author:
      Neill Bohlinger, Associate Justice. George Bose Smith, J.,
      Paul Ward, Associate Justice, Jim Johnson, Associate Justice,

text:
    Stevens v. Faubus, Governor.
    5-2409 and 5-2431
    354 S. W. 2d 707
    Opinion delivered March 12, 1962.

      Carlton Currie and Moore, Chowning, Mitchell, Hamilton & Burrow, by W. S. Mitchell, for petitioners.

      Frank Holt, Attorney General by Sam H. Boyce, Asst. Attorney General; William J. Smith, Willis B. Smith, John O. Moore, Hayes C. McClerkin, Maddox, Greer, Maddox & Collier, Fred H. Stafford, J. E. Lightle, J. Bruce Streett and Charles E. Plunkett, for respondents and intervenors.
   Neill Bohlinger, Associate Justice.

These are two original actions filed by the petitioners, citizens of Pulaski County and of Jefferson County, to review the 1961 reapportionment of the House of Representatives. The respondents are the members of the Board of Apportionment created by Amendment 23 to the state constitution. Citizens of Miller, Ouachita, Poinsett, and White Counties have intervened and joined in the defense of the Board’s apportionment.

Section 2 of Amendment 23, which was re-enacted by Amendment 45, provides that the House shall consist of 100 members, that each county shall have at least one representative, and that the remaining members “shall be equally distributed (as nearly as practicable) among the more populous counties of the State,” in accordance with a ratio to be determined by population. Section 4 of Amendment 45 requires the Board of Apportionment to reapportion the House after each federal census. Section 5 provides for original proceedings like these, in which the court may revise any arbitrary action or abuse of discretion on the part of the Board.

Bach of the seventy-five counties is entitled to one representative. The problem is that of allocating the remaining twenty-five seats among the more populous counties in the fairest possible manner.

The entire subject was carefully considered in Shaw v. Adkins, 202 Ark. 856, 153 S. W. 2d 415, which effectively settles every question presented by the cases at bar. As that opinion indicates, the theories of apportionment have been thoroughly analyzed with reference to the similar problem of allocating the seats in Congress after each census. In the Shaw opinion the late Chief Justice Grieein Smith, speaking for a unanimous court, discussed in detail the five recognized mathematical formulas for apportionment. The five methods are called that of smallest divisors, equal proportions, major fractions, harmonic mean, and greatest divisors. In the earlier case we quoted with approval this language from a treatise on the problem of apportionment:

“It is generally agreed that Congress, consciously or unconsciously, has had two principal aims in view: First, to equalize the ‘congressional districts’ among the several states; and secondly, to equalize the ‘individual shares’ among the several states. What the modern mathematical theory has done is to establish clearly the relations between these two aims and give the possible methods listed above.

The mathematical facts are as follows: The method of smallest divisors and the method of greatest divisors fail on both these aims; the method of major fractions fails oil the first aim; the method of harmonic mean fails on the second aim; the method of equal proportions, achieves both aims.

In view of these facts, the method of equal proportions was approved by two scientific bodies: The Advisory Committee to the Director of the Census, in 1921; and the National Academy of Sciences, in 1929.”

In the Shaw case, after considering all five methods,, the court approved the method of equal proportions as-the fairest known formula. We accordingly revised the 1941 apportionment to conform to the results achieved by the method of equal proportions. This precedent was followed by the Board as a matter of course after the 1950 census. In that instance the Board applied the rule of equal proportions after one of its members had explained that the apportionment of the House “presents no problem whatever” in view of the court’s decision in Shaw v. Adkins.

Between 1950 and 1960 a few counties showed an increase in population, but the State’s total population declined. In the reapportionment now under review the Board made only one change: One seat was taken from Mississippi County and was given to Miller County. In all other respects the Board continued in force the apportionment adopted in 1951.

"When the facts are studied the new apportionment appears to he domonstrahly arbitrary. For example, during the decade in question Pulaski County gained 46,295 people, but the Board gave this county no additional representation. By contrast, Miller County lost 928 people, but the Board nevertheless gave it an additional representative. It is clear that such inconsistencies as this one could be justified if, but only if, the Board was attempting to correct pre-existing inequalities in the 1951 apportionment. No such intention is suggested by the Board’s record of its proceedings, nor do the facts support that conclusion.

In fixing the 1961 apportionment the Board declared that it had chosen the method of smallest divisors because that method would “cause the fewest dislocations in the present representation of the more populous counties.” That this method does cause the fewest changes is confirmed by the following tabulation, which the parties concede to be a correct summary of the 1951 apportionment of the 25 additional seats and of the results to be achieved in 1961 by each of the five recognized methods of apportionment:

The Board was unquestionably mistaken in seeking that method of apportionment that would cause the least change in the existing representation. That point of view is contrary to the clear intention of the people in the adoption of Amendment 23. It was because the allocation had not been changed for many years and had become inequitable that the voters declared in Amendment 23 that the apportionment must be adjusted every ten years. There is implicit in Amendment 23 the conviction that a fair distribution of the people’s representatives in the House is an essential element of our system of state government. The Board of Apportionment was therefore created for the purpose of making changes, not for that of preserving the status quo. Hence the Board misconceived its own reason for existence when it consciously looked for a way of making as few changes as possible.

The Board’s selection of the method of smallest divisors cannot be reconciled with the decision in Shaw v. Adkins. There we compared the five recognized methods of apportionment and concluded that the rule of equal proportions was the most just and the most equitable of all the methods. Every argument that is now made in favor of the Board’s choice of the method of smallest divisors could have been made in favor of that same method in the Shaw case. It would be impossible for us to approve the Board’s action in this instance without overruling the decision in the Shaw case.

Counsel for the appellees call our attention to one sentence in the earlier opinion in which we disclaimed any purpose to assert “that all possible methods of computation have been tested, or to say that in certain circumstances relating to population gains or losses a more equitable apportionment could not be made.” That observation merely conceded the possibility that another formula might someday be discovered that would be superior to the method of equal proportions. The rule of smallest divisors obviously does not fall within that category, for it was known, considered, and rejected as inferior when the Shaw ease was decided.

In demonstrating the mathematical superiority of the rule of equal proportions the court used this illustration in the Shaw opinion:

‘ ‘ Lonoke County has a population of 29,802 and has two house members. Theoretically each represents a population of 14,901. Mississippi County has a population of 80,217 and has three members. Each, therefore, represents a population of 26,739. In theory each Mississippi County member represents 11,838 more constituents than does each of Lonoke’s members, the differential being 79.4 per cent. If one member should be taken from Lonoke County and given to Mississippi [as required by the method of equal proportions], each of Mississippi’s four members would represent 20,054 persons and Lonoke’s one remaining member would represent 29,802, an absolute difference of 9,748, or 48.6 per cent, against Lonoke. The disparity difference against Mississippi County at present is much larger than the disparity against Lonoke County if the latter is reduced to one member.”

In this way the court demonstrated that the method of equal proportions effected more nearly complete abstract justice than did the apportionment adopted by the Board.

Similar calculations can readily be made in the present instance. Under the rule of equal proportions Pulaski County, with a population of 242,980, has eleven representatives, so that each theoretically represents 22,089 people. Poinsett County has a single representative for its 30,834 people. The absolute difference is 8,745, or a disparity of 39.5 per cent against Poinsett County. If one representative is taken from Pulaski and given to Poinsett the disparity is increased to 57.5 per cent against Pulaski, so that the superiority of the method of equal proportions is demonstrated. In fact, if Pulaski is reduced to eight members, which was the result of the Board’s action, the disparity jumps to 97 per cent in favor of Poinsett. (It may be observed that Poinsett County is hardly in a position to oppose the method of equal proportions. As a petitioner in the Shaw case Poinsett County gained an additional representative by reason of the court’s adoption of the rule of equal proportions. Having enjoyed the benefit of the rule for twenty years the county cannot very well insist that some other method should be adopted now that its population has declined while that of other counties has increased.)

In the Shaw case it was considered significant that the method of equal proportions and that of major fractions, the only other method to have been approved by statute, gave the same results. That is almost true in this instance as well, the single difference being that the method of major fractions would take one seat from St. Francis County and give it to Washington County. The system of comparison used in the Shaw case shows that in its result the method of major fractions produces a disparity against St. Francis of 79 per cent, while the method of equal proportions leads to a disparity against Washington County of only 68.9 per cent. Once more the latter method is shown to be preferable.

In conclusion, we find it impossible to approve an apportionment which holds that one county, having gained 46,295 in population, is entitled to no additional representation, while another county, having lost 928 in population, is to be rewarded with an added seat in the House. We adhere to the method of equal proportions because (a) Amendment 23 requires that the membership of the House be reapportioned according to population after each federal census, (b) the method of apportionment by equal proportions can be demonstrated to be the fairest of all the known methods, (c) that method has the approval of Congress and of scientific analysis, (d) that method was adopted by this court in Shaw v. Acllcins, which is a controlling precedent, (e) it was adopted and applied by the Board of Apportionment in 1951, and (f) after the court had construed the language of Amendment 23 in the Shaw case the people re-enacted the pertinent language in exactly the same form in Amendment 45. No valid argument to the contrary has been presented in these cases.

It is to be regretted that no plan has been or can ever be formulated in a situation like this that will be so mathematically balanced that no disparity will exist. But the method of equal proportion is the fairest that has yet been devised to meet the situation that confronts us here. In an effort to follow the mandate of the people, it is our duty to accept the best fixed formula proposed, be its defects what they may, rather than to leave a situation with the potentialities of the present one relying upon a rule-of-thumb sense of equity that may find expression in a Board of Apportionment in the years that follow when we know not the membership that will compose those future boards. The situation demands a clear and precise procedure as an alternative.

The Board’s apportionment will be revised to conform to the results achieved by the application of the rule of equal proportions. By this method Pulaski County, having gained 46,295 in population, is entitled to three additional representatives, and Jefferson County, having gained 5,298 in population, is entitled to one additional representative. White, Mississippi, Ouachita, and Poinsett Counties lose one seat each from the present apportionment. It is so ordered.

George Bose Smith, J., concurs.

Ward and Johnson, JJ., dissent.

George Bose Smith, J.,

concurring. I concur only to point out that the Quotient Assignment Table contained in one of the dissenting opinions is not a new method of apportionment. It is simply the method of smallest divisors, which was considered and rejected in the Shaw case.

The Quotient Assignment Table is arrived at by dividing the population of the larger counties first by one, then by two, then by three, and so on. It will be seen by reference to the table constituting Footnote 12 to the Shaw opinion that this is the exact formula for apportionment by the method known as that of the smallest divisors. The only difference, one purely of form, is that in the Shorn table the populations are multiplied by the reciprocals (as fully explained in Footnote 7 of the Shaw opinion) of the numbers that would be used as divisors. For instance, the Shaw table first multiplies by .5, which of course is the same thing as dividing by two. Thus the two methods are actually identical.

Paul Ward, Associate Justice,

dissenting. For the reasons hereafter set forth and explained, I cannot agree with the majority opinion.

1. I do not feel bound, as the majority seems to be, by the opinion in the Shaw case. My reasons for this are found in the opinion itself, as a few references will demonstrate. (a) The opinion mentions five separate formulas by which an apportionment can be made and then quotes (from Huntington) as follows:

“ ‘To meet realistically the actual situation in Congress when an apportionment bill is up for debate, the emphasis is shifted from the process of computation to the test of fairness which the .final result would satisfy. The fairness of the final result, not the technical process of achieving this result, is regarded as the important thing.’ ” (Emphasis added.)

(b) Again, the opinion states:

“It is not our purpose to assert that all possible methods of computation have been tested, or to say that in certain circumstances relating to population gains or losses a more equitable apportionment could not be made. We have given earnest consideration to discussions by authorities who have been classed as experts. That the method of major fractions and equal proportions give uniform results when applied to Arkansas is significant. ’ ’

(c) A careful study of the opinion convinces me it merely means to hold that the “equal proportions” formula reached the correct result when applied to the distribution of population in Arkansas at that particular time, and that it was adopting that particular formula to reach a correct decision in that particular case. That conclusion comports completely with the eminent authority quoted in the opinion (set out above) to the effect that the final result and not the process by which it is reached is the important thing.

2. The Shaw opinion recognizes five expert formulas for apportioning purposes. It is conceded they all do not reach the same results when applied to the same essential figures. It must therefore be conceded they are not all infallible. It is also conceded that absolute equality cannot be achieved. That is why Article 8, Section 2 of the Constitution directs the Board of Apportionment to distribute the members equally “as nearly as practicable ’ ’.

3. Not only would I affirm the allotment made by the Board because I cannot say it abused its discretion, but, in my judgment, the attached exhibit (for lack of a better name, called “Quotient Assignment Table”) proves the Board’s allotment meets the “test of fairness”. A brief explanation of the Table will help to understand how the results reached therein were attained.

It is agreed by all that 25 members of the House are to be divided among the 16 counties shown in the table. The 16 counties have been selected because no one contends any other county (all smaller than Poinsett) is entitled to more than the one representative which is assigned to it by the Constitution.

I have chosen, for clarity, to have each letter of the alphabet (except Z) represent one of the 25 House members to be allotted, and the process was to allot one member at a time with A representing the first allotment, B the second, and so on through Y. Column 3 (on the table) shows the constitutional allotment of one member to each of the 16 counties. The first member, represented by A (shown in column 4), will of course go to Pulaski County since its population exceeds that of any other county. This results in Pulaski County having 2 members, and that in turn results (242,980 divided by 2) in each member representing 121,490 people — shown in column 5; Member B (column 6) will automatically go to Pulaski County for the reason previously stated, and this means (242,980 divided by 3, the number of members) that each member will represent 80,993 (column 7); Member C (column 8) must go to Jefferson County because it has 81,373 population (and 1 member) and is the only county with a population exceeding Pulaski County (where 1 member represents 80,993). The other members (D to Y) are alloted (as shown by the table) one at a time to the counties having the largest population being represented by a single member of the House. The result is that the total number of members allotted to each of the 16 counties (column 20) is exactly the same as the number allotted by the Board (column 21). Whether the above method is called the “smallest divisors” method or is called by any other name, it is mathematically sound, it is practicable, it proves itself step-by-step, and it reaches a fair result. Moreover, it will reach the same fair result in every instance regardless of the number of representatives, the number of counties, the increase or decrease in population, or the shifts in population among the counties.

It seems axiomatic that the only fair and logical way to determine the number of people represented by a single member of the House in any given county is to divide the number of people by the number of members allotted to that county. That is the basis of the method I have chosen, but it is not the basis of the method chosen by the majority. The difference between the results in the two methods can be demonstrated by using Pulaski County with a population of 242,980, dividing by 2, 3, and 4 members:

2 3 4

This method 121,490 80,993 60,290

Majority Method 170,086 99,196 70,143

The same disparity holds true for all 16 affected counties.

I cannot conscientiously say, therefore, that the Board abused its discretion in making the allotments.

Jim Johnson, Associate Justice,

dissenting. The majority opinion completely ignores specific provisions of our State Constitution and also the history of apportionment in Arkansas. I am convinced that in so doing the opinion is erroneous. Having this view, I am dissenting and setting forth herein the grounds on which I rely.

Amendment No. 23 to our State Constitution, adopted in the General Election of 1936, created for the first time “The Board of Apportionment.” That Amendment authorized the Board to fix thirty-five senatorial districts and to divide one hundred representatives among the seventy-five counties. The Amendment gave certain limited powers to this Court. First, it empowered this Court to compel (by mandamus) the Board to perform its duties. Second, it authorized this Court “to revise any arbitrary action of or abuse of discretion by the Board in making any such apportionment.”

Amendment No. 23 was the source of litigation in the case of Shaw, Autry & Shofner v. Atkins, Governor, 202 Ark. 856, 153 S. W. 2d 415, in which this Court stated;

“It is not onr purpose to assert that all possible methods of computation have been tested, or to say that in certain circumstances related to population gains or losses a more equitable apportionment could not be made. ’ ’

Following the Shaw case (in which this Court so clearly recognized the powers of The Board of Apportionment to use various methods of apportionment) the voters again amended our State Constitution by the adoption in the 1956 general election of Amendment No. 45. This Amendment made two changes and only two. First, it divested The Board of Apportionment of the power to apportion senators. Second, it froze permanently the senatorial districts then existing. No additional powers were given nor taken from The Board or this Court.

This review brings us to the case now before the Court wherein the majority has concluded that only one method of apportionment may be used by The Board; that method being the Method of Equal Proportions and the majority relies upon the Shaw case for its authority. Actually, a study of the Shaw case reveals that three out of five modern accepted mathematical methods of apportionment when applied to the Arkansas census considered in the Shaw case produced the same results.

The table showing these mathematical computations is contained in the Shaw opinion. Methods known as the Method of Harmonic Mean, the Method of Major Fractions and the Method of Equal Proportions, all produced the same results. The majority view is that the Shaw case approved only one method (the Method of Equal Proportions) and held that only that method could be used by The Board. In my opinion, the Shaw case says no such thing and cannot be reasonably construed to lay down such an arbitrary and rigid formula for apportioning members of the House of Representatives.

The majority opinion robs The Board of Apportionment of its discretionary powers and in effect constitutes this Court a super Board of Apportionment, all of which I feel is contrary to the Constitution and contrary to the will and intent of the voters of Arkansas when, they adopted Amendment No. 45.

I refer again to the above statement taken from the Shaw case in which this Court clearly and definitely recognized the discretionary powers of The Board and The Board’s right to use various methods of apportionment, depending on the circumstances relating to population gains or losses.

Acting to carry out their duties as members of The-Board of Apportionment, Governor Orval E. Faubus, Secretary of State Nancy Hall and Attorney General Frank Holt took valuable time from the heavy responsibilities of their offices (especially at a time when the General Assembly was in session) for the purpose of studying all recognized and accepted methods of apportionment as applied to the official census of Arkansas-for 1960. They found that all five such methods produced different results, whereas three out of the five had methods producing the same result when applied to the census of 1940. These three Constitutional Officers of our State adopted the method known as the Method of Smallest Divisors and they performed their duties by filing their report before February 1, 1961, as directed by the Constitution.

In order to revise the report of The Board, the-majority holds that these three officials were arbitrary in their action. This opinion I cannot share because their very action and devotion to duty, in my opinion, demonstrates beyond any question that these officials were not arbitrary in making the apportionment set out in their report. The charge of arbitrary action is serious and is one in which I cannot and will not join when, as in this case, there is no evidence to sustain such a charge.

I want to emphasize that we are not called upon to decide wdiether The Board’s report is correct or whether we would have reached a different conclusion if we had constituted The Board of Apportionment in the first instance. The people (through Amendments 23 and 45) reposed the duty to apportion in The Board of Apportionment and not in this Court. This is the duty the majority opinion usurps. In the case of Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041, this Court said:

“We are not called on to decide primarily whether or not the decision of The Board was correct. The lawmakers have placed that authority in The Board of Control, and it would be clearly an encroachment by the Courts beyond the authority of another Department of Government to undertake to substitute the Judgment of the Judges for that of the members of the tribunal vested with authority to manage the Institutions of the State.”

Also in the case of Department of Public Utilities v. Ark. La. Gas Co., 200 Ark. 983, 142 S. W. 2d 213, we said:

“. . . if the Department’s order is supported by substantial evidence, free from fraud, and not arbitrary, it is the duty of the Courts to permit it to stand, even though they might disagree with the wisdom of the order. In such a case our Judgment will not be substituted for that of the Department. ’ ’

Many times this Court has held that the General Assembly, acting within constitutional limitations, is the sole judge of the wisdom, expediency and necessity of legislation. Williams v. Parnell, 185 Ark, 1105, 51 S. W. 2d 863; Gentry v. Harrison, 194 Ark. 916, 110 S. W. 2d 497.

Arbitrary is a strong word and it has been defined by the Supreme Court of the United States in United States of America, Petitioner, v. Carmack, 329 U. S. 230, 67 S. Ct. 252, 91 L. Ed. 209 as follows:

“ ‘Arbitrary’ is defined by Funk & Wagnalls New Standard Dictionary of the English Language (1944), as ‘1. . . .; without adequate determining principle; . . .’and by Webster’s New International Dictionary, 2d ed. (1945), as ‘2. Fixed or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances, or significance . . . decisive but unreasoned; . . . ’
“ 'Capricious’ is defined by Webster’s New International Dictionary, 2d ed. (1945), as ‘2. . . .; apt to change suddenly; freakish; whimsical; humorsome.’ Cf. Fox Film Corp. v. Trunbull (DC) 7 F. 2d 715, 727; Puget Sound Power & L. Co. v. Public Utility Dist. (CCA 9th Wash,) 123 F. 2d 286, 290, writ of certiorari denied in 315 US 814, 86 L. ed. 1212, 62 S. ct. 798; United States v. Eighty Acres of Land (DC Ill.) 26 F. Supp. 315, 319.
‘' See also, United States v. Certain Parcels of Land (DC Md) 30 F. Supp. 372, 379; United States v. Parcel of Land (DC Del.) 32 F. Supp. 718, 721.”

How can the majority say that the Board has acted arbitrarily when The Board has selected one of the five-modern accepted mathematical formulas used in apportionment. I do not think that The Board is limited to these five formulas and I base my opinion on the fact that one must concede that a time could come when under any or all of the five presently accepted and recognized mathematical formulas used in apportionment one county could claim all twenty-five of the extra members of the House of Representatives. Such a situation cannot be contemplated by Amendment No. 45 because it uses the plural ‘‘more populous counties”. To continue with the discussion of arbitrary action, courts generally hold that administrative agencies cannot be found guilty of such action where there is room for two opinions and action is exercised honestly and upon due consideration. Smith v. Hollenbeck, 48 Wash. 2d 461, 294 Pac. 2d 921, Lillions v. Gibbs, 47 Wash. 2d 629, 289 Pac. 2d 203.

In the case before this Court, there is not only room for two opinions, there is room for a minimum of five opinions because there are five accepted and recognized mathematical methods of apportionment, and, in my opinion, I would aadd at least one other method because Amendment No. 45 to our State Constitution does not limit the Board to these five methods.

As I have already stated with citations above, this Court has refused to substitute its judgment for that of State Boards or Commissions and it has refused to strike down legislation merely because it did not agree with the wisdom of the General Assembly. I contend that this Court should refuse to revise the report of The Board of Apportionment because in so doing the 'Court substitutes its judgment for The Board’s judgment. Such action by the Court is wrong and amounts to the usurpation by the Court of powers vested in the Governor, the Secretary of State and the Attorney General by the people of Arkansas.

Whether I agree or disagree with the result set forth in The Board’s report is of no consequence because I have no right to substitute my judgment for the Board’s judgment.

The important issue and the only issue in this case is whether Orval E. Faubus, Nancy Hall and Frank Holt took arbitrary action or abused their discretion and I emphatically and without equivocation say that they did not.

In McCaa Chevrolet Company v. Bounds, Administrator, 207 Ark. 1043, 183 S. W. 2d 932, this Court said:

. . A court is not at liberty to read something into the law that was not put therein by its framers, even if such a course may seem necessary in order to prevent an apparently unjust result in the case being considered. ’ ’

This same rule would apply in construing the Constitution. Even if the majority disagrees with the result reached by The Board of Apportionment, the majority still has no right to read something into Amendment No. 45 that is not there. The majority, in effect, tells the Governor, the Secretary of State and the Attorney General in future apportionment cases that their function is the performance of a mere ministerial duty of applying a mathematical formula and that they nave no discretion and cannot exercise any judgment in formulating a report on apportionment which they deem to be just and fair and in the best interests of the people of Arkansas. These are three public officials who must answer to the people of Arkansas at the polls each two years. I do not believe and cannot understand why it would be necessary to take the time of the Governor, the Secretary of State and the Attorney General to consider and pass their judgment upon a matter if it is one in which only one conclusion can be reached and that conclusion is the result of a mathematical formula. Such a procedure and requirement would be ridiculous and I do not believe that the people of Arkansas intended that this Court would have the power to bring about such a situation when the people enacted Amendments Nos. 23 and 25 to our Constitution.

I would affirm the report of The Board of Apportionment and would commend the three state officials involved for their prompt and considerate discharge of the duties imposed upon them by these provisions of the Constitution of our State.

In re Briefing of Criminal Case :

Per Curiam

For many years it has been the rule of this Court that in felony cases we will examine all alleged errors in the Motion for a New Trial, regardless of whether all of the alleged errors are argued by appellant on appeal. Martin v. State, 206 Ark. 151, 174 S. W. 2d 242, Boyd v. State, 215 Ark. 156, 219 S. W. 2d 623. The Attorney General has, therefore, felt it his duty to brief all assignments of error in the Motion for a New Trial, notwithstanding, it was obvious that many such alleged errors had no merit.

This procedure has placed an undue burden on the Attorney General and it is not required in a fair administration of the criminal laws. Therefore, in the future, in a non-capital felony case, the Attorney General will be required to brief only those points argued by appellant and such other points as may appear to the Attorney General to have merit. If no brief is filed on behalf of the appellant in a non-capital felony case, the Attorney General will brief those assignments of error in the Motion for a New Trial that may appear to be beneficial to the appellant. In all capital cases the Attorney General will brief all issues raised by an objection made by the defendant.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    C. A. M. P. A. v. Smith.
    5-2631
    355 S. W. 2d 604
    Opinion delivered March 19, 1962.
    [Rehearing denied April 23, 1962.]

      Thompson $ Thompson, by Edgar B. Thompson, for appellant.

      J. E. Simpson, for appellee.
   Carleton Harris, Chief Justice.

This is the second appeal in this case. In Central Arkansas Milk Producers Association v. Willard Smith, 232 Ark. 206, 335 S. W. 2d 289, we affirmed a judgment for appellee in the amount of $600. In a petition for rehearing, appellant raised the question of the ownership of the milk bed on the truck (referred to in the opinion), and asserted:

“Appellant respectfully petitions the court that since it has been determined by the jury and by the Supreme Court that the truck bed now has no value, and no market price exists for said truck bed, that if the court finds the contract still exists after this petition for rehearing that appellant be permitted to take possession of said milk bed. ’ ’

On June 6, 1960, a rehearing was denied, but this Court amended its Opinion as follows:

‘ ‘ Rehearing denied, and the trial court is re-invested with jurisdiction to determine the ownership of the truck bed.”

Thereafter, on September 10, 1960, apparently pursuant to a petition filed by appellant, asking that the trial court determine the ownership of the truck bed, that court entered its judgment denying the petition, and reaffirming its judgment of October 2,1959. This remained the status of the matter until the court entered an order on June 14,1961, finding that the judgment of September 10th, heretofore referred to, had been entered without the attorneys for appellant receiving a notice of the hearing; finding further that appellant had not received a copy of the judgment until after the time for appeal had expired, and had not received any notice that such an order had been entered. On these findings, the court set aside the judgment of September 10, 1960. This order was entered after the lapse of the term. On July 20th, the court entered a second order setting aside the judgment of September 10, 1960, and on the same date, entered its judgment vesting ownership to the truck bed in Willard Smith, finding that “the ownership of said truck bed has been in Willard Smith at all times and is now and remains in the said Willard Smith and that there is no question remaining for this court to determine. ’ ’ Prom the judgment so entered, appellant brings this appeal.

A¥e are unable to consider appellant’s appeal on its merits for the reason that it did not comply with the statute which governs the setting aside of decrees or judgments after the lapse of the term. Section 29-508, Ark. Stats. Anno., provides that such proceedings shall be by complaint, verified by affidavit, and we have held that this requirement is jurisdictional. In Bradley v. Keith, 227 Ark. 1107, 305 S. W. 2d 134, this Court said:

“The next day Keith filed an unverified motion to set aside the judgment, asserting that only a pre-trial conference had been scheduled for June 5 and that his attorney had been prevented by illness from being present. This motion was not presented to the court until after the lapse of the term. The court considered the motion at its next term and, acting only upon a statement of counsel, made a finding of unavoidable casualty and vacated the judgment.

The appellant is correct in his insistence that the record does not support the court’s action. After the lapse of the term the court no longer had discretionary control over its judgment, which could then be vacated only in accordance with the statute that applies after the expiration of the term. Dobbs v. Dobbs, 225 Ark. 397, 282 S. W. 2d 812. That statute requires that the complaint to set aside the judgment be verified by affidavit, Ark. Stats. 1947, § 29-508, and we have repeatedly held that this requirement is jurisdictional. Pattillo v. Toler, 210 Ark. 231, 196 S. W. 2d 224; Raymond v. Young, 211 Ark. 577, 201 S. W. 2d 583; Kirby v. Milum, 218 Ark. 106, 234 S. W. 2d 518. Although the requirement may be satisfied by the introduction of sworn testimony at the hearing on the motion, Pinkert v. Reagan, 219 Ark. 822, 244 S. W. 2d 961, the trouble here is that no proof under oath was offered to sustain the motion to vacate the judgment.”

See also Wright v. Ford, 216 Ark. 55, 224 S. W. 2d 50.

Tn the case before us, it does not appear that a written complaint or petition was filed praying the court to set aside its judgment; at least, no such pleading is reflected in the transcript. Nor does the docket sheet, which appears in the transcript, show that any written motion was filed seeking this relief. As pointed out, it is necessary that a written petition or complaint be filed, and verified, before one feeling aggrieved is entitled to relief, unless sworn testimony is taken at the hearing on the petition. The record does not reflect that any sworn testimony was taken. It follows that the court was without jurisdiction to set aside the judgment of September 10, 1960, and that judgment should stand. The appeal is accordingly dismissed.

       The judgment recites that the cause is presented to the court upon the petition of “the above named defendants”, which would mean the appellant in this case. The term “apparently” is used because, though the judgment is dated September 10th, the petition is dated September Í2th.

       The reason for the entry of the second order is not shown.

       In effect, this was the same judgment the court had entered on September 10, 1960.


author: Ed. F. McFaddin, Associate Justice.

text:
    Miller v. Reed, Chancellor.
    5-2677
    355 S. W. 2d 169
    Opinion delivered March 19, 1962.

      Martin, Dodds & Kidd, for petitioners.

      Warren $ Bullion, for respondent.
   Ed. F. McFaddin, Associate Justice.

This is an original proceeding in which Petitioners, Sturgis Miller, et al., seek a Writ of Prohibition to prevent the Honorable Murray O. Reed, Chancellor, from proceeding further in a case pending in the Chancery Court. The Petitioners herein list themselves as “Sturgis Miller, President, Ed S. Doss, Vice President, and R. Gr. McBryde, Secretary-Treasurer, of Arkansas Chiropractic Association; H. Gr. Perkins, Foy Weeks, H. L. Hudsonpillar, A. M. Reynolds, P. D. Bosma, and Gordon Lynch, members of the Board of Directors of Arkansas Chiropractic Association; and Sturgis Miller, Ed S. Doss, R. G. Mc-Bryde, H. G. Perkins, Foy Weeks, H. L. Hudsonpillar, A. M. Reynolds, P. D. Bosma, and Gordon Lynch, in their individual capacity.” They will be referred to as “Sturgis Miller et al.”

Certain background facts will present the situation. Drs. William E. Kuhl and Robert J. Kuhl are chiropractors, having been licensed by the State Board of Chiropractic Examiners to engage in that branch of the healing art (§§ 72-401 et seq. Ark. Stats.). The Arkansas State Medical Board, proceeding under §§ 72-602 et seq. Ark. Stats., filed its complaint against Drs. Kuhl and Kuhl in the Pulaski Chancery Court, of which Honorable Murray O. Reed is Chancellor. The complaint alleged that Drs. Kuhl and Kuhl were in fact practicing medicine in addition to being chiropractors. The complaint stated, inter alia: ‘ ‘ The plaintiffs allege that the defendants are practicing medicine in the State of Arkansas contrary to the provisions of the Arkansas Statutes . . . the defendants are prescribing medicines for the treatment of illness and disease . . .” The Arkansas State Medical Board relies on § 72-620 and § 72-621 Ark. Stats, as giving the Chancery Court jurisdiction to issue injunctions against the practice of medicine without a license. In the said Chancery case there was an intervention filed by Sturgis Miller et al., who are the same parties as the Petitioners for Prohibition in the present case. The Intervenors claimed: . . . that should the relief prayed for in the complaint be granted, it would, in effect, preclude each and every chiropractic practitioner in the State of Arkansas from pursuing his or her profession . . .” The intervention was permitted in the Chancery Court on December 2, 1960, and is still pending.

In June 1961 the State Board of Chiropractic Examiners, proceeding under §§ 72-407 et seq. Ark. Stats., heard charges filed by its Ethics Committee against Drs. Kuhl and Kuhl, including charges that Drs. Kuhl and Kuhl had been guilty of “numerous instances of unauthorized practice of medicine.” On July 10, 1961, the Arkansas State Board of Chiropractic Examiners revoked the licenses of Drs. Kuhl and Kuhl as practicing chiropractors; that revocation is said to be still pending on certiorari in the Pulaski Circuit Court; and it is stated in the brief of the Respondent, and undenied by the Petitioners, that Drs. Kuhl and Kuhl have never ceased the practice of whatever they were doing {i.e., whether medicine or chiropractic).

In January 1962 the Pulaski Chancery Court set for trial the case therein pending, wherein the Arkansas State Medical Board was Plaintiff, Drs. Kuhl and Kuhl were Defendants, and Sturgis Miller et al. were Intervenors. Thereupon, Sturgis Miller, et al. filed the present Petition for Prohibition in this Court to prevent the Pulaski Chancery Court from trying the case therein pending in which Sturgis Miller et al. had intervened. The Petition filed in this Court states as ground for prohibition :

“Petitioners, further, state and contend that the sole jurisdiction of the disposition of this matter now rests with the Circuit Court of Pulaski County, and that the complaint in the case of Arkansas State Medical Board v. William E. Kuhl and Robert J. Kuhl, was prematurely filed, because the administrative remedies had not been exhausted against the said William E. Kuhl and Robert J. Kuhl. Petitioners, also, state that, if the Pulaski Circuit Court sustains the finding of Arkansas State Board of Chiropractic Examiners, Case no. 116543 will become moot, and that a temporary Writ of Prohibition should be issued by this Court, prohibiting the Hon. Murray O. Reed, Chancellor of the First Division of the Chancery Court of Pulaski County, Arkansas, from trying or further proceeding in said case, and that a reasonable time be granted counsel for petitioners and Arkansas State Medical Board to brief this question, and that a final order be entered making said temporary order permanent.”

So much for the background facts. What we are asked to do is to prohibit the Chancery Court from trying a case pending in that Court. The Petitioners want the case delayed until a subsequently filed case in the Pulaski Circuit Court has been decided, which Circuit Court case involves only the revocation of the chiropractic licenses of Drs. Kuhl and Kuhl. Even if the chiropractic licenses should be revoked, such would not prevent Drs. Kuhl and Kuhl from “prescribing medicines for treatment of illness and disease”; and that (inter alia) is what the Arkansas State Medical Board charges Drs. Kuhl and Kuhl have been doing.

The Practitioners herein, Sturgis Miller et al., have entirely misconstrued the grounds for a writ of prohibition issued out of this Court. The writ of prohibition does not issue to prohibit the lower court from erroneously exercising its jurisdiction, but only when the lower court is wholly without jurisdiction. Terry v. Harris, 188 Ark. 60, 64, S. W. 2d 80; Bessett v. Bourland, 175 Ark. 271, 299 S. W. 13; Ritholz v. Dodge, 210 Ark. 404, 196 S. W. 2d 479. The Pulaski Chancery Court had jurisdiction to issue an injunction against Drs. Kuhl and Kuhl from practicing medicine without a license. Section 72-620 Ark. Stats, declares that the practice of medicine without a license is a nuisance; and § 72-621 Ark. Stats, vests the Chancery Court with jurisdiction and power to enjoin the unlawful practice of medicine.

This power given the courts (in § 72-621 Ark. Stats.) to enjoin the unlawful practice of medicine is practically the same power given the Chancery Court to enjoin the practices of optometry under § 72-818 Ark. Stats., and the practice of dentistry under § 72-542 Ark. Stats. In Ritholz v. Arkansas State Board of Optometry, 206 Ark. 671, 177 S. W. 2d 410, we held that the Chancery Court could enjoin persons from the practice of optometry without a license; and in Missionary Supporters v. Arkansas State Board of Dental Examiners, 213 Ark. 38, 328 S. W. 2d 139, we held that the Chancery Court could enjoin persons from the practice of dentistry without a license. Certainly, therefore, the Chancery Court has the jurisdiction to enjoin Drs. Kuhl and Kuhl from the unlawful practice of medicine. Since the Pulaski Chancery Court had jurisdiction of the suit brought by the Arkansas State Medical Board against Drs. Kuhl and Kuhl, a Writ of Prohibition will not issue.

Petitioners argue that the Arkansas State Medical Board should have filed its complaint before the Arkansas State Board of Chiropractic Examiners to have Drs. Kuhl and Kuhl barred from practicing chiropractic, and that until the Arkansas State Medical Board so proceeded it had failed to exhaust its administrative remedies. The Arkansas State Medical Board is not concerned whether Drs. Kuhl and Kuhl practice chiropractic. In fact, the Medical Board concedes in its brief here: “We do not mean to say by this that the Medical Practices Act forecloses the rights of chiropractors to practice chiropractic as defined by the Arkansas Statutes.” What the Arkansas State Medical Board is trying to do is to prevent Drs. Kuhl and Kuhl from practicing medicine; and § 72-604 Ark. Stats, says: “The term, ‘practice of medicine’ shall mean ... to diagnose, treat, prescribe for . . . any human disease . . . by the use of drugs . . .” Such, among others, is the charge against Drs. Kuhl and Kuhl. There is no effort in the Chancery Court case to prevent them from practicing chiropractic, as defined by the laws of Arkansas; but there is the effort to prevent them from practicing medicine as defined by the laws of Arkansas and the Chancery Court has jurisdiction to hear and determine that question independently of any proceeding to revoke the chiropractic licenses of Drs. Kuhl and Kuhl.

Therefore, the Writ of Prohibition is denied.

       This Case No. 116543 is the said case of Arkansas State Medical Board v. Drs. Kuhl and Kuhl in the Chancery Court.


author: George Rose Smith, J.

text:
    Kivett v. Redmond Company.
    5-2657
    355 S. W. 2d 172
    Opinion delivered March 19, 1962.

      Mehaffy, Smith é Williams, by Robert V. Light, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   George Rose Smith, J.

This is a disability claim under the workmen’s compensation law. On March 26, 1956, the appellant, while working at the appellee’s plant at Jacksonville, lost her footing and sat down hard on the concrete floor. The fall undoubtedly caused an injury to the claimant’s coccyx, for which she has been compensated. More than two and a half years after the accident she filed the present claim, on the theory that the fall also resulted in a disabling injury to her lower back. The commission denied the claim, finding that Mrs. Kivett’s back weakness was not attributable to her fall. "We have concluded that there is ample evidence of a substantial nature to support the commission’s decision, which was affirmed by the circuit court.

On the day of her accident Mrs. Kivett was treated by Dr. Crow, who found her to be “quite tender at coccyx.” The claimant continued to work at her job and during the next two months received heat treatments at Dr. Crow’s office and at the appellee’s first aid station. On May 31, 1956, Dr. Crow discharged his patient as having been cured, with no permanent disability. Mrs. Kivett testified that she was then suffering, and has continued to suffer, back pain that she attributes to the fall. Dr. Crow was not called as a witness, but there is nothing in his reports to suggest any injury except that to the coccyx. The Commission may well have believed that the doctor would not have discharged Mrs. Kivett if she was actually undergoing extreme pain at the time.

During the next year the appellant remained at work. She states that she often complained to her fellow employees about the pain in her back, but no witness was called to corroborate this statement. To the contrary, during that particular year Mrs. Kivett admittedly went to the first aid station a total of twenty-nine times for a variety of ailments, including such minor matters as a cold, a headache, a poison ivy rash, and a splinter in her thumb. Yet the first aid records do not contain a single reference to back pain of any kind. The commission was warranted in thinking it did not exist.

In June of 1957, almost fifteen months after her fall, Mrs. Kivett ceased work to have a gall bladder operation, not connected with her employment. Upon recovering from that surgery she did not return to work. In December of that year she went back to Dr. Crow, who recorded that she complained of soreness in the coccyx. The two bones constituting the coccyx were removed by surgery in January. Dr. Crow, two months later, again discharged his patient as cured, with a finding of no disability. Again there is no reference whatever to any back trouble. Counsel for the claimant insist that their client, a woman of limited education, might not have been able to distinguish between pain in the region of her coccyx, or tailbone, and pain in her lower back, a few inches away. It was Dr. Crow’s duty, however, to discover and treat his patient’s malady; so his finding of soreness in the coccyx excludes by implication any belief on his part that there was also pain in the lower back.

After this claim was filed in October of 1958 Mrs. Kivett was sent to Dr. Jones, an orthopedic specialist. In his first report Dr. Jones was unable to say that the patient had experienced significant pain in her lower back before January of 1958. Later on, in response to an inquiry from Mrs. Kivett’s attorney, Dr. Jones wrote that “I am of the opinion that based on the patient’s history it must be accepted that the injury in question is related to the patient’s low back discomfort.” This single sentence is really the only substantial evidence tending to corroborate the claimant’s own testimony. But Dr. Jones’s opinion was “based on the patient’s history,” and the commission, by italicizing that phrase, indicated its belief that this medical opinion was entitled to no greater weight than the history that the physician had elicited from his patient.

The question is ultimately a simple one of credibility, a matter lying within the exclusive province of the commission. Pearson v. Faulkner Radio Service Co., 220 Ark. 368, 247 S. W. 2d 964. The full commission noted in its written opinion that the single member who heard the testimony had the opportunity to observe Mrs. Kivett’s demeanor and to weigh her testimony. This remark is pertinent only to the vital issue of whether the claimant’s testimony was worthy of belief. That testimony is not corroborated by other workers at the appellee ’s plant. It is impliedly contradicted by every written medical record that was made during the two and a half years preceding the assertion of this claim. Unless Dr. Jones’s single sentence can be so construed, there is in the record no medical opinion purporting to say that a fall such as Mrs. Kivett experienced in 1956 would tend to cause pains in her lower back then or later on. In a case of this kind it is not for us to say that the commission was required to accept the claimant’s testimony and on that basis to make an award of compensation. We are bound by the commission’s findings upon the disputed question of fact.

Affirmed.

Johnson, J., dissents.


author: Paul Ward, Associate Justice.

text:
    Smart v. Gates.
    5-2705
    355 S. W. 2d 184
    Opinion delivered March 19, 1962.

      O. H. Hargraves, for appellant.

      Knox Kinney and Mehaffy, Smith d Williams, by James E. Westbrook, for appellee.
   Paul Ward, Associate Justice.

This appeal challenges the validity of Sewer Improvement District No. 1 of Forrest City, Arkansas on the ground that said district embraces lands lying within and outside of the City limits.

Appellants, who are resident property owners of the City, filed a complaint, as a class action, in chancery court against appellees who are the duly appointed Commissioners of said Improvement District. The complaint alleges the said ‘ ‘ District is invalid because a small portion of the District . . . extends beyond the corporate limits of the City . . .” The prayer was that the District be declared invalid and that the Commissioners be restrained from proceeding any further. The Commissioners filed a general demurrer which was sustained by the trial court, and this appeal follows.

For a reversal, appellants urge two points, viz.: One, the statutes do not authorize the formation of such District; Two, the Legislature has no constitutional power to authorize a municipal corporation to tax lands lying beyond its corporate limits.

One. We do not agree with appellants’ contention that there is no statutory authority for Forrest City to form this Improvement District merely because it embraces land within and outside of the corporate limits. The first paragraph of Ark. Stats., § 20-102 reads as follows:

“Application of preceding section — Formation of districts outside cities authorized — Additional powers. Provided, further, that these provisions [of the'preceding section] shall extend to any improvement district now or hereafter formed or created; and the formation and creation of such districts is hereby specifically authorized in whole or in part outside of any city of the first or second class, or incorporated town. . .

The second paragraph of said section has no bearing on this case.

Appellants’ contention appears to be that the words “any improvement district”, emphasized in the portion of the section copied above, do not apply to sewer districts. One reason given by appellants is the wording in the emergency clause of Act 310 of 1941 which mentions the necessity of improving grade crossings. It is true that said § 20-102 is a part of said Act 310, but it is also true that said Act deals with several items besides sewers, such as streets, viaducts, underpasses and grade crossings. We can see no significance to the fact that the emergency clause mentioned one item and did not mention other items. We know of no requirement that the emergency clause in any act of the legislature shall contain more than one adequate ground for justification. The fact that one item in an act creates the emergency is no indication that other items in the act are invalid or have been deleted.

Appellants contend also that a study of the history of said § 20-102 will show it does not refer to sewer improvement districts. We have made that study and we find it reveals just the opposite of appellants’ contention. Act 84 of 1881 provides that cities of the first class may assess real property in a district to construct sewers. This Act was amended by Act 18 of 1889 bnt only to include cities of the first and second class. Act 68 of 1927 extended the right to incorporated towns. Likewise Act 64 of 1929 provided for sewer construction. The first time the legislature specifically authorized a district to contain lands outside the city limits was by Act 22 of the 1938 Extraordinary Session. This Act forms the first portion of § 20-101 and it again provided for the construction of sewers. Section 1-A of Act 22 is exactly the same as § 20-102. Then Act 310 of 1941 reenacted that portion of Act 22 mentioned above, and in addition it contains the language found in the last portion of § 20-101. From this history there can be no possible doubt that the legislature, since 1881, has meant to give cities the right to form improvement districts in order to construct sewers, and that since 1938 such districts may include lands outside the city limits.

This Court has had occasion to pass upon the above issue, and has each time resolved it against appellants. See: Butler v. Board of Directors of Fourche Drainage District, 99 Ark. 100, 137 S. W. 251; Cox v. Road Improvement District No. 8 of Lonoke County, 118 Ark. 119, 176 S. W. 676; Bennett v. Johnson, 130 Ark. 507, 197 S. W. 1148.

Two. We see no merit in appellants’ contention that “The legislature cannot authorize a municipal corporation to tax lands lying beyond its corporate limits ’ ’, even if this question had been raised in the pleadings. The word “tax” in this connection refers, of course, to assessment of benefits on lands lying in the improvement district. As such “tax” it was approved in all the cases heretofore cited, and many others could he cited to the same effect. The legislature is invested with all power not prohibited by the constitution. The only limitation found in the constitution is Article 19, Section 27, which is that the assessments must be ad valorem and uniform and with the consent of a majority in value of the affected property holders. It is not contended by appellants that any such limitations have been violated in this case.

It follows therefore that the decree of the trial court must be, and it is hereby, affirmed.


author: Sam Robinson, Associate Justice.

text:
    Humphreys v. Reed.
    5-2639
    355 S. W. 2d 281
    Opinion delivered March 19, 1962.
    [Rehearing denied April 16, 1962.]

      Lamar Smead and Spencer & Spencer, for appellant.

      Mahony & Yocum, for appellee.
   Sam Robinson, Associate Justice.

This case grows out of an automobile accident. Appellant, W. F. Humphreys and Randall Kitchens were occupants of an automobile driven by Jimmy Clemons. It was about 6:30 a.m. and they were on their way to work. The car was travelling south on Highway 167 south of Hampton when it collided with a truck travelling north and being driven by appellee, Augusta Reed, an employee of appellee, C. F. Wright. Humphreys, who was injured, filed this suit against Reed and Wright. He recovered a judgment in the sum of $4,000.00 and has appealed to this Court contending that the amount of the judgment is inadequate to compensate him for the damages sustained. Appellant concedes that the judgment can not be reversed solely because of the inadequacy of the damages, but he contends that there was serious error in the giving of Defendant’s Instruction No. 8; that this error, coupled with the alleged inadequate judgment calls for a reversal.

Appellant sustained serious injuries. Dr. J. B. Jamerson, a witness for appellant, testified that when he saw appellant he was in pain, had a laceration of his scalp, was confused, had a dislocation of his femur on the left, a fracture of the scapula, fracture of his left foot, contused lung on the right side, with a mild brain injury. He also had a dislocation of the first metatarsal joint and a fracture involving the base of the second metatarsal. The doctor testified that after the swelling went down he did surgery on the foot, but the most severe injury was a fracture of the hip bone socket; that this fracture pushed in toward the pelvis and is a serious injury; that the appellant was placed in traction, lying flat on his back with a wire through his tibia with a twenty pound weight on it. This traction continued for four weeks. He also testified that appellant is still 50% disabled.

Dr. D. E. White, on behalf of the defendant, testified that appellant’s injuries had healed, but that he has a slight limp because of the injury and a slight bending down of the second, third, fourth and fifth toes of his right foot; that he has a 10% disability to his left leg; that he has an ununited fracture of the collar bone and estimates that there is a 5% disability due to that condition.

According to the undisputed evidence, appellant’s medical and hospital expenses amounted to $1,716.76. Ih addition he lost time from work amounting to $2,125.00, making a total of $3,841.76 actual money damages suffered up to the time of the trial, and there is testimony to the effect that it will be necessary for him to spend an additional $1,200.00 to $1,500.00 for doctors. Moreover, there is testimony that he suffered excruciating pain and that he has a permanent partial disability ranging from 10% to 50%.

Even with all this evidence of damages we would not reverse the judgment solely because of inadequacy of the judgment. In Wadsworth v. Gathright, 231 Ark. 254, 330 S. W. 2d 94, this Court said: “When substantial damages are awarded, a judgment will not be reversed because of inadequacy, if there be no other error than that committed by the jury in measuring the damages. But a judgment even for substantial damages will be reversed where the undisputed testimony shows the damages to be inadequate, if error of a substantial and prejudicial nature was committed at the trial of the case.”

Here there was serious error in the giving of the instructions. By Defendant’s Instruction No. 8 the Court told the jury: “If you should find from the evidence that the driver of the automobile in which the plaintiff was riding was driving at a fast and reckless rate of speed, or was negligent in any of the respects alleged in the answer, and should you further find from a preponderance of the evidence that the plaintiff observed, or should have in the exercise of reasonable care observed, the manner in which the automobile was being driven and failed to caution the driver or protest the manner in which he was driving, if he had a reasonable time to do so, then he was negligent.” By this instruction the Court told the jury, among other things, that if the driver of the car was driving at a fast and reckless rate of speed and the plaintiff observed this kind of driving and failed to protest, he would be guilty of negligence as a matter of law.

Of course it was the duty of Humphreys to exercise ordinary care for his own safety. If Clemons was driving in a negligent manner it is entirely possible that Humphreys could be guilty of contributory negligence that would bar his recovery. Elmore, Administrator v. Dillard, 227 Ark. 260, 298 S. W. 2d 338. Whether appellant was guilty of such contributory negligence in the circumstances was a question of fact for the jury and not a question of law. In Keller v. White, 173 Ark. 885, 293 S. W. 1017, the Court said: ‘ ‘ The existence of negligence is always a question for the jury, unless the acts complained of are declared by law to be negligent per se, or unless all reasonable minds must conclude that the acts were necessarily negligent.” Citing Rector v. Robins, 82 Ark. 424, 102 S. W. 209, Reed v. State, 54 Ark. 621, 16 S. W. 819, Blankenship v. State, 55 Ark. 244, 18 S. W. 54. In Aluminum Company of North America v. Ramsey, 89 Ark. 522, 117 S. W. 568, the Court said: The existence of negligence should be passed upon by the jury as any other fact, and it is improper to instruct them that a certain fact or group of facts amounts to negligence per se, unless such acts are declared by law to be negligence per se, or are such as to induce an inference of negligence in all reasonable minds.” In St. Louis I. M. & S. Ry. Co. v. Hutchison, 101 Ark. 424, 142 S. W. 527, the Court said: “It has long been settled law that ‘where the situation is such from which different minds might draw different conclusions as to whether, under the particular circumstances, the plaintiff was guilty of contributory negligence, the question is properly one of fact for the jury to determine. ’ ’ ’

There is a conflict of the evidence as to the cause of the collision, but there is no evidence of negligence per se on the part of Humphreys. Moreover, even if there was negligence on the part of Clemons and a failure on the part of Humphreys to caution the driver or protest the manner in which the car was driven, the evidence is not such that it can be said that different minds might not draw different conclusions as to whether appellant was guilty of contributory negligence.

Appellee cites the case of Miller v. Smith Light & Traction Co., 136 Ark. 272, 206 S. W. 329, to sustain the contention that Instruction No. 8 was not erroneous. A somewhat similar instruction was given in that case and the Court said it was not error when read in connection with another instruction; no specific objection was made to the instruction. In the case at bar, the appellant made the following objection: “The plaintiff makes general objection to the giving of Defendant’s Instruction No. 8. Further, the plaintiff objects specifically to the giving of said Instruction No. 8 for the reason that it invades the province of the jury by telling the jury as a matter of law that failure to protest the manner in which the car was being driven was negligence without leaving it for them to determine whether or not, under the facts and circumstances at the time, due care required such protest.”

Because of the giving of Instruction No. 8 requested oj appellee, the judgment is reversed and the cause remanded for new trial.


author: Jim Johnson, Associate Justice.

text:
    Whitaker, Mayor v. Ark. State Highway Comm.
    5-2627
    355 S. W. 2d 286
    Opinion delivered March 19, 1962.

      Virgil D. Willis, for appellant.

      H. Clay Robinson, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from an order of the Boone County Chancery Court granting appellee, Arkansas State Highway Commission, an injunction against the city officials of Alpena which ordered a controversial traffic light removed.

The undisputed facts are as follows: At the intersection of Center and Main Streets, Main Street also being IT. S. Highway 62, in the City of Alpena, the municipal authorities erected a traffic control device, to-wit, a flashing red traffic light. This device was erected pursuant to an Ordinance of the City Council. The City has not been granted permission by the Arkansas State Highway Commission to place or maintain this light. Traffic engineers employed by the Arkansas State Highway Commission have made traffic counts at this intersection to determine if the control device is warranted by the traffic conditions and have found that it is not.

The traffic engineer who testified in this case stated that the stop light on U. S. Highway 62 does not conform to the standards recommended by the Institute of Traffic Engineers, and adopted by the Arkansas State Highway Commission, stated what the standards were and explained in what manner the light is lacking. He explained that a non-standard light is dangerous.

Ark. Stats. §§ 75-502, 75-511 and 75-512 read as follows:

“75-502. The State Highway Commission shall place and maintain such traffic control devices conforming to its manual and specifications, upon all State highways as it shall deem necessary to indicate and to carry out the provisions of this act or to regulate, warn or guide traffic.
“(b) No local authority shall place or maintain any traffic control device upon any highway under the jurisdiction of the State Highway Commission except by the latter’s permission.”
“75-511. Conformity to standards. Any new electrical traffic-control signal device installed on any street, road or highway in this State after January 1, 1960, shall be in conformance with the standards recommended by the Institute of Traffic Engineers, approved as an American Standard by the American Standards Association. All traffic signals shall conform to the State manual and specifications adopted by the State Highway Commission in accord with the requirements of Sections 28 and 30 of Act No. 300 of 1937 and Sections 75-501 and 75-503 of the Arkansas Statutes of 1947 Annotated (1957 Replacement).”
“75-512. Officials to arrange signals to conform. Any persons, officers, or officials charged with the duty of placing, operating or maintaining of electrical traffic-control signal devices on the public street or highways of this State shall arrange such signal devices to conform with the provisions of this Act [Secs. 75-509-75-513]..”

These legislative enactments are so plain and unambiguous the learned Chancellor had no choice but to apply the plain language of the statutes to the undisputed facts, i.e.,

(1) The stop light is located upon U. S. Highway 62, a part of the State Highway System.

(2) The Commission has not given permission to the City of Alpena to place or maintain the light.

(3) The signal device did not conform to standards adopted by the State Highway Commission.

This application having been made by the trial court, and by this Court from the record on trial de novo, properly resulted in the granting by the trial court the injunction prayed. See Adkins v. Harrington, 164 Ark. 280, 261 S. W. 2d 626; Arkansas State Highway Commission v. City of Little Rock, 227 Ark. 660, 300 S. W. 2d 929; Garrison v. City of Alpena, 234 Ark. 170, 350 S. W. 2d 690.

Affirmed.

Bohlinger, J., not participating.


author: Neill Bohlinger, Associate Justice.

text:
    Housing Authority of City of Little Rock v. Sparks.
    5-2629
    355 S. W. 2d 166
    Opinion delivered March 19, 1962.

      Mehaffy, Smith & Williams, by John T. Williams and William L. Terry, for appellant.

      Warren & Bullion, for appellee.
   Neill Bohlinger, Associate Justice.

The appellant is an agency created as a body corporate and politic under the Housing Authority Act of the State Legislature, same being Act 298 of 1937. The appellee is owner of two lots in West Rock Addition, same being Lot 8 of Block 1 and Lot 10 of Block 1.

In carrying out its work in slum clearance and urban renewal, the appellant filed its complaint in Pulaski Circuit Court seeking to condemn the above named lots. The appellee answered and raised an equitable defense and the case was transferred to Pulaski Chancery Court where it was duly tried and from a decree and judgment awarding the appellee the sum of $11,000.00 as just compensation for the taking of her property this appeal is prosecuted and presented here.

It appears from the record that appellee is the owner of an area on the north of Cantrell Eoad that is approximately the width of the road plus 100 feet from the lots involved in this case. It is the contention of the appellee, however, that these two lots are a part of her scheme for the development of the balance of her property in that she contemplates the erection of commercial establishments in addition to some buildings now in the area and that the two lots involved in this case will be necessary for a parking area for the employees who she contemplates will find work in her completed project. It would appear at the outset that the principle of substitution or replacement might be considered in this case but if either principle would be adopted it would fall upon the property owner to show the value of the property which is to be acquired to replace the condemned property. This the appellee has failed to do.

It appears that there is a piece of property directly west of appellee’s main holdings that is referred to as the ‘ ‘ Cheek Property ’ ’ which would no doubt be suitable for a parking area but is of greater extent than the condemned property and the only testimony as to value of the Cheek Property was given by appellee’s witness who thought the Cheek Property was worth $50,000.00. The other property that is suggested as a substitute or replacement is referred to as the “Collins Property” which adjoins appellee’s Lot 8 and which appellee’s witness, without fixing a value, thought was worth less than Lot 8 or Lot 10.

Appellee testified that she had tried to get property to substitute for her lots 8 and 10, and that she had inquired from the owner the price of the Collins Property and that the owner had asked $10,000.00 for it.

This is not the measure of market value and the statement in State v. Lincoln Memory Gardens, Inc., Ind., 177 N. E. 2d 655, succinctly states the rule:

“A mere offer to buy or sell property is not a measure of the market value of a similar property. It is incompetent to prove the market value of property because the asking price is only the opinion of one who is not bound by his statement, and is too unreliable to be accepted as a correct test of value. A witness in an eminent domain proceeding may state the cost of a particular property at a given place in order to establish the value of a similar property. But evidence of the price for which someone might be willing to sell such similar property or how much he may have refused to take for it would not tend to prove the market value of the property taken.”

Therefore, there being no competent testimony as to the value of any property that might be used for replacement or substitution, we turn to the value of the two lots based upon every fact concerning the property which would naturally be disposed to place it in an advantageous light if a negotiated sale to a private individual was in prospect. The purpose of the lots, as shown by appellee’s testimony, is for a parking area but appellee states that she had not parked any automobiles on either of these lots during the five, or six year period she had owned them because she had not had the buildings to warrant it but stated, “however, we never know what ten years will bring.” Appellee’s only witness on this point was Mr. Hood who stated that he was familiar with values in that neighborhood and that he speculated in real estate and he would be willing to give $10,000.00 or $12,000.00 for these two lots and would subsequently expect to sell them for $15,000.00.

In Arkansas State Highway Comm. v. Watkins, 229 Ark. 27, 313 S. W. 2d 86, this court said:

“In United States v. 620 Acres of Land, Etc., 101 Fed. Supp. 686, which concerned the condemnation of land in Marion County, Arkansas, the Court, at page-690, approved this statement: ‘ To warrant the admission of testimony as to value for purposes other than that, for which it is actually used, however, regard must be-had for existing conditions and wants of the community,, or such as may reasonably be expected in the immediate future. The uses considered in fixing value must be so reasonably probable as to have an effect upon the present market value of the land and a speculative value cannot be considered.’ In the case of Carolina Power and Light Company v. Clark, 243 N. C. 577, 91 S. E. 2d 569, the court, in dealing with fixing the value of property based on its best adaptable usage, said that consideration must be given to existing business ‘or wants of the community, or such as may be reasonably expected in the immediate future to affect present market value.’ It was then said by the court: ‘purely imaginative or speculative value should not be considered, ’ citing a long line of cases. This court, in L.R. Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792, made this pertinent observation : ‘ One who anticipates an increase in the value of his property may feel it a hardship to surrender it without receiving more than its present market value, but it would be a hopeless task to either measure or satisfy the anticipations of a sanguine land owner.’ ”

On the other hand, the witnesses for the appellant who, like Mr. Hood, testified as experts, fixed a value of $2,000.00 on one lot and from $4,000.00 to $4,250.00 on the other lot, basing their judgment on such factors as the highest and best use of the property, its general contour, market for the property and comparable sales.

In the matter of comparable sales, the appellant offered evidence as to two sales which were excluded by the chancellor as being over three years prior to the filing of this action. There is no hard and fast rule that sets a time beyond which comparable sales cannot be shown. The remoteness in time goes to the weight of the evidence and not to its admissibility.

Trying this case de novo here and striving to arrive at a judgment from experience as against a judgment from speculation, giving the testimony of all the witnesses the strongest probative effect, we fail to find that the testimony taken as a whole justifies the award of $11,000.00. We conclude, however, that the testimony in this case justifies an award of $8,000.00.

The judgment of the chancery court is, therefore, modified and we enter judgment here in favor of the appellees and against the appellant in the sum of $8,000.00. Appellant recovers its costs.


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    Hercules Trouser Co. v. Burrow.
    5-2632
    355 S. W. 2d 278
    Opinion delivered March 26, 1962.

      Thomas E. SparJcs, for appellant.

      Lawson E. Glover, for appellee.
   Carleton Harris, Chief Justice.

Appellants, Dallas County Industrial Development Corporation, entered into a lease agreement with appellants Hercules Trouser Co., Inc., hereinafter called Hercules, and Fordyce Apparel Company, Inc., for the construction of a large industrial building in Fordyce. The first named appellant was to finance construction of the building to the extent of $200,000, and the other two appellants were to furnish the balance of the funds necessary to complete construction, and thereafter, would pay a certain monthly rental to the Dallas County Industrial Development Corporation, such rentals to apply against the purchase price if an option to purchase was exercised.

According to plans and specifications, the first step was preparation of the site and foundation work, and this was referred to as “Contract A”. The W. C. Burrow Company of Malvern was the successful bidder on contract “A”, and proceeded with the work, completing it to the full satisfaction of appellants. Shortly prior to the completion of this contract, the architects for Hercules advertised for bids to complete the construction of the building, said work being referred to in the plans and specifications as “Contract B”. In addition to this general contract, other contractors bid on specific phases of the construction, such as electrical, plumbing, etc. Contracts were to be made with appellant Hercules Trouser Company, Inc., since the Dallas County Industrial Development Company was obligated only to furnish $200,000 (a part of which had been used to pay for the work done under contract “A”, and it was apparent the cost of the building would far exceed the amount still retained by this corporation). Jess Resler of Columbus, Ohio, president of Hercules, testified that on the night of March 13th, the night before the bids were opened for contract “B”, he received a telephone call from M. W. Calhoun, construction superintendent of appellee company. Resler stated that he thought he was dealing with the principal, because he had never met Burrow, or his partner, W. H. Glover of Malvern. The witness testified that he considered Calhoun had the right to act for the company, and accordingly did not hesitate to negotiate with him. According to Resler, Calhoun told him that he felt the bidding next day would be very competitive, and that he (Calhoun) was not certain the W. C. Burrow Company would be the low bidder. Resler favored Burrow receiving the contract because of the excellent work the company had done under contract “A”. The witness stated that Calhoun told him that his regular bid would be approximately $112,938, and the two agreed that an additional fee would be paid to Burrow of $10,000. According to Resler, “That sounded a little irregular to me, and we probably shouldn’t have done it, but we did, and when the bids were opened by the Dallas County Industrial Development Corporation, they showed that if we took their bid of $112,938.00, we were actually paying $1,596.00 more to the W. C. Burrow Company than the bid of the Puterbaugh Construction Company.”

Appellees contend that the agreement to construct: the building was on a cost plus ten percent basis, it being; understood, however, that appellees’ profit would nob exceed $10,000, irrespective of the cost of the building. On April 15, 1960, appellee W. H. Glover directed a. letter to Mr. Eesler, as follows:

“Dear Mr. Eesler:
Confirming your telephone conversation of April: 14 with our Mr. M. W. Calhoun. We understand that: your architect has been away on vacation, thereby, delaying forwarding to us formal contract, both with you. and the Fordyce Industrial Corporation.
We understand it is your desire that we proceed with, all haste without a contract, but it is also understood that, our base bid did not include any profit and that since all bids exceeded money available from the Fordyce Industrial Corporation, we understand you wish us to proceed on a cost plus ten-percent, but not to exceed $10,000.00. Our books, payrolls, invoices, etc., are to-be made available to you to show our actual cost. We are: to give you our monthly estimate of work performed, and are to be paid monthly.
We assure you that we will proceed immediately in a good workmanlike manner to save all money possible.
If this is your understanding please sign below and' return copy for our files. We hope to meet you on your next trip to Arkansas.
sincerely yours,
W. C. BUEEOW COMPANY
BY /s/ W. H. Glover”

Mr. Eesler admittedly signed the following notation on the letter:

“Accepted this 17 day of April, 1960.
HEECULES TEOUSEE COMPANY
By /%/ J. S. Eesler, Pres.
J. S. Eesler”

Various deletions and deductions were made from time to time, reducing the base bid by $31,115.06. though-some extras were also subsequently added. In the end, appellees contended that they were due $11,685.28,. for which suit was instituted, and appellants contended that appellees were due $2,947.56. The question was whether appellees were to receive the amount of the base bid (as subsequently reduced by deductions and items omitted) plus $10,000, as contended by appellants, or if the building was constructed on the basis of a cost plus ten per cent contract, the profit, however, not to exceed $10,000, as contended by appellees. Appellees asserted that $8,182.00 of the sum sought in the complaint constituted the profit. On trial, the court held with appellees, and awarded judgment for $11,685.28, together with costs, and interest at the rate of six per cent from April 18, 1961, until paid. The decree further provided that if the amount be not paid within sixty days, such sum should be declared a lien against the property. From the decree so entered, appellants have appealed. For reversal, it is contended, first, that all of appellants’ evidence introduced was competent and admissible under ■exceptions to the parole evidence rule, but that the Chancellor did not consider all of the evidence so offered, and second, that the decree of the Chancellor was against the preponderance of the evidence.

We find nothing in the record that shows that the Chancellor did not consider all of the evidence, but we see no need to scrutinize this point, since we are clearly of the opinion that, in considering all testimony and exhibits, the preponderance still lies with appellees. A discussion of all of the evidence would serve no particular purpose, since this case is not one of first impression, and there are no unusual matters of law involved which would make this opinion noteworthy as a precedent for the future.

The letter from Glover to Resler of April 15th is certainly not ambiguous, and clearly sets forth that the Burrow Company is to proceed on a cost plus ten per cent basis. The phrase “Our books, payrolls, invoices, etc., are to be made available to you to show our actual costs” is, of course, in complete conformity with a cost plus agreement. Mr. Resler stated that he read this letter before he signed it. When asked if he could explain the meaning of the sentence just quoted, Resler replied: “I thought somone was screwy, because it had nothing to do with prior arrangements.” Subsequently, the witness stated, “I didn’t know what the interpretation of that was.” Resler insisted that he dealt entirely with Calhoun, thinking that the latter was a principal, in spite of the fact that both the bid bond and contract “A” had been signed by Clover, and appellees’ stationery listed the company as composed of W. C. Burrow and W. H. Clover. At any rate, Resler signed the acceptance, though according to his own testimony, he noted the cost plus provision.

In addition, the record reflects a second letter from Clover to Benham, Richards & Armstrong, architects for appellants, dated April 23, 1960, pertinent portions reading as follows:

“We will appreciate you preparing contract with the proper officers of Hercules Trouser Company and our Company. We have gone to work on the job by reason of a letter from Mr. Resler, a copy of which is hereto attached.

After accepting deductions and additions our fee would be $8,182.00. We are to make all our books, payrolls, and invoices available to show actual cost. If the job can be built for less than $81,822.94, the savings is for the Hercules Trouser Company and if it goes over that amount it is for their account.”

Mr. Armstrong denied receiving a copy of the letter to Resler.

An additional pertinent fact supports appellees’ position. Builder’s risk insurance had been purchased from Rebsamen & East of Little Rock, and paid for by appellees. This was included in the costs. Resler canceled this insurance on October 4, 1960, and requested a refund. This check for refund in the amount of $246.99 was made payable to Hercules Trouser Company, and cashed by Resler. Of course, if this were not a cost plus contract, Resler was not entitled to the unearned premium.

We are firmly of the opinion that the decree is supported by a preponderance of the evidence.

Affirmed.

       Resler stated that the Burrow bid was actually more because of the $10,000 additional fee which he had agreed to pay.

       This reference was to the letter written by Glover to Resler on April 15th, and accepted by the latter.


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    Mowery v. House.
    5-2595
    355 S. W. 2d 275
    Opinion delivered March 26, 1962.

      Mehaffy, Smith <& Williams, by William II. Sutton, for appellant.

      Virgil D. Willis, for appellee.
   Ed. F. McFaddin, Associate Justice.

Questions of usury and damages are presented on this appeal. Delbert House purchased a motor truck from Mowery-Gaskill Motor Company (hereinafter called “Mowery”) on a deferred payment title retaining contract. When House failed to make the payments, Mowery filed this action for the balance claimed due and also had the truck attached (§ 34-2301 Ark. Stats.). House claimed the contract of sale was usurious, and cross complained for damages. Trial to a jury resulted in a verdict and judgment for House for $1,200.00 damages. From such judgment Mowery brings this appeal, listing seven points. We find it unnecessary to separately discuss each of the points: rather, we group them into convenient topic headings.

I. The Issue Of Usury. Mowery filed action on a conditional sales contract signed by House, which showed a total obligation of $2,982.48, itemized as follows :

1. Price of Motor Truck Purchased 3,600.00
2. Less down payment by trade-in of old truck 1,200.00
3. Balance Due 2,400.00
4. Car Insurance 180.00
5. Credit Life Insurance Personal Accident Insurance and Interest Charges 402.48
Total Balance 2,982.48

Mowery alleged that the total amount was to be paid at the rate of $124.27 per month for twenty-four months beginning February 10, 1960; that House made the first payment and defaulted on others; and that the default matured the deferred payments. House, both by pleading and testimony, claimed that he traded in his old motor truck for the new one, and that the total amount he was to pay, including all interest and carrying charges, was $2,400.00 to be payable in twenty-four monthly payments. He testified that he traded with Mowery late in the afternoon; that no one was available to type the papers; that he signed them in blank and trusted Mowery to complete them; that when he received the completed contract lie made one payment; and then set up the claim of usury.

The fact that House made a payment after receiving the contract would constitute ratification; but would not preclude House from claiming usury, if the original contract was as he testified. The Trial Court was correct in so ruling. Even though the contract was in writing, nevertheless, parol evidence was admissible to show usury. Heidelberg Southern Sales Co. v. Tudor, 229 Ark. 500, 316 S. W. 2d 716; and cases there cited. If the contract was as House claimed (i.e., $2,400.00 and no interest) then the signed papers were usurious. While House’s testimony was rather indefinite at times, nevertheless he was corroborated by his brother to some extent; and we cannot say that there was no sufficient evidence to take the issue of usury to the jury.

II. The Damage Verdict. As heretofore stated, when Mowery filed this action he had the motor truck attached and held by the Sheriff under § 34-2301 Ark. Stats. House claimed that since the contract was usurious, the motor truck should not have been taken from his possession, and he sought damages for being-deprived of the use of the truck. The jury awarded House $1,200.00 damages; and this is the most serious issue in the case. The correct measure of damages for loss of use of property, in a case such as this, is the rental value or reasonable value of the use of the property. Arnold Barber Co. v. Provance, 221 Ark. 385, 253 S. W. 2d 367; Boatwright v. Stewart, 37 Ark. 614; 15 Am. Jur. p. 537, “Damages” § 129; Blashfield on Automobile Law, Permanent edition, § 3419. - House offered no testimony as to such measure of damages; rather, he estimated (and most scantily at that) the net profits he would have made if he had not been deprived of the motor truck. There were timely and proper objections to House’s testimony, and also to submitting to the jury the issue of damages based on such insufficient evidence; and because of the damage issue the judgment must be reversed.

III. Directions on Remand. Because of inquiries made by the jurors to the Trial Court, and answers given thereto, we conclude that the issue of damages was so interwoven with the issue of usury that on remand the case should be retried on all issues. Since this is a law case and the judgment is reversed, the cause is remanded for a new trial on all issues. See Wilson v. Davis, 230 Ark. 1013, 328 S. W. 2d 249.

Reversed and remanded.

       There was a “side note” of $200.00 and a claimed account oi $30.30, but it is not necessary for us to detail these items to present the salient issues.

       Here are typical excerpts from Mr. House’s testimony as to damages:
      “Q. What had you been doing with the truck?
      A. Hauling logs and lumber and so forth.

        Q. Did you keep a fairly good account of what you were making per month.
      A. I didn’t keep exact record on it, no.
      Q. Have you since then tried to figure what you were making?
      A. Well, in the clear around above expenses I judge I made around $100 a month. . . .
      Q. You stated you thought it would make about $100 a month?
      A. Right.
      Q. Have you ever been in the trucking business before?
      A. No, sir.
      Q. Have you been in it since?
      A. No, I haven’t.
      Q. You really don’t know it would make $100 a month do you?
      A. Well, it should make that much.
      Q. How much would the expense be on it in a month if you were working in the timber?
      A. Some months be greater than others, I wouldn’t know exact on that.
      Q. I would like to know where you get the figure $100 a month.
      A. Well, the $100 a month, I would think would be income from the truck.”