Simmons executing a $25,000 bond the chancellor issued a Superse-deas Order holding- the stock status quo pending the final outcome of an appeal to the Supreme Court.

Simmons, not wishing to rely altogether on the Su-persedeas issued by the chancellor, applied to some of the judges of this court and secured a Temporary Order superseding the action of the chancellor in dissolving its Temporary Restraining Order and dismissing the complaint. The question therefore presented to this court is whether said Temporary Order shall be dissolved or made permanent.

It is the opinion of this court that the Temporary Supersedeas heretofore issued, as stated above, should be dissolved for the reason that Simmons’ complaint does not state facts sufficient to constitute a cause of action. The sale of the stock in question by Mrs. Klemme to Gill had been fully carried out and the stock delivered. Simmons ’ contract with. Mrs. Klemme gave Mm the right to purchase the stock from Mrs. Klemme only in event she recovered the stock, through litigation, from Gill. This she did not do. The rule applicable in this kind of a ease is well stated in 77 C. J. S. 824, Section 114 —• Actions for Rescission, in these words: “In an action by the seller to rescind for fraud, a person who has contracted to purchase the property when, and if, it is recovered back from the buyer will not be allowed to intervene.” A note to the above citation refers to Mulready v. Pleeny, et al., (Meagher v. Mulready), 252 Mass. 379, 148 N. E. 132. The facts in the cited case are very similar to the facts in this case, and Mulready occupied the same relative position as Mrs. Klemme and Meagher occupied the same relative position as Simmons. The case involved the right to rescind a sale of stock and Meagher contended that he had a sufficient interest in the suit to enable him to intervene. The court said: “Mrs. Mulready had, at most, only the right to rescind the contract because of fraud practiced on her. The right could not be assigned or transferred. A mere naked right to set aside a contract on the ground of fraud is not assignable. Meagher was not defrauded. To permit him to litigate for a fraud practiced on his assignor would be against public policy. Such a right ‘is not a marketable commodity.’ ”

We have carefully read the authorities cited by the petitioner herein to sustain our Temporary Order, but we find notMng in such citations contrary to the con-elusion we have reached.

The Temporary Supersedeas heretofore issued is dissolved, as of this date and is not to be reinstated by the filing of a petition for rehearing herein. ' '


author: Lee Sbamstbk, Chief Justice.

text:
    Dillard v. State.
    4848
    293 S. W. 2d 697
    Opinion delivered October 1, 1956.

      W. E. Billingsley and E. H. Lamore, for appellant.

      Tom Gentry, Attorney General and Paul C. Rawlings, Assistant Attorney General, for appellee.
   Lee Sbamstbk, Chief Justice.

Arnold Dillard has appealed from the judgment of the Fulton Circuit Court, based upon a jury verdict, which found him to be guilty of violating the provisions of Ark. Stats. 1947, § 41-3202, and assessed the punishment there prescribed.

The appellant, for reversal, contends that the Court erred in the following points:

■ (1) In refusing to instruct a verdict of “not guilty” upon motion of defendant made at close of State’s case (Tr. p. 18).

(2) In refusing offered instruction No. 1 defining the terms “prostitution” and “sexual intercourse.” In refusing offered instruction No. 2 defining the doctrine of “Ejusdem Generis” in construction of statutes. In refusing offered instruction No. 3, that sexual intercourse is not lewdness, prostitution or assignation, and is not indecent or obscene per se.

(3) In failing and refusing, “upon the Court’s own motion,” to declare § 41-3202 of Ark. Statutes not sufficiently definable to support a criminal conviction and/ or to support the information upon which defendant was tried.

The facts (about which there is very little dispute) are that the appellant, on November 19, 1955, registered at a tourist court near Salem in Fulton County under a fictitious name and address. He was accompanied by a married woman, not his wife; but he registered them as man and wife, rented a cabin, and the two of them stayed in the cabin alone the remainder of the night. They left the tourist court together the next day.

The appellant contends that this conduct was not a violation of the law because only one incident was charged or proven. Section 41-3202, Ark. Stats. 1947, which is Section 2 of Act 240 of 1943, makes it a misdemeanor for any person to enter or remain in any house, place, building, tourist camp or other structure for the purpose of prostitution, lewdness or assignation. Section 41-3203, Ark. Stats. 1947 is Section 3 of the same Act, and it defines lewdness for the purpose of the act as: “The term ‘Lewdness’ shall be construed to include any indecent or obscene act.” One definition by Webster’s dictionary of the word “indecent” is “morally offensive.”

The General Assembly by passing this law intended, among other things, to make it unlawful for any person to do what the appellant did in this case, whether one incident or several. No one could successfully contend that the acts of the appellant in this case were decent or morally right.

The Court properly instructed the jury as to the law in such cases. The evidence is sufficient to sustain the verdict of the jury.

The judgment is affirmed.


author: J. SeaborN Holt, Associate Justice.

text:
    Trotter, Administratrix v. Ozarks Rural Electric Cooperative Corp.
    5-972
    294 S. W. 2d 498
    Opinion delivered October 1, 1956.
    [Rehearing denied November 5, 1956.]

      Hardin, Barton, Hardin & Garner, for appellant.

      Wade & McAllister and Barber, Henry & Thurman, for appellee.
   J. SeaborN Holt, Associate Justice.

By this appeal appellant, Marjorie Trotter, Admx., challenges the judgment of the trial court sustaining appellee’s demurrer to her complaint, and dismissing her complaint, upon her refusal to plead further. In testing the complaint on demurrer, we must treat all allegations that are well pleaded to be true.

Appellant’s allegations in her complaint here were, in effect, that she is the widow of Earl Trotter and at the time of his death both were residents of Benton County, Arkansas; that appellee, Ozarks Rural Electric Cooperative Corporation, is an Arkansas corporation with its principal office in Fayetteville, Arkansas; that Earl Trotter, while employed by the Killoren Company, — in the course of his employment, — was negligently Hlled near Stilwell, Oklahoma; that Killoren Company of Appleton, Wisconsin, entered into a contract with appellee (Ozarks Rural Electric Coop. Corp.) whereby they agreed to build a transmission line between Evansville, Arkansas and Stilwell, Oklahoma; and that appellee was at “the time and place” selling electric service to its customers along said proposed transmission line. It appears that appellant conceded to be true the following1 facts, (Admission of Fact under Act 335 of the 1953 Legislature) upon which her complaint was based, and the trial court considered them as allegations in the complaint. “1. That plaintiff, Marjorie Trotter, is the duly appointed Administratrix of the Estate of Earl E. Trotter, deceased, and that she was so appointed by the Benton County Probate Court. 2. That the defendant, Ozarks Rural Electric Cooperative Corporation, is a cooperative, organized under the laws of the State of Arkansas, with its principal place of business at Fayette-ville, Arkansas. 3. That Killoren Company is a construction company, maintaining its principal place of business at Appleton, Wisconsin, and that at the time of the accident more specifically referred to in plaintiff’s complaint, and which occurred on July 29, 1954, Killoren Company was engaged in the construction and erection of electric transmission lines between Stilwell, Oklahoma, and Evansville, Arkansas, said lines being constructed for and on behalf of defendant, Ozarks Rural Electric Cooperative Corporation. 4. That Construction Contract No. 23X, dated April 16, 1953, between Killoren Company and Ozarks Rural Electric Cooperative Corporation, together with Amendments Numbered 1, 2, and 3, are the written contracts between Ozarks Rural Electric Cooperative Corporation and Killoren Company and were the contracts under which Killoren Company and its employees were working on July 29th, 1954. 5. That said contract above referred to specifically required Killoren Company to carry Workmen’s Compensation Insurance for the protection of its employees and for the protection of the Ozarks Rural Electric Cooperative Corporation; that said contract above referred to further provided that Killoren Company would hold Ozarks Rural Electric Cooperative Corporation harmless from any and all claims, losses, or damages which might arise by reason of the performance of the terms and provisions of said contract; and that a photostatic copy of the pertinent provisions of said contract above referred to, are attached hereto and made a part of this Request for Admission of Facts as though set forth, herein word for word. 6. That pursuant to the foregoing Contracts, Killoren Company did proceed with the work called for thereunder, which said work in itself, was of an extrahazardous nature. 7. That in the performance of the Contract, Killoren Company did employ Earl Trotter, deceased, and said Earl Trotter at the time of his death on July 29, 1954, was an employee, acting in the course and scope of his employment with Killoren Company and that he lost his life when he came in contact with an energized line, which line Killoren Company was erecting for Ozarks Rural Electric Cooperative Corporation. 8. That before entering into the performance of said Contract, Killoren Company, pursuant to the terms thereof, did obtain standard form of Workmen’s Compensation Insurance through Maryland Casualty Company, which said company was and is qualified to do business in the State of Oklahoma. 9. That the accident in question occurred at or near Stilwell, Oklahoma, and immediately thereafter, that plaintiff Marjorie Trotter, as widow of the said Earl E. Trotter, Deceased, and as Guardian for Jo Ann Trotter, minor child of the said Earl E. Trotter, deceased, being the surviving widow and sole surviving heir at law of the said Earl E. Trotter, deceased, did apply for, collect and receive the maximum amount being paid by Maryland Casualty Company, Workmen’s Compensation carrier for Killo-ren Company. 10. That the amount collected by the said Marjorie Trotter, as widow of the said Earl E. Trotter, Deceased, and as guardian for Jo Ann Trotter, minor child of the said Earl E. Trotter, deceased, amounted to the total sum of Thirteen Thousand Five Hundred Dollars ($13,500.00). 11. That the foregoing amount so collected resulted from the death of the said Earl E. Trotter on July 29, 1954, which is one and the same accident as that referred to in plaintiff’s complaint.” Ap-pellee’s demurrer alleged that the complaint failed to state facts sufficient to constitute a cause of action for the reason that plaintiff’s (appellant) exclusive remedy was under the Oklahoma Workmen’s Compensation Act.

We have concluded that the demurrer was properly sustained and that the judgment of the trial court was correct and should be affirmed. Appellant relies on two points: “1. The law of Arkansas allows this action, and the trial court erred in sustaining appellee’s demurrer. 2. Assuming for the purposes of argument that Oklahoma law applies, still said law permits this action and the trial court erred in sustaining appellee’s demurrer.” Here it is conceded that the death of appellant’s intestate occurred in Oklahoma, therefore, any right to recover and the measure of damages must be tested by the laws of that state, American Railway Express Co. v. Davis, 152 Ark. 258, 238 S. W. 50; Magnolia Petroleum Co. v. Turner, 188 Ark. 177, 65 S. W. 2d 1. It is also undisputed that the Killoren Company, in accordance with its contract with Ozarks Rural Electric Cooperative Corporation, secured the payment of compensation benefits that might accrue to a workman employed by Killoren Company and who might suffer accidental injury or death arising out of and in the course of his employment, and also secured and kept in force a workmen’s compensation insurance policy. Section 11 — (1&2) of 85 Oklahoma Statutes 1951 provides: “1. In the absence of provisions to the contrary in any contract with an independent contractor, such independent contractor shall be conclusively presumed to have agreed, as a part of the terms of the contract, that he will comply with the Workmen’s Compensation Laws of this State, and in case of a failure to do so, the person procuring such work to be done by independent contractors may declare such failure a substantial violation of the contract, and terminate the same at his or their option. All unpaid balances due under such contract, or so much thereof as may be reasonably necessary, may be retained as indemnity against compensation claims under the Workmen’s Compensation Act of this State. The independent contractor shall, at all times, be liable for compensation due to his direct employees, or the employees of any subcontractor of such independent contractor, and the principal employer shall also be liable in the manner hereinafter specified for compensation due all such employees. Provided, however, that for the purposes of this Act, a lessor or sub-lessor shall be deemed not to be one having an interest in the subject matter, the principal employer, contracting employer, employer,' general, intermediate, or immediate, independent contractor or intermediate contractor, of the lessee or of any subsequent sub-lessee, or of the employees of the lessee or of any subsequent lessee, including the employees of the sub-contractors of the lessee or of any subsequent sub-lessee. 2. The person entitled to such compensation shall have the right to recover the same directly from his immediate employer, the independent contractor or intermediate contractor, and such claims may be presented against all of such persons in one proceeding. If it appears that the principal employer has failed to require a compliance with the Workmen’s Compensation Law of this State, by his or their independent contractor, then such employee may also proceed in the same investigation or case against such principal employer. If it shall be made to appear in such proceeding that the principal employer has failed to require a compliance with this Act by his independent contractor then such principal employer shall be liable for all such injuries to employees of his independent contractor, or the subcontractor of such independent contractor. If it appears in such proceeding that the principal employer is liable for compensation under the terms of this Act, and the subcontractors of the independent contractor and their sureties, are also liable, then judgment or order shall be issued against all of such parties and execution may be issued therefor, but such execution shall first be enforced against those found liable other than the principal employer, and will be enforced as against the principal employer only for the residue of such claim after exhausting the execution against others liable therefor. Payment of the compensation found due by any of the persons liable therefor, shall be complete satisfaction of the claim as to other parties, but any person secondarily liable for such compensation shall have a cause of action against the person primarily liable for the recovery of any payment made on account thereof.” It is perfectly clear that this Oklahoma Workmen’s Compensation Law provides the exclusive remedy to recover by. claimant, appellant, whose husband was killed in that state while engaged in a hazardous employment, as here,- as against an employer, principal contractor or snb-contractor. Under the above sections Ozarks Rural Electric Cooperative Corporation was clearly a principal employer and in no sense a third party, and appellant, claimant, is precluded from filing a tort action against Ozarks after having voluntarily availed herself of the Oklahoma Workmen’s Compensation Act above (which appears to be more favorable than our own compensation act) and has received the maximum paym'ents thereunder.

The Supreme Court of Oklahoma in the case of Mid-Continent Pipe Line Co. v. Wilkerson, 200 Okla. 335, 193 P. 2d 586 in construing the above sections of the Oklahoma Workmen’s Compensation Law held: “Headnote 1. Employee’s right of action for injuries arising out of and in course of hazardous employment and jurisdiction of courts thereover, with certain exceptions, are abrogated by Workmen’s Compensation Law (85 O. S. 1941 § 1 et seq.). Headnote 2. Same — Principal employer not liable in tort for injuries to employee of independent contractor. Liability of the principal employer under the terms of the Workmen’s Compensation Law of this state to provide compensation for injuries to an employee of, an independent contractor is exclusive, and such employee is without right to maintain action in tort against the principal employer on account of such injuries.”

As recent as 1954 the United States District Court, Western District of Oklahoma, 146 F. Supp. 217, had occasion to construe the above sections of the Oklahoma Workmen’s Compensation Law in a case wherein the facts were, in effect, on all fours with present case. The opinion in that case contains this language:

IN THE UNITED STATES DISTRICT COURT EOR THE Western District oe Oklahoma

No. 5998 Civil

Robert E. Woody.:.:.!.Plaintiff v. Union Equity Co-op. Exchange, a Corporation.:.Defendant

National Painting Corporation......TMrd Party Defendant State Insurance Fund, Compensation Ins. Carrier

Memorandum

‘‘The plaintiff, a resident of Missouri, brought this action to recover damages for personal injuries due to the alleged negligence of the defendant, an Oklahoma corporation.

“The undisputed facts disclose that the defendant, Union Equity Co-Operative Exchange, on March 23,1953, entered into a contract with the National Painting Corporation for the painting and water-proofing of its grain elevator. The plaintiff, Robert E. Woody, was one of the employees of the National Painting Corporation and on July 15, 1953, was engaged in the course of his employment in the performance of the work to be done upon Union Equity’s elevator. While so engaged he suffered an accidental injury while riding upon Union Equity’s manlift, a revolving composition belt with foot platforms used to enable employees to ascend and descend from one floor to another.

“In its contract Union Equity required National Painting Corporation to secure the payment of compensation benefits which might accrue to a workman employed by National Painting Corporation who suffered an accidental injury arising out of and in the course of employment by procuring and keeping in force a Workmen’s Compensation insurance policy by an approved insurer. On the day in question, National Painting Corporation had such Workmen’s Compensation insurance policy in force and effect.

“This court, therefore, concludes that it lacks jurisdiction of this case and the action should be dismissed. The subject matter and the parties fall squarely within the provisions of the Oklahoma Workmen’s Compensation Act, Title 85 O. S. A. Union Equity with whom National Painting Corporation held its painting contract was a principal employer within the meaning of Section 11 (2) of Title 85 O. S. A. Since Union Equity was a principal employer, under the Oklahoma decisions it cannot he subject to suit at common law by an employee of an independent contractor, which was the status of Woody, the plaintiff herein. Mid-Continent Pipe Line Co. v. Wilkerson (Okla. 1948), 200 Okla. 335, 193 p. 2d 586; Deep Rock Oil Corporation, et al. v. Howell, Judge (Okla. 1948), 200 Okla. 675, 204 p. 2d 282; Jordan v. Champlin Refining Co. et al. (Okla. 1948), 200 Okla. 604, 198 p. 2d 408.

“Under such circumstances, Union Equity’s only liability would be that fixed by the Act in the event it failed to require the independent contractor to carry compensation insurance for the protection of its employees. I think Woody’s only remedy is before the State Industrial Commission.”

As indicated, since appellant has been fully compensated under the Oklahoma Compensation Act, above, and her only remedy was under that Act, we must and do affirm.


author: Ed. F. McFaddin, Associate Jnstice.

text:
    Blankenship v. State.
    4852
    293 S. W. 2d 702
    Opinion delivered October 1, 1956.

      Eugene Coffelt, for appellant.

      Tom Gentry, Attorney General, Thorp Thomas, Assistant Attorney General, for appellee.
   Ed. F. McFaddin, Associate Jnstice.

Ben Blankenship was convicted of possessing intoxicating liquor for sale in a dry comity; and Ms punishment was fixed at a $300.00 fine (§ 48-901 Ark. Stats.). On appeal he argues only one assignment, which is the sufficiency of the evidence to sustain the verdict.

Benton County is a “dry” county, and Washington County is a “wet” county. The evidence discloses that Blankenship drove to Washington County and purchased some liquor. Just as he was nearing his home in Benton County, the officers stopped him and searched his car and found sixteen bottles of whiskey, each of one-half pint size. Each bottle was separately wrapped; and there were eight bottles in one sack and eight in another. Blankenship operated a filling station and small store in Benton County; and it was shown, without objection: (a) that he had previously been convicted for the illegal sale of liquor; and (b) that he had the reputation of being a bootlegger.

Blankenship insisted that he had purchased the sixteen bottles of liquor for his own use. He argues that § 48-922 Ark. Stats, establishes a presumption that the possessor of more than one gallon of liquor in a dry territory has such quantity for purpose of sale. Because of this Statute, Blankenship insists, that since he had not more than one gallon of liquor, there is no presumption that he had it for purpose of sale. But, regardless of the said Statute or presumption, the jury had the right, under the evidence here, to find that Blankenship had the sixteen bottles for purpose of sale. The presumption-made by § 48-922, concerning the possession of more than one gallon of liquor, does not prevent prosecution when the possessor has for purpose of .sale only one gallon or less.

Our language in Freeman v. State, 214 Ark. 359, 216 S. W. 2d 864, is apropos to the present case:

‘ ‘ Whether appellant possessed the liquor for the purpose of sale or merely for his personal use was a matter for the. jury to determine under the facts and circumstances. The purpose for which liquor is possessed or kept may be shown by circumstantial evidence. Milton v. Ft. Smith, 175 Ark. 694, 1 S. W. 2d 45. The jury had a right to consider the amount of liquor and the number and size of the containers in which it was found in determining whether appellant would likely procure and possess a gallon or two gallons of whiskey for his personal use in pint containers. Under § 14140 of Pope’s Digest the jury also had a right to consider appellant’s reputation for engaging in the illegal liquor traffic in determining his guilt or innocence of the charge. Hughes v. State, 209 Ark. 125, 189 S. W. 2d 713; Harris v. City of Harrison, 211 Ark. 889, 204 S. W. 2d 167; Gray v. State, 212 Ark. 1023, 208 S. W. 2d 988. It is true that proof of such reputation standing alone is insufficient to sustain a conviction. Richardson v. State, 211 Ark. 1019, 204 S. W. 2d 477. We hold that the evidence was legally sufficient to go to the jury on the question as to whether appellant illegally possessed the liquor for the purpose of sale, and that the court did not err in refusing to instruct a verdict for appellant.”

Affirmed.

       In misdemeanor cases, all assignments not briefed and argued are waived.. See. Fields v. State, 219 Ark. 373, 242 S. W. 2d 639.

       The appellant made a motion for an instructed verdict at the close of the State’s case. When the motion was denied, he introduced no evidence, so did not waive his motion. See Reeves v. State, 222 Ark. 77, 257 S. W. 2d 278.

       For other cases to the same effect, see Huffman v. State, 222 Ark. 319, 259 S. W. 2d 509; and Eoff v. State, 218 Ark. 109, 234 S. W. 2d 521.


author: MiNor W. Millwbe, Associate Justice.

text:
    Jackson v. State.
    4853
    293 S. W. 2d 699
    Opinion delivered October 1, 1956.

      Jameson & Jameson, for appellant.

      Tom Gentry, Attorney General, Paul C. Rawlings, Assistant Attorney General, for appellee.
   MiNor W. Millwbe, Associate Justice.

The defendant has appealed from a judgment of conviction for the crime of grand larceny as a second offender under Ark. Stats. § 43-2328. The jury fixed the punishment at 2 years in the penitentiary. The first and principal question raised is Avhether the trial court erred in admitting evidence of the contents of a certain telegram offered by the state.

R. L. Reese is the owner of Reese Tie Company which purchased a Home-Lite chain saw for $274.18 from B. F. Thomas & Son in Fayetteville, Arkansas, on January 20, 1956. This saw was taken from the tool house of the company in Fayetteville on the night of February 9, 1956. A Home-Lite chain saw found in the possession of defendant on February 20, 1956, had a motor number P12465 but the serial number had been removed. Mr. Reese testified he had an invoice showing the serial number of the stolen saw and sent a telegram to the Home-Lite company giving them the serial number on the invoice; that the Home-Lite company sent him a telegram in reply stating that the motor number of the saw corresponding to the serial number sent in was P12465; and that he could identify the saw as belonging to Ms company, only by means of the information contained in the telegram. Defendant objected and excepted to the action of the trial court in permitting the witness to testify to the contents of the telegram and in admitting the saw in evidence. There was no testimony other than the contents of the telegram sufficient to identify the saw found in defendant’s possession as the property of the Reese Tie Company.

The court erred in admitting the contents of the telegram. Written communications such as telegrams which are relevant to the issues are ordinarily admissible in evidence, provided their admission does not violate any of the exclusionary rules of evidence, such as the hearsay evidence rule. 20 Am. Jur., Evidence § 954; Wharton’s Criminal Evidence (12th Ed.) § 570. But the rule excluding hearsay testimony extends to written as well as oral statements, and evidence otherwise incompetent as hearsay is not admissible because it is written or printed. 22 C. J. S., Criminal Law, § 719. Testimony of the kind involved here was called “pure hearsay” and its admission held to constitute prejudicial error in Christian v. State, 174 Ark. 357, 295 S. W. 368. In that case a bigamy conviction was reversed where the prosecuting attorney, in order to show that defendant’s wife was living, was permitted to testify that he sent a telegram to her in Kansas and received a telegram in reply purportedly signed by her.

Defendant also contends the trial court erred in overruling his motion to quash the information made at the beginning of the trial. The information properly charged defendant Avith the theft of the saw in question and further alleged that it constituted a second offense in that defendant had been previously convicted of grand larceny in the Circuit Court of Madison County, Arkansas. It is argued that the information was fatally defective because it failed to charge that defendant had been previously discharged from the penitentiary, either upon compliance with the sentence or upon pardon or parole, as provided in Ark. Stats., § 43-2328, supra. In view of the liberal rules relating to form and contents of indictments and informations set forth in Ark. Stats. § 43-1006 and other sections of Initiated Act No. 3 of 1936, we hold the allegations of the information sufficient in'the absence of a motion for bill of particulars. This was the effect of our holding in Robbins v. State, 219 Ark. 376, 242 S. W. 2d 640 where we said:

“If the information in the case at bar had charged the prior convictions of appellant only in general terms, then it might have been sufficient under our liberal rules of procedure, at least in the absence of a motion for bill of particulars. But the information here embraces no charge of a prior conviction nor any other allegation calculated to put appellant on notice that he was charged with a felony.”

The information in the case at bar does charge the prior conviction and the omission complained of should have been reached by motion for bill of particulars under our statutes.

Moreover, the defendant freely admitted the former conviction on direct examination and that he had been released from the penitentiary on parole after serving part of the sentence. It is held generally that on a charge of a second or subsequent offense, where the accused confesses the fact of the prior conviction, it is unnecessary for the state to prove such fact. See cases cited in 58 A. L. R. 80.

' Defendant also contends that error was committed in the giving of Instruction No. 11 relating to proof of similar offenses, because the jury’s consideration of such matters was not restricted to offenses closely connected in point of time to the act charged. The motion for new trial contains no assignment of error directed to Instruction No. 11 and the question in all probabilty will not arise on retrial.

We find no prejudicial error involved in the other assignments of error. On account of the error in admitting the testimony of R. L. Reese concerning the contents of the telegram from the Home-Lite company, the judgment is reversed and the cause remanded for a new trial.


text:
    Affholter v. McCarley.
    5-1013
    293 S. W. 2d 698
    Opinion delivered October 1, 1956.

      Collins, Edwards, Core & Collins, for appellant.

      George E. Steel and Don Steel, for appellee.
   George Rose Smith, J.

This suit was brought by the appellant to recover judgment upon three promissory notes, totaling $'500, and to foreclose a vendor’s lien securing the debt. The chancellor found the cause of action to be barred by the five-year statute of limitations. Ark. Stats. 1947, § 37-209. The only question presented is whether that finding is against the weight of the evidence.

The three notes were executed in 1919 by N. E. and Lena Townsend, in connection with the purchase of 160 acres of land. The notes matured serially in 1923, 1924, and 1925. The appellee bought the encumbered land from the Townsends in 1923 and expressly assumed the debt. The appellant’s husband, C. A. Affholter, acquired the notes on a date not shown by the record and had held them for some thirty years when he died in 1952. This suit was filed by his widow in 1954.

In our opinion the preponderance of the proof shows that the appellee paid the interest on the notes until Affholter’s death; so the debt is not barred. Affholter, who was the postmaster at Vandervoort, kept the three notes pinned together in his safe at the post office. From 1923 through 1939 Affholter indorsed annual payments of interest on all three notes; thereafter he nsed only one note for the indorsements. Mrs. Affholter identifies her husband’s handwriting and says that he made the notations as soon as the payments were received — “He didn’t leave it until tomorrow.” This evidence alone would bring the case within the principle that proof of indorsements made before the statute of limitations has run is sufficient to make a prima facie case for the plaintiff. Brown v. Hutchings, 14 Ark. 83.

There is, however, much additional testimony tending to show that the interest was paid from year to year. The appellant testified that the appellee made payments in person and sent other remittances by mail. Another witness, Imogene Smith, testified that during Affholter’s last illness she made, at his direction, the final indorsement on the notes, which Affholter then initialed. From time to time Affholter unquestionably wrote to the county collector to be certain that the taxes were being paid on the land which secured the debt. Two of these inquiries, one made in 1942 and the other in 1946, were introduced in evidence. In 1954, after Affholter’s death, the appellant wrote to the appellee about the debt. In his reply McCarley did not deny the validity of an obligation which he now says had been repudiated more than twenty years earlier. He merely said: “. . . if you care to see me about the notes you mentioned would be glad to see you and come to a better understanding about them.”

The only substantial proof contradicting the appellant’s persuasive evidence is the appellee’s own testimony. He admits that he made payments by mail for several years, but he says that he called on Affholter in 1933 at the very latest and told Affholter that he was through with the notes and would not be responsible for them any further. McCarley offers no reason for his decision to repudiate a debt that he had recognized for ten years, but he testifies that his creditor acquiesced in the matter and made no additional demands for payment.

We do not consider that the appellee’s testimony ovecomes the plaintiff’s prima facie case. McCarley’s version of the transaction cannot be reconciled with Aff-holter’s careful making of indorsements for almost twenty years after the debt had supposedly been disavowed. It cannot be reconciled with the undisputed fact that Affholter continued for many years to verify the tax payments. It leaves unexplained McCarley’s failure to take a forthright position in response to the letter he received from Mrs. Affholter in 1954. On the whole case we are convinced that the weight of the evidence lies with the appellant.

Reversed and remanded for the entry of a decree granting the relief prayed.


author: Paul Ward, Associate ' Justice.

text:
    National Casualty Co. v. Johnson.
    5-1025
    293 S. W. 2d 703
    Opinion delivered October 1, 1956.

      Talley & Owen and Robert L. Rogers II, for appellant.

      Martin, Dodds & Kidd, for appellee.
   Paul Ward, Associate ' Justice.

Appellee, Beryl Johnson, recovered judgment, based on a jury verdict, against appellant for loss of time [as a school teacher], medical expenses, and penalty, in accordance with the provisions of an insurance policy.

The Insurance Company seeks a reversal on two grounds, viz: (a) The condition complained of by appel-lee was existing at the time the policy was issued, and; (b) Appellee did not give notice of the accident as provided for in the policy. For the purposes of this opinion there is no dispute about the facts, and both issues raised by appellant were properly presented to the trial court and to this court.

In 1952 appellee had an ulcer on her left leg, resulting in an operation for varicose veins, and in a skin graft in August of that year. Apparently the condition continued to exist to some extent throughout 1952 and 1953. On November 1, 1953 appellant issued to her the policy in question after its agent had contacted her personally.

Appellee contended that a few days after January 1, 1954 she had an accident • — - that the shoe rubbed her left foot and that her condition became so bad that she went to the hospital on the 8th. On the 16th she wrote appellant to the effect that she was sick. This is the notice which appellant claims does not comply with the provisions of the policy.

Following the above notice appellant sent appellee a “Preliminary Blank for Sickness” which she filled out on March 10, 1954 and returned. Item No. 10 of this blank [as filled out by appellee] reads: “My sickness was ruptured blood vessel and ulcer on foot.” On May 4,1954 appellant wrote appellee a letter denying liability on the ground that the condition' complained of existed before the policy was issued.

On June 17, 1954 appellee filed her suit against appellant based on sickness. This complaint was amended in. response to a motion by appellant, and finally, on April 26, 1955 appellee, for the first time, alleged that her condition was the result of an injury or accident suffered on or about January 8, 1954.

(a) It appears clear to us that appellant is. not en-r titled to a reversal on tjie ground that the condition complained of existed before the policy was written.! This suit was filed and tried on the theory of an accident, not sickness, and there is no contention by appellant that the accident complained of occurred before November 1, 1953, the date of the policy. Neither is there any contention by appellant that its policy contained no accident provision.

(b) The question of whether appellee had in fact suffered an accident is a close one, but we need not be' concerned with it here. This question was presented to the jury by instructions to which appellant interposed only general objections, and appellant does not here contend there was no substantial evidence to support the instructions or the verdict of the jury.

The question of the sufficiency of the notice is a more difficult one. In this connection the policy provides :

“This policy provides , indemnity for loss of life, limb, sight or time resulting from accidental bodily injury effected directly, and independently of all other causes and sustained while this policy is in force (hereinafter referred to as ‘such injury’) and for loss of time caused by sickness commencing while this policy is in force (hereinafter referred to as ‘such sickness’).” It also provides:
“Written notice of injury or of sickness on which claim may be based must be given to the Company within twenty days after the date of the accident causing such injury or within ten days after the commencement of disability from such sickness. In the event of accidental death, immediate notice thereof must be given to the Company. ’ ’

The only specific notice given by appellee to appellant was the letter she wrote on January 16, 1954 while in the hospital. It reads:

“Am sorry to have to advise you that I was taken ill on January 6, 1954. I was taken to St. Vincents Infirmary on order from my doctor on January 8, 1954. Canse of disability: excessive bleeding from an nicer on left foot, my policy number is . . .”

Appellant ably argues that the notice in this case, referred to being “ill,” was not sufficient to notify it that appellee had suffered an accident, and therefore was not a compliance with the requirements of the policy on notice. In support of this contention appellant cites American Central Life Insurance Co. v. Palmer, 193 Ark. 945, 104 S. W. 2d 200, quoting that portion of the opinion where it approved this statement:

“. . . the reason for holding that the stipulation for notice is of the essence of the contract is to enable the insurer to investigate the circumstances while the matter is yet fresh in the minds of all, and to make timely defense against any claim filed.” Also our attention is called to the statement in 45 C. J. S., page 1219, Sec. 98, where, among other things, it is said:
“Contents of notice. The notice should contain particulars sufficient to identify insured, should state that the injury or death was the main result of accident, and should state the cause of the accident.”

We take it the commentator might well have included “sickness” [as well as “accident”] if the occasion demanded. Included also in the statement copied by appellant are these expressions: “Substantial compliance with the provisions of the policy as to notice is sufficient,” and “A notice giving the best information available at the time is sufficient.”

While we do not find that the exact question presented here has ever been before this court, and while the answer to it is not made crystal clear by a study of the numerous decisions dealing generally with the question of notice, we have reached the conclusion that there was a substantial compliance with the provisions of the policy in this instance.

The courts and text-writers appear agreed that, in general, the purpose of notice is to afford the insurer an opportunity to make adequate investigation for a defense, in the event of litigation, and to prevent fraud. When a notice has served this purpose it should not be used as a technical defense to prevent justice. 29 Am. Jur., Sec. 1100 [Insurance-Purpose and Necessity] states:

“The purpose of a provision for notice and proofs of loss is to allow the insurer to form an intelligent estimate of its rights and liabilities, to afford it an opportunity for investigation, and to prevent fraud and imposition upon it.”
A statement to the same effect is found in 45 C. J. S., page 1231, under the sub-head of “G-eneral Principles” as related to notice where “notice” is distinguished from; “proof of loss”:
“The object of notice is to acquaint insurer of the occurrence of the loss, so that it may make proper investigation and take such action as may be necessary to protect its interests. The object of the proofs is to furnish insurer with the particulars of the loss and all data necessary to determine its liability and the amount thereof. ’ ’

Another reason why courts require only a substantial compliance by the insured is that the insurer chooses the language in its policies and the realization that the average person is not able to make fine technical distinction. It will be noted, from the quotation copied above relative to notice, that it is not made clear that the cause of the disability [whether accident or sickness] must be stated. Moreover the facts in this case present a situation where, in all probability, appellee could not tell definitely just what caused her disability.

It is therefore our opinion that the notice herein was a substantial compliance with the provisions of the policy, and that appellant was not deprived of the opportunity to make an investigation, prepare its defense, and prevent a fraudulent claim. Certainly, the proof fails to show that appellant was so deprived.

Affirmed.


author: Sam RobiNsoN, Associate Justice.

text:
    Dixie Furniture Company v. Deason.
    5-986
    293 S. W. 2d 706
    Opinion delivered October 1, 1956.

      Dinning & Dinning, for appellant.

      Harold Sharpe and Ted McCastlain, for appellee.
   Sam RobiNsoN, Associate Justice.

This is a personal injury case,growing out of the explosion of Butane gas. The issues are whether the evidence is sufficient to sustain a jury finding of negligence on the part of appellants, .and whether appellees are guilty of contributory negligence.

The sequence of events leading up to the injury of appellees is as follows: The appellant, Dixie Furniture Company, sold to Howard'Shields a quantity of furniture, including a Butane gas range for the kitchen. This stove was installed-in a house, .at Brinkley, Arkansas rented by Shields from N. D. Early. Eater, Shields decided, to move from Brinkley and notified appellant company to.-repossess the furniture, including the stove. In response to Shields’ notice,- on the-22nd day of September, the appellant sent two employees, Charles Maness and Charles Butler, to get the furniture and stove;

. On October 5, appellee, Mrs. Helen Deason, rented the house from Mr. Early where Shields had lived; she moved to the place on October 6. The house was piped for gas, with a gas heating stove in the living room, one in the bathroom, and a gas connection in the kitchen. Prior to the time she moved into the Early house Mrs. Deason had never used gas. She owned an oil cooking stove and this stove was placed over the gas pipe in. the kitchen by the men she had employed to move her household belongings. Mrs. Deason cooked on her oil stove that night. The next day she had the gas company send out a man to examine the stoves in the living room • and bathroom; she could see that the handle which turned the living room stove on and off was missing. She also' wanted the hot water tank lighted. Jim Burdshall, an employee of the gas company, came out to do this work. The butane gas had been cut off at the tank in the yard. Burdshall examined the stoves in the living room and the bathroom, turned the gas on at the butane tank in the yard, and then attempted to light the butane hot water heater. He turned on the gas at that fixture and' struck a match to light it; when he did, there was an explosion, and both Burdshall and Mrs. Deason, who was standing nearby, were burned. They both recovered judgment against the appellant furniture company and against Early, owner of the house. Early has not appealed.

The points relied on by appellant on appeal are: First, “Insufficiency of the evidence offered by the ap-pellees at the close of their testimony as well as at the. close of all .the testimony to. submit a question of negligence to the jury.” Second, “Contributory negligence on the part of the appellees based upon their own testi-. mony which would bar a recovery. ’ ’

The evidence is convincing that the gas pipe for the cook stove was open and uncapped, and the gas escaping from the open pipe caused the explosion. The evidence is equally convincing that Shields, the former occupant of the house, on the one’ hand,' or Maness and Butler, employees of the furniture company, on the other hand, ' disconnected the stove and:-failed to put ..a cap.-.on the. open end of tlie gas pipe. Shields testified positively that he did not disconnect the stove; that he notified the furniture company that they could repossess the furniture and stove, and then he left town and was not in Brinkley that afternoon when the furniture company sent for and obtained the stove. On the other hand, Maness and Butler, employees of the furniture company, testified that they did not disconnect the stove; that when they got to the house where the stove was located, the stove had been disconnected and moved out into the center of the floor. The correct version of what occurred was within the province of the jury to determine. The jury had the advantage of being able to observe the witnesses and their demeanor, and was in a much better position than this court is to judge the credibility of the witnesses.

Negligence is the doing of that which an ordinarily prudent person would not do under the circumstances, or, the failure to do that which an ordinarily prudent person would do under the circumstances. With the gas pipe for the cook stove uncapped and open only a few feet from the hot water heater, an explosion would be almost certain to occur if the gas were turned, on and a flame produced to light the hot water heater without discovering the uncapped pipe; and that is exactly what occurred here. Appellant correctly states the law to be that negligence cannot be presumed, but must be proved; here, it was proved. Circumstantial evidence leads to the conclusion that either Maness and Butler, or Shields, disconnected the cooking stove and failed to cap the gas pipe. There is no contention on any one’s part that the pipe was capped when the stove was removed, but that the cap had been removed by vandals or thieves during the 16-day period that the house was vacant, between the time that Shields moved out and Mrs. Deason moved in. But Maness and Butler, and Shields, simply say they did not disconnect the stove. Of course, without the stove being disconnected, no cap could be placed on the pipe. The jury found that appellants’ employees, Man-ess and Butler, did disconnect the stove and failed to put a. cap on the open gas pipe; and it was a question for tlie jury to say whether an ordinarily prudent person would have left the pipe uncapped, depending on the next occupant of the house discovering the uncapped condition of the pipe before turning on the gas.

Whether the failure to put a cap on the pipe was the proximate cause of the injuries was a question of fact for the jury. In Federal Compress & Warehouse Company v. Free, 190 Ark. 969, 82 S. W. 2d 253, this court quoted with approval from Helena Gas Company v. Rogers, 104 Ark. 59, 147 S. W. 473, as follows: “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. Pulaski Gas Light Co. v. McClintock, 97 Ark. 584, 134 S. W. 1189. * * * It is not necessary that the effect of the act or omission complained of would in all cases, or even ordinarily, be to produce ■ the consequences which followed, but it is sufficient if it is reasonably to be apprehended that such an injury might thereby occur to another while exercising his legal right in an ordinarily careful manner, or, in other words, if the act or omission is one which the party ought, in the exercise of ordinary care, to have anticipated as likely to result in injury to others, then he is liable for any injury proximately resulting therefrom, although he might not have foreseen the particular injury which did happen. Pulaski Gas Light Co. v. McClintock, supra; Foster v. Chicago, R. I. & P. Ry. Co., 127 Iowa 84, 102 N. W. 422, 4 Am. & Eng. Ann. Cas. 150; Baltimore & Ohio Rd. Co. v. Slaughter, 167 Ind. 330, 79 N. E. 186, 7 L. R. A. (N. S.) 597.”

There was also a question for the jury as to whether appellees were guilty of contributory negligence in failing to discover that the pipe was uncapped, and the jury found in favor of appellees on that issue. This court cannot say as a matter of law "that either Mrs. Deason or Burdshall was guilty of contributory negligence in failing to discover the open pipe.

Affirmed.


author: Lee Seamster, Chief Justice.

text:
    Bornsteine v. William R. Moore Dry Goods Company.
    5-996
    294 S. W. 2d 52
    Opinion delivered October 8, 1956.
    [Rehearing denied November 5, 1956.]

      Harold Sharpe, for appellant.

      Mann & McCulloch- Canale, Glanlder, Montedonico and Booiie .& Loch- and-Norton & Horton, for appellee.
   Lee Seamster, Chief Justice.

This is .an appeal by .the appellants, Irvin Bornsteine and Aaron Paul, from a decree of ;the St. Francis Chancery Court which was ■rendered in favor of the appellees, William R. Moore Dry Goods Company and others. The appellees are creditors of Fred Zuckerman, a party who sold the appellants a retail store located in Hughes, Arkansas. The trial court held the sale by Zuckerman to appellants to be void by failure to comply with the terms and provisions of the Arkansas Bulk Sales Act — -Ark. Stats. Sections 68-1501 to 68-1504.

For reversal, the appellants contend: (1) The lower court was not within its jurisdiction in granting a Temporary Enjoining Order; (2) The lower court did not have jurisdiction to hear a case on its- merits seven days after the filing of the complaint; and, (3) a. There is not a preponderance of competent evidence to support the finding and decree of the trial court, b. There was a substantial compliance with Arkansas Bulk Sales Law.

The facts reveal that on December 31, 1955, the appellants, by their agent, C. S. Scott, entered into a written contract with Fred Zuckerman to purchase the stock and fixtures of the retail store operated by Zucker-man in Hughes, Arkansas. Upon execution of the contract, the appellants made a down payment- of $1,000 as earnest money and agreed to pay the balance of the purchase price, in the sum of $7,000, within ten days. On January 4, 1956, the appellants paid the balance owing on the contract, whereby Zuckerman executed and delivered a bill of sale for the store to appellants. Appellants took possession of the store and operated it as a retail store until January 13, 1956, when appellees filed this suit to have the sale set aside and the assets of the store subjected to the payment of appellees’ debts, as' creditors of Zuckerman.

The written contract and bill of sale were signed and sworn to by Zuckerman, and each contained a provision to the effect that Zuckerman covenanted and warranted the property sold by him to be free and clear of any and all debts of the seller and that there were no liens or encumbrances, either present or contingent, upon said properties. This was not a substantial compliance with the Bulk Sales Law. Furthermore the evidence reflects that the appellants made no bona fide effort to ascertain whether Zuckerman had any creditors before closing the sale.

We find that the trial court correctly held the sale in this case to be void as to the creditors under the provisions of the Arkansas Bulk Sales Law. The evidence reveals that no full and detailed inventory was made and preserved ten days before the sale. The seller did not ■give to the purchasers, ten days before the sale, a written statement, under oath, listing the names and addresses of creditors, with the amount of the indebtedness due or owing to each. The purchasers did not notify the creditors, ten days before the purchase was completed, of the proposed sale and the price, terms and conditions thereof.

The Chancery Court has jurisdiction to appoint a receiver, upon the application of a creditor, to subject any property or fund to his claim, under the provisions of the Arkansas Bulk Sales Law — -Section 68-1503, Ark. Stats., 1947 and also Section 36-112, Ark. Stats. 1947.

The appellants entered their general appearance at the hearings on January 20, 1956 and January 27, 1956, and subjected themselves to the jurisdiction of the court at that time, the appellants introduced their witnesses, cross-examined the appellees’ witnesses. The appellants did not request further time to produce additional evidence, but closed their case and made no objection to the proceedings. No issue was made on this question before the trial court and it is too late to raise the issue here. Rollans v. Douglas, 221 Ark. 256, 252 S. W. 2d 833; Stroud v. Crow, 209 Ark. 820, 192 S. W. 2d 548.

We find the trial court is sustained by a preponderance of the evidence and that there was not a substantial compliance with the Arkansas Bulk Sales Law in this case. The decree and orders of the trial court are affirmed.


author: J. Seabork Holt, Associate Justice.

text:
    Taylor v. City of Pine Bluff.
    4849-4850 (Consolidated)
    294 S. W. 2d 341
    Opinion delivered October 8, 1956.
    [Rehearing denied November 12, 1956.]

      Kenneth C. Coffelt, for appellant.

      Wilton E. Steed, for appellee.
   J. Seabork Holt, Associate Justice.

These two cases have been consolidated here for our consideration,.

No. 4849 '

A jury found appellant guilty of having kept his grocery store open on Sunday in violation of the provisions of § 41-3802 Ark. Stats. 1947, and assessed a fine of $25. For reversal appellant relies on two points: “1. The enforcement officers are arbitrarily enforcing the statute against this appellant, thereby violating his constitutional rights under Amendment 14 of the Federal Constitution. 2.- It is necessary for appellant’s grocery store, and grocery stores generally, to remain open on Sunday.”

This case is controlled by our recent opinion in the case of Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S. W. 2d 672. In the present ■ case, appellant admitted that he was keeping his grocery store open on Sunday but sought to justify his act by asserting that he was being arbitrarily discriminated against and also that he was justified in operating his store on Sunday by virtue of the provisions of § 41-3803, Ark. Stats. 1947, which provides: “Charity or necessity excepted. — Charity or necessity on the part of the customer, may be shown in justification of the violation of the last preceding section.” All these issues were submitted to the jury under proper instructions and we hold that there was substantial evidence to support their verdict. Appellant also says: “The Court will take judicial■ knowledge of the situation in Pine Bluff with reference to the discrimination issue, and the only thing we can do is to ask the Court to reverse itself in the case of Taylor v. City of Pine Bluff, as decided in this Court April 30,1956.” This contention is clearly untenable. ‘ ‘ In order that a matter may properly be a subject of judicial notice, it must be ‘known’ — that is, well established and authoritatively settled. It is clear that uncertainty or difference of belief in respect to the matter in question, will operate to preclude judicial notice thereof. Matters of which the Court will take notice are necessarily uniform or fixed .and do. not depend upon uncertain testimony, for as soon as a matter becomes disputable, it ceases to fall under the head of common knowledge, and so will not be judicially recognized.” 20 American Jurisprudence, p. 50. We decline to overrule our former opinion. Affirmed.

No; 4850

In case No. 4850 appellant seeks the reversal of a similar charge of having kept his grocery store open on another Sunday and upon a trial, at which the same issues were raised as in Case No. 4849 above, the trial court at the conclusion of all the evidence presented by the parties directed the jury to return a verdict of guilty and a fine of $100 was assessed by the jury. For reversal appellant relies on the same points as in Case No. 4849 above. We find no evidence in the record that it was necessary for appellant to keep his store open on Sunday or any evidence of any arbitrary discrimination against him. The trial court correctly directed a verdict of guilty in the circumstances. “It is the settled rule in this State that, in a misdemeanor case where the punishment is by fine only, the circuit court, having the power to set aside a verdict of acquittal, also has the power to direct a verdict of guilty, where the facts are undisputed and where guilt is the only inference that can be legally drawn from them,” Huff v. State, 164 Ark. 211, 261 S. W. 654. Affirmed.