author: CarletoN Harris, Chief Justice. George Rose Smith, Justice, JohN A. FoglemaN, Justice,

text:
    St. Louis Southwestern Railway Co. v. Frances W. Farrell Adm'x of the estate of Marguerite M. Booth
    5-4184
    416 S. W. 2d 334
    Opinion delivered June 5, 1967
    [Rehearing denied. July 26, 1067.]

      Barrett, Wheatley, Smith & Beacon, for appellant.

      Shaver & Shaver, for appellee.
   CarletoN Harris, Chief Justice.

This appeal involves a railroad crossing accident. Frances W. Farrell, Administratrix of the Estate of Marguerite M. Booth, instituted suit against the St. Louis Southwestern Railway Company, seeking damages because of the death of Mrs. Booth, who succumbed on June 4, 1964, as a result of injuries suffered on June 1, 1964, when an automobile in which she was riding struck the third power unit of a Cotton Belt train at a crossing near the Fair Oaks community in Cross County. On trial, the jury returned a verdict for $70,000.00 against the railroad company, appellant herein, and from the judgment so entered comes this appeal. For reversal, it is asserted, first, that there was no submissible issue of negligence, and a verdict should have been directed for the Cotton Belt. In the alternative, it is contended that the court erred in refusing a requested instruction by appellant dealing with increasing care commensurate with danger.

Let it first be stated that the questions of negligence involving employees charged with operating the train, in such matters as speed of the train, ringing of the bell, blowing of the whistle, and maintaining a proper lookout, are not really involved in this appeal. The trial court dismissed the complaint against the conductor after the plaintiff had concluded its case, and dismissed the complaint against the engineer following the conclusion of all the evidence. While appellee cross-appeals from the trial court’s action in dismissing the somplaint against the engineer, only two paragraphs are devoted to this cross-appeal, and appellees state that they are not insisting on same “unless it should become important in this matter and we have mentioned same so that no waiver could be inferred.” There is no reason to relate the testimony relative to any alleged negligence on the part of this employee, and it will suffice to say that an examination of the record supports the order entered by the Circuit Court dismissing the complaint as against him.

The main premise on which recovery was sought, and the one upon which the jury granted the recovery, was that the Fair Oaks crossing is an abnormally dangerous crossing and the railroad had not provided adequate warnings of the approach of trains.

The accident occurred at 8:35 A.M. on June 1. O. C. Booth, accompanied by his wife, Marguerite, was driving east on Highway No. 64, and the Cotton Belt train, consisting of five power units, seventy-two cars, and a caboose, was proceeding south at a speed of 60 to 65 miles per hour. The crossing was equipped with standard flashing signal lights, a bell, and an electric signal, which showed a constant vertical red S-T-O-P once the signals were activated by an approaching train. The Booth automobile, according to the evidence, skidded approximately 77V2 feet into the third power unit of the train, killing Mr. Booth instantly and fatally injuring Mrs. Booth. The highway was straight, level, and at grade with the crossing. A motorist’s view toward the direotion from which, the train was approaching is obstructed by a store building, surrounded by a grove of frees, the east edge of the building being located about 75 feet from the railroad track. The sun was in the east, which, as stated, was the direction in which, the automobile was proceeding. All of the evidence is to the effect that the flasher lights were working, but appellees offered numerous witnesses who testified that the lights appear dim and difficult to see when one is driving toward the sun. There was also testimony that there are trees on the railroad right-of-way that obstruct the view of a motorist traveling east, preventing such motorist from seeing an approaching train, at least during the period of time when the trees are in full foliage.

Albert Hess, who lives three miles east of Fair Oaks, testified that as one travels east early in the morning in June, the sun is about eye level; that the signal lights could very easily be overlooked, appearing dim because of the sun. This witness testified that at a time when a state trooper’s patrol car was parked at the crossing with the patrol light on, he observed that that light was much brighter than the railroad signal lights. Harold E. Cox, who resides a mile from the Fair Oaks crossing, stated that at certain times of the year when the sun is bright, the lights are difficult to see. This, according to the witness, is particularly true with reference to early morning travel to the east and late afternoon travel toward the west. Otha Hewitt, Chief of the Traffic Service Division of the Arkansas Highway Department, testified that early in the morning and late in the afternoon, the sun is at an angle that makes it difficult to see the lights at the Fair Oaks crossing. The Chancery Judge of the Fifth Chancery District, Ford Smith, who frequently travels over the crossing involved, said that as one travels from the west toward the east, between 7:30 and 8:30 in the morning, the glare of the sun creates difficulty in ascertaining whether the lights are blinking, and this witness also stated that the growth of trees, heretofore referred to, makes it difficult to observe a train approaching from the north.

Jimmy Brannan, a Highway Department resident engineer, made measurements on the railroad right-of-way for the purpose of ascertaining the type, size and density of timber growing on the right-of-way. He testified that a number of trees were at least partly on the railroad right-of-way, including some that, from their size, appeared to be about ten years old. Brannan made measurements for a distance of 1,000 feet north of the crossing, and he stated that the timber was not in a continuous line, but was “intermittent, skips.” This witness also testified that the crossing lights were difficult to see when driving into the sun.

A total of nine witnesses testified that (to varying degrees) the sun definitely affected the ability of an approaching motorist to see the flashing signals at the crossing. There was also testimony by some. other witnesses that the signals could be seen, but we are here only concerned with whether there was sufficient evidence to send the case to the jury.

The court was asked to submit to the jury the question of whether the crossing in question was “abnormally dangerous” and, over the objections of appellant, the following instruction was given:

“Plaintiff, Frances W. Farrell, Administratrix, contends that the Railroad grade crossing in this case was abnormally dangerous, and they have the burden of proving this proposition.
“If a Railroad grade crossing is frequently used by the traveling public, if trains pass over it frequently, and if the crossing’ is so dangerous because of surrounding circumstances that a reasonably careful person could not use it with reasonable safety in the absence of special warnings, then it would be an abnormally dangerous crossing. Whether the Railroad grade crossing in this case was abnormally dangerous is for you to decide.
“If you find that the crossing was abnormally dangerous, as I have defined that term, then it is the duty of the- railroad to use ordinary care to give a warning reasonably sufficient to permit the traveling public to use the crossing with reasonable safety.”

The railroad contends that it had given special warnings (the signal lights), and that the signal system used meets the standards set by the American Association of Railroads, as adopted by the Bureau of Public Roads, and the Arkansas Highway Department. As to the last argument, let it be said that a railroad’s compliance with safety regulations (either industry or statutory regula-tioná) does not constitute a complete discharge of its duties toward the public. Pennington v. Southern Pacific Company, 304 Pac. 2d 22 and Bridger v. Union Railway Company, 355 F. 2d 382 (1966). In the case of Grand Trunk Railway Company of Canada v. Ives, 12 Supreme Court 679, the United States Supreme Court said:

“*** The underlying principle in all cases of this kind which requires a railroad company not only to comply with all statutory requirements in the matter of signals, flagmen, and other warnings of danger at public crossings, but many times to do much more than is required by positive enactment, is that neither the legislature nor railroad commissioners can arbitrarily determine in advance what shall constitute ordinary care or reasonable prudence in a railroad company at a crossing, in every particular case which may afterwards arise; for, as already stated, each case must stand upon its own merits, and be decided upon its own facts and circumstances, and theSe are the features which make the question of negligence primarily one for the jury to determine, under proper instructions from the court.”

Appellant insists that it had given special warnings, but it is the sufficiency of the warnings that is here in question. In our own case of Fleming, Administratrix v. Missouri and Arkansas Railway Company, 198 Ark. 290, 128 S.W. 2d 986, we said:

“It is the settled rule that whether failure of á railroad company to station a flagman at a crossing constitutes an omission of such care as an ordinarily prudent person would use under the same or similar circumstances, is a question of fact where there are obstructions which materially hinder the view of approaching trains, provided the crossing is used frequently by the public, and numerous trains are run. Inasmuch as permanent surroundings may create a hazardous condition, the rule of care goes further and requires precautions where special dangers arise at a particular time. It is said that the obligation exists, at an abnormally dangerous crossing, to provide watchmen, gongs, lights, or similar warning-devices not only for the purpose of giving notice of approaching trains, but such care is to be equally observed where the circumstances make their use by the railroad reasonably necessary to give warning of cars already on a crossing, whether standing or passing, as where a crossing is more than ordinarily dangerous because of obstructions to the view interfering with the visibility of the responsible train operatives, or those approaching the track.”

In Hawkins v. Missouri Pacific Railroad Company, Thompson, Trustee, 217 Ark. 42, 228 S.W. 2d 642, we said:

“*** ^ directed verdict for the defendant is proper only -when there is no substantial evidence from which the jurors as reasonable men could possibly find the issues for the plaintiff. In such circumstances the trial judge must give to the plaintiff’s evidence its highest probative value, taking into account all reasonable infer-enees that may sensibly be deduced from it, and may grant the motion only if the evidence viewed in that light would be so insubstantial as to require him to set aside a verdict for the plaintiff should such a verdict be returned by the jury. ’ ’

We think, under the testimony adduced, that the instruction was proper, arid we hold that there was sufficient testimony to make a jury question as to whether the special warnings given were adequate to warn the occupants of the Booth car of the approach of the train.

It is asserted that reversible error was committed by the court in refusing to give appellant’s Bequested Instruction No. 1. This proposed instruction reads as follows:

“A motorist whose visibility is impaired, or reduced, by physical or natural elements is under the duty for his safety and that of others affected by his driving to exercise ordinary care commen'surate with the increased dangers present or created by natural causes. ’ ’

We do not agree. It will be noted that this instruction pertains only to the duty of the motorist, i.e., operator of the vehicle, the instruction setting forth his duty to himself and “others who are affected by Ms driving.” Had this litigation been instituted by the administrator of Mr. Booth’s estate, appellant’s argument might be pertinent, but since the suit was instituted by the admin-istratrix of the passenger, and in view of the court’s Instruction No. 18, appellant’s argument is without weight. The court, in Instruction No. 18, after telling the jury that Mrs. Booth was required to exercise ordinary care for 'her own safety, and a failure on her paid to do so would be negligence, then stated, in this same instruction:

“On the other hand, the negligence, if any, of Gr. C. Booth in operating the automobile in which Marguerite M. Booth was a passenger prior to and at the time of the fatal accident in this case could not be imputed [onr emphasis] to Marguerite M. Booth or to the plaintiff in this case.”

This instruction was given without objection on the part of appellant, thus precluding any possible error in the court’s failure to give appellant’s Bequested Instruction No. 1.

It might also be stated that there was no evidence in this case which would have justified the court in giving an instruction on imputed negligence. See Rogers v. Crawford, 220 Ark. 385, 247 S.W. 2d 1005.

It is finally urged by appellant that the verdict ivas grossly excessive, and we agree that the evidence does not justify the amount of damages awarded. The complaint sought $50,000.00 for pain and suffering of the deceased who died four days after the collision; $4,000.00 was sought for medical, hospital, doctors, and burial expenses, $3,500.00 for the market value of the Dodge automobile that was demolished, and the three children of Mrs. Booth asked $50,000.00 for mental anguish. A general verdict only was returned by the jury, and we have no way of knowing how the $70,000.00 awarded was apportioned. We are-firmly of the view, however, that the established facts do not justify the recovery of a large amount for mental anguish of the children. The surviving children were Fred Welsh, Morgan Welsh, and Frances Welsh Farrell, all children of Mrs. Booth by a previous marriage. The evidence reflects that Fred Welsh was 50 years of age, married, with three children, and lives in Cincinnati, Ohio, where he is manager of the Pepsi-Cola Bottling plant. He has not lived in Searcy for 30 years, but testified that his mother visited him in his home just before Thanksgiving 1963; he has not been in her home since Thanksgiving 1962. He stated that he frequently corresponded with his mother.

Morgan Welsh, 47 years of age, who manages a newspaper in De Land, Florida, testified that he had not lived in Searcy since 1941. He said that his mother, at the time she was fatally injured, had started on a journey to his home for the purpose of attending the graduation of his son,- further, that his mother would visit him in Florida every 2 or 3 years, and he more frequently visited her in Searcy. He had not seen her since the preceding Christmas.

Frances Welsh Farrell, 44 years of age, lives in Brinkley with her husband. Her testimony reflected that she contacted her mother by mail frequently, and called Mrs. Booth over the telephone nearly every Sunday. She had last seen her mother about a month before Mrs. Booth’s death. Each child, upon being notified of the accident, went to Memphis, and was present there when the mother died. Each was, of course, shocked, upon learning of the tragedy, and each testified as to mental anguish suffered because of the death of Mrs. Booth. Peugh v. Oliger, Administratrix, 233 Ark. 281, 345 S.W. 2d 610, is our landmark case on mental anguish. The opinion discusses at length what constitutes “mental anguish,” and points out that the term means “something more than recovery for the normal grief occasioned by the loss of a loved one. To be grieved or to be shocked by the death of a loved one is natural, but in order to recover under the Act No. 255, one must suffer more than the normal grief.” In Mode v. Barnett, Administratrix, 235 Ark. 641, 361 S. W. 2d 525, three minor sons were awarded $7,500.00 each for the mental anguish caused by the wrongful death of their father, who had been shot and killed. From the opinion:

“*** In the instant case, we have three small boys who had been in close association with their father, probably a closer relationship than in the average family, due to the fact that there was no mother present to share in the companionship. Suddenly the one remaining parent was taken away from them —• and in a violent manner. According to the evidence of Cecil Barnett, husband of Mrs. Clida Barnett, the boys’ grandmother, the younger boys cried many nights, and on several occasions awakened the Barnetts in the middle of the night, ‘There’s been a many of nights that me and my wife would go to bed, pick them up and take them in and love them and talk to them.’ The witness states that Ferrell, one of the twins, had been under a doctor’s care due to extreme nervousness. The boys testified that their father was good to them, and would take them fishing, swimming, and to the picture show. Mrs. Barnett stated, ‘He took the boys everywhere he went when he wasn’t working, and they were not in school. If he went anywhere, they were with him, because he didn’t leave them behind. And he wor-shipped those boys.’ She also testified that their father’s death affected their school work: ‘They were able to continue in school but they had to stay in that same grade that year. They had to stay in that grade two years.’ ”

See also Strahan v. Webb, 231 Ark. 426, 330 S.W. 2d 291, where two boys, one in college, and one still in high school, had close ties with their father, who was killed in a collision.

In Peugh v. Oliger, supra, Mr. and Mrs. Albert Henley and Mr. and Mrs. Eugene H. Eubanks were all killed in an automobile collision when the auto in which they were riding was involved in a collision with a truck. Separate suits were instituted by the administrators, respectively, of the two couples, and the suits were consolidated for trial. The jury returned a verdict for Mrs. Gene Frances Oliger for $12,500.00 for mental anguish for the death of her father, Mr. Eubanks, and a like amount for mental anguish occasioned by the death of her mother. The evidence reflected that Mrs. Oliger was very close to her parents, and worked with them nearly every day in the hardware store which they owned. She fainted upon learning of their deaths. Even with this close relationship, the aforementioned verdicts were reduced to $7,500 each. The jury also returned a verdict for mental anguish damages in the amount of $2,000.00 for each of the five children of Mr. Henley, because of his death. All five children lived in distant states. The judgments for two were reversed, and their causes dismissed, and the other three verdicts were reduced to $500.00 each. An award of $10,000.00 for mental anguish was given Mrs. Leta Ring (because of the death of Mrs. Henley) who had been reared from early childhood by Mrs. Henley. After her marriage, Mrs. Ring continued to live near her, saw her every day, and subsequently, upon moving, would write and call her foster mother. The evidence reflected that upon the death of Mrs. Henley, Mrs. Ring suffered a near nervous breakdown. The award was left undisturbed by this court.

Here, the children seem devoted to their mother, and much closer to her than the five children of Henley, mentioned in Oliger, but, with the exception of the daughter, were rarely with her, and their contacts could not be termed “frequent,” as the word is generally used. This, of course, is due to the fact that the two sons lived in states that were far away, and the opportunities for visiting were accordingly limited. Even Mrs. Farrell, who lived .only 60 miles away, does not appear, from the record, to have visited with her mother a great deal, the principal contact being by letter, and once per week telephone calls.

Of course, these children were shocked when they learned of the fatal injury of their mother, and their grief was undoubtedly very real. Yet, we find nothing in this record that indicates that their grief was considerably greater than that of the normal and average adult child, who has lived away from home for many years. There are no exceptional circumstances, or particular relationships between the children and their mother, that would justify an unusual award. After all, death is a certain fact, and Mrs. Booth had reached that age when these children surely recognized the fact that their mother, in all probability, could not live too many more years. We have concluded that the judgment is grossly excessive, and should be reduced from $70,000.00 to $50,000.00.

Accordingly, the judgment is affirmed on the condition that a remittitur is entered as indicated within seventeen calendar days ; otherwise, the judgment will be reversed, and the cause remanded for a new-trial.

George Rose Smith, J., dissents.

FoglemaN, J., concurs.

George Rose Smith, Justice,

dissenting. I think the judgment should be reversed and the cause remanded for a new trial.

Among the instructions given was AMI 1805, which, after defining an abnormally dangerous crossing, goes on to say that if the jury finds that the crossing was abnormally dangerous then it was the duty of the railroad to use ordinary care to give a warning reasonably sufficient to permit the traveling public to use the crossing with reasonable safety.

Evidently the jury found that the crossing -was unduly hazardous, for the single reason that the rising or setting sun tends to blind motorists approaching the crossing. It thus became the railroad’s duty to take extra precautions to warn travelers of the danger ahead. The railroad sought to discharge that duty by the installation of flashing red lights at the crossing. Under the court’s instructions the decisive issue for the jury was whether the installation of those lights satisfied the railroad’s obligation to give an adequate warning.

The only testimony bearing on that issue consisted of statements that the crossing lights appeared to be dim and a statement that the lights on a patrol car were much brighter than the crossing lights. It seems to me that this proof was so scanty that the jury was left to speculate about whether the crossing lights were reasonably calculated to meet the railroad’s duty to warn. There is no proof that stronger or more visible lights can be bought or even that they can be manufactured. There is no proof that if brighter lights exist they would have overcome the glare of the rising sun. There is no proof that patrol ear lights are adaptable for use by the railroad. Those questions can be answered with a fair degree of certainty only by resort to skilled technical knowledge not lying within the ordinary experience of men called for jury duty. That knowledge was not made available to the jurors in the court below. Under the reasoning that we have followed in many cases, such as Glidewell v. Arkhola Sand & Gravel Co., 21 Ark. 838, 208 S. W. 2d 4 (1948), and Missouri Pac. R. R. v. Ross, 194 Ark. 877, 109 S. W. 2d 1246 (1937), I am compelled to conclude that the jury was allowed to draw an inference of fact not based upon adequate proof — in short, to speculate.

JohN A. FoglemaN, Justice,

concurring, I concur in the result and agree that the case should not be reversed for failure to give appellant’s requested Instruction No. 1, even though I think it is a correct declaration of law and applicable. But I believe that it affirmatively appears that no prejudice resulted because it was adequately covered by AMI 301, 303, 305 and 901. While there was no evidence on which negligence of Gr. O. Booth could be imputed to Marguerite M. Booth, appellant contended that the negligence of Gr. C. Booth was' the sole proximate cause of her injuries. By these instructions the jury was told that ordinary care was the care a reasonably careful person would use under circumstances similar to those shown by the evidence; that it was the duty of all persons involved to use ordinary care for their own safety and the safety of others; that the lookout required of a driver of a motor vehicle was that which a reasonably careful driver would keep wider circumstances similar to those shown by the evidence; that it was the duty of a driver of a motor vehicle to drive at a speed no greater than is reasonable and prudent, having due regard for any actual or potential hazards-; and that a failure to meet the standards of conduct required by the latter two rules was negligence.

       The complaint against Gerald Slocum, a signal' maintainer for the railroad company was also dismissed at the conclusion of the plaintiff’s case. (The Fair Oaks crossing was located in the district in which Slocum was charged with the responsibility of maintaining signal lights.)

       Since all of the heirs are the real parties in interest, appellee will hereafter be referred to in the plural.

       This comparison was made when both the railroad lights, and the police patrol light were on (flashing).

       The record reflects that a traffic count made about 0.25 miles east of the railroad at Fair Oaks on U. S. No. 64 for a 24-hour period showed a volume count on July 28, 1964, of 1,772 vehicles, and on August 3, 1964, of 1,957 vehicles. The record also further reflects an average of 16.4 trains per each 24-hour period during the month of June, 1964.


source: Caselaw Access Project

author: Carretón Harris, Chief Justice.

license: Public Domain

text:
    J. T. Arnold d/b/a Aggregates & Transporters et al v. Koehring Company d/b/a Buffalo-Springfield Co.
    5-4225
    415 S. W. 2d 552
    Opinion delivered June 5, 1967

      Oaughm & Lcmey, for appellants.

      W. J. Walker and Wayne Foster, for appellees.
   Carretón Harris, Chief Justice.

J. T. Arnold, doing business as Aggregates and Transporters, was a subcontractor under the principal contractor, W. R. Pair-child Construction Company, Ltd. The latter company held a contract with the Highway Department to reconstruct a portion of Highway No. 167 in Dallas and Grant Counties. Under the contract, Arnold was to place about 200,000 cubic feet of dirt on both sides of the road, across the Saline River bottoms, as a matter of widening the road from 30 to 52 feet. The road embankment through the bottom is 15 to 18 feet high, and the contractor had to extend the embankment 12 feet on each side. The new fill was put down in layers of 8 inches, and each layer was to be compacted to a density of 95 Proctor. To obtain the proper compaction, Arnold had been using a D7 bulldozer to pull a sheepsfoot roller back and forth oyer the fill. Though this method would accomplish the task, the work was slow and expensive, it being impossible to turn a dozer and sheepsfoot roller around on a high, narrow fill. Accordingly, the dozer would have to be operated to a place where there was room to turn.

Arnold had heard or read about a pneumatic roller used to compact earth, which could be driven back and forth without turning it around, and he contacted Boy McDonald, an equipment dealer with whom he had done 'business. McDonald represented the manufacturer of the machine, Koehring Company, doing business as Buffalo-Springfield Company, appellee herein. At Arnold’s request, McDonald and Frank Knolls, a factory representative for appellee, went with Arnold to the Saline Biver bottoms and inspected the four pits from which Arnold planned to obtain the dirt for the fill. Two of the pits were in the river bottom in gumbo mud; another was in sandy soil, and there was another in clay dirt. According to Arnold, these men assured Arnold that the PSB-30 machine (about which Arnold had inquired) would work satisfactorily, and get the required compaction. Arnold, stating that he relied upon their superior knowledge, signed a lease agreement on July 13, 1962, to rent this machine for 6 months for the sum of $1,600.00 per month, and the machine was placed on the job July 23, 1962. McDonald instructed the men how to operate the roller and demonstrated it by driving it himself. Appellant placed the machine in use, and thereafter occurred the events which give rise to this litigation, and which will be subsequently discussed. Arnold, contending that the machine did not perform satisfactorily, never did actually pay but $1,-600.00 for rent, turned the machine back in, and refused to make any further payments. Appellee then instituted suit for the balance of the rent due for the 6 months period against Arnold, Fairchild, and the Western Casualty and Surety Company, which, had executed a payment and performance bond as surety (for Fairchild Construction Company) to all who furnished material, labor, and supplies in doing the work under this .contract. Fairchild and Western answered, admitting, the execution of the bond, but denying all other material allegations, and Arnold answered separately, asserting that the machine would not perform, the work as represented by appellee; further, that he had been damaged in. the sum of $3,000.00 because the failure of the machine had delayed him in completing his contract, and his operating expense had risen because of that fact. On trial, the court, sitting as a jury, found that appellee was entitled to judgment in the amount of $7,000.00; that the Fairchild Company and Western Casualty were liable for that period of the lease agreement between July 23, 1962, and October 27, 1962 (when the machinery was being used on the Fairchild job in G-rant County), in the net amount of $2,359.99 ; that the cross-complaint of Arnold should be dismissed. From such judgment-comes this, appeal.

. , .There, was a no warranty clause in the lease contract, but appellant argues that this clause only warrants against latent defects in material, workmanship or .capacity, and he asserts there was an implied warranty that the particular type of machine involved would obtain the compaction required. Appellant states:

“*- * * The form used contains a no warranty clause but it is quite clear that the clause was not designed to relieve lessors of their obligation under the implied warranty that the machine was suitable for the use intended. The lessor and the manufacturer knew what was expected and required of the machine on this job.

It is not necessary that we discuss whether there actually was an implied warranty, for we think fact questions dispose of this litigation.

Proof on the part of appellant is to the effect that the roller would not give 95% Proctor compaction. Arnold stated that he could obtain 90, 91 and 92% Proctor compaction, but that he would then have to go back with his old machine to make the additional compaction. He said that his crew had trouble compacting the edge of the roadway, because of the fact that the machine could not get in close to the edge. Arnold mentioned that after a period of time, “the torque converter went out. * * * We were down I would say 10 days, maybe three weeks or longer, which the factory compensated us for as far as the rent was concerned. It was satisfactory how, the arrangement they made as far as that part of it was concerned.” Appellant testified that, in operating the roller, the directions given by McDonald were followed, that he was told “to fill it full of water. We filled it full of water. We still come up — that added more weight to it. Then they told us to put more air in the tires, on pneumatic rollers — the amount of air in the tires has something to do with the amount of compaction you get. They told us to do that. We still didn’t get it. In a period of two or three weeks this same factory man came back down and he said as a last resort to get the maximum weight on this roller he said to fill it full of sand and then fill it full of water, and we did that, but we still were unable to come up to this 95 per cent Proctor compaction which was required by the State. All the time we were still having to use the sheepsfoot to get the final four or five per cent compaction, before we could put our gravel and other materials on it.” Arnold took the roller off the Grant County job and sent it to Bald Knob, where he had another contract. In the meantime, he had made his rental payment on September 12. When asked why he retained the machine so long before taking it off the Saline River contract, appellant replied that he was “still in the stage of getting information from the factory,” and he believed in giving the machine “a fair chance.”

According to Randolph Reynolds, superintendent for Arnold on the Saline River job, the biggest trouble occurred on the shoulder. “Yes, where we had the biggest trouble on the shoulders. Take a Sheepsfoot and roll the shoulders because it hangs out a little further and get your compaction that way. ’ ’ He stated that the pneumatic roller could be used up to a certain point, but that the sheepsfoot would have to be then used in order to meet the specifications. He also said that there were times when this old machine would not attain the 95% compaction on the first trial. With the pneumatic roller, according to the witness, one could usually get the required compaction with sandy material. Reynolds said that the machine was top-heavy, and it was “difficult to find an operator that would run it. Most people was scared of it.”

The roller, after being sent to Bald Knob, was never used, because of rainy conditions, and it was finally turned back to McDonald on November 9, according to appellant, at the request of McDonald.

Roy McDonald testified on behalf of appellee that his company was the authorized representative of Buffalo-Springfield in this territory, and rentals were remitted to that company; his organization would not receive compensation unless the leas'e agreement was carried out. He testified that he told Mr. Arnold how the machine should be operated, and also furnished appellant with literature relative to proper operation of the roller. The witness said that the machine ‘ ‘ should have Calcium Chloride in the tires, ballast in the tires before it’s ever put in operation, and I located the Goodrich people in Little Rock and they had the facilities for filling the tires, etc. He could go down that afternoon and I talked to Mr. Arnold, told him what the price was, availability, could be done that afternoon. I gave him the man’s phone number and Mr. Arnold said he would ’phone him right away and get him down there. * * * The more ballast you have in it the lower the center of gravity comes down.” Mr. Arnold denied that anything was mentioned about calcium chloride, but the literature referred to is an exhibit and reflects directions for increasing the weight, mentioning five different increases respectively, caused by calcium chloride in tires, water ballast, water ballast and calcium chloride in tires, wet sand ballast, and wet sand ballast and calcium chloride in tires. McDonald said:

“ * '* * The book is pretty explicit if you want your maximum compaction you need to go to maximum weights and tire pressures and the only way to get that, fill that thing up with sand and water.”

McDonald also testified that Arnold complained about the machine around the middle of August, but after a visit by the factory representative, who recommended that the moisture content be increased, he (McDonald) heard no further complaint until October. The witness, who denied that he had told Arnold to return the machine, also testified that there was no sand in it when it was returned. McDonald was insistent that the roller would have worked satisfactorily if the recommendations had been correctly complied with.

That, then, is the testimony. Let it be remembered that, this being a Circuit Court case, we are only concerned with whether there was substantial evidence to support the judgment of the Circuit Court. It is, at once, obvious that the testimony was rather conflicting. Arnold and his witness stated, in effect, that the pneumatic roller simply would not “do the job,” and it is appellant’s contention that there was an implied warranty that it would perform the task for which it was leased. As previously stated, the question of whether there was an implied warranty is not controlling, for the Circuit Court, sitting as a jury, could well have found that the reason for the failure of the machine (if it did actually fail) was because Arnold did not comply with instructions in operating it. McDonald testified that he gave to appellant a copy of “condensed specifications” for this machine, and the specifications as to ballast condition (mentioned previously in this opinion) very clearly state that- calcium chloride should be placed in the tires. Mr. Arnold testified that he did not do this, saying that he had not been told, but the fact remains that- proper operating procedures are explained in the exhibit just mentioned. Arnold also testified that sand had been used to add weight, but McDonald, in his testimony, said that an examination of the machine, upon its return, showed that sand had never been placed in it. Specialized machinery, of course, must be opérated in accord with directions in order to attain a high degree of efficiency. The court heard these witnesses on this question, and, apparently took the view testified to by appellee.

It also appears that, at the very least, some-benefits were obtained by Arnold from the use of the machine. The pneumatic roller could be driven in both directions without the necessity of turning it- around, and this designed characteristic certainly should have been an aid to appellant'. In Lawson v. Rusconi, 296 Pac. 628 (Cal.), the court said:

“Assuming an implied warranty,- as contended for, it would be to the effect that the device was reasonably fit for the purpose intended. The court found that the contracts were fully complied with by the respondent, and, even if an implied warranty be assumed, we think this finding is supported by the evidence. Such a warranty would not call for 100 per cent efficiency upon the part of the machine and process, but only for such results as would be reasonable under the circumstances. While certain machinery for certain purposes may closely approximate perfection in its operation, many kinds of machinery and processes are extremely valuable, and constitute a great improvement over prior methods of doing certain things, although, from the very nature of the case, perfect results are impossible. In such cases, reasonable fitness for the purpose intended is to be judged by a comparative standard rather than by an arbitrary one.”

Arnold had the use of the machine for approximately a month before he made his first rental payment, and, though subsequently still complaining that it had not performed satisfactorily, sent it on to another job at Bald Knob, where he evidently intended to make further use of it, but was precluded from doing so by constant rain.

It is asserted that the machine was returned at the request of appellee on November 9, and Arnold could not properly be held liable for the full 6 months rental. We do not ageee. The machine was leased for that period of time. McDonald denied that he told Arnold that he had to bring it back, and stated that he had no authority to change the lease agreement. He did say that he told Arnold that appellee would have to repossess the machine and file suit for the amount of the lease if appellant did not take steps to arrange payments.

As stated, this was a case of conflicting testimony. The Circuit Court, sitting as a jury, decided these issues in favor of appellee, and there is substantial evidence to support the finding and judgment.

Affirmed.

       This is a standard measurement of compaction.

       The machine did not contain ballast, and turned over when he drove it near the edge of the fill.

       Arnold had paid $1,600.00 in cash, and appellee had given Arnold credit for $1,000.00, because of a breakdown of the machine for 19 days. This credit was subtracted from the total sum held to be due by Western of $4,959.99.

       This was the instance in which Arnold was credited with the $1,000.00.


author: George Bose Smith, Justice, Paul Ward, Justice, Conley Byrd, Justice,

text:
    Guaranty Financial Corporation et al v. James Harden et ux
    5-4230
    416 S. W. 2d 287
    Opinion delivered June 5, 1967
    [Rehearing denied July 26, 1967.]

      Griffin Smith, for appellant.

      Brockman & Brockman, for appellee.
   George Bose Smith, Justice,

This is a suit by the appellants, Guaranty Financial Corporation and its wholly owned subsidiary, Joe-Lee Homes, Inc., to foreclose a mortgage securing a promissory note payable in 144 equal monthly installments of $75.01. The note makes no distinction between principal and interest, merely reciting the total obligation of $10,801.44 (144 x $75.01), The single question is whether the inclusion of an acceleration clause in the note made the entire transaction void for usury. The chancellor held the note to be usurious but allowed the plaintiffs a partial recovery upon an allied construction contract.

We think the chancellor fell into error in construing the promissory note all by itself, without regard to the building contract which was executed at the same time, as a part of the same transaction, and which gave rise to the debt evidenced by the note. It is a familiar rule of law that in such a situation the two instruments are to be read together as a single contract. Gowen v. Sullins, 212 Ark. 824, 208 S.W. 2d 450 (1948); W. T. Rawleigh Co. v. Wilkes, 197 Ark. 6, 121 S. W. 2d 886 (1938). We are not here concerned with the possible status of a holder in due course of the note alone, for Guaranty Financial Corporation took the instrument from its own subsidiary. [See Ark. Stat. Ann. § 85-3-119 (Add. 1961).])

The building contract, note, and mortgage were all executed together on October 1-, 1965. The building contract was the basic instrument. By that contract Joe-Lee Homes agreed to construct a specified dwelling house for the Hardens for $6,288. The' contract, after reciting a down payment of $10, goes on to say.: “The balance of $6,278.00, plus interest, shall be paid in monthly installments of $75.01 beginning on the 1st day of January, 1966, and on the first day of each succeeding month thereafter until the whole of said indebtedness is paid. The Owner has concurrently herewith executed a promissory note and mortgage to cover the balance.”

The accompanying promissory note was in exact harmony with the building contract. As we have said, it recited a .lump sum • obligation of $10,801.44, payable in 144 monthly installments of $75.01, beginning January. 1, 1966. There followed this acceleration-clause: “In the event of default-in the payment of any installment . . . the entire unpaid principal indebtedness aforesaid shall, at the option of the payee herein, become immediately due and payable without notice. ’ -

When the building contract and promissory note are read as one contract, as our decisions require us to do, it is crystal clear that the original principal. debt was $6,278, with interest which can readily be calculated to be slightly less than the legal rate of. 10 percent per annum. All. that the plaintiffs seek to recover - is the unpaid principal plus accrued interest. Hence the case falls precisely within our holding in Mid-State Homes v. Knight, 237 Ark. 802, 376 S.W. 2d 556 (1964), where we said: “The chancellor in holding the instrument to he usurious, apparently based his decision upon the fact that the appellant had exercised its option to accelerate the maturity of future payments and had filed suit for the full amount without making any deduction for the interest that had not yet accrued. This procedure, however, did not render the transaction usurious. In such a situation the court should merely refuse to permit the creditor to recover the unaccrued interest. Eldred v. Hart, 87 Ark. 534, 113 S. W. 21; Sager v. American Investment Co., 170 Ark. 568, 280 S. W. 654.”

Reversed.

Ward, J., concurs.

Harris, C. J., and Byrd J., dis'sent.

Paul Ward, Justice,

concurring. I concur in the result reached by the majority, but only because the note itself refers to certain “covenants and agreements” which would be notice to an innocent purchaser.

Conley Byrd, Justice,

dissenting. The sole issue

raised by appellants, Guaranty Financial Corporation and Joe-Lee Homes, Inc., is whether an installment note for the gross amount of principal and interest at ten per cent is usurious because it fails to state the principal indebtedness on the face of the note and provides that upon default the entire gross amount stated shall be due and payable. The note executed by appellees, James Harden et ux., is as follows:

“PROMISSORY NOTE
“$10,801.44 . October 1, 1965 Pine Bluff, Arkansas
“For value received, the undersigned promise to pay to the order of Joe-Lee Homes, Inc. at its office in the City of Pine Bluff, Arkansas, the sum of Ten Thousand Eight Hundred One and 44/100 Dollars ($10,801.44) payable in (144) successive monthly installments of Seventy-five and 01/100 Dollars ($75.01) each, the first installment payable on the First day of January, 1966, and an installment of like amount payable on the First day of each succeeding month thereafter until the said indebtedness is fully paid.
“In the event of default in the payment of any installment hereunder or in the performance of any of the covenants or agreements on the part of the undersigned contained in the mortgage securing this note, the entire unpaid principal indebtedness aforesaid shall, at the option of the payee herein, become immediately due and payable without notice.
“The makers and endorsers of this note hereby severally waive presentment for payment, notice of non-payment and protest and consent that the time of payment of the above indebtedness, or of any installment thereof, may be extended without notice and agree to pay a reasonable attorney’s fee if th/s note is placed in the hands of any attorney for collection.
“This note is secured by a mortgage on real property in Jefferson County, Arkansas.”
The mortgage, like the note, makes no reference to the building contract which was executed simultaneously with the note and mortgage. The building contract provides:
“The Owner agrees to pay for the services and material of the Builder, the sum of $6288.00 (plus, in the event of a credit sale, interest on the unpaid balance), payable as follows:
“(a) $10.00 upon signing of this agreement, receipt of which is hereby acknowledged.
“(b) The balance of $6278.00, plus interest, shall be paid in monthly installments of $75.01 beginning on the 1st. day of January, 1966 and on the 1st. day of each succeeding month thereafter until the whole of said indebtedness is paid. The owner has concurrently herewith executed a promissory note and mortgage to cover the balance.”

This proceeding for foreclosure began on January 1, 1966, when appellant, Guaranty Financial Corporation, filed suit No. 36,318 in the Jefferson Chancery Court, stating, among other things, that appellees had committed a breach of their contractual obligation and therefore they accelerated the entire balance due on the note and the mortgage. The first suit was dismissed because of improper assignment of the note and mortgage. Thereafter the foreclosure proceeding now before us was instituted after the president of Joe-Lee Homes, Inc. assigned the note in question in this suit. In response to the second complaint, appellees contended, among other things, that the construction of the house, which is also a part of the subject matter of this suit, was not in conformity with the construction contract.

The trial court found that the practice of including interest on the face of the note is permissible legally where provisions are included for the determination of the correct amount of principal in the event of prior payment or default and foreclosure. However, in this case, the trial court found that the note and mortgage contained no such provisions for determination of principal amount due, and since the test for determining usury is the contract or writing itself, then in effect the lender had created a situation that was inherently usurious in event of default and foreclosure.

The chancellor held that the construction contract was valid but allowed a $1,000 credit for deficiencies in performance, and held that the contract, since it specified no rate of interest, bore interest at six per cent.

Our Constitution, Art. 19, § 13, provides as follows: “All contracts for a greater rate of interest than ten percent per annum shall be void, as to principal and interest, and the General Assembly shall prohibit the same by law; but when no rate of interest is agreed upon, the rate shall be six per centum per annum. ’ ’

The first paragraph of the promissory note above does not call for a greater payment than principal and interest at ten per cent per annum. Had the note stopped here, there would have been no difficulty under the usury laws. This is because our cases hold that, in the absence of an accelerating clause, the lender can not enforce the total amount of the note on default in payment of one or some of the installments. Fox v. Pinson, 172 Ark. 449, 289 S.W. 329 (1926).

The second paragraph of the note, however, provides as follows:

“In the event of default in the payment of any installment hereunder ... on the part of the undersigned . . . the entire unpaid principal indebtedness aforesaid shall, . . . become immediately' due and payable without notice.”

Can we say that the foregoing is not a contract for a greater rate of interest than ten per cent per annum? I think not, because it is obvious that where the option to accelerate is exercised before any payment is made, as in this case appellants would be obtaining much more than ten per cent per annum on their $6,278 investment. The chart hereinafter set out shows that more than ten per cent interest would be due appellants under the acceleration clause any time appellants exercised their option to accelerate the payments, including even the next to the last of such installments.

Payment Number Credit to Principal Credit to Interest. Balance

132 $853.21

133 $67.89 $7.11 ' 785.32

134 68.47 6.54 716.85

135 69.04 5.97 647.81

136 69.61 ’ 5.40 ' 578.20

137 70.19 '4.82 508.01

138 70.78 4.23 437.23

139' 71.37 3.64 365.86

140 71.96 3.05 29.90-'

141 72.56 2.45 221.34

142 73.17 ' 1.84 148,17

143 73.78 1.23 74.39

•144 74.39 - 0.62

Appellants rely upon Mid-State Homes, Inc. v. Knight, 237 Ark. 802, 376 S.W. 2d 556 (1964), where we said:

“The note-was payable in 72 monthly installments of $53.20. each, .which included both principal and interest. The chancellor, in holding the. instrument to be usurious, apparently based his decision upon the fact that the appellant had exercised its option to accelerate the maturity of future payments and had filed suit for the full amount without making any deduction for the interest that had not yet accrued. This procedure, however, did not render the transaction usurious. In such a situation the court should merely refuse to permit the creditor to recover the unaccrued interest. Eldred v. Hart, 87 Ark. 534, 113 S. W. 213; Sager v. American Investment Co., 170 Ark. 568, 280 S.W. 654.”

It is noted that the Eldred case, upon which we relied in the Sager and Knight cases, involved voluntary payments on the part of the borrower, which resulted in the lender acquiring more than ten per cent interest. In Foster v. Universal C. I. T. Corp., 231 Ark. 230, 330 S. W. 2d 288 (1959), which involved an involuntary prepayment resulting in the collection of more than ten per cent interest, we distinguished the case of Eldred v. Hart upon the ground that the borrower had voluntarily prepaid the principal of the debt. In so doing we held that an involuntary prepayment would make a contract usurious where it resulted in the interest exceeding the constitutional limitation. The only difference between the Foster case and this case is that here there was a demand for a prepayment of principal and interest which demanded the payment of more than ten per cent interest.

In ruling on the Knight case, no consideration was given to the fact that the acceleration of the payments was involuntary or that the acceleration clause was a CONTRACT for the payment of interest in excess of ten per cent. Can we say that the acceleration clause is not a contract within the meaning of Art. 19, § 13 of the Constitution? I think not, because Art. 19, § 13 voids ALL CONTRACTS without distinction as to whether the contract is presently binding or arises as a result of an option exercised by the lender for which it contracted upon the making of the loan. While Mid-State Homes, Inc. v. Knight, supra, is the law of the case as far as that litigation goes, I would hold it to be overruled so far as it is contrary to the Constitution. By no logical reasoning can we remit, under Art. 19, § 13, the interest demands in excess of ten per cent per annum under the acceleration contract and refuse to do so with respect to the interest demands in excess of ten per cent in any other contract.

Therefore, I would affirm the iower court.

Harris, C. J., joins in dissent.

       The foregoing chart was calculated on the basis of 12 equal installations at 10 per cent per annum. No calculation was made for months having more or less than 30 days. The interest charged by appellant appears to have been slightly less than the total maximum of 10 per cent.


author: Gteoege Eose Smith, Justice.

text:
    C. R. Bounds et ux v. Travelers Ins. Co.
    5-4237
    416 S. W. 2nd 298
    Opinion delivered June 5, 1967
    [Rehearing denied July 26, 1967.]

      Brown, Compton & Prewett, for appellant.

      Mahony & Yocum, for appellee.
   Gteoege Eose Smith, Justice.

This case is a sequel to Reynolds v. Bounds, 238 Ark. 610, 383 S. W. 2d 496 (1964), where the facts are fully stated. In the present case the trial court entered a summary judgment in favor of the defendant, Travelers Insurance Company, on the theory that in the earlier case the controlling issue of fact had been established adversely to the appellants, Mr. and Mrs. Bounds. We agree with that conclusion.

John H. Davidson operated a service station in El Dorado. On August 12, 1961, Cordon Smith, an employee of Eeynolds & Williams Contractors & Construction Company, brought one of his employer’s trucks to Davidson’s station for servicing. Davidson rode with Smith several miles towards Smith’s job site, to a point where Smith was able to catch a ride with a fellow: employee in another vehicle. As Davidson was driving the Eeyn-olds & Williams truck back to bis station be collided with Mr. Bounds’ car, which was being driven by Mrs. Bounds.

In the first case the Boundses sued Davidson, Smith, and Reynolds & Williams for personal injuries and property damage. The plaintiffs asserted that Davidson was acting as an agent, servant, or employee of Reynolds & Williams when the collision occurred. Davidson testified that he, in common v/ith other service station operators in El Dorado, customarily accommodated his patrons by driving their vehicles to or from the station. No extra charge was made for that service.

Mr. and Mrs. Bounds recovered judgment against Davidson and Reynolds & Williams for $23,500. On appeal we set aside the judgment against Reynolds & Williams, holding that at the time of the collision Davidson was a bailee of the truck and was not acting as a servant or employee of Reynolds & Williams. In the opinion we said: ‘‘Appellee[s] [make] a commendable but strained effort to draw a fine line between the work to be done at the station and the trip back to the station, conceding in effect that during the work at the station a bailor-bailee relationship would have existed, while contending that on the trip back to the station an agency relationship obtained.” We rejected that theory.

In the present case Davidson sued Travelers Insurance Company,- which was the liability insurance carrier upon the Reynolds & Williams truck. The Boundses were joined as defendants. Davidson asserted that he was driving the truck with the permission of Reynolds & Williams and was therefore an insured within the terms of the policy. Travelers pleaded as its defense an exception in the policy by which coverage was not extended to “any person . . . operating ... [a] service station, . . . with respect to any accident arising out of the operation thereof. ’ ’

Travelers filed a motion for summáry judgment, attaching a transcript of much of the testimony taken in the earlier litigation. Travelers also filed affidavits to show that it had defended the ease for Reynolds & Williams but had refused Davidson’s request that it defend the case for him as well. In response to the motion Davidson filed an affidavit stating that the accident did not arise out of the operation of his. service station; that he was returning the truck as an accommodation to Reynolds & Williams and Smith; that he received no compensation for'the accommodation; and that it was contrary to his usual business practice. That final assertion was explained by his testimony in the first case; he said that he did not ordinarily go beyond the city limits in accommodating his customers.

On the particular facts of this case the court was right in granting the motion for a summary judgment, as there is no disputed question of fact. Mr. and Mrs. Bounds, who alone have appealed, holster their argument by suggesting a hypothetical situation in which the first litigation might leave one or more issues unanswered. But that is not the case now before us. In Reynolds v. Bounds, supra, there were only two possibilities: Either Davidson was driving the truck as a servant or employee of Reynolds & Williams or he was driving it as a bailee in the course of his own business. We held the latter to be true. No third possibility has ever existed. Hence the accident arose .out of the operation of the station; so Davidson was not covered by the policy.

While Travelers was of course not named as a defendant in the first case, it was actually a real party in interest. A similar question arises when an injured plaintiff sues either a master or his servant for the latter’s negligence and when it is conceded that the servant was acting in the scope of his- employment and that there is no basis except respondant superior for the master’s liability. In that situation if the plaintiff loses his first suit against, either the master or the. servant he cannot maintain a second suit against the other. Davis v. Perryman, 225 Ark. 963, 86 S. W. 2d 844 (1956). The reason, as we pointed out in Frisby v. Hurley, 236 Ark. 127, 364 S. W. 2d 801 (1963), is that the plaintiff has had his day in conrt on the issue of the servant’s negligence and is not entitled to a second trial upon that exact issue.

The precise question now before us was considered in Berry v. Travelers Ins. Co., 118 N. J. L. 571, 194 Atl. 73 (1937), where the outcome in the first case had been the same as it was here and where the service station operator sued Travelers upon a policy like this one. The court held on a motion to strike the complaint, which we take to be the equivalent of a demurrer, that the claim was barred by the exclusion of accidents arising out of the operation of the service station and that the operator was not entitled to retry the question of his agency for the owner of the vehicle. We think that decision to be sound.

Affirmed.


author: George Rose Smith, Justice.

text:
    Gerald M. Swindle v. Valerie M. Swindle
    5-4253
    415 S. W. 2d 564
    Opinion delivered June 5, 1967

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

      Kirsch, Cathey & Brown, for appellee.
   George Rose Smith, Justice.

This is a child custody case between an American-born father and an English-born mother. After protracted litigation a final hearing was held on December 29 and 30, 1966. This appeal is from the ensuing decree by which the chancellor denied the father’s application for a change of custody and confirmed his original award of custody to the mother. The appellant’s basic contention is that the chancellor erred in refusing to permit him to prove events that occurred before November 3, 1965 — the date of the last preceding hearing upon the issue of custody.

Gerald and Valerie Swindle were married in England in 1962. Their daughter Sharon was bom in 1963. Upon their separation in Missouri in 1964 Mrs. Swindle returned to England with her daughter. On May 28, 1965, Gerald obtained a divorce in Greene county, Arkansas. The decree awarded Sharon’s custody to Valerie, apparently without contest.

In August of 1965 Gerald went to England, took forcible possession of his daughter, and brought her back to America by air. On August 9 he obtained a temporary order awarding him custody, pending a hearing on the merits. Mrs. Swindle was not financially able to come to Arkansas to defend the case, but she received what amounted to charitable contributions, which enabled her to make the trip.

Discovery depositions were taken at Paragould, in Greene county, on October 27, 1965, in preparation for a hearing* scheduled for November-1. Gerald was present with his three attorneys, Bill Penix,' John Watkins, and Jack Hoskins. Yalerie Swindle was present with her attorney, Maurice Cathey.

After the depositions had been taken Penix indicated to his client that he feared that Gerald was going to lose his case. Gerald at once secretly took Sharon and went to California with his present wife, Carole, whom he married on the way on November 4. The couple concealed their whereabouts until Yalerie, with the aid of private detectives, discovered them in St. Louis in December, 1966. In a habeas corpus proceeding in Missouri the court awarded temporary custody to Yalerie’s attorney, Cathey, pending a decision on the merits in Arkansas. Earlier in 1966 we had held that the order awarding temporary custody to Gerald, was not void. Swindle v. Bradley, 240 Ark. 903, 403 S.W. 2d 63.

After Gerald’s flight from Arkansas the scheduled hearing was duly held on November 1, 1965. Two of Gerald’s lawyers, Penix and Watkins, were present, but they were evidently embarrassed by their client’s contemptuous evasion of the court’s jurisdiction. At the chancellor’s direction, however, they participated in the hearing. The matter was adjourned to November 3, to give Gerald an opportunity to appear, but he failed to do so. The court canceled its August 9 temporary order and directed that custody be restored to Yalerie.

At the December, 1966, hearing, now before us for review, Gerald’s present attorneys offered to prove, by his testimony and Yalerie’s, that Yalerie had given birth to an illegitimate child on June 30, 1965, that she had been guilty of illicit relations with other men in England, and that her home there was not a suitable place for Sharon. The chancellor refused to permit proof of occurrences before November 3, 1965. (We should add, for the guidance of trial judges, that the chancellor’s refusal to permit counsel to make their offer of proof by actually questioning the witnesses, and his requirement that counsel instead state what they expected the witnesses to testify, cannot be recommended as the best procedure. It leaves the record uncertain about what the witnesses would actually have said. The better procedure is to permit counsel to elicit answers from the witnesses. If the trial judge conscientiously feels that he should not hear the witnesses’ answers, the offer of proof may be taken down by the reporter in the judge’s absence.)

Counsel for the appellant now argue that, since the welfare of the child is of primary importance, the- court should — regardless of the ordinary rules of procedure— have allowed them to prove Valerie’s misconduct, even though it occurred before the November 3 hearing. Our cases do not go that far. Although the best interest of the child is the controlling point at issue, it does not follow that all procedural rules are to be thrown overboard. Specifically, we have held that when a parent fails to produce evidence available to him at one hearing, he cannot rely upon that evidence in a later effort to win a change of custody. Riley v. Vest, 235 Ark. 192, 357 S. W. 2d 497 (1962); Henkell v. Henkell, 224 Ark. 366, 273 S. W. 2d 402 (1954).

Those cases govern this one for either of two reasons. First, the preponderance of the proof convinces us that Gerald’s attorneys of record properly appeared in his behalf on November 1 and 3, 1965; so he is bound by that adjudication. Secondly, even if that were not so, he cannot evade the binding force of a hearing, which was conducted at his own request, by deliberately leaving the state.

When the testimony is so limited our choice is not difficult, as the appellant seems to concede. We could not conscientiously declare that either Gerald or Valerie is the ideal custodian for their daughter, hut we must choose between the .two. During the fourteen months preceding the hearing below, Gerald was guilty of marked cruelty in denying to Valerie even the barest information about her child’s health and well-being. "W'e can easily imagine the agony of a mother who knows almost nothing about her daughter for more than a year. Moreover, Carole, Gerald’s second wife, wrote letters to Valerie that were so venomous as to shock the chancellor’s conscience. Those letters were written in St. Louis, but by deception they were postmarked in California, in furtherance of Gerald and Carole’s attempt to conceal their whereabouts. Again, in a bizarre proceeding in a California federal court, involving Sharon’s custody, Gerald signed a pleading and an affidavit containing willfully and grossly false statements about Judge Bradley and Maurice Cathey. Finally, Gerald contemptuously flouted the jurisdiction of the court below. We are unwilling to say that Gerald and Carole are fit to bring up this child.

Valerie admits serious indiscretions, but we know of no case in our Beports in which a mother has so steadfastly and devotedly fought for her child in the face of comparable obstacles. There is not even a hint of misconduct on her part during the fourteen months preceding the hearing below. We can with some serenity of mind award Sharon’s custody to Valerie. We could not make that assertion if our decision were otherwise.

Affirmed, with an immediate mandate to be issued as in Payne v. Jones, decided last Monday, 242 Ark. 686 415 S. W. 2d 57 (1967), without prejudice to the filing of a petition for rehearing. Our injunction of March 6, 1967, enjoining Valerie from taking Sharon out of the state, is dissolved.

Byrd, J., disqualified.


text:
    Wanda L. Tudor v. Russell C. Roberts, Judge
    5-4287
    415 S. W. 2d 557
    Opinion delivered June 5, 1967

      Winslow Drummond, for appellant.

      Gene Worsham and Fletcher Jackson, Jeff Mobley and Joe Purcell, Attorney General; Don Langston and William B. Hass, Asst. Attys. General, for appellee.
   George Rose Smith, Justice.

This1 petition for a writ of certiorari to quash an order of the Faulkner Circuit Court, holding the petitioner in contempt of that court, is a companion case to First National Bank in Little Rock v. Roberts, Judge, also decided today. The petitioner contends that the evidence is insufficient to support the court’s finding that she was in contempt. We sustain that contention and accordingly direct that the order in question he quashed.

On March 23, 1967, the prosecuting attorney for the Fifth Judicial District obtained an order directing that a subpoena duces tecum he served upon the petitioner, Mrs. Tudor. The subpoena was issued on the same day and directed that the witness appear in the Faulkner Circuit Court at nine o ’clock on the morning of March 25 and bring with her “all cancelled checks, bank ledger sheets, bank deposit slips, hank check book stubs and all other documents you have relating to the bank account in the First National Bank of Little Rock on which you were authorized to write checks during the weeks and months preceding the November general election of 1966. ’ ’ The subpoena was served on Mrs. Tudor in Pulaski county on March 2.

The nest day Mrs. Tudor appeared with her attorney in the Faulkner Circuit Court, which was sitting at Morrilton. She did not bring any of the bank records. She testified that the bank account did not belong to her. Tt consisted of donations made to the campaign fund of the Republican party. She was employed by the party during the campaign; the account was placed in her name for convenience. When the subpoena was issued she was no longer an employee of the party and did not have possession of any of the requested records.

Mrs. Tudor also testified that after she received the subpoena she talked to several officials of the party (whom she named) in an effort to obtain the records. She was told: “These are not your records. How could you possibly bring something that isn’t yours?” She did not go to the bank in an attempt to get whatever records that institution might still have.

At the same hearing the president of the bank testified that as far as the bank was concerned Mrs. Tudor was the owner of the account and that at her request the bank would have turned over to her such records as were available. On the basis of that testimony the court found Mrs. Tudor to be in contempt, because she had not gone to the bank to see if the records were obtainable.

The court erred in its ruling. The subpoena directed Mrs. Tudor to bring such of the specified records as “you have.” It is an undisputed fact that Mrs. Tudor did not have in her possession any of the records in question. Her failure to produce the records carried on implication of disrespect for the court or willful disobedience of its order.

It is important to note that this case does not involve a subterfuge on Mrs. Tudor’s part, by which she professes to be unable to produce records that are really within her control. There is no reason in the record to question the sincerity of her conclusion that she had no moral right to surrender the records — any more than there would be to question the conclusion of a lawyer’s private secretary that she should not surrender confidential files to which she might have access. In the circumstances we are not willing to say that Mrs. Tudor was guilty of contumacious conduct.

Writ granted.


author:
Paul Ward, Justice.
      CaRletoN Haekis, Chief Justice, JOHN A. FoglemaN; Justice,

text:
    Lucy Gill et al v. State of Ark. ex rel Jeep Mobley, Pros. Attorney
    5280
    416 S. W. 2d 269
    Opinion delivered June 5, 1967
    [Rehearing denied July 26, 1967.]

      Darrell Hickman, for appellant.

      Gene Worsham and Fletcher Jackson, Jeff Mobley, Joe Purcell, Attorney General; Don Langston & William R. Hass, Asst. Attys. General, for appellee.
   Paul Ward, Justice.

This is a Petition for a Writ of Certiorari challenging the power of a Prosecuting Attorney to sit as a Grand Jury. The Circuit Judge of Faulkner County, on March 25, 1967, held the Prosecuting Attorney had this power. The facts out of which this issue arises are summarized below.

Lucy Gill and ten other citizens of the county (petitioners) were subpoenoed to appear before the Prosecuting Attorney to testify regarding an investigation of alleged violations of the election laws during the election in 1966 in said county. Petitioners appeared as directed, but their attorney was not allowed to be present. Then the Prosecuting Attorney directed petitioners to appear before the Circuit Judge in order to determine their .rights. Petitioners and their attorney appeared as directed. It was then that the judge entered an order which, in material parts, reads:

(1) The Prosecuting Attorney has a right to sit as a grand jury.
(2) A witness does not have a light to counsel in the room inasmuch as the prosecution is sitting as a grand jury.
(3) Petitioners will appear before the respondent on March 28, 1967, and answer all questions except those that would or would 'tend to incriminate them.

Later, petitioners refused to answer questions asked by the prosecuting attorney in the absence of their attorney.

The issue. Stripped of all nonessentials, the only issue involved here in whether petitioners had the right to have their attorney present while being examined by the proseenting attorney. The issue is so limited because petitioners concede that, the prosecuting attorney has the right to subpoena, swear in, and question witnesses, and “sit as a grand jury” in many other respects — in fact, in all respects claimed by the respondent, except to deny them the presence of an . attorney of their choice when being questioned during an investigation.

The question here involved is one of first impression, in this Court. There is no statute or constitutional provision which says plainly an attorney can be, or cannot be, present in a situation here involved. We must, therefore, seek an answer to the question by considering the implications to be drawn from certain statutes, provisions of the constitution, and judicial pronouncements presently mentioned.

In 1936 the people adopted Amendment No. 21 to the Constitution which reads:

“All offenses heretofore required to be prosecuted by indictment may be prosecuted either by indictment by a grand jury or information filed by the Prosecuting Attorney. ’ ’

In 1937 the legislature implemented Amendment No. 21 by Act 160, being Ark. Stat. Ann. §§ 43-801 to 804 (Repl. 1964), Section 43-801, which in material parts, reads:

“The prosecuting attorneys and their deputies shall have authority to issue subpoenas in all criminal matters they are investigating; and shall have authority to administer oaths for the purpose of taking the testimony of witnesses subpoenaed before them; such oath when administered by the prosecuting attorney or his deputy shall have the same effect as if administered by the foreman of the grand jury.” Respondent cites Ark. Stat. Ann. § 43-908 (Repl. 1964) which reads ;
“The grand jury has power, and it is their duty, to inquire into all public offenses committed within the jurisdiction of the court in which they are impaneled, and to indict such persons as they find guilty thereof. ’ ’

Also cited by Respondent is Johnson v. State, 199 Ark. 196, 133 S. W. 2d 15, where, among other things, we said:

“The prosecuting attorney of a county is a quasi-judicial officer. The law has intrusted him with power, upon what he deems sufficient cause, to institute proceedings. He takes the place of a grcmd jury; and as the law imposed upon the grand jury the duty of determining whether or not sufficient (cause) had been shown to justify an indictment against the accused.”

Cited also is Taylor v. State, 220 Ark. 953, 251 S.W. 2d 588, as saying the subpoena power was necessary in order for the prosecuting attorney to properly prepare criminal cases. Also, Respondent appears to rely on Ark. Stat. Ann. § 43-2004 (Repl. 1964), but, at most, that section merely gives the prosecuting attorney power to coerce the attendance of witnesses at a hearing, and force them to testify “in all prosecutions.”

A careful study of the above statutes together with other authorities cited and examined, and ba,sed upon our own research, leads us to the conclusion that petitioners, in this instance, had a right to have their attorney present. Set out below are reasons on which this conclusion is based.

It must be conceded — it is not argued to the contrary — that a person has a common law right to be represented by counsel at any and all times unless this right is taken away by statute. That right is taken away by statute when a person appears before a grand jury. This right has not been taken away by any statute when one is called before a prosecuting attorney. Therefore if this Court takes that right away it mast he done by implication — i.e. we must read snch implication into Amendment No.. 21 or into Ark. Stat. Ann. § 43-801 (Repl, 1964). This we are unwilling to do, especially since we must give the statutes a strict construction. In the case In Re Kelley, 209 Tenn. 280, 352 S. W. 2d 709, a similar issue was under consideration, and the Court said:

“Such a statute, in derogation of the common law, and so drastic as to lend itself to oppression, should be strictly construed and should not be extended by construction beyond its plain language.”

It takes little imagination to foresee the oppression that could result if prosecuting attorneys are given the power here sought by the Respondent.

It is argued that to give this power to prosecuting attorneys would save money for the state and counties. That may be, and must be, conceded, but that result is a far cry from a sound reason for depriving an individual of his common law rights. Nowhere is it even argued that a prosecuting attorney cannot efficiently prepare for and issue an information without denying the presence of an attorney requested by a witness.

It is significant to us that the legislature saw fit, by statute, to specifically exclude a witness ’ attorney before a grand jury, but it did not choose to apply the restriction to hearings before a prosecuting attorney. If this is ever done it should be done by the legislature and not this Court.

It is, therefore, our conclusion that the petitioners ’ request for a Writ of Certiorari should be, and it is hereby, granted.

Harris, C. J. and Byrd, J., dissent.

FoglemaN, J., concurs.

CaRletoN Haekis, Chief Justice,

dissenting. I agree that prosecuting attorneys have not been granted the rights and powers of grand juries, but I do not see that it is actually necessary to reach that question in this case.

As pointed out in a concurring opinion by Mr. Justice Fogleman, the constitutional right to counsel before trial is based on protection against self-incrimination during the investigative process. I would quickly agree that, if the prosecuting attorney had subpoenaed these witnesses for the investigation of a murder, larceny, arr son, or any other type of felony case, except cm election contest, they would be entitled to an attorney who could advise them to refuse to answer any question that might involve them in the crime investigated. However, Article 3, Section 9, of the Arkansas Constitution provides as follows:

“In trials of contested elections and in proceedings for the investigation of elections no person shall be permitted to withhold his testimony on the ground that it may incriminate himself or subject him to public infamy; but such testimony shall not be used against him in any judicial proceeding, except for perjury in giving such testimony. ’ ’

Obviously, if his testimony cannot be used against him, there is no reason why a witness should not answer questions propounded.

This matter reached the trial court because the witnesses refused to answer, and, in my view, the general powers granted to a Circuit Court authorize the assistance of that court in carrying out the constitutional and statutory provisions of our law.

I, therefore, respectfully dissent.

I am authorized to state that Justice Byrd joins in this dissent.

JOHN A. FoglemaN; Justice,

concurring. I concur in the result but reach it in a different way.

I agree that Arkansas has not conferred upon prosecuting attorneys all the rights and powers of grand juries, but I think that it might constitutionally do so.

I cannot agree that a witness subpoenaed to testify before a prosecuting- attorney in a criminal investigation has any right, common law or constitutional, to have his attorney present in circumstances where, as here, he could not possibly incriminate himself. All of the holdings of the United States Supreme Court on the constitutional right to counsel before trial are based on protection against self-incrimination by in-custody interrogation. See, e.g., Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974; Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977. There is no way these witnesses could incriminate themselves in this investigation of alleged election, law violations because of Art. 3, § 9 of the Arkansas Constitution:

“§ 9. Testimony in Election contest — (Self-incrimination. — In trials of contested elections and in proceedings for the investigation of elections no person shall be permitted to withhold his testimony on the ground that it may incriminate himself or subject him to public infamy; but such testimony shall not be used against him in any judicial proceeding, except for perjury in giving such testimony. ’ ’

I find no authority for the statement in the majority opinion in regard to the right to counsel.

Nor do I fear abuse of powers by prosecuting attorneys. This court has always, in the absence of a showing to the contrary, presumed that officers would do their duty. Phillips v. Rothrock, 194 Ark. 945, 110 S.W. 2d 26; Jones v. Capers, 231 Ark. 870, 333 S. W. 2d 242.

I find nothing, however, which authorizes the circuit court to compel a witness to testify before a prosecuting attorney unless we say that the latter has all the powers of a grand jury. There is specific statutory authority for compelling a witness to testify before a grand jury in Ark. Stat. Ann. § 43-916 (Repl. 1964) and in all prosecutions, criminal or penal actions or proceedings in §43-2004, both being sections of our Criminal Code. The former cannot, under present statutes, be extended to cover investigations by the prosecuting attorney. The latter is not comprehensive enough to include investigations. Had it been, there would have been no necessity for § 43-916 to apply to witnesses before a grand jury.

       This, to me, is the main difference between an investigation conducted by a prosetouting attorney, and one conducted by a grand jury. In the latter instance, no witness is entitled to have an attorney present, irrespective of the charge being investigated.

       Emphasis supplied.


author: Paul Ward, Justice.

text:
    L. T. Alston v. Berthola D. Alston
    5-4232
    415 S. W. 2d 578
    Opinion delivered June 5, 1967

      Odell C. Carter, for appellant.

      Brockman & Brockman, for appellee.
   Paul Ward, Justice.

This is a divorce action involving a property settlement.

The parties were married October 4, 1941 and lived together until August 30, 1963. On July 3, 1965 Berthola D. Alston (wife, appellee) sued L. T. Ralston (husband, appellant) for a divorce and a portion of appellant’s real and personal property. She alleged appellant left her in- August, 1963 and that he treated her with indignities, and refused to support her.

On July 28, 1965 appellant filed an Answer and a Cross-complaint. He admitted leaving appellee but denied all allegations of indignities and non-support. He also asked for a divorce on the ground of indignities.

There was a trial on April 11, 1966, and the trial court found: (a) appellee was entitled to a divorce; (h) appellee was entitled to the statutory allowance in appellant’s real and personal property, and; (c) the clerk was appointed to sell said properties and divide the proceeds.

Appellant filed a Motion stating that the real property was susceptible of division in kind, asked the court to appoint Commissioners to divide the real property and give appellee a life estate in a one-third of it. The Motion was denied, and the court entered a Decree in favor of appellee in accord with its findings previously mentioned.

On appeal appellant urges two principal points for a reversal. One. The trial court erred in granting ap-pellee a divorce. Two. The trial court erred in refusing to appoint commissioners to divide the real estate in kind.

One. Appellant here appears to rely on two arguments.

First, appellee admitted that much of their trouble arose over the fact that appellant allegedly fathered a child by another woman more than five years before the inception of this litigation. It is the position of appellant that since this “incident” happened more than five years before suit was filed, it could not be a valid ground for divorce under Ark. Stat. Ann. § 34-1208 (Repl. 1962) which says that the cause of divorce must have existed within five years before suit is filed. This is not however a valid argument in this case. Appellee does not rely on the “incident” as the sole ground for a divorce, although she does admit it was the source of many arguments which continued while they lived together. Also, there was testimony of other grounds for a divorce.

Secondly, appellant contends that the court, in granting appellee a divorce erred as a matter of law and also found against the weight of the evidence. For reasons hereafter set out, we cannot agree with this contention.

Appellee first relies as a matter of law, on Kientz v. Kientz, 104 Ark. 381, 149 S.W. 86 from which he quotes:

“It is the duty of the husband to support and maintain his wife, even though they may live separately, and apart, if such separation does not result through her fault.” (Emphasis ours.)

Before appellant can take advantage of that argument he must first prove appellee was to blame for his leaving-, and that is one of the issues here.

It is next contended that there was no corroborating testimony to support any other grounds for a divorce, and again we cannot agree.

At the close of the case the trial court made comprehensive findings consisting of five printed pages in the record. Among other things the court made these findings. “The plaintiff testified the defendant went to Hot Springs for treatment of a venereal disease, and the evidence supports her statement on this point.” “However, the court is of the opinion that all of the testimony, when taken together, establishes a pattern of neglect on the part of the defendant toward the plaintiff that entitles the plaintiff to an absolute divorce from the defendant. ’ ’

Appellee testified appellant often stayed out at night without any explanation. A neighbor testified that she had on many occasions seen appellant at. the home of the woman who had given birth to his child, and that these visits extended up to 1963. Another witness said she had seen appellant and the woman above mentioned together at a local night club. Still another witness, who lived in the home of the parties at the time of the separation in 1963, testified appellant would curse and become violent toward appellee.

Considering the record as a whole, and realizing the trial court’s opportunity to observe the witnesses and evaluate their testimony, we are unwilling to say the court erred in granting appellee a divorce.

“Two. As previously pointed out, the trial court ordered the real property sold and the proceeds divided between the parties, and denied appellant’s motion to have the property divided in kind by appointed appraisers.

We have concluded that it was error for the trial court to refuse appellant the right to have appraisers appointed to see if the land could be divided in kind. The right of a land owner to have a partition, if feasible, before it is sold is statutory. In the early case of Moore v. Willey, 77 Ark. 317, 91 S.W. 184 (a suit for partition), we said:

“But the procedure in proceedings for partition is regulated by statute in this State.”

The court then proceeded to point out that “We do not think the mere failure of the chancery court in this case to appoint commissioners to ascertain whether the land could he divided rendered its judgment void. ’ ’ Following that statement the Court said:

“In cases where there is doubt as to whether partition can he made we think it is well to appoint commissioners who can examine the premises and ascertain the facts and make report.”

We think the above procedure should have been followed in this case. Here there was no testimony on which the trial court could make (and did not attempt to make) a judgment as to the divisibility of the land in kind. The case under consideration here can be distinguished from the case of Champion v. Champion, 238 Ark. 87, 378 S.W. 2d 648 (relied on by appellee) where this Court said:

“Of course, a Chancery Court has full authority to order a sale of property, provided the proof is satisfactory that no division in hind ca,n he made...” (Emphasis ours.)

It cannot be said here that such proof was made.

The cause is therefore reversed on the second point, and it is remanded for further proceedings consistent with this opinion.

Reversed and remanded.


text:
    Marilyn Kay (Neely) Hill v. Elmer Lee Neely
    5-4281
    415 S. W. 2d 558
    Opinion delivered June 5, 1967

      Wilton E. Steed, for appellant.

      Max M. Smith, for appellee.
   Paul Ward, Justice.

This appeal culminates a long fight by a mother for the custody of her two minor children.

On December 23, 1959 Marilyn Kay (Neely) Hill, appellant, was married at the age of fourteen to Elmer Lee Neely, appellee, who was then sixteen years old. Two children, Tommy Lee and Cindy Kay, were born to them before they separated the latter part of 1961.

On January 16, 1962 appellee filed suit for a divorce on the ground of indignities. The court, on February 17, 1962 ordered appellee to pay $20 per week for support of the children pending trial. On July 20, 1962 the court granted a divorce to appellee, gave custody to appellant, and ordered appellee to make delinquent support payments and to continue paying- in the future.

On January 11, 1964 appellee (the father) filed a petition alleging appellant (the mother) “has neglected and at times abandoned said children leaving them in custody of plaintiff’s (appellee’s) mother and sister most of the time”. After a hearing the court on May 11, 1964, gave custody of the children to Mr. and Mrs. Gerald Davidson — the latter being the sister of appellee.

After appellant had made repeated but futile efforts toregain legal custody of her children and to force ap-pellee to make the monthly payments for support, she filed, on October 13, 1966, another petition asking for custody of her children. In this petition she alleged she had remarried, that she now had a good home for the children, and that her present husband wanted her to have custody and was able and willing to support them.

A hearing* was held on the above petition and the court, on January 6, 1967, refused same, and ordered the case “continued for a period of twelve months at which time or thereafter the court will give further consideration to the matter”. From the above order denying custody, appellant proseen-tés this appeal.

It is our conclusion that the case must be reversed and custody of the children given to the mother.

In reaching the above conclusion we deem it sufficient to point out below certain facts and circumstances.

(a) There is, with the exception noted, no showing that the mother is not a fit person to have custody of her children. There is testimony to the effect that appellant, on one or two occasions, was heard using profane language in her own apartment. This was denied and explained by appellant.

(b) The father at no time contends he wants custody, of his childrén, that he is able to support, them, or that he is a fit person to have custody of them. •

(c) There is no reasonable showing- that appellant abandoned the children. In fact appellee did not so allege. He merely alleged that she left them with his mother and sister most of the time. This allegation is', to our satisfaction, explained by the undisputed' testimony While appellant had legal custody she was working to support herself and the children. During this time ap-pellee failed and refused to make monthly payments as ordered by the court. Also, during this time appellant was compelled to spend much time with her mother who was seriously ill, and soon died. Under these circumstances we are at a loss to understand how appellant could have used better judgment than she did. It is not disputed that she visited the children “nearly every week.” Webster defines the word “abandon” as “to give up with the intent of never again claiming one’s rights or interest in.” As previously pointed out, appellant here made repeated efforts to regain custody of her children. Under these circumstances we cannot hold appellant abandoned her children.

In the case of Loewe v. Shook, 171 Ark. 475, 284 S.W. 726, this Court made the following statement:

“There can be no question in the law that, as between a--mother and grandparents, the mother is entitled to the custody of her child, ‘unless incompetent or unfit, 'because of poverty or depravity, to provide the physical comforts and moral training essential to the life and well-being of her child.’ ”

In Kale Payne v. E. Leroy Jones, et ux, 242 Ark. 686, 415 S. W. 2d 57, delivered May 29, 1967, this Court used language which is pertinent and decisive here:

“To take a parent’s child away from him and give it to strangers is an extreme measure — a step which the courts should and do take only when the evidence clearly justifies such a course.”

In the same opinion we also find this statement:

“. . .the right of natural parents to the custody of their children, as against strangers, is ‘one of the highest natural rights, and the state cannot interfere with this right simply to better the moral and temporal welfare of the child as against an unof-fending parent.’ ”

In view of what has heretofore been said we also do not agree with the trial court that a final hearing should be continued to a future date. A further delay could only tend to make the situation more difficult for the mother, the children and the present custodian.

The cause is therefore reversed and remanded for entry of a decree consistent with this opinion, and for the imposition of reasonable visitation rights in the father.